Obama’s State Secrets Claims Face Mounting Opposition from Courts, Advocates

President Barack Obama has drawn praise, but his use of the “state secrets” privilege to squash lawsuits on torture and surveillance is drawing mounting opposition....

April 29, 2009

Cross-posted from the ACS Blog.

President Barack Obama has drawn praise for transparency reforms during his first 100 days in office, but his use of the “state secrets” privilege to squash lawsuits on torture and surveillance is drawing mounting opposition.

On Tuesday, the Ninth Circuit rejected the Justice Department’s attempt to use the state secrets privilege to shut down an ACLU case challenging government rendition. As the Washington Independent reports, the Ninth Circuit reversed a lower court and reinstated a case challenging alleged rendition by CIA contractors (in Mohamed v. Jeppesen Dataplan). The Ninth Circuit held that the government’s secrecy claim was so broad, it would shut down legal oversight and accountability for the entire CIA and its associates:

At base, the government argues here that state secrets form the subject matter of a lawsuit and...require dismissal any time a complaint contains allegations [which themselves have] been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves ‘allegations’ about [secret] conduct by the CIA.”

This sweeping characterization...has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. 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 and limits of the law. 

The Ninth Circuit rejected that approach, it explained, not only because it was "unsupported" by case law, but because it "forces an unnecessary" face-off between the Judiciary's duty to uphold the law and the Executive's duty to protect national security. (PDF of the decision here)

While federal judges usually have the last word on these issues, they are not the only ones expressing skepticism at Obama's expansive use of the privilege.

This week, Sen. Russ Feingold drew headlines for giving Obama a “D” on state secrets in his 100 Days report card.  Sen. Feingold, who cosponsored legislation to provide guidance on how federal courts should review state secrets privilege invocations, is urging the administration to support the bill—which Senators Biden and Clinton previously backed—and calling on the Attorney General to publish a review of how the previous administration abused the privilege to avoid transparency and oversight. 

Here at the Brennan Center, the Liberty and National Security Project just published a 30-page report assessing the administration's transparency record at the 100-day mark. The administration's use of the states secrets privilege drew the lowest grade, an F, because the administration has invoked a broad reading of the privilege to squash three important cases:

The Obama administration has defended invoking the state secrets privilege to prohibit judicial consideration of entire subject matters and to deny attorneys with top-level security clearances access to documents they have already seen. [It has even] suggested that judges' rulings on the privilege can be evaded by taking the documents away from them. While some have expressed hope that President Obama will use the privilege more sparingly in lawsuits challenging his own administration's conduct, that prospect seems counter-intuitive at best. 

Other legal experts have also raised concerns on this front, including the Center for American Progress's Ken Gude, conservative legal scholar Bruce Fein, and advocates at ACLU, EFF, CCR and the bipartisan Constitution Project. While Obama has much to celebrate at the 100-day mark, this is clearly an area where experts and many allies are looking for a little more change. 

Moving beyond today's headlines, however, our transparency report card highlighted plenty of other areas where the Obama administration earned very high marks. To take one priority connected to ACS, for example, the report heralds the appointment of Dawn Johnsen as a true "transparency advocate" to head the Office of Legal Counsel: 

Reforming government secrecy requires more than changing policy and law. It also requires a change in attitude, norms, and bureaucratic culture, which in turn requires the right leadership within government agencies and offices. In that regard, President Obama's nomination of Dawn Johnsen to head OLC holds enormous potential for ending that office's regime of secret law.... Both in and out of government, she has been a strong and thoughtful advocate for transparency on the part of OLC. 

The report also cites Johnsen's work on a seminal 2004 ACS publication:

Johnsen decried the blanket secrecy that the Bush administration applied to OLC memos. In 2004, she co-authored a set of "Principles to Guide the Office of Legal Counsel," joining 18 other attorneys with OLC experience to advocate the values of transparency, accountability and the rule of law. The document includes the principle that "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." It explains that "[s]uch disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority." 

The entire transparency report, with sections on Open Government, Presidential Records, Secret Law, and Accountability, is available here