“Good Government” Groups Praise Obama’s Higher Threshold for State Secrets Rule; ACLU, Feingold – Not So Much

By Britt

Sep 23, 2009 1:06pm

Two groups that spend a lot of time and effort holding the U.S. government accountable, the Project On Government Oversight and OMB Watch, today praised the new Justice Department rules on State Secrets.

“The Administration’s new policy to ensure the appropriate use of the State Secrets privilege finally provides checks and balances to a tool that has too often been used to suppress claims against the government," said Danielle Brian, executive director of the Project On Government Oversight. "Requiring a review committee, Attorney General approval, Congressional oversight and Inspector General review allows for a reasonable balance between preserving legitimate secrets and protecting the public interest. This is a very important policy and the administration should be highly commended. POGO applauds this open government breakthrough.”

The new rules were announced today and can be read HERE. The Justice Department press release is HERE.

Gary D. Bass, executive director of OMB Watch, said that, "Unlike past administrations, where the state secrets privilege seemed to be invoked on an almost ad hoc basis, the Obama administration is signaling that it will only exercise the privilege in situations where significant harm to national security is likely and will be guided by a specific, step-by-step process to ensure there is not abuse of the privilege."

On the other hand, Ben Wizner, staff attorney with the ACLU National Security Project, was less favorable.

"On paper, this is a step forward," Wizner said. "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.'"
Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, added that "Legislative action is crucial to make certain that not only this administration, but future administrations, are bound by the rule of law when invoking state secrets. Bills currently pending in both the House and Senate would mandate court review of state secrets claims, adding a necessary check on executive claims of national security. …Congress must play a role in this reform to ensure an outside check on this broad executive power."

And Sen. Russ Feingold, D-Wisc., said in a statement that the new Obama policy "is disappointing because it still amounts to an approach of ‘just trust us.’"

Feingold said that "Independent court review of the government's use of the state secrets privilege is essential.  I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

*This post has been updated with the ACLU and Feingold comments.

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