Preserving The Privilege

by digby

Greenwald is justifiably up in arms about the gawd awful misunderstanding of the issue surrounding theObama administration's invocation of state secrets yesterday. It's hard to believe that people are defending something which we have all been railing about for years, and even worse that they are so crudely misrepresenting exactly what it is that the DOJ did yesterday. If there is any confusion, I urge you to read Glenn's post today. The simple fact is that the Obama administration has preserved for itself the power to block any lawsuit it chooses, a power created out of whole cloth by the Bush administration.

Here's how the DOJ explained it to the NY Times:

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.


Well, that's a relief. Here's Glenn:

In defending the Obama administration's position (without beginning to understand it), The Atlantic's Marc Ambinder revealingly wrote -- on behalf of civil libertarians who he fantasizes have anointed him their spokesman:

It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)

We don't actually have a system of government (or at least we're not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely. That, by definition, is how grateful subjects of benevolent tyrants think ("this power was bad in Bush's hands because he's bad, but it's OK in Obama's hands because he is good and kind"). Countries that are nations of laws rather than of men don't rely on blind faith in the good character of leaders to prevent abuse. They rely on what we call "law" and "accountability" and "checks and balances" to provide those safeguards -- exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.




The Cheney-ites used to smirk about how the Obama administration would find that they wanted these "tools" when they got into power and a lot was written before the election about how power, once taken, will never be given back. And, indeed, this was the central thrust of many of our arguments about holding the Bush administration accountable for its abuse of the constitution.

Perhaps this will be the only case in which the Obama DOJ will assert this privilege, although it's hard to see what's so different about this particular case than any others of its ilk. But even if they do only use it this one time, because they have preserved the power, it will sit there, waiting to be used by leaders who may not be quite as saintly and wise as our current president. It is now no longer a relic of an administration that is widely seen as reckless and out of control. It's been validated by their successors. You can see how this is a problem.


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