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Paul Rigby
02-10-2009, 08:56 PM
The 180-degree reversal of Obama's State Secrets position

By Glenn Greenwald

Tuesday Feb. 10, 2009 07:16 EST

http://www.salon.com/opinion/greenwald/2009/02/10/obama/index.html


From the Obama/Biden campaign website, mybarackobama.com, 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.

UPDATE: Writing 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.

Kate Story
02-11-2009, 02:59 AM
Scary as hell! The only laws left are the laws we the sheeple must follow and obey. I just finished reading the articles addressed in this following link and I urge everyone to read every word. I am trying to stay in a positive mindset, but as you will see the further you read in this page, staying positive for any of us may be the hardest thing we have ever done, but we must not let our spirits be broken.

http://justanothercoverup.com/?p=581#more-581

Cliff Varnell
02-11-2009, 06:06 AM
It may be a tad early to start sharpening our pitch-forks and lighting our torches just yet.

http://politics.theatlantic.com/2009/02/considered_in_light_of_the.php


Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress...

...(M)any Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks...

"These new officials at DOJ, because of their own past arguments, deserve the benefit of the doubt," said Ken Gude, a national security law specialist at the left-leaning Center for American Progress. "I can't imagine that the magic wand has risen over them in the two weeks they've been office, so that they'll say, 'we were wrong, and the Bush Administration was right.'"

"I completely agree with the decision," said William Weaver, a professor at the Unviersity of Texas at El Paso and a long-time critic of the privilege. "You can't unring the bell. Once this stuff is out and it's been released, then it's over."

The senior administration official said that the decision should not be interpreted as a definitive administration statement on accountability for the Bush Administration, or even for the five Mohamed detainees who were tortured.

"We all recognize that it's a very complex and sensitive dynamic, but whatever the answer, discovery in a piece of private litigation is not it. It might be the [Sen. Pat Leahy] truth commission idea, a DOJ truth commission, or even investigations run by the Justice Department. There will be a national clearing of the air," the official said.

"Whether people like it or not, it is going to take us some time to figure us out." a senior administration official said.The pitchforks and torches may be called for yet, but I think a bit more patience with a 3-week old administration might be wise.

David Guyatt
02-11-2009, 11:24 AM
I'm not sure I agree with the Atlantic's position Cliff, and I do wonder if shenanigans are at the root of this.


But based on interviews with current administration officials involved in the case, with Bush administration officials, as well as with national security law experts, a clearer explanation emerges.

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

Let's not forget that Zbig Brzezinski is a "national security" expert of some 30 years standing. But even if he didn't want to turn to Brzezinski he could turn to Robert Gates who has almost as long a background in the National Security Council and CIA and previous to that was in the US Air Force. Dennis Cutler Blair, Obama's Director of National Security is also an old intelligence hand. So I don't think "newness" is at the root of this.

But you are right to say that in the fullness of time we will know if Obama has renegged or not, but I have to say that this move strikes me as being the first political move to prepare the national for a reversal -- the thin edge of the wedge so to speak.