Barack Obama’s New State Secrets Policy: The Question Of Court Review

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Can the executive branch be trusted to make its own determinations of when “state secrets” released in court could significantly harm national security? That is the issue that is being debated today among civil libertarians in the wake of the Justice Department’s announcement of a new state secrets policy.

Under the old guidelines, established in a Supreme Court decision, the standard for evoking “state secrets” was the Justice Department’s belief there was a “reasonable danger” of exposing classified information if the case moved forward normally. Under the new standard, proposed by the Obama Administration, the government would have to conclude that there would be “significant harm” to national security if the case moved forward normally to evoke “state secrets.” The new policy also formalizes a high-level review at Justice that must be conducted before the claim of secrets is invoked in court, and requires that government lawyers provide “evidence to the court for review” of their findings, though judges would not a clear mandate to overturn the Justice Department’s conclusion.

The language of “significant harm” closely mirrors a legislative fix to the provision that has been pushed by Vermont Sen. Patrick Leahy, who chairs the Judiciary Committee. The new policy has been praised by both the Project on Government Oversight and OMB Watch.  But it effectively side steps the most controversial part of legislation proposed by Leahy, and backed by other civil libertarians: A formal review by courts of any administration’s judgement. As Sen. Russ Feingold, a co-sponsor of the legislation, puts it in a press release:

While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’  Independent court review of the government’s use of the state secrets privilege is essential.

The American Civil Liberties Union makes a similar point, via staff attorney Ben Wizner:

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of ‘national security.'”

At root is a question of whether or not the executive branch can be trusted with coming up with a fair reading of its own “significant harm” standard. Internal Justice Department legal opinions by the Bush Administration have been widely criticized as being poorly argued. Leahy, who has enormous sway over whether or not the legislation moves forward, released a statement suggesting that he was heartened by the administration move, and not terribly enthusiastic about moving forward with legislation that would empower the courts to overturn the executive branch’s judgment of state secrets.

I remain especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement. . . . I was pleased to join with Senator Kennedy to introduce the State Secrets Protection Act last year, and he and I, as well as Senators Specter, Feingold, Cardin, Whitehouse, Kaufman have pressed hard to shine a light on the misuse of the state secrets privilege and to create mechanisms to guide its application.  Today’s announcement marks progress.  I intend to closely monitor the implementation of this new state secrets policy to ensure that it brings the higher level of accountability and reliability pledged by the Attorney General in his announcement.