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Obama Administration to Revise State Secrets Doctrine:

Earlier this week, the U.S. Court of Appeals rebuffed the Justice Department's assertion of the state secrets doctrine in an effort to dismiss a lawsuit against a company that allegedly facilitated the CIA's extraordinary rendition of several individuals. The decision in Mohamed et al v Jeppesen Dataplan, Inc. is here.

Last night, President Obama indicated an intention to revisit the state secrets doctrine and narrow is application. In response to a question at his press conference, Obama said:

I actually think that the state secret doctrine should be modified. I think right how it's over-broad. But keep in mind what happens is, we come into office, we're in for a week — and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We've got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, 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. And we're interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Interestingly enough, the President's comments echo Orin's assessment from February. Stay tuned.

Related Posts (on one page):

  1. Obama Administration Continues to Defend State Secrets:
  2. Obama Administration to Revise State Secrets Doctrine:
Anderson (mail):
Orin Kerr -- eminence grise of the Obama administration?
4.30.2009 11:43am
einhverfr (mail) (www):
One small ray of hope from the Obama administration so far. This will be worth watching as things progress.
4.30.2009 12:00pm
Guest101:
That response would be a little more persuasive had the Ninth Circuit not offered the DOJ an adjournment to consider the new administration's position on the matter, but is nevertheless a welcome indication that Obama plans to back off of Bush's expansive reading of the state secrets privilege.
4.30.2009 12:04pm
Constantin:
I'll believe this when I see it applied to Obama's detriment. Which will be never.
4.30.2009 12:40pm
Oren:

I'll believe this when I see it applied to Obama's detriment. Which will be never.

Keep moving the goalposts ...
4.30.2009 12:41pm
MarkField (mail):
Color me somewhat cynical on this. Obama has now used some pretty words, but his actions have been identical to those of Bush. If he backs the state secrets bill and signs it, or if the DOJ stops making overbroad state secrets arguments in court, then he'll deserve some praise.
4.30.2009 1:18pm
Assman:
Correct me if I'm wrong, but doesn't the assertion of the privilege require a declaration by the top official in charge of the executive agency being sued?

If I'm correct, then Obama is not required to declare a sweeping policy change or favor legislation that limits the privilege. All he has to do is direct his appointee to assert the privilege or not.

He has no incentive to give up a pretty powerful executive tool. He'd be a fool to do so.
4.30.2009 1:35pm
Joe Veenstra (mail):
I don't know if anyone has come up with this idea before, but I thought it might be a decent way to handle state secrets cases. I remember reading about the FISA court and how surprised I was that such a court existed. After thinking about the FISA court and reading more about it, I began to understand the rationale behind its existence. Couldn't Congress authorize a similar court to which the government could have some sort of removal jurisdiction to remove a claim that they assert involves state secrets? The panel hearing the case would have to get security clearance and decide if the assertion of the privilege meets some basic level of good cause. The panel could then have jurisdiction over the claim and review evidence in secret to decide (1) if it should be disclosed at all or to the claimant (or perhaps just claimant's counsel); or (2) whether a payment should be made to the claimant or relief provided considering all the evidence.
4.30.2009 2:01pm
Bart (mail):
Folks,

It is more than a little foolish to trust anything Obama says that is not a previously vetted statement read off the Teleprompter of the United States (TOTUS) or issued officially in writing.

When on his own without TOTUS, Obama tends towards tap dancing to avoid displaying his ignorance on the subject, often incoherent CYA (see yesterday's town hall meeting where he peevishly wandered through a stream of thought responding to the Tea Party protest outside in the street), or simply sucking up to whatever crowd he happens to be in front of (see Obama guaranteeing to some woman that she would stay in her home).

The government position on the CIA interrogation issue has been a hash because of Obama extemporaneous statements in contradiction with the rest of his Administration.

In this latest statement, Obama is tap dancing to avoid displaying his ignorance by following his tried and true patter: "Um, sometimes you ought to do X; um, except when you shouldn;t do X; um, we are working on solving X; um, I inherited X from George Bush. That patter is Obama's extemporaneous position on any thorny issue.
4.30.2009 3:25pm
Bart (mail):
Of course, sometimes Obama simply dishes complete fabircations, confident that no one but Fox News will call him on them, and he does not call on Major Garrett anyway. Check out this complete lie from last night's presser:

This budget builds on the steps we've taken over the last 100 days to move this economy from recession to recovery and ultimately to prosperity.

We began by passing a Recovery Act that has already saved or created over 150,000 jobs...

What 150,000 jobs might those be? Maybe these are the jobs he claimed Caterpillar would add before they took an ax to their payroll.
4.30.2009 3:31pm
MarkField (mail):

I don't know if anyone has come up with this idea before, but I thought it might be a decent way to handle state secrets cases. I remember reading about the FISA court and how surprised I was that such a court existed. After thinking about the FISA court and reading more about it, I began to understand the rationale behind its existence. Couldn't Congress authorize a similar court to which the government could have some sort of removal jurisdiction to remove a claim that they assert involves state secrets? The panel hearing the case would have to get security clearance and decide if the assertion of the privilege meets some basic level of good cause. The panel could then have jurisdiction over the claim and review evidence in secret to decide (1) if it should be disclosed at all or to the claimant (or perhaps just claimant's counsel); or (2) whether a payment should be made to the claimant or relief provided considering all the evidence.


I'm very uncomfortable with the idea of secret justice. I also think we can trust existing federal judges to rule on such claims.
4.30.2009 3:32pm
orion (mail):
Maybe they're afraid that Jeppesen will be affirmed and are just trying to legislatively cut SCOTUS off at the metaphorical pass.
4.30.2009 4:41pm
Cornellian (mail):
Watch what you say about Specter Orin, he might just be SJC chair when Obama nominates you as the new state secrets privilege czar.
4.30.2009 4:56pm
Just an Observer:
I am more interested in the Obama administration's actions than in generalities uttered from the podium at the White House, even by the President.

Will the government appeal the Ninth Circuit decision? There is now a split with the Fourth.

And now that Judge Walker has brushed asided DOJ's contumacious response to his previous order in the Al-Haramain case, will DOJ begin to cooperate?

In the congressional arena, will Obama support legislation to curb the malignant growth of the state-secrets doctrine?

Time will tell.
4.30.2009 5:41pm
Visitor Again:
It is more than a little foolish to trust anything Obama says that is not a previously vetted statement read off the Teleprompter of the United States (TOTUS) or issued officially in writing.

Bart, you're always delightfully constructive in your comments, but isn't TOTUS taken already, as in Treasurer of the United States?
4.30.2009 6:27pm
PC:
Bart, you're always delightfully constructive in your comments, but isn't TOTUS taken already, as in Treasurer of the United States?

It may be a reference to the TOTUS blog.
4.30.2009 7:13pm
John Moore (www):

Color me somewhat cynical on this. Obama has now used some pretty words, but his actions have been identical to those of Bush.

That should provide a clue. He now has access to the information Bush had, and the responsibilities to protect the nation. I'm told that does wonders to focus the mind (unless you are Jimmy Carter, who has nothing to focus).
4.30.2009 7:21pm

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