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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.
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