(updated below - Update II)
At last night's presidential press conference, two rather good questions were asked about civil liberties and the rule of law: one by Time's Michael Scherer regarding Obama's use of the state secrets privilege and the other by ABC News' Jake Tapper (I don't think it's coincidental that they are two of the journalists who (for better or worse) interact most extensively with and in the blogosphere; they're also, as a proud Joan Walsh pointed out, both former Salon reporters). One measure of the quality of both questions is that both extracted meaningful and quite new statements from Obama on these critical questions -- statements which, unto themselves, are good enough but (as a borderline-psychic Attaturk impressively predicted I would say) are wildly inconsistent with the actions Obama has thus far taken.
Here's the exchange on the state secrets privilege:
Scherer: Thank you, Mr. President. 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?
Obama: I actually think that the state secret doctrine should be modified. I think right now it's overbroad. . . . [S]earching 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.
While it's nice to hear him finally say that -- it's what virtually all Democrats said up until January 20, 2009 -- it's quite bizarre to hear Obama condemn the state secrets privilege as "overbroad" when used as "such a blunt instrument" given that he himself has been repeatedly doing exactly that from the moment he was inaugurated. TPM's Brian Beutler summarized Obama's answer this way: "State's Secrets Privilege Too Broad. I Know! I've Used It!" The NYT Editorial Page, which has repeatedly inveighed against Obama's use of the privilege to shield the government from judicial review, returned to the topic again today:
Of the many ways that the Bush administration sought to evade accountability for its violations of the law and the Constitution under the cover of battling terrorism, one of the most appalling was its attempt to use inflated claims of state secrecy to slam shut the doors of the nation’s courthouses.
Sadly, the Obama administration also embraced this tactic, even though President Obama criticized the cult of secrecy while running for office, leaving it to the courts to stand up for transparency and accountability.
It can't be emphasized enough that this "state secrets" tactic was not ancillary to the Bush abuses; it was central to them. Secrecy is the linchpin, the key enabling weapon, of all government abuses. That's why Obama's embrace of the radical Bush position has been so deeply troubling. And the excuse Obama gave last night for why he has been doing this is simply inaccurate and misleading:
But keep in mind what happens, is we come in to 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 an overarching reform of that doctrine take? We've got to respond to the immediate case in front of us.
This just is not true. In each of the cases where the Obama DOJ embraced the Bush state secrets theory, the plaintiffs' lawyers were not only willing, but eager, to grant as much time as the Obama DOJ wanted in order for them to figure out what they should do. In response, Obama DOJ lawyers continuously indicated they needed no time, because they were convinced that they were right about the state secrets argument and had approval for their positions at the highest levels. When asked, Robert Gibbs explicitly said that Obama was consulted on the DOJ's positions in these cases and agreed entirely with them: "absolutely, absolutely he does."
In one suit -- Jewel, brought against Bush officials for illegally spying on Americans -- the Obama DOJ had months to decide what they wanted to do (their answer was not due until April); had the luxury of filing the first papers in that lawsuit (the Bush DOJ never responded to that lawsuit); and they still asserted that the "state secrets" privilege bars the court from hearing the case at all. Indeed, in that case, they even filed Affidavits from their national security officials claiming that any attempt by the court at all to consider claims of government lawbreaking would result in "exceptionally grave harm to national security." Even when the Obama DOJ lost in some of these cases, they've taken extraordinary measures -- seeking emergency stays and multiple delays and even threatening courts -- to prevent the court's orders from being applied. If Obama believes that assertions of this power are so "overbroad," why has he been asserting it and then engaging in extraordinary means to defend it?
Worse still, what Obama claimed last night that he favors -- "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" -- already exists. That's what federal courts do all the time when hearing cases involving covert activities. Statutes (including FISA) already provide for exactly those processes, and this is exactly what the ACLU, EFF and others have been advocating be done in cases where the government claims that there are classified matters involved in lawsuits against the government. So if that's what Obama favors, why is his DOJ doing exactly the opposite: demanding that courts not do this and instead dismiss the entire lawsuit in advance?
Much of this might be academic now in light of the 9th Circuit's emphatic rejection earlier this week of the Bush/Obama position on state secrets. It's much easier for Obama to say now that he disapproves of his own theory now that it's increasingly unlikely he'll be able to use it as a shield against judicial review (and for those who have been insisting -- in the face of overwhelming evidence negating it -- that Obama only asserted the Bush powers with the secret hope of losing, note that not even Obama claims this is so; it takes a True Loyalist to invent invisible master plans to justify a leader's actions which not even the leader himself is willing to invoke on his own behalf). Moreover, the fact that there has been such a public outcry over Obama's actions (which, in turn, at least partially led to Scherer's question about it) once again illustrates the need and the benefit of criticizing Obama when he does the wrong thing.
But -- aside from the fact that Obama said the right thing last night on this topic, something we never would have heard from any Bush official -- there are substantive positive aspects to Obama's pretty words. His answer to Scherer's question now makes it extremely difficult (a) for his DOJ to continue to assert this theory in court (now that the President himself has condemned it as "overbroad") and, perhaps most importantly, (b) for the White House to oppose enactment of the State Secrets Act, which seeks to limit the privilege more or less in exactly the way Obama advocated.
This morning, I asked Sen. Feingold -- who has been highly critical of Obama's state secrets behavior and is leading the way in the Senate to enact the State Secrets Act -- what his reaction was to Obama's comments and whether (as Obama claimed) there were any efforts underway by the White House to limit the privilege. This is the statement I received:
I have been very critical of the Obama administration’s decisions to continue the Bush administration’s practice of seeking dismissal of entire cases based on the state secrets privilege. The President’s statement last night, however, was encouraging, and I hope it means that the administration will announce its support for the State Secrets Protection Act, which I have proposed along with several other senators. The administration’s backing would boost the bill’s already strong prospects in the Judiciary Committee and the Senate.
Obama's words on State Secrets last night were nice ones, even though he has contradicted them as fully as possible with his actions thus far. The only question worth asking is whether his actions will now comport with those words.
* * * * *
As for Obama's answer to Tapper on whether he believes the Bush administration "sanctioned torture," what is most significant is that Obama flatly stated that waterboarding -- which Bush officials acknowledged that they ordered -- constitutes "torture." That means that Obama is currently and simultaneously advocating these positions:
* Bush officials ordered torture.
* Torture is a crime.
Unless you're David Broder, Fred Hiatt, Peggy Noonan or Tom Friedman, those premises of Obama's, as a matter of logical reasoning, all necessarily lead to one conclusion (hint: it's not: "This is a time for reflection, not retribution"). Greg Sargent has similar thoughts about the significance of Obama's torture answer.
UPDATE: When asking Obama about whether Bush officials sanctioned torture, Tapper explicitly stated that "torture is a violation of international law and the Geneva Conventions" (it is also a violation of clear domestic criminal law). Obama's acknowledgment that Bush officials did indeed sanction "torture" by, at the very least, ordering waterboarding amounts to a clear concession that Bush officials broke the law. When you combine that conclusion with the "nobody-is-above-the-law" mantra they keep embracing, the case for criminal investigations makes itself.
UPDATE II: Rep. Jerry Nadler, commenting to Greg Sargent on Obama's torture remarks, makes the obvious point:
President Obama said, "They used torture, I believe waterboarding is torture." Once you concede that torture was committed, the law requires that there be an investigation, and if warranted, a prosecution . . . . The president stated in so many words: Waterboarding is torture, the previous administration has admitted that it waterboarded, and torture is a violation of international law. Once this is admitted, there must be an investigation. It forces the Justice Department on this path.
I don't see how that can be contested. As Sargent says: "Expect more like this."