White House Rejected On State Secrets

Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.

Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."

Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.

In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.

Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.

Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.

Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.

The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.

The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:

...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.

And hopefully, not just the victims but the perpetrators will have their day in court as well.

...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.