Obama Toughens State Secrets Privilege
National Public Radio (NPR)September 23, 2009
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The Justice Department on Wednesday unveiled a new set of rules for when the government can claim it is protecting state secrets in court.
The Obama and Bush administrations have both been criticized for the way they have invoked the state secrets privilege, which essentially lets the government tell a judge to throw out a case because a trial would expose information that compromises national security.
Among other things, the new rules say that in order for lawyers to make a state secrets claim, a government agency must convince the attorney general and other top Justice officials that releasing information would "cause significant harm to national defense or foreign relations."
In a statement, Attorney General Eric Holder said this will "provide greater accountability and ensure that the state secrets privilege is invoked only when necessary and in the narrowest way possible."
ACLU Attorney Ben Wizner has argued cases against government lawyers who claimed state secrets. The new rules make him hopeful.
"But," Wizner says, "even as they are rolling out this new policy, they are simultaneously demanding that federal courts throw out lawsuits brought by torture victims, including my clients and victims of illegal surveillance, citing the state secrets privilege."
The new policies take effect Oct. 1. It is not clear whether they will change the administration's position in Wizner's case or others already filed.
It is also unclear what impact this will have on pending legislation that would restrict state secrets claims.
Sen. Patrick Leahy (D-VT) is one of the bill's sponsors. "We want the privilege, but we don't want it misused," Leahy said. "We have to have mechanisms to guide its application, and today's announcement marks progress."
Leahy said he would still like to see more involvement from a judge to make sure the privilege is invoked in a responsible way, but he called the new rules movement "in the right direction."
Wizner says even if these new policies are perfect as written, there is still a major shortcoming. "These reforms, even if they're meaningful, will last no longer than the Obama administration," Wizner says.
For that reason, he hopes Congress moves legislation despite the new guidelines.
Even as the Obama administration trumpeted a break with the Bush administration on the issue, officials pushed to continue Bush-era policies on the state secrets issue.
Three parts of the USA Patriot Act expire at the end of the year, and the Obama administration wants to extend them. At a Senate Judiciary Committee hearing Wednesday, Leahy, the panel's chairman, and other Democrats said they think the law needs more protections for civil liberties.
For example, Leahy pointed to one expiring provision that lets investigators secretly take business records, broadly defined. Investigators could seize computers, for example, or financial records. Seizures could encompass "any tangible thing at all," said Leahy, "even if it meant it closed down your small business."
"And the government is almost always guaranteed success," Leahy said, because the law as written presumes the government is correct when it claims business records are relevant to an investigation.
Other parts of the law that are set to expire include the "roving wiretap" provision, which lets the government continue eavesdropping on someone who repeatedly changes cell phones, and the "lone wolf" provision, which lets the government spy on an independent terrorist under the same rules that apply to members of a terrorist group.
Some Democrats have introduced legislation that would scale back the three parts of the law that are up for renewal.
David Kris of the Justice Department told senators he cannot yet state the administration's position on those proposals, but he said the administration wants to work with the committee "to try to see if these tools can be sharpened."
