Is Obama’s Use of State Secrets Privilege the New Normal?

Is Obama’s Use of State Secrets Privilege the New Normal?

Is Obama’s Use of State Secrets Privilege the New Normal?

The Obama administration has invoked the state secrets privilege for the second time in less than a month—this time in an effort to shut down discussion of the targeted killing of a US civilian who has not been charged of any crime.


The Obama administration does not want to talk about Anwar al-Aulaqi. A sixty-four page brief sent to the US district court in Washington, D.C. early Saturday morning made this clear. The document—supported in public declarations by the CIA Director Leon Panetta, National Intelligence Director James Clapper and Secretary of Defense Robert Gates—was issued in response to a lawsuit filed by the American Civil Liberties Union and the Center for Constitutional Rights on August 30 and invokes the controversial state secrets privilege in order to halt the rights groups’ attempt at litigation.

The ACLU and CCR challenged the Obama administration’s asserted right to target and kill suspected terrorists—including US citizens, such as the aforementioned Anwar al-Aulaqi—outside of war zones and in the absence of an imminent threat to national security. The rights groups were retained by Nasser al-Aulaqi, father of Anwar al-Aulaqi, who federal authorities maintain is a central figure in the Yemeni terrorist group AQAP (Al-Qaeda in the Arab Peninsula). According to the ACLU and CCR—citing public reports—Anwar al-Aulaqi is among those that intelligence agencies have targeted for killing. Believed to be hiding in Yemen, al-Aulaqi has not been publicly charged with any crime.

Director of the ACLU’s Center for Democracy, Jameel Jaffer, explains that while the government has the legal authority to use lethal force against citizens, it can only do so in narrow circumstances. “A kill list that gives standing authorization to the CIA and the Department of Defense to use lethal force against civilians, without reference to the imminence of any threat, goes beyond what the law allows,” he says.

In response to the lawsuit, the Obama administration invoked the state secrets privilege, which grants the government the power to shut down litigation in situations where evidence presented to the court would result in a threat to national security. In his declaration, Director of National Intelligence Clapper argues that public litigation of the claims laid out by the rights groups would reveal sensitive information that, “reasonably could be expected to cause damage, up to and including exceptionally grave damage, to the national security of the United States.” This sentiment is echoed in the statements of CIA Director Panetta and Secretary of Defense Gates.

Invocation of the state secrets privilege did not come as a shock to the ACLU, who had communicated with the government prior to the dissemination of the brief. Ben Wizner, Litigation Director of the ACLU’s National Security Project, told The Nation on Sunday “Were we surprised by it? The answer is no. Of course not.” Wizner went on to explain, “If you read their pleading they wanted to do it [invoke the state secrets privilege] later but the judge said, ‘Raise all your defenses at once.’”

Sharon Bradford Franklin, Senior Counsel at the Constitution Project, a bipartisan think tank established in order to promote constitutional safeguards, also saw the invocation coming. “We’re not surprised but very disappointed that the administration chose to assert the state secrets privilege and argue that this case should be dismissed on that basis,” said Franklin. In 2007, The Constitution Project’s Liberty and Security Committee released a report entitled “Reforming the State Secrets Privilege.” According to Franklin, the report argued that the privilege, “should be restored to its role as an evidentiary doctrine so that it would protect against disclosure of actual pieces of evidence that might reveal national security secrets, but the privilege should not be an immunity doctrine that blocks litigation from going forward at the outset.” Blocking litigation from going forward at the outset is precisely what the Obama administration is seeking to do.

Though the Constitution Project has not taken a position on the allegations being made in the al-Aulaqi suit, Franklin asserts that the Obama administration’s invocation of the privilege is, “a prime example of how the state secrets privilege is being asserted as an immunity doctrine in a way that it should not be.”

This is not the first time the Obama administration has invoked the state secrets privilege. On September 8, the United States Court of Appeals for the 9th Circuit dismissed another lawsuit filed by the ACLU in a narrow 6-to-5 decision. The defendant in the case was Jeppesen Dataplan, Inc. The ACLU claimed that Jeppesen, a subsidiary of Boeing Company, had knowingly provided flight services to the CIA to carry out its unlawful extraordinary rendition program. The plaintiffs in the case, Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza claim that they were flown to secret overseas locations and tortured at the behest of US intelligence agencies. Binyam Mohamed, in particular, told a story of brutal and degrading torture at the hands of Moroccan integrators working in conjunction with the US. Mohamed claims that he was regularly beaten unconscious, was cut 20 to 30 times on his genitals and on one occasion had hot stinging liquid poured into open wounds on his penis as he was being cut.

Because the privilege was invoked, we will likely never know with absolute certainty what Binyam Mohamed was forced to endure in the name of US national security. Charlie Savage, who covered the case for the New York Times, noted, “The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers.”

The al-Aulaqi suit raises significant issues in the context of national security and civil liberties. Some, such as Franklin and the Constitution Project see the case as a continuation of Bush-era policies, arguing that there has been, “little change,” from the previous administration. Franklin adds, “This is fairly consistent with the defense that we saw the Obama administration making in the Jeppesen Dataplan case.” 

Ben Wizner of the ACLU, however, contends that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation, “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.” The policies Wizner refers to being the administration’s asserted authority to use lethal force away from the battlefield- including against US civilians who have not been charged with any crime.

As a candidate, Barack Obama opposed the Bush administration’s embrace of the state secrets privilege as tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”

In an 18-month review of President Obama’s record on human rights, national security and civil liberties entitled “TheNewNormal,” Jaffer and Wizner praise the early accomplishments of the administration—including its release of crucial information regarding the Bush administration’s torture regime—but they also warn of a potential pitfall on the horizon. “There is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a ‘new normal.’”

The Obama administration has invoked the state secrets privilege for the second time in less than a month—most recently in an effort to shut down discussion on the targeted killing of a US civilian who has not been charged of any crime—the new normal may have just arrived.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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