State secrets, Congress, and the DOJ’s perilous policy

The new policy may prevent some abuses. But it also assumes that the executive branch, not the judiciary, should determine when invocation of the privilege is appropriate. This conflicts with the Supreme Court case first recognizing the privilege, United States v. Reynolds, which held that “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege.”

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And the policy may ultimately undermine any chance that the State Secrets Protection Act has of passing in Congress.

Congress has expressed concern that judges rarely choose to analyze the underlying evidence, and that instead, they take an agency official’s description of the evidence at face value. Numerous studies support that concern.  The bills before Congress require judges to examine the actual evidence for which privileged status is sought. They also encourage judges to order a redacted or non-privileged substitute for the evidence, and to try to find other ways to lessen the impact the absence of such key information typically has on litigation.

DOJ’s new policy may have stopped the legislation in its tracks. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stated that the new policy “marks progress,” and that he would “closely monitor” implementation of the new policy. This likely signals no further action in the Senate this year on the issue, despite Leahy’s continuing concern over “ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege.”

Less well recognized is that the policy all but prevents meaningful judicial policing of the privilege. First, even though the press release announcing the policy states that “[i]n order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review,” there is no mention of any such accommodation in the policy itself. Second, the policy defines “evidence” as an agency official’s description of the evidence, not the evidence itself.

Under the heading “Evidentiary Support,” the policy requires a government department or agency seeking to invoke the privilege to submit “a detailed declaration based on personal knowledge” that describes the evidence and explains why its release would be reasonably likely to result in significant harm to national security. It does not explicitly require the consideration of the underlying evidence.

How will DOJ submit evidence for the court to review when it does not even necessarily have the evidence? By defining “evidence” as a mere declaration from an agency official, the new policy all but guarantees that DOJ cannot make the “substantial evidentiary showing” to a judge that Leahy mentioned last week. This only underscores the need for legislation requiring a judicial check on the privilege.

There is a third reason for suspicion. The policy states that “[w]ith respect to classified information, the Department will defend invocation of the privilege to protect information properly classified pursuant to Executive Order … at any level of classification, so long as the unauthorized disclosure of such information reasonably could be expected to cause significant harm to the national security of the United States.”

To the extent the policy tries to equate “classified” and “privileged,” it is dangerously broad. These two concepts are distinct, and should not be conflated. As most aerospace and defense contractors recognize, there are myriad situations in which issues surrounding classified programs are litigated, without significant risk of the unauthorized disclosure of classified information. To the extent DOJ suggests that (except for cases of negligible likely harm to national security) all classified information will now be considered subject to the privilege, DOJ is signaling increased use of the privilege, not a narrow tailoring of it.

The policy simply leaves too much room for interpretation, room that will doubtless be exploited by creative DOJ counsel whose job it is to win cases. The policy should be re-drafted to clarify exactly how it will facilitate court review of actual evidence. It should also better define the categories of classified information that will routinely be subject to the privilege.  But even those changes do not ameliorate the need for congressional action. Congress should not use the DOJ’s policy as an excuse not to act on the State Secrets Protection Act. It is time to get the legislation back on track.

Young, an attorney with Perkins Coie, has litigated against the government, often in classified environments, for about 10 years. The government declared the state-secrets privilege over some evidence in a classified case this year that involved Perkins Coie.