Shh! It's a state secret

The folks at Common Dreams seem to be quite impressed with this WP story on the O-man's emergent new take on the state secrets privilege:

Obama Tightens State Secrets Standard

The Obama administration on Wednesday announced a new policy making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping.

Marcy Wheeler seems much less impressed:

In a nutshell, the Administration's new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn't being done before?

Who is closer to the truth? Marcy, methinks. As this blogger wisely remarks:

...if the Bush Administration taught us anything, it’s that you can get whole teams of Justice Department lawyers to sign off on conduct that’s plainly illegal if that’s what the president wants. In the past, the executive branch’s use the state secrets privilege has amounted to: “Trust us.” Under Obama it’s: “Now you can really, really trust us.”

Turns out Obama's "revisionism" is simply an attempt to stave off some genuinely reformist legislation proposed by Senators Russ Feingold and Pat Leahy. The Feingold/Leahy reforms include the following:

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense

Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely

Establish congressional reporting requirements

Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution

None of these sensible measures appear to play any role in the Obama "reforms." Here's Feingold's response to Obama's efforts:

“While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’”

Last April, Obama admitted that the Bush state secret rules were "overbroad." He discussed certain revisions that his legal team was supposedly working on, such as allowing a judge to review secret information in chambers.

Good idea. So what happened to it?

And why do the better people in Congress have to fight against a Democratic administration on this issue?