Editorial: Secrets? Maybe, maybe not

Thursday, Nov. 29, 2007 | 7:04 a.m.

In May 2006 a federal court dismissed a lawsuit brought by a German citizen who claimed he had been wrongly detained three years earlier by the CIA, whisked to a notorious prison in Afghanistan and tortured for five months.

In March a federal appeals court upheld the dismissal, even though U.S. officials had acknowledged the CIA erred in suspecting that the man once associated with the 9/11 hijackers.

And last month the U.S. Supreme Court declined to overturn the decision by the appeals court.

The actions of all three courts were based on the Bush administration's invocation of the "state secrets" doctrine. This tactic, a power available to the executive branch in lawsuits against the federal government, essentially declares that justice is irrelevant because pursuing it would create a chance that secrets vital to national security would be revealed.

At one time, use of this tactic was relatively rare. Since 9/11, however, President Bush has used it extensively, more than any other president. Now he is using it as a defense against civil lawsuits from people alleging they were victims of illegal federal wiretapping. Shortly after 9/11, Bush authorized the National Security Agency to monitor U.S. electronic communications in which one party was based in a foreign country.

Bush claimed he had the authority as president to bypass the 1978 Foreign Intelligence Surveillance Act, which allows wiretapping but only if approved by a special federal court.

Last summer Congress passed a bill that temporarily grants Bush more power to order wiretapping on his own authority. In recent days, while working on a permanent bill, senators have proposed legislation that would curb the president's power to invoke the state secrets doctrine, which the courts seldom challenge.

Under the proposal, federal judges would be required to review all documents pertaining to the president's claim that state secrets would be imperiled. Cases in which the claim is false or overstated, or where the secrets could be excised without damage to the case, would go forward.

The potential for abuse of the state secrets doctrine would be lessened if this proposal were adopted.