PATRIOT and State Secrets Mark-Up, 2.1

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We’re back, waiting to get a quorum. Watch along here.

Schiff: Strike ordinary pen register and trap and trace changes. Follow-up to Rooney amendment, potential unintended consequences on changing trap and trace. Avoid unintended consequences.

Smith: Strikes higher standard for pen register and adds audit.

Schiff: Yes. Calls for same audit in one context extended to FISA and criminal context.

Smith: Improves bill, not to extent we can support bill.

Passed on voice vote.

Issa: Strike section 106. Sneak and peek. Existing bill limits judges discretion in granting permission for delayed notice. Imposes standard which shall not be achieved.

[This is being held for the moment, now moving to State Secrets]

Resolution of inquiry from Lamar Smith on Medical Malpractice.

Nadler: State Secrets. Uniform standards for state secrets. In order for rule of law to have any meaning, must have recourse in court. If wiretaps your phone, steals your gun, kidnaps and tortures you, only remedy is to sue the govt. If exec can have any case dismissed on any incantation of state secrets, not simply excuse to shield illegal or embarrassing information. There can be no law, no rights and no liberty if exec can do anything it wants behind wall of state secrecy.Holder policy welcome, but not enough. Internal policing, but still permits exec to be its own judge. Congress has provided guidance to courts on handing sensitive info in other contexts. Several witnesses who have submitted evidence, courts have proven themselves fully competent, that is Courts best qualified to balance risks of disclosing evidence. Only govt interlocutory appeal. Prohibits dismissal at outset. Would require Court to rule on actual, not hypothetical harm. Requires all judges review info to determine whether harm is likely to occur. Currently each judge decides whether to review or whether to accept govt’s assertions. If judge determines privilege has been asserted, consider substitute. Where no possible substitute, allows dismissing or finding for or against. Modeled on CIPA. Same type of flexibility in civil cases as in criminal cases. Courts, find balance.

Sensenbrenner: State secrets long-standing. SCOTUS most recently described in Reynolds. May occasionally disprivilege someone suing in court important to protect all Americans. Obama Administration not enamoured with this legislation.

[Shorter Jim Sensenbrenner: I’m as fond of Democrats abusing power as I am of Republicans doing so.]

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PATRIOT and State Secrets Mark-Up, Day Two

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Here’s Jerry Nadler, in yesterday’s hearing, explaining how the PATRIOT reauthorization attempts to balance privacy and national security.

Follow along today’s hearing here.

Oops, I had some technical issues. Started up late. Apparently Lamar Smith is attempting to keep Lone Wolf.

Conyers now explaining that Suzanne Spaulding says govt could always seek criminal warrant for a Lone Wolf. Lone Wolf provision not in original PATRIOT, nor the one that got substituted in middle of the night in rules committee, got added for reasons not remembered by me now. Govt already uses criminal warrants with domestic terrorists, comparable to Timothy McVeigh. Tom Evans says Lone Wolf not constitutional.

Chaffetz: My understanding is that DOJ is in favor of keeping this in place.

Smith: I agree with President of US and DOJ and FBI that this needs to be reauthorized. Let me address again those who argue that we can substitute criminal wiretaps. Wiretaps that the evidence will be turned over to defendant. In case of this provision, dangerous to turn over, bc it might reveal sources and methods. Second reason, criminal wiretaps require live minimization. Translating foreign language, live minimization impossible. I don’t know if gentleman from CA would like for me to yield to him?

[Interesting, this is where Adam Schiff pushes right.]

Nadler: Only heard one of Mr. Smith’s two points, that if you use lone wolf, if you use Title III, that is done with view toward using evidence in court, if evidence collected that was secret, bring CIPA into play. Not a valid reason for having new section of law. Fundamental reason for not extending it, if you don’t show connection to foreign power, no justification for going beyond Fourth Amendment. Fourth Amendment is a protection in criminal law, when you have lone wolf, who by definition is not foreign intell, then it makes this whole thing unconstitutional.

Smith: It does add to burden.

Nadler: SCOTUS has made it clear that Fourth Amendment applies to all persons in US.

Smith: Live minimization. Speaking foreign language.

Sensenbrenner: Support amendment of gentleman from TX. Lone Wolf plugged the hole. Maybe bc the hole is plugged, not necessary to use it, but if we create the hole again, we create a gap that terrorists will exploit. Prosecution required to disclose in open court, phone conversations disclosed in court, result indicated that we weren’t able to use that surveillance method day after it became used in trial.

[The Republicans keep arguing that any hole in PATRIOT will be used by AQ, even while arguing that parallel holes in civil liberties protections won’t be used by investigators. I guess some human beings are either shrewder or less human than others.]

[Sensenbrenner is arguing that al Qaeda was successful on 9/11 bc of the earlier World Trade Center trial.]

Conyers: Lone wolf never came before judiciary committee.

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Buying Off Victims of Illegal Wiretapping at $3 Million a Pop…

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…That could get expensive.

That’s what the federal government agreed to pay to Richard Horn to settle his 15-year old suit against the government for wiretapping him in Burma.

The U.S. Government has agreed to pay $3 million to a former Drug Enforcement Administration official who claims he was spied on by a CIA agent and a U.S. diplomat while working at the U.S. Embassy in Burma more than a decade ago.

The settlement of a long-running lawsuit brought ex-DEA agent Richard Horn was filed tonight in U.S. District Court in Washington.

Still unsettled, though, is whether this will convince Royce Lamberth to ignore all the lies the CIA told the Court in an attempt to use state secrets to make the suit go away.

The government states that “a significant reason” it entered into the settlement is to pursue the possibility of vacating two recent court orders from Lamberth relating to the issues of state secrets and the issuance of clearances. One of the orders the government is seeking to vacate was cited by the plaintiffs in the most viable legal challenge to the Bush Administration’s warrantless wiretapping program, Al Haramain Islamic Foundation v. Obama.

“Leaving intact non-precedential rulings that resolve significant constitutional questions involving separation of powers does not serve the public interest, particularly when the parties have agreed to forego further review to achieve a consensual resolution,” the Justice Department wrote in a separate motion filed tonight.

Update: Josh changed the last quoted paragraph–which makes it all that more interesting. The government is trying to erase Lamberth’s ruling on state secrets. We’ll see how Lamberth feels about that.

If It’s [Was] Friday, It Must Be State Secrets, Hiding Abuse of Power, in the 9th Circuit

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photo: Diane M. Byrne via Flickr

photo: Diane M. Byrne via Flickr

A quick word about scheduling. I’m going to take a break from Dick Cheney for a bit so I can hit some other issues. Later today or tomorrow, I’m going to take a look at the torture documents which Mary and MadDog started exploring in this thread. But then I need to turn back to PATRIOT in anticipation of the mark-up of the House bill, which is probably going to be on Wednesday.

But for the moment, I want to take a look at Eric Holder’s state secrets invocation yesterday.

The case is one of the remaining surveillance suits for the government’s “dragnet” collection of telecom signals, parallel to EFF’s Jewel case. The government had already invoked state secrets in 2007. But after the Jeppesen decision this spring, EFF reactivated the case (yeah, I’m sure this is not the legal term). And so now, to try to throw the case out again, the government is reasserting its state secrets invocation.

The case is interesting for a couple of reasons. First, the timing. The Administration is invoking state secrets under its “old-is-new” state secrets policy, something Holder focuses on in his statement on the invocation.

Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation.  We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.  The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion.  A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information.  Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

As such, it appears that DOJ wants to pitch this invocation as hopey-changey proof of the reasonableness of its new process.

But then, even in his statement, Holder is invoking state secrets in a 9th Circuit case assuming that the government will win its Jeppesen case. Holder describes how DOJ attempted to carve out a part of this suit that could go forward while still protecting state secrets.

As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so.

That statement assumes the Executive–and not the Courts–gets to decide how much of a case gets thrown out with a state secrets invocation, an assumption that flies in the face of the Jeppesen decision. Curiously, though, a statement making that assumption also ends with the kind of humility we haven’t seen from the Holder DOJ in related suits.

Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances.  As always, we will respect the outcome of that process.

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As Predicted, the Administration Folds on Horn State Secrets Claims

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After Eric Holder came out with his "new" state secrets policy last week, I had this to say:

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.

[snip]

Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

Well, today we’ve got news that the government–after fighting Horn’s suit for 15 years–has all of a sudden decided to settle.

The Obama Administration may be in the process of heading off a court battle over the Executive Branch’s power to control classified information.

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Further Comments from Jerrold Nadler on the “New” State Secrets Policy

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Given that Congressman Jerrold Nadler was one of the members of Congress who responded to DOJ’s "new" state secrets policy by reiterating the need for legislation reforming state secrets, I asked his office for more information of where they think the "new" policy leaves efforts for legislation. A spokesperson provided the answers below.

I was curious, first of all, whether the "new" policy was a result of negotiations that have been going on for several months with Congress. It was not. Rather, it was the result of the DOJ review of the outstanding state secrets claims made by the Bush Administration.

This policy came out of the order from Attorney General Holder that the Department of Justice review all pending cases where the state secret privilege had been asserted and was not the result of negotiations with Congress. However, we have met in the past several months with various members of the review team and have shared with them our concerns regarding overbroad use of the privilege, including our dismay regarding the continued assertion of the privilege in an effort to seek premature dismissal of cases at the initial pleading stages, and the Administration’s continued resistance to independent court review of state secret assertions. Some of those issues still need to be addressed, which highlights the fact that voluntary executive branch reform – while welcome – is not sufficient. 

Of course the policy seems to have caused the Senate, at least, to back off efforts for reform of state secrets. Nadler’s spokesperson reinforced that impression–noting that a number of members of Congress who had been supporting reform now think it is less urgent.

We are continuing to work with colleagues to build support for Congressman Nadler’s bill (H.R. 984). Some Members may now feel that legislative reform is less important because of the Department of Justice’s new policy, and we likely will need to do some work to explain that – even if the voluntary internal policy were perfect – executive branch assertion of the privilege is just one part of the equation. The other part of the equation – how courts handle state secret claims – cannot be addressed any other way except through legislative action. Right now, courts are struggling to apply existing case law and they vary greatly in treatment of privilege claims, with some courts simply deferring to assertions of harm made by agency officials and other courts undertaking a more rigorous review of those claims. Read more →

State Secrets: Holder’s Game

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I’m still working on understanding this, but here’s what I think the Obama Administration was trying to achieve with its "new" policy on state secrets the other day.

As I pointed out last month, the Horn case in DC and the al-Haramain case in San Francisco are moving in remarkably parallel direction towards a CIPA-like process, in which the government can be required to provide substitutions for classified information, thereby allowing a suit to move forward even in the case of highly classified information. In both cases, the judge had advocated such a CIPA-like process. Because the government basically took its toys home and refused to cooperate in both cases, both cases either have (in the case of Horn) or will be (in the case of al-Haramain, regardless of what Judge Walker rules) headed to the Circuit Court in the near future. There are reasons to believe the Circuit would support the CIPA-like process in both cases.

Add in Jeppesen (Binyam Mohamed’s extraordinary rendition suit against a Boeing subsidiary), in which the 9th Circuit has already ruled that state secrets must be tied to evidence and not information, and it appears clear that the Courts might roll back state secrets as currently treated. 

And, at the same time, Jerrold Nadler and Pat Leahy have been negotiating new State Secrets legislation with the Administration. Nadler and Leahy, too, have been advocating a similar kind of CIPA-like process.

What the "new" state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the "new" policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s "new" policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the "new" policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

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“New” State Secrets Policy “Smoke and Mirrors”

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That’s what a spokesperson for the Center for Constitutional Rights had to say about Eric Holder’s new State Secrets policy: that it’s just "smoke and mirrors."

The ACLU is similarly unimpressed. Ben Wizner, of the ACLU’s National Security Project, says,

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security. 

Congressman Nadler welcomes some of the changes but promises to continue pushing a State Secrets bill through Congress.

These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. Read more →

More on Holder’s “New” State Secrets Policy

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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.

Obama’s New State Secrets Policy Is Reaffirmation Of Bush’s Policy

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Back in mid June, testifying before the Senate Judiciary Committee, Attorney General Eric Holder announced that the Obama Administration’s long promised new policy on state secrets use would be revealed "within days".

Over three months later, and on the eve of oral argument in al-Haramain v. Obama, the most dangerous case to the government’s unfettered use of state secrets, the Administration has conveniently leaked word that its long awaited new policy on state secrets will be made public, perhaps as soon as today.

From Charlie Savage at the New York Times:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“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 and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

In a nutshell, the Administration’s new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn’t being done before?

Contrast this effectively meaningless policy from the Administration with that contemplated by Senators Pat Leahy and Russ Feingold in proposed Senate legislation on state secrets policy (Jerrold Nadler has a similar proposal in the House), which would:

Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish Read more →