September 23, 2009, New York  – In response to news the Attorney General is establishing new policy on the question of the use of the state secrets privilege, the Center for Constitutional Rights issues the following statement:

While CCR welcomes greater accountability in the Executive’s invocation of the state secrets privilege, Attorney General Holder’s policy does not on its face provide that. Under the new policy, the state secrets privilege could apparently be invoked to protect information that is not even classified, or is merely classified as confidential. It does not purport to require the Attorney General or his Assistant to personally evaluate the evidence to be privileged, but only to review a declaration submitted by the responsible department.    

Moreover, regardless of who in the Executive Branch approves an assertion of state secrets, the judiciary must be able to review the underlying evidence itself.  Judicial review is absolutely essential to ensure that the privilege is not abused. Without it Attorney General Holder’s promise not to use the privilege to cover up lawbreaking or incompetence is simply a promise that the executive will police itself. Ironically, it was precisely that type of promise that enabled the myriad abuses that are currently the subject of the lawsuits in which the Obama Administration has asserted, and may continue to assert, the state secrets privilege. The conspicuous absence of judicial review was a hallmark of the Bush Administration but should not be the hallmark of this one.

CCR represents Canadian extraordinary rendition victim Maher Arar whose case is pending before the full Second Circuit Court of Appeals. The previous administration invoked the state secrets privilege in his case, although neither the district court nor the appellate court addressed the issue.