When State Secrets Aren't State Secrets

When State Secrets Aren't State Secrets
By Marc Ambinder | Atlantic Monthly

In the words of ACLU attorney Ben Wizner, a lead counsel on behalf of the five detainees suing Jeppesen Dataplan, President Obama now "owns the state secrets privilege."

Wizner is correct. Remember precisely what it is that the government wants the 9th circuit to decide: that the U.S. government can dismiss any federal or civil case before it reaches the phase of discovery simply because the government asserts that the national security interests of the United States would be compromised if the case proceeds.

That's the same expansive state secrets privilege that presidents for 50 years have enjoyed -- but it's precisely the privilege that Obama, not two months ago, expressed an anxiety about: "I actually think that the state secret doctrine should be modified. I think right now it's over-broad." Obama did not elaborate. During the presidential campaign, he criticized the use of the privilege as a justiciability doctrine to dismiss entire cases, rather than as an evidentiary doctrine, used to prevent the disclosure of highly-sensitive pieces of evidence.

Why is Obama hardening up his position? If the privilege in weakened, it exposes the government to perpetual liability resulting from the mistakes of the past eight years. Read more.