Last night, at his hundredth-day news conference, President Barack Obama went on the record for the first time on his administration’s usage of the state secrets doctrine. Kudos to Time’s Michael Scherer (a former CJR staffer) for asking the question.
The news conference came one day after the Ninth Circuit of Appeals strongly rebuked the government’s claim in Mohamed v. Jeppesen, a rendition-related case that has yet to be tried because both the Bush and the Obama administrations have asserted that the state secrets doctrine allows them to classify an entire suit as too sensitive to litigate.
“I’m just delighted that Time magazine thought it was worth asking the question,” said Ben Wizner, the ACLU lawyer litigating Jeppesen.
Here’s last night’s exchange:
SCHERER: Thank you, Mr. President. During the campaign, you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s and do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?
OBAMA: I actually think that the state secret doctrine should be modified. I think right now it’s overbroad. But keep in mind what happens is we come in to office. We’re in for a week and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should an overarching reform of that doctrine take?
We’ve got to respond to the immediate case in front of us. There — I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But, searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being an open court, you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.
Again, it’s great that the president was asked to address this vital open government issue—in February, I lamented that it didn’t come up at his first press conference, shortly after the new administration first supported the Bush administration’s broad reading of the doctrine.
And there’s genuinely good news in the president’s response. For the first time since he was elected, he said he sees the doctrine as “overbroad” and informs us that his top legal officials are working on some sort of reform.
But it would have been nice if Scherer had been able to ask some follow-ups. Here’s one obvious question: Is the administration ready to support the State Secrets Protection Act, a Senate bill that would restrict broad assertions of the privilege? (Last session’s version of the bill was co-sponsored by then-Senators Joseph Biden and Hillary Clinton.) Another would be to ask Obama whether or not he thinks Justice should appeal Tuesday’s ruling to the Supreme Court.
The president’s apparent explanation for his administration’s invocations of the doctrine—that they were in office “for a week” and suddenly had to make a call—is, as a matter of fact, false. The first time that a lawyer under Obama had to appear in court and support or reject a residual Bush state secrets claim was February 9, as the Washington Independent’s Daphne Eviatar first pointed out during inauguration week. And the first time that the Obama administration decided to evoke a broad reading of the doctrine on its own, as opposed to simply supporting or maintaining an earlier Bush action, wasn’t until April 3. Yes, they’ve been pretty busy, and the president was speaking illustratively, but his words left a misimpression.
“If he wants to put that gloss on it, that it was a mistake, that it was hasty, all the better,” says Wizner. “We welcome it.”
The president said that the doctrine needs to include “ways to redact” and “additional tools so that it’s not such a blunt instrument” so the government can ask that certain evidence be reviewed by a “judge in chambers … without it being an open court.”
“What he said is that a judge should look at the evidence in chambers, and that classified information should be redacted, and that people should have their day in court,” says Wizner. “Those are the principles in the legislation, and that the Ninth Circuit laid out this week.”
“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.