Further Comments from Jerrold Nadler on the “New” State Secrets Policy

Given that Congressman Jerrold Nadler was one of the members of Congress who responded to DOJ’s "new" state secrets policy by reiterating the need for legislation reforming state secrets, I asked his office for more information of where they think the "new" policy leaves efforts for legislation. A spokesperson provided the answers below.

I was curious, first of all, whether the "new" policy was a result of negotiations that have been going on for several months with Congress. It was not. Rather, it was the result of the DOJ review of the outstanding state secrets claims made by the Bush Administration.

This policy came out of the order from Attorney General Holder that the Department of Justice review all pending cases where the state secret privilege had been asserted and was not the result of negotiations with Congress. However, we have met in the past several months with various members of the review team and have shared with them our concerns regarding overbroad use of the privilege, including our dismay regarding the continued assertion of the privilege in an effort to seek premature dismissal of cases at the initial pleading stages, and the Administration’s continued resistance to independent court review of state secret assertions. Some of those issues still need to be addressed, which highlights the fact that voluntary executive branch reform – while welcome – is not sufficient. 

Of course the policy seems to have caused the Senate, at least, to back off efforts for reform of state secrets. Nadler’s spokesperson reinforced that impression–noting that a number of members of Congress who had been supporting reform now think it is less urgent.

We are continuing to work with colleagues to build support for Congressman Nadler’s bill (H.R. 984). Some Members may now feel that legislative reform is less important because of the Department of Justice’s new policy, and we likely will need to do some work to explain that – even if the voluntary internal policy were perfect – executive branch assertion of the privilege is just one part of the equation. The other part of the equation – how courts handle state secret claims – cannot be addressed any other way except through legislative action. Right now, courts are struggling to apply existing case law and they vary greatly in treatment of privilege claims, with some courts simply deferring to assertions of harm made by agency officials and other courts undertaking a more rigorous review of those claims. Rather than having each court develop its own standards and procedures, the better way to ensure that valid state secrets are protected while maximizing fairness to litigants is by providing uniform standards and procedures. Doing this will ensure that national security is protected while restoring the privilege to its appropriate scope, which will – in turn – rebuild the public’s confidence that the state secret privilege is not being misused. We know that the Administration shares these goals, and we are hopeful that they will join in our effort to obtain much-needed legislative reform. 

Finally, I asked specifically about the way that the Administration had refused to give lawyers in the al-Haramain and Horn cases the "need to know" to conduct a CIPA-like process, even in cases where the Courts had limited or rejected the application of state secrets. Nadler’s spokesperson reassured me that they, too, are following how the Admininstration is approaching these cases.

We have also been following, and are concerned by, some of the arguments being asserted in al-Haramain and Horn and will continue monitoring those cases and considering what, if any, adjustments in our legislative proposal are necessary. With regard to affirmation of classification authority in the new policy, we agree that the underlying authority to classify information should remain intact, but also believe that where the Attorney General has decided that the state secret privilege is not appropriate in a given case, or a judge has otherwise ruled that the state secret privilege does not apply or does not prevent disclosure to opposing counsel, the Department should not then use its classification authority as an auxiliary route for avoiding disclosure. By doing so, this Administration seems to be embracing – in the guise of classification authority rather than state secret privilege – its predecessor’s argument that the courts simply lack the authority to disagree with the executive branch’s claim of secrecy. Congressman Nadler’s bill (H.R. 984), as well as Senator Leahy’s, makes clear that courts must review the information that the government seeks to withhold and determine whether the claimed risk of significant harm to national security that might result from its public disclosure is valid. Our Constitution demands nothing less.  [my emphasis]

I guess it’s time to start persuading members of the Judiciary Committees how important real state secrets reform remains.

18 replies
  1. earlofhuntingdon says:

    How elegantly effective, create a paper image of reform of state secrets practice and Congress ignores their job of actually reforming it. I wonder how many votes for non-reform of health care that earned Rahma & Bahma.

    • Arbusto says:

      Yep, BuckPasser is alive and flourishing in Congress. Since Obama isn’t Bush, it’s alright to continue the Imperial Presidentcy, after all he’s a Democrat and was a lecturer on the Constitution, so it must be ok. And he has so much on his plate anyway.

  2. radiofreewill says:

    It seems hard to believe that the Executive currently has “just trust me” Power to assert the State Secrets Privilege over Evidence in a Court of Law, or to mis-use the Classification Authority to accomplish the same thing!

    Even if We say it’s necessary to allow broad assertion of the Privilege under certain exigent circumstances, un-checked and un-balanced Power like that should be corralled within Oversight and Judicial Review at the very first sign of Bad Faith Abuse.

    Between Pixie-Dusting EO’s, Classification Shenanigans and Dubious Claims of State Secrets, the time has more than come for Congress to Limit the Potential Damage to the Constitution by Bad Actors in the Executive seeking to hide their own Law-Breaking.

  3. LabDancer says:

    “Rather than having each court develop its own standards and procedures, the better way to ensure that valid state secrets are protected while maximizing fairness to litigants is by providing uniform standards and procedures.”

    That comes off looking so high-minded; but it’s not at all. I have no difficulty with the two non-judicial branches identifying injustices from jurisdictional inconsistencies within the judicial branch brought about by a proven history of systemic shortcomings; but where’s the proven history of such here? It’s not as some circuit is coming up with some highly elaborate means of resolving this mess that is irreconcilable with the process some other circuit is applying; since Reynolds, no court has come up with any sort of comprehensive resolution.

    Nadler, or his spokesperson, is pontificating without any useful base of fact situations. IMO it’s really time for the Brittany moment: Leave Walker alone.

    • Mary says:

      but where’s the proven history of such here

      It is true that pretty much the only proven history so far is to let the Exec get by with, quite literally, murder. Not so much inconsistent standars of review as consistently no review.

  4. bmaz says:

    You know, as a stand alone, the proposals made by Holder/DOL are not horrible; those are the kind of things the DOJ internally can do. The problem is that the “new policy” is not being pitched as a part of a coordinated solution, it is being pitched and leveraged, heavily, as the entire solution and that is unconscionable. It means absolutely nothing without Nadler/Leahy/Feingold legislative reforms and direction of power to the courts. Instead it is being used to prevent that.

  5. bobschacht says:

    “Rather than having each court develop its own standards and procedures, the better way to ensure that valid state secrets are protected while maximizing fairness to litigants is by providing uniform standards and procedures.”

    This sounds like a specious argument to me. Aren’t our courts part of a hierarchical system, with one court, the Supremes, passing judgment on all the others? Whoever wrote that sentence needs to be educated about the Supreme Court, methinks.

    Bob in AZ

  6. Mary says:

    The reform is impportant and the whole concept of relying on the IGs for non-financial oversight needs some hard pushback. Congress has already, by statute, told the AG that the IGs aren’t the guys to be investigating criminal acts in the Exec branch, they are supposed to be the guys referring matters to the AG, not getting referrals from the AG.

    IMO, this may be a very legitimate place in which to bring back and independent counsel approach. If there is going to be an assertion of States Secrets by Gov, then use the old format that passed Sup Ct muster on a judicial panel for the appointment/removal of an Indep Counsel – that counsel then gets the mandate to review the States Secret assertion and related info and determine whether the assertion being made will result in either covering up crime or preventing political (either instead of, or even in addition to, a legitimate Executive branch issue). The legislation should specifically state that the fact that the Exeuctive branch crimes at issue may involve collusion with representatives of foreign governments shall not be a grounds for asserting states secrets. They can then be empowered to follow up on criminal investigation and prosecution if needed. So you aren’t playing pong back and forth between the AG and IGs (who aren’t in a position to really dig in and address non-financial exeuctive branch crime anyway).

    Then, you have dominoes set. You have someone independent who is reviewing the states secrecy assertions and related criminal acts/political embarassments. They can serve as an advocate to the court and can receive clearances which will not expose them to info as a plaintiffs counsel (to address those situations were that might be a significant issue and put plaintiffs counsel in a conflict between duties to client and duties under agreements relating to security clearances) and they can be the advocate for a plaintiff’s counsel to get access. for a court allowing the court to make the final ruling on states secret.

    In a civil setting, the Indep Counsel can be called upon by the court to be involved in ex parte proceedings and serve as an independent evaluative mechanism, if that Indep Counsel is either exceeding boundaries on the one hand, or fluffing and stuffing on the other, there is a removal mechanism through the three judge panel. If the states secrets allegations involve criminal acts, you then have a prosecutor in place as well and he can protect criminal cases that are being implicated in any civil suit that way.

    In any event – I think you are very right in the post below about what Holder is doing. Take a look, too, at the recent settlement of the Higazy case, the way Obama/Kagana are sending letters to the SUp Ct trying to stave off review of the Uighur release orders they have been defying, etc. and you see a very widespread “cover Bush criminal ass” plan, by people who, in adopting that mode, make themselve far more like than unlike unto Bush. I noticed even Stephen Colbert made that pretty direct tie in his “the word” last night, and the audience had a kind of uncomfortable, squirmy, reaction where they both recognized it and wanted to laugh, but were also struck pretty hard by the truth of it and wanted to pretend it was something else.

    I’ve noticed (sadly) that Leahy is really backed off on all this. I think that *the party* right now is all about circling the wagons around Obama, bc he’s made so many wrong calls on healthcare it is starting to sink him and the party, and they just don’t want him to take anymore hits.

  7. rosalind says:

    OT-ish: “Marine officer who set up Guantanamo prison dismayed by what it has become”

    “Once they were out of the fight, I felt we had a moral responsibility to care for them in a humane fashion,” Lehnert said. “I think it’s extremely important how we treat prisoners.”

    Lehnert recalled talking to young Marines who thought the detainees were being treated too well.

    “They said, ‘They wouldn’t treat us this way,’ ” Lehnert said. “I said ‘You’re correct, and that is entirely irrelevant. If we treat them that way [as they might treat U.S. prisoners], then we become them.’ “

    • Mary says:

      Thanks for that link. It’s nice that he is taking the opportunity to speak as he is retiring, especially since there are the stacks of problems that don’t seem to be resolving vis a vis GITMO.

      You know, lots of the military guys who were not really some of the “good guys” have made out like bandits post-retirement. Maybe Obamaco ought to consider tempting someone like Lehnert with a really decent consulting contract to help them with the shutdown.

      • rosalind says:

        Maybe Obamaco ought to consider tempting someone like Lehnert with a really decent consulting contract to help them with the shutdown.

        that’s a fabulous idea, Mary. i will forward the idea to my CA senators (Boxer the Better & Feinstein the Lesser), and the White House.

    • emptywheel says:

      I’m reading Karen Greenberg’s The Least Worst Place (on Gitmo’s first 100 days). She relies heavily on interviews with Lehnert, who sounds like an interesting figure. He was at Gitmo when the Haitian refugees (and some Cubans) were there. From that experience he got a solid belief in making sure those being detained don’t lose hope.

      • rosalind says:

        the la times reporter, tony perry, has a blog entry with additional quotes from Maj. Gen. Lehnert, including:

        But in late 2001 he had a different assignment: devise a detention camp at the Navy base at Guantanamo Bay, Cuba, for detainees from Afghanistan and elsewhere. He was given little guidance from the Pentagon except to hurry.

        “The Geneva Convention seemed to be a pretty good place to start,” he said. “I got several copies and had my staff read it.”

        There were disagreements with various Army officers about how detainees should be treated, particularly on the issue of harsh interrogation. In the end, Lehnert’s approach did not prevail.

        “Before I left Guantanamo (in 2002), I was of the opinion we should close it down as quickly as possible,” he said.

  8. Mary says:

    Apparently Obama needs someone to head up the GITMO closure team


    WaPo is reporting that he’s pulled Greg Craig off the job and turned to a Congressional fixer for help.

    To address these setbacks, the administration has shifted its leadership team on the issue. White House Counsel Gregory B. Craig, who initially guided the effort to close the prison and who was an advocate of setting the deadline, is no longer in charge of the project, two senior administration officials said this week.

    In May, one of the senior officials said, Obama tapped Pete Rouse — a top adviser and former congressional aide who is not an expert on national security but is often called in to fix significant problems — to oversee the process. Senior adviser David Axelrod and deputy communications director Dan Pfeiffer were brought in to craft a more effective message around detainee policy, the official said.

    Three administration officials said they expect Craig to leave his current post in the near future, and one said he is on the short list for a seat on the bench or a diplomatic position.

    • bmaz says:

      Yeah, I started to write a post on that last night; then I realized Marcy wrote the same post, literally almost word for word, that I was putting together in my mind. The woman is spooky like that you know. Want my comments? Heh heh, go read here; every word is just as true today as back on August 3rd. On the upside, it saved me some work….

  9. johnhkennedy says:

    I agree with radiofreewill:
    “the time has more than come for Congress to Limit the Potential Damage to the Constitution by Bad Actors in the Executive seeking to hide their own Law-Breaking.”

    Don’t give up on the Torture issue either.

    Get out in the streets in front of your Congressional Representative’s office and raise hell. Start your own “prosecution” protest group.


    If they aren’t actively calling for enforcement of our Federal Torture Laws, They DO Support Torture and a dual standard of Justice.

    prosecution for all those leaders
    in Bush’s Administration that
    Conspired to Torture at ANGRYVOTERS.ORG


    Only Prosecution Stops Torture, Abuse of Power, our Constitution & Rule Of Law

  10. Nell says:

    Most of the comments at the Wash. Post on the Guantanamo article are from right-wing Obama haters. Mine were an intensified redo of things I was saying from February through May in comments at Obsidian Wings and occasionally here. The brand-new president’s pre-Super Bowl interview was the clearest possible sign that we’d all been had. (I had very low expectations and on this issue he managed to undershoot them by a mile.)

    The article seemed like an uncharacteristically superficial analysis by Dafna Linzer, constrained by some imperative not to bring the president into it at all.

    —-my Post comments
    This is a story about arrogance. It was well known to those who followed the debacle of Guantanamo prisoners that there _were no files_. Had Craig or anyone at the White House sought briefings or even informal background from the large community of defense lawyers, they’d have been prepared. They wouldn’t have wasted time piecing together and poring through two hundred files of men who shouldn’t be in prison, and focused on the relative handful who have some real connection to terror attacks.

    Likewise, no effort whatsoever was put into internalizing and making the political case for closing Guantanamo. It was just a Good Thing. WH people assumed it was purely a technical process, that could be carried out without challenging any of the assumptions about the prisoners and the “war on terror” made by the previous administration. Obama himself made this obvious when in his first TV interview as president, to a gigantic pre-Super Bowl audience, he characterized virtually all of the remaining prisoners as too dangerous to release. It was a passage that could have been uttered by Dick Cheney. Given that, Republican attacks were bound to be effective: the administration had ceded so much ground it had nowhere to stand.

    But who pays the price for this arrogance and shallowness? Not Greg Craig, who’ll get a cushy sideways job.

    Not President Let’s Pat Ourselves On the Back. No, it’s the prisoners themselves. And us, the citizens of a country which is being sold a multi-tier “justice” system where new legal processes are invented to ensure that convictions can be obtained, or, where even those rigged show trials won’t do, that people can be detained indefinitely despite never being charged or convicted of any crime. Think that won’t come back to haunt us?

    This administration is filled with and led by vain, shallow, characterless, careerist frauds. They want something that looks like freedom without any struggle, something that will pass for crops without any plowing. They inherited a deep crisis, but they have absolutely no intention of dealing with it at the root; instead they’re going to paper over it by institutionalizing and “legalizing” the horrors. Oh, and they want credit for their noble intentions.

    Almost enough to make you long for the forthright brutality and lawlessness of the Bush-Cheney crowd; at least then there’s a chance someone decent will put up a fight. At the bottom, almost none of those directly affected experience any difference between the previous regime and this one.

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