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News Link • American History

The Legal Origin of the State Secrets Doctrine

• by David S. D**Q**Amato

The ability to hold it to account in the courts helps safeguard the rights of the individual, the consistent protection of which is the meaning of a free society. Robust judicial review of government actions is an expression of the idea that no one should be above the law, that ours is a country of laws not men, a principle enshrined in the Declaration of Independence and in the Constitution's three-branch structure. If justice is in fact blind, as we're taught, then she cannot see that a defendant in court is an agent of the state, blazoned with its symbols of power. In practice, though, the eyes of justice are not only open to those symbols but impressed by them, content to acquiesce in government malfeasance. The War on Terror has aggravated the problem of judicial capitulation to an assumptive and autocratic executive branch. Since the events of September 11, the federal courts have been still more susceptible to executive-branch legal arguments and interpretations, giving the government a free hand to violate individual rights. In its prosecution of the baneful War on Terror, the government has leaned heavily on the state secrets privilege, articulated in the Supreme Court's opinion in United States v. Reynolds; this case has thus become one of the key legal instruments of injustice in the twenty-first century.

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