New Policy Marks First Step in Narrowing State Secrets Privilege

On Sept. 23, the Justice Department released a new policy [1] on use of the state secrets privilege. The policy, which parallels several related recommendations from the Moving Toward a 21st Century Right-to-Know Agenda, will be implemented on Oct. 1. The long-expected announcement drew mixed reactions from public interest groups, ranging from support to criticism that the policy offers little more than a rehash of the heavily criticized policies of the Bush administration.

Since the Obama administration took power, public access advocates have been vocally disappointed with the lack of change in the use of state secrets claims in court. Over the course of several months, the Obama administration has repeatedly reaffirmed the Bush administration’s claims of state secrets in several cases. This has happened despite repeated promises to reform the use of the privilege, as well as June comments by Attorney General Eric Holder that a new policy was imminent.

However, some advocates say the administration took a sizable step toward delivering on its campaign promises with the new policy that establishes several new internal checks and balances over the use of state secrets. At the same time, even supporters of the administration’s actions acknowledge that the new provisions should only serve as a first step.

Among the improvements, the new policy establishes:

• A new review process within the Justice Department that concludes with the Attorney General (AG) making a personal recommendation on use of the privilege. Before a state secrets claim reaches the AG, it is first reviewed by the Assistant Attorney General (AAG), which was where the process often concluded in the past. After the AAG’s recommendation is reviewed by a review panel, it then passed to the Deputy Attorney General, who sends it to the AG for final review.
• A requirement that agencies must produce detailed evidentiary submissions to the Justice Department when making a state secrets claim.
• Limits on the administration’s ability to seek dismissal of an entire case based on the application of the privilege, narrowing nondisclosure to evidence of strict national security concern.
• A commitment to only use the privilege for legitimate national security reasons 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. "Significant harm" is a new standard, though it remains undefined in the policy.
• Periodic reports on the use of the privilege from the Justice Department to Congress.
• Inspector general oversight of credible allegations of government wrongdoing, regardless of whether the privilege is invoked.

A number of these provisions appear to be exactly what public interest advocates asked the administration for in the Moving Toward a 21st Century Right-to-Know Agenda [2] report, which was endorsed by more than 350 organizations and individuals from across the political spectrum, including OMB Watch. For instance, the report called for a declaration that state secrets would not be invoked to hide misconduct. The new policy includes such a statement, along with a requirement that all misconduct claims be referred to the appropriate Inspector General's office.

The recommendations also called for reporting to Congress, which the policy also contains. The recommendations sought a provision indicating that the privilege only be used as a last resort, which the new "significant harm" standard appears intended to do. Other items from the recommendations also made it into the new policy.

However, the new policy fails to meet one key test from the recommendations: judicial oversight. The report included several recommendations on allowing in camera review by judges, discovery of non-privileged material, and creation of substitute materials. Though the narrow tailoring of the new policy implies the discovery of non-privileged information, none of the other points appears in the policy.

The Justice Department press release that accompanied the new policy states, "In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review." However, the new policy contains no such prescription, leaving it open to abuse, critics claim. There are rumors that a forthcoming report from a state secrets task force will provide additional details about judicial oversight issues. If so, it is unclear why specific policies or procedures were not included in the policy memo on Sept. 23.

Some critics were upset [3] that the new policy will only apply to new cases, not existing ones. Some noted that the policy was released at the same time that oral argument on a motion for summary judgment in the state secrets case of al-Haramain v. Obama was scheduled.

Other critics worry [4] that the policy release is an effort by the administration to forestall larger legislative reforms on state secrets. However, the administration, thus far, has not taken a position on any of the pending legislation, and the policy does not appear to have diminished interest in state secrets legislation from key leaders in Congress. Currently, there is legislation in the House, (H.R. 984 [5], introduced by Rep. Jerrold Nadler (D-NY)) and the Senate (S. 417 [6], introduced by Sen. Patrick Leahy (D-VT)) to curtail the application of the state secrets privilege. Primarily, the bills direct 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. Nadler has specifically indicated that the administration policy is helpful but that legislation is still needed.

Leahy described [7] the new policy as "moving in the right direction to better control assertions of the state secrets privilege." However, Leahy also noted, "I remain especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement."

Public interest advocates moved quickly to encourage congressional action to lock in the procedural changes contained in the administration’s policies and to do more to ensure proper oversight of the privilege’s use. A letter co-signed by seven groups [8], including OMB Watch, was sent to the chair and ranking member of the House and Senate Judiciary Committees. The letter noted, "Legislative reform is still vitally needed to address a variety of problems not addressed in the new executive policy."