Tuesday, February 10, 2009
State secrets privilege
Barack Obama's administration is pulling the same kind of crap that Bush used to do. He's saying that a valid lawsuit must be dismissed from the outset, based upon the state secrets privilege.
Now, if Glenn Greenwald is not to your taste, I can understand that, so let me explain what's at stake here.
Sure, there are times when the government has a valid interest in demanding the protection of state secrets during civil and criminal cases. No one disputes that. If we didn't allow this, enemies would find ways to involve our covert agencies in lawsuits and force them to reveal, well, anything.
But the way the privilege is supposed to work is this: someone demands evidence from the government, or tries to compel a certain bit of testimony, and the government says "no, we can't do this," and explains why this would reveal state secrets to the judge. The judge may negotiate terms, to see if there's a way to allow the evidence in an altered form - with sections blacked out, or a summary given, or assertions of pertinent facts.
There are certainly situations in which state secrets might cover so much evidence that there's no longer a provable claim made by the plaintiff, and the case must be dismissed. In the referenced case, dealing with kidnapping, the government might well be willing to assert that the identities of the kidnappers is a state secret, and that there is no way to prove that they were agents of the US government, and thus, there's no valid case against the US government.
That is a nasty, but possibly necessary, use of the privilege.
But this is different. This is the Obama administration saying "you can't try this case at all; you can't request information, and have us refuse every request by claiming state secrets; merely trying the case would be an unacceptable danger to state secrets."
This kind of thing is the executive branch using secrecy to avoid paying any penalty for violations of the law. It's exactly what disgusted me so deeply about the Bush administration... they broke the law, and then hid behind secrecy at every turn.
I have one single hope that I'm holding out for this. I'm hoping that Obama is insisting on doing this because he feels the courts must rule that this is an invalid use of privilege. If Obama is daring the courts to say that this is invalid, so that future administrations will not be able to engage in this behavior, then I can forgive him.
But right now, I'm thoroughly disgusted by his actions.