Obama's State Secrets Position: Selling Out Or Clever Ploy?

Yesterday, I posted an item that criticized President Barack Obama for failing to take the sorts of actions that matched his answer to Time's Michael Scherer's state secrets question Wednesday night. In fact, he's taken the opposite action by expanding on Bush policies he termed "overbroad" and failing to discern genuine security concerns from false ones. Plenty of readers disagreed with my bottom line, that Obama's answer was not geniune. I hold to my analysis! But, emailer Ron Carey challenged my contentions in a thoughtful and engaging way, so I figured, why not air a reasoned countering opinion? Here goes:

Obama has stated more than a few times that the Bush era secrecy claims were outrageous - States Secrets were never meant to be used in this manner. Obama is a constitutional scholar and knows full well the ramifications of a sovereign immunity claim. His stated position is a polar opposite from this claim, so how can his administration make this patently ridiculous argument?

If Obama was only interested in making sure that these claims weren't available under his watch, he'd simply not use them. I think he has a longer-term view of the situation. He saw what Bush got away with. I think he wants to make sure future administrations don't have this club in their bag when he's gone. So how can he do this?

Well, he could go to Congress and demand legislation that disallows this use, but the Dems in Congress are spineless and he'd wind up with a half-a-loaf compromise that wouldn't have any teeth.

Or, wait a minute, he already has a number of these cases traveling through the court system now. What if he just let them proceed? The courts would dismiss the Bush secrecy claims for sure, and he'd have a precedent that future administrations would need to deal with if they wanted to repeat the same mistakes.

But what if the court rules in favor of the secrecy claims? That would screw the pooch but good... Hmmm... Well, we'll have to make sure that doesn't happen. How? Let's just take Bush's secrecy claims to their preposterous conclusion. We'll make them so outrageous, no court in the land could possibly uphold them. We get our precedent for future administrations and avoid the nonsense that comes with legislating this out of existance.

I've made this case to a number of people from both sides of the political spectrum. I have been roundly ridiculed for the hypothesis. Other progressives called it "11th dimensional chess" - don't ask me, I don't know what that means. They considered it crazy. But is it, really? I mean, it isn't even regular chess. It isn't even complicated. Other bloggers, including one ex-constitutional lawyer I know, thought it was crazy to think that Obama's administration might present a case disingenuously to serve an ulterior motive. He didn't seem to think that lawyers do that kind of thing.

But they do it every day. Every time a lawyer blames someone else for the crime his client is accused of, he's forwarding a case he doesn't really believe to serve his end goal. So, are we to believe that Obama is incapable of such a move? Or are we supposed to be so cynical, so skeptical, that we just automatically assume the worst of our elected officials?

I like to think that I'm not reflexively "assuming the worst of anyone," just judging the merits of actions already taken. If we all can accept that, though, I think this matter would make for some lively debate in the comments, so I invite people to chew on the matter.

FYI: I tried to clarify for Ron, by the way, what the reference to "11th dimensional chess" meant. It is, I believe, a Star Trek reference! The crew of the Enterprise was often depicted playing a chess-like game that was three dimensions, and the idea was, "Damn, lookit how crazy ADVANCED those dudes are, playing SUPER SPACE CHESS!" And so, whenever you argue that Obama is playing some political jujitsu, you hear someone saying, "OH yeah, eleventh-dimensional chess."

I can't wait to see what J.J. Abrams does with that!

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Comments

[SeattleWill]

04:32 PM on 05/03/2009

"secret" reports mean that the release would cause "grave harm" to the United States. Releasing such information is a serious crime. Its called treason. Obama once again is putting America at risk to kiss up to his Muslem brothers.

[HoosierInMaryland]

12:30 AM on 05/03/2009

If President Obama takes the illogic to it's 'logical' end, the courts will almost certainly rule against the government's case.

IMO, this has several benefits:

1. The courts will have ruled against little shrub's policies, therefore those specific and similar policies are not available to future Presidents.

2. President Obama can say, with a straight face, "I tried to defend those policies, and the courts ruled against me." It will be very difficult for the GOOPers to put the blame on President Obama for the courts overruling the policies. As skillful as the GOOPers are at turning arguments upside down, it will be very difficult for them to defend President Obama (who they hate) and castigate the court system that they feel is still on their side after all the years of court packing they've done.

3. If Congress passes legislation rejecting little bush policies, it is possible that the American electorate will elect another little shrub AND a supportive Congress, and they can just pass legislation to repeal the law that this Congress passes. Reinstituting little shrub's policies in such a future administration will be MUCH more difficult if the court system, not Congress, repeals little shrub's policies.

It might take longer to get such policy changes through the court system, but it will be much more difficult for the GOOPers to blame it on President Obama, and get the policies back 'on the books' in some future administration.

[allincompassing]

10:20 PM on 05/02/2009

It's nice to know that many people are awakening to President Obama's manner of handling resistance. The best way to get your opponent to do what you want is usually to show interest in a proposed goal and motivate the opponent to take it from you. Constitutional law is and always has been the man's passion. He's proving himself to be the superior intellectual in a minefield of bitter rivals. At the same time, he is also unearthing which of the lower courts have been comprimised by 8 years of Bush oversight.

Jason is probably closer to the truth than most poeple realize, and it's a comfort to recognize that our Administration is willing to think outside the box. Humility means, your not concerned about who gets the credit. President Obama is only concerned that we do what's right! Right in this case means that no Administration from this day forth, will ever be able to misuse the Constitution again. As long as Holder continues to push the envelope, the courts will ultimately deny the administrations requests. Who wins, we do! If the administration wins, then President Obama has the right to torture, spy on and deny legal rights to anyone he wants with the stroke of a pen. No way, the republican power brokers are going to let that happen.

The people win!

[jetgirl]

08:50 PM on 05/02/2009

I think Obama always thinks ahead and is incredibly smart. People whine about what they see in front of them without thinking about what the actions of today will mean in the future. Not to say this is true, but Obama obviously is good at the clever ploys.

[justsomeguywhocameby]

08:02 PM on 05/02/2009

During the election I expended considerable energy second guessing Obama's moves.

I learned, after much useless mental anguish, that his choices were always superior to mine on multiple levels. I also learned that his time line, from initial step to conclusion, is much longer than I am accustomed to. He has proven to me that he is adept at channeling existing forces to accomplish his goals.

In short, President Obama has earned my trust. It is such a relief to have someone smarter than I am running the show.

I am inclined to agree with Ron's analysis.

It's much more likely that the President is pursuing a subtle strategy rather than a 180 degree turn from his campaign rhetoric.

[JulieSA]

05:24 PM on 05/02/2009

Obama just put military commissions at Gitmo back in play, and I think he was sincere on the state secrets thing.

I think it's horrible what Obama is doing with the economy, but he's more practical on national security stuff. I think his briefers really scared some sense into him during the transition.

[MASTER-BLASTER]

03:04 AM on 05/03/2009

That they tried to use fear is expected...that it put some SENSE into Obama is a reach JulieSA.

It worked the first time and even the second but no more. Not even the trolls fall for that line of
mis logic anymore.

Fear and loathing is a right wing, long range tool...and it grows blunt with the constant use.

But the way the economy was in ruins before Obama came into office...

check yourself before you wreck yourself.

[rascalcat]

01:12 PM on 05/02/2009

I like the way you think, Jason. You may be right. We have elected an extremely bright and thoughtful President. I'm willing to give him the benefit of the doubt for at least a year or two.

[MASTER-BLASTER]

03:09 AM on 05/03/2009

Rascalcat I would like to (respectfully) suggest you give him 'at least' 3 1/2 years.

If at that time he is going wrong, by your standards, then vote him out...

that is the American way.

Not this back stabbing, stonewalling, party of No constant rant that is ongoing at the moment.

[Obamacrat]

10:21 AM on 05/02/2009

I think Ron has it right. President Obama has made the claim so outrageous that the courts must strike it down.

[DavidMG]

07:18 AM on 05/02/2009

I had been hoping that Obama had this sort of strategy in mind becuse the states secrets theory is obnoxious to a democratic government. Will be interesting to see how it plays out.

[Lindy222]

01:06 AM on 05/02/2009

The problem with this theory is that Obama is not simply a lawyer trying to strategize his way to a desired outcome on behalf of a client. He's the President of the United States, and there's too much downside to this ploy -- and that's even if it works. Now, that downside might not matter if Obama were just that lawyer defending his client. But the costs here can impact other things at least as important as this.

That said, who knows. Unintentional or not, maybe this'll end up working out the way Ron Carey describes.

[roquelaure]

12:58 AM on 05/02/2009

Oh. My. God. Obama "Super-Sekrit-Master-Plan" apologists - please, give it a rest! It's fine to say he's doing a mostly great job with this one glaring problem. Try it out on a family member sometime... see how it feels.

You can't possibly think you'll agree with everything he does as president, ever. That's self-evidently absurd. Wake up and smell reality. This is one of those areas you're going to disagree with him on. Accept that, and do whatever your conscience dictates, but don't engage in this cringe-inducing self-deception. That's what loyal Bushies do, not what good citizens do.

Obama can be a great president, but we have to make him do it. If we aren't honest about what is really going on, he'll go down in history as an OK president, forever marred by a big, honking flaw. If we choose, though, he can go down as a Great President that not only accomplished much, but revitalized the nation by doing the right thing in the face of unprecedented political crosswinds.

You can decide what kind of president we get, but you can't do so with your heads lodged firmly up your backside. Or his. Come up for air.

[CodeWorrier]

05:04 PM on 05/02/2009

Once I subtract the pointless insults and name-calling from your post, I am left with the fact that you don't agree. That's fine; got it. Now take your aggressive attitude somewhere else -- this kind of vituperative speech may make you feel better, but it contributes nothing to the conversation taking place here, in this one tiny thread, of one website, of the very large internet. Plenty of places for you to go and spew, so please go find some of them.

[Snuffleupagus]

05:47 PM on 05/02/2009

pointless insults and name calling?

Then you go on to tell him to find another site because he dares to offer a balanced non worshiping assessment of Obama and his torture waffling?
Read your own comment and take a good look in the mirror about aggressive attitude monitoring.

The absurd conspiracy theory that Obama is trying to fight torture by going to court to defend it (in many different trials) would be pure comedy if people weren't seriously trying to defend it.

People who dare to demand that Obama get serious on torture and stop protecting Bush are correct. It is a sad statement that they cause such grave offense to code-boy that he would have them all leave the site and take their law abiding ways with them.
Sorry code-boy, free speech still exists here, but your opposition to it is duly noted.

[kgb999]

10:52 PM on 05/01/2009

Ron: you are not alone. I was ridiculed somewhat for presenting this theory over at TPM just the other day .... add "Political Jujitsu" to "11th dimensional chess" as a thing progressives call ideas when they think they are crazy.

http://tpmdc.talkingpointsmemo.com/2009/04/obama-states-secrets-privilege-too-broad-i-know-ive-used-it.php#comment-3453429

I'm not 100% sold on the theory yet ... but it sure does make sense. More sense than Obama pulling a full 180 from his campaign promises in less than 100 days IMO.

[thepoliticalcat]

10:07 PM on 05/01/2009

Jason, I think you're great, but I think your commenter has hit the nail on the head. This is exactly what I've been thinking all along. Obama is way too smart to not dot every i and cross every t. He's shown repeatedly that while others play checkers, he plays chess. He's always a whole boardfull of moves ahead of everyone else. It makes total sense that this is how he would handle it.

I guess eight years of the Bushie horrors makes us all nervous and queasy about everything. But when I think of how neatly he has handled issue after issue - making up with Clinton, picking his Cabinet, giving the Republicans every chance, publicly, to play nice and slapping them down when they don't, managing our worthless press - he's too smart and too dedicated to the well-being of this Country and its Constitution not to have a wide-reaching and ultimately Constitutional strategy to contain this "state secrets" blot upon our nation.

[Texas Blue]

09:38 PM on 05/01/2009

I've thought all along that The Man Has A Plan. (I mean, come on, seriously, constitutional law is his thing.)

Making sure America NEVER, EVER authorizes torture again is his goal. If he reaches his goal, I'm betting we'll see justice served along the way.


Checkmate = (1) the defensive player in the game has no legal moves left to make; the King is defeated. (2) An irrefutable and strategic victory.

Make your moves, Mr. President.

[marbiol]

09:16 PM on 05/02/2009

i thought there was some backing dwn from this constitutional scholar thing--at least a refutation that he taught constitutional law--and it was from someone on his staff I believe. Anyway, I doubt you find anything in the Constitution about the govt taking over businesses whose stocks are publily held and traded. I also doubt you'd find anything about universal healthcare as a right. For these to be Constitutional I would think we'd need to amend the Constitution.

These actions are reminiscent of Bushies abuse of FISA-oh--we had to act NOW--no time to get a proper warrant. So what are we doing now: acting impetuously and probably violating the constitution. Lets get some action going on a Cnst amendment for universal healthcare; lets get rolling on a Constituional amendment for these bailouts---sure it might take a little time, but with the hole we're in I would be most State Legislatures would respond expeditiously!!!

[MASTER-BLASTER]

03:17 AM on 05/03/2009

I DOUBT that you know what you are talking about.

103 day in and you got it nailed.

Yea right!

[Lochmon]

08:52 PM on 05/01/2009

Sorry, rewrote that last sentence and didn't realize how it ended up... it would eventually have to be lost in the Supreme Court, however it gets there.