Limiting state secrets

Federal trial judge Vaughn Walker, based in San Francisco, ruled that the National Security Agency policy of warrantless surveillance, a Bush administration antiterrorism policy, cannot be shrouded in secrecy. The government claimed in the litigation that it need not defend its position because doing so violated its policy of state secrets, under which the claim by executive officials precluded courts from going forward in cases on the merits.

When the Obama administration came to office, it was expected that it would not endorse or follow the Bush policy, and that of administrations over the past half-century, on state secrets. But almost immediately, the Obama Justice Department took the position that while it would be careful and scrutinize its state-secrets claims, it did not change that policy substantively. The attorney general argued that open litigation would threaten intelligence work.

The state secrets claim by executive officials has been arbitrarily followed since the Supreme Court adopted it in mid-20th century, and in effect waived the fundamental power of judicial review by doing so. The current case will be appealed, presumably; but it would be preferable if the Obama administration, through its Justice Department, rejected the policy of demanding the exclusive right to determine state secrets claims. In cases warranting true state secrecy, there are preferable ways for protecting genuine executive concerns. Congress has had legislation pending for several years (stalled for the past year) stating those exceptions as well as alternatives to the blanket executive claim of state secrets.

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