Leaked Watchlist Guidelines Show How the Obama Admin Abuses the 'State Secrets' Privilege


Executive Director

The Intercept published a must-read story yesterday revealing the secret and incredibly vague rules the US government uses to place people on its terrorism watchlist. While the story covers many civil liberties problems associated with the unaccountable process, it also highlights an important topic that has gotten lost in recent debates about government secrecy: the continued abuse of the state secrets privilege.

The state secrets privilege is a controversial legal doctrine that has been used by the Bush and Obama administrations to get several lawsuits dismissed alleging serious unconstitutional actions—like torture, illegal surveillance, and due process violations—merely by arguing the issues were too sensitive to discuss in court without harming national security. Obama once promised to reform the state secrets privilege, but his administration has instead doubled down on its use in several controversial cases. Just this year, Eric Holder was accused of abusing the privilege in a No Fly List case where the government knew the plaintiff had been placed on the list by mistake for seven years, but still invoked the privilege—despite swearing in an affidavit that the administration would not use the privilege in cases of “administrative error.”

Yesterday, the Intercept quoted from Attorney General Eric Holder’s sworn affidavit to a judge in another case challenging the No Fly List where the plaintiff specifically asked for the Watchlisting Guidelines that were leaked yesterday:

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Holder called them a ‘clear roadmap’ to the government’s terrorist-tracking apparatus, adding: ‘The Watchlisting Guidance, although unclassified, contains national security information that, if disclosed … could cause significant harm to national security.’

In other words: the guidelines are so secret that they cannot be challenged in court, but are so broadly distributed that they aren’t even classified.

Given how much the state secrets privilege has been invoked in the past decade, it’s possible the privilege been used with unclassified information before. However, we are unaware of such a case. This makes a mockery of the accountability process and is a prime example of how the US government has used secrecy as a shield to prevent transparency, while the information it protects doesn't contain actual national security secrets that could harm the country at all.

As Techdirt's Mike Masnick writes, "Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list." Holder's statement is also dubious considering the FBI had released a previous version of the watchlisting guidelines under the Freedom of Information Act in 2011. Holder also wrote this in his affidavit:

The guidance is disseminated solely within the US Government watchlisting and screening communities and only to those who possess a need to know such information. The Guidance is unclassified in order to facilitate information sharing among US Government agencies involved in watchlisting and screening efforts.

On plain reading, that statement seems to mean that the Watchlisting Guidance stays solely within the US government. Yet as The Intercept reported yesterday, the US government “shares its watchlist data with local law enforcement, foreign governments, and ‘private entities.’” While the report was unclear about whether the US government also share the guidelines itself with all these outside entities along with its "data," this should give the judge in that case ample reason to further scrutinize the Justice Department’s efforts to again use government secrecy to shield itself from accountability about facts that should never be considered secret in the first place.

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