Heads I Win; Tails You Lose

Updated below - update II:

According to the New York Times today, the administration will soon announce a new policy regarding claims to the state secrets privilege by the Executive branch. In essence, before the Executive branch can make such an assertion, it must convince itself that it is correct.

Is it possible to lose an argument with yourself? Apparently, the Obama administration wants us to think so and assure us that this new policy constitutes real reform in the arena of official secrecy. They are wrong on so many counts.

First, the President's authority to restrict the dissemination of information in the interest of national security is not an absolute authority that belongs to the President alone, such as the power to pardon. In fact, nowhere is this authority enumerated in the Constitution. Instead, all three co-equal branches of the Federal government have agreed that this authority is inferred by virtue of the President's Article II authority as commander-in-chief of the armed forces and as chief executive responsible for foreign relations. However, the President's constitutional authority in these areas is not absolute -- it is shared with the Congress.

Thus, it is essential that any assertion that the state secrets privilege applies in a specific instance be subject to independent review by the Courts. According to the Times, by virtue of the administration's new policy:

A judge could request access to particular pieces of underlying evidence. The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

The administration apparently anticipates that most if not all judges will be more than willing to simply accept assertions by the Executive. The Congress cannot allow this to happen and must press on to establish a statutory framework for invocation of this privilege which includes an independent judicial review.

The most compelling justification for such an approach are the results of habeas corpus hearings for detainees at Guantanamo following Executive branch loses in both the Hamdan and Boumediene Supreme Court cases. For years, both the Executive and the Congress had resisted providing due process to such detainees on grounds that classified intelligence which could not be disclosed even to judges behind closed doors proved that such detainees were "the worst of the worst." After being compelled by the judiciary to provide due process, in the 33 cases heard to date in which an independent review of the classified national security information was conducted by the courts, in 28 of the cases the presiding judge ruled that the government's evidence was insufficient to legally justify continued detention.

With a "batting average" of .150, the Executive branch couldn't even secure a position in the lineup of the Washington Nationals.

Our money may say "In God We Trust." When it comes to Executive assertions of official secrecy, our motto must be "Show Me (or at least the judge) the Evidence!

Update:

The Department of Justice (DoJ) just released a copy of the Attorney General's memo governing new policies and procedures for invoking the state secrets privilege. Curiously, the press release accompanying the memo states:

Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.

Notwithstanding the above assertion in the DoJ press release, there is nothing in the memo which address facilitating court review. Instead, a footnote acknowledges that "it is also possible that a court may require the Government to satisfy the standards for invoking the privilege in criminal proceedings. ... In such instances, requests to submit filings to satisfy that standard shall be directed to the National Security Division."

So, we have a press release that is not supported by the underlying evidence i.e. the memo. Yet, we are supposed to just trust their assertions?

Update II:

According to statistics compiled by David H. Remes, a habeas lawyer, about 200 detainees have filed suit under habeas corpus through the courts. The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. As such, Executive branch lawyers are now "batting" .210. (h/t Glenn Greenwald)