Progress on State Secrets

Friday, September 25, 2009

DURING the Bush administration, litigants who sued the government alleging they had been illegally spied on or snatched up in an "extraordinary rendition" faced dim prospects for success.

The reason: The administration routinely marched into court and invoked the state secrets privilege, claiming that the suits had to be thrown out for fear that national security could be compromised if the litigation were allowed to go forward. Judges rubber-stamped the executive's request after often cursory review.

Attorney General Eric H. Holder Jr. should be applauded for crafting rules to govern the Justice Department's policies for evaluating privilege claims that should make the process more stringent, credible and fair.

Mr. Holder's plan creates a Justice Department committee to review state secrets claims made by executive agencies; top agency officials must submit affidavits to the committee supporting their claims. The committee's recommendations will be forwarded to the deputy attorney general and the attorney general; no claim of privilege may be invoked in court without the attorney general's approval. Before Mr. Holder's memorandum, the attorney general often did, but was not required to, approve state secrets claims.

Mr. Holder has also made it tougher to justify a state secrets claim by insisting that executive agencies prove that national security interests will suffer "significant harm" if the litigation proceeds. The Justice Department must also refrain from seeking dismissal of an entire case if the possible harm to national security could be mitigated by simply withholding specific pieces of evidence or information from the litigation.

The attorney general promises that the department will not use the privilege "to conceal violations of the law, inefficiency, or administrative error" or to "prevent embarrassment to a person, organization, or agency." Mr. Holder has also decreed that in cases where a privilege claim is supported but credible claims of government wrongdoing have surfaced, those allegations will be referred to the Office of Inspector General of the agency in question.

The plan represents an important step forward in reforming what has been a deeply flawed and unfair system. But it should be only the first step. Congress should build on Mr. Holder's work by passing pending legislation to govern what happens in court once the Justice Department invokes the privilege.

Why is legislation still needed? Mr. Holder's changes do not carry the weight of law and could be reversed by the next attorney general or the next administration. In addition, they do not -- and cannot -- address the huge hurdles embedded in current law that make it almost impossible for plaintiffs to prevail in court. The State Secrets Protection Act being shepherded in the Senate by Patrick J. Leahy (D-Vt.) and in the House by Jerrold Nadler (D-N.Y.) empowers judges to more thoroughly review state secrets claims and gives plaintiffs a fighting chance while still appropriately respecting the executive's national security prerogatives. This legislation, which has been pending for roughly 18 months, should be passed soon.

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