Wednesday, September 23, 2009

Look! Look at the Shiny Ball! Look! It's Shiny!

I was heartened and relieved to read this:
The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.
Until I read a little further, and got to this:
Leading Democratic lawmakers in both the House and the Senate have filed bills that would restrict how the privilege could be used. The Obama administration has not taken a position on those bills, but the new policy, which is intended to rein in use of the privilege by erecting greater internal checks and balances against abuse, could blunt momentum in Congress to pass legislation.
And I realized that it's a head fake. One of the things that's been so alarming about the Obama Administration has been their enthusiasm for following in the Bush Administration's footsteps in using the state secrets privilege to keep the press and the citizenry in the dark about not only the policies and clusterfucks they've inherited, but also the policies and clusterfucks they've created. Given Obama's campaign promises involving transparency and open government, promises, I should add, that were instrumental in this writer's early and enthusiastic support for the campaign, it's hard not to be disappointed in how quickly we've gone from brand new day to same old shit.

It's not even that I don't believe that Eric Holder wouldn't or won't do the right thing. It's that in a nation of laws we make rules to fix problems, rules that count no matter who's in charge, and while I believe Eric Holder probably does mostly want to do the right thing, for something as important as when the state can say 'no, sorry, you're not allowed to know that, national security, you know' I don't want to put my trust in the goodness and righteousness of a single man (or those who will come after him). I want to put my trust in a clearly articulated law that spells out when and why and how the government can claim the state secrets privilege, with sunsets, outside enforcement, and clearly articulated consequences for breaking said law, which are not contingent on the character of the enforcing officials.

Cuz that's what the rule of law is all about. And if we learned anything from the Bush Administration's eight years of catastrophic cowboy-ism, it's that if you put your trust in things like character and tradition and settled practice, without clear articulation of laws and limits, then you will eventually and inevitably find yourself dealing with people who don't have character, or respect for tradition and settled practice, and they'll do whatever the fuck they want until they run into those laws and limits, and even that might not stop them.

Which is another reason we need to see high-ranking officials from the Bush Administration on trial for all their various law-breaking. After all, if they didn't do anything wrong, they have nothing to hide. But that's a rant for another day.

Just remember what Louis Brandeis said: Sunshine is the best disinfectant. Let's hope the Obama Administration remembers, and lives up to their campaign promises.

I should add that I do consider this a small step in the right direction. Anything that makes it harder for any government agency to hide anything they're doing behind the state secrets privilege is a good thing, in my book. What concerns me is that by confining the change to administrative policy rather than legislation, the possibility is left open for abuse, so long as Eric Holder or any of his successors can be convinced it's necessary or legitimate.

There's a lot of walking back from a lot of very dangerous moral precipices to be done, thanks to the previous Administration. But even given the sheer quantity of such challeges that we face as a nation and a people, more than baby steps need to be taken back from each and every one of those brinks. Our country and all it's supposed to stand for are at stake.

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