A newly disclosed U.S. Army memorandum (pdf) from 2001 describes the procedures that the Department of Defense must follow to invoke the state secrets privilege, from identifying the information at issue to preparing the required declarations to support the claim of privilege.
“These guidelines are intended to provide an instructive road-map for addressing the common procedural and substantive requirements associated with an invocation of the state secrets privilege,” the memorandum states.
See “Practical Guidelines for Invoking the State Secrets Privilege,” U.S. Army Memorandum for File, April 24, 2001.
The three page memorandum was obtained under the Freedom of Information Act by the James Madison Project. “The document offers some insight into a process that was otherwise completely secretive,” said attorney Mark S. Zaid, director of the Project.
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