Friday, November 06, 2009

TigerHawk's right - Obama should apologize to conservatives about the state secrets privilege

TigherHawk and Glenn Greenwald both call out Obama Administration's decision to assert that state secrets require dismissal of the Shubert case brought against the government for secret wiretapping. TigherHawk from the right says Obama should apologize to conservatives for criticizing the same behavior by the Bush Administration, while Greenwald does his usual thing.

I agree with TH, although I think Obama owes at least as much of an apology to us who supported him.

The state secret privilege should rarely be used, if used it should even be more rare to outright remove court consideration of a piece of evidence, and it should almost never be used to outright dismiss a case. And even in that one-in-a-million last category, there should be an administrative procedure established so the plaintiff has a chance at justice in a protected setting. I'll just refer back to Greenwald's outrage on this one.

The CIA had invoked the state secrets privilege, insisting that the case against one of its agents be dropped because he was working covertly and his identity couldn't be revealed. And they keptinsisting that even after his cover had been lifted. When Lamberth found out, he was not a happy judge.

More here. This is yet another data point that restates the obvious: just because the government invokes the state secrets privilege doesn't mean there really are state secrets involved. Congress and the courts, who know this perfectly well, would be wise to demand a wee bit more judicial oversight in these cases instead of allowing the executive absolute discretion. Pat Leahy's State Secrets Protection Act would be a good place to start.

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