My appearance in 1996Wayne Stegall

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 Energy website.2

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.

CONFIDENTIAL: Documents, 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 added].

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 articles.
2DOE Openness, the ACHRE Report, Chapter 13: “The Practice of Secrecy,”, archived document.