The Al Aulaqi Brief's Privilege Claim

By Benjamin Wittes
Sunday, September 26, 2010, 10:21 AM

Jack has already pointed out that the government's invocation of the states secrets privilege in its Aulaqi brief is reluctant, even grudging. If anything, he is understating the point. Some press coverage of the brief reads as though the administration here is merely following the Bush administration's pattern of privilege invocations. While I typically see a great deal of continuity in the posture of the two administrations, this does not seem to me an example of that. Except in the sense that the brief does invoke the privilege, it seems to me quite different from prior invocations--largely for the reason Jack identifies. The invocation here is really quite grudging. The privilege appears as the fifth of five arguments for dismissal. And the section of the brief that finally makes the argument begins with an explicit request to the court to decide the case on other grounds. It is headed: "The State Secrets Privilege Need Not Be Reached In This Case." And the first paragraph begins:

The foregoing threshold legal obstacles supply multiple grounds on which the Court should deny the motion for a preliminary injunction and dismiss the case. The Court therefore need not reach a final reason why this case must be dismissed: information protected by the military and state secrets privilege and related statutory protections is necessary to litigate plaintiff's claims. Consistent with the judicial admonition that the state secrets privilege be "invoked no more often or extensively than necessary," . . . the Court should not reach the privilege issue if the case can be resolved on the preceding grounds--particularly given the extraordinary posture of this case.

The government goes on to cite the attorney general's policies on invoking the privilege, which require his personal approval, and notes that this was obtained here. This is not in any sense a chest-thumping invocation of the privilege but a most reluctant one that quite overtly attempts to steer the court away from the question. It is a preservation of the argument, not a full-throated advancing of it. I would defer to Bobby on the empirical question of how much this really differs from the manner in which the prior administration asserted the privilege, but it certainly seems at least tonally different. The government here wants to win on other grounds.