The Obama administration will "very likely reverse" the government's invocation of the controversial "state secrets privilege" for at least one case held over from the Bush era, Attorney General Eric Holder said yesterday.
In an interview with CBS Evening News's Katie Couric,
Holder said that a team of Justice Department lawyers was close to finishing a review of the 20-plus open assertions of the privilege by the Bush Administration, and that he hoped "to be able to share the results of that report with the American people."
Responding to criticism that Obama's national security lawyers had rubber-stamped the privilege, which gives the executive branch almost unilateral authority to shut down cases where national security might be harmed in the process of evidence discovery, Holder said that he had asked his lawyers to see "if there's a way where we can be more surgical, whether there is a way in which we can share more information."
Holder did not specify which case the administration was on the
verge of withdrawing the privilege, and a senior Justice Department
official declined to elaborate. The full interview airs tonight on the
CBS Evening News. A transcript was provided to the Atlantic by CBS
News and its contents were confirmed by the Justice Department.
told Couric that the privilege is "at certain times" appropriate to be
invoked, "but I want to make that we do so where it's absolutely
necessary. I would only apply the doctrine where - national security
was at stake, where the lives of the American people were at stake," he
Couric asked Holder whether he thought the doctrine was abused by the Bush administration.
I don't know. On the basis of the two, three cases we've had to review
so far, I think that the invocation of the doctrine was correct. We -
reversed - are in the process of looking at one case. But I think we're
very likely to reverse it."
20th, the Justice Department has invoked - or re-invoked - the
privilege at least three times. In the case of an Oregon-based Islamic
charity, the Al-Haramain Foundation, the administration argued that
discovery in the case would necessitate the release of classified
information that would gravely jeopardize national security, even
though some classified documents were accidentally released to defense
In the case of a group of
Guantanamo detainees who filed suit against a flight planning company
involved in their renditions to other countries, the administration
contended that further disclosure about the role that the company
played in the renditions would harm national security.
recently, the administration urged a judge to dismiss a lawsuit brought
by five AT&T customers against the government and former Bush
administration officials because a trial would require a broad
disclosure of the government's current, highly-classified domestic
that the Bush administration, and now the Obama administration, are
wielding the privilege to dismiss entire cases based solely on the
assertion by the executive branch that the information disclosed would
damage national security, thereby turning what had been an evidentiary
privilege into a justiciability privilege.
in the House and Senate would qualify the state secrets privilege,
preventing the government from using it to call for the dismissal of
entire cases and assigning the responsibility for determining the
degree of national security harm to either a panel of specially-cleared
judges or other special masters.
Department spokesman and a White House spokesman said that no position
on the legislation had yet been taken, although Vice President Biden,
in his capacity as a senator, supported the Senate's version.
in the interview, Couric asked Holder whether the Obama administration
would seek to renew several controversial provisions of the PATRIOT
Act, scheduled to sunset by the end of this year.
think we're gonna look and see how those policies have been used,"
Holder said. And then, make a decisions-- based on experience. Talk
to agents, talk to civil liberties advocates. See what the results of
these policies that were contained in-- the patriot act, whether
they've been useful, whether or not they need to be reformed in some
way. And then, make a determination as to whether or not we'll support