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.

_______________________

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.

_______________________

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.

_______________________

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.

_______________________

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.

_______________________

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.?

Dahlia Lithwick: I think if you ask someone like Philippe Sands, the British lawyer who wrote The Torture Team, there is more than a real possibility, under the principle of universal jurisdiction that people like Donald Rumsfeld and others who approved the US interrogation policies will be prosecuted in other countries. Especially now with Susan Crawford and Eric Holder calling what was done to these prisoners "torture" it becomes likely.

_______________________

Bethesda, Md.: Do you think that, in order to show a true respect for the law, the White House should cooperate in a full investigation of any potential crimes by the previous administration? Because it seems like in order for the law to have merit, it has to apply all the time, not just when it's politically expedient.

Dahlia Lithwick: Well Bethesda, I couldn't agree more. The problem I have with the (apparent) decision not to investigate potential criminal wrongdoing in the previous administration, is that I hear few LEGAL arguments to support it. I hear a lot of pragmatic arguments: people don't want it; the economy is too bad; it would tear the country apart; the wrongdoers meant well . . . but no legal ones. Like you I feel that if we can invent reasons not to look into the wrongdoing at the highest levels, it becomes hard to justify prosecuting bankrobbers or drug dealers.

_______________________

Pensacola, Fla.: In today's tumultuous economic times when Americans are struggling with home foreclosures and credit debt, will the Obama Administration make a push to abolish the "means test" as a prerequisite in Federal Bankruptcy Courts?

Emily Bazelon: Obama certainly called for getting rid of the means test during the campaign. The way the means test currently works—as a result of the changes Congress made in 2005, which made it harder to file for bankruptcy—is that you undergo a means test if you're filing for Chapter 7 bankruptcy. T he court assesses your income level and expenses. Then if you don't qualify, you have to file under Chapter 13 instead of Chapter 7, which means that you have to set up a plan for repaying your creditors.

As I understand it, if the administration wants to modify the terms of housing loans to give people relief on their mortgages, the means test is a problem. That's because it doesn't allow for the deduction of mortgage payments from monthly expenses, even if you're not keeping your house.

Obama voted against the 2005 bankruptcy bill. Reforming this area of law is a natural reform for him to take on, given the extent to which foreclosures are driving the economic downturn. The means test also sometimes causes problems for people seeking bankruptcy for medical reasons. It's hard to say what Obama will push for first right now, since we don't know much about his plan to combat foreclosures. And the reform of bankruptcy law has opponents with lots of money behind them, like the credit card companies, as we saw when it fell out of the first round of TARP legislation. But now the Democrats should have the power to make some of these reforms happen.

_______________________

Washington, D.C.: So what's next in challenging the use of the state secrets privilege? Is the current round over?

Emily Bazelon: Next is a couple of fronts. In the Jeppesen case, the Ninth Circuit will rule, and that will determine the next stage of litigation about how the rule is imposed.

Another state secrets case in the pipeline is that of Maher Arar, another detainee who experienced extraordinary rendition—he was flown to Syria, and tortured there. The Canadian govt has apologized to him and paid him $10 million in damages. The U.S. govt (the Bush administration) founght his civil suit in court. The full 2nd Circuit reheard Arar's case in December. The new administration could tell the court that it doesn't have to make a ruling, because the government is going to settle with Arar. And as part of the settlement, the government could agree to disclose some of the evidence covered by the invocation of the state secrets privilege.

Then there is Holder's review of all 39 of the Bush uses of the privilege. It will be really interesting to see which cases the new administration changes course on, and which, like Jeppesen, it doesn't.

_______________________

Washington, D.C.: I was gravely disappointed by the John Roberts appointment as Chief Justice. Can President Obama nominate someone as chief justice, as opposed to an associate judge? Can the position be taken away?

Dahlia Lithwick: Washington. My question back to you would be: why does it matter who the chief is? He only gets one vote after all! His powers are wholly administrative. And whatever your views on Roberts, you would, I think, have to say he's been incredibly fair about assigning opinions and running conference (powers abused by Warren Burger in his time). Being chief has more to do with being fair and organized than ideology and Roberts is both.

_______________________

Alexandria, Va.: I think the problem with investigating outgoing administrations is that it will start a trend...with each incoming administration (of a different party) investigating the previous one. Good grief...if we didn't prosecute Nixon for his crimes because of the good of the country (pardon notwithstanding, I don't think he would have been prosecuted) then I think we should just leave the Bush administration to the history books and get on good governance by the Obama administration.

Emily Bazelon: Your argument has merit. Expending a lot of energy on investigating the past makes a lot of people nervous—including President Obama and AG Holder. There's some complexity here, however. The administration clearly has decided not to launch full-bore criminal investigations. But does that mean that it also refuses to disclose information that might lead to such investigations, simply to prevent them? There are ongoing lawsuits that raise these questions; Congress is also asking them, most recently via Sen. Leahy's call for a truth commission. My point is that even if you don't want a big and messy investigation, you might want to think about whether drawing a veil over the whole last eight years is also a mistake.

_______________________

New York: What do you think is the legal future for gay rights during the Obama administration?

Emily Bazelon: I think much of the next stage of gay rights is going to play out without much involvement by the Obama administration. This government is not going to get behind the gay marriage movement. But that doesn't mean the courts or state legislatures won't confront these questions. There was an interesting ruling in the Ninth Cirucuit last week, calling into question the constitutionality of the Defense of Marriage Act. These developments stem from cases brought by gay couples. They are forcing the questions they care about—which is one of the ways change is made.

_______________________

Washington, D.C.: How would keeping the worst of the Bush administration's secrets hidden defer awkward questions about prosecuting the wrongdoers? Once the United States admits that the "not-so-bad" acts like waterboarding are torture, doesn't the United States have an obligation to prosecute the wrongdoers?

Emily Bazelon: Not necessarily. Identifying who exactly did what wrong is really hard, for starters. Also, prosecutors always have discretion. Political pressure for a prosecution can build, but in the end, the govt has to decide whether to throw its resources behind a criminal indictment. And in this case, where lawyers in the Office of Legal Counsel in the Department of Justice wrote memos approving tactics like waterboarding, the people who relied on that advice have a good defense.

_______________________

Elena Kagan + Bush doctrine: I was upset with what appeared to be Kagan's endorsement yesterday of Bush-era policies. Was she simply describing the law as she perceives it to be or is she really endorsing the divine rights and above-any-law status of the Presidency at least as far as the designation of "enemy combatants" goes?

Dahlia Lithwick: I wasn't at Kagan's hearing but the accounts I have read suggest that she wasn't saying anything much different than Eric Holder said at his: that she believed the President could hold suspected terrorists without trial as war prisoners. In Hamdi in 2004, the high court agreed with the Bush administration that prisoners captured on the battlefield can be held for the duration of the war. We don't know much about what they thought beyond that, but I suspect Kagan was just stating what she believes the law to be.

_______________________

Winnipeg, Canada: What's the current state of habeas corpus in your country? Has the Obama team reinstated it yet?

Emily Bazelon: The Obama team halted the military commissions system for reviewing the enemy combatant status of the Guantanamo detainees. It hasn't said yet exactly how it plans to handle all the habeas petitions the detainees brought to try to show that they're not enemy combatants. Essentially, the whole thing is on ice for a little while. But that will change pretty soon, probably this spring, as the administration begins to make court appearances in individual cases. Basically, we can expect that the administration will not adopt the Bush position that the detainees have no habeas rights. But that doesn't determine how it will handle all the different cases.

_______________________

Washington, D.C.: Are there ANY Bush legal policies you wouldn't be in favor of Obama overturning?

Emily Bazelon: Well of course the Bush administration took positions in thousands of cases that weren't political in nature, and won't change with a new administration. If you're talking about the Supreme Court's docket this year, I don't think that the Obama DoJ should shift position in a couple of important voting rights cases.

_______________________

Washington, D.C.: Republicans should have done it in 2000 with Clinton...lets see, he started rendition, sold state secrets to China, committed perjury, White Water...etc.

I think people with Bush Derangement Syndrome is the political version of OCD...get help

Dahlia Lithwick: Washington. We have had a raft of questions today saying, in effect, that what the Bush Administration did to its prisoners was just not that bad. But having heard over and over that it's liberals who are moral relativists, I am still shocked when people equate authorizing water-boarding with perjury about sex with an intern. I wish we could look back at what happened in the Bush Justice Department without accusing one another of derangement syndromes. I don't think its irrational or ideological or deranged to believe that there should be accountability for that.

_______________________

he wants someone who has lived in the real world and engaged with real people and brings that perspective to the court. : How about Ralph Nader? (just kidding)

Dahlia Lithwick: I think that if Ralph Nader were a woman he'd have a better chance. Vegas sportsbooks say the next nominee is very very likely to be a woman.
Thanks folks for chatting with us! It's always a pleasure.

TODAY IN SLATE

War Stories

The Right Target

Why Obama’s airstrikes against ISIS may be more effective than people expect.

The One National Holiday Republicans Hope You Forget

It’s Legal for Obama to Bomb Syria Because He Says It Is

I Stand With Emma Watson on Women’s Rights

Even though I know I’m going to get flak for it.

Should You Recline Your Seat? Two Economists Weigh In.

Doublex

It Is Very, Very Stupid to Compare Hope Solo to Ray Rice

Or, why it is very, very stupid to compare Hope Solo to Ray Rice.

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

Why Is This Mother in Prison for Helping Her Daughter Get an Abortion?

Use Facebook to Reconnect With Old Friends, Share Photos, and Serve People With Legal Papers

  News & Politics
Foreigners
Sept. 23 2014 6:40 PM Coalition of the Presentable Don’t believe the official version. Meet America’s real allies in the fight against ISIS.
  Business
Moneybox
Sept. 23 2014 2:08 PM Home Depot’s Former Lead Security Engineer Had a Legacy of Sabotage
  Life
Outward
Sept. 23 2014 1:57 PM Would a Second Sarkozy Presidency End Marriage Equality in France?
  Double X
The XX Factor
Sept. 23 2014 2:32 PM Politico Asks: Why Is Gabby Giffords So “Ruthless” on Gun Control?
  Slate Plus
Political Gabfest
Sept. 23 2014 3:04 PM Chicago Gabfest How to get your tickets before anyone else.
  Arts
Brow Beat
Sept. 23 2014 8:38 PM “No One in This World” Is One of Kutiman’s Best, Most Impressive Songs
  Technology
Future Tense
Sept. 23 2014 5:36 PM This Climate Change Poem Moved World Leaders to Tears Today
  Health & Science
Science
Sept. 23 2014 4:33 PM Who Deserves Those 4 Inches of Airplane Seat Space? An investigation into the economics of reclining.
  Sports
Sports Nut
Sept. 23 2014 7:27 PM You’re Fired, Roger Goodell If the commissioner gets the ax, the NFL would still need a better justice system. What would that look like?