Obama's Double Secret State Secrets Strategy

Everyone is probably aware by now that the government is advancing some pretty far reaching state secret claims. Everyone is probably also aware that this violates the spirit of campaign promises regarding habeas rights. I want to explore the double secret strategies that Obama may or may not be employing in order to secretly assure that Presidential power is restricted and detainees do get habeas rights even though he appears to be doing the exact opposite.

Secret Theory One--Making Congress Do It

Ok it is congress' job to define what are and are not state secrets as far as statutory direction for the courts. This theory states that by advancing theories that are so egregious in their attempts to grab power that it will force congress to act. The people will rise up and hold tea parties against Obama's behavior and force action on the hand of congress. Obama will play the villain to give the democrats in congress the victory of rolling back executive power grabbed under Bush. Obama's refusal to say whether he supports the state secrets act is simply a way to keep the topic in the headlines. By drawing additional press it increases the visibility of the issue and the chances that Congress will act on the issue.

Secret Theory Two--Making the Judiciary Do It

By advancing these claims in the judiciary Obama provides the opportunity for test cases that may establish precedent that rejects the claims that the governments lawyers are making. By doing this in the courts Obama is effectively backdooring law because congress is unreliable. If the courts reject these arguments then future presidents will have little chance of making them stick because of the doctrine of stare decisis.

The state secrets doctrine is a judicial doctrine to begin with so maybe it makes sense to have Obama set up test cases for its reformation there instead of trying to get by the republican's in congress. By playing this out in the courts Obama and the democrats avoid dealing with the consequences of limiting what is and is not secret. This potentially avoids charges that Obama and the Dems are soft on terrorists as the rabid right already hates activist courts. Who are the courts after all to say what should and should not be secret? they lack the competency to make those types of decisions. Obama is simply playing the power grabber so that the courts reject his argument...its brilliant.

Secret Theory Three--He has to do it.

Obama doesnt actually want the power. Its just the job of the lawyers to make these arguments on behalf of their clients. Its their job to advance all possible defenses to these cases instead of admitting that the government spied on these people and owes them damages. Lawyers of course dont have to believe that this is actually the law to make these arguments. There is no ethical problem or penalty for misstating or exaggerating what a case says.

whats your theory?

Seriously though if you read the brief filed by the government it makes a largely procedural and practical argument that it is simply to hard at this time to conduct the type of operations needed to determine if the people held there deserve to be held there. Essentially it stats that because there are ongoing combat operations in that theater these people should be held until such time as the war is over.

The United States and its allies have a “clear and focused goal: to disrupt, dismantle and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future.” Id. The Court’s ruling, however, likely would divert the military from this critical mission.

its not a compelling argument.

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Just Say No to Benevolent Dictators

Seeing venezuala repeal their term limits on the office of the presidency has brought to mind something about executive power in our own country. This is the "trust me" idea. The idea that as citizens what we need is to trust our presidents to use their expansive power wisely and that by simply highlighting past abuses or saying that they wont happen again. I feel that simply airing dirty laundry from the Bush administration or discovering the truth is not enough to prevent future abuses by the executive. In this light i would like to see President Obama and the Congress take more concrete steps to prevent a repeat of the Bush administration in the future and to roll back the executive branch's power.

Dave Waldmen presented a question about Obama and the use of signing statements to avoid having to enforce the executive pay measures passed in the stimulus bill.

Whatever the differences, let's be clear about what it means that Congress has passed this set of restrictions, and President Obama is signing them into law tomorrow. Any changes he'd like to see made, he ought to seek to have made legislatively. After two weeks of seeing the stimulus bill watered down and slashed in a futile attempt to "reach out" to Republicans who all eventually gave him the finger, do you think we could maybe, possibly not have the President unilaterally take an axe to a wildly popular provision added to the package by members of his own party?

I'm not a presidential adviser, of course. But I'm thinking that maybe this ought to be approached with a bit more caution, and more signals need to be sent that the President is committed to making any fixes he wants through the legislative process. Any ambiguity isn't likely to help him when it comes time to sell another $2 trillion round of TARP funding in the coming weeks. The constant worry of Obama's most critical allies on the Hill with respect to the TARP is that Congressional oversight not fall by the wayside. If the White House's opening move on oversight is to announce its intention not only to make decisions unilaterally, but to brush aside enacted statute in doing so, we're going to be in for a bumpy ride.

I view presidential signing statements as unconstitutional. To me the represent the executive making a determination about what is and is not constitutional that is reserved for the courts. The presidents job is to faithfully execute the laws not to alter clear language and modify statutes for political purposes. If Obama where to make a signing statement that established his intent not to enforce the executive pay cap that would be an unconstitutional act. He would be making law, not enforcing it. When an executive simply rewrites the laws passed by a duly elected legislature he takes on the character of a dictator.

Similarly, when the executive branch labels a topic protected by national security and orders law suits thrown out they are acting in a dictatorial manner. The executive should not be able to simply throw out law suits based on alleged national security requirements without a review by the judiciary as the legitimacy of that assertion. Congress should pass legislation to end the governments assertion of such a broad state secrets provision.

These are just two of the most obvious examples of how a president acts in an undemocratic and dictatorial manner. It is now, when we have Obama as President that we need congress to step to the plate and firmly roll back, in law, the unitary executive style expansion of power that has been happening since Reagen. Congress during the Bush years managed to let the executive branch have whatever it wanted because Bush was Keeping us safe. This exact language is the language of subjects not citizens. The President is not a paternalistic figure who takes care of all our problems, Presidents are supposed to be leaders. Leaders are not empowered to simply do whatever they think is best, especially under our constitution. Presidents, even the good ones are not all powerful.

While i believe Obama is of sound moral and ethical character we are a nation of laws and not of men. As a country we cannot simply sit back passively as our elected leaders "do whats good for us". We need laws, accountability, and checks on a leader be it Obama or any one else. I do not want a benevolent despot who leads me like a sheep where he says is best, otherwise id be a conservative. We shouldn't need to trust our leaders not to torture or spy on us. Just say no to benevolent dictators.

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Holder and Obama State Secrets Doctrine Continue

Something that has made waves among the legal and civil libertarian blogosphere is the Obama administrations continuation of the State Secrets Doctrine. The doctrine was created as a means to shield things the government did not want the public from plaintiffs in lawsuits. As with everything else the Bush Administration took this powerful secrecy tool to the next level. There was a great hope that the Obama administration would curtail the practice. Things like this seemed to feed the hope,

"The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that is being invoked only in legally appropriate situations," Justice Department spokesman Matt Miller said yesterday.

"It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know," Miller said.

Yay right? Well not so much.

"In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration's "extraordinary rendition" program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration's treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantanamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

"Is there anything material that has happened" that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

"No, your honor," Mr. Letter replied.

Judge Schroeder asked, "The change in administration has no bearing?"

Once more, he said, "No, Your Honor." The position he was taking in court on behalf of the government had been "thoroughly vetted with the appropriate officials within the new administration," and "these are the authorized positions," he said."

What are we to make of this? Holder promised a review and apparently such a review was conducted here and it produced the same result as under Bush. Clearly then this must be a truly clear cut case for total secrecy. Again, not so much.

"A British 'resident' held at Guantanamo Bay was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon, it was revealed last night.

Binyam Mohamed, a former UK asylum seeker, admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail.

It was this confession that apparently convinced the CIA that they were holding a top Al Qaeda terrorist."

That this case was reviewed and the government felt compelled to maintain the same arguments is a horrifying indicator. The general problem is that there is seemingly an underlying need for a variation of the doctrine. As it was originally envisioned it was meant to keep select documents out of evidence because to reveal them would severely harm national security. While in theory this is a well founded doctrine in practice it has always been abused. The case that created it was in fact a government cover up. Glenn Greenwald has detailed the congressional efforts at reform here.

If we are going to have a doctrine of this nature it needs to be codified in law with clear intent and no wiggle room for the president. Some pieces of evidence maybe but entire cases? no. Even the government needs to be accountable to its people and embarrassment is no reason to deny justice.

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