President Obama made waves in the liberal blogosphere Wednesday night with new comments on his administration’s use of the controversial state secrets doctrine. But amid all the hubbub, Legal Pad is asking: If Obama’s apparent shift is real, how will it affect some key lawsuits pending here in California? The first indication may have come Thursday, when government lawyers in the Al-Haramain warrantless wiretapping case asked for more time to respond to a court order (.pdf).
|Some hints from the government. (click)|
Tonight, Northern District Chief Judge Vaughn Walker wasted no time in approving that request. Last week, Walker broke months of silence in the Al-Haramain case and ordered the government and the plaintiffs to submit a joint statement by May 8 saying how they planned to proceed with the case. The government has repeatedly resisted Walker’s efforts to move the litigation forward, going so far as to tell the judge that he cannot let the plaintiffs see a key, classified document that could show the alleged surveillance.
After the jump: Did the Ninth Circuit corner Obama?
As Glenn Greenwald of Salon has noted, the government’s moves from here on out are somewhat confined, thanks to a Ninth U.S. Circuit Court of Appeals ruling in Mohamed v. Jeppesen DataPlan that narrows the use of the state secrets privilege. Did the Ninth Circuit force Obama somewhere he didn’t want to go, or is Thursday’s request finally the change his supporters have been waiting for? Or, as we’ve seen before with the Al-Haramain case, is the government still going to put its foot down?
Another indication will come in the government’s response to the Ninth Circuit’s Jeppesen decision. Plaintiffs’ counsel Ben Wizner of the American Civil Liberties Union said after the ruling that Obama should be “grateful,” because it lays a road map for exactly how the court thinks his administration should treat state secrets litigation. Whether the DOJ appeals Jeppesen to the Supreme Court will say a lot about how Obama intends to treat the doctrine.
Obama’s explanation on Wednesday failed to placate his critics, among them Greenwald and writers at Wired’s Threat Level blog. Greenwald allowed that it was “nice to hear” Obama call for the reform of the state secrets privilege, but still proceeded to bash the president’s excuse that court-enforced deadlines in suits involving state secrets left his DOJ with little time to figure out a good response.
During his press conference, Obama told viewers to “keep in mind what happens is, we come in to office. We're in for a week, and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We've got to respond to the immediate case in front of us.” Greenwald blasted that statement, saying that DOJ lawyers “continuously indicated they needed no time, because they were convinced that they were right about the state secrets argument and had approval for their positions at the highest levels.”
With so much on their plates, how much attention did Obama and Attorney General Eric Holder give to crafting responses in cases involving state secrets? While it’s true that the Obama team has had months now to decide on a coherent and appropriate defense to the various terrorism-related lawsuits arrayed against it, the inner deliberations at the DOJ and White House have never been clear. Keep in mind that Holder’s civil division chief, Tony West, was only confirmed by the Senate last week.
During an e-mail exchange we had with Jon Eisenberg, the Al-Haramain lawyer, in January shortly after it began to look like Obama was taking on the Bush position, Eisenberg recounted what he thought was a particularly telling conversation he had three days earlier with Anthony Coppolino, the government’s trial lawyer in several wiretapping cases. “My question to Tony was: ‘Did you consult with the Obama transition team about this?’” Eisenberg wrote. “Tony's answer: ‘This case has been briefed to the transition team.’ That was what we lawyers call ‘an evasive non-answer.’”
— Evan Hill