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Obama Backs Down on State Secrets

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.

By Dan Froomkin  |  April 30, 2009; 9:35 AM ET
Categories:  Looking Backward  
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Comments

Big ships do turn slowly, so let's hope this is the beginning of a new trend on state secrets.

Posted by: mobedda | April 30, 2009 10:13 AM | Report abuse

Obama did not "back down" - his rhetoric has always been against secret powers. The Justice Department has simply acted contrary to this rhetoric and it remains to be seen if it will continue to do so.

Posted by: skeptonomist | April 30, 2009 10:24 AM | Report abuse

I don't know that I agree with Dan on this, I would wait until the Justice Department starts to prosecute before I would offer ANY speculation or hope, but I might be wrong, and I hope I am.

Any TRUE state secret, intelligently reasoned, is safe; stupid kooks, whether they be terrorists, Dick Cheney, Oliver North, or John Brennan CIA types, just can't figure it out. They huff and they puff, but yet they keep losing -- and they don't know why.

The reasoning behind American law is beyond their ability to grasp.

I'm not kidding, they're THAT dumb.

And we have 2 lost wars and a STILL faltering economy to prove it, the use of torture and fear their only solution to threat.

Posted by: thegreatpotatospamof2003 | April 30, 2009 10:39 AM | Report abuse

Seems to me that in this case, and in the case of the release of the torture memos, that Obama is trying to arrange things so that the systems meant to be in place to address situations like this have a chance to proceed with corrective action, while keeping executive branch fingerprints, and accusations of partisan activity, to a minimum. This has started, as Dan points out, with the Jeppesen case being reinstated this week.

I also believe that, in time, we will see the Justice Department act on the torture memos.

Patience is more than a virtue in these instances, it's an absolute necessity.

Posted by: tennesseemoonshiner | April 30, 2009 11:06 AM | Report abuse

The invocation of state secrets to hide embarrassing or politically damaging information ran rife during the Bush administration. I would hope in a democracy of the people state secrets would be kept to a bare minimum. There are some specific details that must be shielded, but blacking out the budgets of entire departments is going too far.

These particular cases reveal the shortcuts that seem to be used more and more in Washington. Rather than invoking state secrets at discovery they are used to dismiss cases before they even begin. Rather than invoking executive privilege in Congress, administration officials simply refuse to show up. Rather than filibustering in Congress the mere threat of filibuster shelves legislation.

Posted by: fletc3her | April 30, 2009 11:10 AM | Report abuse

I also believe that, in time, we will see the Justice Department act on the torture memos.

Patience is more than a virtue in these instances, it's an absolute necessity.

-----------
I agree, but I never call it a done deal, even when it's done. ; )>

Cheney and Bush were famous for the bait and switch, the rendering loophole is still open, it's not a good sign Brennan is still on staff, the little press type ops are SO easy to read, laughable, actually.

OTOH, he might be serious, the problem is vast, so, one step at a time.

This is only the torture issue, too...

Posted by: thegreatpotatospamof2003 | April 30, 2009 11:26 AM | Report abuse

It is funny how Obama now sees that the State Secrets position his administration has taken is "over broad" only AFTER his position had its ass kicked in court!

For those of you who assume that Obama will do the right thing--Don't. It is not just Obama calling the shots. The bureaucracy is too large for that. There has to be sustained pressure from the AG and Justice to undo the abuses over the last decade. That means at least another decade of vigilance.

Posted by: marthaler | April 30, 2009 11:43 AM | Report abuse

It is no shock that Dan is not a reporter, at least in the sense that reporters neutrally presents relevant facts. His description of "a federal appeals court" - without identifying the particular court of appeals - implied that the court must be right. When you follow the links, it's the Ninth Circuit, the most reversed of all the federal circuit courts. I don't know who's right on this issue, but a little honesty in reporting would seem to be part of your job description, Dan.

Posted by: willdd | April 30, 2009 11:48 AM | Report abuse

@marthaler: "It is funny how Obama now sees that the State Secrets position his administration has taken is "over broad" only AFTER his position had its ass kicked in court!"

Isn't it possible that this was his plan - to save political capital by setting up the court to force his hand so he can blame them?

I give no President the benefit of the doubt and I'm certainly not an Obama cheerleader, but I do think he's intelligent and savvy enough to do something like that.

Posted by: BigTunaTim | April 30, 2009 11:54 AM | Report abuse

@willdd: "It is no shock that Dan is not a reporter, at least in the sense that reporters neutrally presents relevant facts."

By that definition we haven't had reporters in decades. Kudos on your truth in media crusade though. How do you find the time to come here? I'd think debunking FOX would take up most of your day.

P.S. google "opinion column"

Posted by: BigTunaTim | April 30, 2009 11:59 AM | Report abuse

This is such an obvious lie by Obama that I can't believe that someone won't call his administration on it. The courts and the plaintiffs would BOTH have given the Obama administration as much time as they wanted to think/rethink their position. The Obama administration CHOSE to reach for more power than even the Bush administration claimed. Obama's statement is not tenable.

Posted by: dickdata | April 30, 2009 12:16 PM | Report abuse

Hey, at least the question was asked in full view of the public by a reporter from a major news outlet, and answered if not with perfect candor at least without a bunch of stupid bafflegab and then dropped. This is the real progress!

Posted by: sm11 | April 30, 2009 12:30 PM | Report abuse

i doubt there is a judge that would not have given the state more time to review the cases, so i dont believe obama when he said they had to move so fast.

Posted by: donaldtucker | April 30, 2009 12:52 PM | Report abuse

"Seems to me that in this case, and in the case of the release of the torture memos, that Obama is trying to arrange things so that the systems meant to be in place to address situations like this have a chance to proceed with corrective action, while keeping executive branch fingerprints, and accusations of partisan activity, to a minimum. This has started, as Dan points out, with the Jeppesen case being reinstated this week.

I also believe that, in time, we will see the Justice Department act on the torture memos.

Patience is more than a virtue in these instances, it's an absolute necessity.

Posted by: tennesseemoonshiner | April 30, 2009 11:06 AM | Report abuse "


Yes, this is exactly what I'd posted the other week. There is such a tangled mess going on, I imagine that it's going to take some time to rewrite the laws the way they should have been in the first place.

Posted by: owl1 | April 30, 2009 1:40 PM | Report abuse

I have good feelings about our president. I think he's a good man and a just man. What more could you want?
I'm just SO happy that he is in the White House.
Things are SO much better now.

Posted by: TOMHERE | April 30, 2009 2:44 PM | Report abuse

Wow Froomkin, you are a brave man even mentioning state secrets in public domain. You too could end up in the nutward or gulag for being so "foolish". If you take this any further "they" may decide to "repatriate" you son and not soon enough.

Posted by: truthhurts | April 30, 2009 2:49 PM | Report abuse

You are right to keep pushing on this issue Dan, and I respect you for doing so. But it IS too early to draw any conclusions. I believe the Obama administration genuinely wants more transparancy, but a coherent policy on how to safely do it hasn't yet emerged.

Posted by: gposner | April 30, 2009 3:19 PM | Report abuse

Evil permeates all Washington institutions: the Courts, the Congress, and the Executive. It will be extremely difficult for one person, President Obama or anyone else, to disinfect the whole system, particularly since he has been a part of that evil. I wish I could live in lala land like so many of President Obama's supporters but reality prevails. I can remember so well that just a few short years ago a majority of Americans believed in another liar: George W. Bush.

The hiding of governmental actions (state secrets) is no more nor no less than the hiding of evil deeds. What other reason could there be? If these people were doing good, wouldn't they shout it from the rooftops? I'm not talking about technological information (atomic bomb plans) or troop movements. I am talking about spying on our own citizens, torturing prisoners, overthrowing governments, and whatever other evils these low-lifes can concoct.

Posted by: frazeysburger | April 30, 2009 4:02 PM | Report abuse

And you wondered what you'd have to do after the election!

See, we still need your watchdog eyes.

Posted by: patriot16 | April 30, 2009 5:04 PM | Report abuse

I'm not allowed to keep any secrets from the state, so why does the state get to keep secrets from me and all the rest of the people who fund it with our taxes?

Posted by: bdunn1 | April 30, 2009 5:24 PM | Report abuse

Obama can prove he is not a hypocrite on the state secrets issue by publicly and zealously backing the State Secrets Protection Act now languishing in the Senate.

Posted by: winoohno | April 30, 2009 7:14 PM | Report abuse

@BigTunaTim: Sorry Charley. I'm no fan of the spin dryer that's O'Reilly and I shake my head just as I assume you do at Hannity's nerve in claiming "America" for himself. (Who knows what to make of the third part of the Fox trinity.) That said, what is the value of this "column," if that's what it is? Doesn't Howard Kurtz do the same thing - but better. Even if Froomkin's not going to surprise people every once in a while by taking a not-wholly-predictable position, he should at least try to be not misleading.

Posted by: willdd | April 30, 2009 7:35 PM | Report abuse

"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."

That's not good enough. Cases set precedents. If Obama oversees cases that set over-broad definitions of the national security pleading, he is building more secretive government, for himself and his successors.

Posted by: kevrobb | April 30, 2009 9:34 PM | Report abuse

Wow Froomkin, you are a brave man even mentioning state secrets in public domain. You too could end up in the nutward or gulag for being so "foolish". If you take this any further "they" may decide to "repatriate" you son and not soon enoug
-----------

They?

You mean the ones who can't win a war or manage a country or an economy?

Dr. and Secret Agent Nottoobright?

Somehow, I don't think anyone has to really worry, once the shock of their treason has worn off...

Posted by: thegreatpotatospamof2003 | April 30, 2009 9:49 PM | Report abuse

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