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ACLU: Obama State Secrets Claim Sets Bad Precedent |
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Human Rights Lawyer Warns Of Repercussions As Obama Maintains Bush Defense In Rendition Case
Q&A: Ben Wizner on NationalJournal.com
Human rights and civil liberties groups reacted with both outrage and incredulity upon learning that President Obama's Justice Department had decided to maintain its predecessor's invocation of the state secrets privilege in Mohamed v. Jeppesen DataPlan Inc., a lawsuit brought by the American Civil Liberties Union against a Boeing subsidiary accused of helping the CIA carry out extraordinary renditions. Ben Wizner, an ACLU attorney who is currently working on this case, argues that by not pushing back harder against controversial Bush administration policies, Obama is leaving the door open for future executive branch abuses of power.
In an interview with NationalJournal.com's Amy Harder, Wizner discussed the implications of the Jeppesen case and the impact that legislation recently introduced in Congress could have on the state secrets privilege. Edited excerpts follow. For a differing take on this issue, read our accompanying interview with Ken Gude, a national security law expert at the Center For American Progress.
NJ: According to a Feb. 17 New York Times article, White House counsel Greg Craig said that the DOJ reviewed Mohamed v. Jeppesen DataPlan Inc. and "came to the conclusion that it was justified and necessary for national security" not to roll back the state secrets privilege the Bush administration had initially invoked. What is your reaction to this?
Wizner: I think they're wrong, and I have to believe that this is about something other than secrecy, because the whole world knows the role that Jeppesen played in the rendition program. It's public knowledge....
This is about whether this administration is willing to take on the question of accountability for the criminal acts of the last seven years. I think this is a political decision. When President Obama says, "I want to look forward and not look back," I think we need to take him at his word. I think that's what's going on here. The administration knows that letting these cases go forward will bring the CIA's detention and interrogation program into a federal court, and that's the last place the CIA wants it to be -- not because it's a secret, but because it was a crime. I think the CIA is very worried about the consequences of having independent federal judges explore the legal consequences of what went on.
NJ: At the same time, the DOJ announced it would review every open Bush-era case involving state secrets, and that people shouldn't read too much into this one.
Wizner: I would say the opposite. People shouldn't read anything into what the DOJ says to the press and should read everything into what they say to judges. I have no interest in what their press releases say. Zero. I'm interested in what their court filings say. The piece of paper they should have filed is one with the court saying, "We need more time so that the new Department of Justice can review the use of state secrets in this case." The fact that they released that statement on the afternoon of that hearing reflects the politics of this situation and nothing else.
NJ: Do you think this decision to invoke the state secrets privilege is a sign that Obama plans to keep in place other controversial policies from the Bush administration?
Wizner: I think that when it comes to holding Bush administration officials and perhaps some of the contractors that assisted them accountable for their actions, we can expect more resistance from the Obama administration. They seem to have made that very clear. I'm more optimistic that we won't see a continuation of the human rights abuses themselves, but in a democracy we don't depend on the good will of a benign leader. This is not about the president, it's about the presidency. My concern is that, if we leave in place doctrines like the state secrets privilege the way it's being used and other immunity doctrines, that it will be quite easy for a future president to pick up where Bush left off without any enforcement mechanisms to prevent that.
NJ: What is the most drastic way the State Secrets Privilege Act would alter the way the privilege is invoked right now?
Wizner: What the legislation would require is that [former CIA Director Michael] Hayden -- I guess now [CIA Director Leon] Panetta -- not just explain why he thinks the case should be dismissed but show the court the kind of evidence that the CIA insists is secret and why that evidence is integral to the litigation of the case. Also, it would require the court to take certain affirmative steps to try to find a way for the case to go forward. It could order the government to come up with some kind of non-privilege substitute for the evidence that it says is secret.
It could, I think the bill says in "the interest of justice," not have the consequences of privilege always fall on the plaintiffs. Because there's another question about these cases. Even if, let's say, there were genuinely secret information whose release we should be worried about in a case like the Jeppesen case, why does it automatically follow that the plaintiffs should get nothing? If they've put forward solid evidence that this happened to them, that the government and Jeppesen were involved, why does the fact that there may be secrets involved necessarily lead to the conclusion that the government and Jeppesen should prevail in the litigation? There is nothing intuitively necessary about a rule like that. And the legislation would allow a court to, in some cases, make the government bear the consequences of its invocation of the state secrets privilege....
This would be the first time that Congress would step in and set the rules for how the privilege works, something that's never happened before. And it would be a response to Congress' perception that courts have been getting it wrong.
NJ: One crucial part of the bill requires judges to look at the evidence the government claims is privileged, rather than rely solely on government affidavits. Doesn't this jeopardize the very information the government claims is secret?
Wizner: It wouldn't. We're talking about federal judges who are nominated by the president and confirmed by the United States Senate who all have top-secret security clearances in order to be federal judges. They deal with classified evidence on a daily basis, so there would be nothing new about this.
NJ: Still, though, this is an argument proponents of the state secrets privilege have raised -- that disclosing the alleged secret information to judges could jeopardize national security.
Wizner: Think about what their argument is. If a judge can't look at the evidence, that means that the executive branch is literally policing itself. They like to set this up as a question of judicial competence and judicial trustworthiness, when instead what you have is a massive conflict of interest. What it means, under their rule, is that the executive branch can engage in torture, declare it a state secret and, by virtue of that declaration alone, avoid having any judicial accountability. You have to have judges involved.
NJ: And up to now they haven't been?
Wizner: Some have and some haven't. Right now, there's no rule saying that judges can't look at the actual evidence, and some require it.... Judges can do it. What the bill would do is say they would have to do it -- that they can't dismiss cases just on the face of a self-serving government affidavit. |
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