AG Garland Issues New Guidelines for Invocation of the State Secrets Privilege

In a memorandum released September 30, Attorney General Merrick Garland detailed new guidelines for when the Department of Justice will invoke the state secrets privilege to withhold evidence or to seek dismissal of a case or claim. The U.S. government has previously used the controversial privilege to stymie plaintiffs challenging government mass surveillance. While the guidelines include new Executive Branch safeguards—including a process for revisiting the necessity of the privilege once invoked—the privilege remains a threat to meaningful accountability in the absence of legislative reform.   

Under the new procedures, which build on a 2009 memorandum, the heads of all executive departments or agencies seeking to invoke the privilege in litigation must personally request DOJ’s approval along with a declaration outlining why invocation is necessary to protect national security. Once invoked, DOJ and the agency requesting use of the privilege must periodically confirm that the privilege remains necessary, including upon appeal.  

EPIC has participated as amicus in several previous cases challenging the use of the state secrets privilege to defend government surveillance programs, including FBI v. Fazaga and Wikimedia v. NSA. In FBI v. Fazaga, EPIC joined a coalition headed by the Brennan Center in arguing that the Foreign Intelligence Surveillance Act (“FISA”) allows judges to review sensitive national security matters to determine whether evidence could be disclosed to plaintiffs without revealing state secrets.