[Infowarrior] - Obama to Set Higher Bar For Keeping State Secrets
Richard Forno
rforno at infowarrior.org
Wed Sep 23 11:47:35 UTC 2009
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.
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