Obama, once a critic of the state secrets doctrine, has invoked it repeatedly. But critics say his latest use of Bush's favorite get-out-of-court-free card is different.
The state secrets privilege—perhaps the most powerful weapon in the government's legal arsenal—has a complicated history. For years, Democrats, including then-Sen. Barack Obama, accused the Bush administration of overusing of the privilege, which allows the government to quash cases that involve national security before a court even hears evidence. Then, after Obama took office, his Justice Department used this get-out-of-court-free card repeatedly.
Last week, the DOJ invoked the state secrets privilege yet again. But this case, civil liberties groups say, is different.
Most of the post-9/11 cases that the government has killed with the state secrets privilege have either involved foreign-born terrorist suspects or the government's actions abroad. The case the Obama administration tried to quash last week doesn't explicitly involve either. The case in question, which was brought by the American Civil Liberties Union and the Council on American-Islamic Relations (CAIR), focuses squarely on domestic intelligence-gathering targeting Americans—namely the FBI's allegedly widespread use of informants and surveillance against Muslim Americans.
The FBI's involvement in the case—and the fact that it involves Americans—makes it stand out among the other state secrets cases, says Ameena Qazi, CAIR's deputy executive director. "We're surprised at the government's shocking move in invoking the state secrets doctrine in this case of all cases," Qazi says. Since this case "involves domestic intelligence-gathering on US soil against Americans," she explains, "it's an unprecedented move to our knowledge."
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