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