Thursday, March 19, 2009
Advertisement
Q&A: KEN GUDE
CAP Expert: Obama Right To Invoke State Secrets
Ken Gude Defends The Administration From Criticism That It's Following Bush's Lead On Extraordinary Rendition
"The whole purpose of creating a legislative guide... is not to simply accede to the government's demands every time."
-- Ken Gude
On Feb. 9, President Obama's new Justice Department decided it would maintain the Bush administration's invocation of the state secrets privilege in Mohamed v. Jeppesen Dataplan Inc., an extraordinary rendition case in the 9th Circuit Court of Appeals. Backlash from civil rights and human rights groups was quick and heated, focusing on what they interpreted as a continuation of George W. Bush's abuse of the privilege. Parties on both sides of the issue now await a ruling from the 9th Circuit -- which could take anywhere from two to six months -- on whether to grant or deny the government’s request for dismissal.
Two days later, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., re-introduced the State Secrets Protection Act, which would, for the first time, give the courts guidelines regarding use of the more than 50-year-old claim. "In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation," Leahy said in a statement.
NationalJournal.com's Amy Harder spoke with two experts on the matter: Ken Gude, a national security law expert at the left-leaning Center For American Progress who supports the DOJ's decision, and Ben Wizner, an attorney at the American Civil Liberties Union who represents the plaintiffs in Jeppesen case. Edited excerpts from her conversation with Gude follow, and Wizner's interview is available here. Visit the archives page for more Insider Interviews.
NJ: Critics of Mohamed v. Jeppesen Dataplan Inc. argue that Obama's DOJ should have asked for a delay in the case. Why didn't it?
Gude: A lot of commentators have said that they could have asked for a continuance of course, which they could have. But it seems to me likely that they have gone through their initial calculations and said, "OK, there may be a legitimate claim here on state secrets and that we haven't gotten our position fully articulated on how we wanted to pursue state secrets as a government-wide policy. There are some matters at stake here that we believe would implicate that privilege, and so we're going to keep it for the time being."
Looking at the facts of the case, it deals with issues that they are going to want to address in a big-picture way, which is the use of the extraordinary rendition power, the allegations of torture against detainees more widespread than has been already revealed by the government. It seems that, at least to me, that they are trying to find a way to come to grips with those issues on their own time, on their own clock. And this particular case came at a difficult time for them. They may ultimately conclude that state secrets privilege was appropriately applied in this case.... Given who they are, and given the positions that they've taken before, I would be generally supportive at this point of their decision to invoke it in this case.
NJ: But couldn't the administration have prevented the backlash that came from the left by ordering a continuance?
Gude: I don't really think they're going to be making decisions about what is their correct legal strategy looking at the criticism they're going to receive from the civil liberties or human rights communities. I think that criticism from the left is fine -- sometimes it's very justified. I'm a civil libertarian. But they need to be making decisions based on what they think is in the best national interest of the country.
NJ: At the same time as this case, the DOJ announced it will review every open Bush-era case involving state secrets. What's your reaction to this?
Gude: I think it's entirely consistent. If you are saying that what they want to do is put a big suspension on all of these types of cases while they review the policy and move forward -- [that] would have been one path to choose, and that's kind of the path they chose in some of the habeas cases and in some of the military commissions. They didn't choose to do that with the Jeppesen case, which may lead you to believe that they are going to continue that one. They reviewed that one individual case and decided that it was appropriate.
NJ: One aspect of the State Secrets Protection Act introduced recently in Congress would require judges to review the evidence the government claims is secret. Do you think Congress could create some sort of blind judge panel, such as what was used in the Foreign Intelligence Surveillance Court, to ensure alleged secret information remains secret?
Gude: I would be skeptical from a perspective of using the FISA court as a good example, simply because the experience of the FISA court has been one where, of course the judges do gather a certain amount of expertise in this area, but they also have developed a somewhat unhealthy favoritism toward the government's position and almost never reject FISA applications. We should use that experience and how the FISA court has gone about its business as a strong warning to establishing a similar type of court because the whole purpose of creating a legislative guide for how to use this is not to simply accede to the government's demands every time.
NJ: What kind of role do you think judges should play in deciding when the act should be invoked?
Gude: I would hope that even if the legislation does not become law, and even if the Obama administration on its own does not create some new procedures for the application of the state secrets privilege from the government side -- although I think they will -- that judges will take it upon themselves and the judicial conference will take it upon itself to develop its own set of guidelines in instances when the government invokes the state secrets privilege. And they should be doing all that they can to ensure that the government is actually making a legitimate claim and should push the government to come up with reasonable substitutions if that is at all possible.
NJ: Is there anything missing from the act that you think should be included to ensure administrations don't abuse the privilege?
Gude: It seems to me that there was a discussion at one point of establishing a special master to hear the cases, which would be essentially -- not the judge in the case -- but there would be a separate appointed individual who would make rulings on these types of assertions by the government.... They would be focused exclusively on making determinations about whether or not the government is justified in asserting state secrets.
NJ: So you haven't been jaded by the new DOJ's actions on state secrets?
Gude: Well, not yet. I think time will tell. I'm certainly willing at this point based on the whole direction that they've been going. It's important to remember in the Mohamed case, which has been completely lost in the jumble about this aspect of it, the Obama administration let [the case's top plaintiff, Binyam Mohamed] go. He's now living freely in the United Kingdom.
So the notion that the Obama administration has some interest in keeping secret his treatment or doing this man harm seems ridiculous in the face of the fact that he's the only guy that has been let out of Guantanamo since the Obama administration took office. So, they've granted him essentially the remedy that is far beyond the remedy that he would have obtained from the lawsuit. And, with the way that the president made the announcement on Guantanamo and interrogation and extraordinary rendition at the same time two days after taking office, it seems very likely that all of the individuals who have been subjected to those kinds of treatments will receive some type of closure on their case....
The accelerated timeline here with the Mohamed case put them in bit of a box. But, if you're looking for the direction that they want to go, don't forget that they let him go.