Whatever Happened to That New Justice Department Policy on ‘State Secrets’?
After my post yesterday updating the status of the Obama administration’s ongoing efforts to conceal evidence that British resident and former Guantanamo Bay prisoner Binyam Mohamed was tortured, Ed Brayton, a fellow with the Center for Independent Media and author of the blog Dispatches from the Culture Wars, asked me whatever happened to that promise from Attorney General Eric Holder to issue a new government policy on the use of the “state secrets” privilege?
The state secrets privilege, of course, is what the government invokes when it wants a judge to dismiss a lawsuit that it claims will reveal “state secrets” just by going forward, even if the judge is the only person who gets to see the sensitive secret evidence. The government invoked “state secrets” in the case of Mohamed v. Jeppesen Dataplan, and several other cases involving torture and warrantless wiretapping that the Justice Department wants dismissed. Pending legislation would limit the executive’s ability to use this confidential evidentiary privilege to dismiss outright legal challenges to government conduct. The administration so far has avoided taking a position on the legislation.
As I reported almost two months ago, Holder told the Senate Judiciary Committee on June 17 that he would issue a new policy on when the government will invoke the state secrets privilege to conceal evidence from the public — and even from federal court judges — “in a matter of days.”
Well, it’s August, and still nothing. After Ed asked me the question, I followed up with Dean Boyd, spokesman for the Justice Department’s national security division, asking him if that policy had ever been issued. After all, maybe we’d just missed it.
Boyd’s response: “Not yet; still in the works.”