They've Got A Secret
by dday
I think I mentioned this here in passing once, but it deserves a fuller rendering. The outcry over the President's expansive use of the state secrets privilege to shut down lawsuits against illegal wiretapping has escalated. TPM Muckraker finds a series of experts willing to acknowledge that this is no different from Bush's policy to get these lawsuits tossed out.
Ken Gude, an expert in national security law at the Center for American Progress, supported the administration's invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is "disappointing," Gude told TPMmuckraker, calling himself "frustrated."
Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. "They've taken the maximalist view that the judge has hardly any role in determining whether national security" would be compromised by the release of classified information," he said. "There's going to be people who are very unhappy, and justifiably so."
He added: "I'm very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government."
Gude's general view was echoed by Amanda Frost, an associate professor at Washington College of Law who has written extensively about issues of government transparency. Frost made clear that she hadn't followed the Jewel case, but called the Obama administration's assertion of the state secrets privilege in a similar high-profile wiretapping case involving an Oregon-based Arabic charity "indefensible." The NSA, she said, has already acknowledged the existence of the wiretapping program, and some of its details are publicly known, so the claim that national security would be jeopardized merely by allowing the trial to proceed doesn't hold water. The government is making that argument in both the Oregon case and Jewel.
There are more at the link. Even the traditional media are starting to openly question Obama officials on these points - and the officials are maintaining that the President fully supports the invocation of the state secrets privilege on expansive national security grounds to dismiss lawsuits. Dan Froomkin calls it utterly un-American. And this find by Greg Sargent makes clear the official hypocrisy at work:
Obama attacked Bush’s use of (the state secrets privilege on the grounds of national security) during the campaign. Indeed, Obama’s campaign Web site still identifies Bush’s use of the tactic as a “problem” that created undo “secrecy” and needs to be changed.
Congress can actually act here. Russ Feingold has carried legislation that would sharply limit the ability of the executive to use the state secrets privilege. Far from being the work of "America-haters" or based on a knee-jerk antipathy to George Bush, civil liberties advocates were always adamant that the standard of the rule of law be equally applied in all cases. No executive, Republican or Democratic, should have the untrammeled power to essentially supersede the courts and act above the law. Here's Feingold's statement, reflective of this belief:
I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct. The Obama administration’s action, on top of Congress’s mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program. In February, I asked for a classified briefing so that I can understand the reasons for the Department’s decision to invoke the privilege in another case, and I intend to seek information on this new case as well. I also encourage the greatest possible public accounting of the use of the state secrets privilege and welcome the Attorney General’s statement that he hopes to share his review with the American people.
Beyond the particular case at issue here, it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege. The American people must be able to have confidence that the privilege is not being used to shield government misconduct. That is why I am working with Senators Leahy, Specter, and others to pass the State Secrets Protection Act as soon as possible.
This is truly ugly stuff, and the worst aspects of the Obama Administration thus far, in fact almost all of them, have been when they have sought to participate in what amounts to a cover-up. They should not have the tools to do so, at least in this case. And while state secrets invocations are generally successful in the courts, the continual smackdowns by federal judges to the Bush Administration's attempted capture of more and more expansive executive power should at the least caution Obama's team not to follow down the same path. But they are now fully implicated in this, and will have to face the consequences.
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