Charles Fried once stated at a conference on the Reagan administration that the goal of the Reagan legal team was to leave the Office of the Presidency much stronger than the way they found it--that is to allow a future president an easier ride than they had. This means that the administration would push back against any advance on executive branch prerogatives from Congress, the Courts, the media, and the public. It also meant the adoption of a unilateral strategy, complete with the development of unilateral devices, in order to advance preferences that were blocked in the normal channels of doing business. And finally it meant not pushing unilateralism in a way that lost the support of the public and fellow partisans.
The current Bush administration took that advice to heart in the first term, aided of course by the wide berth given it following the 9/11 attacks. But the second term has been set backs a plenty. And it appears that one more may be in the works. Steve Aftergood over at the Federation of American Scientists Secrecy Project tells us that the Supreme Court has is considering hearing an appeal challenging the "state secrets" doctrine.
For those who do not know what this is (as if!), the doctrine was borne out of a 1950s airplane accident (actually a B-29 bomber) that killed three civilian engineers. The widows sought information as to the cause of death, and the government refused to provide it because it endangered national security. After the government lost in the lower courts, the Supreme Court took the case in 1953 and the doctrine was born--where asserted, the executive branch can prevent even the courts from reviewing protected information (this LA Times story does a great job providing an overview of what the doctrine is and why it is at the center of a controversy today).
The courts have supported the doctrine ever since, but the Bush administration has begun to assert it so often that it has finally drawn the ire of the federal courts, and potentially the Supreme Court. Aftergood quotes the petitioners: "The proliferation of cases in which the government has invoked the state secrets privilege, and the lack of guidance from this Court since its 1953 decision in Reynolds, have produced conflict and confusion among the lower courts regarding the proper scope and application of the privilege."
Whatever the outcome, clearly the Bush administration is breaking the Fried rule, and if you listen to them, their own rules about handing off a institution better than they found it.
