Is Obama making Bush look like a piker on the ‘state secrets’ issue?

The Washington Post reported yesterday on a position the Obama administration has taken on state secrets that is at odds with his campaign promises on the issue of “secrecy in government”:

Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.

The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama’s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated “state secrets,” but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them.

The suit by the al-Haramain Islamic Foundation has proceeded further than any other in challenging the use of warrantless wiretaps, threatening to expose the inner workings of that program. It is the second time the new Justice Department has followed its predecessors in claiming the state-secrets privilege, which would allow the government to exclude evidence in a civil case on grounds that it jeopardizes national security.

[…]

In his campaign plan to “change Washington,” Obama criticized the Bush administration, saying that it had “ignored public disclosure rules” and that it too often invoked the state-secrets privilege, according to his Web site.

Now, Obama’s claim of state secrets has prompted criticism.

“There has to be other ways to protect secret information without having to block accountability,” said Erwin Chemerinsky, a law professor at the University of California at Irvine. He said that “state secrets” has become a sort of “talismanic phrase” uttered by government officials who want to dispose of inconvenient or troubling challenges to their authority.

Legal scholars say there are legitimate reasons for the state-secrets privilege, pointing out that it may be necessary to keep from disclosing government sources and methods of intelligence gathering. And Justice Department spokesman Matthew Miller countered the criticism, saying that “in just two months, the Justice Department has already moved on a number of fronts to ensure Americans have access to information about their government’s actions, and with respect to state secrets, the attorney general has ordered a review of pending cases to ensure the privilege is only invoked when absolutely necessary.”

In the al-Haramain case, Obama has not only maintained the Bush administration approach, but the dispute has intensified, with the Justice Department warning that if the judge does not change his mind, authorities could spirit away the top-secret documents.

It would be so easy to go the “What if Bush did this?” route, but instead, I turn it over to Ed Morrissey who makes some great points in response to the WaPo report:

Those [on the right] who accepted unquestioningly the state-secrets doctrine of Bush may now want to make hay out of Obama’s expansion of them. After all, what Obama wants to do here is to essentially lock the judiciary out of the decision loop forever on whether the government has a legitimate right to the claim of state secrets in any case. That will warp the separation of powers between the executive and judicial branches, and could set a precedent for massive abuses of power. How many conservatives and center-right people want to trust Obama with those powers now?

When Democrats demanded and got concessions during the FISA reform effort to strengthen the role of the FISA court over the Bush administration’s initial proposal, I supported that change while supporting the reforms that allowed for more efficient ability to track international calls. So did a few other conservatives on the same grounds of limiting executive reach. Some criticized that position, but we knew eventually that we would have a President that we didn’t like, which is why the balance of power issue is so important. That day is now.

I believe that the government needs a state-secrets doctrine that’s broad and enforceable, but I also think that the judiciary has to have some role in determining its limits. The threat by the Obama administration to withdraw that question from the judiciary is at least troubling — and while I’m glad to see that they’ve quickly accepted the Bush position on state secrets, the effort to cut out the judiciary should worry everyone on both sides of the aisle.

Yep.