05/15/2009 05:12 am ET Updated May 25, 2011

Biden Won't Comment On State Secrets Law He Once Co-Sponsored

The Vice President's office is declining to weigh in on a bill that would restrict use of the "state secrets privilege" by the Department of Justice, despite the fact that, as a senator, Joe Biden co-sponsored that very piece of legislation.

"No comment on this from here," emailed Jay Carney, the vice president's communications director, when asked for Biden's position on a bill that would limit DOJ's ability to dismiss cases against government officials involved in warrantless wiretapping on grounds that sensitive information would be publicized.

The silence from the Vice President's office comes as the White House, too, has refused to comment on the new version of the legislation, introduced by Sens. Patrick Leahy, Ted Kennedy and Russ Feingold. The administration's general stance, as described by a White House official, has been that the DOJ "is reviewing the state secrets privilege to determine when it should be invoked" -- meaning that a new set of standards could be advocated by the Obama White House irrespective of Congress.

Already, however, critics and observers are taking the president to task for resorting to a Bush administration-used policy that he himself had criticized on the campaign trail.

The friction came to a head during the case Jewel v. NSA, in which the Obama Department of Justice argued that, "after careful consideration," it was determined that pursuing this case "could unavoidably put at risk the disclosure of sensitive information that would harm national security."

Under the law introduced by Leahy, Kennedy and Feingold (and earlier, by Biden), the government could "intervene in any civil action in order to protect information that may be subject to the state secrets privilege." Authorities, however, could not use the state secrets privilege "for dismissal of a case or claim."

Marc Ambinder, following this story over at the Atlantic, notes that another legal quibble surrounds the power the congressional legislation gives to judges to determine what information constitutes a national security related secret. The Obama White House believes such a task is the function of the executive branch. Whether they have a proper or sufficient claim on this front is subject to constitutional debate. But as Ambinder concludes: "Make no mistake: Obama will be rolling back the spirit, if not the fact, of a campaign promise by opposing this bill."

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