Hiding in Public

Truman to Nixon, Bush to Obama – how the US has rationalized the ‘need’ for state secrecy

by James Robinson

“People will say, ‘I don’t know – you’ve got your Justice Department out there that’s still using the state-secrets doctrine against some of these previous actions.’ Well I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the fields, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger…” President Barack Obama to Rolling Stone, October 14, 2010

The explosion of a B-29 bomber over Wayland, Georgia in 1948 killed three Air Force sub-contractors. Sixty-two years later, it is not the lives lost that is the source of consternation, but the judicial precedent created when the three widows sought damages in a federal court for the lives lost. The government refused to hand over accident reports from the crash, claiming that information on the nature of the plane (and the technology it carried) would threaten the national security of the United States of America. The Supreme Court eventually upheld the Government’s assertion in U.S. v Reynolds[1] , and thus, the first judicial recognition of the state secrets privilege was made. The privilege was not a block to litigation, serving only to “deprive the plaintiff of certain evidence as though a witness had died before trial.” [2]

The six-to-three Supreme Court ruling in U.S. v Reynolds, handed down by Chief Justice Fred Vinson, put down a basic framework for the assertion of the state secrets privilege. [3] Namely, the privilege belongs to the government and must be properly invoked by the head of an executive department after personal consideration, the court must determine whether the claim of privilege is appropriate, with the form of this enquiry balancing the need for information against the sensitivity of information, using in-camera review where suitable.[4]Justices Black, Frankfurter and Jackson were in dissent. They believed that if the United States were to employ the state secrets privilege there should be a price, and the government should automatically lose the case. [5]

U.S. v Reynolds, and future suits of its ilk, was made actionable by the U.S. Federal Tort Claims Act of 1946, which allowed cases against the United States Government to be heard in court, and directed “federal courts to treat the government in the same manner as a private individual.” [6] This legislation’s intent was to free Congress itself from having to process individual complaints of damage. [7] Reynolds’ most cited judicial antecedents are U.S. v Burr, a case involving the third vice president’s attempted discovery of sensitive evidence while on trial for treason, and U.S. v Totten, a dispute over whether a Civil War-era secret spy contract was justiciable. There has been some dispute as to how relevant the core issues of these cases are to the eventual doctrine, with some believing they addressed issues “far afield” [8] from the privilege outlined in U.S. v Reynolds.

Regardless, there is consensus around Reynolds’ central tenet that “the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” [9] This ruling under Reynolds is not contentious. It accepts an undisputed need for a government to maintain aspects of its affairs in secret, particularly those surrounding national security and the military: “even simple lawsuits against the government… sometimes involve issues that would be genuinely harmful to national security if they saw the light of day.” [10]

A sharp rise in use of the privilege by the Bush administration after 9/11 and its continued invocation by the current Obama administration, has bought Reynolds back into strong debate, with the state secrets privilege now often claimed on the basis of subject matter alone. [11] But its application in the 21st century, where evidence is most often not examined by the judiciary before the privilege is exerted, has been dogged by claims that it now subsumes the rights of litigants into the wider needs of government with little transparency. Many believe the current judiciary is guilty of overly trusting acceptances of executive assertions. [12]

The recent discovery that the use of privilege in the Reynolds case was not protecting state secrets, but clear negligence on the behalf of the United States Air Force has also been unsettling. This revelation means that the judicial precedent, the case the privilege is based on, is an example, in itself, of what governments have constantly sworn the privilege will never be used for.

“The privilege turned out to be conceived in sin: the now-declassified report contains no secrets. Instead, it recounts how the engine failure that led to the crash might have been avoided.” [13]

Nixon and the boundaries of privilege

Aristotle believed that, like a physician, leaders should be able to deviate from the law in a true emergency. [14] Much of the controversy since 9/11 around the state secrets privilege has been due to the nature of the cases involved, with lawsuits bought against the United States government relating to programs of extraordinary rendition and wiretapping. These programs have been both legally, and constitutionally, disputed.

In 1974, a unanimous Supreme Court ruling in U.S. v Nixon ordered President Nixon to surrender evidence to the Watergate investigation, leading directly to his resignation the following day. The court ruled that there is not “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” [15] The ruling in U.S. v Nixon that the president’s withholding of information from the courts was hard to justify “absent a claim of need to protect military, diplomatic, or sensitive national security secrets,” [16] is the key difference in precedent in considering the actions of the Bush and Obama administrations.

It is important to consider the legality of the actions of the Bush and Obama administrations. News in 2005 of broad surveillance that broke the constitutional protection “against unreasonable searches,” [17] did not excite wide resentment, with polling indicating that many saw it as a justifiable action to guarantee national security. [18] But is there a danger in thinking: “that having nothing to hide means having nothing to protect?” [19].

Even the most justifiable abridgement of daily freedom carries with it large risk. In comparison to the news of the surveillance program, revelations of rendition and torture received a much more instinctively negative response. Torture is justified (by its advocates) on utilitarian principles, that information gained can save lives and outweighs the resulting harm. [20] But at the same time, torture “grossly offends the bedrock principle that every human being is a locus of inestimable value.” [21]

Dispute exists around the limits to privilege that comes from the President’s role being solely responsible for America’s foreign affairs, and the certain freedoms that the circumstances of the ‘War on Terror’ have provided. Even taken on face value, there is no exception for torture. Torture violates the Geneva Convention and the Constitution: [22] “The argument for unchecked presidential power based on changed conditions should be viewed with skepticism.” [23]

The Bush executive did not defer to Congress for an expansion of its powers (which raised consternation) acting unilaterally and against traditions of checks and balances within government. President Abraham Lincoln “recognized that the superior lawmaking body was Congress, not the President.” [24] Where the actions of the President go beyond the law, Congress has been historically very compliant. [26] But the debate still remains, around the rule of law and adherence to process as it applies to the executive. President Thomas Jefferson said that: “to lose our country by a scurrilous adherence to written law, would be to lose the law itself.” [27]
The flexibilities with the rule of law the president is afforded in times of crisis will be a constant source of debate, but with the state secrets privilege, the question comes up of how suitable it is that this is a conversation that the executive has started to have only with itself.

Secret Government : The Bush Years

Between 1953 and 2001, the state secrets privilege was claimed at a rate of just over once a year. [28] Prior to 2001, the state secrets privilege was not widely controversial, with some complaining only of the slightly amorphous wording of Reynolds. [29] Prior to September 11, the privilege had been rejected just four times, with courts choosing to review evidence in only one out of three cases. [30] The attacks on the World Trade Centre in New York on September 11, 2001 took place “against this backdrop of slightly esoteric judicial precedent.” [31]

The events of 9/11 proved to have a transformative effect on use of the privilege; the Bush administration invoked the state secrets privilege 23 times in its first four years in office. [32] This would spur considerable controversy. Depending on who was talking, it was either a necessary protection of national security, or a gross violation of the rule of law by the Bush administration, in the service of a dangerous domestic and foreign agenda. The events of 9/11, wars in Afghanistan and Iraq, as well as the shifting, nebulous War on Terror created a sense of constant crisis, being fought on a “borderless battlefield.” [33] Following 9/11, “the Bush administration found its counter-terrorism efforts hamstrung” [34] by the time required to obtain a warrant for surveillance, eventually leading to a new wire-tapping policy. Simultaneously, unpopular new policies of rendition were being developed, that would see President Bush accused of acting “unilaterally and in secret.” [35] Challenges to these two areas of policy resulted in most of the state secrets cases under the Bush administration.

The Bush administration was the first administration to find regular shelter in the state secrets privilege. They also modified the conventions and boundaries of the privilege in three significant ways: state secrets was able to be invoked on the basis of subject matter alone in certain cases, the privilege was used as a block to entire cases rather than select evidence, and state secrets was claimed in cases where information was easily available in the public sphere. Again, the administration found itself in contested territory. Criticism focused on the Bush administration supposedly co-opting the state secrets privilege to fit any case. “Judgment according to personal preference is the essence of the tyrant’s power. That law is universal and generally insensitive to private wishes is usually one of its greatest virtues.” [36]

Two key cases from the Bush-era exemplify these changes. Khaled El-Masri, a German national, filed suit against the CIA in 2006 after he was mistakenly subjected to detainment, rendition and alleged torture in a prison in Afghanistan for a number of months in 2004. The Bush administration intervened, invoking the state secrets privilege. El-Masri considered the state secrets privilege to be irrelevant, because CIA rendition had been discussed in the media, [37] and was the subject of several concurrent investigations at the time. [38] The case was dismissed in its entirety, the Justice Department arguing that even speculation to interrogation techniques was harmful to national security. The Sixth Circuit overturned a lower court ruling, writing that given the “admission or disclosure of even the existence of a secret, then the case is non-justiciable and must be dismissed on the pleadings.” [39] The case of Maher Arar, followed a nearly identical path as Khaled El-Masri’s in the court.

In Hepting v AT&T Corporation the government intervened in a lawsuit filed against AT&T for its role in the contentious surveillance program, and here the courts further enunciated the principles of the El-Masri case. In applying the state secrets privilege, the court ruled that government verification of even a previous leaked program was protected (the story had been breaking news in the New York Times) and that media coverage of a program did not stop it from being a secret, and the case could still be dismissed on subject alone. [40]

Obama : The Curse of High Expectations

Barack Obama campaigned for president in 2008 on promises of an unprecedented level of transparency, promising both stricter adherence to the rule of law[41] and a reform of the state secrets privilege. [42] There have been some improvements, and changes, with some more tangible than others. But, the Obama administration, invoked the state secrets privilege at the earliest possible opportunity, to the apparent consternation of the justices hearing the case. There were three state secrets cases inside his first month in office. [43] There was a clear disconnect between the campaign and the actions of the administration: “rhetoric is the variable in the equation; the imperatives of power are the constraints.” [44] Obama remained critical of the state secrets privilege, referring to it as a “broad and over-blunt instrument,” [45] but there were no changes forthcoming. There was a clear roll over in policy between the Bush and Obama administrations.

Obama found his administration sued, and defending itself, on identical grounds to Bush. [46] His consistency in policy saw him win praise from Bush’s former CIA and NSA director, “Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action.” [47] As with the Bush administration, the use of the privilege remained unpopular with a new president: “it is hard to fathom what signal Mr. Obama is trying to send by stifling cases that must be heard.” [48] Broadly, the Obama administration has protected or continued the most unpopular of the Bush administration’s practices, while maintaining a sense of continuous wartime. [49]

Growing concern over a lack of conditions and process around the application of the state secrets privilege led to the outlining of new procedures to be followed while invoking the privilege by Attorney General Eric Holder in September 2009. This was “to strengthen public confidence” [50] in the judiciary and make sure the privilege is not “used to cover up illegal or embarrassing actions.” [51] Holder’s recommendations put in place a clear process within the justice department: claims of state secrets are sent to committee and forwarded on to the attorney general for final approval. These new regulations have had no impact: they do not carry the weight of law, [52] and place no independent process of review on assertions of the privilege. As Senator Russ Feingold stated, it “still amounts to an approach of ‘just trust us.’” [53] After the new regulations, use of the privilege has not slowed. The Obama administration has used it since September 2009, to halt cases relating to Bush administration policies, and its own in the case of litigation over a dispute of the United States Government’s right to order the killing of American citizen and terrorist, Anwar Al-Aulaqi. [54] The Obama administration has chosen to treat the privilege as unavoidable, at the same time as denouncing its misuse. Holder announced a new claim of state secrets on the exact same day he introduced the new regulations to reassure Americans. [55]

Frustration with the lack of oversight has led to calls for legislative reform of the privilege, to “make it harder for any administration to dodge exposure of illegal or embarrassing behavior by brandishing specious state-secrets claims.” [56] In 2008, citing “the same government tendency toward self-serving secrecy” [57] seen in the Nixon administration, Democratic Senators Patrick Leahy and (the now late) Edward Kennedy developed the State Secrets Protection Act at committee. Any legislative interference in the privilege was opposed by the Bush administration, and since introducing the bill to the House of Representatives in February, 2009 it has not made progress.

It is perhaps for this lack of progress, that frustration around the Obama administration’s application of the privilege, and the privilege itself, is high. One journalist asked the question: have the policies of the last nine years have now become the “new normal?” [58] The dismissal of entire cases on the grounds of subject alone has been widely derided, referred to as a “sweeping characterization…with no logical limit.” [59]

As entire cases are dismissed, for litigants “it means that the courthouse doors are closed, forever, regardless of the severity of their injury.” [60] Contrary to expectation, under Obama the doors of the courthouse do not appear to be any closer to opening.

The media and state secrets: last man standing?

From here, it is worth considering the media. The informal fourth estate, it remains an arena of if not justice, free information. The media has withstood most restrictions to freedom of speech, and has had no handbrake even remotely similar to U.S. v Reynolds placed on it. With this considered, it remains a viable but non-judicial prosecutor of government wrongdoing. Justice Black wrote in the ruling in the landmark prior restraint case New York Times Co. v United States: “only a free and unrestrained press can effectively expose deception in government.” [61] With government invoking state secrets with such frequency now, and in cases where the media has released the information, could that sentence now be written to indicate that only a free and unrestrained media has the ability to effectively expose deception in government?

The admissibility of certain evidence against the wider demands of ‘national security’ has not held up. It places the needs of one person, against impossibly broad demands: “How could one individual’s ’private’ interests ever outweigh the claimed interest of the entire government or the nation?” [62] The media has prevailed where the individual litigant has not. The same language used to explain the state secrets privilege, was rejected in New York Times Co. v United States. Lawyers successfully attacked against phrases such as “relating to the national defense,” [63] and to the “injury of the United States.” [64]

Troublingly for the media, the Obama administration has combined a continuation of state secrets policy with an unforeseen cracking down on the leaks of information. For example: in December 2009 an FBI contractor was sentenced to 20 months in jail after pleading guilty to leaking information to a blogger, in April 2010 a National Security Agency employee was charged for passing secrets to the Baltimore Sun, in August 2010 another contractor was charged for leaking information about North Korea to Fox News. [65] In just 21 months in office, President Obama has launched more prosecutions against ‘whistleblowers’ than all previous administrations combined. [66] Again, Obama has attracted both support and derision for this action.

The restrictions of the state secrets privilege are outside the domain of the media, but they heighten the stakes for journalists, making a thorough exploration and prosecution of the facts more essential. Consider the recent WikiLeak release of nearly 400,000 documents from the Iraq War, documenting closely, among other things, that the American troops were ignoring Iraqi armed forces abuse of detainees. [67] It is a fair assumption that any resulting litigation from these documents from the frontline in Iraq would result in the deployment of the state secrets privilege as protection. The military employee suspected of leaking the large amount of documents has been arrested. [68] So there was considerable alarm in some circles when a story of broad public interest did not generate the column-inches that might have been expected. John Parker, a former military reporter, wrote a letter of protest labeling the lack of coverage of the WikiLeaks “disturbing, but not historically out of the ordinary for major American media” [69] and pointing to the “seductive allure of the sharp, amazingly focused demeanor of highly trained military minds” [70] in blunting media coverage.

It would be possible to come down convincingly on either side of this issue. Maybe to some the story of abuses in Iraq wasn’t worthy of extended coverage, or there was just too much information to make sense of. But the point remains, where national security information is involved in any way, the media has become the only opportunity for a fair airing of grievances.

What is the most desirable stance for the courts to adopt? The great liberal Supreme Court Justice William J. Brennan put it this way back in 1980 : “The concept of military necessity is seductively broad and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security ‘necessities’ to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism.” [71] To Brennan. the tension between freedom of information and national security will never fully abate. It exists today, under the Obama presidency. Given the extent of military power, strong and transparent judicial examination of the context and consequences of the military’s actions is, therefore, always in society’s best interest.

ENDS

***Footnotes***

[1]

Page 64, Crook, Jason A. “From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege,” Albany Law Review, Winter 2009

[2]

Page 106, Fisher, Louis, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, University of Kansas Press, Kansas, 2006

[3]

Page 64, Crook, Jason A. “From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege,” Albany Law Review, Winter 2009

[4]

Page 106, Fisher, Louis, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, University of Kansas Press, Kansas, 2006

[5]

United States v Reynolds et al. No. 21, Supreme Court of the United States, 345 U.S. 1

[6]

Page 677, Tien, Lee, “Litigating the State Secrets Privilege,” Case Western Reserve Journal of International Law, Winter 2010

[7]

Fisher, Louis, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, University of Kansas Press, Kansas, 2006

[8]

Page 387, Fisher, Louis, “The State Secrets Privilege: Relying on Reynolds,” Political Science Quarterly, Volume 122, Number 3, 2007

[9]

Page 14, Fisher, Louis, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, University of Kansas Press, Kansas, 2006

[10]

Page 222, ibid

[11]

United States v Reynolds et al. Supreme Court of the United States, 345 U.S. 1 (1953)

[12]

Lanman, Henry, “Secret Guarding: The new secrecy doctrine, so secret you don’t even know about it,” Slate, May 22, 2006, http://www.slate.com/id/2142155/

[13]

Page 677, Tien, Lee, “Litigating the State Secrets Privilege,” Case Western Reserve Journal of International Law, Winter 2010

[14]

Page 253, The Constitution and 9/11: Recurring threats to America’s Freedoms, Fisher, Louis, University of Kansas Press, Kansas, 2008

[15]

“Shady Secrets,” Editorial: Washington Post, September 30, 2010

[16]

Page 134, Fried, Gregory and Fried, Charles, Because it is Wrong: Torture, Privacy and Presidential Power, WW Norton & Co. New York, 2010

[17]

United States v. Nixon, Supreme Court of the United States U.S. 418 683 (1974)

[18]

ibid

[19]

Fourth Amendment, U.S. Constitution

[20]

Page IX, Breyer, Charles ‘Introduction,’ Watergate Prosecutor, Merrill, William H. – Michigan State University Press, East Lansing, Michigan, 2008

[21]

Page IX, ibid

[22]

Page 39, Sandel, Michael J., Justice: What’s the Right Thing to do, Farar Straus and Giroux, New York, 2010

[23]

Page 55, Fried, Gregory and Fried, Charles, Because it is Wrong: Torture, Privacy and Presidential Power, WW Norton & Co. New York, 2010

[24]

Horton, Scott, “Justice After Bush: Prosecuting an Outlaw Administration,” Harpers, December, 2008

[25]

Page 49, Goodwin, Liu, Kalra, Pamela S, Schroeder, Christopher H. Keeping Faith With the Constitution, Oxford University Press, New York, 2010

[26]

Fisher, Louis, “Restoring the Rule of Law: Statement by Louis Fisher before the Subcommittee on the Constitution, Senate Committee on the Judiciary, September 16, 2008”

[27]

Page 49, Goodwin, Liu, Kalra, Pamela S, Schroeder, Christopher H. Keeping Faith With the Constitution, Oxford University Press, New York, 2010

[28]

Page 133, Fried, Gregory and Fried, Charles, Because it is Wrong: Torture, Privacy and Presidential Power, WW Norton & Co. New York, 2010

[29]

Lanman, Henry, “Secret Guarding: The new secrecy doctrine, so secret you don’t even know about it,” Slate, May 22, 2006, http://www.slate.com/id/2142155/

[30]

Fisher, Louis, “Restoring the Rule of Law: Statement by Louis Fisher before the Subcommittee on the Constitution, Senate Committee on the Judiciary, September 16, 2008”

[31]

Lanman, Henry, “Secret Guarding: The new secrecy doctrine, so secret you don’t even know about it,” Slate, May 22, 2006, http://www.slate.com/id/2142155/

[32]

Page 79, Crook, Jason A. “From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege,” Albany Law Review, Winter 2009

[33]

Lanman, Henry, “Secret Guarding: The new secrecy doctrine, so secret you don’t even know about it,” Slate, May 22, 2006, http://www.slate.com/id/2142155/

[34]

Hsu, Spencer, “U.S. officials defend state secrets claim in Aulaqi suit,” Washington Post, September 26, 2010

[35]

Page 37-38, Necessary Secrets: National Security, The Media and the Rule of Law, Schoenfeld, Gabriel, W.W. Norton and Company, New York, 2010

[36]

“An Incomplete State Secrets Fix,” Editorial, The New York Times, September 29, 2009

[37]

Page 129, Fried, Gregory and Fried, Charles, Because it is Wrong: Torture, Privacy and Presidential Power, WW Norton & Co. New York, 2010

[38]

Page 79, Crook, Jason A. “From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege,” Albany Law Review, Winter 2009

[39]

El-Masri v Tenet, http://www.aclu.org/national-security/el-masri-v-tenet

[40]

Page 307, The Constitution and 9/11: Recurring threats to America’s Freedoms, Fisher, Louis, University of Kansas Press, Kansas, 2008

[41]

Page 302-303, The Constitution and 9/11: Recurring threats to America’s Freedoms, Fisher, Louis, University of Kansas Press, Kansas, 2008

[42]

Page 116, Ali, Tariq, The Obama Syndrome, Verso, Brooklyn, NY, 2010

[43]

Schwartz, John, “Obama Backs Off A Reversal On Secrets,” The New York Times, February 10, 2009

[44]

Associated Press, “Some cases where Obama’s policies are like Bush’s,” February 29, 2010

[45]

Page 25, Necessary Secrets: National Security, The Media and the Rule of Law, Schoenfeld, Gabriel, W.W. Norton and Company, New York, 2010

[46]

Gude, Ken, “Obama’s cloak and dagger work,” The Guardian, October 1, 2010

[47]

Greenwald, Glenn, “Sullivan’s defense of presidential assassinations,” Salon, October 2, 2010, http://www.salon.com/news/opinion/glenn_greenwald/2010/10/02/assassinations/index.html

[48]

Greenwald, Glenn, “Professional Leftist Michael Hayden praises Obama’s ‘continuity,’” Salon, October 11, 2010, http://www.salon.com/news/opinion/glenn_greenwald/2010/10/11/continuity/index.html

[49]

“Mr. Obama and the Rule of Law,” Editorial, The New York Times, March 22, 2009

[50]

Summarized from selected passages in: Ali, Tariq, The Obama Syndrome, Verso, Brooklyn, NY, 2010

[51]

“Shady Secrets,” Editorial: Washington Post, September 30, 2010

[52]

ibid

[53]

“Progress on State Secrets; A Justice Department initiative goes a long way toward fixing a flawed process. Congress should now finish the job.” Editorial: Washington Post, September 25, 2009

[54]

“An Incomplete State Secrets Fix,” Editorial, The New York Times, September 29, 2009

[55]

American Civil Liberties Union, “National Security, Civil Liberties, and Human Rights Under the Obama Administration: An 18 Month Review,” July, 2010, New York

[56]

ibid

[57]

“A Crack in the Wall of Secrecy,” Editorial, The New York Times, April 26, 2009

[58]

Statement of Senator Patrick Leahy, Chairman, Senate Judiciary Committee
On “Examining the States Secrets Privilege: Protecting National Security While Preserving Accountability,” February 13, 2008, http://judiciary.senate.gov/hearings/testimony.cfm?id=3091&wit_id=2629

[59]

Devereaux, Ryan, “Is Obama’s Use of State Secrets Privilege the New Normal?” The Nation, September, 29, 2010, http://www.thenation.com/article/155080/obamas-use-state-secrets-privilege-new-normal

[60]

Page 677, Tien, Lee, “Litigating the State Secrets Privilege,” Case Western Reserve Journal of International Law, Winter 2010

[61]

Statement of Senator Patrick Leahy, Chairman, Senate Judiciary Committee
On “Examining the States Secrets Privilege: Protecting National Security While Preserving Accountability,” February 13, 2008, http://judiciary.senate.gov/hearings/testimony.cfm?id=3091&wit_id=2629

[62]

Page 66, Watergate Prosecutor, Merrill, William H. – Michigan State University Press, East Lansing, Michigan, 2008

[63]

Page 353, The Constitution and 9/11: Recurring threats to America’s Freedoms, Fisher, Louis, University of Kansas Press, Kansas, 2008

[64]

New York Times Co. v United States, Supreme Court of the United States, 403 U.S. 713

[65]

ibid

[66]

Schoenfeld, Gabriel, “Barack Obama: Defender of State Secrets,” Wall Street Journal, September, 29, 2010, http://online.wsj.com/article/SB10001424052748703882404575519671706217584.html

[67]

ibid

[68]

Cloud, David S. and Parker, Ned “WikiLeaks documents indicate U.S. forces failed to stop prisoner abuse by Iraqis,” Los Angeles Times, October 23, 2010

[69]

Schoenfeld, Gabriel, “Barack Obama: Defender of State Secrets,” Wall Street Journal, September, 29, 2010, http://online.wsj.com/article/SB10001424052748703882404575519671706217584.html

[70]

Parker, John, “Lack of WikiLeaks coverage disturbing, not surprising” http://www.poynter.org/column.asp?id=45&aid=193376

[71]

ibid

ENDS

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