WASHINGTON — The Obama administration will announce a new policy today making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials.
The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to “national defense or foreign relations.”
In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful. That claim was asserted dozens of times during the Bush administration, legal scholars said.
The shift could have a broad effect on many lawsuits, including those filed by alleged victims of torture and electronic surveillance. Authorities have frequently argued that judges should dismiss those cases at the outset to avoid the release of information that could compromise national security.
The heightened standard is designed in part to restore the confidence of Congress, civil-liberties advocates and judges, who have criticized both the Bush White House and the Obama administration for excessive secrecy. The new policy, which will take effect Oct. 1, has been endorsed by federal intelligence agencies, Justice Department sources said.
“What we’re trying to do is . . . improve public confidence that this privilege is invoked very rarely and only when it’s well supported,” said a senior department official involved in the review, who spoke on the condition of anonymity because the policy had not yet been unveiled. “By holding ourselves to this higher standard, we’re in some way sending a message to the courts. We’re not following a ‘Just trust us’ approach.”
Officials said the new policy will ensure that the secrecy arguments are more narrowly tailored and that they are not employed to hide violations of law, bureaucratic foul-ups or details that would embarrass government officials.
