Dispatches from the Creation Wars

I missed this last week while I was making my whirlwind trip to Vegas. Several senators – Leahy, Specter, Feingold and Kennedy – introduced the State Secrets Protection Act. The bill, according to the senators, “provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege.” This was first introduced in the last session but was not passed. Here’s a list of things the bill would do:

  • Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
  • Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters
  • Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
  • Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
  • Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely
  • Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals
  • Establish congressional reporting requirements
  • Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution

This is particularly important because it appears that Obama is going to continue to assert the state secrets privilege in cases involving government wrongdoing. Glenn Greenwald is exactly right:

A President who seeks to aggrandize his own power through wildly expansive claims of executive authority ought to be vigorously criticized. But the ultimate responsibility to put a stop to that lies with the Congress (and the courts). More than anything else, it was the failure of the Congress to rein in the abuses of the Bush presidency (when they weren’t actively endorsing those abuses) that was the ultimate enabling force of the extremism and destruction of the last eight years.

What we need far more than a benevolent and magnanimous President is a re-assertion of Congressional authority as a check on executive power. Even if Obama decided unilaterally to refrain from exercising some of the powers which the Bush administration seized, that would be a woefully insufficient check against future abuse, since it would mean that these liberties would be preserved only when a benevolent ruler occupies the White House (and, then, only when the benevolent occupant decides not to use the power). Acts of Congress — along with meaningful, enforced oversight of the President — are indispensable for preventing these abuses. And that’s true whether or not one believes that the current occupant of the Oval Office is a good, kind and trustworthy ruler.

I could not agree more.