Obama: State's Secrets Privilege Too Broad. I Know! I've Used It!
Time's Michael Scherer just asked an excellent question. During the campaign, Obama took the position that the Bush administration had abused the state's secret privilege, but since coming into office he has used it repeatedly to argue that crucial national security cases be thrown out of court.
Scherer asked the President to reconcile that contradiction. And Obama's answer was...a bit disingenuous. "I actually think that the state secrets doctrine should be modified," he said. "I think right now it's overbroad."
So why has he been hiding behind its breadth? "We're in for a week, and suddenly we've got a court filing that's coming up...and we don't have the time to think up what an overarching form that doctrine should take."
But it's hard to square that with what the administration's actually done. DOJ lawyers haven't asked the courts for more time, or to withhold key pieces of information. Rather, they've argued that these cases--Jewel v NSA, Al-Haramain Islamic Foundation v Obama, and Mohammed v Jeppesen Dataplan--be tossed out entirely. And they've done that by invoking the state secrets privilege. In fact, in Jewel, the administration went so far as to claim "sovereign immunity" for the government from just about any lawsuit involving wiretapping. That position is even more radical than Bush's was.
It's hard to imagine Obama walking that claim back. But as far as state secrets go, now he's on the record. The administration, he said, is "searching for ways to redact to carve out certain cases to see what can be done... there should be some additional tools so that it's not such a blunt instrument." That's news--the White House hasn't always been so straightforward. But there are incipient efforts in Congress to do just what Obama said, and if I had been offered a followup question, I might have asked whether this means he'll throw his full weight behind them.
Josh
Matt
Eric
scherer's was the best question of the night.
accordingly, it was also obama's worst answer.
April 29, 2009 10:15 PM | Reply | Permalink
I think people need to be patient. People were jumping all over filings that were made days after they got there. (In one case, a single day) These would take weeks and months of work to prepare. And so would a new policy.
It's almost as if there is this permanent fear of "betrayal", as if Obama is going to rip off the mask and reveal he's really Dick Cheney. I think in some ways, we've all been a little brutalized by the horrors of the Bush years, when nothing was beyond the pale. Now we are returning to normal democracy and need to adjust.
Vigilance is good, but let's take a deep breath when we don't get instant gratification, especially with everything else going on at the moment.
April 29, 2009 10:23 PM | Reply | Permalink
The patience argument makes little sense here. The criticism of President Obama isn't that he has failed to act. Instead, the criticism is that the Obama Administration is trying to expand the state secrets doctrine in direct contradict to his campaign promises.
No progressive would be criticizing the President if he had asked for more time. The courts would have given it to him. That's not what he did. Instead, the Department of Justice affirmatively argued to expand the state secrets doctrine even beyond the Bush-era distortions.
April 30, 2009 9:11 AM | Reply | Permalink
I'm starting to think Obama wants some of these arguments tested (and hopefully eliminated) in court. If he simply uses his presidential power to change course, it does NOTHING to prevent future presidents from dusting the tactics off at a future date ... and the legal wrangling would start over at the beginning (think Padilla's dirty bomb case). If the courts rule it invalid, that takes it off the table completely for future administrations.
IMO those who disagree with Bush's strategy are way better off with the Jeppesen ruling than we would be had Obama simply withdrawn the argument.
I know that may be giving Obama too much credit, but it's a thought.
April 30, 2009 10:53 AM | Reply | Permalink
This hypothesis takes the political jujitsu fable to an entirely new (and yet to be justified) level.
April 30, 2009 11:04 AM | Reply | Permalink
If President Obama wants to clarify the state secret doctrine, I can wholly support that goal. The way to do it, though, is with comprehensive legislation, not piecemeal judicial decisions. If that's what President Obama meant last night when he said that his administration is looking at the issue, then I would be tentatively satisfied (depending, of course, on the substance of the legislation). If President Obama meant only that DOJ is working on revising its internal policies, then I am not satisfied at all; no matter how robust, an internal policy can be easily changed by future administrations.
April 30, 2009 11:54 AM | Reply | Permalink
It’s just too bad that our legal system doesn’t provide a way for a court filing to be delayed for awhile when necessary. I don’t know, they could call it a “continuance” or something.
I don’t want Obama to continue to piss on my leg while telling me that he’s looking for a way to make it stop raining.
April 30, 2009 11:27 AM | Reply | Permalink
A "continuance" is what you do when you want to delay trial. When you want to delay responding to a brief, you move for an extension of time, you have to find out whether the other side consents and then regardless, the judge can grant, or not grant, the request in its discretion.
Generally speaking, you cannot get an indefinite extension of time to respond to the brief. Some districts won't give them to you at all on briefs, most districts will give you one extension, equal in time to your original response time, and no more. "Even if they said, we want an indefinite extension of time because we're contemplating a huge change of position," the court's usually going to say, "hell no, you've got twenty, or, if you're lucky, thirty days," even if its the DOJ doing the asking.
My recollection is that in at least one, and possibly all, of these cases, they'd already burned through their permissible extensions before Obama was inauguarated.
April 30, 2009 3:07 PM | Reply | Permalink
With all the things on Obama's plate right now, I'd bet good money that the high-level experience management needed to revise the State Secrets policy simply aren't there. That might be a high priority item if there weren't two wars and a Recession/Depression and a health care program to get passed. It doesn't help that the Senate Republicans are slow-walking approval of the second level political appointees.
So it makes sense that the existing policy stays in place for a while. Changing it and carefully dealing with the delicate balance between legitimate state secrets and the rights of defendants to get an open and fair trail is going to be a real ball of worms.
In the meantime, the Federal Prosecutors use teh existing policy and simply throw the ball into the Judge's court to leave it to him to determine.
April 29, 2009 10:24 PM | Reply | Permalink
as usual the apologists are working overtime...
'it makes sense that the existing policy stays in place for a while...'
????
how many policies are you willing to put in this category? all but five? six? ten? twenty? a hundred?? how small a plate are you willing to let obama get away with?
how many days are you willing to give him on any given terrible destructive policy??
what if the particular policy was waterboarding/torture? if that policy hadn't changed, would you be willing to cut him the same slack?? would you accuse others of unrealistically wanting 'instant gratification'??
allow me to translate from obamanaut to english:
my loyalty to and adoration for obama is of more importance to me than that particular issue
April 29, 2009 11:07 PM | Reply | Permalink
fkaZk0sm0
You're simply being unrealistic if you don't recognize the limitations of what can be done in a given short period of time. You don't just rip out a very important government policy and replace it with a promise to build that page "real soon now." That throws too much of the bureaucracy into unproductive dithering or worse, causes expensive (and in the case of national security, deadly) screw-ups.
As a smaller example, you know what the worst thing about the big Wall Street Banks is? It's not that they are too big to fail without costing the taxpayers a bundle, though that is very badbad. What's wrong is that they are too big for any one human being to manage in a crisis. Those banks can be expected to screw up big time whenever things in the economy change.
Large organizations do not function well if you rip them up and change them willy-nilly which is what you expect Obama to be doing. A policy isn't just words on paper. It is direct guidance regarding what and how to do the job fro hundreds, sometimes thousands of people.
Obama is setting priorities, which is the right thing to do. Do the most important things and keep the rest running on routine. Think Bush would tackle even a fraction of what Obama has? He damned sure didn't for his last six months to a year in office. Hell! He spent the last two months before the inauguration on vacation!
Essentially Bush screwed up the sensible war, Afghanistan, because he wanted to attack Iraq and he couldn't handle two wars at once. And he totally ignored the economy for his entire eight years as resident. I think Clinton could have done a much better job than Bush did, but Clinton didn't have the self-discipline or the energy to keep as many plates spinning as Obama has.
Besides, this situation throws the immediate decision in each case onto the Judge and the legal system rather than on Obama. There is no similar back-up decision system available to Obama on the economy or on the two wars or on organizing the administration that the nay-saying Republican retards are slow-walking his appointments on.
April 30, 2009 1:13 AM | Reply | Permalink
I watched the interview Bill Moyer's had with Simon Johnson and he said a bank that is too big to fail is too big to control.
April 30, 2009 2:19 AM | Reply | Permalink
again, IF the obama administration had any expectation that they would not continue to use this bullshit argument that had been advanced by the bush administration, the obama administration could have asked the courts for the very amount of time you take such great pains in pointing out they would need. IF obama had asked for the time and IF the courts refused it to him, THEN and only THEN would your argument have any value.
April 30, 2009 7:43 AM | Reply | Permalink
If you think federal judges grant indefinite extensions of time in which to file briefs, even to the government and even in cases of great public importance, all I can say is you've apparently never either practiced law in federal court or been a party to a federal lawsuit.
The automatic instinct of almost every federal judges is to such a request is going to be to set a hard deadline--depending on the judge, it would be somewhere between 20 to 90 days at most. They are under a lot of pressure from the Administrative Office of the Courts, and probably from the Chief Judge of the district, to keep the cases on their docket moving. More importantly, such a request from the government--especially when they know its coming from very high up--is going to automatically trigger a federal judge's "I Run this Court and Article III Says You Aren't the Boss of Me, Buster" reflex.
I realize that the pedestrian realities of docket management pressure and the institutional pissing matches between branches of the government that the Founders deliberately built into the Constitution into doesn't satisfy whatever is fueling your evident need to imagine a power grab conspiracy, but it's the way it is nonetheless.
April 30, 2009 3:21 PM | Reply | Permalink
not something i recall thinking.
that said, i do think think federal judges are more likely to grant extensions to incoming administrations on the basis of state secrets than they are to summarily dismiss cases on the basis of state secrets.
but my point wrt extensions was to point out to those apologizing for obama on the basis of 'these things take time' that the administration was not asking for time in the federal courts where it matters, only in the court of public opinion - nevermind that the adminsitration was prepared with armfuls of executive orders on a vast array of issues, ready to go on day one so the whole 'we didn't have enough time' argument is bullshit anyway.
April 30, 2009 11:45 PM | Reply | Permalink
If Rome wasn't built in a day, then deconstructing all the (il)legal loopholes and knots the Bu$h administration used that's hidden behind the infamous State Secrets Privilege can't be undone in a day neither.
April 30, 2009 2:16 AM | Reply | Permalink
be serious.
no one is asking that 'all' of anything be undone in a day. or in this case a hundred days.
and this isn't about deconstructing the loopholes, this is about the obama administration continuing to make the argument that the state secrets privilege gives the executive the right to have cases dismissed entirely.
this is the equivalent of the obama administration continuing to use torture, being called out on it, and you saying, 'hey the bush administration tied their hands with all these legal loopholes and knots regarding torture so we'll just have to go on torturing people until all the loopholes can been closed.'
it's a bullshit argument. and the only reason people feel comfortable making it is that they think giving obama the benefit of the doubt is more important than whatever issue they want to give him the benefit of the doubt on.
April 30, 2009 7:08 AM | Reply | Permalink
ok, i'll say it. below, you want someone to just say, "this issue isn't important enough ...." here you go:
to me, this issue isn't important enough to commit extensive resources to it right now.
obama couldn't have been any clearer last night about the need to prioritize, when he said that abortion isn't real high on the "List of Things I Give a Shit About Right Now."
i think, maybe, that it's YOU who are perhaps too much of an obama worshiper, if you think that his administration can do EVERYTHING at once.
allow me to translate from fkaZk0sm0naut to english:
"my belief that obama is omnipotent, omnipresent, and omniscient leads me to hysterics when every issue hasn't been dealt with to my satisfaction in 100 days."
your posts smack much more of messianic expectation than do those of the obama "apologists."
April 30, 2009 8:45 AM | Reply | Permalink
what 'extensive resources' do you imagine obama would have to divert to stop arguing that the state secrets privilege allows the executive to have cases summarily dismissed without judicial review???
shorter nova voter: i don't care about this issue because i don't understand it.
April 30, 2009 2:01 PM | Reply | Permalink
well, now that we've established your superiority, here's what i think right off the top of my ignorant head:
it starts with lawyers in the white house counsel's office having to research and draft memos on the issue, to brief the president on the history and scope of the privilege, cases in which it's been invoked, and possible areas where the privilege could be narrowed, possible sticky areas, etc. that, just by itself, would be a pretty big task, and would take a couple/few white house lawyers (and their office ain't that big) out of the rotation for quite a while.
and that's just the start. i'm guessing that some kind of ad hoc working group with members from the white house (incl. counsel's office), the NSA, DOJ, CIA, FBI, etc., would have to be set up. each of those agencies would have to have their own in house counsel research the issue, and draft memos regarding their concerns. i don't know if you work at a federal agency, when you're talking about something like this, there are multiple hurdles of review that would have to be cleared within the agency. and then you'd have to try to work out some sort of articulation of the privilege that is palatable to everyone involved.
that's just a thumbnail sketch. bottom line is, a lot of resources.
of course, i'm just a fuckin' idiot, right? tell you what -- humor my idiocy, and i'll humor your condescending assholeness. k?
April 30, 2009 6:29 PM | Reply | Permalink
well, i can't say if you are an idiot or just being deliberately obtuse but that sort of comprehensive review is completely unnecessary to the task of determining that the state secrets privilege does not and ought not give the president the authority to have cases summarily dismissed with no judicial review. that is a 15 minute conversation and a 5 minute telephone call. and it could have and should have happened before obama was even sworn in.
your scenario reads like a 'how many obama advisors does it take to screw in a lightbulb' joke. laughable.
May 1, 2009 4:16 PM | Reply | Permalink
This has nothing to do with torture. This is about the wiretapping. I know its hard to keep track of them all, but do try to keep which outrageous and illegal Bush activity that's at issue straight.
April 30, 2009 2:58 PM | Reply | Permalink
Mohammed v. Jeppesen Dataplan = 'extraordinary rendition' = torture
April 30, 2009 11:57 PM | Reply | Permalink
Yes, what if this were a completely different situation!
April 30, 2009 7:50 AM | Reply | Permalink
if this were a completely different situation the flaw in the logic would be revealed for what it is.
nobody here is defending obama on the particulars. nobody wants to argue that his state secrets arguments are valid or the right arguments to make.
the only 'argument' is that he's too busy to do his job.
but go ahead and get in line with that apology/misdirection.
i just wish you guys would have the courage to say, 'this issue isn't important enough for obama to get right.'
April 30, 2009 8:08 AM | Reply | Permalink
to put it another way: because what is being defended here isn't the policy but the process, it is a legitimate and useful exercise to substitute the policy in order to evaluate the defense of the process. this should reveal that willingness to defend the process is actually dependent on the relative acceptability of the policy.
April 30, 2009 8:28 AM | Reply | Permalink
Except, in many ways, the issue is torture. In the Jeppesen Dataplan case, President Obama is trying to use the state secret doctrine to prevent torture victims from suing those who knowingly facilitated the torture.
April 30, 2009 9:16 AM | Reply | Permalink
As usual, the *alarmists* are hyperventilating as always!
April 30, 2009 10:07 AM | Reply | Permalink
Y'know this is what I was amazed at. I was very certain that Obama was working on this information. However, everyone was freaking out over three, let's count them again, three instances of state secrets implementation.
I watched Jonathan Turley on Maddow after the news conference and was amazed again at his outright disingenuousness. He stated "if they asked for more time, that wouldn't have been a problem". BS. I was reading a WaPo article about state secrets, and a lawyer was complaining that their client couldn't wait 3-6 months for a review to be finished. They wanted it done on their time. 24 hours newscycles are absolutely KILLING progressives.
April 30, 2009 3:07 AM | Reply | Permalink
so.... because turley says that the courts would probably have allowed the new administration additional time to review the state secrets arguments he's being disingenuous because the client's attorney is arguing that they shouldn't be allowed more time??
how does that make obama's decision to continuing making the same bullshit state secrets arguments the right decision??
how does that have anything to do with anything killing progressives??? i can see how it might be roughing up obama and the centrists a bit, but i don't see how it's killing progressives.
April 30, 2009 7:17 AM | Reply | Permalink
When BushCo was aggrandizing the Executive, many people pointed out the likelihood that future Presidents, of whatever political stripe, would be loath to completely give up their new powers. As we're seeing, these warnings were not misplaced.
April 30, 2009 8:44 AM | Reply | Permalink
Prejudices always manage to 'confirm' themselves, don't they.
April 30, 2009 10:12 AM | Reply | Permalink
Is that supposed to mean something in English?
April 30, 2009 10:15 AM | Reply | Permalink
The sky is falling!
The sky is falling!
Jesus f---ing christ, he said he wanted the change the policy but will need time to work on it.
Personally, I'd rather he deal with other things right now -- say two wars, the flu and the banks.
But I think people miss the point: Bush abused his powers, and carping on Obama doesn't change that. Obama can fix his policy tomorrow, and it won't prevent a future Bush from doing the same thing. Unless you think that Obama is a clone of Bush (in which case you are a kook), I don't think you are accomplishing very much. Obama will correct the policy, but it won't prevent future Bushes or future Nixons.
The bottomline: Having a criminal president is the problem, not the legal framework.
Anyway, hyperventilate away!
April 30, 2009 10:04 AM | Reply | Permalink
p.s. If we don't support Democrats, another Republican will be in the WH, and the torture, wiretapping, secrecy and lies will all start again.
April 30, 2009 10:10 AM | Reply | Permalink
Anybody who supports any politician UNCONDITIONALLY is an idiot. Politics works by supporting while continuing to push them to do the right thing.
April 30, 2009 10:19 AM | Reply | Permalink
and this is why his answer was terrible.
i'd really like to stop making these terrible and destructive legal arguments but geez i'm so busy making these arguments i just don't have the time to change my policy about making them. hey, i'll tell you what, just as soon as i get done having all these cases dismissed on the basis of state secrets i should be able to take a little time to reconsider my policy on arguing that i have the authority to have cases summarily dismissed on the basis of state secrets. but as you can see, in the meantime....
April 30, 2009 2:35 PM | Reply | Permalink
The bottomline: Having a criminal president is the problem, not the legal framework.
Um, no. The legal framework is precisely the problem. You have heard the expression "government of laws, not men" before, have you not? Do you think it's just a cute expression?
May 1, 2009 4:19 AM | Reply | Permalink
so let me get this right:
we have to support obama's secrecy (and lies) about wiretapping and torture or... what will happen??
you obviously have no idea what we are talking about here.
April 30, 2009 2:39 PM | Reply | Permalink