Over the last few months, we’ve given voice to concerns that the Obama administration has been mimicking its predecessor in its approach to executive power and the war on terror — in particular by invoking the states secrets privilege in seeking to hide information relating to national security tactics.
But today brings news that may represent a sharp break with the Bushies’ failed policy on that issue. In a memo signed by Attorney General Eric Holder, the Justice Department has announced new limits on the government’s ability to assert the privilege. (You can read the memo here.)Among the new procedures outlined, the key ones seems to be pledges by the Justice Department to a) submit evidence to a court, so that it can review whether the assertion of the privilege is justified; b) refer credible allegations of wrongdoing to an inspector general, whenever the assertion of the state secrets privilege would prevent a case containing such allegations from going forward; and c) require that the attorney general sign off on each assertion of the privilege.
The initial response to the announcement from those who have opposed the government’s conduct on state secrets has been cautiously optimistic. Sen. Pat Leahy (D-VT), who had co-sponsored a bill to reform the process, said in a statement that the new policy “bring a higher degree of transparency and accountability to a process previously shrouded in darkness.” But he added: “I remain especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement.”
The Washington Post notes that the new policies likely won’t change the administration’s approach in two major cases in which it has already been criticied for invoking the privilege: the al-Haramain wiretapping case, and the Jeppesen renditions case.