WASHINGTON - September 23 - Today, the Obama Administration is expected to implement a new policy to rightfully require a higher standard of proof and more extensive internal review before the government asserts the state secrets privilege to protect sensitive national security information. Human Rights First welcomes the expected policy change as an important step forward, and urges Congress to codify reforms in legislation and ensure proper judicial review of executive branch decision-making in this area.

“The administration’s policy reform is a welcomed improvement and will help to ensure that the state secrets privilege is not abused. Now Congress must do its part and act on pending legislation to ensure an appropriate balance of powers on national security matters,” said Devon Chaffee, counsel for Human Rights First. “Legislation is needed to mandate greater transparency and to restore the proper role of the courts as a check on executive power— not only for this administration, but for future administrations.”

The states secret privilege is a common-law rule that allows the government to block the discovery of information when it believes disclosure would harm national security.  Since September 11, 2001, the government has invoked the state secrets privilege in cases challenging extraordinary rendition, torture and warrantless domestic surveillance - seeking dismissals of these lawsuits at the pleadings stage before any evidence is requested or produced.  Many courts have accepted the government’s claims of risk to national security without independently reviewing the information itself in order to assess whether the information could be disclosed without undue risk, or whether lawsuits may proceed without it.

Human Rights First has maintained that this practice has perpetuated a culture of unchecked executive power on national security and undermined the right of individuals to seek and obtain remedies for human rights violations resulting from government misconduct. To address this concern, the group has voiced support for pending legislation that would require courts to independently examine the information for which the government asserts a privilege and decide whether disclosure of the information would pose an unreasonable risk to national security. In February, Human Rights First sent a letter in support of the House and Senate versions of the State Secret Act.