Neither liberals nor Republicans have yet figured out President Obama. Each expected him to be the president each imagined he'd be, as defined by each, and he has turned out different. Both are rankled.
A Supreme Court filing from the Obama administration last month has set off alarm bells on the left. The filing was a friend-of-the-court brief, and it mostly dealt with an excruciatingly technical question about the attorney-client privilege. But its last five pages were about the state secrets privilege, which was not at issue in the case. That privilege, a favorite tool of the Bush administration, allows the government to shut down lawsuits by invoking national security.
The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution.
No socialist, as Republicans warned and continue to repeat, he is also turning out to be less liberal than the liberals expected.
On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.
The Administration has been playing it very cautiously.
A federal judge in San Francisco, for instance, last year rejected a version of the constitutional argument in a case brought by Mr. Eisenberg’s client, Al-Haramain Islamic Foundation. The foundation said it had been subjected to illegal surveillance in the Bush years. Both the Bush and Obama administrations have argued that the charity’s suit must be dismissed under the state secrets privilege.
This is where the issue of the pedigree of the privilege really matters. If the privilege is an ordinary common-law rule of evidence, Congress is probably free to alter it. If it is required by the Constitution, things get more complicated.
The judge in San Francisco, Vaughn R. Walker, ruled that Congress had indeed overridden the state secrets privilege when it enacted the Foreign Intelligence Surveillance Act of 1978. The judge said that by setting up a secret court to consider requests for intelligence surveillance, and by setting up other domestic regulations of foreign intelligence surveillance, “Congress intended for the executive branch to relinquish its near-total control over whether the fact of unlawful surveillance could be protected as a secret.”
The government’s recent brief cited the leading Supreme Court decision on state secrets, United States v. Reynolds in 1953, but it said nothing about Judge Walker’s reading of it.
This last case is an interesting one: It concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.
When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.
Nixon also claimed national security, often.
Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.
The recent brief from the Obama administration cited just one decision directly invoking the Constitution as the basis for the state secrets privilege. Other courts have said the state secrets privilege is rooted in the common law.