Byline: Nat Hentoff, THE WASHINGTON TIMES
This is the second of two columns on the Bush administration's abuse of the "state's secrets" doctrine.
The Bush administration continues to insist that it alone must decide whether a judge is allowed to hear a case that might harm national security. When Judge Harry Pregerson, who serves on the U.S. Court of Appeals for the 9th Circuit, listened to Deputy Solicitor General Gregory Garre telling him that, he responded: "The bottom line here is the government declares something is a state secret, and that's the end of it. The king can do no wrong," the Los Angeles Times reported Sept. 16.
I have, however, found clear and feasible ways to end the absoluteness of the government's use of the "state secrets" bludgeon. A Washington-based independent think tank called the Constitution Project has released a report titled "Reforming The State Secrets Privilege." This organization's sole ideology transcending the guerrilla warfare of the political parties is to protect our increasingly battered founding document, which is enfeebled when its separation of powers is disregarded by the presidency.
To illustrate the nonpartisan nature of the Constitution Project, its report on state secrets is by its Liberty and Security Committee in conjunction with the equally independent Coalition to Defend Checks and Balances. The co-authors of the report range from David Keene, chairman of the American Conservative Union and conservative constitutional scholar Richard Epstein (University of Chicago) to liberal civil-libertarian litigator David Cole (Georgetown University Law Center) and the ardent libertarian Constitution defender, John Whitehead, president of The Rutherford Institute. Another is William Sessions, a former FBI director and former chief judge of the U.S. District Court for Texas's western district.
In its report, the Constitution Project gets to the dangerous core of the government's claim that it alone can and should decide how to define "state secrets." The answer from these constitutionalists is: "Unless claims about state secrets evidence are subjected to independent judicial scrutiny, the executive branch is at liberty to violate legal and constitutional rights with impunity. By accepting these claims as valid on their face, courts undermine the principle of judicial independence, the adversary process, fairness in the courtroom, and our constitutional system of checks and balances." Since this particular administration has violated so many legal and constitutional rights, its assurance that we must "trust" it to close courtrooms requires a suspension of disbelief that responsible American citizens should not provide. …