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Statement of Attorney General Eric Holder on Assertion of the State Secrets Privilege in Shubert V. Obama
~ Friday, October 30, 2009

"The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country.  I authorized this significant step following a careful and thorough review process, and I did so 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.

"Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation.  We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security.  The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

"The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion.  A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information.  Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods. 

"As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so. Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.

"We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power.  Moreover, 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.

"The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security.  Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.

"The state secrets privilege also presents challenging questions of executive power. We have attempted to resolve those questions in a manner that ensures robust deliberation and allows for appropriate oversight by the courts and Congress.  We believe the action we have taken in this case is the only responsible choice.  Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances.  As always, we will respect the outcome of that process."

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