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

                      STATE SECRETS PROTECTION ACT OF 2008

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

                                    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

                                       ON

                                   H.R. 5607

                                   __________

                                 JULY 31, 2008

                                   __________

                               Serial No. 110-155

                                   __________

             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
          Sean McLaughlin, Minority Chief of Staff and General 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

                                  ----------

                                 JULY 31, 2008

                                                                       Page

                                    THE BILL

    H.R. 5607, the ``State Secrets Protection Act of 2008''..........     4

                               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................    17
    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....................................    19

                                   WITNESSES

    Ms. Meredith Fuchs, General Counsel, National Security Archives
      Oral Testimony.................................................    24
      Prepared Statement.............................................    27
    Mr. Steven Shapiro, American Civil Liberties Union
      Oral Testimony.................................................    37
      Prepared Statement.............................................    39
    Mr. Michael A. Vatis, Partner, Steptoe & Johnson, LLP
      Oral Testimony.................................................    51
      Prepared Statement.............................................    53
    Mr. Bruce Fein, Chairman, The American Freedom Agenda
      Oral Testimony.................................................    61
      Prepared Statement.............................................    63

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Los Angeles Times article dated May 21, 2006, submitted by 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................................................    20
    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.........    22

                      STATE SECRETS PROTECTION ACT OF 2008

                                  ----------

                            THURSDAY, JULY 31, 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 12:33 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Jerrold
    Nadler (Chairman of the Subcommittee) presiding.
        Present: Representatives Conyers, Nadler, Scott, Davis,
    Wasserman Schultz, and Franks.
        Staff present: David Lachmann, Subcommittee Chief of Staff;
    Burt Wides, Majority Counsel; Heather Sawyer, Majority Counsel;
    Caroline Mays, Majority Professional Staff Member; Paul Taylor,
    Minority Counsel; and Charlotte Sellmyer, Minority Professional
    Staff Member.
        Mr. Nadler. This hearing of the Subcommittee on the
    Constitution, Civil Rights, and Civil Liberties will come to
    order. Without objection, the Chair is authorized to declare a
    recess of the hearing.
        We will now proceed to Member's opening statements. As has
    been the practice in this Subcommittee, I will recognize the
    Chairs and Ranking Members of the Subcommittee and of the full
    Committee to make opening statements. In the interest of
    proceeding to our witnesses and mindful of our busy schedules,
    I would ask that other Members submit their statement for the
    record. Without objection, all Members will have 5 legislative
    days to submit opening statements for inclusion in the record.
        The Chair now recognizes myself for 5 minutes for an
    opening statement.
        Today, the Subcommittee examines legislation that would
    codify uniform standards for dealing with claims of a state
    secrets privilege by the government in civil litigation. In
    January, we had an oversight hearing on the state secrets
    privilege. Based on the findings of that hearing and the very
    insightful testimony we received, I introduced H.R. 5607, the
    State Secrets Protection Act of 2008, on March 13.
        Our hearings over the last 2 years and the Administration's
    persistent attempts to withhold information from Congress have
    demonstrated the destructive impact that sweeping claims of
    privilege and secrecy have had on our Nation. Claims of secrecy
    have been used to conceal matters from Congress, even though
    Members have the security clearance necessary to be briefed in
    an appropriately secure setting. That has been the case with
    respect to the use of torture, illegal spying on Americans and
    other matters of tremendous national importance.
        We have a constitutional obligation to conduct oversight,
    and the facts that have begun to come out certainly demonstrate
    the consequences of the misuse of state secrets claims. This
    same pattern of resorting to extravagant claims of state
    secrets has also been evident in the courts. While this
    Administration did not invent the use of the state secrets
    privilege to conceal its wrongdoing, it certainly has perfected
    the art, whether it is rendition to torture, illegal spying or
    government malfeasance, the state secrets privilege has been
    abused by Administrations past and present to protect officials
    who have behaved illegally or improperly rather than to protect
    the safety and security of the Nation.
        The landmark case in the field, U.S. v. Reynolds, is a
    perfect case in point. The widows of three civilian engineers
    sued the government for negligence stemming from a fatal air
    crash. The government refused to produce the accident report,
    even refusing to provide it to the court to review, claiming it
    would reveal state secrets. The Supreme Court concurred without
    ever looking behind the government's unsupported assertion that
    national security was involved.
        A half-century later, the report was found online by the
    daughter of one of the engineers, and it contained no sensitive
    information. It did, however, reveal that the crash was caused
    by government negligence. So, in other words, the government
    committed a fraud on the court in order to hide embarrassing
    information and protected itself by misuse of the state secrets
    doctrine. And this fraud on the court ended up in plaintiffs
    losing evidence which they clearly should have had.
        Protecting the government from embarrassment and liability,
    not protecting national security, was the only justification
    for withholding the accident report. Yet these families were
    denied justice because the Supreme Court never looked behind
    the government's claim, its wrongful and knowingly deceitful
    claim, to determine whether it was valid.
        It is important to protect national security, and sometimes
    it is necessary for our courts to balance the need for
    individual justice with national security considerations.
    Congress has in the past balanced these important albeit
    sometimes competing demands. In the criminal context, we
    enacted the Classified Information Procedures Act to protect
    classified information without derogating the rights of the
    accused. In FISA, we set up procedures for the court to examine
    sensitive materials. Through the Freedom of Information Act, we
    sought to limit any withholding of information from the public,
    whom the government is supposed to serve.
        We can and should do the same in civil cases. Our system of
    government and our legal system have never relied on taking
    assurances at face value. The courts and the Congress both have
    a duty to look behind what this Administration or any
    Administration says to determine whether or not those
    assurances are well-founded.
        Presidents and other government officials have been known
    to lie, especially when it is in their interest to conceal
    something. The founders of this Nation assumed that there
    needed to be checks in each branch of government to prevent
    such abuses from taking place. Courts have a duty to protect
    national security secrets, but they also have a duty to make an
    independent judgment as to whether state secrets claims have
    merit.
        When the government itself is a party, the court cannot
    allow it to become the final arbiter of its own case. In
    particular, the courts cannot allow cases to be dismissed on a
    motion to dismiss on the unsupported allegation that defending
    the case will necessitate the revelation of state secrets and
    so the party never even gets a day in court. The purpose of
    this legislation is to ensure that the correct balance is
    struck, that litigants have their day in court and that
    national security is also protected.
        I look forward to the testimony of our witnesses.
        [The bill, H.R. 5607, follows:]

        Mr. Nadler. 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. Mr. Chairman,
    the state secrets privilege is a longstanding legal doctrine
    that keeps all Americans safe. 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 when a
    court reviews a case in which the central issues involve
    sensitive, classified, national security information, the
    courts have a responsibility to determine whether disclosure of
    the information at issue would pose a reasonable danger to
    national security. If the court determined that public
    disclosure of such information would harm national security,
    the court is obliged to either dismiss the case or limit the
    public disclosure of national security information as
    necessary.
        Under this doctrine, people with legitimate claims are not
    denied access to court review, rather the doctrine allows
    judges to personally review any sensitive information if
    necessary. While this doctrine may occasionally disadvantage
    someone suing in court, it is absolutely necessary to protect
    our national security and the safety of all Americans.
        The roots of the states privilege extend all the way back
    to the Supreme Court's decisions 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 ruled
    that executive branch officials are not obligated or obliged to
    disclose any information that was communicated to them 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 elements
    of the privilege put in place by the Supreme Court in its
    Reynolds decisions. At approximately the same time, the Supreme
    Court continued to indicate that the state secrets privilege
    derives from separation of powers considerations when it handed
    down its decision in United States v. Nixon.
        In that case, the court endorsed executive privilege as a
    ``fundamental to the operation of government and inextricably
    rooted in the separation of powers under the Constitution.'' It
    also went out of its way to say that sensitive information
    should not be disclosed if it involves military, diplomatic or
    sensitive national security secrets. The Fourth Circuit took
    exactly the same position in affirming dismissal of a case
    brought by Khaled el-Masri, in which the court concluded that
    the state secrets privilege, quote, has a firm foundation in
    the Constitution, in addition to its basis in the common law of
    evidence.
        Not surprisingly, Mr. Chairman, the state secrets privilege
    has played a significant role in the Justice Department's
    response to civil litigation arising out of the
    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 of those claims are true.
        As Professor Chesney of Wake Forest University law school
    has concluded, ``recent assertions of the privilege are not
    different in kind from the practice of other Administrations.''
    Professor Chesney elaborated that, quote, the available data to
    suggest that the privilege has continued to play an important
    role--rephrase that, Mr. Chairman. He said that, ``the
    available data do suggest that the privilege has continued to
    play an important role during 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
    context.''
        Because the state secrets privilege is based in the
    Constitution separation of powers principles, it is unclear
    whether Congress could constitutionally amend the state secrets
    privilege by statute. It is also worth noting that as professor
    Chesney has pointed that, quote, judges as an institutional
    matter, are nowhere nearly as well situated as executive branch
    officials to account for and balance the range of
    considerations that should inform assessments of dangers to
    national security.
        So far, courts have appropriately restrained themselves and
    acted to preserve sensitive national security information when
    absolutely necessary. Of course, no system is perfect, Mr.
    Chairman, and mistakes will be made. As Secretary of State
    Condoleezza Rice has stated, ``When and if mistakes are made,
    we work very 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, that we will do
    everything that we can to rectify those mistakes.'' I pledge to
    work with my colleagues to make sure that amends are made and
    justice is achieved through the executive or legislative
    branches whenever the executive branch makes a mistake in good
    faith efforts to keep all Americans safe.
        The state secrets doctrine remains strongly supported by
    today's Supreme Court, even in its Boumediene decision,
    granting unbelievably habeas litigation rights to terrorists.
    Justice Kennedy in his majority opinion acknowledged that the
    government's, quote, legitimate interest in protecting sources
    and methods of intelligence gathering, and stating we expect
    that the district court will use its discretion to accommodate
    this interest to the greatest extent possible while citing the
    Reynolds state secrets case I mentioned earlier in doing so.
        The state secrets privilege is as vital now as it has ever
    been, Mr. Chairman. And now that 200 terrorists in Guantanamo
    Bay can litigate their detention in Federal court under the
    Supreme Court's Boumediene decision, it is remarkable that the
    Democrat majority decides to hold a hearing on legislation that
    threatens to disclose vital intelligence information in court
    right after 200 terrorists are starting to sue their American
    captors in Federal court. [Laughter.]
        You laugh to maintain sanity.
        I strongly oppose any efforts, including H.R. 5607, that
    invite the courts to deviate from the sound procedures they
    currently follow that protect vital national security
    information. H.R. 5607 would preclude judges from giving weight
    to the executive branch's assessment of national security
    related to its assertion of privilege. It would authorize
    courts not to use ex parte proceedings in conducting review of
    privileged claims. And it would prevent courts from being able
    to dismiss a case when the government cannot defend itself
    without using privileged information.
        Mr. Chairman, innocent Americans can only be protected if
    sensitive national security information is protected. And I
    will do whatever I can to keep Americans safe.
        And with that I yield back.
        Mr. Nadler. Thank you. I just want to clarify that this is
    a legislative hearing considering a particular bill which does
    not eliminate the privilege, the state secrets privilege, but
    seeks to codify it and to regulate it within certain limits,
    and that is the bill before us.
        I will now recognize the distinguished Chairman of the full
    Committee, Mr. Conyers.
        Mr. Conyers. I regret that the Ranking Member hasn't
    examined the legislation because in no way does it do what he
    claims is so ridiculous as to be laughable. I think that is a
    serious error that should----
        Mr. Franks. [Off mike]
        Mr. Conyers. Oh, you weren't laughing at the bill; you were
    laughing at the habeas corpus rule. The bill is a little funny,
    too? Well, anyway, whatever it was you were laughing about, I
    think we ought to carefully examine this legislation. This is a
    very serious hearing. And I am impressed by the fact they are
    asking some questions that have to be answered about why and
    whether the state secrets act is overused. To me, that is the
    question that brings me to this hearing with great concern and
    interest.
        It has been admitted by the Administration representatives
    that at least 50 percent of the time that the government has
    overclassified information. I refer and ask that it be put in
    the record the Los Angeles Times record of May 21, 2006.
        Mr. Nadler. Without objection.
        [The information referred to follows:]

        Mr. Conyers. In addition, it should be noted, and I hope
    that it will be commented on by the distinguished group of
    witnesses, that President Reagan's executive secretary at the
    National Security Council told a Blue Ribbon Commission looking
    at classification in 1997 that only 10 percent of the secrecy
    stamps were for legitimate protection of secrets.
        Erwin Griswold, who prosecuted the Pentagon Papers case
    said that it becomes apparent to any person who has
    considerable experience with classified material that there is
    a massive overclassification and that the principal concern of
    the classifiers is not with security but with governmental
    embarrassment of one sort or another. And so we want to examine
    that.
        Maybe these assertions are overstimulated or exaggerated.
    But I don't think that this hearing needs to be made as some
    kind of a stunt or political--have some political objective in
    mind when the Constitution committee in the Congress takes
    steps to reexamine this. We are the only ones with the
    authority to deal with this. And for us not to deal with it I
    think would be a dereliction.
        And so I am happy to insert my statement into the record
    and yield back my time.
        [The prepared statement of Chairman 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 H.R. 5607, the ``State Secret Protection Act of
    2008.'' This bill would codify the state secret privilege and protect
    national security by providing safe, fair, and responsible procedures
    and standards for handling sensitive information in civil cases.
        Some might ask, why is there a need for this legislation? It is
    very much needed because this Administration has aggressively sought to
    create an Imperial Presidency--an Executive Branch whose decisions
    remain secret and unchecked by Congress or the courts--that has raised
    important concerns about how claims of secrecy may impair our
    constitutional system of checks and balances.
        For example, President Bush eavesdropped on American citizens. When
    the victims challenged this warrantless wiretapping as a violation of
    FISA and the Fourth Amendment, the Administration raised the state
    secret privilege to block judicial review of their claims. It similarly
    has used the privilege to seek dismissal of cases challenging other
    troubling aspects of its war on terror, including rendition to torture.
        Concerned that the Executive was claiming state secrets in order to
    protect embarrassing facts or unlawful conduct from becoming public,
    rather than to protect truly secret information, the Constitution
    Subcommittee held an oversight hearing earlier this year.
        Witnesses--including the American Bar Association and former D.C.
    Court of Appeals Chief Judge Patricia Wald--confirmed the need for
    legislative reform of the privilege. H.R. 5607 has been crafted to
    address that need.
        I want to highlight three key points about H.R. 5607.
        First--contrary to claims that I am certain we will hear today--
    H.R. 5607 fully protects state secrets. The bill would require courts
    to take protective measures, such as conducting non-public proceedings
    and limiting access to documents. Where the court upholds the claim of
    privilege, the bill prevents harmful disclosure of the protected
    information.
        Second, H.R. 5607 establishes procedures for independent judicial
    review of secrecy claims. It requires the government to specify how
    disclosure of the information would be harmful, and specifies that the
    courts must review the information that the government seeks to
    withhold and independently determine whether the secrecy claim is
    valid.
        William Webster--who served as a federal appellate judge and as
    director of both the CIA and FBI--advised the Subcommittee that courts
    can be trusted to safeguard sensitive secrets and are fully competent
    to assess the validity of privilege claims.
        Finally, H.R. 5607 prevents premature dismissal of entire lawsuits
    based on the mere assertion of the state secret privilege. For example,
    where the privilege is upheld, H.R. 5607 requires the court to consider
    whether a non-privileged substitute for the privileged information
    would allow the litigation to continue.
        Our firm commitment to respect for the rule of law requires us to
    advance legislation that protects and respects the Constitution. H.R.
    5607 is one such bill, and I look forward to hearing from our witnesses
    on this important piece of legislation.

        Mr. Nadler. I thank the gentleman.
        I now want to welcome our distinguished panel of witnesses
    today and introduce them.
        Meredith Fuchs is the general counsel for the National
    Security Archives, where she oversees Freedom of Information
    Act and Federal Records Act litigation. She has supervised six
    government-wide audits of Federal agency policy and performance
    under Federal disclosure law, including one relating to the
    proliferation of sensitive, unclassified document control
    policies at Federal agencies.
        She was a partner at the firm of Wiley Rein & Fielding. Ms.
    Fuchs clerked for Judge Patricia Wald of the U.S. Court of
    Appeals for the District of Columbia, who I think was a witness
    at our last hearing on this subject in January, and Judge Paul
    Friedman of the U.S. District Court for the District of
    Columbia. She is a graduate of New York University law school
    and received her B.S. from the London School of Economics and
    Political Science.
        Steven Shapiro has been the legal director of the American
    Civil Liberties Union since 1993 and served as the associate
    legal director from 1987 to 1993. He is an adjunct professor of
    constitutional law at Columbia Law School. Mr. Shapiro is a
    graduate of Harvard Law School and clerked for Judge J. Edward
    Lumbard of the U.S. Court Appeals for the Second Circuit.
        Michael Vatis is a partner with the firm of Steptoe &
    Johnson. From 2003 to 2004, Mr. Vatis was the executive
    director of the Markle Task Force on National Security in the
    Information Age. From 1998 to 2001, he served as the director
    of the National Infrastructure Protection Center. From 1994 to
    1998, he served as the Associate Deputy Attorney General and
    Deputy Director of the Executive Office for National Security
    in the Department of Justice. From 1993 to 1994, Mr. Vatis
    served as a law clerk to Justice Thurgood Marshall and to then
    Judge Ruth Bader Ginsburg. He is a graduate of Princeton
    University and Harvard Law School.
        Bruce Fein is a frequent witness before our hearings and is
    the founder and chairman of the American Freedom Agenda, which
    has as its aim the restoration of the Constitution's checks and
    balances. Mr. Fein served in the Department of Justice under
    President Reagan. He served as the Assistant Director of the
    Office of Legal Policy, legal advisor to the Assistant Attorney
    General for Antitrust and the Associate Deputy Attorney
    General.
        Mr. Fein was then appointed general counsel for the Federal
    Communications Commission followed by an appointment as the
    research director for the Joint Congressional Committee on
    Covert Arms Sales to Iran. Mr. Fein has been an adjunct scholar
    with the American Enterprise Institute, a resident scholar at
    the Heritage Foundation, a lecturer at the Brookings Institute
    and an adjunct professor at George Washington University. He is
    a graduate of Harvard Law School.
        Before we begin, it is customary for the Committee to swear
    in its witnesses, if you would please stand and raise your
    right hands to take the oath.
        Do you swear or affirm under penalty of perjury that the
    testimony you are about to give is true and correct to the best
    of your knowledge, information and belief?
        [Witnesses sworn.]
        Mr. Nadler. Let the record reflect that the witnesses
    answered in the affirmative. You may be seated.
        Without objection, your written statements will be made a
    part of the record in their entirety. We would ask each of you
    to summarize your testimony in 5 minutes or less. To help you
    keep time, there is a timing light at your table. When 1 minute
    remains, the light will switch from green to yellow and then to
    red when the 5 minutes are up. And I will inform you the Chair
    is reasonably lax in the 5 minutes but not totally.
        Our first witness is Ms. Fuchs, who is recognized for 5
    minutes.

    TESTIMONY OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY
                                ARCHIVES

        Ms. Fuchs. Thank you, Chairman Nadler, Ranking Member
    Franks and distinguished Members of the Subcommittee. I
    appreciate this opportunity to appear before you to comment on
    the State Secrets Protection Act of 2008.
        I submitted a written statement, so I am going to focus my
    oral statement on the importance of judges conducting
    meaningful, independent, judicial review into government
    secrecy claims. For context, I am going to put a few well-
    established matters on the table which I am happy to discuss
    later.
        First, there is massive unnecessary secrecy within the
    executive branch. It is not just my view, as Mr. Conyers
    pointed out, it is the view of many officials throughout the
    military and the intelligence establishment. And I just want to
    comment on that for a moment.
        Mr. Conyers was for the most part referring to the
    classification system, which at least is moored in an executive
    order that is public, that provides standards for security
    classification and has oversight and reporting requirements by
    the Information Security Oversight Office. None of that even
    exists in the state secrets context, which as far as I can tell
    is the government's free to define as it sees fit.
        The second point I want to put on the table is that while
    secrecy is clearly needed for many reasons, there is no doubt
    that national security secrecy can and has had the impact of
    covering up wrongdoing in many instances. This context cannot
    be forgotten when you are examining how courts should handle
    civil cases in which the plaintiffs allege government
    wrongdoing and the government wields the state secrets
    privilege to end the case before the issues are even joined.
        My experience arises primarily in the Freedom of
    Information Act context, where Congress already has explicitly
    granted courts the authority to conduct a de novo review of the
    agency's decision to keep information secret. De novo for
    lawyers traditionally means the court doesn't defer to the
    agency. Instead, the court weighs the facts, the law and the
    arguments to make its decision.
        In the legislative history of FOIA however, the committee
    report expresses the assumption that courts will grant
    substantial weight to agency views expressed in affidavits. In
    practice, these divergent standards have meant that some courts
    do try to grant de novo review and they test the government
    assertions, and some courts grant utmost deference and refuse
    to consider alternative facts and arguments.
        In our experience seeking security-classified records, we
    have seen that when there is an independent, higher-level
    inquiry made into the government's secrecy claims, the almost
    invariable result is that more information can be released than
    the government was prepared to release in the first place.
    When, on the other hand, there is no countervailing pressure,
    the agencies have no incentive to seriously consider whether
    information could cause harm to national security if released.
    Sometimes when we see documents years later and we find out
    what the government was protecting, it is clear that the
    government either was overreaching or it was not taking
    seriously its obligation to disclose information that is not
    properly classified.
        So in the point of context, courts that have conducted true
    de novo reviews have used many of the types of tools that the
    State Secrets Protection Act of 2008 would encourage. In fact,
    it has become standard fare today for the government to file a
    Vaughn index, even successive, more detailed Vaughn indexes to
    itemize their secrecy claims. That forces the government to
    actually review the documents and explain the withholding. It
    enables the plaintiff to have some ability to respond and helps
    the court conduct a review.
        The use of a special master in the Washington Post v.
    Department of Defense case is perhaps most illustrative of how
    courts can employ an expert to achieve better results in the
    interest of both security and justice. In that case, Kenneth
    Bass, an attorney who had served as counsel for the
    intelligence policy at the Department of Justice and who held
    appropriate clearances, acted as a special master. The result
    was that the government secrecy claim went down from 14,000
    pages to 2,000 or 3,000 pages.
        So, this gets at the central issue and controversy, I
    believe, related to this bill, whether and to what extent the
    courts should become enmeshed in the question of what actually
    merits state secrets protection. Given that courts are getting
    involved in that sort of issue in FOIA and in the CIPA context,
    there doesn't seem to me to be a strong constitutional argument
    against judicial involvement.
        In light of the substantial interests asserted by
    plaintiffs claming government wrongdoing, there is also a
    strong reason for courts to get involved as a matter of
    justice. And in my view, many of the procedures in the State
    Secrets Protection Act of 2008 will have an impact on the
    government's own assertion for secrecy without the court ever
    having to choose between one side or the other. I am
    particularly hopeful about the use of special masters or
    technical experts to resolve over-broad secrecy claims.
        In addition, courts must consider the evidence propounded
    by the plaintiffs in these cases. Under FOIA, some courts have
    refused to consider declarations from nongovernmental experts,
    even when those experts were former intelligence agency staff
    who saw the information before they left the agency--senators,
    former ambassadors, retired government officials and the like.
    This doesn't make any sense to me.
        Certainly a retired, high-level official will have
    something useful to tell a court in some of these cases. And so
    a categorical rule that would exclude them and what they have
    to say doesn't make sense. Moreover, there are instances when
    the government's claims are simply not factually or logically
    consistent. The very purpose of this bill will be frustrated if
    the court's hands are tied and the court cannot consider
    arguments on these sorts of issues.
        On a final note, I offer a precaution to you if you decide
    to change the standard of judicial review in this bill. In the
    FOIA context, where the law explicitly says de novo review, de
    novo standard of review, the courts have moved from de novo
    review to substantial weight consideration of evidence to a
    substantial weight standard of review to great deference.
        And finally, recently courts have expanded that deference
    concept way beyond the security classification area to other
    areas of sensitivity. This is not what Congress intended. Given
    the very substantial interest at stake here, any adjustment of
    the standard should be done with a full understanding of the
    possibility that careful drafting is necessary in order to
    avoid nullifying the good purposes of this bill.
        I thank you for seeking my input, and I would be happy to
    respond to any questions.
        [The prepared statement of Ms. Fuchs follows:]

                      Prepared Statement of Meredith Fuchs

        Mr. Nadler. I thank the witness.
        Mr. Shapiro is recognized for 5 minutes.

                     TESTIMONY OF STEVEN SHAPIRO,
                     AMERICAN CIVIL LIBERTIES UNION

        Mr. Shapiro. Thank you Chairman Nadler, Ranking Member
    Franks and distinguished Members of the Subcommittee. I
    appreciate this opportunity to explain the ACLU's interest in
    reform of the state secrets privilege, an issue of critical
    importance to all Americans concerned about the unchecked abuse
    of executive power.
        I also want to commend Chairman Nadler for crafting the
    State Secrets Protection Act, H.R. 5607. If enacted, it would
    place reasonable checks and balances on the executive branch,
    re-empower courts to exercise independent judgment in cases of
    national importance and protect the rights of those seeking
    redress through our court system.
        Over the years, we have seen the state secrets privilege
    mutate from a common law evidentiary rule designed to protect
    genuine national security secrets into an alternative form of
    immunity that is used more and more often to shield the
    government and its agents from accountability for systemic
    violations of the Constitution and this Nation's laws. The ACLU
    has been involved in a series of high-profile cases in which
    the government has invoked the state secrets privilege in
    response to allegations of serious government misconduct, not
    simply to block access to specific information that is alleged
    to be secret but to dismiss the lawsuits in their entirety.
        This has happened in cases involving rendition and torture,
    warrantless surveillance and national security whistleblowers
    among others. The dismissal of these suits does more than harm
    the individual litigants who are denied any opportunity for
    redress. It deprives the American public of the judicial
    determination regarding the legality of the government's
    actions.
        This Subcommittee, I know, is familiar with Khaled el-
    Masri, who Representative Franks referred to in his opening
    remarks. Mr. el-Masri is an ACLU client who was detained
    incommunicado for 5 months and subject to coercive
    interrogation under the CIA's rendition program because he was
    confused with somebody else in a tragic case of mistaken
    identity. Mr. el-Masri's ordeal received prominent coverage
    throughout the world, including on the front pages of this
    Nation's leading newspapers.
        German and European authorities began official
    investigations of Mr. el-Masri's allegations. And on numerous
    occasions, U.S. government officials publicly confirmed the
    existence of the rendition program. Nevertheless, Mr. el-
    Masri's lawsuit was dismissed based on the government's claim
    that the state secrets privilege barred any judicial review of
    what had happened to him. In effect, Mr. el-Masri was told that
    the one place where there could be no discussion of his
    mistreatment by the U.S. government was in a U.S. court of law.
        H.R. 5607 takes great strides toward restoring essential
    constitutional checks on executive power. By codifying the
    state secrets privilege, H.R. 5607 will bring needed clarity
    and balance to an area of the law that is now desperately in
    need of both.
        Given limited time, I will highlight just a few important
    aspects of the bill. First, H.R. 5607 requires judges to look
    at the evidence that the government is seeking to shield by
    invoking the state secrets privilege, unless the evidence is
    too voluminous, in which case the court can review a
    representative sample. This will address the too frequent
    practice of relying exclusively on the government's affidavits
    in ruling on the state secrets privilege. The bill also places
    the burden of proof on the government that is trying to keep
    the evidence secret which is where it belongs.
        Second, H.R. 5607 recognizes that judges can and should
    give due deference to the expert opinion of government
    officials without deferring entirely or abdicating their
    responsibility to make an independent assessment of the
    evidence. In order to assure that the court's decision is
    properly informed, the bill encourages the maximum
    participation possible by opposing counsel and gives courts the
    authority to appoint an independent expert to advise the court
    in appropriate circumstances.
        Third, as a direct response to the increasing tendency to
    dismiss cases at the outset of litigation based on the
    government's broad and aggressive assertion of the state
    secrets privilege, H.R. 5607 restores the state secrets
    privilege to its proper evidentiary role by providing that a
    case shall not be dismissed until the opposing party has had a
    full opportunity to complete discovery of non-privileged
    evidence and to litigate the claim based on that evidence.
        Courts have long experience in handling national security
    information responsibly and assessing its appropriate role in
    the judicial process. As Chairman Nadler noted, Congress has
    recognized the value of judicial involvement in these crucial
    decisions under the Classified Information Protection Act, the
    Freedom of Information Act and the Foreign Intelligence
    Surveillance Act. If history is any guide, there is no reason
    to believe that courts will likely disagree with the
    government's assessment of national security risks.
        But the Supreme Court's ruling in the Pentagon Papers case
    provides a vivid illustration of the importance of maintaining
    an independent judicial role in national security cases as a
    constitutional safety valve against excessive secrecy. The ACLU
    therefore supports H.R. 5607 and urges its enactment as soon as
    possible. I would be happy to answer any questions the
    Committee might have.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Shapiro follows:]

                      Prepared Statement of Steven Shapiro

        Mr. Nadler. Thank you.
        Mr. Vatis, you are recognized for 5 minutes.

                TESTIMONY OF MICHAEL A. VATIS, PARTNER,
                         STEPTOE & JOHNSON, LLP

        Mr. Vatis. Thank you, Mr. Chairman. Mr. Chairman, Mr.
    Franks and distinguished Members of the Committee, thank you
    for inviting me here today to talk about this extremely
    important subject.
        I agree entirely with my fellow witnesses about both the
    need for and the propriety of Congress's regulating the state
    secrets privilege. It is perfectly appropriate for Congress to
    determine what role courts should play and what the standard of
    review should be for court decision-making in cases in which
    the government asserts the state secrets privilege.
        Even if one views that privilege as founded on or at least
    derived from constitutional principles, as I do, there is still
    an appropriate role for Congress to play. Congress has
    authorities in the areas of war and national defense and it has
    authorities in the area of diplomatic relations, which give it
    ample authority to make laws that affect both of those realms,
    as H.R. 5607 would do.
        I would like to spend just a moment, though, on the one
    area where I might have a slightly different perspective and
    that is on whether and how much deference should be accorded to
    the government's judgment about whether disclosure of a state
    secret would cause harm to either national defense or to
    diplomatic relations. My one concern with the bill as it is
    written today is with Section 6, which I believe could be read
    as directing courts to give no deference whatsoever to the
    executive branch's judgment about potential harm to national
    defense or diplomatic relation, but rather that the courts
    should treat the government's judgment as no different from
    other witnesses that might appear on the other side.
        I believe that reading the statute this way would cause
    tremendous harm potentially. The executive naturally has
    greater expertise from its day-to-day experience and from its
    access to intelligence in the areas of defense and diplomacy.
    It also has constitutional responsibilities for these areas
    that should be acknowledged and respected in any law that is
    passed in this area. So, deference to the executive branch on
    this sole issue of whether harm would result from disclosure
    should be required.
        Now, I want to be clear and not misunderstood on what I
    mean by deference. This doesn't mean that courts should not
    engage in independent review of the propriety of the privilege.
    It doesn't mean courts should not engage in their own judgment
    about whether harm truly would be caused. Courts will still
    look at all of the evidence. They would still consider opposing
    witnesses from the government. And they would still exercise
    judgment, but they would give at least substantial weight to
    the government's assertion of harm.
        Other protections would still exist to protect against
    government overreaching. The government would still retain the
    burden of proof in asserting the privilege. It would still have
    to prove that disclosure is reasonably likely to cause
    significant harm to national defense or diplomatic relations.
    And they must make those assertions in writing.
        And courts can insist on specificity so that the government
    can't just rely on the say-so of a senior executive official.
    They would have to explain the rationale and the supporting
    evidence. And I think these are sufficient and adequate to
    protect against abuse. To go further, though, and have courts
    simply give the same weight to government judgment in this area
    as to other witnesses I think would go too far and would be a
    mistake.
        Finally, I don't think that Congress should be ambiguous in
    this area and leave it up to the courts to determine how much
    deference should be accorded. I think that would just replicate
    the situation we have today, where some courts accord a lot of
    deference, some courts accord a little deference and some
    courts potentially none at all.
        I think it is Congress' responsibility to be clear on this,
    to have consistency in the way courts review these issues,
    which I think is the objective of the legislation. And I think
    being clearer about the level of deference that should apply
    would be the one fix that I would recommend in the legislation
    as it stands.
        To sum up, I don't think it is fair for people to complain
    about activist judges if legislation virtually invites activism
    by not being clear on dispositive issues such as this. And so I
    would urge the court to take up this issue and be specific--
    urge this Committee to take up this issue and be specific on
    the level of deference that courts should apply.
        Thank you.
        [The prepared statement of Mr. Vatis follows:]

                     Prepared Statement of Michael A. Vatis

        Mr. Nadler. Thank you.
        I will now recognize Mr. Fein.

                  TESTIMONY OF BRUCE FEIN, CHAIRMAN,
                      THE AMERICAN FREEDOM AGENDA

        Mr. Fein. Thank you, Mr. Chairman and Members of the
    Committee. I would like to begin by trying to demonstrate why I
    think something is rotten in the state of the state secrets
    doctrine.
        And let me begin by quoting a fundamental precept of our
    jurisprudence announced by Chief Justice John Marshall in
    Marbury against Madison, which has been celebrated as a feature
    of all civilized law. He wrote: The very essence of civil
    liberty certainly consists in the right of every individual to
    claim the protection of the laws whenever he receives an
    injury. The government of the United States has been
    emphatically termed a government of laws and not of men. It
    will certainly cease to deserve this high appellation if the
    laws furnish no remedy for the violation of a vested legal
    right.
        And let us go to a hypothetical--it is derived from the el-
    Masri case--about how the state secrets doctrine applies to
    deprive someone of a remedy for the violation of a vested legal
    right. Suppose an American citizen residing in Berlin is
    kidnapped and tortured by CIA operatives based--excuse me--CIA
    operatives based abroad. And they are acting on the basis of
    the president's gut instincts that this American has
    collaborated with al-Qaida in Iraq. The suspicion proves
    erroneous and the citizen sues his CIA kidnappers and torturers
    for deprivation of liberty and torture and violation of the
    Constitution.
        The state secrets privilege is invoked as a defense. It is
    averred in an affidavit submitted by the director of the CIA
    that to prove the kidnapping would disclose to the
    international terrorist enemy a method of capture that would
    enable a terrorist to train for means of evasion and that to
    prove the torture would disclose a method of intelligence
    collection that would alienate allies of the United States and
    would enable the enemy to train terrorists to resist the type
    of torture they might anticipate.
        The prevailing state secrets doctrine would require
    dismissal of the citizen's case. I don't think that doctrine
    then, to quote from Congressman Franks, protects all Americans.
    That American probably thinks it did a disservice to his
    rights.
        Moreover, I want to underscore that there is no anomaly in
    the law to requiring the executive to choose between a fair
    trial, disclosing information necessary for justice in a civil
    case, when we examine the analogy in the criminal context. And
    I want to draw on a very vivid snippet from history.
        You may recall in the atomic spies case concerning the
    Rosenbergs, those who had stolen secrets from Los Alamos, there
    was an individual named David Hall. He was complicit. He was
    never prosecuted because the FBI, the government, thought that
    a prosecution would require disclosure of our ability to break
    the Soviet Venona code. He still today is free; he was never
    prosecuted. But the government was required to choose between
    criminally prosecuting an atomic spy or due process, and they
    decided they would not reveal the information, and he still
    remains free.
        So, when you think about regulating the state secrets
    doctrine, which at its most disadvantageous posture toward the
    government, it simply in some cases where the privilege is
    rejected would require the government to say, all right, we
    will accept a default judgment or an adverse finding of fact
    and keep the state secret as was done with regard to David Hall
    (sic). There is nothing unusual about that. No one has claimed
    that the doctrine that requires the government to choose in the
    CIPA context between prosecution and due process has created a
    danger to the United States.
        With regard to the specifics of deference that have been
    raised, it is certainly true, I think, that Mr. Franks is
    accurate that the government has a unique expertise with regard
    to intelligence. They have been in the business a long time.
    They can see pieces of a puzzle put together that someone on
    the outside can't. So, that certainly is a strike in their
    favor in deference, and judges are not superior to the
    executive branch on that score.
        But there is equally true another attribute of the
    executive branch that looks in the opposite direction. There is
    a motivation to lie and distort and to prevaricate to cover up
    wrongdoing to cover up political embarrassment, and that is
    hardly an exception in the annals of the United States, the
    Pentagon Papers being one. We all remember Nixon claimed the
    CIA assets in Mexico would be disclosed if you traced the money
    to the Watergate burglars and otherwise.
        And we can see the use of classified information for
    political purposes in the Valerie Plame disclosure, where the
    president unilaterally decided to declassify a document
    obviously to try to disparage what he viewed as an adversary,
    Mr. Wilson, in view of the purchase of uranium in Niger by Iraq
    and otherwise. So, when you take on the one hand the expertise,
    on the other hand the motivation to perhaps distort the
    evidence, in my judgment this legislation should just flag for
    the judge both of those elements to be considered in
    determining whether the state secrets standard that has been
    erected in the legislation has been satisfied.
        I would like to conclude by making a couple of observations
    about constitutional qualms. I think any constitutional
    challenge to this bill would be frivolous. Remember, even
    assuming that the president enjoys an inherent constitutional
    right to protect some state secrets, that does not shield it
    from regulation by Congress. Article I, Section 8, Clause 18
    says Congress can regulate the exercise of any power vested by
    the United States Constitution in any branch or officer
    thereof.
        And here we have a very mild congressional regulation of
    the president's ability to keep state secrets, establishing
    certain standards and levels of judicial review that have been
    shown through the years if we could draw upon the experience
    under FOIA, the experience under CIPA, the experience under
    FISA, as well as the rather regular efforts that judges are
    given in making determinations whether the CIA prepublication
    review of written books and otherwise have disclosed classified
    information. In none of these instances has there been shown
    that this kind of judicial review cripples or handicaps or
    impairs the president's ability to protect the national
    security.
        In all of these respects, I think the Committee is well
    advised to move forward on this legislation. Indeed, there is
    only one structural suggestion I would make--is that at
    present, the bill does not distinguish between violations of
    constitutional rights where the public interest in vindication
    is at its zenith and violation of other rights under the
    Federal Tort Claims Act. I would argue that when you have a
    constitutional violation, the government's burden of proof
    should rise to clear and convincing evidence that you have a
    state secret involved and not simply a preponderance.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Fein follows:]

                        Prepared Statement of Bruce Fein

        Dear Mr. Chairman and Members of the Committee:
        As Chairman of the American Freedom Agenda, I am pleased to share
    views on the state secrets privilege generally and legislation that
    would limit its invocation to frustrate private redress for
    constitutional or sister violations of law perpetrated or aided and
    abetted by the government. The American Freedom Agenda seeks
    legislative reform of the state secrets doctrine as one of its tenets
    for restoring checks and balances and protections against government
    abuses. The organization was formed by stalwart conservatives,
    including Richard Viguerie and former Congressman Bob Barr.
        But the state secrets privilege is neither a liberal nor a
    conservative issue. It addresses a question raised by Chief Justice
    John Marshall of the United States Supreme Court more than two
    centuries ago in Marbury v. Madison (1803): ``The very essence of civil
    liberty certainly consists in the right of every individual to claim
    the protection of the laws whenever he receives an injury. . . . The
    government of the United States has been emphatically termed a
    government of laws and not of men. It will certainly cease to deserve
    this high appellation, if the laws furnish no remedy for the violation
    of a vested legal right.''
        ``If this obloquy is to be cast on the jurisprudence of our
    country, it must arise from the peculiar character of the case.''
        The state secrets privilege assaults what Chief Justice Marshall
    maintained was the essence of civil liberty. It denies a plaintiff
    injured by constitutional wrongdoing of a remedy if proof of liability
    would require disclosure of a state secret, i.e., information that
    might damage the national security. In the words of the great Chief
    Justice, the doctrine casts ``obloquy'' on the nation's jurisprudence,
    and can be justified only by the ``peculiar character'' of the
    litigation. The origin of state secrets as a defense to any type of
    alleged government wrongdoing was thoroughly misconceived by Justice
    Stephan Field in Totten v. United States (1875). There, the Court
    declared that a contract with the government to spy was not enforceable
    if proof of the contract would reveal a state secret. As applied to
    voluntary contracts, the state secrets doctrine was unalarming because
    if the government habitually dishonored its promises private entities
    would no longer volunteer. But the gratuitous and expansive language of
    Totten has been interpreted to make state secrets applicable to any
    litigation where government wrongdoing is alleged.
        The state secrets privilege is further dubious because it runs
    against the grain of the doctrine frowning on evidentiary privileges
    announced by Justice Byron White in Branzburg v. Hayes (1972): the
    public enjoys a presumptive right to everyman's evidence.
        The need for legislative reform of state secrets as the doctrine
    has evolved in litigation is self-evident. Consider the following
    hypothetical, fashioned largely from the state secrets case involving
    the abduction, imprisonment, and interrogation abuse of Khalid El-
    Masri, a German citizen of Lebanese descent. An American citizen
    residing in Berlin is kidnapped and tortured by CIA operatives based on
    President George W. Bush's signature ``gut instincts'' that the
    American has collaborated with Al Qaeda in Iraq. The President's
    suspicion is erroneous, and the citizen sues his CIA kidnappers and
    torturers for a deprivation of liberty and torture in violation of the
    Constitution. The state secrets privilege is invoked as a defense. It
    is averred in an affidavit submitted by the Director of the CIA that to
    prove the kidnapping would disclose to the international terrorist
    enemy a method of capture that would enable terrorists to train for
    means of evasion; and, that to prove the torture would disclose a
    method of intelligence collection that would alienate allies of the
    United States and would enable the enemy to train terrorists to resist
    the type of torture disclosed. The prevailing state secrets doctrine
    would require dismissal of the citizen's case resting on kidnapping and
    torture, despite the obloquy the ruling would cast on the jurisprudence
    of the United States. Moreover, by denying a remedy for the
    constitutional wrongdoing the doctrine encourages repetitions of
    lawlessness. That understanding is what provoked the Supreme Court to
    fashion an exclusionary rule remedy for Fourth Amendment violations in
    Mapp v. Ohio (1961), plus a civil damages remedy in Bivens v. Six
    Unknown Agents (1971).
        I thus applaud the endeavor of H.R. 5607 to constrain abusive
    applications of the state secrets doctrine. My opening observations
    lead to several legislative recommendations.
        The burden of proving entitlement to the state secrets privilege
    should be placed on the government for threefold reasons: evidentiary
    privileges obstruct the search for truth; the state secrets privilege
    casts aspersion on the nation's system of justice by blocking a remedy
    for a violation of constitutional or sister legal rights; and, the
    government holds the information relevant to proving the state secrets
    privilege. I would also recommend that in cases implicating
    constitutional as opposed to non-constitutional wrongdoing, the
    government should be required to prove state secrets by clear and
    convincing evidence standard, not simply by a preponderance.
        In ruling on state secrets claims, the legislation should also
    instruct judges to consider both the government's unique expertise in
    knowing what disclosures might harm national security and the
    government's institutional incentives to prevaricate or distort the
    truth over national security to conceal crime, maladministration, or
    politically embarrassing mistakes. In Reynolds, the government lied
    about secret spying equipment to avoid civil liability for an airplane
    crash under the Federal Tort Claims Act. In the Pentagon Papers case,
    the government misrepresented the harm that would ensue from publishing
    the history of the Vietnam War. President Nixon also made bogus
    national security claims in an effort to obstruct the Watergate
    investigation. In United States v. United States District Court (1972),
    the Supreme Court rejected the government's claim that judges were too
    naive in domestic security cases to ascertain probable cause needed for
    warrants. Justice Lewis Powell explained: ``We cannot accept the
    Government's argument that internal security matters are too subtle and
    complex for judicial evaluation. . . . If the threat is too subtle or
    complex for our senior law enforcement officers to convey its
    significance to a court, one may question whether there is probable
    cause for surveillance.''
        While judicial vetting of national security determinations are not
    daily subjects of litigation, neither are they a novelty. They are made
    in suits under the Freedom of Information Act. They are made by FISA
    judges in issuing warrants for the collection of foreign intelligence.
    And judges review the government's deletions of alleged national
    security information included in the writings of former CIA officers or
    otherwise, for example, the decision by the United States Court of
    Appeals for the Fourth Circuit in United States v. Marchetti (1972).
        Evenhandedness is a chief feature of civilized law. The state
    secrets privilege should not skew justice. It should not expose itself
    to withering criticism reminiscent of Anatole France's observation:
    ``The law, in its majestic equality, forbids the rich as well as the
    poor to sleep under bridges, to beg in the streets, and to steal
    bread.'' Similarly, the state secrets privilege should empower the
    judge, after examining in camera all evidence said to be protected by
    state secrets, to award judgment either in favor of the plaintiff or in
    favor of the defendant whenever the ends of justice would so require.
    The privilege should not be a one-way street in favor of the defendant,
    especially because--in the words of Chief Justice Marshall--its
    invocation by the defendant casts obloquy on the nation's
    jurisprudence.
        Finally, constitutional doubts raised by detractors of the
    legislation are frivolous. No Supreme Court decision holds that state
    secrets in civil litigation is anchored to the Constitution. Further,
    under the Gravel precedent, Members of Congress enjoy authority to
    disclose classified information in conjunction with their legislative
    duties. In addition, even if there were no state secrets privilege
    whatsoever, the President would not be compelled to disclose anything.
    The government could simply accept a default judgment or an adverse
    finding of fact and keep all information secret to protect what the
    President believes is national security. A similar choice is required
    in criminal prosecutions under the Classified Information Procedures
    Act of 1980: when a summary of classified information will not satisfy
    the notice required by due process, the government must drop the
    prosecution if it wishes to protect the alleged state secrets.
        Even assuming the state secrets privilege is an inherent Article II
    power to protect the national security, Congress is empowered to
    regulate its exercise under the Necessary and Proper Clause to prevent
    abuses which cast obloquy on the nation's jurisprudence and to deter
    constitutional and related legal wrongdoing. In addition, the
    separation of powers doctrine only prevents Congress from exercising an
    ``overriding'' influence over an executive power. The proposed
    legislation does not require the President to reveal anything believed
    to need secrecy to protect the national security. The maximum sanction
    under the proposed legislation is the payment of money damages which
    would be funded from congressional appropriations. And the state
    secrets standard established by the legislation does not compromise
    national security but generally echoes what the President through
    executive orders has decreed justifies secrecy.
        In sum, state secrets legislation is clearly constitutional and
    should not be skewed by concocted fears of unconstitutionality.

        Mr. Nadler. Thank you.
        We will now go to questioning of the witnesses. 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, provided 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
    have 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.
        I will begin by recognizing myself for 5 minutes to
    question the witnesses.
        First of all, Mr. Fein, we have heard arguments that the
    Constitution empowers the president to protect national
    security and that the state secrets has a grounding in these
    constitutional claims. Mr. Vatis says that it requires the
    courts to defer to the government's claim.
        It seems that at bottom this is the same argument we have
    heard over and over in regard to many controversial secret
    programs, namely that we look only to the president's Article
    II powers, as if the Congress' Article I powers and the
    Judiciary's Article II powers did not exist. Could you comment
    on this briefly because I have got a bunch of other questions?
        Mr. Fein. Yes, the Constitution abhors the idea that any
    particular power is totally unchecked by any of the other
    branches. The basic standard is do other branches that are
    regulating or overseeing exercise a crippling or dominating
    influence over the executive branch, and this legislation
    certainly does not meet the standard.
        Mr. Nadler. So, it would be constitutional in your view.
        Mr. Fein. Absolutely.
        Mr. Nadler. Thank you.
        Mr. Vatis, we seem to agree on many points: that Congress
    must check the tendency of any Administration to overclassify
    and use secrecy to cover up, that judges must directly examine
    the evidence and make the ultimate judgment on privilege, as
    has not often been the case in the state secret cases. I
    question your view that a court should give deference to the
    government's judgment on the privilege, as I understand your
    position.
        According to the dictionary, deference--and the bill says
    that the government's testimony should have the same weight as
    other expert witnesses. According to the dictionary, deference
    has two main meanings. It can mean that one shows appropriate,
    courteous respect to a person perhaps for their knowledge,
    expertise, experience, et cetera. We expect a judge to show
    deference in that sense to any expert witness. And our bill
    says that the government's expert testimony should be treated
    in the same manner as other expert testimonies.
        However, the primary meaning of deference, according to the
    dictionary, is submission or yielding to the opinion or
    judgment of another. If the judge has to submit or to yield to
    the judgment of the executive, can he meaningfully make the
    ultimate independent judgment if in the next breath you suggest
    that the judge has to defer to the executive's assertion, or do
    you have a different meaning of the word deference?
        Mr. Vatis. Mr. Chairman, I definitely do not mean the
    second definition that you offered of submission. I do mean,
    though, giving due regard and substantial weight to the
    government's judgment about the narrow issue of whether----
        Mr. Nadler. Shouldn't the court give due regard and
    substantial weight to any expert witness?
        Mr. Vatis. It should give due regard based on the
    background of those witnesses, but I think going in, there
    should be at the very least a presumption that the government
    has a valid basis and that it is----
        [Crosstalk.]
        Mr. Nadler. I think that is the key. There should be a
    presumption that the government has a valid basis for its claim
    of secrecy.
        Mr. Vatis. If supported by logic and commonsense and by the
    evidence that the official relies on----
        Mr. Nadler. All right----
        Mr. Vatis [continuing]. In the declaration or affidavit.
        Mr. Nadler. All right, well, the bill encourages courts to
    appoint special masters or independent experts to assist the
    court. If the court were to appoint an independent expert, let
    us say, who had recently served as the director of the CIA, and
    on behalf of the government a junior CIA official testifies,
    why shouldn't the court treat these two witnesses the same and
    be required to undertake a similar assessment of their
    expertise and credibility, particularly since the independent
    expert has no vested interest in the outcome?
        Mr. Vatis. Because I think that the--for two reasons: One,
    this presently serving government official has access to
    intelligence and knowledge of ongoing programs and ongoing
    governmental interests that the former government official who
    might be serving as a special master or witness----
        Mr. Nadler. And second?
        Mr. Vatis [continuing]. Does not have. Second is the
    constitutional responsibilities that I think should be accorded
    some weight. And I think it is important on this issue to think
    of some concrete examples. If the plaintiff in a civil case is
    seeking access to notes of a meeting between a high-level U.S.
    government official and a high-level allied official, for
    example, in which a key decision was made that affected the
    plaintiff, and the government says if that information is
    disclosed, it will cause significant harm to our diplomatic
    relations with that ally, they will never trust us again, and
    they offer details, I don't think the court should say, well,
    the witness----
        Mr. Nadler. You don't think the court should substitute its
    judgment--you don't think the court should substitute its
    judgment on that question.
        Mr. Vatis. On that sort of question.
        Mr. Nadler. Okay, Mr. Fein, could you comment on what Mr.
    Vatis has said?
        Mr. Fein. Well, there is a similar argument that was made
    by the government in a case in 1972. It was called the Keith
    case--Mr. Conyers probably remembers that; it is out of his
    district, Judge Keith--in which the government argued that
    judges are too naive and simpleminded to decide in domestic
    security cases whether there is probable cause to believe that
    some wrongdoing in a security area was underway.
        And Justice Powell wrote for a unanimous court, quote, ``we
    cannot accept the government's argument that internal security
    matters are too subtle and complex for judicial evaluation. If
    the threat is too subtle or complex for our senior law
    enforcement officers to convey its significance to a court, one
    may question whether there is probable cause for
    surveillance.'' That certainly was a repudiation of the idea
    that judges simply are uncomprehending of the nature of
    security risks and therefore must trust the word of the
    government branches.
        Mr. Nadler. Thank you. My last question--because my time is
    almost up under lenient interpretation.
        Ms. Fuchs, you have litigated a lot of government secrecy
    claims, and you have written a major article on the proper role
    of judges in state secret cases. We know there has been abuse
    of secrecy claims illustrated in cases like Reynolds and
    through admissions of high-ranking officials of massive
    overclassification to avoid government embarrassment. In light
    of that history, what do you think the impact would be of
    requiring substantial deference or utmost deference of state
    secret assertions?
        Ms. Fuchs. I frankly think that using the word deference at
    all is going to nullify everything else that is in the bill. I
    think that it is clear in the FOIA instance where courts are
    supposed to be conducting de novo review that they will always
    sort of tend toward deference anyway. And so it is important
    that any extra weight that is given to the government be very
    narrowly constrained.
        Mr. Vatis talked about due regard being given to the
    government's view based on their background. And indeed, you
    know, the expertise of someone who is currently operating
    within an intelligence agency would be given regard by a judge.
    That is what judges do all the time. But if the word deference
    is used for some sort of weight, then the impact is basically
    going to be that courts are going to tend toward a sort of
    chevron deference. And if that is the case, there is not going
    to be any real check on the secrecy.
        Mr. Nadler. I thank the witnesses.
        Now recognized for 5 minutes, the distinguished Ranking
    Member, Mr. Franks.
        Mr. Franks. Well, thank you, Mr. Chairman.
        You know, Mr. Chairman, one of the privileges I have in
    this Congress is also to serve on the Armed Services Committee
    and the Subcommittee on Strategic Forces. And of course the
    Strategic Forces Committee has to do with the nuclear profile
    of this country. And I was struck by Mr. Fein's comment
    relating to the Rosenbergs. And you know, it occurs to me that
    sometimes we need to understand the significance of our state
    secrets.
        I am convinced historically that had we been able to
    control our state secrets that there never would have been a
    Cold War. And as we discuss some of the challenges that we face
    with other Nations even today--China is a perfect example. Much
    of the technologies that they have received--and this is all
    open-source information--that they have received--at least the
    reports or the comments that I am making are--that much of the
    information that they have received from our government, either
    clandestinely--they have either stolen it or it was given to
    them otherwise--has given them great advances in the area of
    aiming technologies, missile aiming technologies, that are, for
    instance, part of the reason that they have been able to
    advance their ASAT capability, shooting down their own
    satellites.
        And I am afraid that some of that information was lost
    accidentally by the United States. Some of it was transferred
    openly by the Clinton administration. But the reality is that
    we probably are on some type of collision course at some point
    with China in what I don't know how will completely play out.
        The challenges of state secrets are not small ones. I am
    convinced, being on the Armed Services Committee, that the
    greatest compromise to American military superiority is the
    loss of our secrets. Nothing empowers our opponents more than
    them gaining our technologies and either leapfrogging on it or
    building on it to be able to surpass where they would have been
    otherwise.
        I just wanted to throw that out, Mr. Chairman.
        Mr. Chairman, the state secrets doctrine remains strongly
    supported by today's Supreme Court, even in its Boumediene
    decision, granting habeas corpus litigation rights to
    terrorists. And by the way, Mr. Chairman, that was the part
    that I found laughable, not the bill--was the----
        Mr. Nadler. I think that was clear.
        Mr. Franks [continuing]. That the court--I just wanted to
    make--in deference to my good friend, Chairman Conyers.
        Granting habeas litigation rights to terrorists, I think,
    is also something else that is on a collision course with
    reality. Justice Kennedy in his major opinion acknowledged the
    government's, quote, legitimate interest in protecting sources
    and methods of intelligence gathering and stating we expect
    that the district court will use its discretion to accommodate
    this interest to the greatest extent possible, while citing its
    Reynolds decision in doing so.
        And so, Mr. Vatis, my question to you is what does that
    tell you about the Supreme Court's continued interest in
    protecting the state secrets privilege as understood today?
        Mr. Vatis. I think the Supreme Court in the Boumediene
    decision and in other previous decisions--Reynolds and even
    earlier as you have alluded to--have articulated a privilege
    that has substantial force. And I think if left unregulated by
    a statute, the Supreme Court and lower courts will continue to
    do so. As I said in my opening statement, I don't think that
    precludes this body of government from getting involved and
    regulating judicial review of assertions of the state secrets
    privilege. I think it is a perfectly appropriate endeavor.
        I do think, though, that the regard for executive judgment
    and executive prerogatives under the Constitution should be
    part of this statute. And I think the place where that should
    be reflected is in the standard review, as I have alluded to.
        And again, I don't want my position to be misunderstood or
    mischaracterized. I agree with the provisions in the bill
    calling for independent judgment, independent review of all of
    the evidence by the judge. It is merely a question of whether
    government witnesses should be given deference.
        The word deference does not need to be used. Words like
    substantial weight, words like if it is supported by the
    evidence or if a determination is reasonable, things like that.
    There are many ways that this body of government has required
    deference. There are many articulations of it and many levels
    of it. I think utmost deference would be the wrong standard.
        Mr. Franks. I understand.
        Mr. Vatis. But----
        Mr. Franks. Thank you, Mr. Vatis.
        Mr. Vatis. But I think there should be some level of
    deference----
        Mr. Franks. Thank you, sir.
        Mr. Chairman, I guess, you know, I have made this point
    before. This, again, is another hearing that seems to point
    toward doing what we can to give terrorists or the enemies of
    American national security greater rights, greater
    opportunities to avoid justice here.
        And I understand that part of our constitutional system is
    to make sure that those accused have the rights of being able
    to either extol or demonstrate their innocence. I understand
    that, and I believe in part of it. But we have not had one
    hearing yet on doing what we can in this Committee, which is
    our primary charge, to protect the constitutional rights of the
    people, to protect their lives and their constitutional rights,
    their lives being their first constitutional right----
        Mr. Nadler. Would the gentleman yield?
        Mr. Franks. Yes, sir, Mr. Chairman.
        Mr. Nadler. Well, I just point out that the bill we are
    considering has nothing to do with the rights of people accused
    of anything. The question of how to handle secrets in the
    context of a criminal trial was determined by this Congress 30
    years ago, 20 years ago, in the--what do you call it--the
    Classified Information Procedures Act. What this bill deals
    with and what this hearing deals with is how to deal with civil
    litigation if someone is suing the government claiming his
    rights are violated and the government asserts a state secret.
        Mr. Franks. I understand that, Mr. Chairman.
        Mr. Nadler. I yield back.
        Mr. Franks. I am reclaiming my time.
        The challenge is that some--you know, the terrorist
    organizations are not so acquainted with the subtleties that
    you mention, and they are already suing our government. So, it
    is astonishing to me. I mean, in my opening testimony, I talked
    about Guantanamo detainees that will be suing our government
    pretty soon under the new habeas rights that the Supreme Court
    gave them.
        So, the bottom line here is--what concerns me is it seems
    like most of the impulse of the Committee has been to try and
    embarrass the Administration, hurt the Administration, rather
    than try to do what we can to protect the Constitution and the
    American people. And I just point to the Robert Chesney of Wake
    Forest University law school, the study that he did showing--
    and I will just read these two quotes and I am done.
        He concluded that recent assertions of privilege are not
    different in kind from the practice of other Administrations.
    And he also concluded that the available data, while they do
    suggest privileges continue to play an important role in the
    Bush administration, it does not support the conclusion that
    the Bush administration chooses to resort to the privilege with
    greater frequency than prior Administrations or unprecedented
    substantive context.
        And I just feel like we are once again focusing on things
    that are not to the greatest extent important to the American
    people and to the Constitution of the United States. And I
    think that is a failing of the Committee here.
        And I yield back.
        Mr. Nadler. I thank the gentleman.
        I would simply like to comment briefly that this is not an
    attempt to embarrass this or any other Administration. I
    believe, and we differ obviously, that for future
    Administrations--because if we pass this bill, by the time it
    is signed into law, it is going to be a future Administration--
    we need to control the use of the state secrets privilege. And
    whether or not the Bush administration has used it more
    frequently is an interesting question.
        But the real change is that it is used today in a way that
    it wasn't used previously to dismiss a case ab initio, that is
    from the beginning, not merely to object to a specific piece of
    evidence. And this bill seeks to deal with that question too,
    although we haven't had any comment on that.
        But I will now yield to the gentleman, the Chairman of the
    full Committee, the gentleman from Michigan, Mr. Conyers, for
    questions.
        Mr. Conyers. Thank you, Mr. Chairman. This is an incredible
    hearing for this reason. My dear friend, the Ranking Member,
    thinks it is an incredible hearing for another reason. But the
    reason that I think it is incredible is that all of the
    witnesses have a common point of agreement except on the exact
    standard of court review. That is really quite amazing to me.
        Mr. Vatis argues for deference. Ms. Fuchs and Shapiro and
    Fein caution strongly against that. And we may be able to--is
    there someway that there is a compromise that could loom up
    that would get all of you aboard on this point that Mr. Vatis
    has raised, or are we going to have to decide one way or the
    other?
        Mr. Vatis. Mr. Chairman, I think there are ways to bridge
    the perceived gap because I don't think the gap is as large as
    it might be described. I think there are, as I mentioned
    earlier, different levels of deference that can be accorded.
        Ms. Fuchs has said courts are going to defer anyway, but
    essentially I think she said don't invite them to defer too
    much. I think by being specific in the statute that is
    ultimately passed, Congress can make sure that they don't defer
    too much. If the statute doesn't say with specificity how much
    deference to give, how much weight to give to the
    Administration's assertion, some courts will defer too much;
    other courts won't defer enough in my judgment.
        And so I just think Congress should be specific about how
    much weight should be given to the Administration's assertions
    of harm. And I think different words can be used, and we could
    probably come up with words or options, I think, that might be
    a compromise.
        Mr. Conyers. Well, that is encouraging.
        Mr. Fein. I think, however, that there needs to be some
    consensus as to whether or not the judge only is to be alerted
    to the fact that the government has expertise without
    mentioning it does, but it also has the incentive to use that
    expertise for political purposes and distort the record. They
    are both true, and they both look in opposite directions when
    it comes to paying attention to what the executive branch has
    said would be the national security fallout.
        The fact is the government sometimes lies about what it
    knows--I mean, if we would go back to the Gulf of Tonkin
    Resolution with President Lyndon Johnson about whether there
    were torpedoes shot against the Turner Joy. So, it doesn't mean
    that they always lie, but sometimes they do; sometimes they
    don't. And I think it is important that the statute flag that
    as an element that the judge should consider. I think there is
    a too ready acceptance that anytime the executive branch says
    anything, well, we should automatically bow like vassals and
    say it must be true.
        Mr. Conyers. But is Mr. Vatis right that we might be able
    to resolve this language? This is a matter of phrasing.
        Mr. Shapiro. Mr. Chairman, let me just say, I do not think
    this is an unbridgeable gap. But I think the first point you
    made is really the most important and that is that the areas of
    agreement among all of us are far more substantial than this
    area of disagreement, as important as it may be.
        So, everybody who is testifying here today believes: number
    one, that Congress has the constitutional authority to act;
    number two, Congress should exercise that authority; number
    three, Congress should exercise that authority in a way that
    preserves a meaningful and independent judicial role in
    reviewing the state secrets privilege; and number four, the
    state secrets privilege should not, except in the rarest of
    circumstances, be used to dismiss cases in their entirety.
        Those areas of common agreement, seem to me, form the basis
    for very significant legislation from this Committee and this
    Congress. I happen to agree with Mr. Fein and Ms. Fuchs that
    the issue is really not one of deference, that the issue is one
    of persuasiveness. Deference tends to confuse the issue.
        And to use Mr. Vatis' example, if you have a present
    Administration official who has access to ongoing intelligence
    information that is no longer available to a former
    Administration official, then the present Administration
    official's testimony will be more persuasive and is likely to
    be credited by the judge for that reason without having to put
    the language of deference or substantial weight into the bill.
    I think the way to address the concern that Mr. Vatis is
    raising, which I understand, may be not in the language of the
    bill but in some cautionary language in the Committee report.
        Mr. Conyers. Does the witness represent your views, Ms.
    Fuchs, pretty well?
        Ms. Fuchs. I would say that does represent my view. I just
    want to add one point, which is that this bill also does
    provide for interlocutory appeal. And so there is a protection
    against a judge who is overreaching from the government's
    perspective. While it may be that there is a concern about one
    rogue judge, once you get it to the court of appeals where you
    have three appellate judges, that is certainly a significant
    protection against a judge going too far.
        But I also just would add that the former director of the
    Information Security Oversight Office, who is also the
    secretary of the Interagency Security Classification Appeals
    Panel, which decides on classification reviews within the
    government, has said that his power to actually order
    declassification was never used but proved to be a very
    forceful power to have in trying to get the agency to explain
    why things couldn't be declassified.
        Mr. Conyers. Well, I want to thank you all. This has been a
    very important and significant hearing.
        Mr. Nadler. The gentleman from Virginia is recognized.
        Mr. Scott. Thank you, Mr. Chairman, and thank you for
    calling the hearing.
        Mr. Fein, as I understand your testimony, the state secret
    privilege does not exist in criminal court.
        Mr. Fein. There is a requirement that if the government is
    unable to provide a summary of classified information that
    would give the defendant all the due process, notice and
    warning that he would need to mount an adequate defense, the
    government either has to dismiss the case or yield the
    evidence.
        Mr. Scott. And if the government is being sued as a
    defendant in a case, the state secret is a defense in a civil
    case.
        Mr. Fein. That is correct. And I think what this bill does
    in circumstances where the judge would think it would be in the
    interest of judgment to say that if the government does not
    comply with an obligation to give over evidence that it may
    think should be protected but the judge says should not be,
    then the government has to choose either default judgment or
    give over the evidence.
        Mr. Scott. Okay, now, this works when the government is a
    defendant. How does it work if the government is not a
    defendant but just evidence is needed to sue somebody else?
        Mr. Fein. The government usually then intervenes and makes
    the case. That is what happened in the telecommunications cases
    that were recently mooted by this House's decision to vote for
    the FISA Amendments Act of 2008.
        Mr. Scott. Now, who gets to claim the privilege? Is it the
    president himself, high-ranking officials or any Federal
    employee?
        Mr. Fein. I think the Congress could stipulate who should
    be required to actually submit the affidavit and claim the
    privilege. Customarily, it has not been required to be the
    president. Oftentimes, it would be CIA director, sometimes
    Defense Department persons. But I think this body could require
    the highest level of attention to this, like in executive
    privilege cases where the president would have to invoke the
    privilege for it to apply.
        Mr. Scott. Now, you have indicated that there is a
    difference between a state secret and an embarrassing
    situation. And if you have presented a prima facie case, you
    don't want the government just to say we win but we have a
    state secret and can't show you why.
        Mr. Fein. No, I don't want that to happen, especially when
    you have constitutional wrongdoing at stake. And I think, Mr.
    Congressman, that it is especially important to preserve the
    ability to seek redress for constitutional wrongdoing in a
    private litigation because as we know that the government has
    exclusive discretion to bring criminal charges against an
    executive official based upon alleged constitutional
    wrongdoing, and there is no check on the executive branch that
    decides that is not appropriate. So, this is a complement to
    separation of powers to enable at least a different forum to
    examine what is allegedly a constitutional wrong.
        Mr. Scott. And with a state secret privilege claim, who has
    the burden of proof now, and who would have the burden of proof
    under the bill?
        Mr. Fein. Well, the burden of proof and privilege
    customarily lies on the party seeking to invoke it. And this
    bill I think properly makes it clear that the burden of proof
    is on the government. I would suggest that in constitutional
    claims it be a burden not just by preponderance but by clear
    and convincing evidence when the result is if it is proven, the
    claim is dismissed.
        Mr. Scott. Now, is this an ex parte or an adversary
    proceeding?
        Mr. Fein. It is really up to the judge to decide what is
    necessary to protect national security.
        Mr. Scott. And is the fact that our government actually
    tortured someone--is that a state secret?
        Mr. Fein. Well, I think certainly in many executive branch
    officials that would be correct because you are disclosing a
    method of intelligence collection. And it is often said the
    reason why we have to keep secret all these methods is that
    otherwise the enemy would know how to train its cohorts to
    resist this kind of torture. And that is what, to me, makes the
    state secrets doctrine without some regulation quite an
    instrument of oppression.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Nadler. I see Mr. Cohen is just arriving.
        And, Mr. Cohen, do you wish to be recognized to ask
    questions at this point?
        The gentleman from Tennessee is recognized.
        Mr. Cohen. Thank you, Mr. Chairman. I have been in
    Transportation, where I had a bill.
        What should the judge do if the government provides a
    substitute for limited release to counsel and parties but the
    government argues it cannot provide an unclassified version as
    the bill currently stipulates?
        Mr. Fein, can you help me with that?
        Mr. Fein. Well, my desire is that if the unclassified
    version provides all the evidence needed for the plaintiff to
    move forward on the case, there is nothing wrong with that.
    That is how it works in the criminal context.
        My view is that if the plaintiff can establish a prima
    facie constitutional wrong, and that obviously means the
    government has to have an opportunity to discredit the evidence
    submitted, and then the government says, but sorry, you lose
    because state secrets would be disclosed in order to prove a
    defense maybe that we didn't torture you or whatever, then I
    think, as in the criminal context, the judge should have
    discretion, just award judgment for the plaintiff.
        The plaintiff would have to then prove the amount of
    damages involved. I don't think it comports with our idea of
    justice to tell someone you lose your right for a remedy for a
    constitutional wrong because the government would disclose a
    state secret in order to defend or in order for you to prevail.
        And let me give an example of the situation: the el-Masri
    case, where the gist of the government's defense was if Mr. el-
    Masri had to prove the identity of the CIA operatives who
    kidnapped and took him to Bagram for coercive questioning--
    well, a CIA operative is an intelligence source and so there is
    a state secret, so you lose. That seems to me a monstrous
    proposition in a government that is supposed to be a government
    of laws and not of men.
        Mr. Cohen. Does anybody on the panel differ? Good.
        I understand state secrets and the importance of the state
    secrets, but as Mr. Fein points out, the government is supposed
    to be of laws, and we are supposed to give people an
    opportunity when they have had some wrong done to them to have
    a redress of grievances. That seems inherent in our system of
    government, a due process hearing and opportunity for a hearing
    and then for some type of a decision. And it does seem like we
    should come up with some type of an alternative that can
    satisfy both parties, which we normally do in these cases.
        And I would yield the remainder----
        Mr. Nadler. Would the gentleman yield for a moment before
    he yields back?
        Mr. Cohen. Yes.
        Mr. Nadler. Thank you.
        I just want to mention that the bill is very clear on that
    point. It says in a civil action brought against the
    government, if the court orders the government to provide a
    non-privileged substitute for evidence or information and the
    government fails to comply, in addition to any other
    appropriate sanctions, the court shall find against the
    government--the court shall find against the government on the
    factual or legal issue to which the privileged information is
    relevant.
        It doesn't go as far as Mr. Fein would say that the courts
    shall find against the government on the case that you win. But
    it says on the factual or legal evidence, on the factual or
    legal issue to which the point of evidence is relevant, that if
    the government refuses to provide it despite the court saying
    it can be provided, that the court shall find against the
    government on that factual or legal issue, which may or may not
    determine the outcome of the entire case.
        Mr. Cohen. And now I yield back the remainder of my time.
        Mr. Nadler. Let us see--we have no further witnesses.
    Without objection--well, first of all, let me say I thank the
    witnesses, and I thank the Members for their participation.
        Mr. Fein. Mr. Chairman----
        Mr. Nadler. I am told that Mr. Fein had something he wanted
    to add, so----
        Mr. Fein. I just would like----
        Mr. Nadler. Without objection, I will recognize him.
        Mr. Fein. Thank you, Mr. Chairman.
        I would like to make this closing observation, and that is
    there has been a suggestion that all of these efforts to inject
    due process in the rule of law makes us less safe. Well, we
    have 26 CIA operatives under indictment and prosecution in
    Milan, Italy, for kidnapping and allegedly taking an Egyptian
    cleric to Egypt for torture. That is not making us safer.
        With Mr. el-Masri's case, I believe there are arrest
    warrants out for 13 CIA operatives for the kidnapping and abuse
    of Mr. el-Masri. We now have suggestions in the recent book by
    Jane Mayer that FBI agents who are experts in interrogation
    refused to participate in detainee debriefing by the CIA
    because they did not want to be complicit in war crimes. Those
    kinds of things don't make us safer. It is wrong to assume that
    every time we move to a rule of law we become safer.
        Mr. Franks. Mr. Chairman, could I just respond--60 seconds?
    I----
        Mr. Nadler. Without objection.
        Mr. Franks [continuing]. Absolutely believe that the
    gentleman makes a good point. I would suggest that the
    indictments and that these people are being looked for is some
    evidence that the system is working already.
        Mr. Nadler. But those--excuse me, would the gentleman
    yield?
        Mr. Franks. Sure.
        Mr. Nadler. Are those indictments in the United States or
    in other countries?
        Mr. Fein. They are indictments of the United States
    officials, and moreover we have refused to extradite and
    cooperate----
        Mr. Nadler. So, they are indictments in other countries.
        Mr. Fein. Yes.
        Mr. Nadler. Thank you.
        I would suggest that indictments in other countries don't
    necessarily show--Mr. Franks, I would suggest that indictments
    of American government officials by other countries don't
    necessarily show that the system is working well.
        Mr. Franks. To suggest that we have war crimes on our hands
    here, Mr. Chairman, I just am convinced that, you know, when we
    see wrongdoing in our system, there is an existing commitment
    to pursue that. We are going to execute one of our own soldiers
    before long, Mr. Chairman. This country is committed to
    justice. And I am just convinced that we are going in a
    direction here that is ultimately not to the benefit of the
    American people and the Constitution.
        Mr. Conyers. Mr. Chairman, might I----
        Mr. Nadler. Without objection, the Chairman is----
        Mr. Conyers. What is the direction that you see me going in
    that is detrimental to the country?
        Mr. Franks. Mr. Chairman, I think in general--I have said
    this before. I think in general this Committee has--and I
    understand the political nature of the Committee, but I think
    we have been so focused on things like habeas corpus for
    terrorists, which will ultimately make our efforts against them
    unworkable, things like that, that we are moving so much in a
    direction here to make it easier for terrorists to survive the
    system that we are overlooking the fact that jihadist terrorism
    and the coincidence of nuclear proliferation represents a
    profound threat to this country. And perhaps we may have to
    revisit this in times in the future that we don't----
        Mr. Conyers. And do you have the same view of the direction
    of the Supreme Court?
        Mr. Franks. I apologize, Mr. Chairman.
        Mr. Conyers. I said do you have the same view about the
    direction of the Supreme Court as well as this Committee?
        Mr. Franks. Well, the only Supreme Court ruling that I
    talked about today was the Boumediene decision, and I think
    that was wrongly decided. And I think ultimately the Congress
    will have to address it.
        Mr. Conyers. I am not talking about that one case. I am
    talking about the direction of the Supreme Court in your
    opinion.
        Mr. Franks. You are talking about the general trend----
        Mr. Conyers. Yes.
        Mr. Franks [continuing]. Of the United States Supreme
    Court?
        Mr. Conyers. That is right.
        Mr. Franks. Well, I guess right now it is pretty much, you
    know, been politicized to the extent that almost everyone in
    this Congress knows that there are four liberals on the court
    and four conservatives and one guy in the middle. And it
    shouldn't be such that every time the Supreme Court sits down
    that we have to wonder what one guy is going to do to the
    Constitution.
        Mr. Conyers. So then, I presume that your answer to my
    question is yes.
        Mr. Franks. I am not trying to be dense here, Mr. Chairman.
    Your question is: Do I think the Supreme Court is doing what?
        Mr. Conyers. Well, that is what I was trying to find out
    from you, sir. You were the one who said you thought the
    Committee was moving in the wrong direction.
        Mr. Franks. Right.
        Mr. Conyers. And then I was asking you do you think the
    Supreme Court is moving in the wrong direction as well, and I
    presume that your answer is yes.
        Mr. Franks. I think they went in the wrong direction with
    the Boumediene decision, yes, sir, I do.
        Mr. Conyers. Well, I give up.
        Mr. Franks. You know----
        Mr. Conyers. But we have plenty of opportunity--look, you
    and I work together 4 to 5 days a week whenever we are in
    session, and so we have a great opportunity to continue this
    discussion without taking up the time----
        Mr. Franks. Thank you, Mr. Chairman, I would be glad. I
    really do want to--I do think Mr. Alito and Mr. Roberts were
    great additions to the court.
        Mr. Nadler. Well, thank you for that opinion.
        Inspired by this colloquy, without objection, I am going to
    ask the witnesses one final question for each of you. And this
    will actually get back to discussing this bill sort of.
    [Laughter.]
        If you have an Administration, and I don't mean to cast any
    aspersion on this or any other Administration. I am asking a
    theoretical question now. If you have an Administration that is
    abusing civil liberties, that does wrong things to people, and
    let us assume that an agent of that Administration improperly
    arrests someone, improperly holds that person under
    incommunicado, improperly tortures that person, improperly does
    all kinds of violations of rights of that person, one presumes
    that that Administration will not prosecute itself, will not
    prosecute its own agents for those terrible acts.
        The normal remedy in American law--the only remedy that I
    know of--is for that person, once recovered from the torture,
    to sue for various kinds of damages and in court elucidate the
    facts and so forth and get some justice and perhaps bring out
    to light what happened so that that Administration would not do
    it again or the next one wouldn't.
        If, however, that lawsuit can be dismissed right at the
    pleading stage by the assertion of state secrets, and if the
    court doesn't look behind the assertion to the validity of that
    assertion and simply takes it at face value, well, the
    government says state secrets would be revealed and it would
    harm the national security if this case went forward, therefore
    case dismissed, which seems to be the current state of the
    law--if that continues and if we don't change that, what remedy
    is there ever to enforce any of our constitutional rights? Or
    am I being too alarmist?
        Why don't we go left to right here.
        Ms. Fuchs. I mean, indeed that is a fact, sort of the model
    in the FOIA, because the government certainly isn't doing
    anything to make sure that the public is getting information it
    wants. And so we are very free to sue, and we go to court. And
    Congress has said in cases where its exemption--where the
    information is security classified, you can still sue, and you
    can still challenge the secrecy. And so that is exactly what is
    needed here.
        I wonder if I might take one moment to respond to Mr.
    Franks' statements earlier--because I have a burning desire to
    do so--about the importance of protecting our country. I
    suspect that everyone on this panel cares a great deal about
    protecting country. I mean, we are all American citizens. You
    know, I have children; I am a mother. I want my kids safe. And
    I live in Washington, D.C., which some people think is, you
    know, ridiculous.
        I don't think this bill is about, you know, whether or not
    we are protecting our country. The reality is that our
    government spent $8 billion in the last year protecting
    secrets, and I would like that $8 billion of my tax money and
    everyone else's tax money to be spent protecting real secrets,
    not protecting things that are just embarrassing to the
    government and not using that to interfere with people's
    ability to seek compensation----
        Mr. Nadler. Thank you.
        Mr. Shapiro?
        Mr. Shapiro. Four quick sentences: Number one, what you
    describe as hypotheticals are, of course, sadly not
    hypotheticals for the actual experiences of not only Mr. el-
    Masri but Mr. Arar and others. Number two, I think when the
    government invokes the state secrets privilege to prevent
    inquiry into serious allegations of torture and kidnapping,
    courts need to look at the invocation of the state secrets
    privilege skeptically and make sure that it is really being
    raised to protect national security and not to shield
    government officials from legal and political accountability.
        Number three, I will say that the point you raise about not
    dismissing cases at the outset is an extraordinarily important
    one. I tried to address it, albeit briefly, in my opening
    remarks. I have no doubt that had we been given the opportunity
    in the el-Masri case, we could have proven that he had been the
    victim of serious and government misconduct and abuse based on
    non-privileged information in the public record. We were never
    given that opportunity.
        And fourth, I think if the courts are not going to respond,
    I would hope at the very least that this Committee and other
    Committees in Congress could perform a fact-finding role in
    some of these cases----
        Mr. Nadler. All right, but my question, and I hope you will
    answer the question and the other two witnesses also. Let us
    assume we change nothing with regard to the state secrets and
    it continues the way it is. What mechanism exists if any under
    which we can prevent any Administration from violating all
    sorts of constitutional rights period?
        Mr. Shapiro. I think we have no legal mechanism, Mr.
    Chairman.
        Mr. Nadler. Thank you.
        Mr. Vatis?
        Mr. Vatis. Mr. Chairman, I think even under this bill, if
    it were passed as written today, there would still be cases
    where the government could violate the law, could violate
    criminal laws, and yet the state secrets privilege would result
    in the case ultimately being dismissed if there were no other
    way to make the case with unclassified, non-secret evidence.
    But there is another mechanism. We should not rely just on the
    courts to check illegal conduct by the executive branch.
        There is, after all, this body, which has extensive
    oversight powers and also ultimately has the power of
    impeachment, which at least in the last 8 years has not been
    utilized. And I will leave it purely in the realm of the
    hypothetical that you pose, but if an Administration is acting
    lawlessly and repeatedly so in violation of criminal laws, that
    is certainly a high crime and misdemeanor worthy of
    impeachment. And so the political branch that this body
    represents, I think, has a role that it can and should play in
    such instances.
        Mr. Nadler. Thank you.
        Mr. Fein?
        Mr. Fein. I don't need to elaborate on my view of
    impeachment, but there is an alternate idea that maybe can be
    explored. I understand the independent counsel law fell into--
    because of disrepute, but it would be constitutional under the
    Supreme Court's decision to establish the ability to create a
    special counsel, if you will, appointed by judges in cases
    where the government had the clear conflict of interest you
    identified that would prevent an evenhanded assessment of
    whether or not crime had been committed to enable something
    like a second edition of Archibald Cox to investigate something
    like Watergate.
        And that is what I think needs to be seriously explored,
    because you are not going to resort to impeachment, you know,
    every time the government violates a law and it is not
    prosecuted by the president of the United States. So, it is
    something that would be an ad hoc kind of arrangement when the
    conflict of interest is most acute, when it is the higher-
    level-up officials who are implicated.
        And one example would be: I know the investigation now
    underway with the CIA officers who destroyed that video
    interrogation tape would be guilty of obstruction of justice or
    otherwise. There the reliance upon the Department of Justice to
    prosecute is--the confidence level is very low. An outside
    counsel would probably be a better choice.
        Mr. Nadler. Thank you.
        I will now recognize the distinguished Ranking Member for
    comment.
        Mr. Franks. Mr. Chairman, just to clarify. You know, my
    comments related to what I perceive as the wrong focus of this
    Committee does not in any way call into question the patriotism
    or the commitment to anyone on the panel. I would just suggest
    that while we have spent $8 billion--and I will accept your
    number--to keep our state secrets, I would remind us all that
    two airplanes hitting two buildings cost us $2 trillion. And if
    those same people gain the right state secrets, they may turn
    jihad into nuclear jihad, and that will be of unfathomable
    danger to our children.
        Thank you, Mr. Chairman.
        Mr. Nadler. Thank you.
        I wish to thank our witnesses and the remaining Members.
        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 as promptly as you can so that the 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.
        With that, again I thank the witnesses. I thank the
    Members.
        And this hearing is adjourned.
        [Whereupon, at 2:04 p.m., the Subcommittee was adjourned.]