Posted by Jonathan Adler:
Narrowing the State Secrets Privilege:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253708168
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 [1]New York Times and [2]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 [3]back in April. The
Administration's [4]repeated [5]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.
References
1. http://www.nytimes.com/2009/09/23/us/politics/23secrets.html
2.
http://www.washingtonpost.com/wp-dyn/content/article/2009/09/22/AR2009092204295.html?hpid=topnews
3. http://www.volokh.com/posts/chain_1241105836.shtml
4. http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1235229051
5. http://www.volokh.com/posts/1239109931.shtml
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