Pressing On State Secrets

The editorials failed, but reporting remains

After Tom Daschle asked to no longer be considered to become Secretary of Health and Human Services last week, reports indicated that his decision was prompted by a New York Times editorial calling for the former Senate majority leader’s withdrawal. With Daschle gone, it’s unclear whether there’s anybody left in the Obama administration who actually pays attention to newspaper editorials.

Within the last week, both The New York Times and the Los Angeles Times wrote editorials calling on Attorney General Eric Holder and the new Justice Department to put Obama’s campaign rhetoric on accountability, transparency, and the rule of law into action. They seem to have fallen on deaf ears.

At issue was their Republican predecessors’ decision to invoke the so-called state secrets privilege in a case brought against a flight plan management company by five men who claim to be victims of the United States’ extraordinary rendition program. On Monday, a Justice Department lawyer walked into a San Francisco court, and under repeated questioning from federal judges maintained that the new Justice Department, despite the change in administration, would continue to claim a state secrets privilege in the case.

Salon’s Glenn Greenwald has done solid work explaining what this means, but in some sense, it all started with a 1953 Supreme Court decision. As Gary Wills recounted in a recent New York Review of Books article, United States v. Reynolds began when a group of widows sued the Defense Department over the death of their husbands in a plane that crashed while testing secret avionics. When their lawyer sought the official accident investigation reports, the government claimed the files would reveal sensitive information about the experimental technology, and even refused to share them privately with the case’s judge. Eventually, the high court upheld the government’s right to do so. With key evidence unavailable, the widows settled out of court.

In 2002, the once-secret documents came to light, revealing a cavalcade of equipment failures and piloting errors that led to the men’s deaths, and nothing important—and certainly nothing that couldn’t have been redacted—about the once-secret avionics. So the case that birthed the state secrets doctrine is itself an excellent illustration of one of the doctrine’s greatest dangers: that, on nothing but the government’s word, it can be used to shield information that should have its day in court.

But the Bush administration, in Mohamed v. Jeppesen DataPlan, didn’t merely claim that certain documents that the plaintiffs wanted would jeopardize security. Instead they claimed that the very rendition program at issue was a state secret, and therefore any trial on the matter would be impossible. It was a dangerous precedent to set, one that damages transparency and legal accountability—key tenets of our democracy that the press should hold dear. Here’s how The New York Times explained the Bush approach in its February 5 editorial:

The Bush administration’s claim is that the “very subject matter” of the suit is a state secret. We can understand why the Bush team would not want evidence of illegal detentions and torture presented in court, but the argument is preposterous.

To begin with, there is a growing body of public information about the C.I.A.’s rendition, detention and coercive interrogation programs. More profoundly, the argument that any litigation touching upon foreign intelligence operations is categorically off limits to judicial scrutiny is an affront to the constitutional separation of powers.

The New York Times’s proscription couldn’t have been any clearer:

Mr. Holder should immediately ask the court for time to rethink the government’s position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.

On February 7, The Los Angeles Times also called on the new administration to step back from the brink and work out a way for the trial to proceed:

…[W]e hope the Obama administration lawyers will show up in court Monday and reject the approach of the previous administration, letting the case go forward … the government should not be permitted to kidnap and torture and then simply declare those heinous activities to be “state secrets” and off-limits for discussion.

With the Justice Department’s actions on Monday, the Bush state secrets claim is, now, one and the same as Obama’s claim. Greenwald has presented a variety of reasons why this is, to put it mildly, odd. Past positions and statements from administration officials—including a newly-minted top Justice official and vice-president Biden, as well as Obama’s campaign Web site—make this policy look like a clear reversal. And Obama’s early executive order on detention programs essentially outlawed the program he’s now claiming is a state secret.

On Wednesday, after being rebuffed, The New York Times turned in a new editorial, calling the administration’s decision “indefensible.” The Los Angeles Times has not yet re-editorialized, but if they do, they could go a step further and encourage Congress to examine legislation (once co-sponsored by then-Senator Biden) that would limit broad applications of the state secrets privilege, by statute, no matter who the president is.

It’s a shame that Obama didn’t follow the course outlined in the earlier editorials. But it’s also too bad that no reporter thought to ask the President about his administration’s action at his debut press conference on Monday night. And the White House, presumably due to the President’s Florida trip, skipped Tuesday’s briefing with Robert Gibbs.

Before Monday’s events fade too far away, the press must get a high profile member of the administration on the record about this decision, in a way that probes and exposes the dangerous logic underlaying it. The anonymous sources quoted by The Atlantic’s Marc Ambinder just won’t cut it. Luckily, today’s press conference presents a chance to do better.

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