Obama Admin Slips New State Secrets Argument Into High Court Brief

The big story from Monday is obviously the Obama administration’s deliberations over various options in handling Guantanamo detainees once the deadline for closing the place arrives. Primarily, there’s debate about where and how they might be housed in the U.S.

But I won’t rehash all that speculation here.  Rather, let’s briefly check in on a different national security issue the Obama administration is ostensibly debating: the State Secrets Privilege, something the Bush administration frequently invoked to dismiss lawsuits, on the grounds that they would require classified information to be revealed.

I’ve written about this issue before, but the New York Times‘ Adam Liptak covers the latest instance: the Obama Justice Department has appended, to a friend-of-the-court brief submitted to the Supreme Court on an unrelated matter, a five-page argument that the State Secrets Privilege is rooted in the Constitution.  I’m no lawyer, but that argument would seem to me aimed at bypassing Congress’s power to restrict the scope of the law.

Moreover, as Liptak notes:

On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.

One has to ask, purely as a matter of consistency: if the Obama administration really wants to restrict the privilege, why does it continue to invoke it in court, repeatedly defend it even in unrelated cases, and seemingly move to protect it from Congressional oversight?

It’s also notable that Liptak is one of the first writers I’ve seen in a major news outlet to call attention to the ignoble beginnings of the State Secrets Privilege:

The Reynolds case [United States v. Reynolds, 1953] concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.

When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.

Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.

There’s no question there are cases in which the government has a valid and genuine need to protect certain information.  But the State Secrets Privilege can be troubling when invoked as broadly as it has been in recent years, as Barack Obama himself argued as a candidate.