During his campaign, President Obama criticized the Bush Administration's profligate use of the State Secrets Privilege. But this week, lawyers for the Obama administration invoked that rule in an ongoing trial. Slate's Dahlia Lithwick has some possible explanations for the shift.
BROOKE GLADSTONE: From WNYC in New York, this is NPR’s On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. This week, an unusual and perhaps illuminating moment came during hearings in a case against a Boeing subsidiary accused of helping the CIA to secretly transport terror suspects to overseas prisons, where they were tortured. The Bush Administration had sought to have the case dismissed under the State Secrets Privilege, which lets the government ask judges to withhold evidence, even throw out whole cases because, they argue, the cases might endanger national security. Now, with the Obama Administration in power, the government is still trying to have the case thrown out, which led one judge to ask the administration’s lawyer, quote, “The change in the administration has no bearing?” “No, Your Honor,” the lawyer replied. The moment was unusual because judges almost never acknowledge the world of politics, and it may be illuminating because it’s an early sign that the new administration’s approach to secrecy might not be so new after all. Dahlia Lithwick is Slate’s legal columnist. She says prior to the Bush Administration, the State Secrets Privilege was used a lot less often by the government.
DAHLIA LITHWICK: It had only ever been invoked 55 times since 1953. Under the Bush Administration it was invoked 39 times, so there was this massive expansion in the amount of times they invoked it. The other difference was how it was used. It went from being this very narrow evidentiary rule which essentially said, okay, there’s a document you can't see – suddenly it became you have to dismiss the entire case. This case never goes into a courtroom. It’s decided right here and now in the pleading stage because there’s just too much of a risk that the information will get out there. And this was used to dismiss some really incredibly important cases under the Bush Administration, including several cases that alleged torture had happened, cases that alleged NSA eavesdropping was unconstitutional. So in these very, very high stakes arenas, the entire case never saw the inside of a courtroom.
BOB GARFIELD: So along comes the Obama Administration, and in the first opportunity to make a statement, declined to do so.
DAHLIA LITHWICK: This Obama administration that was very much for transparency, that had signed executive orders doing away with extraordinary rendition, signed executive orders demanding new transparency in government - everybody, I think, expected them to come and say, okay, this doctrine is goofy, we're not going to stand behind it. And instead, the attorney for the Obama Administration got up and said, we're going to seek to have this case dismissed on the same grounds, on the grounds of state secrets being divulged – so really no change at all in the position from the Bush era to the Obama era.
BOB GARFIELD: And a lot of people are watching this and going, what the –
DAHLIA LITHWICK: [LAUGHS]
BOB GARFIELD: - what have we just witnessed? And you posit some theories as to why the administration acted the way it did.
DAHLIA LITHWICK: Right, and I'm one of many people. I think the most obvious one is that they just didn't have time to get it together on this. At the same moment that they were saying, we're going to go forward and assert this State Secrets Privilege, Eric Holder was announcing a review of every case in which the State Secrets Privilege was being invoked to make sure it was being done for proper reasons. So clearly, they want to look at this very closely. Maybe they just haven't had time to look at this particular case. That’s one theory. The other thing I posited that’s sort of grim is that while they're very, very happy to do away with Bush era policies that are clearly egregious – things like torture, things like rendition – they kind of like the Bush era [LAUGHS] legal theories that give them more Executive Branch secrecy. Suddenly once it’s you holding the reins of power, all that executive authority starts to look really attractive. And just one other theory that I put out there is that I think that the Obama Administration is on the horns of a real dilemma in terms of this problem that they face of investigating past lawlessless in the Bush Administration. They've made it very clear that they're just not that interested in going after people who authorized torture or who conducted torture. I think they think it would rip the country apart if they engaged in this kind of inquiry.
BOB GARFIELD: There are a couple of other possibilities, of course, to explain the administration’s actions. One might be a kind of diplomatic pickle that they've found themselves in, with regard to the other countries that participated in these renditions. And another is simply that maybe there is, in this case, a state secret that does need to be protected, that it’s not just a question of saving the country from embarrassment but there was something in the particulars that really does get to sources and methods or something else that, for national security reasons, has to be suppressed. Isn't that one of the possibilities?
DAHLIA LITHWICK: There seems to be no dispute that there is a very, very complex set of diplomatic footraces that are going on here. And we saw a British court redacting parts of an opinion about similar issues very recently. As to the second piece, this is a tough case to say that there are a lot of secrets left. I mean, one of the things that the ACLU has argued is much of this stuff is already known. And then certainly the complicity of Jeppesen, the Boeing subsidiary that was really at issue in this case, there’s evidence that they had already admitted that they were flying these torture flights. And what the ACLU is saying in this case is it makes absolutely no sense to say something is secret, have it widely reported, and the only place you can't discuss it is in front of the federal judiciary.
BOB GARFIELD: Okay, now, there may yet be another shoe to drop in this case because it’s being heard in the San Francisco Ninth Circuit Court, a liberal court historically, and there’s always the possibility that the judge will look at the representatives of the administration and say, no, sorry, no state secrets here.
DAHLIA LITHWICK: That is possible. And I also have to point out that in both the House and the Senate this week, legislation was put forward that would also do a lot to curb the expansive view of the State Secrets doctrine. So whether it happens in a courtroom or whether it happens legislatively, I think we might be witnessing the last gasp of the State Secrets doctrine, at least as it was conceived by the Bush Administration.
BOB GARFIELD: Dahlia, thank you very much.
DAHLIA LITHWICK: Oh, it’s my pleasure. Thank you for having me.
BOB GARFIELD: Dahlia Lithwick is a senior editor at Slate, and author of its Jurisprudence column.
BROOKE GLADSTONE: According to a Gallup poll this week, 80 percent of the American people either approve or strongly approve of the President’s economic stimulus plan. Among those who disagree, a public policy group called Free Press, which said that 44 billion dollars should be allocated to broadband Internet alone to get us competitive with the rest of the world, as opposed to the 6 billion now on the bill.