Initial Thought on Al Aulaqi and the Press

By Benjamin Wittes
Tuesday, December 7, 2010, 12:16 PM

I wonder how many media outlets that misleadingly made the government's invocation of the state secrets privilege the central feature of their coverage of its arguments will eat crow in light of Judge Bates' refusal (at the government's urging) to engage the subject of the privilege. Probably none, but many should. This is an 83-page opinion, of which a scant three pages deal with this issue. Here is what they say in relevant part:

[D]efendants also correctly and forcefully observe that this Court need not, and should not, reach their claim of state secrets privilege because the case can be resolved on the other grounds they have presented. It is certainly true that the state secrets privilege should be "invoked no more often or extensively than necessary." Jeppesen Dataplan, 614 F.3d at 1080. Indeed, last year the Attorney General promulgated a policy confirming that the state secrets privilege will only be invoked in limited circumstances involving a significant risk of harm to national security and after detailed procedures are followed (including personal approval of the Attorney General). See Defs.' Mem., Ex. 2. And here, defendants have confirmed that the privilege has been invoked only after that careful review and adherence to the mandated procedures under the Attorney General's policy. See Defs.' Mem. at 44.

Under the circumstances, and particularly given both the extraordinary nature of this case and the other clear grounds for resolving it, the Court will not reach defendants' state secrets privilege claim. That is consistent with the request of the Executive Branch and with the law, and plaintiff does not contest that approach. Indeed, given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue. But in any event, because plaintiff lacks standing and his claims are non-justiciable, and because the state secrets privilege should not be invoked "more often or extensively than necessary," see Jeppesen Dataplan, 614 F.3d at 1080, this Court will not reach defendants' invocation of the state secrets privilege.

The fact that the case was decided on grounds other than the privilege--on the standing, political question, and the Alien Tort Statute--is, among other things, a rebuke to the press, which grossly undercovered the arguments made on behalf of Al Aulaqi and fairly consistently misdescribed the arguments the government was making. The result is that very few papers that today have to cover Judge Bates' decision have meaningfully discussed the bases on which he has thrown out the case.