Washington's need for secrecy shouldn't be used to arbitrarily deny people their day in court. That's the important stand a federal judge took last week when he refused to dismiss an Oregon charity's lawsuit that claimed National Security Agency officials used wiretaps without warrants to monitor its staff and lawyers.
The U.S. Justice Department contended the Al-Haramain Islamic Foundation's lawsuit should be dismissed because giving the group its day in court would reveal state secrets. Often, merely making that claim has been enough to kill a case. Certainly, national security requires that some vital information remain classified. But the state secrets privilege shouldn't be an impenetrable shield automatically blocking any claim that constitutional rights were violated.
The doctrine was first used in 1948 to stop a lawsuit by the widows of three engineers killed in a B-29 crash who claimed the plane had been negligently maintained. They wanted the Air Force accident reports. But a court accepted the secrets claim and dismissed the case. When the records were declassified 30 years later, there were no national secrets - just evidence of shoddy maintenance.
Trial judges should evaluate the federal government's requests to withhold specific documents and testimony, and cases should go forward using evidence that survives that review. That's what happened this time: The judge got a classified description of why the case should be dismissed and made an independent assessment that it shouldn't. It's a compromise that works. hN