"What does 'ultimate deference' mean? Bow to it?"

Terrific op-ed in the LA Times over the weekend by Barry Siegel on the Bush administration's frequent use of the state secrets privilege.

Between 1953 and 1976, the government invoked the privilege in only five cases; between 1977 and 2001, in 59 cases. In the last six years, the Bush administration has invoked it 39 times, according to the best available count—or more than six times every year. Along with the numbers, the scope and definition of what constitutes a state secret has expanded—now including what one judicial decision described as "bits and pieces of seemingly innocuous information" that might form a revealing "mosaic."

Government lawyers have found that merely waving the Reynolds flag in the background for effect gains them deference from judges. Rarely has a court rejected a government claim of privilege.

[…]

Over time, the desire to protect military secrets has started to look a good deal like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability.

But a few federal judges are finally getting fed up:

In the summer of 2006, U.S. District Judge Vaughn R. Walker in San Francisco and District Judge Anna Diggs Taylor in Detroit ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases. "It is important to note that even the state secrets privilege has its limits," Walker wrote. "While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. . . . To defer to a blanket assertion of secrecy here would be to abdicate that duty."

[…]

Pregerson wondered what roles judges were to play when the executive branch invoked state secrets: "Who decides whether something is a state secret or not?"

Hearing the deputy solicitor general talk of "ultimate deference" due the executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow to it?"

.