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Protecting Whistleblowers since 1977

Still No Court Oversight on State Secrets

Jesselyn Radack, September 23, 2009

This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.

The Department of Justice is going to impose new limits on the government assertion of the "state secrets privilege" used to block lawsuits (particularly the ones involving warrantless wiretapping and torture) for national security reasons. The good news is that the new policy would require approval by the Attorney General if military or espionage agencies (read: the NSA or CIA) wanted to assert the privilege to withhold classified evidence sought in court, or to ask a judge to dismiss a lawsuit outright. The bad news is that there is still no court oversight.

This is the same kind of split-the-baby approach the Administration is taking with regard to the Patriot Act. Instead of taking the lead on protecting privacy and civil liberties, the Administration is taking a "don't tick anyone off" middle-ground approach. They're not fighting the battle; they're observing it.

The Department of Justice policing itself didn't work in the last Administration. Our national security is too important to let one branch of government handle it entirely. While I have more faith in Obama to protect the Constitution (and even Obama has given us reason for concern--like continuing to assert the privilege to get lawsuits that are valid on the merits dismissed), we might not be so lucky with the next president.

Holder says:

The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake

But from what we've seen so far, that is not being followed. In the case of Binyam Mohamed, and Ethiopian native, and four others, who filed suit against a subsidiary of Boeing for arranging their "extraordinary rendition" to a country where they were tortured, a lawyer for the Obama administration startled a panel of the Ninth Circuit federal appeals court judges by pressing ahead with an argument for preserving state secrets originally developed under Bush.

In the Al-Haramain case--the only viable suit against a telecom (AT&T) for warrantless wirtapping, the Obama Administration has asserted the state secrets privilege to have the suit shut down.

Candidate Obama ran on a platform that would reform the abuse of state secrets, and while they may claim this policy reforms it, real reform comes with some kind of change, and, with no court oversight, Obama is still saying, "Trust us. We're the governement." If the past nine years has taught us anything, it's not to trust the Executive Branch to protect our civil liberties. The measure of a leader is not his ability to hoard power, but to know when he should loosen his grip as part of the checks and balances upon which our government works.