Why They Kept Secret(State Secret Privilege)

[SpartanDem]

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

"If you decide today precipitously to waive this privilege, you can't get it back,
an administration official said. "If you decide to assert it, you can always retract it in the future."

Though Justice Department prosecutors tended to the case during the presidential transition, senior Obama administration officials at the department were involved in a brief but detailed review of the case; they included Eric Holder, the attorney general, who has been on the job for less than a week. The director of the CIA hasn't been confirmed yet; at the time of his hearing last week, nominee Leon Panetta had been briefed about some ongoing issues, but was not yet read in to most of the agency's classified activities
..
The senior administration official said that the decision should not be interpreted as a definitive administration statement on accountability for the Bush Administration, or even for the five Mohamed detainees who were tortured.

We all recognize that it's a very complex and sensitive dynamic, but whatever the answer, discovery in a piece of private litigation is not it. It might be the truth commission idea, a DOJ truth commission, or even investigations run by the Justice Department. There will be a national clearing of the air," the official said.

http://politics.theatlantic.com/2009/02/considered_in_light_of_the.php

[gcomeau]

1. Oh gosh. How surprising.

The Obama people are thinking.... then acting.

Which, understandably enough I suppose, is so alien to the public understanding of how the Executive works that any time the Obama team doesn't immediately take an action we want them to take half the population of the boards declares they have decided to oppose us on it and go into full speed hysterical hand wringing mode instead of just waiting for them to make an actual policy clear before judging it.

[Aloha Spirit]

2. I really enjoyed reading this, TY. I'm glad White House officials felt they needed to explain the

decision, and I hope similar reports filter through the news.

[Aloha Spirit]

3. People need to read this.

:kick:

[bernardette blue]

15. What Glen Greenwald said about the article

"He (Ambinder) called up "administration officials," granted them full anonymity to defend their position (without bothering to explain why anonymity was warranted here), did not offer a single identifying fact about who these "officials" are, and then faithfully wrote down what they said, without a word of questioning or skepticism. He then found two independent sources who also praised Obama's decision. He did not cite or quote a single source critical of any of these claims -- including even the ACLU's Wizner, who he never bothered to call to ask for comment. It was a completely one-sided act of uncritical administration-amplifying stenography -- "anonymous administration officials say X and I'm going to write that down and pass it on uncritically and then praise it" -- which is exactly what many Beltway reporters have long meant when they praise themselves for doing "original reporting."

http://www.salon.com/opinion/greenwald/2009/02/11/state_secrets/index.html

[Aloha Spirit]

19. Thanks for the links,

I am aware of the discussion, but Greenwald's article is the only one of the three that addresses legal issues, and in an argumentative way to prove a different point. If the point of Greenwald's article was to lay out the factors why the DOJ did/why it shouldn't have continued the assertion, then I'm sure the article would have been extremely enlightening.
Unfortunately, it wasn't, and it didn't really.
In my opinion at least!
It's not fair to say Ambinder doesn't know anything about law when the article (and indirectly the other pieces) are critiquing Ambinder's choice to provide anonymity.
If you were to critique Ambinder's weak reporting, I would grant you that. But why should we assume that his quotes are factually incorrect?
No reason to do that.
It's more interesting that Leahy re-introduced the State Secrets Protection Act.
There are many interesting things to analyse in this story.
Greenwald chose the least interesting thing.

[bernardette blue]

21. Sure. Here are links to the NY Times and LA Times editorials warning Obama...

...and his DOJ not to do what they did a week later:

NY Times: It is also contrary to Mr. Obama’s stated views. To put them into action, Mr. Holder should immediately ask the court for time to rethink the government’s position and to file a new brief. Instead of trying to automatically shut down any judicial review of these issues, the Obama administration should propose that judges examine actual documents or other specific evidence for which the state secrets privilege is invoked, and redact them as needed to protect legitimate secrets.
http://www.nytimes.com/2009/02/05/opinion/05thu1.html?_r=1

LA Times: There are ways to balance the government's legitimate security interests against plaintiffs' right to press their cases. Judges could, for instance, take a more active role in scrutinizing the claims of secrecy, examining the controversial evidence in private. Or they could agree to hold back certain pieces of sensitive information without dismissing entire cases. But what's clear is that the government should not be permitted to kidnap and torture and then simply declare those heinous activities to be "state secrets" and off-limits for discussion.

http://www.latimes.com/news/printedition/asection/la-ed-secrets7-2009feb07,0,4504944.story

[chill_wind]

22. Here is some additional legal commentary

Opinion at Balkinization.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8203330&mesg_id=8205655

[Aloha Spirit]

24. thanks! reading it now

:donut:

[JimGinPA]

4. I Said As Much In The ***hole Thread About This Today...

"Yeah, Let's Not Allow The JD The Time For Review...


We certainly don't want them to err on the side of caution."

[chill_wind]

10. They didn't ask for a delay or review on this case!! n/t

[liberalsince1968]

5. The only one I trust to report the truth on this issue is Glenn Greenwald. When HE

says something that makes me feel better about this, I'll feel better. Until then, I consider it all spin.

[chill_wind]

6. Where to start.

Tslk about damage control efforts from a pack of anonymous sources. Where have we seen that before?

Greenwald shreds this to pure pieces.


http://www.salon.com/opinion/greenwald/2009/02/11/state_secrets/index.html

[merh]

7. your link doesn't work

[chill_wind]

8. Try it again. I corrected it immediately. n/t

[merh]

9. thanks

:hi:

[Captain Hilts]

11. "Officials" say lots of things. Ho hum. nt

[NYC_SKP]

12. K&R. There's been a bit too much concern about action in these matters.

You can have it done fast or you can have it done right.

I prefer to have it done right.

[Cha]

13. Rec'd~ For a thinking

admin.

[bernardette blue]

14. That article was slammed by Glen Greenwald, Columbia Journalism Review, and Firedoglake.com

http://www.salon.com/opinion/greenwald/2009/02/11/state_secrets/
http://firedoglake.com/2009/02/11/marc-ambinders-access-journalism/
http://www.cjr.org/campaign_desk/pressing_on_state_secrets.php?page=all

Ambinder knows nothing about law.

[mmonk]

16. Poppycock. Rendering someone to be tortured is a crime on its face.

What secrets are they going to let out? Their method of kidnapping?

[backscatter712]

17. I like this idea for state secrets privilege.

If you're the .gov, and you're subpoenaed for a piece of information for a court case, sure you can assert the state secrets privilege.

But if you do that, you automatically lose the court case.

So, that begs the question for those in the .gov who want to keep secrets: What's it worth to you. Certainly it's worth millions of dollars to preserve nuclear secrets, so rogue nations and terrorists and such can't build nukes or enrich uranium - that sort of thing. But it might not be worth those millions for the Obama administration just to keep secret the memos between Cheney and his flunkies that authorized torture.

[Undercurrent]

18. I'm glad to see an administration

taking the time needed to do this correctly. One of the problems with the last administration was going off half cocked. Even if you have enough integrity to admit a mistake, like Obama does, some mistakes can't be easily undone, and some not at all.

[chill_wind]

20. Here is a direct quote from the article in dispute

"Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress."

Even if you accept the logic of that argument from the article---which the ACLU, Glenn Greenwald and other legal commentary blogs critical of their action clearly make it plain that they don't --- then why did they not ask for a delay??

Justice at long last for those victims was as stake here.

[Aloha Spirit]

23. "why did they not ask for a delay?" I wonder too.

I don't think any of the articles I've read so far has actually tried to figure this out.
The Greenwald article is just about dumping on Ambinder--fine, but doesn't help me understand why they didn't ask for a delay.
If you find anything that helps explain why they might have, please share~ thanks!

[Davidor]

26. It is not true that Greenwald' post was "just about dumping on Ambinder"

Here's Greenwald pointing out that Obama has asked for delayed in several other instances, wondering why this instance would be different. And he also explains that seeking a delay would be easier:

President Obama’s Justice Department is asking a federal judge for at least two more weeks to answer the thorny question of who is and who isn’t an "enemy combatant."

...

In a filing in federal court in Washington Wednesday, government lawyers asking for the delay cited Obama’s inauguration last week and the executive order he signed ordering a review of the cases of the roughly 245 war-on-terror detainees presently held at Guantanamo Bay. . . .

...

"The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases, in light of the change in Administrations and the requirements of the Executive Order," Justice Department lawyers wrote in their new motion. "Time is needed to make that assessment and determination. Accordingly, the Government requests a two-week extension…to allow the new Administration to assess the Government’s position in this matter.”

eeking more time is exactly what the Obama DOJ did in other cases -- so why not here if that were really the reason? And here, the ACLU actually suggested that the DOJ seek an extension and indicated their consent to any extension the DOJ wanted. Even the judges on the panel expected that the Obama DOJ would change positions. And this is a case where obtaining an extension is far easier than in those other cases, since -- unlike those other cases -- this isn't about whether someone gets released from detention. It's only a civil case with far less time-urgency.


......

You should stop pretending that Greenwald is a vacuuous, misinformed hack like Ambinder. Greenwald is about substance, PLUS he "dumped" on Ambinder as well because it had to be done. Ambinder is about worshipping those with whom he has connections.

[Aloha Spirit]

27. You're the second person to

create a new account just to defend Greenwald in this thread.
Can I ask how you found this site?

[Davidor]

28. First, admit that you lied about Greenwald only dumping on Ambinder

Then I will answer your question that dodges the point of this thread and focuses on new accounts.

No wonder the hottest topic around here is how some worship Obama blindly, pretending that a know-nothing like Marc Ambinder magically justified what Obama did by writing an article criticized by 3 (not one) prestigious progressive entities.

I might be banned repeatedly, but at least I don't worship politicians.

[Aloha Spirit]

29. Oh

you're that person.
I think what we have here is a failure to communicate.

[chill_wind]

30. Thank you for the points made, Davidor and welcome to DU.

And just to underscore one of the points made about their willingness to ask for delays in a few other things-- they updated their request to delay releasing the OLC Torture Memos for at least another 90 days. There have already been extensions on this to keep them locked up under the Bush admin. A judge is supposed to be hearing the case today.

http://www.aclu.org/safefree/torture/38741prs20090213.html

[mmonk]

25. Here's the problem. The state secrets privilege was not created

to deny persons their day in court. That's the part you are missing. The state secrets privilege was originally intended to have what ever parts that are secret to intelligence gathering and method not be revealed to the public, that particular part of any trial, to be briefed to those given clearance.

[chill_wind]

31. Exactly. Never meant to be used as an alternative form of immunity.

Which is what the Bush regime did with it, and which the Obama DOJ action did not reverse.

http://www.aclu.org/safefree/general/36225prs20080731.html