Narrowing the State Secrets Privilege:

The Obama Administration is preparing to announce a new policy that would limit the use of the state secrets privilege, according to reports in the New York Times and Washington Post. The policy will take effect October 1. From the Post:

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.
From the NYT:
Under the new policy, if an agency like the National Security Agency or the Central Intelligence Agency wanted to block evidence or a lawsuit on state secrets grounds, it would present an evidentiary memorandum describing its reasons to the assistant attorney general for the division handling the lawsuit in question.

If that official recommended approving the request, it would be sent on to a review committee made up of high-level Justice Department officials, and then to Deputy Attorney General David W. Ogden and Mr. Holder. All those officials would be charged with deciding whether the disclosure of information would risk "significant harm" to national security, and they would be instructed to seek a way to avoid shutting down the entire lawsuit if possible.

If the Justice Department signed off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government's reasoning. A judge could request access to particular pieces of underlying evidence.

The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to "conceal violations of the law, inefficiency or administrative error" or to "prevent embarrassment."

President Obama announced his intention to revise federal policy concerning the state secrets privilege back in April. The Administration's repeated invocation of the privilege in ongoing litigation and suggestion that the privilege has constitutional roots prompted substantial criticism, particularly from civil liberties groups. While the policy change is unlikely to undo prior assertions of the privilege, it will limit the use of the privilege going forward.

This change may have been a long time coming, but that is not a surprise. Federal policies of this sort cannot be changed overnight -- at least not without substantial cost. Specific policy guidelines and supporting memoranda must be drafted and approved after input from affected agencies. This can be a lengthy process, particularly when key offices in the relevant agency are vacant and the Administration has other pressing priorities on its plate. While I suppose the President could have immediately suspended reliance on the privilege, he took a more responsible course: ordering a review of how the privilege is used and tasking Justice Department attorneys with developing a new policy that will safeguard vital government interests in a less intrusive fashion.

Based on these news reports, it sounds like the new policy is a significant improvement. The state secrets privilege should be used quite sparingly, and only then as a last resort. It should not be a ready tool to make embarrassing or inconvenient litigation go away. Developing more formal guidelines is also an improvement, as the lack of clear rules makes it easier to invoke the privilege unnecessarily. It is only natural for government attorneys to seek any and all means of dismissing unwanted litigation -- after all, their goal is win for their client (which, for most governemnt attorneys, is the government). Therefore, clear rules and procedures limiting the privilege will reduce this potential for abuse. Even if the new policy would have allowed invocation of the privilege in the recent cases that sparked the controversy, it should provide greater assurance that the privilege is only invoked when it serves a legitimate purpose.

Related Posts (on one page):

  1. DOJ's New Policy on Invoking the State Secrets Privilege:
  2. Narrowing the State Secrets Privilege:
martinned (mail) (www):
Hear, hear! Maybe the other two branches of government could join the fun and fashion new procedures for borderline cases?
9.23.2009 8:43am
Derrick (mail):
I think that this is a great decision by the Obama administration. I hope that at least reasonable Republicans realize that Bush/Cheney's use of this privilege was continuously abused, and that good governance requires some transparency. Obviously, their is a need for state secrets, as there is for wiretapping and other secret activity, but their has to be some accountability with privileges like these.
9.23.2009 8:45am
Soronel Haetir (mail):

As far as I can tell, nearly every use of state secrets doctrine going back to the 50s has been a gross abuse. Certainly the episodes where the underlying facts have come to light the administrations were simply hiding embarrassment. Just because the policy calls for that not to be a reason for invoking the doctrine doesn't mean I believe them. Such use is far too ingrained.
9.23.2009 9:30am
martinned (mail) (www):
@Soronel Haetir: Hence my suggestion for a FISA Court type deal where the decision to invoke the state secrets doctrine can be examined.
9.23.2009 10:04am
Anderson (mail):
The folks at Emptywheel are underwhelmed:

Obama's New State Secrets Policy Is Reaffirmation Of Bush's Policy

In a nutshell, the Administration's new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn't being done before?
9.23.2009 10:28am
einhverfr (mail) (www):
I will believe it when I see it. I voted for Obama hoping for more transparency in government and we haven't seen it. Up until now, the EFF has considered Obama worse than Bush in the state secrets department.

So, there are fundamental questions whether or not the change will be simply cosmetic or whether it will be substantive. Only time will tell.
9.23.2009 11:02am
Bob from Ohio (mail):
People are so easy to fool. This policy "change" is just lipstick on a pig if you do not like the doctrine.*

So instead of "harm" its "significant harm". A distinction without a difference in reality. "People wil be killed!" is likely always asserted now anyways.

And a "team" of lawyers must be convinced. All executive branch employees.

My tame prediction, the "new" policy will have no impact on the assertion of the doctrine.

*I don't have a problem with the doctrine myself or its use.
9.23.2009 11:20am
Forrest Chump (mail):
The transparency! Yea, the Change!
9.23.2009 11:29am
Soronel Haetir (mail):

Bob from Ohio,

If it were limited to the cases that were actually claimed I might not have a problem with it, but when it is used to cover up the fact of a pilot deliberately misusing an aircraft in order to avoid liabilty to a passenger's widow then I do have problems. State secrets doctrine is a trump card that doesn't allow for timely examination of its use. And for that reason I do have problems with it.

I would almost prefer that use of state secrets act as a means to default judgment without admission. If the government wishes to defend a case it should be forced to make an actual defense, not say "this matter is too sensitive to allow resolution."
9.23.2009 2:28pm
davod (mail):
I imagine this does not affect executive privilage.
9.23.2009 4:47pm

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