Too Secret To Be Illegal

CIVIL LIBERTIES UNDER OBAMA (continued)

by Glenn Greenwald


THEN THERE'S the issue of one of the most controversial aspects of the Bush assertion of executive power, which is the version of the state secrets privilege that the Bush presidency developed and pioneered. It's a somewhat technical doctrine, but it's critically important in terms of how it was being used, and how it's continuing to be used--because it basically destroys the rule of law, literally.

The state secrets doctrine was used once starting in 1950s and then applied through the next several decades. It was a doctrine that said that in certain judicial cases involving national security, some documents may be so secretive that even though they're relevant to the litigation, even though they're relevant to the case, even though in all other instances they would be allowed to be used, these documents are so sensitive and risk triggering the disclosure of important state secrets that they can't be used in the case.

What the Bush presidency did was it converted this doctrine from a document-specific privilege that said certain documents can't be used. They developed a new theory that said certain topics are so secretive that they cannot be the subject of litigation, even when the president is accused of breaking the law. That was basically the tool that the Bush presidency used to shield itself from any judicial review for its actions, even the most illegal ones.

The Obama adminstration has continued this doctrine to the point where policies that Obama once condemned as blatantly criminal, like illegal eavesdropping and rendition and torture, are now, under his administration, declared to be such vital state secrets that they cannot even be the subject of judicial review. So even if the President broke the law, he can't be put in court and have a court find that what he did was illegal, because what he did was too secret. It removes the president from the rule of law.

Then there are two policies that are brand new for the Obama administration--ones that didn't exist under the Bush presidency. The first of these is the idea that the president has the right and the power--and not just in theory, but it's actually a power that he's exercising--to target American citizens not just with eavesdropping without warning, the way that Bush did, and not just with detention without due process, the way that Bush did, but with assassination.

The Washington Post in January of 2010 reported that there were four Americans on Obama's list that he has declared, without any due process to be terrorists, who the CIA is not just permitted, but instructed, to hunt down and murder. One of them is Anwar Al-Awlaki, a U.S.-born citizen in Yemen, who the U.S. government hates because he speaks effectively to the Muslim world about the violence that the U.S. commits in that part of the world, and the responsibility of Muslims and the need for Muslims to stand up to this violence. The U.S. hates him because this message is resonating.

So the solution is not to charge him with crimes, because he's not committing any crimes--because you have the First Amendment right to say the things he's saying. It's not even to detain him without due process. They're not bothering with that--they're trying to kill him. They've shot cruise missiles and used drones on at least two occasions in the last year to try to kill this U.S. citizen without due process. Not on a battlefield, but in his home, in his car, with his children--wherever they find him. This policy, this power, is one that the Obama administration has asserted for itself in a way that George Bush and Dick Cheney never did.