DOJ to Propose New Limits on State Secrets Privilege
Updated: Attorney General Eric Holder plans to announce new limits on the state secrets privilege, invoked to block lawsuits because of national security concerns.
Holder plans to require government agencies to get his approval before citing the privilege to withhold evidence or seek dismissal of a lawsuit, according to the New York Times and the Washington Post. Holder says he and a group of Justice Department career prosecutors won’t approve the privilege unless they are persuaded release of secret information would create significant harm to national defense or foreign relations.
The prior policy required approval by just one Justice Department official and set a lower standard for withholding information.
An anonymous Justice Department official explained the policy change to the Post this way: “By holding ourselves to this higher standard, we’re in some way sending a message to the courts. We’re not following a ‘just trust us’ approach.”
“There is much to praise in the new policy,” ABA President Carolyn Lamm said in a statement. But “legislation is still needed to codify an enduring standard that requires meaningful, independent judicial review and provides that cases are not dismissed based on the state secrets privilege except as a last resort. “
A Justice Department task force of eight lawyers is reviewing 12 pending cases in which the state secrets privilege has been invoked, but has reversed course in only one lawsuit. The Post describes the suit as “a bizarre case” in which a former drug agent claims the government installed wiretaps in his coffee table.
Updated at 4:26 p.m. to include Lamm’s statement.
