Surprising even a judge at the U.S. Court of Appeals for the Ninth Circuit, a lawyer for the Obama administration embraced the Bush administration’s position in the first state secrets case since Obama took power. The case involves five accused terrorist detainees who are attempting to sue a subsidiary of Boeing for arranging flights to accommodate the Bush administration’s “extraordinary rendition” program, which flew them off to be tortured by other governments.
Though it’s now well-known that the practice went on and the details even of these particular cases have been well-documented, just as it did in the horrifying case of Khalen Masri the Bush administration invoked states secrets privilege to prevent the suit from coming to trial. State secrets is a judge-made law (based entirely on a lie, by the way) allowing the executive branch to exclude evidence in a case merely by stating it would be contrary to the interests of national security to allow the evidence to be admitted. Bush administration officials claimed judges are obligated to show the president “utmost deference” on state secrets claims, provoking a federal judge in a domestic spying/wiretapping case to ask if that means “the king can do no wrong,” and that judges are supposed to “bow” before the president in such claims.
According to the Reporters Committee for Freedom of the Press, the state secrets privilege was invoked about 55 times from 1954 to 2001. In the first four years after the Sept. 11, 2001 attacks, the Bush administration invoked it 23 times.
Obama has promised to review Bush’s invocation of state secrets privilege, including voicing his support for a reform bill working its way through Congress. But the case this week was his first opportunity to do something about it. He didn’t.