Here We Go Again

Seems that some people who are still fighting the 2008 primaries (they know who they are) and who have been pushing the Obama=Bush meme have latched onto the Wired article by David Kravets that Charles mentions in his last post.

Emptywheel explains why we shouldn’t be so quick to take Kravets’ article at face value. And a legal eagle over at DKos who goes by the nom de Kos of “NCrissieB” has already rather neatly sliced and diced the article. (She’s also, in response to prodding by Meteor Blades, sliced up Kravets’ followup piece.)  Here’s a  sample:

The January 5th ruling that the “state secrets” privilege does not exist in FISA-related cases was huge.  This is not the same as the “executive privilege” we heard about in the Libby case, where the president asserts that all conversations with aides are protected because the president needs to have candid advice.  The “state secrets” privilege covers classified information.

We can debate whether the Bush Administration classified too much (I think they did).  We can debate whether the Obama Administration should or will declassify a lot of that information (I think they should and hope they will).  But I hope we can agree that classified information must be protected unless and until it is declassified.  A lot of it is classified for very good reasons, and we shouldn’t throw the nation’s baby out with Bush’s bathwater.

The specific issue here is not whether or how the Obama DOJ will defend the Al-Haramain case.  In fact, the January 23rd memorandum says not one word about whether or how the Obama Administration will treat that case, except that the Obama DOJ does want the trial court to stay proceedings until the Ninth Circuit hear the appeal of the trial court’s January 5th order eliminating the “state secrets” privilege in FISA cases.

In legalese, that’s called an interlocutory appeal, an appeal that is heard “between pleadings” to the trial court.

[…]

So Obama’s just saying “We need to settle this specific legal issue before the case goes on to trial?”

Yes, exactly.

The January 23rd memorandum to the court does not “side with Bush,” except in the very narrow sense that the Obama Administration seems to agree that the appeal of the January 5th decision should happen before the case goes to trial.  And there are sound constitutional reasons for that position.

The “state secrets” privilege is grounded in the president’s Article II authority as Chief Executive, because whether to classify a document is an Executive Branch call.  There are statutes setting out procedures for declassifying a document, but the decision to classify is and has always been an executive decision, usually made by the person or office creating the document, at the time of its creation.  The rules for what kinds of documents should be classified are set by Executive Orders.

So essentially, the trial court found that the 1978 FISA supersedes Article II, and legislative acts can’t supersede the Constitution.  So the Ninth Circuit, and perhaps ultimately the U.S. Supreme Court, should decide whether the “state secrets” privilege applies, and how classified information should be handled, in FISA-related cases.  While the specific classified information in this case is already public knowledge, that won’t always be true.  And while the specific classified information in this case does not seem to reveal any sensitive “sources and methods,” that won’t always be true either.

So regardless of whether and how the Obama Administration defend this one case, there are sound arguments for letting the appellate courts decide how to handle classified information in FISA-related cases.  That will be especially important if the Obama Administration investigate and ultimately prosecute government officials on FISA violations.  They will need to be sure they handle classified information in the best way to both protect sensitive “sources and methods” and provide transparency and justice for the parties.

So Obama kinda-sorta “Sides With Bush,” but really wants to ensure the courts get these procedures right?

Yes, exactly.

But Obama wants to ensure courts get procedures right doesn’t make for a properly cynical headline.  It doesn’t fit the clearly emerging narrative of “Obama will be just like Bush, so give up, go back to complaining because nothing ever changes.”  And that’s the cynical narrative the media would love all of us Natives to buy, so the Villagers can go back to running things their way while we grumble despondently and go along.  That cynicism is about discouraging we Natives from trying to stay engaged and involved in our government.  It’s about going back to business as usual, where the Villagers lead us from one vat of whine to the next, but always in that tut-tutting way that says “Of course, there is nothing you mere peons can do about this.”

And I’ve had more than enough of that.

Another Kossack, who served as the facility security officer for a defense contractor, chimes in:

First of all, we need [the classification process].  The decision to classify a document theoretically is and should be made ONLY to protect national security.  Not to protect an administration.

Among the many things properly classified are:

1) Military capabilities, both of troops and weapons
2) Military plans (would you want the enemy to know your exact capabilities and plans?)
3) How to build an ICBM, or a nuclear warhead
4) Stealth technology and other such technologies
5) emergency preparedness planning (great info for terrorists)
6) Intelligence sources and methods (remember Valerie Plame?)

I could go on at some length, but I’ll spare you. :)

In my experience, there are quite a few things that MUST be classified for valid national security reasons.  Unfortunately, the ability to classify has sometimes been abused.  Take Reagan for example.  After Carter started a massive declassification program (I mean, heavens, we had stuff still classified from WWII!) Reagan came into office, halted the entire declassification program, and indeed made a move to classify every single bit of research being done in this country, even at universities.  Only an uproar from academics and other researchers forced him to rethink.  They argued they couldn’t conduct research if they were inhibited from exchanging information.  The result was DARPAnet…and out of that the Internet.

So state secrets are essential to our national security.  The question that must be decided by the courts is how to handle classified documents in a trial in such a way that protects national security without damaging the legal rights of those involved in a court case.  This is a very important question, and the District Court’s ruling is too broad, with the potential to seriously damage the essential secrecy privileges that really DO protect us.

Obama is quite right to ask for legal clarification.

But again, don’t expect this to matter one whit to the “Obama=Bush” crowd.