At A Glacial Pace

It appears that the Obama administration is moving to give up some of the power grabbed by its predecessor, at least in one area. The Justice Department has developed a new set of guidelines as to when the executive branch can assert the "State Secrets" doctrine to thwart lawsuits against the government. According to this NY Times article, the new policy may be released as early as today, and will involve review by the upper echelon of the Justice Department, right up to and including the Attorney General of any proposed use of the doctrine.

Here's one of the more welcome parts of the proposed policy:

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”

I have to admit that I'm still a little skeptical about this new policy. After all, the Obama administration had no qualms about using the "State Secrets" doctrine several times in its opening months. And, as the NY Times article pointed out, the new policy just happens to suddenly appear as several bills in Congress have been proposed which will likewise curtail the use of this 'hide the salami' tool and will provide guidelines for judges to use when the doctrine is asserted. It looks like the new policy is in part an attempt to blunt the drive for such congressional action.

Several lawmakers adopted a cautious stance on whether they would press forward with the privilege legislation, because they had not yet seen the policy. Still, the lead sponsor of the House version of the bill, Representative Jerrold Nadler, Democrat of New York, noted in a statement that the bills would affect courts, too.

“Fixing the executive branch’s assertion of the privilege is only one part of the equation,” Mr. Nadler said. “Congress must still enact legislation that provides consistent standards and procedures for courts to use when considering state secrets claims. Our constitutional system requires meaningful, independent judicial review of
governmental secrecy claims.”

There is no reason for Congressman Nadler and his colleagues to back off on the bill. Bringing the executive branch back into balance with the other two branches of government would be a welcome beginning to the restoration of our democracy.