Expert: Both parties cooperate to keep administration crimes secret

David Edwards and Muriel Kane

The Bush administration has made widespread use of the so-called state secrets privilege to dismiss lawsuits that seek to challenge its domestic wiretaps and other illegal activities. Now two veteran senators, Arlen Spector (R-PA) and Ted Kennedy (D-MA), are teaming up to craft legislation that would direct judges to evaluate the government's state secrets claims rather than accepting them uncritically.

Keith Olbermann described this proposed legislation with a high degree of skepticism, saying sardonically, "The bill may end up as part of the Senate's wiretapping law, due for a vote next month -- after which the president will sign it and monkeys will fly out of his butt."

He then turned to constitutional law expert Jonathan Turley, asking him why there isn't already such a law, as most Americans would assume there would be.

"It actually is the law," Turley replied. "This has been a distortion, or a mutation of the law. The privilege has become something that I think the Supreme Court never imagined when it first created it."

"Today, the privilege is used primarily not to keep something secret, but to keep something from being used against the government," Turley went on. "I was in a courtroom when people laughed when the government counsel argued that they could use the privilege to claim as secret something that was published on the cover of the New York Times."

Turley said that some judges are already scrutinizing government claims under the state secret privilege but suggested that those who do not are merely "lazy." He pointed out that even the original case which established the privilege was eventually found to have been based on a lie, "and the Supreme Court refused to reexamine the case."

Perhaps Turley's most telling observation was that members of both parties are happy to see these cases dismissed because they are determined to keep impeachment off the table. "There's a lot of people, both Democrats and Republicans, that ... don't want a court to say that the president did something that is a federal crime. That's why they're trying to get all these cases thrown out of court. ... When a federal judge says the president committed a crime, it's pretty darn hard to ignore that."

However, he agreed with Olbermann that it would still be important to have such a law in place for after Bush leaves office, saying, "The privilege is now a tool used to protect the government from its own crimes."

This video is from MSNBC's Countdown, broadcast on November 27, 2007.