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Obama Administration Revises State Secrets Policy

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Obama Administration Revises State Secrets Policy

Obama Administration Revises State Secrets Policy

Obama Administration Revises State Secrets Policy

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Guest:

Charlie Savage, Washington correspondent for The New York Times

The Obama administration's new policy could have an effect on warrantless eavesdropping, rendition and lawsuits over torture. Attorney General Eric Holder announced Wednesday that the new plan makes it more difficult for the government to cite national security as the reason to withhold evidence in court.

NEAL CONAN, host:

Today, Attorney General Eric Holder announced the Obama administration's new policy regarding when and under what conditions the government can invoke the state secret privilege.

The new plan makes it more difficult for the government to cite national security as the reason to withhold evidence in court. The Bush administration was often criticized for blocking lawsuits by refusing to disclose classified information. Depending on your point of view, the new plan is a step toward a more transparent and accountable government, or it risks exposure of tools vital to fight terrorists.

If you have questions about what's in this new policy and what it means, give us a call: 800-989-8255. Email: talk@npr.org. You can also join the conversation on our Web site. That's at npr.org. Click on TALK OF THE NATION.

Charlie Savage is covering this story for the New York Times, and he joins us from a studio here in Washington.

Nice to have you with us today.

Mr. CHARLIE SAVAGE (Reporter, New York Times): Well, thanks for having me on.

CONAN: And how is this policy different?

Mr. SAVAGE: Well, under the old policy, which the Bush administration used after 9/11 but other administrations before that also used before state secrets became as controversial as it has become in recent years, things were much more ad hoc. You would always have the head of whatever agency who controlled the information involved in the decision. So that could be the CIA or it could be the NSA in more recent times. But the attorney general would only really get involved if it was the Justice Department - if it was, say, the FBI's information that they wanted to keep secret - or if it was a very high profile issue.

And so, one way in which this is different is it says that high level Justice Department officials will review every assertion that someone in the government wants to make independently to make sure that they think this information is - should properly be withheld and that there's no way to do it in a way that's less sweeping, such as by allowing the lawsuit to go forward, but just without this particular document. Because one of the ways that this has become controversial in recent years is that more and more, the government is using it to shut down lawsuits entirely at their onset without any day in court for whoever's filed it.

CONAN: And as you mentioned, there was considerable criticism of the Bush administration for invoking it repeatedly, and there were any number of lawsuits about the use of telephone companies to provide links to allow the government to tap phone calls from overseas to the United States. And the government frequently invoked this, well, this is national security. This is a state secret. We can't disclose this information in court.

Mr. SAVAGE: That's right. The program of surveillance without warrants is one of the broad categories that there are a lot of lawsuits over, and that this privilege was invoked repeatedly to block, another being torture and extraordinary rendition, the CIA's programs for transferring and interrogating detainees. Although the Bush administration, though, you know, owns the beginning of that story, it should be noted that in the early months of the Obama administration, it also continued to assert the state secrets privilege in the same way, in those same cases, just (unintelligible) on appeals and so forth.

And so, that alarmed a lot of civil liberties groups and some Democratic lawmakers, which led to the introduction of legislation in both the House and the Senate that would roll back and restrict how the privilege can be used and require judges to do - take a much more searching inquiry into what exactly is this evidence the executive branch says can't be introduced in court, and do they agree that it should - this should not go forward.

CONAN: And is this just court cases, or would it also apply to Freedom of Information Act requests?

Mr. SAVAGE: Well, this is - it applies to any civil lawsuit in which the government is trying to withhold information. I think that - a Freedom of Information request for a classified information that we would not need a State Secrets Privilege to…

CONAN: To block.

Mr. SAVAGE: …to block because the Freedom of Information Act doesn't apply to things like that on its face.

CONAN: Mm-hmm.

Mr. SAVAGE: So what's interesting about this policy is it basically takes much of the reforms that that legislation would achieve and it echoes them - insofar as much more search and review, try to find a way to let the lawsuit go forward, have a higher standard for what's going to trigger this - but it puts them, instead of in the courtroom, in the upper levels of the Justice Department.

And so you still have, at the end of the day, the critics would contend, you know, executive branch officials deciding whether the executive branch officials should be allowed to shut down a lawsuit. It's probably, for bureaucratic reasons, definitely going to result in fewer assertions of the privilege because the incentives now are, if you're a trial attorney, or - you really don't want these heavy hitters looking over your shoulder. But on the high level cases, the warrantless surveillance program, rendition, those things probably would have already had the attorney general looking at them. And it's unclear that this would make a difference on something of that level of controversy.

CONAN: And how do - how are various intelligence agencies responding to this? Do they fear that their sources and methods, as they would put it, might be exposed?

Mr. SAVAGE: Well, that construct of is-this-great-from-a-civil-liberties perspective or terrible-from-a-national-security-hardliner perspective isn't really the storyline that I'm seeing today. I'm not seeing much at all from, you know, alarmed intelligence agencies or national security hardliners. And what I'm seeing is civil liberties groups who think - or bloggers and so forth who think maybe this doesn't go far enough to the extent that this is something that could blunt momentum for Congress passing legislation to codify the changes in statutes. It's a bad thing or it's a really good first step, but it's not sufficient to take care of the problems which have emerged as this - the use of this privilege, this executive power has escalated in recent years.

CONAN: We're talking with Charlie Savage of the New York Times, their Washington correspondent. He's at a studio here in Washington, D.C., talking about the announcement by the Attorney General Eric Holder today that the standards for declaring something - a state secret therefore not admissible in court will be raised as of October 1st.

If you'd like to join the conversation, give us a call: 800-989-8255. Email us: talk@npr.org.

And let's see if we can go to Jerry, and Jerry's with us from O'Fallon in Missouri.

JERRY (Caller): Good afternoon. A very good topic. I don't know if this pertains directly, but, in fact, I just read this afternoon that of the - only three of 763, quote, "sneak and peek requests" - that was for authority to search people's homes without their permission or knowledge - applied to - these were in 2008 - were - involved terrorism cases. Almost the rest, exclusively, were drug cases. And it's just another example, I guess, of, you know, given an inch, everyone seems to want to take a mile. I mean, it seems like the national security has become the last refuge of scoundrels, so to speak, to abuse that quote.

CONAN: Well, I'm not sure that that applies directly to the change in policy we're talking about, Charlie Savage.

JERRY: No, not - no. Exactly. But I think the same thing applies that it's - the, you know, national security excuse seems to be just overused, has been in the past.

Mr. SAVAGE: I can comment briefly on that. I mean, the caller is right that this falls under this broad umbrella of the escalation of government power after 9/11 in terms of both secrecy and in surveillance-type activities, counterterrorism activities and the sort of ongoing controversies over that. I think that what he's referring to was something that came up today at a Senate Judiciary Committee hearing on whether to reauthorize certain sections of the Patriot Act. And Senator Russ Feingold, who's been a critic of sort of the curtailing of individual rights in the wake of 9/11, was questioning a Justice Department official, David Kris, about the fact that the Patriot Act had expanded the government's power to search homes without letting the person know that they had come in there and - to see certain items, the so-called sneak-and-peak warrant.

And yet it was used almost exclusively, as they caller notes, not for terrorism investigations but for ordinary criminal matters, like drug investigations. And the response from the Justice Department official was, well, that's true, but there are separate things we'd use FISA orders for, national security issues, and so it's not that surprising that the majority of this stuff is not related to terrorism. Feingold says, yeah, but it was sold as a terrorism tool. It was part of the Patriot Act. So…

JERRY: What I find curious…

Mr. SAVAGE: …that's the debate that the caller is referencing.

CONAN: Jerry?

JERRY: What I find curious is that most of the people who have a tendency to support the Patriot Act, etcetera, are self-labeled conservatives who are, seemingly, at the same time outraged to bigger government. And yet what I think a lot of these law seemed to do is allow the government to go - get even larger or, at any rate, at least unchecked.

CONAN: All right, Jerry. Thanks very much for the call.

JERRY: Thank you.

CONAN: Appreciate it. And is this - as we look at this change in policy, as you say, some critics would say this is to defuse legislation that may be coming up in the House and the Senate. But nevertheless, government secrecy was one of the things that then-candidate Obama mentioned a great deal, the expansion of federal power is very broadly, and government secrets in particular. Is this something that is in response to that legislation, at least according to the people you talked to? Or is this something that has been working its way through and they're just getting around to it?

Mr. SAVAGE: Well, the Obama administration has not taken an official position on those bills, the Nadler bill in the House and the Leahy bill in the Senate. And so, they would say, no, this is not in response to that. This is a separate thing that we are doing internally and, you know, Congress can take a look at it and make their own mind up about what else they might want to do.

Nevertheless, I think for the people who sort of pay close attention to these issues throughout the government, including on the Hill, it's not - you don't have to scratch very hard to see or to believe that - and typically, when the government - it has a certain power that is they're accused of using too promiscuously, it is a very common tactic to try to make some internal reforms, have a higher level of review and so forth to head off legislative changes that can permanently take away that authority or restrict it or place more oversight on it in a different body - in this case, the judiciary - then something that would be controlled internally.

CONAN: Well, as you suggest, it's also unusual for even a campaign that railed against the expansion of federal powers to actually reduce those federal powers once in office.

Mr. SAVAGE: Well, I think it's human nature that when you yourself want to achieve the things you've set out to achieve, you trust yourself, and you - you know, human beings like power. I would not, you know - but that's - it's a particularly cynical thing. Do we - you know, I mean, in this case, I mean, they are voluntarily adopting a higher standard and -of when - what will trigger what counts as something that should be kept as a state secret. And so that could be very significant.

One of the things that's left unanswered by this policy change is whether they will also tell courts that the court should use the new higher standard that they're going to be using internally, or should courts still use the lower standard that has been in (unintelligible) up to now, even if the executive branch is going to hold itself to this higher standard.

CONAN: Charlie Savage from the New York Times. We're talking about a change in policy by the Obama administration on state secrets. You're listening to TALK OF THE NATION from NPR News.

And one question: would this affect the lawsuits that are already underway?

Mr. SAVAGE: No. This policy change only affects new assertions of the privilege going forward, starting October 1st. So the very high profile lawsuits involving the CIA's rendition program and the program of surveillance without warrants that garnered a great deal of tension -attention earlier this year when the Obama administration continued to press forward with the Bush administration's state secrets claims will continue, I think, undisturbed by this policy change.

CONAN: Let's get Brian on the line, Brian with us from Raleigh, North Carolina.

BRIAN (Caller): Yeah, hi there. I'm one of those really conservative people who only support Obama at about - I mean, a handful of things, but I am not a big fan of state secrets or, you know, the government looking over our shoulder. So I wish he would - I was hoping he would actually change the policy on this. And lo and behold, I'm disappointed again.

CONAN: You thought he should have gone further.

BRIAN: Yeah. I mean, I wanted to see him overturn some of the secrecy that's - that the Bush administration implemented, even though I support them on many things.

CONAN: Well, as we're reading this, he is overturning some of the secrecy. He's making it harder to make something a state secret.

BRIAN: Good. Yeah. I want to see him go even farther that that and, you know, not - just open the doors to what the government's doing.

CONAN: All right. Brian, thanks very much for the call.

Mr. SAVAGE: I can react to that briefly, if you'd like.

CONAN: Sure.

Mr. SAVAGE: You know, one of the great things that's really interesting about the debates over the escalation of executive power and secrecy over the last few years is that when this was happening after 9/11, and primarily under the Bush administration, the debate often got bogged down into sort of the typical partisan conflict. If you were a Republican, you thought that any attacks on this stuff was just, you know, Democrats trying to go after your guy. And if you were a Democrat, you thought, well, this is just, you know, the evil Bush administration doing something I don't like.

And it was very hard for people who thought about it differently to make the argument at the time or to find a receptive audience that, in fact, executive power is not a partisan issue because it's sort of abstract. It's different from ordinary political debates. And when we'll have a different party and party changing hands in the White House from time to time and, suddenly, you know, things that could be used for conservative ends now could be used for liberal ends, and back and forth again.

Now that the Obama administration has taken over from the Bush administration, I think it's easier for people to see that these sort of structural constitutional issues about how much power should be concentrated, how much balance in checks and balances there should be as far as judicial oversight, and Congress setting rules that the executive branch has to obey whether or not it likes to - wants to, these issues have become more crystallized and easier to see, I think, for both factions as something that exists above the ordinary, you know, tug of war we have in the American politics.

CONAN: We may have time for one more caller. This is Patrick, calling from Arkansas.

PATRICK (Caller): Well, hello. How are you doing? Thanks for taking my call.

CONAN: Sure. Go ahead.

PATRICK: My question is, with all the agencies collecting so much information, how was it that we know what's being collected is even really valuable and, again, the information that we would even want? How do we know it's even credible? Does that make any sense?

CONAN: I think you're talking about overload. And really, as we looked at the information coming into the government before 9/11, yes, there were some things that might have tipped them off. And a lot of people said they should have set off alarm bells, but they were buried in a mountain of other information. So, Charlie Savage…

PATRICK: Exactly right.

CONAN: …does this do anything to winnow that pile down to make it more manageable?

Mr. SAVAGE: Well, I think that's sort of a separate issue. What the caller is talking about is the vast amounts of surveillance, primarily electronic surveillance, that's sort of coming in and to what extent can it be analyzed and be turned into something useful, or is it the sort of sucking up communications and so forth to no useful end.

This is something different. The state secrets privilege is able shutting down lawsuits. It's about a guy saying, you wiretap me illegally or you tortured me illegally, and instead of that person having their day in court, the executive branch being able to say, you may be suing us, but we're not going to allow you to sue us because we're going to withhold the evidence from the courtroom that would be necessary for that litigation to go forward.

And so it's a very powerful tool of the executive branch and there - and one that has been used a great deal in recent years, and therefore has attracted a great deal of attention because it creates, of course, quite intense tensions along the lines of accountability in the rule of law and the ability of people to have their day in court on the one hand and the necessary, at times, need for the government to protect national security secrets on the other.

CONAN: Patrick, thanks very much for the call. And, Charlie Savage, thanks for your time today.

Mr. SAVAGE: Thank you very much for having me on.

CONAN: Charlie Savage is the Washington correspondent for the New York Times, and he spoke with us from a studio here in Washington, D.C.

Tomorrow on the program, Craig Ferguson, the host of "The Late Late Show," will join us to talk about standup, alcoholism, late night and his version of the American dream. Join us then, if you will.

This is TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

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