What’s a secret?

Washington Post: In recent years, a number of possibly deserving litigants have been denied their day in court after the Bush administration claimed that too many secrets would be spilled in an open trial. The cases of people who alleged they were subjected to illegal eavesdropping or were handed over to a foreign country in an “extraordinary rendition” have been fended off in this way. Sen. Edward Kennedy, D-Mass., has proposed a legislative remedy that might give such people a chance to sue even while protecting true secrets — but Attorney General Michael Mukasey is opposing the bill.

Much of Mukasey’s criticism of the State Secrets Protection Act revolves around the Justice Department’s belief that the executive is entitled to remain the sole, or at least primary, arbiter of what is to be kept secret. Mukasey said he worries that the bill would fatally undercut the executive’s ability to keep national security information from being exposed in court. The attorney general is right to try to defend the executive’s prerogatives, and he’s right to be concerned about protecting national security information. But he is wrong to oppose this legislation.

Special master

Right now, a state-secrets claim by the administration is often enough to get a lawsuit thrown out. Judges most often make determinations on the basis of summaries and affidavits filed by top executive branch officials. The state-secrets bill would allow a federal trial judge to review in private any information an administration claims is too sensitive for release. The judge could also appoint a special master with a security clearance and expertise in intelligence to aid in the review. Lawyers for the plaintiff would have an opportunity to review any evidence the judge deemed not subject to the state-secrets exclusion if those lawyers obtained a security clearance.

The executive deserves significant deference when making a state-secrets claim, but not absolute deference. The Senate bill is balanced, and Mukasey’s promise to recommend a veto is unfortunate. That lawmakers are poised to strip the president of almost singular power in this area is probably what sticks most in this administration’s craw.