Ruling Against Bush Wiretaps Also Slaps Down Obama's Executive Overreach

The state secrets privilege comes into play when the government asserts to a judge that letting a particular case go forward would inevitably result in the disclosure of information that would compromise national security.

But the privilege, which was established by a 1953 Supreme Court case, is premised on a lie -- literally. That 1953 case involved the widows of three civilian engineers who died in a military airplane crash and sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence.

Since then, the way the state secrets privilege has typically worked is that when the government refuses to publicly disclose a specific item of information, it explains why to the judge.

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