This morning, I had a bit of correspondence with an administration lawyer in response to my critique of the New York Times’s state secrets editorial. This lawyer agreed with my argument, but made an additional one concerning the integrity of the state secrets invocation in this case that I had not previously considered. I found it very interesting and valuable and pass it on for readers to chew over.
Attacks on the use of the state secrets privilege in the Al Aulaqi case from outlets like the New York Times all operate at an abstract and general level; while paying lip service to the possibility that there are, in fact, state secrets that are worthy of protection, they pay no attention to the actual secrets that may be at issue in this case. But there is enough material in the public record here to permit some degree of analysis of the propriety of the assertion in this particular instance with specific reference to the specific secrets at issue.