Obama to Set Higher Bar for Keeping State Secrets

Under the new policy, Attorney General Eric Holder Jr. will have to approve before the state secrets argument is used.
Under the new policy, Attorney General Eric Holder Jr. will have to approve before the state secrets argument is used. (By Susan Walsh -- Associated Press)

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By Carrie Johnson
Washington Post Staff Writer
Wednesday, September 23, 2009

The Obama administration will announce a new policy Wednesday making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials.

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.

That claim was asserted dozens of times during the Bush administration, legal scholars said.

The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.

The heightened standard is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy will take effect Oct. 1 and has been endorsed by federal intelligence agencies, Justice Department sources said.

"What we're trying to do is . . . improve public confidence that this privilege is invoked very rarely and only when it's well supported," said a senior department official involved in the review, who spoke on the condition of anonymity because the policy had not yet been unveiled. "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."

The policy, however, is unlikely to change the administration's approach in two high-profile cases, including one in San Francisco filed by an Islamic charity whose lawyers claim they were subjected to illegal government wiretapping. That dispute, involving the al-Haramain Islamic Foundation, provoked an outcry from the American Civil Liberties Union and other public policy groups this year after the Obama Justice Department followed the Bush strategy and asserted "state secrets" arguments to try to stop the case.

In a separate lawsuit filed by five men who say they were transported overseas to CIA "black site" prisons, where they underwent brutal interrogation, the U.S. Court of Appeals for the 9th Circuit this year criticized the Justice Department for making a sweeping argument to scuttle the case and keep even judges from reviewing materials.

To side with the government, the court ruling said, would mean that judges "should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law."

In a news conference the day after the court's ruling, Obama told reporters that he thought the privilege was "overbroad" and could be curtailed.

"There are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety," the president said in late April. "But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument."

Under the new approach, a team of career prosecutors must review and the attorney general must approve any assertions of the state secrets privilege before government lawyers can make that argument in court. Officials said the new policy will ensure that the secrecy arguments are more narrowly tailored and that they are not employed to hide violations of law, bureaucratic foul-ups or details that would embarrass government officials.


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