New State Secrets Policy Yields Familiar Result

11.04.09 | 2 min read | Text by Steven Aftergood

The government’s proposed use of the state secrets privilege in a pending lawsuit was reviewed under the new state secrets policy that was established in September to limit use of the privilege, Attorney General Eric Holder announced on October 30.  But upon review the government decided that it was necessary and appropriate to assert the privilege anyway.  Furthermore, the government did not merely seek to withhold particular items of evidence from disclosure in the case, Shubert v. USA, but sought to terminate the proceeding altogether (pdf).

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so,” Attorney General Holder said.  “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” he said.

With one exception, the Attorney General cited the various steps that had been prescribed under the new policy to ensure the proper use of the privilege, including formation of a review committee, facilitation of court review, and personal approval by the attorney general.

But one aspect of the new policy that he did not address was the question of referral of the alleged misconduct to an agency inspector general for investigation. The policy (pdf) specifies that such a referral is supposed to occur whenever “invocation of the privilege would preclude adjudication of particular claims,” as it is poised to do in this case, and when the “case raises credible allegations of government wrongdoing.”  The plaintiffs in the case allege that their communications were subject to unlawful “dragnet” collection by the National Security Agency.  Somewhat artfully, the government denies that any such collection occurred “under the Terrorist Surveillance Program,” implicitly allowing for the possibility that it may have occurred under some other framework.

Another pending state secrets case brought by former DEA agent Richard Horn appears to have reached a settlement, with the government agreeing to pay the plaintiff $3 million, reported Josh Gerstein in Politico.

The Collaboration on Government Secrecy at American University’s Washington College of Law will hold a conference on “The State of the State Secrets Privilege” (pdf) on November 18.