Obama Tightens State Secrets Standard
New Policy May Affect Wiretap, Torture Suits
By Carrie Johnson
Washington Post Staff Writer
Wednesday, September 23, 2009 3:15 PM
The Obama administration on Wednesday announced a new policy making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping.
The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.
That claim was asserted dozens of times during the Bush administration, legal scholars said.
The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.
The heightened standard -- described in a memorandum issued by Attorney General Eric H. Holder Jr. -- is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy will take effect Oct. 1 and has been endorsed by federal intelligence agencies.
"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 in a statement. "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."
The policy, however, is unlikely to change the administration's approach in two high-profile cases, including one in San Francisco filed by an Islamic charity whose lawyers claim they were subjected to illegal government wiretapping. That dispute, involving the al-Haramain Islamic Foundation, provoked an outcry from the American Civil Liberties Union and other public policy groups this year after the Obama Justice Department followed the Bush strategy and asserted "state secrets" arguments to try to stop the case.
In a separate lawsuit filed by five men who say they were transported overseas to CIA "black site" prisons, where they underwent brutal interrogation, the U.S. Court of Appeals for the 9th Circuit this year criticized the Justice Department for making a sweeping argument to scuttle the case and keep even judges from reviewing materials.
To side with the government, the court ruling said, would mean that judges "should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."
In a news conference the day after the court's ruling, Obama told reporters that he thought the privilege was "overbroad" and could be curtailed.
"There are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety," the president said in late April. "But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument." Under the new approach, a team of career prosecutors must review and the attorney general must approve any assertions of the state secrets privilege before government lawyers can make that argument in court. Officials said the new policy will ensure that the secrecy arguments are more narrowly tailored and that they are not employed to hide violations of law, bureaucratic foul-ups or details that would embarrass government officials.
The policy will also severely limit the government's ability to claim that the very subject of some lawsuits should trigger the state secrets privilege, except when necessary to protect against the risk of significant harm.
It is unclear how the new policy will affect pending legislation on Capitol Hill, where Democrats in the House and Senate Judiciary committees have introduced bills that would give judges more authority to sift through sensitive evidence when the government has invoked the legal privilege. The legislation would raise the standard for state secrets to instances when the release of material "would be reasonably likely to cause significant harm to the national defense or the diplomatic relations of the United States."
That standard closely tracks language in Holder's memo.
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), a co-sponsor of one state secrets bill, said reforms are a "priority . . . to bring a greater degree of transparency and accountability to a process that has been shrouded in secrecy."
The Justice Department officials said Tuesday that their agency would give regular reports on their use of the state secrets privilege to oversight committees on Capitol Hill and that the attorney general would pass along "credible" allegations of wrongdoing by government agencies or officials to watchdogs at the appropriate agencies, even if the administration had decided to invoke the legal privilege in sensitive cases.
The new policy was welcomed by Gary Bass, executive director of OMB Watch, a nonprofit that promotes government transparency. He said it was "enormously consistent with open-government recommendations" from himself and other advocates.
Since February, a Justice Department task force of eight lawyers has been sifting through about a dozen pending cases in which state secrets arguments have been made.
So far, they have reversed course in only one lawsuit -- a bizarre case in federal court in the District in which a former agent for the Drug Enforcement Administration accuses the State Department and the CIA of installing listening devices in a coffee table in his home.