That new review policy is salutary. But it continues the fundamental error of the last 50 years of state-secrets policy — taking away from the judiciary its central role in deciding judicial issues. A bill before Congress would give judges that right — one, arguably, that the judiciary already has without Congress granting it. The executive branch should not have the final say in contested claims about what evidence is and is not available to courts in litigation. How can one executive department be expected to be totally judicious about disputes involving another executive department? The Justice Department and solicitor general represent our federal government’s executive departments and agencies — how can they be the ultimate dispassionate judge about what should or should not be admitted in evidence? Prior experiences prove that approach is inherently impossible.
When Solicitor General Erwin Griswold argued the Pentagon Papers case to the Supreme Court, he stated that it would endanger nation security if those papers were not repressed. The court disagreed. Years later, Griswold wrote in The Washington Post that his argument had been disingenuous and self-protective. That has been the case frequently in cases where the state-secrets claim was raised to bar evidence in trials against federal agencies and departments — over 60 times in the years since the Reynolds case created that mischievous policy of executive discretion.
The courts must be the ultimate judge of what evidence is admitted in trials. The pending bill (initiated by the late Sen. Edward Kennedy, D-Mass., and Sen. Arlen Specter, D-Pa.) stating that proposition should be passed. It is scheduled for a hearing in the Fall. The Department’s proposal is fine for an advisory, intra-agency policy, but should not be the final word on the issue of state secrets. The Senate, and the courts, should make that clear.
Mr. Goldfarb’s latest book, IN CONFIDENCE: When to Protect Secrecy and When to Require Disclosure (Yale University Press, 2009), includes a chapter on state secrets.