Tuesday, September 29, 2009

New York Times Editorial: An Incomplete State Secrets Fix

While the States Secrets provision, and its abuse by the Bush and Obama Administration's is about a whole lot more than privacy, I think this editorial in the New York Times is still worth posting here.

Its a good sign that the Times has decided to take such a strong stand on this issue. I'll get to discussing it more in future posts, but today time simply doesn't permit.

The Editorial Board writes:

One of the ways that the Bush administration tried to avoid accountability for its serious misconduct in the name of fighting terrorism was the misuse of an evidentiary rule called the state secrets privilege. The Obama administration has essentially embraced the Bush approach in existing cases, trying to toss out important lawsuits alleging kidnapping, torture and unlawful wiretapping without any evidence being presented.

The other day, Attorney General Eric Holder Jr. issued new guidelines for invoking the state secrets privilege in the future. They were a positive step forward, on paper, but did not go nearly far enough. Mr. Holder’s much-anticipated reform plan does not include any shift in the Obama administration’s demand for blanket secrecy in pending cases. Nor does it include support for legislation that would mandate thorough court review of state secrets claims made by the executive branch.


In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy “still amounts to an approach of ‘just trust us.’”

If the Obama team is sincere about wanting to end state secrets abuses, it will support the State Secrets Protection Act sponsored in the Senate by Patrick Leahy, the Judiciary Committee chairman, and in the House by Representative Jerrold Nadler, a Democrat of New York. The measure contains safeguards to ensure protection of legitimate secrets. But before ruling on a secrets claim, and possibly dismissing a lawsuit, judges would be required to review the documents or evidence in question instead of just accepting assertions in government affidavits.

Click here to read the rest of the editorial.

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