Secrecy, the Republic and the Supreme Court

Adam Liptak’s article in the New York Times, "Obama Administration Weighs in on State Secrets, Raising Concern on the Left," (August 4, 2009), revealed the Obama administration's recent Supreme Court filing last year in which it defended the State Secrets privilege – which, like the Bush administration, it has regularly invoked - in cases of "National Security," arguing that such a privilege is rooted in the Constitution.

According to the Obama administration's brief, the decision which cited the Constitution as a basis for the state secrets privilege was one where the US government successfully dismissed a lawsuit from Khaled el-Masi, a German citizen who claimed to have been kidnapped and tortured by the CIA, claims later substantiated in a report from the Council of Europe's Committee on Legal Affairs and Human Rights in June 2006. The filing was done under the leadership of Obama's Solicitor General, Elena Kagan, most recently of course nominated to replace Justice Stevens, as a Supreme Court Justice. In the filing, despite the outcry over the use of the state secrets act in the past to cover up US practices of torture, the Obama Justice Department officials argued that there was no need for concern.

Coming in the aftermath of one of the most secretive administrations in US history, which knowingly misled Congress and the public so as to garner support for the US invasion of Iraq - as when Bush Administration officials falsely claimed that there was unanimity in the intelligence community that Iraq was reconstituting its nuclear program - the claims of the Obama administration are both extraordinary and dangerous. They threaten one of the most precious aspects of the US Constitution and the Bill of Rights, most especially the free speech, public disclosure and transparency protected under the First Amendment.

Though it's virtually unknown, unlike England and many other states, the US does not have an Official Secrets Act. This fact, along with our unique first amendment, is one of the great strengths and hopes of our democracy. Official secrecy and lies have long imperiled the democratic foundations of republics. Moreover, secrecy has long threatened peace and human rights internationally, as the Pentagon Papers so clearly revealed.

As for the notion of the Obama Justice Department that there is no need for concern; quite the contrary is true. As one of the twentieth centuries leading democratic theorists, the Italian liberal socialist Norberto Bobbio, never tired of pointing out, the "hidden powers" of states is one of the most dangerous threats to peace and democracy. In this regard, Bobbio was fond of quoting a little known but important section of Immanuel Kant's "Toward Perpetual Peace: A Philosophical Sketch," (Yale University Press, 2006: 105-106), which bears careful rereading today, in light of the actions of the Bush and Obama administrations. In a section (8: 381) II: "On The Agreement Between Politics; Morality According To The Transcendental Concept of Public Right," Kant argued:

"[a]ny legal claim must be capable of publicity...one can cite the following proposition as the transcendental formula of public right: All actions that affect the rights of other human beings, the maxims of which are incompatible with publicity, are unjust."

This principle is to be understood as being not only ethical (as belonging to the doctrine of virtue), but also juridical (as concerning the rights of humans). If I may not utter my maxim explicitly without thereby thwarting my own aim, if it must rather be kept secret if it is to succeed, if I cannot admit it publicly without thereby inevitably provoking the resistance of all others to my plan, then the necessary and universal and hence a priori understandable opposition to me can be due to nothing other than the injustice with which my maxim threatens everyone."

As we face the challenges of the twenty-first century, perhaps it is time to reconsider the wisdom of two of philosophy and political science's most eloquent spokespersons and to act on those insights. Moreover, we must aggressively question and challenge the Solicitor General and presumptive Supreme Court nominee in regards to her filing on the State Secrets Act and argument that this privilege is rooted in the Constitution, not to mention express outrage that Kagan used a case of a German citizen kidnapped and tortured by the CIA to defend this most unconstitutional and dangerous of Executive powers.