The State Secret Privilege is perhaps the most powerful executive tool available for any president to use, and thus the Obama administration's decision to preserve its invocation, in Mohamed v. Jeppesen, was immediately interpreted by the vocal civil libertarian community as a betrayal of its basic principles. During the campaign, Obama had criticized its use to preemptively dismiss civil lawsuits against the government. Adding to the current agitation, Obama aides have been silent about its reasoning and the process.
But based on interviews with current administration officials involved in the case, with Bush administration officials, as well as with national security law experts, a clearer explanation emerges.
Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.
"If you decide today precipitously to waive this privilege, you can't get it back,
an administration official said. "If you decide to assert it, you can always retract it in the future."
Though Justice Department prosecutors tended to the case during the presidential transition, senior Obama administration officials at the department were involved in a brief but detailed review of the case; they included Eric Holder, the attorney general, who has been on the job for less than a week. The director of the CIA hasn't been confirmed yet; at the time of his hearing last week, nominee Leon Panetta had been briefed about some ongoing issues, but was not yet read in to most of the agency's classified activities.
Speculation about the underlying intelligence abounds. Some critics say that the administration agreed to keep the privilege assertion in place because it wants to participate in whatever illicit activities the privilege is meant to cover up. But many of those same critics argue that so much about the case is already in the public domain.
The officials who spoke would not discuss the particulars of the case. They did agree to discuss the various cross-pressures that the administration finds itself facing.
One is that many Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks. It may very well be noted that foreign policy concerns aren't state secrets, and it shouldn't matter in a U.S. court of law whether Jordan's King would be politically inconvenienced, or whether, even the United States should have the ability to decide what constitutes a state secret in a case where people were tortured.
The state secrets privilege has been bureaucratically calcified to an extent that worries many experts, with the Department of Justice making the decision about what's harmful more and more often, and the CIA and other intelligence agencies having less of a say. There is evidence that the privilege has always been used in this way, but that the Bush Administration's invocations were subject to more (legitimate) watchdogging from the press and outside interests. Some Obama administration officials believe that the privilege's assertion is legitimate, but that the Supreme Court, in the case which gave rise to the privilege, was much too deferential to the government.
One problem: the glut of cases courts are dealing with force the administration's hand. "Courts are not going to allow them to have as much time to think through the policies," said Robert Chesney, a University of Texas authority on national security law.
Retracting the privilege in this case might subject the government to a host of claims that it cannot fight; it makes sense that the administration wants to manage how it handles the issue of accountability.
Then there are the secrets themselves.
Public documents in the case cite the cooperation with the U.S. of Pakistan and Morocco, but the government has hinted that a trial would necessitate the release of information that bears on many other countries as well, countries which may have signed classified security arrangements with the United States, and countries who don't torture but would retract their intelligence cooperation if its nature was to be publicly disclosed.
Similarly, though the Obama administration has promised to stop rendering prisoners to countries that torture, Obama might well wish to keep up intelligence cooperation on other matters; if a country like Jordan, which is known to have taken rendered prisoners and known to have cooperated on a secret basis with the U.S. on many other activities, decides that their internal political risk is too great, they may withdraw cooperation altogether. A new administration needs to be very careful about the signals it sends.
"These new officials at DOJ, because of their own past arguments, deserve the benefit of the doubt," said Ken Gude, a national security law specialist at the left-leaning Center for American Progress. "I can't imagine that the magic wand has risen over them in the two weeks they've been office, so that they'll say, 'we were wrong, and the Bush Administration was right.'"
"I completely agree with the decision," said William Weaver, a professor at the Unviersity of Texas at El Paso and a long-time critic of the privilege. "You can't unring the bell. Once this stuff is out and it's been released, then it's over."
The senior administration official said that the decision should not be interpreted as a definitive administration statement on accountability for the Bush Administration, or even for the five Mohamed detainees who were tortured.
"We all recognize that it's a very complex and sensitive dynamic, but whatever the answer, discovery in a piece of private litigation is not it. It might be the [Sen. Pat Leahy] truth commission idea, a DOJ truth commission, or even investigations run by the Justice Department. There will be a national clearing of the air," the official said.
"Whether people like it or not, it is going to take us some time to figure us out." a senior administration official said.
A Justice spokesman declined to comment; a spokesperson for Leahy, who came out in favor of a truth and reconcilliation commission yesterday, said that her boss would have no comment on the Jeppesen case.