Obama’s New State Secrets Policy Is Reaffirmation Of Bush’s Policy
Back in mid June, testifying before the Senate Judiciary Committee, Attorney General Eric Holder announced that the Obama Administration’s long promised new policy on state secrets use would be revealed "within days".
Over three months later, and on the eve of oral argument in al-Haramain v. Obama, the most dangerous case to the government’s unfettered use of state secrets, the Administration has conveniently leaked word that its long awaited new policy on state secrets will be made public, perhaps as soon as today.
From Charlie Savage at the New York Times:
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.
In a nutshell, the Administration’s new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn’t being done before?
Contrast this effectively meaningless policy from the Administration with that contemplated by Senators Pat Leahy and Russ Feingold in proposed Senate legislation on state secrets policy (Jerrold Nadler has a similar proposal in the House), which would:
Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special mastersRequire judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely
Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals
Establish congressional reporting requirements
Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution
As can be discerned, there is quite a difference in the quality and seriousness of policy proposals. The Obama Administration has done nothing but put the proverbial lipstick on the existing baked pig.
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.
Tack in the distinct possibility that the government made material misrepresentations about their data mining and warrantless surveillance to the FISA Court and that illegally information thusly obtained inappropriately made its way into the affidavit for the search warrant executed on the al-Haramain Foundation in Oregon, and you see the veritable cornucopia of problems the government could be so determined to stop inquiry into in the al-Haramain litigation before Judge Walker. Some or all of this may be the subject of the famous "inaccuracies" the government has tried to surreptitiously clean up since Obama took office.
There is a lot the government has to hide in al-Haramain, and they are desperate to do just that. It would be a perfect time to whip out a ruse in the form of a "new state secrets policy". Even if there is nothing at all new about it. To any extent this is the motivation behind the timing of the Obama Administration’s new state secrets policy, it is unlikely to sway Vaughn Walker, he is quite adroit at spotting the government’s pigs, even when they are well dressed and wearing lipstick.
Oh, and one other thing, it is pretty hard to take seriously the Administration’s claims for their "new policy" that:
The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”
That claim defies credulity on a morning when the government is going to waltz into open court in San Francisco and blatantly do all of those things under an unconscionable claim of state secrets. Disingenuousness of this level is most certainly not "change we can believe in".
Doesn’t this tell us that mining is here to stay? That stopping it is like trying to pass and enforce effective gun-control legislation (granting that the mining seems to be in its infancy, and concentrated, maybe, in the hands of a few)?
A fabulous toy for boys….
“It would be a perfect time to whip out a ruse in the form of a “new state secrets policy”.
I’m not sure what you’re suggesting could happen here. Are you suggesting that the government may be planning to put on a show, for the benefit of Judge Vaughn, or the plaintiffs, or the public, or all of those?
And that the purpose of putting on this show, at the highest, would be to impress Judge Vaughn to be … I don’t know if the proper word is ‘merciful’ or ‘generous’… in his assessment of the government’s conduct, or its motives at least, after, tho optimally also before, Obama, as Cheney has put it, “assumed power”; and at the lowest to preserve as much credibility as possible with those voters to whom this story might come as ‘news’?
Because if that’s what you’re suggesting might happen, then I have to say that I would see the government pulling such a shell game/p.r. stunt to be sordid, & the suggestion that it might try to be ridiculous; except for:
the fact that, just off the top of my head, I can think of at least four cases I was involved in, as legal counsel opposing the government side, where an administration pulled pretty much the same sort of last-minute rabbit-out-of-the hat shell game/stunt with a presiding judge [It didn’t work, with the judges at least, on any of the four I’m thinking of; two of the judges admitted to being ticked off, & the other two broke out in bemused smiles.]; and
the circumstances of this case, & of the national security state total information apparatus looming about like an eclipse.
Also, assuming I’ve got right what you’re suggesting, I wonder if my own experience, in witnessing these sorts of tawdry exhibitions, tracks that of others here who’ve seen the same sort of thing?
Is Pat Tillman’s death still a state secret? Why?
This takes on a whole new sense of importance after yesterday’s interesting statements on the disappearance of documents listed on the Vaughn index for the ACLU’s FOIA case.
Ah, the old wink and nod paragraph to validate and legitimize the crap policy.
I can just hear someone in the WH now, “That sounds good doesn’t it? That makes this sound legit?”
Bmaz, I think Charlie Savage is generally a sharp guy, but if I’m reading things right, he really buried the lede.
Thus, you likely had either the underlying dept/agency GC signing off on state secrets issues (CIA, DOD, etc.), or a DOJ underling — perhaps the USA for the particular court, or . . . people outside the official chain of command like David Addington and WH counsel.
I really wish Charlie would have expanded that paragraph, and named some names.
Using this little paragraph’s description, the Bush AG had to have signed off on all the biggies, including torture and warrantless wiretapping cases, in that the DOJ was involved in the case through its OLC opinions. Other claims of state secrets . . . not so likely. For eight years, the SOP was simple: if you could create a way to work around DOJ, do it. Especially if your name is Addington.
But your underlying point is right, bamz: having the AG sign off on *every* claim of state secrets is critical, and it’s the way it should have been done all along.
That should say “work around Main Justice.”
Given what we know of the USA hiring mess, the idea that Addington or someone at CIA or DOD would call up the politically trustworthy USA in the relevant jurisdiction and ask for a claim of state secrets for political — not security — reasons seems eminently likely.
peterr, I don’t see that as a solution at all, we see gonzales do whatever it took to please bush and then testified he forgot or “we didn’t ahve the information he had” or some other disclaimer for why he is alllowed to make decisions that everyone else says is illegal
I’m not saying that if the AG gives the green light, the courts have to accept it — simply that if the government is going to assert such a powerful claim of privilege, the highest DOJ official ought to sign off on it.
Whether the courts accept the claim is another issue entirely.
I agree with the process, but it will obviously be flawed without more framework
I personally wouldn’t mind a fisa type of court deciding executive priviledge to go with that step you are talking about
Last time I looked it up, state secrets had been invoked in less than 25 known cases by the Bush Administration (and only 8 known times in all of the time before that). Less than 25 times is still not that many in 8 years, it was not done all that frequently. It was not being done willy nilly by line level prosecutors. There is no reason in the world to believe leadership at DOJ Main was not aware of all of them. This part of the policy means absolutely nothing, certainly nothing more than nominal, of significance.
I’m sure Main Justice was “aware of” all of them, but that’s different from being read in on the details of all of the cases in order to sign off on them. Given how Ashcroft complained of not being able to get proper advice because Cheney & Associates wouldn’t let his deputy be read in on Teh Big Secret Stuff that the WH wanted DOJ to sign off on, it’s not at all beyond imagining that the same would be happening here.
Let’s just say it’s not beyond the realm of possibility that Addington played both ends against the middle. To the friendly and suitably loyal USA, they say “Hey, we’re the WH, and we’re telling you to claim the privilege. You don’t need to see the stuff we’re talking about — just take our word that it’s Very Special Stuff and must be protected or the Free World(tm) will cease to be.” To Main Justice, they say “look, the guy closest to the case has signed off on this — he/she knows what the stakes are. Let it go.”
They are careful not to lie to either party, but they abuse the hell out of the DOJ chain of command to get what they want. It’s the parallel to what they did to the DOD chain of command with General Keane.
Why would they treat the DOJ any differently? The Ends are everything to Cheney & Associates; the Means matter very little.
Sorry Peter, I am just not buying that any state secrets case made its way to full invocation in court without material knowledge of at least significant elements of leadership at DOJ Main. Would that necessarily have been a work up the chain process that appears to be contemplated by the “new policy”? No, maybe not. But the net result is the same, the decision is still made by leadership and is sole and unfettered in the executive branch. I will grant that the new process puts more stakeholders in the situation, but it does little to nothing to curb the abuses we have seen in the recent past.
Do you mean that DOJ Main must have had before-the-fact and with-the-blessing-of knowledge, or simply after-the-fact knowledge?
If it’s the latter, and they disagree with the decision, they’ve got the ugly choice of swallowing hard and going along with it or reversing the filings and representations made in court. Neither would be palatable, but I’d guess that the former would win out every time with BushCo.
For me, it boils down to this: if Addington inserted himself into the work of OLC via Yoo et al., going around the AG, why do you think he would hesitate for a moment to do the same elsewhere at DOJ? They didn’t hesitate to overrule doctor’s “no visitors” orders at Ashcroft’s hospital bedside, nor Ashcroft’s own wishes in naming Comey as Acting AG. Why would they be filled with such respect for the AG in these cases so as to get him on board before the fact?
OK, totally OT:
The parking space behind “The Family House” this morning shows a car with an Appalachian Trail tag frame!
it’s like obama is one of them or didn’t see what the last administration did with the dept of justice.
I just don’t get it, sometimes these presidents act like they are never leaving office, we saw decisions bush made as if he thought he would remain in power and the oposition would never again win office and no obama is doing the same
On the other hand, if we were courageous enough to consider that it’s possible that Bush and Obama were/are serving the same master/masters, then one might understand that those in-power, hold on to that power by any means necessary, and do indeed remain in power forever.
Forgive me for wondering whether we’re living the eternal Reich.
The WaPo story on this is a little clearer (but not much) on the Bush era policy:
Yup, and it depicts the change as a clear break with Bush policy, not a reinforcement of same:
One more reason Holder might be readying this, though, is the Horn case, which is about to be reviewed at the Appeals Court. In that case, state secrets was invoked to hide the CIA’s spying on DEA. I don’t think the AG was involved in the original invocation of SS (I think that was under Ashcroft). So Holder may be preparing to refuse to let CIA invoke state secrets anew in Horn.
But then the big reason to do THAT is bc Horn would be remanded to Lambreth, who would rule against the government, who would then appeal to SCOTUS, who would then rewrite state secrets that way.
Quick, we gotta get Marcy out of the big city. She’s only been there a little while and she’s already talking multi-dimensional chess. [Of course, she’s suggesting it’s being played on the dark side, but still…]
No, not really. It’s simple though. This Administration has only ever ceded on executive authority issues to stave off legal limits on executive authority (see also Rove testimony, WH logs, and now this). And they do so specifically in a form that allows them to retain power. If they can prevent the DC Circuit from establishing a second circuit opinion limiting state secrets, they’ll do it, even if they have to admit that the CIA has coffee tables that are bugged.
I understand, I’m just having some fun. Enjoy the trip!
Why would they be that much more worried about Horn than they would Jeppesen, which is a hell of a lot closer to the Supremes, the place any of these cases needs to go to judicially affect the state secrets policy in a truly meaningful fashion. I actually think they are more than capable of waiving state secrets and proceeding in Horn – but for the effect it would have on al-Haramain and, to a lesser extent, Jeppesen. Myself, I think the policy is in response to the whole panoply of issues, but if there is one case that scares the crap out of them, it is al-Haramain. Any of the cases can lead to bad appellate rulings setting state secrets precedents the Administration does not like, but only one of them has the unique intersection of bad facts on blatant domestic illegality that could prove catastrophic to them, and that is al-Haramain.
I agree that al-Haramain is their big fear.
But what this allows them to do is to have Holder waive SS in Horn, thereby preventing a bad ruling in DC altogether. So they just have Jeppesen and al-H, which are still indefensible on state secrets, but more so.
And waiving in Horn would also be another nice little stage show to paint a picture of good faith and fair dealing – a false picture, but a picture nevertheless. Stupidly enough, in some regards, they already have waived in Horn by dropping the asinine refusal to admit the existence of the big coffee table bug. Nice of them to save Lamberth the Metro fare down to the spy museum…..
I have to agree. The fact pattern in al-Haramain has some of the trappings of the proceedings before Judge John J. Sirica around the bungled Watergate break-in. In al-Haramain the feds told the plaintiff they were spying on him, in writing, then blamed him for having the writing, then tried to cleanse the effective memory banks of the lawyers on the case. It’s that bizarre.
Plaintiff’s end-run around this kafkaesque gambit to this point has, with the help of Judge Vaughan Walker, been masterful. It’s also been comical, much as parts of Watergate were. The minuet exposes the state secrets privilege for the farce it is, or can be. Here it’s every bit as cynical as Nixon’s claims of executive privilege. Many state secrets cases are weird, but here the embarrassment is already out. It’s like watching someone trying to stuff drugs back into his pocket with the police looking him straight in the eye, then asking them where their search warrant is with a “Who, me?” look on his face for good measure. But there’s also a world of evil here, as bmaz notes.
If the 2009 model of the doctrine is being rolled out for al-Haramain it’ll be like the last gasp of executive privilege in Watergate. Judge Walker has had the stamina of Judge Sirica, whose persistence brought out Richard Nixon’s shenanigans. And he’s vetted his procedures through the Ninth Circuit.
If the government wants to take this all the way up, the heat will be on SCOTUS because so much of this will be new to the public. The juicy facts will hit hard. That’s the flip side of its having stayed below the radar to this point. Wait till Jon Stewart and Stephen Colbert sic their writers on this case.
I’m betting on al-Haramain.
THAT certainly looks like a “plan”, EW. And likely to be “successful”.
Who could have ever imagined?
With whom will judges, ultimately, identify their interests (and in the case of judges, such “interests” have actual, long-term consequence)?
Beyond the nonsense of the “majesty” of the law, will judges identify with “the people” or with the all-powerful,obscenely wealthy, above-the-law elite?
That is only one of the exciting questions of our times.
I wonder who is betting what on the outcome?
DW
Is that a certified EW prediction, or a fear?
Bob in AZ
That’s been my guess all along–that DOJ leadership was not reviewing every claim of state secrets.
Two possible reasons are (1) the number cases in which state secrets are asserted that are not high profile cases or that might even have some plausible government interest in secrecy and (2) plausible deniability for the DOJ leadership should there be a problem. There are likely other, mostly turf and bureaucratic, issues.
The stronger question is whether, and if not why not, these high profile cases involving the possibility of illegal surveillance were reviewed by DOJ leadership.
Leahy and Feingold could do everyone a big favor by calling in a number of former DOJ folks to describe how assertions of state secrets were handled under their tenure.
While it would be nice to hear from Clinton, Bush 41 and others about this, I would love to get AGAG, Ashcroft, and other DOJ people under them to describe in detail and under oath how such decisions were made and who had the authority to sign off on them.
You can talk about change when you’re on the outside, but once inside, things look a little different.
Thus, docs go-a-missing.
I would hope the feet would be held to the fire here. It makes one suspect that the critique of the Bush policies were only campaign speech elements; that they really agreed with the policies but just were critical of only to gain campaign points.
The same mannequin, but with different clothes.
No, at least select leadership had to know ahead of time. Your example of the OLC is inapposite because Yoo was not having to go into a court to argue. There is simply a different structure and consideration involved when the decision is made to send the claim into a court. Is it possible that people like Addington, Aexander, Hayden, whoever played a little fast and loose with the DOJ? Yes. But the DOJ could fight back and stop that any time by refusing to go forth in court or threatening to pull pleadings. They have always had the power they are supposedly being given by the “new policy”. And they can still be gamed under the “new policy” if they want to turn their heads as they previously have. There is simply nothing new that is particularly compelling or useful to my eyes.
Thanks for highlighting this. I read the NYT article last night and it seemed to me that there was much less there than met the eye. The timing with al Haramain is a great catch. There is also the angle suggested in the article that this might preempt legislation that is in Congress.
bmaz,
Regarding the provision in the new policy that calls for rejection of secrets claims that are motivated by attempts to conceal wrongdoing, it would appear to this eye that such a rejection could only occur after an investigation is conducted to determine what the facts are with respect to such motivation.
It wouldn’t surprise me to learn that this new policy was being presented before Walker this morning, and either the intelligence agency is being given a on OK to make secrets claims, or an investigatio”underway” would provide an excuse to delay the court proceedings until such a determination can be made.
It seems farsical that even if a secrets claim does in fact coceal wrongdoing, it could be argued that such concealment was not the intended purpose of the claim, and in the absence of compelling evidence to the contrary…well, too bad.
Like the supposed loophole for tortures that cause enormous pain: if they weren’t applied with the intention and purpose of causing great pain, then okey dokey.
This is an effort to pre-empt legislation. And, I fervently hope, it’s an unsuccessful effort. In fact, I hope the transparent effort to pre-empt just stiffens the spines of the Congressional advocates.
what spines ??
Obama has built his career on continuity, on working within whatever existing system he found himself within: Chicago ward and city politics; Columbia and Harvard academic life; conservative University of Chicago academic life; Illinois and federal legislatures and now the White House. He doesn’t do change, except within the confines of electioneering slogans.
His state secrets policy, which, like torture policy, sounds better when described in the original German, simply continues whatever Obama inherited. As does Shrub with the 150 years of trust funds he will one day inherit, he wants to keep it all intact because that’s what works for him. He’s president, after all, but he’s no Kennedy, let alone a supremely confident FDR or TR; he’s more like Ike, but with less candor.
Obama does respond to political pressure. He’s comfortable accepting what comes from the right, but glad-hands what comes from the left, then washes his hands. (Ask Dawn Johnsen.) As he admits to Europeans, he’s not a socialist and no one in Europe or outside a Fox studio would mistake him for one. He’s a center-right politician and a reactionary, except when it comes to his own career and nuclear family.
Practical pressure, political, legal and news media pressure, he will respond to. That’s why he and Rahm are so anxious that liberals stop applying it. Thank you, bmaz, EW and Jane for turning a deaf ear to such pleas.