Posted by Jonathan Adler:
Prudence on State Secrets Privilege:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234365311
Marc Ambinder has an [1]interesting post in which unnamed Obama
Administration officials and national security law experts explain the
Administration's continued reliance on the state secrets privilege in
the Mohamed v. Jeppesen Dataplan case.
Officials decided that it would be imprudent to reverse course so
abruptly because they realized they didn't yet have a full picture
of the intelligence methods and secrets that underlay the
privilege's assertions, because the privilege might correctly
protect a state secret, and because the domino effect of retracting
it could harm legitimate cases, both civil and criminal, that are
already in progress.
"If you decide today precipitously to waive this privilege, you
can't get it back, an administration official said. "If you decide
to assert it, you can always retract it in the future." . . .
The officials who spoke would not discuss the particulars of the
case. They did agree to discuss the various cross-pressures that
the administration finds itself facing.
One is that many Obama administration legal experts believe that
the privilege was recklessly abused during the past six years in
particular, and that its application became political or punitive.
To that end, Holder directed his staff to review all current
assertions of privilege -- a review that won't be completed for
several more weeks. . . .
The state secrets privilege has been bureaucratically calcified to
an extent that worries many experts, with the Department of Justice
making the decision about what's harmful more and more often, and
the CIA and other intelligence agencies having less of a say. There
is evidence that the privilege has always been used in this way,
but that the Bush Administration's invocations were subject to more
(legitimate) watchdogging from the press and outside interests.
Some Obama administration officials believe that the privilege's
assertion is legitimate, but that the Supreme Court, in the case
which gave rise to the privilege, was much too deferential to the
government.
References
1. http://politics.theatlantic.com/2009/02/considered_in_light_of_the.php
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