David Luban has an interesting commentary on the Obama Administration's decision to continue the assertion of state secrets privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:
The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.
This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?
The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. . . .
. . . Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.
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