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Washington, Nov. 10, 2008.

Has Obama Followed Bush’s Precedent of Privilege on State Secrets?

August 06, 2009 12:30 PM
by Jill Marcellus
Despite campaign promises and public assurances, President Obama has increasingly relied on the controversial state secrets privilege in court, triggering concern that he will wield Bush-style executive power.

In Court, Obama Administration Defends State Secrets

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Last month, The New York Times reported, the Obama administration filed a friend-of-the-court brief to the Supreme Court in which, “though no one had asked,” stated that the state secrets privilege has a constitutional basis.

The privilege allows the White House to challenge lawsuits that it claims involve sensitive national security information. Although used by both Democratic and Republican presidents in the past half-century, George W. Bush expanded its meaning, according to Clint Hendler of the Columbia Journalism Review, so that “the executive branch can, based only on its own word, stop a lawsuit in discovery if it claims that proceeding further would expose state secrets.”

Obama has criticized Bush's “overus[e]” of state secrets, but his Justice Department continues the former White House’s practice of shutting down court cases or refusing to supply evidence on the privilege’s authority.

The Obama administration maintained Bush’s position in Mohamed vs. Jeppesen DataPlan, arguing that trying the lawsuit, which alleges that Boeing chauffeured terror suspects to secret CIA torture prisons, would compromise security.

An appeals court rejected this state secrets argument, as did a district judge last year in a separate case, when the Bush administration tried to stop the Al-Haramain Islamic Foundation charity from suing the government for allegedly wiretapping it without a warrant. Obama also upheld Bush’s state-secret stance in this case, even threatening to “spirit away the top-secret documents" if the judge did not reconsider, The Washington Post reported.

These courtroom rejections of the government’s state secrets claims are either exceptions or the beginning of a new trend. The privilege’s increased use and repeated success prompted Senators Patrick Leahy and Arlen Specter to propose legislation earlier this year aimed at curbing this executive power with judicial oversight.

With its new approach rooting the privilege in the Constitution, however, the Obama administration could hinder Congress’s legal ability to regulate it.

Opinion & Analysis: Déjà vu all over again?

Obama faces a diverse chorus of criticism from scholars, bloggers and civil liberties watchdogs who fear that his commitment to executive transparency has gone the way of Bush. Even beyond state secrets, he has raised concern with his cautious conduct on habeas corpus and his decision to classify compromising photographs of alleged U.S. torture.

Glenn Greenwald, a former civil rights litigator and prominent blogger for Salon.com, wrote that it is “difficult to overstate… how identical the Obama DOJ now is to the Bush DOJ when it comes to its claims of executive secrecy—not merely in substance but also tone and rhetoric.” In response to one case, Jewel v. NSA, he worried that Obama did not just follow Bush’s footsteps, but advanced a “brand new” and “extremist” argument of “sovereign immunity,” which would quash any lawsuit concerning warrantless surveillance unless there was “willful disclosure” of all information involved. Greenwald opined, “This is the Obama DOJ’s work and only its work, and it is equal to, and in some senses surpasses, the radical secrecy and immunity claims of the Bush administration.”

Former Reagan appointee Bruce Fein echoed Greenwald’s concern in Slate, accusing Obama of seeking “czarlike powers” in his handling of both the state secrets privilege and habeas corpus. According to Fein, the states secrets privilege “encourages torture, kidnappings, inhumane treatment, and similar abuses” and it “wars” with Obama’s pledge to “restore the rule of law.”

Obama has tried to quiet this criticism, stating that, “We must not protect information merely because it reveals the violation of a law or embarrasses the government.” In that speech, transcribed by The Guardian, he promised a “thorough review of this practice” within his administration, and announced his plan to “voluntarily report to Congress when we have invoked the privilege.”

As The Columbia Journalism review notes, however, that information is already available to Congress, and Obama pointedly “did not suggest that this supposed new review would have made a difference in any single decision to evoke that broad assertion of the privilege.”

Background: History of the State Secrets Privilege

The origin of the state secrets privilege poses an ironic challenge to presidential insistence on its necessity.

After a 1948 plane crash involving a secret military weapons program killed three civil engineers, their widows sued the government for negligence, seeking compensation. The government claimed that it could not provide the accident report for national security reasons and, in the landmark 1953 decision United States v. Reynolds, the Supreme Court first established the government's right to deny evidence based solely on executive word that it would compromise state secrets. In his book about the case, Barry Siegel called the decision “an act of faith,” according to the Los Angeles Times.

That act of faith proved to be misguided. In 2000, one of the engineers’ daughters found the now-declassified report online, as she recounted on Chicago Public Radio’s “This American Life.” Looking only to discover the secret mission, she found that there were no secrets in the report, only the account of extreme government negligence.

The engineers’ daughters revived the lawsuit, and although the Supreme Court declined to hear it, their petition has been cited by lawyers seeking to undermine the privilege. Indeed, in rejecting the state secrets claim in the Al-Haramain case, the judge wrote that, “Reynolds itself leaves little room for defendants’ argument that the state secrets privilege is actually rooted in the Constitution.”
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