Today, Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, hailed Attorney General Eric Holder’s new internal Justice Department policies and procedures governing the use of the state secrets privilege, but reiterated the need to solidify reforms through legislation. Since 2008, Nadler has warned that abuse of the state secrets privilege poses a great danger to our system of justice, and has introduced legislation, the State Secret Protection Act (H.R. 984), to codify state secrets reforms into law. Today, Nadler released the following statement:

“I applaud Attorney General Eric Holder and the Obama Administration for their meaningful reforms to the internal Department of Justice policing of the state secrets privilege. These new requirements, particularly the requirement for the Attorney General to approve any state secrets claim only after reviewing information and determining whether the disclosure of such information would cause significant harm to national security, are significant steps toward improving the use of the state secrets privilege. I also applaud the Attorney General’s positive declaration that the state secrets privilege cannot be used to conceal unlawful conduct by the federal government or to prevent the exposure of embarrassing details. Another important change is the mandatory referral to the Inspector General of any case in which assertion of the state secrets privilege raises credible concerns.

“These are all critical steps toward transparency and increased due process, and I believe that the Obama Administration has undertaken them in good faith, with both national security and justice in mind. Nevertheless, these reforms fall short of what is necessary. There is still no prohibition against dismissing entire cases from the outset, before the courts and parties have an opportunity to determine whether the information at issue is subject to the privilege and, if so, whether a case can proceed regardless.

“We must not understate the extent to which the abuse of the state secrets privilege poses a major threat to our system of justice. We still need legislation to guide the courts, which do not take a consistent approach to claims of state secrets. And we must ensure that all of the necessary reforms are codified into law in order to prevent any future administration from abusing the state secrets privilege. My legislation, H.R. 984, the State Secret Protection Act, will achieve this. I look forward to working with the Obama Administration to see these critical reforms through.”