Sens. Ted Kennedy (D-Mass.) and Arlen Specter (R-Pa.) introduced the State Secrets Protection Act. The problem with the state secrets doctrine, a press release from Kennedy’s office explained, “is that sometimes plaintiffs may need that information to show that their rights were violated. If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive.”

The Kennedy-Specter bill would require federal courts to review any invocation of the state secrets privilege in a civil suit, looking not just at government affidavits but at the evidence underlying them. (As state secret law is now practiced, court review is generally not required.) It would also require the attorney general to report to both the House and Senate on any civil case in which the government invokes the privilege. As of early February, the bill was being considered by the Senate Judiciary Committee.

There are a lot of weirdo headlines flying around about this such as Glen Greenwald's assertion that it is designed to reign in Obama. I think thats just posturing.

The states secrets privilege, like the idea that customs can perform random searches without reasonable suspicion, is one of these "ancient legal principals" that was in fact invented whole cloth during the postwar era, and in this instance was used in bad faith in its very first application.

The Obama administration announced a few days ago that they will be reviewing the Bush administration's use of the privilege, which was unusually frequent. This move was also viewed cynically. If they found an unreasonable use of the privilege I don't think they'd miss the chance to score political points against the outgoing administration. If the report comes back all clear, its probably all clear.

I've been waiting for the new political order's first moves on civil liberties. I don't think closing Gitmo mattered. I do think this matters, and its positive.