New Attorney General Addresses "Secret Law" & "State Secrecy"

The new Attorney General, confirmed just the other day, Eric Holder, gave some written answers to Senator Russ Feingold concerning the latter's questions regarding review of Bush administration policies concerning promulgation of "secret laws" and claims of "state privilege" in legal cases. I'm reproducing the exchange by Holder and Feingold, as it bears upon significant pending issues, not least the Jeppesen and al-Haramain cases.

Secret Law

2. I held a hearing last year on what I have been calling the problem of "secret law." Our legal system is based on the premise that the public has a right to know what the law is. But we now know that for the past seven years, bodies of executive and judicial law were kept secret from the public, and too often from Congress as well. The prime examples of this were binding opinions of the Office of Legal Counsel, and decisions of the Foreign Intelligence Surveillance Court interpreting the Foreign Intelligence Surveillance Act. Certainly there are times when these opinions and decisions may discuss sensitive operational information, and this type of properly classified information should not be made public. But that shouldn’t extend to an explanation of what the law is. Do you agree that, as a general matter, the Justice Department should be committed to more public access to OLC opinions and to FISA Court decisions? And will you work with me on legislation such as the OLC Reporting Act (S. 3501 in the 110th Congress) and Executive Order Integrity Act (S. 3405), to create some statutory protections against this problem?

I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law. Public scrutiny also provides an important check against unpersuasive legal reasoning – reasoning that is biased toward a particular conclusion. Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns.

In that regard, I support the principles behind the proposed OLC Reporting Act. I believe that the Department should notify Congress when it concludes that a provision of a statute is unconstitutional or when it interprets a statute in a manner that is manifestly at odds with its intent. As your question indicates, such notice is subject to the legitimate privilege and other secrecy concerns of the executive branch. I will commit to work with Congress to satisfy Congress's legitimate interest in notice and the executive branch's legitimate interests in efficiency and confidentiality.

State Secrets

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

[...]

Here's a link to the full exchange, posted by the Senate Judiciary Committee.

It seems we'll have to await Holder's review of the state secrets privilege claims to really understand how Obama's Justice Department will operate in this area. As ACLU noted the other day, the first real test of Holder's intentions will come February 9th, when oral arguments are scheduled at the Ninth Circuit in Mohamad v Jeppensen.

Most promising is Holder's pledge to release as many of the formerly secret legal memos produced by Bush's Office of Legal Counsel as possible.

As reported in FAS Secrecy News:

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration. See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.

In many ways, these missing memos constitute the ostensibly legal framework upon which the Bush regime constructed their apparatus of governmental repression and torture. In particular, I'd love to read John Yoo and Robert Delahunty's OLC 10/23/2001 memo to Alberto Gonzales (then counsel to Bush), Fourth Amendment doesn't apply to military operations abroad or in U.S.:

This memo, titled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, concludes that the Fourth Amendment's protections against warrantless search and seizure don't apply to military operations, even when the operations take place on U.S. soil.

Kind of sends a chill up your spine, doesn't it, knowing the U.S. Constitution was suspended about eight years ago, and by secret fiat no less. Luckily for us, Obama, by executive order, recently rendered null and void all of these so-called legal OLC opinions that were issued regarding detention and interrogation after 9/11/01.

From the Executive Order, 1/22/2009 (bold emphases added):

Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

While I have been adamant that standing "as is", the Army Field Manual allows for abusive treatment that can amount to torture, by limiting interpretations of its protocols to CA3, CAN, etc., and forbidding use of the Bush era legal "interpretations" of the law, a minimal amount of protection is provided. It is likely upon this thin reed that many liberals, especially in the administration, are resting their support of the AFM as the "single standard" for interrogations (and I mean people like Glenn Greenwald and Scott Horton).

Unfortunately, it is not enough, as recognized by the Center for Constitutional Rights:

Much like John Yoo's infamous "torture memos" at the Office of Legal Counsel attempted to provide a legal cover for the authorization of torture by high-ranking Bush administration officials, the addition of Appendix M attempts to provide the same cover, utilizing the Army Field Manual. President Obama's executive order repudiates Yoo's memos - but it is not sufficient to do so without also repudiating this appendix, drafted in light of those memos.

H/T to Emptywheel. Also, a posting at Docudharma/Daily Kos by Patriot Daily succinctly explains some of the more abstruse aspects of the state secrets issue, and proposes a solution, utilizing criteria criminal courts use when classified material is part of the case. It's worth reading, for those following this important issue.