STATE SECRETS PROTECTION ACT OF 2008
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 5607
__________
JULY 31, 2008
__________
Serial No. 110-155
__________
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 STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, 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
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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JULY 31, 2008
Page
THE BILL
H.R. 5607, the ``State Secrets Protection Act of 2008''.......... 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 Trent Franks, a Representative in Congress from the
State of Arizona, 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.................................... 19
WITNESSES
Ms. Meredith Fuchs, General Counsel, National Security Archives
Oral Testimony................................................. 24
Prepared Statement............................................. 27
Mr. Steven Shapiro, American Civil Liberties Union
Oral Testimony................................................. 37
Prepared Statement............................................. 39
Mr. Michael A. Vatis, Partner, Steptoe & Johnson, LLP
Oral Testimony................................................. 51
Prepared Statement............................................. 53
Mr. Bruce Fein, Chairman, The American Freedom Agenda
Oral Testimony................................................. 61
Prepared Statement............................................. 63
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Los Angeles Times article dated May 21, 2006, submitted by 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................................................ 20
Prepared Statement of 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......... 22
STATE SECRETS PROTECTION ACT OF 2008
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THURSDAY, JULY 31, 2008
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 12:33 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Scott, Davis,
Wasserman Schultz, and Franks.
Staff present: David Lachmann, Subcommittee Chief of Staff;
Burt Wides, Majority Counsel; Heather Sawyer, Majority Counsel;
Caroline Mays, Majority Professional Staff Member; Paul Taylor,
Minority Counsel; and Charlotte Sellmyer, Minority Professional
Staff Member.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. Without objection, the Chair is authorized to declare a
recess of the hearing.
We will now proceed to Member's opening statements. As has
been the practice in this Subcommittee, I will recognize the
Chairs and Ranking Members of the Subcommittee and of the full
Committee to make opening statements. In the interest of
proceeding to our witnesses and mindful of our busy schedules,
I would ask that other Members submit their statement for the
record. Without objection, all Members will have 5 legislative
days to submit opening statements for inclusion in the record.
The Chair now recognizes myself for 5 minutes for an
opening statement.
Today, the Subcommittee examines legislation that would
codify uniform standards for dealing with claims of a state
secrets privilege by the government in civil litigation. In
January, we had an oversight hearing on the state secrets
privilege. Based on the findings of that hearing and the very
insightful testimony we received, I introduced H.R. 5607, the
State Secrets Protection Act of 2008, on March 13.
Our hearings over the last 2 years and the Administration's
persistent attempts to withhold information from Congress have
demonstrated the destructive impact that sweeping claims of
privilege and secrecy have had on our Nation. 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, illegal spying on Americans and
other matters of tremendous national importance.
We have a constitutional obligation to conduct oversight,
and the facts that have begun to come out certainly demonstrate
the consequences of the misuse of state secrets claims. This
same pattern of resorting to extravagant claims of state
secrets has also been evident in the courts. While this
Administration did not invent the use of the state secrets
privilege to conceal its wrongdoing, it certainly has perfected
the art, whether it is rendition to torture, illegal spying or
government malfeasance, the state secrets privilege has been
abused by Administrations past and present to protect officials
who have behaved illegally or improperly 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 state secrets. The Supreme Court concurred without
ever looking behind the government's unsupported assertion that
national security was involved.
A half-century later, the report was found online by the
daughter of one of the engineers, and it contained no sensitive
information. It did, however, reveal that the crash was caused
by government negligence. So, in other words, the government
committed a fraud on the court in order to hide embarrassing
information and protected itself by misuse of the state secrets
doctrine. And this fraud on the court ended up in plaintiffs
losing evidence which they clearly should have had.
Protecting the government from embarrassment and liability,
not protecting national security, was the only justification
for withholding the accident report. Yet these families were
denied justice because the Supreme Court never looked behind
the government's claim, its wrongful and knowingly deceitful
claim, to determine whether it was valid.
It is important to protect national security, and sometimes
it is necessary for our courts 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 Information Procedures Act to protect
classified information without derogating the rights of the
accused. In FISA, we set up procedures for the court 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 both 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
to lie, especially when it is in their interest to conceal
something. The founders of this Nation assumed that there
needed to be checks in each branch of government to prevent
such abuses from taking place. 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
merit.
When the government itself is a party, the court cannot
allow it to become the final arbiter of its own case. In
particular, the courts cannot allow cases to be dismissed on a
motion to dismiss on the unsupported allegation that defending
the case will necessitate the revelation of state secrets and
so the party never even gets a day in court. The purpose of
this legislation is to ensure that the correct balance is
struck, that litigants have their day in court and that
national security is also protected.
I look forward to the testimony of our witnesses.
[The bill, H.R. 5607, follows:]
Mr. Nadler. I would now recognize our distinguished Ranking
minority Member, the gentleman from Arizona, Mr. Franks, for
his opening statement.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman,
the state secrets privilege is a longstanding legal doctrine
that keeps all Americans safe. The Supreme Court most recently
described that doctrine in a case called United States v.
Reynolds.
In that case, the Supreme Court made clear that when a
court reviews a case in which the central issues involve
sensitive, classified, national security information, the
courts have a responsibility to determine whether disclosure of
the information at issue would pose a reasonable danger to
national security. If the court determined that public
disclosure of such 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 if
necessary. While this doctrine may occasionally disadvantage
someone suing in court, it is absolutely necessary to protect
our national security and the safety of all Americans.
The roots of the states privilege extend all the way back
to the Supreme Court's decisions in Marbury v. Madison. And the
privilege is grounded in large part in the Constitution's
separation of powers principles. In that case, the court ruled
that executive branch officials are not obligated or obliged to
disclose any information that was communicated to them in
confidence. Four years later, the same Chief Justice Marshall
who wrote the opinion in Marbury held that the government need
not produce any information that would endanger the public
safety.
In the modern era, Congress debated the issue of 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 decisions. At approximately the same time, the Supreme
Court continued to indicate that the state secrets privilege
derives from separation of powers considerations when it handed
down its decision in United States v. Nixon.
In that case, the court endorsed executive privilege as a
``fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution.'' It
also went out of its way to say that sensitive information
should not be disclosed if it involves military, diplomatic or
sensitive national security secrets. The Fourth Circuit took
exactly the same position in affirming dismissal of a case
brought by Khaled el-Masri, in which the court concluded that
the state secrets privilege, quote, has a firm foundation in
the Constitution, in addition to its basis in the common law of
evidence.
Not surprisingly, Mr. Chairman, the state secrets privilege
has played a significant role in the Justice Department's
response to civil litigation arising out of the
counterterrorism policies after 9/11. While political opponents
of the president have argued that the Bush administration has
employed the state secrets privilege with unprecedented
frequency or in unprecedented contexts in recent years, a
recent comprehensive survey of all state secrets cases has
determined conclusively that neither of those claims are true.
As Professor Chesney of Wake Forest University law school
has concluded, ``recent assertions of the privilege are not
different in kind from the practice of other Administrations.''
Professor Chesney elaborated that, quote, the available data to
suggest that the privilege has continued to play an important
role--rephrase that, Mr. Chairman. He said that, ``the
available data do suggest that the privilege has continued to
play an important role during the Bush administration, but it
does not support the conclusion that the Bush administration
chooses to resort to the privilege with greater frequency than
prior Administrations or in unprecedented substantive
context.''
Because the state secrets privilege is based in the
Constitution separation of powers principles, it is unclear
whether Congress could constitutionally amend the state secrets
privilege by statute. It is also worth noting that as professor
Chesney has pointed that, quote, judges as an institutional
matter, are nowhere nearly as well situated as executive branch
officials to account for and balance the range of
considerations that should inform assessments of dangers to
national security.
So far, courts have appropriately restrained themselves and
acted to preserve sensitive national security information when
absolutely necessary. Of course, no system is perfect, Mr.
Chairman, and mistakes will be made. As Secretary of State
Condoleezza Rice has stated, ``When and if mistakes are made,
we work very hard and as quickly as possible to rectify them.
Any policy will sometimes have mistakes, and it is our promise
to our partners that should that be the case, that we will do
everything that we can to rectify those mistakes.'' I pledge to
work with my colleagues to make sure that amends are made and
justice is achieved through the executive or legislative
branches whenever the executive branch makes a mistake in good
faith efforts to keep all Americans safe.
The state secrets doctrine remains strongly supported by
today's Supreme Court, even in its Boumediene decision,
granting unbelievably habeas litigation rights to terrorists.
Justice Kennedy in his majority opinion acknowledged that the
government's, quote, legitimate interest in protecting sources
and methods of intelligence gathering, and stating we expect
that 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.
The state secrets privilege is as vital now as it has ever
been, Mr. Chairman. And now that 200 terrorists in Guantanamo
Bay can litigate their detention in Federal court under the
Supreme Court's Boumediene decision, it is remarkable that the
Democrat majority decides to hold a hearing on legislation that
threatens to disclose vital intelligence information in court
right after 200 terrorists are starting to sue their American
captors in Federal court. [Laughter.]
You laugh to maintain sanity.
I strongly oppose any efforts, including H.R. 5607, that
invite the courts to deviate from the sound procedures they
currently follow that protect vital national security
information. H.R. 5607 would preclude judges from giving weight
to the executive branch's assessment of national security
related to its assertion of privilege. It would authorize
courts not to use ex parte proceedings in conducting 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.
Mr. Chairman, innocent Americans can only be protected if
sensitive national security information is protected. And I
will do whatever I can to keep Americans safe.
And with that I yield back.
Mr. Nadler. Thank you. I just want to clarify that this is
a legislative hearing considering a particular bill which does
not eliminate the privilege, the state secrets privilege, but
seeks to codify it and to regulate it within certain limits,
and that is the bill before us.
I will now recognize the distinguished Chairman of the full
Committee, Mr. Conyers.
Mr. Conyers. I regret that the Ranking Member hasn't
examined the legislation because in no way does it do what he
claims is so ridiculous as to be laughable. I think that is a
serious error that should----
Mr. Franks. [Off mike]
Mr. Conyers. Oh, you weren't laughing at the bill; you were
laughing at the habeas corpus rule. The bill is a little funny,
too? Well, anyway, whatever it was you were laughing about, I
think we ought to carefully examine this legislation. This is a
very serious hearing. And I am impressed by the fact they are
asking some questions that have to be answered about why and
whether the state secrets act is overused. To me, that is the
question that brings me to this hearing with great concern and
interest.
It has been admitted by the Administration representatives
that at least 50 percent of the time that the government has
overclassified information. I refer and ask that it be put in
the record the Los Angeles Times record of May 21, 2006.
Mr. Nadler. Without objection.
[The information referred to follows:]
Mr. Conyers. In addition, it should be noted, and I hope
that it will be commented on by the distinguished group of
witnesses, that President Reagan's executive secretary at the
National Security Council told a Blue Ribbon Commission looking
at classification in 1997 that only 10 percent of the secrecy
stamps were for legitimate protection of secrets.
Erwin Griswold, who prosecuted the Pentagon Papers case
said that it becomes apparent to any person who has
considerable experience with classified material that there is
a massive overclassification and that the principal concern of
the classifiers is not with security but with governmental
embarrassment of one sort or another. And so we want to examine
that.
Maybe these assertions are overstimulated or exaggerated.
But I don't think that this hearing needs to be made as some
kind of a stunt or political--have some political objective in
mind when the Constitution committee in the Congress takes
steps to reexamine this. We are the only ones with the
authority to deal with this. And for us not to deal with it I
think would be a dereliction.
And so I am happy to insert my statement into the record
and yield back my time.
[The prepared statement of Chairman Conyers follows:]
Prepared Statement of 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
Today, we examine H.R. 5607, the ``State Secret Protection Act of
2008.'' This bill would codify the state secret privilege and protect
national security by providing safe, fair, and responsible procedures
and standards for handling sensitive information in civil cases.
Some might ask, why is there a need for this legislation? It is
very much needed because this Administration has aggressively sought to
create an Imperial Presidency--an Executive Branch whose decisions
remain secret and unchecked by Congress or the courts--that has raised
important concerns about how claims of secrecy may impair our
constitutional system of checks and balances.
For example, President Bush eavesdropped on American citizens. When
the victims challenged this warrantless wiretapping as a violation of
FISA and the Fourth Amendment, the Administration raised the state
secret privilege to block judicial review of their claims. It similarly
has used the privilege to seek dismissal of cases challenging other
troubling aspects of its war on terror, including rendition to torture.
Concerned that the Executive was claiming state secrets in order to
protect embarrassing facts or unlawful conduct from becoming public,
rather than to protect truly secret information, the Constitution
Subcommittee held an oversight hearing earlier this year.
Witnesses--including the American Bar Association and former D.C.
Court of Appeals Chief Judge Patricia Wald--confirmed the need for
legislative reform of the privilege. H.R. 5607 has been crafted to
address that need.
I want to highlight three key points about H.R. 5607.
First--contrary to claims that I am certain we will hear today--
H.R. 5607 fully protects state secrets. The bill would require courts
to take protective measures, such as conducting non-public proceedings
and limiting access to documents. Where the court upholds the claim of
privilege, the bill prevents harmful disclosure of the protected
information.
Second, H.R. 5607 establishes procedures for independent judicial
review of secrecy claims. It requires the government to specify how
disclosure of the information would be harmful, and specifies that the
courts must review the information that the government seeks to
withhold and independently determine whether the secrecy claim is
valid.
William Webster--who served as a federal appellate judge and as
director of both the CIA and FBI--advised the Subcommittee that courts
can be trusted to safeguard sensitive secrets and are fully competent
to assess the validity of privilege claims.
Finally, H.R. 5607 prevents premature dismissal of entire lawsuits
based on the mere assertion of the state secret privilege. For example,
where the privilege is upheld, H.R. 5607 requires the court to consider
whether a non-privileged substitute for the privileged information
would allow the litigation to continue.
Our firm commitment to respect for the rule of law requires us to
advance legislation that protects and respects the Constitution. H.R.
5607 is one such bill, and I look forward to hearing from our witnesses
on this important piece of legislation.
Mr. Nadler. I thank the gentleman.
I now want to welcome our distinguished panel of witnesses
today and introduce them.
Meredith Fuchs is the general counsel for the National
Security Archives, where she oversees Freedom of Information
Act and Federal Records Act litigation. She has supervised six
government-wide audits of Federal agency policy and performance
under Federal disclosure law, including one relating to the
proliferation of sensitive, unclassified document control
policies at Federal agencies.
She was a partner at the firm of Wiley Rein & Fielding. Ms.
Fuchs clerked for Judge Patricia Wald of the U.S. Court of
Appeals for the District of Columbia, who I think was a witness
at our last hearing on this subject in January, and Judge Paul
Friedman of the U.S. District Court for the District of
Columbia. She is a graduate of New York University law school
and received her B.S. from the London School of Economics and
Political Science.
Steven Shapiro has been the legal director of the American
Civil Liberties Union since 1993 and served as the associate
legal director from 1987 to 1993. He is an adjunct professor of
constitutional law at Columbia Law School. Mr. Shapiro is a
graduate of Harvard Law School and clerked for Judge J. Edward
Lumbard of the U.S. Court Appeals for the Second Circuit.
Michael Vatis is a partner with the firm of Steptoe &
Johnson. From 2003 to 2004, Mr. Vatis was the executive
director of the Markle Task Force on National Security in the
Information Age. From 1998 to 2001, he served as the director
of the National Infrastructure Protection Center. From 1994 to
1998, he served as the Associate Deputy Attorney General and
Deputy Director of the Executive Office for National Security
in the Department of Justice. From 1993 to 1994, Mr. Vatis
served as a law clerk to Justice Thurgood Marshall and to then
Judge Ruth Bader Ginsburg. He is a graduate of Princeton
University and Harvard Law School.
Bruce Fein is a frequent witness before our hearings and is
the founder and chairman of the American Freedom Agenda, which
has as its aim the restoration of the Constitution's checks and
balances. Mr. Fein served in the Department of Justice under
President Reagan. He served as the Assistant Director of the
Office of Legal Policy, legal advisor to the Assistant Attorney
General for Antitrust and the Associate Deputy Attorney
General.
Mr. Fein was then appointed general counsel for the Federal
Communications Commission followed by an appointment as the
research director for the Joint Congressional Committee on
Covert Arms Sales to Iran. Mr. Fein has been an adjunct scholar
with the American Enterprise Institute, a resident scholar at
the Heritage Foundation, a lecturer at the Brookings Institute
and an adjunct professor at George Washington University. He is
a graduate of Harvard Law School.
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.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information and belief?
[Witnesses sworn.]
Mr. Nadler. Let the record reflect that the witnesses
answered in the affirmative. You may be seated.
Without objection, your written statements will be made a
part of the record in their entirety. We would ask each of you
to summarize your testimony in 5 minutes or less. To help you
keep time, 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. And I will inform you the Chair
is reasonably lax in the 5 minutes but not totally.
Our first witness is Ms. Fuchs, who is recognized for 5
minutes.
TESTIMONY OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY
ARCHIVES
Ms. Fuchs. Thank you, Chairman Nadler, Ranking Member
Franks and distinguished Members of the Subcommittee. I
appreciate this opportunity to appear before you to comment on
the State Secrets Protection Act of 2008.
I submitted a written statement, so I am going to focus my
oral statement on the importance of judges conducting
meaningful, independent, judicial review into government
secrecy claims. For context, I am going to put a few well-
established matters on the table which I am happy to discuss
later.
First, there is massive unnecessary secrecy within the
executive branch. It is not just my view, as Mr. Conyers
pointed out, it is the view of many officials throughout the
military and the intelligence establishment. And I just want to
comment on that for a moment.
Mr. Conyers was for the most part referring to the
classification system, which at least is moored in an executive
order that is public, that provides standards for security
classification and has oversight and reporting requirements by
the Information Security Oversight Office. None of that even
exists in the state secrets context, which as far as I can tell
is the government's free to define as it sees fit.
The second point I want to put on the table is that while
secrecy is clearly needed for many reasons, there is no doubt
that national security secrecy can and has had the impact of
covering up wrongdoing in many instances. This context cannot
be forgotten when you are examining how courts should handle
civil cases in which the plaintiffs allege government
wrongdoing and the government wields the state secrets
privilege to end the case before the issues are even joined.
My experience arises primarily in the Freedom of
Information Act context, where Congress already has explicitly
granted courts the authority to conduct a de novo review of the
agency's decision to keep information secret. De novo for
lawyers traditionally means the court doesn't defer to the
agency. Instead, the court weighs the facts, the law and the
arguments to make its decision.
In the legislative history of FOIA however, the committee
report expresses the assumption that courts will grant
substantial weight to agency views expressed in affidavits. In
practice, these divergent standards have meant that some courts
do try to grant de novo review and they test the government
assertions, and some courts grant utmost deference and refuse
to consider alternative facts and arguments.
In our experience seeking security-classified records, we
have seen that when there is an independent, higher-level
inquiry made into the government's secrecy claims, the almost
invariable result is that more information can be released than
the government was prepared to release in the first place.
When, on the other hand, there is no countervailing pressure,
the agencies have no incentive to seriously consider whether
information could cause harm to national security if released.
Sometimes when we see documents years later and we find out
what the government was protecting, it is clear that the
government either was overreaching or it was not taking
seriously its obligation to disclose information that is not
properly classified.
So in the point of context, courts that have conducted true
de novo reviews have used many of the types of tools that the
State Secrets Protection Act of 2008 would encourage. In fact,
it has become standard fare today for the government to file a
Vaughn index, even successive, more detailed Vaughn indexes to
itemize their secrecy claims. That forces the government to
actually review the documents and explain the withholding. It
enables the plaintiff to have some ability to respond and helps
the court conduct a review.
The use of a special master in the Washington Post v.
Department of Defense case is perhaps most illustrative of how
courts can employ an expert to achieve better results in the
interest of both security and justice. In that case, Kenneth
Bass, an attorney who had served as counsel for the
intelligence policy at the Department of Justice and who held
appropriate clearances, acted as a special master. The result
was that the government secrecy claim went down from 14,000
pages to 2,000 or 3,000 pages.
So, this gets at the central issue and controversy, I
believe, related to this bill, whether and to what extent the
courts should become enmeshed in the question of what actually
merits state secrets protection. Given that courts are getting
involved in that sort of issue in FOIA and in the CIPA context,
there doesn't seem to me to be a strong constitutional argument
against judicial involvement.
In light of the substantial interests asserted by
plaintiffs claming government wrongdoing, there is also a
strong reason for courts to get involved as a matter of
justice. And in my view, many of the procedures in the State
Secrets Protection Act of 2008 will have an impact on the
government's own assertion for secrecy without the court ever
having to choose between one side or the other. I am
particularly hopeful about the use of special masters or
technical experts to resolve over-broad secrecy claims.
In addition, courts must consider the evidence propounded
by the plaintiffs in these cases. Under FOIA, some courts have
refused to consider declarations from nongovernmental experts,
even when those experts were former intelligence agency staff
who saw the information before they left the agency--senators,
former ambassadors, retired government officials and the like.
This doesn't make any sense to me.
Certainly a retired, high-level official will have
something useful to tell a court in some of these cases. And so
a categorical rule that would exclude them and what they have
to say doesn't make sense. Moreover, there are instances when
the government's claims are simply not factually or logically
consistent. The very purpose of this bill will be frustrated if
the court's hands are tied and the court cannot consider
arguments on these sorts of issues.
On a final note, I offer a precaution to you if you decide
to change the standard of judicial review in this bill. In the
FOIA context, where the law explicitly says de novo review, de
novo standard of review, the courts have moved from de novo
review to substantial weight consideration of evidence to a
substantial weight standard of review to great deference.
And finally, recently courts have expanded that deference
concept way beyond the security classification area to other
areas of sensitivity. This is not what Congress intended. Given
the very substantial interest at stake here, any adjustment of
the standard should be done with a full understanding of the
possibility that careful drafting is necessary in order to
avoid nullifying the good purposes of this bill.
I thank you for seeking my input, and I would be happy to
respond to any questions.
[The prepared statement of Ms. Fuchs follows:]
Prepared Statement of Meredith Fuchs
Mr. Nadler. I thank the witness.
Mr. Shapiro is recognized for 5 minutes.
TESTIMONY OF STEVEN SHAPIRO,
AMERICAN CIVIL LIBERTIES UNION
Mr. Shapiro. Thank you Chairman Nadler, Ranking Member
Franks and distinguished Members of the 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 for crafting the
State Secrets Protection Act, H.R. 5607. 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 court system.
Over the years, 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 systemic
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 serious government misconduct, not
simply to block access to specific information that is alleged
to be secret but to dismiss the lawsuits in their entirety.
This has happened in cases involving rendition and torture,
warrantless surveillance and national security whistleblowers
among others. The dismissal of these suits does more than harm
the individual litigants who are denied any opportunity for
redress. It deprives the American public of the judicial
determination regarding the legality of the government's
actions.
This Subcommittee, I know, is familiar with Khaled el-
Masri, who Representative Franks referred to in his opening
remarks. Mr. el-Masri is an ACLU client who was detained
incommunicado for 5 months and subject to coercive
interrogation under the CIA's rendition program because he was
confused with somebody else in a tragic case of mistaken
identity. Mr. el-Masri's ordeal received prominent coverage
throughout the world, including on the front pages of this
Nation's leading newspapers.
German and European authorities began official
investigations of Mr. el-Masri's allegations. And on numerous
occasions, U.S. government officials publicly confirmed the
existence of the rendition program. Nevertheless, Mr. el-
Masri's lawsuit was dismissed based on the government's claim
that the state secrets privilege barred any judicial review of
what had happened to him. In effect, Mr. el-Masri was told that
the one place where there could be no discussion of his
mistreatment by the U.S. government was in a U.S. court of law.
H.R. 5607 takes great strides toward restoring essential
constitutional checks on executive power. By codifying the
state secrets privilege, H.R. 5607 will bring needed clarity
and balance to an area of the law that is now desperately in
need of both.
Given limited time, I will highlight just a few important
aspects of the bill. First, H.R. 5607 requires judges to look
at the evidence that the government is seeking to shield by
invoking the state secrets privilege, unless the evidence is
too voluminous, in which case the court can review a
representative sample. This will address the too frequent
practice of relying exclusively on the government's affidavits
in ruling on the state secrets privilege. The bill also places
the burden of proof on the government that is trying to keep
the evidence secret which is where it belongs.
Second, H.R. 5607 recognizes that judges can and should
give due deference to the expert opinion of government
officials without deferring entirely or abdicating their
responsibility to make an independent assessment of the
evidence. In order to assure that the court's decision is
properly informed, the bill encourages the maximum
participation possible by opposing counsel and gives courts the
authority to appoint an independent expert to advise the court
in appropriate circumstances.
Third, as a direct response to the increasing tendency to
dismiss cases at the outset of litigation based on the
government's broad and aggressive assertion of the state
secrets privilege, H.R. 5607 restores the state secrets
privilege to its proper evidentiary role by providing that a
case shall not be dismissed until the opposing party has had a
full opportunity to complete discovery of non-privileged
evidence and to litigate the claim based on that evidence.
Courts have long experience in handling national security
information responsibly and assessing its appropriate role in
the judicial process. As Chairman Nadler noted, Congress has
recognized the value of judicial involvement in these crucial
decisions under the Classified Information Protection Act, the
Freedom of Information Act and the Foreign Intelligence
Surveillance Act. If history is any guide, there is no reason
to believe that courts will likely disagree with the
government's assessment of national security risks.
But the Supreme Court's ruling in the Pentagon Papers case
provides a vivid illustration of the importance of maintaining
an independent judicial role in national security cases as a
constitutional safety valve against excessive secrecy. The ACLU
therefore supports H.R. 5607 and urges its enactment as soon as
possible. I would be happy to answer any questions the
Committee might have.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Shapiro follows:]
Prepared Statement of Steven Shapiro
Mr. Nadler. Thank you.
Mr. Vatis, you are recognized for 5 minutes.
TESTIMONY OF MICHAEL A. VATIS, PARTNER,
STEPTOE & JOHNSON, LLP
Mr. Vatis. Thank you, Mr. Chairman. Mr. Chairman, Mr.
Franks and distinguished Members of the Committee, thank you
for inviting me here today to talk about this extremely
important subject.
I agree entirely with my fellow witnesses about both the
need for and the propriety of Congress's regulating the state
secrets privilege. It is perfectly appropriate for Congress to
determine what role courts should play and what the standard of
review should be for court decision-making in cases in which
the government asserts the state secrets privilege.
Even if one views that privilege as founded on or at least
derived from constitutional principles, as I do, there is still
an appropriate role for Congress to play. Congress has
authorities in the areas of war and national defense and it has
authorities in the area of diplomatic relations, which give it
ample authority to make laws that affect both of those realms,
as H.R. 5607 would do.
I would like to spend just a moment, though, on the one
area where I might have a slightly different perspective and
that is on whether and how much deference should be accorded to
the government's judgment about whether disclosure of a state
secret would cause harm to either national defense or to
diplomatic relations. My one concern with the bill as it is
written today is with Section 6, which I believe could be read
as directing courts to give no deference whatsoever to the
executive branch's judgment about potential harm to national
defense or diplomatic relation, but rather that the courts
should treat the government's judgment as no different from
other witnesses that might appear on the other side.
I believe that reading the statute this way would cause
tremendous harm potentially. The executive naturally has
greater expertise from its day-to-day experience and from its
access to intelligence in the areas of defense and diplomacy.
It also has constitutional responsibilities for these areas
that should be acknowledged and respected in any law that is
passed in this area. So, deference to the executive branch on
this sole issue of whether harm would result from disclosure
should be required.
Now, I want to be clear and not misunderstood on what I
mean by deference. This doesn't mean that courts should not
engage in independent review of the propriety of the privilege.
It doesn't mean courts should not engage in their own judgment
about whether harm truly would be caused. Courts will still
look at all of the evidence. They would still consider opposing
witnesses from the government. And they would still exercise
judgment, but they would give at least substantial weight to
the government's assertion of harm.
Other protections would still exist to protect against
government overreaching. The government would still retain the
burden of proof in asserting the privilege. It would still have
to prove that disclosure is reasonably likely to cause
significant harm to national defense or diplomatic relations.
And they must make those assertions in writing.
And courts can insist on specificity so that the government
can't just rely on the say-so of a senior executive official.
They would have to explain the rationale and the supporting
evidence. And I think these are sufficient and adequate to
protect against abuse. To go further, though, and have courts
simply give the same weight to government judgment in this area
as to other witnesses I think would go too far and would be a
mistake.
Finally, I don't think that Congress should be ambiguous in
this area and leave it up to the courts to determine how much
deference should be accorded. I think that would just replicate
the situation we have today, where some courts accord a lot of
deference, some courts accord a little deference and some
courts potentially none at all.
I think it is Congress' responsibility to be clear on this,
to have consistency in the way courts review these issues,
which I think is the objective of the legislation. And I think
being clearer about the level of deference that should apply
would be the one fix that I would recommend in the legislation
as it stands.
To sum up, I don't think it is fair for people to complain
about activist judges if legislation virtually invites activism
by not being clear on dispositive issues such as this. And so I
would urge the court to take up this issue and be specific--
urge this Committee to take up this issue and be specific on
the level of deference that courts should apply.
Thank you.
[The prepared statement of Mr. Vatis follows:]
Prepared Statement of Michael A. Vatis
Mr. Nadler. Thank you.
I will now recognize Mr. Fein.
TESTIMONY OF BRUCE FEIN, CHAIRMAN,
THE AMERICAN FREEDOM AGENDA
Mr. Fein. Thank you, Mr. Chairman and Members of the
Committee. I would like to begin by trying to demonstrate why I
think something is rotten in the state of the state secrets
doctrine.
And let me begin by quoting a fundamental precept of our
jurisprudence announced by Chief Justice John Marshall in
Marbury against Madison, which has been celebrated as a feature
of all civilized law. He wrote: The very essence of civil
liberty certainly consists in the right of every individual to
claim the protection of the laws whenever he receives an
injury. The government of the United States has been
emphatically termed a government of laws and not of men. It
will certainly cease to deserve this high appellation if the
laws furnish no remedy for the violation of a vested legal
right.
And let us go to a hypothetical--it is derived from the el-
Masri case--about how the state secrets doctrine applies to
deprive someone of a remedy for the violation of a vested legal
right. Suppose an American citizen residing in Berlin is
kidnapped and tortured by CIA operatives based--excuse me--CIA
operatives based abroad. And they are acting on the basis of
the president's gut instincts that this American has
collaborated with al-Qaida in Iraq. The suspicion proves
erroneous and the citizen sues his CIA kidnappers and torturers
for deprivation of liberty and torture and violation of the
Constitution.
The state secrets privilege is invoked as a defense. It is
averred in an affidavit submitted by the director of the CIA
that to prove the kidnapping would disclose to the
international terrorist enemy a method of capture that would
enable a terrorist to train for means of evasion and that to
prove the torture would disclose a method of intelligence
collection that would alienate allies of the United States and
would enable the enemy to train terrorists to resist the type
of torture they might anticipate.
The prevailing state secrets doctrine would require
dismissal of the citizen's case. I don't think that doctrine
then, to quote from Congressman Franks, protects all Americans.
That American probably thinks it did a disservice to his
rights.
Moreover, I want to underscore that there is no anomaly in
the law to requiring the executive to choose between a fair
trial, disclosing information necessary for justice in a civil
case, when we examine the analogy in the criminal context. And
I want to draw on a very vivid snippet from history.
You may recall in the atomic spies case concerning the
Rosenbergs, those who had stolen secrets from Los Alamos, there
was an individual named David Hall. He was complicit. He was
never prosecuted because the FBI, the government, thought that
a prosecution would require disclosure of our ability to break
the Soviet Venona code. He still today is free; he was never
prosecuted. But the government was required to choose between
criminally prosecuting an atomic spy or due process, and they
decided they would not reveal the information, and he still
remains free.
So, when you think about regulating the state secrets
doctrine, which at its most disadvantageous posture toward the
government, it simply in some cases where the privilege is
rejected would require the government to say, all right, we
will accept a default judgment or an adverse finding of fact
and keep the state secret as was done with regard to David Hall
(sic). There is nothing unusual about that. No one has claimed
that the doctrine that requires the government to choose in the
CIPA context between prosecution and due process has created a
danger to the United States.
With regard to the specifics of deference that have been
raised, it is certainly true, I think, that Mr. Franks is
accurate that the government has a unique expertise with regard
to intelligence. They have been in the business a long time.
They can see pieces of a puzzle put together that someone on
the outside can't. So, that certainly is a strike in their
favor in deference, and judges are not superior to the
executive branch on that score.
But there is equally true another attribute of the
executive branch that looks in the opposite direction. There is
a motivation to lie and distort and to prevaricate to cover up
wrongdoing to cover up political embarrassment, and that is
hardly an exception in the annals of the United States, the
Pentagon Papers being one. We all remember Nixon claimed the
CIA assets in Mexico would be disclosed if you traced the money
to the Watergate burglars and otherwise.
And we can see the use of classified information for
political purposes in the Valerie Plame disclosure, where the
president unilaterally decided to declassify a document
obviously to try to disparage what he viewed as an adversary,
Mr. Wilson, in view of the purchase of uranium in Niger by Iraq
and otherwise. So, when you take on the one hand the expertise,
on the other hand the motivation to perhaps distort the
evidence, in my judgment this legislation should just flag for
the judge both of those elements to be considered in
determining whether the state secrets standard that has been
erected in the legislation has been satisfied.
I would like to conclude by making a couple of observations
about constitutional qualms. I think any constitutional
challenge to this bill would be frivolous. Remember, even
assuming that the president enjoys an inherent constitutional
right to protect some state secrets, that does not shield it
from regulation by Congress. Article I, Section 8, Clause 18
says Congress can regulate the exercise of any power vested by
the United States Constitution in any branch or officer
thereof.
And here we have a very mild congressional regulation of
the president's ability to keep state secrets, establishing
certain standards and levels of judicial review that have been
shown through the years if we could draw upon the experience
under FOIA, the experience under CIPA, the experience under
FISA, as well as the rather regular efforts that judges are
given in making determinations whether the CIA prepublication
review of written books and otherwise have disclosed classified
information. In none of these instances has there been shown
that this kind of judicial review cripples or handicaps or
impairs the president's ability to protect the national
security.
In all of these respects, I think the Committee is well
advised to move forward on this legislation. Indeed, there is
only one structural suggestion I would make--is that at
present, the bill does not distinguish between violations of
constitutional rights where the public interest in vindication
is at its zenith and violation of other rights under the
Federal Tort Claims Act. I would argue that when you have a
constitutional violation, the government's burden of proof
should rise to clear and convincing evidence that you have a
state secret involved and not simply a preponderance.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
Dear Mr. Chairman and Members of the Committee:
As Chairman of the American Freedom Agenda, I am pleased to share
views on the state secrets privilege generally and legislation that
would limit its invocation to frustrate private redress for
constitutional or sister violations of law perpetrated or aided and
abetted by the government. The American Freedom Agenda seeks
legislative reform of the state secrets doctrine as one of its tenets
for restoring checks and balances and protections against government
abuses. The organization was formed by stalwart conservatives,
including Richard Viguerie and former Congressman Bob Barr.
But the state secrets privilege is neither a liberal nor a
conservative issue. It addresses a question raised by Chief Justice
John Marshall of the United States Supreme Court more than two
centuries ago in Marbury v. Madison (1803): ``The very essence of civil
liberty certainly consists in the right of every individual to claim
the protection of the laws whenever he receives an injury. . . . The
government of the United States has been emphatically termed a
government of laws and not of men. It will certainly cease to deserve
this high appellation, if the laws furnish no remedy for the violation
of a vested legal right.''
``If this obloquy is to be cast on the jurisprudence of our
country, it must arise from the peculiar character of the case.''
The state secrets privilege assaults what Chief Justice Marshall
maintained was the essence of civil liberty. It denies a plaintiff
injured by constitutional wrongdoing of a remedy if proof of liability
would require disclosure of a state secret, i.e., information that
might damage the national security. In the words of the great Chief
Justice, the doctrine casts ``obloquy'' on the nation's jurisprudence,
and can be justified only by the ``peculiar character'' of the
litigation. The origin of state secrets as a defense to any type of
alleged government wrongdoing was thoroughly misconceived by Justice
Stephan Field in Totten v. United States (1875). There, the Court
declared that a contract with the government to spy was not enforceable
if proof of the contract would reveal a state secret. As applied to
voluntary contracts, the state secrets doctrine was unalarming because
if the government habitually dishonored its promises private entities
would no longer volunteer. But the gratuitous and expansive language of
Totten has been interpreted to make state secrets applicable to any
litigation where government wrongdoing is alleged.
The state secrets privilege is further dubious because it runs
against the grain of the doctrine frowning on evidentiary privileges
announced by Justice Byron White in Branzburg v. Hayes (1972): the
public enjoys a presumptive right to everyman's evidence.
The need for legislative reform of state secrets as the doctrine
has evolved in litigation is self-evident. Consider the following
hypothetical, fashioned largely from the state secrets case involving
the abduction, imprisonment, and interrogation abuse of Khalid El-
Masri, a German citizen of Lebanese descent. An American citizen
residing in Berlin is kidnapped and tortured by CIA operatives based on
President George W. Bush's signature ``gut instincts'' that the
American has collaborated with Al Qaeda in Iraq. The President's
suspicion is erroneous, and the citizen sues his CIA kidnappers and
torturers for a deprivation of liberty and torture in violation of the
Constitution. The state secrets privilege is invoked as a defense. It
is averred in an affidavit submitted by the Director of the CIA that to
prove the kidnapping would disclose to the international terrorist
enemy a method of capture that would enable terrorists to train for
means of evasion; and, that to prove the torture would disclose a
method of intelligence collection that would alienate allies of the
United States and would enable the enemy to train terrorists to resist
the type of torture disclosed. The prevailing state secrets doctrine
would require dismissal of the citizen's case resting on kidnapping and
torture, despite the obloquy the ruling would cast on the jurisprudence
of the United States. Moreover, by denying a remedy for the
constitutional wrongdoing the doctrine encourages repetitions of
lawlessness. That understanding is what provoked the Supreme Court to
fashion an exclusionary rule remedy for Fourth Amendment violations in
Mapp v. Ohio (1961), plus a civil damages remedy in Bivens v. Six
Unknown Agents (1971).
I thus applaud the endeavor of H.R. 5607 to constrain abusive
applications of the state secrets doctrine. My opening observations
lead to several legislative recommendations.
The burden of proving entitlement to the state secrets privilege
should be placed on the government for threefold reasons: evidentiary
privileges obstruct the search for truth; the state secrets privilege
casts aspersion on the nation's system of justice by blocking a remedy
for a violation of constitutional or sister legal rights; and, the
government holds the information relevant to proving the state secrets
privilege. I would also recommend that in cases implicating
constitutional as opposed to non-constitutional wrongdoing, the
government should be required to prove state secrets by clear and
convincing evidence standard, not simply by a preponderance.
In ruling on state secrets claims, the legislation should also
instruct judges to consider both the government's unique expertise in
knowing what disclosures might harm national security and the
government's institutional incentives to prevaricate or distort the
truth over national security to conceal crime, maladministration, or
politically embarrassing mistakes. In Reynolds, the government lied
about secret spying equipment to avoid civil liability for an airplane
crash under the Federal Tort Claims Act. In the Pentagon Papers case,
the government misrepresented the harm that would ensue from publishing
the history of the Vietnam War. President Nixon also made bogus
national security claims in an effort to obstruct the Watergate
investigation. In United States v. United States District Court (1972),
the Supreme Court rejected the government's claim that judges were too
naive in domestic security cases to ascertain probable cause needed for
warrants. Justice Lewis Powell explained: ``We cannot accept the
Government's argument that internal security matters are too subtle and
complex for judicial evaluation. . . . If the threat is too subtle or
complex for our senior law enforcement officers to convey its
significance to a court, one may question whether there is probable
cause for surveillance.''
While judicial vetting of national security determinations are not
daily subjects of litigation, neither are they a novelty. They are made
in suits under the Freedom of Information Act. They are made by FISA
judges in issuing warrants for the collection of foreign intelligence.
And judges review the government's deletions of alleged national
security information included in the writings of former CIA officers or
otherwise, for example, the decision by the United States Court of
Appeals for the Fourth Circuit in United States v. Marchetti (1972).
Evenhandedness is a chief feature of civilized law. The state
secrets privilege should not skew justice. It should not expose itself
to withering criticism reminiscent of Anatole France's observation:
``The law, in its majestic equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to steal
bread.'' Similarly, the state secrets privilege should empower the
judge, after examining in camera all evidence said to be protected by
state secrets, to award judgment either in favor of the plaintiff or in
favor of the defendant whenever the ends of justice would so require.
The privilege should not be a one-way street in favor of the defendant,
especially because--in the words of Chief Justice Marshall--its
invocation by the defendant casts obloquy on the nation's
jurisprudence.
Finally, constitutional doubts raised by detractors of the
legislation are frivolous. No Supreme Court decision holds that state
secrets in civil litigation is anchored to the Constitution. Further,
under the Gravel precedent, Members of Congress enjoy authority to
disclose classified information in conjunction with their legislative
duties. In addition, even if there were no state secrets privilege
whatsoever, the President would not be compelled to disclose anything.
The government could simply accept a default judgment or an adverse
finding of fact and keep all information secret to protect what the
President believes is national security. A similar choice is required
in criminal prosecutions under the Classified Information Procedures
Act of 1980: when a summary of classified information will not satisfy
the notice required by due process, the government must drop the
prosecution if it wishes to protect the alleged state secrets.
Even assuming the state secrets privilege is an inherent Article II
power to protect the national security, Congress is empowered to
regulate its exercise under the Necessary and Proper Clause to prevent
abuses which cast obloquy on the nation's jurisprudence and to deter
constitutional and related legal wrongdoing. In addition, the
separation of powers doctrine only prevents Congress from exercising an
``overriding'' influence over an executive power. The proposed
legislation does not require the President to reveal anything believed
to need secrecy to protect the national security. The maximum sanction
under the proposed legislation is the payment of money damages which
would be funded from congressional appropriations. And the state
secrets standard established by the legislation does not compromise
national security but generally echoes what the President through
executive orders has decreed justifies secrecy.
In sum, state secrets legislation is clearly constitutional and
should not be skewed by concocted fears of unconstitutionality.
Mr. Nadler. Thank you.
We will now go to questioning of the witnesses. 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, provided 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
have their questions. The Chair reserves the right to
accommodate a Member who is unavoidably late or only able to be
with us for a short time.
I will begin by recognizing myself for 5 minutes to
question the witnesses.
First of all, Mr. Fein, we have heard arguments that the
Constitution empowers the president to protect national
security and that the state secrets has a grounding in these
constitutional claims. Mr. Vatis says that it requires the
courts to defer to the government's claim.
It seems that at bottom this is the same argument we have
heard over and over in regard to many controversial secret
programs, namely that we look only to the president's Article
II powers, as if the Congress' Article I powers and the
Judiciary's Article II powers did not exist. Could you comment
on this briefly because I have got a bunch of other questions?
Mr. Fein. Yes, the Constitution abhors the idea that any
particular power is totally unchecked by any of the other
branches. The basic standard is do other branches that are
regulating or overseeing exercise a crippling or dominating
influence over the executive branch, and this legislation
certainly does not meet the standard.
Mr. Nadler. So, it would be constitutional in your view.
Mr. Fein. Absolutely.
Mr. Nadler. Thank you.
Mr. Vatis, we seem to agree on many points: that Congress
must check the tendency of any Administration to overclassify
and use secrecy to cover up, that judges must directly examine
the evidence and make the ultimate judgment on privilege, as
has not often been the case in the state secret cases. I
question your view that a court should give deference to the
government's judgment on the privilege, as I understand your
position.
According to the dictionary, deference--and the bill says
that the government's testimony should have the same weight as
other expert witnesses. According to the dictionary, deference
has two main meanings. It can mean that one shows appropriate,
courteous respect to a person perhaps for their knowledge,
expertise, experience, et cetera. We expect a judge to show
deference in that sense to any expert witness. And our bill
says that the government's expert testimony should be treated
in the same manner as other expert testimonies.
However, the primary meaning of deference, according to the
dictionary, is submission or yielding to the opinion or
judgment of another. If the judge has to submit or to yield to
the judgment of the executive, can he meaningfully make the
ultimate independent judgment if in the next breath you suggest
that the judge has to defer to the executive's assertion, or do
you have a different meaning of the word deference?
Mr. Vatis. Mr. Chairman, I definitely do not mean the
second definition that you offered of submission. I do mean,
though, giving due regard and substantial weight to the
government's judgment about the narrow issue of whether----
Mr. Nadler. Shouldn't the court give due regard and
substantial weight to any expert witness?
Mr. Vatis. It should give due regard based on the
background of those witnesses, but I think going in, there
should be at the very least a presumption that the government
has a valid basis and that it is----
[Crosstalk.]
Mr. Nadler. I think that is the key. There should be a
presumption that the government has a valid basis for its claim
of secrecy.
Mr. Vatis. If supported by logic and commonsense and by the
evidence that the official relies on----
Mr. Nadler. All right----
Mr. Vatis [continuing]. In the declaration or affidavit.
Mr. Nadler. All right, well, the bill encourages courts to
appoint special masters or independent experts to assist the
court. If the court were to appoint an independent expert, let
us say, who had recently served as the director of the CIA, and
on behalf of the government a junior CIA official testifies,
why shouldn't the court treat these two witnesses the same and
be required to undertake a similar assessment of their
expertise and credibility, particularly since the independent
expert has no vested interest in the outcome?
Mr. Vatis. Because I think that the--for two reasons: One,
this presently serving government official has access to
intelligence and knowledge of ongoing programs and ongoing
governmental interests that the former government official who
might be serving as a special master or witness----
Mr. Nadler. And second?
Mr. Vatis [continuing]. Does not have. Second is the
constitutional responsibilities that I think should be accorded
some weight. And I think it is important on this issue to think
of some concrete examples. If the plaintiff in a civil case is
seeking access to notes of a meeting between a high-level U.S.
government official and a high-level allied official, for
example, in which a key decision was made that affected the
plaintiff, and the government says if that information is
disclosed, it will cause significant harm to our diplomatic
relations with that ally, they will never trust us again, and
they offer details, I don't think the court should say, well,
the witness----
Mr. Nadler. You don't think the court should substitute its
judgment--you don't think the court should substitute its
judgment on that question.
Mr. Vatis. On that sort of question.
Mr. Nadler. Okay, Mr. Fein, could you comment on what Mr.
Vatis has said?
Mr. Fein. Well, there is a similar argument that was made
by the government in a case in 1972. It was called the Keith
case--Mr. Conyers probably remembers that; it is out of his
district, Judge Keith--in which the government argued that
judges are too naive and simpleminded to decide in domestic
security cases whether there is probable cause to believe that
some wrongdoing in a security area was underway.
And Justice Powell wrote for a unanimous court, quote, ``we
cannot accept the government's argument that internal security
matters are too subtle and complex for judicial evaluation. If
the threat is too subtle or complex for our senior law
enforcement officers to convey its significance to a court, one
may question whether there is probable cause for
surveillance.'' That certainly was a repudiation of the idea
that judges simply are uncomprehending of the nature of
security risks and therefore must trust the word of the
government branches.
Mr. Nadler. Thank you. My last question--because my time is
almost up under lenient interpretation.
Ms. Fuchs, you have litigated a lot of government secrecy
claims, and you have written a major article on the proper role
of judges in state secret cases. We know there has been abuse
of secrecy claims illustrated in cases like Reynolds and
through admissions of high-ranking officials of massive
overclassification to avoid government embarrassment. In light
of that history, what do you think the impact would be of
requiring substantial deference or utmost deference of state
secret assertions?
Ms. Fuchs. I frankly think that using the word deference at
all is going to nullify everything else that is in the bill. I
think that it is clear in the FOIA instance where courts are
supposed to be conducting de novo review that they will always
sort of tend toward deference anyway. And so it is important
that any extra weight that is given to the government be very
narrowly constrained.
Mr. Vatis talked about due regard being given to the
government's view based on their background. And indeed, you
know, the expertise of someone who is currently operating
within an intelligence agency would be given regard by a judge.
That is what judges do all the time. But if the word deference
is used for some sort of weight, then the impact is basically
going to be that courts are going to tend toward a sort of
chevron deference. And if that is the case, there is not going
to be any real check on the secrecy.
Mr. Nadler. I thank the witnesses.
Now recognized for 5 minutes, the distinguished Ranking
Member, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
You know, Mr. Chairman, one of the privileges I have in
this Congress is also to serve on the Armed Services Committee
and the Subcommittee on Strategic Forces. And of course the
Strategic Forces Committee has to do with the nuclear profile
of this country. And I was struck by Mr. Fein's comment
relating to the Rosenbergs. And you know, it occurs to me that
sometimes we need to understand the significance of our state
secrets.
I am convinced historically that had we been able to
control our state secrets that there never would have been a
Cold War. And as we discuss some of the challenges that we face
with other Nations even today--China is a perfect example. Much
of the technologies that they have received--and this is all
open-source information--that they have received--at least the
reports or the comments that I am making are--that much of the
information that they have received from our government, either
clandestinely--they have either stolen it or it was given to
them otherwise--has given them great advances in the area of
aiming technologies, missile aiming technologies, that are, for
instance, part of the reason that they have been able to
advance their ASAT capability, shooting down their own
satellites.
And I am afraid that some of that information was lost
accidentally by the United States. Some of it was transferred
openly by the Clinton administration. But the reality is that
we probably are on some type of collision course at some point
with China in what I don't know how will completely play out.
The challenges of state secrets are not small ones. I am
convinced, being on the Armed Services Committee, that the
greatest compromise to American military superiority is the
loss of our secrets. Nothing empowers our opponents more than
them gaining our technologies and either leapfrogging on it or
building on it to be able to surpass where they would have been
otherwise.
I just wanted to throw that out, Mr. Chairman.
Mr. Chairman, the state secrets doctrine remains strongly
supported by today's Supreme Court, even in its Boumediene
decision, granting habeas corpus litigation rights to
terrorists. And by the way, Mr. Chairman, that was the part
that I found laughable, not the bill--was the----
Mr. Nadler. I think that was clear.
Mr. Franks [continuing]. That the court--I just wanted to
make--in deference to my good friend, Chairman Conyers.
Granting habeas litigation rights to terrorists, I think,
is also something else that is on a collision course with
reality. Justice Kennedy in his major opinion acknowledged the
government's, quote, legitimate interest in protecting sources
and methods of intelligence gathering and stating we expect
that the district court will use its discretion to accommodate
this interest to the greatest extent possible, while citing its
Reynolds decision in doing so.
And so, Mr. Vatis, my question to you is what does that
tell you about the Supreme Court's continued interest in
protecting the state secrets privilege as understood today?
Mr. Vatis. I think the Supreme Court in the Boumediene
decision and in other previous decisions--Reynolds and even
earlier as you have alluded to--have articulated a privilege
that has substantial force. And I think if left unregulated by
a statute, the Supreme Court and lower courts will continue to
do so. As I said in my opening statement, I don't think that
precludes this body of government from getting involved and
regulating judicial review of assertions of the state secrets
privilege. I think it is a perfectly appropriate endeavor.
I do think, though, that the regard for executive judgment
and executive prerogatives under the Constitution should be
part of this statute. And I think the place where that should
be reflected is in the standard review, as I have alluded to.
And again, I don't want my position to be misunderstood or
mischaracterized. I agree with the provisions in the bill
calling for independent judgment, independent review of all of
the evidence by the judge. It is merely a question of whether
government witnesses should be given deference.
The word deference does not need to be used. Words like
substantial weight, words like if it is supported by the
evidence or if a determination is reasonable, things like that.
There are many ways that this body of government has required
deference. There are many articulations of it and many levels
of it. I think utmost deference would be the wrong standard.
Mr. Franks. I understand.
Mr. Vatis. But----
Mr. Franks. Thank you, Mr. Vatis.
Mr. Vatis. But I think there should be some level of
deference----
Mr. Franks. Thank you, sir.
Mr. Chairman, I guess, you know, I have made this point
before. This, again, is another hearing that seems to point
toward doing what we can to give terrorists or the enemies of
American national security greater rights, greater
opportunities to avoid justice here.
And I understand that part of our constitutional system is
to make sure that those accused have the rights of being able
to either extol or demonstrate their innocence. I understand
that, and I believe in part of it. But we have not had one
hearing yet on doing what we can in this Committee, which is
our primary charge, to protect the constitutional rights of the
people, to protect their lives and their constitutional rights,
their lives being their first constitutional right----
Mr. Nadler. Would the gentleman yield?
Mr. Franks. Yes, sir, Mr. Chairman.
Mr. Nadler. Well, I just point out that the bill we are
considering has nothing to do with the rights of people accused
of anything. The question of how to handle secrets in the
context of a criminal trial was determined by this Congress 30
years ago, 20 years ago, in the--what do you call it--the
Classified Information Procedures Act. What this bill deals
with and what this hearing deals with is how to deal with civil
litigation if someone is suing the government claiming his
rights are violated and the government asserts a state secret.
Mr. Franks. I understand that, Mr. Chairman.
Mr. Nadler. I yield back.
Mr. Franks. I am reclaiming my time.
The challenge is that some--you know, the terrorist
organizations are not so acquainted with the subtleties that
you mention, and they are already suing our government. So, it
is astonishing to me. I mean, in my opening testimony, I talked
about Guantanamo detainees that will be suing our government
pretty soon under the new habeas rights that the Supreme Court
gave them.
So, the bottom line here is--what concerns me is it seems
like most of the impulse of the Committee has been to try and
embarrass the Administration, hurt the Administration, rather
than try to do what we can to protect the Constitution and the
American people. And I just point to the Robert Chesney of Wake
Forest University law school, the study that he did showing--
and I will just read these two quotes and I am done.
He concluded that recent assertions of privilege are not
different in kind from the practice of other Administrations.
And he also concluded that the available data, while they do
suggest privileges continue to play an important role in the
Bush administration, it does not support the conclusion that
the Bush administration chooses to resort to the privilege with
greater frequency than prior Administrations or unprecedented
substantive context.
And I just feel like we are once again focusing on things
that are not to the greatest extent important to the American
people and to the Constitution of the United States. And I
think that is a failing of the Committee here.
And I yield back.
Mr. Nadler. I thank the gentleman.
I would simply like to comment briefly that this is not an
attempt to embarrass this or any other Administration. I
believe, and we differ obviously, that for future
Administrations--because if we pass this bill, by the time it
is signed into law, it is going to be a future Administration--
we need to control the use of the state secrets privilege. And
whether or not the Bush administration has used it more
frequently is an interesting question.
But the real change is that it is used today in a way that
it wasn't used previously to dismiss a case ab initio, that is
from the beginning, not merely to object to a specific piece of
evidence. And this bill seeks to deal with that question too,
although we haven't had any comment on that.
But I will now yield to the gentleman, the Chairman of the
full Committee, the gentleman from Michigan, Mr. Conyers, for
questions.
Mr. Conyers. Thank you, Mr. Chairman. This is an incredible
hearing for this reason. My dear friend, the Ranking Member,
thinks it is an incredible hearing for another reason. But the
reason that I think it is incredible is that all of the
witnesses have a common point of agreement except on the exact
standard of court review. That is really quite amazing to me.
Mr. Vatis argues for deference. Ms. Fuchs and Shapiro and
Fein caution strongly against that. And we may be able to--is
there someway that there is a compromise that could loom up
that would get all of you aboard on this point that Mr. Vatis
has raised, or are we going to have to decide one way or the
other?
Mr. Vatis. Mr. Chairman, I think there are ways to bridge
the perceived gap because I don't think the gap is as large as
it might be described. I think there are, as I mentioned
earlier, different levels of deference that can be accorded.
Ms. Fuchs has said courts are going to defer anyway, but
essentially I think she said don't invite them to defer too
much. I think by being specific in the statute that is
ultimately passed, Congress can make sure that they don't defer
too much. If the statute doesn't say with specificity how much
deference to give, how much weight to give to the
Administration's assertion, some courts will defer too much;
other courts won't defer enough in my judgment.
And so I just think Congress should be specific about how
much weight should be given to the Administration's assertions
of harm. And I think different words can be used, and we could
probably come up with words or options, I think, that might be
a compromise.
Mr. Conyers. Well, that is encouraging.
Mr. Fein. I think, however, that there needs to be some
consensus as to whether or not the judge only is to be alerted
to the fact that the government has expertise without
mentioning it does, but it also has the incentive to use that
expertise for political purposes and distort the record. They
are both true, and they both look in opposite directions when
it comes to paying attention to what the executive branch has
said would be the national security fallout.
The fact is the government sometimes lies about what it
knows--I mean, if we would go back to the Gulf of Tonkin
Resolution with President Lyndon Johnson about whether there
were torpedoes shot against the Turner Joy. So, it doesn't mean
that they always lie, but sometimes they do; sometimes they
don't. And I think it is important that the statute flag that
as an element that the judge should consider. I think there is
a too ready acceptance that anytime the executive branch says
anything, well, we should automatically bow like vassals and
say it must be true.
Mr. Conyers. But is Mr. Vatis right that we might be able
to resolve this language? This is a matter of phrasing.
Mr. Shapiro. Mr. Chairman, let me just say, I do not think
this is an unbridgeable gap. But I think the first point you
made is really the most important and that is that the areas of
agreement among all of us are far more substantial than this
area of disagreement, as important as it may be.
So, everybody who is testifying here today believes: number
one, that Congress has the constitutional authority to act;
number two, Congress should exercise that authority; number
three, Congress should exercise that authority in a way that
preserves a meaningful and independent judicial role in
reviewing the state secrets privilege; and number four, the
state secrets privilege should not, except in the rarest of
circumstances, be used to dismiss cases in their entirety.
Those areas of common agreement, seem to me, form the basis
for very significant legislation from this Committee and this
Congress. I happen to agree with Mr. Fein and Ms. Fuchs that
the issue is really not one of deference, that the issue is one
of persuasiveness. Deference tends to confuse the issue.
And to use Mr. Vatis' example, if you have a present
Administration official who has access to ongoing intelligence
information that is no longer available to a former
Administration official, then the present Administration
official's testimony will be more persuasive and is likely to
be credited by the judge for that reason without having to put
the language of deference or substantial weight into the bill.
I think the way to address the concern that Mr. Vatis is
raising, which I understand, may be not in the language of the
bill but in some cautionary language in the Committee report.
Mr. Conyers. Does the witness represent your views, Ms.
Fuchs, pretty well?
Ms. Fuchs. I would say that does represent my view. I just
want to add one point, which is that this bill also does
provide for interlocutory appeal. And so there is a protection
against a judge who is overreaching from the government's
perspective. While it may be that there is a concern about one
rogue judge, once you get it to the court of appeals where you
have three appellate judges, that is certainly a significant
protection against a judge going too far.
But I also just would add that the former director of the
Information Security Oversight Office, who is also the
secretary of the Interagency Security Classification Appeals
Panel, which decides on classification reviews within the
government, has said that his power to actually order
declassification was never used but proved to be a very
forceful power to have in trying to get the agency to explain
why things couldn't be declassified.
Mr. Conyers. Well, I want to thank you all. This has been a
very important and significant hearing.
Mr. Nadler. The gentleman from Virginia is recognized.
Mr. Scott. Thank you, Mr. Chairman, and thank you for
calling the hearing.
Mr. Fein, as I understand your testimony, the state secret
privilege does not exist in criminal court.
Mr. Fein. There is a requirement that if the government is
unable to provide a summary of classified information that
would give the defendant all the due process, notice and
warning that he would need to mount an adequate defense, the
government either has to dismiss the case or yield the
evidence.
Mr. Scott. And if the government is being sued as a
defendant in a case, the state secret is a defense in a civil
case.
Mr. Fein. That is correct. And I think what this bill does
in circumstances where the judge would think it would be in the
interest of judgment to say that if the government does not
comply with an obligation to give over evidence that it may
think should be protected but the judge says should not be,
then the government has to choose either default judgment or
give over the evidence.
Mr. Scott. Okay, now, this works when the government is a
defendant. How does it work if the government is not a
defendant but just evidence is needed to sue somebody else?
Mr. Fein. The government usually then intervenes and makes
the case. That is what happened in the telecommunications cases
that were recently mooted by this House's decision to vote for
the FISA Amendments Act of 2008.
Mr. Scott. Now, who gets to claim the privilege? Is it the
president himself, high-ranking officials or any Federal
employee?
Mr. Fein. I think the Congress could stipulate who should
be required to actually submit the affidavit and claim the
privilege. Customarily, it has not been required to be the
president. Oftentimes, it would be CIA director, sometimes
Defense Department persons. But I think this body could require
the highest level of attention to this, like in executive
privilege cases where the president would have to invoke the
privilege for it to apply.
Mr. Scott. Now, you have indicated that there is a
difference between a state secret and an embarrassing
situation. And if you have presented a prima facie case, you
don't want the government just to say we win but we have a
state secret and can't show you why.
Mr. Fein. No, I don't want that to happen, especially when
you have constitutional wrongdoing at stake. And I think, Mr.
Congressman, that it is especially important to preserve the
ability to seek redress for constitutional wrongdoing in a
private litigation because as we know that the government has
exclusive discretion to bring criminal charges against an
executive official based upon alleged constitutional
wrongdoing, and there is no check on the executive branch that
decides that is not appropriate. So, this is a complement to
separation of powers to enable at least a different forum to
examine what is allegedly a constitutional wrong.
Mr. Scott. And with a state secret privilege claim, who has
the burden of proof now, and who would have the burden of proof
under the bill?
Mr. Fein. Well, the burden of proof and privilege
customarily lies on the party seeking to invoke it. And this
bill I think properly makes it clear that the burden of proof
is on the government. I would suggest that in constitutional
claims it be a burden not just by preponderance but by clear
and convincing evidence when the result is if it is proven, the
claim is dismissed.
Mr. Scott. Now, is this an ex parte or an adversary
proceeding?
Mr. Fein. It is really up to the judge to decide what is
necessary to protect national security.
Mr. Scott. And is the fact that our government actually
tortured someone--is that a state secret?
Mr. Fein. Well, I think certainly in many executive branch
officials that would be correct because you are disclosing a
method of intelligence collection. And it is often said the
reason why we have to keep secret all these methods is that
otherwise the enemy would know how to train its cohorts to
resist this kind of torture. And that is what, to me, makes the
state secrets doctrine without some regulation quite an
instrument of oppression.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. I see Mr. Cohen is just arriving.
And, Mr. Cohen, do you wish to be recognized to ask
questions at this point?
The gentleman from Tennessee is recognized.
Mr. Cohen. Thank you, Mr. Chairman. I have been in
Transportation, where I had a bill.
What should the judge do if the government provides a
substitute for limited release to counsel and parties but the
government argues it cannot provide an unclassified version as
the bill currently stipulates?
Mr. Fein, can you help me with that?
Mr. Fein. Well, my desire is that if the unclassified
version provides all the evidence needed for the plaintiff to
move forward on the case, there is nothing wrong with that.
That is how it works in the criminal context.
My view is that if the plaintiff can establish a prima
facie constitutional wrong, and that obviously means the
government has to have an opportunity to discredit the evidence
submitted, and then the government says, but sorry, you lose
because state secrets would be disclosed in order to prove a
defense maybe that we didn't torture you or whatever, then I
think, as in the criminal context, the judge should have
discretion, just award judgment for the plaintiff.
The plaintiff would have to then prove the amount of
damages involved. I don't think it comports with our idea of
justice to tell someone you lose your right for a remedy for a
constitutional wrong because the government would disclose a
state secret in order to defend or in order for you to prevail.
And let me give an example of the situation: the el-Masri
case, where the gist of the government's defense was if Mr. el-
Masri had to prove the identity of the CIA operatives who
kidnapped and took him to Bagram for coercive questioning--
well, a CIA operative is an intelligence source and so there is
a state secret, so you lose. That seems to me a monstrous
proposition in a government that is supposed to be a government
of laws and not of men.
Mr. Cohen. Does anybody on the panel differ? Good.
I understand state secrets and the importance of the state
secrets, but as Mr. Fein points out, the government is supposed
to be of laws, and we are supposed to give people an
opportunity when they have had some wrong done to them to have
a redress of grievances. That seems inherent in our system of
government, a due process hearing and opportunity for a hearing
and then for some type of a decision. And it does seem like we
should come up with some type of an alternative that can
satisfy both parties, which we normally do in these cases.
And I would yield the remainder----
Mr. Nadler. Would the gentleman yield for a moment before
he yields back?
Mr. Cohen. Yes.
Mr. Nadler. Thank you.
I just want to mention that the bill is very clear on that
point. It says in a civil action brought against the
government, if the court orders the government to provide a
non-privileged substitute for evidence or information and the
government fails to comply, in addition to any other
appropriate sanctions, the court shall find against the
government--the court shall find against the government on the
factual or legal issue to which the privileged information is
relevant.
It doesn't go as far as Mr. Fein would say that the courts
shall find against the government on the case that you win. But
it says on the factual or legal evidence, on the factual or
legal issue to which the point of evidence is relevant, that if
the government refuses to provide it despite the court saying
it can be provided, that the court shall find against the
government on that factual or legal issue, which may or may not
determine the outcome of the entire case.
Mr. Cohen. And now I yield back the remainder of my time.
Mr. Nadler. Let us see--we have no further witnesses.
Without objection--well, first of all, let me say I thank the
witnesses, and I thank the Members for their participation.
Mr. Fein. Mr. Chairman----
Mr. Nadler. I am told that Mr. Fein had something he wanted
to add, so----
Mr. Fein. I just would like----
Mr. Nadler. Without objection, I will recognize him.
Mr. Fein. Thank you, Mr. Chairman.
I would like to make this closing observation, and that is
there has been a suggestion that all of these efforts to inject
due process in the rule of law makes us less safe. Well, we
have 26 CIA operatives under indictment and prosecution in
Milan, Italy, for kidnapping and allegedly taking an Egyptian
cleric to Egypt for torture. That is not making us safer.
With Mr. el-Masri's case, I believe there are arrest
warrants out for 13 CIA operatives for the kidnapping and abuse
of Mr. el-Masri. We now have suggestions in the recent book by
Jane Mayer that FBI agents who are experts in interrogation
refused to participate in detainee debriefing by the CIA
because they did not want to be complicit in war crimes. Those
kinds of things don't make us safer. It is wrong to assume that
every time we move to a rule of law we become safer.
Mr. Franks. Mr. Chairman, could I just respond--60 seconds?
I----
Mr. Nadler. Without objection.
Mr. Franks [continuing]. Absolutely believe that the
gentleman makes a good point. I would suggest that the
indictments and that these people are being looked for is some
evidence that the system is working already.
Mr. Nadler. But those--excuse me, would the gentleman
yield?
Mr. Franks. Sure.
Mr. Nadler. Are those indictments in the United States or
in other countries?
Mr. Fein. They are indictments of the United States
officials, and moreover we have refused to extradite and
cooperate----
Mr. Nadler. So, they are indictments in other countries.
Mr. Fein. Yes.
Mr. Nadler. Thank you.
I would suggest that indictments in other countries don't
necessarily show--Mr. Franks, I would suggest that indictments
of American government officials by other countries don't
necessarily show that the system is working well.
Mr. Franks. To suggest that we have war crimes on our hands
here, Mr. Chairman, I just am convinced that, you know, when we
see wrongdoing in our system, there is an existing commitment
to pursue that. We are going to execute one of our own soldiers
before long, Mr. Chairman. This country is committed to
justice. And I am just convinced that we are going in a
direction here that is ultimately not to the benefit of the
American people and the Constitution.
Mr. Conyers. Mr. Chairman, might I----
Mr. Nadler. Without objection, the Chairman is----
Mr. Conyers. What is the direction that you see me going in
that is detrimental to the country?
Mr. Franks. Mr. Chairman, I think in general--I have said
this before. I think in general this Committee has--and I
understand the political nature of the Committee, but I think
we have been so focused on things like habeas corpus for
terrorists, which will ultimately make our efforts against them
unworkable, things like that, that we are moving so much in a
direction here to make it easier for terrorists to survive the
system that we are overlooking the fact that jihadist terrorism
and the coincidence of nuclear proliferation represents a
profound threat to this country. And perhaps we may have to
revisit this in times in the future that we don't----
Mr. Conyers. And do you have the same view of the direction
of the Supreme Court?
Mr. Franks. I apologize, Mr. Chairman.
Mr. Conyers. I said do you have the same view about the
direction of the Supreme Court as well as this Committee?
Mr. Franks. Well, the only Supreme Court ruling that I
talked about today was the Boumediene decision, and I think
that was wrongly decided. And I think ultimately the Congress
will have to address it.
Mr. Conyers. I am not talking about that one case. I am
talking about the direction of the Supreme Court in your
opinion.
Mr. Franks. You are talking about the general trend----
Mr. Conyers. Yes.
Mr. Franks [continuing]. Of the United States Supreme
Court?
Mr. Conyers. That is right.
Mr. Franks. Well, I guess right now it is pretty much, you
know, been politicized to the extent that almost everyone in
this Congress knows that there are four liberals on the court
and four conservatives and one guy in the middle. And it
shouldn't be such that every time the Supreme Court sits down
that we have to wonder what one guy is going to do to the
Constitution.
Mr. Conyers. So then, I presume that your answer to my
question is yes.
Mr. Franks. I am not trying to be dense here, Mr. Chairman.
Your question is: Do I think the Supreme Court is doing what?
Mr. Conyers. Well, that is what I was trying to find out
from you, sir. You were the one who said you thought the
Committee was moving in the wrong direction.
Mr. Franks. Right.
Mr. Conyers. And then I was asking you do you think the
Supreme Court is moving in the wrong direction as well, and I
presume that your answer is yes.
Mr. Franks. I think they went in the wrong direction with
the Boumediene decision, yes, sir, I do.
Mr. Conyers. Well, I give up.
Mr. Franks. You know----
Mr. Conyers. But we have plenty of opportunity--look, you
and I work together 4 to 5 days a week whenever we are in
session, and so we have a great opportunity to continue this
discussion without taking up the time----
Mr. Franks. Thank you, Mr. Chairman, I would be glad. I
really do want to--I do think Mr. Alito and Mr. Roberts were
great additions to the court.
Mr. Nadler. Well, thank you for that opinion.
Inspired by this colloquy, without objection, I am going to
ask the witnesses one final question for each of you. And this
will actually get back to discussing this bill sort of.
[Laughter.]
If you have an Administration, and I don't mean to cast any
aspersion on this or any other Administration. I am asking a
theoretical question now. If you have an Administration that is
abusing civil liberties, that does wrong things to people, and
let us assume that an agent of that Administration improperly
arrests someone, improperly holds that person under
incommunicado, improperly tortures that person, improperly does
all kinds of violations of rights of that person, one presumes
that that Administration will not prosecute itself, will not
prosecute its own agents for those terrible acts.
The normal remedy in American law--the only remedy that I
know of--is for that person, once recovered from the torture,
to sue for various kinds of damages and in court elucidate the
facts and so forth and get some justice and perhaps bring out
to light what happened so that that Administration would not do
it again or the next one wouldn't.
If, however, that lawsuit can be dismissed right at the
pleading stage by the assertion of state secrets, and if the
court doesn't look behind the assertion to the validity of that
assertion and simply takes it at face value, well, the
government says state secrets would be revealed and it would
harm the national security if this case went forward, therefore
case dismissed, which seems to be the current state of the
law--if that continues and if we don't change that, what remedy
is there ever to enforce any of our constitutional rights? Or
am I being too alarmist?
Why don't we go left to right here.
Ms. Fuchs. I mean, indeed that is a fact, sort of the model
in the FOIA, because the government certainly isn't doing
anything to make sure that the public is getting information it
wants. And so we are very free to sue, and we go to court. And
Congress has said in cases where its exemption--where the
information is security classified, you can still sue, and you
can still challenge the secrecy. And so that is exactly what is
needed here.
I wonder if I might take one moment to respond to Mr.
Franks' statements earlier--because I have a burning desire to
do so--about the importance of protecting our country. I
suspect that everyone on this panel cares a great deal about
protecting country. I mean, we are all American citizens. You
know, I have children; I am a mother. I want my kids safe. And
I live in Washington, D.C., which some people think is, you
know, ridiculous.
I don't think this bill is about, you know, whether or not
we are protecting our country. The reality is that our
government spent $8 billion in the last year protecting
secrets, and I would like that $8 billion of my tax money and
everyone else's tax money to be spent protecting real secrets,
not protecting things that are just embarrassing to the
government and not using that to interfere with people's
ability to seek compensation----
Mr. Nadler. Thank you.
Mr. Shapiro?
Mr. Shapiro. Four quick sentences: Number one, what you
describe as hypotheticals are, of course, sadly not
hypotheticals for the actual experiences of not only Mr. el-
Masri but Mr. Arar and others. Number two, I think when the
government invokes the state secrets privilege to prevent
inquiry into serious allegations of torture and kidnapping,
courts need to look at the invocation of the state secrets
privilege skeptically and make sure that it is really being
raised to protect national security and not to shield
government officials from legal and political accountability.
Number three, I will say that the point you raise about not
dismissing cases at the outset is an extraordinarily important
one. I tried to address it, albeit briefly, in my opening
remarks. I have no doubt that had we been given the opportunity
in the el-Masri case, we could have proven that he had been the
victim of serious and government misconduct and abuse based on
non-privileged information in the public record. We were never
given that opportunity.
And fourth, I think if the courts are not going to respond,
I would hope at the very least that this Committee and other
Committees in Congress could perform a fact-finding role in
some of these cases----
Mr. Nadler. All right, but my question, and I hope you will
answer the question and the other two witnesses also. Let us
assume we change nothing with regard to the state secrets and
it continues the way it is. What mechanism exists if any under
which we can prevent any Administration from violating all
sorts of constitutional rights period?
Mr. Shapiro. I think we have no legal mechanism, Mr.
Chairman.
Mr. Nadler. Thank you.
Mr. Vatis?
Mr. Vatis. Mr. Chairman, I think even under this bill, if
it were passed as written today, there would still be cases
where the government could violate the law, could violate
criminal laws, and yet the state secrets privilege would result
in the case ultimately being dismissed if there were no other
way to make the case with unclassified, non-secret evidence.
But there is another mechanism. We should not rely just on the
courts to check illegal conduct by the executive branch.
There is, after all, this body, which has extensive
oversight powers and also ultimately has the power of
impeachment, which at least in the last 8 years has not been
utilized. And I will leave it purely in the realm of the
hypothetical that you pose, but if an Administration is acting
lawlessly and repeatedly so in violation of criminal laws, that
is certainly a high crime and misdemeanor worthy of
impeachment. And so the political branch that this body
represents, I think, has a role that it can and should play in
such instances.
Mr. Nadler. Thank you.
Mr. Fein?
Mr. Fein. I don't need to elaborate on my view of
impeachment, but there is an alternate idea that maybe can be
explored. I understand the independent counsel law fell into--
because of disrepute, but it would be constitutional under the
Supreme Court's decision to establish the ability to create a
special counsel, if you will, appointed by judges in cases
where the government had the clear conflict of interest you
identified that would prevent an evenhanded assessment of
whether or not crime had been committed to enable something
like a second edition of Archibald Cox to investigate something
like Watergate.
And that is what I think needs to be seriously explored,
because you are not going to resort to impeachment, you know,
every time the government violates a law and it is not
prosecuted by the president of the United States. So, it is
something that would be an ad hoc kind of arrangement when the
conflict of interest is most acute, when it is the higher-
level-up officials who are implicated.
And one example would be: I know the investigation now
underway with the CIA officers who destroyed that video
interrogation tape would be guilty of obstruction of justice or
otherwise. There the reliance upon the Department of Justice to
prosecute is--the confidence level is very low. An outside
counsel would probably be a better choice.
Mr. Nadler. Thank you.
I will now recognize the distinguished Ranking Member for
comment.
Mr. Franks. Mr. Chairman, just to clarify. You know, my
comments related to what I perceive as the wrong focus of this
Committee does not in any way call into question the patriotism
or the commitment to anyone on the panel. I would just suggest
that while we have spent $8 billion--and I will accept your
number--to keep our state secrets, I would remind us all that
two airplanes hitting two buildings cost us $2 trillion. And if
those same people gain the right state secrets, they may turn
jihad into nuclear jihad, and that will be of unfathomable
danger to our children.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I wish to thank our witnesses and the remaining Members.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as you can so that the 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.
With that, again I thank the witnesses. I thank the
Members.
And this hearing is adjourned.
[Whereupon, at 2:04 p.m., the Subcommittee was adjourned.]
