CourtSide - The FindLaw Breaking Legal News Blog

Feds Might Reveal More of Their Secrets, but Want to Keep On Collecting Yours

In a pair of simultaneous deliberations occurring in Washington D.C. this week, the Justice Department is attempting to shape how many of its secrets are revealed to the public, and how much of the public's secrets it can collect.

the DoJ has announced a new process for determining whether or not to assert the state secrets privilege, and a established new set of guidelines and standards it will employ when it does decide to make a state secrets claim.  In a statement, Attorney General Eric Holder said that the goal of the new standards is to ensure that the government claims the state secrets privilege "only when necessary and in the narrowest way possible."
The government invokes the state secrets privilege to block lawsuits that it claims will result in the release of information that is harmful to national security.  The Bush Administration's use of the privilege prompted vociferous backlash from civil liberties proponents who felt that the administration's approach was too broad and removed government accountability. 

Under the new system for asserting a state secrets claim, the DoJ has agreed to submit documents for court review, adopt a more narrow legal standard to determine when to claim a state secret, and narrowly tailor its claims so that less information falls under the state secrets doctrine than before.  The new standards also require the Attorney General's approval before making a state secrets claim, whereas the Deputy AG could previously sign off on a state secrets assertion.

Holder and the Obama Administration are probably hoping that today's announcement will allay the criticism they received because of their decision to continue the Bush Administration's state secrets claim in the NSA warrantless wiretapping cases.  Many of Obama's supporters felt betrayed by the President's adoption of what they viewed as one of the Bush Administration's most egregious expansion of executive power.

But an amelioration of criticism isn't likely given the administration's arguments before House Judiciary Committee in favor of extending surveillance provisions of the USA Patriot Act past their expiration on Dec. 31.  Obama wants to keep the provisions around, but is promising House liberals that the administration will enact new, more stringent privacy safeguards to protect the public.

The provisions of the Patriot Act require the federal government to obtain subpoenas from a special court in order to conduct surveillance, so they are distinct from the Bush-era warrantless wiretap program, but that probably won't matter to the administration's critics on the left. 

Especially since the new state secrets protocol doesn't guarantee any increased transparency or accountability for the government's surveillance programs should aggrieved parties bring a lawsuit against the government.  After all, Holder was involved in the decision to invoke the privilege in the wiretap cases, and who's to say that he won't take an expansive view of what falls under the new "significant harm" standard?

So, in essence, the government has said today that it might let the public see more of its secrets, but it definitely wants to keep the option to see the public's.