The DOJ’s Shift on ‘State Secrets’ Policy: Rightminded or Dangerous?

[WSJ_law_blog]

Let the debating begin: Is the new Obama administration policy on state secrets a boon for government openness and transparency? Or will it simply weaken the U.S. government’s hand in its battle against terrorism? Is it a move borne out of optimism and trust or sheer naivete?

The news: The Justice Department is slated to announce a policy Wednesday which would make it more difficult for the government to to claim it is protecting state secrets when it hides details of sensitive national security strategies. Click here and here for stories from the WaPo and NYT, respectively.

According to news reports, the new policy will require agencies, including the intelligence community and the military, in order to keep information hidden as a state secret, 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.” Previously, the claim that state secrets were at risk could be invoked with the approval of one official and by simply proving that the that the disclosure would be harmful.

The heightened standard is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush and Obama administrations for excessive secrecy. The new policy will take effect Oct. 1.

“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 to the Washington Post. “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.”

On our beat, the issue has come up most prominently in the context of a lawsuit involving five men who claim U.S. operatives abducted them and sent them to be tortured in other countries. The men are suing a unit of Boeing, which they say provided aircraft to the CIA for the rendition program.

In February, Justice Department lawyers told Ninth Circuit judges that the government believes state secrets and national security would be put at risk if the court allowed the suit to proceed. The Bush administration had argued that even discussing the case in court could threaten national security and relations with other nations.

But in April, the Ninth Circuit reversed a lower-court ruling that had halted the suit. Click here, here and here for earlier LB posts on that case.

According to the WaPo, however, the policy shift is is unlikely to change the administration’s approach in this or another high-profile case, a filing by an Islamic charity whose lawyers claim they were subjected to illegal government wiretapping.