More On President Obama’s Bush-like ‘State Secrets’ Advocacy

Apr 10, 2009 12:55pm

A lot of left-leaning columnists, civil libertarians, and others are weighing on the Obama administration’s adoption of the position of his predecessor on the issue of "state secrets," discussed below, and if you have an interest in the issue, you should check out some of their pieces.

Dan Froomkin at the Washington Post solicits opinions from law experts, such as Louis Fisher, a specialist in constitutional law at the Library of Congress, who says:

"1. The administration defends the state secrets privilege on the ground that it would jeopardize national security if classified documents were made available to the public. No one argues for public disclosure of sensitive materials. The issue is whether federal judges should have access to those documents to be read in their chambers.

"2. If an administration is at liberty to invoke the state secrets privilege to prevent litigation from moving forward, thus eliminating independent judicial review, could not the administration use the privilege to conceal violations of statutes, treaties, and the Constitution? What check would exist for illegal actions by the executive branch?"

Glenn Greenwald at Salon is an invaluable source on these issues. He notes (courtesy of Sam Stein) that White House press secretary Robert Gibbs was asked about this issue yesterday (sorry, am taking a couple days off, post-Europe trip, this blog notwithstanding) which brought for these interesting exchanges:

Q: Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance. Does the president support the Justice Department’s positions in that case?

GIBBS: Yes, absolutely. It’s the — absolutely does. Obviously, these are programs that have been debated and discussed, but the president does support that viewpoint…

Q: Before he was elected, the president said that the Bush administration had abused the state secrets privilege. Has he changed his mind?

GIBBS: No. I mean, obviously, we’re dealing with some suits, and the president will — and the Justice Department will make determinations based on protecting our national security.

Q: So he still thinks that the Bush administration abused the state secrets privilege?

GIBBS: Yes.

But this isn’t strictly an issue for intellectually-consistent liberals.

Writing at Slate, Reagan-era Justice Department official Bruce Fein writes:

"President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president’s adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself."

– jpt

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