Today Barack Obama adopted the Bush DOJ's position in Mohamed v. Jeppesen Dataplan, Inc., that the "state secrets" doctrine bars 5 individuals alleging that they were subjected to extraordinary rendition and/or torture from maintaining an action.
Glenn Greenwald labeled his post on the topic "Obama fails his first test on civil liberties and accountability -- resoundingly and disgracefully" and stated:
There is no viable excuse, or even mitigation, for what they did here.
and
They're embracing a theory that literally places government officials beyond the rule of law. No minimally honest person who criticized the Bush administration for relying on this instrument can defend the Obama administration for doing so here.
At the risk of failing the "minimally honest" test, I think the actions of the Obama DOJ are defensible.
First, what is the result of the Obama DOJ continuing the Bush argument?
Greenwald argues:
What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush's secrecy architecture in place, it ensures that any future President -- Obama or any other -- can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.
But is he really setting a precedent? Only if the 9th Circuit Court of Appeals agrees with the government's position. Greenwald argues at great length that what we are dealing with in this case is
one of the most radical and destructive tools in the Bush arsenal -- its wildly expanded version of the "state secrets" privilege
and yet, we are somehow to believe that the 9th Circuit will simply sign off on this wildly abusive use of the "state secrets" doctrine.
In fact, what would leave the Bush administration's "state secrets" precedent in tact would be for the Obama administration to voluntarily abandon the Bush argument and simply cough up the documents. Then the appeal would be mooted.
If the Obama administration voluntarily abandoned the Bush argument, the lower Court's precedent would stand and a future administration could come along an rely upon it. Instead, the Obama DOJ is forcing the 9th Circuit to address the limits of the "state secrets" doctrine and either affirm or reverse the lower court's decision.
If the "state secrets" argument is as patently frivolous as Greenwald and the ACLU maintain, does anyone think that the 9th Circuit will approve it?