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DOJ announces state secrets reform policies

[JURIST] US Attorney General Eric Holder [official profile] on Wednesday announced [memorandum, PDF] new state secrets [JURIST news archive] policies, seeking to establish greater government accountability and oversight. The new procedures and policies, set to take effect on October 1, are aimed at strengthening public confidence by limiting invocation of the state secrets privilege to instances where "genuine and significant harm to national defense or foreign relations is at stake." The new policies require approval by the attorney general and review by a committee comprised of senior Department of Justice (DOJ) officials. Additionally, the policies call for oversight by Congressional committees. The DOJ pledged [press release] not to invoke the privilege to conceal government wrongdoing or to avoid embarrassment. Holder called the new policies an "important step toward rebuilding the public's trust" while recognizing the importance of national security. The Constitution Project [advocacy website], which has previously called for [letter, PDF] state secrets reform, applauded the new policies [press release] but called for Congress to pass legislation to clarify that the judicial branch has the authority to determine what evidence is subject to the privilege. The American Civil Liberties Union (ACLU) [advocacy website] also called for legislative reform [press release] to reflect the new policies, maintaining that an outside check on the executive branch is needed. The State Secret Protection Act of 2009 [HR 984 materials], currently under consideration, aims at narrowing the application of the privilege.

The state secrets privilege, which allows the exclusion of evidence based on a government affidavit that such evidence may endanger national security, has been highly criticized by rights groups and others. Earlier this month, OpenTheGovernment.org [advocacy website] released a report [text, PDF] examining the privilege and other transparency issues, concluding that the current administration has improved transparency [JURIST report], but more should be done. In February, the Obama administration reasserted the state secrets privilege [JURIST report] in a lawsuit over CIA rendition flights, drawing criticism from advocacy groups including the ACLU. The DOJ is currently seeking an en banc rehearing of the case, in which the US Court of Appeals for the Ninth Circuit ruled [JURIST reports] that the state secrets privilege does not bar a lawsuit against a company that allegedly provided logistical support for the flights.

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