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So Many Secrets

At a press conference last week, President Obama announced that his administration intends to engage in an “overarching reform” of the state secrets privilege, a legal tool exploited during the Bush era to shut down lawsuits that challenged warrantless wiretapping, extraordinary rendition, and other unlawful government practices. This was a welcome announcement from the president, but also a puzzling one. Having campaigned on a promise to restore the rule of law, President Obama has thus far been using the privilege to shut down lawsuits himself--and, as the Ninth Circuit recently held, he has overstepped the proper bounds of the privilege in the process.

Since the onset of the Cold War, the state secrets privilege has been used to prevent the disclosure of evidence in litigation in instances where it would harm the national security. But the Bush administration took the practice much further, routinely arguing that entire cases must be dismissed before the evidence had even been identified because the very “subject matter” of the case was a state secret. As it so happened, the “subject matter” of all of these cases was an unlawful U.S. policy. Bush’s use of the privilege thus transformed it from a narrow protection for specific evidence into a tool to avoid accountability in the courts.

Last year, Obama criticized the Bush administration for using the privilege “more than any other previous administration to get cases thrown out of civil court.” And this February, the Justice Department announced that it would conduct a review of ongoing cases in which Bush had asserted the privilege “to ensure it is being invoked only in legally appropriate situations.” But when it came time to file briefs in those cases, the Obama administration echoed the Bush position in every instance.

The lawsuit at issue in last week’s Ninth Circuit ruling is a case in point. The five plaintiffs in the lawsuit--citizens of Egypt, Italy, Ethiopia, Iraq, and Yemen--all were allegedly captured by other countries and turned over to United States officials. Those officials then dressed them in diapers, shackled and blindfolded them, and placed them on flights to Egypt, Morocco, and Afghanistan, where they were imprisoned and tortured for periods ranging from months to years. The flights were facilitated by Jeppesen Dataplan, a Boeing subsidiary. The plaintiffs sued the company for its role in knowingly “rendering” them to other countries to be tortured.

The Bush administration intervened in the lawsuit and demanded that the case be dismissed because the subject of “extraordinary rendition” is a state secret. The trial court judge agreed, and went so far as to suggest that the CIA and its partners are immune to civil lawsuits. His holding was so sweeping, no one--not even the panel of judges assigned to hear the appeal--thought the Obama administration would try to defend it. But when the Justice Department lawyer showed up to argue the case before the appeals court, he stated firmly that the Obama position and the Bush position were one and the same. News accounts noted that the judges could not hide their surprise.

In its decision, the Ninth Circuit provided a lucid and long overdue explanation of what is wrong with the Bush-Obama approach. The government had advanced two main arguments in support of its privilege claim. First, it argued that some subjects cannot be litigated without revealing privileged evidence. The Ninth Circuit rejected this argument, concluding that it is impossible to know whether privileged evidence will be necessary in a given case until all the evidence is identified and its privileged or non-privileged status is determined by the court.

Second, the government suggested that the truth about what happened is a “state secret,” regardless of the status of the evidence. But as the Ninth Circuit pointed out, privileges like “state secrets” apply to evidence, not facts. Just as the privilege against self-incrimination doesn’t prevent a prosecutor from proving a crime using evidence other than the defendant’s testimony, the “state secrets” privilege shouldn’t prevent a plaintiff from proving government misconduct using evidence that can be disclosed without harming national security. The alternative, in the panel’s words, would be to “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 Ninth Circuit’s ruling applies only in that Circuit, and President Obama did not even mention it in his press conference the following evening, when he declared his intent to “reform” the privilege. He merely stated that “the state secret doctrine should be modified” because “right now it’s overbroad.” He cited redaction of sensitive documents and private review of the documents by judges as tools that could be added “so that it’s not such a blunt instrument,” and he noted that Attorney General Eric Holder and White House counsel Greg Craig “are working on that as we speak.” As for the administration’s arguments in the lawsuit against Jeppesen and other cases, he half-defended them on the ground that his administration hadn’t had time to think through “an overarching reform of [the state secrets] doctrine” when it filed the briefs.

Presidents do not readily relinquish powers they have inherited. If Obama intends to renounce reliance on claims of “subject matter privilege,” he deserves immense credit. Nonetheless, as the Ninth Circuit’s decision makes clear, there is no need to “reform” the state secrets privilege. When construed properly, the privilege is quite narrow; invoking the privilege to shut down entire lawsuits is a misuse of the privilege, one that the Obama administration could and should have avoided from the beginning. Likewise, redacting sensitive material and having judges review evidence alone in their chambers are time-honored techniques courts have used in the “state secrets” context, requiring no special authorization--let alone “overarching reform”--by the administration.

What is needed now is a simple change of course. The Obama administration should not appeal the Ninth Circuit’s ruling. It should immediately withdraw the overly broad claims of privilege it asserted in other cases, or, at a minimum, ask the courts to stay those cases while the administration revises its position. It should also adhere to the precepts of the Ninth Circuit’s ruling, not just in that case, but in all cases where the state secrets privilege is at issue. And it should support legislation, such as the State Secrets Protection Act, to codify the proper application of the privilege and guard against abuse by future administrations.

Whether the administration follows through on these steps will determine whether its early approach to the privilege is filed away as an unfortunate misstep, redeemed by a subsequent show of restraint and commitment to principle, or whether it remains as a lasting stain on President Obama’s record of respect for the rule of law.

Elizabeth Goitein is the Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law.

By Elizabeth Goitein