Statement of American Bar Association President Carolyn B. Lamm on
New Department Of Justice "State Secrets" Policy

WASHINGTON, D.C., Sept. 23, 2009 — The Department of Justice’s new policy for invoking the “state secrets” privilege establishes a transparent, consistent and rigorous process within the department for determining when to assert the privilege in litigation. 
 
There is much to praise in the new policy, including the adoption of a tougher “significant harm” standard, narrow tailoring of the use of the “state secrets” argument, a more stringent internal review process and greater accountability.  The administration’s actions are an important and positive step in protecting both the private litigant’s right to seek redress in the courts and our country’s legitimate national security interests. It seeks to assure the public that the privilege will be asserted only when genuinely necessary, and not to hide government wrongdoing.

While the new policy is a great improvement, more work remains.  Legislation is still needed to codify an enduring standard that requires meaningful, independent judicial review and provides that cases are not dismissed based on the state secrets privilege except as a last resort.  

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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Media Contacts:  Stephanie Ortbals-Tibbs, 202-662-1091, ortbals-tibbss@staff.abanet.org or Kristin Loiacono, 202-662-1092, loiaconk@staff.abanet.org