Justice Department Defends Use of State Secrets Privilege

“The Government has invoked the state secrets privilege sparingly and appropriately,” the Department of Justice said in a 2011 report to Congress that was released this week.

The 8 page report describes the features of the internal process for determining whether to assert the state secrets privilege in a particular case, including the standards and procedures for validating the use of the privilege.

“The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege,” the report stated. “The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”

Furthermore, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”

The report provides a summary of two cases in which the state secrets privilege was asserted, Shubert v. Obama and Al-Aulaqi v. Obama.

The Justice Department report to the Senate Judiciary Committee on the state secrets privilege was transmitted to Congress on April 29, 2011, but it does not seem to have been made public before now.

The 2011 report is described as “the first periodic report to congressional committees” on state secrets cases.  “The Department will provide future reports on a periodic basis regarding cases in which the Government has invoked the privilege on behalf of departments or agencies, explaining the basis for the decision in each case.”

But a Justice Department official said this morning that there have been no subsequent reports to date.