Is the Obama administration mimicking its predecessor on issues of secrecy and the war on terror?
During the presidential campaign, Obama criticized Bush for being too quick to invoke the state secrets claim. But last Friday, his Justice Department filed a motion in a warrantless wiretapping lawsuit, brought by the digital-rights group EFF. And the Obama-ites took a page out of the Bush DOJ’s playbook by demanding that the suit, Jewel v. NSA, be dismissed entirely under the state secrets privilege, arguing that allowing it go forward would jeopardize national security.
Coming on the heels of the two other recent cases in which the new administration has asserted the state secrets privilege, the motion sparked outrage among civil libertarians and many progressive commentators. Salon‘s Glenn Greenwald wrote that the move “demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used.” MSNBC’s Keith Olbermann called it “deja vu all over again”. An online petition — “Tell Obama: Stop blocking court review of illegal wiretapping” — soon appeared.
Not having Greenwald’s training in constitutional law (and perhaps lacking Olbermann’s all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration’s position on the case. Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?
In a word, yes.
Ken Gude, an expert in national security law at the Center for American Progress, supported the administration’s invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is “disappointing,” Gude told TPMmuckraker, calling himself “frustrated.”
Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. “They’ve taken the maximalist view that the judge has hardly any role in determining whether national security” would be compromised by the release of classified information,” he said. “There’s going to be people who are very unhappy, and justifiably so.”
He added: “I’m very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government.”
Gude’s general view was echoed by Amanda Frost, an associate professor at Washington College of Law who has written extensively about issues of government transparency. Frost made clear that she hadn’t followed the Jewel case, but called the Obama administration’s assertion of the state secrets privilege in a similar high-profile wiretapping case involving an Oregon-based Arabic charity “indefensible.” The NSA, she said, has already acknowledged the existence of the wiretapping program, and some of its details are publicly known, so the claim that national security would be jeopardized merely by allowing the trial to proceed doesn’t hold water. The government is making that argument in both the Oregon case and Jewel.
Not everyone agrees. Stewart Baker, a former top lawyer with the Bush Department of Homeland Security, told TPMmuckraker that there can be an inherent conflict between protecting national security and allowing lawsuits to go forward. “It isn’t possible to litigate these cases and still have classified programs,” said Baker, who worked in the Carter administration and was chief counsel to the National Security Counsel under Presidents Geirge H. W. Bush and Clinton. He added of the Obama team: “I think they made the right call.”
But that seems to be the minority view. In an email to the Washington Post‘s Dan Froomkin — who himself calls the Obama administation’s position “utterly un-American” — Louis Fisher, a specialist in constitutional law at the Library of Congress, writes:
“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?”
And writing on Slate, the noted conservative constitutional scholar Bruce Fein notes:
President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise.
That looks like a pretty broad consensus in opposition to the Obama administration’s position. And it’s the opposite of change we can believe in.