DOJ Official: Many Factors To Weigh In State Secrets Policy
By Ryan J. Reilly | November 18, 2009 11:27 pm
Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly).

Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly / Main Justice).

The Obama administration inherited approximately 20 state secrets cases from the Bush administration and is working to develop a stricter definition of the controversial legal privilege, Associate Deputy Attorney General Donald Verrilli said Wednesday.

The administration wants to ensure the privilege is only invoked when there are legitimate national security concerns, Verrilli said at a forum Wednesday.

Still, he acknowledged there has not been a bottom-line change from the Bush administration on the privilege, which the government can invoke to keep information out of public court records if it is deemed to be harmful to national security.

Speaking as part of a panel at American University’s Washington College of Law, Verrilli said the administration was working towards a “narrow tailoring” of the state secrets privilege. The goal is to assert it “to the minimal extent necessary,” he said, adding that as a matter of policy, the administration would not assert the privilege to cover up government wrongdoing.

But critics say they expected more from President Barack Obama, who campaigned against perceived Bush-era civil liberties abuses. They also worry that the internal executive policy of justifying the use of the states secrets privilege on a number of levels wouldn’t be binding on future administrations. The critics want Congress to act.

SharonBradfordFranklin

Sharon Bradford Franklin of the Constitution Project (Photo by Ryan J. Reilly / Main Justice)

“We’ve pulled back from the brink, but there’s still a long way to go,” said Sharon Bradford Franklin, senior counsel to the Constitution Project. “It’s a welcome development, but really is the first small step.”

Bradford said there is a need to reassert the role of the courts to provide a check on the executive branch when it comes to the state secrets privilege.

She also said it was important to make sure the executive branch is not policing itself. Secrecy and over-classification has been an issue in the government for years, said Bradford.

Verrilli sits on a task force of senior Department of Justice officials that was asked by Attorney General Eric Holder earlier this year to review every pending case in which the states secrets had been invoked. The panel has spent a large amount of time on the issue, said Verrilli, who noted that he went into it with an “extremely skeptical point of view.”

Verrilli said the problems with invoking the state secrets privilege are a potential lack of public confidence in a court’s result when information is withheld. He also said there is a potential erosion of the value of the court system if a case cannot proceed because the government invokes the privilege, said Verrilli.

“Those costs are real and they’re serious and we acknowledge that they exist here, and the question for us is what can we do to address that set of problems that exist here,” said Verrilli.

Verrilli said the DOJ task force has tried to set up a system of accountability. Credible allegations of wrongdoing by government officials require referrals of the allegations to the Inspector General office of the agency whose conduct is at issue. The administration is also committed to robust congressional oversight, said Verrilli.

“While it’s not a perfect substitute, it’s our hope it will be an important mechanism,” said Verrilli.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union, noted the panel’s topic was the Obama administration’s emerging position on the state secret privilege and how it differs from the Bush administration.

“We can address that pretty quickly, it hasn’t” changed, said Wizner. “It’s been pretty much the same.”

Wizner said overly broad secrecy claims amount to immunity for the government. He said that immunity was not simply the effect of, but rather the intent of, the government in many cases in which it invoked the state secrets privilege.

“We do not have a single judicial opinion that rules on whether the Bush administration’s torture program was legal,” Wizner said.

Verrelli also said that the Obama administration doesn’t have a position on reform legislation from Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee’s Constitution subcommittee. Nadler gave the keynote speech at the forum Wednesday morning.

“We’re engaged in a dialogue, it’s ongoing and it will continue,” said Verrelli.

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