I blogged about Attorney General Holder's memo introducing new state secrets privilege guidelines last week. I'm glad to see the New York Times has agreed. An Editorial in today's New York Times expresses exactly the same sentiment I expressed last week: that while internal Executive Branch controls on state secrets are a welcome step, the Executive Branch cannot be trusted to police itself.
Keeping control of the state secrets privilege entirely within the Executive Branch, with no meaningful Congressional or court oversight, will allow the government to continue to abuse the privilege by claiming evidence contains state secrets in order to cover embarrassing or illegal behavior instead of to protect national security.
There's no better example of this kind of cover-up than the very first time the government asserted the state secrets privilege in U.S. v. Reynolds. In Reynolds, families of civilian victims of a military plane crash sued the government. The government refused to release the accident report, claiming it contained a "state secret" about military equipment. The Supreme Court upheld the government's claim of secrecy and formally established the state secrets privilege. In later years, the accident report was made public. Not only did the report lack any information on secret military equipment, but it contained irrefutable evidence of the government's negligence.
Our country's national security is too important to be used as an excuse to hide government incompetence, much less intentional wrongdoing.
If the government wants hide evidence, the government ought to be required to show a court how revealing the evidence would cause significant harm to the national defense or diplomatic relations. Anything less would allow state secrets to be used as it has too often been used since its inception: to stop accountability for government misbehavior. Conspicuously missing from the Obama Administration's "state secrets reform" guidelines is court oversight or support for the legislation that would implement it, the State Secrets Protection Act (H.R. 984, S. 417).
The New York Times got it right today:
In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy "still amounts to an approach of ‘just trust us.’"
I reiterate my point from last week: if the past nine years has taught us anything, it's not to trust the Executive Branch to protect our civil liberties.