Network News

X My Profile
View More Activity

State Secrets Watch

A federal appeals court yesterday dealt a massive blow to the the Obama administration's attempt to assert its right to avoid even modest judicial scrutiny simply by citing national security concerns. Here's the ruling. For background, read my April 9 post, Obama's State Secrets Overreach.

Carrie Johnson writes in The Washington Post: "A federal appeals court yesterday reinstated a lawsuit by five former detainees who sued a Boeing subsidiary over its alleged role in transporting them to foreign countries, where they say they suffered brutal interrogation under the CIA's 'black site' prison system.

"Three judges on the U.S. Court of Appeals for the 9th Circuit batted aside claims by the Obama administration that the suit would reveal 'state secrets' at the heart of the agency's covert operations and so should be dismissed....

"The unanimous panel...rejected administration arguments that the very nature of the dispute
was secret and said a judge should weigh, on a case-by-case basis, what kinds of evidence the detainees could receive and use in court....

"The appeals court panel noted in a footnote that the executive branch in the past had misused the state-secrets argument to cloak revelations that would embarrass federal agencies, rather than to protect sensitive operations from the eyes of enemies.

"To side with the government, the court ruling said, would mean that judges 'should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

Marc Ambinder blogs for the Atlantic: "A bottom-line read of the decision: the government can assert the privilege for any piece of evidence in any case. It just can't assert the privilege as an immunity doctrine -- or a justiciability doctrine -- as a way to end the case before it begins."

"This historic decision marks the beginning, not the end, of this litigation," ACLU staff attorney Ben Wizner said in a statement. "Today's ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed 'secrets' in a court of law."

Also yesterday, firebrand Democratic Senator Russ Feingold released his "100 Day Rule of Law Report" on the Obama administration. He gave Obama high marks for his executive orders to close Guantanamo, ban torture and increase transparency. But he gave Obama a "D" for his position on state secrets.

And Senator Arlen Specter (yes, that Arlen Specter) writes in the New York Review of Books: "In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support."

By Dan Froomkin  |  April 29, 2009; 12:00 PM ET
Categories:  Looking Backward  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati   Google Buzz   Previous: Obama's Fillibuster-Buster
Next: The Change Agent

Comments

Once again, Dan, you've got the important news. The 100-day evaluation was good, too.

Posted by: sm11 | April 29, 2009 12:41 PM | Report abuse

It seems consistent with the Obama style to proceed with the formal defense of executive authority established by the Bush administration with the expectation that it will be trimmed as appropriate. Consider that if he really wanted to reserve this power for himself, he would have acquiesced to specific demands before the ruling was issued in an attempt to avoid having the position clearly struck down. That was a common strategy with the last administration.

I don't mean that he doesn't want the authority if the courts find in his favor, but this way the decision gets made and entered into the record. I doubt the Obama administration is all that upset about the loss.

Posted by: ath28 | April 29, 2009 12:44 PM | Report abuse

I wouldn't be so sure that Obama is continuing the ideology of the Bush regime. By continuing the case, I think he wants to get this sorted out for good (meaning, for history). This won't occur in any one branch alone. The key point from the column was this:

"To side with the government, the court ruling said, would mean that judges 'should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

These cases will reach a logical conclusion, that this "privilege" to avoid embarrassment was substantially overreaching, and the cases will reach that conclusion in a way that will stand as case law. This will be a substantial service to the Constitution in the long run.

Posted by: ccritters | April 29, 2009 12:51 PM | Report abuse

President Obama should never have tried to stop this case from going forward. Even if he firmly believed the Courts would rule the way(quite properly)as they did. He's a constitutional lawyer. He has no right to gamble with our rights.

Posted by: prober1 | April 29, 2009 1:33 PM | Report abuse

I'm not so sure about Arlen Specter's stated intentions to roll back executive branch overreach. He talked and talked about this during the Bush years, but every time it came to an actual vote he sided with President Bush. That, in the end, is why the Bush Administration fully backed the Senator's 2004 re-election bid. He's a smart man, however, and maybe he just knows when to pick his battles and now perhaps he thinks he can win them. I'm giving him the benefit of the doubt for now, but watching him closely.

Posted by: troyd2009 | April 29, 2009 2:25 PM | Report abuse

Random fact rescued from the Memory Hole: Arlen Specter invented the JFK "Magic Bullet" theory.

Posted by: BigTunaTim | April 29, 2009 2:42 PM | Report abuse

"The appeals court panel noted in a footnote that the executive branch in the past had misused the state-secrets argument to cloak revelations that would embarrass federal agencies, rather than to protect sensitive operations from the eyes of enemies."

Excellent point. It's time to put this State-secrets thing in the grave. It shouldn't be part of a free and open country.

Posted by: steveh46 | April 29, 2009 3:08 PM | Report abuse

I'm not really sure what people expected the President to do with the State Secrets litigation. Much like when dealing with the prosecution of those who committed acts of torture, the President was faced with the prospect of alienating the intelligence community if he didn't at least appear to be trying to defend the previous administration's position. I'm glad the court ruled against the Executive Branch and hope that the Justice Department will drop this at this stage rather than taking it to the Supreme Court (although it won't surprise me if they appeal...).

Posted by: scott032 | April 29, 2009 6:20 PM | Report abuse

Two things. First, you call this decision is historic. I suppose it is in a way, but it should be reitereated that the court's decision is pretty much a restatement of the state secrets doctrine prior to Presidents Bush...and Obama. The government could object to the production of specific pieces of evidence and the court, after examing the evidence and the arguments in camera, would determine whether or not the evidence would be excluded. Prior to Presidents Bush...and Obama, there was no such thing as dismissing an action entirely upon the bare assertion of the state secrets doctrine (leaving aside, for the moment, that the "bare assertion" was pretty much exactly that).

Second, it is continually amazing how Obama apologists can continue to assert that his administration really does not want to perpetuate the Bush state secret docrtines after it has explicitly assetrted, and strongly argued in support of, that doctrine in multiple actions. Who are you going to believe, me or your lying eyes? I voted for Obama as well, though with no illusions after such similar betrayals as his FISA immunity vote, and have no trouble noting that he is wrong when appropriate. Generally, when Obama, or anyone, continues to assert an argument in multiple court actions, it means that they actually support that position and not that they are playing 12-dimensional chess or using their secret double reverse ju jitsu move.

Posted by: Marlowe65 | April 29, 2009 7:35 PM | Report abuse

"It seems consistent with the Obama style to proceed with the formal defense of executive authority established by the Bush administration with the expectation that it will be trimmed as appropriate."

Obama said pretty much that in tonight's press conference.

Posted by: thrh | April 29, 2009 11:25 PM | Report abuse

So....where were these brave judges last year or in 2007? Howcome it's only now that President Obama and his administration are asserting these dubious legal arguments that people are prepared to stand up to them?

Posted by: tim4 | April 30, 2009 4:58 AM | Report abuse

The comments to this entry are closed.

 
 
RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company