Holder puts new limits on state secrets privilege

Rory Eastburg | Secret Courts | Feature | September 23, 2009

Attorney General Eric Holder announced today that the Justice Department will move to restrict use of the state secrets privilege and laid out new procedures that will “provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

The state secrets privilege allows courts to dismiss lawsuits where the government shows that trying the case could reveal state secrets. Once rarely invoked, the Bush administration created controversy by asserting the privilege in a wide range of cases, from warrantless wiretapping and torture to records of lobbyist Jack Abramoff’s visits to the White House. The Obama Justice Department likewise drew criticism by continuing to assert the privilege.  

In a statement released today, the Justice Department pledged that it “will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security” and promised “not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.”  

In order to ensure that the guidelines are followed, the new policy requires the Attorney General to personally approve use of the state secrets privilege. The Justice Department also pledged to report to Congress regarding the privilege and to “facilitate meaningful judicial scrutiny of the privilege assertions” by submitting evidence regarding invocation of the privilege to the judge evaluating the request.  

Open government activists expressed cautious optimism about the new policy. Gary D. Bass, executive director of OMB Watch, a nonprofit advocacy group that monitors government transparency, said in a statement that “[t]he spirit of this policy is consistent with open government recommendations endorsed by more than 350 organizations and individuals from across the political spectrum” in a November 2008 report submitted to the new administration. The Reporters Committee was among the organizations that signed on to the report.  

Senate Judiciary Committee Chairman Patrick Leahy, a cosponsor of a bill that would place additional limits on the use of the state secrets privilege, likewise commended Holder for the improvements. But Leahy added that he will monitor compliance with the new policy and remained “especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege.”