State Secrets Review Now At White House

According to an administration official, the Department of Justice has finally completed its long-awaited review of the state secrets privilege and its use by the Bush administration. But the schedule for its public release is still TBD, as is what policy the president prefers.

The privilege, generally recognized by the courts, allows the executive branch to shield classified information from disclosure in criminal and civil trials without judicial review. It was invoked by the Bush administration regularly to prevent the disclosure of information about sensitive intelligence and national security programs, often resulting in the dismissal of cases before a formal exchange of evidence began. During the campaign, and at a press conference in April, Obama said that he wanted to use the privilege more narrowly, only challenging specific evidence, and did not believe that the privilege should be used to pre-emptively end cases.
At the same time, to the dismay of progressives, the administration has upheld each use of the privilege, and even argued in a brief to the Supreme Court that attempts to weaken it would jeopardize national security. Democrats in Congress are ready to pass legislation that would require judicial review whenever the privilege was asserted; the White House opposes this legislation, although hasn't publicly said so, because it believes that only the executive branch has the constitutional authority to determine what constitutes a national security fact worth protecting. Republicans have tried to water down the Senate bill, proposing amendments that would require judges to give deference to the White House, expand the definition of what constitutes a state secret, and narrow the number of defense lawyers who would access classified evidence.

In February, Attorney General Eric Holder announced that he would review all pending state secrets cases. He also said that the administration had decided to withdraw the privilege in a case that remained under seal. The White House counsel's office and the National Security Counsel are now reviewing Holder's conclusions.