Eric Holder told Russ Feingold a long time ago that he shared Feingold's concerns about abuse of the state secrets privilege--the legal doctrine used to protect information vital to national security in court cases--but the administration continued to invoke the privilege to block entire lawsuits related to torture, rendition, and surveillance, rather than using it to block specific pieces of evidence, as it was originally intended. The Obama administration's abuse of the state secrets privilege mirrors the Bush administration's, and that's despite months of promises to reform its use.
The Obama administration's behavior prompted Patrick Leahy, Russ Feingold and Ted Kennedy to propose a bill that would give judges more power to regulate the use of the privilege. In order to avoid that outcome, the administration promised to set new guidelines and reign itself in, and this is the result:
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.
If that sounds, familiar, it's because it's exactly what Holder told Feingold in February, that he would "review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations." The difference between the new policy and the old policy is that the old way was "more informal," according to Charlie Savage. In other words, the new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place.
As for the timing of this announcement, bmaz points out that oral arguments are scheduled soon for the al-Haramain v. Obama case, in which the administration is attempting to block judicial scrutiny into the use of warrantless wiretapping--a case in which the plaintiff, an Islamic charity that was wiretapped by the NSA, is wiping the floor with the administration. If anything, the "new policy" seems designed to obscure the fact that the government intends to invoke the privilege again very soon.
-- A. Serwer