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When is information a “state secret” and thus completely exempt from disclosure in legal process, even if its exclusion will produce a manifest injustice? In previous episodes, we have gotten an array of different answers. For instance, we learned that when the Government engages in criminal violations of the FISA statute conspiring with telecommunications companies in the process, with the result that the communications of American citizens are subject to unlawful warrantless surveillance—this is a “state secret.” And likewise, when the Government picks up an innocent man, wrongfully confines him and deprives him of access to counsel and due process, then transports him overseas for the purposes of having him tortured—again a series of criminal acts—this is also a “state secret.” And today we get yet a further installment in what the Bush Justice Department considers to be a “state secret.” It appears that when a convicted felon at the heart of what Norm Ornstein and Thomas Mann have labeled the “biggest corruption scandal in American history” pays hundreds of visits to the White House, meeting with the President, the Vice President, and the President’s senior political advisor, and potentially involving them directly or indirectly in his criminal schemes, this, too, is a “state secret” and thus cannot be divulged.
I think we’re detecting a pattern here. “State secrets” it seems has nothing to do with signals intelligence, military planning or armaments—the things traditionally associated with state secrets. No, when the Bush Justice Department uses the term, it means something else: it refers to information which, if disclosed, would be politically embarrassing to the Republican Party, and as to which no other privilege is available. The “state secrets” privilege has literally emerged as the Bush Administration’s new get-out-of-jail-free card.
The Bush administration is laying out a new secrecy defense in an effort to end a court battle about the White House visits of now-imprisoned lobbyist Jack Abramoff. The administration agreed last year to produce all responsive records about the visits “without redactions or claims of exemption,” according to a court order.
But in a court filing Friday night, administration lawyers said that the Secret Service has identified a category of highly sensitive documents that might contain information sought in a lawsuit about Abramoff’s trips to the White House.
The Justice Department, citing a Cold War-era court ruling, declared that the contents of the “Sensitive Security Records” cannot be publicly revealed even though they could show whether Abramoff made more visits to the White House than those already acknowledged. “The simple act of doing so … would reveal sensitive information about the methods used by the Secret Service to carry out its protective function,” the Justice Department argued.
White House responses to inquiries up to this point have furnished specific evidence of intentional evasion–what in other circumstances (as for instance when it is enforcing rather than subverting the law) the Justice Department would call “obstruction of justice.” For instance, Vice President Cheney gave specific guidance to the Secret Service to destroy records of visits to his office and to stop the practice of recording future visits. President Bush made a number of statements refusing to give a specific account of his meetings with Abramoff, which reportedly have been frequent. As Yost notes, the deceitfulness of the Bush responses was quickly revealed:
Abramoff wrote an e-mail to the national editor of Washingtonian magazine saying that Bush had seen him “in almost a dozen settings, and joked with me about a bunch of things, including details of my kids. Perhaps he has forgotten everything, who knows.” Time magazine reported that its reporters had been shown five photographs of Bush and Abramoff. Most of them, the magazine said, had “the formal look of photos taken at presidential receptions.”
But the motherlode relates to Abramoff’s meetings with Karl Rove and Rove staffers, which likely number into the hundreds—and are matched by hundreds, if not thousands of emails and telephone conversations.
The trail of the Abramoff investigation led several times directly into the White House, but Bush Administration Justice Department investigators, headed by Public Integrity head, Noel Hillman, consistently refused to follow any leads. Hillman was rewarded for keeping things on the right track. He’s now a federal judge.
One likely trail led straight to Alabama and the current controversy surrounding the politically motivated prosecution of former Governor Don E. Siegelman. Abramoff and his sidekick Michael Scanlon, a former assistant to current governor Bob Riley, were deeply involved in advising and representing gambling interests in the Southeast. They turned their clients to support Riley in his campaign against Siegelman, and are linked to hundreds of thousands, if not millions of dollars which flowed into the Riley campaign coffers. It seems likely that Rove knew of or perhaps even had some marginal involvement in these funding and campaign efforts, which sit firmly in the background of the efforts to remove Siegelman from the political process through a corrupt prosecution.
One of Aristotle’s key tests in the definition of forms of government is recited in the Politics: What do you call a state whose ruler, in his conduct of the affairs of state, is enshrouded in secrecy, particularly when the facts, if disclosed, would alert the people to his lawlessness or criminality, but conversely, the same ruler spies constantly upon his people giving them no repose in the conduct of their own personal affairs? Such a ruler, says Aristotle, is called a tyrant, and the quality of his rule is called tyranny. So let’s be clear what the Bush Justice Department is busily constructing. The standards for a democracy are something altogether different.
More from Scott Horton:
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”