The Obama Administration, Middle Ground, and the State Secrets Doctrine:
Jonathan links below to the news coverage of the Ninth Circuit oral argument at which Doug Letter, an attorney for DOJ, announced that the Obama Administration had elected not to change its position on the state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an "extraordinary rendition" case.

  It's always hard to know what's going on in a new Administration. But my initial reaction is that I'm not particularly surprised. Here's my thinking. Much of the leadership of the Obama Justice Department served as officials in the Clinton Justice Department. But the Clinton Justice Department wasn't necessarily modest when it came to claims of executive privilege. If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case. From this perspective, the goal, as reflected in DOJ's announcement today that it will review every state secrets case, should be a return to a case-by-case evaluation of when the state secrets doctrine is appropriate.

  If the Mohamed litigation had arisen in the Clinton years, I would have expected the Clinton DOJ to assert the state secrets privilege. Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult. If you're in a position of representing the executive branch, that's a very weighty concern even if you condemn what happened under the previous administration.

  I should add that this isn't necessarily a defense of the Obama Administration. Some readers take the principled view that the state secrets privilege either shouldn't exist or should be dramaticaly limited. If you take that view, then the Obama Administration's position remains deeply troubling. My point is only that I think the folks running DOJ are cut from a more institutional cloth: To borrow from Bill Clinton in another setting, they likely see themselves trying, for better or worse, to take the state secrets doctrine and "mend it, not end it." That's my guess, at least.