Obama’s Use of State Secrets Is More of the Same

Throughout his administration, President Bush invoked a little-known and less-understood doctrine called the State Secrets Privilege. The privilege allows the Executive to suppress evidence in a court case if, in the Executive’s estimation, revealing that evidence in court would compromise national security. The use of the privilege is not unprecedented. Bush, however, didn’t merely use the privilege to get evidence thrown out. He tried to have whole cases dismissed. (Please read this article from Lewis & Clark Law Review for more information about the abuse of the State Secrets Privilege.)

In the arena of warrantless wiretapping, the administration argued that it could not provide documentation to plaintiffs that they were wiretapped, since even providing evidence of wiretapping would compromise national security. And, since the plaintiffs can’t prove they were ever wiretapped, they have no standing to bring a case, so the administration also requested that the case be dismissed. Thankfully, Judge Vaughn Walker of the U.S. District Court for the Northern District of California rejected the Bush administration’s assertions.

But now, the Obama administration is in town, and given his memorandum ordering more transparency in government, he’s going to reject the Bush administration’s assertion that entire cases can be thrown out due to the State Secrets Privilege.

Just kidding! In fact, Obama’s Justice Department has gone even further in asserting opacity when it comes to the State Secrets Privilege. On Friday, the Ninth Circuit Court of Appeals rejected the Obama administration’s arguments — which were a continuance of the Bush administration’s arguments — that the State Secrets Privilege can be used to dismiss entire cases.

Immediately following the ruling, Obama’s Justice Department filed a new brief in which it asserted that it will not comply with the Ninth Circuit Court’s ruling because — drumroll, please — no court has the authority to compel the Executive to release top secret information, for any reason whatsoever. In case you think I’m misinterpreting the brief, here you go:

In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access. Therefore, the Government respectfully suggests that the Court should not take further steps at this time that would result in plaintiffs’ counsel being granted access to the classified information at issue.

Any determination made by the Executive that information is top secret is final. It is not subject to judicial review. Ever. At all. Period. What the Executive says, goes. There is no other instance — none! — anywhere in this country where any body has ever asserted that its decisions are outside the scope of judicial review, save legislation passed by Congress restricting review. This is solely Congress’ power, and not the president’s, as articulated in Article III, § 2 of the Constitution:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

There is nowhere to be found anywhere in the Constitution the assertion that the president can make decisions that are outside the scope of judicial review. Indeed, the existence of such a rule would be detrimental to our republic. Imagine: the president asserts the State Secrets Privilege for a malicious, disingenuous, non-secret reason, but because the president’s claims of privilege are non-reviewable by anyone, there is no one to appeal to in order to contest the legitimacy of the president’s assertion. If true, this doctrine would mark the first time in the history the United States that a single branch of government cannot be checked by any other branch. This is extremely dangerous.

What will the Obama apologists say now? I have famously complained that Obama’s policies are “more of the same,” whether they be continuances of Clinton-era policies, or Bush-era policies. Which wedge of the Obama Wheel of Apology does this action fall under? Shall we file unilateral executive authority under pragmatism? Or perhaps it is more akin to the I, Claudius explanation, in which Obama will one day pull his mask off and reveal himself to be a progressive socialist who has been working behind the scenes to undermine the system even as he pretends to uphold it? Can this be explained by team of rivals or bipartisanship? What other buzzword that is used to explain away the lack of significant change is appropriate here? Obama can do no wrong!

Okay, coyness aside. The Obama administration has made a bad decision. This is absolutely the wrong assertion to make. And I find it surprising, especially in light of the memorandum mentioned above, that Obama would claim such broad authority in this matter. Unless, of course, the Justice Department is working independently of Obama’s personal agenda, in which case, it’s time for someone to sit down and have a serious talk with Eric Holder about how the Constitution works.

But I seriously doubt this is the result of a rogue Justice Department. No, Obama has made a bad call, here. He is acting terribly like George W. Bush in his assertion of powers that are not his. It doesn’t matter if Obama is a great guy; no one person — not even a “benevolent dictator” — can be invested with such broad powers. It’s illegal, it’s unconstitutional, and given Obama’s background as a constitutional law scholar, he should know better. It’s shameful and he needs to stop it. This is not the change I voted for. (H/T Glenn Greenwald, of course.)