< A New Privilege


Friday, September 25, 2009

BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And, I'm Bob Garfield. On Wednesday, Attorney General Eric Holder unveiled a plan to reform the state secrets privilege. That’s the mechanism whereby governments quash court cases by arguing that a trial would threaten national security. Judges will almost always defer to the government, and citizens have no way of knowing whether our security is really at risk or if the government is just sweeping embarrassments under a national security rug. Even though candidate Obama campaigned against the state secrets privilege, he has invoked it as President at least three times. In response, Senators Patrick Leahy and Russ Feingold proposed legislation to help guide the courts when deciding whether the state secrets privilege should prevail. So, it’s good news that the White House has introduced its own set of reforms. Right? Eh, not necessarily. Civil rights attorney Jonathan Turley has confronted the state secrets privilege in court numerous times. Jonathan, welcome back to the show.

JONATHAN TURLEY: Thank you very much.

BOB GARFIELD: So why don't we begin by telling me why the good news isn't so fantastic, after all.

JONATHAN TURLEY: Well, to be fair to the administration, the reforms do add some procedures, largely internal, but they're primarily saying that the administration’s going to be more cautious in using it, have more people look at the invocation of privilege and try not to use it when they don't have to. What it’s missing is the type of substance that’s contained in the legislation that was drafted by Senators Leahy and Feingold, and specifically that legislation tries to create [LAUGHS] actual standards to have federal courts look at these invocations and make independent decisions. Under the Obama proposal it’s pretty much still the federal government that, when they make this type of invocation, it largely has to be accepted by the court without much review. That’s the problem.

BOB GARFIELD: So, in effect, the Obama administration is saying, yeah, we understand this rule has been abused in the past, but trust us.

JONATHAN TURLEY: It is very much - trust us, we're the government. There’s a great suspicion that this proposal is really an effort by the Justice Department to preempt the legislation in Congress. For the first time in my lifetime there is a majority in Congress that seems close to passing legislation. And I think that the Department of Justice has been counting heads, and they don't want this legislation to pass because it contains real standards. It allows a judge to actually make an independent decision.

BOB GARFIELD: The CBS headline on the story was “Holder Changes State Secret Policy.” The New York Times said, “Justice Department to Limit Use of State Secrets Privilege.” I understand it’s your impression that the press has kind of laid down on this and are being far less aggressive with this Justice Department than they would have been with the Bush Justice Department issuing a similar policy.

JONATHAN TURLEY: If George Bush had proposed this type of change, then the newspapers would have been all over it, asking experts, people who've litigated in this area, whether this is a real change, whether this is substantive, and, more importantly, what was left out. What you saw here, as we've seen in other cases, like the torture area, is that the media immediately picks up with the White House spin. There’s very little effort to look at what of substance is here and what is not here. And when you look at it, you realize that this is a bit of a Potemkin village. It has all of the façade of procedures but not much of the depth. Reporters did, I thought, a very fine job in questioning the Bush Administration about whether fine-sounding words actually had equally fine substance. But none of that has occurred here. The media is just assuming that President Obama is on the side of the angels.

BOB GARFIELD: If you’re right in your analysis, why would Obama, upon ascending to the Presidency, turn his back on his campaign promises? And, maybe more to the point, why would he behave like previous administrations have on questions of national security?

JONATHAN TURLEY: Oh, well, this is nothing new for civil libertarians. I mean, we are always the bridesmaid and never the bride in these new administrations. Presidents, particularly Democrats, often curry the favor of civil libertarians and express their belief in these core principles that must be protected. When they get into office, the first thing they do is they tend to throw those promises to the side. And the answer is quite clear. It’s politics. The Obama White House knows that civil libertarians have nowhere to go and that even if they don't fulfill their promises, they're unlikely to vote for the next Republican nominee. More importantly, the Obama administration has clearly worked to establish Obama as tough on national security. They're very concerned that another terrorist attack could be blamed on any changes that they make. So there really is no downside for being tough on national security and being less protective over civil liberties.

BOB GARFIELD: Thank you so much.

JONATHAN TURLEY: Thank you very much.

BOB GARFIELD: Jonathan Turley is a professor of law at George Washington University.