The plan calls for increased monitoring and a more stringent review process before the Justice Department will approve requests to apply the privilege, which has been claimed by the government to withhold evidence and halt lawsuits by asserting that certain trials could endanger national security by exposing sensitive evidence.
Charlie Savage, the Pulitzer prize-winning chronicler of expanding executive power, writes in the Times that the administration’s proposal “echoes” the procedures outlined by the proposed House and Senate versions of the State Secrets Protection Act.
For example, both the legislation and, it seems, the Obama administration’s new proposal require the agency claiming the privilege to submit a classified affidavit to the court explaining why the information cannot be made public.
But there are discernible differences, even though the plan is not yet released. Among them is that the bills would require the government to make the evidence behind the affidavit, the evidence it is seeking to exclude, available to a judge for private review. The Justice Department’s new rules would allow the government to withhold, even from such in camera review, any evidence it pleased. In other words, judges could request a look at the evidence, but the Department would be under no obligation to serve it up.
Perhaps the most significant difference is inherent to attempting to reign in overbroad or too-frequent applications of the privilege via legislation, versus doing so by a new internal policy. Internal policies aren’t enforceable in court, which would leave this administration free to ignore its rules. More likely though, a future administration, one even more eager to use the privilege, could rescind the policy at will.