Stacey Woelfel

-first posted on RTDNA.org on July 21, 2009

My wife sent me out over the weekend to run the Weed Eater around the edges of the yard, as well as on a huge mulch pile we have out back that seems to have begun to sprout its own primordial forest.  I’m not much of a fan of yard work, but I’d already gotten out of this job once.  I figured I might as well just get it done.

I strapped on my iPhone and tuned in to a podcast of my favorite radio program, “This American Life.”  Once Ira’s squeaky tones were drowning out the whine of the Weed Eater, I figured I could kill an hour or so on the jungle in front of me.  I decided to listen to a broadcast from June 22 that I had not heard on the radio live.  The episode was called “Origin Stories” and it was every bit as entertaining as always.  And in the middle was one piece that reminded about a piece of legislation in Washington I had been watching when it was introduced, but had let it slip onto my mental back burner over the busy five months or so since I first heard about it.  Reminded of this important bill, I checked in on it again and figured I would share it all with you this week so that you can get it on your legislative radar, too.

The bills (there are actually two) I’m talking about are the State Secret Protection Act of 2009 (H.R. 984 in the House and S. 417 in the Senate).  Now, this is not a First Amendment bill in the strictest sense of the term.  It’s not about journalists fighting to tell a story or to do research for that story.  This one has its origins (which I know, thanks to This American Life) in the 1953 U. S. Supreme Court decision United States v. Reynolds, a decision that led to the States Secrets Privilege.

The Reynolds case did not revolve around a general notion of the public’s right to know.  Instead, it was about a very specific group of people trying to open up government records.  The case involved the surviving family members of three civilian contractors who died in the 1948 crash of an Air Force B-29 on which they were riding.  Family members wanted Air Force records of the airplane’s maintenance and safety records so that they could determine if there was negligence on the part of the Air Force that led to the crash.  But government lawyers argued the top secret mission of the airplane meant the government could not release its investigation of the crash (the civilians were RCA employees on board to test secret equipment the company was selling to the Air Force).   In the end, the judge in the trial case ruled the families could see the report.  An appellate court upheld that decision, but the U. S. Supreme Court overturned the appeals court, creating the State Secrets Privilege.

Here’s where the journalism part comes in.  Though the original case did not deal with the reporting of state secrets, it did set up a precedent with which subsequent administrations have been able to withhold government records and documents from the media.  At first, presidents and their agents used the new power fairly rarely, but use increased dramatically during the Bush administration. The Washington Post reported in 2006 that a study done by the Reporters Committee for Freedom of the Press cites 55 uses of the privilege between the Reynolds case in 1953 and the end of the Clinton administration—that’s nine presidents—and 23 uses between Sept. 11, 2001 and 2006 (when the report was written)—that’s one president.  The impact here is clear—politicians can claim state secrets privilege in nearly any court case and judges, using the Reynolds and other precedents, dismiss cases, leaving plaintiffs lacking judgments and journalists lacking facts for their stories.

The new administration has made some noise that it will be hesitant to invoke the state secrets privilege as often as the last.  Then-Attorney General nominee Eric Holder pledged during his confirmation hearings that he would review those cases the Bush administration used state secrets privilege on, saying the Obama administration would use the privilege only when real state secrets were at risk.  In practice since his confirmation, Holder and the rest of the Department of Justice have still been using the secrets rule on some high profile cases.  It remains to be seen if there will be a major change under Obama, and some members of Congress aren’t waiting to find out.

Interestingly, it’s the president’s own party that’s mostly behind the two bills.  In the Senate, ten members are sponsoring the revisions to the state secrets privilege, most notably Ted Kennedy. Patrick Leahy, and Arlen Specter.  The Senate bill would allow judges to see sensitive material in private so that they are able to determine the potential threat to national security, rather than giving that power to the government.  And it would require the government to furnish redacted versions of sensitive material rather than allowing it to withhold entire documents that might only contain a tiny bit of secret content.

In the House, twenty-three members are co-sponsors, led by New York Democrat Jerrold Nadler.  This version of the bill is similar to the Senate version, once again forcing the government to show its hand—at least to the judge—in order to prove its claim of national security risk.

If you’re a journalist with a good relationship that allows you to discuss legislation with the members of Congress from your district or state, now is the time to do that.  RTNDA, through its ongoing freedom of information efforts, is keeping an eye on this legislation to monitor its progress and any amendments it may pick up.  We’ll report back on any major developments.

The radio show, by the way, lasted just long enough for me to knock back some nasty grass along our picket fence.  The satisfaction of completing the lawn maintenance wasn’t matched by the outcome of the Reynolds case though.  You see, the files on that fatal plane crash in 1948 were declassified in the last few years and the families of the civilian victims—their descendants, really—were finally able to read the report on the crash and see the documents the government said would have put the nation’s security at risk.  It turns out the files talked about problems with that particular plane, pointed to maintenance that wasn’t done properly, and placed blame on the Air Force for not following its own procedures to keep the plane safe.  What it didn’t mention at all was the secret RCA project the three engineers went along to monitor.  No secrets at all.  That was the basis for the State Secrets Privilege.