New State Secrets Policy Amounts to ‘Trust Us’
Ed sums it up: “All of the changes are to the process by which the administration will determine when to invoke the SSP [State Secrets Privilege], not to how broadly or narrowly they will argue for the application of that privilege in court.”
Given that these decisions will still all be made by political appointees in the Justice Department, the fact that more political appointees will now be involved doesn’t exactly inspire confidence that the decision about what is really a “state secret” that must be concealed — as opposed to just embarrassing or illegal government conduct that should be revealed — is going to be any less political.
As Ed puts it: “Several of the new measures really just amount to the administration saying, ‘We won’t use this unless it’s really, really important, we promise.’ ”
In other words, the government is saying, ‘trust us to do the right thing.’ Unfortunately, the state secrets privilege has been used to cover up illegal government conduct, rather than to truly protect national security, since it won the U.S. Supreme Court seal of approval back in 1953. And both the Bush and Obama administration’s use of it over the last seven years hardly inspires trust that the government these days is eager to do any better.
As well-intentioned as the new policy may be, as Sen. Russ Feingold (D-Wis.), a co-sponsor of the State Secrets Protection Act put it yesterday, “Independent court review of the government’s use of the state secrets privilege is essential.”