Limiting the State Secrets Privilege

The Obama Administration announced on Wednesday its decision to heighten the standards used by Justice Department officials when they seek to invoke the state secrets privilege.  The new policy comes in response to the widely held belief that Bush Administration lawyers had abused the privilege in a number of terrorism-related suits.  Military and intelligence agency officials now must first convince the Attorney General and a number of other Justice Department officials that the release of certain information or the continuance of a suit would cause “significant harm” to “national defense or foreign relations” before DOJ lawyers will invoke the state secrets privilege to withhold evidence or dismiss a suit at its onset.  This represents a sea change from previous policy, whereby the state secrets privilege could be invoked with the approval of only one official and by simply proving that the disclosure would be harmful.  The government memo issued by Attorney General Holder describing the new policy states that the new, higher standards would “provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”  For more information on this policy, check out the post at the WSJ Law Blog and the story at the New York Times.  To see the memo itself, click here.