Emily Bazelon and Dahlia Lithwick discuss the state-secrets privilege and other issues facing Obama's Justice Department.

Real-time discussions with Slate writers.
Feb. 12 2009 12:39 PM

Courtroom Confidential

Emily Bazelon and Dahlia Lithwick take your questions on the state-secrets privilege and other tough issues facing Obama's Justice Department.

Slate senior editors and legal writers Emily Bazelon and Dahlia Lithwick were online at Washingtpost.com to chat with readers about the thorny issues the Obama Justice Department has inherited from Bush, including the new administration's apparent adherence to Bush's state-secrets privilege. An unedited transcript of the chat follows.

New York, N.Y.: Is it possible the reason for Obama's defense of the Bush version of the state secret doctrine is so a court (maybe, The Court) can definitively reject it? I'm grasping for straws here...

Dahlia Lithwick: Hi there New York and hallo everyone! Thanks for signing on today. New York I am all for grasping at straws but I doubt the Obama Administration has high hopes that the John Roberts court is the place to turn for decisions to curtail Executive Branch excesses. It would have been far easier to simply jettison the state secrets privilege or go back to using it in a limited way. No, I think I agree with those who believe the Obama Team either didn't take the time and think this one through, or has some complicated international-diplomacy rationale for wanting to keep this case under wraps. That said it would be nice if some court someplace took this issue on.

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New York: Hello, Emily and Dahlia—I appreciate Dahlia's analysis of why Obama's DOJ might continue to spew the old Bush state-secrets arguments. But has anyone actually posed this question to Attorney Gen. Eric Holder? Saying that they're re-evaluating these cases doesn't speak to why the privelege is being used so expansively in Mohamed v. Jeppesen. Thanks.

Emily Bazelon: You're right, it doesn't. Holder hasn't answered this question, as far as I know. Clearly the administration has decided, at this point, that the review of the state secrets privilege in all the cases won't change its mind in this case. I suppose that could change down the line, but for procedural reasons I doubt it. It would have been easy for the govt to ask for a continuance before the Ninth Circuit. Changing the position it took in court this week would be odder, and confusing.

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New York, N.Y.: Is it possible that we're just seeing the dead hand of the Bush Justice Dept. at work, and that Obama's people hadn't yet had a chance to restaff and articulate their new policies when this argument was made?

Emily Bazelon: I don't think so. The Obama lawyers are really smart, and some of them were part of the transition. Also, some of them had been thinking about this case, as academics or practitioners, during the Bush administration. And if they'd just wanted to buy themselves time to make sure they understood all the details and issues specific to this case—the classified aspects they didn't know about until they got into office—they could have just asked the court for more time.

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Princeton, N.J.: Well, Obama flunked his first test on the State Secrets Doctrine. Here the Wikipedia entry. Note the second paragraph:

"The privilege was first officially recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The court held that only the government can claim or waive the privilege, and it 'is not to be lightly invoked', and last there 'must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.' The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive."

As a footnote to the founding case establishing the privilege, in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case.

Emily Bazelon: Yes, you're right. A few years ago, I edited a great piece by Michael Freedman about U.S. v. Reynolds and how it came to light that the govt was really engaged in a cover up, not some worthy protection of state secrets.

This month, Garry Wills has a good review of two new books about Reynolds, in the New York Review of Books. The history makes clear that this is not a doctrine with honorable origins.

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Arlington, Va.: Seeing as how the President is a former law professor, do you think it is likely that he will look to academia for at least one of his expected Supreme Court appointments. For example, a Cass Sunstein (who was appointed to head OIRA)?

Dahlia Lithwick: Hi Arlington.
I think there is a VERY good chance that Obama will look to appoint someone to the Supreme Court who does not come off the federal bench, although he has some pretty terrific candidates there. Whether he picks an academic like Sunstein or Elena Kagan (his pick for Solicitor General) or someone from a completely different walk of life, and he has pointed to Earl Warren as an ideal justice. Warren, recall, came out of the governor's office. I think that when Obama talks about empathy in a jurist he is flicking at the idea that he wants someone who has lived in the real world and engaged with real people and brings that perspective to the court.

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Montreal: Is there a real possibility that courts in other countries indict former U.S. officials for war crimes and if so what do you believe would be (should be?) the reaction in the U.S.?

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