The state secrets privilege

From the Winter 2009 issue of The News Media & The Law, page 10.

Attorney General Eric Holder has ordered the Department of Justice to review all cases where it has invoked the state secrets privilege, a controversial privilege that allows courts to dismiss cases that may endanger national security. But in the meantime, Justice Department lawyers have continued to assert the privilege.

According to a statement from Justice Department spokesman Matt Miller, Holder “has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations.” Miller added that “[t]he Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know.”

But the new administration on February 9 passed up its first opportunity to reverse course on the privilege, telling a San Francisco federal court that it still planned to invoke the privilege in a case known as Mohamed et al v. Jeppesen Dataplan. In that case, plaintiffs allege that a unit of Boeing Co. participated in the “extraordinary rendition” program by flying people to countries where they were allegedly tortured.

A New York Times editorial sharply criticized the Justice Department’s decision, saying “[v]oters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.”