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Obama administration retains expansive view of state secrets privilege in the courts

Ben Wizner [Staff Attorney, American Civil Liberties Union]: "The Department of Justice's new policy on state secrets may turn out to be a small step in the right direction. If it results in fewer - and more nuanced - invocations of the state secrets privilege in future litigation, the Department will deserve some credit.

But the new policy will be an empty gesture so long as the Obama administration continues to assert an expansive theory of the state secrets privilege in the courts. Even as the administration was rolling out its new guidelines to the public, Department of Justice attorneys were invoking the privilege in the courts and demanding the dismissal of lawsuits filed by victims of torture and illegal surveillance. In these cases, the Obama administration has endorsed the most extreme theory of the state secrets privilege articulated by the Bush administration - i.e., that the privilege can be deployed to terminate entire lawsuits that allege executive lawbreaking even before any evidentiary issues have arisen. Under this doctrine, the Bush administration engaged in grave human rights violations, declared those activities "state secrets," and thereby avoided any judicial oversight or accountability. Accordingly, a broad range of executive misconduct has been shielded from judicial review after the perpetrators themselves have invoked the privilege to avoid adjudication. Rather than repudiate this practice, the Obama administration has embraced it in the most critical cases, and nothing in these new voluntary guidelines will change that formula for executive-branch impunity.

Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of "national security." Even the most enlightened executive self-policing is no substitute for enforceable checks and balances. That is why state secrets reform legislation introduced in the House and Senate - prior versions of which were co-sponsored by then-Senators Biden and Clinton - is so crucial. First, legislation would ensure that future administrations, not just this one, are bound by the rule of law when invoking state secrets. Second, the pending legislation would mandate judicial scrutiny of purportedly secret evidence, and would prohibit the dismissal of lawsuits on the basis of executive-branch affidavits alone, adding a necessary check on executive claims of national security. Voluntary executive-branch guidelines do not and cannot address this critical issue of enhanced judicial scrutiny. The Obama administration has thus far avoided taking a position on the pending legislation. We can only hope that the new policy is not intended to undercut and preempt legislation that would permanently address the broader, structural problems.

The state secrets privilege allowed the Bush administration to draw a curtain around many of its most lawless and inhumane national security policies. To date, the Obama administration has chosen to allow that curtain to remain. Comprehensive legislation, not self-imposed guidelines, will provide the only real and lasting solution."

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