September 24, 2009
The "New" State Secrets Privilege: What Changed, and What Didn't
Attorney General Eric Holder yesterday announced new policies and procedures for the administration's invocation of the state secrets privilege. The DOJ press release is here; Holder's memo for department heads is here. (Thanks to Walt Kendall for the heads-up.)
Recall that the Obama administration surprisingly reasserted the same sweeping state secrets privilege that the Bush administration asserted in the Ninth Circuit case challenging the former administration's extraordinary rendition program, Mohammed v. Jeppesen Dataplan, Inc. The administrations intervened in the case to move for dismissal on the pleadings, asserting that the state secrets privilege--a constitutional privilege, they argued, and not a mere evidentiary privilege--prevented the courts from entertaining the complaint. When a three-judge panel of the Ninth Circuit ruled against the Obama administration this spring, the administration filed for en banc review. (My interview with Mohammed's ACLU attorney Ben Wizner is here.)
In the wake of all this, Holder's memo yesterday sought to rein in the government's use of the privilege. Holder's memo establishes new internal procedures for DOJ review of administration assertions of the state secrets privilege, sets a new standard for internal review, and specifically rules out the use of the privilege in certain circumstances.
More particularly, the memo requires the assistant AG to recommend invocation in any particular case, a review committee to approve that recommendation, and then the AG to sign off. (This is presumably in addition to the asserting agency head sign off, under U.S. v. Reynods.) The memo also says that the DOJ will defend an assertion only after a "sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations." And the memo rules out assertions to conceal illegalities, to prevent embarrassment, to restrain competition, and to prevent delay of information that would not cause harm to national security. Finally, the memo provides for regular reports to Congress on assertions of the privilege.
But the memo doesn't specifically back off the administration's re-assertion of the Bush administration argument that the privilege has a basis in the Constitution--that it's compelled by separation-of-powers principles and by the president's Article II authorities. This extraordinary and novel claim, argued the Bush and Obama administrations in the Mohammed case, elevated the privilege to constitutional status and insulated it from judicial review. Under this view, the administration alone could assert the privilege to dismiss a case on the pleadings, and the court couldn't even second guess the assertion.
Holder's memo does not disavow this position. If anything, it supports it. The memo focuses on "information" dangerous to national security--and not "evidence" dangerous to national security--thus suggesting that Holder views the the privilege as something more than a mere evidentiary privilege (as in U.S. v. Reynolds). That "something more," supported by both administrations in Mohammed, was a categorical constitutional privilege, as suggested by Totten v. United States. The administrations have used the Totten version of the privilege as the basis for motions to dismiss on the pleadings. (For more on this, see my postwith my interview with Ben Wizner.)
Moreover, the memo rules out seeking full dismissal of a case "when doing so is necessary to protect against the risk of significant harm to national security." But this should always have been the administration's standard for moving for complete dismissal of a case.
Holder's memo represents a significant change in the procedures and internal checks on the government's assertions of the state secrets privilege. It also includes a new, meaningful oversight role for Congress. But less clear is what, if any, substantive changes it reflects in the administrations' most sweeping position on the privilege--that it has a constitutional (and not merely evidentiary) basis.
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