On September 23, the Department of Justice (DOJ) released a new policy governing the DOJ's invocation of the Military and State Secrets Privilege (state secrets privilege).  Although the policy provides an additional level of oversight regarding invocation of the privilege within DOJ, it mostly avoids concerns expressed by Congress in connection with pending legislation requiring heightened judicial oversight over the invocation of the state secrets privilege.  Congress may yet act to ensure that judges provide an independent check on the executive branch's invocation of the privilege.

In 1953, the U.S. Supreme Court, in United States v. Reynolds, recognized that there are certain matters too vital to national security for a judge to require their disclosure in a courtroom.  345 U.S. 1 (1953).  Reynolds applied the state secrets privilege and allowed the executive branch to declare certain evidence subject to the state secrets privilege, thereby denying key evidence to litigants suing the government.  However, rather than requiring judicial deference to executive branch determinations concerning the privilege, Reynolds found that "the court itself must determine whether the circumstances are appropriate for the claim of privilege."  Id. at 8.  Further, the Supreme Court set forth a procedural requirement, stating that "there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer."  Id. at 7-8.

Many in Congress believe that the government has begun to invoke the state secrets privilege with unprecedented frequency, and oftentimes for reasons other than protecting national security.  Legislators have also expressed concern that in many cases in which the privilege is invoked, judges simply do not examine the underlying evidence to determine the extent to which it relates to national security.  Without such a judicial check, many contend that the privilege is too tempting a litigation tool not to use – and sometimes abuse – in order to win lawsuits. 

Earlier this year, Congress took up consideration of the State Secrets Protection Act of 2009 to try to remedy some of the perceived deficiencies in the application of the privilege.  The bills pending in Congress would in most situations require that judges examine the actual evidence for which protection is sought.  They would also encourage judges to fashion methods by which evidence can be protected short of outright dismissal of lawsuits, such as requiring the government to develop a non-privileged or redacted substitute for the privileged evidence. 

In June, DOJ declined to testify before a House of Representatives subcommittee on the bill, but Attorney General Eric Holder did make an appearance before the Senate Judiciary Committee, suggesting that a new DOJ policy regarding the privilege would be announced in a "matter of days."  Holder also suggested that DOJ's new policy would obviate the need for legislation.

The new DOJ policy is aimed at providing "greater accountability and reliability in the invocation of the state secrets privilege in litigation."  The new policy is effective as of October 1, 2009 and applies in all cases where the government "thereafter seeks to invoke" the state secrets privilege.  Although the new policy strengthens executive oversight and ostensibly raises the standard for the privilege to only those cases in which the evidence "reasonably could be expected to cause significant harm" to the United States, it sidesteps the concerns Congress has expressed regarding the extent to which judges have access to and actually analyze the allegedly privileged evidence.

The Office of the Attorney General's memorandum sets forth new administrative policies and procedures to increase accountability and oversight, including:

Evidentiary Support – The attorney general's policy states that before approving an agency's invocation of the state secrets privilege in court, the DOJ must be satisfied that there is evidentiary support for it.  The agency seeking to invoke the privilege must provide a detailed declaration, based on personal knowledge, that specifies the significant harm to national security that is reasonably likely to result if the evidence is disclosed, and the reason why such disclosure is reasonably likely to cause such harm. 

Significant Harm Standard – DOJ will defend an assertion of the privilege when the department or agency seeking its protections makes a sufficient showing that it is necessary to prevent the disclosure of information that "reasonably could be expected to cause significant harm to the national defense or foreign relations (national security) of the United States."  The DOJ will defend the invocation of information properly classified pursuant to Executive Order 12958, or nonpublic unclassified information, so long as it meets this standard.

Narrow Tailoring of Privilege Assertions – Under this new policy, the DOJ shall invoke the state secrets privilege only to the extent necessary to protect against the risk of "significant harm to national security" and makes a commitment not to invoke the privilege for the purpose of concealing government inefficiency or violations of law or avoiding embarrassment to the government.

State Secrets Review Process – The policy requires the formation of a State Secrets Review Committee consisting of senior DOJ officials designated by the attorney general to evaluate recommendations by the assistant attorney general of the relevant division to invoke the privilege.  This committee is required to consult with the department or agency seeking the invocation before making its recommendation to the associate attorney general, who in turn shall review and refer to the deputy attorney general for a final recommendation to the attorney general or his designee.

Approval by the Attorney General – The personal approval by the attorney general of the invocation of the privilege is required in order for the DOJ to defend the invocation in litigation.  If the attorney general is recused or unavailable, such invocation may be approved by the deputy attorney general or the acting attorney general.

Referral to Inspectors General – In situations where the attorney general determines that the DOJ's defense of the invocation of the privilege would be proper and would preclude adjudication of particular claim, but that the case raises credible allegations of government wrongdoing, the DOJ is required to refer such allegations to the appropriate Office of Inspector General for further investigation.

Attorney General Eric Holder describes this new policy as "an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security," and states that it "sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."  Nevertheless, while the new DOJ policy sets forth the standards and procedures applicable to the DOJ's assertion of the state secrets privilege, it does not address congressional concern with the adequacy of judicial examination of the evidence and the fashioning of appropriate evidentiary remedies where the state secrets privilege may apply.  Without addressing these issues, the new policy seems to imply that the ultimate discretion to determine the appropriateness of invoking the privilege should rest with the executive branch, a dubious contention at odds with the role reserved to the courts under Reynolds. 

It remains to be seen whether Congress will be satisfied with the new policy given its unaddressed concerns.  Pending legislation requiring judges to 1) examine the underlying evidence claimed to be privileged, and 2) to consider alternative ways of limiting the impact of the privilege, may well receive further congressional action in light of the DOJ's silence on these issues.