[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 REFORM OF THE STATE SECRETS PRIVILEGE 

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 29, 2008

                               __________

                           Serial No. 110-74

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia  JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel





















                            C O N T E N T S

                              ----------                              

                            JANUARY 29, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4

                               WITNESSES

Mr. H. Thomas Wells, Jr., President-Elect, American Bar 
  Association
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Ms. Judith Loether, daughter of victim in U.S. v. Reynolds
  Oral Testimony.................................................    23
  Prepared Statement.............................................    24
The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court 
  of Appeals for the D.C. Circuit
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Mr. Patrick F. Philbin, Partner, Kirkland & Ellis
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34
Mr. Kevin S. Bankston, Senior Attorney, Electronic Frontier 
  Foundation
  Oral Testimony.................................................    43
  Prepared Statement.............................................    45

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     6






















                                APPENDIX

Material Submitted for the Hearing Record........................    71


                 REFORM OF THE STATE SECRETS PRIVILEGE

                              ----------                              


                       TUESDAY, JANUARY 29, 2008

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:11 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Wasserman 
Schultz, Watt, Cohen, Franks, Issa, King, and Jordan.
    Staff present: David Lachmann, Subcommittee Chief of Staff; 
Burt Wides, Majority Council; Heather Sawyer, Majority Counsel; 
Caroline Mays, Professional Staff Member; Paul Taylor, Minority 
Counsel; and Jacki Pick, Minority Counsel.
    Mr. Nadler. Good morning. 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 5 minutes for an opening 
statement.
    Government has always needed to keep certain sensitive 
information secret. The challenge for a free society has always 
been to balance the need to keep secrets with the openness 
necessary for democracy to function. It has never been easy to 
strike this balance.
    What happens when claims that information must be kept 
confidential conflict with the rights of individuals to obtain 
justice in our courts or when coordinate branches of Government 
must make decisions concerning matters that the executive 
claims are too sensitive to be discussed even with them? Today, 
we examine just that problem.
    In too many cases, claims of state secrets have succeeded 
in keeping important cases out of court entirely or preventing 
courts from considering evidence vital to the outcome of a 
case. Courts have sometimes proved overly deferential to these 
claims, refusing even to look behind decisions of the state 
secrets privilege to determine whether it has been made in good 
faith, and we know that in some cases it has been made in bad 
faith.
    We will hear today from Judith Loether whose father was a 
civil engineer killed in a military plane crash. The report 
examining the crash has been withheld from the court on the 
grounds that it was a state secret, and the Supreme Court said 
that the courts have no business examining that claim. If there 
is one thing we have learned over the years, it is that we 
cannot take such assertions at face value. When the report 
finally came to light 50 years later, it revealed Government 
negligence, but no state secrets.
    We have the CIPA law that deals with how to deal with 
confidential information in the context of a criminal 
proceeding. We do not have a law codifying the state secrets 
privilege in the context of a civil proceeding, and we probably 
should.
    Studies show that the Bush administration has raised the 
state secrets privilege in over 25 percent more cases per year 
than previous Administrations and has sought dismissal in over 
90 percent more cases. Originally, the privilege was used just 
to shield certain information; but, in recent years, it has 
been used increasingly to dismiss cases from the start to say, 
``You cannot get your day in court.''
    As one scholar noted recently, this Administration has used 
the privilege ``to seek blanket dismissal of every case 
challenging the constitutionality of specific ongoing 
Government programs'' related to its war on terrorism and, as a 
result, the privilege is impairing the ability of Congress and 
the Judiciary to perform their constitutional duty to check 
executive power.
    Another leading scholar recently found that ``In practical 
terms, the state secrets privilege never fails.'' Like other 
commentators, he concludes that the state secrets privilege is 
the most powerful secrecy privilege available to the President, 
and the people of the United States have suffered needlessly 
because the law is now a servant to executive claims of 
national security.
    I will shortly be introducing legislation to allow courts 
to examine these claims in a manner that would protect the 
information while giving the court a chance to determine 
whether the secrets need to be maintained or whether there is 
some other way to allow the case to go forward. This 
legislation would codify the state secrets privilege and would 
limit it. This is not a new task for the courts. They do it 
under CIPA in criminal cases, and they do it in Freedom of 
Information Act cases.
    I look forward to the testimony of our witnesses on this 
difficult issue, and I welcome them.
    I would now recognize our distinguished Ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank you all for being here.
    Mr. Chairman, the state secrets privilege is a longstanding 
legal doctrine that is an irreplaceable tool in the war against 
Jihadist terrorism. The Supreme Court most recently described 
that doctrine in a case called United States v. Reynolds.
    In that case, the Supreme Court made clear that where the 
central issues of a case involve sensitive and classified 
national security information, the courts have the 
responsibility to determine whether disclosure of the 
information would pose a reasonable danger to national 
security. If so, 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, if 
necessary.
    The roots of the state secrets privilege extend all the way 
back to the Supreme Court's decision in Marbury v. Madison, and 
the privilege is grounded in large part in the Constitution's 
separation of powers principles. In that case, the court held 
that an executive branch official is not ``obliged'' to 
disclose any information that was ``communicated to him in 
confidence.'' Four years later, the same Chief Justice Marshall 
who wrote the opinion in Marbury held that the Government need 
not produce any information that would endanger the public 
safety.
    In the modern era, Congress debated the issue of state 
secrets privilege under Federal law in the 1970's, but 
ultimately chose to maintain the status quo, including the 
elements of the privilege put in place by the Supreme Court in 
the Reynolds decision.
    In United States v. Nixon, the court endorsed the executive 
privilege as ``fundamental to the operation of Government and 
inextricably rooted in the separation powers under the 
Constitution'' and strongly cautioned that sensitive 
information should not be disclosed if it involves ``military, 
diplomatic, or sensitive national security secrets.''
    The First Circuit took exactly that same position in 
affirming dismissal of a case brought by Khaled el-Masri in 
which the court concluded that the state secrets privilege 
``has firm foundation in the Constitution in addition to its 
basis in the common law of evidence.''
    Not surprisingly, the state secrets privilege has played a 
significant role in the Justice Department's response to civil 
litigation arising out of counterterrorism policies after 9/11.
    While political opponents of the President have argued that 
the Bush administration has employed the state secrets 
privilege with unprecedented frequency or in unprecedented 
contexts in recent years, a recent comprehensive survey of all 
state secrets cases has determined conclusively that neither 
claim is true.
    And I want to repeat that. A recent survey of all state 
secrets cases has determined conclusively that neither of those 
claims is true.
    As Professor Robert Chesney of Wake Forest University Law 
School has concluded, the data did not support the conclusion 
that ``the Bush administration chooses to resort to the 
privilege with greater frequency than prior Administrations or 
in unprecedented substantive contexts.''
    Because the privilege is based in the Constitution's 
separation of powers principles, it is unclear whether Congress 
could constitutionally amend the state secrets privilege by 
statute. Professor Chesney pointed out that the ``judges are 
nowhere nearly as well suited as executive branch officials to 
account for and balance the range of considerations that should 
inform assessments of dangers to national security.''
    I will strongly oppose, Mr. Chairman, any efforts that 
invite the courts to deviate from the sound procedures they 
currently follow and to divulge to our enemies sensitive 
national security information. Innocent Americans can only be 
protected if sensitive national security information is 
protected, and I will do whatever I can to keep those Americans 
safe.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I will now recognize for an opening statement the 
distinguished Chairman of the full Committee, the gentleman 
from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman.
    I want to protect the American people as much as anybody in 
the Congress, but there is a different problem here. It is not 
just the fact that there are more cases in which the state 
secrets privilege is asserted, but it is how it is being 
asserted and how it is being used that really makes the 
difference here. It is not just the numbers.
    And so I start off congratulating the American Bar 
Association and those other organizations that have been 
looking at this quite carefully.
    And I ask unanimous consent to put in the record today's 
Washington Post article on the Greater Use of State Secrets 
Privilege Spurs Concerns and the washingtonpost.com's Bush 
Order Expands Network Monitoring.
    Mr. Nadler. Without objection.
    [The information referred to follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Conyers. So the other thing that I think should be 
taken into consideration, before this turns into who is more 
patriotic and who is fighting terror harder than anybody else 
or who is weakening our system and all that fear-mongering that 
goes on so much, is the question around the President issuances 
of executive orders which he can then ignore or claim they are 
modified.
    He can with a stroke of his pen increase monitoring of the 
Internet. He can stop court cases in their tracks by claiming 
state secrets privilege and then try to bully the Congress into 
rendering the cases moot by providing telecommunications 
companies' retroactive immunity. We have a FISA issue going on 
in the Senate right now, and it will be going on very shortly 
in this body as to what the role should be.
    But there is something that bothers me deep down about this 
whole discussion, and that is that judges are not qualified to 
determine what is in the national interest. They could work on 
all the complex cases in the world, but when it comes to the 
Government being examined, ``Well, that is off limits. We will 
handle that, fellows,'' and although it is a common-law 
doctrine, we did not have a law on this until 1953.
    So I come to this saying that since Reynolds in 1953 both 
Administrations, the Democrats or Republicans, have generated a 
lot of concern that, if not properly policed, the privilege 
might be misused to conceal not just embarrassing information, 
but downright illegal activity, maybe impeachable conduct, and 
that the public disclosure, in fact, may not pose any genuine 
threat to national security.
    And, of course, these fears have been increased by the 
repeated use of the privilege, especially since 9/11, and it is 
being used now--get this--to dismiss cases challenging some of 
the most troubling aspects of the war on terror. It is being 
used to challenge rendition claims. It is being used to 
challenge torture claims. It is being used a lot to challenge 
warrantless wiretapping, which, by the way, went on apace 
across the years. It is not a brand-new issue.
    And so when the executive branch--this one or any other--
responds to serious claims of misconduct or illegality with 
blanket claims of secrecy, often telling the Federal judges 
that the material is too sensitive for even the judge to see, 
then I have a problem here that makes this hearing extra 
important, in my view.
    There is understandable concern that the executive can use 
these claims frequently to shield unlawful conduct, and that is 
what we are here to examine today.
    I will put the rest of my statement in the record, Chairman 
Nadler.
    Thank you.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    Today we examine the state secret privilege, a common law doctrine 
that allows the government to protect sensitive national security 
information from harmful disclosure in litigation.
    Since it was first recognized by the U.S. Supreme Court in the 1953 
case of U.S. v. Reynolds, this privilege has been used by Democratic 
and Republican Administrations alike, often generating concern that--if 
not properly policed--the privilege might be misused to conceal 
embarrassing information whose public disclosure poses no genuine 
threat to national security.
    These concerns have increased because of the Bush Administration's 
repeated use of the privilege, in the wake of the September 11th 
terrorist attacks, as a tool to dismiss cases challenging some of the 
most troubling aspects of its war on terror--including rendition, 
torture, and warrantless wiretapping.
    When the Executive Branch responds to serious allegations of 
misconduct with blanket claims of secrecy--often telling federal judges 
that material is too sensitive for even the courts to see--there is 
understandable concern that the Executive may be using those claims as 
a subterfuge to shield embarrassing facts or unlawful conduct from 
judicial discovery.
    This hearing will help us explore three important issues presented 
by the state secret privilege.First, we need to determine whether 
judges are using procedures and standards that allow for meaningful 
review of governmental claims. Some in the civil liberties community 
are concerned that the courts are being overly deferential to the 
Executive Branch, reluctant to review evidence and make their own 
independent assessment of whether the secrecy claim is valid.
    Second, the hearing will help us examine whether there is any 
validity to continuing concerns about judicial expertise in handling 
secret information. In the fifty years since the Reynolds decision, 
numerous laws have been enacted that require the courts to review 
national security materials. These include the Classified Information 
Procedures Act, the Freedom of Information Act, and the Foreign 
Intelligence Surveillance Act.
    Acting under this authority, courts routinely review classified 
evidence under procedures that are designed to protect against harmful 
disclosure of sensitive information, while still providing a fair 
opportunity for litigants who seek justice and accountability from our 
government.
    And, third, today's hearing provides an opportunity for us to 
consider whether there is any need for congressional action. The 
American Bar Association, for example, recommends that there should be 
clear procedures and standards for state secret claims. Likewise, the 
bipartisan Constitution Project urges that courts be required to review 
the claims and ensure that cases are not dismissed prematurely.These 
organizations want to ensure that parties have a full and fair 
opportunity to discover non- privileged facts, and that appropriate 
orders are issued to protect material determined to be subject to the 
privilege.
    This Administration's aggressive efforts to create an Imperial 
Presidency--an Executive Branch whose decisions remain secret and 
unchecked by Congress or the courts--raises important concerns about 
how claims of secrecy may impair our constitutional system of checks 
and balances.
    Our firm commitment to respect for the rule of law requires that we 
take these concerns seriously.

    Mr. Nadler. I thank the gentleman.
    I would now like to introduce our panel of witnesses.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask that other Members submit 
their statements for the record. Without objection, all Members 
will have 5 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.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on 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 only 
able to be with us for a short time.
    And I would now like to introduce our panel of witnesses, 
now that we have the boilerplate out of the way.
    The first witness is H. Thomas Wells, Jr., the president-
elect of the American Bar Association. He is a partner and 
founding member of the firm Maynard, Cooper & Gale in 
Birmingham, Alabama. He earned his BA and his JD from the 
University of Alabama.
    Judith Loether is the daughter Albert Palya, one of the 
civilian engineers whose deaths were at issue in United States 
v. Reynolds, the 1953 Supreme Court case that established the 
modern understanding of the state secrets privilege.
    The Honorable Patricia Wald has had a distinguished legal 
career. She served as a judge of the United States Court of 
Appeals for the D.C. Circuit from 1979 to 1999, serving as 
chief judge of the D.C. Circuit from 1986 to 1991. Judge Wald 
was also a judge with the International Criminal Tribunal for 
the Former Yugoslavia from 1999 to 2001 and a member of the 
President's Commission on the Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction from 2004 
to 2005.
    Patrick Philbin is a partner in the firm of Kirkland & 
Ellis. From 2001 to 2005, Mr. Philbin served the Department of 
Justice as a deputy assistant attorney general in the Office of 
Legal Counsel, from 2001 to 2003 where he advised the Attorney 
General and Counsel to the President on issues related to the 
war on terrorism, and as an associate deputy attorney general 
from 2003. He is a graduate of Yale University and Harvard Law 
School.
    Kevin Bankston is a senior attorney with the Electronic 
Frontier Foundation. He is lead counsel in Hepting v. AT&T, the 
first lawsuit brought against the telecommunications company 
for its role in the NSA's warrantless surveillance program, and 
is the coordinating counsel in the multidistrict litigation 
over the NSA program that has been consolidated before the 
Northern District of California Federal Court. He was recently 
named as a fellow at Stanford Law School Center for Internet 
and Society where he will conduct further academic research on 
the Fourth Amendment as applied to the Internet. That should be 
a relatively new field.
    Mr. Bankston received his JD in 2001 from the University of 
Southern California Law Center and received his undergraduate 
degree from the University of Texas at Austin.
    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 5 minutes or less.
    To help you stay within that time limit, there is a timing 
light at your table. When 1 minute remains, the light will 
switch from green to yellow, and then red when the 5 minutes 
are up.
    The first witness I will recognize for 5 minutes is Mr. 
Wells.
    [Witnesses sworn.]

 TESTIMONY OF H. THOMAS WELLS, JR., PRESIDENT-ELECT, AMERICAN 
                        BAR ASSOCIATION

    Mr. Wells. Thank you, Chairman Nadler, Ranking Member 
Franks, and distinguished Members of the Committee.
    My name is Tommy Wells, and I am here today in my capacity 
as the president-elect of the American Bar Association and at 
the request of our current president, William Neukom. Mr. 
Neukom is sending his regrets that he is unable to attend this 
hearing.
    The ABA thanks the Committee for inviting us to present the 
views of the association on the state secrets privilege.
    The state secrets privilege is a common-law privilege, the 
roots of which reach back to the beginning of the republic. The 
privilege shields sensitive national security information from 
disclosure in civil litigation. However, today, most public 
discussion focuses on the U.S. Supreme Court's modern 
articulation of the privilege in United States v. Reynolds.
    During the past several years, the Government has asserted 
the state secrets privilege in a growing number of cases, 
including those involving fundamental rights and serious 
allegations of Government misconduct, which raise critical 
legal issues. In the absence of congressional guidance, courts 
have adopted divergent approaches.
    In recent years, there has been concern that courts are 
deferring to the Government without engaging in sufficient 
inquiry into the Government's assertion of the privilege. Thus, 
courts may be dismissing meritorious claims leading to 
potentially unjust results.
    Federal legislation outlining procedures and standards for 
consideration of these privilege claims would facilitate the 
ability of the courts to act as a meaningful check on the 
executive branch's assertion of the state secrets privilege.
    Concern about these circumstances led the ABA House of 
Delegates to adopt a policy that calls upon Congress to 
establish a standardized process designed to ensure that 
whenever possible cases are not dismissed based solely on the 
assertion of the state secrets privilege. The establishment of 
uniform standards and procedures will bring greater 
transparency and predictability to the process and benefit the 
system as a whole. My written statement outlines the specifics 
of the ABA recommendation in detail.
    Fundamentally, the ABA believes that courts should evaluate 
privilege claims in a manner that protects legitimate national 
security interests, while permitting litigation to proceed with 
nonprivileged evidence. Judicial review informed by evidence 
would ensure that Government assertions of necessity are truly 
warranted and not simply a means to avoid embarrassment. 
Moreover, cases should not be dismissed based on the state 
secrets privilege, except as a last resort.
    The legislation we envision would not require disclosure of 
information subject to the state secrets privilege to the 
plaintiff or to the plaintiff's counsel and would not require 
courts to balance the interests of the plaintiff in accessing 
particular privileged information against the Government's 
national security interests.
    It would also not require the Government to choose between 
disclosing privileged information and forgoing a claim or a 
defense. The Government would face such a choice only with 
respect to the information the court had already determined was 
not privileged.
    Many of the ABA recommendations are drawn from the 
procedures Congress established in the Classified Information 
Procedures Act. Under CIPA, Federal courts review and analyze 
classified information in criminal cases. The ABA's policy 
respects the roles of all three branches of Government in 
addressing state secrets issues.
    The policy does not suggest that courts should substitute 
their judgments on national security matters for those of the 
executive branch. Instead, it provides that executive branch 
privilege claims should be subject to judicial review under a 
deferential standard that takes into account the executive 
branch's expertise in national security matters.
    This is the proper role for the judiciary because courts 
routinely perform judicial review of decisions made by expert 
Government agencies and, as the Reynolds case explained, the 
secrets privilege is an evidentiary privilege, the type of 
issue courts rule upon with great regularity.
    Ultimately, we believe there is a need to protect both the 
private litigants' access to critical evidence as well as our 
critically important national security interests.
    The ABA believes that Congress should establish 
confidential procedures offering ample opportunity for the 
Government to assert the privilege, meaningful judicial access 
to the evidence at issue to evaluate whether the privilege 
should apply, and chance for litigation to proceed with 
nonprivileged evidence.
    Thank you for considering the American Bar Association's 
views on an issue of such consequence to ensuring access to our 
justice system.
    Thank you.
    [The prepared statement of Mr. Wells follows:]
               Prepared Statement of H. Thomas Wells, Jr.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. Thank you very much.
    Ms. Loether?

        TESTIMONY OF JUDITH LOETHER, DAUGHTER OF VICTIM 
                      IN U.S. v. REYNOLDS

    Ms. Loether. Mr. Chairman, Members of the Committee, I 
would like to start by saying that this morning I saw the 
statues outside that represented the majesty of law and the 
spirit of justice. I would like to think those principles do 
indeed always guide us in this great country.
    I am Judy Loether. I am an ordinary housewife from the 
suburbs of Boston. You might call me chief cook and bottle-
washer. I have come to tell you my story.
    Six years ago, I did not know the first thing about the 
state secrets privilege.
    Almost 60 years ago, when I was just 7 weeks old, my 
father, an engineer for RCA, was killed in the crash of a B-29. 
This put the death of my father and my mother's subsequent 
lawsuit against the United States government squarely in the 
center of the landmark case United States v. Reynolds.
    My mother remarried and, while growing up, I knew very 
little about my own father and the lawsuit. My mother got some 
money. I thought she had won. I never knew her case went to the 
Supreme Court.
    The death of my father was quite a mystery to me. The 
newspaper clippings in the attic had pictures of the wreckage 
and talked of secret missions and even cosmic rays. My uncle 
used to tell me that he thought the Russians blew up the plane.
    After I had my own children, I became very interested in 
this man who was my father, the man whose pictures and 
documents of life and death had resided in the attic. When the 
Internet came to my house, I searched for information about 
anything related to his work and his life.
    One day, I happened to type into the search engine ``B-29 + 
accident.'' It was only chance that brought me to accident-
report.com which provides accident reports for Air Force 
accidents from 1918 to 1953. My first thoughts were, ``This 
might tell me about the secret project he was working on. This 
might tell me if the Russians blew up the plane!''
    When I read this report, I felt a great deal of 
disappointment as there was no information about the project, 
the mission, or the equipment. Instead, it contained a truly 
sad and very dark comedy of errors that led to the terrible 
death of my father and eight other men.
    Just some of these mistakes: With engine number 1 in 
flames, the pilot shut down the wrong engine, number 4; the 
engineer, charged with the task of cutting the fuel to the 
burning engine, cut the fuel to engine number 2. Now we have 
the largest bomber in the world flying on one of its four 
engines. What is more, the heat shield to be retrofitted into 
B-29s to prevent fires was never installed. There were many, 
many more mistakes.
    The report did spur me on to look for and find another 
little girl who had lost her father on that plane. It was 
through her that I learned about the Supreme Court case.
    That very day, I looked up the Reynolds decision on my 
computer. What I read there sent me on a journey that has 
brought me here today. I read a decision that hinged on this 
very same accident report, an accident report that the 
Government claimed told of the secret mission and the secret 
equipment. All I could think was, ``No, it does not!''
    Part of the Reynolds decision stated: ``Certainly, there 
was a reasonable danger that the accident investigation report 
would contain references to the secret electronic equipment 
which was the primary concern of the mission.''
    This accident report was not about secret equipment. This 
accident report was not about a secret mission. Even more 
telling, this accident report was not even classified as 
secret. And I now understood that my mother had lost her case.
    As time passed, I came to understand the significance of 
the Reynolds case in establishing the state secrets privilege. 
I learned that it was discussed in law school courses on 
national security law. It seemed to me that the case that 
allows the executive to keep its secrets was, at its very 
foundation, a gross overstatement by the Government to forward 
its own purposes, to get themselves a privilege. At what cost? 
The cost was truth and justice and faith in this Government.
    Five years ago, I stood in the woods in Waycross, Georgia, 
at the crash site. I thought about my father who spent his 
entire career working for the Government. His last thoughts 
must have been for the wellbeing of his family and who would 
take care of them.
    Mistakes were made on that plane, and the Air Force should 
have done the right thing. The average American who backs out 
of his driveway and accidentally runs over his neighbor's 
mailbox will stop, walk up to his house, knock on the door, and 
own up to his mistake. However hard it is to look the fool, 
however hard it is to fork over the cash, it is simply the 
right thing to do, and it is how we all expect our Government 
to act when it makes a mistake.
    For the other families, for my father, my mother, my two 
brothers and me, my America did not see fit to do the right 
thing, to step up, admit to their mistakes, and compensate 
three widows and five little children. It was more important to 
get a privilege.
    I decided that day to try to let the people of this country 
know this is not the American way and is contrary to what I 
believe America stands for in the minds and hearts of its 
people.
    The judiciary cannot give up any of the checks and balances 
that make this country great. Judicial review must be the 
watchdog that guards against actions by the executive that chip 
away at the moral character of this country.
    Thank you.
    [The prepared statement of Ms. Loether follows:]
                  Prepared Statement of Judith Loether
    I'm Judy Loether. I am an ordinary housewife from the suburbs of 
Boston. You might call me Chief Cook and Bottle-Washer. I've come to 
tell you my story.
    Six years ago, I didn't know the first thing about the state 
secrets privilege.
    Almost sixty years ago, when I was just seven weeks old, my father, 
an engineer for Radio Corporation of America (RCA, an Air Force 
contractor), was killed in the crash of a B-29 Superfortress. This put 
the death of my father and my mother's subsequent lawsuit against the 
United States government squarely in the center of the landmark case 
United States v. Reynolds.
    My mother remarried and while growing up I knew very little about 
my own father and the lawsuit. My mother got some money; I thought she 
had won. I never knew her case had gone to the Supreme Court. The death 
of my father was quite a mystery to me; the newspaper clippings in the 
attic had pictures of the wreckage and talked of secret missions and 
cosmic rays. My uncle used to tell me that he thought the Russians blew 
up the plane. After I had my own children I became very interested in 
this man who was my father, the man whose pictures and documents of 
life and death had resided in the attic.
    When the Internet came to my house I searched for information about 
anything related to his work and his life. One day I happened to type 
into the search engine B-29 + accident. It was only chance that brought 
me to accident-report.com which provides accident reports for Air Force 
accidents from 1918 to 1953. My first thoughts were that this might 
tell me about the secret project he was working on, this might tell me 
if the Russians blew up the plane! When I read this report I felt a 
great deal of disappointment as there was no information about the 
project, the mission, or the equipment. Instead, it contained a truly 
sad and very dark comedy of errors that lead to the terrible death of 
my father and eight other men. Just some of these terrible mistakes: 
with engine number 1 in flames, the pilot shut down engine number 4 by 
mistake; the co-pilot, a survivor, thought he corrected that by turning 
back on engine number 4, but he didn't; finally, the engineer, charged 
with the task of cutting the fuel to the burning engine, cut the fuel 
to engine number 2 by mistake. Now we have the largest bomber in the 
world, flying on only one of its four engines. What's more, a heat 
shield to be retrofitted into B-29s to prevent fires was never 
installed.
    The report did spur me on to look for and find another little girl 
who had lost her father on that plane, now grown and living in my own 
state of Massachusetts. It was through her that I learned about the 
Supreme Court case and that very day I looked up the Reynolds decision 
on my computer. What I read there sent me on a journey that has brought 
me here today. I read a decision that hinged on this very same accident 
report, an accident report that the government claimed told of the 
secret mission and the secret equipment. All I could think was, no, it 
doesn't! Part of the Reynolds decision stated:
    ``Certainly there was a reasonable danger that the accident 
investigation report would contain references to the secret electronic 
equipment which was the primary concern of the mission.''
    This accident report was not about secret equipment. This accident 
report was not about a secret mission. Even more telling, this accident 
report was not even stamped SECRET. I now understood that my mother had 
lost her case, that she had settled for less money than the Federal 
court had awarded her. How could the government lie in the Supreme 
Court of the United States of America!?
    As time passed I came to understand the significance of the 
Reynolds case in establishing the State Secrets Privilege. I learned 
that it was discussed in law school courses on national security law. 
The more I understood what had happened to my mother and why, the more 
betrayed I felt. It seemed that the case that allows the Executive to 
keep its secrets was, at its very foundation, a gross overstatement by 
the government to forward its own purposes; to get themselves a 
privilege. At what cost? The cost was truth and justice and faith in 
this government.
    Five years ago I stood in the woods in Waycross, Georgia, the crash 
site. I thought about my father who spent his entire career working for 
the government, developing technical equipment for the B-29. He 
sacrificed his life for it. His last thoughts must have been for the 
wellbeing of his family and who would take care of them. Mistakes were 
made on that plane and the Air Force should have done the right thing. 
The average American who backs out of his driveway and accidentally 
runs over his neighbor's mailbox, will stop, walk up to his neighbor's 
house, knock on the door, and own up to his mistake. However hard it is 
to look the fool, however hard it is to fork over the cash, it is 
simply the right thing to do, and it's how we all expect our government 
to act when it makes a mistake. For the other families, for my father, 
my mother, my two brothers and me, my America did not see fit to do the 
right thing, to step up, admit to their mistakes, and compensate three 
widows. It was more important for them to get a privilege. I decided 
that day to try to let the people of this country know that an 
injustice had been done. This is not the American way, and is contrary 
to what I believe America stands for in the minds and hearts of its 
people.
    The judiciary cannot give up any of the checks and balances that 
make this country great. Judicial review must be the watchdog that 
guards against actions by the Executive that chip away at the moral 
character of this country.

    Mr. Nadler. Thank you very much.
    Our next witness will be Judge Wald.

  TESTIMONY OF THE HONORABLE PATRICIA M. WALD, RETIRED CHIEF 
       JUDGE, U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT

    Judge Wald. Chairman Nadler, Chairman Conyers, Committee 
Members, thank you for inviting me to testify today on the 
state secrets privilege. My testimony is going to deal with the 
capability of and the tools Federal judges need to administer 
the privilege in a manner that will not endanger national 
security at the same time it will permit litigants to the 
maximum degree feasible to pursue valid civil claims for 
injuries incurred at the hands of the Government or private 
parties.
    So let me make a very few points in summarizing my 
testimony.
    The first is I agree very much, especially with the letter 
which was submitted by William Webster, the former FBI and CIA 
director and former Federal judge, and with the prior ABA 
president-to-be, that there is a wide consensus in the legal 
community, as the Bar Association report showed, of the 
importance of the issue of state secrets, regardless of what 
the percentage is of the increase in its application to the 
cases that are increasingly coming into the courts today, and, 
more important, I think the varying results of leaving the 
implementation of the privilege totally within the discretion 
of individual judges. That, I believe, militates toward the 
exercise by Congress of what I believe is its acknowledged 
power under Article I Section 8 and Article III Section 2 to 
prescribe regulations concerning the taking of evidence in the 
Federal courts.
    Again, as has already been pointed out, we have already had 
legislation in CIPA to take care of the criminal side with its 
classified information, in FISA in proceedings where 
information that was obtained under FISA, and especially I 
would like to point out, in the FOIA cases of which the D.C. 
Circuit had a great many--many of which I participated in--that 
it was Congress itself in 1974 that passed an amendment through 
FOIA Exemption 1 saying, when a request was made for 
information that might be classified, that the court not only 
had a duty to ensure that it had been classified according to 
the proper procedures, but that the court could itself look at 
the reasonableness of the classification.
    Now I will tell you, in my experience, courts have been 
very cautious and courts have been very, very cognitive of 
national security needs in using that kind of power. FOIA did 
not require the court to look at the actual evidence, but it 
did allow them, if the court found it necessary, and, in some 
cases, where there had been what the court ultimately found to 
be bad faith exercises of the classification power, they have 
done it. So we already do have a precedent where courts look at 
those materials.
    I also will tell you that courts look at national security 
materials and make a decision whether or not they have been 
validly classified in other contexts. I myself have 
participated in some of those cases, not only in the FOIA 
Exemption 1 cases, but on appeal of the CIPA cases. We have 
also had many cases--not many, but at least some cases--in 
which former CIA agents, et cetera, attempt to write books, 
articles, and according to their agreement to have them looked 
at by the agency before they are disclosed, there have been 
disputes which have gone to court. So it is not that unusual 
for Federal judges to actually look at classified material or 
secret material.
    I believe that even the Reynolds case--not even the 
Reynolds case--but the Reynolds case had as its bottom 
assumption that it was a judicial function. It was the court's 
function, not the executive's function to decide ultimately in 
a dispute whether or not the material did present a 
``reasonable danger'' to national defense or foreign relations. 
Ultimately, the judge makes that decision, not the Government.
    Now the problem that has arisen in many of these cases, the 
ones that I have read, is that the courts sometimes are so 
deferential that if the Government makes in its affidavits even 
a prime facie plausible claim of state security being involved, 
they will shy away and they will not go beyond that, and I 
think that legislation which required the courts to look at 
particular things, not to dictate whether or not something will 
be national security or will not be national security, but to 
actually, as it were, go through certain loops, will make 
judges themselves more aware of, more sensitive to the 
interests that are involved, and while ultimately if they 
decide something is a state secret, as Mr. Wells said, there is 
nothing in any legislation that I know about that would portend 
to tell them, ``Well, we will release it anyway'' or ``We will 
balance it.''
    It is not like the executive privilege. Remember, these 
other privileges, the executive privilege, they can be 
balanced. If the litigants' need is bad enough or is compelling 
enough, they can actually be required to be disclosed. There is 
nothing in this legislation or anybody proposing that that be 
true in this case.
    The other two points I would make is that the legislation, 
I think, should provide an array of alternatives that the court 
could look at, could substitute, as it does in CIPA. They might 
not need to be the same. I am aware, having read Mr. Philbin's 
testimony, CIPA cases are not exactly like the kind of civil 
cases because the Government--ultimately, it is their 
prosecution, and they can go away from it if they decide that 
it is more important than providing any substitute.
    But we have had 20 years of experience, and courts, I 
think, have been pretty good. I have seen some of those appeals 
with the CIPA material in them, and they have been pretty good 
at creating alternatives that did not have classified 
information, summaries of information, stipulations by the 
Government and the parties which did away with the need to 
actually introduce the material in there. So I think we want to 
avail ourselves of that kind of experience.
    The last quick point I will make is what I think is 
terribly important is that we do not dismiss these cases right 
at the pleading stage, if at all possible, unless it is clear 
under the Federal rules of civil procedure that there is no way 
this particular civil claimant can make a case without the 
material. Then I think you should let the civil claimant 
proceed along the road to discovery of non-secret material 
until the state secret privilege has been litigated and decided 
because a large number of cases get dismissed at the pleading 
stage.
    There have been many studies on this which show that if 
somebody pleads something and then somebody introduces one 
piece of information, they immediately convert it to summary 
judgment and you are gone. I think that special caution has to 
be taken in these kinds of cases, and especially in the 
standing realm, which, I believe, Mr. Bankston will get to, 
whereby a person cannot even make out the standing to bring the 
case.
    Why can't they make it out? I think this is interesting. 
Because the court doctrines of standing over the last 30 
years--and I have written about this extensively--has become 
very, very complex--causation, redressability. It is virtually 
impossible in many cases to get standing, but those are court-
created doctrines. Those are not legislative, and they are not 
even constitutional. They are part of case in controversy, but 
they are court created.
    So I think, in a situation where standing is dependent upon 
state secrets, at least the case should not be dismissed until 
the state secrets business has been litigated and the claimants 
have been given every opportunity to try to make out their case 
by further discovery.
    So, in concluding, I would say I think that we have some of 
the tools already, some of the experience in the Federal 
courts, and with a legislation that would require judges go 
through certain procedures, just the way they do in habeus--the 
habeus statutes lay down what you have to do and who comes next 
and what then has to be shown, et cetera--I think that they 
would contribute mightily toward making it a fairer process.
    Thank you.
    [The prepared statement of Judge Wald follows:]
          Prepared Statement of the Honorable Patricia M. Wald
Chairman Nadler, Committee Members:

    Thank you for inviting me to testify briefly today on the state 
secrets privilege which is being increasingly raised as a determinative 
issue in federal court civil litigation involving alleged violations of 
civil and constitutional rights. My testimony will deal with the 
capability of federal judges to administer the privilege in a manner 
that will not endanger national security at the same time it permits 
litigants to the maximum degree feasible to pursue valid civil claims 
for injuries incurred at the hands of the government or private 
parties. In that regard let me make a few points.
    1. The state secrets privilege is a common law privilege 
originating with the judiciary which enunciated its necessity and laid 
down some directions for its scope in cases going back to the 
nineteenth century but more recently highlighted in United States v 
Reynolds, 345 U.S. 1 (1953). Reynolds recognized the government's 
privilege in that case to refuse to reveal an airplane accident report 
in private injury litigation because of a ``reasonable danger that 
compulsion of the evidence will expose military matters which, in the 
interest of national security, should not be divulged'' Id at 10. (as 
you undoubtedly know it turned out that there were no such secrets in 
the report). Since Reynolds, courts have been deciding cases where the 
government raises the privilege on their own in terms of its scope and 
its consequences and producing often inconsistent results. There is a 
wide consensus in the legal community as the American Bar Association 
Recommendations and Report demonstrate that the importance of the issue 
and the varying results of leaving the implementation of the privilege 
totally within the discretion of individual judges militate toward the 
exercise by Congress of its acknowledged power under Article I, Section 
8 and Article III, Section 2 of the U.S. Constitution to prescribe 
regulations concerning the taking of evidence in the federal courts. 
Again as you are aware Congress has legislated many times on the Rules 
of Evidence governing federal court procedures including those for 
proceedings like habeas corpus and FISA proceedings that may involve 
matters of national security. In the criminal area, the Classified 
Intelligence Procedures Act (CIPA) provides a relevant model for 
alternatives to full disclosure of classified information which allow a 
prosecution to continue while affording a defendant his or her due 
process rights. The time is now ripe for such legislation in the civil 
arena; litigants and their counsel are confused and unsure as to how to 
proceed in cases where the government raises the privilege; the courts 
themselves are confronted with precedent going in many different 
directions as to the scope of their authority and the requirements for 
exercising it.
    2. Although at this juncture we are not discussing specific draft 
bills, I believe there are several principles which need to be 
considered in such legislation. Many come from the cases themselves, 
others from the CIPA legislation , my own judicial experience with 
cases involving national security information such as the FOIA, and 
still others from the ABA Report and from a Judicial Conference 
Advisory Committee Report back in 1969. dealing with codification of 
the privilege (hereafter Advisory Committee).These principles I believe 
are capable of being observed by federal judges without making their 
jobs unduly onerous and are within their competence to administer, as 
proven by their current use in other kinds of litigation. They will, I 
also believe, contribute to the uniformity of the privilege's 
application throughout the federal judiciary and to both the reality 
and the perception of fairness for deserving litigants with valid civil 
claims.
    (a) Reynolds made it clear and subsequent cases have verbally 
agreed that whether the evidence sought to be withheld by the 
government does present ``a reasonable danger'' to national defense or 
foreign relations (the precise formulation of national security risk 
varies in the cases but is an issue to be accorded serious thoughts by 
legislators; too broad a definition could encompass virtually anything 
in which the government has an interest in the modern day globally 
interdependent world) is ultimately a matter for the judge, not the 
government to decide. Thus it should not be enough--though some cases 
appear to come close to saying it is--that a prima facie plausible 
claim of state secret be raised by the government. In this sense it is 
different from some other contexts in which secrecy and national 
security are involved such as the FOIA. There in Exemption 1, the 
government may withhold from public disclosure material that has been 
duly classified under Executive Order criteria if that classification 
is reasonable. Under a specific amendment in 1974 however, the court 
has the authority to look at and decide de novo (though giving 
``substantial weight'' to government affidavits) whether the 
classification is reasonable. The courts' use of that authority I will 
say has been cautious to the extreme, but it does exist and on occasion 
has been employed to reject unjustified claims. A case for more intense 
scrutiny of the state secret privilege by judges can be made on the 
basis that the need for such information is more compelling in the case 
of a civil plaintiff than any member of the public as in FOIA and in 
the fact that to qualify for Exemption 1, the material must have been 
reasonably classified under Executive Order criteria--a requirement 
that is not to my knowledge a component of the state secrets privilege 
per se. But the FOIA example makes a basic point that judges do deal 
with national security information on a regular basis and can be 
entrusted with its evaluation on the relatively modest decisional 
threshold of whether its disclosure is ``reasonably likely'' to pose a 
national security risk. To my knowledge there have been no court 
``leaks'' of any such information There is no doubt that such a 
decision is a weighty one but if our courts are to continue their best 
tradition of constitutional guardianship it is an obligation that they 
cannot avoid, And the potentiality of a serious judicial review of the 
material in conjunction with the governments affidavits on the need for 
nondisclosure even in a courtroom setting will itself pose a deterrent 
to the dangers of the privilege being too ``lightly invoked'' 
(Reynolds)
    (b) This brings me to the question of whether unlike FOIA which 
allows but does not require a judge to look at the allegedly risky 
material himself in camera rather than relying on the government's 
affidavits, state secret legislation should require the judge to 
himself or herself review the material before making a decision on 
whether the privilege applies. I am of the view that it should. The 
stakes in civil litigation--as I said--tend to be higher than in FOIA 
for the plaintiff and our traditions of fair hearing dictate that to 
the maximum degree feasible all relevant evidence be admitted in 
judicial proceedings. Reynolds itself left open the possibility that in 
some contexts where the plaintiffs' showing of need was not compelling, 
the judge need not do so, and as I have related ,in FOIA cases the 
judge may decide not to. On the other hand the judge in CIPA and in 
FISA cases does regularly inspect the material. in camera. I read the 
ABA Report to recommend a similar approach here. Only in that way can 
he fulfill the judicial obligation to insure a fair hearing but just as 
important only if he sees the evidence for himself can he make the CIPA 
like decision whether there are alternative ways than its presentation 
in original form to satisfy the plaintiff's need but not to impugn 
national security as well as whether the objected to material can be 
segregated from other material in the same document that does not 
qualify for protection. (I do not discount the possibility that an 
extraordinary case might arise where both the government and the judge 
agree that his examination of the secret evidence would be unduly risky 
and alternatives c an be put in place that will insure fairness but 
this should not be the usual or ev en a frequent practice). My own 
experience with highly sensitive information is that our court security 
safekeeping facilities and procedures can insure its protection; law 
clerks or masters can be given clearances to handle it and if even that 
is not possible, the government's own cleared employees can be sent 
over to stand guard outside the chambers door while the judge reads it. 
(I have had this done on at least one occasion).
    (c) The thrust of legislation on state secrets should be to 
emphasize judicial flexibility and creativity in finding alternatives 
to the original material that will permit the case to proceed whenever 
possible. Reynolds itself stressed this approach and it has been a 
hallmark of reform efforts on the privilege since the 1969 Advisory 
Report(if claim of state secrets is sustained and party is deprived of 
material evidence, judge shall make further orders in interest of 
justice including striking of witness testimony, finding against 
government on relevant issue, or dismissing action). Since 1969 however 
CIPA has listed and judges have additionally used less draconian 
measures such as requiring the government to produce an unclassified 
document with as much of the material as possible in the original, 
stipulating to facts that the original material was designed to prove 
or contravert, or a summary of the controversial document that allows 
the defendant ``substantially the same ability to make his defense''. 
18 USC app 3 Sec. 6.
    (d) Another aspect of judicial flexibility should require a judge 
to make a conscious decision after a state secrets claim is raised 
whether the plaintiff's case may proceed to the next stage without the 
secret material. Premature dismissals should be eschewed. Unless then 
without such material a party's affirmative case or defense surely 
falls short of the threshold required by the federal rules of civil 
procedure (Rules 12(b)(6) and 12(c), the party suffering disadvantage 
from nondisclosure should be allowed to supplement their case by 
additional discovery whenever it could reasonably bolster their case. 
This actually is a very important point because a high percentage of 
cases are dismissed at the pleading stage without additional discovery 
being allowed, and the interposition of the secrets claim makes it fair 
to mandate special caution in such cases to let the party play out its 
nonsecret [O1] case. Also worth noting is the difficulty of plaintiffs 
who cannot show standing to bring the suit unless they are allowed to 
see secret evidence. Here particular care should be taken to allow 
maximum access to nonsecret discovery or even postponement of the 
standing decision until the secrecy claim is decided. Standing is after 
all a judicial doctrine which has become increasingly onerous and 
complex in the past few decades; since state secrets is also a 
judicially implemented doctrine the two should be brought into some 
form of coexistence that does not fatally disadvantage valid civil 
claimants. As the ABA Report pointed out the Totten and Tenet cases 
involving espionage employment contracts do present an absolute bar to 
justiciability but other cases do not. I agree with the Report's 
suggestion as well that the government not be required to immediately 
plead'' confirm or deny ``at the pleading stage when the secrets claim 
is planning to be raised. FOIA practice provides an analog--the 
government has been allowed to raise a ``neither confirm nor deny'' 
answer as to whether a requested document exists in its pleadings in 
Exemption 1 cases.
    (e) Once the government raises a secrets claim, the question arises 
as to how it will be litigated and by whom. The government is certainly 
required by affidavit or testimony to justify the claim but where and 
who can take part in the litigation at that stage may be an issue. The 
1969 Advisory Committee Report permitted the judge to hear the matter 
in chambers ``but all counsel are entitled to inspect the claim and 
showing and to be heard thereon'', subject to protective orders. In 
general every effort should be made to provide the regular counsel with 
the necessary clearances to litigate the claim, and where that turns 
out to be impossible to substitute counsel who have such clearances. In 
some cases the validity of the secrets claim can be litigated at a 
level which does not require special clearances. The FOIA cases have 
produced a useful tool known as the Vaughn index which requires the 
government to create a line by line justification of withheld material 
with the reasons for nondisclosure. This device has permitted the 
adversary system to operate at some level to litigate secrecy claims 
without revealing the material itself. Another device used successfully 
by our district court was the appointment of a master with the 
necessary clearances to organize and separate out sample categories of 
documents in a voluminous submission for which total secrecy was 
originally claimed under FOIA Exemption 1 and to present them to the 
judge with the arguments pro and con for the judges decision. As a 
result 64% of the material was eventually released. See In re United 
States Department of Defense, 848 F2d 232 (1988). In short, judges are 
used to handling confidential material through sealing, protective 
orders against disclosure by counsel, screened masters, and in camera 
or even ex parte submissions. But the need for guidance and a protocol 
for using such devices in a uniform manner is dominant. The mere 
exercise of going through the required procedural steps will 
concentrate the judge's attention and sharpen his or her awareness of 
the interests involved at each stage.
    (f) Dismissal of a private party claim should be a last resort if 
it is based on the unavailability of state secret evidence. There will 
of course be cases where the judge ultimately and rightly decides that 
a state secret of significant consequence and risk cannot be revealed 
even under safeguards but I suggest legislators give some thought as to 
whether there are any compensatory remedies to the injured party in 
such cases. Or conversely whether when a secrets claim is upheld at the 
same time the court finds it is covering governmental misbehavior if 
some form of accountability is in order. Finally expedited appeal--
interlocutory in many cases--should be allowed on a truncated record 
(sealed if necessary) with cutback briefing and absent any requirement 
for a detailed written opinion by either court, although I do think a 
few sentences of explanation are always necessary for any kind of 
meaningful review at any level. But the expedited appeal--especially if 
the government loses its claim--should insure against prolonged delays 
in the trial itself.
    Thank you for this opportunity to present my views. I do believe 
thoughtful legislation is needed to insure that maximum and uniform 
efforts are made to strike the right balance between national security 
needs and fair judicial proceedings. I believe base d on my experience 
as a federal judge and my international war crimes experience that such 
a balance can be struck and that our federal judges are already 
acquainted with the use of many of the proper tools for doing so. I 
have confidence in the Committee's ability and I encourage it to tackle 
the task.

    Mr. Nadler. Thank you.
    Mr. Philbin is now recognized for 5 minutes.

           TESTIMONY OF PATRICK F. PHILBIN, PARTNER, 
                        KIRKLAND & ELLIS

    Mr. Philbin. Thank you, Chairman Nadler, Member Fanks, and 
Members of the Subcommittee, for the opportunity to appear to 
address the important subject of today's hearing, the state 
secrets privilege.
    When I served as an associate deputy attorney general at 
the Department of Justice from 2003 to 2005, I gained some 
expertise relating to the privilege and the critical function 
it plays in preventing the disclosure of national security 
information in litigation.
    I continue to watch developments in this area of the law 
with some interest, although at a distance.
    I should emphasize that I am expressing purely my personal 
views here today, and I am not here in any representative 
capacity.
    I would like to focus on three points in my testimony.
    First, any discussion of possible legislation altering or 
regulating the state secrets privilege should begin with the 
recognition of the vital function the privilege serves. It is a 
mechanism by which the United States can ensure the secrecy of 
information related to foreign affairs and national security 
that would do harm to the United States if publicly disclosed.
    The Supreme Court recognized the importance of the 
privilege in United States v. Reynolds. As explained, it is a 
privilege. When properly invoked, it is absolute. The court 
explained, ``Even the most compelling necessity cannot overcome 
the claim of privilege if the court is ultimately satisfied 
that military secrets are at stake.''
    The privilege plays a particularly vital role when, as now, 
the Nation is involved in an armed conflict. The United States 
remains locked in a struggle with al-Qaida, an enemy that 
operates by secrecy and stealth and whose primary objective is 
to unleash surprise attacks on the civilian population of the 
United States.
    In combating al-Qaida, superior intelligence is essential 
for the Nation's success, yet currently pending litigation 
would, without interposition of the state secrets privilege, 
force the disclosure of innumerable details concerning the 
sources and methods of foreign intelligence operations, signals 
intelligence operations, and other activities the United States 
conducts in the ongoing conflict. The state secrets privilege 
plays a critical role in ensuring that such secrets, which 
would be welcome to our enemies, are not disclosed.
    Second, any approach to legislating in this area must also 
begin with the recognition that the state secrets privilege is 
not merely a common-law evidentiary privilege subject to 
plenary regulation by Congress. To the contrary, the privilege 
is rooted in the constitutional authorities assigned to the 
President under Article II as Commander in Chief and 
representative of the Nation in foreign affairs. As the Supreme 
Court has explained in discussing the protection of national 
security information, ``The authority to protect such 
information falls on the President as head of the executive 
branch and as Commander in Chief.''
    In the United States v. Nixon, the Supreme Court expressly 
recognized that the privilege has its underpinnings in the 
Constitution. The court explained generally that to extent a 
claim of privilege relates to the effective discharge of the 
President's powers, it is constitutionally based, and it 
expressly recognized that ``a claim of privilege on the ground 
that information constitutes military or diplomatic secrets 
necessarily involves areas of Article II duties assigned to the 
President.''
    Given the unique constitutional role of the executive with 
respect to the protection of diplomatic intelligence and 
national security information, any legislation that would seek 
to reform the state secrets privilege as it is currently 
applied by the courts must be undertaken with the utmost 
caution. Legislation that would undermine the executive's 
authority to protect national security information would run a 
grave danger of impermissibly encroaching on authority assigned 
by the Constitution to the executive branch.
    Third and finally, I would like to address and caution 
against a particular legislative change that may be considered. 
My comments here are necessarily tentative because there is not 
a specific legislative proposal before the Committee, but I 
think it bears noting that Congress should tread carefully in 
considering any legislation that would purport to alter 
substantially the deferential standard of review the courts 
apply in evaluating a claim of state secrets privilege.
    In particular, I believe it would be a mistake to attempt 
to have Article III judges substitute their own judgment 
concerning what information should remain secret without 
deference to the judgment of the executive. Such a standard of 
review would be a marked departure from the law established by 
the Supreme Court.
    The Reynolds court properly emphasized that it remains the 
duty and the responsibility of the courts to determine whether 
the privilege had been validly invoked in any particular case. 
The mere assertion the privilege by the executive does not 
require a court to accept without question that the material 
involved is a state secret. As the Supreme Court put it, 
``Judicial control over the evidence in a case cannot be 
abdicated to the caprice of executive officers.''
    Nevertheless, the court also made clear that a judge should 
not simply substitute his or her judgment for that of the 
executive branch. Rather, a court should proceed cautiously, 
showing deference to the judgment of the executive, concerning 
what constituted a secret that might do harm to the Nation if 
disclosed.
    In the United States v. Nixon, the court further explained 
that where the executive makes a claim of privilege on the 
ground of military or diplomatic secrets, the courts have 
traditionally shown the utmost deference to presidential 
responsibilities. That deferential standard of review is itself 
infused with constitutional significance based upon the 
separation of powers and unique authorities of the executive 
under Article II.
    The assertion of state secrets privilege is at its heart an 
exercise of a policy judgment concerning how the disclosure of 
certain information may affect the foreign affairs, the 
military and intelligence posture, or more broadly the national 
security of the United States. Time and again, the Supreme 
Court and lower courts have cautioned that such judgments are 
constitutionally assigned to the executive and that the 
judiciary is not institutionally suited to making them.
    Thus, in the context of a court evaluating a claim by 
executive that certain information must remain classified and 
protected from disclosure, the Supreme Court has cautioned that 
``What may seem trivial to the uninformed may appear of great 
moment to one who has a broad view of the scene and may put the 
questioned item of information in its proper context.'' The 
quote went on to explain that the Director of Central 
Intelligence is ``familiar with the whole picture as judges are 
not'' and that his decisions upon what must be kept secret are, 
therefore, worthy of great deference.
    Any legislative proposal, therefore, that would attempt to 
alter the standard of review established under Reynolds and 
Nixon by permitting an Article III judge to substitute his or 
her independent judgment for that of the executive concerning 
the need for secrecy on a particular piece of information would 
be a mistake. Attempting to assign the courts that role by 
legislation would at a minimum raise a serious question of 
impermissible encroachment on authority assigned to the 
executive under the Constitution.
    Thank you, Mr. Chairman, for the opportunity to address the 
Committee. I would be happy to address any questions the 
Members may have.
    [The prepared statement of Mr. Philbin follows:]
                Prepared Statement of Patrick F. Philbin

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    Mr. Nadler. Thank you.
    I will now recognize Mr. Bankston for 5 minutes.

  TESTIMONY OF KEVIN S. BANKSTON, SENIOR ATTORNEY, ELECTRONIC 
                      FRONTIER FOUNDATION

    Mr. Bankston. Good morning, Chairman Nadler, Ranking Member 
Franks, Chairman Conyers, and the Members of the Committee.
    Thank you for inviting me to testify today on behalf of the 
Electronic Frontier Foundation, a nonprofit member-supported 
public interest organization dedicated to protecting privacy 
and free speech in the digital age.
    I am here today because EFF represents AT&T customers in a 
lawsuit against that company for cooperating with the National 
Security Agency's warrantless electronic surveillance program 
by disclosing the contents of tens of millions of Americans' 
phone calls and e-mails, literally billions of domestic 
communications, to the NSA. Yet it is also co-coordinating 
counsel for 38 other NSA-related lawsuits consolidated in the 
Northern District of California.
    EFF filed its complaint against AT&T 2 years ago this 
Thursday. Yet our case, like all the others, has barely moved 
out of the starting gate. We are still litigating over whether 
or not these cases can proceed at all, and the reason for that 
is the state secrets privilege.
    The Administration has asserted an astonishingly broad 
claim that the courts cannot hear any case about the NSA's 
warrantless wiretapping and that such cases must be dismissed 
at the outset. Indeed, the Administration goes so far as to 
argue that even if the court were to find in our case that the 
constitutional and statutory privacy rights of tens of millions 
of Americans were violated, as we allege, the court cannot be 
permitted to so rule because doing so would confirm our 
allegations.''
    Frankly, Mr. Chairman, to call such logic Kafkaesque would 
be an understatement. The breadth of the Administration's state 
secrets claim is particularly astonishing considering that it 
is simply not a secret that AT&T and other telephone carriers 
helped the NSA.
    Rather, there have been extensive public discussions, often 
at the behest of the Administration, ranging from the testimony 
of the previous Attorney General to the Director of National 
Intelligence's interview with the El Paso Times to the 
Administration's own deliberate leaks to newspapers, confirming 
this fact.
    Indeed, as one court recently said, much of what is known 
about the terrorist surveillance program was spoon-fed to the 
public by the President and this Administration.
    The Administration apparently believes the disclosures it 
makes about the program to politically defend its actions or to 
urge this Congress to pass immunity for the telephone companies 
will not harm the national security, but that allowing the 
judicial branch to examine the legality of its conduct and that 
of the carriers somehow will.
    But the Administration should not be allowed to share or 
withhold information for its own political advantage or to 
avoid accountability. Rather, as Chief Judge Vaughn Walker 
ruled last summer when rejecting the Administration's motion to 
dismiss the AT&T case, ``If the government's public disclosures 
have been truthful, revealing whether AT&T assisted in 
monitoring communication content should not reveal any new 
information that would assist a terrorist and adversely affect 
national security. And if the government has not been truthful, 
the state secrets privilege should not serve as a shield for 
its false public statements.''
    EFF believes that Congress can and should reform the 
common-law state secrets privilege to ensure that it cannot be 
used to shield wrongdoing. Such reform legislation should 
provide fair and secure procedures by which the court is 
empowered to privately examine purportedly secret evidence and 
evaluate the Government's claims of state secrets.
    And EFF agrees with the ABA that any reform legislation 
should allow the courts to make every effort to avoid 
dismissing a civil action based on the privilege. EFF also 
believes that for certain cases where fundamental rights are at 
issue, Congress should ensure that a decision on the merits may 
be reached even if critical evidence is privileged, based on 
the court's in camera and ex parte evaluation of that evidence.
    Indeed, as described at length in my written statement, we 
believe Congress has already done so for cases concerning the 
legality of electronic surveillance as a part of FISA at 50 USA 
1806(f), though the Government disagrees and the court has yet 
to address this issue.
    Thus, Mr. Chairman, in addition to considering broader 
state secrets reform, EFF urges Congress to move immediately to 
clarify that FISA's existing security procedures, which have 
been used for 30 years without any harm to national security, 
apply in cases like EFF's suit against AT&T. We respectfully 
submit that such a clarification of FISA's procedures and not 
retroactive immunity is the appropriate response to claims by 
telephone carriers that they were acting in good faith but are 
prevented from defending themselves because of the Government's 
invocation of the privilege.
    To conclude, Mr. Chairman, thank you for shining a 
spotlight today on the Administration's efforts to prevent the 
judiciary from enforcing Congress's laws using the shield of 
the state secrets privilege. EFF looks forward to working with 
this Committee to help achieve sensible state secrets reform 
and to rebuff an executive that insists that some branches of 
Government are more equal than others.
    I look forward to your questions.
    Thank you.
    [The prepared statement of Mr. Bankston follows:]
                Prepared Statement of Kevin S. Bankston

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. I thank the witnesses.
    And I will begin the questions by recognizing myself for 5 
minutes.
    Mr. Philbin, as I gather, you are raising some 
constitutional concerns, but your bottom line simply seems to 
be that Congress should be careful in legislating this area. Is 
that correct?
    Mr. Philbin. That is the bottom line of the testimony 
because I do not have familiarity with----
    Mr. Nadler. You are not saying that the executive's power 
is absolute and Congress cannot legislate and limit or govern 
the way the privilege is applied, as we have, for instance, in 
CIPA for criminal cases?
    Mr. Philbin. Well, let me respond this way, Mr. Chairman. 
In CIPA, yes, I believe Congress had the authority to enact the 
procedures in CIPA because they are purely procedures, and they 
end up leaving it ultimately at the discretion of the Attorney 
General to say----
    Mr. Nadler. But under certain circumstances, if the 
evidence cannot be used, the Government is penalized by the 
case being dismissed.
    Mr. Philbin. That is true. The Government----
    Mr. Nadler. So, if we were to enact legislation along 
similar lines saying, under these circumstances, either the 
evidence must be revealed, at least to the court, and the court 
can insist that the evidence, in its judgment, can be revealed 
to the public, if it thinks it is not properly secret, or that 
a summary should be revealed to the public, or that if this 
cannot be done because it really is secret, then the inference, 
depending on the equities, must be for the Government or must 
be for the plaintiff, that would be within our rights to do as 
we have in CIPA.
    Mr. Philbin. Well, Mr. Chairman, there was a lot built into 
that question. So let me try to answer it this way. Depending 
on the standard that was put in the legislation for the court 
determining that this substitution is okay or this one is not 
or this can be disclosed, if the court is being told, ``You 
independently determine that without deference to the 
executive,'' I think there is a constitutional issue.
    Mr. Nadler. Well, wait a minute. Deference. Then the court 
would independently determine it. The degree of deference is up 
to the courts ultimately, as in anything else.
    Mr. Philbin. Well----
    Mr. Nadler. You can write, ``You should be deferential,'' 
but how that is interpreted is going to be in the court.
    Mr. Philbin. That may be, but then, you see, again, Mr. 
Chairman, the reason I am being hesitant about giving absolute 
answers is I believe the devil is in the details of specific 
statutory language.
    Mr. Nadler. Okay.
    Now you would admit--or would you--in the case that Ms. 
Loether testified about--and this is a 50-year-old case, so we 
are not worried about casting any aspersions on individuals--
clearly, what happened there was the Government at the time, 
whoever it was, lied. It said that this accident report 
involved secret information. It did not. The Government 
committed a fraud on the court. As a result of that, an unjust 
result happened, and you would agree that we should strive to 
prevent such occurrences in the future, given the fact that 
Government officials being human beings, we cannot assure that 
no one will ever lie again.
    Mr. Philbin. Yes, Mr. Chairman. I agree. Taking the facts 
to be as they have been described, yes, that was wrong, and it 
is not the sort of situation that we should want to be 
repeated. No.
    Mr. Nadler. And we should have procedures to make sure it 
does not happen as far as we can.
    Mr. Philbin. As far as possible, certainly, procedures that 
could help ensure that does not happen would be beneficial.
    Mr. Nadler. Okay. Thank you.
    Now you also quote an opinion in the Sims case saying that 
the director of central intelligence is ``familiar with the 
whole picture as judges are not.'' Judge William Webster wrote 
a letter to the Subcommittee in which he states as follows--and 
I ask unanimous consent at this point to put the letter in the 
record.
    Without objection.
    [The information referred to follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Nadler. The quote is, ``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, that they are fully competent to perform an 
independent review of executive branch assertions of the state 
secrets privilege.''
    My question is whether, despite these unequal credentials 
as both a judge and FBI and CIA director, you would think that 
Judge Webster's assessment as to the competence of judges to 
perform an independent review of executive branch assertions of 
the state secrets privilege is wrong.
    Mr. Philbin. Well, not having seen Judge Webster's letter, 
Mr. Chairman, I am hesitant to comment on it specifically, but 
I believe the courts have recognized--time and again--the 
Supreme Court, the D.C. Circuit, the Fourth Circuit, other 
circuits--that Article III judges are not in the same position 
as members of the executive branch--the President, the Director 
of Central Intelligence, or now the Director of National 
Intelligence--to assess the whole picture and understand how a 
particular piece of information in one case might, if revealed, 
have significance to foreign intelligence services or other 
parties hostile to the United States. The judges do not have 
that institutional confidence.
    Mr. Nadler. Thank you.
    Judge Wald, could you comment on our dialogue of the last 
few minutes?
    Judge Wald. Yes. I would not think that any legislation you 
have would rule out giving some deference, perhaps not the 
standard that you would like, utmost deference, but some due 
deference, something. Certainly, that is the way the FOIA 
legislation talks about substantial weight being given to the 
affidavits.
    Certainly, no judge that I have ever been acquainted with 
in my 20 years on the Federal judiciary would ever go roaring 
in there and say, ``Well, you know, never mind the President. 
Never mind those affidavits. You know, I do not happen to think 
this is.'' Certainly, the Government would be allowed, as it 
does in all of these cases, to make its case by affidavit, 
sometimes even by deposition, et cetera, and the court looks at 
it, carefully listens to the full presentation that the 
Government wishes to make.
    The problem has been to what degree the other side is 
allowed to make a case given the secrecy of the information, 
and that is something the legislation has to take account of. 
So I do not see the fact that certainly the judiciary would 
give due deference to the Government's case in deciding whether 
or not something was a state secret.
    As for the so-called mosaic theory, which we are all 
familiar with, which does have certainly a sliding scale kind 
of aspect to it, any one piece, when you look at all the other 
pieces, might be--this is something the courts have had to deal 
with already in the FOIA, and it is something that they should 
certainly look at, give thought to, but it cannot be an 
absolute bar that any one piece, if you put it together with a 
thousand other pieces, might give some clue to somebody.
    So I do not see legislation that you are contemplating as 
presenting any more formidable obstacles than the other 
contexts in which the Government has to make its case on 
certain information, but the judge has ultimate power.
    Mr. Nadler. Thank you.
    My time has expired.
    I now recognize for 5 minutes the distinguished Ranking 
Member of the Subcommittee, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, it is a challenge when we are trying to 
balance these kinds of things today. I think everyone on the 
panel recognizes the need to protect national security secrets, 
and I think everyone on the panel, including those of us here 
on this side of the room, understand that there are times, like 
in Ms. Loether's case, where Government officials do things 
that are clearly wrong and are not in comportment with the law. 
They use the law in ways that distort its purpose, and the 
challenge, of course, is to make a policy that still does the 
best that it can, given the fact that sometimes the nature of 
man is to distort things.
    With that said, Condoleeza Rice, Secretary of State, has 
publicly stated that ``When and if mistakes are made, we work 
hard and as quickly as possible to rectify them. Any policy 
will sometimes have mistakes, and it is our promise to our 
partners that, should that be the case, we will do everything 
that we can to rectify those mistakes.''
    Now my question is--I will direct it to you, Mr. Philbin, 
if possible--what are the mechanisms if something happens like 
in Ms. Loether's case? What are the mechanisms out there, what 
other source of remedies or relief could be granted someone 
that has been cheated under this situation by someone using the 
state secrets privilege to really distort the circumstances? In 
the legislative or the executive branch, what things are 
available, because that seems to me to be a similar question?
    Mr. Philbin. Well, I am certain that I cannot give an 
exhaustive list right now, but it occurs to me that the 
political branches do have the ability on their own to provide 
some compensation to a person where they believe a wrong has 
been done. There are examples. I believe that there were many 
bills in the 19th century.
    The Congress would pass special bills to provide 
compensation to various people for various reasons. The example 
that comes most clearly to mind more recently is special 
legislation to provide compensation to American citizens of 
Japanese ancestry who were interned during World War II and 
that was a situation where there was access to the courts, yet 
it was felt the courts had not provided justice, and, 
subsequently, the political branches then provide some 
compensation.
    So I think that there is an ability without using the court 
system, where a wrong has been done and the United States feels 
an obligation to make that right, for the political branches to 
do something.
    Mr. Franks. Well, Mr. Chairman, I think one of the 
challenges we have, of course, is to try to foster an 
environment in our Government, in all branches, where there is 
greater emphasis put upon people doing the right thing. It 
sounds very basic, but, ultimately, our system cannot survive 
apart from that fundamental ethic.
    One of the other controversies that has come here--and it 
is a little bit of a conflict. I certainly do not question the 
motivation or the intent of any of the other questioners here 
on the panel. But there is this debate here as to whether or 
not the Bush administration has invoked this privilege more 
often or in ways that are very different.
    And, Mr. Chairman, if I could, I would like to go ahead 
without objection and ask that the State Secrets and 
Limitations National Security Litigation Paper by Robert M. 
Chesney be placed in the record----
    Mr. Nadler. Without objection.
    [The information referred to is printed in the Appendix.]
    Mr. Franks. I just directed my last question to Mr. Philbin 
here again.
    Professor Chesney published this study that contains a 
chart of every published court decision involving the state 
secrets doctrine in the modern era, and he has concluded that 
the available data do not suggest that the privilege has been--
you know, it says that the data has continued to play an 
important role in the Bush administration, but it does not 
support the conclusion that the Bush administration chooses to 
resort to the privilege with greater frequency than prior 
Administrations or in unprecedented substantive contexts. And 
he has also said the state secrets privilege has not been used 
in recent years to protect information not previously thought 
to be within its scope.
    And finally, the professor writes that ``some commentators 
have suggested that the Bush administration is breaking with 
past practice by using the privilege to seek dismissal of 
complaints rather than just exemption from discovery. The data 
do not support this claim, however.''
    Do you know of any compilation or review of all the 
published records decisions involving the state secrets 
doctrine in the modern era that have come to a different 
conclusion than Professor Chesney?
    Mr. Philbin. I am not aware of any. I have read Mr. 
Professor Chesney's article, and I believe he points to other 
law review articles that assert a different conclusion, but he 
points out that they had not tabulated all of the data.
    Mr. Franks. Mr. Chairman, I see my time is gone, so I yield 
back. Thank you.
    Mr. Nadler. Thank you.
    I will now recognize the distinguished Chairman of the full 
Committee for 5 minutes.
    Mr. Conyers. Thank you very much.
    I think we ought to recognize that in the course of a 
rather short period of time, we have come to some general 
parameters of how Congress might be able to work with it. We 
have a constitutional technician like Trent Franks and Steve 
King balanced by some of us on this side who, with all of you, 
you know, could shape----
    Mr. Chairman and Mr. Franks, we could shape the outlines of 
a proposal. The president-elect has given us some guidance.
    And, Patrick Philbin, your work has been enormously 
appreciated when you were at the Department of Justice, but I 
know what a stickler you are about the second article, and you 
revealed it here again today. It seems to have run in the DNA 
of all the people from the Department of Justice, and I accept 
that.
    But with you and Bankston, with the judge, with the 
president-elect of the ABA, and all of us here, I do not see us 
that far from shaping something that would meet the demands of 
my constitutional technocrats on the other side, and it is 
pretty clear here just from what we have done in an hour and a 
half that there has to be some congressional direction for the 
judges. That is not asking too much. That is certainly going to 
be constitutional, and I think we can meet that.
    Don't you feel, Judge Wald, that we are making slow 
progress? Of course, we have different views. That is why we 
are all here.
    Judge Wald. Yes, I do, Chairman Conyers. It seems to me 
that the experience that Mr. Wells and I spoke about, the 
motivation that Ms. Loether spoke about, and--the only thing 
that I could find to disagree with in Mr. Philbin's testimony 
basically was we could fight--not fight about, we could have an 
exchange about--and I am sure you will inside your Committee--
what the level of review would be for the judge when they 
looked at the evidence. I certainly do not suggest he goes in 
just does what he feels like doing without taking full account 
of the Government's case.
    On the other hand, I would think utmost deference might 
deteriorate into an automatic kind of ``Well, they have made 
out a good case, and I am not going to stick my neck out and do 
anything about it.'' But that I think is one of those important 
issues, but one that certainly would be worked out in the 
course of the legislation.
    Other than that, I am sure that people would not object to 
judges doing in the civil area what they are doing in the 
criminal area in terms of finding alternatives that do not 
require the disclosure of the disputed information because you 
can find an adequate substitute that does not violate national 
security.
    Mr. Conyers. So we are coming out of this hearing with an 
agreement that no congressional statute under any circumstances 
could permanently block the President's exercise of executive 
authority in matters of national security. The Government may 
refuse to cooperate with the judge, but they cannot, you know, 
use inherent contempt or something to force the matter out of 
him.
    So, for all the people afraid of weakening our opposition 
to terrorism, we are not putting the Government in some kind of 
a position where they would have to compromise whatever they 
believed in.
    Mr. Bankston, what do you have to add to this part of our 
discussion?
    Mr. Bankston. Well, I would just say that it is critical 
that judges be able to reach the legal questions that are at 
issue in the cases before them, of course, with a mind toward 
protecting legitimate state secrets, and just add that in our 
cases we are not seeking the revelation, as Mr. Philbin 
indicated, of any detailed means and methods regarding who the 
NSA listens to or how they target those people. We are simply 
trying to litigate the legality of the fact that has been 
reported on the front pages of the New York Times and the USA 
Today and corroborated by record whistleblower evidence that 
AT&T has opened its network to the NSA.
    Mr. Conyers. Anna Diggs Taylor, the judge in the Eastern 
District of Michigan, made the same point, that everybody knows 
what they are complaining about is a state secret. It has been 
all over the newspapers and everyone knew about it.
    So, if we got Patrick Philbin, Esquire, to join us in this 
direction that we are moving in----
    Are there any caveats that you will not give up on?
    Mr. Philbin. All right. I am sorry. I beg your pardon.
    Mr. Conyers. Are there any details here that you are 
holding out on us that we cannot feel that we have a tentative 
direction that we are all moving in?
    Mr. Philbin. Well, I would say yes, Mr. Chairman, because I 
have focused on constitutional issues because I have not 
reviewed a specific legislative proposal.
    Mr. Conyers. Well, so did this Committee.
    Mr. Philbin. Well, as I said to Chairman Nadler, the devil 
is often in the details. There is a constitutional issue about 
standard of review. Then, beyond constitutional issues, there 
are policy issues. If Congress has the constitutional power to 
enact procedures, then there are policy issues about what are 
wise and useful procedures.
    It seems from the summary description of the bill that has 
been introduced in the Senate that it would require a judge in 
a case to review every piece of evidence that is claimed to 
have some classification to it, and there are cases, there are 
instances, probably the cases that Mr. Bankston involved in, 
that for a judge to review every piece of evidence that bore in 
some way on that case could mean mountains and mountains of 
documents. I do not know exactly what these procedures are 
going to involve.
    Mr. Conyers. Mr.----
    Mr. Philbin. The policy issues involved----
    Mr. Conyers. Judge Wald, make us feel better. I ask for 
just a little time for her to make him feel more comfortable 
sitting next to you.
    Judge Wald. But I will say that we have had some experience 
in that, and I particularly wrote one decision while I was in 
the D.C. Circuit that came up under Exemption 1, but that is a 
national security exemption, the language of which, if you look 
at it, is, you know, very, very close to what we are talking 
about in terms of the ultimate substantive level that a judge 
would have to find.
    In this case, there were either tens or hundreds of 
thousands, but huge, huge numbers of documents, that the 
Government was raising a privilege on dealing with the aborted 
hostage attempt in 1980, to rescue the Iranian hostages.
    Now what Judge Oberdorfer did in that case which came up to 
the appeals court, because the Government objected, was he 
appointed a master with security clearance, actually a person 
who had performed that function in the Justice Department 
previously, who would sit down with those tens or hundreds of 
thousands of documents, which would have taken him off the 
bench for the next year probably, segregated them into certain 
categories of objections and then summarized, did not attempt 
to tell the judge how he should rule, but summarized what the 
pros and cons of those arguments were. The judge was then able 
to make his decision about whether or not they needed to be 
classified.
    But here is the interesting thing. In that process, just 
because of that process, going forth--the Government was able, 
obviously, as they proceeded to talk with the other side--in 
the end, 64 percent of those documents, those tens or hundreds 
of thousands of documents, were released, and I think that, you 
know, this big, voluminous, big case thing is a real problem, 
but it is one that if you give the Federal judges tools----
    But I have to tell you the one footnote that is always 
talked about. One of the classified pieces of information in 
the hundred thousand which was ultimately released was the fact 
that if you have milk in certain kinds of containers in 
helicopters, then it is going to curdle. [Laughter.]
    Judge Wald. So, I mean, you know, everybody knows about 
overclassification. Secretary Rumsfeld talked about it. Porter 
Goss talked about it.
    Mr. Nadler. Would the witness please conclude?
    Thank you.
    We are way over time at this point.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    You know, I listened to the testimony here and the exchange 
that we have had and listened to Chairman Conyers make the 
point that no statute can force the Administration to risk our 
national security, and that is a subject matter that we are all 
wrestling with here.
    And I think I have to go back to a question I directed to 
Mr. Bankston first, and that is: Can this Congress tell a court 
what they can and cannot look at and what they can and cannot 
review? Do we have the statutory authority to do that if we 
pass the law?
    Mr. Bankston. Well, the Senate bill under consideration 
does not require the court, as Mr. Philbin said, to examine 
anything. Rather, it requires the Government to disclose to the 
court so that it is empowered to make its own evaluation as to 
the state secrets claim.
    And so in terms of your ability to legislate the state 
secrets privilege, it is a common-law evidentiary privilege. 
There is consensus on this panel, I think, that you can 
legislate in this area, even if there is a constitutional root 
to the privilege, which I humbly disagree with.
    So, yes, you do have the power to do that.
    Mr. King. The answer is yes then. So the Congress can limit 
what evidence may be heard by the court, and that would 
constitutionally consistent----
    Mr. Bankston. No, I would say----
    Mr. King [continuing]. Even though there are common-law 
precedents that you have referenced.
    Mr. Bankston. Well, Congress has the ability to legislate 
rules of procedure for the court, and the Senate bill under 
consideration requires the Government to disclose to the court.
    Mr. King. I thank you, Mr. Bankston.
    And I direct to Mr. Wells: Do you agree generally with the 
response from Mr. Bankston?
    Mr. Wells. I think generally yes, Congressman. Clearly, 
Congress has the right and has enacted and acted on proposed 
Federal rules of evidence. The rules of evidence by their very 
nature dictate what can and cannot be seen by a trier of fact, 
whether it be a judge or a jury.
    In fact, the proposal that the ABA put forth on the state 
secrets privilege in terms of the standard of review draws upon 
the draft that was submitted to Congress as Federal Rule of 
Evidence 509 when Congress was considering enacting as a 
Federal Rule of Evidence all of the privileges, all the common-
law privileges.
    Congress decided not to do that and instead enacted 501 
which simply acknowledged all common-law privileges.
    Mr. King. Okay. Mr. Wells, can you reference the 
constitutional authority that Congress has, the Constitution 
itself?
    Mr. Wells. Sir, I was merely talking about the rules of 
evidence, not the----
    Mr. King. I understand that. They are based upon some 
authority, and I would presume that it is built upon 
constitutional authority, and I would ask if that is something 
that you are familiar with that you could address.
    Mr. Wells. Sir, I have not researched that particular issue 
in terms of the broad question you asked. I would be glad to do 
so and get back to you on that if I could.
    Mr. King. Well, I thank you for your response. It occurs to 
me that this is the Constitutional Subcommittee, so I always 
like to look at the Constitution.
    Mr. Bankston. Mr. King, I could answer that question if you 
would like.
    Mr. King. And I think you are going to tell me Article III 
Section 2.
    Mr. Bankston. Yes, yes.
    Mr. King. And I appreciate your volunteering to do that. I 
then again ask the question back of Mr. Wells: Do you agree 
that this Congress has the authority to limit the jurisdictions 
of the court?
    Mr. Wells. Clearly, in terms of Federal courts, you have 
limited the jurisdiction of Federal courts. You have set 
jurisdictional minimums in terms of the jurisdiction of Federal 
courts. So, yes, the Congress has the authority to a certain 
extent to limit the jurisdiction of Federal courts.
    Mr. King. Okay. And I thank you because this brings me back 
to the question that was inspired by Chairman Conyers--and I 
agree with him--that no statute should be able to force the 
Administration to risk our national security, and the question 
that comes to me is: How does Congress enforce a jurisdictional 
limitation upon the court if the court refuses to acknowledge 
the authority of Congress?
    And I would ask that question of Justice Wald, please. How 
do we enforce if the court refuses to be guided by our statute?
    Judge Wald. I am thinking.
    Well, that situation, certainly, would be a unique one. In 
my experience, I will tell you, first of all, it is not like 
one district court judge could say, ``The heck with that. I am 
not going to abide by what Congress has said.''
    You know the hierarchy. It then goes up to an appeals 
court, and, eventually, it goes, if it is important enough by 
certiorari or otherwise, to the Supreme Court. The likelihood 
that you would get through that entire hierarchy of the Federal 
judiciary with everyone of them saying--unless they declared it 
unconstitutional.
    Now it is, of course, always possible that a court as it 
went up to the hierarchy--I am not saying I think this was 
unconstitutional, but the abstract question of what would 
happen if the court----
    Mr. King. Well, Justice, didn't that happen in the Hamden 
case in the D.C. Circuit? Wasn't there judicial jurisdictional 
limitation there and the Supreme Court heard it even though it 
was exclusively directed to the D.C. Court of Appeals in 
Hamden? And then what do we do when the Supreme Court refuses 
to follow the direction of Congress?
    Judge Wald. I----
    Mr. Nadler. The time has expired. The witness may answer 
the question briefly.
    Judge Wald. Well, first of all, my understanding--if you 
are talking about the same part of Hamden--is the Supreme Court 
took the Hamden case because it disagreed with the 
interpretation with----
    Mr. King. Yeah.
    Judge Wald. It interpreted what Congress did to say that it 
did not take away the jurisdiction in the pending cases. It did 
not sort of say, ``Well, the heck with what you did.''
    Now, if you get all the way up to the Supreme Court, I 
mean, we can always go back to President Jackson's, ``You know, 
the court has made its ruling. Now let them enforce it.'' 
However, that kind of thing has not happened, fortunately, very 
often in our history.
    I would doubt very much it would happen here. The only way, 
I would suspect, would be if the Supreme Court has two things 
it can do. It can interpret what you have done in a way you may 
not agree with. That happens frequently, I think--well, that 
would be the most likely thing--or it can declare what you have 
done unconstitutional as an infringement upon the Article III 
powers, and you are into a big separation of powers conflict.
    Given the FOIA experience and other experiences--even the 
Detainee Treatment Act where this Congress though it is not one 
of my favorite pieces of legislation, more or less said to the 
D.C. Circuit what you can review on--that is subject to a lot 
of interpretations, but they did lay down what you can look at 
when you are reviewing the CSRTs.
    Mr. Nadler. Thank you.
    The time of the gentleman has expired.
    The gentlelady from Florida is recognized for 5 minutes.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    My question is to Mr. Philbin.
    Mr. Philbin, in your----
    Well, actually, before I ask my question, Mr. Chairman, I 
would like to ask unanimous consent to admit the statement of 
William H. Webster submitted to this Subcommittee dated----
    Mr. Nadler. We have already done that.
    Ms. Wasserman Schultz. Let us do it again.
    Mr. Nadler. Without objection.
    Ms. Wasserman Schultz. Thank you.
    I was asleep at the switch or not here yet. Thank you very 
much.
    Mr. Philbin, you, in your statement, made reference to the 
state secrets privilege as when properly invoked, and you 
quoted an opinion in the Sims case saying that the director of 
central intelligence is ``familiar with the whole picture as 
judges are not,'' and you object to courts making an 
independent assessment of the submitted evidence. Is that 
right?
    Mr. Philbin. I think that a standard of review has to 
incorporate deference to the judgment of the executive, yes.
    Ms. Wasserman Schultz. But do you support any involvement 
whatsoever in terms of an independent review by a judge?
    Mr. Philbin. Well, let me answer the question this way 
because I think we may be getting hung up on the word 
``independent.'' There should be independent review in the 
sense that the judge, the court, is the ultimate decision-maker 
on whether or not the privilege was properly invoked. That is 
what the Supreme Court said in Reynolds. In my statement, I 
went through that, that it is not simply a rubber stamp once 
the executive invokes the privilege, that the court accedes to 
that. So there is some independent review in the sense that the 
decision belongs to the court, but----
    Ms. Wasserman Schultz. But there is not independent review 
in terms of review of the material.
    Mr. Philbin. In terms of whether or not this piece of 
information is classified, that this is a secret that will do 
harm if released, the judge in considering that, if the judge 
determines he should examine ex parte in camera something, 
should show deference to the judgment of the executive because 
judges, as the Supreme Court said in Sims and as many other 
courts have said, the D.C. Circuit has said, do not have the 
same expertise and do not have the full picture that those in 
the executive branch or any intelligence community have.
    Ms. Wasserman Schultz. Well, let me further read from Judge 
Webster's letter to the Subcommittee.
    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.''
    So my question is really twofold. Why, despite his unequal 
credentials as a judge and former FBI and CIA director, do you 
think Judge Webster's assertion is incorrect or wrong, and why 
do you think that there should be deference shown to the 
executive?
    There is a system of checks and balances in which the 
judiciary is a co-equal branch of Government, and despite the 
Reynolds decision, that is why we are here today, because the 
legislative branch is concerned about how far this 
Administration has taken the state secrets privilege and how 
many times it has excessively potentially invoked it.
    So, in light of that concern and our co-equal role in the 
system of checks of balances, can you answer my question?
    Mr. Philbin. Well, again, Madam Representative, there is a 
lot built in there, but let me try to go through it, and I am 
trying not to take issue with Mr. Webster's letter because I 
have not read it, and I do not fully exactly what it says or if 
the quotation that you have read in this context would give me 
a better idea of exactly what it means.
    To the extent his statement is that Federal judges have and 
can be trusted with reviewing classified material, I have no 
dispute with that. Federal judges review classified material in 
multiple contexts, as Judge Wald has explained. The FISA court 
does it. Other courts do it in the FOIA context. So simply 
handling and looking at the material is not necessarily an 
issue.
    Then there is the question of determining whether or not 
the material, if released, would do harm to the United States, 
and as I was trying to explain before, I think we are getting 
hung up maybe on what the word ``independent'' builds into it. 
I believe that the judges can conduct and do under current law 
conduct a review to ensure that if the executive asserts that 
something is secret and would do damage to the United States if 
released, they look at that to determine whether that is 
appropriately invoked under a deferential standard of whether 
or not it was reasonable----
    Ms. Wasserman Schultz. But let me give you an idea of what 
he is talking about. In his letter, he refers to el-Masri v. 
the United States, and in the letter, he talked about how Mr. 
el-Masri had been denied his day in court, ``even though no 
judge ever reviewed any evidence purportedly subject to the 
privilege, nor did any judge make an independent assessment as 
to whether or not the evidence might be available for Mr. el-
Masri to proceed with his lawsuit based on public accounts of 
the rendition and an investigation conducted by the German 
government.''
    I mean, we are talking about a person who was by all 
accounts an innocent victim, as Judge Webster refers to in his 
letter, and, I mean, let us not split hairs. You know what an 
independent review means. An independent review means that 
without the executive looking over their shoulder, without the 
executive deciding what it is that the judge can see in order 
to make their decision, they independently review the evidence 
and decide whether the state secrets privilege has been 
properly invoked, as you referred to it being necessary in the 
beginning of your statement.
    Mr. Philbin. With all respect, Madam Representative, I am 
not attempting to split hairs. I am attempting to be precise 
about what I think is an issue that has some constitutional 
significance.
    I believe that judges should conduct, can conduct an 
independent review in the sense that they are the decision-
maker and do not simply rubber stamp what the executive says. 
At the same time, the standard of review announced by the 
Supreme Court in Reynolds and in U.S. v. Nixon has 
constitutional significance and constitutional overtones, and 
Article III judges should show deference to the judgment of the 
executive in terms of what is material that will do harm to the 
national security of the United States if released.
    To the extent that Mr. Webster's letter--and I have the 
greatest respect for him, and he has great expertise--suggests 
or that you understand this letter is suggesting that judges 
are equally qualified and should with complete independence 
from the judgment of the executive decide what is a secret or 
not or what would do harm to the United States, I respectfully 
disagree with that and believe----
    Ms. Wasserman Schultz. So----
    Mr. Philbin [continuing]. It is against a long line of 
precedent.
    Mr. Nadler. The gentlelady's time has expired.
    The gentleman from----
    Ms. Wasserman Schultz. The question, Mr. Chairman, is: How 
do we know? I mean, that is really the question, and I do not 
think the gentleman has answered that question.
    Mr. Philbin. I am sorry. I am not sure. How do we know?
    Ms. Wasserman Schultz. How do we know that the Government's 
privilege has been properly invoked, if the judge does not have 
an independent opportunity to review the evidence? I mean, we 
just do not know.
    Mr. Philbin. No, the judge can and should have an 
independent opportunity to review the evidence. I am merely 
trying to be precise about the standard under which the----
    Mr. Nadler. Thank you.
    The gentleman from Tennessee is recognized for 5 minutes.
    Mr. Cohen. Thank you, Mr. Chairman.
    I came in a little late, and I apologize.
    Mr. Philbin, you are taking the most pro executive 
Administration position--is that accurate--among the panelists 
here?
    Mr. Philbin. Yes. Among the panelists here, I am taking the 
most pro Administration position.
    Mr. Cohen. And do you feel Article III Section 2 gives them 
some type of unique--or not Article III, but Article II--gives 
the Administration some unique ability to have information and 
not to have it be checked, or do you just think there should be 
limited checks?
    Mr. Philbin. Well, I believe that Article II, in assigning 
the President authority as commander in chief and as 
representing the Nation in foreign affairs, does give the 
executive special and uniquely assigned constitutional 
responsibilities with respect to diplomatic, military, and 
national security information and that the other branches have 
to show respect for that unique constitutional role.
    Mr. Cohen. And does respect preclude review?
    Mr. Philbin. I do not think it absolutely precludes any 
review, and that is not the way the Supreme Court has treated 
it. But it does affect the standard and the scope of review.
    Mr. Cohen. And, Judge Wald, you have had some cases like 
this. Do you have a problem with the scope of review as has 
been proposed in the bill in the Senate or maybe if you have 
seen the one that Mr. Conyers intends to introduce in the 
House?
    Judge Wald. I have seen them, but I am going to have to go 
back and look. Or maybe you can remind me what the----
    Mr. Cohen. Does anybody have an opinion on those bills?
    Judge Wald. I know when I looked at them, I had no problem 
with them----
    Mr. Cohen. Objection?
    Judge Wald [continuing]. And I think I can find it.
    Mr. Cohen. I cannot. My eyes are not good enough, but----
    Mr. Wells?
    Mr. Wells. Yes, Congressman. The Senate bill is consistent 
with the ABA policy in large respect, and I believe the ABA 
would support the Senate bill that is currently drafted.
    Mr. Cohen. Thank you.
    I know we want to close. I just think that we need to 
provide as many checks and balances as possible. That is the 
foundation of our Government.
    I understand national security, but when an Administration 
will lie to send people into war, lie about weapons of mass 
destruction, lie about countries having uranium that they are 
going to give to a Nation to threaten our security, lie about 
relations with al-Qaida and 9/11, when they will lie about 
that, they will lie about anything.
    I felt so bad last night listening to President Bush and 
having to think that when he talked about Iran, I could not 
accept anything he said because I knew he lied to a previous 
Congress. So he has lost the ability for the American people to 
listen to anything he says, and it is like the sky is falling.
    And, unfortunately, he has done great damage to the 
Administration and to the presidency and to the judgment of the 
executive to assert privilege because when you will go to war 
under false pretenses and lies----
    Mr. Franks. Mr. Chairman, I want to make a point of order 
that the gentleman's words are unparliamentary because they are 
personally offensive toward the President of the United States.
    Mr. Cohen. If they are, you know, if we need to withdraw 
them, I will withdraw them, but I think that there was a report 
recently that suggested--maybe I could quote that--that 400 
times they have been cited, the Administration, for giving 
mistruths, untruths, prevarications, and other type of 
statements to the American people.
    Mr. Nadler. Okay. Does the gentleman withdraw the words?
    Mr. Cohen. Withdraw them all.
    Mr. Nadler. Thank you. let us----
    Mr. Cohen. Adios.
    Judge Wald. Mr. Chairman, I just want to answer yes or no 
because I did not finish it.
    Mr. Nadler. Yes, please.
    Judge Wald. I managed now to look at the underlying bill. I 
do not have a problem. I think the word ``deference'' is 
something that applies--there are 50,000 degrees of deference 
that you can give, and whenever any expert comes in, I mean, 
who has some kind of qualified experience, you say, ``You are 
the expert in architecture, so we are going to look at your 
opinion with deference.'' So, in that respect, I have no 
problem with the bill.
    Mr. Nadler. Thank you very much.
    The gentleman's time has expired.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond to as promptly as you can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    Without objection, we unanimously thank all the witnesses.
    And with that, this hearing is adjourned.
    [Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]

























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