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The State Secrets (Public Corruption) Exception


There are four separate cases out there that I have been tracking where the Bush Administration appears to be evolving a truly novel version of the state secrets exception. In each of these cases, a state secrets defense is being interposed for the purpose of blocking the disclosure of claims of gross corruption surrounding public contracts. Why are these matters state secrets? That indeed is the riddle. The Government says they can’t tell us. Apparently if they told us, they’d have to kill us to prevent further exposure of the state secrets.

One of these cases emerges in the pages of yesterday’s Reno Gazette-Journal:

In a ruling that could make it difficult for former eTreppid software designer Dennis Montgomery to argue his lawsuit against the company, a federal judge Wednesday granted a Department of Defense request for a protective order to ensure no material involving national security is released. All sides in the lawsuit involving eTreppid Technologies, the Reno company Gov. Jim Gibbons is accused of helping obtain defense contracts in exchange for gifts and trips, are prohibited from sharing certain information that is subject to the state secrets privilege, U.S. District Judge Philip Pro said in his order.

The information also cannot be used as evidence at trial, Pro said. Disclosure of certain materials “could be expected to cause serious, and (in) some cases exceptionally grave damage to national security,” he said. Pro made a number of exceptions. He said the two sides can discuss the “Big Safari” contract between eTreppid and the Air Force, “including but not limited to the fact that the Big Safari contract required eTreppid to perform data analysis,” and involved “image identification technology.”

They also can acknowledge that the people involved in the contract had to sign secrecy agreements with the defense department, and that the technology might have commercial or government applications.

This all makes perfect sense to me. Of course when the deals were done, there were no concerns about secrecy, and the Defense Department didn’t ask anybody to commit to keep anything secret. But that was before they understood that Nevada’s former Republican Congressman and current Governor, Jim Gibbons, was going to get his teeth caught in a corruption ringer. Now the objective of law enforcement machinery in the Gonzales Justice Department, of course, is not to pursue public integrity cases if they involve Republicans. Cases are pursued only if they involve Democrats. Indeed, they’re not just pursued, they’re fabricated. When Republicans are involved, we need to find a way to shield them from all suspicion and inquiry, especially by pesky people like journalists. What could possibly work better than declaring that everything is radioactive and has to be sealed off?

The beauty of it is that you just make this stuff up whenever it suits you, and you insist that no court has the power to second-guess what you’re doing.

Of course, the real state secret that is being protected is that the Bush Administration is corrupt to its innermost core. And the fact that it’s common knowledge doesn’t stop it from being a state secret. Moreover, if you find it out–they may still have to kill you.

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