03/15/2009 05:12 am ET | Updated May 25, 2011

What Obama Should Do About State Secrets

Monday's hearing in the Mohamed v. Jeppesen Dataplan "extraordinary rendition" lawsuit was a rude awakening for civil libertarians expecting the Obama/Holder Justice Department to make a clean break from Bush era policies on secrecy.

Most lefty commentators greeted the news that DOJ will (at least for the time being) maintain the Bush administration's position on the state secrets privilege with some mixture of disappointment, dismay, and alarm, and with good reason. Even the most charitable reading of why the Obama lawyers chose to maintain a "holding pattern" on extraordinary rendition and secrecy is a bit flimsy.

The argument seems to go something like this: First, Obama didn't ban extraordinary rendition when he signed the January 22 executive order closing Guantanamo because he may need to maintain some flexibility around the apprehension and (temporary) detention of future terror suspects; Second, his administration needs time to develop new rules and guidelines to govern the use of rendition going forward. What began as a "rendition to justice" program under Clinton, designed to bring fugitives to justice in U.S. courts, was transformed by the CIA after 9/11 into what eventually became a secret kidnapping operation that transferred detainees to black sites for indefinite incommunicado detention. Clearly, Obama won't be running this kind of operation. But neither will his administration be reverting to the Clinton model. A new standard operating procedure is obviously needed if renditions are going to be used, sparingly, to deal with tough terror cases; Finally, it's apparent that DOJ doesn't want to altogether repudiate the state secrets privilege at this early date, and in this high profile rendition case, without first determining whether and to what extent it would impair the government's ability to use rendition again should the need arise.

Setting aside the important questions of whether extraordinary rendition is legal under international law and whether continuing to endorse rendition as a tactic is good politics or strategically wise, I believe there is a quick and simple way for the Obama administration to maintain the temporary flexibility it needs while signaling its "good intentions" on secrecy over the long term.

Obama should call on Congress to reintroduce the State Secrets Protection Act as soon as possible. The bill is a carefully crafted compromise, ensuring that procedures will be available to protect truly sensitive government secrets from being revealed in open courtrooms across the country, while at the same time limiting the scope of the privilege so that it will block some bits of evidence, but not the "very subject matter" of entire categories of lawsuits, as is the case today. The SSPA, introduced by Senator Kennedy in January 2008, passed out of committee in the 110th Congress, but never reached the Senate floor for a vote. It should become law in 2009.

If Obama wants to signal that he knows what he's doing on secrecy, he should endorse the SSPA ASAP.