Abusing The Secrets Shield

David Kay, yes, that David Kay(!), and Michael German (now at ACLU) had an op-ed in Monday's Washinton Post called about State Secrets Privilege called "Abusing The Secrets Shield":

"The Reynolds decision, as that case came to be known, set a precedent establishing the executive branch's ability to restrict, in the name of national security, what evidence can be considered at trial. As veterans of the fight against domestic and international terrorism since before that war had a name, we appreciate the need to keep sensitive national security information from the public eye for reasonable periods of time to protect ongoing operations. However, the executive branch should not be allowed to extend that shield to hide evidence that is "sensitive" simply because it is embarrassing or, worse, demonstrates wrongdoing.

Lately the line between sensitive national security information and information that the government would, for other reasons, prefer to keep secret has been blurred...
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Those whose search for justice has been quashed by such executive bullying are often shocked to learn that Congress has never acted to codify the state secrets privilege. It considered doing so in the 1970s but specifically chose not to include the privilege in the federal rules of evidence. Nonetheless, dating from its application in the Reynolds case, the state secrets privilege has been repeatedly invoked, often with disturbing results. This is why we, in cooperation with the Constitution Project, have joined with a bipartisan coalition of policy experts, legal scholars and former government officials in calling on Congress to limit the privilege's use.

Congress should establish that the executive branch's ability to restrict disclosure of evidence is qualified, not absolute. Federal agencies should not be allowed to dodge even a judge's scrutiny by crying "state secret." And Congress should instruct judges to privately review all the evidence that the executive claims is privileged and independently determine if releasing it would harm national security.
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Liberty and security are mutually reinforcing. We can -- and, to remain true to our American values, must -- demand both from our government. An independent judge should determine what information would be harmful if released and what would demonstrate wrongdoing or simply be embarrassing. History has shown that those who have something to lose are remarkably poor judges of the difference."