Marc Ambinder and Greg Sargent have been unable to get a response from the administration on whether the White House would support legislation sponsored by Russ Feingold, Pat Leahy, and Ted Kennedy to regulate use of the state secrets doctrine. Ambinder says he believes White House Consel Greg Craig is the leading voice of opposition to the bill, and cites two provisions he believes are the most worrisome to the administration.
The bill would put determining what and what is not a state secret in the hands of judges, rather than the executive branch. On the one hand, I can understand the administration's concern, they are in a better position to know than judges because they are in charge of intelligence gathering. On the other hand, we would not even be here if the state secrets privilege hadn't been abused--first by a conservative administration, then by a liberal administration. Originally meant to exclude specific pieces of evidence, the Obama administration has been using the privilege to dismiss entire lawsuits in order to obscure government lawbreaking.
The now bi-partisan nature of the abuse of the state secrets privilege is what prompted Congress to introduce a bill regulating it. It's a response to executive overreach. It's not that there's no such thing as a legitimate state secret, it's that the president shouldn't be able to use the state secrets privilege in this manner. Candidate Obama believed that, even if President Obama doesn't. The administration has only itself to blame for this state of affairs.
Make no mistake: Obama will be rolling back the spirit, if not the fact, of a campaign promise by opposing this bill.
-- A. Serwer