State Secrets – Power from Constraint

An interesting aspect of the recent en banc decision in Jeppesen is the court’s reliance on the new Obama administration internal procedures to support its “independent conclusion . . . that the government is not invoking the privilege to avoid embarrassment or escape scrutiny of its recent controversial transfer and interrogation policies.”  The administration was smart to adopt those procedures.  They sucked the wind out of the movement in Congress to regulate the state secrets privilege.  It makes “good government” sense to have senior Justice Department eyes minding the use of the state secrets privilege now that it has become such an important issue.  And in this case, a process designed to constrain the Executive and make it more accountable had the effect of strengthening the executive’s hand in court, and thus of strengthening executive power more broadly.   What the court did here is akin to what Bobby argued for in his excellent paper on National Security Fact Deference.  It is also a broader example of how self-constraint in the Executive branch can be empowering, a theme of my book, The Terror Presidency.