Book Report: Claim of Privilege

I took an undergraduate class on the Federal Courts. For half of the class, we discussed the professor's book. The other half we discussed some of the more recent and important Supreme Court decisions. What I remember most about the class was the discussion of precedent. The professor was constantly, although a little too patiently, reminding us that the facts of the case were not as important as the precedent. For example, in Atwater v. Lago Vista, it is not important whether the mother was just driving in the neighborhood looking for her child's toy. What matters is whether the police do (or should) have the right to arrest (detain) someone for a crime that is only punishable by a fine.

So it should also be case when reading Claim of Privilege and the case of US v. Reynolds. In that case, the Supreme Court upheld the right of the executive branch to declare state secrets and not have to reveal sensitive information. In fact, the judge does not even have the right to review the evidence to see if it is in fact a sensitive state secret.

Where I disagree slightly with, or at least have a new understanding of, what we were taught in that undergraduate class is that the facts of a case can shed some light on the impact of a particular decision (as Citizens United shows us, the Supreme Court has some latitude in making a decision). In the Reynolds case, the executive branch claimed state secrets, but it seems clear that they were merely trying to avoid culpability in the lawsuit. When the executive branch is able to claim state secrets without showing any of their evidence, even to a judge, it allows them to abuse it and avoids the checks and balances that is a hallmark of our government.

Since Reynolds has been used as precedent for Bush era actions, we can only imagine how the executive branch can, or did, abuse the power that precedent grants. Although as Citizens United shows us, precedents can be overturned, I am not optimistic that this one will anytime soon.