(updated below - updated again)

Senior Washington Bush spokesman Fred Hiatt -- who also works as the Editorial Page Editor of The Washington Post -- shatters conventional wisdom this morning by defending the Bush administration's mild, balanced, and restrained use of government secrecy. Government secrecy, you see, is a complex and serious issue -- we desperately need our leaders to act in secret, but they should try to balance that with a concern for civil liberties. And, decrees Hiatt, let us all be grateful that we have a Government that is so sensitive about this need for balance and is so fair and judicious in its use of secrecy privileges:

A PRESIDENT'S prerogative to protect national security secrets needs to be respected, but it should not unconditionally trump the rights of those harmed by the very programs the president means to shield from public view.

Such is the tension in several cases involving Bush administration antiterrorism policies, including the use of "extraordinary rendition" to seize terror suspects and most recently the National Security Agency's warrantless wiretapping program. In defending against court challenges, the administration has invoked the state secrets privilege, which evolved from a series of cases dating to the 1950s and which allows it to hold back material that it claims if released would compromise national security.

. . . . The Bush administration appears thus far to have used the privilege sparingly, at about the same rate as predecessors, according to a forthcoming law review article by Professor Robert M. Chesney of Wake Forest University School of Law.

Because the law review article which Hiatt cites is "forthcoming," neither I nor, presumably, most other people have yet seen it. But what I do know is that virtually all other long-available evidence -- which Hiatt studiously ignores -- demonstrates exactly the opposite.

As but one example, Professors William Weaver and Robert Pallito of the University of Texas at El Paso, in the Spring, 2005 issue of The Political Science Quarterly, published a widely discussed and much-cited study (.pdf) documenting that the Bush administration's use of the "state secret privilege" is unprecedented in both quantity and scope. The very first paragraph of the article stated:

It continued:

Since the administration of Jimmy Carter, there has been a sharp increase in secrecy claims by executive branch officials, especially in the context of litigation. However, the Bush administration is extending this penchant with even greater intensity, and has been quick to raise secrecy-based objections in response to requests for information that has historically been publicly available.. . .

Taken together, administration official statements interpreting law and their blanket denials for requests for documents demonstrate an intention to greatly expand the power of the executive branch to withhold information from the public, free of any kind of oversight.

Moreover, federal courts have become impatient with the administration's apparent unwillingness to be diligent or accurate in its assertion of privilege; in one case, the federal district court noted that the administration had invoked a secrecy privilege 245 times, and at least one of those invocations covered a document that had already been provided in discovery by another defendant.

A comprehensive analysis by The Chicago Tribune in March, 2005 similarly documented that "the Bush administration is aggressively wielding a rarely used executive power known as the state-secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign."

As Real Reporter Dana Preist of Hiatt's own paper noted when reporting on the administration's use of the "state secrets" privilege to force the dismissal of a lawsuit brought by Khaled al-Masri, a German citizen who, nobody disputes, was abducted and rendered for torture by the Bush administration despite his total innocence (a result which even Hiatt calls "unconscionable"):

For at least the fifth time in the past year, the Justice Department yesterday invoked the once rarely cited state secrets privilege to argue that a lawsuit alleging government wrongdoing should be dismissed without an airing, this time in the case of a German citizen seeking an apology and monetary compensation for having been wrongfully imprisoned by the CIA. . . .

The state secrets privilege was invoked about 55 times from 1954 to 2001, according to the Reporters Committee for Freedom of the Press, and in the first four years after the Sept. 11, 2001, attacks, it was invoked 23 times.

And it is not only the quantity but also the scope of Bush's use of the state secret privilege which makes it unprecedented. Unlike prior administrations which used the privilege to prevent the disclosure of specific documents, the Bush administration has used it as the equivalent of a nuclear weapon to argue that one case after the next alleging that they broke the law must be dismissed lest national secrets be jeopradized.

Thus, with regard to every major issue of legal and political controversy under this administration -- from torture and rendition to lawless detention to warrantless eavesdropping -- the administration has invoked this privilege to block any judicial scrutiny of the legality of its behavior, thereby placing itself, by definition, beyond the rule of law. What other administration has used this privilege in any remotely similar way? None. As the Chicago Tribune put it:

The government is invoking the privilege in an attempt to wipe out the heart of a lawsuit that seeks to examine rendition, the secretive and controversial practice of sending terrorism suspects to foreign countries where they might be tortured.

Worse still -- though readers of Fred Hiatt's editorials wouldn't know about it -- George Bush in November 2001 issued a sweeping Executive Order which, on its very face, extended the State Secret Privilege to entirely new and jarring heights:

In November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.

But in telling Post readers that there is nothing at all unusual about Bush's use of this secrecy weapon -- in assuring them that Bush has used it "sparingly" -- Hiatt literally ignores all of that. There is not a word about any of it. Instead, he cites a not-yet-published article by Robert Chesney as the sole basis for his extraordinary claim.

So who is Chesney, Hiatt's handpicked source? Does one even need to ask? Chesney, not unlike Hiatt, has built his public career around defending the most extreme and lawless excesses of Bush "terrorism policies." He is one of the leading Bush apologists in academia to whom Bush defenders in the media (like Hiatt) invariably turn when they need someone "authoritative" to recite the pro-Bush line.

Hence, as but a few examples, Chesney has argued against allowing accused terrorists access to courts, warning that we must "not impose restraints on the detention process that would be unwarranted and undesirable if generalized to more traditional armed conflict contexts." He is one of the leading defenders of the Government's conduct in the Padilla prosecution, repeatedly defending the prosecution's tactics. In the wake of the dismissal of the key count in the Padilla indictment, Chesney ran to assure the press "that despite dismissal of the first count in the indictment, the case is still fundamentally solid."

When not defending Bush policies of lawless detention, Chesney is vigorously defending Bush's right to block judicial review of even his most illegal actions, such as spying on Americans with no warrants. Thus, he was a defender of Bush's secrecy policies long before the issuance of his oh-so-objective study touted by Hiatt. When NPR wanted a pro-Bush legal professor to defend the president's policies, it invited Chesney onto its air on February 20, 2006, and Chesney spent 30 minutes loyally defending not only the administration's right to detain people at Guantanamo, but also its "conclusion" that Geneva Convention rights applied neither to Al Qaeda nor Taliban fighters.

In other words, the very nonpartisan, sober, serious, supra-ideological Hiatt has chosen one of the most ideological pro-Bush "scholars" in the country on whom to rely. Simultaneously, he studiously ignores the mountain of empirical and other objective evidence demonstrating that this administration's secrecy policies are unprecedented, including such evidence published by his own newspaper's most decorated and respected investigative reporter.

What makes this all the more striking is that the great battles against government secrecy in the prior generation were led by our nation's largest and most influential newspapers, which -- as one would expect -- had a natural instinct to demand that political leaders be accountable by acting out in the open. But now, we endure this sad, revolting and extremely revealing spectacle of watching our leading newspaper editorialists lead the crusade in defense of the prerogatives of government secrecy.

As Eric Boehlert recently documented, the Bush administration's wall of secrecy is so impenetrable and unprecedentedly sweeping that it seems to revel in humiliating the press. Reporters have not received return phone calls from Dick Cheney's office since 2005, and they are unable even to find out the most mundane details, such as where Cheney is at any given time or how many employees work in his office.

Bush officials defy subpoenas reflexively, deny FOIA requests at record levels, and refuse to answer questions about what they did without even pretending to have any justification. Yet here Fred Hiatt is, defending the administration's "sparing" use of secrecy weapons and praising them for striking the right balance.

And Hiatt does all of this even in the face of the grave risks of such secrecy, risks that are so obvious that it ought not be (but sadly is) necessary to point out. From Weaver and Pallito's article:

And they began their article, fittingly, with this:

Thanks to a rotted and pathologically pro-Bush press corps led by Fred Hiatt, this is the "abomination" -- the sweeping veil of secrecy -- that, more that anything else, now shapes and determines the type of government we have. And it isn't just that our establishment media passively accepts this bulging secrecy. As Hiatt's editorial demonstrates (just as Tim Russert's Libby testimony did), it is our nation's media stars who are its most eager defenders.

UPDATE: From what I can tell, only the abstract of Chesney's article is available online, but not the article itself (h/t obijuan). The abstract consists (as abstracts typically do) solely of three highly conclusory paragraphs -- with no rationale, reasoning or documentation -- in which Chesney asserts that "I find that the Bush administration does not differ qualitatively or quantitatively from its predecessors in its use of the privilege."

Did the scholarly, substantive, serious Hiatt even read the article he is touting as the basis for his extraordinary claim that there is nothing unusual about the Bush administration's use of this secrecy weapon? Or did he simply embrace it without having read it because its pro-Bush conclusions are more consistent with his agenda than the mountain of empirical evidence from varied sources which have reached the opposite conclusion (and which he pretended did not exist)? Perhaps Hiatt himself could answer that question.

UPDATE II: Several commenters and e-mailers note that the full Chesney article can be downloaded here, so I stand corrected on that. I'd still be interested in knowing whether Hiatt read it. Both Karson (here) and the Federation of American Scientists (here) demonstrate that Chesney's paper proves far less than Hiatt claims.

On a related note, Digby has more here on the meek and happy acquiescence of the press to White House secrecy orders.