Govt Defends Use of State Secrets Privilege

The government’s assertion of the state secrets privilege in a pending lawsuit brought by a former Drug Enforcement Administration agent will not be affected by the new Attorney General policy limiting the use of the privilege, the Justice Department said last week, because it is already in compliance with the new policy.

In a September 24 appellate brief (pdf) in the case of Horn v. Huddle, Justice Department attorneys urged an appeals court to overturn a lower court ruling that would authorize the parties in the lawsuit to disclose classified information to their attorneys. The Department also defended its use of the state secrets privilege.

An August 26 ruling in the case held that the parties’ counsel had a “need to know” the classified information possessed by their clients, and the court therefore directed the government to authorize the sharing of that information.

The government immediately objected. “The district court’s extraordinary order — compelling the government to grant security clearances and to authorize disclosure of classified national security information to private counsel… — unnecessarily usurps the Executive Branch’s authority and responsibility to protect from disclosure classified national security information as to which the state secrets privilege has been invoked,” the government argued in its September 24 brief.

The government also declared that the Attorney General’s new policy limiting the use of the state secrets privilege, which takes effect on October 1, would have no impact on the present case.

“The assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is warranted,” the government brief stated.