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.

Drawing the Line on the Obama Administration's National Security Practices

As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.

Specifically:

1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.

2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.

3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.