Attorney General Eric Holder Jr. has reset the procedures for invoking the state secrets privilege, responding to criticisms that the Justice Department in recent years has resorted to the privilege too often.
The new procedures, which have been months in the making, will require the attorney general’s personal approval before Justice Department lawyers invoke the privilege. They also call for a “sufficient showing” that release of information “reasonably could be expected to cause significant harm to the national defense or foreign relations” of the United States.
“The Department is adopting these policies and procedures to strengthen public confidence,” Holder wrote in a memo today. Click here (pdf) for a copy.
Holder’s proposal could head off an effort by Congress to legislate restrictions on the privilege. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, has sponsored legislation to do just that, but he held off acting on his bill this summer in order to give Holder time to finalize an internal Justice Department plan.
Within minutes of the plan’s release, Leahy’s office sent out a statement largely supporting it. The new policies “bring a higher degree of transparency and accountability to a process previously shrouded in darkness,” said Leahy (D-Vt.). But, he added, Congress will have to monitor how the policies work and whether the government makes a “substantial evidentiary showing” when it invokes the privilege.
Holder’s memo promises periodic reports to Congress, and it sets out a procedure for invoking the privilege that would involve a large chunk of the Justice Department leadership. A State Secrets Review Committee “consisting of senior Department of Justice officials designated by the Attorney General” would make a recommendation to the deputy attorney general after an evaluation, and the deputy attorney general would then make a recommendation to the attorney general.