Dahlia Lithwick recently chatted online with readers about this article. Read the transcript.
The Obama administration is walking a tightrope. It's trying to achieve a clean break from the worst of the Bush administration's legal excesses while beating back efforts by Dick Cheney, John Yoo, and others to pin an unnamed future terror attack on Obama's naiveté. In general, and despite what CBS's Andrew Cohen calls the annoying "pre-emptive I-told-you-sos" from the architects of Bush's terror policies, Obama has done the right things to signal that safety and core human values need not be in conflict.
Obama pledged to close Guantanamo within a year, halted the military commissions there, shut down CIA black sites, and limited interrogation practices to clearly legal methods. His vice president just announced in a major policy speech that "there is no conflict between our security and our ideals"—a line echoing his boss's inaugural address—and reiterated that America and her allies share "a common commitment not only to live by the rules but to enforce them." Obama has tapped for the most senior positions in his Justice Department people who have been outspoken critics of the Bush administration's extreme and secretive arrogation of powers; people like Eric Holder, Dawn Johnsen, Martin Lederman, and David Barron. This, perhaps more than any single action on Obama's part, has signaled how serious he is about capping the last administration's geyser of President-Is-King nonsense.
How then, is it possible that Obama's Justice Department chose to stay the course on one of the most embarrassing legal theories advanced by the Bush administration—the so-called state-secrets privilege? If you're going to cling to any aspect of the "war on terror," wouldn't it make sense to choose a power that could arguably forestall future terror attacks (like coercive interrogation) rather than the utterly bogus argument that courts are not fit to scrutinize government wrongdoing?
Yet in a San Francisco courtroom Monday, that is precisely what the new Justice Department did. Administration lawyers held to the Bush line of using the state-secrets privilege to urge the 9th Circuit to block a civil suit filed by five foreign detainees against Jeppesen Dataplan, a Boeing subsidiary. This suit was filed by the ACLU in 2007 on behalf of the five detainees and dismissed by a district court last February. The ACLU was hoping to reinstate the suit, which alleges that Jeppesen contracted with the CIA to fly detainees to countries where they were tortured under the CIA's "extraordinary rendition" program. The abuse these men describe in their court papers is appalling. Allegations have recently surfaced in the British papers that one of the detainees, Binyam Mohamed, had his "genitals . . . sliced with a scalpel." This information was redacted by judges of the British High Court, allegedly as a result of American threats. If the appeals court agrees with Obama's lawyers, this case will never get to a court.
The state-secrets doctrine, as Henry Lanman explained here in Slate, was a narrow evidentiary privilege until the Bush administration laid its hands upon it. The perfectly reasonable judge-made rule was that some evidence should not be made public if it threatens national security (that's why it's called a "privilege"). In a 1953 case from the Cold War, Reynolds v. United States, the Supreme Court grafted a more capacious British rule onto the American legal system. Years after Reynolds, it was discovered that the only "state secret" the government sought to preserve in that case was that there was no state secret to protect. As Bruce Fein has written in his book Constitutional Peril, the Reynolds decision "blinds itself to the government's propensity for national security lies to avert civil or criminal liability or political embarrassment."
Yet under the Bush administration, the state-secrets privilege morphed into a basis to dismiss whole cases. No wonder the Bush Justice Department invoked the privilege at least 39 times. Until then, it had been used only 55 times since 1953.
Obama said during the campaign that he deplored the Bush administration's use of the privilege "to get cases thrown out of civil court." Last year, Joe Biden co-sponsored legislation that would limit its use dramatically. And Obama's attorney general, Eric Holder, announced at his confirmation hearing, "I will review significant pending cases in which DoJ has invoked the state-secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations." Indeed, as his subordinate was invoking the privilege in court Monday, Holder was again promising to review all pending state-secrets claims to ensure that they weren't being used merely to shield the government from scrutiny.
Of course, the alleged "secrets" being protected in Mohamed v. Jeppesen Dataplan are not really all that secret anyhow. A former Jeppesen employee told Jane Mayer of TheNew Yorker that at an internal meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights—you know, the torture flights. Let's face it, some of these flights end up that way." The details of the torture the detainees suing faced are already widely known. Vincent Warren, executive director for the Center for Constitutional Rights, notes that the rendition victims themselves have been very open about their treatment and that the government has admitted to it. So where exactly do the state secrets come in? As Ben Wizner, the ACLU's counsel for the plaintiffs, told Salon's Glenn Greenwald:
[T]he facts of this story are absolutely well-known, have been the front pages of the New York Times and Washington Post, are in books, and all of these stories are based on CIA and other government sources, that essentially said, well, in this case we got the wrong guy. So the position of the Bush administration, accepted by conservative judges in that case, really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen.
It is certainly possible that widespread public disclosure of some specific evidence in this case would imperil national security. Luckily, courts can protect against that: Judges can review classified information and then decide what not to release. What's astonishing is that the Obama administration nonetheless took the position that the only remedy here is to dismiss the whole suit. Which takes us back to the question: Why?
One possible answer is that water-boarding and Guantanamo were so awful as to be indefensible, whereas the state-secrets privilege at least sounds plausible. Another possibility is that the Obama administration just hasn't had time to look carefully at the state-secrets doctrine and was buying itself a little time Monday by both continuing the policy and announcing a massive review. A third possibility is that Obama is less willing than he seemed before the election to shed the great dark cloak of secrecy fashioned by his predecessor.
Along those lines, the Obama administration is also struggling with how much to cut back the Bush expansion of executive privilege. On the one hand, Obama, on his second day in office, signed an executive order trimming back the Bush definition of executive privilege for current and former presidents and pledging "to usher in a new era of open government." On the other hand, Obama's lawyers haven't yet said whether Karl Rove may continue to invoke his wacky theory of privilege to dodge congressional subpoenas.
There are many reasons for the Obama administration to toss out dumb tactics employed by the Bush administration in the war on terror while still holding onto its dumb secrecy claims, not the least of which is that the Obama administration's secrets will someday be evaluated by the next administration. We keep your secrets, the next guy keeps ours. (Or so the president may hope.)
Finally, by keeping the worst of the Bush administration's secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that "nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I'm more interested in looking forward than I am in looking backwards." The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.
It's a depressing hypothesis, and one about which I hope to be proved wrong. Blocking the Jeppesen suit from going forward serves no legitimate legal principle, although the political advantages of doing so may turn out to be overwhelming. Of course the Obama administration was supposed to understand the difference between the two.