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Apr 13 2009, 12:35 pm by Marc Ambinder

Obama's Coming Clash With Congress On "State Secrets"

They no-commented me last week, and they're stonewalling Greg Sargent this week: the White House refuses to say whether the President supports the State Secrets Protection Act in Congress.  As a candidate, Obama supported the principles espoused in a similar piece of legislation, but he did not sign on to the bill as a cosponsor.  My reporting leads me to believe that senior administration officials, including the White House counsel, Gregory Craig, oppose the current version of the legislation because they believe it would overturn an important, established precedent and weaken the ability of the president to protect national security. 

Specifically, the White House objects to the provision to " 

prohibi[t] an in camera hearing, however, based on the assertion of the state secrets privilege, if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets." 

 The executive branch wants to preserve the exclusive power to determine what constitutes a "national security fact" or a legitimate state secret.  In the bill, judges are given that power.   The White House also worries that the permission given to judges to

 "conduct hearings (or portions) ex parte if the court determines, following in camera review of the evidence, that the interests of justice and national security cannot adequately be protected through attorney security clearances, protective orders, sealed opinions or orders, and special masters" 

....would abrogate the executive branch's constitutional duty to preserve and properly safeguard national security-related secrets.  Therefore, you can see why this passage requiring:

"....the court to give substantial weight to an assertion by the United States relating to why public disclosure of an item of evidence would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States

might not mollify the concerns of the White House's national security brain trust.  

I do not know whether the White House supports the bill's prohibition on using the privilege to quash civil suits in toto without sufficient discovery -- " the state secrets privilege shall not constitute grounds for dismissal of a case or claim," but given their actions to date, I would suspect that they're troubled by this grant of power to the judiciary branch, too.

Make no mistake: Obama will be rolling back the spirit, if  not the fact, of a campaign promise by opposing this bill. 

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Comments (6)

notavailable

It is instructive to go back to the words uttered by none other than Barak Obama:

http://firedoglake.com/2008/01/28/barack-obama-statement-on-fisa/

I strongly oppose retroactive immunity in the FISA bill.

Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand.

The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.

No one should get a free pass to violate the basic civil liberties of the American people - not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.

That is why I am co-sponsoring Senator Dodd's amendment to remove the immunity provision. Secrecy must not trump accountability. We must show our citizens – and set an example to the world – that laws cannot be ignored when it is inconvenient.

A grassroots movement of Americans has pushed this issue to the forefront. You have come together across this country. You have called upon our leaders to adhere to the Constitution. You have sent a message to the halls of power that the American people will not permit the abuse of power – and demanded that we reclaim our core values by restoring the rule of law.

It's time for Washington to hear your voices, and to act. I share your commitment to this cause, and will stand with you in the fights to come. And when I am President, the American people will once again be able to trust that their government will stand for justice, and will defend the liberties that we hold so dear as vigorously as we defend our security.

calchala

While it is disappointing for Obama to act in this way, the interesting thing that Marc notes is that protecting state secrets is a constitutional power given to the executive branch. If that's the case it would be difficult for Obama to act otherwise.

Marc, would there be anyway you could further answer this question?

notavailable (Replying to: calchala)

Obama's own woords are a damning indictment of his own administration: "this Administration has put forward a false choice between the liberties we cherish and the security we demand."

You can protect state secrets without having to argue that wholesale cases be dropped to protect state secrets.

Whispers

"protecting state secrets is a constitutional power given the the executive branch".

Not as far as I'm aware of. I don't see the word "secrecy" mentioned in the Constitution. Certainly there is nothing that says that the Executive Branch is the branch charged with _determining_ whether any piece of information is a state secret, as opposed to either the legislative or judicial branch. Indeed, this power has historically _always_ been subject to judicial review.

Given the past abuses by Presidents who had extensive powers of secrecy, powers that were curbed by legislation in the '70s, I think anybody who wants to argue for expanded powers of secrecy for the executive branch has an extremely high threshold to make, especially given the abuses of the past eight years.

I categorically reject the notion that the President's position as Commander in Chief of the Armed Forces _constitutionally_ implies that he is the sole arbiter of what is and what is not a state secret.

Dredd

I have criticized spin by EFF people, have discussed some of the evolution of the state secrets doctrine, and pointed out that not too many people are aware of state secrets legislation, so far.

We should stop the hype, misquotes, and misrepresentations and instead get down to brass tacks on the issue.

Obama, as president, has the right to help mold legislation, and to veto it if it is not up to his criteria.

Congress has the right to mold legislation by changing presidential preferences, and to override vetos when it can do so.

It is shrill hype to call that "a clash" when it is more like standard fare.

It is likewise inarticulate to confuse sovereign immunity, state secrets, and retroactive immunity into one ball of string.

They are very different issues when it comes to litigating them in the courts.

Wsstatesecret

We chose security over freedom and we will see how it will ripple through our way of life for the next 200 years. It's basically settled; just some of the declassified legal opinions claim that the President not only has the right to break statutory law but also suspend the Constitution itself and now, as long as any act by the government has a 1% national security component, a court will never hear it. Wouldn't it be scary it the domestic surveillance program was a multipurpose program that allowed FBI informants to be directed by the FBI or CIA? These informants could get you fired, ruin a relationship, even make you look a little classified crazy and all under very flakey and razor thin investigate pretences ( it seems like every national security case has some sort of underlying mental pretence that holds it together and the ones that never made any sense and never go to court simply remain state secrets). Unfortunately that is what ’threat neutralization” is as loosely described the FBI Director under oath. All it would take is the legal threshold of reasonable suspicion which is 1% and this process can target any citizen for any reason while our intelligence professionals hide behind the repressions they are creating -and they have piled up like a pile of crap under W. Well now it's time to make it sound silly cause we are getting the pathetic and sloppy performance we deserve so lets see were we go from here. And for all you people afraid of a terrorist, you are more likely to die from a Krispie Cream or a car accident so quit hiding behind other people’s tragedy (especially the most preventable terrorist attack in modern history) because the rest of the free world will be very proud not having to deny what they never knew existed -what we claim as essential -as the only thing they ensured was the rights and a higher standard for every citizen while we cling to the most pathetic platform there is-security.