Critics Unimpressed With Holder's New State-Secrets Policy

Attorney General Eric Holder got plenty of attention Wednesday for announcing a new policy that is supposed to “strengthen public confidence” when the Justice Department invokes “state secrets” to shut down lawsuits alleging wrongdoing by the CIA or other U.S. government agencies.

But as national-security lawyers pore over the fine print, they are seeing a lot less than meets the eye. Although Holder is setting up a new high-level review process before Justice invokes the so-called state-secrets privilege, the new policy is unlikely to affect the high-profile cases “people care about”─such as claims that government officials violated the law when they conducted warrantless surveillance of U.S. citizens or rendered terror suspects to countries that practice torture, according to Robert Chesney, a University of Texas law professor who has studied the use of the state-secrets privilege.

Chesney thinks that the new policy could have a “real impact” on “the margins”─by forcing high-level Justice officials, right up to the attorney general himself, to personally review a case before Justice lawyers invoke the privilege to prevent a lawsuit from going forward. He also says there will be somewhat more “accountability”: if the A.G. concludes that a lawsuit makes credible allegations of wrongdoing by federal officials, Justice will refer the matter to the inspector general of the relevant agency that is being sued so the claims can be investigated. The catch, as Chesney notes, is that none of that will become public. “Nothing in the policy will bring the public in as a checking mechanism,” he says.

But some other national-security lawyers doubt that the new policy will even have the marginal impact that Chesney thinks it might. “Having now read Holder’s memo I am less than impressed,” writes Mark Zaid, a veteran national-security lawyer, in an e-mail to NEWSWEEK. “This is mere window dressing designed to make the Obama administration look as if they are doing something and prevent Congress from enacting legislation that conceivably could have made a difference. It does absolutely NOTHING of true substantive value [emphasis in original].”

The use of the state-secrets privilege sparked controversy during the Bush era, when Justice lawyers repeatedly used it (dozens of times, though there is no reliable count) to block lawsuits alleging wrongdoing by government officials. “Claims that government officials illegally spied on U.S. citizens, were complicit in torture, or engaged in other improper conduct were blocked from being heard in court because Justice lawyers claimed that allowing such allegations to be heard might expose classified information that would harm national security.”‬‪

After Obama, in a press conference last spring, said he wanted a new approach to such cases, Holder undertook a review: his memo Wednesday announcing the new policy stated that it is designed to provide “greater accountability and reliability” in the invocation of the privilege.

But the real problem, says Zaid, is that the standard used by Justice to determine if the privilege should be invoked has not changed at all. Holder’s memo says that Justice will still use the privilege if it determines that a lawsuit might expose information that “could be expected to cause significant harm to the national defense or foreign relations” of the United States. That language, drawn from a longstanding executive order, is the same as it was before, says Zaid.  

“Yes, it looks like layers of additional consultation have been added, and I don’t believe that the AG him/herself had previously needed to weigh in on every single invocation, but so what?” writes Zaid. “Do we really believe this will make a difference? Would Gonzalez or Ashcroft, or even Holder for that matter, to be perfectly honest, truly put themselves out on a limb and challenge a fellow Cabinet member who has sought and approved use of the privilege?

“DOJ unnecessarily killed some trees,” Zaid concludes. “Business as usual. As time goes on it is becoming clearer and clearer that little to nothing has changed from the Bush administration when it comes to national security matters.”

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