The weaklings at work
Today's New York Times informs us in an editorial that Congress is planning to pass legislation restricting the government's use of the "State Secrets Privilege."
The proposed legislation would require the courts to examine the government's basis for asserting the claim before accepting the government's assertion of the privilege.
Maybe I'm missing something, but it's my understanding that the so-called "privilege" did not originate in legislation but in some combination of common law tradition and constitutional interpretation. Here's Wikipedia on the subject:
If that's the case, the privilege must somehow be considered implicit, if not explicit, in the Constitution. Hence, any legislation to restrict it (short of a Constitutional amendment) could be challenged as unconstitutional (probably successfully) by Bush or subsequent administrations.
So here we have a Congress pretending to protect our civil liberties by passing legislation that it may know to be unconstitutional while caving to the Bush administration on FISA and telecom immunity. One more case of the weaklings failing to do their job.
You lawyers out there -- am I missing something?
The State Secrets Privilege is an evidentiary rule - e.g., doctor-patient, lawyer-client or priest-penitent privilege - created by United States legal precedent. The court is asked to exclude evidence from a legal case based solely on an affidavit submitted by the government stating court proceedings might disclose sensitive information which might endanger national security.[1][2][3][4][5][6]
The proposed legislation would require the courts to examine the government's basis for asserting the claim before accepting the government's assertion of the privilege.
Maybe I'm missing something, but it's my understanding that the so-called "privilege" did not originate in legislation but in some combination of common law tradition and constitutional interpretation. Here's Wikipedia on the subject:
The doctrine was effectively imported from British law which has a similar privilege.[1][2] It is debatable whether the State Secrets Privilege is based upon the President’s powers as Commander-in-Chief and leader of foreign affairs (as suggested in United States v. Nixon) or derived from the idea of separation of powers (as suggested in United States v. Reynolds)[1] It seems that the US privilege “has its initial roots in Aaron Burr’s trial for treason.” In this case, it was alleged that a letter from General Wilkinson to President Thomas Jefferson might contain state secrets and could therefore not be divulged without risk to national security.[1]
If that's the case, the privilege must somehow be considered implicit, if not explicit, in the Constitution. Hence, any legislation to restrict it (short of a Constitutional amendment) could be challenged as unconstitutional (probably successfully) by Bush or subsequent administrations.
So here we have a Congress pretending to protect our civil liberties by passing legislation that it may know to be unconstitutional while caving to the Bush administration on FISA and telecom immunity. One more case of the weaklings failing to do their job.
You lawyers out there -- am I missing something?
posted by walldon | 9:01 AM
1 Comments:
It's a question that begs for a good bit of research and thinking, but my first thought is that Congress has the power to establish reasonable regulation of even Constitutional rights -- like time, place and manner retrictions on marches, etc. The principle would remain in place, but would only be reconciled with the due prcess principle. I think the so-called Commander-in-Chief power as an independent source of Executive authority is pure B.S. It's the power to command the army and navy, period.
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