Barack Obama Criticism Law National Security Politics The Bush Legacy The Opinionsphere

The Abuse of the State Secrets Privilege

Glenn Greenwald, yet again demonstrating his usefulness, holds Obama’s feet to the fire for the apparent decision of his Justice Department to maintain the Bush administration’s radical view on state secrets. Highlighting the ridiculousness of the Obama Justice Department’s legal position here, Greenwald points out that:

The entire claim of “state secrets” in this case is based on two sworn Declarations from CIA Director Michael Hayden – one public and one filed secretly with the court.  In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation – the very policies which Obama, in his first week in office, ordered shall no longer exist.  How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned? 

Greenwald follows up today with a piece that gets to the core of the issue:

Nobody — not the ACLU or anyone else — argues that the State Secrets privilege is inherently invalid.  Nobody contests that there is such a thing as a legitimate state secret.  Nobody believes that Obama should declassify every last secret and never classify anything else ever again.  Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege.  Those are all transparent, moronic strawmen advanced by people who have no idea what they’re talking about.

What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out – was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  Thatis the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny – and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).  

Greenwald ends his piece by misconstruing a remark made by Marc Ambinder – who in fairness to Greenwald probably misunderstands the essence of this issue – and turning it into a strawman he can take down. This is Greenwald at his worst – but the start of the article is Greenwald at his best, explaining succinctly and cleary why outrage is called for. I’m sure Greenwald mocks Ambinder only because his comments are illustrative of the wrong-headed Washington establishment thinking.

More important though is the question of, ‘What’s next?’ Greenwald clearly explains how this use of the state secrets privilege is abusive – and how Obama and Biden clearly opposed it when used by Bush. So, how do we begin to pressure Obama to change this position?

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