The President’s Equivocations on State Secrets

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Thursday, April 30, 2009 at 10:35 am

Among the many subjects President Obama addressed at his news conference last night, he gave a brief nod to the increasingly controversial problem of his administration’s broad use of the “state secrets privilege,” which we’ve been following since January.

Here’s last night’s Q & A on the subject:

Q During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right now it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Ok, sounds like a reasonable response, right?  Well, not so fast. 

In the cases where the state secrets issue has come up — notably, in the case of Al-Haramain v. Obama challenging warrantless wiretapping, and in Mohamed v. Jeppesen Dataplan, in which the plaintiff is suing the private company that helped the CIA carry out “extraordinary rendition” and torture — the Department of Justice could have easily asked for more time to consider the application of the “state secrets privilege.”  That’s a no-brainer: any plaintiff’s attorney would have given a new administration extra time to revisit the policy, rather than waste more time and money litigating it in court. But the Justice Department — President Obama’s Justice Department — did not do that.  To the surprise of even the judges on the Ninth Circuit Court of Appeals who heard the Jeppesen case, it insisted that it would assert the state secrets privilege just as broadly as the Bush administration had.  And in the Al-Haramain case, it actually went farther, telling the judge that he had no authority to order release of government documents, even after losing an appeal on the matter.

Now that this issue has become a public embarrassment, however, President Obama has been forced to talk about it. Last night, he said that there should be ways “to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.”

Well, there already are. In fact, the judges in both the cases I cited above have already ruled that they can review the sensitive documents privately and that matters of national security can remain classified, as needed. Nobody was proposing busting open the CIA’s files of classified information about extraordinary rendition and wireless wiretapping and publishing them on the Internet. As the lawyers for the victims suing in those cases said repeatedly, they were happy to work with the court to find ways to protect any truly sensitive information; they just didn’t want their entire case thrown out — and their clients’ ability to seek justice destroyed — by the government’s assertion that the case must be crushed to protect a couple of documents.

Notably, President Obama did not say last night that he supports the State Secrets Protection Act, which would remedy the problem he referred to. In fact, he’s never taken a position on that law, as Greg Sargent has pointed out. Perhaps that’s because it would dilute executive power; the proposed law would prevent courts from dismissing cases based on government assertions that secrets are involved, and instead would require the courts to use already-available procedures to protect the evidence without throwing out the entire case. That sounds, at least, like what Obama said he wanted at Wednesday’s press conference.

Obama may be well-meaning and well-spoken on this issue, and his words last night sounded eminently reasonable. But as I’ve noted before, Attorney General Eric Holder has so far been unwilling to make any real changes to the administration’s attitude toward asserting broad state secrets privileges to dismiss litigation that challenges government lawbreaking.

If he’s going to follow through on the commitments he’s made to open government, Obama will need to do more than just say the right things.

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