WASHINGTON — The Justice Department invoked the state-secrets privilege Oct. 30 to try to stop a lawsuit over Bush-era wiretapping — the first time the Obama administration has done so under its new policy on such cases.
Attorney General Eric Holder announced the decision in a California lawsuit challenging the warrantless wiretapping program begun after the Sept. 11, 2001, terrorist attacks.
Under the state-secrets privilege, the government can have a lawsuit dismissed if hearing the case would jeopardize national security. The Bush administration invoked the privilege numerous times in lawsuits over various post-2001 programs, but the Obama administration recently announced a new internal review process in which more senior Justice Department officials would make such decisions.
Holder said that in the current case, that review process had convinced him "there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people."
To proceed with the case, Holder said, would expose intelligence sources and methods.
He also said U.S. District Judge Vaughn Walker, who is handling the case, had been given a classified description of why the case must be dismissed so that the court can "conduct its own independent assessment of our claim." Holder said the judge would decide whether the administration had made a valid claim and "we will respect the outcome of that process."
During the Bush administration, government lawyers resisted providing specifics to judges handling such cases about what the national-security concerns were.
Kevin Bankston, a lawyer for the Electronic Frontier Foundation, a civil liberties group in San Francisco that is pursuing a similar lawsuit against the government, called Holder's decision "quite disappointing."
"The Obama administration has essentially adopted the position of the Bush administration in these cases, even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege," said Bankston.
Last month, the administration said it would try to curb the use of such claims in the future by setting a higher bar for invoking the privilege. Under the new approach spelled out by attorney general, an agency trying to keep such information secret would have to convince the attorney general and a panel of Justice Department lawyers that its release would compromise national security.
In the past, such government claims of state secrecy required a lower standard of proof that the information was dangerous, as well as the approval of fewer officials.
Though the Obama administration has created a new system for reviewing such cases, it has continued to assert the state secrets claims in all the remaining cases left over from the Bush administration.