Dispatches from the Culture Wars

But what does this really change? Those senior Department officials are still political appointees. We don't really know the process by which the Bush administration decided to invoke the SSP, but would it make you feel better if John Yoo, Jay Bybee and a couple other Bush appointees had signed off on it before sending it to John Ashcroft or Alberto Gonzales for final approval? Would that give you confidence that it was only being invoked when absolutely necessary?

Several of the new measures really just amount to the administration saying, "We won't use this unless it's really, really important, we promise." For example:

Significant Harm Standard - The policy adopts a more rigorous standard to govern when the Department will defend assertions of the state secrets privilege in new cases. Under the new policy, the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.

But of course, the Bush administration would have said the very same thing. They maintained all along that they only invoked the SSP when it was necessary to prevent significant harm to national security. And since the Obama administration has continued to pursue the SSP in every single case where the Bush administration did, that pretty strongly suggests that this is an empty promise that won't actually change anything.

Here's another example:

Narrow Tailoring of Privilege Assertions - Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case. As part of this policy, the Department also commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.

But again, the Bush administration would certainly have made that same promise and what would that have meant? It would also be a lot more believable if the Obama administration had not followed the Bush administration's lead in continuing to invoke the SSP in the Jewel v NSA, where the plaintiffs have specified that they will not be requesting any classified documents and can rely solely upon what is already in the public record.

Or in Al Haramain v Bush, where Obama has continued to invoke the SSP in order to prevent the plaintiffs from using a document that showed they had been illegally wiretapped that the government had already turned over.

There is very little in this new policy that looks like real change. So what would real change look like? Let me make a few suggestions. If the Obama administration really wanted to allow judicial scrutiny while still maintaining necessary secrecy for state secrets, they would do one or more of the following things:

1. Do away with the broad interpretation of the SSP completely and accept the far narrower conception that was detailed by Judge Vaughan Walker, which preserves the use of the SSP only as an evidentiary challenge during the discovery process rather than as a means of dismissing a case up front.

2. Allow the use of classified evidence under the normal procedures by which such information is handled all the time. We already have long-standing and effective proceedings for preventing the release of sensitive information in court cases. The evidence can be placed under seal and it can be introduced in camera and/or ex parte.

3. Submit a bill in Congress to move all cases that involve classified information to the jurisdiction of the Foreign Intelligence Surveillance Court. This is a court already set up to handle classified information. It meets in secret and all of the judges on it already have full security clearances. All of the judges on the court are already federal court judges in other circuits.

And this court has shown that it can be independent, having blasted the Bush administration publicly (something done very rarely) for submitting false information to the court. The key here is that a court gets to look at the information and determine whether it's relevant to the case and does not put security at risk rather than just accepting the administration's claims in that regard.

And I do trust the FISC to do that objectively. And the fact that the court already operates in secret and has a long track record of protecting secret information from release will undermine any argument about the risk of release as a justification for using the broad interpretation of the SSP.

There's one main way we will be able to know for sure whether this new policy actually changes anything in a meaningful way: Will it change the administration's filings in any of the already-existing cases that have been filed? So far they have zealously protected every Bush administration action against lawsuits by invoking the SSP and arguing for their immediate dismissal.

If that continues, it will show that this new policy doesn't change a thing and is just window dressing. If, on the other hand, they submit new briefs and change the government's position in those cases and withdraw their appeals in those cases, then I'll believe that they're serious. But not until then.