Among other legacies of the Bush administration, President Obama must confront his predecessor’s use of the state secrets privilege. The state secrets doctrine protects information from disclosure when “there is a reasonable danger that compulsion of the evidence will expose matters which, in the interests of national security, should not be divulged.” It is typically applied during litigation, when one party seeks to obtain documents from its adversary though the discovery process and the government objects on national security grounds.

First announced in 1953 by the Supreme Court in U.S. v. Reynolds, the state secrets privilege has been used by the executive branch to prevent the release of a wide range of information. The frequency of its use, and the deference shown by Congress and the courts when the executive branch asserted this privilege, fed its growth over the past half-century. Because of his overall penchant for secrecy, President George W. Bush used the privilege vigorously, and the events of 9/11 occasioned numerous opportunities for him to do so.

Pledging greater transparency and adherence to the rule of law, Obama announced recently that his administration will impose restrictions on its own use of the state secrets privilege. Will the Obama administration break decisively with the last half-century of increasing executive power, or will it continue to invoke national security to conceal the reasons behind and the impact of its actions?

Abuse of Privilege

From its inception, the state secrets privilege has carried with a great temptation for abuse. It is costless to assert and, until recently, virtually never questioned by the courts. When a president claimed that the release of certain information would threaten national security, courts accepted that claim on its face, often without even requiring that the government produce documents for inspection by the judge alone, in chambers. The talismanic invocation of “state secrets” ended the inquiry, and no one could test the validity of the secrecy claim.

Unsurprisingly, not every piece of protected information was truly a “state secret.” In fact, as Louis Fisher has pointed out in his book In the Name of National Security, the case that produced the state secrets doctrine — the aforementioned Reynolds case — was itself an instance of government fraud. Reynolds arose out of a military plane crash: The victims’ families sought information about how their loved ones died, and the government objected on the grounds that releasing this information would endanger national security. Ultimately, the Supreme Court agreed, and the state secrets privilege was founded in U.S. law.

In the late 1990s, however, the “secret” records surfaced on the Internet and it became clear that they contained nothing secret, nothing that would have threatened national security if released. Of course, the government knew the contents were harmless but nonetheless strenuously fought their release. Thus, the very origins of the state secrets doctrine are highly suspect.

The Bush administration’s anti-terror initiatives occasioned a number of controversial uses of the state secrets privilege. In response to lawsuits, the administration used the privilege to protect information concerning warrantless wiretapping and extraordinary rendition (i.e., capturing terror suspects and sending them abroad in secret to be tortured). In El-Masri v. U.S., for example, the Court of Appeals for the Fourth Circuit affirmed dismissal of a suit brought by a German national who claimed that the CIA seized him in Macedonia and sent him to Afghanistan, where he was confined and tortured for several months. El-Masri was released when the CIA realized that he was an innocent person seized by mistake. The government said the suit had to be dismissed because they could neither confirm nor deny the existence of the rendition program without endangering national security. The Fourth Circuit agreed.

Similarly, the courts dismissed lawsuits challenging the Bush administration’s warrantless wiretapping activities on state secrets grounds. Some of the suits were brought directly against the administration, and some were brought against the telecom companies that assisted the government by providing call data and records. In the telecom suits, the Bush administration intervened, making the United States a party to the suit, and then moved for dismissal. The result in these cases was to shield the administration from liability for its warrantless surveillance, which many believed was a violation of federal law. In 2008, Congress went a step further, passing a telecom immunities law shielding the telecom providers from liability.

These surveillance and rendition cases are only a few examples of how Bush officials used the state secrets privilege. The full list is more extensive, as Bush used the privilege more often than any president in history. And neither Congress nor the federal courts, it seemed, were willing to impose limits on the executive in the state secrets context.

The Tide Begins to Shift

Near the end of the Bush presidency, however, signs appeared that the legislative and judicial branches were growing increasingly frustrated with executive overreaching via state secrets. In 2006, a federal district court in California denied the government’s motion to dismiss Hepting v. AT&T, one of the warrantless wiretapping suits. The trial judge ruled that since the government had already publicly acknowledged warrantless monitoring of overseas telephone calls, that activity could no longer be considered a state secret. Though the Hepting case was later rendered moot by the telecom immunities law, the ruling signaled a shift in judicial attitude, for judges virtually never rejected state secrets claims.

Two more rulings followed from the Court of Appeals for the Ninth Circuit: one in the Al-Haramain case (another challenge to warrantless wiretapping), and another in Mohamed v. Jeppesen Dataplan. Jeppesen was another challenge to “extraordinary rendition,” brought this time against the Boeing subsidiary (Jeppesen) that arranged the flights to overseas torture locations. In both these cases, the Ninth Circuit rejected the government’s claim that the “very subject matter” of the case was a state secret. Instead, the court allowed the cases to proceed. The plaintiffs would have the chance to prove their case even though certain pieces of evidence might properly be called state secrets and shielded from disclosure later on, as the discovery process unfolded.

In 2007 and again in 2009, congressional sponsors introduced the State Secrets Protection Act. Though the title of the legislation suggested protection of state secrets, the text of the bill indicated that it was, in fact, an attempt to institute limits to presidential secrecy. Among other provisions, the bill set procedures by which judges could examine allegedly secret information in chambers, rather than relying on the self-serving assertions of government lawyers on the need for secrecy. This legislation remains pending.

Federal judge Royce Lamberth delivered the harshest rebuke to the government in a state secrets case. “The deference generally granted the executive branch in matters of classification and national security must yield,” Lamberth wrote, “when the Executive attempts to exert control over the courtroom.” Continuing for more than a decade, this longstanding suit by a DEA employee alleged that the CIA had illegally wiretapped his residence. Initially dismissed on state secrets grounds, the case was reinstated when the court learned that the government lied, falsely asserting that a certain CIA employee was a covert operative when it knew he was not. Lamberth also sought sanctions against the officials involved. When the case resumed, the government reasserted the state secrets privilege to cover, among other things, the matter of a government-issue coffee table that allegedly contained a listening device. Judge Lamberth noted that this equipment could hardly be considered a state secret since a similar table stood on display in the Spy Museum in Washington, DC.

Obama and State Secrets

President Obama initially indicated that he would adopt the Bush administration’s position on state secrets. In the Al-Haramain and Jeppesen cases mentioned above, the administration contested the adverse judicial rulings, adhering to the Bush administration’s legal posture.

However, on September 23 Obama announced a new state secrets policy, adopted in advance of any new action by Congress or the courts. The policy requires that several procedural steps must be followed whenever an executive branch official seeks to assert state secrets privilege. The attorney general, as well as a review committee, must be involved in the decision to approve a state secrets assertion in any given case. Also, the executive must report regularly to congress on the cases where the privilege is used. The state secrets privilege may not be used to conceal government malfeasance or to prevent embarrassment, and it must be “narrowly tailored” to produce the least negative effect on the rights of litigants.

These self-imposed limitations on executive power are unprecedented in the state secrets arena, and their announcement in a publicly released memo engenders confidence that they will be followed. To the same end, the administration had already released several torture-related memos earlier in the year, claiming that their release was required by the “rule of law.”

It’s easy to see why the state secrets question has been the subject of such intense controversy: There are very strong competing interests on both sides. Presidents will always cite the need to keep some information secret (e.g., the plans for invading Normandy Beach during World War II). On the other hand, access to information about executive branch activities is crucial in a democracy. Obama’s announcement of a new policy that balances these concerns is encouraging. Whether he can resist the future temptation to invoke the national security argument to conceal a much wider range of executive actions — as the Bush administration did — will be a true test of his commitment to civil liberties and the rule of law.

Robert Pallitto is an assistant professor of political science at Seton Hall University, a former trial attorney, and a contributor to Foreign Policy In Focus. He is co-author, with William Weaver, of Presidential Secrecy and the Law (Johns Hopkins University Press, 2007), and he is currently working on a book about torture in U.S. history.

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