[Infowarrior] - Obama to Set Higher Bar For Keeping State Secrets

[Richard Forno]

Obama to Set Higher Bar For Keeping State Secrets
New Policy May Affect Wiretap, Torture Suits
By Carrie Johnson
Washington Post Staff Writer
Wednesday, September 23, 2009

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/22/AR2009092204295_pf.html
The Obama administration will announce a new policy Wednesday making  
it much more difficult for the government to claim that it is  
protecting state secrets when it hides details of sensitive national  
security strategies such as rendition and warrantless eavesdropping,  
according to two senior Justice Department officials.

The new policy requires agencies, including the intelligence community  
and the military, to convince the attorney general and a team of  
Justice Department lawyers that the release of sensitive information  
would present significant harm to "national defense or foreign  
relations." In the past, the claim that state secrets were at risk  
could be invoked with the approval of one official and by meeting a  
lower standard of proof that disclosure would be harmful.

That claim was asserted dozens of times during the Bush  
administration, legal scholars said.

The shift could have a broad effect on many lawsuits, including those  
filed by alleged victims of torture and electronic surveillance.  
Authorities have frequently argued that judges should dismiss those  
cases at the outset to avoid the release of information that could  
compromise national security.

The heightened standard is designed in part to restore the confidence  
of Congress, civil liberties advocates and judges, who have criticized  
both the Bush White House and the Obama administration for excessive  
secrecy. The new policy will take effect Oct. 1 and has been endorsed  
by federal intelligence agencies, Justice Department sources said.

"What we're trying to do is . . . improve public confidence that this  
privilege is invoked very rarely and only when it's well supported,"  
said a senior department official involved in the review, who spoke on  
the condition of anonymity because the policy had not yet been  
unveiled. "By holding ourselves to this higher standard, we're in some  
way sending a message to the courts. We're not following a 'just trust  
us' approach."

The policy, however, is unlikely to change the administration's  
approach in two high-profile cases, including one in San Francisco  
filed by an Islamic charity whose lawyers claim they were subjected to  
illegal government wiretapping. That dispute, involving the al- 
Haramain Islamic Foundation, provoked an outcry from the American  
Civil Liberties Union and other public policy groups this year after  
the Obama Justice Department followed the Bush strategy and asserted  
"state secrets" arguments to try to stop the case.

In a separate lawsuit filed by five men who say they were transported  
overseas to CIA "black site" prisons, where they underwent brutal  
interrogation, the U.S. Court of Appeals for the 9th Circuit this year  
criticized the Justice Department for making a sweeping argument to  
scuttle the case and keep even judges from reviewing materials.

To side with the government, the court ruling said, would mean that  
judges "should effectively cordon off all secret government actions  
from judicial scrutiny, immunizing the CIA and its partners from the  
demands and limits of the law."

In a news conference the day after the court's ruling, Obama told  
reporters that he thought the privilege was "overbroad" and could be  
curtailed.

"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," the president said in late April. "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."

Under the new approach, a team of career prosecutors must review and  
the attorney general must approve any assertions of the state secrets  
privilege before government lawyers can make that argument in court.  
Officials said the new policy will ensure that the secrecy arguments  
are more narrowly tailored and that they are not employed to hide  
violations of law, bureaucratic foul-ups or details that would  
embarrass government officials.

The policy will also severely limit the government's ability to claim  
that the very subject of some lawsuits should trigger the state  
secrets privilege, except when necessary to protect against the risk  
of significant harm.

It is unclear how the new policy will affect pending legislation on  
Capitol Hill, where Democrats in the House and Senate Judiciary  
committees have introduced bills that would give judges more authority  
to sift through sensitive evidence when the government has invoked the  
legal privilege. The legislation would raise the standard for state  
secrets to instances when the release of material "would be reasonably  
likely to cause significant harm to the national defense or the  
diplomatic relations of the United States."

That standard closely tracks language in a memo drafted by Attorney  
General Eric H. Holder Jr. laying out the new state secrets policy.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), a co- 
sponsor of one state secrets bill, said reforms are a "priority . . .  
to bring a greater degree of transparency and accountability to a  
process that has been shrouded in secrecy."

The Justice Department officials said Tuesday that their agency would  
give regular reports on their use of the state secrets privilege to  
oversight committees on Capitol Hill and that the attorney general  
would pass along "credible" allegations of wrongdoing by government  
agencies or officials to watchdogs at the appropriate agencies, even  
if the administration had decided to invoke the legal privilege in  
sensitive cases.

The new policy was welcomed by Gary Bass, executive director of OMB  
Watch, a nonprofit that promotes government transparency. He said it  
was "enormously consistent with open-government recommendations" from  
himself and other advocates.

Since February, a Justice Department task force of eight lawyers has  
been sifting through about a dozen pending cases in which state  
secrets arguments have been made.

So far, they have reversed course in only one lawsuit -- a bizarre  
case in federal court in the District in which a former agent for the  
Drug Enforcement Administration accuses the State Department and the  
CIA of installing listening devices in a coffee table in his home.