[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 U.S. GOVERNMENT PRINTING OFFICE 53-360 WASHINGTON : 2009 ----------------------------------------------------------------------- For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 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. 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