Further proof that Twitter is poised to become the last nail in the coffin of rational discourse in this country.

The new guidelines are imperfect. There is a need to empower the court--or at least a court, some Article III judge somewhere in the system, to make an informed decision about as to whether invocation of the privilege is justified by the facts, instead of just having to take the DoJ's word for it. And, they need to be codified into statutory law instead of being rules the next administration--or theoretically even this one--can sweep aside.

But snidely implying this isn't a very significant change in the way things have been done since the State Secrets privilege was invented is both wrong-headed and disengenuious. So is pretending like every AG is going to be the kind of obsequious, fulsome valet that Gonzo was. He's right that it's a potential problem because Republican presidents tend to appoint lockstep toadies to the job--John Mitchell, Ed Meese and John Ashcroft come to mind--whereas Democrats tend to appoint people who take that whole "uniquely independent cabinet appointee" thing seriously. (Smetimes even to infuriating degrees, e.g. Griffin Bell and Janet Reno.) But it's also true that the obsequious toadies' toadying regularly gets the president mired in scandals that result in their replacement by some more independent figure.

Decision-making authority regarding whether to invoke an evidentiary privilege has been removed from the trial attorneys and their immediate supervisors and has been kicked all the way to the top. And that decision is now constrained by explicit criteria rather than just leaving it to the AG's gut or the exigencies of the case. That's a big deal. There is no other evidentiary privilege that gets treated this way. Neither the attorney-client privilege nor the deliberative process privilege, both far more frequently used methods for hiding embarassing or corrupt government conduct from public view--are subjected to this standard.

No, it's not perfect. But it's a sufficiently important improvement to deserve more discussion from an important voice than a tweeted sneer.

Greenwald is an important voice. He's been right about a lot of stuff for a lot of years. In particular, he's been an important voice decrying the increasing irrationality of our public discourse, but he undermines that message by the rapidity with which he can descend into snitty, self-rightous purity-trolling prick mode and twittering is the perfect goad for that tendency.

Greenwald, unlike the blindly loyal apologists for all things Obama is not only rational but consistent and correct. I posted this on another thread but it is worth putting here too. It's a short excerpt from Greenwald's blog on this question of the alleged Obama reform of the state secrets privelege:

"This leads to a more general point: when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

"That's why I called yesterday's announced changes to the state secrets policy a "farce" (here's a Washington Times article today reporting on reactions, including mine). Yes, the changes they announced sound better in theory than what existed previously. It's nice that the DOJ claims it will voluntarily impose a higher burden on itself before asserting the privilege, will require the approval of the Attorney General, will avoid asserting the privilege only to avoid embarrassment over government wrongdoing, etc. But none of that would have altered the Obama administration's controversial, Bush-replicating assertions of the privilege. Not only the Attorney General, but the President himself, explicitly endorsed the specific assertions of the privilege that triggered the controversies in the first place: to block, in advance, lawsuits brought by victims of Bush's torture, rendition and illegal eavesdropping programs. This "new policy" would plainly allow the continuation of that conduct because the decision-makers now -- the DOJ -- are the same ones who asserted the privilege in the first place. So how, in practice, would this change anything?"

The FEDERAL Rules of Civil Procedure provide a sword for this apparent Gordian Knot:

When a party to litigation refuses to comply with the rules of discovery, his pleadings on the subject are stricken.

Assertion of the state secret doctrine is (per my cursory analysis) always germane to liability not damages.

Fine.

The government is free *to refuse to comply with the discovery demand, cede liability,and move on to damages.

Why does this somehow compromise national security?

*True fact: My father once paid five large in sanctions rather than comply with a Federal Rules deposition demand. "Never let them put you under oath", he used to say... Bill Clinton could have used that advice...