Obama Appears Disingenuous on State Secrets

Wednesday, April 29, 2009

Updated below

President Obama was asked a great question by Time‘s Michael Scherer at his press conference tonight:

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 [my link] 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?

Jake Tapper did a good round-up of this issue earlier this month. Kudos to Scherer for finally getting a question about it to Obama himself.

Obama’s immediate response is sure to raise eyebrows:

I actually think that the state secret doctrine should be modified. I think right now it’s over-broad.

Oh? Because on February 9th, your Justice Department lawyer told the 9th circuit court of appeals that your administration’s position on state secrets was identical to the Bush administration’s, adding that the position he was taking on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions.” Obama went on:

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(n) overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

But, in fact, they didn’t have to respond immediately. As Glenn Greenwald pointed out after the first state secrets case,

If this were really the problem — that the Obama DOJ needed more time to review what they wanted to do — then the solution is easy and obvious: you ask the court for more time. You don’t march into court and explicitly advocate a Bush weapon that you’ve spent the last several years excoriating as a dangerous abuse of power…

Seeking more time is exactly what the Obama DOJ did in other cases — so why not here if that were really the reason? And here, the ACLU actually suggested that the DOJ seek an extension and indicated their consent to any extension the DOJ wanted. Even the judges on the panel expected that the Obama DOJ would change positions. And this is a case where obtaining an extension is far easier than in those other cases, since — unlike those other cases — this isn’t about whether someone gets released from detention. It’s only a civil case with far less time-urgency.

So that explanation doesn’t really hold up. Obama went on:

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 an 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.

Fair enough. I don’t think anyone has argued that every government secret ought to be aired in open court whenever the government is sued. But the implication of Obama’s statement is that the state secrets privilege is, inherently, what the Bush administration interpreted it to be (“such a blunt instrument”) – i.e., a tool for dismissing entire lawsuits when the White House determines their subjects to be too sensitive. But the heart of what troubles advocates for transparency and civil liberties is that the Bush administration radically expanded the scope of the privilege.

There’s no one way to assert the state secrets privilege. If the Obama administration believes, as do many legal experts, advocates, and members of Congress, that the proper way to invoke it is to claim that certain documents and information are too sensitive to be admitted into evidence, then allow a judge to review the material in private and rule on whether that claim is valid, they are free to invoke it that way. That doesn’t interfere with any efforts they may want to make to formally narrow the scope of the state secrets privilege through legislation.

Furthermore, and perhaps the most disinegnuous aspect of Obama’s response tonight, the new administration hasn’t just actively embraced the Bush administration position on state secrets. It’s expanded on that position, claiming even broader executive secrecy. In response to a lawsuit against the Bush administration for illegally spying on Americans under its warrantless wiretapping program, the Obama administration asked for dismissal of the suit not just on the state secrets ground but on the grounds of

a brand new “sovereign immunity” claim of breathtaking scope — never before advanced even by the Bush administration — that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is “willful disclosure” of the illegally intercepted communications.

So to recap: the Obama adminstration felt rushed by these cases, but didn’t take the continuance offered by the judges. It wants to rein in the state secrets privilege but chooses to invoke it in the same expanded way as the previous White House. And left unmentioned at all tonight was the new claim of even greater secrecy powers. (Though, for an alternative view, see this intriguing opinion and ensuing comments section discussion, on whether Greenwald has accurately interpreted the expansion of secrecy.)

Why is all this important? There’s no better explanation than the tale of the first time the state secrets privilege was ever invoked:

The judicially created “State Secrets Privilege” was first recognized by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953), a suit brought under the Tort Claims Act by the widows of 3 civilians who died when an Air Force plane crashed. The widows sought to obtain military reports regarding the crash in order to prove that the Air Force was negligent, but the Supreme Court upheld the Government’s refusal to produce the documents on the ground that doing so would divulge military secrets and harm national security. … As it turns out, those Air Force reports were finally released 47 years later — in 2000 — and they contained no military secrets at all, but were suffuse with information showing that there had been gross negligence with regard to the maintenance of the plane’s engines…

This is why judicial review is essential – not to the detriment of national security, but to ensure justice and accountability in the government. The 9th circuit appears to agree, rejecting yesterday the Obama administration argument in one of the three state secrets cases.

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Update 1: As to why Obama might be using the broad state secrets claim in court, if we take him at his word that he’d prefer a narrower privilege, Emily Bazelon at Slate has the best theory I’ve seen.  Obama has shown himself to be a process guy – someone who believes in each branch of government having its assigned role.  So it would makes sense to me on an intellectual level that Obama would want to let the courts and Congress limit executive power, rather than undertake it himself.  But it seems like a risky move, at best, to count on those branches to do it.  Plus, it still doesn’t explain the new sovereign immunity claims.

Update 2: It’s also well worth mentioning that in his press conference, Obama clearly implied that torture has worked and does work as an intelligence gathering tool (referring to it as a “shortcut” that we don’t need to use).  This is similar to what he told the CIA when he spoke there earlier this month, when he said he understood banning torture would make their jobs harder.  Now, clearly Obama has seen a lot of evidence we haven’t been allowed to see.  But all the evidence wehave seen thus far leaves the question of torture’s efficacy extremely open.  Obama’s claim that it works would seem, once again, to highlight the need for more disclosure and deeper investigation, either by an independent panel or a special prosecutor (independent of the question of whether prosecutions per se are warranted).  I think we’ve probably had enough of government officials telling us, on matters of war, torture, and intelligence, “Trust us.”

 Now, it’s probable that Obama means with these statements to reassure the CIA (see again Emily Bazelon’s post linked in update 1).  But I’m really not sold on the idea that the CIA rank and file need or want to be reassured that the President believes torture is effective.  Many of the voices speaking out right now about the ineffectiveness of torture, and its deleterious effects on agents themselves carrying it out, are former CIA officers.

Update 3: Though not directly related, it should be noted that state secrets/sovereign immunity are not the only legal positions with which the Obama administration has surprised and perplexed jurists and civil liberties advocates.  In a move that’s gotten far too little attention, the Obama DoJ filed a brief with the Supreme Court,

 asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant’s lawyer is present, another stark example of the White House seeking to limit rather than expand rights.