×
-- A. Serwer
Yesterday Obama reiterated his commitment to a narrower use of the state secrets privilege--a commitment he's already broken in three separate instances. He said he believed the state secrets doctrine should be "modified" and, without acknowledging his own abuse of the privilege, suggested that the administration had only invoked it because they were overwhelmed by having to hit the ground running on the cases in question. He ended by saying:
But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument.The problem with this answer is that the privilege isn't meant to be a blunt instrument -- the Obama administration, like it's predecessor, has chosen to use it as a blunt instrument. It was originally meant to block specific pieces of evidence, not quash entire lawsuits. The recent appeals court decision narrowed the administration's ability to use the privilege to do only the former where there isn't a prior secret agreement between the plaintiff and the government. I suspect the reason the administration hasn't supported Senator Leahy's bill to regulate the privilege is that it goes too far in giving power to judges, but at this point the administration is going to have to do more to reconcile its rhetoric with its actual performance on the matter. There's no reason to trust them until they do.And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.
-- A. Serwer
