Despite Eric Holder's assurances to Russ Feingold that the Obama administration would pursue a more limited use of the "state secrets" privilege the Bush administration used to prevent judicial scrutiny of its illegal behavior, the Obama administration has been as cavalier in the use of the privilege as its predecessor. In three cases, Jewel v. NSA, Al-Haramain Islamic Foundation v. Obama, and Mohammed v. Jeppesen Dataplan, the Obama administration has asserted the privilege in order to block scrutiny of domestic surveillance, warrantless wiretapping, and extraordinary rendition. Civil libertarians have been howling about the Obama administration's behavior for months, and after the administration asserted the privilege in the Jeppesen case, Patrick Leahy introduced legislation to curb its use. In February.
Meanwhile, the mainstream press has recently begun to cover the Obama administration's assertions of the state secrets privilege more aggressively, but the volume of coverage is miniscule compared to say, Obama giving the Queen of England an iPod that she asked for. The angle of coverage has been to evaluate the issue from the point of view of mere political hypocrisy, rather than delving into what exactly the Obama administration has been hiding. Little of it questions the underlying premise asserted by both the Obama and Bush administrations: The government can break the law as long as it does so in secret, and it has the authority to determine what and what isn't secret. What we're talking about here is the government's ability to break the law and then shield itself from accountability by invoking national security. This issue deserves more than cynical chants of "this isn't change we can believe in". Don't get me wrong, I'm happy that the mainstream press has picked up the issue. But they should be skeptical of the government asserting the authority to break the law as long as it does so in secret, not simply making low-rent hypocrisy claims. It matters that Obama has taken Bush-like positions on this issue, but it matters because the government shouldn't be allowed to assert this kind of authority so arbitrarily, not merely because Obama is a hypocrite.
At any rate, this has gone far enough. Congress and the Democrats should be working to pass legislation regulating the use of the state secrets privilege, because the administration's word is not to be trusted on this issue.
-- A. Serwer
