New state secrets policy is first step towards legislation to check executive discretion in blocking litigation

Sharon Bradford Franklin [Senior Counsel, The Constitution Project]: "On September 23, 2009, Attorney General Eric Holder announced that the executive branch has adopted a new policy on invocation of the state secrets privilege - a doctrine which protects against disclosure of national security secrets in litigation. The new policy tightens the standards for when executive agencies may assert the state secrets privilege, requires multiple levels of agency and Justice Department review before such a determination is made, and provides for increased reporting to Congress and agency Inspectors General. The new policy is a welcome development and an important step toward reforming the state secrets doctrine. However, it is only a first step, and legislation is still needed to protect the role of the courts in determining whether the state secrets privilege properly applies in given cases.

Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition. In such cases, both administrations have even claimed that the "very subject matter" of the lawsuit is a state secret. Both have sought to have these cases dismissed outright, without any review by an independent judge to determine whether there is enough non-privileged evidence for the cases to proceed.

The administration's new policy represents a long overdue change in how the executive branch approaches cases involving national security issues. In addition to the more rigorous standards and procedures for invoking the state secrets privilege, the policy indicates a move toward focusing on the evidence at issue in a case, rather than claiming the very subject matter of a suit is a state secret. Further, the attorney general's new more stringent standard for when the privilege may be asserted is very similar to the standard of review contained in bills pending before both the House and Senate (the State Secrets Protection Act, H.R. 984 and S. 417).

It is still critical, however, that Congress enact legislation to ensure that we properly safeguard actual national security secrets while permitting litigation to proceed wherever possible. Passage of legislation would ensure that the new standard of review announced in the attorney general's memorandum is codified into law, and it would provide guidance to courts on the tools available to them in reviewing state secrets claims. For example, the new executive policy is silent on whether the Justice Department will consent to a hearing - conducted in camera (in judges' chambers) - to enable judges to independently review the evidence asserted to be privileged in order to assess state secrets claims and whether there is sufficient non-privileged evidence available to enable a case to move forward. The State Secrets Protection Act bills pending in Congress would provide for such hearings, and would also establish a judicial process for developing non-privileged substitutes for evidence that does contain national security secrets.

The attorney general's announcement yesterday should not end debate on this matter, but rather, demonstrate that it is now Congress' turn to take the next step. Congress should act to ensure that the new tighter standards are codified, and to establish procedures that will protect the role of courts as an independent check on executive discretion."

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