As a former editorial writer of almost a decade, I find my sense of craft offended by this editorial on the state secrets privilege in the New York Times the other day. Put simply, it bugs me that the paper of record has nothing interesting or useful to say about this subject--and that it says that nothing so badly. There are people at the Times--start with Charlie Savage--who know this issue well, and Charlie has brought a great deal of interesting and valuable information to the public about the debates that led to the government's Al Aulaqi brief. Editorial-news separation is a good thing, in general, but in this instance (and many others at the Times, frankly) it serves to wall off the editorial staff from the paper's considerable expertise. This is a dumb editorial, and it's worth picking apart, because dumb editorials in the New York Times have a way of both reflecting and spurring on conventional wisdom.
The problems begin with the factual inaccuracy of the editorial's first sentence: "A midnight filing by the Obama administration on Friday, asking a federal judge to throw out a lawsuit because of the so-called state secrets doctrine, again raises a troubling question." I don't doubt that the filing again raises a troubling question, but one thing it does not do is ask a federal judge to throw out the Al Aulaqi lawsuit based on the state secrets doctrine. To the contrary, as I explained in this post, the government explicitly asks the court not to rule based on the privilege. The privilege invocation appears as the fifth of five arguments for dismissal. And the section of the brief that finally makes the argument begins with an explicit request to the court to decide the case on the other grounds presented. It is headed: “The State Secrets Privilege Need Not Be Reached In This Case.” The section opens:
The foregoing threshold legal obstacles supply multiple grounds on which the Court should deny the motion for a preliminary injunction and dismiss the case. The Court therefore need not reach a final reason why this case must be dismissed: information protected by the military and state secrets privilege and related statutory protections is necessary to litigate plaintiff’s claims. Consistent with the judicial admonition that the state secrets privilege be “invoked no more often or extensively than necessary,” . . . the Court should not reach the privilege issue if the case can be resolved on the preceding grounds--particularly given the extraordinary posture of this case.
This brings us to the factual inaccuracy of the Times's second sentence: "Why do the White House and Justice Department continue to invoke this severe legal tool essentially as prior administrations have used it, in the face of a considerable body of opinion that it has been abused and should be significantly reformed?" Truth be told, the invocation in this instance--grudging, backhanded, and non-focal--is really quite different from the invocations by the last administration. The Times may object to all privilege invocations and treat them as one and the same, but this one is actually very cautious.
The editorial then goes on to explain that "Despite President Obama’s promises of reform in this area, the public still cannot reliably distinguish between legitimate and self-serving uses of the national security claims." It waves off with the back of the editorial writer's hand the new procedures Attorney General Eric Holder Jr. announced last year to govern privilege invocations. And it concludes that "Mr. Holder’s assurances haven’t strengthened public confidence because they can’t. That will not happen until there is an independent and trusted mechanism for scrutinizing efforts to use the secrecy claim, and to address judges’ deference to a secrecy-oriented executive."
And then . . . the editorial stops. It does not address what such an "independent and trusted mechanism" might look like. It does not address why the judiciary--which the Times in nearly all other contexts sees as the gold standard of review of executive action--is not good enough to review claims of privilege.
Indeed, it completely ignores the fact that exactly such a mechanism already exists. It is called the federal courts. The Times ignores the nature of the certification that the government makes in privilege claims and the nature of the review that certification receives. In the Ninth Circuit's much-derided recent Jeppesen decision, for example, as Bobby noted in this post, the Justice Department specifically certified to the court that officials at the “highest levels of the Department of Justice" of the new administration had "reviewed the assertion of privilege in this case and determined that it was appropriate under the newly announced policies.” The court, in turn, made an “independent conclusion, having reviewed the government’s public and classified declarations, that the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.”
In other words, there is an "independent and trusted mechanism" to review privilege claims--at least, it was trusted until the Times stopped trusting it.
One wonders what the "independent and trusted mechanism" the Times has in mind would actually be, if not judicial review. In the absence of a single word on that subject from the Times, I suspect I know the answer: The only mechanism good enough would involve review by the editorial page of the New York Times.