Obama To Reverse At Least One "Secret" Privilege Invocation

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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. 

Holder 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 said.  

Couric asked Holder whether he thought the doctrine was abused by the Bush administration.

"Well, 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."

Since January 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 attorneys.

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. 

Most 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 surveillance activities.   

Critics contend 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.

Bills 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.

A Justice 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.

Elsewhere 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.

 "I 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 their-- renewal."
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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