What's old is new, again

Updated The so-called "state secrets privilege" is a McCarthy-era legal principle that enables the government to shut down suits challenging government actions on the grounds that pursuing the claim would require the release of information that would harm national security. Courts were not required to accept the assertion but they usually "deferred to the executive branch on such matters" and dismissed the suit even when the government had failed to back up its claim of harm to national security, even when the government refused to back up its claim, which it often did.

The Shrub gang invoked the privilege to an unprecedented degree: Between 1953 and 2000, forty-seven years, the privilege was invoked 65 times. Between 2001 and the middle of 2007, six and a-half years, it was invoked 39 times. As a result, it was one of the things candidate Obama pledged to "change."

After what seems like quite a long wait, the Obama administration has finally released its new policy on the use of the "state secrets privilege." Take it away, ACLU:

The thrust of the new rule: [Attorney General Eric] Holder must approve any invocation of the privilege.

Well, that’s not much different from the Bush administration’s policy, which was to invoke the privilege at the outset, before the case even got its foot in the courthouse door.

Ben Wizner of the ACLU's National Security Project, lead attorney in two cases challenging the CIA’s use of "extraordinary rendition," added:

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.

Tom Parker, counter-terrorism and human rights policy director for Amnesty International USA, felt much the same way:

While this new policy sounds like an improvement in principle[, he said], it is patently at odds with the way the Justice Department has fought tooth and nail against litigation requests over the past eight months.

Now, yes, on paper it is a step forward. For one thing, it centralizes the authority to invoke the privilege in the Attorney General, advised by a team of DOJ lawyers. For another, it somewhat tightens the standard required from "harm" to national security to "significant harm." It also says the privilege can't be used to hide violations of law, bureaucratic foul-ups, or things that are merely embarrassing and that along with a motion to invoke the privilege, DOJ is supposed to attach a list of reasons, something often not done previously.

However, there are still some serious shortcomings. One is the last item in the memo, which reads:

This policy statement is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That's pretty much bureaucratic boilerplate, but the fact is what it really says is that "this is our policy, but if we ignore our own policy and violate our own declared procedures, tough shit, ain't nothin' you can do." Which points up the bigger problem: This is policy. It is not law. It's what the administration says it will do but it's not what it's required to do. And it can be changed at any time by a future administration - or, in fact, by this one. What's more, it's very likely the whole business of setting a new policy, from announced intention to release, was undertaken to head off binding legislation.

Last February, Obama invoked the state secrets privilege in a Bush-era case involving extraordinary rendition. The next day, bills were introduced in both the House and Senate to restrict and regulate use of the privilege. In response, the White House promised to "review" the practice and come up with a new policy. What came out on Wednesday tracked the bills fairly closely - but with two serious shortcomings: One, there is no way a White House policy could require judges to actually consider the justifications for invoking the privilege the White House would submit; two, again and related, it does not have the force of law, a force that can require the White House to stick to the standards and require judges to consider the submitted justifications before ruling.

But beyond all that, ultimately, as the saying goes, actions speak louder than words - and it's hard to have much faith in this policy when

[t]he Obama administration said Wednesday that it would maintain President George W. Bush’s state secrets position when it came to lawsuits leftover from that administration.

True to its word,

[s]ince February, a Justice Department task force of eight lawyers has been sifting through about a dozen pending cases in which state secrets arguments have been made.

So far, they have reversed course in only one lawsuit - a bizarre case in federal court in the District in which a former agent for the Drug Enforcement Administration accuses the State Department and the CIA of installing listening devices in a coffee table in his home.

Indeed, just hours later, just hours after releasing the memo with the new policy, the administration was in US District Court in San Francisco again invoking the state secrets privilege in an attempt to have a case dismissed.

This case is the one commonly known as the al-Haramain case as it involves illegal warrantless surveillance on the now-defunct al-Haramain Islamic Foundation. Two lawyers for the group

allege some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were based on classified documents the government accidentally mailed to the two,

which would seem to be pretty damn good evidence. However, in June, District Court Judge Vaughn Walker ruled in favor of a government claim that the documents are state secrets and found that the lawyers must make their case without reference to them.

(Savor that for a moment, as it is indicative of the bizarre netherworld of the national security state: Even though the lawyers have seen the documents, the court has seen the documents, and the government has seen the documents, they all must now act as if those documents don't exist. And the government can and did argue that the plaintiffs have no standing to sue because they can't prove they were surveilled - even though everyone involved knows for an absolute fact that they were because they have seen the documents that prove it.)

Walker did, however, say from the bench on Wednesday that the public record may suffice to prove the lawyers' case. But that is clearly not the point here. The point is that the Obama administration, presented with an obvious opportunity to reject an inane invocation of the privilege - inane because the parties have already seen what is supposed to be too secret to reveal - has refused to do so, preferring secrecy to sanity and presidential authority to public accountability.

(And please don't give me anything about scheduling and not enough time or any other crap - Holder, obviously knowing full well the memo was coming, could have told the US attorneys in the case to request a continuance so that the government could "reconsider its position regarding the state secrets privilege in this case in light of this new policy." Don't think for a second the plaintiffs, presented with the possibility of getting their denied evidence back, would have objected or the court would have refused.)

So let's sum up: In order to head off legislation, the Obama administration has adopted what amount to self-imposed voluntary limitations on the use of the notorious and often-misused state secrets privilege while it continues to invoke the same privilege in existing cases even though in those cases it was invoked under the old, somewhat weaker standards, the very practice candidate Obama called a "problem" that needed "change" - and, based on its record (one reversal in "about a dozen" reviewed cases), gives little indication that the new standards will significantly change practice.

I admit that in the area of secrecy and national security I have very little trust in the Obama White House - and, I think, with good reason. Even given that, I am unimpressed. At this point, neither words nor policy memos will move me. I want to see deeds. Until I do, I will remain unimpressed and distrustful.

Footnote: Filed under the heading of "Ummm, huh?" comes this from Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican and a member of its terrorism subcommittee, who called the policy "a promising development" because, he said, it keeps authority in the executive branch. He went on to say:

The privilege has been asserted judiciously and in a manner appropriately designed to protect our nation and its most vital classified information and programs. Simply put, legislation designed to curtail the use of this important privilege is unnecessary.

Aside from confirming that the purpose of issuing the policy was to head off binding legislation, since the information remains secret, um, just how would Sessions know the privilege has been "judiciously and appropriately" invoked?

Another Footnote: I like to mention this whenever the subject of the state secrets privilege comes up, especially in light of the memo's declaration, right at the top of page 2, that

[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the Unites States government....

The very source of the state secrets privilege, the very reason the government sought to create it, was to conceal precisely that sort of government misconduct. It was built on lies, on labeling as vital national security secrets what turned out to be an accounting of inefficiency and sloppy maintenance that lead to the 1948 crash of a B-29 and the deaths of three RCA employees. And I see no reason so far to expect a radically different sort of intellectual purity from the Obama administration on national security and secrecy matters.

Updated to note that Dan at Pruning Shears makes some additional points on this, including some additional relevant links, here. A good point he mentions, which I didn't address, is about how this brings up the need for a process for automatic declassification.