State Secrets

New Attorney General Eric Holder has pledged to review all cases where the DOJ has invoked the State Secrets privilege. This is excellent news for those of us interested in increased government transparency. The States Secrets privilege ("SSP") allows the government to block the production of documents in lawsuits where it claims that the documents are state secrets. In some cases, invoking this privilege can also result in having suits against the government thrown out of court if the alleged secrets are at the heart of the suit. For example (from wikipedia):

In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.

Currently, there is very little review of any claim that documents or whole cases are covered by the SSP. The government merely needs to provide assurances that the relevant agency considers the items to be secret, and did so before the litigation. The court has no ability to rule on whether the alleged secrets merit coverage by the privilege.

As Brian Beutler notes, Eric Holder's judgment on these issues is certain to be better than Alberto Gonzalez's, but as a whole, it would be best to have some kind of legislation creating a formalized way of reviewing SSP claims. The courts are not going to effectively rein in abuse of the SSP by the executive branch due to a general justiciability concerns, so Congress, supported by Holder and Obama, could perhaps create something along the lines of the FISA courts to review SSP claims in camera and determine whether alleged secrets are really items of national security.