EDITORIAL
Shady Secrets
Published: September 29, 2010
A midnight filing by the Obama administration on Friday, asking a federal judge to throw out a lawsuit because of the so-called state secrets doctrine, again raises a troubling question. Why do the White House and Justice Department continue to invoke this severe legal tool essentially as prior administrations have used it, in the face of a considerable body of opinion that it has been abused and should be significantly reformed?
Everyone recognizes that there are secrets that must be protected, but the doctrine has been used to cover up illegal and embarrassing acts or to avoid needed public discussion of policies. Federal trial judges sometimes fail to make the government justify its use of the privilege.
Despite President Obama’s promises of reform in this area, the public still cannot reliably distinguish between legitimate and self-serving uses of the national security claims. Worse, some of the administration’s claims clearly have fallen on the darker side of that line.
The lawsuit was filed by the father of Anwar al-Awlaki to stop the government from killing his son, who is believed to be planning attacks for the branch of Al Qaeda in Yemen, where he is said to be in hiding. Charlie Savage reported in The Times that there is wide agreement in the administration “that it is lawful to target Mr. Awlaki,” but disagreement about the basis for requesting dismissal of the lawsuit. In the end, “a more expansive approach” won out.
Given the cloud of doubt hanging over the doctrine — for 57 years, really, since the Supreme Court established it and for the past decade, especially, because the Bush administration abused it to conceal torture — it’s time for the Obama administration to air these differences and explain the full extent of its thinking.
The court established the secrets privilege in 1953, in United States v. Reynolds. It said the government could withhold evidence if revealing it would jeopardize national security. In that case, the government suppressed a 51-page report about the crash of an Air Force plane on which electronic equipment was being tested.
The privilege turned out to be conceived in sin: the now-declassified report contains no secrets. Instead, it recounts how the engine failure that led to the crash might have been avoided. A lawyer involved said the report “expressly finds negligence” by the Air Force.
In the past 20 years, use of the privilege has increased considerably. It is now used to dismiss lawsuits outright, as in the Awlaki case, even where plaintiffs could prove their case without protected information.
Last September, Attorney General Eric Holder Jr. said the administration would follow new procedures “to strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.” He said that it wouldn’t be used to cover up illegal or embarrassing actions.
Those commitments distinguish the Obama approach from that of his predecessor, but they came after Mr. Holder rushed to uphold Bush administration claims in two major cases involving illegal detention and torture. In one case, it had long been shown conclusively in public that the United States abducted an innocent man and sent him to Syria, where he was tortured.
Mr. Holder’s assurances haven’t strengthened public confidence because they can’t. That will not happen until there is an independent and trusted mechanism for scrutinizing efforts to use the secrecy claim, and to address judges’ deference to a secrecy-oriented executive.
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