Even the Washington Post has difficulty with last week's sharply criticized Ninth Circuit Appeals Court decision dismissing a lawsuit filed on behalf of five men the Central Intelligence Agency (CIA) allegedly kidnapped and tortured as part of the "extraordinary rendition" program.
The problematic - to put it lightly - Ninth Circuit ruling held that a cry of "state secrets" from the Executive (in this case both G.W. Bush then Obama) can shut down an entire lawsuit, even stopping the rendition and torture victims from progressing with the case using only non-privileged evidence.
Even the Washington Post recognizesthat allowing the Executive Branch to assert secrecy claims to shut down lawsuits challenging government wrongdoing fails to serve justice.
The Washington Post gets that permitting the Executive Branch to shut down lawsuits with the state secrets privilege with no meaningful Congressional or court oversight will allow the government to continue to abuse the privilege by claiming evidence contains state secrets in order to cover embarrassing or illegal behavior instead of to protect national security.
There's no better example of this kind of cover-up than the very first time the government asserted the state secrets privilege in U.S. v. Reynolds. In Reynolds, families of civilian victims of a military plane crash sued the government. The government refused to release the accident report, claiming it contained a "state secret" about military equipment. The Supreme Court upheld the government's claim of secrecy and formally established the state secrets privilege. In later years, the accident report was made public. Not only did the report lack any information on secret military equipment, but it contained irrefutable evidence of the government's negligence.
The Post notes the need for reform of the privilege and points to the State Secrets Protection Act, a solid bill from Rep. Jerrold Nadler (D-NY) and Sen. Patrick Leahy (D-VT), which would reform the state secrets privilege, provide judicial review, and make using the privilege to deny plaintiffs their day in court by shutting down an entire lawsuit an absolute last resort.
The problem with denying court access to torture victims because of State Secrets has never been more obvious. If last week's ruling stands (the ACLU plans to seek Supreme Court review of the decision), five more torture victims will have been denied justice because of Executive claims of secrecy.