New State Secrets Policy: Like the Fox Guarding the Henhouse

Months after Attorney General Eric Holder said he would release the Obama administration's new policy on the use of the state secrets privilege, it's finally out. The thrust of the new rule: Holder must approve any invocation of the privilege.

Well, that's not much different from the Bush administration's policy, which was to invoke the privilege at the outset, before the case even got its foot in the courthouse door.

Ben Wizner, staff attorney with the ACLU National Security Project, filed two cases challenging the CIA's extraordinary rendition program. In the first case, brought on behalf of Khaled el-Masri, the district court and appeals court both accepted the government's state secrets claim, and the Supreme Court refused to hear the case. In the second case brought against Boeing subsidiary Jeppesen Dataplan, the district court sided with the government when it invoked the state secrets privilege, but the appeals court reversed that decision. The DOJ is now asking the appeals court to rehear the case en banc, or before a full panel of judges. Ben said in a statement today:

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.'

Real reform must start in Congress. House and Senate bills were introduced a few days after DOJ lawyers invoked the state secrets privilege before the 9th Circuit in our Jeppesen case. Coincidence? We hope not. It's time for Congress to reassert its role as a check on executive power. Without state secrets legislation, we'll only have more secrecy and less accountability.