Last week, the Obama Administration invoked the state secrets privilege for the third time in as many months when arguing that Jewel v. NSA should be dismissed. How does this square with his much-touted promise of openness and transparency? We asked Marc Ambinder, associate editor of the Atlantic and chief political consultant to CBS.
BOB GARFIELD: From WNYC in New York, this is NPR’s On the Media. Brooke Gladstone is off this week. I'm Bob Garfield.
PRESIDENT OBAMA: For a long time now there’s been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over.
BOB GARFIELD: Barack Obama’s very vocal denunciation of what watchdog groups called an “obsession with secrecy” during the Bush era was a common refrain into January of this year. Candidate Obama emphasized repeatedly that a President Obama would do better.
MALE CORRESPONDENT: That was then. This is now. President Obama’s Justice Department now not just defending Bush officials from lawsuits surrounding National Security Agency methods -
FEMALE CORRESPONDENT: - made the argument that even talking about this case in court, even with sensitive information excluded, would jeopardize national security.
MALE CORRESPONDENT: - documents. I think once you start governing it’s very different than when you’re running.
BOB GARFIELD: Or, maybe not. First recognized by the Supreme Court in 1953, the state secrets privilege empowers the executive branch to effectively scuttle a lawsuit against the government on national security grounds, which President Bush did some two dozen times. Much to the dismay of civil libertarians who had hoped otherwise, the Obama Administration has so far stayed the course, arguing that a number of cases involving the illegal wiretapping and rendition activities of the early 2000s should be dismissed. Under Obama, the Department of Justice has invoked the privilege three times in as many months, most recently last week in Jewel v. the NSA. In that case, five plaintiffs sued the National Security Agency and several Bush Administration officials after their phone company, AT&T, provided information about their telephone calls. Marc Ambinder of The Atlantic Magazine says the legal rationale has not changed with a change in administration.
MARC AMBINDER: The Bush Administration first, and then subsequently the Obama Administration, claim that any trial in this case would require broad disclosure of the government’s current very highly classified domestic surveillance activities, and it’s extending that argument, saying that even previous programs that are no longer being used by the government to collect intelligence, the risk of disclosing them through a trial is simply too harmful to bear.
BOB GARFIELD: Now, sources and methods is a common refrain when the government is discussing its intelligence gathering, but there are ways beyond invoking the States Secret Act to protect sources and methods. Was there no intermediate step that the government could avail itself of to keep the NSA’s activities secret?
MARC AMBINDER: It’s a very interesting question, because there certainly are things that the government could do. For example, they could run defense attorneys through a background check and clear them to see certain pieces of information, or they could ask for in-camera hearings with specially cleared federal judges and allow the judges to determine whether the information, if disclosed, would significantly harm national security. But what the government argues in this case is that some of these secrets are so grave that merely the potential that they might leak out, in some form, would jeopardize national security so severely. And, in fact, the law and precedents are on their side because the judicial branch has given the federal government so much deference over the past 50 years to determine on its own what type of national security information is harmful. And essentially the federal government can deem information harmful, and neither Congress nor the judicial branch has any recourse to say, no, no, no, we disagree, that’s not harmful enough.
BOB GARFIELD: Now, Obama has been deeply critical of the Bush Administration’s overuse of the privilege, so it seems surprising, at a minimum, that his own administration would be so quick to invoke it, you know, not once, not twice, but three times in its first 90 days in office. Any thoughts as to what’s going on here?
MARC AMBINDER: I think there are a couple of cross pressures. Certainly, as a constitutional law professor, President Obama was familiar with the privilege itself. In fact, he did say that he supported the concept of the privilege. But during the campaign he was critical of using the privilege not as a way to protect simply evidence from being introduced, but the Bush Administration, he alleged, was using it willy-nilly to dismiss cases that might embarrass it. In the three instances that – the three instances, I should say, we know of, because there may be other cases under seal where the privilege has been invoked – in the three instances so far, one of the more curious questions about the particular assertion of the privilege is that we already know a lot of the classified information that would seem to be at the heart of the cases. So when I've asked officials at the Justice Department and the White House why they found it necessary to continue to assert the privilege, they say, look, if we had to do it over, we might not have initially asserted these privileges in the first case, but the moment that we relax the assertion of a privilege on an already ongoing case it will give, in a sense, a federal judge the ability to weaken the privilege altogether, which is not something that we as the executive branch want to do.
BOB GARFIELD: Presuming it is too early to judge the Obama Administration’s sincerity on its protests of openness and transparency, what can we look for in the near future to be reassured?
MARC AMBINDER: Well, there are going to be several bright-line tests. One is the renewal of several controversial provisions of the Patriot Act, which was scheduled to sunset at the end of the year, including the use of so-called “National Security Letters” by the Justice Department to obtain data and information from individuals without a specific subpoena. I think, though, the larger test will be whether the President decides to support the State Secrets Privilege Act in Congress, the bipartisan bill that would essentially prevent the state secrets privilege from constituting the sole grounds for a dismissal of a case or a claim. And that would represent a significant – I guess you can call it a claw-back of congressional power at the expense of the executive branch, but it would certainly indicate that Obama’s view of executive power is different than President Bush’s.
BOB GARFIELD: Well Marc, thank you very much.
MARC AMBINDER: My pleasure.
BOB GARFIELD: Marc Ambinder is associate editor at The Atlantic and chief political consultant to CBS News.