Obama Continues Expansive Bush "State Secrets" Doctrine

[illram]

Linky.

Tuesday, February 10, 2009

You Cover It Up, You Own It

David Luban

Many of us have been wondering which of the Bush Administration's disgraceful litigation positions the Obama/Holder DOJ would abandon. Yesterday's Ninth Circuit hearing in Mohamed v. Jeppesen DataPlan was a newsworthy first start. It's up there with the maiden voyage of the Titanic and the flight of the Hindenburg. The excellent Glen Greenwald summarizes the bad news here. In brief, DOJ lawyer Douglas Letter astonished the judges on the panel by defending the outrageous Bush abuse of the "state secrets" privilege in a lawsuit by rendition victims against the CIA's travel service that rendered them. Letter informed the incredulous judges that the new administration had decided to maintain the old administration's position.

The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.

This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. It's absurd, of course, because there is no point in keeping secrets that aren't secrets any longer. As the ACLU's Ben Wizner who argued against the government yesterday, said of another godawful state secrets case, "really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen."

That's assuming the secret should rightfully be kept in the first place. Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.

The state secrets privilege, used to cover up wrongdoing rather than to protect legitimate national security secrets, is an all-out assault on public accountability and, ultimately, on democracy. By now, it's well-known that the state secrets privilege was born in original sin. The 1953 case in which the Supreme Court established it, United States v. Reynolds, 345 U.S. 1 (1953), turned out, when documents were declassified nearly half a century later, to be a cover-up of gross negligence under a false assertion that the documents contained national security information.

Andrew Sullivan is right to observe here that "with each decision to cover for their predecessors, the Obamaites become retroactively complicit in [their deeds]." Retroactive complicity is an important, and underexamined, moral category. People cover up for others for many reasons, not all of them bad. But the longer and more involved the cover-up becomes, the more deeply implicated you get -- not only in the cover-up, but in the original misdeeds that you're concealing as well. Little by little, you come to own the deeds yourself. Or they own you. It's time to throw away the Ring, Frodo, before it hooks you and enslaves you.

News Linky-poo

Some are not very surprised by this. Others like myself are ashamed and/or disappointed. In a way things like this are more institutional than political, i.e. once you're in the club you play their game. Or, I will scratch the last president's back, the next president will scratch mine.

On the other hand it goes against a lot of what the Obama administration seemed to stand for in its campaign and in its appointment of people like Holder, who were vocally against much of the DOJ and the executive's prior judicial arguments in this "war on terror." I was not one of those people that thought Obama was this progressive dynamo, I knew he was a centrist and not the most progressive candidate, or even close to one, but OTOH, this is a bit too far to be anything about compromise or just playing the middle ground.

It is also, frankly, a bogus legal argument and completely absurd IMHO. These "secrets" are not so secret anymore. Everyone knows what happened, and both the torturers and the tortured have already been public about what went on. The argument essentially looks like an excuse to prevent the US from being embarrassed in court. (Preventing serious embarrassment and liability, ironically, created the privilege in the first place; not state secrets.) Or is embarrassment and legal liability the real national security risk we are protecting here? It makes it easier for Obama to dismiss calls to prosecute anyone from prior administrations if their misdeeds are never given the light of day.

Thoughts? Should the US government be able to essentially stomp out any case against it by claiming the facts of the case are secret, and thus there is no way for a case to go forward? Does anyone find this alarming, and even more alarming that we continuing down this road?

Is it too early to criticize Obama for possibly just using someone else's playbook (Clinton's, Bush's) until he figures out his own?

Was the prior bar set so damn low that even incremental steps back to the rule of law and justice still seem like an injustice? Am I just speaking with generalities and not saying anything substantive? Is this just a crackpot conspiracy theory and everything is OK, nothing to see here? Discuss.

 

[Rashiminos]

Not surprised. Obama's messages of sunshine are reflected by some carefully placed smoke and mirrors.

 

[Labtec600]

I will give Obama a break and want the other side of the story. Not one guy's opinion who quotes an ACLU lawyer and not the other side.

 

[Labtec600]

Oh, and doesnt use the word "Bushie"

 

[illram]

I will give Obama a break and want the other side of the story. Not one guy's opinion who quotes an ACLU lawyer and not the other side.

The other side of the story is: you can't know what the story is. It's a secret.

 

[Cutlass]

Biggest problem with Obama has always been that he's not a liberal

The government belongs to us. We do not belong to it. That said, we have a right to know what it is doing and hold it accountable.

 

[Irish Caesar]

Some are not very surprised by this. Others like myself are ashamed and/or disappointed.

How about all three? Because I'm totally all three. Mostly the first, though.

Thoughts? Should the US government be able to essentially stomp out any case against it by claiming the facts of the case are secret, and thus there is no way for a case to go forward? Does anyone find this alarming, and even more alarming that we continuing down this road?

I like the power to claim "state secret." I think that in some cases, that might be a pretty important power to have. On the other hand, it carries with it the huge potential for abuse. Unfortunately, there's really no way to keep the "state secret" immunity without that abuse.

The alarming thing is to be continuing down this road. If laws were broken and crimes were committed by the Bush Administration (and people will almost instantly tell me that there should be no "if" in front of this sentence, but I'll keep it there), history should reveal that. If the Obama Administration continues Bush Administration policies which go against our ideals, then the president has probably set a record for the amount of time it took to spit in his own inaugural address. I can't see that this has happened (yet), so it's still sunshiny and everything so far.

It would be a grave mistake to throw out the "state secret" power because of its past or current abuse.

Is it too early to criticize Obama for possibly just using someone else's playbook (Clinton's, Bush's) until he figures out his own?

He was fair game for criticism as soon as he stepped into the Senate.

He gets even less of a cushion from me simply because of the campaign and transition he took part in. I doubt we've ever had someone so ready to move into the White House, and that probably includes several VP's who took over the spot.

Am I just speaking with generalities and not saying anything substantive? Is this just a crackpot conspiracy theory and everything is OK, nothing to see here? Discuss.

The article was pretty loaded. I don't think the Obama Administration has done anything wrong yet, and I hope that remains the case.

As unpopular as President Bush was, uncovering misdeeds that we don't know about yet isn't something that President Obama should do to gain popularity points. If he does too many things that are going to upset a large amount of the population (and let's face it, dumping on Pres. Bush right now would upset a lot of people in the public and the government), he either loses the ability to carry out any of his "change" agenda... or else Speaker Pelosi and Senator Reid are the effective heads of the government.

 

[mangxema]

I like the power to claim "state secret." I think that in some cases, that might be a pretty important power to have. On the other hand, it carries with it the huge potential for abuse. Unfortunately, there's really no way to keep the "state secret" immunity without that abuse.

The alarming thing is to be continuing down this road. If laws were broken and crimes were committed by the Bush Administration (and people will almost instantly tell me that there should be no "if" in front of this sentence, but I'll keep it there), history should reveal that. If the Obama Administration continues Bush Administration policies which go against our ideals, then the president has probably set a record for the amount of time it took to spit in his own inaugural address. I can't see that this has happened (yet), so it's still sunshiny and everything so far.

It would be a grave mistake to throw out the "state secret" power because of its past or current abuse.

...

The article was pretty loaded. I don't think the Obama Administration has done anything wrong yet, and I hope that remains the case.

As unpopular as President Bush was, uncovering misdeeds that we don't know about yet isn't something that President Obama should do to gain popularity points. If he does too many things that are going to upset a large amount of the population (and let's face it, dumping on Pres. Bush right now would upset a lot of people in the public and the government), he either loses the ability to carry out any of his "change" agenda... or else Speaker Pelosi and Senator Reid are the effective heads of the government.

I agree with this. To some extent, I think Obama kind of has to tack this line. What I think would be a more accurate measure is looking at new cases, which haven't happened yet.

 

[I'm Cleo!]

The other side of the story is: you can't know what the story is. It's a secret.

Hahaha. Here's a New York Times article.

The best (read: worst) part is that the state secrets doctrine is being invoked to prevent the release of information concerning practices -- torture, extraordinary rendition -- that Obama himself wrote executive orders forbidding! There's no more secrecy interest if we're not doing them anymore. Maybe the judge will reject the privilege on those grounds.

Cleo

 

[GenMarshall]

What happened to hope and change?! Didint we elected Obama because we wanted to GET AWAY from the horrible Bush Administration?!

 

[Shylock]

The government belongs to us. We do not belong to it. That said, we have a right to know what it is doing and hold it accountable.

Try not paying your taxes.

 

[illram]

I like the power to claim "state secret." I think that in some cases, that might be a pretty important power to have. On the other hand, it carries with it the huge potential for abuse. Unfortunately, there's really no way to keep the "state secret" immunity without that abuse.

I agree there are some things that should be kept secret. This, however, was a particularly alarming case owing to the large amount of evidence already in the public sphere. Shutting it down really does look like an abuse of the type used so frequently by Bush. Bush used the doctrine more in his eight years than our nation had used in the privilege's entire prior history. Something like 40 years I believe.

As unpopular as President Bush was, uncovering misdeeds that we don't know about yet isn't something that President Obama should do to gain popularity points. If he does too many things that are going to upset a large amount of the population (and let's face it, dumping on Pres. Bush right now would upset a lot of people in the public and the government), he either loses the ability to carry out any of his "change" agenda... or else Speaker Pelosi and Senator Reid are the effective heads of the government.

I'm not really interested in accessing state secrets to prosecute anyone. That may be a nice side benefit but is really a side issue for me. The issue here is that people are (were? will be? could have been?) abused by our government, and their avenue of redress is totally cut off. This is especially significant when you consider the tremendously expanded powers that our government now has, or is actively seeking, to imprison people in the war on terror. People that may be wrongfully accused or abused in this process permanently lose the ability to do anything about it, ever. The ability of citizens to challenge their government and redress their injuries in a fair impartial court is a very basic element of a free, modern democracy in my opinion. I don't really fancy myself a conspiracy theorist, but allowing a system where anyone can be rounded up indefinitely at any time, without trial, and then if a mistake is made there is nothing they can do about it, seems totally wrong and antithetical to what this country is all about.

 

[FriendlyFire]

What happened to hope and change?! Didint we elected Obama because we wanted to GET AWAY from the horrible Bush Administration?!

Arhhh everything is so backwards, still could be worse.
EDIT: At least Biden only got the date wrong, and McCain has hes moments, but at least it isnt Bush.

“When (President Franklin) Roosevelt did this, he put our country into a Great Depression,” Austria said. “He tried to borrow and spend, he tried to use the Keynesian approach, and our country ended up in a Great Depression. That’s just history.” - Rep. Steve Austria

 

[Cutlass]

Try not paying your taxes.

I never said we didn't have a responsibility to do what the government says. But we have the right to decide what the government says and we have the right to know what the government is doing.

 

[Formaldehyde]

I will give Obama a break and want the other side of the story. Not one guy's opinion who quotes an ACLU lawyer and not the other side.

You make that sound like he is some sort of subhuman for merely being in favor of the Bill of Rights and is willing to defend a supposed 'terrorist'.

From the NY TImes article that Cleo posted, it appears that this decision caught the judge by complete surprise. It also tends to insinuate that there is more to this particular case than the torture of another innocent person, or the apparent attempt to cover that up by claiming state secrets.

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

But Mr. Letter said that the lower court judge, James Ware, did receive classified information and came to the correct conclusion in dismissing the case last year. He urged the judges to pore over the same material, and predicted “you will understand precisely, as Judge Ware did, why this case can’t be litigated.”

In an 'unrelated' matter (or not...):

The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, “he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.”

 

[Bigfoot3814]

What happened to hope and change?! Didint we elected Obama because we wanted to GET AWAY from the horrible Bush Administration?!

Obama says he'll listen to any good idea.

 

[I'm Cleo!]

An interesting note: the state secrets doctrine was first recognized in a case about a helicopter crash where the government successfully blocked a negligence action by claiming that the information requested by the plaintiffs would harm national security if released. When the documents were released in a FOIA request many years later, it turned out that the documents (i) proved negligence, and (ii) had nothing to do with national security.

This is why it's important that the government not be able to block cases entirely, instead of producing the documents for in camera review.

Cleo

 

[Mowque]

Obama says he'll listen to any good idea.

If nothing else, he is pragmatic.

 

[Irish Caesar]

I agree there are some things that should be kept secret. This, however, was a particularly alarming case owing to the large amount of evidence already in the public sphere. Shutting it down really does look like an abuse of the type used so frequently by Bush. Bush used the doctrine more in his eight years than our nation had used in the privilege's entire prior history. Something like 40 years I believe.

I do have a problem with that, but I'm not sure what can be done without getting rid of the "state secret" doctrine entirely. Perhaps a "we can call BS when it's clearly public knowledge" clause? Not sure how that would be implemented...

As for the second part of your post, I absolutely think anyone who has been wronged should have some way of getting "done right," if you will (my mind is blanking out on a better phrase...). I don't have any suggestions, and being in a position to reconcile justice and security is the job of people I don't envy.

 

[Sharwood]

This does not surprise me, and it also disappoints me. Like others, I feel a state secret clause is necessary, but it is also quite clearly open to abuse, as Cleo's example illustrates quite clearly.