Of all the responses to the administration's endorsement of the state secrets privilege in Mohamed et. al. v. Jeppesen, one question pops out: why, if the administration were simply overwhelmed with information, didn't they just ask the court of appeals to give them some more time? Even if denied, it would signal their intention to review the government's strategy and the facts of the case. Wouldn't it be a costless legal move?
It's a valid question. Read on.
The answer, I take it, is not going to satisfy critics, but here it is, based on discussions with administration officials and outside experts: Mohamed v. Jeppesen will not be the vehicle used to review or recast the state secrets privilege. Aside from the assertion of the privilege, which has been reviewed, asking for a continuance would be publicly interpreted as a re-reviewing (and, indeed, a retracting) of its assertion of the privilege, and the Obama Administration has no plans to do so formally. They're sensitive to the politics of the case, but they're not motivated by what civil libertarians may write on their blogs.
Clearly, the Obama Administration does not believe that the state secrets privilege ought to be taken out of the government's tool box when facing civil suits. It does believe in exercising the privilege more judiciously. To the charge that Obama promised never to invoke the state secrets privilege to peremptorily dismiss a civil suit -- Obama aides do not believe he ever promised to do that, although Vice President Biden signed on to legislation that would have banned the practice. One administration official said yesterday that the Jeppesen documents in question are tantamount to the case itself, so the distinction between challenging the evidence and challenging the litigant's right to bring the case isn't very clear.
A further objection: why do my sources claim that the reason they invoked the privilege was to give them more time to figure everything out?
Three responses. One: government officials say the decision was made for a number of reasons. Two: asking for a continuance would have had the exact same effect as retracting the privilege in this case. And the government can, at any time it wants, withdraw the assertion of the privilege. As one outside expert explained it to be, dealing with the privilege in civil cases where the government has a lot of control over the process is very different than dealing it in the various Gitmo habeus corpus cases that are coming up for review. The government has much less discretion in the latter arena. Three -- Binyamin Mohamed's case has gone far down the road in the United Kingdom; the U.K. has already expended a great deal of energy (and taken many hits) for the United States, so pulling back might (a) hurt the British government, (b) create an even broader political row and (c) given ammunition to those who believe the U.K.'s government is giving cover to the U.S.
None of these may be justifiable, but the larger point is that Mohamed et. al. is not isolated from other foreign policy considerations.
So where does this leave the policy itself? My informed guess is that the Obama Administration will find cases to revoke the privilege's assertion. They will do so publicly and with great fanfare. They will simultaneously announce a new set of restrictions on when and how the privilege should be invoked. They will do so on their own timetable (to the extent that the courts don't force their hands), and they will do so in conjunction with the broader ideal of reconciliation and accountability. They're just not ready to do so 22 days in, and the particulars of this case weren't, in any case, ideal for them.