Obama and The State Secrets Smackdown

President Barack Obama has drawn praise for transparency reforms during his first 100 days in office, but his use of the "state secrets" privilege to squash lawsuits on torture and surveillance is drawing mounting opposition.

On Tuesday, the Ninth Circuit rejected the Justice Department's attempt to use the state secrets privilege to shut down an ACLU case challenging government rendition. As the Washington Independent reports, the Ninth Circuit reversed a lower court and reinstated a case challenging alleged rendition by CIA contractors. The Ninth Circuit held that the government's secrecy claim was so broad, it would shut down legal oversight and accountability for the entire CIA and its associates:

At base, the government argues here that state secrets form the subject matter of a lawsuit and [] require dismissal any time a complaint contains allegations [which themselves have] been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it "involves 'allegations' about [secret] conduct by the CIA."

This sweeping characterization ... has no logical limit--it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government's theory, the Judiciary 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. (emphasis added.)

The Ninth Circuit rejected that approach, it explained, not only because it was "unsupported" by case law, but because it "forces an unnecessary" face-off between the Judiciary's duty to uphold the law and the Executive's duty to protect national security. (PDF of opinion here.)

While federal judges usually have the last word on these issues, they are not the only ones expressing skepticism at Obama's expansive use of the privilege.

This week, Sen. Russ Feingold drew headlines for giving Obama a "D" on state secrets in his 100 Days report card. Sen. Feingold, who cosponsored legislation to provide guidance on how federal courts should review state secrets privilege invocations, is urging the administration to support the bill - which Senators Biden and Clinton previously backed - and calling on the Attorney General to publish a review of how the previous administration abused the privilege to avoid transparency and oversight.

At the Brennan Center, our Liberty and National Security Program just published a 30-page report assessing the administration's transparency record at the 100-day mark. The administration's use of the states secrets privilege drew the lowest grade, an F, because the administration has invoked a broad reading of the privilege to squash three important cases:

The Obama administration has defended invoking the state secrets privilege to prohibit judicial consideration of entire subject matters and to deny attorneys with top-level security clearances access to documents they have already seen. [It has even] suggested that judges' rulings on the privilege can be evaded by taking the documents away from them. While some have expressed hope that President Obama will use the privilege more sparingly in lawsuits challenging his own administration's conduct, that prospect seems counter-intuitive at best.

Other legal experts have also raised concerns on this front, including the Center for American Progress's Ken Gude, conservative legal scholar Bruce Fein, and advocates at ACLU, EFF, CCR and the bipartisan Constitution Project.

While Obama has much to celebrate at the 100-day mark, this is clearly an area where experts and many allies are looking for a little more change.

--
Ari Melber writes for The Nation. The Brennan Center's publication, Transparency in the First Hundred Days: A Report Card, is available here.

 

 

Follow Ari Melber on Twitter: www.twitter.com/AriMelber

Comments

[poliscibabe]

I think this was the right strategy for dealing with the excesses of the Bush Administration. If President Obama had tried to fight the stance of the Bush Administration we would still be hearing about his: disrespect of the office of the president, his liberal bordering on socialist tendencies, his general unfitness for the office etc. This way the conservatives thought they had someone on their side and it's the courts (rightly so) who have interpreted the laws. I say, "Well played President Obama!"

[Durango]

Adopting a stupid legal theory is good strategy?

For a Constitutional law Professor?

No, no, no.

And we need to convince the president of the folly of going in this direction.

[ostrom808]

The flaw in this argument is that, what happens when you've invested all this super-strategic thinking in out-calculating the courts, AND THEY DON"T MAKE YOU STOP the illegal activity?

I just do not buy the premise that Obama is playing us all by not really believing in the policies that he is arguing forcefully in the courts.

True leadership is when you say what you mean, and then act in concert with your statements.

[marignymitch]

Bless the 9th Circuit. The system still seems to work sometime. Now Obama has egg on his face. Congress, time to stand with the angels on this one.

[MaryfromMontcoPA]

The govt position is so opposite of Obama's usual positions on things that I can't help but wonder whether O took this Bushian stance deliberately in order to get a JUDICIAL smack-down of Bush's idea. That'd be harder to undo by a future president than a presidential executive order...

Judicial reversal = setting legal precedent = Checks and Balances

If not, then I'm doubly glad it was smacked down!

[marignymitch]

If I was seeking an answer to Obama's Bushian stance, I'd look to his bosses at CIA, who already have ordered that there be no prosecutions for torture.

[wijg]

"While Obama has much to celebrate at the 100-day mark, this is clearly an area where experts and many allies are looking for a little more change."

Including me.

Good news!

[tnfit78]

Wasn't that the point of him asking for these legal rulings???

[tnfit78]

That was kinda the point of him wanting these legal rulings.

[flossophy]

Change. No we won't... and we're not tellin' why.

[Sundialsvc4]

Congress, get in there and revise those laws. Define what the privileges actually should and should not be. The ultimate decision lies solely in your Branch. The better and more clear "the intent of Congress" is spelled-out, the better off it will be for the other two Branches, and for the people.

You have -such- a full agenda, Congress!

[Helzapoppin]

GOOD!

[brandnewstuff]

http://www.ce9.uscourts.gov/misconduct/complaint_form.pdf?OpenDocument

How to file Complaint Form on Judge ByBee

[brandnewstuff]

Yes Jay Bybee
The Ninth Court of Appeals

A complaint can be Made on Jay Bybee

Make a Complaint on a Single Judge- the complainant must file five copies of 1 the complaint form- 2- the statements of facts- 3 any documents submitted-

Mail materials to this addy
Clerk, United States Courts of Appeals
P O Box 193939
San Franciso, CA 94119-3939

Citzen Activism

[SurrealPumpkin]

Not too much longer and the Supreme Court will put the nail in the coffin of "State Secret = CYA"

[brandnewstuff]

Ninth Circut Federal Court Judges

Kozinski, Alex ---
Schoeder, Mary Murphy--
Pregerson,Harry--
Reinhardt, Stephen Roy-
O'Scannlai­n,Diarmuid Fionntain-
Rymer, Pamela Ann-
Kleinfeld, Andrew Jay
Hawkins, Micheal Daly
Thomas, Sidney Runyan
Silverman, Barry G
Graber, Susan P.
McKeon, M. Margaret
Wardlaw, Kim Mc Lane
Fletcher, William A
Fisher, Raymond C

[Durango]

Bybee's on the Appeals Court of the 9th isn't he?

[Durango]

OMG Was Bybee on the panel?

isn't it amazing that at times our judges can manage to cut through the BS and make good decisions?

Even, at times, conservative appointees of that fool Bush and his father.

It is one thing that should give us hope. That judges in America are able to read the law and make intelligent decisions. Not all the time of course.

But often enough to give us hope.