Monday, February 09, 2009

State Secrets Litigation

Glenn Greenwald is up in arms about the Obama Administration's advancing the same, extreme interpretation of State Secrets Privilege as the Bush Administration:
It's really remarkable what happened. One of the judges on the three-judge panel explicitly asked the DOJ lawyer, Doug Letter, whether the change in administrations had any bearing on the Government's position in this case. Letter emphatically said it did not. Instead, he told the court, the new administration -- the new DOJ -- had actively reviewed this case and vetted the Bush positions and decisively opted to embrace the same positions.
It's a double-edged sword, though, isn't it? By pushing the Bush Administration's interpretation, the Obama Administration ensures that there will be an appellate court ruling on that interpretation, likely followed by a Supreme Court ruling on that interpretation. Either the courts will reject the Bush/Obama Administration arguments, or they will find them constitutional.

Perhaps that's the worst case scenario for opponents of State Secrets Privilege - that the Supreme Court will give the Bush Administration's extreme views its seal of approval. But if the issue isn't litigated, the issue remains open. Even if Obama backs down, a future administration will reassert the extreme interpretation presently before the courts. Is it truly better "not to know"?


  1. Is it truly better "not to know"?


    There is a lot to be said for ambiguity. (In many ways this harkens back to the whole "ticking bomb" torture debate).

    I can see situations where it would be appropriate to raise some form of this privilege, so I would not want to see it "tossed out" by the court.

    By the same token, if the court endorses it, I can see it becoming the "default" setting and being massively overly used.

    Sometimes "grey" is good.


  2. Protections don't disappear with the privilege. Either the claim would have to be more narrowly tailored to fit within the privilege, or you would be back to the pre-GW days where you would have an in camera hearing to decide what information should be withheld.

    You mostly trust our federal judges, don't you? I mean, I know your feelings about the 9th Circuit, but... ;-)


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