Commentary on the DOJ’s new policy on invoking the “state secrets” privilege has suggested that although it is a slight improvement over the Bush administration policies, it does not go far enough. Steven Aftergood of Secrecy News adds to the growing chorus of concerns:
More surprisingly, the policy seems to have fumbled the question of judicial review. A Justice Department news release about the Attorney General’s memorandum declared promisingly that “in order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence [justifying the privilege] to the court for review.”
But strangely, the memorandum itself says no such thing (as noted by Bill Leonard). Questioned about the discrepancy, a Justice Department official said yesterday that the intent to submit the evidentiary record to the court for review, though left unstated by the Attorney General, was “a necessary inference” and he said that it would be done “in every case.” Maybe so.
And over on The Volokh Conspiracy, Amanda Frost comments:
By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.