Obama Makes Keeping State Secrets Harder for Intel Community

Meredith Jessup | September 23, 2009 3:15 PM

The Obama administration announced today a new policy which will make it more difficult for the government to deem particular sensitive national security information a "state secret" needing extra protections.

According to the Washington Post, the new policy will require intelligence and military agencies to convince the attorney general and a team of lawyers from the Department of Justice that the "release of sensitive information would present significant harm to 'national defense or foreign relations.'"

The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.
The heightened standard is designed in part to restore the confidence of Congress, civil liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy will take effect Oct. 1 and has been endorsed by federal intelligence agencies, Justice Department sources said.

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"There are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety," the president said in late April. "But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument."

Under the new approach, a team of career prosecutors must review and the attorney general must approve any assertions of the state secrets privilege before government lawyers can make that argument in court. Officials said the new policy will ensure that the secrecy arguments are more narrowly tailored and that they are not employed to hide violations of law, bureaucratic foul-ups or details that would embarrass government officials.
The policy will also severely limit the government's ability to claim that the very subject of some lawsuits should trigger the state secrets privilege, except when necessary to protect against the risk of significant harm.