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DOJ's New Policy on Invoking the State Secrets Privilege:
Jonathan mentioned it below; the text of the policy is here. This gist of the policy is that DOJ will invoke the privilege only where it's reasonably needed, not reflexively, and that a lot of high-ranking DOJ officials need to evaluate and review each internal DOJ request to invoke the privilege, with the final decision coming from the Attorney General. The standard seems reasonable to me; all that internal review sounds pretty time consuming, but then I suppose they can amend the policy down the road if it ends up taking too much time.

Related Posts (on one page):

  1. DOJ's New Policy on Invoking the State Secrets Privilege:
  2. Narrowing the State Secrets Privilege:
FWB (mail):
Isn't it interesting that the ONLY place the Constitution allows for secrecy is in Article I wherein Congress may make such parts of its journal secret as it deems necessary?

There is no other grant of secrecy authority, even to the judicial branch, that allows for "state secrets". The privilege DOES NOT exist under our system of government.

Tiocfaidh ar la!
9.23.2009 12:40pm
OrinKerr:
FWB,

Perhaps you think we should go back to the English common law approach? As I understand the common law approach, the sovereign was simply immune from all tort suits: You didn't have a state secrets privilege because you wouldn't have a lawsuit against the government in the first place.
9.23.2009 12:56pm
Nunzio:
I'd be curious to see how many of the cases in the last 10 years where the government invoked the doctrine that would have been different under the new policy.
9.23.2009 12:59pm
Curt Fischer:

The standard seems reasonable to me; all that internal review sounds pretty time consuming, but then I suppose they can amend the policy down the road if it ends up taking too much time.


But the time-consumption aspect of the new policy is what I like best about it. If the administrative burden to assert the state secrets privilege is high, maybe it will lead to fewer assertions.
9.23.2009 1:05pm
John W (mail):
Orin:

Of course, the common law approach doesn't reach to some of the cases that the state secrets privilege can be used to preclude--since the privilege can be asserted in any civil case, whether or not against the U.S. Gov't--for example, a suit against a torturer in his individual capacity.
9.23.2009 1:07pm
OrinKerr:
John W,

True.
9.23.2009 1:10pm
Steve:
As I understand the common law approach, the sovereign was simply immune from all tort suits: You didn't have a state secrets privilege because you wouldn't have a lawsuit against the government in the first place.

But even that wouldn't be good enough, because you have cases like Jeppesen, a lawsuit against a private entity alleged to have participated in extraordinary rendition flights. Both the Bush and Obama administrations attempted to assert the state secrets privilege even though there was a private defendant.
9.23.2009 1:11pm
zuch (mail) (www):
OrinKerr:
Perhaps you think we should go back to the English common law approach? As I understand the common law approach, the sovereign was simply immune from all tort suits: You didn't have a state secrets privilege because you wouldn't have a lawsuit against the government in the first place.
Doesn't work for Jeppeson (or for the dismissed-due-to-congressional-immunity suits against the telcos). The defendants are private companies (avoids the legal hurdles presently in place that make suing the gummint difficult), but they claim that their defence would necessitate revelation of Sooper-Dooper State Sekrets™

Cheers,
9.23.2009 1:29pm
OrinKerr:
zuch, as with John W's. comment, yes, I think that's right.

At the same time, if the common law rule operated, presumably the United States would not have used the private companies in the first place: The decision to use the third parties presumably was made in part because the state secrets doctrine would apply regardless of who was the defendant.
9.23.2009 1:59pm
One Man's View:
Seems pretty clear to me that as a substantive matter this won't be much of a change in the "high profile" cases that are of such public concern. Substantively, all of those are likely to meet the "significant harm" to national security test that the Memorandum lays out -- at least from the government's perspective. Where this will make changes, I think, is in the everyday employment type cases (wrongful discharge) where the privilege has sometimes been invoked because of the employee's status as a former covert agent. Seems pretty clear that under those type of facts the "significant harm" standard will have real bite.

As for the process requirement -- having the AG personally sign off is going to limit the number of requests for sure. OTOH, if one of his fellow cabinet officers tells the AG seriously that "significant harm" will result the AG is unlikely to say "no." What this will do is the right thing -- procedurally elevate the issue so it is decided with a broader scope of the sense of necessity, rather than allowing invocation by lower level staff.

For those who don't like the privilege at all, this won't help. For those who think the privilege should be used, but not promiscuously, this is a very good effort.
9.23.2009 2:29pm
Stash:
Actually, the state secrets privelege comes up frequently in suits by and against government contractors working on black projects and projects that include classified information. How do you prove that the product did not meet specifications when the specifications are classified, the product testing is classified, and the test results are classified? This includes cases where they are suing each other (prime vs sub)or where they are adverse to the government or a False Claims Act whistleblower. Sometimes it is the DOJ that cannot prove its case because of the privilege.

I am with Nunzio in questioning just how differently any of the past cases would have been decided. Usually, at least one party has a strong interest in getting the information. Over the years a lot of "work arounds" of the state secret privilege have been developed, e.g., non-classified summaries, redactions, and declassification reviews. Any loosening of the privilege that does not endanger security would be very helpful in litigation where it becomes an issue.
9.23.2009 2:49pm
Constantin:
Does any reasoning person think this is going to make one bit of practical difference? It's a nice gesture toward those he's about to enrage by ditching the public option to save himself, but surely they don't think this is going to change anything.
9.23.2009 3:08pm
Bob from Ohio (mail):

As for the process requirement -- having the AG personally sign off is going to limit the number of requests for sure.


Why? The AG signs things all day.

According to Wikipedia:


According to John Dean:

While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."[8]

While Henry Lanman reports in Slate:

"... the Reporters Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11."[9][11]


Looks like 6 a year from 2001 to 2004. So, every two months the AG will have to look at something. I'm not sure how he will stand the strain.
9.23.2009 3:11pm
Anderson (mail):
This gist of the policy is that DOJ will invoke the privilege only where it's reasonably needed, not reflexively, and that a lot of high-ranking DOJ officials need to evaluate and review each internal DOJ request to invoke the privilege, with the final decision coming from the Attorney General.

IOW, no actual restriction on its invocation.
9.23.2009 5:20pm
Stash:
Bob from Ohio:

Counting reported cases in which an issue regarding the state secrets privilege is asserted is perhaps not a good measure of the full extent of its use. It simply counts the number of times the assertion is litigated to an opinion. It would be like trying to determine the number of times work product or attorney client privilege is invoked from the number of reported opinions. One may get enough information without the documents that are withheld under the privilege. Like any other discovery problem, there are work-arounds, compromises and stipulations. Sometimes the case can be tried or settled without the information, and no motion to compel is ever brought against the assertion. Hence no opinion, reported or not.

I realize that these are not the high-profile cases that everyone is concerned about--where the discovery is make or break, or attached to a politically charged issue.
9.23.2009 8:24pm

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