Carrie Johnson reports:
The Obama administration will announce a new policy Wednesday making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials.
The new policy requires agencies, including the intelligence community and the military, 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.” In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.
The policy, however, is unlikely to change the administration’s approach in two high-profile cases, including one in San Francisco filed by an Islamic charity whose lawyers claim they were subjected to illegal government wiretapping. That dispute, involving the al-Haramain Islamic Foundation, provoked an outcry from the American Civil Liberties Union and other public policy groups this year after the Obama Justice Department followed the Bush strategy and asserted “state secrets” arguments to try to stop the case.
Read the full story in The Washington Post.
Update 1: See the DOJ press release here and the Policies and Procedures Governing Invocation of the State Secrets Privilege (pdf, 1.16 MB)
Update 2: Kurt Opsahl of EFF notes their disappointment with the new policies:
In the end, all the Executive Branch has promised here is that it will check with itself before invoking the state secrets privilege. What’s needed instead is a policy that ensures that the separation of powers is restored — that a court can ensure that the secrecy is warranted and, if necessary, that a case be dismissed because so much secrecy is needed. This court role is critical, and the lack of it runs the real risk that the new rules will allow the same abuses to continue. This core judicial role is what the Ninth Circuit Court recently decided was the right course in Mohammed v. Jeppeson.
Real reform of the state secrets privilege will require legislative action, and we therefore urge Congress to move forward on considering two State Secrets Protection Act bills that were introduced this Spring in both the House and the Senate.