At a press conference last week, President Obama announced that his administration intends to engage in an “overarching reform” of the state secrets privilege, a legal tool exploited during the Bush era to shut down lawsuits that challenged warrantless wiretapping, extraordinary rendition, and other unlawful government practices. This was a welcome announcement from the president, but also a puzzling one. Having campaigned on a promise to restore the rule of law, President Obama has thus far been using the privilege to shut down lawsuits himself—and, as the Ninth Circuit recently held, he has overstepped the proper bounds of the privilege in the process.
Since the onset of the Cold War, the state secrets privilege has been used to prevent the disclosure of evidence in litigation in instances where it would harm the national security. But the Bush administration took the practice much further, routinely arguing that entire cases must be dismissed before the evidence had even been identified because the very “subject matter” of the case was a state secret. As it so happened, the “subject matter” of all of these cases was an unlawful U.S. policy. Bush’s use of the privilege thus transformed it from a narrow protection for specific evidence into a tool to avoid accountability in the courts.