The Obama administration came into office pledging greater openness, but in contending that claims of secrecy trump individual claims of the right to recover for serious injuries inflicted by our government, there is no real change from the Bush regime. The intelligence community continues to insist that these claims cannot be fairly litigated without divulging secrets that would do serious damage to our national interest, and the attorney general continues to support that position in pending litigation.

Meanwhile, Congress has been trying to chip away at what it sees as excessive claims of secrecy, especially those in which the executive branch contends that it, and not the courts, has the final say on what must be keep secret and whether a case should be allowed to proceed. There was some hope that the administration would take less of a hard line toward Congress, but so far that is just a hope. The debate in Congress is mainly focused on what kind of procedures should be used to test the claims of secrecy to see which ones are justified, with the viability of these cases depending on the application of that balancing process.

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