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The Secrets We Keep from Ourselves

The Ninth Circuit Court of Appeals has just rejected President Obama’s claim of a wildly-overbroad “state secrets” privilege in Mohamed v. Jeppesen Dataplan, a suit filed by five victims of the “extraordinary rendition” program against the Boeing subsidiary that flew planes for the rendition program. The district court had dismissed the suit after the Bush administration claimed that everything about the program was a “state secret.” Then-CIA-director Michael Hayden told the court that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious—and in some instances, exceptionally grave—damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” The Obama Administration surprised us in February by continuing to assert the same privilege at the court of appeals.

But today the panel that heard that appeal said “no.” Remanding the case back to the lower court, all three judges agreed that the all-or-nothing “state secrets” doctrine advanced by the Bush and Obama administrations “has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad” and that “according to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

The panel added that it was “the central judgment of the Framers” that “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

By sending this case back to the lower courts, the Ninth Circuit has ensured that these rendition victims can finally have a day in court, and that there can be a judicial reality check on executive branch claims of secrecy. Most importantly, the appeals court reminds us today that the widely-known fact of a U.S. torture program can't be deemed a "state secret" just because the government doesn't want to talk about it.

Gitmo Drama

Binyam Mohamed, the first Guantanamo detainee released by President Obama, flew back to his native Britain this week and, like many a former detainee before him, said the U.S. had tortured him. He used the adjective "medieval" to make sure to get his point across.

In a sense, this is useful for the Obama administration, as Attorney General Eric Holder travels to Guantanamo for military briefings about the 245 remaining detainees. Disturbing accounts like Mohamed's—though aspects of them can't be verified—spotlight all the problems with the Bush approach to the detainees, and all the reasons for Obama to deal with them differently and eventually to close Gitmo. And there's another kind of utility, as well: The attention to Mohamed and torture takes attention away from the dense, tricky legal questions on which the Obama lawyers have been siding with their Bush predecessors. So far, there's the new administration's defense of the state-secrets privilege in the case about extraordinary rendition and torture by the CIA, its quiet effort to dismiss the lawsuit demanding that Bush officials find 15 million e-mails missing from White House accounts, and the distinct lack of enthusiasm for Senatory Leahy's truth commission proposal. Mohamed's story is terrible, and also easier to make a headline out of.

That Was Quick

And now for the good news: The “State Secrets Protection Act of 2009,” was introduced in the House today by John Conyers. And over in the Senate, Sen. Patrick Leahy introduced the 2008 State Secrets Protection Act, slow-walking courts through the cases in which the government asserts the state secrets privilege. This is how the system is supposed to work: They blow it, we fix it!

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.

State Secrets. Still Secret.

So much for a perfect score. In a piece today, Judith Resnik and I came up with a top 10 list of Bush legal positions that Obama's Department of Justice should drop. No. 5 was the "state secrets" defense, as invoked by Bush lawyers to block a lawsuit by five men who say the U.S. tortured them abroad. The old DoJ argued that the "very subject" of the case—against the private contractor (Jeppesen Dataplan) that flew the men to their foreign destination—is a state secret, and so walled off from any investigation connected to the lawsuit. Today in court, Obama's new DoJ stuck with that line. “The change in administration has no bearing?” Judge Mary Schroeder of the 9th Circuit asked, with apparent surprise. "No, your honor," the lawyer answered.

At the Atlantic, Marc Ambinder shrugs. "Obama certainly never promised Americans that he'd declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever," he reminds us. Well, no. But there's a weird disconnect here, since many of the relevant facts in this case are already known, thanks to reporting by The New Yorker's Jane Mayer and others. As ACLU lawyer Ben Wizner said, "the only place in the world where the facts of these claims can't be discussed is in this courtroom." More crucially, the state-secrets defense doesn't just mean that a judge decides what evidence to keep classified and out of public view. It means that based on the government's say so, no one even gets to open the lid of the box to find out what evidence is inside. Not even the judge. It's a blanket defense designed to halt potentially legitimate claims in their tracks. To add insult to injury, the Supreme Court fashioned it to preserve secrets in a 1953 case—about why an Air Force flight went down in the state of Georgia—in which the government's professed reason for secrecy turned out to be completely bogus. 

As his department's lawyer held the Bush line in court today, Attorney General Eric Holder promised a review of all the government's uses of the state-secrets privilege, "to ensure that is being invoked only in legally appropriate situations." Maybe at some point down the line, that will seem reassuring. But at the moment, Holder's promise plus today's developments in court equals not much.