Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
On the state secrets privilege, the Obama administration has now gone from bad to worse. They are appealing the ruling in the Jeppesen Dataplan case to the full 9th circuit, seeking an en banc rehearing that would overturn the decision to reject the state secrets privilege and allow the case to move forward. You can see their brief asking for the appeal here.
This is the case brought by five former detainees who were taken as part of the Bush administration's extraordinary rendition program to other countries to be tortured (in this case, Morocco and Pakistan). The case is against a Boeing subsidiary that supplied the planes, not against the government. But both the Bush and Obama administrations have argued that the case must be dismissed because of the state secrets privilege.
And in case there is any question that this comes straight from the top of the Obama administration, the introduction to the brief lays that to rest:
We emphasize that the Government's request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege. As the President made clear two weeks ago, while the state secrets privilege is necessary to protect national security, the United States will not invoke the privilege to prevent disclosure of "the violation of a law or embarrassment to the government."
The position taken in this brief is incredibly broad, arguing that "a case must be dismissed regardless of its stage if it cannot be litigated further without risking disclosure of state secrets." Any risk of disclosure, no matter how remote or fanciful, trumps all other considerations. This argument was vile and ridiculous when the Bush administration offered it and it's no less so when the Obama administration offers it.
And bear in mind that they are arguing that the courts must dismiss all such cases solely based on the government's assertion that there is a risk of disclosure, not on any rational examination of the evidence piece by piece for the judge to evaluate the risks of disclosure. They are arguing for total and complete immunity on the part of the government to ANY lawsuit as soon as the executive branch says "this is a secret."
Marc Armbinder quotes the ACLU attorney in the case, Ben Wizner, as saying that President Obama now "owns the state secrets privilege." He's absolutely right. Actually appealing this ruling destroys any notion that this administration has not totally betrayed any notion of accountability and limits on executive power. Armbinder also cites the reasons Obama's people are offering in private for this argument:
The Obama administration inherited the case from the Bush administration; privately, they argue that defending the sanctity of the privilege is necessary because if they relent, the privilege itself will be weakened, even as they concede that it has been used to prevent the disclosure of possibly illegal conduct by the former administration. In this case, the three-judge panel told the administration to assert the privilege during the discovery phase for whatever evidence it believed would jeopardize national security if disclosed to the defense. The government wants the ability to use the privilege to dismiss the entire case before it reaches the phase where specific evidence is exchanged and argued about. President Obama told reporters two months ago that he supported a more limited assertion of the privilege.
Which would be a lot easier to take seriously if the administration was actually arguing for a more limited version of the state secrets privilege. But they're not. They are arguing for the broadest possible conception of the privilege, one that ends every single case before it ever gets started based on the mere assertion that the case might reveal state secrets.
Ben Wizner has it exactly right:
The Obama administration has now fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions. The CIA's rendition and torture program is not a 'state secret;' it's an international scandal. If the Obama administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability.
The fact is that when Obama told reporters at that press conference a few weeks ago that he favored a more limited version of the privilege, he lied. If he favored a more limited version of it, he would be arguing in court for a more limited version. But he's not. He's arguing for the broadest imaginable version of it. The appeals court rejected that in favor of precisely that more narrow version that Obama says he wants and he is now trying to get that ruling overturned. He lied, plain and simple.
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I would hope that the media would press President Obama on his position, i.e., "press" meaning not merely taking his first response, but responding with follow-up questions forcing him to respond within the context of he's now contradicting his prior claims. Obama should not be allowed to wiggle around on his Administration's position in this case.
Hopefully at least Gibbs will be put through the wringer on this in the next couple of days.
Posted by: Michael Heath | June 15, 2009 9:38 AM
So "change" meant a change from King George to King Barack? That's disappointing.
Posted by: benjdm | June 15, 2009 1:25 PM
Still covering Bush's ass, I see. *sigh*
I begin to wonder - somewhat idly, at this early stage - whether pushing the already-untenable Bush positions even farther into un-constitutional and unconscionable territory is a deliberate strategy: If played right, it might get strong rulings against the claimed privileges and also reveal all the damning torture and corruption (and incompetent bungling) of the Bush administration in a way that Obama doesn't need to own. If it comes out in court cases even when his administration fought to keep it secret, then his hands are clean when the accumulated evidence forces his administration and Congress to finally convene grand juries and prosecute Bush administration war crimes. He knows it needs to be done, but he really, really doesn't want to do it (for probably savvy political reasons).
I dunno. I'm just trying to find some way to make any sense at all of these policy decisions. I think it's still too early to figure out exactly what game the Obama administration is playing - but I do think it's a dangerous game for our country, and it needs to stop.
Posted by: G Felis | June 15, 2009 1:58 PM
G. Felis, I can see why you're hoping Obama is actually pushing a variant of the poison pill strategy ... but at this point, it seems really unlikely.
Possibly the most convincing explanation is that leading democrats - including some in his whitehouse - were/are much more deeply involved than we know.
Posted by: llewelly | June 15, 2009 9:23 PM
Can we please fast forward to the part where McCain bites Obama's finger off and falls into the volcano?
Posted by: Azkyroth | June 16, 2009 12:53 AM
Are the gov denying that the rendition and/or torture took place? I have not heard that from them. So could there not be a way for the victims to gain some relief anyway? If the gov claims state secrets to stop a case, then the gov really ought to recompense the plaintiffs, when their harm is not in dispute, for denying them their day in court. We have two basic criticisms here - one for the SS claim which shields the harm-givers, but also one for the lack of common-sense justice for their victims. Even a no-fault settlement could help the latter without affecting the former. We broke their lives, so by the ancient chinese proverb we are responsible for giving them back.
Of course, I am known for my helpless naiveté when it comes to these kind of dirty politics.
Posted by: GrayGaffer | June 16, 2009 2:26 PM
@ llewelly: I certainly believe that high-level Democrats were involved, both indirectly and directly: We already know that several top Democrats knew of and approved Bush's illegal and unconstitutional torture policies, extraordinary rendition, etc. - hence Nancy Pelosi's embarrassing two-steppin' around the torture memos just in the last few months. And I don't doubt that, as more Bush administration dirty dealings come to light, there will be more and more mud-splattered Democrats as well. There's plenty of mud to go around.
The extensive collateral damage to Dems is just another aspect of the political cost of dealing with the past administration's crimes - a cost Obama has repeatedly shown himself unwilling to pay, which remains the only logical explanation I can come up with for his continuance and even extension of these wildly untenable Bush administration secrecy positions. But I don't think Obama could possibly be unaware that this strategy cannot last more than a year or two, probably less - so I have to ask, what's the long game? Frankly, I'm not so much hoping Obama is pushing some kind of poison pill strategy - frankly, I don't think it's a morally defensible or politically workable strategy. Rather, I'm just convinced that there must be *some* sort of strategy, and I cannot at the moment see one that's more plausible.
Posted by: G Felis | June 16, 2009 9:43 PM
Another thought: it is not exactly Obama's decision to prosecute, or who or when to prosecute, it is the AG's decision, And that is supposed to be apolitical and based entirely on the Law and the evidence. His only way to block is by briefs and motions in court once a case is underway. So there is still some chance of a prosecution we are hoping for actualy happening.
The real problem is the failure of the courts to examine the veracity of the National Security harms claimed. Not for lack of mechanisms for maintaining the security either. One would almost think the powers that be do not trust our Judges to keep their mouths shut as required by the Law. In fact, the way the courts seem to be rolling over for the administration might lead one to believe that that is in fact the case. It is after all the Court's decision as to how to investigate the NS claims.
Posted by: GrayGaffer | June 18, 2009 6:15 PM