Thursday, April 30, 2009

About State Secrets

In the wake of a defeat at the hands of the 9th Circuit Court of Appeals, Obama signals that his administration is prepared to revisit the sweeping application of the doctrine:

I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Glenn Greenwald takes issue with this idea that the Obama administration didn't have time to revisit state secrets before being required to defend the privilege in court, but otherwise gives credit to this willingness to address the scope of the privilege. It's a start.

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