Our Government Has Been Declaring Children’s Nosebleeds a State Secret

/in /by

At some point the courts are going to have start calling bullshit on the government’s transparent attempts to use State Secrets to hide embarrassing information.

From Charlie Savage, we have the story of Kevin Shipp, who tried to sue the CIA for all the medical problems his family suffered from being housed in a house infested with toxic mold at Camp Stanley, outside of San Antonio.

The Shipps soon began to get sick. First, they got nosebleeds, then developed symptoms that doctors said resembled H.I.V. infection or exposure to radiation, family members said. Eventually, Kevin Shipp said, he discovered that the house was full of a spreading black substance.

[snip]

Suspicious of a cover-up, Mr. Shipp said he sent samples from the house to a scientist at Texas Tech University. His manuscript includes a Texas Tech report showing that the samples tested positive for toxic mold.

Shipp sued and, in 2003, the CIA settled for $400,000. But two days later, the CIA reneged on the settlement. And when Shipp further pursued his suit, the CIA invoked state secrets, so the judge dismissed the suit.

And when Shipp submitted his manuscript for pre-publication review to the Agency, they redacted details about–among other things–his children’s nosebleeds.

He says that he submitted the manuscript to the agency for the required prepublication review but that it blacked out swaths of information, like accounts of his children’s nosebleeds, strange rashes, vomiting, severe asthma and memory loss.

On some issues, Article III judges have shown their ability to stand up to the government’s ridiculous claims.

After this memoir, I really hope judges begin to show some spine on State Secrets. By now, the assumption should be the government is invoking State Secrets for some stupid reason.

Like an embarrassing nosebleed.

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  1. Phoenix Woman says:

    Ah, byt Marcy, don’t you see? This is an embarrassing nosebleed that would cost them money they could be spending on torture rendition flights to Mubarak’s and Suleiman’s Egypt!

  2. substanti8 says:

    Secrecy is fundamentally incompatible with democracy.  In contrast, the notion that any non-personal information should be withheld from the public is born of an authoritarian view of governance.

    The Empire is thoroughly corrupt and needs to be dismantled – for the good of humanity, today and in the future.

  3. NMvoiceofreason says:

    The doctrine of state secrets is fundamentally incompatible with the actions of the government. When the government commits actions outside the law, the state secrets doctrine no longer applies, since they are no longer state actors. In the case of an unethical government, the legislature (i.e. Congress) may be the only option. “A Bill to restore good faith”, where the CIA is placed under the same doctrine of good faith and fair dealing as everyone else would be a start, punishable by 5 years in prison if they don’t.

    As Mr. Horn said from the Horn v. Huddle debacle (http://www.callawyer.com/story.cfm?eid=910387&evid=1) “The CIA can’t always be depended upon to act honorably.”

    We need an honorable government, and we need to start prosecuting those who aren’t.

  4. DWBartoo says:

    Yes, by now it should be clear, EW, even to judges on the federal bench that when Government envokes State Secrets, that supidity, absurdity, or crimminal behavior is being protected.

    However, judges are not allowed to let evident “patterns” even clearly repeated “patterns” sway their continually “fresh” openess to the dire need to “protect the people” or whatever hogwash is currently in vogue.

    Before a spine may be of any use to the judiciary, a brain capable of reason and securely attached to the top of said spine, will first be required.

    Perhaps we shall all come out ahead … after all?

    ;~DW

  5. earlofhuntingdon says:

    I wonder if the $400,000 settlement with Mr. Ship was unilaterally breached by the CIA after some idiot supervisory lawyer happened to observe that if the government accepted liability at all, let alone of that magnitude, for intentionally or negligently housing the Ship family in a dangerous environment, it could be legally required to do the same for all those it housed in similarly dangerous environments.

    That would include all those victims and aid workers “temporarily” housed in dangerous trailers after Katrina and other disasters, at home and abroad. Conservatively estimating that number at 10,000, the liability becomes $4 billion. If that estimate is off by only one order of magnitude, and the number of families is 100,000, the liability becomes $40 billion, and so on.

    As would any good customer, hoodwinked by negligent or reckless vendors, the government, in order to responsibly steward taxpayer funds, would be forced to seek recovery of part or all of that liability from some of its favorite corporate suppliers.

    It’s not about helping, or doing the right thing, or even how much Mr. Ship and his family are owed due to their needlessly suffering. It’s about a policy of permitting – indeed, causing – needless suffering because it’s fast, easy and cheap – so long as you live in Georgetown or Alexandria and not in a government-supplied trailer. Who would consider that, rather than a nosebleed, to be a state secret worth protecting?

    Fortunately, there’s a tradition in the law, sometimes more honored in the breach, that it’s not the court’s problem to consider who, besides the litigants before it, might suffer or benefit from his or her decision. Its responsibility is to decide the case before it as logically and dispassionately as it can, on the facts and the law applicable to those facts, and when it can, also to do justice. If the legislature doesn’t like the consequences that naturally and logically flow therefrom, it’s the legislature’s responsibility to craft a “better” alternative and legislate it.

    The state secrets doctrine is a means to deal with the admissibility of difficult evidence, not a way to insulate the government from its own perfidy. Permitting the government to hide this case behind a fraudulent application of the state secrets doctrine is reneging on the court’s primary responsibility.

    • papau says:

      I wonder if it is about liability for trailers, or something about the construction or prior use of that house?

      We have 60 years of CIA doing LSD etc experiments to help in interrogations – the left over chemical mix in the walls could be an interesting science project.

      Or what is buried under the house could be a project.

      But in the end, the Dulles Brothers made the CIA into an agency concerned with corporate money (oil company profits/control of fields=security for the US is the one IKE bit on for the overthrow of Iranian Democracy and installation of the Shah). So I would guess your trailer liability scenario is the most likely – but I’d like to investigate the other possibilities.

    • grayslady says:

      This is absolutely what is happening, IMO. Years ago I engaged in battle with the IRS over interest deductions for my auto payments. My auto lease was clearly a finance lease since it had a fixed price purchase option at the end of the term; and if you have (had?–not sure what the laws are now) a finance lease, the interest on monthly payments is deductible. I won the case in a settlement with the IRS when they realized that 1) my interpretation was the correct interpretation, and 2) the IRS agent admitted to my attorney that they didn’t want the case to go to court because then they would have to repay thousands of dollars to other taxpayers who also had legitimate finance leases.

  7. NMvoiceofreason says:

    So far we have Totten, which says if you claim to have a spy relationship with the government, you can’t sue; and Jeppesen, which says if you claim that as a defendant who has a secret relationship with the government, you can’t be sued. So the most likely reason for this to have been blocked was some kind of secret contract. Note that “state secrets” on its own does not do it, as that is an evidentiary privilege, which can only block privileged evidence coming in (after the court looks at it to be sure the State isn’t just making stuff up).

    • powwow says:

      So far we have Totten, which says if you claim to have a spy relationship with the government, you can’t sue; and Jeppesen, which says if you claim [to be] a defendant who has a secret relationship with the government, you can’t be sued. So the most likely reason for [the civil suit referenced in the post] to have been blocked was some kind of secret contract [to which the Shipps were a party with the government, under Totten]. Note that “state secrets” on its own does not do it, as that is an evidentiary privilege, which can only block privileged evidence coming in (after the court looks at it to be sure the State isn’t just making stuff up). – NMvoiceofreason

      In fact, and very much to the contrary, “state secrets on its own” does indeed “do it,” should the Supreme Court decide not to review, or, especially, decide to review and affirm, Mohamed v. Jeppesen, in which a 6-5 en banc Ninth Circuit last fall recklessly overruled the original, sensible panel decision (which had interpreted and applied the government’s intervening claim of “state secrets” as an “evidentiary” privilege, as you describe it).

      For the record, and as clearly outlined in the now-pending cert. petition (which I excerpted, as it relates to Egyptian torture, in this comment), filed with the Supreme Court in December on behalf of the five Mohamed v. Jeppesen plaintiffs (two of whom are still in prison, one in Egypt, one in Morocco), Jeppesen as it emerged from the Ninth Circuit declares the “state secrets” privilege to be very much not an “evidentiary” privilege, and transforms it instead into a form of Executive Branch “immunity privilege,” as described in this short, powerful brief:

      Sitting en banc, a divided Ninth Circuit dismissed claims brought against a private company that is alleged to have been complicit in the abduction, incommunicado detention, and torture of several men
      suspected of involvement in terrorism. The plaintiffs’ disturbing allegations were supported by publicly available information. Nevertheless, invoking a privilege that this Court has recognized only as a means of protecting particular items of evidence from disclosure, the court of appeals ruled that plaintiffs’ claims could not be adjudicated at all. And it did so at the pleading stage, before plaintiffs had sought discovery of a single piece of evidence–giving them no opportunity to develop their claims without using material determined to be privileged.

      This expansive application of executive immunity goes beyond anything this Court has endorsed.

      […]

      Review is needed not only because the Ninth Circuit’s decision departs from this Court’s cases, but because the expansion of the state secrets privilege threatens grievous consequences for separation of powers and the rule of law. The ruling below potentially shields the Government from virtually any litigation challenging activities it claims are secret–even when those activities have garnered widespread public attention, target Americans, or run contrary to the commands of the Constitution or of Congress. Allowing the privilege to be used to make entire cases disappear effectively makes the Government immune from judicial scrutiny when it acts in the name of national security. But that idea, as this Court has recognized in a recent series of cases addressing the response to the September 11 attacks, is antithetical to our system of constitutional democracy.

      – BRIEF OF THE CONSTITUTION PROJECT AS AMICUS CURIAE IN SUPPORT OF PETITIONERS, January, 2011

      • TheMaven says:

        It’s also worth noting, of course, that the government isn’t even a defendant in the Jeppesen action — the gov’t moved to intervene in the case before the district court specifically for the purpose of invoking the state secrets doctrine in order to force dismissal of the entire matter. This occurred even before the corporate defendant put in any form of responsive pleading (e.g., a motion to dismiss for lack of subject matter jurisdiction or failure to state a claim for which there might be a remedy in law or equity.

        Like the application of state secrets elsewhere, such as the ACLU v. NSA illegal wiretapping case a few years back, the doctrine is now being horribly abused by the government to protect itself from any possibility of embarrassment through exposure of illegal activities. When the government feels the need to constantly protect itself from its own citizens in this manner, it should be clear that we are witnessing the smothering of democracy. And practically no one bothers to stand up and take notice.

      • bmaz says:

        Thanks, I was just fixing to explain that and then saw your post on the way down the page. Yes, Pow-wow is exactly right. It is supposed to be an evidentiary privilege, but it has been intentionally and maliciously expanded into a prophylactic Article II Constitution based privilege. This is why Jeppesen is so important.

  8. allan says:

    A modest proposal:

    Any government attorney invoking State Secrets should automatically be
    held in criminal contempt of the court until proven innocent of the charge.

  10. nahant says:

    OT Mubarak has stepped down and the Military will be in charge.. JOY in the Streets of Egypt!! Victory for the people!!

  12. earlofhuntingdon says:

    In Ship’s case, I assume he lived in site-built or pre-manufactured base housing, not a mobile home, and that it was pre-Katrina. That makes it worse. The number of affected families escalates, in that the military base at which Ship was stationed is one among hundreds, each housing thousands, and the potential for being subjected to serious environmentally hazardous conditions exists at many of them, whether it be a consequence of being used as a chemical warfare or munitions testing or storage site, or a function of reckless or negligent construction that leads to the electrocution of soldiers while taking showers.

    The general point still stands: that an employer and public government has or may have subjected a very large number of families to conditions that may have done serious harm to their health, well-being and financial circumstances. The amount of economic loss the government seeks to avoid and which it has externalized onto its employees and victims it nominally aimed to help may be budget busting.

  13. Jason008 says:

    The CIA was behind what was being shown as an ARMY DEPOT. Hmmmm. The CIA put a high ranking offical on this base to find breaches in security of the location….WHICH HE DID….his whole families get deathly ill, the government evacuates the family on numerous occasions and starts to cover up what they did to the extend of following the family, threatening the family. Than the kids have to help box up everything they own and all their possessions they ever had to be DESTROYED. This after months of a family of 5 living in a hotel room. They are than evacuated back to DC where vehicles tried to run them off the road, broke into their cars, sat in their driveway. Than they sit with the CIA and negotiate for two days where the CIA offers them letters of apologies, cover roll back and a settlement. The family finally thinks it’s over….it’s not…

    A reporter got wind and called the CIA. They freaked out and than call the family at the last hour of the agreement to back out and told the family that they tak 100,000 or they will be shut down under NATIONAL SECURITY….the family did not bow to the threat and refused. Judge Orlando Garcia caved to the Government and denied the 18 year old son and wife of the husband, who signed no agreements…the right to a jury or a trial…..their constitutional right….This only scratches the surface. NOW THE STORY COMES OUT…..

  15. ottogrendel says:

    “Eventually, Kevin Shipp said, he discovered that the house was full of a spreading black substance.”

    Is he sure that the substance wasn’t an ectoplasmic manifestation of CIA evil?

  16. Jason008 says:

    Believe me that black substance was not even a scratch of what was in and around that house and it’s impact was not the main cause. So yes, that would be the evil – =0D