The 180-degree reversal of Obama's State Secrets position

by Glenn Greenwald

From the Obama/Biden campaign website, mybarackobama.com, here was what the Obama campaign was saying -- back then -- about the State Secrets privilege:

Apparently, the operative word in that highlighted paragraph -- unbeknownst to most people at the time -- was "the Bush administration," since the Obama administration is now doing exactly that which, during the campaign, it defined as "The Problem," the only difference being that it is now Obama, and not Bush, doing it.  For journalists who haven't bothered to learn the first thing about this issue even as they hold themselves out as experts on it, and for Obama followers eager to find an excuse to justify what was done, a brief review of the State Secrets privilege controversy is in order. 

Nobody -- not the ACLU or anyone else -- argues that the State Secrets privilege is inherently invalid.  Nobody contests that there is such a thing as a legitimate state secret.  Nobody believes that Obama should declassify every last secret and never classify anything else ever again.  Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege.  Those are all transparent, moronic strawmen advanced by people who have no idea what they're talking about.

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).  

http://www.salon.com/opinion/greenwald/2009/02/10/obama/