The Obama administration and secrecy

I read an entry on Glenn Greenwald's blog discussing a filing made by the Obama Department of Justice in the case of Al-Haramain v. Obama et al. Greenwald's analysis is that this is an unfortunate turn of events - an opportunity the Obama DOJ had to reverse Bush-era policy, which they let slip by. But after reading the filing, I'm not so sure.

It seems to me the brief is arguing that Classified information is determined by the Executive to be sensitive; only the Executive can determine who has access to it; and that there are case law and statutory precedents supporting their assertions. After reading the references, I don't actually see anything wrong with their reasoning. I think both Congress and the courts have concurred - let the experts (the Executive) be the final arbiters of whether disclosure of a document may be harmful to national security.

I believe what's happening here is that the plaintiffs have advanced the wrong arguments. Instead of asking the Court to compel the Executive to disclose the document, and instead of arguing that the Court could choose to disclose the document itself, they probably should be attacking the classification. There, I think, is the problem. The Executive clearly should be able to keep certain information secret - but there should be limits on what can be classified, and I don't think that argument has been advanced. Certainly it should not be possible for the Executive to classify documents to cover up wrongdoing - which in fact appears to be the tactic in use in this case.

However because the plaintiffs haven't (yet?) advanced that particular argument, the DOJ was not required to address it or advance it for them. Let's see if counsel for Al-Haramain addresses the propriety of the classification of these documents, and how the Obama DOJ responds to that. Until they do so, I think the DOJ is right to protect the concept of keeping classified information secret. That's too large a privilege to give up, especially if it can have serious consequences for national security.