On State Secrets Obama Loses, Openness Wins

Yesterday afternoon, a federal appeals court struck down a claim—originally made by the Bush administration, but adopted and defended by Obama, and agreed to by a district court—that a civil lawsuit against a Boeing subsidiary by a five men who claim the flight management enabled their unlawful extraordinary rendition could not be tried because the program in question was a state secret.

While Obama’s Justice Department may choose to appeal to the Supreme Court, for now the ruling blocks the administration’s efforts to use the state secrets privilege in such a broad way, rather than to attempt to use it to exclude specific pieces of evidence.

Here’s are excerpts from a valuable interview Salon’s Glenn Greenwald conducted with Ben Wizner, the ACLU attorney litigating the case, which do an excellent job of explaining just what was at stake, and what the court found:

This case was never about any claim of secrecy that was legitimate. This was not about whether a piece of classified evidence would be released to the public. This case was fundamentally about whether the executive branch would be immune, would, in a sense be unaccountable, to victims of the greatest human rights violation simply by making an over-broad assertion, a bogus assertion of secrecy. …

We have never taken the position that there should be no state secrets privilege… there may well be classified pieces of evidence that would be relevant to our case, that we won’t be able to get because of a valid and legitimate invocation of the state secrets privilege. What we’ve argued, and what the court did today, is that this has always been an evidentiary privilege. What that means is that the government can protect its secrecy interest by explaining to the court exactly which evidence it believes is secret and can’t be revealed.

What we had in the Bush administration and, as you said, what has been continued unfortunately by the Obama administration, is the use of this privilege not to block the disclosure of particular pieces of evidence, but to torpedo at the outset entire lawsuits alleging grave executive misconduct.

That legal tactic, one with the potential to shut down practically any national security case on the government assertion, has been found null and void.

The full decision, which Wizer describes as “one of those clearly written legal opinions that it does not take a lawyer to understand,” is available as a pdf.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

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