‘Reforming’ the state secrets privilege

‘REFORMING’ THE STATE SECRETS PRIVILEGE…. On a list of civil liberties concerns where the Obama White House has come up short, use of the “state secrets” privilege would be fairly high on the list, and was one of the first red flags from this administration. I was glad, then, to see the president mention reform this morning.

“[W]hile this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used…. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that’s why my administration is nearing completion of a thorough review of this practice.

“And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the Attorney General. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions.

“On all these matters related to the disclosure of sensitive information, I wish I could say that there was some simple formula out there to be had. There is not. These often involve tough calls, involve competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it’s uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why.”

That’s a start. What’s more, within an hour or so of Obama’s speech, Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) referenced the president’s comments on this to reemphasize his State Secrets Protection Act, which Leahy argues would codify the privilege “in an effective way that balances the protection of national security with appropriate judicial review.”

Leahy’s bill has picked up some high-profile co-sponsors (Specter, Kennedy, and Feingold, among others), and in light of the president’s comments, maybe there will be some movement on this.