An overused 'privilege'

Posted: Tuesday, October 06, 2009

The George W. Bush administration undermined the rule of law in many ways, but one particularly egregious example was its overuse of the "state secrets privilege."

That's the legal doctrine government lawyers used to seek the dismissal of court cases that, they said, could reveal vital national security secrets. It's how the Bush administration managed to dismiss the case of Khaled El-Masri, among others. El-Masri was allegedly flown to Afghanistan and tortured by the CIA in a case of mistaken identity.

On the campaign trail last year, Barack Obama rightly took Bush to task for overusing the privilege. But since the election, Obama's Justice Department has continued to invoke it, and the proposal the administration unveiled last week to limit its use does not go far enough toward fixing the problem.

No one expected Obama to renounce the privilege entirely. The government has a responsibility to protect national security secrets that, if divulged, could damage the country. But as we've said repeatedly on this page, the Bush administration, in its obsession with secrecy and unbridled executive power, became addicted to the privilege and asserted it far more than any previous administration. After 9/11, courts were overwhelmingly accommodating; not once were officials required to turn over material they claimed was secret - and in far too many cases, the privilege was used not just to shield sensitive evidence but to win dismissal of cases.

Now, the Obama administration has announced new rules to reform the use of the privilege. They require the attorney general's approval before the Pentagon or CIA or any other agency may assert the privilege. It may be invoked only when "genuine and significant harm" to U.S. defense or foreign relations is at stake. And the Justice Department will reject its use if officials believe the motivation is to conceal illegality, inefficiency or to "prevent embarrassment."

Those are all important changes. But voluntary self-policing isn't sufficient. For one thing, the rules don't have the force of law and won't bind future administrations. For another, they leave decisions entirely in the hands of the executive branch - the same branch that is, in most of these cases, being accused of wrongdoing.

The administration should by all means implement its new rules, but not in place of legislation currently making its way through Congress. That bill would, among other things, mandate judicial scrutiny of the supposed secret evidence and prohibit the dismissal of lawsuits based only on executive branch affidavits. It would put the force of law behind reform and serve as a true check on the power of the executive.



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