Obama's speech misses the point
Earlier today, mcjoan posted her analysis of Obama's speech today. There is one part that I think cannot be supported by the speech, which is the analysis of Obama's position on states secret privilege. This is what Obama said:
Along those same lines, my Administration is also confronting challenges to what is known as the "State Secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents – Republican and Democrat – for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.
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 a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.
Mcjoan thinks
Good news, and apparently a break with what the early Obama Justice Department has pursued in the Al Haramain, Jeppesen, and Jewel cases. State secrets has been overused on these cases in particularly, and unfortunately by the Obama as well as the Bush administration. Hopefully this speech marks a change in that approach, and they will abandon that line of defense, which at any rate has been rejected thus far by the courts.
Based purely on the part of the Obama speech quoted above, I don't think mcjoan's analysis is justified at all.
The problem with the states secret privilege as asserted by Bush and now Obama in those cases is not that they weren't properly vetted or invoked too frequently or without consulting with Congress. Oversight, while it was certainly lacking, is not the crux of the problem. The fundamental problem is the BREADTH of the claim, not its frequency or lack of oversight. Before Bush 2, the privilege was used to block the use of pieces of evidence. Now, it is used to remove entire CASES from judicial scrutiny. That is a huge expansion of the claim and nothing - NOTHING - in Obama's speech gives hope that he will shrink the privilege back to its pre-Bush 2 limits. He surely knows the central problem with the privilege is its breadth yet he does not address it at all. Instead, he poses what are essential strawman criticism that may be valid and true but are at the margins of the problem. And at least one of the ongoing states secrets privilege caes, the Obama Justice Department has reiterated and defended the expanded states secrets privilege interpretation. THIS is the problem and all the oversight and personal approval of the Attorney General in the world doesn't matter one bit as long as President Obama won't repudiate the expanded privilege claim.
Maybe I'm missing something. I did not have the chance to watch or listen to the speech and I haven't read it in full. My take is based solely on the section quoted above. But if that section accurately captures Obama's take on states secret, then, unfortunately, nothing in his speech today gives cause for hope that Obama would repudiate the major flaw with the expanded states secret privilege asserted by Bush 2. Putting procedures in place to ratify and dress up a flawed doctrine is no cause for celebration.