new policy regarding assertions of the state secrets privilege

* Memorandum from Attorney General Holder, “Policies and Procedures Governing Invocation of the State Secrets Privilege” (Sep. 23, 2009)

The Justice Department today is announcing a new policy governing invocations of the state secrets privilege.  The four-page memorandum detailing the policy is attached, and the press release summarizing it more briefly appears below.  In brief, the policy entails both substantive and process changes, the general thrust of which are to deter unwarranted and overbroad invocations of the privilege while still preserving the availability of the privilege for use in appropriate cases. To wit:

Substance: A huge question, perhaps the biggest question, in any privilege case is whether public disclosure of the information at issue would in fact be harmful to security.   How harmful, one might ask?  Caselaw does not address that question of degree with much clarity, leaving open the possibility that the standard is very undemanding – perhaps even marginal harms would do.  The new policy, however, voluntarily adopts a “significant” harm standard.

Substance: The policy expressly precludes invocations of the privilege motivated not by a desire to protect against “significant harm” but instead by a desire to prevent disclosure of embarrassing or even illegal behavior.  It does not seem to me that this means that the government will decline to invoke the privilege whenever a plaintiff alleges that a covert action program is unlawful, of course, but rather that such an invocation will be permitted only if public disclosure of that program would indeed risk significant harm to national security.   It may be, then, that this aspect of the policy will end up having the most bite with respect to relatively low-profile matters such as internal employment disputes within the Intelligence Community….

Process: The new policy expressly contemplates screening in an effort to ensure that the assertion of the privilege will be no more sweeping than strictly necessary.  As far as I can tell this does not mean that the government will never seek dismissal of a suit rather than, say, withholding of a specific item of evidence, but it does indicate reluctance to take that step.

Process: Some folks think process is not that important, in which case they won’t be impressed by this next point.  I think it actually is quite important, though, and so I think the biggest change might be this one: the new policy calls for multi-tiered DOJ review at high levels before the civil division may invoke the privilege on behalf of an agency.  Specifically, the request to invoke the privilege must be vetted by a special committee tasked with this responsibility, as well as the DAG and the AG themselves.  Some commentators have dismissed this as window-dressing, but I think it will have a significant tendency to limit inappropriate or marginal privilege claims.

Process: If the AG finds the suit at issue to involve credible allegations of misconduct, the AG must refer the matter to the relevant agency’s inspector general.  Again, this is an important procedural safeguard.

Process: Reporting to Congress – DOJ will be collecting at least some kind of data on privilege invocations and passing the data along to Congress.

For more on the privilege – particularly if you want to understand its origins and the nature of the debates surrounding it – I will shamelessly direct you to my own paper on the topic, here.

The press release:

FOR IMMEDIATE RELEASE

WEDNESDAY, SEPTEMBER 23, 2009                                                       (202) 514-2007

WWW.USDOJ.GOV TDD (202) 514-1888

ATTORNEY GENERAL ESTABLISHES NEW STATE SECRETS POLICIES AND PROCEDURES

WASHINGTON — Attorney General Eric Holder today issued a memorandum instituting new Department of Justice policies and procedures in order to ensure greater accountability in the government’s assertion of the state secrets privilege in litigation.

“This policy is an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security,” Holder said. “It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

Earlier this year, Attorney General Holder ordered senior Justice officials to conduct a review of the Department’s existing state secrets policies and procedures, including an internal evaluation of the pending cases in which the privilege had been invoked. The results of that internal review were shared with an interagency group comprised of officials from the Department and the intelligence community, which provided input into the formulation of the new policies and procedures. The new policy and procedures take effect October 1, 2009.

The Attorney General’s memorandum outlines several aspects of the new administrative process that increases accountability and oversight, including:

Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.

Significant Harm Standard – The policy adopts a more rigorous standard to govern when the Department will defend assertions of the state secrets privilege in new cases. Under the new policy, the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.

Narrow Tailoring of Privilege Assertions – Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case. As part of this policy, the Department also commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials.

State Secrets Review Committee – A State Secrets Review Committee will be formed consisting of senior Department officials designated by the Attorney General who will evaluate any recommendation by the Assistant Attorney General of the relevant Division to invoke the privilege. The Committee would make its recommendation to the Associate Attorney General, who would review and refer to the Deputy Attorney General for a final recommendation to the Attorney General or his designee.

Approval by the Attorney General — The policy requires the approval of the Attorney General prior to the invocation of the states secret privilege, except when the Attorney General is recused or unavailable. Previously, the invocation of the state secrets privilege could be approved by the appropriate Assistant Attorney General

Referral to Inspectors General. The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward.

Under the policy, the Department also commits to provide periodic reports on all cases in which the privilege is asserted to the appropriate oversight Committees in Congress.

The Attorney General’s memorandum is attached.

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