Testimony of Patricia M. Wald

before the
Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Civil Liberties

Hearing on Reforming the State Secrets Privilege

January 29, 2008

Chairman Nadler, Committee Members:

Thank you for inviting me to testify briefly today on the state secrets privilege which is being increasingly raised as a determinative issue in federal court civil litigation involving alleged violations of civil and constitutional rights. My testimony will deal with the capability of federal judges to administer the privilege in a manner that will not endanger national security at the same time it permits litigants to the maximum degree feasible to pursue valid civil claims for injuries incurred at the hands of the government or private parties. In that regard let me make a few points.

1. The state secrets privilege is a common law privilege originating with the judiciary which enunciated its necessity and laid down some directions for its scope in cases going back to the nineteenth century but more recently highlighted in United States v Reynolds, 345 U.S. 1 (1953). Reynolds recognized the government’s privilege in that case to refuse to reveal an airplane accident report in private injury litigation because of a “reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged” Id. at 10. (as you undoubtedly know it turned out that there were no such secrets in the report). Since Reynolds, courts have been deciding cases where the government raises the privilege on their own in terms of its scope and its consequences and producing often inconsistent results. There is a wide consensus in the legal community as the American Bar Association Recommendations and Report demonstrate that the importance of the issue and the varying results of leaving the implementation of the privilege totally within the discretion of individual judges militate toward the exercise by Congress of its acknowledged power under Article I, Section 8 and Article III, Section 2 of the U.S. Constitution to prescribe regulations concerning the taking of evidence in the federal courts. Again as you are aware Congress has legislated many times on the Rules of Evidence governing federal court procedures including those for proceedings like habeas corpus and FISA proceedings that may involve matters of national security. In the criminal area, the Classified Intelligence Procedures Act (CIPA) provides a relevant model for alternatives to full disclosure of classified information which allow a prosecution to continue while affording a defendant his or her due process rights. The time is now ripe for such legislation in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it.

2. Although at this juncture we are not discussing specific draft bills, I believe there are several principles which need to be considered in such legislation. Many come from the cases themselves, others from the CIPA legislation, my own judicial experience with cases involving national security information such as the FOIA, and still others from the ABA Report and from a Judicial Conference Advisory Committee Report back in 1969, dealing with codification of the privilege (hereafter Advisory Committee). These principles I believe are capable of being observed by federal judges without making their jobs unduly onerous and are within their competence to administer, as proven by their current use in other kinds of litigation. They will, I also believe, contribute to the uniformity of the privilege’s application throughout the federal judiciary and to both the reality and the perception of fairness for deserving litigants with valid civil claims.

a) Reynolds made it clear and subsequent cases have verbally agreed that whether the evidence sought to be withheld by the government does present “a reasonable danger” to national defense or foreign relations (the precise formulation of national security risk varies in the cases but is an issue to be accorded serious thoughts by legislators; too broad a definition could encompass virtually anything in which the government has an interest in the modern day globally interdependent world) is ultimately a matter for the judge, not the government to decide. Thus it should not be enough—though some cases appear to come close to saying it is—that a prima facie plausible claim of state secret be raised by the government. In this sense it is different from some other contexts in which secrecy and national security are involved such as the FOIA. There in Exemption 1, the government may withhold from public disclosure material that has been duly classified under Executive Order criteria if that classification is reasonable. Under a specific amendment in 1974 however, the court has the authority to look at and decide de novo (though giving “substantial weight” to government affidavits) whether the classification is reasonable. The courts’ use of that authority I will say has been cautious to the extreme, but it does exist and on occasion has been employed to reject unjustified claims. A case for more intense scrutiny of the state secret privilege by judges can be made on the basis that the need for such information is more compelling in the case of a civil plaintiff than any member of the public as in FOIA and in the fact that to qualify for Exemption 1, the material must have been reasonably classified under Executive Order criteria—a requirement that is not to my knowledge a component of the state secrets privilege per se. But the FOIA example makes a basic point that judges do deal with national security information on a regular basis and can be entrusted with its evaluation on the relatively modest decisional threshold of whether its disclosure is “reasonably likely” to pose a national security risk. To my knowledge there have been no court “leaks” of any such information. There is no doubt that such a decision is a weighty one but if our courts are to continue their best tradition of constitutional guardianship it is an obligation that they cannot avoid, and the potentiality of a serious judicial review of the material in conjunction with the government's affidavits on the need for nondisclosure even in a courtroom setting will itself pose a deterrent to the dangers of the privilege being too “lightly invoked” (Reynolds).

b) This brings me to the question of whether unlike FOIA which allows but does not require a judge to look at the allegedly risky material himself in camera rather than relying on the government’s affidavits, state secret legislation should require the judge to himself or herself review the material before making a decision on whether the privilege applies. I am of the view that it should. The stakes in civil litigation-as I said-tend to be higher than in FOIA for the plaintiff and our traditions of fair hearing dictate that to the maximum degree feasible all relevant evidence be admitted in judicial proceedings. Reynolds itself left open the possibility that in some contexts where the plaintiffs’ showing of need was not compelling, the judge need not do so, and as I have related, in FOIA cases the judge may decide not to. On the other hand the judge in CIPA and in FISA cases does regularly inspect the material in camera. I read the ABA Report to recommend a similar approach here. Only in that way can he fulfill the judicial obligation to insure a fair hearing but just as important only if he sees the evidence for himself can he make the CIPA like decision whether there are alternative ways than its presentation in original form to satisfy the plaintiff’s need but not to impugn national security as well as whether the objected to material can be segregated from other material in the same document that does not qualify for protection. (I do not discount the possibility that an extraordinary case might arise where both the government and the judge agree that his examination of the secret evidence would be unduly risky and alternatives c an be put in place that will insure fairness but this should not be the usual or ev en a frequent practice). My own experience with highly sensitive information is that our court security safekeeping facilities and procedures can insure its protection; law clerks or masters can be given clearances to handle it and if even that is not possible, the government’s own cleared employees can be sent over to stand guard outside the chambers door while the judge reads it. (I have had this done on at least one occasion).

(c) The thrust of legislation on state secrets should be to emphasize judicial flexibility and creativity in finding alternatives to the original material that will permit the case to proceed whenever possible. Reynolds itself stressed this approach and it has been a hallmark of reform efforts on the privilege since the 1969 Advisory Report (if claim of state secrets is sustained and party is deprived of material evidence, judge shall make further orders in interest of justice including striking of witness testimony, finding against government on relevant issue, or dismissing action). Since 1969 however CIPA has listed and judges have additionally used less draconian measures such as requiring the government to produce an unclassified document with as much of the material as possible in the original, stipulating to facts that the original material was designed to prove or contravert, or a summary of the controversial document that allows the defendant “substantially the same ability to make his defense”. 18 U.S.C. App 3 Sec. 6

(d) Another aspect of judicial flexibility should require a judge to make a conscious decision after a state secrets claim is raised whether the plaintiff’s case may proceed to the next stage without the secret material. Premature dismissals should be eschewed. Unless then without such material a party’s affirmative case or defense surely falls short of the threshold required by the federal rules of civil procedure (Rules 12(b)(6) and 12(c), the party suffering disadvantage from nondisclosure should be allowed to supplement their case by additional discovery whenever it could reasonably bolster their case. This actually is a very important point because a high percentage of cases are dismissed at the pleading stage without additional discovery being allowed, and the interposition of the secrets claim makes it fair to mandate special caution in such cases to let the party play out its nonsecret case. Also worth noting is the difficulty of plaintiffs who cannot show standing to bring the suit unless they are allowed to see secret evidence. Here particular care should be taken to allow maximum access to nonsecret discovery or even postponement of the standing decision until the secrecy claim is decided. Standing is after all a judicial doctrine which has become increasingly onerous and complex in the past few decades; since state secrets is also a judicially implemented doctrine the two should be brought into some form of coexistence that does not fatally disadvantage valid civil claimants. As the ABA Report pointed out the Totten and Tenet cases involving espionage employment contracts do present an absolute bar to justiciability but other cases do not. I agree with the Report’s suggestion as well that the government not be required to immediately plead "confirm or deny" at the pleading stage when the secrets claim is planning to be raised. FOIA practice provides an analog-the government has been allowed to raise a “neither confirm nor deny” answer as to whether a requested document exists in its pleadings in Exemption 1 cases.

(e) Once the government raises a secrets claim, the question arises as to how it will be litigated and by whom. The government is certainly required by affidavit or testimony to justify the claim but where and who can take part in the litigation at that stage may be an issue. The 1969 Advisory Committee Report permitted the judge to hear the matter in chambers “but all counsel are entitled to inspect the claim and showing and to be heard thereon”, subject to protective orders. In general every effort should be made to provide the regular counsel with the necessary clearances to litigate the claim, and where that turns out to be impossible to substitute counsel who have such clearances. In some cases the validity of the secrets claim can be litigated at a level which does not require special clearances. The FOIA cases have produced a useful tool known as the Vaughn index which requires the government to create a line by line justification of withheld material with the reasons for nondisclosure. This device has permitted the adversary system to operate at some level to litigate secrecy claims without revealing the material itself. Another device used successfully by our district court was the appointment of a master with the necessary clearances to organize and separate out sample categories of documents in a voluminous submission for which total secrecy was originally claimed under FOIA Exemption 1 and to present them to the judge with the arguments pro and con for the judges decision. As a result 64% of the material was eventually released. See In re United States Department of Defense, 848 F.2d 232 (1988). In short, judges are used to handling confidential material through sealing, protective orders against disclosure by counsel, screened masters, and in camera or even ex parte submissions. But the need for guidance and a protocol for using such devices in a uniform manner is dominant. The mere exercise of going through the required procedural steps will concentrate the judge’s attention and sharpen his or her awareness of the interests involved at each stage.

(f) Dismissal of a private party claim should be a last resort if it is based on the unavailability of state secret evidence. There will of course be cases where the judge ultimately and rightly decides that a state secret of significant consequence and risk cannot be revealed even under safeguards but I suggest legislators give some thought as to whether there are any compensatory remedies to the injured party in such cases. Or conversely whether when a secrets claim is upheld at the same time the court finds it is covering governmental misbehavior if some form of accountability is in order. Finally expedited appeal-interlocutory in many cases-should be allowed on a truncated record (sealed if necessary) with cutback briefing and absent any requirement for a detailed written opinion by either court, although I do think a few sentences of explanation are always necessary for any kind of meaningful review at any level. But the expedited appeal-especially if the government loses its claim-should insure against prolonged delays in the trial itself.

Thank you for this opportunity to present my views. I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the right balance between national security needs and fair judicial proceedings. I believe based on my experience as a federal judge and my international war crimes experience that such a balance can be struck and that our federal judges are already acquainted with the use of many of the proper tools for doing so. I have confidence in the Committee’s ability and I encourage it to tackle the task.


Judge, U.S. Court of Appeals for District of Columbia Circuit (1979-1999); Chief Judge (l986-1991); Judge, International Criminal Tribunal for the former Yugoslavia (1999-2001); Member, President’s Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (2004-5).