Secure Lawsuits

Thursday, March 6, 2008

THE BUSH administration has been sued by groups and individuals claiming to have been illegally spied on or subjected to "rendition" to foreign countries. Yet the great majority of these lawsuits have been thrown out of court because of administration claims that the litigation involved classified information that could damage national security if released. Too often, judges have merely rubber-stamped the administration's petitions, leaving the important underlying civil liberties questions unexplored and unresolved.

A bill introduced by Sen. Edward M. Kennedy (D-Mass.) and scheduled for debate today in the Senate Judiciary Committee addresses those concerns. It would give plaintiffs a fighting chance to litigate their grievances but would respect the needs of the executive to keep certain information out of the public square.

The State Secrets Protection Act calls for a federal trial judge to review in private the information the administration claims is too sensitive for public release. Currently, judges most often make determinations about the sensitivity of the information on the basis of summaries and affidavits filed by top executive branch officials. Under Mr. Kennedy's bill, the judge could appoint a special master with a security clearance and expertise in intelligence to aid in the review.

The Kennedy bill would give the lawyer for the plaintiff the opportunity to review evidence the judge had deemed not subject to the state secrets exclusion, if the lawyer obtained a security clearance. If the evidence itself was too sensitive to allow opposing counsel to review it, the judge could order the government to provide an unclassified summary; if providing such a summary was not possible, the judge would exclude that evidence but would not be forced to dismiss the entire lawsuit, as so often happens now. The Kennedy bill would keep intact the judge's discretion to dismiss the lawsuit in its entirety if too much of the information needed to try the case was deemed too sensitive. Both sides would have the right to immediate appeal if they objected to the judge's findings. The Classified Information Procedures Act, which is used in criminal cases involving national security matters, has been in place and has worked successfully for years; it served as the model for Mr. Kennedy's legislation.

The executive branch deserves deference in matters of national security, but not absolute deference. This bill would go a long way toward ensuring that a judge would strike the right balance.

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