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Reagan-era legal eagle Bruce Fein is miffed. He was an Obama supporter on many things, and let’s just say on this one he’s got lots of company. Some of us, as I’ve said before, are less surprised than others at what’s now unfolded. But as supporters of President Obama, in the end it all ends up the same. It’s another person getting executive fever thinking that being president in a democratic republic is good, but playing king is better.
The “state secrets” privilege has been around since 1953 and how it came into being is nothing that makes us proud. Dan Froomkin laid it out yesterday. It seems at this point the Obama administration is headed into making the same mistakes through their overreach of claiming that national security could be endangered in several cases if they produce documents, the trouble being that they’ll never have to prove their point. Not even to judges. That’s a problem and always has been, especially for Barack Obama who is now seen as going back on his word regarding transparency.
Greg Sargent reveals another issue, and has the screen capture as well. On the White House web site, the Administration is still crowing about the Bush administration even as they mimic what Bush did on “state secrets.
The only possible good news came in Attorney General Holder’s interview with Katie Couric, though he only went as far as to say a review was being done, also not guaranteeing we’d see the review, then citing one instance where the Obama administration could change its mind. Not exactly impressive.
Holder: … I have ordered a review of the state secrets doctrine. All the cases in which – we have invoked that doctrine. I think there are a total of maybe 20 or so, just to make sure that it was properly invoked. And to see, in those cases, where it was properly invoked, if there’s a way we can be more surgical, whether there is a way in which we can share more information.
A report is in the process of being prepared. I’ll expect I’ll have it in the not too distant future. And my hope is to be able to share the results of that report with the American people. So they’ll understand exactly – why we’ve had to use the state secret – state secrets doctrine in certain cases. And why we – decided not to use it in – in certain other cases.
Couric: So you think it’s appropriate to invoke it at certain times?
Holder: At certain times. But I want to make sure that we only do it where it’s absolutely necessary. I would only apply the doctrine where – national security was at stake, where the lives of the American people were at stake. Where sources and methods used by our intelligence – at – our intelligence assets were used. This is a very transparent administration.
This is going to be a very transparent Justice Department. But I’m not gonna sacrifice the safety of the American people or our ability to protect – the American homeland. And that is – as I said, first and foremost.
Couric: Having said that, do you believe the state secrets doctrine was abused by the Bush administration?
Holder: Well, I’m in the process of looking – that is being reviewed now. And so, I’ll see what the result of that – review is. And as I said, try to share the results of that review with the American people.
Couric: What’s your gut though?
Holder: Well, I don’t know. On the basis of the two, three cases that we’ve had to review so far – I think that the invocation of the doctrine was correct. We – we reversed – are in the process of looking at one case. But I think we’re likely to reverse it. …
Part of this whole problem began with one statement, impeachment is off the table, which unfortunately came from Speaker Pelosi, but which ended up sending a message, not only to Republicans, but especially to Democrats who don’t have the spine to hold Bush-Cheney accountable for their misdeeds, including investigations of possible crimes that have us looking back, including the act of torture, that was ordered on George W. Bush’s watch. As someone who was against impeachment of Bush, there can be no question that the lack of serious investigation of Bush administration actions helped cause the situation in which we now find ourselves. My point against impeachment was that it was putting the goal ahead of finding out what happened through serious investigation first. Unfortunately, that never happened. I also made it clear that due to the Iraq war I felt it was counterproductive on keeping our country’s eye on the ball when we were drowning in Iraq. But again, that shouldn’t have precluded Congress taking a strong investigative approach once the Dems got into power, but yet it actually did, because Pelosi’s singular statement became the facade behind which the Bush-Cheney administration remained in hiding, which now unfolds on to President Obama and his administration claiming the same types of egregious power grabs as his predecessor, while accountability goes poof. Meanwhile, Nancy Pelosi is caught in between, with her strong loyalty to Obama, and her job, stretched across a cleaver threatening to cut her power in two. Just watching her twist during Jon Stewart’s recent interview (as well as with Keith Olbermann) brought that reality into focus.
At the foundation, however, we have Barack Obama, someone who never presented himself when he was a candidate as someone who is confrontational or who seeks out to punish the power structure he sought to sit atop. As a candidate, Mr. Obama made it clear on FISA, voting in favor of warrantless wiretaps. So it’s really not a very far jump where we find ourselves today; that President Obama and his Justice department have claimed “state secrets” now that he’s part of the presidents’ club. His bipartisan zeal on the altar of allowing him to get things done, along with his passion to find common ground, also stops him, because he wants to make sure he has enough friends so that his agenda can get passed, because the goal of greatness is never far from any president’s mind.
The popularity of President Obama weighs down any inspiration he also might have for changing the page from Bush-Cheney “state secrets” privilege, citing national security, because at the foundation of the strategy is “protecting the American people,” something for which we all should be grateful, but which we should never allow to become a shield to protect the executive over the citizenry’s rights.
As in the case that began it all, United States v. Reynolds (1953), which Froomkin points to in his post, by the time the records are unsealed and the truth is known, the government culprits seeking cover are long gone and justice is too long denied to be served.
Sam Stein has more, including a statement from Justice on one case, Jewel v. NSA:
The administration recognizes that invoking the states secret privilege is a significant step that should be taken only when absolutely necessary. After careful consideration by senior intelligence and Department of Justice officials, it was clear that pursuing this case could unavoidably put at risk the disclosure of sensitive information that would harm national security.
An examination by the Director of National Intelligence and an internal review team established by the Attorney General determined that attempting to address the allegations in this case could require the disclosure of intelligence sources and methods that are used in a lawful manner to protect national security. The administration cannot risk the disclosure of information that could cause such exceptional harm to national security.
While the assertion of states secrets privilege is necessary to protect national security, the intelligence community’s surveillance activities are designed and executed to comply fully with the laws protecting the privacy and civil liberties of Americans. There is a robust oversight system to ensure this compliance.
What “robust oversight system”? At this point all we’re getting is that the Obama administration says so. Not good enough. President Obama has to prove it.
For my money, Louis Fisher was exactly correct. A “robust oversight system” would mean that a judge gets involved, behind closed doors so that no “state secrets” privilege claim can be violated, without knowing exactly who did it, a judge, which is unlikely, able to hear the Administration’s case, or seeing, at least in part, the national security issue that needs protecting. After seeing proof, then and only then can the “state secret” issue be satisfied through a “robust oversight system.”
No one wants national security violated.
But no citizen should allow the executive or judicial branches to protect themselves over the citizenry.
Via Glenn Greenwald, Sen. Feingold on the issue:
I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct. The Obama administration’s action, on top of Congress’s mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program. [...]
TPMMuckraker has been all over the issue as well. Along with the Jepesen case, as well as the al-Haramain Islamic Foundation regarding illegal wiretapping, where the Obama administration has claimed “state secrets,” long-time supporters of Barack Obama have found themselves betrayed, the trust they put in Mr. Obama used, with the result being a president just like Bush on these critical judicial matters for which Barack Obama, the candidate, lifted himself up.
The Obama administration does have some allies, however. Bill O’Reilly and the Red State crowd love pitting Obama against “the far left,” as they come down on Obama’s side because he’s supposedly “protecting national security,” all the while President Obama or his administration do not have to prove “state secrets” are actually at stake.
Emailing Dan Froomkin, Louis Fisher asks the bottom line question: “What check would exist for illegal actions by the executive branch?”
Under the Obama administration, just like Bush-Cheney, at this point, there are none.
UPDATE, 4-11: Obama is now also appealing the ruling re: three Bagram detainees.
Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.
“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.
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