Too Many Secrets

(NY Times editorial)

It is a challenge to keep track of all the ways the Bush administration is eroding constitutional protections, but one that should get more attention is its abuse of the state secrets doctrine. A federal appeals court in Virginia this month accepted the administration's claim that the doctrine barred a lawsuit of a torture victim from going forward, and the government is using the defense in another torture case in New York. The Supreme Court needs to scale back the use of this dangerous legal defense.

Khaled el-Masri, a German citizen of Lebanese descent, says he was picked up in Macedonia and flown to Afghanistan, where he was questioned about ties to terrorist groups and beaten by his captors, some of whom were Americans. He was apparently subjected to "extraordinary rendition," the practice of taking foreign nationals to be interrogated in other countries where, the Bush administration believes, American law does not reach.

Mr. Masri sued, charging the C.I.A. with violating the Constitution and international law. The government argued that if the case went forward, it would put national security secrets at risk. The United States Court of Appeals for the Fourth Circuit, based in Richmond, agreed and threw out the case, insisting that the "very subject matter" of Mr. Masri's encounter with the rendition program was too secret for his case to go forward.

The court erred badly. The government has already spoken publicly about its rendition program, which Secretary of State Condoleezza Rice has hailed as "a vital tool in combating transnational terrorism," and Mr. Masri's case has been widely covered in the media. If there are particular facts that need to be kept secret, the court could have found a way to separate them out, while letting the case proceed.

The government has raised a similar defense in the case of Maher Arar, who was sent to Syria and tortured. That case is on its way to a federal appeals court in New York.

If the state secrets doctrine is allowed to grow to the scope the Fourth Circuit stretched it to, it could prevent judicial review of a wide array of unconstitutional actions by the executive branch. The Supreme Court should reverse this ruling and hold the executive branch accountable, in Mr. Masri's case and others, when it acts outside the law.