Wednesday, February 11, 2009

Obama Administration & State Secrets Doctrine

Big disappointment on Monday when a Justice Department lawyer, in arguing to dismiss a case against the government for torture, re-asserted a "state secrets" theory developed by the Bush Administration on the grounds that even discussing it in court could threaten national security.

Or is it? On balance I'm not so sure.

It is tempting on first impression to share the outrage of the ACLU Executive Director Anthony Romero, who commented: "This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

In any event, what gives? After all, some of Obama's harshest criticisms of the Bush Administration were reserved for this sort of issue. Even the judges on the Ninth Circuit Court of Appeals were surprised.

"The change in administration has no bearing [on your argument]?," asked Judge Mary M. Shroeder.

"No, your honor," replied the lawyer, Douglas N. Letter. "[The argument was] thoroughly vetted with the appropriate officials within the new administration," he said, and "these are the authorized positions."

So why the shift? It is certainly understandable, as a Justice Department spokesman explained in justifying the government's position, that the government would want to keep information "that, if released, could jeopardize national security." The ACLU counters, though, that it IS possible to bring cases without facts being made public - courts should have a chance to decide what should be allowed to be discussed, based on classified information revealed to the judge(s) alone.

But the Justice Department lawyer, Mr. Letter, says that this is exactly what happened in this particular case. In urging the Ninth Circuit judges to review the same materials that led the Federal District Court (Judge Ware) to dismiss the case, Letter predicted, "you will understand precisely, as Judge Ware did, why this can't be litigated."

Talk about intrigue - it's hard to imagine what could be of such magnitude that would lead Barack Obama to do an about-face on such an important principle. It has to be the sort of thing that the Supreme Court envisioned in the Pentagon Papers Case when reviewing what it calls "prior restraints" on speech, commenting that the only time this most highly disfavored form of government restriction would be allowed is if the speech were the equivalent of threatening the lives of troops by publishing "the sailing dates of transports or the number and location of troops."

All I can imagine is that the case at issue here is of that sort - and for the moment anyway, I want to have enough faith in Barack Obama to believe that he would only take this position if it were absolutely necessary. At the same time, I do maintain that the Justice Department should NOT rely on this blanket "state secrets" doctrine, which can be so egregiously abused in the wrong hands. Rather, the government should argue for the necessity of confidentiality on a case-by-case basis.