Reconstructing Justice By Answering For State Secrets

Earlier this week, the NYTimes had a lengthy article on potential DOJ reforms, including overhaul of the terrorism detention and legal systems, enforcement of civil rights laws, restoration of habeas corpus, and a number of others including:

The Bush administration used the [state secrets] doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program.

As Marcy pointed out, state secrets questions have been asked but not substantively answered from Eric Holder up to now. With that brief due in al-Haramain on February 13th, we may just get more answers.

Consider this from Scott Horton:

The state secrets doctrine, for instance, has existed at least since the administration of Thomas Jefferson. But roughly 90 percent of all in-court invocations of this doctrine from the founding of the American Republic through today occurred during the Bush Administration.

It is worth noting that this use of state secrets to block court consideration of legality — or to block public Congressional oversight, for that matter — is a convenient means of hiding the ball. But the people who are hurt by this are the American public, who cannot hold elected officials accountable if they never get an opportunity to pass judgment on their actions. Using state secrets to save face by hiding everything else from the sunlight. Which is exactly the point.

If there is to be real governmental reform, state secrets is an excellent place to start.

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