The Good News

The Department of Justice is looking to rollback the overuse of the state secrets privilege.

Some of the changes are vaguely worded and do not appear to be likely to impose all that much of a constraining effect. Announcements that the DOJ “commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials” and “commits to provide periodic reports on all cases in which the privilege is asserted to the appropriate oversight Committees in Congress” sound good, but are pretty hollow of content.

But two of the changes do appear to be significant. First is the shift to a “significant harm” standard. Under United States v. Reynolds, the Supreme Court found that the federal government was entitled to invoke the state secrets privilege if, “from all circumstances of the case, […] there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” 345 U.S. 1, 10 (1953). Under the new DOJ policy, which will go into effect October 1, 2009, “the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.”

The second important policy change is that any invocation of the privilege will have to be made at the highest level of the DOJ, by the Attorney General himself. This is a good move. Any “state secret privilege” should only be brought into play in extreme circumstances, and should not be entered into casually. The AG is one step removed from the President himself, and hopefully this will lead to a greater degree of accountability in the process.

Then again, if I were going to be extremely cynical, I would suggest to you that the Executive Branch is only adopting this new policy — which is modest in scope — as a preemptive measure, to ensure that the Legislative Branch does not usurp control over reforming the state secrets privilege. But this is Washington, D.C., why would anyone be cynical here?

-Susan

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