By Dan Froomkin
9:35 AM ET, 04/30/2009
President Obama last night described a much more modest role for the state secrets privilege than his own administration has recently argued for in court, acknowledging that it is taking time to fully think through how to reverse some Bush administration policies.
Justice Department lawyers have made extraordinarily broad assertions of the state secrets privilege in three cases since Obama took office, continuing to make Bush-era arguments that the executive branch has the right to avoid even modest judicial scrutiny simply by citing national security concerns.
Previously, senior administration officials, including Obama's own White House counsel and his attorney general, had insisted that the administration's decision to maintain the Bush stand in these cases was proper and necessary to protect national security.
But at last night's press conference, when asked about what had widely been seen as abandonment of his devotion to civil liberties and government transparency, Obama suggested that inertia, rather than intent, was to blame. Here's the exchange between Obama and Time Magazine reporter Michael Scherer:
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?"
Obama: "I actually think that the state secret doctrine should be modified. I think right now it's over broad.
"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."
There's no dispute that there must be some mechanism whereby the government can prevent breaches of national security in court cases. But the way the state secrets privilege has typically worked is that the government can refuse to publicly disclose a specific item of information -- if it can persuasively explain why to a 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.
Just this Tuesday, a federal appeals court reinstated one of the cases the Justice Department had sought to dismiss.
During oral arguments on the case in February, several judges were plainly startled to hear that the Obama administration wasn't abandoning the Bush position. But Justice Department lawyer Douglas N. Letter, who had been assigned to the case under the Bush regime, said the Obama administration's position was "exactly" the same.
John Schwartz of the New York Times related the following exchange:
"Is there anything material that has happened' that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.
"No, your honor, Mr. Letter replied.
Judge Schroeder asked, "The change in administration has no bearing?"
Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said.
Some Obama supporters had held out the hope that his Justice Department was still just getting up to speed, and would eventually pull back from the Bush-era position -- much as Obama is now indicating will happen. But Obama's two top legal officials had clearly indicated otherwise in previous interviews.
Attorney General Eric Holder, in an interview earlier this month with CBS News's Katie Couric, 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."
It seems clear that Obama last night was telegraphing a reversal in the three ongoing cases as well as in the general application of the privilege going forward.
But Kevin Poulsen writes on Wired's Web site that "Obama’s explanation has a nice ring to it, but ultimately falls flat" because the Justice Department didn't just make these arguments in the first few weeks of the administration, but has continued to do so "unrelentingly" since then.
So stay tuned.