Some diarists and Glenn Greenwald (here and here) have done an admirable job of discussing the Obama Administration's decision to continue to assert the state secret privilege in the case of Mohamed et al v Jeppesen Dataplan, Inc. Some people have defended the Administration by saying that either it did not know about the issue, or did not have enough time to study it, and so we should give Holder, et al. the benefit of the doubt on this one. I'd like to try to refute that.
I have spent a lot of time over the last four years or so litigating issues relating to the detention of prisoners at GTMO and in other US sites. I think that there are some pretty compelling reasons that the Obama Administration should not get the benefit of the doubt that its position in Jeppersen was inadvertant or was not considered.
First off, what is the state secret privilege? The doctrine arose out of the case of U.S. v. Reynolds, 345 U.S. 1 (1953), in which a B-29 bomber crashed in Georgia in 1948. The widows of the service men who died in the crash filed a lawsuit against the government and, as part of their case, they sought copies of anAir Force accident investigation report. The government, refused to disclose it, claiming it would reveal "state secrets" that would damage "national security".
After the trial court rejected the government's position, the Supreme Court reversed and held that the government could withold the information, even if relevant or material, without submitting it to any court to review the validity of the claim that the information could damage national security. That is, the Supreme Court said that the government could say: No, we won't give the information and you have to trust us concerning our explanation.
As it turned out, though, the government's claim about the report in Reynolds was completely bogus. There was no state secret, and disclosure of the report in the litigation would have been embarassing, but not damaging to national security.
(For some background on Reynolds, see Barry Siegel's book, Claim of Privilege.)
The first reason to think that the Obama DOJ did not take the position in Jeppersen without understanding the stakes is this: The transition team sent out requests to attorneys working on these kind of cases to list the cases, the issues, the procedural posture and any upcoming deadlines that would have to be met in the first few weeks of the New Administration. I submitted a description of one of my cases (not Jeppersen), and the deadlines that were coming up. My point is that the folks litigating Jeppersen would have been aware of the need to bring the case to the attention of the transition team and Holder before the inauguration, and almost certainly did so. It beggers the imagination that as high-profile a case as the Jeppersen case, one in which a specific and contested claim about state secrets has been centrally at issue, either did not make it onto the transition team lists or did not otherwise come to the attention of Holder's people.
It also beggars the imagination to think that a line attorney working in an appellate capacity at DOJ would have represented to the Ninth Circuit Court of Appeals that the position of the Bush Administration in the case had been reviewed that the Obama Administration had decided to take the same position, if that were not the case.
So I think it's pretty clear that Obama's DOJ knew of the case, reviewed it, and decided to adopt the Bush position as their own, at least for the time being.
But what if Obama's people felt that they didn't have the time to look at the case enough to make the decision? The usual move in such a circumstance is to request an extension from the Court from the upcoming deadline so as to reconsider the Administration's position. In at least one of my cases, the DOJ asked for (and got) a substantial extension in which to reconsider its position. In Jeppersen, the government's briefs had almost certainly already been filed. But the Obama DOJ has already withdrawn briefs in cases pending in federal court in order to reconsider the positions taken, and nothing would have stopped them from doing this in Jeppersen.
It also cannot be the case that the state secrets doctrine was not understood by folks in Obama's DOJ as an important issue. The abuse of the doctrine by the Bush Administration (and other administrations before it) has been one of the most discussed legal issues in the past few years. (Wikipedia link) It has received the attention of present and former members of the OLC, various law professors, and advocacy groups. The general consensus is that assertions of the state secret privilege have very often served merely to insulate the government from embarassment, and not to protect truly sensitive information vital to national security. There has been enough focus on it so that Congress -- specifically Senators Leahy, Spector and Kennedy -- have drafted and considered legislation to curtail its use. (Link) This is not the sort of thing that slips through the cracks.
The question here, of course, is not whether there is or is not material at issue in the Jeppersen case over which a state secret claim could be asserted. I can't know that, and probably no one outside the DoJ/Intelligence Community/White House can know that for sure. But that is not really the issue. A significant difference between state secret assertions and other claims of privilege, is that in general claims of privilege can be reviewed by the judge in camera to see if there is a basis for the claims. In most cases where the government claims the state secret privilege, the judges do not see the information claimed to be a a secret. They merely defer to the executive. So the privilege, as generally asserted, is subject to no meaningful review. It is merely a case of the Administration saying "trust us."
The idea that we should simply trust our political leaders in these sorts of cases has worn extremely thin, especially after Bush's regime of toxic secrecy. That trust has to be rebuilt, and Obama does not have a huge amount of credibility in balancing cases that pit the public's need for transparancy against covering up embarassing abuses of government power. Obama's vote to grant retroactive immunity to telecoms that violated the FISA -- even after he swore he would filibuster any such attempt to hide wrongdoing, cost him the benefit of the doubt here.
The real issue is that it is not healthy to accede to assertions that we must take what the Executive says on blind faith. The trust that Bush squandered between the government and the people has to be rebuilt. Obama has to show us that he is worthy of that trust -- not merely assert that we have to trust him and his team.
For those of you who are less familiar with how our legal system usually deals with information that might be damaging if disclosed in the course of a legal case, it is worth noting that many, if not all, cases operate under confidentiality regimes that prevent the parties from freely disseminating the evidence adduced in discovery or at trial. The parties can enter a contractual stipulation or the court can enter an order to protect information that legitimately could be damaging if disclosed. There is no reason to think that a federal judge could not craft adequate protections for sensitive information to prevent its inadvertant or improper dissemination.