Secrets Don't Make Friends

With nearly every news media outlet gorging at the "healthcare debate" trough, it's easy to forget that Congress is in fact working on other legislative initiatives wholly unrelated to healthcare. One such piece of legislation is H.R. 984: State Secret Protection Act of 2009. With a name like, 'State Secret Protection Act of 2009,' it has to be good! The legislation, sponsored by Rep. Jerry Nadler of New York, was approved by the House Judiciary Committee last Friday.

The bill aims to curb the abuse of the state secrets privilege, which has been embraced by the Obama DOJ (following W. Bush's lead) as the best method of never having to answer questions about constitutionally suspect executive policies/actions. Salon.com's Glen Greenwald has a post that includes a radio interview with the bill's sponsor, Rep. Nadler. According to Rep. Nadler, both George W. Bush, and Barack Obama blazed new trails with respect to the abuse of the states secrets privilege. First, the frequency with which the privilege was invoked in suits against the government skyrocketed during the Bush administration. Then, the doctrine saw a transformation in the manner with which is was (and continues to be) applied. According to Rep. Nadler, the privilege was initially designed as an evidentiary privilege that would protect sensitive documents and other types of evidence.

That application has since been surpassed in the Bush and Obama administrations. Now, instead of simply protecting a single, or group, of documents/evidence, the executive has successfully argued that the privilege applies to subject matter. This transformation greatly expanded the scope of the privilege and permits the executive to punt a suit at the pleading stage, effectively barring citizens from seeking redress in the courts. It's hard not to see the problems with this approach to the privilege.

The State Secrets Act of 2009 would help to return the state secrets privilege to its traditional moorings as an evidentiary privilege. It provides safeguards in order that legitimately sensitive materials are protected, while also ensuring that citizens have access to the courts for redress. On its face, it would seem to satisfy both the needs of national security and the maintenance of the courts as a check on executive power. Unfortunately, as (recent)history poignantly demonstrates, once power is granted, it's a bitch to take it away.