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Thursday, April 30, 2009

 

 

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?
 

 

Posted by Dick Polman @ 2:34 PM  Permalink | 46 comments
Comments   
Posted 03:10 PM, 04/30/2009
CD75
Obama says one thing, but his actions say another. Today, Obamachev nationlized Chrysler and soon GM. It is not a bankruptcy. Under the deals, the goverment gets a 50% stake in it, and the UAW owns like 40% (Who would ever want to buy or loan money to an unholy union like that?) This is true communism. The government and the workers own the means of production.
Posted 03:11 PM, 04/30/2009
CD75
WTF is "enchanted" anyway? More evidence that the NYT is a bogus newspaper and is merely a cheerleader for Obamachev.
Posted 03:20 PM, 04/30/2009
jwad56
Lay off Obamachev comrade. If you don't he might prosecute you for tea bagging or something.
Posted 03:31 PM, 04/30/2009
Prof.Marvel
You two are hilarious! Meanwhile - here's a priceless gem: "You know things are really humming along when your 'rebranding' effort is led by your recently crushed presidential nominee and your discredited party leader's brother." As well as your impotent Congressional Leaders. The only fools buying this 'brand' are the stupid 20%ers who couldn't empty a boot full of pee if the instructions were on the heel! G! O! P! all the way!!!
Posted 03:45 PM, 04/30/2009
cusoraider
CD I thought Obama was going to lead us to socialism not communism. Come on stick to one of them.
Posted 03:46 PM, 04/30/2009
t_dmanns
I'm sorry, but what on earth does this post have to do with Chysler? I thought the subject today was wire tapping. Not to mention that you pulled those 50% and 40% numbers out of the sky. You're not even trying anymore.
Posted 03:47 PM, 04/30/2009
still_independent
CD75: you're close. The government gets an 8% stake in the company - in exchange for $12 Billion in loans. The UAW will own 55%. Fiat will own 20% (with an option of goin up to 35%). And Canada will own 2% (in exchange for more loans). It doesn't seem that an 8% stake is "nationalization". As far as "... and the workers own the means of production", then I guess Avis was a commie company. And so is United Airlines. And so is Anderson Windows. And ......
Posted 03:48 PM, 04/30/2009
Logathis
There's no defending Obama's decision. He wanted to avoid a fight while he was busy pushing through the most ambitious agenda for a new president since FDR. In other words, he was busy with more important things, like making sure our economic fabric didn't tear itself apart. But, again there's really no valid excuse. I hope it was just lack of will to start a nasty policy fight, or laziness, and not an actual statement of how he intends to handle future cases. It seems like the kind of change an administration would want to do a couple years into a term, not when the spotlight is still bright like now. But honestly, it's doubtful it will change, and in that case it is a sad day for the checks and balances of our system. It's funny, even when Obama does something that is in-line with Republican policy, conservatives still criticize him. I thought you guys liked torture. Or excuse me, 'enhanced interrogation techniques'.
Posted 03:49 PM, 04/30/2009
still_independent
jwad: I don't want to ask how you are so familiar with CD's .... um ... "activities"
Posted 03:58 PM, 04/30/2009
NEPhilly
I wonder if the UAW will give itself a better deal now that it owns Chrysler than it gave the former owners of GM and Chrysler! Rush predicted the UAW would own the car companies 5 months ago when the bailouts happened and he may be a bloviating radio host, but he does have nuggets of truth in there if your willing to listen objectively :)
Posted 04:33 PM, 04/30/2009
liberal
I don't think Polman or most reporters understand the litigation process. It's not generally possible to change the gist of your legal position in the midst of litigation. You either have to go forward or withdraw entirely. In this case, no government would want to entirely abandon the position that there are state secrets, so the only choice was to go forward with the Bush position. It's the Court that ultimately decides, and the Obama people probably figured that the Court would rule in a way that they could live with.
Posted 04:55 PM, 04/30/2009
James TL
Invoking 'National Security' is a tool that can easily be corrupted. Some secrets could damage our security but how is anyone know if it is to protect security or hide imformation from the public? I guess you just have to trust the people in power. This is a dicey issue. I'd rather the truth be told but some things should be kept secret. I don't thing invoking "National Security' should be used frivously.
Posted 04:56 PM, 04/30/2009
CD75
Still Indy: Thanks. The WSJ reports today that the GM bankruptcy deal is that 50% of GM owned by the USA and 40% by the UAW. That means that 90% of it is owned by the government and the workers. Karl Marx and Lenin are smiling right now.
Posted 04:59 PM, 04/30/2009
JimR
NEP, my new DVD player has been plugged in but not programmed for a week now. The clock, like Rush, is correct once a day. The owners of GM were stockholders who lost their shirt. The management was buying new shirts, and suits, and boats with the bonus money they received for their shining performance. There's a lot of good companies that are owned by employees. (See still's_ previous post)
Posted 05:08 PM, 04/30/2009
dmanns
CD: http://money.cnn.com/2009/04/30/news/companies/chrysler_bankruptcy/index.htm?cnn=yes Still Indy's numbers are right. I can't find your numbers anywhere in the Wall street journal. You could at least try to make your point without fabrication.
About Dick Polman

Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.

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All commentaries posted before April 18, 2008, can be accessed at www.dickpolman.blogspot.com.