State Secrets: Holder’s Game

I’m still working on understanding this, but here’s what I think the Obama Administration was trying to achieve with its "new" policy on state secrets the other day.

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.

Add in Jeppesen (Binyam Mohamed’s extraordinary rendition suit against a Boeing subsidiary), in which the 9th Circuit has already ruled that state secrets must be tied to evidence and not information, and it appears clear that the Courts might roll back state secrets as currently treated. 

And, at the same time, Jerrold Nadler and Pat Leahy have been negotiating new State Secrets legislation with the Administration. Nadler and Leahy, too, have been advocating a similar kind of CIPA-like process.

What the "new" state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the "new" policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s "new" policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.  

41 replies
  1. emptywheel says:

    No idea. A lot depends on what comes out of the 9th for Anthony Kennedy to weigh in on.

    As bmaz likes to point out, the 9th is Kennedy’s old stomping ground. And Kennedy has been critical of the Bush Administration’s attempts to gut Article III, which is what this is. So it’s possible the Administration is screwed in any case.

    Also note, the Admin is also trying to claim Walker’s court is not the right jurisdiction for al-H, which is pretty funny bc they put it there in the first place.

    • klynn says:

      Did you recently have a conversation with Whitehouse?

      In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.

      You sounded just like Whitehouse in that last comment.

    • BoxTurtle says:

      Also note, the Admin is also trying to claim Walker’s court is not the right jurisdiction for al-H,

      Got a link? I wondered if the government would have the cajones to try to remove Walker from the case somehow.

      I agree with your analysis as to the admin’s goals, but I don’t know how well it’s going to work. Because in order for it to work, you’ve got to find a judge or a panel willing to toss the entire cipa process in order to prevent governmental embarassment. I couldn’t hand pick a panel from the 9th that would rule that way and in any case it’ll likely be the full court that hears it. Ditto the DC circuit.

      They may be able to get what they want from congress, like I said yesterday the constitution does not make campaign contributions and Feingold is a lone voice in the wilderness.

      I say we put the Obama Agenda on parchment and put it in a glass case right beside the Constitution and the Declaration of Independence.

      Boxturtle (The three most important documents in the country. Hrrumph)

  2. radiofreewill says:

    I think you’re right-on with Horn – they have nothing to lose by making that case go away.

    Otoh, with al-Haramain, and please correct me if I’m wrong – What can the Government do? The log that apparently ‘proves’ the Defendant’s Claim is in lock-up with the Court; and my guess is that the Government’s ‘prior inaccuracies’ included not using, or mis-using, the CIPA process to not declare, or even deny, the existence of the log.

    In al-Haramain, it seems, and ianal, that the Judge ‘has to know’ that the Government has been caught red-handed acting in Bad Faith – to his Court – in an apparent breech of the very processes designed to keep all the players honest in the most sensitive uses of Power.

    I mean, in al-Haramain, isn’t the Judge staring ‘right at’ proven liars acting in Bad Faith, known to be in violation of the Law, and completely cornered?

  3. Endymion says:

    Game“? It’s his freaking job! Holder and the DoJ have to defend the United States in court from damages and other loss. He can’t selectively decide to throw a case for political reasons, even when the consequences of winning are reprehensible. Bush dropped a turd in the middle of our government and he got away with it; changing the rules after the fact to punish him is bad, corrosive policy. And slagging on a civil servant for doing his job because you don’t agree with the nature of the job just isn’t cool. I mostly like your stuff EW, but this here is no plea for justice, it’s the lawless revanchism of radicals.

    • bmaz says:

      Taking your comment in the best light possible, i still do not understand what you are saying. Nobody has even remotely suggested that “cases be thrown for political reasons”. What we have consistently advocated is that cases be litigated fairly and honestly and that patently illegal conduct not be concealed by false and dishonest invocations of states secrets to hide the embarrassing and illegal conduct. You are opposed to that??

    • Peterr says:

      The “Bush dropped a turd” as you so delicately put it might more accurately be described as “Bush twisted and broke the law.” Pleading for the courts to take notice of this, despite the pleas of the current DOJ and WH, is hardly lawlessness.

    • greenharper says:

      “Bush dropped a turd in the middle of our government and he got away with it; changing the rules after the fact to punish him is bad, corrosive policy.”

      Au contraire, halting use of the reprehensible “state secrets” ploy does not, nor is it meant to, punish George W. Bush. It will however prevent Bush from getting away with dropping the turd you mention.

      To punish Bush, we can and should prosecute and convict him of some of his many crimes. There are so many from which to choose.

      It would be good if A.G. Holder dropped “state secrets” completely except where there is really, truly, an identifiable secret whose revelation would harm national security. These will be few indeed. Plans for the Allied landing at Normandy, that sort of thing. Rare.

      Torture techniques, kidnapping for torture, illegal wiretapping, other illegalities — these are not state secrets. They are crimes.

      Invoking “state secrets” to prevent their disclosure in civil and criminal cases might even, among other offenses, be misprision of felony in violation of Title 18, U.S. Code, Section 4. Of course, that’s another crime: up to 3 years’ worth.

      But I’d like to see Congress call a halt to “state secrets” except as regulated through legislation establishing a strict, court-controlled procedure such as that under the Classified Information Procedures Act.

      For prosecutors, CIPA is a nightmare. I was grateful never to have to use it. But it’s more essential now than ever to keeping government accountable.

      Leaving this critical safeguard up to the discretion of individual A.G.s, and even the courts, seems far too tenuous.

      Also, of course, what bmaz said!

      • bmaz says:

        You know, you are dead on the money, CIPA is a nightmare, for all parties and the court. But it works when it is required. And it is no giveaway of secure information; for all the grousing about keeping the nation’s secrets, I challenge people to go find an instance where the CIPA process, or any Federal judge and staff, have ever – ever – been the source of a leak or breach. Good luck, you won’t find one. But executive office personnel leak like veritable sieves left and right, sometimes accidentally, and more often for political motivations. But they want this prerogative for themselves to control their playground and falsely blather about not being able to trust the court system. It situation would be laughable were it not so pathetic.

        One last note, it has always been my contention that even the CIPA process is an unconstitutional infringement on the defendant’s right to confront and cross examine the evidence against him under the 6th amendment and that the government has to find a way to present their evidence or dismiss the count. That said, it seems to be an acceptable workaround that has stood up over a period of time now.

        • robspierre says:

          Amen to the last point. It has always seemed to me that a claim of state secrets should be treated as the equivalent of the government failing to present a case. It should be a forfeit. In a lawsuit, it should lead to a summary judgment for the plaintiff

          This would place proper checks and balances on use of state secrets privilege (if such a thing is really thought to exist in a republic). Government would always have to weigh the value to the public of prevailing in court against the value of keeping its secrets.

      • Endymion says:

        Legally, there is no distinction between ‘the actions of the Bush Administration’ and ‘the actions of the Obama Administration,’ it’s all ‘the actions of the Executive Branch.’ Saying that the DoJ should abandon state secrets arguments when it is in the middle of cases based on state secrets arguments(cases that are a legacy of the Bushies) is substantially similar to saying that we should screen gang-member’s public defenders to make sure they’re not too competent; the fact that you are advocating the former but are (yes, I’m assuming here, sue me) offended by the latter suggests a political bias.
        The courts can and should erode the state secrets privilege, and I think over time they will, although I am not optimistic. But if that erosion is a direct result of Holder feigning incompetence then all executive branch records will become just one more electoral spoil.

        • bmaz says:

          This is a false argument. Nobody that I have seen here has either stated or implied that Holder or his assigned attorneys should “feign incompetence”. The has been a professed desire to have the state secrets privilege assertion limited to individual evidentiary matters, as it was originally contemplated, as opposed to being used as a wholesale bludgeon to prevent entire cases as it has been twisted into by Bush and now Obama/Holder. Part and parcel of the former is that it has also been requested that the privilege assertion be able to be reviewed by the court in a secure manner to insure that the privilege is being properly asserted and for proper purposes instead of to conceal wrongdoing, illegality, incompetence and embarrassment.

          You are asserting a straw argument that nobody here is making and then using it as grounds to support the current state secrets policy. It is not compelling in the least.

  4. fatster says:

    White House Regroups on Guantanamo
    Counsel Craig Replaced as Point Man on Issue as Deadline for Closing Looms

    By Anne E. Kornblut and Dafna Linzer
    Washington Post Staff Writer and ProPublica
    Friday, September 25, 2009

    “With four months left to meet its self-imposed deadline for closing the U.S. military prison at Guantanamo Bay, Cuba, the Obama administration is working to recover from missteps that have put officials behind schedule and left them struggling to win the cooperation of Congress.

    “Even before the inauguration, President Obama’s top advisers settled on a course of action they were counseled against: announcing that they would close the facility within one year. Today, officials are acknowledging that they will be hard-pressed to meet that goal.

    “The White House has faltered in part because of the legal, political and diplomatic complexities involved in determining what to do with more than 200 terrorism suspects at the prison. But senior advisers privately acknowledge not devising a concrete plan for where to move the detainees and mishandling Congress.

    “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.”


  5. SmileySam says:

    It looks as if the Spanish Court is about to handdown it’s verdict against 20 or so CIA agents and others I’m wondering if this has bearing. Is Holder and the CIA afraid of giving the court more evidence against it’s own people ? I realize this would only be a small part of their considerations, but it could be a small, but very important part of why they are holding back info.

    • BoxTurtle says:

      I doubt they’re worrying about Spain at all. Even if indictments/convictions are returned, the current Spanish government has made it clear they will not be pushing international arrest warrants. The folks in question will need to be careful about traveling outside the USA, that’s all.

      Boxturtle (And if they’ve got the brains God gave a flea, they’re already being careful)

      • BoxTurtle says:

        The Italians are after the CIA as well. The CIA agents in question will likely be convicted in absentia soon, but once again the current Italian government will not push international arrest warrants. It appears as though under the SOFA, any military folks involved will be given a pass. But the Italians are likely going to change that agreement, the citizens are quite annoyed at American government kidnappers working freely in their country. And the Italian government will need to do something that will appease that without pissing off ObamaCo.


    • tjbs says:

      Didn’t Holder vet rendition and it’s go ahead in the Clinton administration?
      If so a rock and hard place and the rock sliding tighter.
      Git im outta here who ever, Democrat or Republican they’ve got to go or no constitution remains.

  6. Leen says:

    “In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.”

    And the peasants out here were all taught that when a crime or crimes are committed that our justice system follows the evidence to where ever it leads and holds people accountable for those crimes.

    How foolish we are to think that is what our justice system is supposed to be about.

    Obama, Holder, Leahy, Whitehouse “no one is above the law”

    Was so hoping they actually believe this

    • fatster says:

      What Leen said! And many thanks, EW, for laying this all out so thoroughly that even I can understand it. What a mess has been made–and so few willing to try and clean it up in an orderly and rightful manner.

    • tjbs says:

      Between the personal Anthrax attack and the offing of a Senator and his FAMILY Sen Leahy knows his place.
      My money’s on the guy, with the symbol of our country as a name, to man up to this shit.

  7. klynn says:

    Also note, the Admin is also trying to claim Walker’s court is not the right jurisdiction for al-H, which is pretty funny bc they put it there in the first place.

    Do they think the SC is the better jurisdiction?

    So Holder’s DOJ live in the reality where “defending” the United States and upholding and protecting the Constitution, the rule of law, are in conflict. Sorry state of affairs. Why even have a DOJ?

  8. klynn says:


    Have been finding the regional FBI government fraud cases/stings that are building up interesting.

    NJ,NY,IL,FL,KY,TX… and in interesting areas in terms of politics.

    Dallas, Broward County, FL (Miami), Chicago…

    A timeline of the stings would be interesting. As unrelated as they seem, something makes me ask if there is some underlying thread. A number of the stings have taken place on the same day in different states. Just interesting.

  9. liberalrob says:

    this here is no plea for justice, it’s the lawless revanchism of radicals.

    Asking that the laws be enforced and lawbreakers punished is “lawless revanchism?”

  10. Leen says:


    on the new Iran facility. While it sounds as if Iran is not denying these claims. I am amazed that I have not heard one MSMer or even blogger ask where is this intelligence from who are the sources of this intelligence? Has this intelligence been verified and by whom?

    Can anyone say Niger Documents? Can anyone say Judy “I was fucking right” Miller and how the false WMD intelligence was shoved down the throats of Americans

    Lots of people dead DEAD due to the use of that false intelligence and not one person held accountable

    • radiofreewill says:

      Leen – Iran has admitted to the IAEA that the (previously undisclosed) Enrichment Facility exists – so there’s really no question of document provenance or foundation at this point.

      This appears to be a very clear-cut case of Iran having gotten caught Saying that their Nuclear Program was for Peaceful Purposes only – for at least two years during the construction of this second Enrichment Facility – when, in actuality, they clearly have been Secretly Pursuing the very Bomb Building Program that everyone accused them of having, all along.

      This is a complete disaster for Iran. Imvho, they have No Credibility left on the World Stage.

        • JohnJ says:

          I’d like to see someone in the MSM discuss THAT legacy!

          Something that vicious thug darth would never understand is that a lot of our apparent superiority came from the respect the rest of the world had for us, along with the support from our allies; “old Europe”.

          It wasn’t just muscle.

      • Leen says:

        “clearly have been Secretly Pursuing the very Bomb Building Program that everyone accused them of having, all along.”

        Where is that proof the verifiable evidence

        I’d say that is just the unproven conclusion that the warmongers would hope you would jump to..and a dangerous leap it is.

        You know somehow I just think it might be logical questions to ask after hundreds of thousands are dead due to the use of false intelligence. But heh those dead are probably no relation to you. so who cares right?

        Asking where that intelligence came from seems logical?

        • radiofreewill says:

          Oh, Leen! Raaaawwwrrrrr!

          Check out this CNN article:

          “It wasn’t until Monday that Iran wrote a letter to the International Atomic Energy Agency, revealing the existence of the underground facility on a military base near the city of Qom.

          The facility is thought to be capable of housing 3,000 centrifuges, which is not enough to produce nuclear fuel to power a reactor but is sufficient to manufacture bomb-making material, according to a U.S. diplomatic source who read the letter.”

          So, even the Iranians are admitting that a Secret Uranium Enrichment Facility – sized appropriately for Bomb Making, but not big enough for Legitimate Fuel Production – has been under construction for two years – underground on a Military Base.

          Imvho, the least that can be said is that Iran got caught misrepresenting their intentions on this issue of Global Concern – claiming Only a Peaceful Nuclear Energy Program, but hiding its capacity to produce Weapons-Grade Plutonium.

          That’s Bad Faith in my book.

          If we’re ever going to get the Israelis to calm down long enough to give Peace in the Middle East a chance, imvho, we’re going to have to force Iran’s Nuclear Hand out into the open, subject to independent compliance with International Standards.

          If you could broker a deal like this:

          – Iran suspends its Nuclear Enrichment Program, and submits its entire Nuclear Program to the Non-Proliferation Regime, and

          – The Palestinians get their own Independent State

          Would you do it?

  11. tjbs says:

    Let me name my pissiest state secret.(If I’m wrong excuse me ahead of time)
    Isn’t Pat Tillman’s death a state secret? How many others KIA are state secrets? Over a 1000?
    I have a couple of unanswered questions about Mr. Tillman’s death.
    # 1 Was he wire tapped ?
    # 2 Were there any Blackwater operatives in the Surrounding countryside?
    I have to add were any flown in?
    #3 Who ordered the doctors to stop the criminal investigation and where did that order originate?
    I’m sure Mrs. Tillman could provide a few more questions than I have off of the top of my head ,soooooo

  12. Loo Hoo. says:


    an advocate or supporter of a political policy of revanche, esp. in order to seek vengeance for a previous military defeat.

  13. LabDancer says:

    The guy being assigned to ‘fix’ the state secrets mess was Daschle’s designated “fixer”, not a lawyer [well, fearless leader isn’t a lawyer either, & quite apart from that, the qualification doesn’t seem to have done much if any good, and maybe more harm], & is quite open about said status:

    No slight intended, IMO this makes ew’s analysis there being a ‘political trade-off’ strategy in play in the beltway the more credible.

    But what doesn’t work so well is the legal analysis. While the fact situations in all of al-Haramain, Horn & Jepperson have been met with activiation of the state secrets privilege, the fact situations in the latter two do not engage the FISA, and so the debates there are not animated by the Walker analysis in al-Haramain that provisions of the FISA 2008 effectively replace state secrets. I suppose I can see how they are all seen as subject to some sort of beltway card-trading game, but unless the FISA court, & the SCOTUS at some distant, even theoretical stage down the line, are brought into the game & given a seat at the table, the only point is, as I think ew is concluding, to buy time.

    Insofar as the state secrets privilege simpliciter is concerned, what remains to be seen is what the courts will do if when they find that a given fact situation involves one of the no-nos the SCOTUS warned against in Reynolds. That case didn’t merely fail to provide or even hint at codification or process for where the government is open to challenge for being animated by the bad motives raised; it didn’t discuss consequences at all.

    Finally, just a reminder on the limitations to the CIPA process [not that fearless leader or even most here need it, but…]: CIPA, as bmaz points out, constitutionally suspect as it is, has been ‘proven to work’, to the extent that it arguably does work, not just best, but only in the context of a person defending against a charge of breaking the law, because what happens when the government gets ticked off with the process, & picks up its marbles in a huff & stomps off, is that the person accused walks from the charge: long deemed an acceptable outcome in a country that operates under rule of law. But for the government to walk off with the equipment in a civil suit, where the person claiming to be aggrieved by government misconduct is suing for damages, does not lead to any such acceptable outcome. In the past, where aggrieved persons have appeared to be satisfied with outcomes, they’ve always come from out-of-court settlements. I can see how Horn looks to the administration as a far more promising candidate for such a resolution that either of the other two cases. I can actually see how at least one of those two other cases may be no kind of candidate for that at all; the Canadian Arar apparently received something like $10 million, and is still pursuing his case for kidnapping & assault.

    • radiofreewill says:

      Yes, but in context, Iran only ‘reported’ the Ace-Up-Its-Sleeve that the other players at the table had already seen.

      They’ve been caught demonstrating Bad Faith in the Nuclear Card Game – they’re Cheaters!

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