ACLU And Nadler: New State Secrets Policy Falls Short

Lauren Victoria Burke/WDCPIX.COM

Civil libertarians are criticizing the Obama administration’s new policy limiting the government’s ability to claim state secrets, saying it doesn’t go nearly far enough in reversing the expansion of executive power.

Ben Wizner, a lawyer with the ACLU, told TPMmuckraker that the new Justice Department policy, announced this morning in a memo by Attorney General Eric Holder, “falls far short” of what’s needed.That language was echoed by Rep. Jerry Nadler (D-NY), who has introduced legislation designed to prevent the government from abusing the state-secrets privilege. In a statement, Nadler praised the administration’s reforms, but said they nevertheless “fall short of what is necessary.”

Wizner said the ACLU is concerned that the guidelines can be thrown out by a subsequent administration, and that they do nothing to reaffirm the role of the courts in policing executive misconduct. “Even the best executive branch needs oversight from other branches,” he said.

Both his group and Nadler want a legislative fix that would require courts not to dismiss cases under the state secrets claim until they’ve considered all the evidence on whether the claim is justified. The new Justice Department policy requires the department to submit such evidence to the court, but has no power to ensure that the court considers it.

In addition, Wizner noted that, despite the new policy, the administration is continuing to invoke the privilege in seeking to have several national security cases thrown out of court. Those include the Jeppesen renditions case, which is being brought by Wizner and the ACLU, and the al-Haramain wiretapping case.

“What matters most is not what the administration says to the public, it’s what it says in the courts,” said Wizner. He continued: “If this is really a new policy, let’s see it reflected in the cases that are most important, that go to the heart of the Bush administration’s law breaking in surveillance and torture.”

Wizner said he believes the administration released the new policy primarily in an effort to deflect the pressure it’s under to support Nadler’s legislation, on which it has not yet taken a position.

We’ve asked the Justice Department for a response, and will update if we get one.

Late Update: Here’s a more formal statement from the ACLU’s Wizner:

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. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security.’

Late Late Update : A Justice Department spokeswoman tells TPMmuckraker in response: “I’ll let the release and memo speak for themselves.”