As a candidate for the presidency in 2008, Obama’s campaign website took particular aim at the alleged secrecy of the Bush Administration regarding a concept known as the state secrets privilege. That website said: “The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the state secrets privilege more than any other previous administration to get cases thrown out of civil court.” In September 2009, the Justice Department, through Attorney General Eric Holder, instituted some reforms designed to reign in the use of the privilege although they can best be described as “window dressing.” The bottom line is that Obama, like Bush, is not averse to invoking this privilege when the mood suits him.
The state secret privilege is a relatively recent constitutional “invention,” but has antecedents going back almost to our founding. The first inkling involved the trial of Aaron Burr for treason. Then, the government objected to the introduction of a letter from General Wilkinson to Thomas Jefferson arguing that the letter would divulge state secrets that may endanger national security. The court never ruled on whether the letter was permitted, but later stated that if the letter did contain such information and if the government objected, then the letter could be suppressed. And the privilege remained dormant until 1953. In 1953, in the case of Reynolds vs. United States, the Supreme Court first enunciated a “state secrets” privilege with respect to the Executive branch. Three widows had sued the government over the crash of a B-29 in Georgia. Their husbands were private contractors on the flight testing sensitive electronic military equipment. The Court ruled that documents sought in discovery would reveal state secrets and that the government had the right to deny those documents in a civil case. Incidentally, it was later revealed that the crash of the plane was due to lax maintenance of the B-29 fleet and, essentially, there was nothing to compromise national security in the documents requested by the widows. Although remanded, the government later settled out of court with the widows.
It is difficult to determine the number of times the government has invoked the privilege as many times it is not made public. However, some analysis indicates that from 1954 to 2001, it was invoked 55 times, or about 1 time every year. To illustrate the difficulty of analysis, one website noted that from 2001 to 2005, the Bush Administration invoked the privilege 23 times but later analysis indicated it was invoked only seven times in that time span. In Obama’s case, despite his pledge to reign in the use of it, he has not only invoked it in cases on his watch, but perpetuated its use in cases that originated in the Bush administration. That is, Holder’s refined policy could have led to the conclusion that insisting in this line of argument violated that very policy, but the Justice Department simply continued the Bush policy under Obama’s watch and then, despite this policy, has used it since.
One case in particular stands out to illustrate the hypocrisy of Obama’s position- Mohammed vs. Jeppesen Dataplan. This case started under Bush and involves the practice of rendition whereby the CIA would transfer suspected terorists to foreign detention centers to interrogate them. Mohammed sued Jeppesen Dataplan, a subsidiary of Boeing, since they provided the flights for these suspected terrorists. At the time, rendition was just coming to light and the Bush administration did not deny the practice. Regardless, Bush invoked the state secret privilege and the District Court dismissed the case on those grounds. However, on appeal, the Ninth Circuit Court of Appeals reversed the District Court and ordered the government to hand over the requested evidence. Then along comes 2008 and Obama is now President. Instead of respecting the decision of the Ninth Circuit, which based upon his campaign rhetoric one would expect Obama to do, Holder appealed to the full Circuit to have the case reconsidered and again invoked the state secrets privilege. In fact, in open court the Justice Department announced that despite the new Holder policy in place, a change in administration did not mean a change in policy regarding the use of the privilege. The full Ninth Circuit then decided 6-5 to over-rule the three-judge panel and state secrets privilege prevailed and the case was dismissed. One needs to mindful of the fact that by 2010, the world was well-aware that the CIA was running this rendition program and that the subsidiary of Boeing was one among others providing the flights to foreign countries.
After the Reynolds decision in 1953, four basic rules emerged: (1) it is an Executive branch prerogative and must be invoked by it, (2) there is a formal procedure where a department or agency head must actually assert it in writing to a court, (3) judicial review of the assertion is critical, and (4) if invoked, the entire case need not be dismissed. What most upset liberals and libertarian conservatives with regards to Bush was that his Justice Department was using the privilege to dismiss entire cases. In other words, their use was broad while previous uses were specific. Admittedly, some of the cases were borderline and like Obama, some originated in the previous administration of Clinton. For example, there was one case involving the alleged CIA bugging of a DEA agent in Burma while another involved a racial discrimination in hiring lawsuit against the CIA. Thus, at least two of the alleged Bush transgressions were holdovers from the Clinton administration leaving Bush on the hook for a verifiable five instances.
Liberals particularly decry the use of this legal tool claiming that it places the Executive branch above the law simply by making a national security claim. Generally, probably because it was seldom used and then only with respect to specifics, courts deferred to the government. In effect, Bush took advantage of this reality. However, eliminating the two cases cited above held over from Clinton, four of the five remaining cases involved the war on terrorism and the means to combat it. The fifth case is tangentially related and involves a wrongful discharge suit against the FBI where the plaintiff argues she was fired because of whistle-blowing activity and that the government had previous knowledge of an impending attack on the World Trade Center. These cases involve rendition, domestic wiretaps of suspected terrorists or their allies, and alleged torture of suspected terrorists. The Obama invocation of the privilege involve the use of drone attacks, the targeting of American citizens suspected of terrorist activity, domestic eavesdropping and the alleged FBI infiltration of the Islamic community in Southern California.
But, just recently in 2012, Obama went one step further than Bush when he invoked the privilege in response to a Freedom of Information Act request regarding negotiations for a Western Hemisphere free trade agreement. Specifically, the request was for documents regarding the alleged favorability of certain foreign investors over other investors. The Obama administration determined that release of the document could potentially compromise national security (a trade agreement?) and that it hinders the Executive branch’s ability to carry out foreign policy and international relations. What makes this case even more interesting is the fact that the trade agreement in question never even made it off the ground. In a case like this had Bush been the President, one can see him invoking executive privilege, but certainly not state secret privilege.
In fact, Obama has gone even further. Another thing that Obama decried during the 2008 campaign was the use of signing statements by Bush. Yet, as it relates to this discussion, Obama is no stranger to the signing statement. In the Defense Reauthorization Act of 2012 signed in January of this year, Obama released a signing statement to the effect that certain provisions regarding Congressional oversight of programs and policies would be reviewed by his administration to determine if testimony by an executive branch official before Congress would compromise any state secrets. Put any other way, Obama is now invoking the state secrets privilege not only in the courts, but also with respect to Congress.
Liberals and Democrats were quick to criticize George W. Bush for the policy of a unitary executive. That idea, taken to its extreme, holds that neither Congress nor the courts can tell the President what to do or how to do it, especially in matters of national security. Although Bush probably came the closest to open adoption of the idea, it has been expressed as far back as the administrations of Jimmy Carter and Ronald Reagan. What is apparent is that Obama is trying to take this to a new level by talking out both sides of his mouth. Granted, Bush had 157 signing statements over two terms while Obama has had 21 slightly into his second term and would be on a pace considerably below the Bush levels. Quantity is one thing, but quality another. Some of Bush’s statements are rhetorical in nature and do not challenge enforcement or interpretation of the statute. And regarding interpretation, if Congress was to actually write a law that was clear and specific rather than pushing responsibility off on Executive branch agencies, then perhaps there would be less need for these signing statements.
The problem is the hypocrisy and naivete of Obama. Obama rode into office in 2008 on two white horses named “Hope” and “change” and soon entered the real world which, despite bowing to foreign leaders, apology tours, denial of American exceptionalism through some relativistic terminology, and gift giving consisting of Ipods pre-loaded with your speeches, was a rather dangerous and scary place. Despite all his rhetoric of resetting relations with the Arab world or Russia or China, he found that there are still people out there who want to see nothing short of the humiliation if not destruction of the American ideal. He also found out that many of the policies and programs which George W. Bush instituted had kept America safe from future terrorist attacks. This writer does not wish to litigate rendition, drone attacks, domestic wiretaps of suspected terrorists, intercepted e-mails, the PATRIOT Act, alleged torture by CIA interrogators, or Guantanomo, Cuba. What I wish to make painfully clear is that campaign rhetoric is one thing, but Obama is not the principled president he and his acolytes think he is.
Regarding the use of signing statements and invocation of the state secrets privilege, on a certain level, this writer has no problem with either per se. Obviously, the President, as head of the Executive branch is tasked with first upholding the Constitution and secondly faithfully executing the laws. If after careful legal deliberation they believe the law is constitutionally flawed, then they can certainly state so in a signing statement. Likewise, if revelation of a secretive program would compromise national security, state secret privilege should be used. The problem as concerns this Administration is that it speaks out of both sides of its mouth. While criticizing Bush, this administration had several opportunities to walk back what they criticized and railed against in the 2008 campaign and what they touted in 2012. The actions certainly do not match the words and that is the definition of hypocrisy. As I stated, maybe Obama learned that the ideal he described while campaigning did not match the reality of today’s world and its problems and that is certainly born of his naivete in the area of foreign policy especially, and the war on terrorism specifically. Yet, he hides behind a veil of alleged openness whereas his administration is certainly no more “open” than that of Bush. In fact, statistics show that the number of documents classified as “secret” has increased under Obama and that the volume of material declassified has decreased under Obama. Whether it is the hypocrisy illustrated here or the lack of openness during the health care debacle, Barack Obama is certainly no better or worse than his predecessor when it comes to openness in the government’s Executive branch.