When State Secrets Aren't State Secrets

In the words of ACLU attorney Ben Wizner, a lead counsel on behalf of the five detainees suing Jeppesen Dataplan, President Obama now "owns the state secrets privilege."

Wizner is correct. Remember precisely what it is that the government wants the 9th circuit to decide: that the U.S. government can dismiss any federal or civil case before it reaches the phase of discovery simply because the government asserts that the national security interests of the United States would be compromised if the case proceeds.

That's the same expansive state secrets privilege that presidents for 50 years have enjoyed -- but it's precisely the privilege that Obama, not two months ago, expressed an anxiety about: "I actually think that the state secret doctrine should be modified. I think right now it's over-broad."  Obama did not elaborate. During the presidential campaign, he criticized the use of the privilege as a justiciability doctrine to dismiss entire cases, rather than as an evidentiary doctrine, used to prevent the disclosure of highly-sensitive pieces of evidence.

Why is Obama hardening up his position?  If the privilege in weakened, it exposes the government to perpetual liability resulting from the mistakes of the past eight years. It would, in all likelihood, lead to a slew of civil cases brought by detainees against the government, cases that would require the government to litigate the practices of the past eight years. It would also lead to criminal cases. Obama has made it plain that he would rather focus his energies on reforming American judicial institutions rather than using the existing institutions to hold the Bush administration legally accountable for their policy decisions.

The result is that many detainees who were tortured will be denied civil recompense. It does not overstate the case to observe that the full extension of the privilege would classify an entire category of Americans as being above the law.

There is a larger push-and-pull at work. Does accountability require an actual struggle with the consequences of inheriting the mistakes of the past eight years? Or is accountability bound up in the changes in policies and law that Obama has proposed? What's the proper balance between these two competing claims to accountability?

I think that the Obama administration fears a Supreme Court battle over the state secrets privilege. It would undoubtedly be the signature case of the next term, one that would provoke an international uproar and a revolt from the president's base.  The conflict would be reduced to a sentence: will tortured detainees get justice?  I think that they hope that the 9th circuit will uphold the doctrine in a way that precludes an effective Supreme Court challenge from the plaintiffs. I think they are buying time until they can figure out a way to accept congressional legislation aimed at limiting the privilege.

So -- this case isn't really about secrecy. We know the secrets here -- they're contained in the testimony of the detainees and in numerous, repeatedly verified media accounts. If the case was really about secrecy, then the administration would be, in effect, contending that every secret is a real secret unless the administration acknowledges that it isn't. Jeppesen is a poor case to base a state secrets assertion on because so much is already known. It is the weakest of the several state secrets cases in the court system. And for that reason, the administration feels compelled to defend it.