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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