BREAKING: New State Secrets Policy Released

Today, the Justice Department released a pivotal policy statement [1] on the way the Obama administration will govern use of the state secrets privilege [2].  The new policy will be implemented on Oct. 1.  This is a welcome step toward President Obama’s promise of an unprecedented level of openness and away from the former administration’s “just trust us” approach when using the privilege to withhold evidence in lawsuits against the government.  While it seems highly likely that previous administrations have used the unfettered privilege to avoid embarrassment or corruption charges, the Obama administration has limited its use to national security purposes.

This unparalleled policy echoes many of the recommendations made by over 350 open government advocates in the Moving Toward a 21st Century Right-to-Know Agenda [3] from November 2008.  Among the guidelines established:

• An independent review committee made of prosecutors and the attorney general must first approve the administration’s state secrets claim before it can be invoked in court.
• Evidentiary requirement to the court for state secrets claim.
• Limiting the administration’s ability to seek dismissal of an entire case based on the application of the privilege to evidence to strict national security reasons.
• Commitment to only use the privilege for legitimate national security and not to conceal illegal activities, embarrassment, or to delay the release of information that would not reasonably be expected to cause significant harm to security.
• Regular reports on the use of the privilege from the Justice Department to Congress.  Unfortunately, there is no specified timing to the reporting.  The policy only calls for “periodic” reports.
• Inspector general oversight of for credible allegations of government wrongdoing.

While some may not see this as much different than the system that existed before, what is different is 1) the application of the policy across agencies, 2) requiring a formal process for requesting the privilege; 3) the incorporation of extensive checks and reviews within the government including the inspector general investigations.

The policy does not include everything the open government community identified as needed for reforming the use of the privilege.  For instance, the administration only reviewed current court cases in which the privilege has been asserted.  While closed cases cannot be reopened, a public review of the previous applications and whether or not the new policy would allow the same claim could greatly illustrate the extent of the policy change.  The memo is also silent on allowing judicial review of state secrets evidence in camera, but this seems to be implied.  Further, the line in the memo reading, "information that is nonpublic but not classified" is disheartening.  The new policy is still quite broad but it is now much less likely that the privilege will be abused.

In February, many open government groups and advocates were giving up hope for state secrets reform claiming that the administration’s application of the privilege in Mohammed v. Jeppesen Dataplan was a 180 degree reversal [4] of Obama’s campaign position.  I encouraged [5]everyone not to panic and asserted that the administration might simply be taking time to fully assess the state secrets cases and what exact changes it wanted to put in place.  It appears that such a review was occurring and it has been completed.  Considering the importance of the privilege and its recent use in several terrorism related cases, eight months is fairly quick turnaround.

It is unclear what impact the policy will have on specific cases currently before the courts.  It will not likely alter the administration’s application of the privilege to the al-Haramain Islamic charity case.  Further, the administration has already withdrawn the government’s use of the privilege in the case of a Drug Enforcement Agency officer who is claiming that the government wiretapped his home.  The administration has also continued the Bush legal policy in a case against the National Security Agency on warrantless wiretapping and, of course, the Jeppesen extraordinary rendition case.

I am elated to see evidence that the executive branch wants to responsibly wield such potentially broad power.  Personally, I would like to see these changes, and more, permanently enshrined in statutory law.  To quote Glenn Greenwald from February, “We don't actually have a system of government (or at least we're not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely.”  Fortunately, the U.S. Court of Appeals ruled in the Jeppesen case that the administration could not dismiss an entire case based on the privilege alone.  Hopefully, future courts will follow this precedent if such an application by any administration is attempted again.

Currently, there is legislation in the House of Representatives and Senate to curtail the application of the privilege.  Primarily, this legislation directs the White House to submit information it deems to be protected by the privilege for in camera review.  It also prohibits the outright dismissal of a lawsuit without independent review of the evidence.  The bill in the House (H.R. 984 [6]), introduced by Jerry Nadler (D-NY), has not moved out of the Judiciary Committee since it was referred in June.  I also hope this policy does not prevent Congress from moving forward with their bills.

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