Question: 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?That comment should get some traction tomorrow. It appears as though Obama has changed his mind on this issue, and if he wants to use the excuse that he simply inherited the problem, I don't care much even if it is not true, as Wired's Threat Level notes:
Obama: I actually think that the state secret doctrine should be modified. I think right now it's overbroad.
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.
There -- 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 in 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. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.
Obama’s explanation has a nice ring to it, but ultimately falls flat.Brain Beutler makes the same point at TPM:
Describing the Justice Department as essentially on auto-pilot when pushing for the blanket dismissal of warrantless wiretapping and extraordinary rendition cases would be reasonable enough if this were Obama’s 14th day in office, instead of his 100th. When the administration first argued Bush’s state secrets position just two days after Obama was sworn in, really, only Threat Level complained.
But since then the Justice Department has unrelentingly continued to push the privilege, including making an argument before the 9th U.S. Circuit Court of Appeals, which rejected the administration’s position on Tuesday.
But it's hard to square (Obama's excuse) with what the administration's actually done. DOJ lawyers haven't asked the courts for more time, or to withhold key pieces of information. Rather, they've argued that these cases--Jewel v NSA, Al-Haramain Islamic Foundation v Obama, and Mohammed v Jeppesen Dataplan--be tossed out entirely. And they've done that by invoking the state secrets privilege. In fact, in Jewel, the administration went so far as to claim "sovereign immunity" for the government from just about any lawsuit involving wiretapping. That position is even more radical than Bush's was.There was also an NYT editorial yesterday re the Jeppesen ruling, The State-Secrets Privilege, Tamed:
It's hard to imagine Obama walking that claim back. But as far as state secrets go, now he's on the record.
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.It appears that Obama didn't like stuff like this, not surprisingly. It is good to see that Obama is apparently willing to change his mind. Of course, we still need to see the results of the Craig/Holder review, and whether they will review previous cases as well. It's also somewhat interesting that Obama mentioned the DoJ review, but didn't mention the State Secrets Protection Act.
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.