Time‘s Michael Scherer just asked an excellent question. During the campaign, Obama took the position that the Bush administration had abused the state’s secret privilege, but since coming into office he has used it repeatedly to argue that crucial national security cases be thrown out of court.
Scherer asked the President to reconcile that contradiction. And Obama’s answer was…a bit disingenuous. “I actually think that the state secrets doctrine should be modified,” he said. “I think right now it’s overbroad.”
So why has he been hiding behind its breadth? “We’re in for a week, and suddenly we’ve got a court filing that’s coming up…and we don’t have the time to think up what an overarching form that doctrine should take.”
But it’s hard to square that with what the administration’s actually done. DOJ lawyers haven’t asked the courts for more time, or to withhold key pieces of information. Rather, they’ve argued that these cases–Jewel v NSA, Al-Haramain Islamic Foundation v Obama, and Mohammed v Jeppesen Dataplan–be tossed out entirely. And they’ve done that by invoking the state secrets privilege. In fact, in Jewel, the administration went so far as to claim “sovereign immunity” for the government from just about any lawsuit involving wiretapping. That position is even more radical than Bush’s was.
It’s hard to imagine Obama walking that claim back. But as far as state secrets go, now he’s on the record. The administration, he said, is “searching for ways to redact to carve out certain cases to see what can be done… there should be some additional tools so that it’s not such a blunt instrument.” That’s news–the White House hasn’t always been so straightforward. But there are incipient efforts in Congress to do just what Obama said, and if I had been offered a followup question, I might have asked whether this means he’ll throw his full weight behind them.
