Obama's Coming Clash With Congress On "State Secrets"

They no-commented me last week, and they're stonewalling Greg Sargent this week: the White House refuses to say whether the President supports the State Secrets Protection Act in Congress.  As a candidate, Obama supported the principles espoused in a similar piece of legislation, but he did not sign on to the bill as a cosponsor.  My reporting leads me to believe that senior administration officials, including the White House counsel, Gregory Craig, oppose the current version of the legislation because they believe it would overturn an important, established precedent and weaken the ability of the president to protect national security. 

Specifically, the White House objects to the provision to " 

prohibi[t] an in camera hearing, however, based on the assertion of the state secrets privilege, if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets." 

 The executive branch wants to preserve the exclusive power to determine what constitutes a "national security fact" or a legitimate state secret.  In the bill, judges are given that power.   The White House also worries that the permission given to judges to

 "conduct hearings (or portions) ex parte if the court determines, following in camera review of the evidence, that the interests of justice and national security cannot adequately be protected through attorney security clearances, protective orders, sealed opinions or orders, and special masters" 

....would abrogate the executive branch's constitutional duty to preserve and properly safeguard national security-related secrets.  Therefore, you can see why this passage requiring:

"....the court to give substantial weight to an assertion by the United States relating to why public disclosure of an item of evidence would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States

might not mollify the concerns of the White House's national security brain trust.  

I do not know whether the White House supports the bill's prohibition on using the privilege to quash civil suits in toto without sufficient discovery -- " the state secrets privilege shall not constitute grounds for dismissal of a case or claim," but given their actions to date, I would suspect that they're troubled by this grant of power to the judiciary branch, too.

Make no mistake: Obama will be rolling back the spirit, if  not the fact, of a campaign promise by opposing this bill.