Jake Tapper and Jason Ryan report:
President Obama's Justice Department didn't just disappoint some of his liberal supporters by arguing in support of the Defense of Marriage Act this week, disappointing if not angering supporters who also support same sex marriage and were appalled by the comparison of same sex marriage to incestuous ones. The president's lawyers also repeated some of the Bush administration's national security arguments.
The Obama Justice Department on Friday asked the full 9th Circuit Court of Appeals to review an earlier appeals court ruling to determine if details about CIA rendition flights coordinated by Jeppesen Dataplan — a division of Boeing — should be protected as "state secrets."
As a candidate, then-Sen. Obama faulted President Bush for using the "state secrets" argument too often, and too broadly, though as president he has used it in at least three cases:
1) Jewel v NSA, in which the Electronic Frontier Foundation is challenging the National Security Agency surveillance by suing on behalf of AT&T customers whose records may or may not have been caught up in the NSA "dragnet";
2) Al-Haramain Islamic Foundation v Obama, in which the Islamic charity, investigated for terrorist financing out of its Oregon offices, sued the government alleging it was targeted illegally under the NSA's warrantless wiretapping program; and
3) Mohamed et al v Jeppesen Dataplan, Inc., a case involving five men who claim to have been victims of extraordinary rendition — including since-freed Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.
In April, a three-judge panel of the appeals court ruled that the Justice Department can only cite the "state secrets" privilege for certain evidence in the lawsuit and cannot use the state secrets defense to dismiss the suit altogether.
Friday's filing from Obama's Justice Department asks for an entire review by the appeals court.
"The panel has significantly altered the contours of the military and state secrets privilege — a constitutionally-based means by which the Executive protects critical national security information from disclosure," write the Obama attorneys. "The panel’s approach is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court’s sister circuits on questions of exceptional importance applying the privilege."
Continued the Obama lawyers: "No other court of appeals has so restricted the state secrets privilege, and the panel’s order is directly at odds with the cardinal principle, repeatedly applied by courts of appeals, that a case must be dismissed regardless of its stage if it cannot be litigated further without risking disclosure of state secrets."
Ben Wizner, staff attorney with the ACLU National Security Project said in a statement issued on Friday, "The Obama administration has now fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions. … The CIA's rendition and torture program is not a 'state secret;' it's an international scandal."
During his last prime-time presidential press conference, in April, President Obama was asked about his administration's continued invocation of the state secrets privilege.
The president said: "The state secret doctrine should be modified. I think right now it’s overbroad. But keep in mind what happens is we come in to office. We’re in for a week and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us."
He continued: "There are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But, searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being an open court, you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that."
– Jake Tapper and Jason Ryan