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