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Attorney general announces new state-secrecy guidelines

By The Associated Press
09.24.09

WASHINGTON — The Justice Department will continue Bush administration attempts to block certain lawsuits by claiming they threaten state secrets, but it will try to curb the use of such claims in the future, the agency announced yesterday.

Attorney General Eric Holder said he and a group of Justice Department lawyers would personally review such claims.

During the Bush administration, the so-called state-secrets privilege was invoked to quash lawsuits filed by people claiming they had been tortured or illegally wiretapped.

The Bush administration argued in those cases — and the Obama administration still argues in a few cases alive in the courts — that the lawsuits must be dismissed because evidence in the case would harm national security.

In a statement, Holder said the new policy “sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

The administration’s move could quell efforts in Congress to pass a law curbing the use of state-secrets claims.

Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, praised yesterday’s announcement, but added that he remains “especially concerned” that the government should be required to show significant evidence to a judge when seeking to assert the privilege, and said he hoped the Obama administration would work with Congress to establish such a requirement.

Under the new approach spelled out by Holder, an agency trying to hide such information 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.

The Justice Department press release said the government would also submit evidence to a judge to buttress its claims of state secrets, but Holder’s actual legal memo to department lawyers makes no mention of sharing information with judges.

That has been a highly contentious issue in previous state-secrets cases.

Asked why Holder’s memo does not instruct government lawyers to share evidence with judges, Justice Department spokeswoman Tracy Schmaler said the new policy would be conveyed internally.

The Bush administration was criticized for invoking state-secrets claims in lawsuits challenging post-Sept. 11 anti-terrorism programs, and the incoming Obama administration had promised a thorough review of such claims.

Yet in conducting its review, the Obama administration has continued to assert the privilege in all the current cases.

In one lawsuit brought by a former Drug Enforcement Administration agent, government lawyers changed their reasoning for invoking the state-secrets privilege, but are still asserting it.

The judge in that case ridiculed the effort as two-faced.

“The government’s new refrain is heads you lose, tails we win,” U.S. District Judge Royce Lamberth wrote in a recent decision, which was overturned on appeal.


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Obama keeps some Bush secrets despite openness pledge

Administration has made highly visible announcements when breaking with Bush policy and opening hidden files, but has made quieter rollout of decisions when endorsing secrecy. 04.20.09

Report: Obama administration improves openness
But public-interest coalition finds 'mixed' record with room for improvement. 09.09.09

Obama administration asks federal judge to toss wiretapping lawsuit
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Obama administration seeks to block wiretap lawsuit
Invoking state-secrets privilege, Justice Department says allowing case to proceed would jeoparding intelligence work. 11.02.09

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