Jack Balkin gets it exactly right in this post about the Bush administration invoking the state secrets privilege without any attempt to justify it:
I do not mean to suggest that the state secrets privilege should not exist or that it does not have considerable value. Rather, the claim is that the government must do more than simply assert the privilege. The burden should rest on the government to make a fair showing about what elements it can and cannot disclose, and it should be required to assert the privilege in the way that is least destructive of the orderly determination of legal claims. This is especially so when the legality of the government's own actions is at issue. Courts should be reluctant to allow the privilege to quash lawsuits entirely unless there is no practical alternative; the better course is to limit the disclosure of particular types of information, hold in camera hearings, and use other devices to allow the ordinary course of legal proceedings to continue. What the government is doing here is short circuiting that careful balancing of interests. It is trying to stonewall the investigation.
And so far, getting away with it. Let's hope Judge Taylor has a bit more backbone.
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He's also written on the creeping national surveillance state. Apparently Rhode Island has decided if its good enough for the feds, its good enough for them, too. It wants to be able to get phone, Internet, bank, and credit card records without having to bother with all that Fourth Amendment business. I suspect (hope) that the Court will have little trouble keeping the states in line. But then it will have to make a plausible argument for why the federal government gets a constitutional pass when the states do not.
Hang on, folks. This is going to get a lot worse before it gets any better.