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Attorney general to limit state secrets privilege

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From the Fall 2009 issue of The News Media & The Law, page 19. The Obama administration took a definitive…

From the Fall 2009 issue of The News Media & The Law, page 19.

The Obama administration took a definitive step toward reversing a trend of increased government secrecy on Sept. 23 when the attorney general issued a memorandum outlining new policies and procedures that limit the use of the state secrets privilege — when the government moves to dismiss a pending lawsuit because the information needed for trial is so sensitive it could impact national security.

Though the memorandum was a step toward transparency, critics note a policy is not binding, as legislation would be, and provides little recourse when secrecy disputes end up in the courts.

Under the new policy, which took effect at the beginning of October, federal agencies and the military can only use the state secrets privilege to refuse to turn over evidence during discovery or at trial if they convince Justice Department attorneys that it is truly in the interest of national security and not to “conceal violations of the law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency of the United States government,” Attorney General Eric Holder wrote in his memorandum.

In the past, the government has invoked the state secrets privilege in lawsuits regarding warrantless wiretapping, rendition, torture and interrogation programs.

“The fact that there even is a very public and specialized policy, really changes the playing field,” said Sean Moulton of the government accountability group OMB Watch.

“Before, it was just a very mysterious privilege and we weren’t really clear on how the administrations have made these decisions. In a lot of ways, this is one of the first things to happen in a public forum.”

Others, like ACLU attorney Ben Wizner, are less convinced the new policy is a definitive step in the right direction. The real problem, Wizner said, is that the new policy fails to implement any meaningful path to judicial review.

“I’m much less interested in what their press releases say and much more interested in what their briefs to the courts say,” said Wizner, who is with the organization’s national security project.

Both critics and supporters are also concerned about the policy’s application and whether the revisions would withstand a change in administration.

“We still absolutely need legislation, one way or another,” said Moulton. “The next administration to come in and sit in the White House could just as easily change it again. We need legislation to clearly define what the state secrets privilege is.”

Some legislators agree with Moulton’s assessment. Sen. Patrick Leahy, D-Vt., warned in a Judiciary Committee hearing on Sept. 30 that the privilege has been misused in the past and could be again. “I’ll keep pushing on this state secrets act that we have pending right now before the committee, not just for this administration but for future administrations to have some guidelines,” Leahy said.

The legislation Leahy referred to is the State Secrets Protection Act, a bill designed to guide federal courts considering cases in which the government has invoked the states secret privilege. Leahy, along Sens. Arlen Specter, D-Pa., Russ Feingold, D-Wis., and the late Edward Kennedy, D-Mass., introduced the bill to Congress.

Meanwhile, as the Justice Department’s new policy stands, there is a more extensive process the government must conduct in order to assert the state secrets privilege. Initially, a government department or agency must submit a detailed declaration on why the privilege should be asserted to the Justice Department. An assistant attorney general will decide whether to recommend it to a state secrets review committee, which is comprised of senior Justice Department officials designated by the attorney general. The attorney general’s personal approval will be required before the privilege can be invoked.

“The plan has a number of steps, and we anticipate that it will be reviewed by a department committee [and] the decision will be made by the attorney general,” said Associate Attorney General Thomas J. Perrelli at the Judiciary Committee hearing.

But critics argue that actions speak louder than words. “So far there is no evidence that this is a positive step forward, because in the most important cases in which state secrets has been evoked, the Obama administration still has continued to assert states secrets,” the ACLU’s Wizner said. “Their real opportunity to show that they are serious about reform is not by releasing a new policy, but by changing their litigation tactics.”

One example that the Obama administration is continuing the policies of previous administrations can be seen in Horn v. Huddle, a case in the U.S. Court of Appeals in Washington, D.C. Horn alleged that government defendants violated his constitutional rights by taping his telephone and recording a late-night conversation between him and another drug enforcement agent. Despite the policy change, the government continued to assert the state secrets privilege in this case, claiming it is not affected by the new policy. Recently, however, the parties have undergone settlement negotiations and a judge likely won’t determine whether the state secrets claim in the suit was warranted.

Moulton isn’t surprised that the current administration has continued to invoke the state secrets privilege during cases that began during the last administration, and views any change as a first step towards a shift in policy. “I’m not sure how much is reasonable to expect the administration to voluntarily give up,” Moulton said. “For them to even start to curtail the ability to use it, it’s definitely a promising sign.”