Brian Beutler, guest-blogging for Matt Yglesias at Think Progress this week, takes a look at the steps the new attorney general, Eric Holder, is taking on the state secrets front. The Supreme Court case that established the modern state secrets privilege involved a lawsuit against the Air Force by three widows whose husbands had died in an aviation accident. The government convinced the Supreme Court that revealing information about the crash to the plaintiffs would endanger national security. But Beutler points out that there was just one problem:
The government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.
Unfortunately, the Supreme Court's ruling is still controlling precedent, and the Bush administration used the state secrets privilege for maximum legal advantage, routinely asserting it in cases related to national security. Attorney General Holder has promised to review these assertions and withdraw those that are not "legally appropriate" circumstances.
This is good as far as it goes, but I agree with Beutler that it doesn't go far enough. It's nice to have responsible leaders in the executive branch who don't abuse their powers, but it's far more important to put laws in place that will prevent irresponsible leaders from abusing those powers in the future. In the case of the state secrets privilege, that means legislation narrowing the privilege to cases where there's a genuine danger to national security and giving judges the power to review the relevant secrets in private to verify that it's being invoked legitimately. Maybe that won't matter while Eric Holder is in office. But even if Holder doesn't abuse the state secrets privilege, it's a safe bet that some future attorney general will. Reforming the privilege now, while memories of Bush administration abuses are fresh, is urgently needed.
The poster child for state secrets reform should be the ongoing Al Haramain case. An Islamic charity accused of funneling money to terrorist organizations was inadvertently handed a document that contained evidence that the government had spied on the charity without proper legal authority. When Al Haramain sued the government for this apparent violation of the law, the government made the astonishing argument that the document's very existence was a state secret, that Al Haramain must return its copies of the document, and that therefore Al Haramain had no standing to sue the government because it had no evidence that it was the target of illegal surveillance. While we don't know exactly what was in the document, it appears that rather than containing genuine state secrets, it simply contains politically-embarrassing evidence that the government has been conducting an illegal domestic surveillance program. The law should be changed to make it clear that the government can't use the state secrets doctrine to get politically embarrassing evidence thrown out of court. And the law should explicitly give judges the power to review secret evidence in for themselves (in private and with appropriate security precautions) and judge for themselves whether the evidence merits state secret protection.