Hearing of the United States Senate Judiciary Committee on State Secrets Privilege

Statement

Hearing of the United States Senate Judiciary Committee on State Secrets Privilege

KENNEDY ON STATE SECRETS PRIVILEGE
United States Senate Judiciary Committee Hearing

(As Prepared for Delivery)

I commend Chairman Leahy for holding this hearing. It's long past time for this Committee to address the state secrets privilege, and I look forward to the testimony of our distinguished panel of witnesses.

Chairman Leahy, Senator Specter, and I recently introduced a bill to regulate judicial review of the privilege. The bill is called the "State Secrets Protection Act," and I commend Senator Leahy and Senator Specter for their commitment to this effort. By working together, we can make real bipartisan progress on this fundamental issue.

The goal of our bill is to protect legitimate state secrets from disclosure, prevent misuse of the privilege, and allow litigants to have their day in court. Federal judges already handle sensitive information under the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act. There is no reason they can't do so in civil cases as well.

Our bill has already been endorsed by a number of legal groups and scholars. As a New York Times editorial stated, it will "give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind unsupported claims. . . . . Of course, legitimate secrets need to be protected, and the legislation contains safeguards to ensure that." Similar editorials have been published by the San Francisco Chronicle, the Salt Lake Tribune, and numerous legal blogs.

This hearing will provide valuable insight on the bill as we move it toward mark-up. With the Chairman's permission, there are a number of items I would like to include in the record to help clarify the issues we will be discussing today. All of these documents show why there is a need for Congress to take action on the state secrets privilege.

First is a letter to Congress by 23 eminent scholars last October. They wrote that "legislative action [on the privilege] is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."

Second is a bipartisan report released by the Constitution Project last May, on "Reforming the State Secrets Privilege." The report explains the problems with current law on the privilege and concludes that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."

Third is a report last August by the American Bar Association along the same lines, "urg[ing] Congress to enact legislation governing federal civil cases implicating the state secrets privilege."

Fourth is a statement by the ABA's president-elect, prepared two weeks ago for a hearing in the House, endorsing our bill.

Fifth is a statement submitted for this hearing by William H. Webster, who was a federal district judge for 3 years, a federal appellate judge for 5 years, Director of the FBI for 9 years, and Director of the CIA for 4 years. If anyone knows the state secrets privilege from both the executive and the judicial perspective, it is William Webster. In his letter, he says:

As a former Director of the FBI and Director of the CIA, I fully understand and support our government's need to protect sensitive national security information. However, as a former federal judge, I can also confirm that judges can and should be trusted with sensitive information and that they are fully competent to perform an independent review of executive branch assertions of the state secrets privilege.

He concludes by saying this:

Granting executive branch officials unchecked discretion to determine whether evidence should be subject to the state secrets privilege provides too great a temptation for abuse. It makes much more sense to require the executive branch to submit such evidence to the courts for an independent assessment of whether the privilege should apply. Courts, not executive branch officials, should be entrusted to make these determinations and thereby preserve our constitutional system of checks and balances.

The sixth item is an analysis sent to me on February 8th by William G. Weaver and Danielle Escontrias. Professor Weaver is a leading expert on the state secrets privilege, and his analysis responds to an empirical study published by one of our witnesses, Robert Chesney. Professor Weaver raises some concerns about Professor Chesney's methodology, and he finds that "exploitation of the privilege over the last several decades . . . represents a serious threat to congressional oversight and the ends of justice."

Finally, I'd like to put in the record two personal letters I received. As many in this room are aware, the leading case on the state secrets privilege is United States v. Reynolds, which has been heavily criticized. The first letter says:

My name is Patricia Reynolds Herring, and I'm the Reynolds in the 1953 case, U.S. v Reynolds.

My husband was one of the nine men killed in an air force crash over Waycross, Georgia on October 6, 1949. We were young newlyweds of less than two years, and my husband was a civilian engineer working on an experimental Air Force project named Banshee. . . . After the crash, we three widows filed a negligence suit against the government, which we won. The government appealed, and we again won. The case was then sent to the U.S. Supreme Court. At that time, the government . . . refused to release the crash report, even in camera. They cited classified material that would jeopardize the national security of the country. The Court then allowed the ruling of the District Court to stand, thus establishing the state secret privilege, a precedent which has since been used by the government again and again throughout the years.

When the crash report was declassified in the late 1990s, however, it became clear that no sensitive material was involved. What was apparent was the negligence and cover-up that had occurred, needlessly costing the lives of these innocent men. It was this mishandling by the Air Force that was being protected, not state secrets. . . . .

In the intervening years since 1953, the state secrets privilege has been repeatedly used—and misused—especially in recent years. I am saddened to see my former husband's name evoked in cases that fail to give private citizens the full measure of protection of the law, as intended by our Constitution. Our country is better than that.

I am very grateful, therefore—and hopeful—to have seen S. 2533 [the "State Secrets Protection Act"]. . . . I'm confident that this bill could be a positive step in creating a safeguard to balance U.S. v Reynolds. This would give me great comfort.

I also received a very moving letter from Susan Parker Brauner, whose father was killed in the Reynolds airplane crash. Ms. Brauner's letter concludes: "Correcting the flaws currently in the state secret privilege will not give back the life that a young couple [Ms. Brauner's parents] had hopefully planned together all those years ago. It will, however, most certainly provide a measure of justice to all the families whose loved ones were killed on the flight."

Each of these documents, Mr. Chairman, helps to make clear why this hearing is so important. It's not just about abstract principles of separation of powers, open government, and constitutional rights—it's also about whether real people can achieve justice in our courts. I look forward to our discussion.

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