Obama on State Secrets: “Trust Us”?

Responses to the Obama administration’s new policy on the invocation of the State Secrets Privilege have been varied, ranging from applause with mild reservations (OMB Watch) to cautiously optimistic (Democratic lawmakers) to outright mockery (emptywheel).  I’ve written several times about the State Secrets privilege, frequently used by the Bush administration to get lawsuits dismissed from, among others, torture and rendition victims, on the basis that adjudication would necessarily reveal sensitive national security information.  As the Obama administration has repeatedly invoked the privilege in the same way, civil libertarians have been eagerly awaiting the results of the Justice Department’s oft-touted “review” of the practice.

What the DoJ came up with are guidelines preventing the use of the privilege except when information can be “reasonably expected to cause significant harm to national security.”  And to determine whether that standard has been met, a more stringent process will be employed, involving several layers of review and approval by the Attorney General personally, any time a government agency wants the privilege invoked.

There are two categories of objection that are emerging in response to the new policies (leaving aside the argument that the government should not be curtailing its secrecy powers at all.)

One camp sees the whole thing as a farce – a promise to self-regulate that is as disingenuous as it is unenforceable.  Says Adam Serwer at the American Prospect, “the new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place.”  After all, while there wasn’t a specific process in place in the Bush DoJ under which the Attorney General had to approve personally all state secrets arguments…but it’s not like there’s any doubt that every Bush AG would have done so.

Giving credence to this view is the fact that, on the very morning the Obama administration was touting its new constraints on the Bush-era state secrets practices, government lawyers went to court to once again maintain the Bush state secrets arguments in a five-year-old lawsuit over allegations of illegal wiretapping by the government.  Says the ACLU, these new policies are great on paper, but the administration doesn’t seem to have any intention of following them.

Another view is less cynical, but not entirely satisfied, as articulated by Rep. Jerry Nadler (D-NY), one of the sponsors of legislation that would reign in the privilege:

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary.

…we must ensure that all of the necessary reforms are codified into law in order to prevent any future administration from abusing the state secrets privilege.

And Roger Strother of OMB Watch, who hailed the new policies on first read, was moved to revisit the issue later in the day to lay out a list of the good and the bad in the DoJ order – though he still calls it a “net positive.”  (It should be noted that one thing everyone seems to agree on is that the new policies lack adequate guidelines/requirements for judicial oversight – i.e., courts ought to be able to review the evidentiary support for a state secrets claim.)

This latter argument gets at something fundamental about this debate: you don’t have to think the Obama administration is craven or disingenuous to think it’s a bad idea for the executive branch to regulate its own secrecy policies.  Even if you think Attorney General Holder will be a champion of open government and will deny applications to use the state secrets privilege except in the most dire circumstances, you also know that “running it by the boss” wouldn’t have been much of a check on secrecy in the previous administration…and it might not be in a future one.

Of course, some people are ok with that – they point out that elections matter, and every President gets to make changes based on his mandate from the people.  But it’s worth remembering that many of the arguments about Bush-era civil liberties and secrecy policies were, at base, arguments about executive power.  It’s not just a question of whether you like a President’s policies, but whether the President ought to have the power to, say, keep secret anything he wants, or detain people indefinitely on his say-so, or order torture.

One of the most striking things about the Obama administration’s approach to these issues has been that, even where it has executed a major break with the previous administration, it has generally done so on its own, avoiding involvement by Congress or the courts.  Obama has unilaterally decided to halt “enhanced interrogation techniques,” to close CIA black sites, to brief Congress more on intelligence matters, to give certain rights to detainees, to better review state secrets arguments.  But it’s fought attempts by Congress to mandate more intelligence oversight, and attempts by the courts to adjudicate the state secrets issue, and attempts by both to give more rights to detainees.  Regardless of how one feels about the policy decisions of any particular administration, there’s a fundamental question of executive power – and how it’s steadily grown – that deserves real debate.