Obama Administration Issues New State Secrets Guidelines

This week, Attorney General Eric Holder issued a memorandum instituting new Department of Justice policies and procedures making it more difficult for the government to assert the state secrets privilege in litigation. The state secrets privilege allows the executive branch to block discovery in civil litigation when the government believes that there is an unacceptable risk of disclosure of sensitive national security information.

In the past, critics have charged both the Obama and Bush administrations with abusing the use of the state secrets privilege in a broad range of national security litigation.

The new policy and procedures take effect October 1, 2009. The Attorney General’s memorandum outlines several aspects of the new administrative process that increases accountability and oversight, including:

Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.

Significant Harm Standard – The policy adopts a more rigorous standard to govern when the Department will defend assertions of the state secrets privilege in new cases. Under the new policy, the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.

Narrow Tailoring of Privilege Assertions – Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case. As part of this policy, the Department also commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.

State Secrets Review Committee – A State Secrets Review Committee will be formed consisting of senior Department officials designated by the Attorney General who will evaluate any recommendation by the Assistant Attorney General of the relevant Division to invoke the privilege. The Committee would make its recommendation to the Associate Attorney General, who would review and refer to the Deputy Attorney General for a final recommendation to the Attorney General or his designee.

Approval by the Attorney General – The policy requires the approval of the Attorney General prior to the invocation of the states secret privilege, except when the Attorney General is recused or unavailable. Previously, the invocation of the state secrets privilege could be approved by the appropriate Assistant Attorney General.

Referral to Inspectors General – The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward.

Under the policy, the Justice Department will provide periodic reports on all cases in which the privilege is asserted to the appropriate oversight Committees in Congress.