September 29, 2009 | By Kevin Bankston

NYT: New Obama Policy on State Secrets isn't Enough; Reform by Congress is Needed

Today's New York Times included an excellent editorial on the Obama Adminstration's new policy toward the state secrets privilege. Echoing EFF's disappointment in the new procedures, the editorial explains:

The other day, Attorney General Eric Holder Jr. issued new guidelines for invoking the state secrets privilege in the future. They were a positive step forward, on paper, but did not go nearly far enough. Mr. Holder’s much-anticipated reform plan does not include any shift in the Obama administration’s demand for blanket secrecy in pending cases.

EFF's lawsuit against the government over the National Security Agency's warrantless wiretapping program, Jewel v. NSA, is one of those pending cases. As the editorial continues,

Nor does [the new policy] include support for legislation that would mandate thorough court review of state secrets claims made by the executive branch.... In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy “still amounts to an approach of ‘just trust us.’”

If the Obama team is sincere about wanting to end state secrets abuses, it will support the State Secrets Protection Act sponsored in the Senate by Patrick Leahy, the Judiciary Committee chairman, and in the House by Representative Jerrold Nadler, a Democrat of New York. The measure contains safeguards to ensure protection of legitimate secrets. But before ruling on a secrets claim, and possibly dismissing a lawsuit, judges would be required to review the documents or evidence in question instead of just accepting assertions in government affidavits.

The White House's continuing silence about pending legislation to reform the state secrets privilege has caused the issue to stall in Congress. Even though State Secrets Protection Act legislation was introduced in both the House and the Senate this past spring, Congress have been wary of considering those bills without knowing the White House's position. Hopefully, this editorial from the New York Times will convince President Obama that now is the time to take a strong position in favor of those bills' reasonable limits on government secrecy.

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