Fixing Abuses of State Secrets

Monday, June 29, 2009

NO PRESIDENT should be trusted to be the sole arbiter of what evidence can and cannot be introduced in court. But that's essentially what has been happening for four decades in cases that touch on national security matters.

In the 1950s the Supreme Court gave the executive virtual carte blanche to determine what pieces of evidence or information must be withheld in civil lawsuits against the government; lower courts since then have routinely rubber-stamped the executive's secrecy claims.

The second Bush administration took the state secrets doctrine to new heights by arguing that an entire case should be dismissed -- sometimes at its earliest stages -- if it could touch on any information that could conceivably have national security ramifications. The Justice Department under President George W. Bush used this approach to try to quash litigation involving, among other things, domestic surveillance and extraordinary rendition (the forced transfer of detainees to countries where they may be tortured).

President Obama has said that the state secrets doctrine should be reformed, and he has promised to be more measured. Yet when confronted with actual cases the Obama Justice Department has adopted the same legal arguments as the Bush administration. The Obama administration, for example, recently asked the full U.S. Court of Appeals for the 9th Circuit to reconsider a panel decision that declined to dismiss a lawsuit brought by men who were subject to extraordinary rendition; the administration claimed that allowing the suit to go forward could harm national security. If Mr. Obama shapes a more circumscribed approach, as promised, that would be welcome.

But legislation is necessary to guarantee that all presidents abide by sensible rules that protect both national security and the ability of litigants to make their case in court. Rep. Jerrold Nadler (D-N.Y.) is the primary sponsor of legislation that sets out such rules; similar legislation has also been introduced in the Senate.

Under the State Secret Protection Act of 2009, a federal judge would be the arbiter and would make determinations on specific pieces of evidence. If a particular document or piece of evidence were deemed by the judge to be too sensitive to be shared with the plaintiff's lawyer, the government would be obligated to provide a redacted copy or, if that proved unworkable, an unclassified summary of what the evidence shows. If this approach still presented the risk of a national security breach, the judge could exclude the information but allow the plaintiff to proceed with the litigation unless the excluded information was absolutely necessary to the case. In these instances, the judge would be empowered to dismiss the case.

Independent scrutiny is necessary to ensure that the state secrets doctrine is being used legitimately and not to cover up embarrassing or incriminating evidence or episodes. The proposed legislation strikes the appropriate balance.

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