PDF Version

                  STATE SECRETS PROTECTION ACT OF 2008



                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                               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
MAXINE WATERS, California            DANIEL E. LUNGREN, California
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

            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
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
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


                             JULY 31, 2008


                                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


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


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


                        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 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 


    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 
    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.


    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 
    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.

                     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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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----
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Scott. And if the government is being sued as a 
defendant in a case, the state secret is a defense in a civil 
    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 
    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 
    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 
    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? 
    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 
    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 
    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 
    Mr. Franks. You are talking about the general trend----
    Mr. Conyers. Yes.
    Mr. Franks [continuing]. Of the United States Supreme 
    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 
    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. 
    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. 
    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 
    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 
    And this hearing is adjourned.
    [Whereupon, at 2:04 p.m., the Subcommittee was adjourned.]