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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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The policy will also severely limit the government's ability to claim that the very subject of some lawsuits should trigger the state secrets privilege, except when necessary to protect against the risk of significant harm.

It is unclear how the new policy will affect pending legislation on Capitol Hill, where Democrats in the House and Senate Judiciary committees have introduced bills that would give judges more authority to sift through sensitive evidence when the government has invoked the legal privilege. The legislation would raise the standard for state secrets to instances when the release of material "would be reasonably likely to cause significant harm to the national defense or the diplomatic relations of the United States."

That standard closely tracks language in a memo drafted by Attorney General Eric H. Holder Jr. laying out the new state secrets policy.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), a co-sponsor of one state secrets bill, said reforms are a "priority . . . to bring a greater degree of transparency and accountability to a process that has been shrouded in secrecy."

The Justice Department officials said Tuesday that their agency would give regular reports on their use of the state secrets privilege to oversight committees on Capitol Hill and that the attorney general would pass along "credible" allegations of wrongdoing by government agencies or officials to watchdogs at the appropriate agencies, even if the administration had decided to invoke the legal privilege in sensitive cases.

The new policy was welcomed by Gary Bass, executive director of OMB Watch, a nonprofit that promotes government transparency. He said it was "enormously consistent with open-government recommendations" from himself and other advocates.

Since February, a Justice Department task force of eight lawyers has been sifting through about a dozen pending cases in which state secrets arguments have been made.

So far, they have reversed course in only one lawsuit -- a bizarre case in federal court in the District in which a former agent for the Drug Enforcement Administration accuses the State Department and the CIA of installing listening devices in a coffee table in his home.


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