Big Break From Bush on ‘State Secrets’ Unlikely Under Obama

By
Thursday, April 09, 2009 at 12:01 am
Attorney General Eric Holder and Kaite Couric (CBS News)

Attorney General Eric Holder and Katie Couric (CBS News)

In an interview that aired Wednesday night on the CBS Evening News, Attorney General Eric Holder suggested to Katie Couric that the Obama administration is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege, noting just one case out of about 20 currently under review in which the Justice Department is seriously considering changing its stance. He did not say which case that was.

Most likely, the reversal won’t come in the case of Jewel v. NSA, because Holder’s Justice Department Friday again broadly asserted the “state secrets” privilege as a grounds for dismissing the case, brought by AT&T customers alleging the government used dragnet surveillance to monitor the domestic telephone communications of millions of ordinary Americans.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

The Department of Justice – first under President George W. Bush and now under President Obama – has repeatedly invoked this executive privilege, which allows the president to prevent public disclosure of evidence in court by claiming that its release would endanger national security. And increasingly, the Department of Justice has used the privilege not only to prevent public disclosure of documents, but to dismiss entire cases brought by victims of illegal policies, claiming that the subject matter of the case itself is a state secret, and that even the judge shouldn’t review the documents in private. A recent report by the Constitution Project, a bipartisan think tank, found that the Bush administration used the privilege to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs” in 92 percent more cases per year than in the previous decade.

Last night, Holder told Couric that after he took over the attorney general’s office, he asked lawyers in the Justice Department to see “if there’s a way where we can be more surgical, whether there is a way in which we can share more information.” The state secrets privilege, he said, is appropriately invoked “at certain times”, but “I want to make sure that we only do it where it’s absolutely necessary. I would only apply the doctrine where national security was at stake, where the lives of the American people were at stake,” he said.

Yet it’s difficult to see that standard at work in the recent cases where the Justice Department has invoked the state secrets privilege.

For example, in a federal court in San Francisco on Friday, the Obama Justice Department moved to dismiss the Jewel case based in part on the state secrets privilege. The AT&T customers who filed suit, represented by the Electronic Freedom Foundation, claim the National Security Agency illegally intercepted their calls and obtained their phone records as part of a broad-reaching, ongoing national security surveillance program and in violation of the First and Fourth Amendments of the United States Constitution, the separation of powers doctrine and federal statutes.

In its legal brief filed with the court, the government’s lawyers claim the case must be dismissed because allowing it to go forward at all would disclose information about the NSA surveillance program, which is itself a state secret. Disclosure of the information the customers want to see, claims the government, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in their filing.

This is the second attempt by ordinary AT&T customers to learn more about the government’s secret domestic wiretapping program and to hold the government or a company that assisted it accountable. An earlier case, also brought by the Electronic Frontier Foundation against AT&T itself, was quashed when, after the Bush administration had made the state secrets arguments in court, Congress passed a law granting immunity to AT&T and other telecommunications companies from lawsuits from customers who claimed the companies helped the government spy on them.

The broad use of the state secrets privilege to dismiss entire court cases challenging unlawful government actions has outraged civil liberties and open government groups such as the American Civil Liberties Union and Center for Constitutional Rights. Such advocates had counted on Obama’s promises in the first days of his presidency to run a more transparent government than his predecessor. But the Obama Justice Department already, in several cases seeking information about Bush administration counter-terrorism activities, has invoked the state secrets privilege to prevent the disclosure of critical evidence.

For example, in Al-Haramain Islamic Foundation v. Obama, which TWI has been following, the Obama administration asserted that the Bush administration’s domestic warrantless wiretapping program, or Terrorist Surveillance Program, is a state secret that cannot be revealed without endangering national security. Never mind that President George W. Bush had himself acknowledged the program’s existence, and President Obama has said it is no longer operative.

And in Mohammed v. Jeppesen Dataplan, which TWI first wrote about in January, the Obama administration asserted the state secrets privilege to seek dismissal of a case brought by five victims of the Bush administration’s “extraordinary rendition” program — which transferred prisoners to foreign countries for interrogation under torture. In that case, the victims, including Binyam Mohamed, the British resident I’ve written about, sued the subsidiary of Boeing that allegedly assisted the CIA in its torture program. The Bush administration immediately swooped in and convinced the federal court to dismiss the case because the now-defunct extraordinary rendition program is supposedly a “state secret.” In February, the Obama administration, to the surprise of even some of the judges sitting on the U.S. Court of Appeals for the Ninth Circuit that day, continued to maintain that argument.

During last night’s interview, Couric asked Holder whether he thought the state secrets doctrine had been abused by the Bush administration.

“Well, I don’t know,” said Holder. “On the basis of the two, three cases we’ve had to review so far, I think that the invocation of the doctrine was correct. We – reversed – are in the process of looking at one case. But I think we’re very likely to reverse it.”

Presumably, the three cases he’s referring to are the Jewel, Al-Haramain and Jeppesen Dataplan. But Holder went on to say that there have been more than 20 such assertions in cases that are still open. He added that a report on the Justice Department’s use of the privilege is being prepared, and his “hope is to be able to share the results of that report with the American people.”

Marc Ambinder, who obtained an early transcript of the interview, wrote Wednesday in The Atlantic that a senior Justice Department official “declined to elaborate” on in which case Holder was planning to reverse the department’s position.

Congress, meanwhile, may not leave the matter in Holder’s hands. In February, Rep. Jerold Nadler (D-N.Y.) and several co-sponsors introduced the State Secrets Protection Act of 2009, which would require a federal judge to look at the disputed evidence rather than dismiss the case outright based solely on the government’s assertion that its disclosure would endanger national security. A parallel bill was introduced in the Senate by Sen. Patrick Leahy (D-Vt.) and has six co-sponsors.

Comments

30 Comments

dsaah
Comment posted April 9, 2009 @ 7:07 am

Unbelievable!!


CranialRectalLoopback
Comment posted April 9, 2009 @ 8:49 am

Snowbama is an accomplice after the fact. I hope he one day fries for treason right alongside his compatriot, GW.

Snowbama = Bush in black face


Crabby Abbey
Comment posted April 9, 2009 @ 9:26 am

It's all about 9 / 1 1. That's the state secret that Obama now has to hide. Unbelievable is right.


dollared
Comment posted April 9, 2009 @ 9:27 am

It's good to see President Obama providing this kind of support to the National Green Party. It's work like this from Clinton that got Ralph Nader his 2% in Florida.


Obama to maintain Bush "state secrets" doctrine « Later On
Pingback posted April 9, 2009 @ 1:20 pm

[...] US have no right to know what the government is doing when it spies on them and tortures prisoners. A report in the Washington Independent by Daphne Eviatar: In an interview that aired Wednesday night on the [...]


Hawaiian style
Comment posted April 9, 2009 @ 1:03 pm

There are at least two major problems with the state secrets defense.

First, the defense has no checks and balances that are effective. There is no way to assess whether the defense is a fig leaf to prevent embarrassment or a cover up of wrong doing, or a way to prevent valid criticism. That means it needs definition, oversight and control.

Second, because of the first above, the over use of the defense causes citizens to lose faith in their government. We all know that a democracy depends on an informed citizenry. If you're not informed how can you participate. If you know because of the assertion of “state secrets” that you don't know the facts, and if you can't trust the government because of too many “state secrets” defences then you have no faith in government.

Obama is fast falling into this trap. He is very popular. I'm sure he is human and likes that. The question is, will he do what is right even though it is hard and unpopular, and might even expel him from the most exclusive fraternity in the world, namely the Presidents of the US fraternity.

President Lincoln must at one point in his Presidency faced the question of going to war with the South, and thought, “Why me. Why must I take on this terrible question of cessation from the union and slavery.”
“I wonder if there is a way I can ignore this question. What if I start the war and lose? How can I go to war and kill thousands of former citizens and countrymen?” All of these fears and concerns would have been very natural, but he chose to do the right thing no matter how hard it was.

President Obama has the same choice. He can be a Leader and do what is right regardless of whether it is popular or not. Or, he can be a charismatic politician, solve some problems, but never the crucial problem of the destruction of our liberties or of the abuses of basic human values and actions.

If he chooses to be a leader he will drastically cut back the state secrets defense use. He will overhaul it to ensure that there is a check on its abuse.

He will investigate the torture problem and prosecute those that are to have found to have broken the law.

He will re-examine the Patriot Act (Gad I hate that name) and remove all the provisions that violate the Constitution.

In short he will demonstrate by his actions that terrorism will not change the US, or destroy our values, or frighten us into changing out way of life.

He will become a leader who by HIS ACTIONS leads, and not a charismatic politician that talks but does not act, or one that acts on the easier problems and neglects the essential long impact ones.

He will become a leader that does not confine people and hold and treat them like they are guilty until we get around, if ever, to proving them guilty.

He will not tolerate the interference with justice by simply saying “state secret”.


NorCalNative
Comment posted April 9, 2009 @ 2:08 pm

What kind of Democracy has secret laws?


Brendan Calling » Blog Archive » The Difference Between Liberals and Conservatives
Pingback posted April 10, 2009 @ 9:25 am

[...] seeing liberal Democrat Barack Obama do the same thing, react with public anger, outrage, and contempt in an effort to rein in the president and stop the [...]


Greenwald comments on the Bush-Obama stance « Later On
Pingback posted April 10, 2009 @ 12:29 pm

[...] Last night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and — as The Washington Independent’s Daphne Eviatar noted — Holder was forced to say that he has reviewed the cases where the Obama administration [...]


Drasties - Dutch on the World - World on the Dutch
Pingback posted April 10, 2009 @ 8:25 pm

[...] Last night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and — as The Washington Independent’s Daphne Evitar noted — Holder was forced to say that he has reviewed the cases where the Obama administration [...]


Salaam Shalom
Comment posted April 11, 2009 @ 5:00 am

This is a betrayal by Obama. We must not tolerate leaders who assert the state secrets privilege, regardless of party.


Basil
Comment posted April 11, 2009 @ 8:38 pm

<What kind of democracy> … elects a leader who proceeds to do the exact, precise opposite of what he was elected to do, on the second most important issue in the election? That being restoration fo the constitution?

…the other issue being ending America's foreign wars, on which issue he's also doing the exact opposite.


pl
Comment posted April 12, 2009 @ 6:46 am

he told you he was a racist,socialist during the election campaign.look at who he associates with.


dooly
Comment posted April 12, 2009 @ 12:50 pm

Does any one really think any politician is going to give up any power that was previously given? All we did in the last election was change the names and political parties. The abuse of our Constitution will continue until such time as this country returns to a time where the people govern, instead of the bought and paid for politicians we have now.


Psyche, Science, and Society » Obama and human rights. Shame on me.
Pingback posted April 12, 2009 @ 5:06 pm

[...] we citizens shouldn’t bother our pretty little heads about. After all, they’re “state secrets.” The President said so, you [...]


Anna
Comment posted April 14, 2009 @ 7:46 am

“Snowbama = Bush in black face” –this is a pretty shallow and even racially harmful way to look at the issues. There are bigger structural issues; this isn't about Obama fighting for “the cause” just because he's black.


Hawaiian style
Comment posted April 20, 2009 @ 10:52 am

Lets see…

Change we can believe in…

Torture no prosecution of anyone
Illegal spying, continue the policy
State secrets the defense no change

Change we can believe in, especially if you add, the more things change the more they stay the same.


Hawaiianstyle
Comment posted April 20, 2009 @ 5:52 pm

Lets see…

Change we can believe in…

Torture no prosecution of anyone
Illegal spying, continue the policy
State secrets the defense no change

Change we can believe in, especially if you add, the more things change the more they stay the same.


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TPM: “Obama Mimics Bush on State Secrets”
Pingback posted August 17, 2010 @ 3:32 pm

[...] night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and — as The Washington Independent‘s Daphne Evitar noted — Holder was forced to say that he has reviewed the cases where the Obama administration [...]


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Comment posted February 1, 2011 @ 2:45 am

This is the second attempt by ordinary AT&T customers to learn more about the government’s secret domestic wiretapping program and to hold the government or a company that assisted it accountable.


TPM: “Obama Mimics Bush on State Secrets” - Salon.com
Pingback posted May 21, 2011 @ 7:15 am

[...] night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and — as The Washington Independent‘s Daphne Evitar noted — Holder was forced to say that he has reviewed the cases where the Obama administration [...]


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