State Secrets

Here's another one of those issues I want some help trying to sort out, because I can clearly see both sides of the issue.

There is an article in the New York Times which says that the Administration is increasingly using claims of "State Secrets" to shut down lawsuits against it. According to this article, the most times it has ever been used by an Administration is 19 (over the 8 years of the Reagan Administration) and President Bush has now tied that record in less than 6 years.

At issue is the balancing act between truly keeping secret things which must remain so for national security vs. allowing someone to sweep their own possible wrong-doings under the rug.

According to the article, here are a few of the cases which have been dismissed or are in the process of review by the courts because of the Administration's use of the "state secrets" clause:

• A suit by a German man, abducted and taken to Afghanistan for five months, where he was “beaten and injected with drugs” before being released.
• A Syrian-born Canadian, abducted at a New York airport and taken to Syria, held in a small cell and beaten with electrical cables.
• Three recent challenges to the two NSA spying programs which have been the subject of such debate since November.

The problem is: where is the oversight? There are many who believe the NSA programs are illegal and unconstitutional. There are others who assert that it is not. Who decides? It shouldn't be the people running the program, that's like asking the driver to determine whether he was exceeding the reasonable speed on the road. But the Administration is basically saying that no one has the right to look closely enough at the program to determine whether it violates any laws. "Just trust us" doesn't cut it.

Oh, and the icing on the cake is in the article's final paragraphs... The "State Secrets" privilege comes out of a 1953 Supreme Court precedent, United States v. Reynolds. An accident report (a key piece of evidence in the case) was withheld by the Air Force because they claimed it contained key technical details which were state secret. However, in recent years, those documents have been declassified (how much state secret technology could we still be using from a 50 year old plane?), and it turns out the Air Force was lying, there were no such details in the report, nothing what so ever to justify withholding it.

So I'm inclined to wonder whether the whole privilege is too sweeping, when the very first time it was used (indeed, when it was initially defined) it was misused in order to short circuit a valid and justified case against the government.

Is there a better way to protect state secrets without handing the government a "Get Out Of Jail Free" card which it can use at its discretion, and without any independent party being able to verify the veracity of the claim?

Liam.