Statement of Attorney General Eric Holder on Assertion of the State Secrets Privilege in Shubert v. Obama

Statement of Attorney General Eric Holder on Assertion of the State Secrets
Privilege in Shubert v. Obama

WASHINGTON, Oct. 30 /PRNewswire-USNewswire/ -- The Department of Justice
invoked the state secrets privilege today in the case Shubert, et al. v.
Barack Obama, et al.

Below is a statement by Attorney General Eric Holder:

"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."

SOURCE U.S. Department of Justice

U.S. Department of Justice Office of Public Affairs, +1-202-514-2007, TDD
+1-202-514-1888