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  • Writer's pictureKirk Hartley

United States to Limit Use of the State Secrets Privilege for Civil Litigation ?

This September 23 NYT article by Charlie Savage describes Obama administration plans to deploy rules that limit the use of the state secrets privilege to block civil litigation. The article also briefly discusses legislative efforts to limit invocation of the privilege.

The existing use of privilege has significantly limited past lawsuits. For an example, see this prior post from this blog regarding civil claims against Saudi entities regarding the September 11 attacks. Make sure to click through to the linked NYT article and its internal links.

Key excerpts follow from the recent article:

Under the new policy, if an agency like the National Security Agency or the Central Intelligence Agency wanted to block evidence or a lawsuit on state secrets grounds, it would present an evidentiary memorandum describing its reasons to the assistant attorney general for the division handling the lawsuit in question.

If that official recommended approving the request, it would be sent on to a review committee made up of high-level Justice Department officials, and then to Deputy Attorney General David W. Ogden and Mr. Holder. All those officials would be charged with deciding whether the disclosure of information would risk “significant harm” to national security, and they would be instructed to seek a way to avoid shutting down the entire lawsuit if possible.

If the Justice Department signed off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government’s reasoning. A judge could request access to particular pieces of underlying evidence.

The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

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