HOME / jurisprudence: The law, lawyers, and the court.

See No EvilWhy is the Obama administration clinging to an indefensible state-secrets doctrine?

By Dahlia LithwickPosted Tuesday, Feb. 10, 2009, at 4:25 PM ET

Dahlia Lithwick recently chatted online with readers about this article. Read the transcript.

(Continued from page 1)

RSS

It is certainly possible that widespread public disclosure of some specific evidence in this case would imperil national security. Luckily, courts can protect against that: Judges can review classified information and then decide what not to release. What's astonishing is that the Obama administration nonetheless took the position that the only remedy here is to dismiss the whole suit. Which takes us back to the question: Why?

One possible answer is that water-boarding and Guantanamo were so awful as to be indefensible, whereas the state-secrets privilege at least sounds plausible. Another possibility is that the Obama administration just hasn't had time to look carefully at the state-secrets doctrine and was buying itself a little time Monday by both continuing the policy and announcing a massive review. A third possibility is that Obama is less willing than he seemed before the election to shed the great dark cloak of secrecy fashioned by his predecessor.

Along those lines, the Obama administration is also struggling with how much to cut back the Bush expansion of executive privilege. On the one hand, Obama, on his second day in office, signed an executive order trimming back the Bush definition of executive privilege for current and former presidents and pledging "to usher in a new era of open government." On the other hand, Obama's lawyers haven't yet said whether Karl Rove may continue to invoke his wacky theory of privilege to dodge congressional subpoenas.

There are many reasons for the Obama administration to toss out dumb tactics employed by the Bush administration in the war on terror while still holding onto its dumb secrecy claims, not the least of which is that the Obama administration's secrets will someday be evaluated by the next administration. We keep your secrets, the next guy keeps ours. (Or so the president may hope.)

Finally, by keeping the worst of the Bush administration's secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that "nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I'm more interested in looking forward than I am in looking backwards." The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

It's a depressing hypothesis, and one about which I hope to be proved wrong. Blocking the Jeppesen suit from going forward serves no legitimate legal principle, although the political advantages of doing so may turn out to be overwhelming. Of course the Obama administration was supposed to understand the difference between the two.