12 Days of Open Government Resolutions – Day 9: States Secrets Cases Referred to IGs

Each post in the series of posts we plan to publish between now and December 25 focuses on a resolution the Obama Administration realistically can use to make the federal government more open and accountable in the coming year. See below for links to previous resolutions.

Open Government Resolution 9 for the Obama Administration – Release the number of cases cut off from the courts by the use of the states secret privilege that were referred to agency IGs

In September 2009 Attorney General Holder announced a new State Secrets policy that we and others in the openness and accountability community welcomed as an important step towards placing some much needed checks and balances on the use of the privilege. Even as we cheered the announcement, though, we noted that critical questions remained about how the policy would be implemented.

In at least one important way, groups that monitor the government's use of the privilege say that the Administration is not implementing its policy. The policy requires DOJ, when invocation of the state secrets privilege prevents a lawsuit from proceeding, to make referrals for further investigation of credible allegations of government wrongdoing to the Inspector General (IG) of the appropriate department or agency with oversight. This referral, while not a substitute for civil litigation of valid claims, does enable the IG to document and expose government wrongdoing, and prescribe corrective actions. Thus far, there is no evidence a single claim has been referred for IG review.

At a bare minimum, the Administration should release the aggregate number of cases that were cut off from litigation in court by the invocation of the State Secrets privilege and that were referred to the relevant IG.

12 Days of Open Government Resolutions for the Obama Administration:

Resolution 1: Begin gathering public input for Version 2 of the US National Action Plan

Resolution 2: Make it easier for the public to track agencies’ open government work

Resolution 3: Encourage Agencies to Join FOIAOnline

Resolution 4: Direct Agencies to Update their FOIA Regulations

Resolution 5: Direct agencies to make all Reports to Congress and Communications with Members of Congress available in a central location on the agency website

Resolution 6: Direct all agencies that collect electronic visitor records to make them available to the public in an easy-to-search and downloadable format

Resolution 7: Direct agencies to make enough information available so that the public can have an informed opinion of what is "high-value" data

Resolution 8: Set up the White House-led classification Steering Committee recommended in the PIDB report

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