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The Bush administration, and now the Obama administration, have both been criticized for the way they've invoked the state secrets privilege. It allows the government to tell a judge to throw out a case because a trial would expose information that compromises national security.
As NPR's Ari Shapiro reports, today the Justice Department unveiled a new set of rules about when government lawyers can claim that privilege.
ARI SHAPIRO: In the last eight years, government lawyers have asked judges to throw out cases where people said they were tortured or illegally spied upon. Critics protested that the Justice Department was abusing the state secrets privilege. Now, the Obama administration has a new policy. Among other things, the rules say in order for lawyers to make a state secrets claim, a government agency has to persuade the attorney general and other top justice officials that releasing information would cause significant harm to national defense or foreign relations.
In a statement, Attorney General Eric Holder said this will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible. ACLU Attorney Ben Wizner has argued cases against government lawyers who claimed state secrets. He says the new rules make him hopeful.
Mr. BEN WIZNER (Attorney, ACLU): But I do want to point out that even as they are rolling out this new policy, they are simultaneously demanding that federal courts throw out lawsuits brought by torture victims, including my clients, and victims of illegal surveillance, citing the state secrets privilege.
SHAPIRO: The new policies take effect October 1st, and it's not clear whether they'll change the administration's position in Wizner's case or others already filed. It's also not clear what impact this will have on pending legislation that would restrict state secrets claims. Democratic Senator Patrick Leahy of Vermont is one of the bill's sponsors. At a hearing this morning, he said the attorney general is moving in the right direction.
Senator PATRICK LEAHY (Democrat, Vermont): We want the privilege, but we don't want it misused. We have to have mechanisms to guide its application. And today's announcement marks progress.
SHAPIRO: Leahy said he would still like to see more involvement from a judge to make sure the privilege is invoked in a responsible way. Wizner of the ACLU says even if these new policies are perfect as written, there's still a major shortcoming.
Mr. WIZNER: These reforms, even if they're meaningful, will last no longer than the Obama administration.
SHAPIRO: Even as the Obama administration trumpeted a break with the Bush administration on state secrets, officials pushed to continue Bush-era policies in a different area. Three parts of the USA Patriot Act expire at the end of the year. The Obama administration wants to extend them. At this morning's Senate Judiciary Committee hearing, Senator Leahy and other Democrats said they think the law needs more protections for civil liberties. For example, Leahy pointed to one expiring provision that lets investigators secretly take business records, broadly defined.
Sen. LEAHY: Any tangible thing at all, even if it meant it closed down your small business - and the government is almost always guaranteed success.
SHAPIRO: Because the law, as written, presumes the government is correct when it claims business records are relevant to an investigation. Some Democrats have introduced legislation that would scale back these parts of the law. David Kris, of the Justice Department, told senators the administration wants to work with the committee, quote, to try to see if these tools can be sharpened.
Ari Shapiro, NPR News, Washington.
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