NYT: Justice Dept. to Limit Use of State Secrets Privilege

http://www.nytimes.com/2009/09/23/us/politics/23secrets.html

SEPT. 22, 2009

Justice Dept. to Limit Use of State Secrets Privilege

By CHARLIE SAVAGE

WASHINGTON -- The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

"The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests," says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

Under the Bush administration, the Justice Department frequently asserted the state secrets privilege, blocking lawsuits by people who claimed that they had been illegally wiretapped or tortured as part of the government's counterterrorism efforts.

After President Obama took office, his administration pressed ahead with sweeping assertions of the privilege as it handled legal appeals in the cases it inherited. The decision alarmed some civil liberties groups and lawmakers, who argued that the privilege concentrated too much power in the executive branch.

Leading Democratic lawmakers in both the House and the Senate have filed bills that would restrict how the privilege could be used. The Obama administration has not taken a position on those bills, but the new policy, which is intended to rein in use of the privilege by erecting greater internal checks and balances against abuse, could blunt momentum in Congress to pass legislation.

The bills would encourage courts to find a way for lawsuits to continue, even if particular documents or information must be withheld. They would also require judges to take a more searching look at executive branch claims that certain evidence cannot be used in court because its disclosure would result in a "significant harm" to national security.

That requirement would be tougher than the current legal standard, which comes from a 1953 Supreme Court decision approving the withholding of information whenever there is "reasonable danger" of exposing information that should not be divulged for national security reasons.

Generally, the administration's proposed policy echoes those review requirements, but it would put them in the upper levels of the Justice Department. The policy was developed by an associate deputy attorney general, Donald B. Verrilli Jr., and would govern all new assertions of the privilege after Oct. 1.

Under the new policy, if an agency like the National Security Agency or the Central Intelligence Agency wanted to block evidence or a lawsuit on state secrets grounds, it would present an evidentiary memorandum describing its reasons to the assistant attorney general for the division handling the lawsuit in question.

If that official recommended approving the request, it would be sent on to a review committee made up of high-level Justice Department officials, and then to Deputy Attorney General David W. Ogden and Mr. Holder. All those officials would be charged with deciding whether the disclosure of information would risk "significant harm" to national security, and they would be instructed to seek a way to avoid shutting down the entire lawsuit if possible.

If the Justice Department signed off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government's reasoning. A judge could request access to particular pieces of underlying evidence.

The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to "conceal violations of the law, inefficiency or administrative error" or to "prevent embarrassment."

The new policy would replace a less formal set of procedures used during the Bush administration. Generally, under the older procedures, the attorney general would get involved only if the matter was particularly controversial or if it involved a component of the Justice Department itself, according to a former department official familiar with previous practices.

It is not clear whether the new procedures would have altered the outcome of instances in which the Bush administration used the privilege to shut down cases, like a lawsuit against a Boeing subsidiary accused of helping the C.I.A. transfer detainees to overseas prisons where they were allegedly tortured.

On several occasions, including a lawsuit involving the National Security Agency's program of eavesdropping without warrants, the Obama administration reasserted the privilege at a later stage in the case, after a review by Mr. Holder.

Tracy Schmaler, a Justice Department spokeswoman, would not comment on the new policy because it had not yet been released. But Ms. Schmaler said the administration was committed to using the privilege responsibly.

"This administration recognizes that invoking the state secrets privilege is a significant step that should be taken only when absolutely necessary," she said, "and that is what we have done."

Several lawmakers adopted a cautious stance on whether they would press forward with the privilege legislation, because they had not yet seen the policy. Still, the lead sponsor of the House version of the bill, Representative Jerrold Nadler, Democrat of New York, noted in a statement that the bills would affect courts, too.

"Fixing the executive branch's assertion of the privilege is only one part of the equation," Mr. Nadler said. "Congress must still enact legislation that provides consistent standards and procedures for courts to use when considering state secrets claims. Our constitutional system requires meaningful, independent judicial review of governmental secrecy claims."