Executive Privilege Beyond The M & M’s On Air Force One


Charlie Savage in NYT:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

Adam Sewer in Tapped:

If that sounds, familiar, it’s because it’s exactly what Holder told Feingold in February, that he would “review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.” The difference between the new policy and the old policy is that the old way was “more informal,” according to Charlie Savage. In other words, the new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place.

As for the timing of this announcement, bmaz points out that oral arguments are scheduled soon for the al-Haramain v. Obama case, in which the administration is attempting to block judicial scrutiny into the use of warrantless wiretapping–a case in which the plaintiff, an Islamic charity that was wiretapped by the NSA, is wiping the floor with the administration. If anything, the “new policy” seems designed to obscure the fact that the government intends to invoke the privilege again very soon.

Bmaz at Emptywheel:

Now why, lo after all these months, would the Administration suddenly announce their “new policy” at this instant? One reason certainly might be the fact that oral argument on plaintiffs’ motion for summary judgment in the absolutely critical state secrets case of al-Haramain v. Obama are scheduled for this morning in front of Judge Vaughn Walker in the Northern District of California.

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous “John Ashcroft hospital scene” when Jim Comey and other DOJ officials revolted and the Bush Administration was unquestionably illegally operating their program under the insufficient signature of White House Counsel Alberto Gonzales.

But the monster problem that may be lurking beneath even this surface is that when Bush’s DOJ submitted declarations to the court describing their program and why state secrets were being invoked in 2006, they did not describe the underlying process by which they picked targets, to wit data mining. And the existence of data mining is a huge problem, because all activities in that regard had been rendered illegal and were specifically defunded by Congress in the Appropriations bill for that year.

Blog of Legal Times:

Holder’s proposal could head off an effort by Congress to legislate restrictions on the privilege. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, has sponsored legislation to do just that, but he held off acting on his bill this summer in order to give Holder time to finalize an internal Justice Department plan.

Within minutes of the plan’s release, Leahy’s office sent out a statement largely supporting it. The new policies “bring a higher degree of transparency and accountability to a process previously shrouded in darkness,” said Leahy (D-Vt.). But, he added, Congress will have to monitor how the policies work and whether the government makes a “substantial evidentiary showing” when it invokes the privilege.

Holder’s memo promises periodic reports to Congress, and it sets out a procedure for invoking the privilege that would involve a large chunk of the Justice Department leadership. A State Secrets Review Committee “consisting of senior Department of Justice officials designated by the Attorney General” would make a recommendation to the deputy attorney general after an evaluation, and the deputy attorney general would then make a recommendation to the attorney general.


The problem is that the people deciding whether “significant harm to national defense or foreign relations is at stake” remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it’s not that I don’t trust Eric Holder or the review committee tasked with making this determination, I don’t trust who comes after him. Case in point – Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

It’s not enough for the executive branch to police itself. Congress should act.

Glenn Greenwald:

On a different note, the so-called “new state secrets policy” which the Obama DOJ is set to unveil is such a self-evident farce — such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing — that I couldn’t even bring myself to write about it.  It would not have altered a single one of the controverisal uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

Jonathan Adler:

This change may have been a long time coming, but that is not a surprise. Federal policies of this sort cannot be changed overnight — at least not without substantial cost. Specific policy guidelines and supporting memoranda must be drafted and approved after input from affected agencies. This can be a lengthy process, particularly when key offices in the relevant agency are vacant and the Administration has other pressing priorities on its plate. While I suppose the President could have immediately suspended reliance on the privilege, he took a more responsible course: ordering a review of how the privilege is used and tasking Justice Department attorneys with developing a new policy that will safeguard vital government interests in a less intrusive fashion.

Based on these news reports, it sounds like the new policy is a significant improvement. The state secrets privilege should be used quite sparingly, and only then as a last resort. It should not be a ready tool to make embarrassing or inconvenient litigation go away. Developing more formal guidelines is also an improvement, as the lack of clear rules makes it easier to invoke the privilege unnecessarily. It is only natural for government attorneys to seek any and all means of dismissing unwanted litigation — after all, their goal is win for their client (which, for most governemnt attorneys, is the government). Therefore, clear rules and procedures limiting the privilege will reduce this potential for abuse. Even if the new policy would have allowed invocation of the privilege in the recent cases that sparked the controversy, it should provide greater assurance that the privilege is only invoked when it serves a legitimate purpose.

Daphne Eviatar at Washington Independent

Kevin Drum

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Filed under Executive Branch, Go Meta, Political Figures

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