“That, at least from my perspective, means that he’s trying to create a system that can be used discretely, and not against entire cases,” says Ken Gude, a state secrets expert at the Center for American Progress.
“That is not the position his Justice Department has been taking,” says Gude, adding that “it’s hard to align” the president’s words last night with his administration’s legal claims to date.
Just before he lamented the doctrine’s bluntness, the president said there would still be cases that “you can’t litigate,” a phrase that could mean the wants to retain a broad evocation option. Was Obama contradicting himself?
Neither Gude nor Wizer thinks so.
Gude suggests that the president meant that in some cases individual pieces of evidence or testimony that are too sensitive will be preliminarily—and rightly—excluded from litigation. On rare occasions, they may be so central to a given lawsuit that a judge will determine litigation can not reasonably go forward. (The Ninth Circuit acknowledged such a potential circumstance in its ruling.)
If that’s what the president meant last night, the key question that remains is this: How will those preliminary evidentiary decisions be made—and who will make them? According to Gude, confusion on this point stems from varying interpretations of a 1953 Supreme Court decision, United States v. Reynolds, which birthed the modern state secrets doctrine.
Under Reynolds, some judges have been highly deferential to governmental assertions that information is too sensitive to be used in trial, essentially letting the executive make those decisions unilaterally. Others have insisted that those decisions lie with the judiciary.
The pending Senate bill would place those decisions firmly in judges’ hands.
“Given the news in the Ninth Circuit, they were certainly prepared for this question,” Gude says. Even so, the president declined to endorse the bill, and in the past, the White House press office has declined to state a position.
“It may not be a standard that the executive is comfortable with,” says Gude.