Tilting at Windmills: Charles Houston, "separate but equal", and the "state secrets privilege"

Charles Houston slowly but methodically attacked the "separate but equal" doctrine first enunciated by the Supreme Court in its 1896 decision, Plessy v. Ferguson. Beginning in 1938 he chose cases with care to nail shut the coffin of "separate but equal", choosing access to public education as the arena in which to demonstrate that separate was inherently not equal.

His efforts were rewarded after his death in the Supreme Court's landmark 1954 decision, Brown v. Board of Education.

I would like to suggest a similar incremental strategy to attack the "state secrets privilege", first formally enunciated by the Supreme Court in the 1953 decision United States v. Reynolds.

An incremental attack might start by attacking the presumption that,
"Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake."

The following facts might be asserted to undermine the presumption that the government's assertion of privilege is sacrosanct.
In 2000, the accident reports were declassified and released, and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case.

This documented governmental abuse of the privilege from its inception might provide the wedge to open the door. The current Administration has not been shy in asserting the privilege under much shadier circumstances. It's time to shed some light on OUR government.

Always remember,
"We the people... do ordain and establish this Constitution for the United States of America."

Any bright, young attorney out there willing to tilt at this windmill?