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
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.
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
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.