Glenn Greenwald has been on this for months.
Dan Froomkin has, as usual, a good summary. ù
the way the state secrets privilege has typically worked since then is that the government can refuse to publicly disclose a specific item of information if it explains why to the judge. The idea is not that government officials get to tell a judge to dismiss an entire case because they don't want to answer any questions at all.
But it is precisely such a sweeping assertion that the Justice Department -- the Obama Justice Department -- is making in three cases that relate to torture and warrantless wiretapping.
What is motivating Obama's lawyers here? What exactly trumped his promises of transparency and the restoration of the rule of law? It's got to be something big. Is this about not wanting to give up executive power, now that they have it? Is it about protecting Bush-era secrets? Are they terrified of rebellion in the CIA or NSA? Are Justice Department lawyers still somehow under the influence of the old regime?
I have a semi guess, well a hope, actually more a wish than a hope.
Republican Senators are holding up approval of Dawn Johnson as head of the Office of Legal Council. They have made it clear that they will fillibuster the appointment if there is any investigation of Bush administration law breaking.
I hope this is the issue. The reason is that, sooner or later, the Senate will have to approve a head of OLC. Then the Obama administration will have more freedom of action. More importantly, the office in the executive branch which is supposed to tell the rest of the executive that it can't do something is exactly the office of legal council.
Once approved the head of the OLC can say that the Bush/Obama interpretation of the state secrets doctrine is nonsense. Then the Obama DOJ has a perfect excuse for changing their position.
I wish this were the explanation. Not sure I can actually manage hope, but I'm trying.