The More Things Change the More They Stay the Same? State Secrets

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 and  judicial review of claims was still necessary. More than two years into the policy's implementation, we are beginning to get a sense of some of those answers. And it does not look good for open and accountable government.

Implementation

• 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 to make referrals to the Inspector General (IG) of the appropriate department or agency with oversight for further investigation of credible allegations of government wrongdoing when the state secrets privilege prevents a lawsuit from proceeding.  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.

Judicial Review

• Although officials in the Justice Department have repeatedly claimed evidence is being turned over to courts, attorneys involved in the cases see little evidence that this is the case. The Attorney General should direct Department attorneys to turn over all evidence claimed to be privileged to the judge for in camera review and an independent assessment as to whether the privilege properly applies. To the extent that DOJ asserts it already follows this procedure, the memorandum should be updated to reflect this policy.

Simply put, the Obama Administration has a lot of work to do before its use of the State Secrets privilege meets up with the President's commitment to creating an unprecedented level of open and accountable government.

Given that the Administration's policy has not made any discernible difference in the way this Administration views and uses the privilege compared to the previous Administration, it may indeed take an act of Congress to place meaningful limits on its use. Proposals to reform the use of the privilege to ensure basic civil liberties are not easily swept aside due to overbroad claims of secrecy have been introduced during the last few sessions of Congress (most recently Representative Nadler introduced the House version of a bill this past week). Such proposals have yet to draw broad support in either Chamber,  however.

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