Obama Looks Like Bush on National Security Secrecy Argument

Bad news today for people who were hoping that Barack Obama would roll back some of the imperial executive which Bush, Cheney and their wacky legal theorists built over the last eight years. The new administration's lawyers picked up a questionable legal theory from the old administration, that national security trumps due process of law.

The issue came up Monday in a court case where five former detainees are suing for Boeing helping with the Bush administration's "extraordinary rendition" program. The Bush administration had argued that the case should be dismissed because, as today's New York Times puts it, "even discussing it in court could threaten national security and relations with other nations."

Candidate Obama was rather critical of extraordinary renditions. So the judges hearing the case on Monday were a bit taken aback when governmental lawyer Douglas Letter declined an opportunity to change the government's argument in the case.

The charitable interpretation here is: Obama and his aides don't want to appear dangerously hasty while dismantling the Bush national security apparatus. They're doing their due diligence before rolling some of this stuff back.

But then there's this, from the Times:

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

"It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases," he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

I'm going to use these presidential powers less is a distinctly different thing than These "powers" were an over-reach and should be rolled back. Presidents don't as a rule relinquish powers grabbed by their predecessors, so it would not be a surprise if Obama and his team assume the first position. But it would be a disappointment.

On Facebook? You can keep up with Thomas Jefferson Street blog postings through Facebook's Networked Blogs.

• Read more by Robert Schlesinger.
• Read more from the Thomas Jefferson Street blog.
• Read more about national security.