Marc Ambinder's qualified defense of the Obama administration's abuse of the state secrets privilege strikes me as very strange. Ambinder writes, "[c]learly, the Obama Administration does not believe that the state secrets privilege ought to be taken out of the government's tool box when facing civil suits." Well why would that be clear? They've said that, but in the one case so far where it's become an issue they took the same position as the Bush administration. Ambinder adds:
So where does this leave the policy itself? My informed guess is that the Obama Administration will find cases to revoke the privilege's assertion. They will do so publicly and with great fanfare. They will simultaneously announce a new set of restrictions on when and how the privilege should be invoked. They will do so on their own timetable (to the extent that the courts don't force their hands), and they will do so in conjunction with the broader ideal of reconciliation and accountability. They're just not ready to do so 22 days in, and the particulars of this case weren't, in any case, ideal for them.
It's not an issue of the particulars of the case. The state secrets privilege is meant to obscure specific pieces of evidence in particular cases, not to dismiss them entirely. This is an abuse of the privilege--to say that they don't intend to do so in every case they take is somewhat meaningless, it's like saying you don't intend to beat your child into unconsciousness every day. Abusing the state secrets privilege less than the previous administration should not be the goal here.
The Telegraph is reporting that Obama was given a letter from some of the lawyers representing Binyam Mohamed, and the most explicit references to his treatment--such as the slicing of Mohamed's genitals with a scalpel--were redacted. Andrew Sullivan is right to ask who made the decision to redact portions of the letter, as with the Pentagon's release of somewhat inflated Gitmo recidivism numbers, it would seem that there are people within Obama's administration who are opposed to his agenda as stated. But it almost doesn't matter, the president delegates authority because he can't make the decision personally in every circumstance. Justice Department lawyers invoked the privilege, and by doing so, backed out on Attorney General Eric Holder's pledge to Russ Feingold that the privilege would be invoked only in "legally appropriate situations."
Also somewhat frustrating is the contempt that filters through Ambinder's post for the people asking questions about the Obama administration's behavior. "[T]hey're not motivated by what civil libertarians may write on their blogs," Ambinder snarks at Glenn Greenwald. (John Brennan might disagree.) "The particulars of the case weren't ideal for them," and they will revoke the privilege "on their own timetable" and "with great fanfare" as though this were about appearances rather than reversing the abuse of the state secrets privilege under the Bush administration. The tone of his response mirrors the contempt Bush's people had for anyone asking questions about their behavior, the idea that fighting terrorism is hard and requires extraordinary measures, something the idealists demanding accountability and respect for the law couldn't possibly understand.
At any rate, the State Secrets Protection Act put forth by Patrick Leahy, Arlen Specter, Ted Kennedy and Russ Feingold should do what thus far, the Obama administration has been unwilling to do and restrict the use of the privilege to legally appropriate situations. And if Republicans in Congress, who all but crowned Bush czar during his tenure, want to make an about face and decide that the executive branch requires oversight, I won't hold it against them.
-- A. Serwer
