The State Secrets Privilege Power Grab: As Dubya Went So Goes Obama?

The biggest news last week passed below the radar of a mainstream media obsessed with the stories of the moment — Barack Obama’s 100th day in office and the swine flu outbreak, which of course included Joe Biden’s diagnosis of hoof-and-mouth disease. Well, the feared global pandemic seems to not be materializing, the vice president is incurable and the president is now in his 106th day of an orgy of adulation, while his embrace of one of the more draconian policies of the Age of Bush still is largely unnoticed, let alone remarked on.

That is the so-called blanket state secrets privilege, which allows a president to derail lawsuits and other actions that he deems potentially harmful to national security. Obama criticized Bush’s slavish embrace of the privilege during the 2008 campaign, but his Justice Department has continued to argue the former president’s position in three lawsuits against the government concerning warrantless wiretapping and the extraordinary rendition of terrorism suspects.

Federal courts had, for the most part, rejected Bush’s state secrets claims because it was obvious that his concern was less national security than keeping prying eyes, including those of federal judges, away from extralegal programs and political vendettas.

As we have recently learned, Bush stooped beyond low in turning policy into politics by using torture to try to establish nonexistent links between Saddam Hussein and Al Qaeda in order to bolster the fiction that invading Iraq was justified since the the 9/11 attacks were launched from there with the Iraqi dictator’s assistance.

This bring us to a lawsuit against the government by five victims of the rendition program.

Bush’s lawyers had used the state secrets privilege to argue that the lawsuit should be summarily dismissed. That claim was rejected and up the appeals ladder the case has gone with Obama’s lawyers unapologetically taking the same stance.

No dice, said a three-judge federal appeals panel on Obama’s 99th day in office, noting that “According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judiciary scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

Then the following evening, late in his 100th day press conference, the president was asked why he campaigned against the blanket privilege but his own lawyers now are making the same claim?

Obama’s answer was disingenuous in the extreme.

“I actually think that the state secrets doctrine should be modified,” he said as he shifted into lawyerly overdrive, which is to say doublespeak, arguing that his lawyers did not have the time to study the lawsuit before responding. Perhaps so, but he failed to note that those lawyers have twice invoked the privilege in subsequent instances.

“I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake,” the president continued, “and 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.”

In fairness to Obama, a bill has been moldering in the Senate that would give federal judges the ability to review possibly sensitive information in chambers, and he did say that his attorney general and White House counsel are pursuing that action.

The young president has done much right in those first 100 days. Yet it is extremely troubling that he has failed to speak out as he had on the campaign trail about using the state secrets doctrine to keep secret potentially embarrassing information.

Regrettably, I suspect that this is because Obama, in his own way, is as reluctant to put limits on executive privilege as Bush was eager to expand it. That certainly will be obvious if the decision of the three-judge panel is appealed.

Shaun Mullen is a former The Moderate Voice columnist. Over a long career with newspapers, this award-winning editor and reporter covered the Vietnam War, O.J. Simpson trials, Clinton impeachment circus and coming of Osama bin Laden, among many other big stories. He blogs at Kiko’s House.