Whose Privilege?
    The New York Times | Editorial

    Friday 18 April 2008

    In the name of fighting terrorism – and with a clear goal of avoiding accountability – the Bush administration has imposed a level of secrecy on its operations that has no place in a democracy.

    One of its most disturbing tactics has been seeking early dismissal of lawsuits alleging serious government misconduct, claiming they would reveal national security secrets. The Senate is now considering a good bill that would rein in this misuse of the state secrets privilege and give victims fair access to the courts and the public a fuller understanding of their government’s actions.

    In recent years, a number of important lawsuits have raised credible allegations of government abuses including torture, kidnapping, rendition and domestic eavesdropping. All too often, judges have blocked these suits without examining how and why going forward would compromise the nation’s security.

    Congress has also been far too acquiescent, standing aside as the administration undermined individual rights and the constitutional system of checks and balances. It may finally be ready to act.

    Next week, the Senate Judiciary Committee is scheduled to vote on the State Secrets Protection Act. Introduced by Senators Edward Kennedy, Democrat of Massachusetts, and Arlen Specter, Republican of Pennsylvania, it would make it harder for this or future administrations to use a flimsy state secrets claim to avoid exposure of illegal or embarrassing conduct.

    Legitimate secrets need to be protected, and the bill includes important safeguards. But before judges rule on a state secrets claim, the bill would require them to first review the documents or evidence for which the privilege is invoked – rather than rely on government affidavits asserting that the evidence is too sensitive to be disclosed.

    To allow cases to go forward, judges would also be given authority to order the government to produce unclassified or redacted versions of the evidence.

    Not surprisingly, the administration is trying to defeat this essential reform. In a recent letter to the Senate, Attorney General Michael Mukasey raised the prospect of a veto and insisted that the president – and not the courts – must have the final say over when and whether the privilege applies. Incredibly, and with no legal basis, he also expressed doubt that Congress has the power to mandate closer review of state secrets claims.

    Senator Jon Kyl, Republican of Arizona, is also trying to undermine the act with a damaging amendment that would require judges reviewing state secrets claims to give “utmost deference” to the government, a standard intended to thwart meaningful judicial review.

    That, of course, is the problem. The courts have deferred far too often to the president. Passing the Kennedy-Specter bill, without Mr. Kyl’s amendment, would go a long way toward restoring the balance and the accountability and openness that are essential for a democracy.