Constitution Project Applauds First Steps in New State Secrets Policy

Attorney General Eric Holder announced today a new policy tightening
the standards for when executive agencies may assert the state secrets
privilege to prevent disclosure of national security secrets in
litigation. The announcement marks a shift in policy away from the
broad assertions of secrecy previously made by both the Bush and Obama
administrations in such cases. The Constitution Project welcomes
today's announcement by the Department of Justice as an important first
step in the right direction, defining and limiting the ability of the
executive branch to assert the privilege. However, the Constitution
Project calls on the administration and Congress to support legislation
to protect and clarify the role of the courts in determining whether
the state secrets privilege properly applies in given cases.

In a memorandum to the heads of all executive branch departments
and agencies, Attorney General Holder laid out the procedures for new
assertions of the state secrets privilege, providing a much-needed
higher standard for assertion of the privilege and for important
multiple reviews and approvals before final sign off from the attorney
general. To prevent the reoccurrence of past abuses, Holder
specifically said the privilege would not be used to "conceal
violations of the law, inefficiency or administrative error" or to
prevent embarrassment of government officials. Recognizing the
appropriate role of the legislative branch, the policy requires regular
reports to Congress on the use of the assertion, and also provides that
if the government asserts the privilege but the case raises credible
allegations of government wrongdoing, the Justice Department will refer
those cases to the relevant agency's Inspector General for
investigation.

The following may be attributed to Sharon Bradford Franklin, Senior Counsel for the Constitution Project:

"The Obama administration has taken a significant and
commendable first step in reining in the overbroad assertions of
secrecy that have too often blocked litigation of cases involving
national security policies. We welcome this new policy establishing
tighter standards, a thorough review process, and increased oversight
by Congress and Inspectors General. However, much work remains to
safeguard the role of courts in evaluating the evidence to determine
the validity of the government's claim for the need for secrecy. We
call on Congress to promptly pass legislation to clarify that judges,
and not the executive branch, have the final say about whether disputed
evidence is subject to the privilege."

In February, just before oral arguments in Mohamed v. Jeppesen
Dataplan, the Constitution Project called on Attorney General Holder to
reverse the position taken by the Bush administration in this case, and
to consent to having the trial judge review the evidence claimed to be
secret and determine whether enough non-privileged evidence is
available for the case to proceed. To see the letter sent to the
attorney general, go to: https://www.constitutionproject.org/pdf/Letter_to_Holder_Regarding_Mohamed_v_Jeppesen_Dataplan.pdf

In 2007, the Constitution Project released a report signed by a
broad bipartisan coalition that endorsed reforming the state secrets
privilege. The report is available at: https://www.constitutionproject.org/manage/file/52.pdf