The 180-degree reversal of Obama's State Secrets position

Democrats long objected to exactly the power that the Obama DOJ yesterday expressly advocated be vested in the new president.

Published February 10, 2009 12:16PM (EST)

(updated below - Update II - Update III - Update IV)

From the Obama/Biden campaign website,, here was what the Obama campaign was saying -- back then -- about the State Secrets privilege:

Apparently, the operative word in that highlighted paragraph -- unbeknownst to most people at the time -- was "the Bush administration," since the Obama administration is now doing exactly that which, during the campaign, it defined as "The Problem," the only difference being that it is now Obama, and not Bush, doing it.  For journalists who haven't bothered to learn the first thing about this issue even as they hold themselves out as experts on it, and for Obama followers eager to find an excuse to justify what was done, a brief review of the State Secrets privilege controversy is in order. 

Nobody -- not the ACLU or anyone else -- argues that the State Secrets privilege is inherently invalid.  Nobody contests that there is such a thing as a legitimate state secret.  Nobody believes that Obama should declassify every last secret and never classify anything else ever again.  Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege.  Those are all transparent, moronic strawmen advanced by people who have no idea what they're talking about.

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  That is the theory that caused the bulk of the controversy when used by the Bush DOJ -- because it shields entire government programs from any judicial scrutiny -- and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).  

Go read any critic of Bush's use of the State Secrets privilege and those are the objections you will find (.pdf).  Kevin Drum last night explained it quite clearly:

By itself, this [the quantitative increase in the post-9/11 use of the privilege] is bad enough. But it's not the worst part of the Bush administration's use of the privilege.

Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What's more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.

Now Barack Obama is president, and unfortunately he's decided to continue the Bush administration's expansive reading of the privilege.

To underscore just what a complete reversal the Obama DOJ's conduct is, consider what Seante Democrats were saying for the last several years.  In early 2008, Sens. Kennedy and Leahy, along with Sen. Arlen Specter, sponsored the State Secrets Protection Act.  It had numerous co-sponsors, including Joe Biden.  In April, 2008, the Senate Judiciary Committee approved the bill, with all Committee Democrats voting for it, along with Specter.  The scheme of restrictions imposed on the privilege by that bill was the consensus view of the pre-2009 Democratic Party.

The primary purpose of that bill is to bar the precise use of the State Secrets privilege which the Obama DOJ yesterday defended:   namely, as a tool to force courts to dismiss entire lawsuits from the start without any proceedings being held, rather than as a focused instrument for protecting specific pieces of classified information from disclosure. 

That bill explicitly provides that "the state secrets privilege shall not constitute grounds for dismissal of a case or claim" (Sec. 4053(b)).  Instead, the President could only "invoke the state secrets privilege as a ground for withholding information or evidence in discovery or for preventing the introduction of evidence at trial" (Sec. 4054(a)), and must submit each allegedly privileged piece of evidence to the court for the court to determine whether each item is legitimately subject to the privilege (Sec. 4054(d-e).  Where the court rules that a specific piece of evidence is privileged, it must attempt to find an evidentiary substitute (e.g., a summary of the evidence, a partially redacted copy, compelled admissions by the Government of certain allegations), and then -- only after all the evidence is gathered in discovery -- can the court dismiss the lawsuit only if it finds, in essence, that the plaintiffs cannot prove their case without reliance on the specific privileged information (Sec. 4055).

That has been the argument of Democrats for quite some time -- as well as civil libertarians such as Russ Feingold and the ACLU, both of whom endorsed that bill:  that what was abusive and dangerous about Bush's use of the State Secrets privilege was the preemptive, generalized use of this privilege to force dismissal of entire lawsuits in advance, even where the supposed secret to be concealed was the allegedly criminal activity itself.  And that is exactly the usage that the Obama administration is now defending. 

It doesn't take much time or energy to understand why that instrument is so pernicious.  It enables a Government to break the law -- repeatedly and deliberately -- and then block courts from subjecting its behavior to any judicial accountability, and prevent the public from learning about the lawbreaking, by claiming that its conduct generally is too secret to allow any judicial review.  Put another way, it places Presidents and their aides beyond and above the rule of law, since it empowers them to break the law and then prevent their victims -- or anyone else -- from holding them accountable in a court of law.  As Russ Feingold put it:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

In defending the Obama administration's position (without beginning to understand it), The Atlantic's Marc Ambinder revealingly wrote -- on behalf of civil libertarians who he fantasizes have anointed him their spokesman:

It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)

We don't actually have a system of government (or at least we're not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely.  That, by definition, is how grateful subjects of benevolent tyrants think ("this power was bad in Bush's hands because he's bad, but it's OK in Obama's hands because he is good and kind").  Countries that are nations of laws rather than of men don't rely on blind faith in the good character of leaders to prevent abuse.  They rely on what we call "law" and "accountability" and "checks and balances" to provide those safeguards -- exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.  

Democrats have large majorities in both houses of Congress; they ought to use it to legislatively bar the power that the Obama DOJ is now attempting to vest in the new President by enacting the legislation they spent all of last year insisting they favored.  Now that the Obama DOJ is seeking to acquire that power for its new President, the need for that law is more acute than ever.


UPDATEWriting at FDL in September, 2008, Obama's new OLC official, Assistant Attorney General Marty Lederman, criticized the exact State Secrets privilege theory embraced yesterday by the Obama DOJ:

The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.

On his own blog in October, 2007, Lederman advocated -- as an antidote to the injustices of telecom immunity -- Congressional legislation designed to bar the use of the State Secrets privilege as a means for preventing judicial scrutiny of the NSA eavesdropping program, arguing that Congress "should also insist on a statutory amendment limiting the scope of any 'state secrets' privilege to allow courts to adjudicate the legality of the NSA program without publicly revealing technological capabilities that must remain public."  Virtually all critics of Bush's executive power abuses would be vehemently opposed -- and, in the past, have been -- to the theories advanced yesterday by the Obama DOJ.


UPDATE II:  When Sen. Kennedy introduced the State Secrets Protection Act in January, 2008, he reviewed the history of abuse of the privilege by the Bush administration and specifically highlighted as an example of abuse the Bush DOJ's invocation of the privilege to prevent litigation of rendition cases:

In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence. Some courts have even upheld the executive’s claims of state secrets when the purported secrets were publicly available, as in the case of El-Masri v. Tenet.

In that case, there was extensive evidence in the public record that the plaintiff was kidnapped and tortured by the CIA on the basis of mistaken identity, but the court simply accepted at face value the government’s claim that litigation would require disclosure of state secrets. The court dismissed Mr. El-Masri’s case without even evaluating the evidence or considering whether the case could be litigated on other evidence.

When federal courts accept the executive branch’s state secrets claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice.

That's exactly -- exactly -- what the Obama administration is now doing.


UPDATE III:  At his new Washington Post blog, the tenacious Greg Sargent reports that Sen. Russ Feingold is strongly condemning the Obama administration's conduct in this case:

Senator Russ Feingold is sharply criticizing the Obama administration over its controversial decision to maintain the Bush administration’s position in a closely watched lawsuit involving alleged victims of extraordinary rendition, a decision that generated a storm of criticism yesterday.

“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party. . . .

[The DOJ statements are] unlikely to satisfy Feingold, who reiterated in his statement to me that he’s pushing for new legislation to “give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct.”

There is no reason to rely on Obama's good character or judgment, particularly since he has demonstrated that it's insufficient.  The same legislation that Democrats claimed to support last year, to restrict the use of the State Secrets privilege, should be enacted to prevent its ongoing abuse.


UPDATE IV:  One of the plaintiffs in the case which the Obama DOJ is seeking to have dismissed is Ethiopian citizen and British resident Binyam Mohamed, who is currently close to death at Guantanamo due to a hunger strike.  It is his case in England, against the British government for its complicity in his torture and rendition, that prompted a British court to conclude that although there was very credible evidence to substantiate his claims of brutal torture, they would not disclose any of the relevant information due to threats from the U.S. to terminate intelligence-sharing agreements with Britain.

On Monday night, Jon Snow on Channel 4 News in London broadcast an excellent report on Mohamed's plight, featuring the heroic work of Mohamed's lawyer, Air Force Lt. Col. Yvonne Bradley.  The report was broadcast the night before the hearing in San Fransisco where the Obama DOJ adopted Bush's state secrets argument.  It is highly worth watching, and as one reviews the full extent of already disclosed facts about what happened here, one can only marvel at how patently frivolous is the Obama DOJ's claim that litigation of this case would risk disclosure of vital state secrets:


By Glenn Greenwald

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