Friday, August 22, 2014
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What Obama didn't say

Obama, Bush, and the "state secrets" privilege

What Obama didn't say

 

 

Today, and again tomorrow, I plan to highlight several exchanges that occurred during the presidential news conference that marked Barack Obama's first 100 days. Most of the attention has focused on his remarks about Pakistan, the torture memos, and the flu. I'm more interested in noteworthy stuff that has been largely overlooked, with particular focus on things left unsaid.

For instance, the following exchange occurred late in the hour. Without the necessary context (read on), it was probably incomprehensible to millions of viewers.

Q: During the campaign, you criticized President Bush's use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush's? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?

OBAMA: I actually think that the state secret doctrine should be modified. I think right now it's overbroad. But keep in mind, what happens is we come into office; we're in for a week and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through what exactly should an overarching reform of that doctrine take. We've got to respond to the immediate case in front of us.

There - I think it is appropriate to say that there are going to be cases in which national-security interests are genuinely at stake, and that 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 an open court - you know, there should be some additional tools, so that it's not such a blunt instrument. And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.

Lacking crucial background information, the average viewer was probably at pains to determine what the heck they were talking about. So here's the annotation:

For starters, you would never know it from that exchange, but Obama and his Justice Department suffered a stinging federal appeals court defeat on Tuesday...after trying to float some of the same secrecy arguments used by George W. Bush and his Justice Department.

Obama's lawyers - echoing the same national-security stance previously taken by Bush's lawyers - have been trying to squash an anti-torture lawsuit filed by five victims of Bush's "extraordinary rendition" program. Claiming a need to protect "state secrets," the Obama lawyers in February had sought to persuade a panel of federal appeals judges to summarily throw out the case without it being heard.

Keep in mind, as the reporter noted in his question, that candidate Obama had assailed Bush for claiming a blanket "state secrets" privilege in order to impede court scrutiny of his executive overreach. Yet the lawyers for President Obama were making the same claim, hoping to deny a day in court for the plaintiffs who had been whisked away to foreign locals, where they were allegedly tortured.

Anyway, there's wasn't a word in the news conference exchange about the decision Tuesday in the federal appeals court. The three judges unanimously rejected the Obama/Bush pitch for a blanket "state secrets" privilege; they did so with a whiff of mockery: "According to the government's theory, the judiciary should effectively cordoned off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

The judges also said that such a blanket privilege could be easily exploited for reasons have nothing to do with national security; for instance, it could "perversely encourage the president to classify politically embarrassing information (as a state secret), simply to place it beyond the reach of the judicial process."

With that information in mind, Obama's news conference response seemed a tad bizarre. He basically stated that, even though he believes that the state-secrets privilege is "overbroad," he had his lawyers invoke it anyway. And, yes, even though they invoked it in an attempt to have the victim lawsuit summarily tossed without being heard, Obama said they did so only because they were due in court last February and had no time to come up with anything else ("we've got to respond to the immediate case in front of us").

All of which prompts more questions: Is it credible to believe that Obama's legal team signed on to the Bush blanket-privilege doctrine only because they were pressed for time? If that's true, then how come the Obama team has twice invoked the blanket doctrine in subsequent cases? Does he regret breaking an important campaign promise? And how hard will Obama really work to trim back the doctrine? In his response, he never mentioned the long-pending Senate bill that would allow judges to privately examine sensitive material without tossing out entire cases; would he support such a bill?

The news conference exchange on state secrets quickly ended. Indeed, thanks to the inherent strictures of the format, Obama didn't have to address the overriding question:

Is any president, liberal or conservative, truly willing to accept curbs on executive power?
 

 

Dick Polman Inquirer National Political Columnist
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Dick Polman Inquirer National Political Columnist
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