Mark is probably right about the political payoff of using the Tillman coverup as a battlefield on White House secrecy. I’m not sure how it would come out in court, though. Governments at war have historically had enormous authority to conceal and to lie, for many reasons:
-to deprive the enemy of knowledge of our decision processes and our state of knowledge
-to maintain domestic confidence and tranquility
-to maintain the morale of the troops
-to directly deceive the enemy.
These legitimate reasons are of course right on the peg by the door to be thrown over any motivation like a camouflage tarp, and the most pervasive motivation is the comfort of authorities. Still, a war is a war, and nasty stuff like war crimes and profiteering can be sorted out after the armistice, so temptation is very powerful.
The administration is staking its claim on grounds of executive privilege with no particular war angle, but this may well change. The thing about a war is that winning is more important than almost anything, and it sops up not only the lives of the young in the services, and consumer goods like copper and steel, but also (in countries that started out with any), liberties of all sorts, and with the consent of the population. “National security” is the much weaker ground that can be trotted out absent a condition of actual war.
If the Supreme Court is willing to decide cases like this as though we are at war, I don’t think there’s a prayer of getting a good decision in a Tillman case. This is one of the most important reasons the casual metaphoric use of the word should be attacked wherever possible: there’s a quick political sugar high in dignifying “terrorists” or even Al Qa’eda with the status of a war enemy, but much more mischief follows. The word is completely inappropriate in Iraq and I can make a case that its equally wrong applied to Afghanistan operations, so calling the occupations and interventions by their right names has the advantage of truth.