The End of Constitutional Democracy

As if it isn't enough that the Justice Department is trying to shut down investigations and lawsuits into their own lawbreaking by invoking the "state secrets" privilege, today the Supreme Court further inoculated government from any accountability:

The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.

In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.

Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.

Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

Justice Kennedy wrote the ruling (where he claimed that whistleblower protections still apply, but I don't see how since this ruling practically eviscerates them. I mean, are you THAT ignorant of how lawyers and lower-court judges use Supreme Court precedent?), but the real story here, as noted above, is the importance of Justice Alito, which is what all of us were saying prior to his confirmation:

The ruling was perhaps the clearest sign yet of the Supreme Court's shift with the departure of moderate Justice Sandra Day O'Connor and the arrival of Alito.

A year ago, O'Connor authored a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January.

Justice David H. Souter's lengthy dissent sounded like it might have been the majority opinion if O'Connor were still on the court. "Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy," he wrote.

Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.

It's time for yet another recap. If you work for the government, and you witness official misconduct, but the information is classified, you:

-could tell your superiors, but as they did with Alberto Mora, it would probably not amount to much of anything...

-could alert the press, but not only would you be fired for leaking information, the Attorney General would want to prosecute the journalists you told...

-could sue your employer for firing a whistleblower, but you would lose based on Supreme Court precedent. Or the court would not be allowed to rule on it, since doing so would divulge classified information.

-could shut your little trap. It's literally the only way that no harm will come to you.

What we have here is the final lifting of the drawbridge from the moat that protects the executive branch from doing whatever they want and hiding the evidence. We essentially no longer have the separation of powers.

This op-ed from the LA Times argues that what constitutes a "state secret," more often than not, has nothing to do with national security and everything to do with simply keeping secrets:

Should the government's claim of secrecy result in an immediate, no-questions-asked (courtroom) dismissal? Probably not, given the government's track record. When it comes to classified documents, for example, at least half the time the government claims that something is secret for national security reasons, that official line is not the truth. I say "at least" because I believe the number is even bigger — 75% or more — but 50% is what the Bush administration has admitted.

The admission came during a 2004 congressional hearing chaired by Rep. Christopher Shays (R-Conn.), who kept pressing one of Secretary of Defense Donald Rumsfeld's deputies (in this case, the deputy undersecretary for counterintelligence) for her estimate of how much information was classified that did not deserve the secrecy stamp. Finally, she grudgingly admitted that overclassification was a "50-50" problem.

Others who should know say the classified document problem is even worse. The former governor of New Jersey, Tom Kean, after chairing the 9/11 commission that reviewed all of the most recent intelligence on Osama bin Laden and terrorism, told reporters that "three-quarters of what I read that was classified shouldn't have been."

President Reagan's executive secretary at the National Security Council, career Navy officer Rodney McDaniel, told a blue-ribbon commission looking at classification in 1997 that only 10% of the secrecy stamps were for "legitimate protection of secrets."

So we have it on good authority that from 50% to 90% of our government's secret documents should not actually be secret. So why is all this information in the black vaults?

Because it's stuff they don't want anyone to know about. Kickbacks. Rewarding political friends. Rank incompetence. Legal yet embarrassing situations that would impact the country politically but not in the sphere of national security.

And now, thanks to a couple Bush appointees on the Supreme Court, these secrets will stay locked away in the vaults forever.

And the Democrats on the Judiciary Committee wanted to talk about recusal in a Vanguard case. Thanks for missing the point on those Alito hearings completely, guys. Bush needed protection at the Supreme Court. That's what the whole thing was about.