On State Secrets and the Lord of the Rings

David Luban has a great post, You Cover It Up, You Own It, over on Balkinization. It's about the Obama administration's support of Bush policies on state secrets.

Here's a nice bit:

One question is whether the state secrets doctrine concerns facts or documents.  That is:  does it mean that government documents cannot be entered into evidence because they are secret?  Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position.

Like many who voted for the man, I'd be very curious about what motivates a decision like this. If it's just continuity until key players are ramped up enough to change the policy - okay. But you'd think if this was so, there would be an attempt to get this across. There have been great strides on secrecy law in the past few weeks - so it's probably too early to pronounce judgement.

But I'm not encouraged.

Luban has a great closer, though:

It's time to throw away the Ring, Frodo, before it hooks you and enslaves you.