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Changing the Terms of the Debate

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The Obama administration’s position on the state secrets privilege (SSP) this week strikes me as a continuation of last week’s debate over rendition. It has been very surprising to see people who, for example, explicitly argued in favor of a program that runs entirely without judicial or Congressional oversight come out six days later – six days! – with "It’s a big, big mistake for any branch of government to have the power to simply declare that whole subjects are out of bounds, without any check on its veracity." Unfortunately it looks like the civil libertarian left is once again shying away from a clear articulation of principle, and is therefore once again setting itself up for a quick reversal. Consider the following.

Marc Ambinder defended the decision, writing "Obama certainly never promised Americans that he’d declassify everything, or that the government had to renounce its right to assert a state secrets privilege forever." Glenn Greenwald dismissed it ("as though there is anyone who actually believes that"), but I’d like to pipe up from my own little lightly trafficked corner of the internet that I DO believe it. The logic that draws distinctions between asserting state secrets to dismiss individual pieces of information as opposed to entire lawsuits is the same one that says extrajudicial extradition programs are fine as long as they don’t lead to torture. These are differences of degree and not kind. Both stem from the belief that suitably earnest assurances are an acceptable substitute for transparency and a legal framework.

This is not about taking a cynical stance towards our leaders but trying to take as detached an assessment of human nature as possible. The more power people have the more they will be inclined to use it. No matter how close or distant the bounds of that power they will push against it. If the president – any president – has unchecked powers, abuse is inevitable. While the SSP requires judicial review, justification can be incompletely or misleadingly presented. Judges might feel pressure to acquiesce and in any event customarily give "utmost deference" to such claims. And once a decision to exclude is made the evidence simply disappears. It does not get stored away for eventual release to the public domain, it just goes away.

The state secrets privilege is just that: a privilege. It is not a Constitutional guarantee or a law, it is a judicial custom. The privilege has been abused, so courts could simply stop recognizing it. It has in all likelihood preserved as many vital state secrets as torture has defused ticking time bombs. As Kevin Poulsen put it several years ago, "the list of cases in which the state secrets privilege has been invoked seems a pantheon of injustice." The ability to nearly unilaterally exclude evidence is an irresistible temptation; over time the bad far outweighs the good.

In response to Obama’s position Greenwald and others have mentioned The State Secrets Protection Act (SSPA) as the remedy, but the need for such legislation is an implicit admission that the current program is outside the law. The SSPA would create a civil equivalent of the Classified Information Procedures Act (CIPA). It reads: "Secure judicial proceedings and other safeguards that have proved effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information." There is no reason – none – for any piece of information to be wiped from the face of the earth. Everything should be recorded. If something truly extraordinary is at stake then keep it secret and assign an expiration date, with the government able to plead for an extension on a case by case basis.

During the Bush years liberals ceded an enormous amount of ideological ground. Whether or not it was necessary is irrelevant now; all that matters is that there is still a tendency to begin debates from a conservative frame of reference. A commentator on the right can simply postulate, say, the necessity of the SSP and the response seems to be to immediately declare no one on the left is taking such an "extreme" position. Why couldn’t the response be, it is not a right, it is a privilege, and it is not for the president to renounce (or continue) but for courts to permit? As Athenae notes we have to be willing to not just trim but entirely override the governing philosophy of the last eight years. That means a fundamental reorientation of our approach: From presuming the executive branch may not be checked to insisting that its activities be subject to truly independent review and made public as soon as possible. That is how a nation of laws operates.

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