OPEN GOVERNMENT — The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege
used to block lawsuits for national security reasons. The practice was
a major flashpoint in the debate over the escalation of executive power
and secrecy during the Bush administration, notes Charlie Savage in the New York Times.

The new policy would require approval by Attorney General Eric H. Holder Jr.
if military or espionage agencies wanted to assert the privilege to
withhold classified evidence sought in court or to ask a judge to
dismiss a lawsuit at its onset.

“The department is adopting these
policies and procedures to strengthen public confidence that the U.S.
government will invoke the privilege in court only when genuine and
significant harm to national defense or foreign relations is at stake
and only to the extent necessary to safeguard those interests,” says a
draft of a memorandum from Mr. Holder laying out the policy and
obtained by The New York Times.

Under the Bush administration,
the Justice Department frequently asserted the state secrets privilege,
blocking lawsuits by people who claimed that they had been illegally
wiretapped or tortured as part of the government’s counterterrorism

After President Obama
took office, his administration pressed ahead with sweeping assertions
of the privilege as it handled legal appeals in the cases it inherited.
The decision alarmed some civil liberties groups and lawmakers, who
argued that the privilege concentrated too much power in the executive

Leading Democratic lawmakers in both the House and the
Senate have filed bills that would restrict how the privilege could be
used. The Obama administration has not taken a position on those bills,
but the new policy, which is intended to rein in use of the privilege
by erecting greater internal checks and balances against abuse, could
blunt momentum in Congress to pass legislation.

The bills would
encourage courts to find a way for lawsuits to continue, even if
particular documents or information must be withheld. They would also
require judges to take a more searching look at executive branch claims
that certain evidence cannot be used in court because its disclosure
would result in a “significant harm” to national security.

That requirement would be tougher than the current legal standard, which comes from a 1953 Supreme Court
decision approving the withholding of information whenever there is
“reasonable danger” of exposing information that should not be divulged
for national security reasons.
Generally, the administration’s
proposed policy echoes those review requirements, but it would put them
in the upper levels of the Justice Department.

Sean Moulton, Director for Federal Information Policy for OMBWatch, sent this reaction to interested parties:

Just wanted the endorsers and contributors of the Moving Toward a 21st Century Right-to-Know Agenda to have a heads up about the Obama administration new policy on state secrets that was released this morning. We are strongly supportive of this policy as it is consistent with our recommendations to Obama in the report.  We've posted several blog entries ( and on the new policy which I have tried to summarize below.

The new policy which takes effect on Oct. 1 does the following positive things:

1.  Establishes for the first time a govt-wide policy on state secrets privilege.
2.  Sets a new substantive standard for narrowing the scope of when the privilege can be invoked.
3.  Creates new procedures: the agency head must submit evidentiary material to the Assistant Attorney General; the AAG makes a recommendation based on the evidence which goes to a new State Secrets Review Panel; the panel's recommendation goes to the Deputy Attorney General for a recommendation, which goes to the AG who must make a personal determination.  In the past, a request was made to the AAG and it ended there; it also did not require evidentiary materials.
4.  Even when the privilege is exercised, the administration will refer matters to the IG of the agency where misconduct may be a part of the issue.
5.  The administration will notify Congress in periodic reports on use of the privilege.

This unexpected positive development, however, does have at least four flaws that we have identified:

1.  The standard for invoking state secrets is "significant harm" to national security.  But the term is not defined.  The many procedural safeguards should militate against misuse, but this is a weakness.  In practice this term wall be defined on a case by case situation.

2.  There is no judicial oversight.  The administration has said it will submit evidentiary material to justify its invocation of the privilege, but nothing in the DOJ memo says that.  Moreover, there is no provision to allow the judge in camera review of disputed documents.  This alone is reason to support legislation that is pending in Congress on state secrets.

3.  There is no audit of DOJ's actions.  There is no way to know how compliance with this policy is going.

4.  Doesn't apply to existing cases.  Even through the policy kicks in on Oct. 1, the administration has been clear it will not apply to existing cases.  There is a separate DOJ review of existing cases and there is a rumor that this policy will justify a shift on one case.

This a major step forward for the administration and pretty clear sign that they are willing to make serious efforts on government transparency.  It may not be everything we want, but it demonstrates that we have very real opportunities before us to push for major improvements.