A Problematic New Policy on State Secrets

09.24.09 | 3 min read | Text by Steven Aftergood

The Department of Justice yesterday released its long-awaited new policy on the state secrets privilege, which the government uses in litigation to withhold evidence when it believes that disclosure would harm national security.  The new policy, presented in a memorandum from the Attorney General, includes procedural and substantive changes to current practice.  But it reserves decisions over the exercise of the privilege to the executive branch, and it appears to have garbled its treatment of judicial review.

See “Policies and Procedures Governing Invocation of the State Secrets Privilege” (pdf), memorandum from the Attorney General, September 23.

The new policy specifies that the use of the state secrets privilege must be supported by an evidentiary record that justifies its use and demonstrates that it is necessary in order to avoid “significant harm” to the national security.  A recommendation to invoke the privilege must be reviewed by senior Justice Department officials, and approved by the Attorney General.  The policy also provides for Inspector General review of claims of government wrongdoing when adjudication of those claims is prevented by the privilege.

Collectively, these measures “will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible,” said Attorney General Eric Holder.

Perhaps unsurprisingly, the new policy, which will take effect on October 1, would preserve executive branch discretion over the use of the state secrets privilege.

More surprisingly, the policy seems to have fumbled the question of judicial review.  A Justice Department news release about the Attorney General’s memorandum declared promisingly that “in order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence [justifying the privilege] to the court for review.”

But strangely, the memorandum itself says no such thing (as noted by Bill Leonard).  Questioned about the discrepancy, a Justice Department official said yesterday that the intent to submit the evidentiary record to the court for review, though left unstated by the Attorney General, was “a necessary inference” and he said that it would be done “in every case.”  Maybe so.

Internal executive branch procedures to limit official secrecy are not inherently futile or self-serving.  The Interagency Security Classification Appeals Panel, an executive branch body which reviews appeals of mandatory declassification review requests that were denied, has actually been more effective than any court in combating overclassification.  To the surprise of everyone involved, it has overturned the classification of information in a majority of the cases presented to it since 1996.

More often, however, independent review from outside the executive branch plays an essential role in identifying and reconciling competing interests in secrecy and disclosure.

In a practice that is closely analogous to the new state secrets policy, the Justice Department is supposed to conduct its own evaluation of agency denials of Freedom of Information Act requests and to defend agencies in court only when the denied information is clearly exempt from disclosure under FOIA.  If such evaluations were reliably performed, and if only proper agency denials of FOIA requests were ever defended, then the government should never lose a FOIA case.  Yet we know that that is not what happens.  Courts rule against the government in FOIA cases with some regularity, despite the fact that the Justice Department says it only supports cases where the government position is the legally “correct” one.

In the same way, and for the same reason, the executive branch cannot reasonably be expected to serve as the sole and final arbiter of the proper use of the state secrets privilege.

“While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us’,” said Sen. Russ Feingold (D-WI)  “Independent court review of the government’s use of the state secrets privilege is essential.  I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”