Attorney General

Law Dean Criticizes DOJ’s Use of State Secrets as a 'Talismanic Phrase'

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Civil libertarians are criticizing the Obama administration’s Justice Department for defending the state secrets privilege, despite the president’s campaign pledge of a more open government.

Critics point to the department’s stance in a lawsuit challenging warrantless wiretaps by the now-defunct Al-Haramain Islamic Foundation, the Washington Post reports. The case focuses on a phone log accidentally disclosed by the United States suggesting some of the group’s officials and lawyers had been wiretapped.

Justice Department lawyers not only sought dismissal of the Al-Haramain suit, “but also escalated the standoff–proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them,” the Post says.

Erwin Chemerinsky, dean of the law school at the University of California-Irvine, says “state secrets” has become a sort of “talismanic phrase” used by government officials who want to make troubling challenges to their authority disappear. “There has to be other ways to protect secret information without having to block accountability,” he told the Post.

A bipartisan Senate group is offering one proposal, introducing legislation that would require judges to review classified evidence when a state secrets claim is made, rather than rely on the government’s description of the documents.

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