Major Defeat for Bush/Obama Position on Secrecy

by Glenn Greenwald

28 Apr 09 | Salon

The first sign that the Obama DOJ would replicate many of the worst and most radical arguments of the Bush DOJ was in the Jeppesen case, a lawsuit brought by five victims of the CIA’s rendition and torture program (including Binyam Mohamed).

The Bush administration had argued that the entire “subject matter” raised by the lawsuit (the rendition program) was such a gravely important “state secret” that the court could not consider any lawsuit relating to that issue. That argument was a by-product of one of the Bush DOJ’s most controversial actions: its radical expansion of the “state secrets” doctrine. Whereas that privilege was once an evidentiary privilege enabling the Government to declare specific documents too secret to use in litigation, the Bush DOJ converted it into an all-purpose shield allowing them to have entire lawsuits dismissed even where the lawsuit alleged that the President’s conduct was illegal.

The District Court in Jeppesen had accepted the Bush DOJ’s argument and dismissed the lawsuit, and on appeal in February, the Obama DOJ — to the obvious surprise of the judges and in a reversal of everything Democrats claimed they believed during the Bush presidency — told the Ninth Circuit panel that they embrace the Bush DOJ “state secrets” position in full (a position they’ve since repeated in other cases). >>>

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