EXECUTIVE WATCH

The Bush Administration has been widely criticized for its assertion of the state secrets privilege to prevent litigation that would otherwise subject some of its most notorious executive actions to judicial review.  Whenever suits have been brought to challenge aspects of its warrantless surveillance program or its program of extraordinary renditions, the Justice Department has interposed the objection that the suit cannot proceed because doing so poses a “reasonable danger” of exposing “matters which, in the interest of national security, should not be divulged.”  That is how the Supreme Court put the relevant question in the seminal state secrets case, United States v. Reynolds.  The privilege can be waived by the executive branch, but once it has been asserted and the court has been persuaded that disclosure poses a danger to the national security, no amount of urgency or necessity on the other side can outweigh it.  So the privileged information gets excluded from the litigation.  The plaintiff can attempt to proceed on the basis of non privileged information, but if the privileged information is so important to the plaintiff’s case that he cannot prove his case without it – or if it is so central to a defense that might be offered – the case gets dismissed.  This is just what happened in Mohamed v. Jeppesen Dataplan, the case that was argued before the Ninth Circuit court of appeals last week.  Mohamed and five other plaintiffs had been seized by American personnel, forcibly taken to nearby airports, stripped, dressed in diapers and jumpsuits, blindfolded and shackled to the floor of a Gulfstream V  — apparently the same Gulfstream V in each case.  That Gulfstream V, jokingly referred to by a Jeppesen employee as the “torture plane,” provided material assistance in an operation that subjected each plaintiff to harsh incarceration and torture in a destination country, and it was on the basis of that knowing assistance that the plaintiffs sued Jeppesen Dataplan.  At least, these are the allegations.   In this suit for damages, neither Jeppesen nor the United States has ever answered the allegations because the United States succeeded in having the case dismissed by the district court, on the ground that the case could not be litigated without disclosing state secrets.   

It is clear that progressives believe that the Bush administration has been abusing the state secrets privilege to avoid accountability and hide embarrassing facts.  Oral argument in Jeppesen, on February 3, was to provide an early signal on just how much change to expect from the Obama Justice Department.   But the government’s lawyer told the panel that the administration was not changing its position at all in the case, and was still urging the appeals court to affirm the district court.   In the midst of the disappointment, it is fair to ask the question:  just what should progressives have been expecting?

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Last week, the Obama Justice Department made news by virtue of what it did not do: In oral argument in a case before the Ninth Circuit, the Justice Department took the same position on a question of state secrets, arguing for complete dismissal of the case, just as the Bush Justice Department had done. The New York Times covered the story here. The Obama folks might reasonably be cut some slack here; because the key political appointees who should and will be involved in any reconsideration of the government’s policy toward state secrets are not yet fully in place it might have been expected that the government would not yet be ready to announce a major switch in position so soon after January 20.

That said, what is it reasonable to expect from them, once they have had the chance for that thorough review?  The state secrets doctrine prevents the use in litigation of evidence that would reveal information that would damage the interests of the government.  Originally a concept broader than military and national security secrets, the doctrine in recent years has arisen most often in the context of cases where those types of secrets have been involved.  The doctrine can be invoked by the executive branch to prevent disclosure in court of documents and evidence that would reveal state secrets.  If the court accepts the executive branch’s argument, the result is to preclude the use of such evidence.  At a minimum, application of the doctrine will preclude the use of some evidence in court and at the maximum, if that preclusion makes it impossible for the plaintiff to prove his or her case or for the defendant to present a defense, the result can be dismissal of the case.  The Bush Administration has been accused of applying the doctrine with “offhanded abandon.”  However, a careful review of state secrets cases by Bobby Chesney, in an article for the George Washington Law Review, convincingly demonstrates that Bush administration use of the doctrine does not differ significantly from past administrations.  The number of times it has been invoked – which have been on the rise – is probably attributable to a rise in the number of lawsuits filed during the Bush administration that challenge programs or operations that the administration argues need to be kept secret.  The rise in invoking the doctrine, in other words, emanates from the secretive nature of the Bush administration, not from any attempt to pervert the traditional doctrine or to apply it in novel circumstances.

But the relationship between the state secrets doctrine and the lack of transparency of our government is precisely the point that has caused people to take notice of the Obama administration’s failure to tack off in a different direction in the Ninth Circuit.  President Obama has promised a more transparent government.  Shouldn’t one manifestation of that change be a change in the attempts made by the administration to prevent disclosure through the use of the state secrets doctrine?  That depends.  On the campaign trail, the Obama people might have thought the same thing  that many other people thought:  that the Bush administration was misusing the doctrine in the sense of applying it inappropriately to cases where a good faith application of the doctrine would not have applied it.  Once having the opportunity to examine specific cases, however, the Obama people might conclude that genuine state secrets are at stake in these cases and that there is a legitimate reason to seek application of the state secrets doctrine in them.  Of course, nothing compels the executive branch to assert the doctrine even in warranted cases, and it might conclude that the interests in transparency and the opportunity of an injured person to have a day in court outweighed the significance of preserving the secret.  If that is what we are expecting, it is even more understandable that the incoming administration needs some more time, because a number of agencies and individuals in government, extending well beyond the Justice Department, would have equities in a decision to waive an otherwise valid legal defense. They would need to be consulted before such a decision could be made.

If, on the other hand, expectations were that the Obama Administration would change its position specifically in the case in the Ninth Circuit because it was legally erroneous to apply the state secrets doctrine to that case – the position that the ACLU takes in the case – then that is a different matter.  Sizing up that expectation requires an examination of the particular facts of the Ninth Circuit case, and that is the topic for tomorrow’s post.

Five men who claim to have been seized by United States personnel and then flown to CIA “black sites” are suing a Boeing subsidiary for its participation in these actions - “extraordinary renditions” in the parlance of the war on terror.  The United States intervened in the case, claiming that it must be thrown out of court because allowing it to proceed violates the state secrets doctrine.  The federal district court judge agreed with the government and the plaintiffs appealed, hoping for a different result in the Ninth Circuit court of appeals. 

As important, with President Obama’s emphasis on transparency and accountability, the plaintiffs were anticipating a change in the government’s position.   But when Doug Letter, a seasoned career DOJ appellate lawyer, stood up before the Ninth Circuit panel yesterday, he announced that the government’s position remained the same.  The New York Times story is here. 

Many observers are convinced that the Bush Administration misused the state secrets doctrine to prevent judicial inquiry into matters whose examination would pose little or no threat to national security.  As Senator Kennedy has said, “If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive. The state secrets privilege is important, but there’s a risk it will be overused and abused.”  If that is what the Bush Administration has been doing in any particular case, the Obama Administration does indeed need to change.  From this perspective, the decision to stick to the old position in Mohamed v. Jeppesen Dataplan is unsettling.

 That said, it is much too early to draw any large conclusions from this single incident.  The Justice Department is an inherently conservative organization - not in the sense of conservative versus liberal, but in the sense of being slow to make significant changes of position rapidly.  That characteristic has many benefits in terms of following the rule of law and treating like cases alike.  As frustrating as it is for those who have waited eight years for better management of our Justice Department, the Department does need the benefit of additional time to reconsider its approach to state secrets.  Although Eric Holder has been confirmed by the Senate, the heads of the National Security Division, the Office of Legal Counsel, the Solicitor General and the Deputy Attorney General are all awaiting confirmation - until these key DOJ leaders are in place, the full scale deliberations and review that ought to precede sound and sober decision making cannot take place.  They ought to be expeditious, however.  The use of state secrets doctrine to block law suits has become a major litigating tactic and Senator Kennedy’s worry that it can be misused is justified.  The Ninth Circuit action may prompt the reintroduction of Senator Kennedy’s State Secrets Protection Act, which provides judges additional tools to scrutinize and control excessive uses of the doctrine.