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Major Defeat for Bush/Obama Position on Secrecy

The first sign that the Obama DOJ would replicate many of the worst and most radical arguments of the Bush DOJ was in the Jeppesen case, a lawsuit brought by five victims of the CIA's rendition and torture program (including Binyam Mohamed).  The Bush administration had argued that the entire "subject matter" raised by the lawsuit (the rendition program) was such a gravely important "state secret" that the court could not consider any lawsuit relating to that issue.  That argument was a by-product of one of the Bush DOJ's most controversial actions:  its radical expansion of the "state secrets" doctrine.  Whereas that privilege was once an evidentiary privilege enabling the Government to declare specific documents too secret to use in litigation, the Bush DOJ converted it into an all-purpose shield allowing them to have entire lawsuits dismissed even wherethe lawsuit alleged that the President's conduct was illegal.  

The District Court in Jeppesen had accepted the Bush DOJ's argument and dismissed the lawsuit, and on appeal in February, the Obama DOJ -- to the obvious surprise of the judges and in a reversal of everything Democrats claimed they believed during the Bush presidency -- told the Ninth Circuit panel that they embrace the Bush DOJ "state secrets" position in full (a position they've since repeated in other cases).

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret.  Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security 

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law:


Read that last sentence -- that, said the court, is the power of lawlessness which the Obama administration was attempting to preserve for itself.

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."  Quoting the Supreme Court's language in Boumediene -- which in 2008 declared unconstitutional the Military Commission Act's attempt to abolish habeas corpus -- the court today noted that equally imperative for the court is to preserve "freedom's first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."  The court concluded that applying the secrecy privilege on a document-by-document basis, rather than allowing the Government to abuse the privilege to bar citizens from vindicating their legal rights in court, preserves all of those competing interests.  In short, presidential assertions of secrecy are neither absolute nor supreme.

Today's decision is a major defeat for the Obama DOJ's efforts to preserve for itself the radically expanded secrecy powers invented by the Bush DOJ to shield itself from all judicial scrutiny.  Given how Obama recently emphasized how committed he is to defending government secrecy powers in court, it it highly likely the Obama DOJ will attempt to appeal this ruling further -- to a full 9th Circuit panel and/or to the Supreme Court -- but in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted).  Finally, these 5 torture victims will have their day in court.

* * * * *

I'll have an interview posted shortly with the ACLU's Ben Wizner, lead counsel for the plaintiffs in this case.

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Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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