Parsing Obama on State Secrets

Obama promises only "cosmetic" changes

This morning, President Barack Obama stood before the Constitution at the National Archives and gave an hour-long speech on the interrelated issues of torture, detention, tribunals, and government secrecy. While some of the discussion was quite detailed, other parts were more ambiguous.

This is perhaps most true in Obama’s vague discussion of his administration’s decisions to evoke the state secrets privilege, or to support the Bush administration’s previous decisions to do so. Here, according to Obama’s advance remarks, is what he had to say:

Along those same lines, my Administration is also confronting challenges to what is known as the “State Secrets” privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents—Republican and Democrat—for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.

We plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the State Secrets privilege. We will not assert the privilege in court without first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.

Again, these are vague sentiments.

“He was less specific on state secrets than he was in his press conference a few weeks ago,” says Ben Wizner, a lawyer with the American Civil Liberties Union litigating Mohamed v. Jeppesen Dataplan, which the administration has sought to quash with a state secrets claim.

At that April 29 press conference, in response to a question asked by Time’s Michael Scherer, a former CJR staffer, Obama said he saw the privilege as “overbroad,” and envisioned some sort of system that would make greater use of redaction and in camera review so as to make it less of a “blunt instrument.”

Today, Obama opened his remarks with a straw-man argument. He is technically correct that the privilege has been invoked for many years and by presidents of both parties. But he failed to mention that the truly contentious question—at issue in the hard-fought cases under review right now—is a broad application of the doctrine that, before the Bush administration began claiming it in district courts, was truly without precedent. This version claims that the executive branch can, based only on its own word, stop a lawsuit in discovery if it claims that proceeding further would expose state secrets.

Obama’s most recent remarks swap “over-used” for “overbroad,” a change that papers over the greatest controversy—how the doctrine is being applied—for another: how often it has been used.

So what of Obama’s proposed “principles for reform”?

Earlier in his speech, when discussing his decision to release the four Office of Legal Counsel memos and his ultimate decision to fight a court order requiring the release of photos from Army interrogation investigations, Obama said that, in situations where his administration declines to release information for national security reasons, he “will insist that there is oversight of my actions – by Congress or by the courts.”

But this principle doesn’t necessarily carry a lot of weight in regards to the state secrets doctrine. He failed to mention any greater judicial review of the facts underpinning an executive assertion of the privilege, and described only the barest step towards a notional congressional oversight role.

“If the administration believes these cosmetic reforms outlined in today’s speech represent the reforms necessary, then we profoundly disagree,” says Wizner. “It so clearly falls short of the reforms that are necessary.”

The only further legal review of the state secrets doctrine envisioned by the president in the Archives speech would occur within the executive branch, with review by a special Justice Department committee and personal approval by the attorney general.

“What he seems to be outlining is a process to help to decide when to use it, not necessarily how to use it,” says Ken Gude, an expers on state secrets at the Center for American Progress. “One of the main criticisms of the doctrine as it’s applied is the attempt to use it to dismiss cases in discovery.”

And the president did not suggest that this supposed new review would have made a difference in any single decision to evoke that broad assertion of the privilege.

As far as congressional oversight of the privilege, Obama promises to “voluntarily” report to Congress annually on the number of times the administration uses the privilege and why it did so. But this information is already available; arguments claiming the privilege are made in open court, along with the administration’s public rationale.

“Going through that process is a positive step, but it’s not revolutionary,” says Gude, adding that the annual report might serve to engage Congress, the press, and outside advocates on the oft-overlooked topic of state secrets. “They don’t deserve a medal, but I’d rather have them doing this than not.”

Gude also points to Obama’s insistence that the doctrine not be used to repress information “merely because it reveals the violation of a law or embarrasses the government.”

“He’s saying he’s going to apply this on a good faith basis. And I appreciate that,” says Gude. “But I’d like to find a way to hold the same standard to his successors.”

In Gude’s mind, the best way to do that would be for Congress to pass, and the president to sign, the State Secrets Protection Act, a bill requiring judges to examine evidence that the government claims is privileged, and promoting standard procedures for trying cases where the government evokes the privilege.

It too went unmentioned this morning.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.