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. 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.
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?
Very useful information, Marc. Count me as one of the critics of the administration's position who's not satisfied but greatly appreciates the additional information -- I now understand their constraints and priorities much more clearly. Also it's an important point about the asymmentry: the government can withdraw the assertion of the privilege but once they do they're limited in how much they can go back. There's enough here that I and others can think about how this is likely to apply to FISA.
You are right - this will not satisfy critics. I am waiting for Glenn Greenwald to take this argument to pieces.
This case seems to me to be the perfect case to review the state secrets privilege. Obama took some positions before the campaign. When an opportunity arises after he is elected why should those positions be simply cast away? I mean they may not be motivated by loonie civil libertarians like the ACLU, New York Times, and Glenn Greenwald, but shouldn't they be motivated by their own election promises, and a key philosophical point which separates Obama from Bush?
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.
Thanks for the strawman argument. I don't believe that even Greenwld is suggesting that.
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,
The UK took many hits for Bush, so that obliges Obama to take hits for UK?
Sounds like a self perpetuating argument.
Why even say that you are better than the other party if you are interested in status quo?
In a word, HUH? Asking for continuation is the same as "retracting the privilege in this case" ... WHY? Didja happen to ask the esteemed but apparently very shy admin folks why?
There IS no good answer from the administration here. It's simply a case of the current admin scratching the back of the previous, hoping that the next admin will do the same for them.
I fail to see how this administration can possibly hope to achieve the "broader ideal of . . . accountability" by asking to have an entire case dismissed via a Bush-era, sweeping invocation of "state secrets" instead of considering state secrecy document-by-document.
This is merely one of several blatant contradictions in what Mr. Ambinder has reported.
And this:
makes me vomit as an American. You do realize that we are talking about complicity in war crimes? That this person's genitals was sliced with a scapel? And yet they are willing to play footsie with torture, kidnapping and the rest?
Now I'm really disgusted with Obama's DOJ. Thanks.
You write: None of these may be justifiable....
I am really curious, as are many other readers, why you are printing these statements without confronting their substance.
Seriously, your blog's latest post, as I'm writing, mentions legislation that will address the state secrets issue and yet here you are playing stenographer for the administration, as though you have no responsibility to dig for the truth.
Why are you even writing about this if you feel no obligation to challenge your anonymous sources with facts?
So who were these folks you talked to? How about some sign of identification--like which department? Did you originally ask for a statement on the record? Did you even think to do that? Did you read them Glenn Greenwald's questions, or did you paraphrase them? Nice work.
Good boy. Fetch.
Ambinder is also being criticized by the prestigious Columbia Journalism Review (link) and Firedoglake.com founder Jane Hamsher:
Somehow missing in all of this is the consideration of the most basic part of this case. We have consideration of the fact that it's a civil suit. We have consideration of the fact that it has international ramifications. We have consideration of national security and sharing between foreign intelligence agencies. We have consideration of privileges we want in a tool box. We have talk about 22 days, and how judges interpret continuances, and whether or not this case matters and Gitmo and habeas corpus.
Nothing from all your esteemed sources, Marc, about the roots of this case: Torture and Extraordinary Rendition. This case is about heinous crimes, war crimes, crimes against humanity. The worst of the worst. Would these sources be babbling this way about a murder or rape case? Is torture and incommunicado detention just nothing? Does it evoke no feelings in you, or, in the case of your sources, anonymous, like, senior administration official feelings?
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.
One aspect of this situation is the question of which state secrets privilege we are talking about. The original Reynolds state secrets privilege let the government turn off court proceedings if those proceedings would involve or require the revealing of classified information that supposedly must be kept secret for the benefit of the country.
What the Bush DOJ put forward is not the same: the idea that Reynolds means that a case regarding things that are publicly known, that have been discussed in newspapers, foreign newspapers, foreign courts, etc. can be summarily barred from going forward, even on publically known information, because the subject of the case - the crime in question - is classified by the government as a secret.
This version of the state secrets privilege has shed the reason for the privilege - i.e., keeping things unknown that should be kept unknown - while retaining the power to cancel the possibility of legal proceedings!
In considering whether the Obama Administration intends to retain "the state secrets privilege", in this business begun under Bush, it very much matters which state secrets privilege we are talking about! They are not the same thing, and the second one is a really questionable reach from the original Supreme Court decision.
I believe I'll remain skeptical of this explanation, Marc. Sounds too pat and like it covers too many bases for both today and tomorrow, or tries to.
"asking for a continuance would have had the exact same effect as retracting the privilege in this case."
This statement appears to be nonsense.
Is there any factual basis supporting it?