Democrats on the House Judiciary Committee are preparing for a confrontation with the White House over the state secrets privilege. Rep. Jerrold Nadler (R-NY), the chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, has called the privilege's expansion during the Bush administration "the greatest threat to liberty in this country."
At an academic conference in Washington today, Nadler noted that the Patriot Act reauthorization, which the White House supports, might come to the floor at the same time as House legislation on the state secrets privilege, about which the White House has been publicly silent -- and privately skeptical.
To a researcher who asked Nadler whether the bills might be combined for leverage, Nadler conceded it was "rational" to assume that was a possibility, but he said in a later interview that the answer says nothing about strategy. "I'm not going into our negotiations with the White House," he says. Still, he acknowledged that, at some point soon, the White House "is not going to be able to be publicly silent."
Two weeks ago, the House Judiciary Committee passed the State Secrets Protection Act of 2009, which empowers federal judges to make final determinations on whether the assertion of the privilege is legitimate. The bill would also prevent the government from using the privilege as a "magical incantation," in Nadler's words, to prevent the evidence discovery process from taking place.
If the government refuses to provide evidence that a judge determines is not subject to the privilege, the judge would be ordered to find in favor of the plaintiff on the matter of fact that the evidence relates to. The principle behind the legislation, Nadler said, is that the executive branch cannot be its own judge.
The Senate Judiciary Committee wants to hear the White House's position before marking up its version of the bill.
Administration officials have said privately that President Obama's lawyers are not likely to support any legislation that weakens the ability of the executive branch to determine what information constitutes a state secret and how to protect that information from disclosure.
The administration has promised publicly to be more judicious when using the privilege. In September, the Justice Department announced new guidelines for asserting the privilege. Federal prosecutors must now show that the information in question would cause "significant harm" even if it were to be disclosed to plaintiffs in a classified setting. Attorney General Eric Holder and a team of deputies are to review each prospective privilege assertion. The Justice guidelines allow for judicial review, and the department has promised to adhere to the rulings of a court.
Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.