Last Monday in a San Francisco courtroom, the Obama administration faced a crucial early test -- and, in the view of many liberal supporters, failed miserably.
Four alleged victims of the government's "extraordinary rendition" program -- each of whom says he was seized, flown to a foreign country and tortured at the behest of the U.S. government -- were appealing the dismissal of their lawsuit against Jeppesen DataPlan Inc., the San Jose company that they say helped organize the flights. Their case had been thrown out last year when the Bush administration invoked the "state secrets privilege," arguing that the lawsuit couldn't be allowed to proceed because it would require the disclosure of vitally sensitive classified information.
The American Civil Liberties Union, which brought the Jeppesen case, hoped -- and the Los Angeles Times and the New York Times concurred in editorials -- that the new, Obama-led Justice Department would appear at Monday's hearing to say it was reversing position and dropping its call for dismissal.
Instead, a government lawyer appeared and said that nothing had changed and that the federal court should not "play with fire" by allowing the case to go forward.
Why would the new administration do such a thing? Was it right or wrong? How should we think about the state secrets privilege? Below, a few questions and answers to put the debate in context.
Should we be surprised by the Obama administration's position in the Jeppesen case?
We should be surprised in this sense: During the campaign, the Obama team specifically criticized President Bush's repeated use of the state secrets privilege to have cases thrown out of court. And since entering office, administration officials have reiterated their desire to be more transparent than their predecessors.
So why did they do this?
Well, being president is different from being a candidate. It's easy enough for an outsider to say that there are fewer secrets here than meet the eye, and that their disclosure wouldn't really harm national security.
But when you're president or U.S. attorney general, and the CIA director marches into your office and slams the top-secret material down on your desk -- and then argues that its disclosure could do grave damage to the country's national security -- maybe it's not quite so easy to say no.
So the Obama administration -- and before it, the Bush administration -- were right to stop this case from going forward?
No. But it's a tough decision. And none of us armchair analysts has seen the double- super-secret information that would supposedly cause such damage if released. Only the government has seen it. Even the plaintiffs haven't been allowed to see it (and therefore can't refute the government's argument with any specifics).
If no one knows the secrets except a handful of government officials, don't we have to give them the benefit of the doubt?
Absolutely not. There's a strong case to be made that the Bush administration overused and misused the state secrets privilege. After 9/11, Bush Justice Department officials invoked the privilege dozens of times -- far more times a year than any of their predecessors. And they interpreted it expansively, calling for entire cases to be summarily dismissed, rather than merely having specific pieces of classified information withheld from scrutiny.
What's more, the government invoked the privilege in a number of cases in which it was accused of doing truly heinous things, leading critics to conclude that the goal was not to protect national security but to avoid disclosure of embarrassing, potentially illegal actions.
So no, we shouldn't just assume that when it's used, it's used appropriately.
What's an example of a lawsuit that might embarrass the government?
Take the case of Khaled El-Masri, who says he was flown to Afghanistan and tortured by the CIA in a case of mistaken identity. His case was dismissed before it even began because the government invoked the state secrets privilege. The same goes for Maher Arar, a Canadian citizen detained in New York and then dispatched by U.S. officials to Syria, where he says he was tortured for almost a year. Neither of these men got their day in court.
In the Jeppesen case, one of the plaintiffs, Binyam Mohammed, alleges that interrogators used a scalpel to make incisions in his body, including his penis, and then poured a hot, stinging liquid into his wounds. If that is true, you can see why the government might not want the case to go forward.
Surely the government must have given some further explanation of why the Jeppesen secrets are so secret?
Then-CIA Director Michael V. Hayden presented a classified declaration to the lower court in which he presumably explained what was so sensitive. Neither the plaintiffs nor the media were allowed to read it. But there was a slimmed-down, unclassified version that was made public. In it, Hayden identified several categories of information that he said could not be disclosed without risking serious, and in some cases "exceptionally grave," danger to U.S. national security.
He said the case couldn't go forward because it would require the government to confirm or deny Jeppesen's role assisting the CIA. And it might reveal information about foreign countries that cooperated with the CIA (which would discourage allies from working with us in the future). Hayden also said it would be damaging if information came out about the locations in which these things supposedly occurred or about CIA interrogation methods. The latter, he said, would "assist [terrorists'] interrogation resistance programs."
Is Hayden's case persuasive?
Not terribly. For one thing, there's so much information already out about the rendition program that it's difficult to see what more harm can be done. We already know that Binyam Mohammed, for instance, says he was taken to Pakistan, Morocco and Afghanistan, and we know every conceivable detail about the interrogation methods he says were used on him. These facts and many others about him and his co-plaintiffs have appeared in newspapers and on television and are easily available on the Internet. If they were to come out again in a courtroom, what further damage would ensue?
But, of course, we haven't seen Hayden's classified version, so we can't be sure.
What happens next? Will President Obama invoke the privilege as often, and as expansively, as Bush did?
The Justice Department says it will assert the privilege only when it is necessary and appropriate. Kathryn Ruemmler, the principal associate deputy attorney general, says it will not be "lightly invoked."
In an interview, she acknowledged that invoking the privilege could have "harsh results" -- including the possibility that a litigant with a valid claim would be unable to pursue it in court. But the government must balance that against the potential harm to national security, she said.
She also said the privilege would not be invoked "to hide from the American people information about their government they're entitled to know."
What happens in that case now?
The judges of the 9th Circuit Court of Appeals have to decide between the government's argument for dismissing the case and the ACLU's argument that it should go forward. A decision is expected soon.
Nicholas Goldberg is the deputy editor of The Times' editorial pages.Copyright © 2014, The Baltimore Sun