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Hearing of the United States Senate Judiciary Committee on State Secretes Protection Act


Location: Washington, DC

Hearing of the United States Senate Judiciary Committee on State Secretes Protection Act

(As Prepared for Delivery)

I commend Chairman Leahy and Senator Specter for their leadership on the state secrets legislation, and I'm pleased that Senators Feingold, Whitehouse, Schumer, and Biden from this Committee have signed on as co-sponsors. Before we mark up the bill, I'd like to make a few brief remarks.

We've been working on this bipartisan bill for several months, and the Committee held an excellent hearing in February. Congress needs to address the state secrets privilege, and I hope we can report the bill out of Committee today. As Pat Wald, the former Chief Judge of the D.C. Circuit, testified at our hearing: "There is a wide consensus in the legal community" that Congress should set regulations on the state secrets privilege—and that "the time is now ripe for such legislation."

A major concern is that the privilege is being abused to cover up executive-branch wrongdoing. The privilege has been asserted in a number of high-profile cases challenging the Administration's warrantless wiretapping program and its interrogation of detainees, including their so-called "extraordinary rendition" to foreign countries.

Under this Administration, every case relating to torture has been dismissed at the outset, typically because of the state secrets privilege, without the courts making any ruling on the merits. Every case. Both Congress and the Administration agree that torture is always illegal and unconstitutional. Yet the courts won't give a legal determination as to whether it happened. Congress needs to ensure—and the American people need to feel confident—that the courts are adjudicating the privilege properly and not just giving the Executive a free pass.

Since the privilege was first recognized by the Supreme Court in 1953, courts have actually reviewed the evidence alleged to be privileged in fewer than a third of the cases. Many cases are simply dismissed once the privilege is invoked, without the court considering any evidence at all. Congress needs to bring clarity and accountability to this area and restore the public trust.

This legislation is not just about safeguarding the rights of private parties, important as that is. It's also about safeguarding the public interest, shared by all Americans, in having an executive branch that complies with the law and the Constitution and in preserving the integrity of our courts. In America, no one should be above the law. That's why this legislation is so critical and why it has such broad support.

The Attorney General's defense of the status quo rests on numerous inaccurate characterizations of the bill and the relevant case law. His recent letter repeats many of the unfounded arguments of the Justice Department in recent years, based on their theory that when it comes to national security, the executive branch has unfettered discretion. It's the same reckless and discredited logic that led to the Bybee torture memo, the warrantless wiretapping scandal, and other extreme claims of executive power by this Administration.

For example, the Attorney General wants courts to do a sham review and give the executive branch "utmost deference." What the Attorney General neglects to mention is that the executive branch is not a neutral party in these cases. Of course it wants "utmost deference" when it's accused of breaking the law! No one denies that the institutional expertise of the executive branch deserves respect, but it does not deserve a blank check from Congress to violate the Constitution and the rights of Americans.

Everyone should've received a copy of the Manager's Substitute Amendment prepared by the original sponsors of the bill. The substitute makes a number of changes to address issues raised since the bill was introduced. For example, it defines "evidence" to include any items that might be admissible or discoverable. This ensures that the privilege will protect sensitive information at every stage in litigation. The substitute also clarifies and strengthens the use of security clearances, hearings, and congressional reporting under the bill.

A letter I recently received from a number of leading legal scholars in the field says this:

"We support the State Secrets Protection Act for three main reasons.

"First, by setting out parameters for use of the privilege, the Act ensures that most cases challenging the legality of government conduct will be able to proceed . . . and will do so without jeopardizing national security. . . . . These guidelines will assist the courts and litigants . . . rather than leaving them to flounder under the ad hoc procedures and varying standards employed by the courts today.

"Second, the Act ensures that sensitive national security information will not be publicly disclosed. The Act provides the same security safeguards that have proven effective in Classified Information Procedures Act cases, and prevents privileged evidence from ever being produced.

"Third, . . . the Act reestablishes Congress's role in regulating the cases that come before federal courts and the evidence that can be heard in such cases. . . . . Congress is the branch of government best situated to craft procedures to protect national security information without sacrificing litigants' rights . . . . The State Secrets Protection Act provides a systematic approach that takes into account both the security of the country and the interests of litigants—an outcome that the judiciary and the executive cannot achieve on their own."

The State Secrets Protection Act is necessary, the letter goes on to say, "because it strengthens our system of checks and balances, strikes the right balance in protecting national security without unnecessarily sacrificing litigants' ability to vindicate their rights in court, and provides much-needed guidance to courts and litigants."

Recent editorials by the New York Times and the Washington Post say the same thing. The Times blasted the Attorney General's letter, and said this bill is an "essential reform" that would protect legitimate secrets but "make it harder for this or future administrations to use a flimsy state secrets claim to avoid exposure of illegal or embarrassing conduct."

The Washington Post editorial page is known for being a strong defender of executive power. Recently, it supported the Bush administration's efforts to secure retroactive immunity for telecommunications companies that cooperated with the NSA's warrantless wiretapping program. But like the Times, the Post has also published two editorials in support of the bill. The Post says this is a "balanced" bill that "gives plaintiffs a fighting chance to litigate their grievances but [also] respects the needs of the Executive to keep certain information out of the public square," and the Attorney General is "wrong to oppose" it.

Finally, in addition to the numerous editorials and letters we've already received in support of the bill from scholars, litigators, and former government officials in both Republican and Democratic administrations, we've received a number of new letters in the days before this markup—from the American Bar Association, the American Civil Liberties Union, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, the Library of Congress, constitutional scholars, national security experts, and others—and I'd like to ask the Chairman to include the letters in the Committee record.

Thank you. I urge the Committee to approve this important measure.

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