Obama/Bush and the State Secrets Privilege

To the chagrin of at least some leftists (Salon, Slate, HuffPo), Obama has decided to stick to the Bush administration’s view on the State Secrets Privilege. This was made clear earlier this week when Obama’s lawyers took the Bush line in still pushing to have the case Mohamed, et al. v Jeppesen Dataplan, Inc dismissed, just as Bush had done. In this case, five men claimed to be victims of “extraordinary rendition”–being sent to other countries by the US to be tortured. The case was thrown out a year ago on the basis of national security, relying on the State Secrets Privilege. On appeal, Obama maintained the same position as Bush.

Interestingly, as detailed in Daughters of the Cold War, the State Secrets privilege originated in a 1953 Supreme Court decision, United States v. Reynolds, in which a military B-29 Superfortress bomber had crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber’s top-secret mission. But in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports only contained information about the poor state of condition of the aircraft itself–it would have embarrassed the Air Force and made it lose its lawsuit, perhaps, but it was not the dire, top-secret situation the Court assumed when it recognized this privilege. As Emil Bazelon in Slate notes, the federal government “was really engaged in a cover up, not some worthy protection of state secrets.” Oh well, what’s done is done. And now it’s being used to prevent victims of “extraordinary rendition” (sending terrorist suspects off to Syria to be tortured) from suing for damages. Congrats, Obama. I wonder what position he’ll take in other pending cases, such as that of Maher Arar, a Canadian deported by the US to his native Syria after detaining him during a layover at JFK International Airport in September 2002 on his way home to Canada from a family vacation in Tunis, because he was suspected of being a member of Al Qaeda and even though Syria is known to use torture on suspects. “He was detained in Syria for almost a year, during which time he was regularly tortured, according to the findings of the Arar Commission, until his release to Canada.” Canada already cleared him and paid him a C$10.5 million settlement, but I suppose Obama will use the “State Secrets Privilege” to stymy him.


12:01 am on February 14, 2009