It's sad that we've gotten this bit of public policy wrong.
We have standards for the willful destruction of evidence; the same could apply directly to secrets. "Okay, if the secret is serious enough-- you can keep it, but we're going to interpret that in a manner which is against your interests."
This allows for a reasonable decision to take place over what should and shouldn't be kept from the courts. No one expects national security to be cheap, if the government needs to lose some cases to keep its secrets then so be it.
Otherwise, the outcome we have now where the state claims secrecy at every point it can possibly get away with it is inevitable: it's the best strategy because there is no cost to it. Arguably, government attorneys wouldn't be doing their job if they didn't try for it. It's the job of the public, congress, and the judiciary to tell them no in the interest of having a functioning legal system.
It's sad that we've gotten this bit of public policy wrong.
We have standards for the willful destruction of evidence; the same could apply directly to secrets. "Okay, if the secret is serious enough-- you can keep it, but we're going to interpret that in a manner which is against your interests."
This allows for a reasonable decision to take place over what should and shouldn't be kept from the courts. No one expects national security to be cheap, if the government needs to lose some cases to keep its secrets then so be it.
Otherwise, the outcome we have now where the state claims secrecy at every point it can possibly get away with it is inevitable: it's the best strategy because there is no cost to it. Arguably, government attorneys wouldn't be doing their job if they didn't try for it. It's the job of the public, congress, and the judiciary to tell them no in the interest of having a functioning legal system.