The Department of Justice yesterday released its long-awaited new policy on the state secrets privilege, which the government uses in litigation to withhold evidence when it believes that disclosure would harm national security. The new policy, presented in a memorandum from the Attorney General, includes procedural and substantive changes to current practice. But it reserves decisions over the exercise of the privilege to the executive branch, and it appears to have garbled its treatment of judicial review.
See “Policies and Procedures Governing Invocation of the State Secrets Privilege” (pdf), memorandum from the Attorney General, September 23.
The new policy specifies that the use of the state secrets privilege must be supported by an evidentiary record that justifies its use and demonstrates that it is necessary in order to avoid “significant harm” to the national security. A recommendation to invoke the privilege must be reviewed by senior Justice Department officials, and approved by the Attorney General. The policy also provides for Inspector General review of claims of government wrongdoing when adjudication of those claims is prevented by the privilege.
Collectively, these measures “will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible,” said Attorney General Eric Holder.
Perhaps unsurprisingly, the new policy, which will take effect on October 1, would preserve executive branch discretion over the use of the state secrets privilege.
