Change I knew I couldn't believe in

Last week, Eric Holder made a modest promise:

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

In response, I wrote:

That’s great news insofar as you trust Eric Holder. But though he’ll surely be an improvement over Bush Attorneys General, there’s no reason to assume his judgment on this score won’t, over time, become politicized. What would really win me over is if Holder promised to support legislation that would ultimately result in some sort of consistent review process for all invocations of the state secrets privilege. Most of you probably know this already, but the history of the state secret privilege is a fairly ugly one.

Back in the early 1950s, three Air Force contractors were killed in a bomber crash, and their widows sued the United States for compensation. When they tried to force the government to produce the incident report for the crash, though, the government refused, claiming the report contained state secrets and that releasing it would imperil the nation. Lower courts weren’t particularly moved and sided with the widows, but the Supreme Court disagreed, affirming the government’s right to withhold evidence in this manner and winning substantial deference for the privilege from the courts for decades.

The only problem is, the government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–-a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secrets.

Precedent is precedent, though. The Supreme Court had little information to work with, but it came nonetheless, and probably incorrectly, to a far reaching decision that has influenced case law pretty widely ever since. In that way, state secrets has become one of the executive branch’s most powerful privileges

The best way to scale back that power, it seems, would be for Congress to pass a law requiring judges to review classified evidence behind closed doors whenever a state secrets claim is made in their court. Or, thinking out loud, to create a separate court (maybe modeled on the FISC?) which would independently review state secrets claims as they come, and determine their validity one by one. I don’t hold out much hope that this will happen, but if Eric Holder could get behind it, that would be change I can believe in.

But it looks like we're in for a few years of a "just trust Eric Holder" policy, followed by a few years of "just trust the next Attorney General" policy, followed, eventually, by "just trust a shady Republican Attorney General" policy. That's CINO. Change In Name Only.

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

The case involves five men who claim to have been victims of extraordinary rendition -- including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured....

ABC News' Jason Ryan reports that Justice Department spokesman Matt Miller said of the case, "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court's decision in Reynolds that the privilege not 'be lightly invoked.'"

Miller said that Attorney General Eric Holder has started a review of all state secret privilege matters. "The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations. It is vital that we protect information that, if released, could jeopardize national security."

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.