Obama Administration to Revise State Secrets Doctrine:

Earlier this week, the U.S. Court of Appeals rebuffed the Justice Department's assertion of the state secrets doctrine in an effort to dismiss a lawsuit against a company that allegedly facilitated the CIA's extraordinary rendition of several individuals. The decision in Mohamed et al v Jeppesen Dataplan, Inc. is here.

Last night, President Obama indicated an intention to revisit the state secrets doctrine and narrow is application. In response to a question at his press conference, Obama said:

I actually think that the state secret doctrine should be modified. I think right how it's over-broad. But keep in mind what happens is, we come into office, we're in for a week — and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We've got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it's not such a blunt instrument. And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Interestingly enough, the President's comments echo Orin's assessment from February. Stay tuned.

Obama Administration Continues to Defend State Secrets:

The Obama Administration is continuing to defend the use of the state secrets privilege in seeking en banc review of Mohamed v. Jeppesen in the Ninth Circuit. The brief is here. As Marc Ambinder reports, the Obama Administration now "owns the state secrets privilege."