Obama slammed for answer on ’state secrets’ privilege

When President Obama was asked at his April 29 press conference for his views on the state secrets privilege, he responded by saying that “it’s overbroad” and “should be modified.”

During last year’s presidential campaign, Obama had criticized the Bush administration’s attempt to use the state secrets privilege to keep not merely specific documents or testimony out of court but entire cases. However, his own administration has continued to defend the Bush position on certain of those cases. And in answering a question on the topic at his press conference Wednesday night, Obama seemed to hedge his bets.

“How exactly does your view of state secrets differ from President Bush’s?” Michael Scherer of Time asked, “And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?”

“I actually think that the state secret doctrine should be modified,” Obama replied. “I think right now it’s overbroad.”

“There are going to be cases in which national security interests are genuinely at stake,” Obama continued, “and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument. … Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.”

Despite his insistence that the state secrets doctrine should be modified, Obama sidestepped the question of his own administration’s continued support the broadest form of that doctrine in several cases. “We come in to office, we’re in for a week, and suddenly we’ve got a court filing that’s coming up,” he explained. “And so we don’t have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We’ve got to respond to the immediate case in front of us.”

As a result, his response immediately drew fire from critics, with one blogger calling it “disingenuous” and another bluntly describing it as “atrocious.”

Brian Beutler at Talking Points Memo called that response “disingenuous” and noted that “DOJ lawyers haven’t asked the courts for more time, or to withhold key pieces of information. Rather, they’ve argued that these cases- … be tossed out entirely. And they’ve done that by invoking the state secrets privilege.”

The most notorious of those lawsuits is the Jeppsen case, in which five alleged victims of extraordinary rendition and torture are attempting to sue a subsidiary of Boeing to which the CIA had subcontracted its secret rendition flights. The Bush administration had sought to have the case dismissed on the grounds that the very existence of extraordinary rendition is itself a state secret, and the Obama administration announced in February that it “stands behind arguments that previous administration made.”

At that time, Ben Wizner of the ACLU, who serves as counsel to those plaintiffs, stated, “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course.”

A federal appeals court rejected the government’s position this week, saying that it would “effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

Blogger Ed Brayton offered a line-by-line refutation of “Obama’s atrocious answer” on Thursday. noting in particular that “in at least two of those cases they were offered continuances in order to evaluate the evidence and formulate their responses. In the others, continuances almost certainly would have been granted if they’d asked for them. As Jonathan Turley said on the Rachel Maddow show last night, there isn’t a court in the country that wouldn’t grant a continuance in that situation and there isn’t an attorney in the country that handles such cases, as he does, that wouldn’t agree to a continuance. So that excuse just does not fly.”

“The sad thing is that there was no follow up on the question at all,” Brayton conclucded. “Another instance where the press fell for a glib but entirely wrong answer.”

This video is from MSNBC, broadcast Apr. 29, 2009.

Download video via RawReplay.com

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