Holder Unveils New Policy on State Secrets Privilege

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.

The procedures are set to take effect Oct. 1, months after Holder told Congress to expect them. The New York Times and The Washington Post previewed the release of the procedures this morning.

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.

Comments

[Mark S. Zaid]

I've litigated several state secrets cases and frequently handle lawsuits involving classified information. The Holder memo is nothing but window dressing for an open wound that is used to inflict gangrene on those who dare challenge governmental misconduct. While it does purport to create additional levels of review, it fails to modify in any significant way the actual standard that is applied thereby neutralizing any true impact. Nor does it grant any type of access or right sto plaintiffs' lawyers who hold security clearances or who already possessed authorized access to some or even all of the relevant classified information.

[Dick]

That should make us all feel better, knowing that Eric Holder will protect our freedoms. Whenever I hear of a new special investigation or special committee, I think of their synonym, "whitewash."

[D. Rosenthal]

Some things should never be made public-hence all those rubber stamps that say 'confidential' 'top secret' 'classified', etc.
Most often, these documents, revealed under the ploy of the public's right to know, have actually been used for sensationalism or to smear someone's opponent. The idea of putting even more power to override a secret designation into the hands of a political appointee is beyond ludicrous!