GWEN IFILL: The Obama administration took steps today to curb one Bush-era terror-fighting tool while at the same time extending others. The Justice Department is making it tougher for the government to withhold information by claiming secrecy protection.
Agencies under threat of a lawsuit will now have to convince a team of Justice Department lawyers that national security would be threatened. Attorney General Eric Holder’s statement said the new rule “sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”
During the Bush administration, information considered sensitive could be withheld based on the judgment of a single official. In April, President Obama seemed to endorse restraining such executive power.
U.S. PRESIDENT BARACK OBAMA: There are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety.
But 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 in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.
GWEN IFILL: On Capitol Hill today, the chairman of the Senate Judiciary Committee, Vermont’s Patrick Leahy, welcomed the new approach.
SEN. PATRICK LEAHY, D-Vt.: We want the privilege, but we don’t want to misuse — we have to have mechanisms to guide its application. And today’s announcement marks progress.
GWEN IFILL: But the Obama administration is not rolling back all Bush-era anti-terror policy. At a hearing on reauthorizing the Patriot Act, administration officials resisted Democratic efforts to add new civil liberties protections to the existing law.
The sections of the law up for renewal continue to allow investigators to use roving wiretaps to track terror suspects without having to apply for a new warrant; the FBI to get a court order to seize “any tangible items,” like diaries and computers, relating to a terrorism investigation; and to enable the FBI to wiretap suspects unconnected to terrorist groups or foreign governments.
The committee’s top Republican, Alabama’s Jeff Sessions, said all three should be extended.
SEN. JEFF SESSIONS, R-Ala.: They are unequivocal about the administration’s position that we are still at war with al-Qaida and that these provisions should be re-authorized because they are important tools in this war and to make America safe.
GWEN IFILL: The Patriot Act provisions are due to expire at the end of the year.
For a closer look at the shifting debate over how far government should go to protect its citizens, I’m joined by Elizabeth Goitein, director of the Liberty and National Security Project at the Brennan Center for Justice at New York University School of Law, and John Eastman, dean of the Chapman University School of Law in Orange, California.
John Eastman, when you look at what the president, what the attorney general laid out today when it comes to these secrecy provisions, do you think that he went far enough, or did he go too far?
The scope of the new mechanisms
JOHN EASTMAN, Chapman University: Well, I think that remains to be seen yet. It turns on how the new mechanism is implemented. If Attorney General Holder is giving the same kind of review as the line prosecutors used to give and making the same determinations about when state secrets should be raised and when not, then I think we won't have much change here. We'll have a greater accountability by somebody higher up and closer to the president.
But if they're using this as a forerunner to waiving state secrets defense across the board, then I think he's gone very far, indeed, and not to our benefit.
GWEN IFILL: Elizabeth Goitein, does it seem like he is going too far to you? Or does he -- do you anticipate what John Chapman -- John Eastman was just telling us, that this may be, perhaps, a precursor to rollbacks completely?
ELIZABETH GOITEIN, Brennan Center for Justice: Well, I do agree with John that the proof is going to be in the pudding in terms of how this new policy is actually implemented, but I don't agree that there is a risk that the policy will go too far. I think the policy made some important strides in limiting the use of the privilege.
I mean, this is an incredibly powerful privilege. It allows the government to essentially shut down litigation in some cases by withholding evidence and documents for national security reasons, and so there's a lot of potential for abuse there.
I do think the extra review procedures by the committee and by the attorney general will be helpful. I think there are other provisions that are helpful, as well. But I would have liked to see some reform in some other areas, as well.
And specifically, one of the biggest problems with how the state secrets privilege has been used in the last few years is that, instead of using the privilege to protect documents and items of evidence, the privilege has been used to shut down cases at the outset before any of the evidence has even been identified.
So the government has come in and said, "This case is just too sensitive to litigate, no matter what the evidence is, and we're not going to tell you what it is." And that's just wrong.
GWEN IFILL: Did it go too far in that respect, John Eastman, the old law, the law that's now being revised, in that did it give the executive too much power to shut down investigations before they began?
JOHN EASTMAN: I don't think so. I mean, you go back to our founders' understanding of this. The office of the president was created specifically to give it the ability to act with secrecy and dispatch in time of war. And if we're going to allow our enemies and others through litigation to expose our most sensitive tactics about intelligence-gathering in the middle of this war, we will have severely undercut the president's authority here and altered the dynamic that the Constitution gives us.
I think this is an important protection of the ability to conduct war, and particularly now, when the main battlefield in this war is intelligence-gathering. We can't defend ourselves against any attack on any potential target in the United States or in the world. Intelligence is the front line.
And these kind of secrets, the tactics, the mechanisms we're using, we cannot be exposing that to the light of day just because it's a matter of litigation.
GWEN IFILL: But it sounds almost as if the administration is trying to thread a needle here, in some respects. They're loosening the restrictions on what kinds of investigations can go forward; on the other hand, by endorsing the extension of these provisions of the Patriot Act, continuing to keep a pretty tight hold on it.
ELIZABETH GOITEIN: I think that's right. And I think there are different issues here. There's the issue of the authorities that our government has to conduct investigations and to gather intelligence. And then there's the issue of how that intelligence can or cannot be used in court. And I do think it's important to look at them separately.
I would agree with John that the privilege is very important. I was a government attorney for almost a decade, and I absolutely recognize the importance of the privilege. The key is making sure that it is only used when there is evidence or information that could truly harm national security if released. I think the policy goes a long way, but not quite far enough in that regard.
Deciding on national security
GWEN IFILL: Well, who gets to decide now, John Eastman, who exactly -- whether it's going to be harmful or not? Is it OK with you that this is being decided by a team of lawyers, almost a higher standard of how many people, instead of like a single person saying, "This is dangerous"?
JOHN EASTMAN: Well, it's a team, but it's the attorney general himself that's going to head that team, and I actually think that's a good thing. You know, the notion that the buck stops at the president, the closer you get to the president, the more accountable you are. And so I think that's a good thing.
There's another aspect of this, and that is if there are credible claims of illegal conduct, rather than airing those out in open court where state secrets might be involved, a referral to the relevant agency inspector general to investigate them further can, I think, create a good balance, where looking at those claims of illegality, but also protecting the nation's secrets in time of war. I think that's an important development, as well.
GWEN IFILL: How about federal judges? Do they get now a whack at this, as well?
ELIZABETH GOITEIN: Absolutely they get a whack at it. And the attorney general is the one who decides whether or not the government will claim the privilege. But it's still the judges that get to decide whether or not the privilege actually applies.
And one of the ways in which I would have liked to see the policy go further is for the policy to state expressly that the administration will agree to submit the allegedly privileged evidence to the judge so that the judge can actually look at it and make the decision. And that judicial oversight is absolutely key to preventing abuse, and there's no reason why we shouldn't trust our federal judges with national security.
GWEN IFILL: And that -- and this right now remains silent on that point?
ELIZABETH GOITEIN: It remains silent on it. And I'm hopeful that the administration will decide to follow that practice.
The case for the Patriot Act
GWEN IFILL: John Eastman, in continuing these three provisions of the Patriot Act, which the committee acted on today, eight years after 9/11, is there still a need for that? I know you talked about everything having moved to intelligence now, but a lot of the questions that Democrats in particular have had about the Patriot Act is that it was putting too great of restraints, that it was casting too wide a net. Can that net stand to be tightened a little bit now?
JOHN EASTMAN: I don't think we know the answer to that. You know, one of the things you look back over the last eight years, have we not suffered another attack because there really isn't a serious threat or because these protections have worked and prevented another attack?
I think the recent raids and FBI investigations demonstrate that we may well still be in the middle of a fairly serious war. And these mechanisms are going to be critically important.
And they're not, after all, novel mechanisms. We used the same type of mechanisms in tracking down drug dealers or whatever. The notion that we would have greater tools in the war on drugs than we allowed in the war on terror, I think, is perplexing.
And I think, at the end of the day, the fact that the Obama administration and Republicans in the Senate are hoeing the same line here is a good indication that there's a bipartisan support for keeping these tools in the anti-war-on-terror box.
GWEN IFILL: Is politics running up against reality when it comes to national security?
ELIZABETH GOITEIN: Well, I think we need to take a very, very close look at these surveillance authorities and how they've worked in practice, and that's something we haven't done. Since 9/11, there's been this hodgepodge of surveillance authorities that have been passed piecemeal, usually hurriedly, with very little debate. It is time for to take a step back and look.
I would say that the fact that we are still facing terrorist threats -- and there's no doubt about that -- is all the more reason we want to make sure that our surveillance authorities are targeted to the threat that we face.
And when you have authorities that allow indiscriminate collection of information and collection of information about law-abiding Americans or even profiling on the basis of religion or ethnicity, then we actually make ourselves less effective, because we're squandering some very scarce resources in nonproductive areas.
GWEN IFILL: Elizabeth Goitein and John Eastman, thank you both very much.
ELIZABETH GOITEIN: Thank you
JOHN EASTMAN: Thank you.