Obama Tiptoes Around State Secrets Debate

President Barack Obama points to a reporter during his first prime time televised news conference in the East Room of the White House in Washington, Feb. 9, 2009.
AP Photo/Charles Dharapak
The "On The Marc" column is written by The Atlantic's Marc Ambinder, CBS News' chief political consultant.

On Tuesday, if you believe what some liberal bloggers and columnists are saying, President Obama delivered a chest blow to civil liberty. He sided with the Bush Administration on an extremely touchy and disputatious national security matter, thereby reversing an iron-clad campaign promise.

Mr. Obama's Justice Department decided not to retract a claim of what's called the "State Secrets Privilege" in a civil lawsuit brought by five former Guantanamo detainees against a subsidiary of the Boeing Corporation that allegedly helped to plan their renditions to countries that tortured them.

The Bush Administration had asserted the privilege, which was formally recognized by the Supreme Court in 1953, to prevent the case from being tried. Allowing the litigation to proceed, the Bush lawyers argued, would significantly jeopardize the country's national security.

The case has long been a favorite example for civil libertarians looking to point out just what was wrong with the Bush administration's approach -- that under the guide of secrecy and the fig leaf of national security, policies that sanctioned torture could be hidden from judicial review, and those who broke the law would be freed from formal accountability.

But Mr. Obama faces enormous expectations to change the way justice is meted out. On the surface, by refusing to revoke the privilege, the Obama administration endorsed the Bush administration's viewpoint. Administration officials said a retraction of the privilege in this particular case would set a precedent regarding access to classified information in future cases. Just 22 days in, Obama's lawyers weren't ready to radically change the law.

Administration officials caution patience. The truth, they say, is that the State Secrets Privilege will be challenged, will be challenged publicly and will be reformed. They're waiting for the right venue to do so, and this civil suit, they say, is not the right venue.

So when might this happen?

Consider the case of Maher Arar, a Canadian citizen, who was rendered to Syria after being stopped by U.S. authorities at New York's JFK airport in 2002. Arar was subsequently tortured by Syrians. He's suing the U.S. government for damages. (Read Jane Mayer's compelling account of Arar's experience here)

The government invoked the State Secrets Privilege to respond to certain requests by Arar's lawyer.

A judge threw the case out on several grounds, only one of which was the assertion of the privilege. A three judge panel on the appeals court agreed, but now the full appeals court is now re-hearing the case.

What attracts the Obama Administration to this case is that the State Secrets Privilege was not asserted as the primary reason why the case shouldn't go forward, the courts so far have not dismissed it solely on those grounds and the suit is against the government, not a private corporation.

The Obama Justice Department could revoke the privilege claim on the grounds that it was improperly asserted, and they could still keep the case alive. Or they could settle the case, providing a roadmap of sorts for future claims against the government.

My informed guess is that the Obama Administration will find cases to revoke the privilege's assertion. They will do so publicly and with great fanfare. They will simultaneously announce a new set of restrictions on when and how the privilege should be invoked. They will do so on their own timetable (to the extent that the courts don't force their hands) and they will do so in conjunction with the broader ideal of reconciliation and accountability.

They're just not ready to do so 22 days in, and the particulars of this case weren't, in any case, ideal for them.
By Marc Ambinder