In September 2009 Attorney General Holder announced a new State Secrets policy that we and others in the openness and accountability community welcomed as an important step towards placing some much needed checks and balances on the use of the privilege. Even as we cheered the announcement, though, we noted that critical questions remained about how the policy would be implemented and judicial review of claims was still necessary. More than two years into the policy's implementation, we are beginning to get a sense of some of those answers. And it does not look good for open and accountable government.
Simply put, the Obama Administration has a lot of work to do before its use of the State Secrets privilege meets up with the President's commitment to creating an unprecedented level of open and accountable government.
Given that the Administration's policy has not made any discernible difference in the way this Administration views and uses the privilege compared to the previous Administration, it may indeed take an act of Congress to place meaningful limits on its use. Proposals to reform the use of the privilege to ensure basic civil liberties are not easily swept aside due to overbroad claims of secrecy have been introduced during the last few sessions of Congress (most recently Representative Nadler introduced the House version of a bill this past week). Such proposals have yet to draw broad support in either Chamber, however.