The Trust-Us Strategy
This move on state secrets fits a familiar pattern of the executive branch trying to pre-empt the legislative branch by promising to do something internally instead of having to be forced into it by statute. It's not a durable solution and should have no bearing on future legislation, but inevitably it does.
The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.
The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.
“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.
The problem is that the people deciding whether "significant harm to national defense or foreign relations is at stake" remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it's not that I don't trust Eric Holder or the review committee tasked with making this determination, I don't trust who comes after him. Case in point - Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.
It's not enough for the executive branch to police itself. Congress should act.
...More from bmaz and Adam Serwer. In fact, Holder promised a review of the state secrets privilege back in February, meaning that he's already been undergoing the process that they're announcing today, and yet the DoJ has invoked state secrets in often-unacceptable ways on many occasions since then.
...Basically, nobody's buying this nonsense. Hopefully, Nadler, Leahy and Feingold (all quoted at the link) will continue to move forward with their bill to rein in this hideous practice.