Obama on ‘state secrets’ doctrine: It’s ‘overbroad’ and should be ‘modified.’

Though he was a critic of the Bush administration’s use of the “state secrets” argument as a presidential candidate, President Obama’s administration has pushed the same legal rationale in three ongoing lawsuits. During last night’s primetime press conference, when Time’s Michael Scherer asked Obama how his position differed from President Bush’s, Obama replied that he actually thinks that it should be “modified“:

OBAMA: I actually think that the state secret doctrine should be modified. I think right now it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

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On Tuesday, the 9th Circuit Court of Appeals reinstated a lawsuit that both the Bush administration and the Obama administration had asked a trial judge to throw out using the “state secrets” doctrine. The New York Times editorial page wrote yesterday that the courts’ decision “tamed” the use of the “state secrets” doctrine.