May 30, 2011

IN 2007, FIVE MEN sued Jeppesen Dataplan, claiming that the Boeing subsidiary had worked with the U.S. government to carry out “extraordinary renditions” that sent them to foreign countries where they were tortured.

Shortly after President Obama took office, his Justice Department adopted the Bush administration’s arguments and sought dismissal of the case based on the state secrets doctrine. Its assertion: No aspect of the case could be litigated without risking the leak of vital national security information. California federal courts agreed; the Supreme Court this month declined to take up the men’s appeal.

This may be the end of the case, but it should not be the end of the matter.

The state secrets doctrine has been used too often as a rubber stamp for the executive. In the past, some judges have interpreted Supreme Court decisions as requiring the dismissal of lawsuits in their entirety based solely on summaries or affidavits submitted by executive branch officials.

In the fall of 2009, Attorney General Eric H. Holder Jr. introduced important changes in the way the executive evaluates state secrets assertions in order to reduce the possibility of abuses. Among the changes: The executive must refrain from seeking dismissal of the case as a whole if the sensitive national security material can be isolated or other steps taken to allow the litigation to proceed.

But Mr. Holder’s directives do not carry the weight of law and could be reversed by the next attorney general or the next administration. And they cannot address the legal precedents in place that too often allow judges to dismiss cases without a painstaking assessment.

The State Secrets Protection Act, crafted by Sen. Patrick J. Leahy (D-Vt.) and Rep. Jerrold Nadler (D-N.Y.), appropriately balances the rights of litigants with the imperative of national security. Under the act, which foundered in the past Congress, a federal judge would have been required to make determinations about specific pieces of evidence. If a particular document or piece of evidence were deemed by the judge too sensitive to be shared with the plaintiff’s lawyer, the government would have been obligated to provide a redacted copy or an unclassified summary of what the evidence showed. If this approach still presented the risk of a national security breach, the judge could have excluded the information but allowed the plaintiff to proceed with the litigation unless the case hinged entirely on the excluded information. Dismissal of a case would have been a last resort.

The end of the Jeppesen case puts the matter squarely in the political arena. Mr. Leahy and Mr. Nadler should reintroduce their legislation and Congress should move quickly to consider it.