Holder Announces DOJ Policies re: State Secrets Privilege

Attorney General Eric Holder today released new policies and procedures for the Department of Justice regarding the invocation of the state secrets privilege in litigation. The policies go into effect on October 1.

The policies are designed to "strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Under the new policies, the Justice Department will not defend an assertion of the privilege from a government department or agency without the personal approval of the Attorney General. It also establishes a State Secrets Review Committee comprised of senior DOJ officials designated by the Attorney General.

When seeking to invoke the privilege, the department or agency must make a sufficient showing that the privilege is necessary to protect information that could lead to significant harm to national defense or foreign relations.

The new policies announce that the Justice Department will not invoke the privilege to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment; to restrain competition; or to delay the release of information undeserving of the state secrets privilege.

More from the Washington Post here and The Hill here.

Looming test for Obama

The Obama administration has not yet revealed whether it supports a Congressional bill that would limit its ability to stop a lawsuit through state secrets claims, NPR reported. Vice President Joe Bident co-sponsored a similar bill last year in the Senate.

President Obama came to the White House promising a new era of openness in government. On his first full day in office he said, "The way to make government responsible is to hold it accountable, and the way to make government accountable is to make it transparent." Now, some activists say, he has not done enough to keep that promise on the national security front.

A major test of the Obama administration's openness on national security issues is coming on Thursday. The Justice Department faces a court-imposed deadline to say whether it will release some controversial classified memos from the Bush administration.

In an interview last week on CBS, Attorney General Eric Holder told Katie Couric, "This is a very transparent administration. This is going to be a very transparent Justice Department, but I'm not going to sacrifice the safety of the American people or our ability to protect the American homeland, and that is first and foremost."

More here.

Obama contradiction leads to bill

The Obama administration ruffled quite a few feathers by taking the same position as former President Bush on an issue involving government secrecy and torture, two positions Obama condemned upon entering office. Now legislation has been filed to limit the use of the "state secrets" privilege, the Boston Globe reported. Senate Judiciary Committee Chairman Patrick Leahy said the bill "does not restrict the government's ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation."

House and Senate committees yesterday introduced bills that would sharply curtail the government's use of the "state secrets" privilege, a policy used by President Bush to argue that a lawsuit involving allegations of torture should be dismissed - and a position that the Obama administration has now adopted.

Drafted and filed separately by the House and Senate Judiciary committees, the legislation was filed just days after Justice Department lawyers working for the new administration told a federal appeals court that its position did not differ from the Bush administration's: the court should throw out a lawsuit that accuses Jeppesen Inc., of helping the CIA secretly transport five terrorism suspects overseas for harsh interrogations, on the grounds that the suit involved state secrets that, if revealed, could jeopardize national security.

More here.