The Irrelevance of “Reluctant” Invocations of the State Secrets Privilege

by Kevin Jon Heller

In the past few hours, both Jack Goldsmith and Ben Wittes have argued that the Obama administration has “reluctantly” claimed that the ACLU/CCR lawsuit must be dismissed because of the state-secrets privilege.  Here, for example, is Ben:

This is not in any sense a chest-thumping invocation of the privilege but a most reluctant one that quite overtly attempts to steer the court away from the question. It is a preservation of the argument, not a full-throated advancing of it. I would defer to Bobby on the empirical question of how much this really differs from the manner in which the prior administration asserted the privilege, but it certainly seems at least tonally different.

Seriously, who cares if this invocation of the privilege is “tonally” different?  The Obama administration included the claim in its motion to dismiss.  If it loses all of its other arguments, will it allow the lawsuit to go forward because it is “reluctant” to invoke the privilege?  Of course not.  So of what possible relevance is the “tone” the motion uses?

2 Responses

  1. The way the system works, you have to dump all your issues in a bag and the judge gets to pick out the one he likes. There is a priority, but it is subject to interpretation.

    If the judge agrees that there is no standing, then that will probably take priority and preclude any finding on any other question. If he finds standing, then typically the court prefers to address constitutional issues last.

    The more important textual or “tone” question is the way that this brief dances all around the constitutional question without ever once mentioning “Article II”. Instead, the brief talks at length about the justiciability of a question better left to the political branches, suggesting that the problem is the limited competence of the Article III branch (or at least the “political question” doctrine) rather than a power of the Presidency. Goldsmith, on the other hand, ignores all this fine footwork and characterizes the entire argument as inherent Article II power even though that is really his own opinion and not necessarily anything from the brief.

    Normally, a judge will jump on State Secrets as a way to avoid making a pronouncement on Article II verses Article III powers. So the DOJ tries to claim that they really don’t want the priority to run in that order.

    We don’t always get what we want. Jeppesen is a company that started making maps for pilots. It recently expanded into navigation software (pilots can download Jeppesen Apps into an iPod). Since they were already in the space, they will electronically generate and file your flight plan, arrange for your plane to be refueled, and make hotel reservations for your flight crew. They do not own planes, or employ pilots, or transport people or cargo anywhere.

    However, one of their clients is the CIA. Once it became widely rumored that the CIA was transporting detainees to secret prisons for torture, a Jeppesen executive commented casually that since they did logistics for all the CIA flights, that must include some of those rumored “torture” flights. Another employee heard the remark, told some lawyers, who then sued the company for nothing more than doing routine innocuous business with the CIA. Presumably once these rumors became know, it was actionable for anyone to do business with a government as evil as the US.

    The “travel agent” has no need to know which flights do what sort of business, so it is insane to assume that the CIA told Jeppensen what was being done on any given flight. However, lawyers who could not sue the CIA directly decided to engage in a little legal terrorism by attacking a company that makes maps and books hotel rooms for the offense of doing business with a government agency of which they disapprove.

    Now I would have liked to see the judge dismiss the case based on the principal that ideological legal thuggery is offensive to our basic principles of right and justice. Unfortunately, we don’t always get what we want, and the case was dismissed due to state secrets. It is not clear that the DOJ will get what it wants here either.

  2. Kevin,

    Please, check your melbourne e-mail account!


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