Rendition mapThere was some disturbing news last week about the Department of Justice’s use of the “state secrets privilege.” This privilege has been a legal precedent since the 1950s and has been used by judges to exclude evidence when the executive branch successfully argues that it would be harmful to national security. President Bush’s DOJ attempted to throw out a lawsuit against a Boeing subsidiary for allegedly transporting terrorism suspects to foreign countries where they were tortured. Last Monday, President Obama’s DOJ reaffirmed Bush’s invocation of the state secrets privilege for this case and argued that the lawsuit should be thrown out.

There has been outrage among civil libertarians that Obama is embracing some of the Bush administration’s views about executive authority and secrecy which he promised during the campaign to oppose. Sen. Russ Feingold of Wisconsin has issued a statement criticizing Obama’s DOJ for its decision. Glenn Greenwald argues that the real problem in this case is that Obama is following George W. Bush’s interpretation of the state secrets privilege:

What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out — was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  That is the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny — and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).  [Greenwald's emphasis]

Greenwald is right. Shutting down legal proceedings merely on the basis of a state secrets claim can protect illegal government programs and allow them to continue. While President Obama has stated that he will end the practice of extraordinary rendition, the precedent that he is setting in embracing George W. Bush’s view of the state secrets privilege is harmful to the rule of law.

Fortunately, bipartisan legislation in the Senate was proposed last week that would provide some oversight in cases where the state secrets privilege is asserted. The “State Secrets Protection Act” was introduced last week by Senators Leahy, Feingold, Kennedy, and Specter. You can read about it here.

[Thanks to Susan Wenger, one of my team leaders from Wisconsin, for first directing me to this issue.]