- The Washington Times - Thursday, September 24, 2009

Liberals and conservatives alike harshly criticized a new Obama administration policy designed to make it harder for the government to hamper lawsuits against it by invoking a “state secret” claim, and even the support from privacy-rights groups was tepid and cautious.

From one side, civil-liberties advocate and best-selling author Glenn Greenwald called the new policy merely cosmetic and a continuation of “the very Bush/Cheney policies” that President Obama criticized. From the other, Sept. 11 families activist Debra Burlingame said even those changes would encourage jihadist lawsuits and chill counterterrorism operations.

Such privacy-advocacy groups as the American Civil Liberties Union, Amnesty International and the Electronic Privacy Information Center said the new rules looked good, but said the Obama administration still needed to deliver concrete results - by dropping its support for several Bush-era invocations of the privilege in court and by pushing through Congress a permanent law on the matter.

On Wednesday, the Obama administration appeared to vindicate such longstanding liberal criticisms by invoking the state-secret privilege to urge U.S. District Court Judge Vaughn Walker to toss a 2004 warrantless-wiretapping lawsuit filed by the Ashland, Ore., branch of the Al-Haramain Islamic Foundation.

Justice Department lawyer Anthony Coppolino made the same arguments at Wednesday’s hearing in San Francisco that Bush administration lawyers had: “Foreign intelligence surveillance is so vital to national security that it is important for the government to maintain secrecy,” he argued.

The new policy, announced Wednesday, gives the attorney general the sole authority to invoke a “state secret” claim, which allows the government to exclude evidence it says will compromise national security. The new rules, which take effect Oct. 1, also set a higher standard to make that claim, saying that revealing the information would need to pose “the risk of significant harm to national security”; the previous standard, set by the Supreme Court, allowed a claim when there was a risk of “reasonable possibility of harm” to national security.

“This policy is an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security,” Attorney General Eric H. Holder Jr. said. “It sets out clear procedures that will provide greater accountability and ensure the state-secret privilege is invoked only when necessary and in the narrowest way possible.”

The ACLU acknowledged that “on paper, this is a step forward,” but referred to the new policies as “voluntary guidelines” and called on Congress to pass legislation that will limit state-secret claims. Rep. Jerrold Nadler, New York Democrat, has proposed such a bill.

“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,” said Ben Wizner, an ACLU attorney.

Tom Parker, counterterrorism and human rights policy director for Amnesty International USA, agreed, saying that “while this new policy sounds like an improvement in principle, it is patently at odds with the way the Justice Department has fought tooth and nail against litigation requests over the past eight months.”

Marc Rotenberg, the executive director of the Electronic Privacy Information Center, said, “the critical question is, is this as good as the legislation now pending in Congress … I would prefer to see the changes provided by statute.”

Mr. Greenwald was much sharper in his criticism, calling the new policy “a purely cosmetic change designed to placate the administration’s supporters who are angry over how many commitments they’ve betrayed, and to forestall congressional legislation to limit the privilege.”

“By vesting the authority in the attorney general, it continues to allow the executive branch unfettered latitude to determine when lawsuits should be dismissed: exactly what Obama claimed to find so objectionable … this is yet another instance of the Obama DOJ replicating the very Bush/Cheney policies which Democrats claimed for so long to find offensive,” Mr. Greenwald said.

Meanwhile, conservatives criticized both the possibility of legislation on the matter and the potential that scaling back the state-secret privilege would help America’s enemies obtain sensitive information.

Ms. Burlingame, a World Trade Center Memorial Foundation board member whose brother, Charles Burlingame III, was the pilot of the hijacked plane that crashed into the Pentagon, said she worries that scaling back state-secret claims will let U.S. enemies “engage in ‘lawfare,’ which is using our courts as a weapon against us.”

“It also has a chilling effect on our counterterrorism foreign partners,” she said. “They don’t want to do business with us when their efforts are going to be released in a lawsuit and end up on the front page of the New York Times.”

Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican and member of its terrorism subcommittee, called the policy “a promising development,” but because it keeps authority in the executive branch and makes legislation limiting state-secret privilege unneeded.

“The privilege has been asserted judiciously and in a manner appropriately designed to protect our nation and its most vital classified information and programs. Simply put, legislation designed to curtail the use of this important privilege is unnecessary.”

• Ben Conery can be reached at bconery@washingtontimes.com.

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