The XX Factor: What women really think.

Why Obama Stuck With State Secrets

Glenn Greenwald does a great job of eviscerating the lame argument—about how the government is just buying time—in defense of the Obama administration's blanket defense of the blanket state-secrets privilege on Monday. When lawyers want more time, they ask the court for a continuance. When invoked to dismiss a case, as opposed to prevent disclosure of particular documents or other forms of classified evidence, the state-secrets doctrine is the government's big gun for getting rid of lawsuits it doesn't like. Obama and Biden objected to the Bush administration's use of it as candidates, as Dahlia points out. If they'd stuck with that position in court, what would have happened, anyway? The case would have gone back to district court. Jeppesen DataPlan (the defendant in the suit—more of the facts here) would have argued against disclosure of the same documents that the government preemptively blocked access to. There would have been a year or two of wrangling. The judge would have reviewed the documents and, if they're really as sensitive as the government says, kept many of them secret. In the meantime, the less sensitive material would probably have come out in one of a variety of other ways—via congressional subpoena, or voluntary release by the Justice Department, or in another lawsuit.

Why then did the Obama administration stick with state secrets? This makes most sense I think viewed in terms of Obama's perceived need to prove himself to the CIA. After the election, there was the flap over whether Obama should name John Brennan to head the agency, a name he withdrew. Then he picked Leon Panetta instead—the opposite of a CIA insider. If DoJ had abandoned Bush's position on state secrets in the Jeppesen case, CIA agents and officials would have had one more reason to be nervous about the new guy in town.

It's also worth recognizing that this case is a big deal, historically speaking. Litigants haven't ever, as far as I know, successfully sued the CIA (which is what's really at stake here, even if Jeppesen is formally the defendant) over torture, which is what this case comes down to. The state-secrets doctrine has been the government's customary tool for getting courts to dismiss somewhat parallel accusations, like the 1970s suits that followed the revelations about wiretapping that led to the Church Commission.

But you can duly note all of that and still see the Obama administration's move as the wrong one, because of the smothering blanket nature of invoking this privilege in this way, and because doing so seeks to end a discussion about accountability that we should be only just beginning. If we haven't had successful lawsuits involving CIA torture before, maybe that's because we haven't had torture on the scale that the Bush administration perpetrated. Obama has made it clear every time he is asked that he's not eager for criminal liability. If his lawyers cut off the avenues to civil liability as well, doesn't that mean that they've legalized the torture of the past? Yes, their promise not to do more torture and detentions going forward matters more. But it's not the only thing that matters.