Democrats on the House Judiciary Committee are preparing for a confrontation with the White House over the state secrets privilege. Rep. Jerrold Nadler (R-NY), the chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, has called the privilege's expansion during the Bush administration "the greatest threat to liberty in this country."
At an academic conference in Washington today, Nadler noted that the Patriot Act reauthorization, which the White House supports, might come to the floor at the same time as House legislation on the state secrets privilege, about which the White House has been publicly silent -- and privately skeptical.
To a researcher who asked Nadler whether the bills might be combined for leverage, Nadler conceded it was "rational" to assume that was a possibility, but he said in a later interview that the answer says nothing about strategy. "I'm not going into our negotiations with the White House," he says. Still, he acknowledged that, at some point soon, the White House "is not going to be able to be publicly silent."
Two weeks ago, the House Judiciary Committee passed the State Secrets Protection Act of 2009, which empowers federal judges to make final determinations on whether the assertion of the privilege is legitimate. The bill would also prevent the government from using the privilege as a "magical incantation," in Nadler's words, to prevent the evidence discovery process from taking place.
If the government refuses to provide evidence that a judge determines is not subject to the privilege, the judge would be ordered to find in favor of the plaintiff on the matter of fact that the evidence relates to. The principle behind the legislation, Nadler said, is that the executive branch cannot be its own judge.
The Senate Judiciary Committee wants to hear the White House's position before marking up its version of the bill.
Administration officials have said privately that President Obama's lawyers are not likely to support any legislation that weakens the ability of the executive branch to determine what information constitutes a state secret and how to protect that information from disclosure.
The administration has promised publicly to be more judicious when using the privilege. In September, the Justice Department announced new guidelines for asserting the privilege. Federal prosecutors must now show that the information in question would cause "significant harm" even if it were to be disclosed to plaintiffs in a classified setting. Attorney General Eric Holder and a team of deputies are to review each prospective privilege assertion. The Justice guidelines allow for judicial review, and the department has promised to adhere to the rulings of a court.
Thanks, Obama, but no thanks. Like many of his other promises, I wouldn't trust him (or future Presidents) to "do the right thing" unless they're essentially forced to so by Congress and the courts. Far too often, the state secrets privilege has been used to cover up wrong-doing or embarrassing information, rather than actual state secrets that might jeopardize on-going intelligence operations. The CIA and other members of the intelligence community not only have a long history of screwing things up, but also taking illegal (if not downright stupid) action on behalf of whatever (idiot) President happens to be serving at the time, not to mention they couldn't keep a secret if their lives depended on it. The whole idea of "secrets", considering the amount of effort that most administrations engage in leaking their own (politically motivated) secrets, trying to cover-up their own wrong-doing, and of course, not being able to keep secrets at all, while the internet itself makes information more freely available and richer than anytime in the past, is tenuous, at best. There will always be a tension between the secret keepers and those who want to know their secrets, particularly in a society that (supposedly) values free speech rights, but the winner will always be the finders rather than the keepers, because in the end, there are no secrets, only knowledge waiting to be discovered.
You might also be interested in this article about a panel on state secrets later in the day: http://www.mainjustice.com/2009/11/18/doj-official-many-factors-to-weigh-in-state-secrets-policy/
Nadler is a D, not an R...hence the "Chair" in his title.