A Quick Primer on the State Secrets Privilege

As I reported earlier, President Obama’s Justice Department today stood up in court and asserted the so-called “state secrets” privilege to argue, like the Bush administration before it, that the case of five victims of the CIA’s “extraordinary rendition” and torture program must be dismissed.

But what is the “state secrets” privilege anyway?

The Center for Constitutional Rights has a useful primer on the privilege on its Website, explaining that it’s a privilege that “allows the head of an executive department to REFUSE to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relation interests if disclosed.

Here’s CCR’s view on why that’s a bad thing:

The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

While that might seem a little one-sided, in truth, that’s pretty much how it worked in the case today.  Although the case was filed against Jeppesen Dataplan, the Boeing subsidiary that helped arrange the CIA’s rendition flights, the government intervened in the case and argued that the “state secrets” privilege required the court to dismiss it.

Why?

Normally, a judge reviews sensitive evidence that comes up in a case and allows it to be filed under seal (out of public sight) if it’s classified or raises issues of national security.  But the government — first the Bush administration, and now the Obama administration — is arguing that only the executive can decide what information should be released to the public.  And in this case, it said, ANY information revealed about the CIA’s extraordinary rendition plan would endanger national security.  Never mind that former CIA director George Tenet and even former President George W. Bush had spoken publicly about the program and defended it.

So you can understand CCR’s criticism:  in this case, it certainly does seem to undermine the very notion of an independent judiciary objectively applying the law to the facts. And it suggests that, much like its predecessor, the Obama administration is endorsing a broad view not only state secrets, but of executive power itself.