- The Washington Times - Wednesday, September 9, 2009

Advocates for more open government who had hoped that the Obama administration would be less secretive than its predecessor say it is continuing to use executive privilege to block lawsuits over allegations of past abuses in the fight against terrorism.

A new report from OpenTheGovernment.org, a coalition of anti-secrecy groups, criticized the Obama administration’s interpretation of the so-called “state secrets privilege.” Under it, the Justice Department has argued that courts must dismiss national security cases challenging wiretapping and the transport of suspected terrorists to CIA and foreign jails, where they claim they were tortured.

The flap over the issue appears to be another example of Mr. Obama charting a relatively centrist path on issues regarding terrorism. Past CIA directors and some Republicans have criticized the president for disclosing information regarding harsh interrogation procedures and for allowing the Justice Department to reopen cases against CIA interrogators.

However, civil liberties groups argue that the Obama administration’s interpretation of the state secrets privilege so far is the same as the George W. Bush administration’s.

“This administration is continuing to use the enlarged executive powers of the Bush-Cheney administration,” said Patrice McDermott, director of OpenTheGovernment.org, who oversaw the report.

The group’s steering committee includes many longtime advocates for more openness in government, including the Federation of American Scientists, the Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press.

According to the report, President Obama “deeply disappointed advocates who had hoped he would act quickly to rein in the abuse of the privilege to shut down litigation.”

The report notes that in a recent case the Justice Department filed a friend of the court brief saying there was a basis in the Constitution for the state secrets privilege and that the Supreme Court had recognized this for the first time in 1953.

As both a candidate and as president, Mr. Obama opposed a broad interpretation of the privilege.

He told an April 29 news conference, “I actually think that the state secret doctrine should be modified. I think right now it’s over-broad. But keep in mind, what happens is, we come into office; we’re in for a week, and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what exactly should [an] overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.”

Mr. Obama continued: “I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety.”

The president was referring to Mohamed vs. Jeppesen DataPlan, a case brought by the American Civil Liberties Union (ACLU) on behalf of five men against a company they said flew terrorist suspects to foreign prisons where they were tortured.

The Obama administration asked the 9th U.S. Circuit Court of Appeals, based in California, to dismiss the case on the grounds that public airing would disclose state secrets and harm national security. A three-judge panel on the 9th Circuit rejected the administration’s request in February.

In May, the Justice Department asked all the judges who serve on the 9th Circuit to revisit the decision.

Tracy Schmaler, a spokeswoman for the Justice Department, said, “This administration recognizes that invoking the state secrets privilege is a significant step that should be taken only when absolutely necessary, and that is what we have done. In the handful of cases where this administration has continued to invoke this privilege, it was done to protect highly sensitive information relating to national security matters, such as intelligence-gathering methods or sources.”

She added that Justice Department officials have been reviewing the policy “to ensure that the privilege is invoked only in legally appropriate situations. We hope to make the results of that review public soon.”

The Truman administration first invoked the notion of a state secret to keep from the public details about a military air crash. The Supreme Court upheld the claim in 1953, but until the Bush administration, no president claimed successfully that the privilege required cases to be dismissed before it goes to trial.

“In cases involving allegations of serious lawbreaking by the prior administration, the Obama administration has advanced precisely the same over-broad theory of state secrets that the Bush administration used successfully to terminate lawsuits,” said Ben Wizner, a staff attorney for the ACLU who is representing the plaintiffs in the Jeppesen DataPlan case.

“Not a single torture victim has had a day in court, primarily as a result of the Obama and Bush administrations’ evoking of the state secrets privilege.”

However, Victoria Toensing, a one-time lawyer for Republicans on the Senate intelligence committee, praised the administration.

“The Obama administration has figured out that when you get elected, you have to govern, and that includes protecting national security,” she said.

• Eli Lake can be reached at elake@washingtontimes.com.

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