Obama's State Secrets Answer Defies Credulity

At last night's 100 Days In Office press conference, President Barack Obama was asked a smart question from Time Magazine's Michael Scherer, on his policy on state secrets, and whether it would ever come to resemble something that could be considered a reform of Bush White House policy. Here's what Obama said, in response:

OBAMA: I actually think that the state secret doctrine should be modified. I think right now it's overbroad. 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.

Obama went on to suggest that Eric Holder was busy as a bee, deeply considering the policy.

So, Obama agrees that the doctrine "should be modified," and that "right now it's overbroad." This implies that he hasn't yet gotten around to modifying it. Oh, but he has! And what's more, he's made it even more "overbroad." Allow Sarabeth from 1115.org to explain:

For example, in Jewel v. NSA, the Obama Justice Department didn't just repeat "essentially the same (state secrets privilege) arguments made by the Bush administration three years ago", it actually exceeded the Bush administration's claims:

But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

And this didn't happen one week into the Obama presidency, it happened about two-and-a-half months after he took office.

Yes, and it happened more than once. So this idea that the administration's just been too busy, and they need a little breather so that they can sit down and really delve into the matter, and it's just unfortunate that they had to respond to a court filing so soon into their tenure, just doesn't wash. They took their breather, made a carefully considered decision, and breathed more life into a bad Bush policy.

To take it further, let's dig into another part of Obama's answer, 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." That may be the case. I'm worried, however, that the Obama administration can't discern the difference! Let's recall earlier this month, Obama was handed a case that I called "a giftwrapped, politically safe, un-frack-upable opportunity that Obama still managed to get entirely wrong." Daphne Eviatar of the Washington Independent reported:

The Obama administration could have just let this one go.

U.S. District Court Judge John D. Bates' April 2 ruling that three detainees -- two from Yemen, one from Tunisia, all held by the U.S. military at the Bagram air base in Afghanistan without charge for more than six years -- have a right to challenge their detention in U.S. courts was crafted narrowly on purpose. The Obama administration did not have to appeal it and open itself up to the charge that it was making the same arguments that the Bush administration did -- that prisoners in the war on terror can be held indefinitely with no constitutional rights whatsoever.

Yet on Friday, the Obama Justice Department did just that, filing documents with the federal court indicating that it plans to appeal the judge's ruling, because allowing these three men to challenge their detention would "impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan."

So, if Obama doesn't believe these powers should be wielded like a "blunt instrument," he should maybe stop doing so!

Naturally, having put this marker down in front of Michael Scherer, Obama now invites the evaluation of the press -- should they be interested in seeing what comes of his promise to reform this matter. But as a pure measure of Obama's deeds thus far, there wasn't an ounce of genuineness in his answer last night.

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Comments

[herbanreleaf]

12:55 PM on 05/01/2009

Mr. Linkins, I generally like your work and I think I would probably agree with you, if you had presented an intelligent argument here, but basically what you've done is confounded state secrets with two other situations that are entirely different issues, sovereign immunity and the right to challenge one's detention. Obama didn't broaden state secrets in the example you gave. He coupled it with an argument on sovereign immunity. I would agree with you if you said that this also was a bad thing and so also was his support of holding detainees without access to the courts, but your main point in this article is to characterize his answer on state secrets insincere or disingenuous. Can you really not discern between these three very different issues?

[jmc42]

12:07 PM on 05/01/2009

Welcome to the world of Barak Obama Bush.

Spying, Torture, Rendition, Iraq, Afghanistan, Debt continue as previously.

[smchp]

12:04 PM on 05/01/2009

He made sense to me. The state secrets policy is too broad and he also wants a mechanism for exceptions.

[chocolatecity]

11:56 AM on 05/01/2009

And this didn't happen one week into the Obama presidency, it happened about two-and-a-half months after he took office.

Jason. Seriously the man doesn't even have an Office of Legal Counsel Director in place. I know that you and the ACLU are on a mission to embarrass Bush for all the wrong that he did, but you know that you are not being fair. Once he has his team in place. If he continues to use the "states secrets" claim then I would agree with you. But he should have an opportunity to fill out the important positions that would play a major role in making these determinations.

[cam]

11:41 AM on 05/01/2009

State Secrets and bombs both this in common -- they must be delivered to target before they are detonated.

There is an extremist element in the US that will support the most egregious actions of the Bush Administration. It is too embedded in our own society to be dismissed.

Also, a vast pile of entangled secrets has been deliberately constructed so that it is almost impossible to excise anything without revealing all. The vast majority of the pile is passive cover and active misdirection, but reveal those elements as such and they will point directly at the secrets they shroud.

In short, the pile has been primed to explode if the least of it is touched.

[RealPlumber]

10:42 AM on 05/01/2009

We've had 8 years of reactionary governing, Obama will take all the time he needs to make a move, he's a lawyer .... they don't hurry. I trust the Prez.

[realpolitic]

10:02 AM on 05/01/2009

Yes, I believe in pursuing the same state secrets strategy as the Bush administration and by not investigating the Bush torturers to date, Obama has failed us and not lived up to his campaign promises. Otherwise, he is doing a steller job.

[demfriend]

10:02 AM on 05/01/2009

I wonder how much the Obama promise of not going into the Bush crimes will hurt him and us as we have to know more to be able to cleanse our country in front of the world before we can believe ourselves to be the honorable people we believe ourselves to be. While Bush was our President he made war on a country not threatening us to either get the oil or Saddam or both but at what cost? We as a country should be protected from the few who are willing to promote the big lies to achieve anything like this again. The only way to actually protect ourselves is to know the how and why of what went on so we can do what needs to be done to not only prevent this but to cleanse ourselves of this filth of Bush/Cheney/Rumsfield/Rice/Gonzo and the thousands dead and millions injured and displaced. We should count our own dead and injured but we must count all peoples too. Obama is not a stupid man and he knows the depth of our anger and pain so I wonder what motivates him to want to not pursue this?

[oldguru]

11:41 AM on 05/01/2009

Face it. This issue is radioactive. No matter how it is handled, the right wing is going to politicise it.
It will tear this country apart. It needs to be done, but at this point the majority of the public are not convinced that they want to go through the pain. I believe that as more information surfaces, it will become impossible NOT to prosecute the people in the Bush/Cheney administration for war crimes.
It may have to wait until Obama has been elected to his second term for it to become politically possible . We need to be patient, but keep the pressure on to investigate.

[busterbrownthefirst]

11:52 AM on 05/01/2009

I hate to say it but I think his motivation is polls--it looks like most Americans don't want to pursue prosecuting Bush' crimes: http://www.cbsnews.com/stories/2009/04/27/opinion/polls/main4972844.shtml

You know, all during the election I think everybody who loved him was channeling their innermost political desires and made him into whatever they believed in most. Now that he's elected, oops, he's what I'm pretty sure he's exactly what he watned us he was, just a pragmatist. Yikes! I was sure a big supporter, and I am disappointed with the way he has played almost everything. He's gone for middle-of-the-road and conciliation when he should be going for principles and morality. I sure wish he would be more like Jimmy Carter and less like Bill Clinton.

[Sumocat]

09:03 AM on 05/01/2009

"So this idea that the administration's just been too busy, and they need a little breather so that they can sit down and really delve into the matter, and it's just unfortunate that they had to respond to a court filing so soon into their tenure, just doesn't wash." -- It's really ridiculous to think that anyone can sort through eight years of classified info left by the Bush administration in two months, particularly given reports that they left their detainee data in shambles. It's not like this info was handed over in a neat database. To think anyone can put this Humpty Dumpty back together again in two months shows a true lack of understanding of the circumstances.

And keep in mind, the president had no access to these secrets prior to his inauguration, and the people in his administration have had even less time. It's not like health care reform where you can go in with a plan ahead of time. This is delicate information, analyzed on a case-by-case basis.

Remember also that intelligence operatives are the soldiers who fight our wars behind the scenes. We need to protect them as much as we need to protect our troops who are out in the open, perhaps more so since their jobs often keep them from speaking for themselves. Obama was handed a hammer for the job, so he's using a hammer. Two months seems an unreasonable span to expect anyone to reform that into a scalpel.

[vinny]

09:34 AM on 05/01/2009

the description of Jewel vs NSA above seems to counter the argument that O just didn't have enough time... clearly, O is testing the waters with the idea of "sovereign immunity"...

[TheIndependenceParty]

09:03 AM on 05/01/2009

I find a disturbing trend in the new administration of pointing to others and claiming that some nameless entity in DOJ, ... or elsewhere, is in charge of the direction of our nation. I think this is somewhat natural when the mantle of power is first being donned, but it is now May.

It will not wash for Gibbs to point to Emanuel, ... or Emanuel to point to Holder, ... or Obama to point to anyone. Transparency without accountability is pointless and worthless, ... sorry to raise the obvious.

Extending the notion of sovereign immunity is preposterous in the face of the last 30+ years in this Nation, from Nixon' and Watergate, through Reagan and Iran-Contra, and literally all of Bush II. We have seldom in our history had more misdeeds than in recent times, ... and fewer ways to reveal and address them.

Open the curtains please! Let's get a little light in here!!!

[nomobull]

09:50 AM on 05/01/2009

YOU CAN DO BETTER HAVE AT IT. IF YOU CAN INHERIT THE MESS HE HAS AND DO BETTER GO FOR IT.THIS MESS WAS YEARS IN THE MAKING BUT YOU WANT EVERYEHING HANDLED AND CLEANED UP IN MONTHS ,WEEKS,DAYS,

[-0013]

11:38 AM on 05/01/2009

Enough with this "inherited mess" bs. The ship has sailed on that. Obama is in charge and now and it's his mess. Deal with it.

[paganmist]

08:58 AM on 05/01/2009

You know, I don't want to march lock-step with party, or be an Obama rah rah girl, BUT, here's what I know:

I trusted him enough to hire him for a job of which I know very little about. And I never will, because I don't have access to the white house. So I know there will be things that he has to do that I won't know the true "why" of - I hired the President knowing that, and when I voted for him, my vote said, "I trust you to do the right thing behind closed doors."

Now, on the surface, there are things that look bad. But what's going on behind closed doors? What's happening in meetings? What's going on in his head? I don't know, and I NEVER WILL.

I can suggest that I know O's motives simply from viewing the highly limited information in front of me - which seems like a lot of info, but doesn't take into account what's happening behind closed doors, nor what O's overall plan is with regards to national security.

But doing that would just be characterizing the situation. THERE IS A LOT THAT I DON'T KNOW, and will NEVER know. I am not going to criticize or applaud until I get a long-term view of how these policies play out in the unfolding of a long-term national security plan. That seems like the best, most educated course.

[BadgerBoy]

08:54 AM on 05/01/2009

I completely agree with the admiral on this one. Obama has always been about long term, you build your base and then move forward. I trust him and in the past he has shown that he can deliver. I think the problem is everyone is impatient and want instant changes to the whole system of government. Besides we are talking about "state secrets", do people really think they are going to reveal everything? If anything this is the perfect opportunity to change the system and no one would ever know creating a great strategic advantage. And lastly, if you knew a case was going to fail, and you supported it failing, why not put it forward to create a precedent? I am positive that Obama know a bit more about what is going on than Jason here, and if you cannot have faith in our current president then you will never be able to trust any president.

[LewDan]

08:33 AM on 05/01/2009

I, for one, am really getting tired of your constant attempts to attack Pres. Obama. You always infer sinister intent, assume ulterior motives and extrapolate future betrayal. And always without any factual foundation. Not even anonymous "sources close to the President." You just make stuff up. And you're clearly biased.

Just what is your real problem with Obama? Because the only blatant deceptions and dishonesty that I see are yours.

[x4faith]

08:10 AM on 05/01/2009

Well, I can't say that I agree nor can I say I disagree! Being that we have NO idea as to what's going on. Were dealing with a lot here and there's alot on the line in terms of our NATIONAL SECURITY! His top concern is to keep us safe. Where will you all stand if we should get attacked, again because of this situation. I know Rachel Maddow and Keith Olberman are pushing this really hard and it's starting to get under my skin. I just don't know what that want having not all the details of anything. I mean, it's not like the 911 attackers came here on the 9/10 and went into attacke mode. They had planned this crap for years...Some of em' right here posing as regilous organizations. I know Americans want to be moral but really, when dealing with those guys, some times I think morals are a matter of opinion....Just like abortion is...A matter of opinion.

What is it that everybody wants to get outta this? Please tell me! Running around acting all moral when in fact most of us do immoral things everyday!

I still believe in President Obama. He's been delt a tuff hand in horrible times. He's donig the best he can. That's what I believe.

[Manx]

02:53 AM on 05/01/2009

I thought the question was a good one but Obama's answer was not plausible. As professor Jonathan Turley of Gergetown University said, if the Attorney General was too busy and pressed for time, he could have sought and received a delay from the presiding judge.