Hope and Change: Obama presses for broader state-secrets privilege

posted at 8:47 am on March 26, 2009 by Ed Morrissey
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The Left cheered as George Bush left office, as they believed him to be scornful of the Constitution and obsessed with secrecy.  Barack Obama promised to bring a new era of openness, one in which the government would no longer hide intelligence programs from court scrutiny.  Secret surveillance would become a thing of the past!

They should have asked Jim Geraghty about expiration dates.  As the Washington Post reported yesterday, not only has Obama reneged on that particular promise, he’s actually arguing for a broader state-secrets privilege than Bush did:

Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.

The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated “state secrets,” but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them. …

In his campaign plan to “change Washington,” Obama criticized the Bush administration, saying that it had “ignored public disclosure rules” and that it too often invoked the state-secrets privilege, according to his Web site.

Now, Obama’s claim of state secrets has prompted criticism.

How much outrage will we hear from the Left over this?  Not too much, I suspect.  A few like Glenn Greenwald, who has made this a particular focus, will blast Obama for falling back on his promise for openness.  The rest had little real interest in the topic outside of a chance for some serious Bush bashing.

And on the Right?  Those who accepted unquestioningly the state-secrets doctrine of Bush may now want to make hay out of Obama’s expansion of them.  After all, what Obama wants to do here is to essentially lock the judiciary out of the decision loop forever on whether the government has a legitimate right to the claim of state secrets in any case.  That will warp the separation of powers between the executive and judicial branches, and could set a precedent for massive abuses of power.  How many conservatives and center-right people want to trust Obama with those powers now?

When Democrats demanded and got concessions during the FISA reform effort to strengthen the role of the FISA court over the Bush administration’s initial proposal, I supported that change while supporting the reforms that allowed for more efficient ability to track international calls.  So did a few other conservatives on the same grounds of limiting executive reach.  Some criticized that position, but we knew eventually that we would have a President that we didn’t like, which is why the balance of power issue is so important.  That day is now.

I believe that the government needs a state-secrets doctrine that’s broad and enforceable, but I also think that the judiciary has to have some role in determining its limits.  The threat by the Obama administration to withdraw that question from the judiciary is at least troubling — and while I’m glad to see that they’ve quickly accepted the Bush position on state secrets, the effort to cut out the judiciary should worry everyone on both sides of the aisle.

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