OUR OPINION: Federal agencies try to cover up with `state secrets privilege'
President Barack Obama came to office vowing to run an open and transparent government. By and large, he's kept that promise, strengthening enforcement of the Freedom of Information Act and making it easier for the public to find out who is visiting the White House to conduct business.
But when it comes to the so-called ``state secrets privilege,'' this administration has been too quick to embrace the policy of its predecessor. The doctrine allows lawyers to invoke this evidentiary rule to quash lawsuits in the name of protecting government secrets.
All too often, however, it has been misused to hide embarrassing mistakes and the over-zealous application of anti-terrorism policies involving torture, kidnapping and violations of privacy.
Recently, in an effort to improve the Obama administration's stance, Attorney General Eric Holder issued new guidelines that restrict the use of the ``state secrets'' doctrine and establish a more rigorous process to determine when and how it should be invoked. This is a step in the right direction, but it's not enough.
Volumes have been written about the lengths that government agencies will go to in order to hide their mistakes, and the state secrets privilege offers a handy and expedient way to avoid accountability.
One of the most egregious instances during the Bush years involved the mistaken identity abduction of a Lebanese-born German citizen named Khaled al-Masri, who claimed he was snatched by the CIA in the Balkans, taken to a secret prison and tortured for months before being released. When he sued, the government said the case should not be tried and the Supreme Court upheld the decision.
Under Mr. Holder's new guidelines, a panel of Justice Department lawyers would screen requests by national security agencies to invoke the state secrets doctrine, presumably with an eye toward avoiding phony claims. The attorney general would have to sign off on all such claims and the government would have to file a classified brief with the court explaining the reasons for its actions.
However, this still leaves it up to the discretion of members of the executive branch to make the decision -- behind closed doors -- without significant input by the courts.
A better solution is for Congress to pass a proposed STATE SECRETS PROTECTION ACT that requires judges to review the evidence instead of taking the government's word that a trial could harm the nation.
That is the best way to protect Americans from abuses committed in the name of national security behind a veil of secrecy.
Miami Herald dot com