Since my initial take on the administration’s announcement this morning of a new state secrets policy, I’ve had a chance to discuss the issue with colleagues both inside and outside of OMB Watch and have decided to briefly outline what I see as both positives and negatives of the new policy. Ultimately, we feel the result is a net positive.
The Good:
- The policy clearly seeks to narrow the scope of the executive privilege through application of a rigorous and formalized procedure that never existed before. Did we really ever believe that the executive branch would give up the privilege entirely or that a president would voluntarily give up power? A key objective of the administration seems to be to allow more cases to move forward and that can be accomplished with this policy if responsibly implemented. This should be applauded.
- This is the first time a president has publicly clarified the Supreme Court decision in Reynolds and thereby establishes a precedent that cannot easily be reversed by subsequent administrations without considerable public criticism. Moreover, it gives the open government community much of what it asked for in recommendations to the Obama administration.
- The policy includes both reporting to Congress and the requirement of referral to Inspectors General, which are the beginnings of long overdue oversight of this privilege. Plus, the use of evidentiary materials is an important element in the new process for invoking the privilege.
- The new process – an agency head sends evidence of need for the privilege, which is then reviewed by the Assistant Attorney General, whose recommendation is reviewed by a new State Secrets Review Panel, whose recommendation is reviewed by the Deputy Attorney General, whose recommendation is either accepted or rejected by the Attorney General – should serve to militate against unwarranted use of the privilege.
The Bad:
- The new policy lacks clarity on judicial oversight. It is not enough to simply imply that declarations of evidentiary support be submitted to the courts; this requirement should be spelled out and other oversight procedures should be explained. There should be explicit opportunity for judges to review disputed document in camera, for example
- Regular independent auditing of the entire process is needed. Trust can only be built through verification.
- The new standard for invoking the privilege is when disclosure could cause “significant harm” to national security. But the term is not defined and creates too much wiggle room for an administration to abuse the privilege.
- The policy applies only to cases that begin after Oct. 1 and does not have an impact on current or past state secrets litigation.
There are many other strengths and weaknesses to the policy – and many more will be discussed in days and weeks to come. On balance, OMB Watch strongly commends the administration’s action. Regardless of our support, the proof is in the pudding. The true test of this policy will be how the administration applies it from here on. And we hope the administration continues to adjust the policy to address the weaknesses.
Finally, today’s action should not be an excuse for Congress to drop its legislative effort on narrowing the state secrets privilege and to bring greater accountability to the process. Indeed, it should be an incentive to speed up the work and tackle the items left undone by today’s policy.
