washingtonpost.com
Obama's State Secrets Overreach

By Dan Froomkin
1:50 PM ET, 04/ 9/2009

Attorney General Eric Holder (AP file photo).

I'm off tomorrow. Blogging will resume Monday morning.

There are two things you really need to know about the "state secrets" privilege.

The first is that the government lied in the 1953 Supreme Court case that established the government's right not to disclose to the judicial branch information that would compromise national security. The widows of three civilian engineers who died in a military airplane crash sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence. (More about the case here.)

The second thing is that the way the state secrets privilege has typically worked since then is that the government can refuse to publicly disclose a specific item of information if it explains why to the judge. The idea is not that government officials get to tell a judge to dismiss an entire case because they don't want to answer any questions at all.

But it is precisely such a sweeping assertion that the Justice Department -- the Obama Justice Department -- is making in three cases that relate to torture and warrantless wiretapping.

There is something utterly un-American about saying that the executive branch can simply tell the judicial branch to butt out of a matter for national security reasons -- and there's no recourse. And as for these cases, even if the government is worried about legitimate national security concerns -- rather than just afraid of embarrassment -- there is so much in the public domain already about the related issues that government officials should at least be able to talk about what they can't talk about.

People who put a lot of faith in President Obama's pledges of restoring transparency to the government are having a hard time rationalizing his Justice Department's actions on the three cases in question.

One common hope has been that Obama's Justice Department is still simply trying to figure out what to do. And Attorney General Eric Holder, in an interview with CBS News's Katie Couric that aired last night, said he has ordered a review of the state secrets doctrine. But asked if he felt the doctrine was abused by the Bush administration, he replied: "On the basis of the two, three cases that we've had to review so far - I think that the invocation of the doctrine was correct."

And as Charlie Savage reported in the New York Times in February, after the Obama administration's first invocation of the privilege, White House Counsel Greg Craig said, "Holder and others reviewed the case and 'came to the conclusion that it was justified and necessary for national security' to maintain their predecessor's stance."

What is motivating Obama's lawyers here? What exactly trumped his promises of transparency and the restoration of the rule of law? It's got to be something big. Is this about not wanting to give up executive power, now that they have it? Is it about protecting Bush-era secrets? Are they terrified of rebellion in the CIA or NSA? Are Justice Department lawyers still somehow under the influence of the old regime?

Holder at least indicated last night there will be some public explanations soon. He told Couric: "A report is in the process of being prepared. I'll expect I'll have it in the not too distant future. And my hope is to be able to share the results of that report with the American people. So they'll understand exactly - why we've had to use the state secret - state secrets doctrine in certain cases. And why we - decided not to use it in - in certain other cases."

Marc Ambinder blogs for the Atlantic: "Since January 20th, the Justice Department has invoked - or re-invoked - the privilege at least three times. In the case of an Oregon-based Islamic charity, the Al-Haramain Foundation, the administration argued that discovery in the case would necessitate the release of classified information that would gravely jeopardize national security, even though some classified documents were accidentally released to defense attorneys.

"In the case of a group of Guantanamo detainees who filed suit against a flight planning company involved in their renditions to other countries, the administration contended that further disclosure about the role that the company played in the renditions would harm national security.

"Most recently, the administration urged a judge to dismiss a lawsuit brought by five AT&T customers against the government and former Bush administration officials because a trial would require a broad disclosure of the government's current, highly-classified domestic surveillance activities.

"Critics contend that the Bush administration, and now the Obama administration, are wielding the privilege to dismiss entire cases based solely on the assertion by the executive branch that the information disclosed would damage national security, thereby turning what had been an evidentiary privilege into a justiciability privilege."

The three cases in question are Al-Haramain Islamic Foundation v. Obama; Mohammed v. Jeppesen Dataplan, in which five victims of "extraordinary rendition" say Jeppesen, a Boeing subsidiary, participated in their delivery to countries that tortured them; and Jewel vs. NSA, in which the Electronic Frontier Foundation (EFF) is suing the government on behalf of AT&T customers.

Salon blogger Glenn Greenwald has been avidly following these cases. His Monday post describes the controversial government actions in the Jewel case -- which, amazingly enough, go beyond the state secrets privilege and include a new "sovereign immunity" claim that would apparently prevent the government from ever being sued for spying that violates federal surveillance statutes in the absence of proof of "willful disclosure." In other words, if they keep it secret, no one can sue them for doing anything.

MSNBC's Keith Olbermann had as a guest last night Kevin Bankston, an EFF lawyer on the Jewel case. "The Obama campaign promised us change we could believe in, and a new era of transparency and accountability from government," he said. "But instead, this is looking like deja vu all over again, and the Obama administration is embracing the same aggressive secrecy arguments that the Bush administration did, and is going them one better by arguing this incredible immunity argument, by saying that despite the many laws that we have that are meant to restrict the government from wiretapping us or accessing our communications records without warrant, that the government -- the U.S. government is immune from any lawsuit for violating those statutes, and essentially eviscerating the privacy rights of millions of ordinary Americans."

Olbermann: "How much hope is there that the worry that this is excessive, that this is not the huge policy assertion that it would seem at first, second and third blush -- I mean, don't Justice Department attorneys of every generation have to come up with whatever arguments they can when the government gets sued? Don't the courts have the final say on this?"

Bankston: "Well, the decision to invoke the state secrets privilege was a decision of the administration. It did not have to do that. As you mentioned, Eric Holder is planning on withdrawing state secrets privilege assertions in another case. They could have done what we've advocated they do for several years and what the courts require them to do already in another case, which is submit their secret evidence through security procedures that are already laid down in federal law.

"As for the immunity argument, well... this argument is simple incredible, literally."

Liberal blogger BooMan weighs in: "It is extremely disappointing, it is unjustifiable, and it is dangerous. If the Obama administration's position prevails we will have fourth amendment rights but no means of protecting them.....

"This is wrong, and it is not consistent with his oath to uphold the Constitution. I will wait to see if opponents of this attempted power grab emerge on the right. They were mostly silent during the Bush years but we could use their help now because Obama is riding high and the left is distracted with economic matters."

Maybe Congress will act. There are bipartisan efforts in both the House and Senate to rein in the executive branch.

Louis Fisher, a specialist in constitutional law at the Library of Congress, has written extensively on the state secret privilege.

He e-mails me with these two thoughts:

"1. The administration defends the state secrets privilege on the ground that it would jeopardize national security if classified documents were made available to the public. No one argues for public disclosure of sensitive materials. The issue is whether federal judges should have access to those documents to be read in their chambers.

"2. If an administration is at liberty to invoke the state secrets privilege to prevent litigation from moving forward, thus eliminating independent judicial review, could not the administration use the privilege to conceal violations of statutes, treaties, and the Constitution? What check would exist for illegal actions by the executive branch?"

Torture Watch

By Dan Froomkin
1:49 PM ET, 04/ 9/2009

Some of this may sound familiar to regular White House Watch readers. Michael Isikoff and Mark Hosenball write in Newsweek: "The CIA quietly moved scores of detainees out of its own 'black site' prisons in recent years and turned them over to foreign governments, refusing to provide the International Red Cross any information about their treatment or whereabouts, according to a report made public this week."

They add some information to what I reported on Tuesday. For instance, they note that although only 14 of the CIA's secret-prison detainees ended up at Guantanamo, "agency officials have confirmed that as many as 100 detainees had gone through the detention program after it was created following the 9/11 attacks. Then-Vice President Dick Cheney acknowledged late last year that 33 of those detainees were subjected to 'enhanced interrogation' techniques under the program. As the former Bush official pointed out, 'You can do the math'—meaning that most of the detainees in CIA custody (and who were being held in secret sites around the globe) were never sent to Guantánamo."

And the New York Times editorial board writes this morning that the ICRC report "underscores the need to have a full-scale investigation into these abusive practices and into who precisely participated in them. Only then will we know whether indictments or, in the case of physicians, the loss of medical licenses, are warranted."

Easter Egg Roll Update

By Dan Froomkin
12:46 PM ET, 04/ 9/2009

This year's souvenir egg.

The White House Easter Egg Roll is on Monday.

First, this just in from the White House: "This year's Easter Egg Roll activities build on the theme of 'Let's Go Play,' which will seek to educate children on the importance of living a healthy and active lifestyle."

And this year's souvenir egg is the "'greenest' egg in White House Easter Egg Roll history," says the White House. It uses 31 percent less paperboard than the 2008 designs! It uses renewable, vegetable-oil-based inks! You can buy one right now right here (at $7 each or four for $25.)

OK, so how special is the Easter Egg Roll?

The National Archives explains: "Special enough to convert the White House grounds into a children's playground. Special enough for Presidents to share the spotlight with the youngest of egg rollers and cuddliest of Easter bunnies.

"Access to the South Lawn of the White House, by the general public, is rare at best. But come Easter Monday, and the White House gates swing wide open, admitting a diverse group of little ones, escorted by grownups, to walk, run, and roll up and down the lush green ward.

"Easter Monday officially rolled into White House history in 1878, and from its earliest years this children's day of play has occupied every nook and cranny of the President's backyard. Canceled because of two world wars or an occasional bad weather day, the egg roll has endured to become the longest annual presidential tradition of the South Lawn."

In addition to the tickets that were made available to the public online, some were allocated to special groups, including military families. CNN reports that 4,000 tickets were given to local school systems, including 2,000 for children in D.C. public schools. And the Associated Press reported yesterday that some tickets were distributed to gay, lesbian, bisexual and transgender organizations.

Happy Passover

By Dan Froomkin
12:41 PM ET, 04/ 9/2009

Margaret Talev writes for McClatchy Newspapers: "Last year, Passover came as then-candidate Barack Obama was campaigning in Pennsylvania. A couple of the campaign staffers on the bus who are Jewish and couldn't get home to be with their families decided to put together a Seder (the traditional meal marking the start of the holiday) as best they could. They were delighted when Obama showed.

"This year, President Obama, who is Christian, is continuing the tradition; he'll attend a Seder on Thursday night at the White House with some staffers, some Jewish and some not. His wife and daughters will be there according to a list of attendees released by White House aides this evening, but some key staff have other commitments. Senior adviser David Axelrod and Chief of Staff Rahm Emanuel aren't expected. Axelrod said he'll be in Chicago with family.

"The White House list does not include any key Jewish campaign supporters outside the administration or any religious or community leaders, and aides would not say for sure whether others are invited or would attend."

The Associated Press reports: "The White House says the seder meal will be traditional, including matzo, bitter herbs, a roasted egg and greens in the family dining room in the executive mansion. The evening will feature the reading of the Haggadah, the religious text of the holiday."

Technically speaking, Passover dinners are supposed to have an open-door policy, should the Prophet Elijah choose to stop by. But that's not going to happen.

Indeed, the White House press office yesterday mistakenly appended a series of internal e-mails to the daily schedule it sends out to reporters. In one of them, White House director of scheduling Danielle Crutchfield offered an illustration of how nothing is ever simple when the president is concerned. She asked for the seder to be removed from the public schedule. "Apparently Jewish here and in neighboring states are now calling wondering why they have not been invited," she wrote. But it was too late.

Quick Takes

By Dan Froomkin
12:34 PM ET, 04/ 9/2009

Julia Preston writes in the New York Times: "While acknowledging that the recession makes the political battle more difficult, President Obama plans to begin addressing the country's immigration system this year, including looking for a path for illegal immigrants to become legal, a senior administration official said on Wednesday. Mr. Obama will frame the new effort — likely to rouse passions on all sides of the highly divisive issue — as 'policy reform that controls immigration and makes it an orderly system,' said the official, Cecilia Muñoz, deputy assistant to the president and director of intergovernmental affairs in the White House."

Juliet Eilperin writes in The Washington Post: "The Obama administration might agree to auction only a portion of the emissions allowances granted at first under a cap-and-trade system to limit greenhouse gas pollution, White House science adviser John P. Holdren said yesterday, a move that would please electric utilities and manufacturers but could anger environmentalists."

Slate's Timothy Noah warns readers away from beat-sweeteners, defined as a "gratuitously flattering profile that a reporter writes about a government official in the hope that it will encourage (or, at the very least, not impede) that reporter's access to the official in question." He names names.

The Associated Press reports that Obama "called University of North Carolina basketball coach Roy Williams to congratulate the Tar Heels on their NCAA championship. White House spokesman Robert Gibbs says Obama called Williams from Air Force One on Tuesday. Gibbs also says Obama thanked Williams for 'vindicating him in front of the entire country.' Obama picked UNC to win the championship in his much-watched basketball bracket."

Bill Sammon writes for Fox News: "Aides to former President George W. Bush are challenging the veracity of Vice President Joe Biden's claim this week of having privately castigated Bush, who does not remember the incident...'I remember President Bush saying to me one time in the Oval Office,' Biden told CNN, '"Well, Joe," he said, "I'm a leader." And I said: "Mr. President, turn and around look behind you. No one is following."' That exchange never took place, according to numerous Bush aides."

Goodbye to Bush Silliness on Iran

By Dan Froomkin
10:29 AM ET, 04/ 9/2009

One of the most flatly irrational aspects of George W. Bush's approach to foreign policy was his position that you don't sit down to negotiate with your enemies until they've already met your demands.

Sort of misses the point of negotiating, doesn't it?

Most notably, Bush refused to talk to Iran about foregoing its nuclear weapons program -- unless it agreed ahead of time to forego its nuclear weapons program.

Fresh on the heels of a European tour in which President Obama advocated and modeled a profoundly different style of American leadership, the Obama administration has now officially shelved Bush's no-talking policy for Iran.

One official even described Bush's approach as "silly."

Karen DeYoung writes in The Washington Post: "The United States said yesterday that it would directly participate 'from now on' in international talks with Iran over its nuclear activities, the latest move in the Obama administration's promised diplomatic outreach to the Tehran government.

"'There's nothing more important than trying to convince Iran to cease its efforts to obtain a nuclear weapon,' Secretary of State Hillary Rodham Clinton said. The United States, she said in brief comments at the State Department, would be a full participant with Britain, France, Germany, Russia and China in any future Iran negotiations....

"A senior administration official, who agreed to discuss the issue on the condition of anonymity...said there was no internal debate over whether to fully join the negotiations if and when another round is scheduled. 'It was kind of silly that we had to walk out of the room' when the Iranians were present, the official said."

Laura Rozen blogs for Foreign Policy: "Last July, after previously insisting Iran must halt its uranium enrichment program before joining talks with it, the Bush administration sent a diplomat to Geneva to attend international discussions to which Iran sent a representative. But the Bush administration instructed the American official, undersecretary of state for political affairs William Burns, to observe, but not participate with his Iranian counterpart. They also said his presence would be a one-time affair, at which Iran could take or leave an international offer of inducements in exchange for Tehran giving up its uranium enrichment program."

Rozen writes that State Department spokesman Robert Wood said yesterday that "Washington's approach going forward would be more sustained diplomatic engagement. 'A diplomatic solution necessitates a willingness to engage directly with each other on the basis of mutual respect and mutual interest,' he said.

"'If Iran accepts, we hope this will be the occasion to seriously engage Iran on how to break the logjam of recent years and work in a cooperative manner to resolve the outstanding international concerns about its nuclear program,' Wood said."

Farah Stockman writes in the Boston Globe: "In his inaugural speech, Obama pledged to 'extend a hand' to those who are willing to 'unclench' their fists.

"Yesterday, Iranian President Mahmoud Ahmadinejad, a hard-liner and staunch defender of Iran's nuclear program, spoke positively about Obama's offer, telling an audience in the city of Isfahan: 'If a hand has truly been extended with sincerity, based on justice and respect, Iran will welcome it.'

"But he also warned that if Obama's offer is only for appearances, then 'Iran's answer will be the same as the one given to Mr. Bush.'"

And today, Nasser Karimi writes for the Associated Press, Ahmadinejad "inaugurated a new facility producing uranium fuel for a planned heavy-water nuclear reactor" that the West fears "could eventually be used for producing a nuclear weapon."

Where does the public stand on this issue? CNN reports: "Nearly six in ten Americans think that Obama administration officials should hold diplomatic talks with Iran without that country first making significant changes in its policies....Only about one in five view Iran as an immediate threat to the United States, although an additional 60 percent say that Iran represents a long-term threat."

Meanwhile, as Paul Richter noted in the Los Angeles Times, Vice President Biden on Tuesday "issued a high-level admonishment to Israel's new government ... that it would be 'ill advised' to launch a military strike against Iran."

"Biden said in a CNN interview that he does not believe newly installed Israeli Prime Minister Benjamin Netanyahu would take such a step."

Cartoon Watch

By Dan Froomkin
9:24 AM ET, 04/ 9/2009

Jim Morin on transparency, Gary Varvel on reading from the old teleprompter, Signe Wilkinson on Obama's Afghan plan, Dan Wasserman on Obama and the defense lobby, and Gary Markstein on the Obama overseas tour button.

© 2009 The Washington Post Company