Update on the State Secrets Privilege

Over on Volokh, there’s a much better forecast on what the actual results will be of the DOJ’s policy change regarding the state secrets privilege.

By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.

This seems very right to me. I do think the ultimate effect will be just this, that the Executive branch gave up a little ground today in order to fortify its position for tomorrow — and ultimately, it will retain a state secrets privilege of greater scope than it would if have had it not been publicly seen to retreat a few steps now.


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