Dispatches from the Creation Wars

I didn’t watch the press conference last night, but I read the transcript. And President Obama’s answer to a question about the state secrets privilege was appallingly dishonest. Michael Scherer of Time magazine asked this question:

Question: Thank you, Mr. President. During the campaign, you criticized President Bush’s use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?


I’m going to take his answer line by line and show why it was nonsensical when it wasn’t outright dishonest.

I actually think that the state secret doctrine should be modified. I think right now it’s overbroad.

First of all, there is no single state secrets doctrine. Some have argued that the state secrets privilege, once invoked, means a lawsuit has to be dismissed completely. That was Bush’s position. Others have argued, and the courts have agreed in most cases, that the privilege can only be used to challenge the introduction of particular evidence in a case. So there is a broad version and a narrow version. The Bush DOJ argued for the broadest possible application. The Obama DOJ could have rejected that broad application, but they not only reasserted it, but in the two ongoing cases over warrantless wiretaps (Al Haramain and EFF) they actually went far beyond the claims that Bush made.

If he thinks it’s overly broad, he should have withdrawn the Bush administration’s position, agreed to allow all four cases to go forward and only used the state secrets privilege to challenge the introduction of specific pieces of evidence in each case as they saw fit. He didn’t.

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.

There are several things wrong with this excuse. First, in at least two of those cases they were offered continuances in order to evaluate the evidence and formulate their responses. In the others, continuances almost certainly would have been granted if they’d asked for them. As Jonathan Turley said on the Rachel Maddow show last night, there isn’t a court in the country that wouldn’t grant a continuance in that situation and there isn’t an attorney in the country that handles such cases, as he does, that wouldn’t agree to a continuance. So that excuse just does not fly.

Second, it takes no less time to assert the overly broad Bush version of the state secrets privilege than it does to assert a narrower version of the privilege as an evidentiary challenge. In the same amount of time it took to write a brief arguing that the case should be dismissed because it potentially involves state secrets, they could have written a brief saying that while they reserve the right to invoke the privilege in response to particular requests for discovery, they will not seek the outright dismissal of the case.

There — I think it is appropriate to say that 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 in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.

This is really a terrible lie. None of these cases has gone to trial yet or had any discovery because the Bush administration immediately moved to dismiss them out of hand, asserting that no court could even hear any case that involves classified information. And that is the very same position that the Obama DOJ has asserted. That doesn’t have anything to do with redacting certain evidence or having evidence reviewed in a judge’s chambers.

We already have longstanding procedures in place for handling sensitive information. And as a former law professor, Obama knows this perfectly well. Classified information can be reviewed by the judge in private; that’s called an in camera proceeding. It is absolutely routine in any case that involves classified information. But here’s the key: such procedures only operate when there is an actual trial going on. But by invoking the broadest possible version of the state secrets privilege, Obama is seeking to have those cases dismissed completely. You can’t redact documents or ask for in camera proceedings in a lawsuit that no longer exists.

The state secrets privilege is not such a blunt instrument, it is only a blunt instrument as Bush and Obama have defined it. While complaining about it being a blunt instrument and the need to use more surgical procedures in court to protect against the release of sensitive information, Obama is explicitly using it AS a blunt instrument in order to prevent having to use those less blunt and more reasonable tools that already exist for use during a trial.

This notion that they were rushed into doing this is nonsense. In each one of these cases they could have chosen to put down that blunt instrument and use the sharper instruments of normal civil procedures for handling classified evidence. They could have withdrawn the use of that blunt instrument and allowed the cases to go forward. Had they done that, each case would then have gone back to the district courts to begin the trial. A briefing schedule would have been set up, discovery motions would begin and the DOJ would then be able to evaluate each request for evidence discovery independently in the normal timeframe as would occur in every other trial.

And in each instance, they could choose to use the full range of sharper instruments at their disposal – requesting that the evidence only be viewed by the judge, under seal, in his chambers, requesting that it be withheld from the plaintiffs’ attorneys, or in extreme cases arguing that the state secrets privilege allows them to deny use of the evidence requested in its entirety. And all of that would play out over months and months of motions, briefing and oral argument. They have the full range of sharper instruments to use in each case but they chose to use the very blunt instrument that they are complaining is too blunt.

The sad thing is that there was no follow up on the question at all. Another instance where the press fell for a glib but entirely wrong answer.