[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                  STATE SECRET PROTECTION ACT OF 2009 

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

                                H.R. 984

                               __________

                              JUNE 4, 2009

                               __________

                           Serial No. 111-14

                               __________

         Printed for the use of the Committee on the Judiciary


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

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel










                            C O N T E N T S

                              ----------                              

                              JUNE 4, 2009

                                                                   Page

                                THE BILL

H.R. 984, the ``State Secret Protection Act of 2009..............     4

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................    17
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................    18

                               WITNESSES

The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court 
  oF Appeals for the District of Columbia
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24
The Honorable Asa Hutchinson, Senior Partner, Hutchinson Law 
  Group
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Mr. Andrew Grossman, Senior Legal Policy Analyst, The Heritage 
  Foundation
  Oral Testimony.................................................    55
  Prepared Statement.............................................    57
Mr. Ben Wizner, National Security Project Staff Attorney, 
  American Civil Liberties Union
  Oral Testimony.................................................    83
  Prepared Statement.............................................    85

                                APPENDIX

Material Submitted for the Hearing Record........................   111


                  STATE SECRET PROTECTION ACT OF 2009

                              ----------                              


                         THURSDAY, JUNE 4, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:09 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Delahunt, 
Johnson, Sensenbrenner, Franks, and King.
    Staff Present: Heather Sawyer, Majority Counsel; and Paul 
Taylor, Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order.
    Today's hearing will examine the state secrets privilege. 
The Chair recognizes himself for 5 minutes for an opening 
statement.
    Today, the Subcommittee examines legislation that I have 
introduced, along with the distinguished Chairman of the full 
Committee, with Representative Tom Petri, and with several 
other Members of the Committee, that would codify uniform 
standards for dealing with claims of the state secrets 
privilege by the government in civil litigation.
    In the last Congress, we had an oversight hearing on the 
state secrets privilege and a hearing on this legislation. The 
bill was reported favorably to the full Committee.
    Our experience has demonstrated the destructive impact that 
sweeping claims of privilege and secrecy can have on our 
Nation. In order for the rule of law to have any meaning, 
individual liberties and rights must be enforceable in our 
courts. Separation-of-powers concerns are at their highest with 
regard to secret executive branch conduct, and the government 
simply cannot be allowed to hide behind unexamined claims of 
secrecy and become the final arbiter of its own conduct.
    Yet, claims of secrecy have been used to conceal matters 
from Congress even though Members have the security clearance 
necessary to be briefed in an appropriately secure setting. 
That has been the case with respect to the use of torture, with 
the use of illegal spying on Americans, and other matters of 
tremendous national importance.
    And let me add here that this issue is perhaps the most 
important issue, in my judgment, this Committee will face, 
because this Committee is charged with enforcing civil rights 
and civil liberties under our Constitution. And there is an 
ancient maxim of law that says there is no right without a 
remedy. And if the government violates your rights, if it 
kidnaps you, it tortures you, it deliberately burns down your 
house, it wiretaps you without a warrant, whatever, how do you 
enforce your right against the government?
    Well, the Administration could criminally prosecute its own 
members who have done so; that is unlikely. Congress could 
exercise oversight; that is hit or miss. Or the victim can sue 
in tort, he can sue the government for illegal wiretapping, for 
kidnapping, for intentional infliction of mental distress, for 
assault, whatever.
    But if the government can eliminate that lawsuit on the 
pleadings simply by coming into court and using the magic 
incantation of the words ``state secrets,'' and say, ``This 
case should be dismissed because we say, in our unexamined 
assertion, that trying the case would necessitate the 
revelation of state secrets, case dismissed,'' then there is no 
recourse to the courts and there is no enforcement of rights. 
And rights without a remedy are illusory and we have no rights. 
Therefore, we must put some limits on this use of the state 
secret doctrine.
    The same pattern of resorting to extravagant state secrets 
claims has been evident in the courts. While the Bush 
administration did not invent the use of the state secrets 
privilege to conceal wrongdoing, it certainly perfected the 
art. The state secrets privilege has been abused by prior 
Administrations to protect officials who have behaved illegally 
or improperly or simply in an embarrassing manner, rather than 
to protect the safety and security of the Nation.
    The landmark case in the field, U.S. v. Reynolds, is a 
perfect case in point. The widows of three civilian engineers 
sued the government for negligence stemming from a fatal air 
crash. The government refused to produce the accident report, 
even refusing to provide it to the court to review, claiming it 
would reveal sensitive state secrets that would endanger 
national security. The Supreme Court concurred without ever 
looking behind the government's unsupported assertion that 
national security was involved.
    Half a century later, the report was found, now 
declassified, online by the daughter of one of the engineers, 
and it clearly revealed no state secrets. It clearly could have 
been made available in a form that would have enabled those 
families to vindicate their rights in court. It did, however, 
reveal that the crash was caused by government negligence, 
which I suspect was the real reason for the invocation, or the 
invention in that case, of the state secrets doctrine.
    Protecting the government from embarrassment and civil 
liability, not protecting national security, was the real 
reason for withholding the accident report. Yet these families 
were denied justice because the Supreme Court never looked 
behind the government's false claim to determine whether it was 
valid.
    Similarly, in the Pentagon Papers case, then-Solicitor 
General Erwin Griswold warned the Supreme Court that 
publication of the information would pose a grave and immediate 
danger to national security. Eighteen years later, he 
acknowledged that he had never seen, quote, ``any trace of a 
threat to the national security,'' unquote, from the 
publication of the information and further admitted that, 
quote, ``The principle concern is not with national security 
but rather with government embarrassment of one sort or 
another,'' close quote.
    It is important to protect national security, and sometimes 
our courts have to balance the need for individual justice with 
national security considerations. Congress has in the past 
balanced these important, albeit sometimes competing, demands. 
In the criminal context, we enacted the Classified Informations 
Procedure Act. In FISA, we set up procedures for the courts to 
examine sensitive materials. Through the Freedom of Information 
Act, we sought to limit any withholding of information from the 
public whom the government is supposed to serve.
    We can and should do the same in civil cases. Our system of 
government and our legal system have never relied on taking 
assurances at face value. The courts and the Congress have a 
duty to look behind what this Administration or any 
Administration says to determine whether or not those 
assurances are well-founded.
    Presidents and other government officials have been known 
not to tell the truth on occasion, especially when it is in 
their interest to conceal something. The founders of this 
Nation knew that there needed to be checks in each branch of 
the government to prevent such abuses from taking the place. 
Or, in the words of the Ninth Circuit in the recent Jeppesen 
decision, ``The executive cannot be its own judge.'' To allow 
that--and these are now my words--to allow that is to abandon 
all the protections against tyranny that our Founding Fathers 
established.
    Courts have a duty to protect national security secrets, 
but they also have a duty to make an independent judgment as to 
whether state secrets claims have any merit. When the 
government itself is a party, the court cannot allow it to 
become the final arbiter of its own case. The purpose of this 
legislation is to ensure that the correct balance is struck.
    I would just add that I am extremely disappointed that the 
Department of Justice has declined to provide a witness to 
discuss this very important issue at this hearing. I have met 
with the Attorney General, and I understand that a review of 
this policy is currently under way. Nonetheless, the Department 
continues to go into court while this review is under way and 
take positions that are remarkably similar to positions taken 
by the last Administration.
    While I greatly appreciate the Attorney General's 
willingness to work with us, I believe that it should be 
possible to send someone to provide us with the 
Administration's views and to answer our questions to the 
extent that they are able. I hope this is not a sign of things 
to come.
    I look forward to the testimony of our witnesses.
    I would now recognize the distinguished Ranking minority 
Member, the gentleman from Wisconsin, Mr. Sensenbrenner, for 
his opening statement.
    [The bill, H.R. 984, follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    The state secrets privilege is a longstanding legal 
doctrine the Supreme Court most recently described in a case 
called U.S. v. Reynolds. In that case, the court made it clear 
that if the court, after giving appropriate deference to the 
executive branch, determines that public disclosure of 
information would harm national security, the court is obliged 
to either dismiss the case or limit the public disclosure of 
national security information as necessary.
    Under this doctrine, people with legitimate claims are not 
denied access to court review. Rather, the doctrine allows 
judges to personally review any sensitive information. While 
this doctrine may occasionally disadvantage someone suing in 
court, it is vital to protecting the safety of all Americans.
    The roots of the state secrets privilege extend all the way 
back to Chief Justice Marshall, the author of Marbury v. 
Madison, who held that the government need not provide any 
information that would endanger public safety.
    In the modern era, Congress debated the issue of the state 
secrets privilege under Federal law in the 1970's but 
ultimately chose to maintain the status quo, including elements 
of the privilege put in place by the Supreme Court in its 
Reynolds decision. The Fourth Circuit Court of Appeals recently 
employed the doctrine in affirming the dismissal of the case, 
including that the state secrets privilege has a firm 
foundation in the Constitution.
    Not surprisingly, the privilege has played a significant 
role in the Justice Department's response to civil litigation 
arising out of our counterterrorism efforts following 9/11.
    The state secrets doctrine remains strongly supported by 
today's Supreme Court. Even in its Boumediene decision granting 
habeas litigation rights to terrorists, Justice Kennedy, in his 
majority opinion, acknowledged the government's legitimate 
interest in protecting sources and methods of intelligence 
gathering and stated, ``We expect the district court will use 
its discretion to accommodate this interest to the greatest 
extent possible,'' while citing the Reynolds state secrets case 
I mentioned earlier in doing so.
    I oppose any efforts, including this bill, that invite the 
courts to deviate from the sound procedures they currently 
follow to protect vital national security information. H.R. 984 
would preclude judges from giving weight to the executive 
branch's assessment of national security. And it would 
authorize courts not to use ex parte proceedings in conducting 
a review of privileged claims. And it would prevent courts from 
being able to dismiss a case when the government cannot defend 
itself without using privileged information.
    The Obama administration is clearly not enamored with the 
approach of this legislation and has adhered in court to the 
doctrine as asserted by the previous Administration in at least 
three cases already. According to The Washington Post editorial 
page, the Obama administration's position on state secrets 
makes it hard to distinguish from its predecessor. Anthony 
Romero, the executive director of the ACLU, has written that 
the new Administration has embraced policies held over from the 
Bush era, including the use of the state secrets claim.
    Last Congress, legislation essentially the same as H.R. 984 
was cosponsored in the Senate by Senators Joe Biden and Hillary 
Clinton, who are now President Obama's Vice President and 
Secretary of State. But this year, President Obama, Vice 
President Biden, and Secretary of State Clinton have gone 
silent on the bill. When asked about it recently, the Vice 
President's communications director said, quote, ``No comment 
on this one here.''
    The legislation goes exactly in the wrong direction, so 
much so that even President Obama, Vice President Biden, and 
Secretary of State Clinton are running away from it. So should 
we.
    And I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    I will now recognize the distinguished Chairman of the full 
Committee for an opening statement.
    Mr. Conyers. Thank you, Mr. Chairman. Thank you, Ranking 
Member Emeritus--I mean Chairman Emeritus.
    The President is running away from a lot of things, so this 
is just one more of them. That doesn't mean that consideration 
is not extremely important.
    We have been here before, ladies and gentlemen. I am for 
state secrets. There are some secrets that we've got to keep 
away from citizens and Congress people and everybody else--
bloggers. But, wait a minute, which ones? Well, that is what we 
are here to try to sort out. We didn't say abolish state 
secrets. And, look, state secrets have been used so much to 
keep things secret that shouldn't have been kept secret; that 
is the problem.
    And, by the way, let's take a look at the great statements 
of the President on this subject. He said, we've got to rein in 
state secrets privileges. He acknowledged that the privilege is 
overbroad and overused, and that he plans to embrace several 
principles of reform. He has agreed that state secrets 
shouldn't be used to protect information merely because it 
reveals the violation of law or it may be embarrassing to the 
government.
    His Administration has also continued pressing an 
aggressive view of state secrets privileges in the court, 
adopting arguments perfected by the prior Administration. 
Earlier this year, in the Mohamed case, the Administration 
currently maintained the prior Administration's sweeping 
assertion that the very subject matter of the case was a state 
secret and that that should prevent judicial consideration of 
the case. The case was about torture.
    A few months later, another case was brought against the 
government for unlawfully spying on its own citizens, Jewel. 
And our Administration again sought outright dismissal, arguing 
that litigating the case inevitably would require a harmful 
disclosure of state secrets and that the court need not examine 
any actual information on whether the case might proceed.
    ``It is too secret; we can't even talk about it. What do 
you mean, a remedy of their rights? This is a right apparently 
without any remedy at all. It is too secret to talk about. 
Don't you get it? It is so secret, we can't even hear the case 
to determine whether there is a right or a wrong involved or 
whether it is a case brought in error.''
    So, we remain encouraged that the Administration is taking 
a thorough review of the state secrets privilege and his 
assurance, number 44, that he will deal with Congress and the 
courts as co-equal branches of government, and we can't sit 
idly by. Well, if we are co-equal, then that is what we are 
going to assert.
    In closing, Chairman Nadler, it is unacceptable that the 
Department declined to even come to this non-secret meeting. 
Nobody is here. What is that about? They could not provide a 
witness. Why? Well, there is a review pending, and it is not 
solved, and it remains--until it is solved, they don't want to 
come before this co-equal branch of government with them. Okay. 
That doesn't sound very co-equal to me. They could have sent 
someone here to say, ``We can't talk with you guys.'' They 
could have sent someone here to say that, ``What we are doing 
is not concluded. We understand your concern about the 
matter.''
    So what is with this state secrets business? Well, let's 
see how far we can go. I am so glad to see Judge Wald. She has 
been in Judiciary so many times. And our former colleague, Asa 
Hutchinson, we are happy to see him back. Grossman is always on 
the case. Mr. Wizner, you are a relative newcomer here, but we 
welcome you.
    And it is no secret that what we are going to say and do 
here today is going to be information for everybody to help 
decide how we resolve this situation.
    Thank you for your indulgence, Chairman Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedule, I would ask that other Members submit 
their statements for the record. Without objection, all Members 
will have 5 legislative days to submit opening statements for 
inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, which we will only do in case of votes 
on the floor.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on the 
Subcommittee, alternating between majority and minority, 
providing that the Member is present when his or her turn 
arrives. Members who are not present when their turn begins 
will be recognized after the other Members have had the 
opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or who is 
only able to be with us for a short time.
    I would like now to introduce our panel of witnesses.
    The first witness is the Honorable Patricia Wald, who has 
had a distinguished legal career. She served as a judge for the 
United States Court of Appeals for the D.C. Circuit from 1979 
to 1999, serving as chief judge from 1986 to 1991.
    Judge Wald was also a judge with the International Criminal 
Tribunal for the former Yugoslavia from 1999 to 2001 and was a 
member of the President's Commission on the Intelligence 
Capabilities of the United States Regarding Weapons of Mass 
Destruction from 2004 to 2005.
    Judge Wald clerked for the Honorable Jerome Frank on the 
U.S. Court of Appeals for the Second Circuit and received her 
B.A. from the Connecticut College for Women and her J.D. from 
Yale Law School.
    Asa Hutchinson is a former colleague of ours in the 
Congress and on this Committee, who served with distinction as 
a Member of this Committee.
    In 1982, President Ronald Reagan appointed him United 
States Attorney. He represented the Third District of Arkansas 
from 1996 until President Bush appointed him as the 
Administrator of the Drug Enforcement Administration. In 
addition to his service on the Judiciary Committee, he was also 
a Member of the Intelligence Committee.
    In January 2003, Representative Hutchinson was confirmed by 
the U.S. Senate to be the first Under Secretary of the newly 
created Department of Homeland Security, where he served until 
2005. He subsequently founded the Asa Hutchinson Law Group in 
2008 with his son, Asa III.
    Andrew Grossman is The Heritage Foundation's senior legal 
policy analyst. Before being named as senior legal policy 
analyst in January 2008, Mr. Grossman was a writer, editor, and 
general analyst at Heritage, contributing to the think-tank's 
research program in domestic and economic policy, foreign 
policy, and legal affairs.
    Mr. Grossman is a graduate of the George Mason University 
School of Law, where he served as senior articles editor of the 
George Mason Law Review. He received his master's degree in 
government from the University of Pennsylvania in 2007. In 
2002, he received his bachelor's degree in economics and 
anthropology from Dartmouth College, where he edited the 
Dartmouth Review.
    Ben Wizner has been a staff attorney at the ACLU since 
2001, specializing in national security, human rights, and 
first amendment issues. He has litigated several post-9/11 
civil liberties cases in which the government has invoked the 
state secrets privilege, including El-Masri v. The United 
States, a challenge to the CIA's abduction, detention, and 
torture of an innocent German citizen; Mohamed v. Jeppesen, 
Dataplan, Inc., a suit against the private aviation services 
company for facilitating the CIA's rendition of torture applied 
to Muslim men; and Edmonds v. Department of Justice, a 
whistleblower retaliation suit on behalf of an FBI translator 
fired for reporting serious misconduct.
    Mr. Wizner was a law clerk to the Honorable Stephen 
Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. 
He is a graduate of Harvard College and New York University 
School of Law. And I must say I have a particular fondness for 
New York University School of Law since my son is currently a 
student at New York University School of Law.
    I am pleased to welcome all of you. Each of your written 
statements will be made part of the record in its entirety. I 
would ask that you now summarize your testimony in 5 minutes or 
less. To help you stay within that time limit, there is a 
timing light at your table. When 1 minute remains, the light 
will switch from green to yellow, and then to red when the 5 
minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hands to take the oath.
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect that the witnesses 
answered in the affirmative.
    You may be seated.
    The first witness is the Honorable Judge Wald.

  TESTIMONY OF THE HONORABLE PATRICIA M. WALD, RETIRED CHIEF 
   JUDGE, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

    Judge Wald. Thank you, Chairman Nadler, Chairman Conyers. I 
would like to make five brief points in the 5 minutes.
    The first one is that the frequent use of the privilege in 
recent years to deny all relief to civil plaintiffs who have 
been injured by governmental action has become a matter of 
grave concern to lawyers, judges, legal scholars, and the 
American Bar Association. This total cutoff of relief is often 
unnecessary and, I think, produces rank injustice in many 
cases.
    Now, in U.S. v. Reynolds, the Supreme Court acknowledged, 
and there is no dispute, that ultimately it is a judge who must 
decide whether the privilege applies or not. But judges who 
have been administering the privilege have struggled with 
varying success to find a middle way between national security 
and ensuring access by worthy plaintiffs to some form of remedy 
for their grievances.
    Unfortunately, the judges have not been entirely consistent 
in the way they administer the privilege. Some show a readiness 
to dismiss cases outright on mere allegations or a conclusory 
affidavit, and some probe more intensely. Some judges actually 
look at the item that the state secrets privilege is raised as 
to, and some don't and are content to look at the government's 
affidavits. There isn't even any consistency as to how 
substantial the risk has to be to justify closing down the 
case.
    So, in sum, I think there is a consensus: It is time to 
regularize the administration of the privilege in a way that 
protects national security but not at the expense of a total 
shutdown of civil process for worthy claimants.
    I want to make two points here.
    One, there is nothing that I can find in this bill that 
prevents the government from raising or invoking the state 
secrets privilege. And once the state secrets privilege has 
been found to apply, I find nothing in this bill that says the 
judge can make the government actually disclose that. There are 
various other kinds of substitutes, alternatives, but I really 
don't think that there is any instance in which this bill will 
make the government disclose something which has been 
identified by the judge as a state secret.
    The second point I would make is that Congress's power 
under article 1, section 8, and article 3, section 2, of the 
Constitution to prescribe regulations on the admissibility of 
evidence in Federal courts has been used many times in the 
Federal Rules of Evidence, in FISA proceedings, in CIPA, and I 
don't think there has much doubt about their authority to do 
so.
    Very recently, in the Al-Haramain case out in California, a 
district judge, in an exhaustive opinion, decided that the FISA 
procedures for treating information obtained under secret FISA 
warrants preempted invocation of the state secrets privilege--
another vindication, at least at that level--we will see 
whether the government appeals or not--of Congress's power to 
legislate evidentiary rules.
    Number three point: Federal judges in other contexts handle 
every day classified materials and secret materials and make 
decisions as to whether redacted versions can be disclosed or 
summaries made that can serve the purpose of continuing the 
litigation without in any way undermining national security. 
They do it all the time. They have, in many cases, used masters 
in formative indices like the Vaughn Index in Exemption 1, 
FOIA. They use sampling techniques where massive amounts of 
material are included.
    This bill wisely incorporates into the civil law area of 
state secrets privilege many of these useful techniques with 
which judges are already familiar in order to minimize the 
number of cases--there will still probably be some--where 
dismissal of the entire claim will be necessary.
    I think that's a good thing for the following reason: While 
many of these techniques are very familiar, they are not 
absolutely, explicitly authorized, so that I had encountered 
cases in my own experience on the bench where the government 
would object to something, such as the use of a master, and it 
came up on appeal. Ultimately, we decided the judge could use a 
master, but the government objected. So I think it is a good 
thing to have these techniques actually explicitly recognized 
in the law.
    I am not going to get into the Jeppesen case because I 
think the counsel over here at the end--I will only say that, 
to me, they did a very good thing in distinguishing using the 
state secrets privilege as a kind of ``close-the-door because 
of the subject matter of this.'' In this case, it was 
extraordinary rendition. And the court said, no, the state 
secrets privilege is only about particular pieces of 
information, which you can raise them, you can debate them, you 
can litigate them, but you can't say, ``No, we are not going to 
talk about secret prisons, and we are not going to talk about 
extraordinary rendition,'' because if you have other evidence 
that is not subject to the state secrets privilege, you should 
be able to go ahead. I thought that was very worthy.
    The fourth point: Very briefly, I will point out some of 
the things in this bill that I think are very useful.
    They require initially that the government asserts in 
affidavit form the factual basis for the claim of privilege. I 
don't think anybody could object to that. That the judge then 
makes a preliminary review and then confers with the party, 
even at that early stage, as to whether there are special 
protective provisions that need to be taken, such as a master 
or an index, akin to that used in FOIA cases, to make sure that 
it isn't disclosed even at this early stage.
    He can then decide if, at that point, he is going to allow 
the parties to continue with discovery of materials that are 
not covered by the privilege to see if the case can go ahead 
without his stopping dead in his tracks and making the decision 
as to whether the privilege is involved. If he does find that 
the privilege could be an indispensable part of either the 
plaintiff's case or the defendant's dissent, then it provides 
guidance, long-needed guidance, as to what standard he should 
use.
    Now, I think that the good thing about that is it allows 
cases to go forward which possibly will be able to be litigated 
without any use of the state secrets privilege at all or any 
substitute for it. If, however, the judge finds that, indeed, 
this is a truly legitimate case for invocation of state secrets 
privilege, he then has a series of alternatives, which I don't 
think anybody could object to. They have been long used in 
CIPA. They are things such as stipulation, a summary that is 
not classified or secret, et cetera.
    The criteria on which he makes a decision as to whether it 
is a state secret is whether or not significant harm is 
reasonably likely to occur. And I think that is one which is in 
line with some of what I would consider the best judging in the 
past. The government does have the burden of proving the nature 
of the harm, the likelihood of occurrence.
    And this, I think, is very important, and I will save it, 
one of the two issues, I think, that can legitimately be 
discussed here today: that the court should weigh the testimony 
from government experts in the same manner it does and along 
with any other expert testimony. I think that is very 
important, that the judge makes an independent judgment, he 
looks at the testimony of the government, evaluates it the way 
that we have learned to evaluate expert testimony--namely, the 
qualifications of the expert, the experience of the expert, the 
cohesiveness of the testimony. And those are exactly the 
grounds on which one does give weight to expert testimony, and 
that is what should be applied here.
    The last point I would raise I have raised before, but I 
want to underscore its importance. The bill does require the 
judge to actually look at it. He can't just look at the 
affidavit. He actually has to look at the evidence that is in 
dispute as a state secret. And I think that that is very 
essential, both as to the cases which will be dismissed because 
there simply is no alternative and as to the cases where he 
decides, no, there may be a good alternative. How can he say 
what is a good alternative that will satisfy the legitimate 
needs of the litigation if he doesn't even know what's in the 
material?
    With that, I'll conclude. But I think this legislation is 
long overdue. I think it will be a great help to judges. And I 
don't think it will in any significant way impugn our national 
security.
    Thank you.
    [The prepared statement of Judge Wald follows:]
          Prepared Statement of the Honorable Patricia M. Wald

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                               __________

    Mr. Nadler. Thank you.
    And now I recognize for 5 minutes the Honorable Mr. 
Hutchinson.

          TESTIMONY OF THE HONORABLE ASA HUTCHINSON, 
              SENIOR PARTNER, HUTCHINSON LAW GROUP

    Mr. Hutchinson. Thank you, Chairman Nadler. It is good to 
be in your courtroom again. Chairman Conyers, it is good to see 
you. Thank you for your distinguished leadership in the full 
Committee. My good friend, Ranking Member Sensenbrenner, thank 
you for your leadership, as well. And, all Members of the 
Committee, it is good to be back to a Committee that I hold in 
fond admiration.
    As you know my background has been principally in law 
enforcement and security as well as in elective office. But 
both as United States Attorney, as head of the DEA, and then in 
Homeland Security, obviously we handled national security 
matters, sensitive matters at the highest level. And I bring 
that background to this Committee, and I would emphasize 
certain principles that I think should be followed as you 
address this important legislation.
    First, as has been acknowledged this morning already, there 
is a national security interest in protecting state secrets. 
This is not a figment of anybody's imagination. There are state 
secrets. There are things that we don't want the public to 
know, and certainly our enemies should not know that. There are 
many programs, sources, methods of surveillance, and numerous 
defense programs that need protection and secrecy. That is a 
given and must be done.
    However, I think it is important to underscore also that 
any assertion of this state secrets privilege by the executive 
branch should not be immune from our Federal system of checks 
and balances. It is just fundamental to me in my governing 
structures, in my understanding of what our Founding Fathers 
created that we should not have an unfettered executive branch. 
They are co-equal branches of government. And the system of 
checks and balances is so critical to compensate for the 
failures of human nature.
    And if you can imagine being in the executive branch and 
having some troublesome litigation filed, and you are advised 
that, ``Well, we perhaps could claim the state secrets 
privilege and avoid substantial litigation,'' and there is a 
human tendency, when that privilege is there, to claim that 
privilege. And with the failures of human nature, even though 
that privilege many times is justifiably claimed, there also 
are historical instances where perhaps it was not appropriately 
claimed. Regardless, though, regardless, under our system of 
government there needs to be a check and balance, and the 
judiciary is the right position to do that.
    And that is the third principle, I believe, that the courts 
have proven themselves capable of protecting classified 
information at the highest levels and establishing procedures 
to balance the interests of secrecy and justice. The 
illustrations, of course, are how they have very appropriately 
handled FISA matters, how the Classified Information Procedures 
Act has been implemented so well by the courts, and the 
handling of classified information under FOIA requests.
    And I think you could also make the case historically that 
perhaps there has been more loose lips in other branches of 
government than within the judiciary. They have a good track 
record of protecting those things that have been entrusted to 
them.
    And I might add, I pointed out my background as a law 
enforcement and national security official, but I also have 
been blessed to be in the private sector, and currently I am 
handling a national security case from the defense side. And 
guess what the first thing the courts required? Well, you've 
got to have your security, top-secret security clearances 
upgraded; you have to go and view the evidence in secure 
facilities. All the procedures are set up, even though they are 
cumbersome, they are required, and they are implemented on a 
routine basis by the courts.
    Another point that I think is relevant to make today, that 
currently, even though this is an historic doctrine, there is 
insufficient authority, insufficient clarity, and insufficient 
guidance for the courts to provide an independent review that I 
believe is important in our system of checks and balances. We 
have the Reynolds case that has been cited; the El-Masri case 
most recently in the Eastern District of Virginia. The Jeppesen 
case I understand will be discussed, the Fourth Circuit case. 
All of these reflect different approaches and different 
results--some better, some others are not so good, depending 
upon your viewpoint.
    But I believe that Congress, being the important third 
branch of government, should act to provide the guidance and 
clarity in terms of what is the right approach to provide the 
independent review of when the state secrets privilege is 
asserted. House Resolution 984 is an excellent foundation to 
consider this. It provides for an independent assessment by the 
courts, does not require substantial deference.
    And I know this is a little bit of a touchy issue, but if I 
might just make the point that, in other areas of litigation 
where there is some deference--FOIA, other regulatory areas--
there are fine guidelines and history and regulations that give 
guidance in those areas that fine-tune it before it ever gets 
to the court. And perhaps there is the distinction between the 
deferences given in those circumstances and the independent 
review that is required here.
    I want to abide by the time, but I think the bill is a good 
starting point for discussion. It does provide the independent 
assessment; clarifies that it is an evidentiary privilege, not 
an immunity doctrine; and it does provide the courts with the 
critical oversight.
    Finally, I have enjoyed participating in the Constitution 
Project's bipartisan Liberty and Security Committee, which I 
have recently joined. And the report, entitled ``Reforming the 
State Secrets Privilege,'' has been signed by more than 40 
policy experts, former government officials, and legal scholars 
of all political affiliations. And I would ask that that report 
be included as part of the record in this hearing today.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hutchinson follows:]
           Prepared Statement of the Honorable Asa Hutchinson
    Thank you for the opportunity to testify today in support of 
legislation to provide critical reforms to the state secrets privilege. 
I am grateful for the leadership of this Subcommittee in holding this 
hearing on a subject of critical importance to both our national 
security and the security of individual rights.
    In addition to having served as a Member of Congress (R-AR), I have 
worked for many years in law enforcement and homeland security. I have 
served as United States Attorney, as Director of the Drug Enforcement 
Administration, and as Under Secretary for Border and Transportation 
Security at the Department of Homeland Security. Because of my law 
enforcement and security experience, I have a keen appreciation for our 
country's need to protect its national security information. However, 
my experience also demonstrates that it is important to reform the 
state secrets privilege to ensure that our courts provide critical 
oversight and independent review of executive branch state secrets 
claims. I believe that Congress needs to act to serve both goals, and 
help restore a proper balance between our need to safeguard national 
security information and our responsibility to ensure access to the 
courts for litigants.
    The state secrets privilege was originally recognized as a doctrine 
to protect particular evidence from disclosure in litigation, when such 
disclosure might threaten national security. In recent years, however, 
it has evolved from an evidentiary privilege into an immunity doctrine, 
which has blocked any litigation of cases involving national security 
programs. Over the past twenty years, courts have dismissed at least a 
dozen lawsuits on state secrets grounds without any independent review 
of the underlying evidence that purportedly would be subject to this 
privilege. Not only does this create an incentive for overreaching 
claims of secrecy by the executive branch, but it has prevented too 
many plaintiffs from having their day in court. For example, in the 
case of El-Masri v. United States, the trial court and the U.S. Court 
of Appeals for the Fourth Circuit relied on the state secrets privilege 
to dismiss a lawsuit by Khaled El-Masri, a German citizen who, by all 
accounts, was an innocent victim of the United States' extraordinary 
rendition program. The case was dismissed at the pleadings stage, 
before any discovery had been conducted. No judge ever examined whether 
there might be enough non-privileged evidence to enable the case to be 
litigated, such as evidence from public accounts of the rendition and 
an investigation conducted by the German government.
    In April of this year, the U.S. Court of Appeals for the Ninth 
Circuit issued a decision in Mohamed v. Jeppesen Dataplan, Inc., which 
reflected a very different and much more encouraging interpretation of 
the state secrets privilege. The court held that cases cannot be 
foreclosed at the outset on the basis of the state secrets privilege, 
and that the trial court must ``undertake an independent evaluation of 
any evidence sought to be excluded to determine whether its contents 
are secret within the meaning of the privilege.'' Such an independent 
review is essential to provide the necessary check on executive 
discretion. However, even if the Ninth Circuit's interpretation of the 
privilege stands after further litigation, it is still critical that 
Congress act to provide trial courts with the guidance they need to 
conduct such an independent review. The State Secrets Protection Act, 
H.R. 984, provides the type of legislative direction that would 
establish necessary oversight and a more appropriate balance in the 
application of the state secrets privilege.
    Having served in both the Congress and the executive branch, I have 
a full appreciation for the need for a robust system of checks and 
balances, and a genuine respect for the role of our courts in our 
constitutional system. I also understand the natural tendency on the 
part of the executive branch to overstate claims of secrecy and to 
avoid disclosure whenever possible. It is judges who are best qualified 
to balance the risks of disclosing evidence with the interests of 
justice. Judges can and should be trusted with sensitive information 
and they are fully competent to evaluate independently whether the 
state secrets privilege should apply to particular evidence.
    It is Congress' responsibility, and fully within its constitutional 
role, to enact such legislation to restore checks and balances in this 
area. Legislation to reform the state secrets privilege would not 
interfere with the President's responsibilities under Article II of the 
Constitution. On the contrary, the United States Constitution 
specifically grants Congress the power to enact ``Regulations'' 
regarding the jurisdiction of federal courts. U.S. CONST. Art. III, 
Sec. 2. This includes the power to legislate reforms to the state 
secrets privilege.
    Congress should reform the state secrets privilege and allow courts 
to independently assess whether the privilege should apply. I want to 
highlight several particular provisions of the State Secrets Protection 
Act, H.R. 984, that recognize this need for change and would institute 
reforms that I support.
    Section 6 of the State Secrets Protection Act would provide the 
most basic and critical reform, by requiring that whenever the 
executive branch asserts the state secrets privilege, the judge must 
review the claim, including reviewing the actual evidence asserted to 
be privileged, and must make ``an independent assessment'' of whether 
the privilege applies. Section 3(b) of the Act provides that this 
hearing may be conducted in camera, so that there would not be a risk 
that the review itself might disclose any evidence. Judges are well-
qualified to review evidence asserted to be subject to the privilege 
and make appropriate decisions as to whether disclosure of such 
information is likely to harm our national security. Judges already 
conduct similar reviews of sensitive information under such statutes as 
the Foreign Intelligence Surveillance Act (FISA) and the Classified 
Information Procedures Act (CIPA).
    Section 6(c) provides that ``The court shall weigh testimony from 
Government experts in the same manner as it does, and along with, any 
other expert testimony.'' Executive branch officials are entitled to 
the same respect and deference as any other expert witnesses but the 
judgment these officials make should not be without oversight. I do not 
believe it is appropriate, as the companion Senate bill does, to 
include language requiring that executive branch assertions of the 
privilege be given ``substantial weight.'' The standard of review in 
H.R. 984 provides proper respect for executive branch experts, whereas 
a ``substantial weight'' standard would unfairly tip the scales in 
favor of executive branch claims before the judge's evaluation occurs, 
and would undermine the thoroughness of the judge's own review. The 
standard of review in H.R. 984 would ensure that a court's independent 
review is meaningful and is not just a routine acceptance of executive 
assertions.
    Section 7(b): This provision requires that if the judge finds that 
certain evidence is protected by the state secrets privilege, the judge 
should also assess whether it is possible to create a non-privileged 
substitute for the evidence that would allow the litigation to proceed. 
If a non-privileged substitute is possible, the court must order the 
government to produce such a substitute. This provision would help 
restore an appropriate balance in national security litigation, by 
ensuring both that national security secrets are protected from public 
disclosure and also that litigation will be permitted to proceed where 
possible. Judges are fully competent to assess whether it is possible 
to craft a non-privileged substitute version of certain evidence, such 
as by redacting sensitive information.
    Section 7(c): This section would prohibit courts from dismissing 
cases on the basis of the state secrets privilege at the pleadings 
stage or before the parties have had the opportunity to conduct 
discovery. The provision would still permit dismissals on other 
grounds, such as for frivolousness. This section would help restore the 
doctrine to its proper role as an evidentiary privilege rather than an 
immunity doctrine, and would ensure that plaintiffs like Mr. El-Masri 
will be able to have a judge independently determine whether there is 
sufficient non-privileged evidence for their cases to be litigated.
    Other sections: Several other provisions of H.R. 984 are designed 
to ensure that judges have the tools they need to conduct their 
independent reviews of state secrets claims, and should counter any 
concern that judges may not have the necessary expertise and background 
in national security matters to make these determinations. For example, 
Section 5(b) of the bill instructs the court to consider whether to 
appoint a special master with appropriate expertise to assist the court 
in its duties, and Section 6(b) enables the court to rely on sampling 
procedures when the evidence to be reviewed is voluminous.
    These provisions would provide for independent judicial 
determinations of whether the state secrets privilege should apply and 
thereby help restore the critical oversight role of our courts. 
Granting executive branch officials unchecked discretion to decide 
whether evidence may be withheld under the state secrets privilege 
provides too great a temptation for abuse. I urge you to support these 
reforms contained in the State Secrets Protection Act and to help 
preserve our constitutional system of checks and balances. Finally, I 
am attaching to my prepared testimony a white paper released by the 
Constitution Project's bipartisan Liberty and Security Committee, which 
I have recently joined. The report, entitled Reforming the State 
Secrets Privilege, is signed by more than forty policy experts, former 
government officials, and legal scholars of all political affiliations. 
Although it was released before I joined this committee, I endorse its 
conclusions that judges should independently assess state secrets 
claims by the executive branch, and that Congress should clarify that 
judges, not the executive branch, must have a final say about whether 
disputed evidence is subject to this privilege.
                               __________

    Mr. Nadler. Without objection, that report will certainly 
be included in the hearing.
    [The information referred to follows:]

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                               __________

    Mr. Nadler. And I thank the witness.
    I will now recognize Mr. Grossman for 5 minutes.

TESTIMONY OF ANDREW GROSSMAN, SENIOR LEGAL POLICY ANALYST, THE 
                      HERITAGE FOUNDATION

    Mr. Grossman. Good afternoon, Mr. Chairman, Ranking Member 
Sensenbrenner, and Members of the Subcommittee. My testimony 
today concerns the consequences of the State Secrets 
Protections Act, which would severely limit the state secrets 
privilege.
    I have three points. First, this legislation is unnecessary 
because there is absolutely no evidence that the state secrets 
privilege has been abused. Second, it is unconstitutional 
because it ignores clear Supreme Court precedent of the 
President's power to safeguard national security secrets. And, 
third, this legislation would invite the courts to intrude on 
Congress's power and responsibility to make national security 
policy, upsetting the careful balances that Congress has 
struck.
    I will begin with some background. Contrary to often-
repeated claims, there is nothing sinister or unusual about the 
state secrets privilege. Seven separate requirements, including 
Department of Justice review and personal consideration by 
high-ranking Federal officials, ensure the privilege is used 
only when necessary to protect national security. And judges 
play a crucial role by ensuring that it has been properly 
invoked.
    Though the results may appear harsh in some cases, that is 
true of all privileges. For example, courts have cited the 
speech or debate clause to throw out suits against Members of 
Congress and other legislators, involving invasion of privacy, 
defamation, incitements to violence, age, race, and sex 
discrimination, retaliation for reporting sexual 
discrimination, and larceny and fraud. Yes, these are harsh 
results, but for a greater good: unfettered speech in this 
legislative body. In the same way, the state secrets privilege 
advances a greater public good: protecting our Nation.
    My first point today is that there is no evidence that the 
state secrets privilege is being abused or is being more 
frequently or in different ways than in the past. Data from 
1954 through 2008 show that its use is rare. In reported 
opinions, the privilege was asserted seven times in 2007 and 
just three times in 2008. According to Robert Chesney of Wake 
Forest University, the evidence does not support the conclusion 
that the Bush administration used the privilege with greater 
frequency than other Administrations.
    The data also shows the privilege is being used to protect 
the same national security interests as in the past. Over the 
previous four decades, most state secrets cases concerned 
intelligence programs, followed by military technology and 
contracts, and then diplomatic communications. That is the same 
pattern as today.
    The data also showed the government is not seeking harsher 
remedies, such as dismissal of cases, any more than it has in 
the past.
    Further, courts take seriously their duty to oversee their 
privilege. During the Clinton administration, courts refused to 
grant the requested privilege in 17 percent of opinions. That 
rose to 40 percent during the Bush administration. If anything, 
the courts have become less deferential.
    Finally, President Obama, once a critic of the privilege, 
now recognizes its great importance. Every President, going 
back to Lyndon Johnson, has reached the same conclusion.
    In sum, there is no evidence that the state secrets 
privilege is being misused, overused, or otherwise abused. That 
makes this legislation unnecessary.
    My second point is that it is also unconstitutional. Unlike 
most other privileges, this one is grounded in the 
Constitution, specifically the powers it commits to the 
President. The Supreme Court has said as much in case after 
case, stating expressly that this constitutional power 
protecting military or diplomatic secrets, the very things 
covered by the privilege.
    In my written testimony, I identify seven separate 
provisions of the act, including the core operative provision, 
that infringe on powers the courts have clearly stated belong 
to the executive. This legislation may also infringe on the 
judicial power by imposing a rule of decision on the courts 
with deciding some constitutional issues. That, too, would be 
unconstitutional. The result is that, based on its own 
precedents, the Supreme Court would most likely strike down 
this act.
    My third and final point is that this legislation empowers 
judges to usurp Congress's own powers and responsibilities. In 
the constitutional design, Congress plays a leading role in 
national security. This includes creating and funding defense 
programs, some of which do require secrecy and stealth. But the 
legislation would force courts to expose aspects of key 
intelligence programs even if they ultimately rule in favor of 
the government on the privilege issue. This would end or 
severely hamper these programs, upsetting the careful balance 
struck by Congress in making national security policy.
    But that is the goal of several of the groups that support 
this bill. It would give them a heckler's veto over programs 
they were unable to convince this legislative body to amend or 
to shut down. Perversely, some Members of Congress may welcome 
this result. By passing the buck to the courts, they could 
avoid the consequences of tough votes and controversial 
national security programs. Congress should not abdicate its 
responsibility or grant such legislative power to unelected 
judges.
    In conclusion, there is no justification for this 
legislation. Beyond being unnecessary, it is risky. Members of 
Congress should focus on the greater public good and look past 
the narrow interests of those who would use the courts to make 
policy.
    Thank you.
    [The prepared statement of Mr. Grossman follows:]
                Prepared Statement of Andrew M. Grossman

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                               __________

    Mr. Nadler. Thank you.
    I now recognize for 5 minutes Mr. Wizner.

   TESTIMONY OF BEN WIZNER, NATIONAL SECURITY PROJECT STAFF 
            ATTORNEY, AMERICAN CIVIL LIBERTIES UNION

    Mr. Wizner. Thank you, Chairman Nadler, Ranking Member 
Sensenbrenner, Chairman Conyers, and distinguished Members of 
this Subcommittee. I appreciate this opportunity to explain the 
ACLU's interest in reform of the state secrets privilege, an 
issue of critical importance to all Americans concerned about 
the unchecked abuse of executive power.
    I also want to commend Chairman Nadler and the cosponsors 
of the State Secrets Protection Act, H.R. 984. If enacted, it 
would place reasonable checks and balances on the executive 
branch, re-empower courts to exercise independent judgment in 
cases of national importance, and protect the rights of those 
seeking redress through our courts system.
    More than 50 years have passed since the Supreme Court 
formally recognized the states secrets privilege in the United 
States v. Reynolds. During that time, Congress has never 
legislated to place reasonable restraints on the use of the 
privilege or to provide standards or guidelines to increasingly 
confused and divided Federal courts.
    Congress's silence on this critical issue has become all 
the more troubling in recent years, as we have seen the state 
secrets privilege mutate from a common-law evidentiary rule 
designed to protect genuine national security secrets into an 
alternative form of immunity that is used more and more often 
to shield the government and its agents from accountability for 
systematic violations of the Constitution and this Nation's 
laws.
    The ACLU has been involved in a series of high-profile 
cases in which the government has invoked the state secrets 
privilege in response to allegations of grave government 
misconduct, not simply to block access to specific information 
that is alleged to be secret, but to dismiss lawsuits in their 
entirety at the outset. This has happened in cases involving 
rendition and torture, warrantless surveillance, and national 
security whistleblowers. The dismissal of these suits does more 
than harm the individual litigants who are denied opportunity 
for redress. It deprives the American public of a judicial 
determination regarding the legality of the government's 
actions.
    I have been personally involved in a number of these cases, 
including the case of Khalid El-Masri, a German citizen who was 
detained incommunicado by the CIA for nearly 5 months in a 
squalid Afghan prison in a tragic case of mistaken identity. 
Mr. El-Masri's case received such prominent press coverage in 
the United States and abroad that he truly became the public 
face of the CIA's extraordinary rendition program. Nonetheless, 
Mr. El-Masri's lawsuit was dismissed on the basis of an 
affidavit from the CIA, the very entity charged with 
wrongdoing, that characterized the entire subject matter of Mr. 
El-Masri's suit as a state secret. As a result, the one place 
in the world where Mr. El-Masri's ordeal could not be discussed 
was in a U.S. court of law.
    A second ACLU lawsuit on behalf of victims of the CIA's 
rendition program, this one targeting a Boeing subsidiary, 
Jeppesen Dataplan, that provided flight services, enabling the 
clandestine transfer of our clients to overseas prisons where 
they were tortured, was similarly dismissed on the basis of a 
CIA affidavit alone. And, as this Subcommittee knows, when the 
case reached the Ninth Circuit Court of Appeals in February, 
the Obama administration, in just its third week in office, 
stood behind the Bush administration's broad claim of state 
secrets.
    In April, the Court of Appeals reversed the dismissal of 
the suit, holding that the government's state secrets claim was 
premature and overbroad. It held that the government's sweeping 
theory of state secrets, quote, ``had no logical limit and 
amounted to an argument that the judiciary should effectively 
cordon off all secret government actions from judicial 
scrutiny, immunizing the CIA and its partners from the demands 
and the limits of the law.'' The court held that the 
government's legitimate secrecy concerns would be amply 
protected during further proceedings, where the privilege could 
be invoked with respect to discrete evidence, not an entire 
lawsuit.
    It will come as no surprise to the Subcommittee that, in my 
opinion, the Ninth Circuit got the law exactly right. But a 
single correct judicial opinion does not relieve Congress of 
its obligation to act in this area. Only Congress can provide a 
comprehensive scheme applicable to all courts that addresses 
all disputed aspects of the state secrets privilege and 
resolves the conflict and confusion in the courts. The need for 
uniform standards and practices is as urgent today as it was 
prior to the Ninth Circuit's ruling.
    At a press conference the day after the Ninth Circuit's 
ruling in the Jeppesen case, President Obama was asked about 
his Administration's position on state secrets. The President 
responded, ``I actually think that the state secrets doctrine 
should be modified. I think right now it's overbroad. Searching 
for ways to redact, to carve out certain cases to see what can 
be done so that a judge in chambers can review information 
without it being in open court--you know, there should be some 
additional tools so that it's not such a blunt instrument.''
    Congress should provide those additional tools by enacting 
H.R. 984.
    Thank you.
    [The prepared statement of Mr. Wizner follows:]
                    Prepared Statement of Ben Wizner

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                               __________

    Mr. Nadler. Thank you.
    I'll begin the questioning by recognizing myself for 5 
minutes.
    Judge Wald, during markup of the bill in the Subcommittee 
in the last Congress, one of my colleagues cited your testimony 
last year as supporting a requirement that courts grant, quote, 
``substantial weight'' to government assertions of the harm 
likely to be caused by public disclosure of information the 
government seeks to withhold as a state secret.
    Is that accurate? Do you believe we should require the 
courts automatically grant special deference, substantial 
weight, or utmost deference, or something similar, to 
government assertions? That is the standard in the Senate 
companion bill but not in this bill, as you know.
    Judge Wald. Yeah, Chairman Nadler, I'm glad you gave me an 
opportunity to address that point. When I was here before the 
House Judiciary Committee last year, you did not have a bill 
yet. No draft bill had actually been submitted. We were talking 
about principles of legislation.
    One of the then-Administration officials raised the 
proposal that ``utmost deference'' be the standard. And in that 
colloquy that followed, I said, well, there are other places in 
legislation, like Exemption FOIA 1, that use ``substantial 
weight.''
    I believe, though I don't have that quote right in front of 
me, but I believe I also attached to that what I later said in 
a supplemental letter that went to the House Judiciary 
Committee, I meant the same kind of weight that any expert 
witness gets. And I gave a quote from Skelly Wright in my 
former court in Ray v. Turner, in which he defines 
``substantial weight'' to mean only the weight that is 
appropriate by the demonstration of qualifications, expertise, 
et cetera.
    Mr. Nadler. Thank you. So you think the language in the 
current bill----
    Judge Wald. I like the language in the current bill better. 
I think it's confusing. I'm sorry if I contributed to the 
confusion.
    Mr. Nadler. That's fine. Thank you.
    Now, if the language in the current bill is adequate to 
account for government expertise, what are the risks, if any, 
of putting in language about substantial weight or utmost 
deference? Why shouldn't we do that?
    Judge Wald. Because I think that the basic principle and 
the one that was endorsed by the Supreme Court in Reynolds is 
the judge should be the decisionmaker as to whether the 
privilege applies, and he ought to make an independent 
assessment. Other parts of your bill say that. And I think it 
takes away from that underlying principle if you start saying, 
``Well, you make an independent assessment, but you'd better 
give a lot of weight, a lot of deference here,'' there.
    Mr. Nadler. Okay. Thank you.
    Congressman Hutchinson, those who oppose independent 
judicial review of government secrecy claims often argue that 
it is the President and the executive branch, not the courts, 
that have the greater expertise and responsibility for 
safeguarding national security.
    This view, in my opinion, underestimates the ability and 
the responsibility of the courts in our constitutional scheme, 
and it also seems to overlook what you described in your 
testimony as, quote, the natural tendency on the part of the 
executive branch to overstate claims of secrecy and to avoid 
disclosure whenever possible, end quote.
    Doesn't the argument regarding the superior expertise of 
the executive branch also overlook the potential conflict for 
the government in the case where the information it seeks to 
withhold might prove embarrassing, politically or otherwise, 
might provide evidence of unlawful conduct or otherwise 
undermine the position it is taking in the case?
    Mr. Hutchinson. Well, the key point is that we have to give 
the courts the tools and the guidance to assure an independent 
review. Any language, such as substantial deference, would 
undermine that independent review.
    In terms of the ability of the courts to weigh expert 
testimony, that's what's marvelous about our judiciary and our 
rule of law in this country, is that you can have a judiciary 
listen; they don't have to be experts on patent law to make a 
fair decision or an expert in engineering to make a fair 
decision in an engineering case.
    Mr. Nadler. So you would trust the expertise of the courts?
    Mr. Hutchinson. The expertise of the courts to weigh fairly 
the expertise under normal guidelines of what's presented to 
them.
    Mr. Nadler. Thank you.
    Mr. Wizner, in cases that you have handled, the government 
has argued that the entire subject matter, like rendition to 
torture, is a state secret. In the last Congress, we held 
hearings on rendition. The government acknowledged that, quote, 
rendition is a valuable tool in the war on terror, end quote, 
and other governments have concluded, have conducted extensive 
examination of particular cases.
    In view of these facts, what are we to make of the 
government's argument that the entire subject is too secret and 
warrants outright dismissal of the cases?
    Mr. Wizner. I think, Chairman, that it is evidence that the 
government's approach to secrecy in these matters is somewhat 
more opportunistic and malleable than it may seem. On very day 
that I was in court in San Jose, California, the Jeppesen case, 
responding to government lawyers' assertions that that case 
should be thrown out on subject matter grounds, former CIA 
Director Hayden was in Congress testifying that the CIA had 
water-boarded three individuals.
    And so that, when it is in the government's interest to 
reveal those matters for whatever reason, the government is 
quite forthcoming with that information if it needs to put it 
in the public record to ensure that it can prosecute or execute 
alleged terrorists. When it finds itself in the position of 
being a defendant in a civil case, the same information becomes 
secret as a way of avoiding accountability.
    Mr. Nadler. Thank you.
    Without objection, I will grant myself 1 additional minute, 
so you can answer one more question.
    Mr. Wizner, why should the government be required to prove 
item-by-item that disclosure of particular information, a 
particular piece of evidence, would harm national security? Why 
isn't it sufficient for the court to accept as reasonable the 
government's assertion that, in its expert view, litigation 
will require revelation of state secrets at some point, that 
dismissal is justified at the initial pleading stage?
    Mr. Wizner. Judges are not clairvoyant. Judges are not in a 
position at the beginning of the litigation to determine what 
evidence will or will not be necessary for the parties to make 
or defend their claims before that evidence has even been 
presented by either side.
    And when that argument is being advanced by an executive 
branch official who stands to gain from the dismissal of the 
lawsuit, I think courts need to be more wary about it because 
of the inherent conflict of interest that's there.
    It is never a waste of judicial resources to allow parties 
to have their day in court and to try to make their case. And a 
court cannot know at the outset that a plaintiff will not be 
able to come up with alternative means of proving its case 
without recourse to state secrets.
    Mr. Nadler. Thank you very much.
    And that concludes my questioning for the moment, maybe 
more than a moment.
    I now recognize the distinguished Ranking Member of the 
Subcommittee, the former Chairman of the Committee, for 5 
minutes, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thank you very much.
    Judge Wald, I have a quote from your testimony before the 
predecessor of this Committee, Subcommittee, on January 29, 
where you talk specifically about substantial weight being 
given to a government assertion. And you seem to approve that, 
and you also quoted the FOIA statute that requires a court to 
give substantial weight to a government assertion when someone 
is trying to get some information under the Freedom of 
Information Act.
    Have you changed your mind since last year on this subject, 
and if so, why?
    Judge Wald. I have not changed my mind. Perhaps I am in 
that close group of people currently who wish they had stated 
things a little bit more clearly the first time around.
    Mr. Sensenbrenner. We all have that problem.
    Judge Wald. Yes, yes, but I do want to just, on this 
particular--as I pointed out, when I was before this Committee, 
there wasn't any bill. There wasn't anything that we were 
focusing on specifically. We were talking about principles.
    When I talked about substantial weight, I used it as an 
example of a standard that was in FOIA exemption. But I do want 
to make one thing clear, Congressman Sensenbrenner. That is, it 
isn't even in the FOIA text. It's only in the conference 
committee report. So we don't even have an example where it's 
actually in the statute.
    Now, many judges have cited it from the conference report, 
but it actually was in that thing we call legislative history.
    I did use substantial weight the way, in my view, even 
looking at the phrase, I interpret it the way Judge Wright did, 
which says, and I have put that quote in my testimony here 
today as well as in the supplemental letter to the Committee, 
which says it does not mean some kind of blanket notion that 
when the witness comes and says, I represent the government, 
immediately, he gets deference--he or she gets deference.
    That it means, according to Judge Wright, and I think 
that's the correct meaning, it means that you get the kind of 
weight, special weight from the judge that the qualifications, 
experience, and inherent persuasiveness and coherence of the 
testimony render it.
    I could give you an example, but I don't want to use up 
other people's time.
    Mr. Sensenbrenner. Well, let me pursue this further.
    Maybe I should compliment you as it is starting to sound 
like Justice Scalia, who doesn't think that anything we say 
over here makes any difference when a matter gets in court.
    But, even if you accept legislative history using 
substantial weight in the FOIA request, it seems to me that the 
type of material usually requested in FOIA is much less 
sensitive than a material where an allegation of a state secret 
is asserted by the government.
    And doesn't it concern you that we would be having 
different standards if we have different types of weight that 
are to be accorded to government assertions or Administration 
assertions when records or information are attempted to be 
sought from the government?
    Judge Wald. Well, number one, I am not sure. I simply don't 
have the experience, although I have encountered both kinds of 
cases on the bench, both FOIA Exemption 1 and a form of state 
secrets. But I don't have the wide experience to validate what 
you say that somehow state secrets are likely to involve much 
more sensitive material.
    In fact, my chief experiences with FOIA Exemption 1, and 
there were some very sensitive materials that were raised in 
some of those cases, including the aborted helicopter rescue of 
the people at the end of the Carter administration, et cetera.
    But here I want to make another point, and that is that the 
Jeppesen case, I think, if I have the right case, specifically 
addressed this and pointed out that they believed that 
different standards might be appropriate because what is at 
stake in FOIA Exemption 1 is simply a citizen wanting to get 
the information, not having to show any particular injury or 
any particular stake in the balancing of equities; he just 
wants it.
    On the other hand, if you are in a civil case, where there 
is an allegation of injury and serious injury, the stakes are 
much more important. So I am not sure.
    And the third thing I want to point out is judges have 
interpreted FOIA Exemption 1 differently, as I have pointed 
out. Some won't even look at the material and take the 
government's affidavit at face value. But others look into the 
affidavit, and they say, well, it doesn't make a lot of sense 
to me, and I don't think it's credible, and I am not going to 
give it.
    Mr. Sensenbrenner. That gets to my final question. 
Currently we do have a body of law with a substantial deference 
standard that is in the current law that this legislation 
repeals and does not substitute another standard and basically 
makes this a matter of judicial discretion.
    Aren't we likely to get less certainty on what is a 
legitimate claim of suppression of information if we start from 
scratch on what the case law would be rather than keeping the 
current standard in the law?
    Judge Wald. I think not, because, as I said in my opening 
remarks, you have got--don't have a consistent body of law with 
a consistent standard now.
    And, so, therefore, I think it's all over the map. I think 
it would be--we could almost begin anew with the standard 
that's in this law and begin to build that body. I don't think 
we are going to lose anything in consistency from the current 
law.
    Mr. Sensenbrenner. Thank you.
    I yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes the distinguished Chairman of 
the Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Since I know the President and the Attorney General better 
than anybody in this room, would you explain to me why the 
President is so ambivalent and why the Attorney General didn't 
send anyone to this hearing?
    Judge Wald. Who is that addressed to, I am sorry?
    Mr. Conyers. Anybody.
    Mr. Grossman. If I could, there is a saying that I have 
heard from a lot of my friends who have been in the military, 
and that is, where he stands depends on where he sits.
    When Senator Obama, when President Obama was in the Senate, 
and when he was campaigning for the Presidency, he had very 
different position on the state secrets privilege. Now that he 
is in the executive branch, and now that he has seen the 
usefulness and the utility of that and the importance of it, he 
seems to have reached a very different view.
    I can understand that might be politically inconvenient for 
him to come here and say that, but I think there's some 
evidence that that is what has occurred.
    Mr. Conyers. I was afraid you would be the one that would 
answer my question.
    Mr. Delahunt. Would the gentleman yield for a moment?
    Mr. Conyers. Yes.
    Mr. Delahunt. Yes. Mr. Grossman indicated there is some 
evidence. What is the evidence? Are you speculating?
    Mr. Grossman. I am speculating based on the----
    Mr. Delahunt. You're speculating. That's fine. I yield back 
to the gentleman.
    Mr. Conyers. No, please, go ahead. Why?
    Mr. Grossman. Both--when they were in the Senate, both 
Senator Biden and Senator Obama were both very strong critics 
of the state secrets privilege.
    Since assuming office, the Administration has used the 
privilege in at least about three cases of which we are aware.
    And in at least, in all three of those cases, were very 
controversial invocations of the privilege, cases that have 
resulted in much debate in this Congress as well as in the 
public sphere. These are the sorts of cases that Senator Biden 
especially was critical of prior to joining the executive 
branch.
    So, yes, it is speculation. I have not asked anyone in the 
executive branch what their exact thinking on this is, but I 
think a reasonable conclusion can be drawn by the facts of what 
has actually occurred.
    Mr. Conyers. Well, since you have been so expert with the 
President, can you explain the Attorney General's failure to 
provide a witness?
    Mr. Grossman. No.
    Mr. Conyers. Anyone else want to weigh in on this?
    Mr. Hutchinson. Well, I will just say, I think that, I 
appreciate the fact that the Attorney General is looking within 
the executive branch as to refining their internal procedures 
on assertion of the state privileges doctrine.
    But, to me, that really raises the profile and the 
necessity of Congress to act.
    And so whether here or not, to me, they are working on 
their branch of government, but I am delighted the Congress is 
considering it at the same time, more comprehensive reform.
    Mr. Conyers. Well, Mr. Franks and I are the two people that 
raised the question of unconstitutionality more than anybody I 
can think of in this Committee.
    What do you think about the unconstitutional charge on this 
measure, Mr. Wizner?
    Mr. Wizner. Well, I share the views expressed by Judge Wald 
in her opening remarks that Congress has the constitutional 
authority to legislate in this area.
    I would only add that my understanding of the arguments 
that this bill would be unconstitutional would apply to equal 
force to the Freedom of Information Act, to the Foreign 
Intelligence Surveillance Act, and to the Classified 
Information Procedures Act.
    These are all bills that give courts tools to handle 
sensitive and classified information and create procedures for 
courts to do that. None of those intrude on the President's 
constitutional authority, and neither does this legislation.
    Mr. Conyers. Judge Wald, would you further comment?
    Judge Wald. Well, I certainly agree with what Mr. Wizner 
said.
    All privileges, not all privileges, but many privileges 
have little, you know, sort of tinges of constitutionality 
about them, the executive privilege certainly. And you could on 
all go back and say, we need this; the executive has got to 
have this. It has got to have more power in order to fulfill 
its commander-in-chief powers or to fulfill, in the case of 
executive privilege, its ability to run the government.
    But yet I think that these privileges have been considered 
to be susceptible to congressional concern going way back to 
1969. When we were going to have Federal rules of evidence with 
more detail, there actually was one drafted to deal with the 
state secrets privilege. Then Congress abandoned the attempt to 
have a very specific set of codes on it.
    So I don't think the Supreme Court in Reynolds or anyplace 
else suggested that this was some kind of sacrosanct 
constitutional privilege that couldn't be touched.
    Mr. Conyers. Asa Hutchison, what say you?
    Mr. Hutchinson. Well, I think the argument is that somehow 
legislating in this area impedes the executive from his 
national security responsibilities in protecting our country. 
And I don't see any challenge to that authority at all.
    The legislation that's being considered doesn't stop them 
from exercising state secrets, from implementing national 
security programs. It doesn't change the fact that they can 
assert that privilege.
    It just says that, when it gets to the courts, after the 
fact always, when it's going to be reviewed, then there's going 
to be a process in our system of checks and balances.
    So I do not see this as taking away from the authority of 
the chief executive in terms of national security.
    Mr. Conyers. Well, if we were in court, Mr. Grossman, you 
would be on the short end of this discussion.
    Mr. Grossman. That is perhaps true, numerically speaking.
    I think if you look at the Supreme Court's decisions, their 
opinions, in Chicago and Southern Airlines, in Nixon, in Egan, 
time and time again, the Court has said that secrecy is in some 
domains a necessary incidence to the executive power and the 
commander-in-chief power. In other words, those powers cannot 
be fully exercised without a strong degree of secrecy.
    Further, the Court has actually said that the executive has 
an innate constitutional power to control access to classified 
information. In other words, who is trustworthy enough to 
receive certain types of classified information, specifically 
in the diplomatic affairs, as well as in military and national 
security affairs.
    It is my opinion that this legislation intrudes on that 
power that the executive has. For that reason, it would be 
unconstitutional.
    Mr. Nadler. Would the Chairman yield for a moment?
    Mr. Conyers. Yes.
    Mr. Nadler. Thank you.
    Mr. Grossman, you cite these cases where the Supreme Court 
has said that secrecy is inherent in the executive.
    But it is true, is it not, that the Supreme Court has 
always said these powers are not unlimited, not absolute. The 
Pentagon papers case, for instance, was a limitation on 
secrecy. In fact, no executive power, no congressional power, 
for that matter, is absolute.
    Mr. Grossman. You are correct that no power is absolute.
    Mr. Nadler. Thank you.
    Mr. Grossman. At the same time, no power is empty either. 
And to devoid the executive of any discretion whatsoever on----
    Mr. Nadler. Wait a minute. This bill, what we are 
discussing, doesn't devoid anything. It simply subjects the 
executive's power of secrecy in the context of Court cases to 
supervision by the Court and to ultimate approval by the Court. 
That's what it does.
    So just to talk about empty--to just talk and throw around 
phrases about the executive's power, this and that, in fact, 
the Congress's power under article I--section--I forget which 
we quoted before--to regulate evidence, to regulate the 
admissibility of evidence; it's a very specific grant of power, 
and that's what this is doing.
    Mr. Grossman. I would argue, however, that that particular 
grant of power is not unlimited. For example----
    Mr. Nadler. So you would argue that a general power 
supersedes a specific grant of power?
    Mr. Grossman. I would say it is not unlimited in the sense 
that, for example, this body could not abrogate the fifth 
amendment privilege against self-incrimination despite its 
power to regulate the----
    Mr. Nadler. Because there's a specific limitation on that 
power. The general rule of instruction is that specific 
supersede generalities, and you are reversing that.
    Mr. Grossman. I would disagree. I think, very specifically, 
the Constitution assigns the executive power and the 
constitutional power to the President of the United States. If 
secrecy is a necessary incidence of that power, then that is 
the President's power.
    Mr. Nadler. Okay.
    Mr. Conyers. Well, Mr. Grossman, if we were in court, I 
would ask you to come back to chambers after we finished our 
session, but I appreciate your constructive attempts to defend 
your proposition.
    And I yield back, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now recognize the gentleman from Iowa for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    Mr. Grossman, I want to compliment you on the nimble 
response to the Chairman of the full Committee.
    First, though, I will welcome Mr. Hutchison back to the 
Judiciary Committee, and I thank all the witnesses for your 
testimony.
    I would first like to ask Mr. Hutchinson, as I was able to 
hear most of the testimony here and review some of it in print 
and look back over the history of this country, and wonder when 
it is that I have been alarmed that the state secrets doctrine 
or executive privilege has caused someone to lose their rights 
or their privacy or made the Nation less safe, or was there 
anything in history that we needed to know about that we 
weren't able to learn from because it was rolled up in 
executive privilege.
    The bottom line, and my question is, Mr. Hutchinson, what 
are we trying to fix here?
    Mr. Hutchinson. You know, and that's where--I am not coming 
to this hearing in a critical fashion. Others have had 
different experiences.
    I am coming to this from the standpoint that, regardless of 
the history of it, we have responsibility to make sure the 
potential for abuse is minimized by a system of checks and 
balances.
    And I come at this as a conservative. I do not believe, in 
an unfettered and unchecked executive branch anymore than I 
believe in an unfettered and unchecked judiciary branch. We all 
have checks and balances.
    And so here to say the executive can assert a state secrets 
privilege without any review, with a broad authority, unbridled 
authority, I think goes against the principles of our Founding 
Fathers. So that's sort of the direction I am approaching it.
    Mr. King. Well, I appreciate that. And I just--this is a 
point of information, as a long-time Member of Congress and 
esteemed former Member of this Committee, I'd ask if you have 
ever gone into a classified hearing, well, a classified 
hearing, given up your BlackBerry and your cell phone and come 
back and recovered that, and then stepped in front of a 
television screen and seen the similar briefing already coming 
out on the news almost simultaneously.
    Mr. Hutchinson. Yes.
    Mr. King. I think all of us have. So that's the point of my 
concern. I wonder if you care to speak to that.
    Mr. Hutchinson. And your point is well taken, that there is 
a history, and I might say I think that, of other branches of 
government that have spoken about classified information, the 
executive branch actually excels in that. And so often, 
something is classified, and 2 days later, you will see an 
official go out and speak about that subject.
    Now, I think that the track record of the courts is totally 
different. I think part of it is they don't have to stand for 
election in the Federal judiciary.
    And so they have a track record that is extraordinary in 
protecting classified information, both with the FISA courts, 
that I think has been exemplary, but also with the Classified 
Information Procedures Act.
    Mr. King. Yes, actually, I agree with the point that you 
have made, and I know it was made in the testimony earlier. I 
am glad it was brought out again, and I thank you for your 
response.
    I turn to Mr. Grossman, in light of the nimble nature that 
you have responded to previous comments or questions, I would 
ask you if you could address this panel on the limit or the 
scope of the existing executive privilege state secrets 
doctrine.
    Let me just say hypothetically, if there was a White House 
that had contracted with an enterprise that had the trappings 
of a criminal enterprise to engage in as a contractor and to 
working with developing the Census, which happens of course 
every 10 years here in the United States, and if the results of 
that census might dramatically change the congressional 
districts in America, change the political dynamics in America, 
if those results of counting the people were maybe extrapolated 
by a formula rather than the actual constitutional requirement 
to count people, and if that enterprise that appeared to be a 
criminal enterprise were something that happened to be also 
supportive of turning out the vote for that very same White 
House, would there be able to express or assert an executive 
privilege that would keep us from finding out the details of 
that contractual organization?
    Mr. Grossman.
    Mr. Grossman. No, I do not believe that would be the case 
for the reason that that particular organization that you 
describe as well as the purpose to which that relationship is 
directed, do not concern national security. They do not concern 
military affairs, and they do not concern----
    Mr. King. I thank you, Mr. Grossman.
    And then into this record I would like to point out that 
there are many more suspicious activities taking place with 
that hypothetical organization, which I will now name as ACORN. 
And I would like to see this Committee look into ACORN.
    And I would ask the Chairman of the full Committee to 
reconsider his reconsideration. And I would ask the Chairman of 
the Subcommittee to take a look at the evidence, that has been 
filed into this record, which is substantial and purely 
justified an investigation of ACORN.
    I would ask that you do so.
    And I would yield back the balance of my time.
    Mr. Nadler. And I will say that, after you join as a 
cosponsor of this bill, I will consider that request.
    Mr. King. Is that a deal?
    Mr. Nadler. I now recognize for 5 minutes the distinguished 
gentleman from Massachusetts.
    Mr. Delahunt. Yes, thank you, Mr. Chairman.
    And let me extend a personal welcome to our former 
colleague and my friend, whom I remember having breakfast with 
during our first term together here in the Congress, talking 
about the separation of powers and other issues, as I am sure 
you remember, Asa.
    It's great to have you here.
    And by the way, you are sorely missed. It would be good to 
have you back on this side of the dais.
    And I read your testimony, and I am in total agreement. I 
think you have really captured what the issues are.
    And when we talk about the separation of powers, what we 
are really talking about are limitations on the power of each 
of the coequal branches.
    And as I listen to Mr. Grossman, his version, or his 
understanding of article II, is clearly in line with, I think, 
Mr. Cheney's and Mr. Addington's.
    And I, for one, believe that what has occurred over a 
period of time is the accretion of simply too much power, you 
know, to the executive. And, again, I want to be clear that 
this is no partisan tint to it. I think we are really talking 
about core constitutional order here. And people can have 
disagreements in terms of the powers of the executive.
    And let me put this out. You know, when we talk about state 
secrets, underlying that is the power to classify, and I think 
what we have failed to do as a Committee is to examine the 
process of classification, because what I see again and again 
is classification of material that is later declassified or 
comes, as you suggest, or as the gentleman from Iowa indicated, 
goes into the public domain, and everyone is perplexed simply 
because there appears to be no rational basis for classifying 
that information.
    So, you know, Mr. Grossman seems to have great confidence 
in the executive.
    His testimony is that there's seven separate requirements, 
including Department of Justice review and personal 
consideration by high-ranking Federal officials, ensuring that 
the state secrets privilege is used only when necessary to 
protect state secrets.
    And I respect the sincerity of his belief. Yet, at the same 
time, that, in my judgment, is not what the Founders designed 
when they created the Constitution and that there was meant to 
be these checks and balances. It's a distrust of government, if 
you will.
    You indicated you are a conservative. I share your 
conservatism in this particular area because it is so 
fundamental.
    You know, secrecy really is the hallmark of 
totalitarianism, and transparency is clearly an aspect of 
viable, healthy democracy. And I think we have got to keep 
that. We are out of balance. We are out of kilter now.
    I am not here to defend the Obama administration. This is 
something that the United States Congress must do to reorder, 
if you will, the balance of powers and the separation of 
powers.
    We ought to be looking at, how are things classified? I 
know how things are classified in some agencies. There's 
somebody in a cubical somewhere that's just redacting. You have 
experienced that.
    Mr. Grossman, you make a statement that says that it could 
be unduly burdensome for the courts to have to actually review 
the information. What leads you to that conclusion?
    Mr. Grossman. That it would be unduly burdensome for courts 
to review classified information?
    Mr. Delahunt. Right.
    Mr. Grossman. In certain cases, essentially, those that are 
challenging extensive secret programs, there may be enormous 
amounts of data that were subject to discovery.
    Mr. Delahunt. How many of these cases you have been 
involved in?
    Mr. Grossman. Directly?
    Mr. Delahunt. Right.
    Mr. Grossman. I am not a litigator.
    Mr. Delahunt. The answer is, you haven't been involved in 
any of these cases?
    Mr. Grossman. I am a researcher. I do not litigate cases. 
That is----
    Mr. Delahunt. Fine. Well, let me suggest to you, I have 
been involved, and as I know Mr. Hutchinson has as well, as a 
prosecutor in numerous cases. I have interacted with judges who 
are trial judges.
    Let me assure you, the judiciary has the capacity; to 
suggest it's an undue burden on the judiciary simply is not 
accurate. And you ought to speak to some litigators and some 
judges before you make such statements, and I say that to you 
with respect.
    Mr. Nadler. Thank you, Mr. Delahunt.
    The gentleman from Arizona is recognized for 5 minutes.
    Mr. Franks. Thank you very much, Mr. Chairman.
    I, too, want to welcome my very respected friend, Asa 
Hutchison.
    You know, I understand he is a little bit on the other side 
of the issue here today in a sense, but it just shows that even 
the most sage and wise among conservatives can become a little 
disoriented now and then.
    But, no, actually, Mr. Chairman, I know that he is coming 
from essentially the same foundation and perspective that I do, 
perhaps come to a slightly different conclusion.
    But we are very glad that you are here and thank you for 
your service, sir.
    Mr. Chairman, I can't help but notice that the pattern that 
seemed to come from the conversation you had with Mr. Grossman.
    You know, this Administration recently decried enhanced 
interrogation, and certainly in the campaign did the same. And, 
of course, as you also know, they reserved unto themselves the 
right to use the same techniques if they thought they were 
necessary.
    Just recently, just, I think, today, the Administration 
called--Mr. Obama called the Iraq war a war of choice. And yet 
he chooses to continue to prosecute that war, and he has a 
withdrawal timetable, essentially the same as the Bush 
administration.
    The Guantanamo Bay issue has been brought up a great deal, 
and yet it appears that the result will be either terrorists in 
the United States subject to all of our constitutional rights 
or the creation of something essentially the same as Guantanamo 
Bay.
    The surveillance techniques that were decried so profoundly 
by the Obama administration and Obama campaign have been 
essentially left in place the same way.
    I even heard the President the other day say that we cannot 
sustain this deficit spending. It's enough to really amaze you 
sometimes.
    The Obama--the Justice Department has invoked the state 
secrets privilege in three court cases since the President took 
office. According to the Washington Post editorial page, the 
Obama administration's position on state secrets makes it hard 
to distinguish from its predecessor.
    According to USA Today's editorial page, ``The Obama 
administration's decision to embrace the Bush legacy on the 
state secrets doctrine has all the elements of hypocrisy.''
    Anthony Romero, the executive director of the ACLU, has 
written that, quote, when it comes to key national security 
policies, the Obama administration is continuing along the path 
paved by the previous Administration, end quote. The new 
Administration has embraced or only superficially modified 
several policies held over from the Bush era, including the use 
of the state secrets claim that the Justice Department invoked 
last month to throw out the ACLU suit on behalf of rendition 
victims.
    This has not changed. This is definitely more of the same.
    Now, Mr. Chairman, I just got to tell you, I am thankful 
that Mr. Obama has had some epiphanies lately. I hope that he 
accelerates those epiphanies, because I think the national 
security of the community and the economic future and the 
constitutional foundations of the Nation are at stake.
    But with that said, I am going to give Mr. Grossman an 
opportunity, the ACLU said this has not changed, this is more 
of the same. And I am going to give you a chance to agree or 
disagree with the ACLU director.
    Mr. Grossman. I agree entirely, and I think its quite 
heartening. I think it demonstrates that this is not a partisan 
matter. This is something, it is not a political matter. It's 
about the safety of our Nation, and it's something where, 
between political--I am sorry, between Presidential 
administrations, there has been no disagreement.
    Mr. Franks. Well, Mr. Chairman, I guess that's my main 
point. I know I took the opportunity to express some feelings 
that the Administration has been hypocritical in some of the 
attacks that it made on the previous Administration and has 
come to some realities that are always easy to ignore in a 
campaign.
    What is important here, I think, is for all of us to 
realize that truth and time travel on the same road and that 
truth always has the last word and that somehow, perhaps in 
this institution and in our campaigns, we should try to figure 
out what's right instead of who is right all the time.
    And with that, I yield back. Thank you.
    Mr. Nadler. I thank the gentleman.
    I think the purpose of this hearing is, regardless of the 
position of any Administration, to figure out what is right, 
not who is right. And I agree with the gentleman in that.
    I thank the witnesses.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair written questions to the witnesses, 
which we will forward and ask the witnesses to respond as 
promptly as you can so that their answers may be made part of 
the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    Without objection, I thank the witnesses and the Members.
    With that, this hearing is adjourned.
    [Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]










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