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.

Comments

[mbalz]

incredible. On one hand, I get hte logistical concerns. But, really, this is heinous.

[IndyReader]

I'm glad that the Senate and House Judiciary Committees have re-introduced the SSPA because why is Obama expected to do everything?

[Alex Flores - Huffpost Blogger]

Thanks, Dan.

The text isn't yet available on Thomas. Do you know if this will have any effect on the FISA Courts as they currently stand, or might it have any hand in restructuring them or their functions? Or will it only effect civilian court systems?

Second, what model of rendition do you propose as most fitting for the Obama Administration? If a return to the Clinton model is out of the question and a shift leftward from Bush-era policies is expected, what final product do you expect or hope for?

[Daniel Firger - Huffpost Blogger]

I would be remiss not to draw attention to the fact that the Senate and House Judiciary Committees have both re-introduced the SSPA this week. See http://leahy.senate.gov/press/200902/021109b.html for more information.

[Gogetter]

I think the problem that's a lot of the reaction from the left concerning this is that people on the left basically expect Obama to govern the same way Bush governed, based solely on ideology.

The assumption here is that the state secret claim by bush was soley about blocking the lawsuit and not about legitimate concerns. That's probably a safe assumption, but the DOJ can't make decisions based on that assumption. You have Glen Greenwald saying that Holder not having time to review the privilege claim, is just an excuse. Holder probably doesn't have a desk in his office yet. The problem is Greenwald doesn't seem to think the claim should be reviewed. Instead it should be waived on the basis of the "Bush Always Wrong Principle". I agree with Andrew Sullivan when he wrote, "government ain't blogging". The DOJ can't operate like that. Like one admin offical said, "If you decide today precipitously to waive this privilege, you can't get it back. If you decide to assert it, you can always retract it in the future."

Now Obama is suppose to show "he knows what he's doing" by endorsing the reintroduction of the State Secrets Protection Act. Maybe there are some on the left who should consider the possibility that Obama is a liittle smater than they are.

[Snuffleupagus]

Torture and murder.

Torture and murder.

These are crimes that have clearly been committed.
http://rawstory.com/news/2008/Unredacted_documents_reveal_prisoners_tortured_to_0212.html

Covering for the Bush White House in such a clear case of criminal treasonous behavior is reprehensible. It does nothing to indicate President Obama "knows what he is doing".
If he wanted to clean up the filthy Bush era torture mess, he would simply allow the trials to continue, as the first step in a long process of disclosure, healing, and prosecutions where needed.

There is no way to spin this smooth transition from one White House to another, using the identical criminal legal arguments to support TORTURE.

[Yermammy]

Glenn Greenwald has forgotten more Constitutional Law than you will ever know. You aren't Mr. Greenwald's agent nor do you have any right assuming what he means because it's obvious you can't understand the issue here.

"You have Glen Greenwald saying that Holder not having time to review the privilege claim, is just an excuse" it IS an excuse as all a request on continuance is all that was required to study the case futher, NOT to fully embrace Bush's tactic to throw the ENTIRE case out due to SS privilege.

"Bush Always Wrong Principle" This is a product of YOUR imagination and again is a lie. You either don't like Mr. Greenwald or you are a Bush loyalist, but either way, this is a biased view as Glenn will call any and everyone out on the carpet when they veer from the Rule of Law and civil responsibility. That's the reason legions of views OF ALL POLITICAL LEANINGS follow Glenn's articles and opinion. THE WHOLE ENTIRE ARTICLE WAS CRITICIZING PRESIDENT OBAMA FOR HIS HYPOCRITICAL USE OF STATES SECRETS PRIVILEGE! (LOL)

My suggestion to YOU Gogetter, is to watch and learn from a MASTER. I wish you'd go and comment at Glenn's site with that little pathetic argument you just posed. I'd love to see it rendered into tatters.

BTW. The SSPA IS going forward, count on it. And yes, Barack knows what he's doing, it's just not what YOU think. (that's how he WON:)

[Yermammy]

For people that would like it STRAIGHT from the horse's mouth (and why Gogetter should go back to National Review or wherever he slithered in from), here's the article link explaining why this is crucial for Obama to get right-

http://www.salon.com/opinion/greenwald/2009/02/10/obama/index.html

And this is what Congress is proposing to ensure he does-

http://www.salon.com/opinion/greenwald/2009/02/12/state_secrets/index.html

That's the danger of believing someone like Gogetter. They interpret just enough to get themselves in trouble. Information is POWER.

[Gogetter]

Yermammy wrote: "You either don't like Mr. Greenwald or you are a Bush loyalist.."

If you weren't so busy kissing Greenwald's sack, you'd notice that there's nothing in what I wrote that defends Bush. His rebutal of Cheney's( and the right's) whole "Bush kept us safe" narrative is brilliant. My point is deciding policy is a little more complicated than blogging about it. Seeing the necessity of Obama reviewing Bush's stance on a state secret privilege claim before rescinding it doesn't make me a Bush loyalist.
No, it makes me someone who knows who he was voting for when he voted for Obama; a pragmatist who doesn't make decisions blindly even when the decision seems obvious to activists and bloggers.

Yermammy wrote: "BTW. The SSPA IS going forward, count on it."

I never argued that the SSPA wouldn't or shouldn't go through. My point is that Obama has better reasons to back it than to "show he knows what he's doing on state secrets".

Yermammy wrote: " And yes, Barack knows what he's doing....)"

You need to send that to your MASTER, Greenwald.

[AntsyAmerican]

Holder's newness to the position IS an excuse, because there's this thing in court procedures called a continuance. It goes something like this: "If it please the court, we request a delay to allow the new Attorney General to review the government's position on the state secrets argument." "OK, case is continued till blah blah blah date. We're in recess."

Nobody would have had a problem with that, in fact it would have been viewed as an encouraging sign.

[GKJames]

"Clearly, Obama won't be running this kind of operation." Am not so sure. While I agree that that's not his inclination, the question is whether he -- or anyone else, for that matter -- will ever be able to bring our national security institutions under control. Of course, there's nothing like the persuasive deterrence of lengthy prison sentences and/or multi-million dollar liability judgments to change the prevailing culture, but the likelihood of either in the prevailing moral vacuum and triumph of gutlessness is nil.

[priorato]

Congress already re-introduced the State Secrets Protection Act, but it wasn't at the instigation of the Obama Administration.

[Yermammy]

And rightly so. You don't want it to look "partisan", do you? We can't have "partisan"! (even though we had it for eight long years)