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The New York Times
Opinion
Secrets and Rights
EDITORIAL,
nytimes.com on the Web, February 2, 2008
President Bush’s excesses in the name
of fighting terrorism are legion. To avoid accountability, his
administration has repeatedly sought early dismissal of lawsuits that might
finally expose government misconduct, brandishing flimsy claims that going
forward would put national security secrets at risk.
The courts have been far too willing to go along. In cases involving
serious allegations of kidnapping, torture and unlawful domestic eavesdropping,
judges have blocked plaintiffs from pursuing their claims without taking a hard
look at the government’s basis for invoking the so-called state secrets
privilege: its insistence that revealing certain documents or other
evidence would endanger the nation’s security.
As a result, victims of serious abuse have been denied justice, fundamental
rights have been violated and the constitutional system of checks and balances
has been grievously undermined.
Congress — which has allowed itself to be bullied on national security issues
for far too long — may now be ready to push back. The House and Senate are
developing legislation that would give victims fair access to the courts and
make it harder for the government to hide illegal or embarrassing conduct behind
such unsupported claims.
Last week, Senator Edward Kennedy, the Massachusetts Democrat, and Arlen
Specter, Republican of Pennsylvania, jointly introduced the State Secrets
Protection Act. The measure would require judges to examine the actual
documents or other evidence for which the state secrets privilege is invoked,
rather than relying on government affidavits asserting that the evidence is too
sensitive to be publicly disclosed. Senator Patrick Leahy, chairman of the
Senate Judiciary Committee and an important supporter of the reform, has
scheduled a hearing on the bill for Feb. 13. Representative Jerrold
Nadler, Democrat of New York, expects to introduce a similar measure in the
House.
Of course, legitimate secrets need to be protected, and the legislation contains
safeguards to ensure that.
To allow cases to go forward, the bill gives judges the authority to order the
government to provide unclassified or redacted substitutes. It also gives
those making claims against the government a chance to make a preliminary case
using evidence that they have gathered on their own.
In October, the Supreme Court passed up an opportunity to rein in the
administration’s abuse of state secrets claims and establish new procedures for
dealing with potentially sensitive evidence.
The justices declined to take up the case of Khaled el-Masri, an innocent German
citizen of Lebanese descent who was kidnapped, detained and tortured in a secret
overseas prison as part of the administration’s extraordinary rendition program.
Lower federal courts had dismissed Mr. Masri’s civil lawsuit, reflexively bowing
to the administration’s claim that proceeding would compromise national
security.
Since the Supreme Court has abdicated its responsibility, Congress must now act.
Too many laws have been violated, and too many Americans and others have been
harmed under a phony claim of national security.
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