President Obama ditched the enemy combatant label--but only for those on Guantánamo, and the definition stayed virtually the same except for one word. On the "state secrets" privilege, the Obama's position is not just similar, it's identical, and arguably worse. The state secrets privilege allows the government to exclude evidence in a civil case on grounds that it jeopardizes national security--and is headed straight for sinking the only viable challenge to secret surveillance.
One of the most viable challenges--one of the ONLY viable challenges--to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity, the Al-Haramain Islamic Foundation, which alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations. That's because the government inadvertently sent Al-Haramain an NSA log of intercepted calls.
Obama's campaign rhetoric was pro-transparency, criticizing the Bush administration because it
had ignored public disclosure rules
and invoked the state-secrets privilege too often. But now Obama has adopted the same expansive arguments that Bush used to cloak one of the most controversial programs of the Bush era: warrantless wiretapping.
This is the second time Holder's Justice Department has followed in Bush's footsteps claiming the state-secrets privilege. And Obama goes even further! His Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but proposed that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.
While there are legitimate reasons for invoking the state-secrets privilege (e.g., to keep from disclosing government sources and methods of intelligence gathering), this is not one of them. We already know what happened. Many here will note in Obama's defense that his administration made a number of pro-transparency moves in its early days: ordering Guantánamo shuttered, relaxing the Freedom of Information Act, etc.
But when Obama promises to use signing statements judiciously, and then two days later issues a controversial one; when Obama gets credit for ditching the "enemy combatant" label, but doesn't substantively change the definition or forego his right to apply it; when Obama has evidence of torture on a silver platter, tied up with a bow, with a cherry on top, but inexplicably refuses to prosecute, much less investigate, war crimes, I'm going to complain.
This opinions expressed herein do not necessarily reflect those of the Government Accountability Project.