You can read the full ruling here.

The ACLU filed suit against various provisions of the 2008 FISA Amendments Act, which amended the Foreign Intelligence Surveillance Act and legalized many of the surveillance actions President Bush had already undertaken in violation of the original law, on behalf of groups like Amnesty International and Human Rights Watch.

Specifically, the bill allows the National Security Agency to engage in wholesale data mining of electronic messages both within the United States and between the U.S. and other countries without a warrant and with very little judicial oversight. The plaintiffs argue that this unconstitutionally interferes with their need to communicate confidentially with individuals overseas.

The problem in such cases has always been establishing standing to sue because the courts have generally required that the plaintiffs show that their communications have actually been intercepted. But since the entire program is classified, it’s impossible to prove such a thing. And in this case, the district court dismissed the case on the grounds that the plaintiffs could not prove standing.

But the appeals court rejected that position and granted the plaintiffs sanding to sue, saying:

On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.

The ACLU called this ruling “a huge victory for privacy and the rule of law.” And if upheld, it could prove to be a real turning point in the legal battle over the limits of the 4th amendment. For only the second time in the dozens of court cases that have been filed in federal court challenging the NSA’s post-9/11 wiretapping program, the plaintiffs have been granted standing to sue (the other is the Al-Haramain case in California, where the government accidentally turned over a document showing that the plaintiffs had been wiretapped; that case is still working its way through the 9th Circuit courts).

The government is sure to appeal this ruling. In a previous case filed in the U.S. Circuit Court for the Eastern District of Michigan, ACLU v NSA, the district judge granted standing to a similar group of plaintiffs but the 6th Circuit Court of Appeals overturned that ruling and the Supreme Court denied cert in an appeal. The conflict between the two circuits may force the Supreme Court to hear the appeal of this case and make a final determination on the standing question.

If this ruling remains in force, it means the plaintiffs get to go back to the district court for a full trial on the central question of whether the NSA’s data mining program is constitutional. The government would almost certainly then ask for a dismissal again on the grounds of the State Secrets Privilege and that likely restarts the entire appeals process again before the case can ever be judged on its merits.

But for now, ACLU Deputy Legal Director Jameel Jaffer is optimistic.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said in a press release. “The law we’ve challenged permits the government to conduct dragnet surveillance of Americans’ international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

In January 2010, McClatchy Newspapers petitioned the Department of Justice’s Office of Legal Counsel (OLC) for a copy of an internal memo that evidently detailed the DOJ’s legal defense for obtaining the telephone records of American citizens and residents. McClatchy learned of the memo from a heavily redacted inspector general report on abuses of power that the FBI committed while seeking telephone records.

Now, a year on, the FBI and DOJ have declined to release the memo, even though it is a document that should be available to the public under the Freedom of Information Act. However, McClatchy reports the OLC’s cover letter to McClatchy newspapers does cite a section in a 1978 wiretapping law that the office contends gives the government legal authority to collect telephone records from telecommunications firms.

While McClatchy does not get more specific, that can only be the Foreign Intelligence Surveillance Act of 1978, which outlines procedures for gathering intelligence on communications between foreign governments and their contacts within the U.S. In 2001, the PATRIOT Act expanded the law to apply to those with connections not just to other governments, but to any foreign group seen as hostile toward the U.S., and a further revision to the law in 2008 (PDF) expanded the government’s legal authority to performance surveillance without a warrant. Although the original law actually prohibits telecom companies from handing over phone records, the 2008 revisions also give those very companies immunity from lawsuits should they do so — meaning that if the FBI leans on, say, AT&T to disclose customer records, there is no incentive for it not to do so.

Kevin Bankston, a staff attorney and expert on electronic surveillance and national security laws for the Electronic Frontier Foundation, tells McClatchy the OLC’s defense could easily be expanded to include emails as well, as long as they are sent to international addresses. Meanwhile, the Department of Justice still refuses to release the original memo that McClatchy requested over a year ago.

Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

[Law1]Those concerns led Holder in September to announce a new policy that he said would limit the Justice Department’s reliance on the state secrets privilege. When he asked the federal court in San Francisco to dismiss the Shubert case in October, Holder said he was asserting the privilege in accordance with that new policy, after “following a careful and thorough review process” and “only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.

And she’s right. As I reported last week, the Senate Judiciary Committee ended up adopting almost all the Republican changes to the bill that removed or watered down civil liberties protections, while voting against most of the reforms proposed by Sens. Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and Arlen Specter (D-Pa.), which would have limited the FBI’s powers under the Patriot Act to going after what the law was designed to attack: international terrorism.

The result, as Feingold put it, was that the Senate Judiciary Committee had become the “prosecutor’s committee” — accepting virtually every recommendation from the FBI and Justice Department prosecutors to expand their powers.

Lots of Democrats now concede that Congress overreacted a bit after the 9/11 terrorist attacks to give sweeping authority to the FBI to conduct various kinds of sneaky searching and snooping without the usual kinds of reasonable suspicion of criminal wrongdoing normally required. But Democratic lawmakers can’t seem to agree whether the terrorists ever really act alone.

The whole idea of lone wolves prowling the forest seeking to attack innocent Americans apparently sprang up after some Republicans claimed that the FBI hadn’t been able to access the computer of Zacharias Moussaoui, the alleged 20^th hijacker, because it couldn’t connect him to a known terrorist group. The Foreign Intelligence Surveillance Act, or FISA, requires the government to show that the target of surveillance has some connection to a foreign terrorist group in order to obtain a warrant. In response, the “lone wolf” theory — together with section 6001(b) of the Patriot Act — was born.

But in 2003, as Julian Sanchez writes in Reason magazine, the Senate Judiciary Committee revealed that in fact, the FBI’s failure to get a warrant wasn’t because Congress hadn’t believed in and adequately prepared for lone wolves, but because the FBI had failed to connect the dots: related reports from different FBI field offices that should have alerted any reasonably informed FBI agent that Moussaoui was linked to terrorism were ignored, and the FBI failed to use the powers it had. Still, Congress went ahead and granted it more.

Now, under its “lone wolf” provision, the Patriot Act “appears to permit ‘lone wolves’ to be targeted merely on the basis of advocacy,” writes Sanchez. “Finally, while the criminal law requires ‘preparation’ for terrorism to include a ‘substantial step’ in the direction of carrying out an attack, the Justice Department has suggested that FISA’s definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.”

At a recent Senate Judiciary Committee hearing, Justice Department official David Kris acknowledged that the FBI has never actually used the “lone wolf” provision, but insisted that it’s necessary in case it decides it needs it in the future.

The purpose of FISA, of course, is to expand law enforcement’s surveillance powers beyond what they can usually use to monitor ordinary criminal suspects. But Sanchez argues that the “lone wolf” provision seems to blur that distinction: “The lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects-and in the process, against any Americans who happen to have interactions with them.”

Passing both the FISA Amendments Act last year and the telecom immunity provision within it was a huge blow to Americans’ privacy. The grant of immunity to giant telecommunications companies was a grievous insult to the concept of privacy in America and we welcome the effort to reinstate Americans’ ability to challenge government spying and malfeasance. We urge Congress to repeal the immunity provision of the FISA Amendments Act quickly. Otherwise, Americans may never learn the truth about what the companies and the government did with our private communications.

On Friday, I heard from Jonathan Freiman, a constitutional lawyer who represents Jose Padilla in a lawsuit against the government.

By promising to improve its policy for invoking the state secrets privilege, the Obama Justice Department last week announced, with much fanfare, that it will require the attorney general to sign off every time the Justice Department claims “state secrets” trump a victim’s charges. Well, as Freiman points out, that’s what the law has always required, at least in theory. And that hasn’t stopped the government from using the state secrets privilege in the past simply to cover up government wrongdoing.

“Ever since the Supreme Court first recognized it in U.S. v. Reynolds, the doctrine has required that any invocation of the privilege be supported with an affidavit from the head of the relevant government department,” wrote Freiman in an email. “If we expect the A.G. to be more likely than other high government officials to respect law – and less likely to invoke the state secrets privilege just to cover up government wrongdoing – then the new policy is a good thing.”

“But for most of the last decade there wasn’t much reason to put the A.G. on a pedestal above his cabinet peers,” Freiman wrote. Maybe things will change, he said, but “with the administration’s continuing opposition to real checks and balances, it’s possible that we’ll never really know whether they’ve changed.”

That is, of course, the problem with allowing the government to claim “state secrets” to dismiss a case without even letting the judge review the evidence to decide if it’s really a national security concern or not. After all, in the Reynolds case, when the government first claimed the privilege, insisting that release of information about a military plane crash would endanger national security, it turned out the Justice Department was just hiding the military’s own negligence — and denying the widows of the plane crash victims not only compensation, but any opportunity to find out what really happened.

Correction: I mistakenly identified Jonathan Freiman as representing Al Haramain Islamic Foundation in a previous version of this post. He represents Jose Padilla. Jonathan Eisenberg represents Al Haramain. This post has been updated to reflect the correction.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

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