Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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If he thinks it's overly broad, he should have withdrawn the Bush administration's position, agreed to allow all four cases to go forward and only used the state secrets privilege to challenge the introduction of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.
Politics
Comments
Posted by: WScott | April 30, 2009 9:45 AM
I'm with WScott on this one; that a reporter would actually ask a pertinent question kind of stunned me too.
As to the legal issues, there really shouldn't be any argument here. The fact that a Union President can go before the American people and blithely talk about maintaining the right to interfere in judicial business shows just how far off the rails the Presidency has flown.
Posted by: Julian | April 30, 2009 10:36 AM
On the one hand, I'm disappointed in this development. On the other hand, while I'd like to think I'd do things differently if I were President, I really can't guarantee I would in these circumstances.
Let's face it: beneath the lovefest and the high approval ratings, Obama's position really is shaky, and there's only so many boats he can rock at one time.
First and foremost, we need to remember that Americans are still afraid of terrorism, and the Republicans have already started to do the spin necessary to set Obama up to take the blame for any new terrorist attack, regardless of the facts on the ground. They know they'll get traction with it, and Cheney was even bold enough to announce the strategy in advance, by saying the next terrorist attack would prove he and Bush were right all along. What you want Obama to do is indeed the right thing -- but that would mean putting Obama's fingerprints on yet another action that could be tied to the next incident. And even without such an incident, the Adult Baby -- oops, I mean Republican -- Party would turn the "politicization of DoJ" issue around against him. Galling, to be sure, but we all know that's how they roll.
The second thing to remember is that, whether we like it or not, Americans really aren't that concerned about civil-rights issues -- at least not enough to override our fear of the terrists. Obama didn't win on this issue, he won because of the economy and Bush's poor performance in Eye-rack. The people expect him to fix the economy, and that's gonna take a whole lot of measures we've been conditioned to despise as "socialism" and alien to "Real America." He needs to form a solid coalition, and keep all of America focused, while a huge part of America are still in flat-out-batshit-crazy screaming denial of the unusually harsh reality.
Then, too, we also have to consider our allies. We still need their help, just as much as we did last year; and the President has to consider how the sudden revelation of our sordid secrets will impact the governments who helped us in those policies, and will need to help us with the new policies. Remember that while the party responsible for all these abuses is out of power in the US, the parties who got our allies into the mess are still in power; and if their leaders are embarrassed, or their operations compromised, by a sudden change in our secrecy policy, that could pose problems for us.
Finally, we have to remember that while Obama himself may be a veritable demigod among politicians, the party that nominated him (and the party that controls Congress) is still the party of Jimmy Carter, Walter Mondale, Geraldine Ferraro, Michael Dukakis, the Clintons, Tom Daschle, Nancy Pelosi, and, yes, Joe Lieberman; the party that can't bring itself to support their own Presidents, and will desert him as soon as things get too inconvenient. Obama won despite his party, not because of it. This is the party that was for nearly every atrocity Bush Jr. committed before it was against them; and the tradition of spineless capitulation and total unwillingness to engage in even a winning fight will be a hard one to break.
Obama said the ship of state was an ocean liner, not a speedboat. I would say it's more like a nineteenth-century ship-of-the-line: the mere act of turning requires, not just turning a wheel, but a carefully-coordinated sequence of adjusting multiple sails, and how it's done depends partly on which way the wind is blowing in that instant.
Just a little historical perspective: many of the emergency laws passed to fight WWII stayed on the books until Jimmy Carter got them repealed. Don't expect all of America's mistakes to be corrected in one hundred days.
Posted by: Raging Bee | April 30, 2009 10:37 AM
Perhaps he is enchanted by being able to have secrets.
Posted by: mark | April 30, 2009 11:23 AM
Raging Bee: The primary point that Mr. Brayton is trying to make is that, even if you don't allow "privileged" or "secret" information to be known to the general public, they can still put it before a judge, in chambers, so that it effects how he decides the case. What President Obama is doing is trying to deny the right for the cases to even be heard by a judge by claiming that some portion of them might touch upon important secrets, and he's also asserting that he doesn't even need to prove this point by allowing a judge to review the pertinent information in even a general and summarized form.
In essence, this position, invented by the Bush admin and now continued by Obama, is really nothing more than Bush's refusal of Habeas Corpus rights to detainees in a different form. What Obama is essentially saying is that the State does not have to "show the body" if "the body" poses a threat to national security in some way, and more than this, that his claim as to that threat should be sufficient, in and of itself without any evidence provided to prove it, to throw out these cases. Instead of refusing to give these men their day in court on standing grounds, which is what the whole Military Tribunal rigmarole was about, Obama is continuing Bush's blatant refusal to give them a day in court, just 'cus.
It really shouldn't need to be stated, but no one can deny an individual their day in court. That is one of the most fundamental and foundational protections (and limitations) installed at the founding of our government. If the government can refuse an individual the right to defend themselves in a court of law without even having to provide a reason for it, then they can do that to any individual, because what's to keep the state from lying?
Posted by: Julian | April 30, 2009 11:34 AM
Arguing the finer points of "the state secrets privilege" is a bit like having a discussion about which shade of ultraviolet you like best. This "state secrets" nonsense is a complete sham and absolutely counter to every principle enumerated in our Constitution. Nowhere in the US Constitution is an exception or exemption made for "state secrets" or anything of the kind vis a vis due process guarantees or the rights of the accused.
The oath of office for the President (and Vice President, the Cabinet, the Supreme Court, and every member of Congress, for that matter) requires him to 'protect and defend the Constitution,' not do an end run around it when obeying it becomes difficult or inconvenient.
And we would do well to keep repeating that as often as we can to everyone who is in range to hear.
Posted by: MTiffany | April 30, 2009 11:58 AM
MTiffany - Are you arguing that all evidence required to properly conduct a trial should be publically reviewed? Even evidence which is legitimately considered by the court to be confidential?
While Ed is obviously correct in condemning Bush's wide-brush attack on habeas corpus and due process rights; your comment appears to rebut all previous positions including Ed's, which has me inferring you are arguing even state secrets should be considered in public. Especially given that Ed argues the courts have historically leveraged inferred in camera powers to protect what the court believes is necessary state secrets in light of the fact that no clear language in the Constitution exists on how to deal with state secrets necessary to conduct a fair trial.
Could you please provide some nuance to your argument?
Posted by: Michael Heath | April 30, 2009 12:19 PM
If evidence cannot be publically exposed at trial, then it should not be allowed at trial.
Period.
Has anyone else noticed that "for the time being" never seems to expire?
Posted by: Woody | April 30, 2009 1:13 PM
A fantastic post that serves as a resource. I love when you do this kind of stuff Ed. Why didn't you cross post this quality work to Positive Liberty?
Posted by: Jim Babka | April 30, 2009 1:24 PM
MTiffany,
I'm sympathetic to your position, but the reality is that requiring all evidence to be public will in some cases(fortunately very few) require a choice between (a) not prosecuting someone so you don't reveal the source of the information or (b) revealing the source of the information and getting that source killed.
Posted by: James Hanley | April 30, 2009 1:31 PM
While I am still a fan of the work Obama is trying to do, I am extremely appreciative that Brayton calls out Obama and his administration when they fuck up. I am and was a big supporter of Obama, but this states secret defense is bullshit in no uncertain terms. Thanks for calling it like you see it.
Posted by: Lorax | April 30, 2009 1:37 PM
If there is not prosecution for the traitorous torturers, it will just prove to me (again) that the Democrats are nothing more than the Not-So-Nazi wing of the Republicrat Party.
Posted by: teammarty | April 30, 2009 4:20 PM
"Thanks for calling it like you see it."
I concur and that is why I love this blog and respect Ed to the utmost!!
Posted by: King of Ireland | April 30, 2009 10:07 PM
"Let's face it: beneath the lovefest and the high approval ratings, Obama's position really is shaky, and there's only so many boats he can rock at one time."
Raging,
Just how far would Democrats have to advance to not be on shaky ground? Hugely popular president, both houses of congress and near super majority... and he is on shaky ground? Of course republicans are trying to blast him, that is what political parties do. Dem's blasted away for years and no one here thought that put repo's on shaky ground.
"This is the party that was for nearly every atrocity Bush Jr. committed before it was against them; and the tradition of spineless capitulation and total unwillingness to engage in even a winning fight will be a hard one to break."
I agree with your points more and more as you moved on, basically democrats have been complicit in all government actions for decades. Of course specific actions by W can be judged harshly, but far too much leeway has always been given to democrats because they are seen as weak. Are they still weak once they gain absolute control? Does it excuse whatever they do? Spending our future, continuing wars and extending excessive executive powers all seems to be excused by the left as long as we are rid of evil W.
Sorry for the rant. I just think too few have paid attention to how strong the democrats really are and where they are taking us.
Posted by: Rich | April 30, 2009 11:59 PM
Michael Heath - I have no problem with in camera proceedings. The state secrets privilege that Obama (and Bush before him) is asserting goes far beyond in camera secrecy, it is ex parte deprivation of the right of the accused to confront the witness and evidence being used against him.
James Hanley - Not to be glib, but the scenario you proposed sounds like the classic logical fallacy of the false dilemma; our only choices are to either let the terrorist go or reveal our sources and methods at trial and thereby weaken our country. I would just like to point out that accused terrorist Ali Saleh Kahlah al-Marri pleaded guilty today to charges of conspiracy to provide material support to the al-Qaida terrorist network. He was indicted by a grand jury in February based on evidence gathered by the FBI. I have yet to hear anyone argue that his prosecution has made the US more vulnerable.
http://www.pjstar.com/archive/x407215323/Attorney-generals-statement-on-plea
Posted by: MTiffany | May 1, 2009 1:23 AM
Raging Bee: I think you are giving the Obama administration too much credit - or perhaps not quite enough. I think the unconstitutional and unsupportable positions (and not just on the state secrets act) that Obama & Holder are perpetuating on the whole series of court cases Ed has discussed here are a very deliberate long-term political strategy. I think they are not intended, as some have claimed, to preserve these illegal powers for Obama's own future use. Rather, they are a necessary consequence of his desire to avoid investigating and prosecuting Bush administration war crimes (and their more mundane criminal activity and corruption, which was appallingly obvious and widespread). Those investigations and prosecutions cannot be avoided if Obama & Holder negate the legal maneuvering that the Bushies were using to conceal their criminal acts - so perforce they MUST continue those legal maneuvers.
So why the determined avoidance of investigation and prosecution of the Bush administration's many, many crimes? I think those reasons lie in some of the points you discussed. That is, the public doesn't support investigations and prosecutions, and the political situation doesn't allow it. However, it isn't just that the Democratic party is cowardly and fractious: I think it's more important that powerful Democrats were complicit in EVERYTHING the Bush Administration did - including the two Democrats of the sub-Committee of the House Intelligence Committee that basically green-lighted the Bush administration/CIA torture plans without asking *any* tough questions at all.
I think, however, that the release of the torture memos - along with the swift, successful prosecution of al Qaeda operative Ali al-Marri (who plead guilty on April 30) in ordinary federal court under the standard rules of evidence and without resort to any Bush administration unconstitutional bullshit -indicate a deeper strategy. I think Obama knows that investigations and prosecutions of torture and other Bush administration war crimes must eventually happen, for the good of the nation and for the sake of our international standing. But he also knows that there would be an extraordinarily high political cost to pursue them in the current political climate. So he's playing a delaying game and attempting to change the political climate, slowly releasing information that exposes both the appalling character and the utter ineffectiveness of the Bush administration's many unconstitutional policies and actions, in hopes that this information will sway public opinion and bolster political will to investigate and prosecute.
It's a cynical and ugly political game, and I hate it. I also hope it works.
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Posted by: Abbas Ahmed | May 1, 2009 5:48 AM
I'm with Raging Bee on this one. It dawned on me during Obama's news conference, in answering the questions both about state secrets and about torture, that he wasn't giving legal answers, he was giving political answers. While the ship of state may be hard to turn, I get the impression (I have no sources to cite) that even though Obama may have the polls on his side and the wind at his back at the moment, if he doesn't tread very carefully public support could shift very quickly. I think what he said is accurate: he doesn't want to do this or that. That doesn't mean Holder won't get there in time. In fact, Obama said the very thing that I've been suggesting for a while now. It takes time to get your ducks in a row, your attorneys on the same page, your public steadfast, and your political allies lined up. He's got a fine political line to walk.
I was very heartened by a recent piece I read, about the debate in the White House about releasing the torture memos. If you're trying to build consensus rather than simply dictate outcomes, you have to take the time to do things right: have the (political) debates, give everyone a chance to be heard. He wants debate, he wants dicussion. Barging ahead in a new direction, even if it is the legal and morally right way to go, invites knee-jerk opposition. Remember, this is the President who reached out to the Republican opposition before those in his own party. Now the President is seen as having at least tried to honor his campaign pledge of working with the opposition, while that opposition is seen as even more strident. The man is laying the political groundwork that he will need going forward.
It's probably not a convincing argument to most here. Some would say I'm just an Obama apologist. But, I'm still willing to give him the benefit of the doubt. I'm willing to trust that we will get where we want to go, that he will follow through on his campaign rhetoric, even if the results aren't there yet.
That said, I'm not suggesting that people such as those here shouldn't hold his feet to the fire. If we didn't criticize this president when he doesn't do the right thing, even though we criticized the last president, then we'd be just as hypocritical as the political "Right".
Two slightly OT points. First, I find that Obama is one of the first politicians I've heard who actually answers the questions asked. He doesn't just use the question as a springboard to repeat a worn talking point. Oh, he does get there too sometimes, but he first answers the question. It's remarkably refreshing.
Second, even in off the cuff answers, the man doesn't talk in complete sentences: he talks in complete paragraphs. I volunteer as secretary of a local school board, and I take notes at meetings as close to verbatim as I can. I'm attuned to how people speak. Some are easy to follow. Other's can't complete a full thought before flitting or side tracking themselves off to another. This man can hear the question, understand it, organize his thoughts, and present them coherently. Quickly. It sure comes across as honest and intelligent, without being condescending. Maybe it's just a trick of debate training, but after 8 years of stumbling stupidity, it is wonderful to hear.
Have hope.
Posted by: Scott | May 2, 2009 10:39 AM
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Posted by: Gretchen | May 2, 2009 10:50 AM
I appreciate and respect both Jonathan Turley and Rachel Maddow. I think they're great. But it was during their exchange on this subject that I realized, they were both missing the point. Obama's was a political statement, not a legal position. Now, you may not like politics, but it is how things are done.
Look, the man has demonstrated obvious intelligence. He has also demonstrated (to me at any rate), an honesty and forthrightness that appears to be uncommon in politics. He has also studied and taught constitutional law. So, either a) he doesn't understand the legal implications of his statements; b) he's lying; or c) his carefully chosen words mean something else. Option (a) is factually impossible. While option (b) is still a possibility (the man is both human and a politician, after all), for now I'm willing to go with (c).
Posted by: Scott | May 2, 2009 2:48 PM
I'm with Raging Bee and Scott on this, but then I've always been more interested in figuring out the root causes than fulminating against the ways in which they manifest themselves, though that can certainly be fun.
What Obama is doing in these cases Ed talks about is a symptom of ...something -- the question is, a symptom of what? A lust for dictatorial power? Some deep political game to, through careful maneuvering, set the Bush-era wrongs aright? Too many alligators? Too many cooks? Cheney-bots in too many places? Timing issues, ally issues, public opinion issues?
The trap here is that one can misinterpret the symptom and therefore misdiagnose the disease. Compare Obama's stance on this particular issue to all his other stances and what do you see? That it doesn't add up. It's out of character, assuming we read his character properly in the first place. Hence our shock when he perpetuates -- and amplifies! -- this chancre from the Cheney years.
When I see something out of character like this, I know we have to look really deeply and carefully to figure out what's going on. We have to, in fact, think as if we were scientists confronted with a new and unusual phenomenon. We need to think in terms of ruthlessly trying to falsify every hypothesis we come up with, ruthlessly putting aside our biases and prejudices, and ruthlessly questioning our own assumptions and pet ideas.
Otherwise, we might as well be Republicans.
Posted by: Dumoustier | May 3, 2009 2:30 PM
Exactly, Dumoustier. You put it much more succinctly than I did. It doesn't add up, hence our hypotheses aren't consistent in some way(s). We'll need more time and information to find out why. Thanks.
Posted by: Scott | May 3, 2009 8:34 PM
I find amusing the lengths that some of the commenters are willing to go to in order to find some way to excuse Obama's actions on the state secrets privilege. Dumoistier writes:
It's that last assumption that is likely wrong. His stance on this issue is certainly in conflict with his rhetoric, but this is surprising only if one assumes that Obama is different from every other politician on the planet. It's certainly consistent with his vote for the fake FISA "compromise" last year. You know nothing about Obama's character, you know only of the lofty rhetoric used during the campaign. One could easily dig up a raft of comments from George Bush about the need for transparency and accountability and his actions would also be in conflict with that rhetoric. Somehow I doubt that anyone above would consider that some great mystery that needs to be solved, they'd just look at the actions and say that they mean far more than words. But when Obama does the same thing - literally, taking the exact same actions that Bush took - suddenly this is viewed as some deep mystery that we must solve by inventing fanciful rationales for how he's really involved in some brilliant reverse psychology plan to fix it all and we just aren't smart enough to figure out his genius plans ("It's an X K red 27 technique" - 50 points to the person who gets that reference).
Or maybe, just maybe, he's just another politician who said one thing to get elected and then didn't follow through on it. I'm sure that's what every single person making strained excuses for his actions would be saying if it was a Republican (and did say, when Bush did the same things).
Posted by: Ed Braytons | May 3, 2009 11:21 PM
"Liar, lunatic, or Lord?"
Posted by: windy | May 4, 2009 6:12 AM