“New” State Secrets Policy “Smoke and Mirrors”

That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. We still need legislation to guide the courts, which do not take a consistent approach to claims of state secrets. And we must ensure that all of the necessary reforms are codified into law in order to prevent any future administration from abusing the state secrets privilege. My legislation, H.R. 984, the State Secret Protection Act, will achieve this. I look forward to working with the Obama Administration to see these critical reforms through.

Like Nadler, Senator Leahy lauded some parts of this policy–those that come from his bill on state secrets. But still called for judicial review:

I am pleased that the Attorney General is moving in the right direction to better control assertions of the state secrets privilege. The administration policies announced today bring a higher degree of transparency and accountability to a process previously shrouded in darkness.

The Attorney General’s announcement includes several concepts drawn from the States Secrets Protection Act (S.417). The new policy adopts the standard that the government can only assert the state secret privilege in relation to information that could cause significant harm to national security. It also increases the number of internal controls, including the creation of a new Department of Justice State Secrets Review Committee, and requires the Attorney General to personally approve the assertion of the state secrets privilege. These checks draw from critical concepts in the legislation. I remain especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement.

Senator Feingold is more critical than his congressional colleagues, however. He says,

The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine. While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president. 

I’ve asked for some follow-up on some of these statements–I’ll update if I get them.

39 replies
  1. klynn says:

    EW wrote about the latest Vanghn:

    But what ACLU really got is a long admission from Acting OLC head David Barron that OLC has lost ten or more of the documents included on a Vaughn Index provided in 2007.

    And one of those documents–apparently referred to as Document 6 in both Vaughn Indices–is one of the packets of information JPRA provided to Jim Haynes and from there to OLC as back-up to the Bybee Two Memo (though note, given the date of July 25, this does not appear to be the document compiled urgently that described waterboarding).

    And ACLU states:

    Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security.

    So, are we going to get a, “Well judge those are now missing and are protected because of SS? Ooops!”

    Because, that would be one big giant false claim of national security.

    “In good faith,” has become the most overused and misleading phrase in regards to torture.

    Did Whitehouse comment yet?

  2. freepatriot says:

    here’s a quick and easy solution

    pass a law:

    any invocation of “State’s Secrets” which is subsequently found by a sitting judge to be an illegal attempt to cover up a crime shall be considered an act of aiding and abetting the said crime, and shall be a criminal act equal to the original crime, and punishment for said acts shall be equal to the punishment for the original crime

    that oughta do it

      • freepatriot says:

        treason isn’t a realistic charge in America. There is a constitutional requirement tied to the word “treason”, and it creates a very high hoop for any treason prosecution to jump thru

        you gotta have two witnesses to an overt act, or an admission in open court

        that ain’t a realistic standard

        so anything that mentions treason is destined to fail

        let’s just charge the fuckers with the good old stand-byes that are known to be constitutional, and known to work;



        crimes against humanity

        no constitutional hoops there

        let the repuglitards cry about that

        murder ain’t a “policy dispute” kinda thing, is it ???

    • RHIL says:

      pass a law:

      any invocation of “State’s Secrets” which is subsequently found by a sitting judge to be an illegal attempt to cover up a crime shall be considered an act of aiding and abetting the said crime, and shall be a criminal act equal to the original crime, and punishment for said acts shall be equal to the punishment for the original crime

      And if “State’s Secrets” is invoked, automatically extend the statute of limitations to 3 years beyond when the ‘then-current occupant’ of the White House leaves office for any underlying crime that is covered up by the assertion of the privilege.

  3. Gitcheegumee says:


    This may have already been posted, but it is timely as it relates to CBS:

    Cronkite records destroyed by FBI – USATODAY.comThe FBI destroyed its files on former CBS News anchorman Walter Cronkite two years ago under a policy that has been criticized by researchers for allowing …
    rssfeeds.usatoday.com/~r/usatoday…/~3/…/cronkite.htm – 14 hours ago – Similar

    Walter Cronkite Records Destroyed By FBISep 23, 2009 … A search of the agency’s main index of the subjects of FBI investigations found some records tied to Cronkite’s name were destroyed in …
    http://www.huffingtonpost.com/……..96248.html – 2 hours ago – Similar

  4. x174 says:

    thought that i might find a good reference to state secrets in ancient rome.

    instead i had luck in comparing the U.S.A. with the former U.S.S.R.

    i did find a thoughtful news article at the guardian website from Februrary on torture, states secrets and the erosion of free speech and press:

    blurb: Unprecedented levels of secrecy in criminal trials are compromising the principle of open justice, lawyers say, and placing journalists at increasing risk of prosecution for reporting cases.


  5. Mary says:

    As best I can remember, basically the only reason given over the years for not letting a judge make the call anyway was that a judge, being just a lawyer and all, wouldn’t be able to have the right expertise to bring to bear to make the right national security decisions, not like, you know, the national security gurus like Tenet and Mikey Hayden and the oft befuddled sounding McConnell and Negroponte etc.

    So now Holder is telling us that we still have to prevent judges from being involved in the process, bc, as lawyers, they can’t make the right national security calls, but what we need to do is add a layer to the invocation process where the AG, as a lawyer, makes the call after the nat sec guys lay out their case to him.

    Uh huh.

    Alberto Gonzales is more able than Judge Lamberth, or Judge Robertson, or Justice Scalia, or … yeah, right. I guess it’s those Attorney General superpowers underoos that make all the difference.

    • robspierre says:

      Actually, I think that the difference that Obama is asserting is essentially the one claimed by Bush. The issue is not that judges are lawyers. The issue is that they are not part of the executive branch and thus not under Presidential/Decideral control. Unlike the AG, they are part of the judiciary and thus independent. Letting them have a say would thus infringe on the executive’s imagined Constitutional prerogatives.

      Obama seems to be claiming nothing less than the unary executive power claimed by the bushistas in matters touching national security. Obama, Bush, and the Roman Emperors are agreed: the will of the Deciderer has the force of law.

  6. bmaz says:

    Oh come on now, really, whose hands would you rather Constitutional civil liberties be held in – Alberto Gonzales and Eric Holder or mere schlubs like Vaughn Walker and Royce Lamberth?

    • Mary says:

      Is there any need for a response to Holder’s proposal other than, “Alberto Gonzales?”

      Freep – I’m with you that there needs to be some kind of teeth. Right now it’s like the DTA, where we promise not to abuse prisoners except that if we do, the prisoners can’t tell anyone about it and there’s no penalty for it. Carl Levin was a co-sponsor of that gem.

    • Mary says:

      EW has had a lot of posts about, or including, the information that AZ’s torture began prior to the Aug 2002 memos. And there are documents from prior to then about a list of abuses CIA felt it could engage in without going to DOJ for authorization, as well as the “legal principles” issue that has also been the subject of other posts.

      Al-Faruq would be another who was tortured before the memos, according to old reports of abuse that pre-dated the release of information on the memos. From a Sept 15, 2002 story

      According to one regional intelligence memo, the CIA had been told of al-Faruq’s role by Abu Zubaydah, the highest ranking al-Qaeda official in U.S. custody and a valuable, if at times manipulative, source of intelligence on the terror network and its plans. Initially, al-Faruq was not as cooperative. Though al-Faruq was subjected to three months of psychological interrogation tactics — a U.S. counterterrorism official says they included isolation and sleep deprivation — he stayed virtually silent.

      But early last week al-Faruq finally broke down. On Sept. 9, according to a secret CIA summary of the interview, al-Faruq confessed that he was, in fact, al-Qaeda’s senior representative in Southeast Asia. Then came an even more shocking confession: according to the CIA document, al-Faruq said two senior al-Qaeda officials, Abu Zubaydah and Ibn al-Shaykh al-Libi, had ordered him to “plan large-scale attacks against U.S. interests in Indonesia, Malaysia, (the) Philippines, Singapore, Thailand, Taiwan, Vietnam and Cambodia.

      Nifty how, after the August memos, they managed to get someone to validate the stories that AZ and al-Libi were al-Qaeda operatives with high value info about pending attacks. Since that was, after all, what the memos said was needed to justify the torture.

      • skdadl says:

        Holy mackerel. (That’s another way of noticing how nifty that was, not to mention how nifty that Time wrote it up that way. Yet another word for the Time narrative itself would be glurge.)

    • Gitcheegumee says:

      I posted that article last night over at FDL on the Jeff Kaye thread about torture.

      Jeff thought it was pretty intriguing,too.

  7. Nell says:

    As noted in comments here several months ago in relation to Holder’s repeated delays and anonymous Justice Dept. promises of ‘Real Soon Now’ about making Holder’s “review” available to Congress: Every single move is about pre-empting legislation.

    At this point they’ve forfeited the benefit of the doubt, and those seeking strong legislation should be moved to action by these kinds of feints, not mollified.

  8. Peterr says:

    Yoo kept forgetting about Youngstown, and it seems Holder has a similar problem with Marbury v. Madison.

    I’m reasonably confident Judge Walker will remind him of it.

  9. 4jkb4ia says:

    OT: Smoltz has the possibility of getting the clinching win. Someone will of course point out that the Cubs did a very helpful collapse.

  10. fatster says:

    How come they get to have secrets, and we get to have none?

    Report: Massive FBI database set to quadruple in size
    ‘Unclear’ how FBI got thousands of hotel, car rental, shopping records

    “In the months after 9/11, the Pentagon’s research arm launched a controversial project known as “Total Information Awareness” — a massive database collating every available bit of digital information about, well, everything. After a public outcry, Congress defunded the project in 2003.

    “But now, it looks like it’s back, and this time in the hands of the FBI, under the name National Security Branch Analysis Center, or NSAC. A news report at Wired magazine says the NSAC has now collected more than 1.5 billion pieces of information, much of it from the private sector.”


  11. Leen says:

    Feingold “Independent court review of the government’s use of the state secrets privilege is essential.”

    Feingold seems so consistent….”no one is above the law”

  12. fatster says:

    Give ‘em an inch . . .

    Feingold: ‘Sneak-and-peek’ searches being used for regular crimes

    “The Justice Department made 763 requests for “sneak-and-peek” warrants in 2008, but only three of those had to with terrorism investigations, Sen. Russ Feingold told a Senate Judiciary Committee hearing on Wednesday.

    ‘”Sneak-and-peek” warrants allow law enforcement officials to break into homes and businesses and search the premises without the investigated party knowing. The authority for them was passed as part of the USA Patriot Act in late 2001, ostensibly as a counter-terrorism measure.

    “Sen. Feingold (D-WI) said that 65 percent of the cases for which sneak-and-peek warrants were used were drug investigations. And Assistant Attorney General David Kris told Feingold that, in most terrorism cases, surveillance methods are “generally covert altogether,” and do not use sneak-and-peek warrants.”


    • Stephen says:

      I would like to review the 65% of these cases classified as drug related. I think there is a pretty broad brush being used. A real foot in the door policy.

  13. fatster says:

    Proof of CIA kidnapping ‘indisputable’: Italian prosecutor

    MILAN, Italy —” A top Italian prosecutor Wednesday made his case against 26 US secret agents accused of snatching a terror suspect from a Milan street and sending him home to Egypt where he claims he was tortured.

    ””No one could seriously argue that they were in Italy for other reasons” than to abduct Milan imam Abu Omar [Nasr] and transfer him to Cairo via two US military bases, said Amando Spataro, citing detailed aviation, cell phone, rental car and hotel records.

    ‘”The data of all the flights … indisputably show one sole possibility,” Spataro said as he began closing arguments in the case.”


      • bmaz says:

        Now why on earth would you two want to have secrets from us? We are such cuddly souls……

        By the way, just got a report from the Marcy/Rather/Mayer confab and understand it went off beautifully.

  14. radiofreewill says:

    Okay, so Obama is pledging greater compliance with the ’spirit’ of the State Secrets Privilege – but leaving a backdoor open for National Security pre-emption.

    With meaningful checks and balances in place – like FISA, FISC, CIPA, Requirements to fully inform the Intell Committees and the Leadership of the Parties in the House and Senate, an AG that doesn’t act like he’s the President’s personal Sheriff, etc – operating without obstruction, imvho, that sounds like a reasonable mending of the hole that Bush tore in the Constitution.

    But, this appears to do nothing to address the great fear that We all have with respect to un-regulated Power – that it will be used to Criminally advance the interests of those with the Power – who then grant protection from Criminal Liability – through mis-use of the States Secrets Privilege, for instance – to the ‘Loyal’ foot-soldiers of the Agenda.

    A Policy that purports to ‘re-store’ integrity to the good faith processes that make Our Constitution work, but fails to investigate and hold responsible to the Law those who abused their Power – under the Politicized ‘cloak’ of National Security – is yet again another toothless Policy that echoes the Bushian sentiment of: ‘In the time of a ‘National Emergency,’ there is No Such Thing as Crime for the Executive’s Loyalists.’

    Even with the ‘fix,’ there’s nothing to keep the same thing from happening, again – the same back doors are still there, and now the precedent of ‘no accountability’ for Henchpeople – even those acting wholly in Bad Faith – is about to get set in cement, too.

    Who doubts that the Republicans – the purveyors and champions of the Surveillance State – won’t waltz right through those back doors, the very first chance they get – and, next time, Never give back the Power again?

    If We don’t publicly investigate Bush’s Intentionally-Created Power Vacuum for Bad Actors – Bad Actors, like Libby and Rove, that We ‘know’ were Politically Manipulating in the name of, and under the cloak of, National Security – then We’re just asking for the very same people to come back, even better prepared, the next time – just like they did before.

    Loudly proclaiming a nice Policy with an ‘exception’ allowing for ‘no Legal consequence’ in the event of non-compliance will be like dipping all of the Constitution – except the heel – in the protective waters of the checks-and-balances designed-in by the Founders.

    If we never ‘looked back’ to take the guns out of the hands of Criminals, what kind of behavior should we expect from them going forward?

  15. perris says:

    On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance.

    silly me

    I was under the impression that if the government wanted to guard information from a court then that information would be considered as if it carried the weight the defendant claimed

  16. fatster says:

    Administration Won’t Seek New Detention System
    By Peter Finn
    Washington Post Staff Writer
    Thursday, September 24, 2009

    “The Obama administration has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects and will instead rely on a 2001 congressional resolution authorizing military force against al-Qaeda and the Taliban to continue to detain people indefinitely and without charge, according to administration officials.

    “Leading congressional Democrats and members of the civil rights community had signaled opposition to any new indefinite-detention regime, fearing that it would expand government powers and undermine the rule of law and U.S. legal traditions.

    “The administration’s decision avoids a potentially rancorous debate that could alienate key allies at a time when President Obama needs congressional and public support to transfer detainees held at the military prison at Guantanamo Bay, Cuba, to the United States for trial or continued incarceration.”


  17. fatster says:

    Refreshing approach, I’ll say. (Also, interesting response. Sigh)

    Al Franken Reads the 4th Amendment to Justice Department Official
    By DAPHNE EVIATAR 9/23/09 12:16 PM

    “Just in case he wasn’t familiar with it, Sen. Al Franken (D-Minn.) decided to read the Fourth Amendment to the Constitution to David Kris, assistant attorney general of the Justice Department’s National Security Division, who was testifying to the Senate Judiciary Committee today to urge reauthorization of expiring provisions of the USA Patriot Act.

    . . .

    ‘“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.
    Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”’


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