The attorney general announced a new policy for the executive branch’s treatment of the state secrets privilege. But it is not so much a bold step towards greater openness as lipstick on a pig.
For more on pruning back executive power see Pruning Shears.
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On Wednesday Attorney General (AG) Eric Holder announced a new standard for invoking the State Secrets Privilege (SSP). “This policy is an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security,” he wrote. It requires agencies “including the intelligence community and the military, to convince the [AG] and a team of Justice Department lawyers” that a newer, more stringent standard for harm would be caused if the alleged secret is disclosed. (Previously the claim could be invoked by a single official.) Unfortunately, in practice it will just preserve a broad, vague and unregulated power for the president.
First, note that Congress is missing from the new oversight regime. The intelligence community, military, and AG are all in the president’s chain of command. The Justice Department has both political and career appointees. While the latter might be more likely to take a stand against an unreasonable claim, the amount of political pressure available to apply to them is basically only limited by a president’s forbearance. As we saw during the last administration, that is not something to invest too many hopes in.
Second, it may be an attempt to halt the progress of the State Secrets Protection Act in Congress (SSPA). The SSPA would, among other provisions, require that all SSP claims be privately reviewed and ruled on by a judge. It also raises the standard for invoking the SSP to a level that, according to the Post, “closely tracks language in Holder’s memo.” Further, “the Justice Department officials said Tuesday that their agency would give regular reports on their use of the state secrets privilege to oversight committees on Capitol Hill and that the AG would pass along ‘credible’ allegations of wrongdoing by government agencies or officials to watchdogs at the appropriate agencies.” Why would Holder adopt the SSPA standard and offer briefings other than to send the message, we’ll satisfy your concerns without you having to bother with that pesky legislation. It is a particularly bad moment to try that considering Justice (among others) was sued by the ACLU on Monday for not being sufficiently open.
The “enhanced ‘trust me'” proposal might work, though, because Congress has been notoriously lax about defending its prerogatives. The shine comes off Pat Leahy’s triumphant announcement of the SSPA in light of his empty threats regarding DOJ corruption or the destruction of CIA torture tapes, to take just two examples. Current leadership has been downright timid when it comes to unpleasantness with the White House. It would make perfect sense if Holder thought he could short-circuit the SSPA with this plan. Word of Congress’ toothless bluster appears to have made it to the private sector as well (via).
Skepticism is especially warranted towards the SSP because, as all articles discussing it ought to point out, it was established in defense of a lie. The SSP originated with the 1953 Supreme Court decision United States v. Reynolds:
In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government. In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight. When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence.
There do not appear to be any other declassified SSP claims. Meaning, the current rate of abuse – according to available evidence – is 100%. Have all SSP claims been born of such low motives? Who knows, but in the absence of new facts – and this is crucial – there is no reason to take the government’s word for it! It is not for us to trust, but for government to prove.
Which brings up the final, crucial step of processing of state secrets that even the SSPA fails to address: automatic declassification. Secrets do not remain sensitive forever. It seems after a sufficient interval, say fifty years, they should be released to the public. Congressional oversight and judicial review are necessary but not sufficient. The public has a right, finally, to see. We have a right to know what is being done in our name, even at a lag of decades. As data gathers we will slowly see if the SSP is being used the way politicians earnestly assure us it is. That in turn will help shape policy in a way that reflects the popular will instead of the ease of leaders. Which, remember, is the point of democracy.