State Secrets Doctrine: the Sky is *NOT* Falling

One particularly endearing trait of the Bush administration was its tendency to resist any civil lawsuits touching on national security on the grounds that their defense would require revelation of “state secrets”: this doctrine applied, for example, to prevent actually-innocent victims of extraordinary rendition from (upon return) suing the government for intentional infliction of emotional distress, battery, negligence, etc. – the whole battery of tort claims that you’re entitled to after being beaten in a box for nine months.

Although no-one will doubt the existence of legitimate state secrets that probably do merit exemption from disclosure, the doctrine has a history of dubious assertion, and wrongful application to bar legitimate claims. As ACLU attorney Ben Wizner argued to my Counterterrorism class in the fall, the doctrine has its origins not in the noble and justified protection of legitimate secrets, but in a Nixon-era attempt to “push the envelope” of executive privilege. When a government-owned passenger aircraft crashed in the ’70s, killing crew and passengers, victims’ families sued the government, demanding the aircraft’s black box to establish negligence. The Nixon administration resisted disclosure, claiming the aircraft carried secret government war materiel, technology that the black box’s disclosure would impermissibly reveal to the world. A baffled Supreme Court gave in, and dismissed the case under the newly minted “state secrets” doctrine – only to have the victims’ families discover, thirty years later, that the black box carried no such information. Yes. Seriously.

So it should come as no surprise that Obama campaigned on a pledge to bring responsibility to the exercise of the state secrets doctrine – but perhaps as some surprise, that he’s since gone back on the pledge. Or has he? As Marc Armbinder of The Atlantic argues, Obama’s disappointing recent exercise of the state secrets doctrine is best seen as less of a commitment to follow the same disappointing path as his predecessors, and more of an admission that such policies can’t change on a dime:

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. [. . . .]

Retracting the privilege in this case might subject the government to a host of claims that it cannot fight; it makes sense that the administration wants to manage how it handles the issue of accountability.

In short, changing the way the government handles the state secrets doctrine can’t happen overnight, and it probably shouldn’t. And, this first assertion of the doctrine need not imply that Obama is going to continue Bush’s abuse of it. It just means stopping it will take a little more work than we’ve thought.