Super Secret Tuesday

Tomorrow is, of course, Super Tuesday. Everyone's eyes are looking west, where California will serve as a crucial benchmark in the primary race. But there is another contest taking place in sunny California tomorrow that affects the direction of our country in an arguably more important way.

Mohamed et al v. Jeppesen will be argued tomorrow afternoon in a San Jose federal court. The question is whether or not the government's claim of "state secrets" can keep victims of the brutal practice of rendition (the practice of kidnapping and flying people to places where they are imprisoned and sometimes tortured without trial) from confronting the private companies that plan and coordinate the torture flights in court.

As The New York Times pointed out in its Saturday editorial, the Bush administration has wantonly used the state secrets privilege, and national security claims more generally, to mask its own excesses and abuses. The courts, so far, have been far too willing to cooperate. The Times writes:

In cases involving serious allegations of kidnapping, torture and unlawful domestic eavesdropping, judges have blocked plaintiffs from pursuing their claims without taking a hard look at the government's basis for invoking the so-called state secrets privilege... As a result, victims of serious abuse have been denied justice, fundamental rights have been violated and the constitutional system of checks and balances has been grievously undermined.

Tomorrow the courts get another bite at the apple. Let's hope they do the right thing and allow the case to proceed.

The Times editorial also discusses the new bipartisan legislation before the Senate brought by Senators Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn.) This bill, S.2533, the State Secrets Protection Act, attempts to put the state secrets privilege back in line with its intended purpose: to keep secret information that would truly harm national security if it was disclosed. Not, as the Bush administration uses it, as a shield from lawsuits against abuses of executive power.

Oftentimes the courts have accepted the state secrets claim before even looking at the evidence that would purportedly harm national security if it got out, relying solely on government-submitted affidavits that ostensibly explain why the evidence is so top-secret. S. 2533 would remedy this: it would require judges to review the secret evidence for which the government invoked the state secrets privilege. The bill would also stop the government from using the privilege to block lawsuits at the very outset.

The ACLU has brought four major lawsuits in which the government has claimed the state secrets privilege even before evidence was requested by the courts; three of these cases, el-Masri v. Tenet, ACLU v. NSA and Edmonds v. Department of Justice, were dismissed on state secrets grounds. (On February 15, the Supreme Court will meet to discuss whether to hear ACLU v. NSA.) The fourth is the aforementioned Mohamed et al. v. Jeppesen.

Thankfully, Congress is reclaiming its role in the separation of powers in a way the judiciary has refused to in the past. S.2533 is on the right track.