Posted by Orin Kerr:
The Obama Administration, Middle Ground, and the State Secrets Doctrine:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234246394
Jonathan[1] links below to the news coverage of the Ninth Circuit oral
argument at which Doug Letter, an attorney for DOJ, announced that the
Obama Administration had elected not to change its position on the
state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an
"extraordinary rendition" case.
It's always hard to know what's going on in a new Administration.
But my initial reaction is that I'm not particularly surprised. Here's
my thinking. Much of the leadership of the Obama Justice Department
served as officials from the Clinton Justice Department. But the
Clinton Justice Department wasn't necessarily modest when it came to
claims of executive privilege. If you'll let me paint with an
extremely broad brush, the Clinton DOJ mostly took a case-by-case,
middle ground approach to these sorts of issues. My impression is that
from the perspective of former Clinton officials -- the officials back
in power -- what made the Bush approach so objectionable was that it
its positions were extreme. Instead of trying to strike a balance,
invoking these doctrines in some cases and not others, the
Addington/Yoo/Cheney approach was to invoke them in every case. From
this perspective, the goal, as reflected in [2]DOJ's announcement
today that it will review every state secrets case, should be a return
to a case-by-case evaluation of when the state secrets doctrine is
appropriate.
If the Mohamed litigation had arisen in the Clinton years, I would
have expected the Clinton DOJ to assert the state secrets privilege.
Even if you condemn what happened in extremely strong terms, the
resulting litigation seeks to expose the details of a top secret
program involving cooperation with foreign governments that are
crucial allies in fighting terrorism. If the secrets get exposed in
this litigation, it seems quite plausible that cooperation in the
future for other critical programs will be much more difficult. If
you're in a position of representing the executive branch, that's a
very weighty concern even if you condemn what happened under the
previous administration.
I should add that this isn't necessarily a defense of the Obama
Administration. Some readers take the principled view that the state
secrets privilege either shouldn't exist or should be dramaticaly
limited. If you take that view, then the Obama Administration's
position remains deeply troubling. My point is only that I think the
folks running DOJ are cut from a more institutional cloth: To borrow
from Bill Clinton in another setting, they likely see themselves
trying, for better or worse, to take the state secrets doctrine and
"mend it, not end it."
References
1. http://volokh.com/posts/1234217797.shtml
2. http://uk.reuters.com/article/usPoliticsNews/idUKTRE5187SK20090209
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