Limiting "state secrets" privilege

Either this is a way of the White House giving in on state secrecy or the Justice Department is doing it's own thing.  Attorney General Eric Holder is about to initiate a limitatation on the use of the "state secrets privilege" by the executive branch after eight years of Bush-Cheney's big brother government.  It's a start.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

The overuse of government "privilege" goes back to a McCarthy era law.  Bills filed by Democrats in Congress recognize that the standard imposed in 1953 -- "reasonable danger" to national security -- has effectively prevented the courts from doing their job when lawsuits have been filed.

The bills would encourage courts to find a way for lawsuits to continue, even if particular documents or information must be withheld. They would also require judges to take a more searching look at executive branch claims that certain evidence cannot be used in court because its disclosure would result in a “significant harm” to national security.

We've gotten used to government intervening in order to backstop the law.  Anything which restores constitutional law and diminishes arbitrary power exerted by government officials should be welcome.  But, as the Washington Post points out, we have some distance to go before the White House plays fair.

The policy, however, is unlikely to change the administration's approach in two high-profile cases, including one in San Francisco filed by an Islamic charity whose lawyers claim they were subjected to illegal government wiretapping. That dispute, involving the al-Haramain Islamic Foundation, provoked an outcry from the American Civil Liberties Union and other public policy groups this year after the Obama Justice Department followed the Bush strategy and asserted "state secrets" arguments to try to stop the case.

In a separate lawsuit filed by five men who say they were transported overseas to CIA "black site" prisons, where they underwent brutal interrogation, the U.S. Court of Appeals for the 9th Circuit this year criticized the Justice Department for making a sweeping argument to scuttle the case and keep even judges from reviewing materials.

To side with the government, the court ruling said, would mean that judges "should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

In a news conference the day after the court's ruling, Obama told reporters that he thought the privilege was "overbroad" and could be curtailed.

Sooner better, Mr. President.