More on Holder’s “New” State Secrets Policy
Here is the Holder memo announcing a "change" in the state secrets process. As bmaz has said, the change is procedural only–it still retains all the ability to invoke state secrets with the executive with little recourse to those whose suits have been hindered by the invocation of state secrets.
But I did want to point out a few details. First, this policy goes into effect on October 1. While it’s unlikely, the one week in question does give Article III Courts a week to act to change the underlying reality with regards to state secrets.
Second, note that the policy replaces real courts with IG investigation (this is from the DOJ press release):
Referral to Inspectors General. The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward.
That is, if you want to sue the government for rendering you to be tortured, for wiretapping you illegally, or for bugging your DEA office in Burma, if your case gets dismissed for state secrets, you’ll have the satisfaction of knowing that an Inspector General will investigate your allegations.
Big whoop. In at least Horn and al-Haramain (and arguably, Jeppesen) that investigation has already been done. In fact, in Horn, one of the things the government is asserting state secrets on are IG Reports!!
And that’s what the Obama Administration intends to replace Article III review with!
Finally, there’s this:
6. Classification Authority
The department or agency with classification authority over information potentially subject to an invocation of the privilege at all times retains its classification authority under Executive Order 12958, as amended, for any successor order.
I hope the lawyers correct me if I’m wrong, but this is designed to be a blow against Article III efforts to order the government to give lawyers litigating these issues the need to know, and thereby access to classified information under dispute.
Mind you, if I were an Article III judge I would be unimpressed by this "new" policy, so it may not do Holder any good.
AG Holder, what happens when someone comes to you and says “If you allow this information to be revealed, it will embarrass the United States, and that embarrassment will cause our allies to back off from us in this critical program, and without their support the program will end, and if it ends our national security will be significantly harmed.”
This is essentially the argument about the release of detainee abuse photos, and from the looks of this “new” policy, it still would let Holder claim the privilege.
I think Obama has decided he likes some of the really neat toys that BushCo developed. And he wants to keep playing with them all, but that darn constitution keeps getting in his way.
Eventually he’s going to realize, just as Bush did, that the constitution does NOT make contributions to re-election campaigns and thus has almost no support in congress beyond lip service. Then he’ll go do as he pleases.
Boxturtle (Feingold for President!)
I’m thinking that this will change Judge Walkers rulings not in the slightest.
Their basic problem is that they want to use state secrets to cover up goverment misconduct, which a specifically forbidden use.
I don’t see this “change” effecting the AH case at all, other than possibly giving the government another line of appeal to delay things. Delay is their goal, I think they know they can’t win under the current rules.
Boxturtle (Your Honors, the CAT ate my homework this time)
IG huh? Yeah that is compelling. The IG who has had the biggest reputation for actually doing his job independently of his agency, Helgerson, has turned out to have toed the line far more than originally thought. And, in spite of that, the authority of the CIA IG was still busted down by Cheney et. al.
No, I do not think this bunk will affect Judge Walker. But having said they were going to reform state secrets policy, this was the least the Obama Administration could do, and the least they could do was the most they were willing to do.
This new move on state secrets anticipates hearings on transparency of the Federal Treasury. They must guard against revealing too much about money.
At the same time, Blue Dogs have to show frustration in a ‘run up against the President’ for 2010. The campaign is well under way.
I’ve often wanted to see how one squares a circle:
So, on the one hand, they say no state secrets privilege for unlawful deeds, and on the other hand, they say state secrets privilege is fine for unlawful deeds as long as IGs are told.
I guess they assumed our attention span wouldn’t last from one page to the next.
And speaking of Inspector Generals, here’s an OT item on the “Statement of Glenn A. Fine, Inspector General, U.S. Department of Justice before the Senate Committee on the Judiciary concerning “Reauthorizing the USA Patriot Act,” September 23, 2009″ (17 page PDF).
Sort of like putting the truth in a round room and asking the nation to look for justice in the corner?
Well, this is a matter of “specific intent” again. Would there be a national security reason not to know this information even if everything was legal?
So, on the one hand, they say no state secrets privilege for unlawful deeds, and on the other hand, they say state secrets privilege is fine for unlawful deeds as long as IGs are told
It’s the Holder Ping Pong tournie. IGs are statutorily supposed to refer crime to him, he’s regulatorially referring crime back to them; states secrets won’t be invoked for unlawful deeds (like waterboarding?), but if they are then the whole thing will be referred to IGs; IGs will report to Congress, but if the Executive doesn’t like the report they can declare it a secret too and hold it up for a few years; if the AG and President decide to commit crimes of torture they can refer themselves to the IGs, except that if the OLC or AG say its ok to commit the crimes then they don’t have to; if crimes are committed and the DOJ involves itself in covering them up – then there are not penalties for its behaviour.
I think he needed to put some kitty stickers around the borders and a ‘kaythnxbai’ at the end. LOLcats running DOJ. Why is that not such a cute thought?
When you put it that way, what’s not to love?
I guess for some reason this delivery didn’t get nearly the attention as the selection of the puppy.
I see it the same way you do. A totally backasswards repudiation of the DOJ’s own exclusive criminal prosecutorial responsibilities.
And I don’t know how anyone, including the legal beagles in DC, could see it any other way.
Did Eric Holder even read this before he signed it?
The memo doesn’t suggest what I think you think it does. It says that it is only in the case where the AG decides to invoke state secrets but “the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation.”
So it is not about a plaintiff’s rights here to appeal but about the AG “pursuing” wrongdoing via the generally toothless IGs. This is in lieu of the DOJ initiating an investigation into possible violations of law.
I thought the classification authority part was there to say that the agency is properly the source of whether something should be classified and DOJ is not assuming classification authority it shouldn’t have. The judge should be able to order that agency to go through CIPA or something else if DOJ is not standing in the way saying there should be no case at all.
Certainly IANAL.
I see it more like EW and bmaz where the DOJ is attempting to again work the refs (i.e. Judge Walker, Judge Sullivan, Judge Bates, etc.) in stating that the Judiciary cannot ever determine what is classified and who is entitled to access said classified material.
O/T kinda.
Guantanamo closure uncertain four months from deadline
Published: Wednesday September 23, 2009
“With just four months left before his self-imposed deadline to close the “war on terror” prison here, US President Barack Obama still faces tough decisions on how to deal with the 226 men left in detention.”
More.
He’s reinforcing the hand of OLC opinions and the AG as an internal “court” for Executive branch elites. An IG referral, especially in the intel branches, is already subject to a bazillion constraints. Then there is the fact that apparently if an IG report is done, the mandate for the report is set by the Exec branch. And oh yeah, if the allegations involve wrongdoing in the office of the AG, or OLC itself – I think Fine gave use the answer a long time back, didn’t he, that he’s not really authorized to investigate the AG, only the OPR could do that – but all it takes to get around THAT is to call something classified and not give OPR clearance, as happened with Gonzales – as if they would have done anything more than kissed butt anywya.
Then you have what happens once there is an IG report. We saw what happened in the Abramoff case with a non-IG report, but nonetheless a vital report on national security, prepared by an acting USAtty for Congressional review – Ashcroft and Ring go shoot hoops and the report never makes its way to Congress at all and the two drafters are demoted.
But that wouldn’t happen with an IG report, right? It sure looks like that is exactly what happened with the CIA IG report, which was only given to the gang of 4 and not, as required by statute, to “congress” (with the full committees not getting the report for another year or so) I dug through the statutes once but didn’t save them other than the links I put up in a comment here, so I can’t cite back, but basically it looks to me like the STATUTES involving IG reports and their timely submission to Congress were violated in the CIA IG report situation – but nothing has happened. So where are the PENALTIES Holder is inserting so that people who violate and abuse the process go to jail?
The other and bigger problem is that IG offices were not meant, ever, to be and serve as criminal investigation units for non-financial crimes. That’s not to say they don’t get some of that on the periphery, but what they are supposed to be doing is telling Congress if the Exec is spending the money Congress allocated well.
http://www.law.cornell.edu/usc…..-000-.html
Here’s what the Stautes describe as the purpose of the IGs
And the statutory scheme is NOT for the AG to take allegations of Executive branch crime, especially non-financial crimes like assault, sodomy, kidnap, child abuse, drownings, illegal confinement, human experimentation, etc. and refer those to the IGs, it’s for the IGs if they stumble across crimes as they are conducting financial reviews to take that information and refer it to the AG.
Section 4 of the IG Act of 1978 is titled, “Duties and responsibilities; report of criminal violations to Attorney General” and as you read it, the financial review character of the IG’s office is again reinforced and you’ll also see a lack of ability to refer crimes being committed by the AG to anyone other than the AG, even if they were a full blown desperado investigations unit.
Holder now wants to play regulatory ping pong and pretend he can change the whole nature and statutory scheme for IGs established as law by Congress by issuing some regs and policies. All without addressing who policies the President and AG.
It’s going to be intereresting on this one. The whole of “state secrets” in particular in connection with the bad acts of the Executive branch towards its own citizens was created out of whole cloth by the activist court in Reynolds. IMO, it has already been addressed very directly in the Keith case, although there are no headnotes to support me on that – only the facts of the case and its holding.
This just depresses me. Reynolds was a total muck up. And, we all know it. So, we continue with lies to protect the lies.
The biggest pile of — in history.
Charlie Savage has more, since I just read it:
“If the Justice Department signs off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government’s reasoning. A judge could request access to particular pieces of underlying evidence.
The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.”
He then rounds off with a quote from Nadler: “Congress must still enact legislation that provides consistent standards and procedures for courts to use when considering state secrets claims.” I.e. the executive branch doesn’t have the power to order Article III to evaluate classified evidence or claims.
That is functionally exactly what happens already.
I think I am beginning to see this. Given the shenanigans in al-Haramain, even if the judge could see the evidence and wants to, the judge may not be able to control whether the lawyers see it or not because the agency(say, DOD) has the power to grant the lawyers the security clearance to see the information.
hey, captain Obama, you got some splainin to do …
for the record, it’s from the 50s version of “Mutiny” staring Brando
absolute disgrace.
i wish obama more jowls and more neck flap. it’s coming–he’ll get the face he deserves
The new policy is clear: it says that an opaque bureaucracy exists to supervise the other opaque bureaucracy, and that you have the right to ask Bureaucracy B to consider investigating Bureaucracy A if you have concerns *and* those concerns are shared by Bureaucracy B. Maybe. Sometimes.
What could be clearer than that?