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. Judges have shown extraordinary deference to presidents, in many instances declining to review the evidence at hand and accepting instead affidavits from top officials attesting to the material's sensitivity.
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. But even infrequent use carries consequences. The case of Khaled el-Masri offers a cautionary tale. Mr. Masri, a German citizen, was seized in January 2004 by U.S. operatives and allegedly tortured and interrogated in Afghanistan for nearly six months before being released. The United States admitted to the German government that Mr. Masri "had been erroneously taken," according to Chancellor Angela Merkel.
Mr. Masri sued in U.S. courts, but his case was thrown out after the administration invoked the state secrets doctrine, arguing that allowing him to proceed would risk revelation of national security secrets. He faced high legal hurdles even if he had overcome the state secrets claim. But it is unconscionable to deny Mr. Masri his day in court, especially given how many facets of his case already had been publicly aired.
Is there some way to protect secrets while giving more space to due process? One alternative, offered by Mr. Chesney, calls for creation of a secret court, akin to the Foreign Intelligence Surveillance Court, to review complaints with national security ramifications. Plaintiffs would be barred from attending the proceedings, but their cases would be advanced by lawyers with security clearances who'd be obliged to keep the information confidential -- even from their clients. Another proposal, advocated by the Constitution Project, a bipartisan nonprofit that focuses on legal and constitutional issues, would give federal judges expanded authority to evaluate in private the merits of the administration's secrecy claim.
Congress and the administration should consider these and other options that might preserve a strong executive while restoring a strong sense of fair play.