[Congressional Record: March 13, 2008 (Extensions)]
[Page E392]                       



                          HON. JERROLD NADLER

                              of new york

                    in the house of representatives

                        Thursday, March 13, 2008

  Mr. NADLER. Madam Speaker, the state secrets privilege is a common 
law doctrine that allows the Government to protect sensitive national 
security information from harmful disclosure in litigation.
  This privilege was first recognized by the U.S. Supreme Court in the 
1953 case of U.S. v. Reynolds, a case brought by the widows of three 
civilian engineers against the U.S. Government for negligence in a 
military airplane crash. The Government refused to produce an accident 
report of the crash, claiming that disclosure of the report would 
reveal secret military information harmful to national security. The 
Court accepted the Government's state secret claim and allowed the 
Government to withhold the report without ever reviewing it. When the 
report was discovered through an internet search 50 years later, it did 
not reveal any secret military information but, instead, showed the 
Government's negligence in the crash.
  Unfortunately, Reynolds is not the only instance where the secrecy 
claims have been abused. Exaggerated claims of national security were 
made in an effort to conceal information about U.S. conduct in Vietnam 
and the bombing of Cambodia in the ``Pentagon Papers'' case and to 
prevent prosecution for the unlawful sale of arms to Iran and the 
funneling of proceeds from those sales to the Nicaraguan Contras. In 
the ``Pentagon Papers'' case, N.Y. Times Co. v. United States, 403 U.S. 
713, Solicitor General Griswold warned the Supreme Court that 
publication of the information would pose a ``grave and immediate 
danger to the security of the United States.'' Eighteen years later, he 
acknowledged that he had never seen ``any trace of a threat to the 
national security'' from publication of the information and that 
``there is very rarely any real risk to current national security from 
the publication of facts relating to transactions in the past, even the 
fairly recent past.''
  What these examples teach is that when a government is allowed to 
escape accountability by hiding behind unexamined claims of national 
security, it often will, making judicial oversight of state secrets 
privilege claim critical to our constitutional system of checks and 
balances. Unfortunately, in the years following Reynolds, courts have 
proven reluctant to test Government claims of secrecy, often failing to 
examine evidence independently and accepting the Government's secrecy 
claim at face value.
  Concerns about the lack of judicial oversight of the state secrets 
privilege have increased as the current administration has responded to 
cases challenging the most troubling aspects of its `` war on 
terror''--including rendition, torture, and warrantless wiretapping--
with blanket claims that these cases must be dismissed outright, before 
any discovery can proceed. As a result, injured plaintiffs have been 
denied justice and the courts have failed to address fundamental 
questions of constitutional rights. Take, for example, the case of 
Khaled el-Masri, a German citizen who was kidnapped, rendered to a CIA 
black site, and tortured before the administration realized that it had 
the wrong man. There is extensive public evidence supporting Mr. El-
Masri's case, including a Council of Europe report verifying the 
accuracy of Mr. El-Masri's claims and the administration's public 
disclosure and defense of the rendition and interrogation of terror 
suspects as a valuable tool in its ``war on terror.'' Yet the 
administration successfully argued that Mr. El-Masri's case should be 
dismissed before any discovery could occur based on the state secret 
  The transformation of a governmental privilege to withhold specific 
items of evidence into a claim of absolute immunity, and the overall 
lack of consistency in how courts handle state secret claims, requires 
Congressional reform. In 1980, Congress enacted the Classified 
Information Procedures Act--known as CIPA--to provide courts with clear 
statutory guidance on handling secret evidence in criminal cases. 
Congress also authorized courts to review and rule upon sensitive 
materials under the Freedom of Information Act and the Foreign 
Intelligence Surveillance Act. For the past several decades, courts 
have effectively and safely applied these laws--under the procedures 
and standards articulated by Congress--to protect sensitive information 
while also respecting the rule of law and providing fairness and 
justice to litigants.
  It is time to enact procedures and standards for civil cases similar 
to those that we already have provided for criminal cases. Many have 
called for this reform, including the American Bar Association, which 
recently issued a report calling upon Congress to enact procedures and 
standards that promote meaningful, independent judicial review and 
``bring uniformity to a significant issue on which courts have adopted 
divergent approaches.'' The bipartisan Constitution Project has 
similarly urged us to ``craft statutory language to clarify that 
judges, not the executive branch, have the final say about whether 
disputed evidence is subject to the state secret privilege,'' reminding 
us that ``reforms are critical to ensure the independence of our 
judiciary and to provide a necessary check on executive power.''
  In a recent hearing held by the Judiciary Committee's Subcommittee on 
Constitution, Civil Rights, and Civil Liberties, which I chair, experts 
like retired Federal judges Patricia Wald and William Webster supported 
legislative efforts to require independent judicial review. According 
to Judge Webster:
  ``As a former Director of the FBI and Director of the CIA, I fully 
understand and support our government's need to protect sensitive 
national security information. However, as a former federal judge, I 
can also confirm that judges can and should be trusted with sensitive 
information and that they are fully competent to perform an independent 
review of executive branch assertions of the state secrets privilege. 
Judges are well-qualified to review evidence purportedly subject to the 
privilege and make appropriate decisions as to whether disclosure of 
such information is likely to harm our national security.''

  The State Secret Protection Act of 2008 provides much-needed reform 
by establishing rules and standards for determining state secret 
privilege claims. The act will strengthen national security by ensuring 
that legitimate secrets are protected from harmful disclosure, and it 
will strengthen the rule of law by preventing abuse of the privilege 
and maximizing the ability of litigants to achieve justice in court.
  Modeled on CIPA, but adjusted for civil litigation, the State Secret 
Protection Act provides for secure judicial proceedings and other 
safeguards to protect valid state secrets. Under the act, a judge may 
not blindly rely upon assertions of secrecy and harm contained in an 
official's affidavit. Judges must review the information that the 
Government seeks to protect, along with any other evidence or argument 
relevant to the claim, to determine whether the harm identified by the 
Government is reasonably likely to occur. Where this standard is met, a 
judge may not order disclosure of the information. The judge must, 
however, consider whether a non-privileged substitute can be created 
that would allow the litigation to continue.
  If a substitute is possible--for example, a redacted version of a 
document or a summary of the information--the government has the choice 
of producing the substitute or having the court resolve the issue to 
which the evidence is relevant against it, as happens in CIPA. Where 
there is no possible substitute, the judge may issue appropriate 
orders, including dismissing a claim or finding for or against a party 
on a factual or legal issue. The act allows the Government to raise a 
claim of privilege to avoid answering allegations in a complaint but 
prevents premature dismissal of claims before all issues of privilege 
are resolved and the parties have the opportunity to conduct non-
privileged discovery.
  Through these procedures and standards, the act allows parties the 
opportunity to make a preliminary case and provides courts with the 
flexibility to craft solutions that protect valid state secrets from 
harmful and serve the interests of justice. Congress has clear 
constitutional authority to establish rules of procedure and evidence 
for the courts, and reform of the state secrets privilege in civil 
litigation is long overdue. I urge all of you, my colleagues in the 
House, to join us in this important effort.