September 24, 2009 | By Kurt Opsahl

Obama’s Disappointing State Secrets Procedures

After months of internal review, the Obama Administration today announced a new policy on the use of the state secrets privilege. The state secrets privilege traditionally allows the government to withdraw particular pieces of evidence from a court case on the grounds that the evidence would reveal sensitive classified information. Despite this limited purpose, it's been repeatedly misused by the Bush and now Obama administrations to try to throw important litigation out of court, and is badly in need of reform.

Unfortunately, the new policy falls far short of the real reform that's needed. The Obama Administration has essentially added several layers of Executive Branch bureaucracy before the privilege can be asserted. They've promised only to use the privilege in cases where a “significant harm” to national security would result, and promised “not to invoke the privilege for the purpose of concealing government wrongdoing.”

In the end, all the Executive Branch has promised here is that it will check with itself before invoking the state secrets privilege. What's needed instead is a policy that ensures that the separation of powers is restored — that a court can ensure that the secrecy is warranted and, if necessary, that a case be dismissed because so much secrecy is needed. This court role is critical, and the lack of it runs the real risk that the new rules will allow the same abuses to continue. This core judicial role is what the Ninth Circuit Court recently decided was the right course in Mohammed v. Jeppeson.

Additionally, and of most importance to EFF's warrantless wiretapping cases, the new policy does not change or withdraw current assertions of the privilege in ongoing litigation. The policy states that it "does not, create any right or benefit, substantive or procedural, enforceable at law." As a result, it will not impact the Obama Administration's current assertion of the state secrets privilege to dismiss EFF's lawsuits against those responsible for the NSA's warrantless surveillance program, or any case dealing with wiretapping, extraordinary rendition, torture or other potentilly illegal government activities.

Real reform of the state secrets privilege will require legislative action, and we therefore urge Congress to move forward on considering two State Secrets Protection Act bills that were introduced this Spring in both the House and the Senate.

Deeplinks Topics

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

Backdoors have been discovered in Arris cable modems. This is why we need a security research exemption to the DMCA.

Nov 27 @ 2:15pm

Censorship powers, data retention, and vague hacking crimes: Pakistan's terrible cybercrime bill has it all:

Nov 25 @ 5:11pm

While Bangladesh blocks social messaging apps, locals are turning to Tor and Twitter:

Nov 25 @ 3:50pm
JavaScript license information