Deja-vu on State Secrets

02/12/2009 02:02 pm ET | Updated May 25, 2011

Last Monday, it seemed like deja-vu when the Holder Justice Department argued that a federal court had no right to hear a lawsuit about torture. The administration asserted that the suit is blocked by the state secrets privilege, a legal doctrine whose purpose is to prevent public disclosure of particular evidence when the disclosure would threaten our national security. The attorney for the Justice Department argued that the appeals court should uphold a trial court's decision to dismiss the lawsuit without any judge ever examining the evidence.

The Justice Department's action prompted legislators in the House and Senate to reintroduce legislation this past Wednesday to reform the privilege. The bipartisan legislation would protect actual national security secrets from public disclosure while respecting the rights of individuals to have courts decide legal disputes.

Specifically, the State Secret Protection Act would ensure that trial judges independently determine whether a particular piece of evidence is subject to the state secrets privilege. If the evidence is privileged, the judge would then decide whether enough non-privileged evidence exists to allow the lawsuit to go forward. Not only does this comport with common sense, it follows the recommendations issued by the Constitution Project's bipartisan Liberty and Security Committee in its report "Reforming the State Secrets Privilege."

Just to highlight the absurd and far-reaching nature of the administration's position, in last Monday's oral argument in Mohamed v. Jeppesen Dataplan, held before the U.S. Court of Appeals for the Ninth Circuit, the Justice Department argued that the entire lawsuit was properly dismissed because the very subject matter of the case -- the CIA's program of extraordinary rendition -- is secret. Even Wikipedia has a web page devoted to the subject. The lawsuit against a defense contractor was brought by five people who allege that its planes were used to transport them to countries where they were tortured.

In a letter to Attorney General Holder, I acknowledged that there may be valid state secrets claims regarding some particular pieces of evidence relevant to the Jeppesen case. However, a judge should decide that issue. As former Iraq Study Group head David Kay and former U.S. Ambassador David Birenbaum argue in a recent San Francisco Chronicle op-ed, "the mere bringing of a lawsuit challenging treatment under a program that is publicly known cannot threaten our national security."

During his confirmation hearings, Attorney General Holder promised to "review significant pending cases in which [the Department of Justice] has invoked the state secrets privilege" and to "ensure that the United States invokes the state secrets privilege only in legally appropriate situations." In response to questions about the Department's failure to narrow its claims in the Jeppesen case, the Justice Department repeated Holder's promise on the very day that Jeppesen was argued. I understand that this issue is only one of the many critical issues facing Attorney General Holder as he seeks to restore a respect for the rule of law to the Justice Department. But the time to act is now.

Even if the Attorney General moves to rein in the executive branch's invocation of the state secrets privilege, as he surely should, Congress still needs to legislate to ensure that no future president can undo these reforms and to establish procedures to guarantee that the courts will provide an independent review of secrecy claims. I commend the Members of Congress who have stepped in with a measured response that would equitably resolve many of these issues. I urge the House and Senate to move quickly to pass the State Secret Protection Act and call upon the President to sign it into law.