Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
In an interview with Rolling Stone, President Obama offered a transparently lame justification for his administration's constant use of the state secrets privilege:
People will say, "I don't know -- you've got your Justice Department out there that's still using the state-secrets doctrine to defend against some of these previous actions." Well, I gave very specific instructions to the Department of Justice. What I've said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I've got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can't have every operation that we're engaged in to deal with a very real terrorist threat published in Rolling Stone.
The problem is the straw man in the very first sentence. The problem isn't that Obama is invoking the state secrets privilege in some of the cases filed against the executive branch for violating statutory law and/or the constitution in its pursuit of the war on terror; the problem is that he is invoking that privilege in every single case ever filed in that area.
That "new policy" put out by the DOJ to govern use of the state secrets privilege was little more than a bad joke. It could have been summarized quite accurately as "trust us, we will only use our powers for good." Which might be a credible claim if there was even a single case that had been filed against Bush or Obama in which they did not invoke the SSP and demand that the case be dismissed.
It might also be more credible if Obama had not publicly said that he thinks the privilege should be more narrow, that judges should be able to hear a case and deal with classified evidence with more narrow means of protecting them. But that is precisely what the judge did in the Jeppesen Dataplan case and Obama appealed it and got that ruling overturned.
This claim that they're not using the SSP to cover up illegal behavior is clearly a lie. Torture is illegal in this country, yet Obama is invoking the SSP to have every case filed by a victim of torture dismissed. Warrantless wiretaps are illegal in this country, yet Obama is invoking the SSP to have every case filed by anyone who has been the target of that illegal activity dismissed.
Obama is lying. It's that simple.
Politics
Comments
See? He's telling the truth.
Posted by: Scott Hanley | September 30, 2010 11:26 AM
America has the right to defend itself against terrorists. ACLU sometimes acts like a fifth column. Obama is right. Welcome to the real world where beating the enemy doesn't always need Judicial review.
Posted by: asdf | September 30, 2010 11:31 AM
Thanks for flying out here all the way from Trollville, asdf. "The end justifies the means" works great when you don't like the people it's used against; try to stretch your mind a little and think about what happens when it's used against you. That ability is a prerequisite for participating in any discussion about rights.
Posted by: Greg | September 30, 2010 11:46 AM
That may or may not be true asdf, but Obama is still lyin' like a rug. That's something he probably vehemently campaigned against. (I forget if he campaigned against lying or not.) Not that this is unusual for people to be full of baloney or anything. Especially in politics I guess. Just sayin.
Posted by: 386sx | September 30, 2010 11:50 AM
And the day you're accused of being a terrorist, all bets are off. Well, if that's the way you want to be treated.
Posted by: D. C. Sessions | September 30, 2010 11:56 AM
Even if Obama wasn't lying, it would still come down to, "sometimes I must use the SSP to protect us, and you just have to trust me that these are the only times I use it."
In other words, if you believe that unchecked power will not be abused, by Obama (and the presidents after him), then you might still be fine. Just cross your fingers and believe as hard as you can.
Posted by: Patrick | September 30, 2010 12:06 PM
"America has the right to defend itself against terrorists."
I've heard from "reliable sources" (tm)(r) that 'asdf' is a terrorist and so wants to destroy America by turning it into a dictatorship.
So we should capture 'asdf' immediately and summarily execute him or her. Nothing less will save The Real US.
Posted by: Alex Besogonov | September 30, 2010 12:06 PM
Some days asdf is a pretty good poe, today ... not one of 'em.
Posted by: dogmeat | September 30, 2010 12:20 PM
Tell me, how does activities such as rendition and using drones to kill people impinge on the security of "operatives in the field, their sources and their methods"? It would appear that the only people being put at direct risk in these activities are the United States' victims.
This would appear to be a vague blanket excuse which has nothing whatsoever to do with the specifics of many of the invocations of the state security doctrine.
Posted by: Hrafn | September 30, 2010 12:24 PM
Ed stated:
I'd argue even that is largely irrelevant.
A primary reason I voted for Barack Obama for president was his respect, deference, and fealty to process. IMO his actual performance is mostly better than expected or even hoped for though with a few notable exceptions; his position in the federal courts on the state secrets doctrine being one of them. The biggest being his refusal to aggressively investigate war crimes by the previous Administration at the highest levels, especially their use of torture. The fact he's not a proponent of either creating a constitutionally sound process for handling such claims or adhering to a past process that was constitutional and would still work makes him a violator the Constitution rather than a defender.
Ed stated:
I remain frustrated that once again a reporter with access failed to follow-up with meaningful drill-down questions. I'm not sure this President has ever had to confront one challenge to his answers on this matter during this entire presidency.
I am heartened that the criticisms of the President on this matter have been observed by the President. We know that in this case since the reporter didn't bring this issue up, the President did. That's why the reporter might not have been prepared for a follow-up. However I'd argue that any reporter with access to the President writing for a liberally-biased publisher should bone-up on all the issues where the President has failed liberals in order to not allow him to avoid the issues like he does on the SSP.
Posted by: Michael Heath | September 30, 2010 1:29 PM
Isn't it the administration's position that the president may order the assassination of American citizens at his discretion? He says that SSP won't be used to cover up illegal activities. I think the conclusion we can reach is that Obama takes the position that torture and murder are not illegal activities if he orders them.
(I know that the argument made is that he can only order some of these things for some vaguely defined national security reasons. If there is no independent oversight or review of any kind, then it is at his discretion.)
Posted by: Gopiballava | September 30, 2010 1:30 PM
I was hoping this sort of thing could have been left behind with the Bush Administration. Sadly, it still persists.
Posted by: Ahab | September 30, 2010 1:48 PM
If the President does it, it's not illegal!
/snark, for whose snark-o-meter isn't functioning.
Posted by: shargash | September 30, 2010 2:49 PM
The US government absolutely does NOT have the right to do that. The US government has no rights. It has only things it is specifically permitted to do, as outlined in the Constitution.
Do you know nothing about the system of government you live under?
Posted by: shargash | September 30, 2010 3:02 PM
The key word in that quote is "open." It is perfectly possible to do what Obama says he wants (protect sources) without using the SSD. Either (i) he thinks the civil rights benefits of using closed courts aren't worth the effort, (ii) his protest is insincere, or (iii) he isn't in control of his own justice department.
Posted by: eric | September 30, 2010 3:14 PM
Also as you have noted previously, Ed, the state secrets privilege is a gradient. It goes from blacking out sensitive names in a document (which is no big deal) all the way to claiming the judicial branch cannot even hear the case. So not only has Obama used SSP in any case regarding the war on terror, he has also used the most extreme method. What a disingenuous man.
Posted by: Kele | September 30, 2010 4:48 PM
On the bright (?) side, this presidency is an increasingly useful demonstration that self-serving evil moral-blindness comes in any political flavor, not just from the ones on the other side of the aisle.
I say this is a good thing because it's done a great deal to divorce me from any single-party mentality. Going from tribal-worship to ideals-worship is a very freeing experience.
Posted by: Kris | September 30, 2010 5:21 PM
It's sad that the first black president is acting like Tricky Dick Nixon.Next thing you know Obama will be saying I am not a crook.
Posted by: Paen | September 30, 2010 7:20 PM