Second Democrat Hits Obama Over Defending Bush's State Secrets Claim
The Obama administration recently made the dismaying decision to defend the Bush-era Justice Department's use of the "state secrets" privilege in a lawsuit filed by alleged victims of extraordinary rendition. As TPM alum Greg reported yesterday, Sen. Russ Feingold (WI) was the first Democratic lawmaker to openly criticize the Obama DoJ's decision ... and now we have a second.
Rep. Jerrold Nadler (D-NY), joined by Reps. John Conyers (D-MI), Zoe Lofgren (D-CA), an Tom Petri (R-WI), just introduced a bill that would reform the state secrets privilege by requiring judges to assess whether a blanket claim of secrecy by the government is necessary to protect national security. And as he offered the bill, Nadler rightly took the opportunity to rap the Obama legal team:
The administration's decision this week to adopt its predecessor's argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege.
A little constructive criticism might be the best medicine for the administration in this case.
Josh
Matt
Eric
Well, I know that this will incite a blast, but this really is up to the administratioin, doj and legislature what they want to do about the crimes of the king's administration. I can see the current administration taking the states secret position to take the problem out of the hands of the courts and the aclu. I wish people would let the obama administration do its job, it has only been 3 weeks and you can't expect everything to be done over night.
At the end of the day, my guess is that the obama administration will be drug kicking and screaming to deal with this problem. Give them some time folks.
February 11, 2009 2:43 PM | Reply | Permalink
If they have to be drug kicking and screaming, why not start dragging right away?
February 11, 2009 2:57 PM | Reply | Permalink
If they have to be drug kicking and screaming, why not start dragging right away?
February 11, 2009 2:59 PM | Reply | Permalink
Seems to me that they should have punted a bit and said give them time to figure out what they want to do. Since they took a stand, then they deserve all the criticism they get. The proposal to have judges review state secret claims is a good thing and pares back the power that Bush/Cheney grabbed.
February 11, 2009 3:12 PM | Reply | Permalink
I don't know about that one. The state secrets claim is an important issue concerning the federal government and litigation. Concededly the king way over reached, but I would rather that issue be dealt with in the appropriate way.
By the way, I would much rather have obama and the dems worry about and deal with the economic meltdown, healthcare reform, getting out of iraq, fixing the situation in afghanistan, dealing with iran, negotiating middle east peace, negotiating a resolution of the kashmire conflict, closing gitmo, etc., etc., etc., than focusing on the crimes of the prior administration. There is plenty of time to deal with those crimes. These pressing issues are much more important.
February 11, 2009 3:19 PM | Reply | Permalink
As Obama famously said during the election: a president has to be able to do more than one thing at a time, and this issue is central to some of the "more important" concerns that you list.
The Administration could have punted on this. They chose not to do so, perhaps thinking that in the hubbub surrounding the stimulus bill, it would go relatively unnoticed. They need to be criticized when appropriate, and this is appropriate.
February 11, 2009 3:25 PM | Reply | Permalink
Ok, I give. The only thing is that I don't think that the judge would have let them punt on it, which is a guess, because I am sure that they tried to punt and were shot down.
I haven't researched it obviously, but the state secret privilege is a strong privilege for the government and should only be used sparingly, if at all. However, the fact scenario, while repugnant, does seem to have elements that would make the state secret privilege applicable, unfortunately.
That's why I originally pointed out about letting the appropriate branches deal with the problem.
February 11, 2009 3:35 PM | Reply | Permalink
"state secret privilege is a strong privilege for the government and should only be used sparingly, if at all."
Completely agree with you here, and that is why a lot of people were annoyed at this decision.
February 11, 2009 3:51 PM | Reply | Permalink
"state secret privilege is a strong privilege for the government and should only be used sparingly, if at all."
I agree here 100%. And that's why many were annoyed by the admin's decision.
February 11, 2009 3:57 PM | Reply | Permalink
sigh, the site seems to be acting up again. Yay.
February 11, 2009 4:03 PM | Reply | Permalink
Reversing the DOJ stand on this would not focusing on the crimes of the prior administration. What they are doing is continuing the cover-up and giving comfort and aid to those who committed the crimes.
If they are not going to do the right thing and actually prosecute Bush’s criminal activity, is it to much to ask that they don’t help justify and normalize such activity?
February 11, 2009 6:56 PM | Reply | Permalink
Michael, everyone here is letting Obama and his administration do his job. It's just when they don't like a decsion he makes like on state secrets, they will call him on it. It's called constructive criticism. Can't people crticize him on one issue and at the end of the day still be on his side? I think they can and I think that's what's happening here. I mean I don't like his decsion on this but I still support the man and the same goes for a lot of people here.
I have to remind you that the good people that post here at TPM and other good progressives do not follow there lawmakers blindly like what the GOP does and that's a good thing. You make a good point, but there is something called constructive criticism.
February 11, 2009 3:25 PM | Reply | Permalink
True and I was just pointing out why in my opinion the criticism is pre-mature and possibly not justified. Trying to make the counter point on the situation.
Incidentally, I agree that we have to call the pols on issues and point out where they are wrong, which I am sure that we will be doing. I was just pointing out the issue of giving him some time. That's all. It just seems like everything is being rushed for immediate action, or that's what people are expecting.
Anyway, basically, not arguing with you.
February 11, 2009 3:41 PM | Reply | Permalink
Michael,
I don't agree that the criticism is premature.
The Obama administration could have done one of three things;
1- Go along with the Bush gang.
2- Rescind the Bush version of State Secrets and go to court addressing each alleged secret as it came up.
3- Asked for a postponment.
To me, they made the worst possibile decision, siding with the Bush gang. This is NOT the Obama who was present during the campaign.
February 12, 2009 9:14 AM | Reply | Permalink
I'm still hopeful this case just slipped through the Obama administration without proper review, but whatever the case, it isn't about this president or that president, it's about ANY president. I still trust Obama, but I don't trust his successors.
February 11, 2009 3:55 PM | Reply | Permalink
I'm still hopeful this case just slipped through the Obama administration without proper review, but whatever the case, it isn't about this president or that president, it's about ANY president. I still trust Obama, but I don't trust his successors.
February 11, 2009 4:00 PM | Reply | Permalink
I'm still hopeful this case just slipped through the Obama administration without proper review, but whatever the case, it isn't about this president or that president, it's about ANY president. I still trust Obama, but I don't trust his successors.
February 11, 2009 4:03 PM | Reply | Permalink
I'm still hopeful this case just slipped through the Obama administration without proper review, but whatever the case, it isn't about this president or that president, it's about ANY president. I still trust Obama, but I don't trust his successors.
February 11, 2009 4:07 PM | Reply | Permalink
You make a good point, but his successors? Obama dosen't have any successors because he's still in office. Or are you refering to others in his administration? I know this sounds like a stupid question but I got to ask.
February 11, 2009 4:19 PM | Reply | Permalink
PRobably means this: the commenter trusts Obama not to abuse the state secrets privilege, but doesn't trust future Presidents to behave so honorably.
February 11, 2009 4:30 PM | Reply | Permalink
Incidentally, one last point. The judge should have allowed a punt. There was no reason to force this hearing 3 weeks after obama took over. Obviously, there is a political agenda going on with this judge. Either the judge wanted the obama administration to roll over right away, for one of two reasons, to make obama look weak or to get the ball rolling on airing the crimes of the prior administration, or the judge expected the obama administration to toe the line, which would give them a black eye as well. It really smacks of a political agenda on the part of this judge.
Kind of like that gitmo judge who forced the issue and refused to abide by a 120 day stay on proceedings at gitmo. Again, it smacks of a political agenda on the part of the judge.
February 11, 2009 4:14 PM | Reply | Permalink
Sorry about the multiple messages. I kept getting an error saying the site was busy and to try again in a few moments, so I assumed my comment didn't go through.
February 11, 2009 4:18 PM | Reply | Permalink
In my experience, even though it may say otherwise, the comment usually goes through.
February 11, 2009 4:39 PM | Reply | Permalink
Contructive criticism? This decision, which had to have Obama's personal approval given the high profile nature of the case, is absoultely unconscionable. It could not be more obvious that this is an abuse of the state secret privelege and that Obama is saying it is okay to use this illegitimate means to cover up criminal activity on the part of the government. It's simply disgusting, but it goes right along with Obama's cave in and sell out on the retroactive telecom immunity last summer. These kinds of "disappointments" are what makes Obama's genuine priorities clear.
February 11, 2009 4:24 PM | Reply | Permalink
All they did was invoke the privilege at this time in this case. They can still waive it later, in this case or in any other. If they had waived it now, they could not have reasserted it in this case. Take a deep breath, people. DOJ did not say they would invoke the privilege for all time in every case and if you read the comments on some of the law blogs, you'll find that they indicated that they will consider the question on a case by case basis (the position taken by the Clinton DOJ). I am 100% convinced from talking to friends at the DOJ that they will not be invoking a blanket assertion of the privilege in every case and may have a nuanced position on the privilege in this case after they have had more chance to get up to speed.
February 11, 2009 5:57 PM | Reply | Permalink
And what are the chances that they will waive it if everyone ignores it as you advocate?
Are you familiar with this case? There seems to be little or no reason to hide behind the blanket privilege. If there are areas that need to be protected, they could redact specific areas or have the judge look at them first.
What they are arguing is that the whole case is so secret that the plaintiffs shouldn’t even be allowed to have their day in court, and oh yeah, you’ll just have to trust us on the secret part because we are not going to let anyone verify that.
The “State Secrets” privilege seems to be like executive privilege. When it is invoked, you can be 99% sure that someone is covering up criminal activity. The very case that led to the courts declaring a “state secrets privilege” was based on a lie by the government.
February 11, 2009 7:05 PM | Reply | Permalink
I'm not saying to ignore it, I'm saying to let the dust settle a bit and see where he goes on other cases. There is simply no reason to believe from what happened in this case that Obama's DOJ will act the same way as Bush. Yeah, his people will not win applause from the ACLU on every case but I believe you will see a substantial difference from the prior administration.
As far as the hearing date goes, this was an appeal before the Ninth Circuit and the panel of judges which set the date doesnt grant continuances except in dire emergencies.
And I heartily disagree with the contention that it is always invoked, like executive privilge, because someone is guilty. There are principled reasons to invoke both privileges in certain cases without caring about guilt or innocence.
February 11, 2009 7:39 PM | Reply | Permalink
They use the same “we can’t have a trial, because everything’s so secret, and you have to trust us because we can’t even let a judge examine the material” excuse that the Bush DOJ used, the same policy that Candidate Obama criticized, but there is no reason to believe that they will act the same way? They are acting the same way!
I didn’t say always, I said 99%. You may heartily disagree all you want, but you are blindly trusting the government. How’s that working out for you? It’s sucking for me.
As far as I’m concerned, there is nothing in the executive branch that is so secret that it can’t be vetted by an independent source: a judge, or Congress, or an independent prosecutor. When the government tells you something is so secret that not even properly cleared people from another branch of government can examine it, they are covering up criminal activity at worst, or hiding embarrassing stupidity at best.
February 12, 2009 10:52 AM | Reply | Permalink
All they did was invoke the privilege at this time in this case. They can still waive it later, in this case or in any other. If they had waived it now, they could not have reasserted it in this case. Take a deep breath, people. DOJ did not say they would invoke the privilege for all time in every case and if you read the comments on some of the law blogs, you'll find that they indicated that they will consider the question on a case by case basis (the position taken by the Clinton DOJ). I am 100% convinced from talking to friends at the DOJ that they will not be invoking a blanket assertion of the privilege in every case and may have a nuanced position on the privilege in this case after they have had more chance to get up to speed.
February 11, 2009 6:01 PM | Reply | Permalink
All they did was invoke the privilege at this time in this case. They can still waive it later, in this case or in any other. If they had waived it now, they could not have reasserted it in this case. Take a deep breath, people. DOJ did not say they would invoke the privilege for all time in every case and if you read the comments on some of the law blogs, you'll find that they indicated that they will consider the question on a case by case basis (the position taken by the Clinton DOJ). I am 100% convinced from talking to friends at the DOJ that they will not be invoking a blanket assertion of the privilege in every case and may have a nuanced position on the privilege in this case after they have had more chance to get up to speed.
February 11, 2009 6:06 PM | Reply | Permalink
Bullshit.
Read the quote again. The Obama administration is now asking the Ninth Circuit to dismiss the case. Game over, with prejudice, etc. Please explain how they can waive the privilege "in this case" once it has been dismissed.
In the future, please consider understanding something about the posture of the case before posting.
Oh, and in case it isn't clear exactly clear what kind of conduct we're talking about here:
February 12, 2009 12:23 AM | Reply | Permalink
I'm afraid many of you folks are just not up on the facts of this situation (and yes I get my facts from Glenn Greenwald, because that's I find him to be the most factual writer out there).
There was NO reason they could not have asked for an extension. To blame the judge for the date of this hearing is ludicrous.
This is not about state secrets as they are can be applied correctly, this is about the vast over-reaching application which seeks to (and so far has succeeded in) shielding an administration from ANY review or oversight. That Obama caved on this just like he did on FISA is very very sad.
February 11, 2009 6:58 PM | Reply | Permalink
The "state secrets" privilege in the rendition cases reminds me of the "secret" bombing of Cambodia in the 1960s. Obviously, the Cambodians knew they were being bombed, so what was the "secret" and who was it being kept from?
Similarly, the people who were kidnapped and tortured know that they were kidnapped and tortured, so what is the "secret" we are keeping? How is kidnapping and torture a "state secret"? (Other than we don't want to admit it, of course.)
It's instructive to look at what happened in the first "state secrets" case, United States v. Reynolds, 345 U.S. 1 (1953), which was a wrongful death action against the government alleging that the crash of an airplane was due to negligent maintenance. The government responded by saying that there were "state secrets" involved, so the suit should not be allowed to proceed, and the Supreme Court agreed. Many years later, the records surrounding the crash and the records showed that there was nothing special about the airplane or the flight, other than the negligent maintenance of the aircraft (just as alleged).
Right from the begining, the "state secrets" privilege has been used to avoid consequences, not protect national security.
For other thoughts on one the rendition cases, see "Criminal Conduce as a State Secret," http://sanityfringe.blogspot.com/2007/03/criminal-conduct-as-state-secret.html
February 11, 2009 9:14 PM | Reply | Permalink
For those who say "give Obama time," I'm perfectly happy to give him all the time he needs on the Stim Bill or on Tarp #2.
But this . . . backing up Bush's hideous legacy on renditions and hiding behind "state secrets" to keep the US from finally being told what the world already knows -- that horrors were endured by the innocent as well as the guilty . . . is something that Obama told us (in so many words) that he'd decided against long before January 20.
So . . . not only is the DOJ decision a shocking disappointment, it puts an asterisk next to Obama's Executive Order cancelling extraordinary renditions. How many more asterisks will we need?
February 12, 2009 2:04 AM | Reply | Permalink
Some of the comments make it clear that everybody doesn't understand just what is at issue here.
To get the real picture, this Glenn Greenwald piece is must reading-
http://www.salon.com/opinion/greenwald/2009/02/10/obama/index.html
some key points from the post -
It has always been accepted by ACLU and everyone else that government is allowed to refuse to let classified material be used as evidence in court.
What is not okay is for the President to tell the Court that they can't even hear the case because some of the evidence may be classified.
Can you see the huge difference there?
The basic design of our government is that Court, Executive and Legislature are all three equal in power. It is designed that way on purpose to keep any branch from getting too powerful or dishonest.
So state secrets are just the tool, the trick. The real game is that the President just grabbed Court powers for himself. The President just took it upon himself to tell federal courts when they can hear a case and when they can't.
THAT is the problem, and it needs to stop NOW.
February 12, 2009 10:08 AM | Reply | Permalink