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DOJ announces state secrets reform policies

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] US Attorney General Eric Holder on Wednesday announced new state secrets policies, seeking to establish greater government accountability and oversight. The new procedures and policies, set to take effect on October 1, are aimed at strengthening public confidence by limiting invocation of the state secrets privilege to instances where "genuine and significant harm to national defense or foreign relations is at stake." The new policies require approval by the attorney general and review by a committee comprised of senior Department of Justice (DOJ) officials. Additionally, the policies call for oversight by Congressional committees. The DOJ pledged not to invoke the privilege to conceal government wrongdoing or to avoid embarrassment. Holder called the new policies an "important step toward rebuilding the public's trust" while recognizing the importance of national security. The Constitution Project, which has previously called for state secrets reform, applauded the new policies but called for Congress to pass legislation to clarify that the judicial branch has the authority to determine what evidence is subject to the privilege. The American Civil Liberties Union (ACLU) also called for legislative reform to reflect the new policies, maintaining that an outside check on the executive branch is needed. The State Secret Protection Act of 2009, currently under consideration, aims at narrowing the application of the privilege. The state secrets privilege, which allows the exclusion of evidence based on a government affidavit that such evidence may endanger national security, has been highly criticized by rights groups and others. Earlier this month, OpenTheGovernment.org released a report examining the privilege and other transparency issues, concluding that the current administration has improved transparency, but more should be done. In February, the Obama administration reasserted the state secrets privilege in a lawsuit over CIA rendition flights, drawing criticism from advocacy groups including the ACLU. The DOJ is currently seeking an en banc rehearing of the case, in which the US Court of Appeals for the Ninth Circuit ruled that the state secrets privilege does not bar a lawsuit against a company that allegedly provided logistical support for the flights.

Full post as published by JURIST - The Paper Chase on September 24, 2009 (boomark / email).