Copyright © 2009
November 29, 2009
The Practice of Secrecy
That state secrets privilege has been abused to
commit a crime and facilitate its coverup,1
would naturally be answered
by those in power that National Security secrets are necessary in any
age for the survival of any nation. No reasonable person would
disagree in the context of its careful and proper use. In our
country, state secrets are not regulated by legislation, but arise from
judicial decisions that form case law. Originally, these
decisions were based on the judicial precedents borrowed from
British law concerning the same subject.
Does our goverment use this privilege properly as they
say? Not according to documents that I found on a Department of
These documents say:
In April 1947 that hope was partly fulfilled when
Colonel O. G. Haywood of the Corps of Engineers wrote to H. A.
Fidler, an AEC information officer, that "it is desired that no
document be released which refers to experiments with humans and
might have adverse effects on public opinion or result in legal
suits. Documents covering such work should be classified as secret
The concept of a confidential
document was redefined to correspond to this end.
On August 9, 1947, John Derry an acting general manager within the
DOE proposed this redefinition.
information or material, the unauthorized disclosure of which, while
not endangering the National security, would
be prejudicial to the interests or prestige of the Nation or any
Governmental activity, or individual, or would cause administrative
embarrassment, or be of advantage to a foreign nation shall be
classified CONFIDENTIAL [emphasis added].
After John Derry submitted the above redefinition to a board for
approval, they suggested expanding it as follows:
All documents and correspondence relating to matters of
policy planning and procedures, the given
knowledge of which might compromise or cause embarrassment to the
Atomic Energy Commission and/or its contractors [emphasis
Although it is not known whether they accepted this policy, due to lack
of documentation, their willingness to improve it implies their
acceptance of it as an unoffical policy at least and perhaps their
acceptance of it as well. The DOE document enumerates many ways
in which state secrets privilege was actually used to maintain
prestige, to avoid government or agency embarrassment, and to evade
litigation by persons or groups harmed by government activities.
The above citations prove that at least some agencies and perhaps the
government at large used, and may still use, state secrets privilege
for any convenient
purpose. In this light, it is unfortunate for our democracy that
state secrets are alleged to trump all other legal interests.
1Browse the remainder of my website
to verify this truth. home, political
Openness, the ACHRE Report, Chapter 13: “The Practice of Secrecy,” www.hss.energy.gov, archived