[Senate Hearing 110-923]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-923
 
  EXAMINING THE STATE SECRETS PRIVILEGE: PROTECTING NATIONAL SECURITY 
                    WHILE PRESERVING ACCOUNTABILITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 13, 2008

                               __________

                          Serial No. J-110-74

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    23
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     4
Leahy, Hon. Pratrick, a U.S. Senator from the State of Vermont...     1
    prepared statement...........................................   174
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Chesney, Robert M., Associate Professor, Wake Forest University 
  School of Law, Winston-Salem, North Carolina...................    13
Fisher, Louis, Specialist in Constitutional Law, Law Library of 
  the Library of Congress, Washington, D.C.......................    11
Nichols, Carl J., Deputy Assistant Attorney General, Department 
  of Justice, Civil Division, Washington, D.C....................     7
Vatis, Michael, Partner, Steptoe & Johnson LLP, New York, New 
  York...........................................................    16
Wald, Hon. Patricia M., former Chief Judge, Court of Appeals for 
  the D.C. Circuit, Washington, D.C..............................     9

                         QUESTIONS AND ANSWERS

Responses of Robert M. Chesney to questions submitted by Senators 
  Kennedy........................................................    31
Responses of Louis Fisher to questions submitted by Senators 
  Kennedy, Cornyn and Feingold...................................    38
Responses of Michael Vatis to questions submitted by Senators 
  Kennedy and Cornyn.............................................    46
Responses of Patricia M. Wald to questions submitted by Senators 
  Kennedy, Feingold and Cornyn...................................    50
Questions submitted by Senators Kennedy, Feingold and Cornyn to 
  Carl J. Nichols (Note: Responses to questions were not received 
  as of the time of printing, November 18, 2009).................    45

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Caroline Fredrickson, Director, 
  Washington Legislative Office, Washington, D.C., statement.....    53
Barlow, Richard M., former Intelligence Office and Plaintiff in 
  Senate Reference Court Proceeding, New York, New York, 
  statement and attachment.......................................    64
Brauner, Susan Parker, Knoxville, Tennessee, statement...........    84
Chesney, Robert M., Associate professor of Law, Wake Forest 
  University School of Law, Winston-Salem, North Carolina, 
  statement......................................................    85
    Letter to Senator Kennedy, February 15, 2008.................   101
    ``The State Secrets Privilege and the Seperation of Powers'', 
      Amanda Frost, essay........................................   104
Constitution Project, Liberty and Security Committee & Coalition 
  to Defend Checks and Balances, Washington, D.C., statement.....   138
Fisher, Louis, Specialist in Constitutional Law, Law Library of 
  the Library of Congress, Washington, D.C., statement...........   159
Herring, Patricia Reynolds, statement............................   176
Nichols, Carl J., Deputy Assistant Attorney General, Department 
  of Justice, Civil Division, Washington, D.C., statement........   177
Scholars of Constitutional Law and Students of Public Policy, 
  letter.........................................................   186
Vatis, Michael, Partner, Steptoe & Johnson LLP, New York, New 
  York, statement................................................   191
Wald, Hon. Patricia M., former Chief Judge, Court of Appeals for 
  the D.C. Circuit, Washington, D.C., statement..................   197
Weaver, William G., J.D., PH.D., Director, Center for Law and 
  Border Studies, Deputy Director, Inst. for Policy and Econ. 
  Dev., University of Texas at El Paso, El Paso, letter..........   203
Webster, William H., Director, Central Intelligence, Washington, 
  D.C., statement................................................   214
Wells, H. Thomas, Jr., President-Elect, American Bar 
  Asssociation, Washington, D.C., statement and attachment.......   216


  EXAMINING THE STATE SECRETS PRIVILEGE: PROTECTING NATIONAL SECURITY 
                    WHILE PRESERVING ACCOUNTABILITY

                              ----------                              


                      WEDNESDAY, FEBRUARY 13, 2008

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:13 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Kennedy, Feingold, Whitehouse, Specter, 
and Hatch.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
   THE STATE OF VERMONT, CHAIRMAN, COMMITTEE ON THE JUDICIARY

    Chairman Leahy. I apologize to everybody for being late. I 
was at the dentist, as I was telling Mr. Fisher and Justice 
Wald and some others. Then the road I'd normally take, a tree 
had gone down, and so on and so forth.
    But somehow--in my own State, I live on a dirt road, up a 
long mountain road. We can have two feet of snow overnight and 
everything still goes on time. I won't even get into the snow 
stories that Vermonters like to tell when there's any weather 
down here.
    But we have a very important issue, the state secrets 
privilege. As a common law doctrine, as all the panelists know, 
the government can claim in court to prevent evidence that 
could harm national security, prevent it from being publicly 
revealed.
    To start off, I want to thank both Senators Kennedy and 
Senator Specter, both former chairmen of this Committee who did 
a great deal in helping to plan this hearing. I commend them 
for their work on the legislation to create uniform standards 
to guide courts in evaluating state secrets privilege claims. 
Both Senators have done, I believe, enormous service to the 
courts and to the country.
    We're here because, over the past 7 years, the 
administration has aggressively sought to expand executive 
power in alarming ways. We have always gone on the sense of 
public accountability, but that's been repeatedly frustrated 
because so many of the administration's actions have been 
cloaked in secrecy. Time and again, they've fought tooth and 
nail to stop not only Congress, but the American people at 
large from having information about policies and practices.
    After all, it wasn't from anything we found out in the 
Congress from the administration, but it's through the press 
that we learned about the secret surveillance of Americans by 
their own government in the years after 9/11, or the secret 
renditions abroad that violated U.S. law, secret prisons 
abroad, secret decisions to fire some of the Nation's top 
prosecutors and the secret destruction of interrogation tapes 
that may have evidence of torture.
    That was all because of an overly expansive, and I believe 
self-justifying view, of executive power. But now they seek 
secrecy protections. They've taken a legal doctrine that was 
intended to protect sensitive national security information, 
but they want to expand it to evade accountability for 
misdeeds. State secrets privileges have been used in recent 
years to stymie litigation at its very inception in cases 
alleging egregious government misconduct, extraordinary 
rendition, warrantless eavesdropping.
    Reflecting on this, the New York Times observed, ``To avoid 
accountability, the Bush administration has repeatedly sought 
early dismissal of lawsuits that might expose government 
misconduct, brandishing the flimsy claim that going forward 
would put national security secrets at risk.''
    Of course, the clearest example of that was short-
circuiting litigation in the 2006 case of Khalid al-Masri. Mr. 
al-Masri is a German citizen of Lebanese descent. He claimed he 
was kidnapped on New Year's Eve in 2003 in Macedonia, 
transported against his will to Afghanistan, detained, and 
tortured as part of the Bush administration extraordinary 
rendition program. He sued the government over this detention 
and harsh treatment.
    A District Court judge in Virginia dismissed the entire 
lawsuit on the basis of an ex parte declaration from the 
Director of the CIA, and despite the fact that the government 
admitted publicly that the rendition program exists. An ex 
parte declaration. Not even a hearing in chambers with both 
parties to argue this.
    So he had no other remedy. The justice system is off limits 
to him. No judge ever reviewed, either in camera or in the 
courtroom, what the evidence was. The state secrets privilege 
serves important goals when it's properly invoked, but like all 
things, it's going to disappear if it's used in a way just to 
cover one's mistakes. You can't have a case where the 
courthouse doors are closed forever, regardless of the severity 
of injury. Courts should be able to make a choice.
    Now, Senator Specter and Senator Kennedy and I introduced a 
bill to help guide the courts. We don't restrict the 
government's ability to assert the privilege in appropriate 
cases, but we at least say what standards should be followed, 
allowing judges to look at the actual evidence that government 
submits so that neutral judges, not self-interested executive 
branch officials, would render the ultimate decisions.
    When I think about the administration's expansive use of 
the state secrets privilege, I'm reminded of another secretive 
administration involved in the Watergate scandal and the 
Pentagon papers case. That was a case about the government's 
attempt to hide an historical study of this country's 
involvement in Vietnam. The Nixon administration contended that 
knowledge of the study posed grave and immediate danger to the 
security of the United States.
    Fortunately, the U.S. Supreme Court decided otherwise when 
they decided the Pentagon papers case. In his concurring 
opinion, Justice Black noted, ``The guarding of military 
diplomatic secrets at the expense of an informed representative 
government provides no real security for our Republic.'' So, 
it's critical that Federal judges not advocate that role in our 
system of checks and balances.
    I'll put my whole statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    We are living in an era of extraordinary expansion of 
executive authority. I believe, at some point in the future, 
people will look back at this decade and comment about the need 
for expanded executive authority, but also raise questions 
about the response of checks and balances.
    Regrettably, the congressional oversight factor has been 
totally ineffective in restraining the expansion of executive 
authority. Now, I do not doubt or deny the need for the 
expansion of executive authority, but I think there has to be a 
check and a balance.
    The Terrorist Surveillance Program was put into effect with 
the President explicitly claiming that his Article 2 powers 
superseded legislation. Similarly, the President disregarded 
the National Security Act of 1947 in failing to inform the 
Intelligence Committees of both Houses, as required by law. 
We've had the signing statements, and the only restraint has 
been the courts. When we were considering retroactive immunity 
for the telephone companies, the issue arose as to a state 
secret defense.
    Senator Kennedy, Senator Leahy, and I put our heads 
together and decided that we really ought to have some 
congressional intervention here. I thank Senator Kennedy and 
his staff for the leadership on the issue, and the Chairman for 
setting up these hearings. This Committee is loaded with ex-
chairmen. We have four ex-chairmen on this Committee. In fact, 
Senator Leahy has--
    Chairman Leahy. You have three ex-chairman. One is still 
Chairman. Good Lord, don't push me out that fast!
    [Laughter].
    Senator Specter. Well, I'd like to, but I can't.
    [Laughter].
    Nothing personal. In fact, the personal relationship is 
extraordinarily good.
    Chairman Leahy. Thank you.
    Senator Specter. I would disagree with my learned 
colleague, Senator Leahy, on the grounds that he has two 
capacities: notwithstanding the fact that he's a chairman, he's 
also an ex-chairman.
    Chairman Leahy. You're right.
    Senator Specter. So he serves in a dual capacity. There are 
four ex-chairmen on this Committee.
    Chairman Leahy. I stand corrected. You're absolutely right.
    Senator Specter. And we are going to move ahead. I believe 
that the pending legislation is very salutary because it brings 
the court into the picture to make a determination on whether 
there is a state secret. It's up to the Congress to define what 
a state secret is. We have done that.
    As I looked back over the case of United States v. 
Reynolds, a Supreme Court decision in 1953 where the government 
claimed that there was a state secret involved in a lawsuit 
brought by three widows whose husbands died in the crash of a 
B-29 bomber, and later it developed that there was no state 
secret and the injured parties sought redress at a later time, 
and the Third Circuit still upheld the claim of state secrets. 
It's a little mystifying to me as to how that happened.
    So I think it's really important, where we deal with this 
issue, that there be a legislative determination of the 
standard and procedures to deal with it, and ways to get some 
of the information examined in camera, and to have a substitute 
and perhaps redacted information.
    Pending is the Foreign Intelligence Surveillance Act. The 
effort to substitute the government for the telephone companies 
was unsuccessful in the Senate yesterday. We'll see what 
happens in conference. It seems to me that that was a good 
example of a way to maintain national security, because the 
telephone companies would continue to provide whatever 
information they are and the courts would be kept open.
    Senator Leahy is quoted in this morning's paper as saying 
that ``sometimes Senators get cold feet to contest what the 
government has to say, and we need some foot warmers around 
here.'' That's our job. That's our job. If we can't do it, then 
we've been totally ineffective. Senator Leahy and I sent a 
letter to the Attorney General and want to know about the CIA-
destroyed tapes. We get back some comment, ``Well, it's 
political.'' I don't quite understand that, but it's political.
    Then the Federal court has a case involving the CIA tapes 
and issues an order to provide the material. Well, the court's 
not political. The Attorney General doesn't have to obey the 
court, but he has taken an appeal and eventually it gets to 
Rasoul, and eventually the courts are involved. I think we have 
to be very careful when we exclude the judicial process in the 
determination of these issues, and this legislation goes a 
significant step in that direction.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Specter. Thank you former Mr. Chairman.
    Chairman Leahy. Actually, this is the third time I've been 
Chairman, once for 2 weeks.
    Senator Kennedy.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Will you guys get it straight so we can 
get on with the hearing?
    Thank you, Senator Leahy. I want to thank you very 
sincerely for having this hearing today. It's long past time 
for the Committee to address the state secrets privilege, and I 
look forward to the testimony of the distinguished panel of 
witnesses.
    Chairman Leahy, Senator Specter, and I have recently 
introduced a bill to regulate judicial review of the privilege, 
and the bill is called the State Secrets Protection Act. I 
thank Senator Leahy and Senator Specter for their commitment to 
this effort. By working together, we can make real bipartisan 
progress on this fundamental issue.
    The goal of our bill is to protect legitimate state secrets 
from disclosure, prevent misuse of the privilege, and allow 
litigants to have their day in court. Federal judges already 
handle sensitive information under the Classified Information 
Procedures Act, and the the Freedom of Information Act, and the 
Foreign Intelligence Surveillance Act, and there is no reason 
why they can't do so in civil cases as well.
    Our bill has already been endorsed by a number of legal 
groups and scholars. As the New York Times editorial stated, 
``It will give victims fair access to the courts and make it 
harder for the governments to hide illegal or embarrassing 
conduct behind unsupported claims. Of course, legitimate 
secrets need to be protected, and the legislation contains 
safeguards to ensure that.'' Similar editorials have been 
published by the San Francisco Chronicle, the Salt Lake 
Tribune, and numerous legal blogs. This hearing will provide 
valuable insight on the bill as we move towards mark-up.
    With the Chairman's permission, there are a number of items 
I'd like to have included in the record to help clarify the 
issues we'll be discussing today. All of the documents show why 
there is a need for Congress to take action on the state 
secrets privilege. First, a letter to Congress by 23 eminent 
scholars last October. They wrote that ``legislation action on 
the privilege is essential to restore and strengthen the basic 
rights and liberties provided by our constitutional system of 
government.''
    Second is a bipartisan report released by the Constitution 
Project last May: ``Reforming the State Secrets Privilege.'' 
The report explains the problems with the current law on the 
privilege and concludes, ``There is a need for new rules 
designed to protect the system of checks and balances, 
individual rights, national security, fairness in the 
courtroom, and the adversary process.''
    Third is a report last August by the American Bar 
Association along the same lines, ``urging Congress to enact 
legislation governing Federal civil cases implicating the state 
secrets privilege.''
    Fourth a statement by the American Bar Association's 
president-elect, prepared 2 weeks ago for a hearing in the 
House, endorsing our bill.
    Fifth is a statement submitted for this hearing by William 
Webster, who was a Federal District Judge for 3 years, 
Appellate Judge for 5 years, Director of the FBI for 9 years, 
and Director of the CIA for 4 years. If anyone knows the state 
secrets privilege from both the executive and judicial 
perspective, it's William Webster.
    In his letter he says, ``As a former Director of the FBI 
and Director of the CIA, I fully understand and support our 
government's need to protect sensitive national security 
information. However, as a former Federal judge, I can also 
confirm that judges can, and should, be trusted with sensitive 
information. They are fully competent to perform an independent 
review of executive branch assertions of the state secrets 
privilege.''
    He concludes by saying, ``Granting executive branch 
officials unchecked discretion to determine whether evidence 
should be the subject of the state secrets privilege provides 
too great a temptation for abuse. It makes much more sense to 
require the executive branch to submit such evidence to the 
courts for an independent assessment on whether the privilege 
should apply. Courts, not executive branch officials, should be 
entrusted to make these determinations and thereby preserve our 
constitutional system of checks and balances.''
    The sixth item is an analysis sent to me on February 8 by 
William Weaver and Danielle Escontrias. Professor Weaver is a 
leading expert on the state secrets privilege. His analysis 
responds to an empirical study published by one of our 
witnesses, Robert Chesney. Professor Weaver raises some 
concerns about Professor Chesney's methodology and finds that 
``exploitation of the privilege over the last several decades 
represents a serious threat to congressional oversight and the 
ends of justice.''
    Finally, I'd like to put in the record two personal letters 
I received. Many in the room are aware that the leading case on 
the state secrets privilege is U.S. v. Reynolds, which has been 
heavily criticized.
    I'll include a very personal, lovely letter from Patricia 
Reynolds Herring in the record. Senator Specter has referred to 
it. I'll just read the last paragraph: ``I'm very grateful and 
hopeful to see S. 2533, the State Secret Protection Act. I'm 
confident this bill can be a positive step in creating a 
safeguard to balance U.S. v. Reynolds. This would give me great 
comfort.''
    Also, a very moving letter from Susan Parker Brauner, whose 
father was killed in the Reynolds airplane crash. Ms. Brauner's 
letter concludes, ``Correcting the flaws currently in the state 
secrets privilege will not give back the life that a young 
couple'', Ms. Brauner's parents, ``had hopefully planned 
together all those years ago. It will, however, most certainly 
provide a measure of justice for all the families whose loved 
ones were killed on the flight.''
    Each of these documents, Mr. Chairman, helps make clear why 
this hearing is so important. It's not just about abstract 
principles of separation of powers, open government, and 
constitutional rights. It's also about whether real people can 
achieve justice in our courts.
    I look forward to the discussion, and I thank you again.
    Chairman Leahy. Well, thank you very much, Senator.
    Our first witness would be Carl Nichols, the Deputy 
Assistant Attorney General in the Department of Justice's Civil 
Division's Federal Programs Branch. I understand, Mr. Nichols, 
you've been there since March of 2005. Is that correct?
    Mr. Nichols. That is correct.
    Chairman Leahy. He oversees and coordinates the branch's 
trial litigation on behalf of the Federal Government regarding 
constitutional challenges to Federal statutes.
    Prior to joining the Department he was a partner in the 
well-known and respected Washington, DC office of Boies, 
Schiller & Flexner. He attended Dartmouth College in my 
neighboring State, eastern State--east as compared to Vermont--
and received his law degree from the University of Chicago Law 
School.
    Mr. Nichols, thank you for taking the time. We're delighted 
to have you here. Please go ahead.

    STATEMENT OF CARL J. NICHOLS, DEPUTY ASSISTANT ATTORNEY 
     GENERAL, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, 
                         WASHINGTON, DC

    Mr. Nichols. Thank you very much. Chairman Leahy, Ranking 
Member Specter, and members of the Committee, thank you for the 
opportunity to testify concerning the important subject of 
today's hearing, the state secrets privilege.
    Since March 2005, I have served in the Department of 
Justice as the Deputy Assistant Attorney General for the Civil 
Division's Federal Programs Branch. In that capacity I've been 
involved in the decision-making process regarding whether, and 
when, the executive branch will assert the state secrets 
privilege in civil litigation.
    As the Committee is aware, the state secrets privilege is a 
well-established legal doctrine that plays a vital role in 
protecting the national security by ensuring that civil 
litigation does not result in the disclosure of information 
that, if made public, would cause serious harm to the United 
States. This privilege plays an important role in times of war 
and times of peace, has been asserted by the executive branch, 
and has been recognized by the courts, since the 19th century, 
and is subject to review by the judiciary.
    While the judiciary plays an important role in assessing 
any assertion of the state secrets privilege, the privilege 
does have a constitutional pedigree. The Supreme Court made 
that clear in United States v. Nixon when it stated that ``a 
claim of privilege on the ground that information constitutes 
military or diplomatic secrets''--that is,--the state secrets 
privilege--necessarily involves areas of Article 2 duties 
assigned to the President. It is important to emphasize--
however--I think it is very important to emphasize that 
although the state secrets privilege emanates from the 
President's constitutional authority, the privilege is neither 
limitless nor unchecked. It is also important to emphasize that 
the executive branch asserts the privilege selectively, and 
when doing so details the specific harms to national security 
that would occur if sensitive information is publicly revealed, 
and it is important to emphasize that not every assertion of 
the state secrets privilege results in the dismissal of a 
pending case.
    Any assertion of the state secrets privilege involves a 
rigorous procedural and judicial process to ensure that the 
privilege is not, in the words of the Supreme Court, lightly 
invoked. To begin, several formal requirements apply to the 
privilege assertion. The privilege can be invoked only by the 
United States, only through a formal claim of privilege, only 
by the head of the department which has control of the matter, 
and only after that official has given actual personal 
consideration to the question.
    Meeting these requirements typically requires several 
layers of substantive departmental review and coordination, an 
important part of which is the agency head's--often Cabinet 
official's--personal review of various materials, including the 
declaration or declarations that he or she must sign, under 
penalty of perjury, in order to assert the privilege.
    Once it has been decided that it is appropriate to assert 
the privilege in a particular case, the judicial branch plays a 
vital role in assessing whether the privilege will be upheld. 
Specifically, the court must decide whether the invocation of 
the privilege is predicated upon a reasonable danger that 
disclosure of the information will harm national security.
    In making that determination, a court often reviews not 
just publicly available materials, but also classified 
declarations and other information providing further detail for 
the court's review. A common misperception is that classified 
information is never, or only rarely, shared with the courts 
and that the courts are therefore asked to uphold the privilege 
based on trust and non-specific claims of national security. 
That is simply inconsistent with our practice. In every case of 
which I am aware, we have made available to the courts both 
unclassified and classified declarations that justify, often in 
considerable detail, the bases for the privilege assertions.
    Once a court has concluded that the information is 
privileged, the information is removed from the case and the 
court plays a second and equally important role. It must decide 
whether, and if so how, the case can proceed without that 
information. Sometimes a case must be dismissed because it is 
obvious that the case could not proceed without information 
that would harm the United States.
    However, in other cases, and contrary to a popular 
misconception, the privileged information is peripheral and the 
case can proceed without it. Thus, rather than playing a 
passive role in accepting at face value blanket executive 
assertions of the state secrets privilege, courts play a vital 
role in determining whether the privilege will be upheld and 
adjudicating how and when cases can proceed if sensitive 
national security information is excluded. These dual roles 
underline the crucial role of the judiciary in checking 
assertions of the state secrets privilege and assuring against 
the disclosure of national security that would cause serious 
harm to the United States.
    Mr. Chairman, I would like to conclude with the following 
point. While there may be disagreement as to when this 
privilege ought to be asserted, rigorous executive branch 
safeguards and judicial review ensure that it is invoked and 
upheld only in circumstances necessary to protect the national 
security of the United States. On this point there should be no 
disagreement: such a privilege is not only desirable, but 
necessary to avert serious harm to national security.
    Thank you for the opportunity to appear before the 
Committee. I would be pleased to answer any questions you may 
have.
    [The prepared statement of Mr. Nichols appears as a 
submission for the record.]
    Chairman Leahy. Thank you. We will go back to questions. 
Although I could not help but think, listening to this rigorous 
review, if you have an ex parte, in camera review, I must 
admit, during my years as a prosecutor, I would love to have 
been able to have that advantage, to be able to argue ex parte. 
But we'll get back to that. That's just so you know some of the 
areas where I'm going to ask.
    Judge Patricia Wald was a Circuit Judge on the U.S. Court 
of Appeals for the D.C. Circuit from 1979 to 1999, and 5 years 
as Chief Judge. She's the author of over 800 judicial opinions. 
More recently, she served as a U.S. Judge on the International 
Criminal Tribunal for the former Yugoslavia in Hague, and she 
was given well-deserved international recognition for her 
significant decisions in the field of international 
humanitarian law.
    She's received numerous honors and awards. She's served on 
the boards of several commissions, including the President's 
Commission on U.S. Intelligence Capabilities Regarding Weapons 
of Mass Destruction from 1999 to 2001. She went to Connecticut 
College, and got her law degree from Yale Law School.
    Judge Wald, you're no stranger to us here. Please go ahead.

 STATEMENT OF HON. PATRICIA M. WALD, FORMER CHIEF JUDGE, U.S. 
     COURT OF APPEALS FOR THE D.C. CIRCUIT, WASHINGTON, DC

    Judge Wald. Thank you, Chairman Leahy, Senator Specter, 
Senator Kennedy, Senator Feingold, Senator Hatch.
    The state secrets privilege is a common law privilege which 
has been entirely administered by the judges up to this point. 
A review of these cases I think will indicate, as the American 
Bar Association report and the American Constitution Project 
statement illustrated, the decisions have varied in the scope 
and in the procedures that judges have used in administering 
the privilege. Some of them have been very cautious, but in 
others it seems almost as though it were enough that if the 
government should raise the privilege, that it would be 
recognized.
    As a result, there has not been uniformity in the case law 
surrounding what the judges should do in administering the 
privilege. There's no serious question that I know of that 
Congress does have the right, pursuant to the Constitution, 
Article 3, Section 2, to regulate rules of evidence for the 
Federal courts, consistent with the Constitution and due 
process, obviously. That is what this bill sets out to do, as I 
read it.
    Now, the Supreme Court has said in Reynolds that it is the 
judge and not the executive branch that is the final decision-
maker in the application of the privilege. I think that this 
bill has admirably incorporated that view when it says that the 
judge shall decide whether the government's claim is valid.
    I see this bill essentially as an enabling bill because it 
enables the judges to use all of the techniques which have 
developed since Reynolds, and sometimes in the context of other 
types of national secret cases, such as Exemption 1 under FOIA 
where you do have these kinds of classified information coming 
up, and in CIPA, which regulates the classified information in 
criminal cases.
    Out of those cases have come a variety of techniques, most 
of which, or many of which, are elucidated in the bill. They 
include not only the regular techniques of sealing, protective 
orders, separating segregated from non-segregated information, 
but also some of the more innovative ones, such as the Vaughn 
Index, which is specifically set out in this bill in which a 
government affidavit does have to go, almost line by line, 
through the material sought to be excluded in trying to justify 
witholding. Particularly useful, I think, is the encouragement 
of masters.
    I presided in one case in the Court of Appeals where the 
government had initially said, no, we can't disclose, I think 
it was hundreds of thousands of pages dealing with the hostage 
crisis at the end of the Carter administration and the aborted 
attempt to get the hostages. Judge Oberdorfer appointed a 
screened--an intelligence-screened master, who then sampled the 
documents and gave to the judge sample categories of the 
information and the arguments, pro and con witholding; he 
didn't even make recommendations.
    As a result of that, something like 60,000 of those pages 
were ultimately agreed to be released, including one that I 
always like to mention which had originally been classified, 
and that was the fact that milk carried in cartons in the 
helicopters curdled. Many of these techniques are set out here.
    There are two things that the bill does that I think are 
especially important, in that it requires the court to proceed 
as far as it reasonably can without the secret evidence. In 
other words, it permits the judge to go forward, allow 
discovery of the non-secret evidence, and see if, as in some 
cases, the question can then be decided on a legal basis. So 
even though underneath there may be some state secret claim, 
you don't have to get to those because there is a legal basis, 
rather than dismissing it at the front and saying, oh, boy, 
this case involves state secrets, over and out.
    The last thing I want to point out is that there are two 
areas, I think, that the Committee will want to look at 
especially in terms of the courts. One, is what will be the 
standard of review that the court will look at? In other words, 
one could have a spectrum going all the way from--I think one 
witness in the House talked about utmost deference to the 
affidavits and to the case that the government puts on. I would 
not endorse, myself, that kind of standard.
    I believe your bill talks about the judge deciding, if the 
claim is valid in a de novo review. I believe Judge Webster's 
letter endorses that as well. An independent evaluation and a 
de novo review. That does not, of course, mean that the judge 
should not, and will not give substantial weight to the case 
laid out in the affidavits by the government, since clearly 
they will be experts in many of the areas of the intelligence 
and should be given the deference that is due to an expert 
witness. But I think it's important that the judge make the 
decision de novo, giving substantial weight to the government. 
That, indeed, is the standard which we now have in Exemption 1.
    This is the last point. I would say there's one interesting 
question that has arisen, which is, should the judge have to 
look at the secret evidence before invoking the privilege? Now, 
Reynolds suggested that in not all cases should he have to, it 
would depend upon whether there were other alternatives 
available. In that case, the alternative was, they could 
interview some of the witnesses.
    Your bill talks about ensuring that the basic evidence is 
available for review by the judge, and Mr. Nichols has 
suggested that in many of the cases--many, if not all--it is 
made available and the judge can review it. I think that's very 
important because many parts of the bill suggest that the 
judge, if he thinks it is genuinely a state secret may ask the 
government to try and come forth with an unclassified statement 
that will still allow the case to go forward and allow a due 
process hearing for the claimant, but will not contain any 
state secrets.
    I think it would be very difficult for a judge to decide 
whether or not such a statement is possible without actually 
looking at the material itself. So summing up, I do think 
Federal judges are capable of administering the state secrets 
privilege in a way that is set forth in the bill. I think it 
will be helpful to them to have a protocol, to have a series of 
steps they must go forward with. I think it will produce more 
uniform results.
    Chairman Leahy. Thank you.
    [The prepared statement of Judge Wald appears as a 
submission for the record.]
    Chairman Leahy. I also note that Senator Kennedy asked to 
put a number of items in the record. Of course, without 
objection that will be done.
    Senator Kennedy. Thank you.
    [The documents appear as a submission for the record.]
    Chairman Leahy. Our next witness, Louis Fisher, is 
Specialist in Constitutional Law.
    I'm delighted to see Senator Whitehouse here, who has 
joined our panel.
    Louis Fisher is a Specialist in Constitutional Law at the 
Law Library of the Library of Congress. He formerly worked at 
the Congressional Research Service from 1970 to 2006. He is the 
author of 17 books dealing with constitutional law and national 
security. He has won numerous awards for his writing. He's 
testified before Congress also numerous times on a wide range 
of issues, including NSA surveillance, executive privilege, and 
war powers.
    He received his doctorate in Political Science at the New 
School for Social Research, and has taught at a number of 
universities and law schools.
    On a personal note, during my years at Georgetown Law 
School, when it was in the old building--Judge Wald may 
remember that building.
    Judge Wald. I do.
    Chairman Leahy. I spent many, many hours and many evenings 
in the Law Library at the Library of Congress, with fond 
memories, some bordering on panic as I was preparing for final 
exams.
    Mr. Fisher, go ahead, please.

 STATEMENT OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW, 
     LAW LIBRARY OF THE LIBRARY OF CONGRESS, WASHINGTON, DC

    Mr. Fisher. Thank you, Mr. Chairman. Thank you for your 
leadership.
    This is an important hearing. It is a technical area, state 
secrets privileges, but it really goes to the heart of 
constitutional government about a system--a very American 
system--of checks and balances, independent judiciary, and 
giving private parties an opportunity in court to challenge 
government illegalities and unconstitutional action. So this is 
about as basic an area that we could look at today.
    What's new about this area? I wouldn't look at past state 
secrets privilege cases and current ones and do a numbers game 
here and say this has gotten more or less, but I think it is 
different today. I've looked at all the state secrets cases 
over the years, and the ones that we've seen in recent years 
are those in which people are charging government with illegal 
and unconstitutional actions of violating statutes, violating 
treaties, violating provisions of the Constitution. So I think 
we are in a new area.
    As was said earlier today, the executive branch does have 
powers, and at a certain point can exercise them. At another 
point, when it's pushed to an extreme--which I think has been 
done now--you start to lose it and you require Congress to 
legislate. We've seen that history for decades.
    I think the bill introduced by Senator Specter and Senator 
Kennedy protects the principles in the Constitution of checks 
and balances, of giving litigants an opportunity in court. We 
also have the other important constitutional principle of state 
secrets. I think we all recognize that they have to be 
protected.
    The problem with state secrets is that over the decades the 
executive branch has gone into court with information that's 
not reliable--in fact, is false. There have been opportunities 
for the executive branch to correct the record and the 
executive branch doesn't always do it. So to accept the 
statement by the executive branch as fact is very risky in this 
area. I provide many examples in my statement, a lot of 
appendices I put on my statement.
    I think that the state secrets privileges today, the way 
it's been exercised, has done damage to the executive branch. 
It, therefore, does damage to government. It does damage to the 
United States here and abroad, and I think it does damage to 
the judiciary to the extent that courts are seen not as 
independent players, but as not much more than an arm of the 
executive branch.
    Judge Wald spoke about deference. What kind of standard 
should apply? I think the executive branch would like the 
utmost deference standard. I would not accept that. I would 
question even the need for deference because, as you know, on a 
national security case the executive branch already goes into 
court with quite a bit of advantage with their expertise. They 
also have the advantage, Mr. Chairman, as you mentioned, of ex 
parte, in camera proceedings. So they've already got an 
advantage. You can't have private citizens go into court 
knowing that the game is almost over before it starts.
    So I would say that the standard would certainly be one of 
respect, not deference, and it would not be respect just for 
the executive branch, but respect for both sides. I call to 
your attention the al-Haramain case from last November, where 
the Ninth Circuit said: ``We take very seriously our obligation 
to review the documents with a very careful, indeed a 
skeptical, eye, and not to accept at face value the 
government's claim or justification of privilege. Simply saying 
``military secret'', ``national security'', ``terrorist 
threat'', or invoking the ethereal fear that disclosure will 
threaten our Nation is insufficient to support the privilege.'' 
Yet a few lines later, the court says: ``That said, we 
acknowledge the need to defer to the Executive on matters of 
foreign policy and national security and surely cannot 
legitimately find ourselves second guessing the Executive in 
this arena.'' So you can see the need for legislation to get 
some guidance.
    The bill defines state secret in this manner: ``any 
information that, if disclosed publicly, would be reasonably 
likely to cause significant harm to national defense or foreign 
relations of the United States.'' I think the definition favors 
executive power. There aren't too many judges who are going to 
say to executive officials ``I substitute my notion for 
national security and foreign affairs for yours.''
    So I would like to see a second sentence in the definition 
that says: ``The assertion of a state secret by the executive 
is to be tested by independent judicial review.'' That puts up 
front the independent quality you expect, and uses the word 
``assertion'', which is the appropriate one.
    I would also like a third sentence: ``The state secrets 
privilege may not shield illegal or unconstitutional 
activities.'' We have a need for state secrets. I don't know 
why we need a state secrets privilege that would shield illegal 
activity.
    Section 4055. I won't go into the details, but it seems to 
me it gives defendants, such as the telecoms, an opportunity to 
avoid litigation if state secrets are involved. I think that's 
a serious matter, that you would have people in the private 
sector and government acting illegally and made immune because 
state secrets are involved in the case.
    Thank you.
    Chairman Leahy. Thank you. Thank you very much, Mr. Fisher.
    [The prepared statement of Mr. Fisher appears as a 
submission for the record.]
    Chairman Leahy. Professor Robert Chesney teaches at Wake 
Forest University School of Law. He specializes in national 
security law. He has published in numerous academic journals, 
including the Michigan and North Carolina Law Reviews.
    He's the founder and moderator of National Security Law. Is 
that correct?
    Professor Chesney. Yes.
    Chairman Leahy. A list serve on national security issues. 
He recently served as the chair of the Section on National 
Security Law of the Association of American Law Schools.
    Before joining Wake Forest, Professor Chesney was a 
litigator at Davis, Polk & Wardwell while in New York City. He 
attended Texas Christian University and received his law degree 
from Harvard Law School.
    Professor, please go ahead.

   STATEMENT OF ROBERT M. CHESNEY, ASSOCIATE PROFESSOR, WAKE 
       FOREST UNIVERSITY SCHOOL OF LAW, WINSTON-SALEM, NC

    Professor Chesney. Chairman Leahy, Senator Specter, and 
distinguished members of the Committee, thank you very much for 
allowing me to be here today to talk to you about the State 
Secrets Protection Act, which I'll refer to as the SSPA.
    I'd like to make just a few points in my remarks, all of 
which are derived from my written testimony and explained in 
more detail there.
    First of all, I think it's important for us all to 
acknowledge that there's a great deal in this bill that should 
not be controversial and that we should all be able to get 
behind. The vast majority of the provisions here represent 
codifications of existing practice, or at least practices that 
are tolerable and sometimes used under existing doctrine, and 
therefore there's not much reason to be too concerned about 
them.
    Consider, for example, the proposition that it's the judge 
and not the executive branch official who shall make the 
ultimate determination as to whether the privilege attaches. As 
Judge Wald said, that's current doctrine and there's no harm at 
all--in fact, there is some benefit--in codifying that.
    Similarly, as Carl mentioned, the executive branch does in 
fact provide--even in cases where there's no specific item of 
evidence in issue--classified and unclassified declarations for 
ex parte review. There's certainly no harm--and a lot of good 
when you take into account what happened in Reynolds--in 
clarifying that judges can and should review these items of 
information before making their determination. There are other 
examples.
    Of course, there's some stuff in the bill that's not just 
codifying what we do under the state secrets privilege. Most of 
it, also, I think, is unobjectionable--in fact, laudable. There 
are a few points that I think are likely to be controversial, 
however, and on a few of these I think there are compromise 
positions that are worth at least considering. I'd like to use 
my remaining time to identify these.
    First of all, I think the SSPA may go too far in its effort 
to add adversariality into the stage of the case when the judge 
is deciding whether the privilege attaches. Now, I want to be 
clear that I very much appreciate and applaud the spirit of 
adding adversariality. As you know, under current practice some 
of the most important elements of deciding whether the 
privilege attaches involves the ex parte presentation of the 
explanation from the government.
    That's ideal from a security point of view, but not from an 
accuracy point of view. We all understand that adversariality, 
as the Chairman mentioned, is the touchstone of accuracy, and 
the more adversariality you can have, the more accurate your 
process will be.
    For that very reason, I endorse the idea of a guardian ad 
litem mechanism, and in particular I think it's a terrific idea 
to break with current practice with respect to the ex parte 
information, appointing an attorney to stand in for the 
interests of the litigants to provide that adversariality.
    My personal preference however, is that this be done using 
a roster of pre-selected and pre-screened attorneys--a list 
that could be created and maintained by the Chief Justice of 
the United States, for example.
    The problem I have with the current legislation is that, 
while it has a guardian ad litem mechanism, it allows the judge 
to appoint literally anyone the judge might care to appoint for 
that role. Beyond that, it empowers the judge to skip the 
guardian mechanism altogether and permit the litigants' 
attorneys to directly participate in the review and the 
arguments relating to the otherwise ex parte information.
    I would note that even the more limited approach I'm 
endorsing is a significant break from current practice. It is 
also a departure from what goes on in CIPA in the Section 4 
context, which I think is the CIPA scenario most analogous to 
what we're talking about here.
    My next point is a related one. It concerns what the SSPA 
has to say about the scenario in which the government seeks the 
dismissal of a case on privilege grounds. Again, there's a 
great deal to applaud, not least of which the very notion that 
we should try to minimize the circumstances where cases are 
dismissed.
    One of the most useful things done here, one of the best 
parts of the bill, is that it provides a clear ground for the 
government not to admit or deny an allegation, but instead to 
plead the state secrets privilege, and thus move beyond the 
pleading stage without being confronted with the obligation to 
admit classified or otherwise protected information.
    That said, there are concerns here as well. The SSPA 
addresses the scenario in which the government or a party has a 
defense that it can't present without privileged information. I 
think it's laudable to codify those procedures, but I am 
concerned about the way it's done here in that it seems to call 
for a mini-trial on the evidentiary merits of the defense that 
apparently could include the litigants' own attorneys, 
notwithstanding the conceded applicability of the privilege to 
the information necessary for that mini-trial.
    At a minimum, I think this section should be amended: 
first, to make it clear that such proceedings shall be in 
camera in all instances; second, that if there is a need for 
adversariality in that context, and there may well be, that we 
use the guardian ad litem mechanism that I just described; 
finally, I think we should also consider whether that 
particular process should not be an evidentiary mini-trial, but 
rather should be a legal sufficiency test akin to Rule 12(b)(6) 
adjudication.
    Finally, let me speak to perhaps the hardest issue, the 
scenario in which state secrets are the very subject matter of 
the litigation. In that scenario, the SSPA, as I read it, would 
not allow dismissal. I think that's a scenario where we're most 
likely going to see objections from the executive branch, that 
the SSP in that application would be unconstitutional.
    Let's assume that Congress can, in fact, override the 
existing doctrine on this point, which perhaps it can. The 
question is, should it? In fact, more specifically, the 
question is, should Congress create a one-size-fits-all rule? 
We have a one-size-fits-all rule right now that favors the 
government winning in all such cases. It's not clear to me that 
the best solution is to switch to a one-size-fits-all rule in 
which the government loses in all such cases or, rather, is put 
to the choice of losing or proceeding with the information 
being disclosed.
    I do think it's important to remember that the impact of 
this legislation will be to concentrate the minds of judges, 
leading them to apply the privilege more rigorously. And I 
would emphasize in particular the notice provision in section 
4058, which I think is very useful. It will put this Committee 
and others--and the Congress as a whole--in a position to know 
whether application of the privilege in a given case has 
resulted in injustice, in which case the remedies of a private 
bill might be in order.
    I look forward to your questions.
    Chairman Leahy. Well, thank you. Thank you very much.
    [The prepared statement of Professor Chesney appears as a 
submission for the record.]
    Chairman Leahy. Our last witness is Michael Vatis. Did I 
pronounce that correctly?
    Mr. Vatis. Yes, sir.
    Chairman Leahy. Thank you. He's a partner with Steptoe & 
Johnson in New York City. His practice is focused on Internet 
e-commerce and technology matters.
    Prior to joining Steptoe & Johnson, he had a distinguished 
career in government. One of the things I followed at the time, 
is he was the founding director for the National Infrastructure 
Protection Center at the FBI, the first government organization 
responsible for detecting, warning, and responding to cyber 
attacks, including cyber terrorism, something we wish we didn't 
need, but unfortunately we need more every day.
    Before that, he served as Associate Deputy Attorney 
General, Deputy Director of the Executive Office for National 
Security at the Department of Justice, where he worked on 
counterterrorism issues. He attended Princeton, and received 
his law degree from Harvard Law School.
    Please go ahead. I would indicate, if we have a roll call 
vote--you'll have plenty of time to finish your testimony. If 
we do, we will just break briefly while we go to vote and then 
come back.
    Mr. Vatis, go ahead, please.

STATEMENT OF MICHAEL VATIS, PARTNER, STEPTOE & JOHNSON LLP, NEW 
                            YORK, NY

    Mr. Vatis. Thank you, Mr. Chairman.
    Chairman Leahy, members of the Committee, I appreciate the 
opportunity to testify before you today about the state secrets 
privilege, and S. 2533 in particular. I will be very brief, but 
I do think it's important to recognize that there are two 
significant trends that inform the discussion and understanding 
of the issue of the state secrets privilege.
    The first is one that you, Mr. Chairman, mentioned and that 
Senator Specter mentioned, and that is the recent aggressive 
assertions of executive power in many different areas, 
including the assertion of the authority to either disregard 
the law where it is perceived as infringing on the President's 
Commander-in-Chief power, or the authority to reinterpret the 
law in the form of signing statements or by other methods.
    That, I think, is one important trend to keep in mind. The 
other trend that has gotten less focus in recent years is the 
fact of continuing over-classification of information by 
government officials. A decade ago, Senator Daniel Patrick 
Moynihan from New York chaired the so-called Moynihan 
Commission, which studied this problem and concluded that there 
was a great degree of over-classification at the time.
    I think real efforts were made in the late 1990s to address 
this problem, but if anything, over-classification has 
increased since then. The problem stems from the fact that 
there really is no meaningful internal check within the 
executive branch to prevent classifying authorities from over-
classifying information.
    So when you combine those two trends, what you end up with 
is a situation where there are more secrets and there is a more 
aggressive use of those secrets in many different contexts, 
including the context of asserting the state secrets privilege 
to thwart the vindication of people's rights in civil 
litigation. It also, I think, results in the deterioration of 
effective checks and balances--including oversight by Congress 
and oversight by the judicial branch--which of course are such 
a fundamental aspect of our constitutional system.
    When considering the state secrets privileges, it is 
important to require meaningful judicial review of assertions 
of the privilege by the executive branch. I think the bill that 
has been introduced by Chairman Leahy, Senator Kennedy and 
Senator Specter does just that. But I also think--and here I 
think I disagree with a few of my colleagues on this panel--
that it is important to recognize the executive branch's 
constitutional responsibility for protecting our national 
defense and engaging as the principal organ of our foreign 
policy, and also to recognize the executive branch's superior 
expertise in these fields.
    For that reason, I do think it is important that the bill 
specify that there should be deference to the executive 
branch's assertions that disclosure of information would result 
in significant harm, or is reasonably likely to result in 
significant harm. I do not think that de novo review by a court 
of that determination would be appropriate. I think if the bill 
specifically called for de novo review, there would actually be 
more significant litigation and potential determination by the 
courts that the bill has constitutional flaws.
    Now, I would not let an executive assertion easily lead to 
the dismissal of litigation, and I think the bill has careful 
safeguards to prevent that from happening. I would also require 
that an executive assertion of the privilege be detailed and 
specific as to which information officials think cannot be 
disclosed without harming national security.
    But given all of those safeguards, I think it is important 
that the bill specify a particular standard of deference, and 
perhaps we can talk during the question period about what such 
standards of deference might be. There are many different 
options, but I do think that would be the one principal 
amendment that I would make to the bill.
    The last part that I will just mention, which I think 
should not go without touching on, is the importance of 
congressional oversight of this whole issue. I think the bill 
does that by providing for meaningful reports to Congress, to 
the Intelligence Committees, as well as to the Chairman and 
Ranking Member of this Committee and its counterpart on the 
House side.
    I think that is vitally important, because if you do have 
assertions of privilege resulting in some cases getting 
dismissed, congressional oversight will ensure that at least we 
don't have systemic abuse of the privilege. There may be cases 
where a particular civil litigant is unable to vindicate his or 
her rights, but at least congressional oversight will ensure 
that we don't have systematic abuse of the privilege to hide 
government misconduct. I think that is vitally important.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Vatis appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    The vote has begun, so I am going to stand in recess, 
subject to the call of the Chair. It will probably take 5, 10 
minutes to get over there and vote and come back, and we will 
start the questions. Some of our hearings are done because we 
have to do them and some are doing because they're interesting. 
This follows both categories. It's what we should do, and it's 
also interesting. I thank you for the time you've spent.
    We'll stand in recess, subject to the call of the Chair.
    [Whereupon, at 11:09 a.m. the hearing was recessed.]
    AFTER RECESS [11:42 a.m.]
    Chairman Leahy. Thank you.
    Let me ask a couple questions. I was thinking. This is 
first to Judge Wald, but I was thinking, Mr. Nichols, of what 
you said earlier. I had mentioned the al-Masri case, Khalid al-
Masri. Just put that back in perspective. German citizen, 
Lebanese descent, claimed he was kidnapped and transported 
against his will from Macedonia to Afghanistan under the Bush 
administration's extraordinary rendition program. He claims it 
detained and tortured. The judge dismissed the entire lawsuit 
at the--I believe this was in a Virginia court. Is that 
correct?
    Judge Wald. Yes.
    Chairman Leahy. The entire lawsuit, at the pleading stage, 
based on an affidavit from the CIA Director, the Court of 
Appeals affirmed. The Supreme Court declined to review the 
case. Now, this wasn't on an argument or anything else. No 
evidence was taken, simply from the pleadings. At either the 
trial level or the appellate level, there was no review of 
actual evidence.
    The judge said in his decision that ``al-Masri's private 
interest must give way to the national interest in preserving 
state secrets.'' I find that troubling because there was never 
any determination made whether there really were state secrets 
or whether it was a carton of milk on the helicopter.
    So, Judge Wald, do you agree with the judge's calculation 
that it is only the litigant--in that case, Mr. al-Masri--who 
suffers when a court politely refuses to entertain a lawsuit 
that alleges serious government wrongdoing, or are there other 
interests at stake?
    Judge Wald. I think you can predict my answer, Senator 
Leahy. I think it is not, in that particular instance and in 
similar instances, only the claimant who is suffering. I think 
it is the appearance of justice. I think it is the perceived 
status of the judiciary as an ultimate protector of individual 
civil and constitutional rights.
    It's been several months since I read the al-Masri case, 
but it does seem to me that many of the techniques and steps 
that you have outlined in this bill were ones that could have 
been followed. Whether they would have eventuated in a state 
secret privilege that must be recognized and could not allow 
the litigation to continue with other evidence, I don't know. 
But we certainly knew at the time that the fact that renditions 
were going on was something that was covered in every newspaper 
in the country.
    Chairman Leahy. Isn't it possible, without going into this 
case, to assume there might be cases if, if it's in camera or 
otherwise, you had a hearing and determined some of the 
evidence is protected by state secrets, the case could go on on 
other evidence. Is that not correct?
    Judge Wald. Yes.
    Chairman Leahy. Don't courts do this all the time: this is 
going to be excluded, however, you can continue your case if 
you feel you still have one on what's remaining.
    Judge Wald. That's definitely a possibility in some of the 
cases, even some that I have actual knowledge of, that if the 
judge knows--and he would know if you passed the bill--that he 
should go through certain motions, that mentally he would go 
through certain loops, as it were, one of them being, if there 
is a state secret privilege somewhere here, first let me make 
sure that the litigant has exhausted his rights in discovery of 
any non-secret information.
    At that point, one could make a determination in some cases 
whether or not there's enough evidence, non-secret evidence, to 
go ahead and make a prima facie case for the claimant, and then 
require the government to put on its defense of the case, or 
whether he should move into the state secrets privilege, look 
at it, and decide whether or not the government could produce a 
non-classified affidavit which had enough information in it 
which would help the claimant to go ahead with his right. So I 
think there are many steps that the judge should follow, and 
will follow, and will be glad to have some guidance in 
following before dismissing.
    Chairman Leahy. If I might--and I apologize, Senator 
Specter. I've gone a little bit over here. But as I mentioned 
Mr. Nichols at the beginning, I wanted to be fair to him.
    You said, Mr. Nichols--my notes are that before asserting 
state secrets by the executive branch, 1) the privilege has to 
be invoked formally by the government; 2) the head of the 
department or agency has to invoke the privilege and not a 
lower-level official; 3) a senior official must personally 
consider the assertion and review of the materials; and 4) the 
Department of Justice must approve the assertion. But that is 
still assumes it could be done ex parte, in camera.
    A judge could make the determination based simply on the 
affidavit--assuming all these other steps, but it could still 
be the affidavit of the administration. In this case, it was 
something that was known in the press anyway--and agree to it. 
Is that fair?
    Mr. Nichols. Senator Leahy, if I could make a few points.
    Chairman Leahy. Sure.
    Mr. Nichols. First, the courts have long recognized that ex 
parte adjudications are proper in national security cases. 
There's a long pedigree of courts saying, we need to adjudicate 
issues ex parte because the alternative is disclosing to 
private litigants, who have no security clearances, 
necessarily, and certainly no independent need to know 
classified information--
    Chairman Leahy. Well, even conceding that, doesn't the 
court have an obligation if they're going to do that to at 
least look beyond the four corners of the affidavit?
    Mr. Nichols. Well, I think, Senator Leahy, that there's a 
bit of an assumption built into your question, and that is that 
the declarations or the affidavits that are provided to the 
courts in the classified setting are basic, simple, and don't 
contain details.
    Chairman Leahy. I've seen some of these affidavits. I know 
they can be detailed.
    Mr. Nichols. And I think that the al Masri case is actually 
a very good example of the kind of steps we go through. If you 
look at the Fourth Circuit opinion--and I think it's important 
to note that both the judge in the Eastern District of Virginia 
and all three judges on the Fourth Circuit agreed with us that 
we had properly asserted the privilege there, and the court 
said the following: the reason for the state secrets privilege 
and the Motion to Dismiss ``were explained largely in a 
classified declaration which sets forth in detail the nature of 
the information that the executive seeks to protect and 
explains why its disclosure would be detrimental to national 
security. We have reviewed the classified declaration and the 
extensive information it contains is crucial to our decision in 
the matter.'' Then the court went on to say it then assessed 
whether the case could proceed.
    The court said the plaintiff would have to come forward and 
make his prima facie case, but that showing could be made only 
with evidence that exposes how the CIA organizes, staffs, and 
supervises its most sensitive intelligence operations, which 
seems to me a very reasonable thing that we don't want to be 
disclosing publicly, how the CIA organizes, staffs, and 
supervises its most sensitive intelligence operations.
    Then even if the plaintiff could come forward with a prima 
facie case, the defense side would have to prove, potentially, 
whether al-Masri was or was not subject to the treatment, 
whether or not the defendants were involved, and the nature of 
their involvement. As the court says, any of those three 
showings on the defense side would require disclosure of 
information regarding the means and methods by which the CIA 
gathers intelligence. So I think the al-Masri case is a perfect 
example of the steps that the executive branch goes to in 
providing very robust classified submissions--
    Chairman Leahy. You understand that some would think that 
the al-Masri case provides a great example of why the 
procedures are stacked in favor of the government.
    Mr. Nichols. I understand people say that, but I think that 
a review of the Fourth Circuit's opinion, which is an extremely 
careful analysis, makes clear that there is a significant 
difference. I think this is very important. There is a 
significant difference between being able to talk about an 
issue, like whether there's a program that the CIA might have, 
and actually litigating a particular plaintiffs claims under 
that program, which requires very specific facts and details 
about what happened, who did it, where, when, and why. Those 
are the kind of details that the court looked at and said, we 
believe the state secrets assertion is properly asserted here.
    Chairman Leahy. I'll re-read the case. I remain somewhat 
skeptical.
    Judge Wald. Could I just add one sentence?
    Chairman Leahy. One sentence.
    Judge Wald. One sentence.
    Chairman Leahy. One sentence. I am really way over my time.
    Go ahead.
    Judge Wald. The one sentence is that everything Mr. Nichols 
recounted I'm sure is true, but it was essentially a dialogue 
between the executive and the court. In other words, the 
plaintiff had no participation.
    Mr. Fisher. The problem with al-Masri is, the balancing 
test that you gave is al-Masri against the national interest. 
No individual would have a chance unless you stopped to say 
that it is not in the national interest to take an innocent 
person and put him away for 5 months. So, that's a test that's 
not useful.
    Chairman Leahy. Thank you.
    Senator Specter.
    Senator Specter. Judge Wald, you have referred to a 
standard of review, talking about de novo substantial weight to 
the government. Consideration had been given to a balancing 
test and this proposal does not have a balancing test. It would 
grant the government's claim on the determination by defining 
``state secret'' as any information that, if publicly 
disclosed, would be reasonably likely to cause significant harm 
to the national defense or foreign relations of the United 
States.
    Do you think that there ought to be consideration for the 
person seeking the information which would import a balancing 
test? Is that what you're thinking about as a standard of 
review?
    Judge Wald. Not necessarily. If I might make two quick 
points. One, several of the courts have pointed out--I think it 
may actually be in one of the Supreme Court cases, though I 
can't cite you--that once you find that the state secrets 
privilege applies, there is no balancing of that against the 
need of the--
    Senator Specter. Do you agree with that?
    Judge Wald. Well, I guess I do, if it's genuinely a state 
secret that is going to cause, by your definition, significant 
harm to the national defense or the military or diplomatic 
relations.
    Senator Specter. Mr. Vatis, do you think there ought to be 
a balancing test?
    Mr. Vatis. I don't. I think a balancing test makes no 
sense. I think the plaintiff or civil litigants' interests 
should be examined and weighed in determining what summaries or 
what substitute evidence should be made available in lieu of 
state secrets. But I think at the end of the day if the court 
agrees with the executive branch's determination that 
disclosure would be reasonably likely to cause significant 
harm, I don't think it should matter how much the civil 
litigant needs the information, it should not be disclosed.
    Senator Specter. Professor Chesney, how do you evaluate the 
contention that it really isn't any business of the court to 
make a judgment on what is national security, that that's an 
executive branch decision and the court ought to accept the 
executive branch determination?
    Professor Chesney. I don't think that judges should have to 
accept the executive branch's determination. It's clearly 
appropriate, and is required in current doctrine, that the 
judge ultimately has to make the decision whether the 
substantive test in this bill or in current doctrine has been 
satisfied. That said, I do think that some degree of non-
binding deference needs to be shown to, for example, the 
Director of National Intelligence when, in his judgment, there 
would be such a harm from the disclosure. That official's 
judgment can't be entirely binding, but it should be given 
great weight.
    Senator Specter. Mr. Nichols, what's your view on whether 
the courts should second-guess the executive branch on what is 
a state secret, or second evaluate?
    Mr. Nichols. Senator Specter, the courts have recognized, 
and I think they're right to do so, that the executive branch 
is in far better institutional position to determine whether 
the disclosure of a particular piece of information is going to 
harm national security. Courts have recognized for many years 
that the executive branch has the full panoply of intelligence 
information, foreign relations information, and the like to 
know whether, and where, a particular piece of information sits 
and whether it makes sense or not to allow that piece of 
information to be disclosed. That's not to say that when the 
executive branch has made that determination, that the courts 
have no role. But the courts have said, I think--
    Senator Specter. Well, what is, then, the court's role?
    Mr. Nichols. The Supreme Court has made clear that the 
courts must review both the procedural components, i.e., that 
all of the steps are set up to ensure, and I think--
    Senator Specter. When you come to grips with the evaluation 
of whether it's a legitimate, genuine state secret, what's the 
court's role?
    Mr. Nichols. It should defer, but it should not abdicate 
its responsibility to review. In other words, implausible--
    Senator Specter. Those words are all right. I've got 26 
seconds left.
    Mr. Fisher--
    Chairman Leahy. I took extra time. You take extra time.
    Senator Specter. No. I like to observe--well, okay.
    Mr. Fisher. Of course, I have a problem with the two words 
``national security''. They can be so broad to swallow 
everything. You probably remember the first compulsory flag 
salute case in 1940 was decided on national security grounds. 
So if the court ever said, in national security we have a 
subordinate role, it would be very destructive to an 
independent court.
    Senator Specter. Mr. Fisher, how would you define the role 
of the courts vis-a-vis the executive branch determination of 
what is a state secret?
    Mr. Fisher. I don't think they should rely on affidavits 
and declarations, even if classified. I think they have to look 
at the evidence and come to a determination that has respect 
for the government's position and the private party's position, 
because that's the one place we're supposed to have some 
opportunity for justice, and you can't do it if you have 
advance deference.
    Senator Specter. Well, my time has expired. I yield, Mr. 
Chairman.
    Chairman Leahy. Are you sure you don't have any more?
    Senator Specter. That's fine. No.
    Chairman Leahy. Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I want to salute 
you, Mr. Chairman, the Ranking Member, and Senator Kennedy for 
taking the initiative on this issue. A rigorous examination of 
the state secrets privilege is long overdue, and I think this 
hearing will provide critical support for legislative efforts 
to fix the problem.
    In a democracy, the public should have the right to know 
what its government is doing. That should be the rule. Secrecy 
should be the rare exception, reserved for the few cases in 
which the national security is truly at stake.
    Unfortunately, this administration has stood that 
presumption on its head. It cloaks its actions in secrecy 
whenever possible and grudgingly submits to public scrutiny 
only when it can't be avoided. And the state secrets privilege 
is a favorite weapon in the administration's arsenal of 
secrecy.
    None of us disputes that information may properly be 
withheld as a state secret when disclosing the information 
would cause grave damage to national security. The problem 
arises when the privilege is abused and invoked to shield 
government wrongdoing. Indeed, that is exactly what happened 
the first time the Supreme Court recognized the privilege in 
1953, in the case of United States v. Reynolds. The government 
had been sued after a military aircraft crash killed nine 
people, and it invoked the state secrets privilege to shield an 
internal investigative report. Decades later, when the report 
was declassified, it revealed nothing that could fairly be 
characterized as a state secret--but it did reveal faulty 
maintenance of the aircraft.
    Abuses like these can be prevented, but only if the courts 
fulfill their responsibility to carefully review claims of 
privilege. In the Reynolds case, no court actually looked at 
the privileged report. The government must be required to 
submit allegedly privileged information to the courts for in 
camera review. Courts handle highly classified information on a 
regular basis. There is no legitimate justification for 
skipping this crucial step.
    Furthermore, a determination that certain information is 
privileged should be the beginning of the analysis rather than 
the end. As Congress recognized when it passed the Classified 
Information Procedures Act, courts have many tools at their 
disposal to move litigation forward, even when some of the 
evidence cannot be disclosed. For example, courts can require 
the government to submit non-privileged substitutes for the 
privileged evidence, or fashion a variety of other remedies to 
serve the interests of justice.
    The need for these common-sense measures is greater than it 
has ever been. This administration has invoked the state 
secrets privilege to block judicial scrutiny in cases ranging 
from warrantless wire tapping, to extraordinary rendition, to 
employment discrimination. A country where the government need 
not answer to allegations of wrongdoing is not a democracy. We 
must ensure that the state secrets privilege does not become a 
license for the government to evade the laws that we pass. I 
commend the Chairman, the Ranking Member, and Senator Kennedy 
for making sure this is being considered.
    Judge Wald, in your written testimony, you discussed a 
Freedom of Information Act case in which the government claimed 
the right to withhold a large amount of classified information. 
With the help of a special master, the court reviewed the 
information and determined that 64 percent of the material 
could be released. How common is it, in your experience as a 
judge, for the government to assert a privilege that ultimately 
turns out to be inapplicable?
    Judge Wald. My direct experience, Senator, is limited to a 
few cases. That's probably the outstanding one where that 
happened. However, I am aware of not a great many, but several 
cases--let me put it that way, several cases--where indeed, 
when the evidence was looked at, it was determined by a court 
to have been, how shall I say, vastly over-classified.
    I think the problem of over-classification that Mr. Vatis 
referred to, everybody knows that that's true. Peter Goss, who 
is the head of CIA, says so. Rumsfeld has issued statements 
when he was at the Defense Department, saying he knows it's too 
easy to over-classify material. So there are instances.
    In fact, if there's been any criticism under the FOIA 
Exemption 1, it's been that the courts have been too reluctant 
to use the power which was given them by Congress which says 
they can look behind a classification and see if it's been 
reasonably classified to actually do that. I can't say I've 
encountered many, many, many cases. I can say I've encountered, 
either myself or through my colleagues, several cases where 
material should not have been subject to state secrets or 
classified that was.
    Senator Feingold. Have you ever experienced or observed a 
situation in which the government submitted affidavits 
asserting the state secrets privilege and then either withdrew 
the privilege claim or publicly disclosed the same information 
in some other venue?
    Judge Wald. I am aware of some Freedom of Information cases 
where the initial classification--the initial exemption was 
raised for many documents, and after negotiation, et cetera, 
and sometimes the court remanding for additional affidavits, et 
cetera, some of that was subsequently disclosed. I think every 
Freedom of Information Act lawyer that I know that deals with 
Exemption 1 has had some experiences where the initial 
invocation of privilege after negotiation or a remand has been 
cut down, cut back, and more evidence has been disclosed.
    Senator Feingold. I thank the panel.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator.
    Mr. Vatis, I spent a lot of time looking at some of the 
areas that you worked in at the FBI and Department of Justice. 
You say, and I agree, the protection of sensitive sources, 
methods, and details of weapons systems, for example, is 
absolutely essential.
    I don't think you'll find anybody on this panel, Democratic 
or Republican, who would disagree with you. But then you say--
and this is a quote that jumped out at me--``there are secrets 
and then there are secrets'', the point being that the 
executive branch often over-classifies or claims the need for 
secrecy and it's too absolute because there's no check on those 
claims.
    I mean, we've seen things marked ``Top Secret'' that were 
on a government Web site for 6 months, or they've been in the 
National Archives for years. We are now spending several 
billion dollars a year to classify stuff, classify things 
that--we've actually had people testify in open session, and 
then all of a sudden say, oh, that's got to be classified, so 
we can't use it in debate. Do the courts need to make more of 
an independent judgment on this, and can we trust courts to 
make sound judgments?
    Mr. Vatis. I think we can trust courts, Mr. Chairman, to 
make sound judgments. The problem is, the windows of 
opportunity for courts to get involved are relatively few and 
far between. Assertions of the state secrets privilege, even if 
you believe that this administration is asserting it more, are 
still relatively rare.
    FOIA cases are more frequent, so they present an 
opportunity for courts to assess classification. But there is 
still so much more classifying going on that I don't think that 
the courts alone provide a meaningful enough check. They're 
still looking at discrete bits of information, and their review 
often is so long after the fact that it's not as helpful as it 
might be.
    So I think there's actually a greater role for Congress in 
trying to stem the over-regulation of information--which 
secrecy is really all about. I think one of the great insights 
of the Moynihan Commission is the idea that secrecy, or 
classification of information, is a form of regulation, and 
that this is one area in which the government, I think 
everybody would agree, is over-regulating. Congress needs to 
step in.
    Chairman Leahy. It's interesting when you mentioned the 
Moynihan Commission. Senator Moynihan's office was just down 
the hall from mine, and we used to have some long discussions 
about this. You also just mentioned FOIA. We have passed a FOIA 
bill which, after opposition from the administration--it was a 
very bipartisan bill that got heavy, heavy support from both 
sides of the aisle, our argument being, we're passing it now 
when we don't know who's going to be the next President so 
nobody is saying it's aimed at a particular person.
    But when the President signed it around New Year's Eve, 
they also then quietly put a thing into the President's budget 
to basically repeal part of the act he signed. The act, without 
going into all the technicalities of it, allows disputes of 
what should be looked at in FOIA that will be handled by the 
U.S. Archivist, who has always been a non-political figure. 
They want to move that back into the Justice Department, the 
same department which, of course, was directed by the memo from 
former Attorney General Ashcroft saying, basically, resist all 
FOIA requests, or almost all.
    So I think real secrets, nobody questions. But I think too 
often secrets become secrets for convenience or to cover up 
mistakes or embarrassment. That's just a long way around of 
saying, I agree with your line, ``there are secrets, and then 
there are secrets.''
    Senator Kennedy is here. I am going to another hearing that 
I'm late for, so I'm going to turn it over to Senator Kennedy, 
and if you could wrap up when you finish.
    Senator Kennedy. Thank you. All right.
    Chairman Leahy. Thank you.
    Thank you all very much. We've actually had--and Senator 
Kennedy is here, but both have had two very interesting panels, 
entirely different, this one, the other one on the presidential 
papers where we had the foremost historians of this country 
testify, sitting where you are, just a week ago.
    Senator Kennedy. That's it.
    Chairman Leahy. Thank you.
    Senator Kennedy. Thank you, Senator Leahy, again, for 
having this hearing and for your strong commitment to this 
issue and your willingness to move this whole process forward, 
which gives us a good sense of hope that we could make some 
progress.
    And to our witnesses, thank you for remaining here. I would 
like to, just very quickly, go into two areas, but they are 
important. One, is the constitutionality of our bill. We have 
to be clear about this issue, I think, to the extent that we 
can, that the actions that we're talking about here are 
justified in view of any constitutional considerations.
    I'll ask Judge Wald.
    Judge Wald. Senator, I don't see anything in this bill 
which, to my mind, raises any serious constitutional objection 
in the sense that ultimately, even when all of the techniques 
are used and all of the procedures are used, the bottom line is 
that if the judge does find that there is a state secret, 
nothing in here requires him to reveal it, and in fact tells 
him he should not reveal it. So, in that sense, something that 
is a genuine state secret will not get revealed as a result of 
this bill.
    The only constitutional problem I could even conceptualize 
would be a kind of shared power. I think Mr. Nichols may have 
alluded to the fact that some courts have suggested that the 
state secrets may be derivative, at least in part, from the 
executive's constitutional obligation to protect the national 
security.
    But this is the same kind of shared power problem that you 
have had to meet in FISA and in several of the other things, 
and which Justice Jackson in the Steel Seizure case met in 
which he set out his famous triumvirate, that the executive's 
power is at its lowest ebb when Congress has actually 
legislated in the area. So in its present form, I don't see any 
constitutional objections.
    Senator Kennedy. Mr. Fisher.
    Mr. Fisher. I would like to add that if the executive 
branch invokes Article II, Congress can invoke Article I. So 
the fact that the President has certain Article II powers 
doesn't stop Congress from legislating. In fact, I think 
Congress is the only legitimate branch here that can tackle the 
state secrets privilege. The courts could do it, but the courts 
have not done it. You can't ask the executive branch to police 
it, they're one of the litigants. So I think Congress has all 
the legitimacy in the world to provide the guidelines in the 
future.
    Senator Kennedy. Good.
    Any others? Yes.
    Professor Chesney. Senator, may I?
    Senator Kennedy. Mr. Chesney.
    Professor Chesney. There are two different ways Congress 
can legislate here: it can regulate and it can abrogate. The 
power to regulate, I think, is clearly within the 
constitutional power of Congress, enabling it to create rules 
that will govern the process of adjudicating the privilege. 
That covers the bulk of what's in this bill. The tougher 
question is whether, if there's anything in this bill that 
actually overrides or abrogates the privilege, Congress can do 
that. In that case, you get into the question of whether you're 
in Justice Jackson's third category, the lowest ebb, 
uncertainty as of who wins.
    The two areas that even arguably go near that question are, 
first, the language that permits the government to raise a 
defense as a ground for dismissal but otherwise bars dismissal 
on privileged grounds. That has the effect of preventing the 
government from seeking dismissal based merely on the fact that 
the suit concerns privileged information, at least where there 
is no particular defense to raise. So the net effect of that 
language is to create a crime-or-illegality exception to 
current doctrine.
    I don't think we really know for sure what result is most 
likely were that approach to be challenged on constitutional 
grounds. I assume the executive branch would argue that 
constitutionally dismissal still is required in that scenario. 
I don't think they necessarily would win on that argument, but 
that's one area where constitutional objections would come up.
    Second, insofar as the process of adjudicating privilege as 
sertions would involve adversariality in the form of actually 
disclosing the information to the litigants on the other side 
before the privilege is resolved, I can see the executive 
branch objecting on constitutional grounds there as well.
    Senator Kennedy. Okay.
    Mr. Vatis. Senator Kennedy, I don't think there's a serious 
constitutional objection to Congress' getting involved in this 
area and passing a statute that regulates the process for 
assessing the executive branch's assertion of the privilege. 
The one place that I think there would at least be a 
constitutional issue, though, is if the bill either expressly 
called for, or was interpreted as calling for, de novo 
determination by a judge of whether disclosure would result in 
harm to national security.
    Because that sort of determination of harm implicates the 
President's Article II power, I think there would be a 
colorable argument that de novo review would impinge on the 
executive's authority. So that's one of the reasons I think 
it's important to specify a standard of review in the bill and 
to make it clear that some level of deference should be 
accorded to the executive branch's determination of the 
likelihood of harm to national security.
    I would couple that standard of review, though, with some 
specific language requiring that the assertion of harm be made 
in a very specific and detailed way, so that you don't just 
have blanket assertions of the privilege, with the executive 
saying that disclosure will harm national security, period, or 
disclosure will harm our diplomatic relations, period. There 
needs to be specificity. If there is such specificity, I think 
the procedures that are in the bill will do a great deal to 
prevent abuse of the privilege.
    Senator Kennedy. Now, let me follow up on that, Mr. Vatis. 
In your testimony, you expressed strong support for the 
legislation but you suggested we codify the standard for 
judicial review, something that the bill, like virtually all 
bills--does not do.
    So how do you respond to the experts like Judge Wald, Judge 
Webster, and Mr. Fisher, who have argued that judges ought to 
be respectful of the government's claims of privilege, but that 
no special deference is appropriate?
    Mr. Vatis. I think it's important to specify and codify the 
standard of review, for two reasons. First, if you don't, there 
will be differing opinions among judges about what the level of 
deference should be. They will argue about this until it's 
ultimately resolved by the Supreme Court. I think it's fully 
appropriate for Congress to make the determination of what the 
standard of review should be and not let this just be litigated 
with inconsistent results.
    The second reason is the constitutional one. I think there 
would be a serious argument of at least constitutional 
problems, if not outright, unconstitutionality, if there was no 
deference called for at all. So I think Congress should provide 
for deference, but, again, make sure that the bill doesn't 
allow for the executive to use that deference to abuse the 
privilege.
    Senator Kennedy. Let me throw out some possible standards. 
Should the courts give substantial weight to the executive? 
Some weight? Something else? Who wants to take a crack at it?
    Mr. Fisher. Let me just point to your problem with the word 
``deference.'' You can look it up in the dictionary, and 
there's no agreement even on what ``deference'' means. It could 
be ``lean in your favor'', it could be ``respects.'' So I don't 
think the word ``deference'' helps. It clouds.
    I think Judge Wald and others have worked with standards 
like what weight should be given, but I don't like litigation 
where, in advance, you know that the judge is giving 
substantial weight or deference to one side before the case 
begins.
    Senator Kennedy. Yes?
    Professor Chesney. I'll join in and add--I'm sorry, Judge. 
Please.
    Judge Wald. Okay. I was just going to say that I think Mr. 
Vatis is worried about specifying de novo review because it 
might have some constitutional problems, but I believe that 
Congress already did that in the 1974 amendment, which you led 
the fight on, in FOIA 1. I think it's de novo review, and it's 
the report that says, but of course they should give 
``substantial weight'' to the affidavits of the government. 
There are many judicial formulations of de novo review, which 
then say, of course you should give different weights to some 
testimony others. Deference is a funny word. It means two 
things.
    It means in some instances, as Mr. Fisher showed in it 
double usage in the Ninth Circuit case, we're going to defer, 
we're going to go in there with the notion that if they show 
themselves to be reasonable, that's enough.
    The other lesser meaning is just, we take account of the 
fact that these people know what they're doing and they've got 
a lot of experience, the same way we would do for a patent 
expert if the judge had a patent case and didn't know anything 
about it. So, actually I think I'd prefer the weight kind of 
thing, because judges do that all the time. They give whatever 
due weight should be accorded to the expertise of the 
individual testifying.
    Professor Chesney. I agree with Judge Wald on that. 
Choosing among a bunch of not very good options, the best 
terminology is ``weight'' terminology.
    Judge Wald. I agree.
    Professor Chesney. Something along the lines of 
``substantial weight'' or ``great weight.'' The reality is that 
the way it's calibrated, in terms of adjectives, won't actually 
affect much how the judges ultimately apply it. This exact same 
issue arises in the context of executive branch interpretations 
of treaties and the question of how much weight judges should 
give to such interpretations, and the formulations of deference 
in that context have varied over the years without really 
changing substantive outcomes.
    Mr. Nichols. Senator Kennedy, if I might.
    Senator Kennedy. Sure.
    Mr. Nichols. I think there are a couple of components to 
the question, and I'd like to break them apart. There's a 
constitutional issue lurking here about whether Congress can 
require--notwithstanding decades-long precedent that says that 
in a assessing state secrets privilege assertion, that the 
courts must give utmost deference to the executive branch, and 
they often say that in constitutional terms.
    So there's a question, and it's not just an Article 1, 
Article 2 issue, but it's actually whether Congress could 
constitutionally give to Article 3 courts the ability to 
second-guess the executive branch on questions of national 
security. That's a constitutional issue. I think the courts 
have long made clear that deference is appropriate in this 
area, both for constitutional concerns, but there's a policy 
reason.
    That is, as I mentioned to Senator Specter before, the 
executive branch has before it all of the information relating 
to national security, intelligence programs, foreign relations. 
The Director of National Intelligence, as an example. When he 
asserts the state secrets privilege, he knows the full panoply 
of information and he can tell, he is the best situated to know 
whether the disclosure of a particular piece of information, 
given all that he knows, will harm national security.
    With all respect, that is simply not something that courts 
are institutionally as capable of assessing, and any standard 
of review that would have a court substituting its judgment for 
the considered judgment of someone like the Director of 
National Intelligence strikes me as, (A) potentially 
unconstitutional, but (B) more important, not very good policy.
    Senator Kennedy. Let me sort of go to a related issue. 
Judge Wald, why are judges well-prepared to review sensitive 
national security claims?
    Judge Wald. Well, judges handle classified information in a 
variety of sources and they handle them every day. Just last 
week, Judge Burkima, who presided over the Moussaoui trial, 
gave a talk at American U, in which she said she felt that as a 
Federal judge she'd be glad to take another Moussaoui trial the 
next day. She felt she had the equipment she needed, the 
techniques she needed, and that judges are handling classified 
information in a variety of sources and are used to doing it.
    Now, judges often have to deal with complex matters about 
which they don't instinctively know anything. I mean, some of 
the patent cases, some of the industrial contract cases, I know 
in many instances national security may have even higher 
stakes. But in terms of the complexity and the ability to look 
at all the material, and to weigh it, and to give due regard to 
the sources which should be given due regard is something that 
they do, and they have to do. The Constitution ultimately says 
that it is the courts who shall declare what the law is. That 
goes back to Marbury v. Madison. Even when you have conflicts 
between executive branch and Congress, it is the courts who are 
supposed to ultimately decide.
    Admittedly they don't like to do that very much and they 
steer away through doctrines like political question, et 
cetera, but basically that's where the decision-making power 
lies. And certainly that is where the common law privilege, 
state secrets privilege, originated in the courts, the 
recognition of it.
    So I think it is something which courts take seriously and 
that they can master, and their temperament is such that they 
are not going to leap in and just put their own immediate view 
ahead of all of the expert testimony that comes before them.
    Mr. Fisher. Let me just add, on war power issues the 
Supreme Court, starting in 1800 and going up at least to the 
Korean War, took all the war power cases. They never said, oh, 
this is a sensitive matter, we don't have competence. They took 
them all except for two cases I know of during the post-Civil 
War period.
    So I think we were thrown off guard in the Vietnam period 
where courts, as you remember, ducked those cases by the dozens 
on political question, mootness, ripeness, prudential 
considerations, you name it. So a lot of people, including 
judges today, were educated during the time where courts were 
ducking. But if you look at our history, courts have handled 
national security, war power issues, foreign affairs issues 
from the start and they've never ducked them, never felt that 
they were inadequate to handle such cases.
    Senator Kennedy. Okay. Well, this has been an enormously 
helpful hearing. I've learned a lot from it, and I know our 
colleagues valued it very highly as well, so we want to thank 
all of you. It's been very constructive and useful, and I'm 
sure we're going to have additional questions as we move this 
whole process along. But I want to thank you all again for 
coming here today.
    The Committee stands in recess.
    [Whereupon, at 12:26 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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