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Hearing Of The Constitution, Civil Rights And Civil Liberties Subcommittee Of The House Judiciary Committee - H.R.984, The State Secret Protection Act Of 2009, To Provide Safe, Fair And Responsible Procedures And Standards For Resolving Claims Of State S

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Location: Washington, DC

Hearing Of The Constitution, Civil Rights And Civil Liberties Subcommittee Of The House Judiciary Committee - H.R.984, The State Secret Protection Act Of 2009, To Provide Safe, Fair And Responsible Procedures And Standards For Resolving Claims Of State Secret Privilege

Chaired By: Rep. Jerrold Nadler

Witnesses: Patricia M. Wald, Retired Chief Judge, U.S. Court Of Appeals For The District Of Columbia; Asa Hutchinson, Senior Partner, ASA Hutchinson Law Group; Andrew Grossman, Senior Partner, The Heritage Foundation; Ben Wizner, National Security Project Staff Attorney, American Civil Liberties Union

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REP. NADLER: (Sounds gavel.) This hearing of the Subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order. Today's hearing will examine the state secrets privilege. The chair recognizes himself for five minutes for an opening statement.

Today the subcommittee examines legislation that I've introduced, along with the distinguished chairman of the full committee, with Representative Tom Petri and with several other members of the committee, that would codify uniform standards for dealing with claims of a state secrets privilege by the government in civil litigation. In the last Congress, we had an oversight hearing on the state secrets privilege and a hearing on this legislation. The bill was reported favorably to the full committee.

Our experience has demonstrated the destructive impact that sweeping claims of privilege and secrecy can have on our nation. In order for the rule of law to have any meaning, individual liberties and rights must be enforceable in our courts. Separation of powers concerns are at their highest with regard to secret executive branch conduct, and the government simply cannot be allowed to hide behind unexamined claims of secrecy and become the final arbiter of its own conduct.

Yet claims of secrecy have been used to conceal matters from Congress, even though members have the security clearance necessary to be briefed in an appropriately secure setting. That has been the case with respect to the use of torture, with the use of illegal spying on Americans, and other matters of tremendous national importance. And let me add here that this issue is perhaps the most important issue, in my judgment, this committee will face because this committee is charged with enforcing civil rights and civil liberties under our Constitution. And there's an ancient maxim of law that says there is no right without a remedy. And if the government violates your rights, if it kidnaps you, it tortures you, it deliberately burns down your house, it wiretaps you without a warrant, whatever -- how do you enforce your right against the government?

Well, the administration could criminally prosecute its own members who've done so; that's unlikely. Congress could exercise oversight; that's hit or miss. Or the victim can sue in tort -- can sue the government for illegal wiretapping, for kidnapping, for intentional infliction of mental distress, for assault, whatever. But if the government can eliminate that lawsuit on the pleading, simply by coming into court and using the magic incantation of the words "state secrets" and say this case should be dismissed because we say, on our unexamined assertion, that trying the case would necessitate the revelation of state secrets, case dismissed, then there is no recourse to the courts and there is no enforcement of rights, and rights without a remedy are illusory, and we have no rights.

Therefore, we must put some limits on this use of the state secret doctrine. The same pattern of resorting to extravagant state secrets claims has been evident in the courts. While the Bush administration did not invent the use of the state secrets privilege to conceal wrongdoing, it certainly perfected the art. The state secrets privilege has been used by prior administrations to protect officials who have behaved illegally or improperly, or simply in an embarrassing manner, rather than to protect the safety and security of the nation.

The landmark case in the field, U.S. versus Reynolds, is a perfect case in point. The widows of three civilian engineers sued the government for negligence stemming from a fatal air crash. The government refused to produce the accident report, even refusing to provide it to the court to review, claiming it would reveal sensitive state secrets that would endanger national security. The Supreme Court concurred without ever looking behind the government's unsupported assertion that national security was involved. Half a century later, the report was found, now declassified, online, by the daughter of one of the engineers, and it clearly revealed no state secrets. It clearly could have been made available in a form that would have enabled those families to vindicate their rights in court. It did, however, reveal that the crash was caused by government negligence, which I suspect was the real reason for the invocation -- or the invention, in that case, of a state secrets doctrine.

Protecting the government from embarrassment and civil liability, not protecting national security, was the real reason for withholding the accident report. But these families were denied justice because the Supreme Court never looked behind the government's false claim to determine whether it was valid.

Similarly, in the "Pentagon Papers" case, then-Solicitor General Erwin Griswold warned the Supreme Court that publication of the information would pose a grave and immediate danger to national security. Eighteen years later, he acknowledged that he had never seen, quote, "any trace of a threat to the national security," unquote, from the publication of the information and further admitted that, quote, "the principal concern is not with national security but rather with government embarrassment of one sort or another," close quote.

It is important to protect national security, and sometimes our courts have to balance the need for individual justice with national security considerations. Congress has in the past balanced these important, albeit sometimes competing, demands. In the criminal context, we enacted the Classified Information Procedures Act. In FISA, we set up proceedings for the courts to examine sensitive materials. Through the Freedom of Information Act, we sought to limit any withholding of information from the public, whom the government is supposed to serve. We can and should do the same in civil cases. Our system of government and our legal system have never relied on taking assurances at face value. The courts and the Congress have a duty to look behind what this administration, or any administration, says, to determine whether or not those assurances are well-founded.

Presidents and other government officials have been known not to tell the truth on occasion, especially when it is in their interest to conceal something. The founders of this nation knew that there needs to be checks on each branch of the government to prevent such abuses from taking place, or, in the words of the 9th Circuit in the reason Jeppesen decision, "The executive cannot be its own judge. To allow that" -- these are not my words. "To allow that is to abandon all the protections against tyranny that our Founding Fathers established.

"

Courts have a duty to protect national security secrets, but they also have a duty to make an independent judgment as to whether state secrets claims have any merit. When the government itself is a party, the court cannot allow it to become the final arbiter of its own case. The purpose of this legislation is to ensure that the correct balance is struck.

I would just add that I am extremely disappointed that the Department of Justice has declined to provide a witness to discuss this very important issue at this hearing. I have met with the attorney general and I understand that a review of this policy is currently under way. Nonetheless, the department continues to go into court while this review is under way and take positions that are remarkably similar to positions taken by the last administration. While I greatly appreciate the attorney general's willingness to work with us, I believe that it should be possible to send someone to provide us with the administration's views and to answer our questions to the extent that they're able. I hope this is not a sign of things to come.

I look forward to the testimony of our witnesses.

I now yield to -- I will now recognize the distinguished ranking minority member, the gentleman from Wisconsin, Mr. Sensenbrenner, for his opening statement.

REP. F. JAMES SENSENBRENNER JR: Thank you, Mr. Chairman.

The state secrets privilege is a long-standing legal doctrine the Supreme Court most recently described in a case called U.S. versus Reynolds. In that case, the court made it clear that if the court, after giving appropriate deference to the executive branch, determines that public disclosure of information would harm national security, the court is obliged to either dismiss the case or limit the public disclosure of national security information, as necessary. Under this doctrine, people with legitimate claims are not denied access to court review. Rather, the doctrine allows judges to personally review any sensitive information. While this doctrine may occasionally disadvantage someone suing in court, it is vital to protecting the safety of all Americans.

The roots of the state secrets privilege extend all the way back to Chief Justice Marshall, the author of Marbury versus Madison, who held that the government need not provide any information that would endanger the public safety. In the modern era, Congress debated the issue of a state secrets privilege under federal law in the '70s but ultimately chose to maintain the status quo, including elements of the privilege put in place by the Supreme Court in its Reynolds decision. The 4th Circuit Court of Appeals recently employed the doctrine in affirming the dismissal of a case, concluding that the state secret privilege has a firm foundation in the Constitution. Not surprisingly, the privilege has played a significant role in the Justice Department's response to civil litigation arising out of our counterterrorism efforts following 9/11.

The state secrets doctrine remains strongly supported by today's Supreme Court. Even in his Boumediene decision, granting habeas litigation rights to terrorists, Justice Kennedy in his majority opinion acknowledged the government's legitimate interest in protecting sources and methods of intelligence gathering, and stated, "We expect the district court will use its discretion to accommodate this interest to the greatest extent possible," while citing the Reynolds state secret case I mentioned earlier in doing so.

I oppose any efforts, including this bill, that invite the courts to deviate from the sound procedures they currently follow to protect vital national security information. H.R. 984 would preclude judges from giving weight to the executive branch's assessment of national security and would authorize courts not to use ex parte proceedings in conducting a review of privilege claims, and would prevent courts from being able to dismiss a case when the government cannot defend itself without using privileged information.

The Obama administration is clearly not enamored with the approach of this legislation and has adhered in court to the doctrine as asserted in the previous administration in at least three cases already. According to The Washington Post editorial page, the Obama administration's position on state secrets makes it hard to distinguish from its predecessor. Anthony Romero, the executive director of the ACLU, has written that the new administration has embraced policies held over from the Bush era, including the use of the state secrets claims.

Last Congress, legislation essentially the same as H.R. 984 was co-sponsored in the Senate by Senators Joe Biden and Hillary Clinton, who are now President Obama's vice president and secretary of State. But this year, President Obama, Vice President Clinton (sic) and Secretary -- Vice President Biden -- excuse me -- and Secretary of State Clinton have gone silent on the bill. When asked about it recently, the vice president's communications director said, quote, "no comment on this from here." The legislation goes exactly in the wrong direction, so much so that even President Obama, Vice President Biden and Secretary of State Clinton are running away from it. So should we.

I yield back the balance of my time.

REP. NADLER: I thank the gentleman. I'll now recognize the distinguished chairman of the full committee for an opening statement.

REP. JOHN CONYERS JR. (D-MI): Thank you, Chairman.

Thank you, Ranking Member Emeritus -- I mean Chairman Emeritus.

The president's running away from a lot of things. So this is just one more of them. That doesn't mean that the consideration is not extremely important. We've been here before, ladies and gentlemen. I'm for state secrets. There are some secrets that we've got to keep away from citizens and Congress people and everybody else -- bloggers. (Laughs.) But wait a minute, which ones? Well, that's what we're here to try to sort out. We didn't say "abolish state secrets." And look, state secrets have been used so much to keep things secret that shouldn't have been kept secret. That's the problem.

And by the way, let's take a look at the great statements of the president on this subject. He's said we've got to rein in state secrets privileges. He's acknowledged that the privilege is overbroad and overused and that he plans to embrace several principles of reform. He's agreed that state secrets shouldn't be used to protect information, mainly because it reveals the violation of law, or it may be embarrassing to the government. His administration has also continued pressing an aggressive view of state secrets privileges in the court, adopting arguments perfected by the prior administration.

Earlier this year in the Mohamed case, the administration currently maintain that the prior administration's sweeping assertion that the very subject matter of the case was a state secret and that that should prevent judicial consideration of the case. The case was about torture.

A few months later, a case was brought against the government for unlawfully spying on its own citizens -- Jewel. And our administration again sought outright dismissal, arguing that litigating the case inevitably would require the harmful disclosure of state secrets and that the court need not examine any actual information on whether the case might proceed. "It's too secret. We can't even talk about it. What do you mean, a remedy with rights? This is a right apparently without any remedy at all. It's too secret to talk about. Don't you get it? It's so secret, we can't even hear the case to determine whether there's a right or a wrong involved or whether it's a case brought in error."

So we remain encouraged that the administration is taking a thorough review of the state secrets privilege, and his assurance, number 44, that he will deal with Congress and the courts as coequal branches of government, and we can't sit idly by. Well, if we're co- equal, then that's what we're going to assert.

And in closing, Chairman Nadler, it is unacceptable that the department declined to even come to this non-secret meeting. Nobody's here. What's that about? They could not provide a witness. Why? Well, there's a review pending and it's not solved, and it remains, until it is solved that they don't want to come before this co-equal branch of government with them. Okay. That doesn't sound very co- equal to me. They could have sent someone here to say, "We can't talk with you guys." They could have sent someone here to say that, "What we're doing is not concluded and we understand your concern about the matter.

"

So what's with this state secrets business? Well, let's see how far we can go. I'm so glad to see Judge Wald. She's been in Judiciary so many times. (Laughs.) And our former colleague, Asa Hutchinson, we're happy to see him back. Grossman is always on the case. Mr. Wizner, you're a relative newcomer here, but we welcome you. And it's no secret that what we're going to say and do here today is going to be information for everybody to help decide how we resolve this situation.

Thank you for your indulgence, Chairman Nadler.

REP. NADLER: Thank you, Mr. Chairman.

In the interest of proceeding to our witnesses and mindful of our busy schedule, I would ask that other members submit their statements for the record. Without objection, all members will have five legislative days to submit opening statements for inclusion in the record. Without objection, the chair will be authorized to declare a recess of the hearing, which we will only do in the case of votes on the floor. As we ask questions of our witnesses, the chair will recognize members in the order of their seniority in the subcommittee, alternating between majority and minority, providing that the member is present when his or her turn arrives. Members who are not present when their turn begins will be recognized after the other members have had the opportunity to ask their questions. The chair reserves the right to accommodate a member who is unavoidably late or who is only able to be with us for a short time.

I would like now to introduce our panel of witnesses. The first witness is the Honorable Patricia Wald, who's had a distinguished legal career. She's served as a judge of the United States Court of Appeals for the D.C. Circuit from 1979 to 1999, serving as chief judge from 1986 to '91. Judge Wald was also a judge with the International Criminal Tribunal for the former Yugoslavia from 1999 to 2001, and was a member of the President's Commission on the Intelligence Capability of the United States Regarding Weapons of Mass Destruction from 2004 to 2005. Judge Wald clerked for the Honorable Jerome Frank on the U.S. Court of Appeals for the 2nd Circuit and received her B.A. from the Connecticut College for Women and her J.D. from Yale Law School.

Asa Hutchinson is a former colleague of ours in the Congress and on this committee, who served with distinction as a member of this committee. In 1982, President Ronald Reagan appointed him United States attorney. He represented the 3rd District of Arkansas from 1996 until President Bush appointed him as the administrator of the Drug Enforcement Administration. In addition to his service on the Judiciary Committee, he was also a member of the Intelligence Committee. In January 2003, Representative Hutchinson was confirmed by the U.S. Senate to be the first undersecretary of the newly created Department of Homeland Security, where he served until 2005. He subsequently founded the Asa Hutchinson Law Group in 2008, with his son Asa III.

Andrew Grossman is a Heritage Foundation's senior legal policy analyst. Before being named a senior legal policy analyst in January 2008, Mr. Grossman was a writer, editor at general analyst at Heritage, contributing to the think tank's research program in domestic and economic policy, foreign policy and legal affairs. Mr. Grossman is a graduate of the George Mason University School of Law, where he served as senior articles editor of the George Mason Law Review. He received his master's degree in government from the University of Pennsylvania in 2007. In 2002, he received his bachelor's degree in economics and anthropology from Dartmouth College, where he edited the Dartmouth Review.

Ben Wizner has been a staff attorney at the ACLU since 2001, specializing in national security, human rights and First Amendment issues. He's litigated several post-9/11 civil liberties cases in which the government has invoked the state secrets privilege, including el-Masri versus United States, a challenge to the CIA's abduction, detention and torture of an innocent German citizen; Mohamed v. Jeppesen Dataplan Inc., a suit against the private aviation services company for facilitating the CIA's rendition to torture of five Muslim men; and Edmonds versus Department of Justice, a whistleblower retaliation suit on behalf of an FBI translator fired for reporting serious misconduct. Mr. Wizner was a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the 9th Circuit. He's a graduate of Harvard College and New York University School of Law. I must say I have a particular fondness for New York University School of Law, since my son is currently a student at New York University School of Law.

I am pleased to welcome all of you.

Each of your written statements will be made part of the record in its entirety. I would ask that you now summarize your testimony in five minutes or less. To help you stay within that time limit, there's a timing light at your table. When one minute remains, the light will switch from green to yellow, and then to red when the five minutes are up.

Before we begin, it is customary for the committee to swear in its witnesses. If you would please stand and raise your right hands to take the oath. (Witnesses are sworn in.) You may be seated.

The first witness is the Honorable Judge Wald.

MS. WALD: (Off mike.)

REP. NADLER: Could you use the mike, please, and see if it's turned on? Yeah.

MS. WALD: Got it.

I'd like to make five brief points in the five minutes. The first one is that the frequent use of the privilege in recent years to deny all relief to civil plaintiffs who have been injured by governmental action has become a matter of grave concern to lawyers, judges, legal scholars, the American Bar Association. This total cutoff of relief is often unnecessary and I think produces rank injustice in many cases.

Now, U.S. v. Reynolds -- the Supreme Court acknowledged -- and there is no dispute that ultimately it is a judge who must decide whether the privilege applies or not. But judges who've been administering the privilege have struggled with varying success to find a middle way between protecting national security and ensuring access by worthy plaintiffs to some form of remedy for their grievances. Unfortunately, the judges have not been entirely consistent in the way they administer the privilege. Some show a readiness to dismiss cases outright, on mere allegations or conclusory affidavits, and some probe more intensely. Some judges actually look at the item that the state secret privilege is raised as to and some don't and are content to look at the government's affidavits. There isn't even any consistency as to how substantial the risk has to be to justify closing down the case.

So in sum, I think there is a consensus. It's time to regularize the administration of the privilege in a way that protects national security but not at the expense of a total shutdown of civil process for worthy claimants.

I make two points here: One, there is nothing that I can find in this bill that prevents the government from raising or invoking the state secrets privilege. And once the state secrets privilege has been found to apply, I find nothing in this bill that says the judge can make the government actually disclose that. There are various other kinds of substitutes, alternatives -- but I really don't think that there is any instance in which this bill will make the government disclose something which has been identified by the judge as a state secret.

All right, the second point I would make is that Congress's power under Article I, Section 8, and Article III, Section 2 of the Constitution to prescribe regulations on the admissibility of evidence in federal courts has been used many times, in the Federal Rules of Evidence, in FISA proceedings, in CIPA, and I don't think there's much doubt about their authority to do so. Very recently, in the Al- Haramain case out in California, a district judge, in an exhaustive opinion, decided that the FISA procedures for treating information obtained under secret FISA warrants preempted invocation of the state's secret privilege, another vindication, at least at that level -- we'll see whether the government appeals or not -- of Congress's power to legislate evidentiary rules.

Number three point: Federal judges in other contexts handle every day classified material and secret materials and make decisions as to whether redacted versions can be disclosed or summaries made that can serve the purpose of continuing the litigation without in any way undermining national security.

They do it all the time. They have in many cases used masters, informative indices like the Vaughn Index in Exemption 1 FOIA. They use sampling techniques (with ?) massive amounts of material.

This bill wisely incorporates into the civil law area of state secret privilege many of these useful techniques with which judges are already familiar in order to minimize the number of cases -- there will still probably be some -- where dismissal of the entire claim will be necessary.

I think that's a good thing for the following reason: While many of these techniques are very familiar, they are not absolutely explicitly authorized so that I had encountered cases in my own experience on the bench where the government would object to something such as the use of a master and it came up on appeal. Ultimately, we decided the judge could use a master, but the government objected. So I think it's a good thing to have these techniques actually explicitly recognized in the law.

I'm not going to get into the Jeppeson case because I think the counsel over here at the end -- I will only say that to me they did a very good thing in distinguishing between using the state secrets privilege as a kind of close the door because of the subject matter of this. In this case it was extraordinary rendition and the court said no, the state secrets privilege is only about particular pieces of information, which you can raise them, you can debate them, you can litigate them, but you can't say no, we're not going to talk about secret prisons or we're not going to talk about extraordinary rendition, because if you have other evidence that's not subject to the state secrets privilege you should be able to go ahead. I thought that was very worthy.

The fourth point, very briefly I will point out some of the things in this bill that I think are very useful. They require initially that the government asserts in affidavit form the factual basis for the claim of privilege; I don't think anybody could object to that. That the judge then makes a preliminary review and then confers with the party, even at that early stage, as to whether there are special protective provisions that need to be taken, such as a master or an index akin to that used in FOIA cases to make sure that it isn't disclosed even at this early stage, he can then decide if at that point he's going to allow the parties to continue with discovery of materials that are not covered by the privilege to see if the case can go ahead without his stopping dead in his tracks and making the decision as to whether the privilege is involved. If he does find that the privilege is -- could be an indispensable part of either the plaintiff's case or the defendant's dissent, then it provides guidance -- long-needed guidance as to what standard he should use.

Now, I think that the good thing about that is it allows cases to go forward which possibly will be able to be litigated without any use of the state secrets privilege at all or any substitute for it. If, however, the judge finds that indeed this is a truly legitimate case for invocation of the state secrets privilege, he then has a series of alternatives which I don't think anybody could object to. They've been long used in CIPA. They are things such as stipulation, a summary that is not classified or secret, et cetera.

The criteria on which he makes a decision as to whether it is a state secret is whether or not significant harm is reasonably likely to occur. And I think that's one which is in line with some of what I would consider the best judging in the past. The government does have the burden of proving the nature of the harm, the likelihood of occurrence.

And this I think is very important and I'll save it -- one of the two issues I think that can legitimately be discussed here today -- that the court should weigh the testimony from government experts in the same manner it does -- and along with any other expert testimony. I think that's very important that the judge makes an independent judgment. He looks at the testimony of the government, evaluates it the way that we have learned to evaluate expert testimony: namely, the qualifications of the expert, the experience of the expert, the cohesiveness of the testimony. And those are exactly the grounds on which one does give weight to expert testimony and that's what should be applied here.

The last point I would raise I've raised before, but I want to underscore it's important: The bill does require the judge to actually look at it. He can't just look at the affidavit. He actually has to look at the evidence that is in dispute as a state secret. And I think that that's very essential both as to the cases that which will be dismissed because there simply is no alternative and as to the cases where he decides no, there may be a good alternative. How can he say what is a good alternative that will satisfy the legitimate needs of the litigation if he doesn't even know what's in the material?

With that, I'll conclude. But I think this legislation is long overdue. I think it will be a great help to judges. And I don't think it will in any significant way impugn our national security. Thank you.

REP. NADLER: Thank you.

And now I recognize for five minutes the Honorable Mr. Hutchinson.

MR. HUTCHINSON: Thank you, Chairman Nadler. It is good to be in your courtroom again.

Chairman Conyers, it's good to see you. Thank you for your distinguished leadership on the full committee.

My good friend Ranking Member Sensenbrenner, thank you for your leadership as well. And all members of the committee, it's good to be back to a committee that I hold in fond admiration.

You know my background. But my background has been principally in law enforcement and security, as well as in elective office. But both as United States attorney, as head of the DEA and then at Homeland Security, obviously we handled national security matters -- sensitive matters at the highest level. And I bring that background to this committee and I would emphasize certain principles that I think should be followed as you address this important legislation.

First, as has been acknowledged this morning already, there is a national security interest in protecting state secrets. This is not a figment of anybody's imagination. There are state secrets. There are things that we don't want the public to know, and certainly our enemies should not know that. There are many program sources, methods of surveillance and numerous defense programs that need protection and secrecy. That is a given and must be done.

However, I think it is important to underscore also that any assertion of the state secret privilege by the executive branch should not be immune from our federal system of checks and balances. It is just fundamental to me in my governing structures, in my understanding of what our Founding Fathers created that we should not have an unfettered executive branch. There are co-equal branches of government.

And the system of checks and balances is so critical to compensate for the failures of human nature. And if you can imagine being in the executive branch and having some troublesome litigation filed and you're advised that, well, we perhaps could claim the state secrets privilege and avoid substantial litigation, and there's a human tendency when that privilege is there to claim that privilege, and with the failures of human nature, even though that privilege many times is justifiably claimed, there also are historical instances where perhaps it was not appropriately claimed. Regardless, though -- regardless -- under our system of government there needs to be a check and balance and the Judiciary is in the right position to do that.

And that's the third principle, I believe, that the courts have proven themselves capable of protecting classified information at the highest levels and establishing procedures to balance the interest of secrecy and justice. The illustrations, of course, are how they have very appropriately handled FISA matters, how the Classified Information Procedures Act has been implemented so well by the courts, and the handling of classified information under FOIA requests. And I think you could also make the case historically that perhaps there's been more loose lips in other branches of government than even within the judiciary. They have a good track record of protecting those things that have been entrusted to them.

And I might add that -- I pointed out my background is a law enforcement and national security official, but I also have been blessed to be in the private sector and currently I'm handling a national security case from the defense side. And guess what the first thing the courts required. Well, you've got to have your security, top-secret security clearances upgraded, you have to go and view the evidence and secure facilities.

All the procedures are set up. Even though they're cumbersome, they're required. And they are implemented on a routine basis by the courts.

Another point that I think is relevant to make today: that currently, even though this is a historic doctrine, there is insufficient authority, insufficient clarity and insufficient guidance for the courts to provide an independent review that I believe is important in our system of checks and balances. We have the Reynolds case that's been cited, the el-Masri case most recently in the Eastern District of Virginia. The Jeppeson case, I understand, will be discussed, the 4th Circuit case. All of these reflect different approaches and different results -- some better, some others are not so good, depending upon your viewpoint.

But I believe that Congress, being the important third branch of government, should act to provide the guidance and clarity in terms of what is the right approach to provide the independent review of when the state secrets privilege is asserted. House Resolution 984 is an excellent foundation to consider this. It provides for an independent assessment by the courts. It does not require substantial deference. And I know this is a little bit of a touchy issue, but if I might just make the point that in other areas of litigation where there is some deference -- FOIA, other regulatory areas -- there are fine guidelines and history and regulations that give guidance in those areas that fine-tune it before it ever gets to the court, and perhaps there is a distinction between the deferences given in those circumstances and the independent review that's required here.

I want to abide by the time, but I think the bill is a good starting point for discussion. It does provide the independent assessment, clarifies that it is an evidentiary privilege, not an immunity doctrine, and it does provide the courts with a critical oversight.

Finally, I've been enjoying participating in the Constitution Project's Bipartisan Liberty and Security Committee which I've recently joined, and the report entitled "Reforming the State Secrets Privilege" has been signed by more than 40 policy experts, former government officials and legal scholars of all political affiliations. And I would ask that that report be included as part of the record in this hearing today.

Thank you, Mr. Chairman.

REP. NADLER: Without objection, that hearing -- that report, rather, will certainly be included in the hearing. And I thank the witness.

I will now recognize Mr. Grossman for five minutes.

MR. GROSSMAN: Good afternoon, Mr. Chairman, Ranking Member Sensenbrenner and members of the subcommittee. My testimony today concerns the consequences of the State Secrets Protection Act, which would severely limit the state secrets privilege. I have three points.

First, this legislation is unnecessary because there's absolutely no evidence that the state secrets privilege has been abused. Second, it is unconstitutional because it ignores clear Supreme Court precedent of the president's power to safeguard national security secrets. And third, this legislation would invite the courts to intrude on Congress's power and responsibility to make national security policy, upsetting the careful balances that Congress has struck.

I'll begin with some background. Contrary to often-repeated claims, there is nothing sinister or unusual about the state secrets privilege. Seven separate requirements, including Department of Justice review and personal consideration by high-ranking federal officials, ensure that the privilege is used only when necessary to protect national security. And judges play a crucial role by ensuring that it's been properly invoked.

Though the results may appear harsh in some cases, that's true of all privileges. For example, courts have cited the speech or debate clause to throw out suits against members of Congress and other legislators involving invasion of privacy, defamation, incitements to violence, age, race and sex discrimination, retaliation for reporting sexual discrimination, and larceny and fraud. Yes, these are harsh results, but for a greater good: unfettered speech and debate in this legislative body. In the same way, the state secrets privilege advances a greater public good: protecting our nation.

My first point today is that there's no evidence that the state secrets privilege is being abused or is being used more frequently or in different ways than in the past. Data from 1954 through 2008 show that its use is rare. In reported opinions, the privilege was asserted seven times in 2007 and just three times in 2008. According to Robert Chesney of Wake Forest University, the evidence does not support the conclusion that the Bush administration used the privilege with greater frequency than other administrations.

The data also show the privilege is being used to protect the same national security interests as in the past. Over the previous four decades, most state secrets cases concerned intelligence programs, followed by military technology and contracts and then diplomatic communications. That is the same pattern as today.

The data also show that the government is not seeking harsher remedies, such as dismissal of cases, any more than it has in the past. Further, courts take seriously their duty to oversee the privilege. During the Clinton administration, courts refused to grant the requested privilege in 17 percent of opinions. That rose to 40 percent during the Bush administration. If anything, the courts have become less deferential.

Finally, President Obama, once a critic of the privilege, now recognizes its great importance. Every president going back to Lyndon Johnson has reached the same conclusion. In sum, there is no evidence that the state secrets privilege is being misused, overused or otherwise abused. That makes this legislation unnecessary.

My second point is that it is also unconstitutional. Unlike most other privileges, this one is grounded in the Constitution, specifically, the powers it commits to the president. The Supreme Court has said as much in case after case, stating expressly that this constitutional power extends to protecting military or diplomatic secrets -- the very things covered by the privilege.

In my written testimony, I identify seven separate provisions of the act, including the core operative provision that infringe on powers the court has clearly stated belong to the executive. This legislation may also infringe on the judicial power by imposing a role of decision on the courts when deciding some constitutional issues. That, too, would be unconstitutional. The result is that, based on its own precedence, the Supreme Court would most likely strike down this act.

My third and final point is that this legislation empowers judges to usurp Congress's own powers and responsibilities. In the constitutional design, Congress plays a leading role in national security. This includes creating and funding defense programs, some of which do require secrecy and stealth. But the legislation would force courts to expose aspects of key intelligence programs even if they ultimately rule in favor of the government on the privilege issue. This would end or severely hamper these programs, upsetting the careful balance struck by Congress in making national security policy.

But that is the goal of several of the groups that support this bill. It would give them a heckler's veto over programs they were unable to convince this legislative body to amend or to shut down. Perversely, some members of Congress may welcome this result. By passing the buck to the courts, they can avoid the consequences of tough votes and controversial national security programs. Congress should not abdicate its responsibility or grant such legislative power to unelected judges.

In conclusion, there is no justification for this legislation. Beyond being unnecessary, it is risky.

Members of Congress should focus on the greater public good and look past the narrow interests of those who would use the courts to make policy.

Thank you.

REP. NADLER: Thank you.

I now recognize for five minutes Mr. Wizner.

MR. WIZNER: Thank you, Chairman Nadler, Ranking Member Sensenbrenner and Chairman Conyers and distinguished members of the subcommittee. I appreciate this opportunity to explain the ACLU's interest in reform of the state secrets privilege, an issue of critical importance to all Americans concerned about the unchecked abuse of executive power.

I also want to commend Chairman Nadler and the cosponsors of the State Secrets Protection Act, H.R. 984. If enacted it would place reasonable checks and balances on the executive branch, re-empower courts to exercise independent judgment in cases on national importance and protect the rights of those seeking redress through our court system.

More than 50 years have passed since the Supreme Court formally recognized the state secrets privilege in United States versus Reynolds. During that time Congress has never legislated to place reasonable restraints on the use of the privilege or to provide standards or guidelines to increasingly confused and divided federal courts.

Congress's silence on this critical issue has become all the more troubling in recent years, as we have see the state secrets privilege mutate from a common law evidentiary rule designed to protect genuine national security secrets into an alternative form of immunity that is used more and more often to shield the government and its agents from accountability for systematic violations of the Constitution and this nation's laws.

The ACLU has been involved in a series of high-profile cases in which the government has invoked the state secrets privilege in response to allegations of grave government misconduct -- not simply to block access to specific information that is alleged to be secret, but to dismiss lawsuits in their entirety at the outset.

This has happened in cases involving rendition and torture, warrantless surveillance and national security whistleblowers. The dismissal of these suits does more than harm the individual litigants who are denied opportunity for redress, it deprives the American public of a judicial determination regarding the legality of the government's actions.

I have been personally involved in a number of these cases, including the case of Khalid el-Masri, a German citizen who was detained incommunicado by the CIA for nearly five months in a squalid Afghan prison in a tragic case of mistaken identity. Mr. el-Masri's case received such prominent press coverage in the United States and abroad that he truly became the public face of the CIA's extraordinary rendition program.

Nonetheless, Mr. el-Masri's lawsuit was dismissed on the basis of an affidavit from the CIA, the very entity charged with wrongdoing, that characterized the entire subject matter of Mr. el-Masri's suit as a state secret. As a result, the one place in the world where Mr. el- Masri's ordeal could not be discussed was in the U.S. court of law.

A second ACLU lawsuit on behalf of victims of the CIA's rendition program -- this one targeting a Boeing subsidiary, Jeppesen Dataplan, that provided flight services enabling the clandestine transfer of our clients to overseas prisons where they were tortured -- was similarly dismissed on the basis of a CIA affidavit alone.

As this subcommittee knows, when the case reached the 9th Circuit Court of Appeals in February, the Obama administration, in just its third week in office, stood behind the Bush administration's broad claim of state secrets.

In April the Court of Appeals reversed the dismissal of the suit, holding that the government's state secrets claim was premature and overbroad. It held that the government's sweeping theory of state secrets, quote, "had no logical limit and amounted to an argument that the judiciary should effectively cordon off all secret government actions form judicial scrutiny, immunizing the CIA and its partners from the demands and the limits of the law."

The court held that the government's legitimate secrecy concerns would be amply protected during further proceedings where the privilege could be invoked with respect to discrete evidence, not an entire lawsuit.

It will come as no surprise to the subcommittee that in my opinion the 9th Circuit got the law exactly right. But a single correct judicial opinion does not relieve Congress of its obligation to act in this area.

Only Congress can approve a comprehensive scheme applicable to all courts that addresses all disputed aspects of the state secrets privilege and resolves the conflict and confusion in the courts.

The need for uniform standards and practices is as urgent today as it was prior to the 9th Circuit's ruling. At a press conference the day after the 9th Circuit's ruling in the Jeppesen case, President Obama was asked about his administration's position on state secrets. The president responded: "I actually think the state secrets doctrine should be modified. I think right now it's overbroad. Searching for ways to redact, to carve out certain cases to see what can be done so that a judge in chambers can review information without it being an open court, you know, there should be some additional tools so that it's not such a blunt instrument."

Congress should provide those additional tools by enacting H.R. 984.

Thank you.

REP. NADLER: Thank you.

I'll begin the questioning by recognizing myself for minutes.

Judge Wald, during markup of the bill in the subcommittee in the last Congress, one of my colleagues cited your testimony last year as supporting a requirement that courts grant, quote, "substantial weight to assertions of the harm likely to be caused by public disclosure of information the government seeks to withhold as a state secret."

Is that accurate? Do you believe we should require that courts automatically grant special deference, substantial weight or utmost deference or something similar to government assertions? That is the standard in the Senate companion bill, but not in this bill, as you know.

MS. WALD: Yeah, Chairman Nadler, I'm glad you gave me an opportunity to address that point.

When I was here before the House Judiciary Committee last year you did not have a bill yet. No draft bill had actually been submitted.

REP. NADLER: Okay.

MS. WALD: We were talking about principles of legislation. One of the administration officials raised the proposal that utmost deference be the standard. And in that colloquy that followed I said, well, there are other places in legislation like exemption FOIA 1 that use "substantial weight."

I believe -- though I don't have that quote right in front of me, but I believe I also attached to that what I later said in a supplemental letter that went to the House Judiciary Committee. I meant the same kind of weight that any expert witness gets. And I gave a quote from Skelly Wright, in my former court, in Ray versus Turner, in which he defines substantial weight to mean only the weight that is appropriate by the demonstration of qualifications, expertise, et cetera.

REP. NADLER: So -- thank you. So you think the language in the current bill --

MS. WALD: I like the language in the current bill --

REP. NADLER: Good.

MS. WALD: -- better.

REP. NADLER: And --

MS. WALD: I think it's confusing. I'm sorry if I contributed initially to the confusion.

REP. NADLER: That's fine. Thank you.

Now, if the language of the current bill is adequate to account for government expertise, what are the risks, if any, of putting in language about utmost -- substantial weight or utmost deference? Why shouldn't we do that?

MS. WALD: Because I think that the basic principle, and the one that was endorsed by the Supreme Court in Reynolds, is the judge should be the decision maker as to whether the privilege applies. And he ought to make an independent assessment.

Other parts of your bill say that.

And I think that if you -- it takes away from that underlying principle if you start saying, well, you make an independent assessment, but you better give a lot of weight --

REP. NADLER: Okay.

MS. WALD: -- a lot of deference here or there.

REP. NADLER: Thank you.

Congressman Hutchinson, those who oppose independent judicial review of government secrecy claims often argue that it's the president and the executive branch, not the courts, that have the greater expertise and responsibility for safeguarding national security. This view, in my opinion, underestimates the ability and the responsibility of the courts in our constitutional scheme. And it also seems to overlook what you described in your testimony as, quote, "the natural tendency on the part of the executive branch to overstate claims of secrecy and to avoid disclosure whenever possible," end quote.

Doesn't the argument regarding the superior expertise of the executive branch also overlook the potential conflict of the government in the case wherein information that it seeks to withhold might prove embarrassing, politically or otherwise, might provide evidence of unlawful conduct or otherwise undermine the position it's taking in the case?

MR. HUTCHINSON: Well, the key point is that we have to give the courts the tools and the guidance to assure an independent review. Any language such as "substantial deference" would undermine that independent review.

In terms of the ability of the courts to weigh expert testimony, that's what's marvelous about our judiciary and our rule of law in this country is that you can have a judiciary listen -- they don't have to be experts on patent law to make a fair decision, or an expert in engineering to make a fair decision in an engineering case.

REP. NADLER: So you would trust the expertise of the courts?

MR. HUTCHINSON: The expertise of the courts to weigh, fairly, the expertise under normal guidelines of what's presented to them.

REP. NADLER: Thank you.

Mr. Wizner, in cases that you've handled, the government has argued that the entire subject matter, like rendition to torture, is a state secret.

In the last Congress we held hearings on rendition. The government acknowledged that, quote, "Rendition is a valuable tool in the war on terror," unquote. And other governments have concluded -- have conducted extensive examination of particular cases.

In view of these facts, what are we to make of the government's argument that the entire subject matter is too secret and warrants outright dismissal of the cases?

MR. WIZNER: I think, Chairman, that it is evidence that the government's approach to secrecy in these matters is somewhat more opportunistic and malleable than it may seem.

On the very day that I was in court in San Jose, California, in the Jeppesen case, responding to government lawyers' assertions that that case should be thrown out on subject-matter grounds, former CIA Director Hayden was in Congress testifying that the CIA had waterboarded three individuals.

And so -- that when it is in the government's interest to reveal those matters, for whatever reason, the government is quite forthcoming with that information if it needs to put it in the public record to ensure that it can prosecute or execute alleged terrorists.

When it finds itself in the position of being a defendant in a civil case, the same information becomes secret as a way of avoiding accountability.

REP. NADLER: Thank you.

Without objection, I'll grant myself on additional minute so you can answer one more question, Mr. Wizner.

Why should the government be required to prove item by item that disclosure of particular information -- particular piece of evidence would harm national security? Why isn't it sufficient for the court to accept as reasonable the government's assertion that, in its expert view, litigation will require revelation of state secrets at some point, that dismissal is justified a the initial pleading stage?

MR. WIZNER: Judges are not clairvoyant. Judges are not in a position, at the beginning of a litigation, to determine what evidence will or will not be necessary for the parties to make or defend their claims before that evidence has even been presented by either side.

And when that argument is being advanced by an executive branch official who stands to gain from the dismissal of the lawsuit, I think courts need to be even more wary about it because of the inherent conflict of interest that's there.

It is never a waste of judicial resources to allow parties to have their day in court and to try to make their case. And a court cannot know at the outset that a plaintiff will not be able to come up with alternative means of proving its case without recourse to state secrets.

REP. NADLER: Thank you very much.

And that concludes my questioning for the moment -- maybe for more than the moment.

I now recognize the distinguished ranking member of the subcommittee, the former chairman of the committee, for five minutes, Mr. Sensenbrenner.

REP. SENSENBRENNER: Thank you very much.

Judge Wald, I have a quote from your testimony before the predecessor of this committee -- subcommittee on January 29th, where you talk specifically about substantial weight being given to a government assertion. And you seem to approve of that.

And you also quoted the FOIA statute that requires a court to give substantial weight to a government assertion when someone's trying to get some information under the Freedom of Information Act.

Have you changed your mind since last year on this subject, and if so, why?

MS. WALD: I have not changed my mind. Perhaps I'm in that close group of people, currently, who wish they had stated things a little more clearly the first time around.

REP. SENSENBRENNER: We all have that problem.

MS. WALD: Yes, yes. I'm sure.

REP. SENSENBRENNER: So --

MS. WALD: But I do want to just -- on this particular -- as I pointed out when I was before this committee, there wasn't any bill. There wasn't anything that we were focusing on specifically. We were talking about principles.

When I talked about substantial weight, I used it as an example of a standard that was in FOIA Exemption 1. But I do want to make one thing clear, Congressman Sensenbrenner: That is, it isn't even in the FOIA text. It's only in the conference committee report. So we don't even have an example where it's actually in the statute.

Now, I did use "substantial weight" the way, in my view -- even looking at the phrase, I interpret it the way Judge Wright did, which says -- and I've put that quote in my testimony here today, as well as in the supplemental letter to the committee -- which says, it does not mean some kind of blanket notion that when the witness comes and says, "I represent the government," immediately he gets -- he or she gets deference -- that it means, according to Judge Wright -- and I think that's the correct meaning -- it means that you get the kind of weight, special weight from the judge that the qualifications, experience and inherent persuasiveness and coherence of the testimony render it.

I could give you an example, but I don't want to use up other people's time.

REP. SENSENBRENNER: Well, let me pursue this further.

MS. WALD: Sure. Okay.

REP. SENSENBRENNER: Maybe I should compliment you, as it's starting to sound like Justice Scalia, who doesn't think that anything we say over here makes any difference when a matter gets in court. But even if you accept legislative history in using substantial weight in the FOIA request, it seems to me that the type of material usually requested in FOIA is much less sensitive than a material where an allegation of a state secret is asserted by the government.

And doesn't it concern you that we would be having different standards if we have different types of weight that are to be accorded to government assertions or administration assertions when record or information are attempted to be sought from the government?

MS. WALD: Well, number one, I'm not sure. I simply don't have the experience -- although I've encountered both kind of cases on the bench, both FOIA Exemption 1 and a form of state secrets -- but I don't have the wide experience to validate what you say that somehow state secrets are likely to involve much more sensitive material.

In fact, my chief experiences with FOIA Exemption 1 -- and there were some very sensitive materials that were raised in some of those cases, including the aborted helicopter rescue of the people at the end of the Carter administration, et cetera.

But here I want to make another point, and that is that the Jeppesen case, I think, if I have the right case, specifically addressed this and pointed out that they believed that different standards might be appropriate, because what was -- what is at stake in FOIA Exemption 1 is simply a citizen wanting to get the information, not having to show any particular injury or any particular stake in the balancing of equities. He just wants is.

On the other hand, if you're in a civil case where there's an allegation of injury -- serious injury, the stakes are much more important.

So I'm not sure -- and the third thing I want to point out is judges have interpreted FOIA Exemption 1 differently, as I pointed out. Some kind of stay -- won't even look at the material and take the government's affidavit at face value, but others look into the affidavit and they say, well, it doesn't make a lot of sense to me. And I don't think it's credible. And I'm not going to give it --

REP. SENSENBRENNER: Well, that gets to my final question.

Currently we do have a body of law with the substantial deference standard that is in the current law -- that this legislation repeals and does not substitute another standard and basically makes this a matter of judicial discretion.

Aren't we likely to get less certainty on what is a legitimate claim suppression of information if we start from scratch on what the case law would be rather than keeping the current standard in the law?

MS. WALD: I think not, because, as I said in my opening remarks, I think you've got -- you don't have a consistent body of law with a consistent standard now. And I -- so therefore, I think it's all over the map. I think it would be -- we could almost begin anew with the standard that's in this law and begin to build that body. I don't think we're going to lose anything in consistency form the current law.

REP. NADLER: I thank the gentleman.

I now recognize for five minutes the distinguished chairman of the committee, Mr. Conyers.

REP. CONYERS JR: Thank you, Mr. Chairman.

Since I know the president and the attorney general better than anybody in this room, would you explain to me why the president is so ambivalent and why the attorney general didn't send anyone to this hearing?

MS. WALD: Who was that addressed to? I'm sorry.

REP. CONYERS: Anybody.

MR. GROSSMAN: If I could, there's a saying that I've heard from a lot of my friends who've been in the military. And that is, where you stand depends on where you sit.

REP. CONYERS: (Laughs.)

MR. GROSSMAN: When Senator Obama -- when President Obama was in the Senate and when he was campaigning for the presidency he had a very different position on the state secrets privilege.

Now that he is in the executive branch, and now that he has seen the usefulness and the utility of that and the importance of it, he seems to have reached a very different view. I can understand that might be politically inconvenient for him to come here and say that. But I think there's some evidence that that is what has occurred.

REP. CONYERS: I was afraid you'd be the one that would answer my question. (Laughter.)

REP. BILL DELAHUNT (D-MA): Would the gentleman yield for a moment?

REP. CONYERS: Yes.

REP. DELAHUNT: Yeah, Mr. Grossman indicated there's some evidence. What is the evidence? Or are you speculating?

MR. GROSSMAN: I am speculating based on the assertion --

REP. DELAHUNT: You're speculating. That's fine.

I yield back to the gentleman.

REP. CONYERS: (Laughs.) No, please, go ahead. Why?

MR. GROSSMAN: When they were in the Senate both Senator Biden and Senator Obama were both very strong critics of the state secrets privilege. Since assuming office, the administration has used the privilege in at least three cases of which we are aware. And at least -- and all three of those cases were very controversial invocations of the privilege, cases that have resulted in much debate in this Congress, as well as in the public sphere.

These are the sorts of cases that Senator Biden, especially, was critical of, prior to joining the executive branch.

So, yes, it's speculation. I have not asked anyone in the executive branch what their exact thinking on this is, but I think a reasonable conclusion can be drawn by the facts of what has actually occurred.

REP. CONYERS: Well, since you've been so expert with the president, can you explain the attorney general's failure to provide a witness?

MR. GROSSMAN: No. (Laughter.

)

REP. CONYERS: Anyone else want to weigh in on this?

MR. HUTCHINSON: Well, I'll just say, I think that -- I appreciate the fact that the attorney general is looking within the executive branch as to refining their internal procedures on assertion of the state privileges doctrine.

But to me, that really raises the profile and the necessity of Congress to act. And so, whether they're here or not, to me -- they're working on their branch of government, but I'm delighted that Congress is considering it at the same time -- more comprehensive reform.

REP. CONYERS: Well, Mr. Frank (sic) and I are the two people that raised the question of unconstitutionality more than anybody I can think of in this committee. What do you think about the unconstitutional charge on this measure, Mr. Wizner?

MR. WIZNER: Well, I share the views expressed by Judge Wald in her opening remarks, that Congress has the constitutionality -- the constitutional authority to legislate in this area.

I would only add that my understanding of the arguments that this bill would be unconstitutional would apply to equal force to the Freedom of Information Act, to the Foreign Intelligence Surveillance Act and to the Classified Information Procedures Act.

These are all bills that give courts tools to handle sensitive and classified information and create procedures for courts to do that. None of those intrude on the president's constitutional authority and neither does this legislation.

REP. CONYERS: Judge Wald, would you further comment?

MS. WALD: Well, I certainly agree with what Mr. Wizner has said.

All privileges -- not all privileges -- many privileges have little, you know, sort of tinges of constitutionality about -- the executive privilege, certainly. And they -- you could all go back and say we need this. The executive has got to have this. It's got to have more power in order to fulfill its commander-in-chief powers or to fulfill, in the case of executive privilege, its ability to run the government.

But yet, I think that these privileges have been considered to be susceptible to congressional concern, going way back to 1969, when we were going to have federal rules of evidence with more detail. There actually was one drafted to deal with the state secrets privilege. Then Congress abandoned the attempt to have a very specific set of codes on it.

So I don't think the Supreme Court, in Reynolds or any place else, suggested that this was some kind of sacrosanct constitutional privilege that couldn't be touched.

REP. CONYERS: Asa Hutchinson, what say you?

MR. HUTCHINSON: Well, I think the argument is that somehow legislating in this area impedes the executive from his national security responsibilities and protecting our country. And I don't see any challenge to that authority at all.

The legislation that's being considered doesn't stop them from exercising state secrets, form implementing national security programs. It doesn't change the fact that they can assert that privilege, it just says that when it gets to the courts, after the fact, always, when it's going to be reviewed, then there's going to be a process in our system of checks and balances.

So I do not see this as taking away from the authority of a chief executive, in terms of national security.

REP. CONYERS: Well, if we were in court, Mr. Grossman, you'd be on the short end of this discussion. (Laughter.)

MR. GROSSMAN: That is perhaps true, numerically speaking. (Laughter.)

I think if you look at the Supreme Court's decisions, their opinions in Chicago and Southern Air Lines, in Nixon, in Elgin (ph), time and time again the court has said that secrecy is, in some domains, a necessary incidence to the executive power and the commander-in-chief power. In other words, those powers cannot be fully exercised without a strong degree of secrecy.

Further, the court has actually said that the executive has an innate constitutional power to control access to classified information, in other words, who is trustworthy enough to receive certain types of classified information, specifically, in diplomatic affairs, as well as in military and national security affairs.

It is my opinion that this legislation intrudes on that power that the executive has. And for that reason it would be unconstitutional.

REP. NADLER: Thank you.

Mr. Grossman, you cite these cases where the Supreme Court has said that secrecy is inherent in the executive. But it is true, is it not, that the Supreme Court has always said that these powers are not unlimited, not absolute? The "Pentagon Papers" case, for instance, there's a limitation on secrecy. In fact, no executive power -- no congressional power, for that matter -- is absolute.

MR. GROSSMAN: You are correct that no power is absolute.

REP. NADLER: Thank you.

MR. GROSSMAN: At the same time, no power is empty, either.

And to devoid the executive of any discretion whatsoever on --

REP. NADLER: No wait, this bill -- what we're discussing that doesn't devoid anything. It simply subjects the executive's power of secrecy to -- in the context of court cases -- to supervision by the court and to ultimate approval by the court. That's what it does. So just to talk about empty -- to just throw around phrases about the executive has power of this and that -- in fact, the Congress has power under Article 1, Section -- I forget, that we quoted before -- to regulate evidence, to regulate the admissibility of evidence. It's a very specific grant of power. And that's what this is doing.

MR. GROSSMAN: I would argue, however, that that particular grant of power is not unlimited. For example --

REP. NADLER: So you would argue that a general power supersedes a specific grant of power?

MR. GROSSMAN: I would say it's not unlimited in the sense that, for example, this body could not abrogate the Fifth Amendment privilege against self-incrimination, despite its power to regulate the --

REP. NADLER: Because there's a specific limitation on that power.

MR. GROSSMAN: And --

REP. NADLER: It's a general rule of construction that specific supersede generalities. And you're reversing that.

MR. GROSSMAN: I would disagree.

I think very specifically the Constitution assigns the executive power of the constitutional power to the president of the United States. If secrecy is a necessary incident of that power, then that is the president's power.

REP. NADLER: Okay.

REP. CONYERS: Well, Mr. Grossman, if we were in court I'd ask you to come back to chambers after we finished our session. But I appreciate your constructive attempts to defend your proposition.

And I yield back, Mr. Chairman.

REP. NADLER: Thank you.

I now recognize the gentleman from Iowa for five minutes.

REP. STEVE KING (R-IA): Thank you, Mr. Chairman.

And Mr. Grossman, I want to compliment you on the nimble response to the chairman of the full committee.

And first -- I'd first, though, welcome Mr. Hutchinson back to the Judiciary Committee. And I thank all the witnesses for your testimony.

And I'd first like to ask: Mr. Hutchison, as I was able to hear most of the testimony here and review some of it in print and look back over the history of this country and wonder when it is that -- I've been alarmed that the state secrets doctrine or executive privilege has caused someone to lose their rights or their privacy or made the nation less safe. Or was there anything in history that we needed to know about that we weren't able to learn from because it was rolled up in an executive privilege?

The bottom line, and my question is, Mr. Hutchinson, what are we trying to fix here?

MR. HUTCHINSON: You know, and that's where I'm not coming to this hearing in a critical fashion. Others have had different experiences. I'm coming to this from the standpoint that, regardless of the history of it, we have responsibility to make sure the potential for abuse is minimized by a system of checks and balances.

And I come at this as a conservative. I do not believe in an unfettered and unchecked executive branch any more than I believe in an unchecked and unfettered judiciary branch. We all have checks and balances.

And so, here, to say the executive can assert a state secrets privilege without any review, with broad authority, unbridled authority I think goes against the principles of our Founding Fathers. So that's sort of the direction I'm approaching it.

REP. KING: Well, I appreciate that. And I just -- this is just a point of information as a longtime member of Congress and esteemed former member of this committee -- I ask if you've ever gone into a classified hearing and -- or classified -- well, yeah, classified hearing, given up your BlackBerry and your cell phone and come back and recovered that and then stepped in front of a television screen and seen the similar briefing already coming out in the news almost simultaneously. And I think all of us have.

And so, that's the point of my concern. And I wonder if you care to speak to that?

MR. HUTCHINSON: Your point's well taken that there is a history -- and I might say, I think that if other branches of government that has spoken about what has been classified information, the executive branch actually excels in that. And so, often something is classified and two days later you'll see an official go out and speak about that very subject.

Now, I think that the track record with the courts is totally different. I think part of it is they don't have to stand for election in the federal judiciary. And so they have a track record that is extraordinary in protecting classified information -- both with the FISA courts, that I think has been exemplary -- but also with the Classified Information Procedures Act.

REP. KING: Mr. Hutchinson, I agree with that point that you've made. And know it was made in the testimony earlier. I'm glad it was brought out again. And I thank you for your response.

And I turn to Mr. Grossman and in light of the nimble nature you have responded to previous comments or questions. I'd ask you if you could address this panel on the limit or the scope of the existing executive privilege, state secrets doctrine?

Let me just say, hypothetically, if there was a White House that had contracted with an enterprise that had the trappings of a criminal enterprise to engage in, as a contractor, into working with developing the census -- which happens, of course, every 10 years here in the United States -- and if the results of that census might dramatically change the congressional districts in America, change the political dynamics in America, if those results of counting the people -- although maybe extrapolated by formula rather than the actual constitutional requirement to count people -- if those -- and if that appeared -- that enterprise, that appeared to be a criminal enterprise, were something that happened to be also supportive of turning out the vote for that very same White House, would there be able to express or assert an executive privilege that would keep us from finding out the details of that contractual organization, Mr. Grossman?

MR. GROSSMAN: No, I do not believe that would be the case, for the reason that that particular organization that you describe, as well as the purpose to which that relationship is directed do not concern national security, they do not concern military affairs and they do not concern --

REP. KING: I thank you, Mr. Grossman.

And then into this record I'd like to point out that there are many more suspicious activities taking place with that hypothetical organization, which I'll now name as ACORN. And I'd like to see this committee look into ACORN. And I'd ask the chairman of the full committee to reconsider his reconsideration. And I'd ask the chairman of the subcommittee to take a look at the evidence that has been filed into this record, which is substantial, and purely justifies an investigation into ACORN. I'd ask that you do so.

And I would yield back the balance of my time.

REP. NADLER: And I will say that after you join as a co-sponsor of this bill I will consider that request. (Laughter.)

REP. KING: Is that a deal!

REP. NADLER: I now recognize for five --

You yielded back, right?

REP. KING: I yield back.

REP. NADLER: I now recognize for five minutes the distinguished gentleman from Massachusetts.

REP. BILL DELAHUNT (D-MA): Yes, thank you, Mr. Chairman.

And let me extend a personal welcome to our former colleague and my friend whom I remember having breakfast with during -- (laughs) -- our first term together here in the Congress, talking about the separation of powers and other issues, as I'm sure you remember, Asa. It's great to have you here.

And by the way, you're sorely missed. It'd be good to have you back on this side of the dais. And I read your testimony. And I'm in total agreement. I think you've really captured what the issues are. And when we talk about the separation of powers what we're really talking about are limitations on the power of each of the co-equal branches.

And as I listen to Mr. Grossman, his version, or his understanding of Article 2 is clearly in line with, I think, Mr. Cheney's and Mr. Addington's. And I, for one, believe that what has occurred over a period of time is the accretion of simply too much power, you know, to the executive.

And again, I want to be clear this has no partisan tint to it. I think we're really talking about core constitutional order here. And people can have disagreements, in terms of the powers of the executive.

And let me put this out: You know, when we talk about state secrets, underlying that is the power to classify. And I think what we have failed to do as a committee is examine the process of classification, because what I see again and again is classification of material that is later declassified or comes, as you suggest, or as the gentleman from Iowa indicated, goes into the public domain. And everyone is perplexed simply because there appears to be no rational basis for classifying that information.

So, you know, the -- Mr. Grossman seems to have great confidence in the executive. His testimony is, there's seven separate requirements, including Department of Justice review and personal consideration by high-ranking federal officials, ensuring that the state secrets privilege is used only when necessary to protect state secrets.

And I respect the sincerity of his belief. Yet, at the same time, that, in my judgment, is not what the founders designed when they created the Constitution and that there was meant to be these checks and balances. It's a distrust of government, if you will.

You indicated you're a conservative. I share your conservatism in this particular area, because it is so fundamental. You know, secrecy really is the hallmark of totalitarianism. And transparency is clearly an aspect of a viable, healthy democracy. And I think we've got to keep that -- we're out of balance. We're out of kilter now.

I'm not here to defend the Obama administration. This is something that the United States Congress must do to reorder, if you will, the balance of powers and the separation of powers.

We ought to be looking at, how are things classified? I know how things are classified in some agencies. There's somebody in a cubicle somewhere that's just redacting. You've experienced that.

Mr. Grossman, you make a statement that says that it's -- it could be unduly burdensome for the courts to have to actually review the information. What leads you to that conclusion?

MR. GROSSMAN: That it would be unduly burdensome for the --

REP. DELAHUNT: Right.

MR. GROSSMAN: -- courts to review classified information?

REP. DELAHUNT: Right.

MR. GROSSMAN: In certain cases, especially those that are challenging extensive secret programs there may be enormous amounts of data that would be --

REP. DELAHUNT: How many of these cases have you been involved in?

MR. GROSSMAN: Directly?

REP. DELAHUNT: Right.

MR. GROSSMAN: I'm not a litigator.

REP. DELAHUNT: The answer is you haven't been involved in any of these cases.

MR. GROSSMAN: I'm a researcher; I do not litigate cases. That is --

REP. DELAHUNT: Fine. Okay.

Well, let me suggest to you I have been involved in -- and as I know Mr. Hutchinson has as well -- as a prosecutor in numerous cases. I've interacted with judges who are trial judges. Let me assure you, the judiciary has the capacity. To suggest it's an undue burden on the judiciary simply is not accurate.

And you ought to speak to some litigators and some judges before you make such statements. And I say that to you with respect.

REP. NADLER: The gentleman from Georgia is recognized for five minutes.

Sorry, Arizona. (Laughs.)

REP. TRENT FRANKS (R-AZ): That's all right. They're close. (Laughter.)

Thank you very much, Mr. Chairman.

And I, too, want to welcome my very respected friend Asa Hutchinson. You know, I understand he's a little bit on the other side of the issue here today, in a sense. But it just shows that even the most sage and wise among conservatives can become a little disoriented now and then. (Laughter.)

But no, actually, Mr. Chairman, I know that he's coming from essentially the same foundation and perspective that I do -- perhaps come to a slightly different conclusion. But we're very, very glad that you're here. And thank you for your service, sir.

Mr. Chairman, I can't help but notice the pattern that seemed to come from the conversation you had with Mr. Grossman.

You know, this administration recently decried enhanced interrogation and certainly in the campaign did the same. And of course, as you also know, they reserved unto themselves the right to use the same techniques if they thought they were necessary.

Just recently -- just I think today the administration called -- Mr. Obama called the Iraq war a war choice and yet he chooses to continue to persecute -- or prosecute that war. And he has a withdrawal timetable, essentially the same as the Bush administration.

The Guantanamo Bay issue has been brought up a great deal. And yet, it appears that the result will be either terrorists in the United States, subject to all of our constitutional rights or the creation of essentially the same as Guantanamo Bay.

The surveillance techniques that were decried so profoundly by the Obama administration and Obama campaign have been essentially left in place the same way.

I even heard the president the other day say that we cannot sustain this deficit spending. It's enough to really amaze you sometimes.

The Obama Justice Department has invoked the state secrets privilege in three court cases since the president took office. According to The Washington Post editorial page, the Obama administration's position on state secrets makes it hard to distinguish from its predecessor.

According to USA Today's editorial page, quote, "The Obama administration's decision to embrace the Bush legacy on the state secrets doctrine has the all the elements of hypocrisy."

Anthony Romero, the executive director of the ACLU has written that, quote, "When it comes to key national security policies, the Obama administration is continuing along the path paved by the previous administration. The new administration has embraced or only superficially modified several policies held over from the Bush era, including the use of the state secrets claim that the Justice Department invoked last month to throw out the ACLU suit on behalf of rendition victims. This is not change; this is definitely more of the same."

Now, Mr. Chairman, I just got to tell you I'm thankful that Mr. Obama's had some epiphanies lately. I hope that he accelerates those epiphanies, because I think the national security of the country and the economic future and the constitutional foundations of the nation are at stake.

But with that said, I'm going to give Mr. Grossman an opportunity. The ACLU said this is not change; this is more of the same. And I'm going to give you a chance to disagree or agree with the ACLU director.

MR. GROSSMAN: I agree entirely. And I think it's quite heartening. I think it demonstrates that this is not a partisan matter. This is something -- it is not a political matter. It's about the safety of our nation. And it's something where, among -- between political -- I'm sorry, between presidential administrations, there has been no disagreement.

REP. FRANKS: Well, Mr. Chairman, I guess that's my main point. I know I took the opportunity to express some feelings of -- that the administration has been hypocritical in some of the attacks that it made on the previous administration and has come to some realities that are always easy to ignore in a campaign.

What is important here I think is for all of us to realize that truth and time travel on the same road. And that truth always has the last word and that somehow, perhaps in this institution and in our campaigns, we should try to figure out what's right instead of who's right all the time.

And with that I yield back. Thank you.

REP. NADLER: I thank the gentleman.

I think the purpose of this hearing is, regardless of the position of any administration, to figure out what's right, not who is right. And I agree with the gentleman in that.

I thank the witnesses.

Without objection, all members will have five legislative days to submit to the chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond as promptly as you can so that their answers may be made part of the record.

Without objection, all members will have five legislative days to submit any additional materials for inclusion in the record.

Without objection, I thank the witnesses and the members.

And with that, this hearing is adjourned. (Sounds gavel.)


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