“What he seems to be outlining is a process to help to decide when to use it, not necessarily how to use it,” says Ken Gude, an expers on state secrets at the Center for American Progress. “One of the main criticisms of the doctrine as it’s applied is the attempt to use it to dismiss cases in discovery.”
And the president did not suggest that this supposed new review would have made a difference in any single decision to evoke that broad assertion of the privilege.
As far as congressional oversight of the privilege, Obama promises to “voluntarily” report to Congress annually on the number of times the administration uses the privilege and why it did so. But this information is already available; arguments claiming the privilege are made in open court, along with the administration’s public rationale.
“Going through that process is a positive step, but it’s not revolutionary,” says Gude, adding that the annual report might serve to engage Congress, the press, and outside advocates on the oft-overlooked topic of state secrets. “They don’t deserve a medal, but I’d rather have them doing this than not.”
Gude also points to Obama’s insistence that the doctrine not be used to repress information “merely because it reveals the violation of a law or embarrasses the government.”
“He’s saying he’s going to apply this on a good faith basis. And I appreciate that,” says Gude. “But I’d like to find a way to hold the same standard to his successors.”
In Gude’s mind, the best way to do that would be for Congress to pass, and the president to sign, the State Secrets Protection Act, a bill requiring judges to examine evidence that the government claims is privileged, and promoting standard procedures for trying cases where the government evokes the privilege.
It too went unmentioned this morning.