Obama and State Secrets

Last night, Obama suggested that his Administration may be in the process of softening their Cheneyesque stance on state secrets.

Q 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?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right how it’s over-broad. 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 an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

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.

Now, at one level, this is unsurprising. As I reported last week, Jerry Nadler reported that Eric Holder appeared to agree in principle with Nadler’s efforts to reform state secrets.

But the claim that, "we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up"? That I’ve got limited patience with. True, the Administration did have a bunch of state secrets cases come up right at the beginning of the term. True, many of those came up even before Eric Holder was confirmed.

But the most hysterical legal invocation of secrets (though not the most morally problematic one, which I consider Binyam Mohammed’s case) came in response to the 9th Circuit’s rejection of the Administration’s al-Haramain appeal. That was February 28, more than a month after Obama was inaugurated, and several weeks after Holder was confirmed. Mind you, that was not a formal invocation of state secrets (I’ll explain why I think that’s significant in a second)–it was a reaffirmation of the 9th Circuit’s prior ruling that state secrets had been properly invoked in that case. But it was a crazy, Cheneyesque claim to fairly unlimited powers on the part of the executive to control classification.

So I don’t buy that Obama (or just as importantly, Greg Craig) has been planning to roll back Bush’s use of state secrets. Rather, I think the Administration (and particularly Greg Craig) has gotten interested in "fixing" state secrets because it’s going to be fixed one way or another, and by joining in now, they’ll be able to limit how it gets rolled back.

Consider the way the Obama Administration dealt with the Rove and Miers’ testimony. They could (and still might, if and when Dawn Johnsen ever gets confirmed) have ended that squabble simply by withdrawing the Bradbury memo laying out absolute immunity. Or, they could have briefed the Circuit Court but argued against the claim. Instead, they negotiated a settlement that–while it left Bates’ District Court ruling on the books–still left somewhat unsettled the status of absolute immunity. Greg Craig got involved in a way that yielded actual results, without ceding the principle that the executive can make crazy unilateral grabs to power.

So look where we are now. There have been a great number of rulings recently that assert the Courts’ authority in determining the appropriate way to deal with classified information in trials. The 9th–the same circuit that will rule on all the pending wiretap cases–just issued a ruling which limits the invocation of state secrets to evidence, not programs.

Now, consider how that ruling hangs over the al-Haramain case. Judge Walker will now be obligated to review the pieces of evidence in the al-Haramin suit to determine what can and cannot be entered into evidence. That is precisely the stance the Cheneyesque al-Haramain brief–with its threat to take its evidence and go home rather than have Judge Walker rule on whether al-Haramain could have access to it–tried to prevent. So in the most recent of these kinds of briefs submitted by the government, it was frantically trying to claim that the government gets to determine on an evidence by evidence basis what could be used in the suit. But that stance is–so long as the recent 9th Circuit ruling stands–no longer possible.

The Courts are moving rapidly to sharply curtail state secrets. So if Obama (and Greg Craig) want to retain it, they’ve got just one choice–to deal with Congress. And I suspect that’s what Obama (and Greg Craig and Holder) are up to–trying to influence what those "additional tools" will be. 

36 replies
  1. phred says:

    Turley didn’t bite on that lame excuse either.

    I agree, Team Obama wants to preserve as much Presidential authority as they can (since Craig explicitly said so). The Courts aren’t falling in line, so now they have to see if they can get Congress to give them the goods. If Congress capitulates (as I fully expect them to do), it will remain to be seen whether the Courts will just say, “oh, ok, as long as Congress says so”. I kinda think that won’t happen. I think Bush pushed too far, Obama is following the same course and it seems to me we have several fed up federal judges. At the moment, our 3rd branch is my favorite branch…

  2. lysias says:

    Why didn’t they just ask for a continuance until they could decide how to handle the state secrets issue? At oral argument in Jeppesen, the judges of the Ninth Circuit made it pretty clear that they would have granted such a motion.

  3. BoxTurtle says:

    And why in the world doesn’t the government simply settle without admitting wrongdoing? Nobody else is likely to get the lucky break al-H got in discovery, this is likely to be a one time suit. So it costs $XX million, more than that has already been spent to get us nowhere.

    If the government settles, they can take their evidence and go home.

    Boxturtle (Everybody has his price…and these are lawyers, after all!)

  4. bmaz says:

    That is precisely the stance the Cheneyesque al-Haramain ruling–with its threat to take its evidence and go home rather than have Judge Walker rule on whether al-Haramain could have access to it–tried to prevent

    Eh, shouldn’t “ruling” read “argument”?

  5. Nell says:

    lysias is entirely right that the failure to ask for a continuance deals handily with the lame ‘we had no time’ excuse.

    On top of that, though, is the existence of the ‘100 Days’ campaign by an alliance of human rights and civil liberties organizations, which communicated their priorities and the cases they’d be looking at as signposts to the incoming administration within the first month after the election. The ACLU’s Jeppesen case was prominent among those, so the Obama Justice team had plenty of notice.

    It’s this kind of failure to be upfront with people and organizations that should be allies, and the offering of transparently bogus excuses, that erodes goodwill and trust.

  6. crack says:

    Does anyone think there is a chance that part of seeing these state secrets privilege cases out is to get the courts to find the privilege claim invalid? If Obama just agrees not to assert it that doesn’t really limit the claim for future administrations. However, a poorly argued claim that covers all sorts of arguments for the privilege could get additional precedence set making the claim more difficult to attempt in the future.

    • Nell says:

      See the previous thread on Obama and state secrets (the 9th circuit ruling post). Doing such a thing in the federal courts is : unacceptably risky with our rights and system of government, morally wrong, politically cowardly, and unprecedented behavior by the executive branch.

      Name one example of an administration making arguments in a federal court hoping to be overruled. It doesn’t happen.

      This isn’t a game. Please don’t make excuses for them that they’re not even making for themselves.

  7. chetnolian says:

    One of the corrosive things about Bushco is we’ve all got into the habit of assuming all state secrets are about bad things. That ain’t necessarily so.

    I think the administration may be trying not to throw the baby out with the bathwater. I take lysias’s point about a continuation though.

    One other really cynical point is that if, as I still think, Obama is trying to get to the right place but without being made to be “partisan”, is that the point made by Nell at 5 about the “100 days” campaign might be part of the great game. It wouldn’t be good to be seen pandering to all those pinko fainthearted liberals now would it?

  8. Mary says:

    But the claim that, “we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up”?

    Here’s my take that I believe in pretty strongly regarding what he is saying and doing.

    Keep in mind that several of the courts where they made their filings SPECIFICALLY ASKED if they didn’t want more time and they said “no.”

    I think that Obama has the same “move forward” approach on states secrets as on torture. He wants the evil that has already been done and the crimes that have already been committed to stay as subject to the doctrine as possible to control the outcome as much as possible. His carrot is that he will be willing, GOING FORWARD, to maybe sign off on some new reg, a new Exec order or maybe even new legislation that would purport to change the how the invocations are made, prospectively.

    lots of problems with that

  9. ratfood says:

    OT: Has everyone heard that Justice Souter has announced plans to retire?

    Just checked the previous thread and this is apparently old news (hold the bandwagon)…

    • RevDeb says:

      saw it on Rachel and it showed up for a while in the last thread.

      So now we have to deal with a SCOTUS appt. with a senate that can’t even get the OLC candidates confirmed. It’s gonna be ugly.

      • ratfood says:

        Thing is, given his centrist tendencies Obama is unlikely to nominate a very liberal candidate. Republican opposition will simply be a knee-jerk reflex.

  10. Beerfart Liberal says:

    I heard that answer about “we just got into office and we haven’t though this through” and immediately said “bullshit.” terrible answer.

  11. Funnydiva2002 says:

    Hey, Ratter!
    Yeah, we couldn’t wait when Rachel announced it.

    OT from me:
    Any commentary on the Al Marri guilty plea today?


  12. RevDeb says:

    I hope Harry can stall long enough to get Franken seated. Then again, having only 59 nominal votes gives him an alibi to do little to nothing on this.

    • EvilDrPuma says:

      I’m long past anticipating anything helpful from Harry Reid. No politician can get punked as many times as he’s been without being complicit.

  13. tjbs says:

    You amaze me
    Anyway open up the Pat Tillman State Secret files to lay to rest this bullshit. There’s nothing there but a criminal conspiracy to cover up murder. Wire tap friendly fire win election. NO

    • SouthernDragon says:

      I’ve heard/seen, but can’t verify, that Tillman was killed by a three-tap to the head. That’s awful good shootin’ in questionable conditions, even for Rangers.

  14. emerson says:

    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.

    I’m hoping Obama’s use of the future tense as well as his repeating of the word “genuinely” contrast the current state secret cases with any future suits.

  15. DeadLast says:

    Is it possible that Obama is playing this card to lose the hand? I mean, is it possible that he is trying to get the Courts to rule once and for all against state secrets so there is a bright line?

  16. spiny says:

    My jaw dropped a bit when Obama gave his answer- just stunning. If he’s not lying, then they must be really afraid of confronting the Bush holdovers in the Justice department.

    If he is lying to us- I’m not sure what to make of it. Are they afraid that if they admit that the government has broken the law, a judge is going to order the release of a high value terrorism suspect and that would make them vulnerable politically?

    You would think for all the statements he made during his campaign, he would have been more prepared to deal with this issue in a positive way.

    • ThingsComeUndone says:

      We have to start thinking about who we can get on thats good on the court.
      with Al Franken coming in I guess we will see if Arlen is worth everything the Dems gave him to cross over.
      If Arlen does not want a Primary Challenge he better vote our way on this.

      • RevDeb says:

        can’t count on Arlen Scrapple. ever. for anything. Like WT pointed out, he’s the scorpion Harry’s the frog. Harry’s gonna get stung, it’s the only think Arlen Scrapple knows how to do.

        • allan says:

          For example, Specter voted against the cramdown today,
          and has announced opposition to Dawn Johnsen.
          He’s worse than Joe L., which is saying a lot.

  17. siri says:

    INAL, but
    it occurs me, listening to PREZ Obi, as opposed to Candidate Obi, that maybe he needs to keep these things open (like the FISA fiasco), to support them, for NOW. he needs the tools created by the criminals to overrun and expose (in whatever form) the criminals, and then turn things back around to what’s legally defined per the Constitution.

    i know this may not make a lot of sense here and now,
    he WANTS to keep these powers to enact what he’s going for here. take the power and use it, then use it one last time to see that it never gets used again.
    maybe that’s my hope coupled with limited knowledge, but COULD BE the master plan…..

  18. Hugh says:

    I still find this exchange the best take on all questions concerning Presidential powers:

    BILL MOYERS: Do you expect either John McCain or Barack Obama to rein in the “imperial presidency?”

    ANDREW BACEVICH: No. I mean, people run for the presidency in order to become imperial presidents. The people who are advising these candidates, the people who aspire to be the next national security advisor, the next secretary of defense, these are people who yearn to exercise those kind of great powers.


    • bobschacht says:

      Yes, this is exactly why we need CONGRESS to do its fookin’ job!

      For the past 8 years, Democrats have been falling all over themselves trying to hand George W. Bush MORE POWER for some undiscernible reason. They have spent 8 years emasculating themselves. I want a congress that upholds its Constitutional responsibilities!!!

      Bob in HI

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