For weeks, there has been confusion about President Obama’s position on “State Secrets,” an informal legal privilege to protect classified information that President Bush invoked repeatedly in an effort to derail lawsuits in connection with his secret warrantless wiretap program and rendition programs. During the campaign, Obama criticized Bush for using the legal argument, but since arriving at the White House, Obama’s attorneys at the Justice Department have repeated the same Bush court tactic in three ongoing lawsuits. Liberals in Congress, including Wisconsin Sen. Russ Feingold, have disapproved. And on Monday, the Ninth Circuit Court of Appeals rejected the Obama/Bush position as an unsound attempt to “cordon off all secret government actions from judicial scrutiny.”
In the meantime, many civil liberties advocates have reserved judgment on Obama, saying they still hoped that the Justice Department’s position in court, which had been tailored for litigation, would not turn out to be the same as the Obama Administration’s policy position. It turns out their optimism was justified.
During Wednesday’s press conference, I asked Obama about his views on State Secrets, and he distanced himself from the legal positions his administration has taken in court. “I actually think that the state secret doctrine should be modified. I think right now it’s overbroad,” Obama said. So why had Obama’s lawyers taken the same position in court filings as President Bush?
“Keep in mind what happens,” Obama continued, “[W]e come in to office. We’re in for a week, and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We’ve got to respond to the immediate case in front of us.”
Obama did not say exactly how far the privilege should be narrowed, but he did drop some hints that point to the direction he would go. He said there should be “ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.” This is, in rough terms, the idea behind the State Secrets Protection Act, a bill that has been introduced in the Senate by Feingold and other Democrats. Though Obama has not yet said whether or not he would support that bill, he clearly indicated Wednesday that he is ready to work on negotiating a new standard with civil libertarians.