(Note: I am delighted to put up this guest post by my Washington College of Law, American University colleague Amanda Frost, on the new DOJ policy on the state secrets doctrine. Amanda has done important academic writing in this area, including this 2007 Fordham Law Review article, as well as other areas related to federal courts, including this provocative recent piece in the Virginia Law Review, Overvaluing Uniformity. Amanda, thanks and welcome!)
As Jonathan and Orin have already noted, the Department of Justice issued a new policy regarding use of the state secrets privilege on Wednesday. In a memo, Attorney General Holder declared that the privilege should be reserved for cases in which the privilege is "necessary to protect information" that "could reasonably be expected to cause significant harm to the national defense or foreign relations"—a narrower standard than used in the past. Most important, the new policy establishes several additional layers of government review before the privilege can be asserted, culminating in the required pre-approval of the Attorney General himself. Holder also promises to report regularly to Congress regarding use of the privilege.
The new policy should be welcomed not only by critics of the privilege, but also by its fans. As the Obama Administration surely realized, the privilege was in danger of being limited by both the courts and Congress, since at least some members of both branches had lost faith in the executive's ability to assert the privilege in good faith.
Ever since the Supreme Court first recognized the privilege in its 1953 decision in Reynolds v. United States, the lower courts have mostly deferred to executive claims of privilege, and Congress has chosen not to regulate or limit its use. Recently, however, the executive's increasing reliance on the privilege as grounds for outright dismissal of cases challenging the legality of its conduct inspired the other two branches to push back. In the past few years, a few lower courts have denied claims of privilege on the ground that the government exaggerated the risks to national security of disclosure, and even speculated that the executive is too self-interested to be completely trusted with its use.
For example, in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit commented that the executive might assert the privilege to avoid "embarrassment" rather than preserve state secrets, and thus refused to defer to the executive's claimed need for secrecy in a case challenging the legality of extraordinary rendition. Congress is also seeking to take back control of the privilege. A bill entitled The State Secrets Protection Act, currently pending in the House, would limit and guide executive assertions of the privilege.
By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege's abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive's discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.