REFORM OF THE STATE SECRETS PRIVILEGE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JANUARY 29, 2008
__________
Serial No. 110-74
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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JANUARY 29, 2008
Page
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................ 2
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.................................... 4
WITNESSES
Mr. H. Thomas Wells, Jr., President-Elect, American Bar
Association
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Ms. Judith Loether, daughter of victim in U.S. v. Reynolds
Oral Testimony................................................. 23
Prepared Statement............................................. 24
The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court
of Appeals for the D.C. Circuit
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Mr. Patrick F. Philbin, Partner, Kirkland & Ellis
Oral Testimony................................................. 31
Prepared Statement............................................. 34
Mr. Kevin S. Bankston, Senior Attorney, Electronic Frontier
Foundation
Oral Testimony................................................. 43
Prepared Statement............................................. 45
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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......... 6
APPENDIX
Material Submitted for the Hearing Record........................ 71
REFORM OF THE STATE SECRETS PRIVILEGE
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TUESDAY, JANUARY 29, 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 10:11 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Wasserman
Schultz, Watt, Cohen, Franks, Issa, King, and Jordan.
Staff present: David Lachmann, Subcommittee Chief of Staff;
Burt Wides, Majority Council; Heather Sawyer, Majority Counsel;
Caroline Mays, Professional Staff Member; Paul Taylor, Minority
Counsel; and Jacki Pick, Minority Counsel.
Mr. Nadler. Good morning. This hearing of the Subcommittee
on the Constitution, Civil Rights, and Civil Liberties will
come to order.
Today's hearing will examine the state secrets privilege.
The Chair recognizes himself for 5 minutes for an opening
statement.
Government has always needed to keep certain sensitive
information secret. The challenge for a free society has always
been to balance the need to keep secrets with the openness
necessary for democracy to function. It has never been easy to
strike this balance.
What happens when claims that information must be kept
confidential conflict with the rights of individuals to obtain
justice in our courts or when coordinate branches of Government
must make decisions concerning matters that the executive
claims are too sensitive to be discussed even with them? Today,
we examine just that problem.
In too many cases, claims of state secrets have succeeded
in keeping important cases out of court entirely or preventing
courts from considering evidence vital to the outcome of a
case. Courts have sometimes proved overly deferential to these
claims, refusing even to look behind decisions of the state
secrets privilege to determine whether it has been made in good
faith, and we know that in some cases it has been made in bad
faith.
We will hear today from Judith Loether whose father was a
civil engineer killed in a military plane crash. The report
examining the crash has been withheld from the court on the
grounds that it was a state secret, and the Supreme Court said
that the courts have no business examining that claim. If there
is one thing we have learned over the years, it is that we
cannot take such assertions at face value. When the report
finally came to light 50 years later, it revealed Government
negligence, but no state secrets.
We have the CIPA law that deals with how to deal with
confidential information in the context of a criminal
proceeding. We do not have a law codifying the state secrets
privilege in the context of a civil proceeding, and we probably
should.
Studies show that the Bush administration has raised the
state secrets privilege in over 25 percent more cases per year
than previous Administrations and has sought dismissal in over
90 percent more cases. Originally, the privilege was used just
to shield certain information; but, in recent years, it has
been used increasingly to dismiss cases from the start to say,
``You cannot get your day in court.''
As one scholar noted recently, this Administration has used
the privilege ``to seek blanket dismissal of every case
challenging the constitutionality of specific ongoing
Government programs'' related to its war on terrorism and, as a
result, the privilege is impairing the ability of Congress and
the Judiciary to perform their constitutional duty to check
executive power.
Another leading scholar recently found that ``In practical
terms, the state secrets privilege never fails.'' Like other
commentators, he concludes that the state secrets privilege is
the most powerful secrecy privilege available to the President,
and the people of the United States have suffered needlessly
because the law is now a servant to executive claims of
national security.
I will shortly be introducing legislation to allow courts
to examine these claims in a manner that would protect the
information while giving the court a chance to determine
whether the secrets need to be maintained or whether there is
some other way to allow the case to go forward. This
legislation would codify the state secrets privilege and would
limit it. This is not a new task for the courts. They do it
under CIPA in criminal cases, and they do it in Freedom of
Information Act cases.
I look forward to the testimony of our witnesses on this
difficult issue, and I welcome them.
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.
And thank you all for being here.
Mr. Chairman, the state secrets privilege is a longstanding
legal doctrine that is an irreplaceable tool in the war against
Jihadist terrorism. The Supreme Court most recently described
that doctrine in a case called United States v. Reynolds.
In that case, the Supreme Court made clear that where the
central issues of a case involve sensitive and classified
national security information, the courts have the
responsibility to determine whether disclosure of the
information would pose a reasonable danger to national
security. If so, the court is obliged to either dismiss the
case or limit the public disclosure of national security
information as necessary.
Under this doctrine, people with legitimate claims are not
denied access to court review. Rather, the doctrine allows
judges to personally review any sensitive information, if
necessary.
The roots of the state secrets privilege extend all the way
back to the Supreme Court's decision 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 held
that an executive branch official is not ``obliged'' to
disclose any information that was ``communicated to him in
confidence.'' Four years later, the same Chief Justice Marshall
who wrote the opinion in Marbury held that the Government need
not produce any information that would endanger the public
safety.
In the modern era, Congress debated the issue of state
secrets privilege under Federal law in the 1970's, but
ultimately chose to maintain the status quo, including the
elements of the privilege put in place by the Supreme Court in
the Reynolds decision.
In United States v. Nixon, the court endorsed the executive
privilege as ``fundamental to the operation of Government and
inextricably rooted in the separation powers under the
Constitution'' and strongly cautioned that sensitive
information should not be disclosed if it involves ``military,
diplomatic, or sensitive national security secrets.''
The First Circuit took exactly that same position in
affirming dismissal of a case brought by Khaled el-Masri in
which the court concluded that the state secrets privilege
``has firm foundation in the Constitution in addition to its
basis in the common law of evidence.''
Not surprisingly, the state secrets privilege has played a
significant role in the Justice Department's response to civil
litigation arising out of 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
claim is true.
And I want to repeat that. A recent survey of all state
secrets cases has determined conclusively that neither of those
claims is true.
As Professor Robert Chesney of Wake Forest University Law
School has concluded, the data did not support the conclusion
that ``the Bush administration chooses to resort to the
privilege with greater frequency than prior Administrations or
in unprecedented substantive contexts.''
Because the privilege is based in the Constitution's
separation of powers principles, it is unclear whether Congress
could constitutionally amend the state secrets privilege by
statute. Professor Chesney pointed out that the ``judges are
nowhere nearly as well suited as executive branch officials to
account for and balance the range of considerations that should
inform assessments of dangers to national security.''
I will strongly oppose, Mr. Chairman, any efforts that
invite the courts to deviate from the sound procedures they
currently follow and to divulge to our enemies sensitive
national security information. Innocent Americans can only be
protected if sensitive national security information is
protected, and I will do whatever I can to keep those Americans
safe.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I will now recognize for an opening statement the
distinguished Chairman of the full Committee, the gentleman
from Michigan.
Mr. Conyers. Thank you, Mr. Chairman.
I want to protect the American people as much as anybody in
the Congress, but there is a different problem here. It is not
just the fact that there are more cases in which the state
secrets privilege is asserted, but it is how it is being
asserted and how it is being used that really makes the
difference here. It is not just the numbers.
And so I start off congratulating the American Bar
Association and those other organizations that have been
looking at this quite carefully.
And I ask unanimous consent to put in the record today's
Washington Post article on the Greater Use of State Secrets
Privilege Spurs Concerns and the washingtonpost.com's Bush
Order Expands Network Monitoring.
Mr. Nadler. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Conyers. So the other thing that I think should be
taken into consideration, before this turns into who is more
patriotic and who is fighting terror harder than anybody else
or who is weakening our system and all that fear-mongering that
goes on so much, is the question around the President issuances
of executive orders which he can then ignore or claim they are
modified.
He can with a stroke of his pen increase monitoring of the
Internet. He can stop court cases in their tracks by claiming
state secrets privilege and then try to bully the Congress into
rendering the cases moot by providing telecommunications
companies' retroactive immunity. We have a FISA issue going on
in the Senate right now, and it will be going on very shortly
in this body as to what the role should be.
But there is something that bothers me deep down about this
whole discussion, and that is that judges are not qualified to
determine what is in the national interest. They could work on
all the complex cases in the world, but when it comes to the
Government being examined, ``Well, that is off limits. We will
handle that, fellows,'' and although it is a common-law
doctrine, we did not have a law on this until 1953.
So I come to this saying that since Reynolds in 1953 both
Administrations, the Democrats or Republicans, have generated a
lot of concern that, if not properly policed, the privilege
might be misused to conceal not just embarrassing information,
but downright illegal activity, maybe impeachable conduct, and
that the public disclosure, in fact, may not pose any genuine
threat to national security.
And, of course, these fears have been increased by the
repeated use of the privilege, especially since 9/11, and it is
being used now--get this--to dismiss cases challenging some of
the most troubling aspects of the war on terror. It is being
used to challenge rendition claims. It is being used to
challenge torture claims. It is being used a lot to challenge
warrantless wiretapping, which, by the way, went on apace
across the years. It is not a brand-new issue.
And so when the executive branch--this one or any other--
responds to serious claims of misconduct or illegality with
blanket claims of secrecy, often telling the Federal judges
that the material is too sensitive for even the judge to see,
then I have a problem here that makes this hearing extra
important, in my view.
There is understandable concern that the executive can use
these claims frequently to shield unlawful conduct, and that is
what we are here to examine today.
I will put the rest of my statement in the record, Chairman
Nadler.
Thank you.
[The prepared statement of Mr. 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 the state secret privilege, a common law doctrine
that allows the government to protect sensitive national security
information from harmful disclosure in litigation.
Since it was first recognized by the U.S. Supreme Court in the 1953
case of U.S. v. Reynolds, this privilege has been used by Democratic
and Republican Administrations alike, often generating concern that--if
not properly policed--the privilege might be misused to conceal
embarrassing information whose public disclosure poses no genuine
threat to national security.
These concerns have increased because of the Bush Administration's
repeated use of the privilege, in the wake of the September 11th
terrorist attacks, as a tool to dismiss cases challenging some of the
most troubling aspects of its war on terror--including rendition,
torture, and warrantless wiretapping.
When the Executive Branch responds to serious allegations of
misconduct with blanket claims of secrecy--often telling federal judges
that material is too sensitive for even the courts to see--there is
understandable concern that the Executive may be using those claims as
a subterfuge to shield embarrassing facts or unlawful conduct from
judicial discovery.
This hearing will help us explore three important issues presented
by the state secret privilege.First, we need to determine whether
judges are using procedures and standards that allow for meaningful
review of governmental claims. Some in the civil liberties community
are concerned that the courts are being overly deferential to the
Executive Branch, reluctant to review evidence and make their own
independent assessment of whether the secrecy claim is valid.
Second, the hearing will help us examine whether there is any
validity to continuing concerns about judicial expertise in handling
secret information. In the fifty years since the Reynolds decision,
numerous laws have been enacted that require the courts to review
national security materials. These include the Classified Information
Procedures Act, the Freedom of Information Act, and the Foreign
Intelligence Surveillance Act.
Acting under this authority, courts routinely review classified
evidence under procedures that are designed to protect against harmful
disclosure of sensitive information, while still providing a fair
opportunity for litigants who seek justice and accountability from our
government.
And, third, today's hearing provides an opportunity for us to
consider whether there is any need for congressional action. The
American Bar Association, for example, recommends that there should be
clear procedures and standards for state secret claims. Likewise, the
bipartisan Constitution Project urges that courts be required to review
the claims and ensure that cases are not dismissed prematurely.These
organizations want to ensure that parties have a full and fair
opportunity to discover non- privileged facts, and that appropriate
orders are issued to protect material determined to be subject to the
privilege.
This Administration's aggressive efforts to create an Imperial
Presidency--an Executive Branch whose decisions remain secret and
unchecked by Congress or the courts--raises important concerns about
how claims of secrecy may impair our constitutional system of checks
and balances.
Our firm commitment to respect for the rule of law requires that we
take these concerns seriously.
Mr. Nadler. I thank the gentleman.
I would now like to introduce our panel of witnesses.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I would ask that other Members submit
their statements for the record. Without objection, all Members
will have 5 legislative days to submit opening statements for
inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing.
As we ask questions of our witnesses, the Chair will
recognize Members in the order of their seniority on the
Subcommittee, alternating between majority and minority,
providing that the Member is present when his or her turn
arrives. Members who are not present when their turn begins
will be recognized after the other Members have had the
opportunity to ask their questions. The Chair reserves the
right to accommodate a Member who is unavoidably late or only
able to be with us for a short time.
And I would now like to introduce our panel of witnesses,
now that we have the boilerplate out of the way.
The first witness is H. Thomas Wells, Jr., the president-
elect of the American Bar Association. He is a partner and
founding member of the firm Maynard, Cooper & Gale in
Birmingham, Alabama. He earned his BA and his JD from the
University of Alabama.
Judith Loether is the daughter Albert Palya, one of the
civilian engineers whose deaths were at issue in United States
v. Reynolds, the 1953 Supreme Court case that established the
modern understanding of the state secrets privilege.
The Honorable Patricia Wald has had a distinguished legal
career. She served as a judge of the United States Court of
Appeals for the D.C. Circuit from 1979 to 1999, serving as
chief judge of the D.C. Circuit from 1986 to 1991. Judge Wald
was also a judge with the International Criminal Tribunal for
the Former Yugoslavia from 1999 to 2001 and a member of the
President's Commission on the Intelligence Capabilities of the
United States Regarding Weapons of Mass Destruction from 2004
to 2005.
Patrick Philbin is a partner in the firm of Kirkland &
Ellis. From 2001 to 2005, Mr. Philbin served the Department of
Justice as a deputy assistant attorney general in the Office of
Legal Counsel, from 2001 to 2003 where he advised the Attorney
General and Counsel to the President on issues related to the
war on terrorism, and as an associate deputy attorney general
from 2003. He is a graduate of Yale University and Harvard Law
School.
Kevin Bankston is a senior attorney with the Electronic
Frontier Foundation. He is lead counsel in Hepting v. AT&T, the
first lawsuit brought against the telecommunications company
for its role in the NSA's warrantless surveillance program, and
is the coordinating counsel in the multidistrict litigation
over the NSA program that has been consolidated before the
Northern District of California Federal Court. He was recently
named as a fellow at Stanford Law School Center for Internet
and Society where he will conduct further academic research on
the Fourth Amendment as applied to the Internet. That should be
a relatively new field.
Mr. Bankston received his JD in 2001 from the University of
Southern California Law Center and received his undergraduate
degree from the University of Texas at Austin.
I am pleased to welcome all of you.
Each of your written statements will be made part of the
record in its entirety. I would ask that you now summarize your
testimony in 5 minutes or less.
To help you stay within that time limit, there is a timing
light at your table. When 1 minute remains, the light will
switch from green to yellow, and then red when the 5 minutes
are up.
The first witness I will recognize for 5 minutes is Mr.
Wells.
[Witnesses sworn.]
TESTIMONY OF H. THOMAS WELLS, JR., PRESIDENT-ELECT, AMERICAN
BAR ASSOCIATION
Mr. Wells. Thank you, Chairman Nadler, Ranking Member
Franks, and distinguished Members of the Committee.
My name is Tommy Wells, and I am here today in my capacity
as the president-elect of the American Bar Association and at
the request of our current president, William Neukom. Mr.
Neukom is sending his regrets that he is unable to attend this
hearing.
The ABA thanks the Committee for inviting us to present the
views of the association on the state secrets privilege.
The state secrets privilege is a common-law privilege, the
roots of which reach back to the beginning of the republic. The
privilege shields sensitive national security information from
disclosure in civil litigation. However, today, most public
discussion focuses on the U.S. Supreme Court's modern
articulation of the privilege in United States v. Reynolds.
During the past several years, the Government has asserted
the state secrets privilege in a growing number of cases,
including those involving fundamental rights and serious
allegations of Government misconduct, which raise critical
legal issues. In the absence of congressional guidance, courts
have adopted divergent approaches.
In recent years, there has been concern that courts are
deferring to the Government without engaging in sufficient
inquiry into the Government's assertion of the privilege. Thus,
courts may be dismissing meritorious claims leading to
potentially unjust results.
Federal legislation outlining procedures and standards for
consideration of these privilege claims would facilitate the
ability of the courts to act as a meaningful check on the
executive branch's assertion of the state secrets privilege.
Concern about these circumstances led the ABA House of
Delegates to adopt a policy that calls upon Congress to
establish a standardized process designed to ensure that
whenever possible cases are not dismissed based solely on the
assertion of the state secrets privilege. The establishment of
uniform standards and procedures will bring greater
transparency and predictability to the process and benefit the
system as a whole. My written statement outlines the specifics
of the ABA recommendation in detail.
Fundamentally, the ABA believes that courts should evaluate
privilege claims in a manner that protects legitimate national
security interests, while permitting litigation to proceed with
nonprivileged evidence. Judicial review informed by evidence
would ensure that Government assertions of necessity are truly
warranted and not simply a means to avoid embarrassment.
Moreover, cases should not be dismissed based on the state
secrets privilege, except as a last resort.
The legislation we envision would not require disclosure of
information subject to the state secrets privilege to the
plaintiff or to the plaintiff's counsel and would not require
courts to balance the interests of the plaintiff in accessing
particular privileged information against the Government's
national security interests.
It would also not require the Government to choose between
disclosing privileged information and forgoing a claim or a
defense. The Government would face such a choice only with
respect to the information the court had already determined was
not privileged.
Many of the ABA recommendations are drawn from the
procedures Congress established in the Classified Information
Procedures Act. Under CIPA, Federal courts review and analyze
classified information in criminal cases. The ABA's policy
respects the roles of all three branches of Government in
addressing state secrets issues.
The policy does not suggest that courts should substitute
their judgments on national security matters for those of the
executive branch. Instead, it provides that executive branch
privilege claims should be subject to judicial review under a
deferential standard that takes into account the executive
branch's expertise in national security matters.
This is the proper role for the judiciary because courts
routinely perform judicial review of decisions made by expert
Government agencies and, as the Reynolds case explained, the
secrets privilege is an evidentiary privilege, the type of
issue courts rule upon with great regularity.
Ultimately, we believe there is a need to protect both the
private litigants' access to critical evidence as well as our
critically important national security interests.
The ABA believes that Congress should establish
confidential procedures offering ample opportunity for the
Government to assert the privilege, meaningful judicial access
to the evidence at issue to evaluate whether the privilege
should apply, and chance for litigation to proceed with
nonprivileged evidence.
Thank you for considering the American Bar Association's
views on an issue of such consequence to ensuring access to our
justice system.
Thank you.
[The prepared statement of Mr. Wells follows:]
Prepared Statement of H. Thomas Wells, Jr.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you very much.
Ms. Loether?
TESTIMONY OF JUDITH LOETHER, DAUGHTER OF VICTIM
IN U.S. v. REYNOLDS
Ms. Loether. Mr. Chairman, Members of the Committee, I
would like to start by saying that this morning I saw the
statues outside that represented the majesty of law and the
spirit of justice. I would like to think those principles do
indeed always guide us in this great country.
I am Judy Loether. I am an ordinary housewife from the
suburbs of Boston. You might call me chief cook and bottle-
washer. I have come to tell you my story.
Six years ago, I did not know the first thing about the
state secrets privilege.
Almost 60 years ago, when I was just 7 weeks old, my
father, an engineer for RCA, was killed in the crash of a B-29.
This put the death of my father and my mother's subsequent
lawsuit against the United States government squarely in the
center of the landmark case United States v. Reynolds.
My mother remarried and, while growing up, I knew very
little about my own father and the lawsuit. My mother got some
money. I thought she had won. I never knew her case went to the
Supreme Court.
The death of my father was quite a mystery to me. The
newspaper clippings in the attic had pictures of the wreckage
and talked of secret missions and even cosmic rays. My uncle
used to tell me that he thought the Russians blew up the plane.
After I had my own children, I became very interested in
this man who was my father, the man whose pictures and
documents of life and death had resided in the attic. When the
Internet came to my house, I searched for information about
anything related to his work and his life.
One day, I happened to type into the search engine ``B-29 +
accident.'' It was only chance that brought me to accident-
report.com which provides accident reports for Air Force
accidents from 1918 to 1953. My first thoughts were, ``This
might tell me about the secret project he was working on. This
might tell me if the Russians blew up the plane!''
When I read this report, I felt a great deal of
disappointment as there was no information about the project,
the mission, or the equipment. Instead, it contained a truly
sad and very dark comedy of errors that led to the terrible
death of my father and eight other men.
Just some of these mistakes: With engine number 1 in
flames, the pilot shut down the wrong engine, number 4; the
engineer, charged with the task of cutting the fuel to the
burning engine, cut the fuel to engine number 2. Now we have
the largest bomber in the world flying on one of its four
engines. What is more, the heat shield to be retrofitted into
B-29s to prevent fires was never installed. There were many,
many more mistakes.
The report did spur me on to look for and find another
little girl who had lost her father on that plane. It was
through her that I learned about the Supreme Court case.
That very day, I looked up the Reynolds decision on my
computer. What I read there sent me on a journey that has
brought me here today. I read a decision that hinged on this
very same accident report, an accident report that the
Government claimed told of the secret mission and the secret
equipment. All I could think was, ``No, it does not!''
Part of the Reynolds decision stated: ``Certainly, there
was a reasonable danger that the accident investigation report
would contain references to the secret electronic equipment
which was the primary concern of the mission.''
This accident report was not about secret equipment. This
accident report was not about a secret mission. Even more
telling, this accident report was not even classified as
secret. And I now understood that my mother had lost her case.
As time passed, I came to understand the significance of
the Reynolds case in establishing the state secrets privilege.
I learned that it was discussed in law school courses on
national security law. It seemed to me that the case that
allows the executive to keep its secrets was, at its very
foundation, a gross overstatement by the Government to forward
its own purposes, to get themselves a privilege. At what cost?
The cost was truth and justice and faith in this Government.
Five years ago, I stood in the woods in Waycross, Georgia,
at the crash site. I thought about my father who spent his
entire career working for the Government. His last thoughts
must have been for the wellbeing of his family and who would
take care of them.
Mistakes were made on that plane, and the Air Force should
have done the right thing. The average American who backs out
of his driveway and accidentally runs over his neighbor's
mailbox will stop, walk up to his house, knock on the door, and
own up to his mistake. However hard it is to look the fool,
however hard it is to fork over the cash, it is simply the
right thing to do, and it is how we all expect our Government
to act when it makes a mistake.
For the other families, for my father, my mother, my two
brothers and me, my America did not see fit to do the right
thing, to step up, admit to their mistakes, and compensate
three widows and five little children. It was more important to
get a privilege.
I decided that day to try to let the people of this country
know this is not the American way and is contrary to what I
believe America stands for in the minds and hearts of its
people.
The judiciary cannot give up any of the checks and balances
that make this country great. Judicial review must be the
watchdog that guards against actions by the executive that chip
away at the moral character of this country.
Thank you.
[The prepared statement of Ms. Loether follows:]
Prepared Statement of Judith Loether
I'm Judy Loether. I am an ordinary housewife from the suburbs of
Boston. You might call me Chief Cook and Bottle-Washer. I've come to
tell you my story.
Six years ago, I didn't know the first thing about the state
secrets privilege.
Almost sixty years ago, when I was just seven weeks old, my father,
an engineer for Radio Corporation of America (RCA, an Air Force
contractor), was killed in the crash of a B-29 Superfortress. This put
the death of my father and my mother's subsequent lawsuit against the
United States government squarely in the center of the landmark case
United States v. Reynolds.
My mother remarried and while growing up I knew very little about
my own father and the lawsuit. My mother got some money; I thought she
had won. I never knew her case had gone to the Supreme Court. The death
of my father was quite a mystery to me; the newspaper clippings in the
attic had pictures of the wreckage and talked of secret missions and
cosmic rays. My uncle used to tell me that he thought the Russians blew
up the plane. After I had my own children I became very interested in
this man who was my father, the man whose pictures and documents of
life and death had resided in the attic.
When the Internet came to my house I searched for information about
anything related to his work and his life. One day I happened to type
into the search engine B-29 + accident. It was only chance that brought
me to accident-report.com which provides accident reports for Air Force
accidents from 1918 to 1953. My first thoughts were that this might
tell me about the secret project he was working on, this might tell me
if the Russians blew up the plane! When I read this report I felt a
great deal of disappointment as there was no information about the
project, the mission, or the equipment. Instead, it contained a truly
sad and very dark comedy of errors that lead to the terrible death of
my father and eight other men. Just some of these terrible mistakes:
with engine number 1 in flames, the pilot shut down engine number 4 by
mistake; the co-pilot, a survivor, thought he corrected that by turning
back on engine number 4, but he didn't; finally, the engineer, charged
with the task of cutting the fuel to the burning engine, cut the fuel
to engine number 2 by mistake. Now we have the largest bomber in the
world, flying on only one of its four engines. What's more, a heat
shield to be retrofitted into B-29s to prevent fires was never
installed.
The report did spur me on to look for and find another little girl
who had lost her father on that plane, now grown and living in my own
state of Massachusetts. It was through her that I learned about the
Supreme Court case and that very day I looked up the Reynolds decision
on my computer. What I read there sent me on a journey that has brought
me here today. I read a decision that hinged on this very same accident
report, an accident report that the government claimed told of the
secret mission and the secret equipment. All I could think was, no, it
doesn't! Part of the Reynolds decision stated:
``Certainly there was a reasonable danger that the accident
investigation report would contain references to the secret electronic
equipment which was the primary concern of the mission.''
This accident report was not about secret equipment. This accident
report was not about a secret mission. Even more telling, this accident
report was not even stamped SECRET. I now understood that my mother had
lost her case, that she had settled for less money than the Federal
court had awarded her. How could the government lie in the Supreme
Court of the United States of America!?
As time passed I came to understand the significance of the
Reynolds case in establishing the State Secrets Privilege. I learned
that it was discussed in law school courses on national security law.
The more I understood what had happened to my mother and why, the more
betrayed I felt. It seemed that the case that allows the Executive to
keep its secrets was, at its very foundation, a gross overstatement by
the government to forward its own purposes; to get themselves a
privilege. At what cost? The cost was truth and justice and faith in
this government.
Five years ago I stood in the woods in Waycross, Georgia, the crash
site. I thought about my father who spent his entire career working for
the government, developing technical equipment for the B-29. He
sacrificed his life for it. His last thoughts must have been for the
wellbeing of his family and who would take care of them. Mistakes were
made on that plane and the Air Force should have done the right thing.
The average American who backs out of his driveway and accidentally
runs over his neighbor's mailbox, will stop, walk up to his neighbor's
house, knock on the door, and own up to his mistake. However hard it is
to look the fool, however hard it is to fork over the cash, it is
simply the right thing to do, and it's how we all expect our government
to act when it makes a mistake. For the other families, for my father,
my mother, my two brothers and me, my America did not see fit to do the
right thing, to step up, admit to their mistakes, and compensate three
widows. It was more important for them to get a privilege. I decided
that day to try to let the people of this country know that an
injustice had been done. This is not the American way, and is contrary
to what I believe America stands for in the minds and hearts of its
people.
The judiciary cannot give up any of the checks and balances that
make this country great. Judicial review must be the watchdog that
guards against actions by the Executive that chip away at the moral
character of this country.
Mr. Nadler. Thank you very much.
Our next witness will be Judge Wald.
TESTIMONY OF THE HONORABLE PATRICIA M. WALD, RETIRED CHIEF
JUDGE, U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT
Judge Wald. Chairman Nadler, Chairman Conyers, Committee
Members, thank you for inviting me to testify today on the
state secrets privilege. My testimony is going to deal with the
capability of and the tools Federal judges need to administer
the privilege in a manner that will not endanger national
security at the same time it will permit litigants to the
maximum degree feasible to pursue valid civil claims for
injuries incurred at the hands of the Government or private
parties.
So let me make a very few points in summarizing my
testimony.
The first is I agree very much, especially with the letter
which was submitted by William Webster, the former FBI and CIA
director and former Federal judge, and with the prior ABA
president-to-be, that there is a wide consensus in the legal
community, as the Bar Association report showed, of the
importance of the issue of state secrets, regardless of what
the percentage is of the increase in its application to the
cases that are increasingly coming into the courts today, and,
more important, I think the varying results of leaving the
implementation of the privilege totally within the discretion
of individual judges. That, I believe, militates toward the
exercise by Congress of what I believe is its acknowledged
power under Article I Section 8 and Article III Section 2 to
prescribe regulations concerning the taking of evidence in the
Federal courts.
Again, as has already been pointed out, we have already had
legislation in CIPA to take care of the criminal side with its
classified information, in FISA in proceedings where
information that was obtained under FISA, and especially I
would like to point out, in the FOIA cases of which the D.C.
Circuit had a great many--many of which I participated in--that
it was Congress itself in 1974 that passed an amendment through
FOIA Exemption 1 saying, when a request was made for
information that might be classified, that the court not only
had a duty to ensure that it had been classified according to
the proper procedures, but that the court could itself look at
the reasonableness of the classification.
Now I will tell you, in my experience, courts have been
very cautious and courts have been very, very cognitive of
national security needs in using that kind of power. FOIA did
not require the court to look at the actual evidence, but it
did allow them, if the court found it necessary, and, in some
cases, where there had been what the court ultimately found to
be bad faith exercises of the classification power, they have
done it. So we already do have a precedent where courts look at
those materials.
I also will tell you that courts look at national security
materials and make a decision whether or not they have been
validly classified in other contexts. I myself have
participated in some of those cases, not only in the FOIA
Exemption 1 cases, but on appeal of the CIPA cases. We have
also had many cases--not many, but at least some cases--in
which former CIA agents, et cetera, attempt to write books,
articles, and according to their agreement to have them looked
at by the agency before they are disclosed, there have been
disputes which have gone to court. So it is not that unusual
for Federal judges to actually look at classified material or
secret material.
I believe that even the Reynolds case--not even the
Reynolds case--but the Reynolds case had as its bottom
assumption that it was a judicial function. It was the court's
function, not the executive's function to decide ultimately in
a dispute whether or not the material did present a
``reasonable danger'' to national defense or foreign relations.
Ultimately, the judge makes that decision, not the Government.
Now the problem that has arisen in many of these cases, the
ones that I have read, is that the courts sometimes are so
deferential that if the Government makes in its affidavits even
a prime facie plausible claim of state security being involved,
they will shy away and they will not go beyond that, and I
think that legislation which required the courts to look at
particular things, not to dictate whether or not something will
be national security or will not be national security, but to
actually, as it were, go through certain loops, will make
judges themselves more aware of, more sensitive to the
interests that are involved, and while ultimately if they
decide something is a state secret, as Mr. Wells said, there is
nothing in any legislation that I know about that would portend
to tell them, ``Well, we will release it anyway'' or ``We will
balance it.''
It is not like the executive privilege. Remember, these
other privileges, the executive privilege, they can be
balanced. If the litigants' need is bad enough or is compelling
enough, they can actually be required to be disclosed. There is
nothing in this legislation or anybody proposing that that be
true in this case.
The other two points I would make is that the legislation,
I think, should provide an array of alternatives that the court
could look at, could substitute, as it does in CIPA. They might
not need to be the same. I am aware, having read Mr. Philbin's
testimony, CIPA cases are not exactly like the kind of civil
cases because the Government--ultimately, it is their
prosecution, and they can go away from it if they decide that
it is more important than providing any substitute.
But we have had 20 years of experience, and courts, I
think, have been pretty good. I have seen some of those appeals
with the CIPA material in them, and they have been pretty good
at creating alternatives that did not have classified
information, summaries of information, stipulations by the
Government and the parties which did away with the need to
actually introduce the material in there. So I think we want to
avail ourselves of that kind of experience.
The last quick point I will make is what I think is
terribly important is that we do not dismiss these cases right
at the pleading stage, if at all possible, unless it is clear
under the Federal rules of civil procedure that there is no way
this particular civil claimant can make a case without the
material. Then I think you should let the civil claimant
proceed along the road to discovery of non-secret material
until the state secret privilege has been litigated and decided
because a large number of cases get dismissed at the pleading
stage.
There have been many studies on this which show that if
somebody pleads something and then somebody introduces one
piece of information, they immediately convert it to summary
judgment and you are gone. I think that special caution has to
be taken in these kinds of cases, and especially in the
standing realm, which, I believe, Mr. Bankston will get to,
whereby a person cannot even make out the standing to bring the
case.
Why can't they make it out? I think this is interesting.
Because the court doctrines of standing over the last 30
years--and I have written about this extensively--has become
very, very complex--causation, redressability. It is virtually
impossible in many cases to get standing, but those are court-
created doctrines. Those are not legislative, and they are not
even constitutional. They are part of case in controversy, but
they are court created.
So I think, in a situation where standing is dependent upon
state secrets, at least the case should not be dismissed until
the state secrets business has been litigated and the claimants
have been given every opportunity to try to make out their case
by further discovery.
So, in concluding, I would say I think that we have some of
the tools already, some of the experience in the Federal
courts, and with a legislation that would require judges go
through certain procedures, just the way they do in habeus--the
habeus statutes lay down what you have to do and who comes next
and what then has to be shown, et cetera--I think that they
would contribute mightily toward making it a fairer process.
Thank you.
[The prepared statement of Judge Wald follows:]
Prepared Statement of the Honorable Patricia M. Wald
Chairman Nadler, Committee Members:
Thank you for inviting me to testify briefly today on the state
secrets privilege which is being increasingly raised as a determinative
issue in federal court civil litigation involving alleged violations of
civil and constitutional rights. My testimony will deal with the
capability of federal judges to administer the privilege in a manner
that will not endanger national security at the same time it permits
litigants to the maximum degree feasible to pursue valid civil claims
for injuries incurred at the hands of the government or private
parties. In that regard let me make a few points.
1. The state secrets privilege is a common law privilege
originating with the judiciary which enunciated its necessity and laid
down some directions for its scope in cases going back to the
nineteenth century but more recently highlighted in United States v
Reynolds, 345 U.S. 1 (1953). Reynolds recognized the government's
privilege in that case to refuse to reveal an airplane accident report
in private injury litigation because of a ``reasonable danger that
compulsion of the evidence will expose military matters which, in the
interest of national security, should not be divulged'' Id at 10. (as
you undoubtedly know it turned out that there were no such secrets in
the report). Since Reynolds, courts have been deciding cases where the
government raises the privilege on their own in terms of its scope and
its consequences and producing often inconsistent results. There is a
wide consensus in the legal community as the American Bar Association
Recommendations and Report demonstrate that the importance of the issue
and the varying results of leaving the implementation of the privilege
totally within the discretion of individual judges militate toward the
exercise by Congress of its acknowledged power under Article I, Section
8 and Article III, Section 2 of the U.S. Constitution to prescribe
regulations concerning the taking of evidence in the federal courts.
Again as you are aware Congress has legislated many times on the Rules
of Evidence governing federal court procedures including those for
proceedings like habeas corpus and FISA proceedings that may involve
matters of national security. In the criminal area, the Classified
Intelligence Procedures Act (CIPA) provides a relevant model for
alternatives to full disclosure of classified information which allow a
prosecution to continue while affording a defendant his or her due
process rights. The time is now ripe for such legislation in the civil
arena; litigants and their counsel are confused and unsure as to how to
proceed in cases where the government raises the privilege; the courts
themselves are confronted with precedent going in many different
directions as to the scope of their authority and the requirements for
exercising it.
2. Although at this juncture we are not discussing specific draft
bills, I believe there are several principles which need to be
considered in such legislation. Many come from the cases themselves,
others from the CIPA legislation , my own judicial experience with
cases involving national security information such as the FOIA, and
still others from the ABA Report and from a Judicial Conference
Advisory Committee Report back in 1969. dealing with codification of
the privilege (hereafter Advisory Committee).These principles I believe
are capable of being observed by federal judges without making their
jobs unduly onerous and are within their competence to administer, as
proven by their current use in other kinds of litigation. They will, I
also believe, contribute to the uniformity of the privilege's
application throughout the federal judiciary and to both the reality
and the perception of fairness for deserving litigants with valid civil
claims.
(a) Reynolds made it clear and subsequent cases have verbally
agreed that whether the evidence sought to be withheld by the
government does present ``a reasonable danger'' to national defense or
foreign relations (the precise formulation of national security risk
varies in the cases but is an issue to be accorded serious thoughts by
legislators; too broad a definition could encompass virtually anything
in which the government has an interest in the modern day globally
interdependent world) is ultimately a matter for the judge, not the
government to decide. Thus it should not be enough--though some cases
appear to come close to saying it is--that a prima facie plausible
claim of state secret be raised by the government. In this sense it is
different from some other contexts in which secrecy and national
security are involved such as the FOIA. There in Exemption 1, the
government may withhold from public disclosure material that has been
duly classified under Executive Order criteria if that classification
is reasonable. Under a specific amendment in 1974 however, the court
has the authority to look at and decide de novo (though giving
``substantial weight'' to government affidavits) whether the
classification is reasonable. The courts' use of that authority I will
say has been cautious to the extreme, but it does exist and on occasion
has been employed to reject unjustified claims. A case for more intense
scrutiny of the state secret privilege by judges can be made on the
basis that the need for such information is more compelling in the case
of a civil plaintiff than any member of the public as in FOIA and in
the fact that to qualify for Exemption 1, the material must have been
reasonably classified under Executive Order criteria--a requirement
that is not to my knowledge a component of the state secrets privilege
per se. But the FOIA example makes a basic point that judges do deal
with national security information on a regular basis and can be
entrusted with its evaluation on the relatively modest decisional
threshold of whether its disclosure is ``reasonably likely'' to pose a
national security risk. To my knowledge there have been no court
``leaks'' of any such information There is no doubt that such a
decision is a weighty one but if our courts are to continue their best
tradition of constitutional guardianship it is an obligation that they
cannot avoid, And the potentiality of a serious judicial review of the
material in conjunction with the governments affidavits on the need for
nondisclosure even in a courtroom setting will itself pose a deterrent
to the dangers of the privilege being too ``lightly invoked''
(Reynolds)
(b) This brings me to the question of whether unlike FOIA which
allows but does not require a judge to look at the allegedly risky
material himself in camera rather than relying on the government's
affidavits, state secret legislation should require the judge to
himself or herself review the material before making a decision on
whether the privilege applies. I am of the view that it should. The
stakes in civil litigation--as I said--tend to be higher than in FOIA
for the plaintiff and our traditions of fair hearing dictate that to
the maximum degree feasible all relevant evidence be admitted in
judicial proceedings. Reynolds itself left open the possibility that in
some contexts where the plaintiffs' showing of need was not compelling,
the judge need not do so, and as I have related ,in FOIA cases the
judge may decide not to. On the other hand the judge in CIPA and in
FISA cases does regularly inspect the material. in camera. I read the
ABA Report to recommend a similar approach here. Only in that way can
he fulfill the judicial obligation to insure a fair hearing but just as
important only if he sees the evidence for himself can he make the CIPA
like decision whether there are alternative ways than its presentation
in original form to satisfy the plaintiff's need but not to impugn
national security as well as whether the objected to material can be
segregated from other material in the same document that does not
qualify for protection. (I do not discount the possibility that an
extraordinary case might arise where both the government and the judge
agree that his examination of the secret evidence would be unduly risky
and alternatives c an be put in place that will insure fairness but
this should not be the usual or ev en a frequent practice). My own
experience with highly sensitive information is that our court security
safekeeping facilities and procedures can insure its protection; law
clerks or masters can be given clearances to handle it and if even that
is not possible, the government's own cleared employees can be sent
over to stand guard outside the chambers door while the judge reads it.
(I have had this done on at least one occasion).
(c) The thrust of legislation on state secrets should be to
emphasize judicial flexibility and creativity in finding alternatives
to the original material that will permit the case to proceed whenever
possible. Reynolds itself stressed this approach and it has been a
hallmark of reform efforts on the privilege since the 1969 Advisory
Report(if claim of state secrets is sustained and party is deprived of
material evidence, judge shall make further orders in interest of
justice including striking of witness testimony, finding against
government on relevant issue, or dismissing action). Since 1969 however
CIPA has listed and judges have additionally used less draconian
measures such as requiring the government to produce an unclassified
document with as much of the material as possible in the original,
stipulating to facts that the original material was designed to prove
or contravert, or a summary of the controversial document that allows
the defendant ``substantially the same ability to make his defense''.
18 USC app 3 Sec. 6.
(d) Another aspect of judicial flexibility should require a judge
to make a conscious decision after a state secrets claim is raised
whether the plaintiff's case may proceed to the next stage without the
secret material. Premature dismissals should be eschewed. Unless then
without such material a party's affirmative case or defense surely
falls short of the threshold required by the federal rules of civil
procedure (Rules 12(b)(6) and 12(c), the party suffering disadvantage
from nondisclosure should be allowed to supplement their case by
additional discovery whenever it could reasonably bolster their case.
This actually is a very important point because a high percentage of
cases are dismissed at the pleading stage without additional discovery
being allowed, and the interposition of the secrets claim makes it fair
to mandate special caution in such cases to let the party play out its
nonsecret [O1] case. Also worth noting is the difficulty of plaintiffs
who cannot show standing to bring the suit unless they are allowed to
see secret evidence. Here particular care should be taken to allow
maximum access to nonsecret discovery or even postponement of the
standing decision until the secrecy claim is decided. Standing is after
all a judicial doctrine which has become increasingly onerous and
complex in the past few decades; since state secrets is also a
judicially implemented doctrine the two should be brought into some
form of coexistence that does not fatally disadvantage valid civil
claimants. As the ABA Report pointed out the Totten and Tenet cases
involving espionage employment contracts do present an absolute bar to
justiciability but other cases do not. I agree with the Report's
suggestion as well that the government not be required to immediately
plead'' confirm or deny ``at the pleading stage when the secrets claim
is planning to be raised. FOIA practice provides an analog--the
government has been allowed to raise a ``neither confirm nor deny''
answer as to whether a requested document exists in its pleadings in
Exemption 1 cases.
(e) Once the government raises a secrets claim, the question arises
as to how it will be litigated and by whom. The government is certainly
required by affidavit or testimony to justify the claim but where and
who can take part in the litigation at that stage may be an issue. The
1969 Advisory Committee Report permitted the judge to hear the matter
in chambers ``but all counsel are entitled to inspect the claim and
showing and to be heard thereon'', subject to protective orders. In
general every effort should be made to provide the regular counsel with
the necessary clearances to litigate the claim, and where that turns
out to be impossible to substitute counsel who have such clearances. In
some cases the validity of the secrets claim can be litigated at a
level which does not require special clearances. The FOIA cases have
produced a useful tool known as the Vaughn index which requires the
government to create a line by line justification of withheld material
with the reasons for nondisclosure. This device has permitted the
adversary system to operate at some level to litigate secrecy claims
without revealing the material itself. Another device used successfully
by our district court was the appointment of a master with the
necessary clearances to organize and separate out sample categories of
documents in a voluminous submission for which total secrecy was
originally claimed under FOIA Exemption 1 and to present them to the
judge with the arguments pro and con for the judges decision. As a
result 64% of the material was eventually released. See In re United
States Department of Defense, 848 F2d 232 (1988). In short, judges are
used to handling confidential material through sealing, protective
orders against disclosure by counsel, screened masters, and in camera
or even ex parte submissions. But the need for guidance and a protocol
for using such devices in a uniform manner is dominant. The mere
exercise of going through the required procedural steps will
concentrate the judge's attention and sharpen his or her awareness of
the interests involved at each stage.
(f) Dismissal of a private party claim should be a last resort if
it is based on the unavailability of state secret evidence. There will
of course be cases where the judge ultimately and rightly decides that
a state secret of significant consequence and risk cannot be revealed
even under safeguards but I suggest legislators give some thought as to
whether there are any compensatory remedies to the injured party in
such cases. Or conversely whether when a secrets claim is upheld at the
same time the court finds it is covering governmental misbehavior if
some form of accountability is in order. Finally expedited appeal--
interlocutory in many cases--should be allowed on a truncated record
(sealed if necessary) with cutback briefing and absent any requirement
for a detailed written opinion by either court, although I do think a
few sentences of explanation are always necessary for any kind of
meaningful review at any level. But the expedited appeal--especially if
the government loses its claim--should insure against prolonged delays
in the trial itself.
Thank you for this opportunity to present my views. I do believe
thoughtful legislation is needed to insure that maximum and uniform
efforts are made to strike the right balance between national security
needs and fair judicial proceedings. I believe base d on my experience
as a federal judge and my international war crimes experience that such
a balance can be struck and that our federal judges are already
acquainted with the use of many of the proper tools for doing so. I
have confidence in the Committee's ability and I encourage it to tackle
the task.
Mr. Nadler. Thank you.
Mr. Philbin is now recognized for 5 minutes.
TESTIMONY OF PATRICK F. PHILBIN, PARTNER,
KIRKLAND & ELLIS
Mr. Philbin. Thank you, Chairman Nadler, Member Fanks, and
Members of the Subcommittee, for the opportunity to appear to
address the important subject of today's hearing, the state
secrets privilege.
When I served as an associate deputy attorney general at
the Department of Justice from 2003 to 2005, I gained some
expertise relating to the privilege and the critical function
it plays in preventing the disclosure of national security
information in litigation.
I continue to watch developments in this area of the law
with some interest, although at a distance.
I should emphasize that I am expressing purely my personal
views here today, and I am not here in any representative
capacity.
I would like to focus on three points in my testimony.
First, any discussion of possible legislation altering or
regulating the state secrets privilege should begin with the
recognition of the vital function the privilege serves. It is a
mechanism by which the United States can ensure the secrecy of
information related to foreign affairs and national security
that would do harm to the United States if publicly disclosed.
The Supreme Court recognized the importance of the
privilege in United States v. Reynolds. As explained, it is a
privilege. When properly invoked, it is absolute. The court
explained, ``Even the most compelling necessity cannot overcome
the claim of privilege if the court is ultimately satisfied
that military secrets are at stake.''
The privilege plays a particularly vital role when, as now,
the Nation is involved in an armed conflict. The United States
remains locked in a struggle with al-Qaida, an enemy that
operates by secrecy and stealth and whose primary objective is
to unleash surprise attacks on the civilian population of the
United States.
In combating al-Qaida, superior intelligence is essential
for the Nation's success, yet currently pending litigation
would, without interposition of the state secrets privilege,
force the disclosure of innumerable details concerning the
sources and methods of foreign intelligence operations, signals
intelligence operations, and other activities the United States
conducts in the ongoing conflict. The state secrets privilege
plays a critical role in ensuring that such secrets, which
would be welcome to our enemies, are not disclosed.
Second, any approach to legislating in this area must also
begin with the recognition that the state secrets privilege is
not merely a common-law evidentiary privilege subject to
plenary regulation by Congress. To the contrary, the privilege
is rooted in the constitutional authorities assigned to the
President under Article II as Commander in Chief and
representative of the Nation in foreign affairs. As the Supreme
Court has explained in discussing the protection of national
security information, ``The authority to protect such
information falls on the President as head of the executive
branch and as Commander in Chief.''
In the United States v. Nixon, the Supreme Court expressly
recognized that the privilege has its underpinnings in the
Constitution. The court explained generally that to extent a
claim of privilege relates to the effective discharge of the
President's powers, it is constitutionally based, and it
expressly recognized that ``a claim of privilege on the ground
that information constitutes military or diplomatic secrets
necessarily involves areas of Article II duties assigned to the
President.''
Given the unique constitutional role of the executive with
respect to the protection of diplomatic intelligence and
national security information, any legislation that would seek
to reform the state secrets privilege as it is currently
applied by the courts must be undertaken with the utmost
caution. Legislation that would undermine the executive's
authority to protect national security information would run a
grave danger of impermissibly encroaching on authority assigned
by the Constitution to the executive branch.
Third and finally, I would like to address and caution
against a particular legislative change that may be considered.
My comments here are necessarily tentative because there is not
a specific legislative proposal before the Committee, but I
think it bears noting that Congress should tread carefully in
considering any legislation that would purport to alter
substantially the deferential standard of review the courts
apply in evaluating a claim of state secrets privilege.
In particular, I believe it would be a mistake to attempt
to have Article III judges substitute their own judgment
concerning what information should remain secret without
deference to the judgment of the executive. Such a standard of
review would be a marked departure from the law established by
the Supreme Court.
The Reynolds court properly emphasized that it remains the
duty and the responsibility of the courts to determine whether
the privilege had been validly invoked in any particular case.
The mere assertion the privilege by the executive does not
require a court to accept without question that the material
involved is a state secret. As the Supreme Court put it,
``Judicial control over the evidence in a case cannot be
abdicated to the caprice of executive officers.''
Nevertheless, the court also made clear that a judge should
not simply substitute his or her judgment for that of the
executive branch. Rather, a court should proceed cautiously,
showing deference to the judgment of the executive, concerning
what constituted a secret that might do harm to the Nation if
disclosed.
In the United States v. Nixon, the court further explained
that where the executive makes a claim of privilege on the
ground of military or diplomatic secrets, the courts have
traditionally shown the utmost deference to presidential
responsibilities. That deferential standard of review is itself
infused with constitutional significance based upon the
separation of powers and unique authorities of the executive
under Article II.
The assertion of state secrets privilege is at its heart an
exercise of a policy judgment concerning how the disclosure of
certain information may affect the foreign affairs, the
military and intelligence posture, or more broadly the national
security of the United States. Time and again, the Supreme
Court and lower courts have cautioned that such judgments are
constitutionally assigned to the executive and that the
judiciary is not institutionally suited to making them.
Thus, in the context of a court evaluating a claim by
executive that certain information must remain classified and
protected from disclosure, the Supreme Court has cautioned that
``What may seem trivial to the uninformed may appear of great
moment to one who has a broad view of the scene and may put the
questioned item of information in its proper context.'' The
quote went on to explain that the Director of Central
Intelligence is ``familiar with the whole picture as judges are
not'' and that his decisions upon what must be kept secret are,
therefore, worthy of great deference.
Any legislative proposal, therefore, that would attempt to
alter the standard of review established under Reynolds and
Nixon by permitting an Article III judge to substitute his or
her independent judgment for that of the executive concerning
the need for secrecy on a particular piece of information would
be a mistake. Attempting to assign the courts that role by
legislation would at a minimum raise a serious question of
impermissible encroachment on authority assigned to the
executive under the Constitution.
Thank you, Mr. Chairman, for the opportunity to address the
Committee. I would be happy to address any questions the
Members may have.
[The prepared statement of Mr. Philbin follows:]
Prepared Statement of Patrick F. Philbin
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you.
I will now recognize Mr. Bankston for 5 minutes.
TESTIMONY OF KEVIN S. BANKSTON, SENIOR ATTORNEY, ELECTRONIC
FRONTIER FOUNDATION
Mr. Bankston. Good morning, Chairman Nadler, Ranking Member
Franks, Chairman Conyers, and the Members of the Committee.
Thank you for inviting me to testify today on behalf of the
Electronic Frontier Foundation, a nonprofit member-supported
public interest organization dedicated to protecting privacy
and free speech in the digital age.
I am here today because EFF represents AT&T customers in a
lawsuit against that company for cooperating with the National
Security Agency's warrantless electronic surveillance program
by disclosing the contents of tens of millions of Americans'
phone calls and e-mails, literally billions of domestic
communications, to the NSA. Yet it is also co-coordinating
counsel for 38 other NSA-related lawsuits consolidated in the
Northern District of California.
EFF filed its complaint against AT&T 2 years ago this
Thursday. Yet our case, like all the others, has barely moved
out of the starting gate. We are still litigating over whether
or not these cases can proceed at all, and the reason for that
is the state secrets privilege.
The Administration has asserted an astonishingly broad
claim that the courts cannot hear any case about the NSA's
warrantless wiretapping and that such cases must be dismissed
at the outset. Indeed, the Administration goes so far as to
argue that even if the court were to find in our case that the
constitutional and statutory privacy rights of tens of millions
of Americans were violated, as we allege, the court cannot be
permitted to so rule because doing so would confirm our
allegations.''
Frankly, Mr. Chairman, to call such logic Kafkaesque would
be an understatement. The breadth of the Administration's state
secrets claim is particularly astonishing considering that it
is simply not a secret that AT&T and other telephone carriers
helped the NSA.
Rather, there have been extensive public discussions, often
at the behest of the Administration, ranging from the testimony
of the previous Attorney General to the Director of National
Intelligence's interview with the El Paso Times to the
Administration's own deliberate leaks to newspapers, confirming
this fact.
Indeed, as one court recently said, much of what is known
about the terrorist surveillance program was spoon-fed to the
public by the President and this Administration.
The Administration apparently believes the disclosures it
makes about the program to politically defend its actions or to
urge this Congress to pass immunity for the telephone companies
will not harm the national security, but that allowing the
judicial branch to examine the legality of its conduct and that
of the carriers somehow will.
But the Administration should not be allowed to share or
withhold information for its own political advantage or to
avoid accountability. Rather, as Chief Judge Vaughn Walker
ruled last summer when rejecting the Administration's motion to
dismiss the AT&T case, ``If the government's public disclosures
have been truthful, revealing whether AT&T assisted in
monitoring communication content should not reveal any new
information that would assist a terrorist and adversely affect
national security. And if the government has not been truthful,
the state secrets privilege should not serve as a shield for
its false public statements.''
EFF believes that Congress can and should reform the
common-law state secrets privilege to ensure that it cannot be
used to shield wrongdoing. Such reform legislation should
provide fair and secure procedures by which the court is
empowered to privately examine purportedly secret evidence and
evaluate the Government's claims of state secrets.
And EFF agrees with the ABA that any reform legislation
should allow the courts to make every effort to avoid
dismissing a civil action based on the privilege. EFF also
believes that for certain cases where fundamental rights are at
issue, Congress should ensure that a decision on the merits may
be reached even if critical evidence is privileged, based on
the court's in camera and ex parte evaluation of that evidence.
Indeed, as described at length in my written statement, we
believe Congress has already done so for cases concerning the
legality of electronic surveillance as a part of FISA at 50 USA
1806(f), though the Government disagrees and the court has yet
to address this issue.
Thus, Mr. Chairman, in addition to considering broader
state secrets reform, EFF urges Congress to move immediately to
clarify that FISA's existing security procedures, which have
been used for 30 years without any harm to national security,
apply in cases like EFF's suit against AT&T. We respectfully
submit that such a clarification of FISA's procedures and not
retroactive immunity is the appropriate response to claims by
telephone carriers that they were acting in good faith but are
prevented from defending themselves because of the Government's
invocation of the privilege.
To conclude, Mr. Chairman, thank you for shining a
spotlight today on the Administration's efforts to prevent the
judiciary from enforcing Congress's laws using the shield of
the state secrets privilege. EFF looks forward to working with
this Committee to help achieve sensible state secrets reform
and to rebuff an executive that insists that some branches of
Government are more equal than others.
I look forward to your questions.
Thank you.
[The prepared statement of Mr. Bankston follows:]
Prepared Statement of Kevin S. Bankston
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the witnesses.
And I will begin the questions by recognizing myself for 5
minutes.
Mr. Philbin, as I gather, you are raising some
constitutional concerns, but your bottom line simply seems to
be that Congress should be careful in legislating this area. Is
that correct?
Mr. Philbin. That is the bottom line of the testimony
because I do not have familiarity with----
Mr. Nadler. You are not saying that the executive's power
is absolute and Congress cannot legislate and limit or govern
the way the privilege is applied, as we have, for instance, in
CIPA for criminal cases?
Mr. Philbin. Well, let me respond this way, Mr. Chairman.
In CIPA, yes, I believe Congress had the authority to enact the
procedures in CIPA because they are purely procedures, and they
end up leaving it ultimately at the discretion of the Attorney
General to say----
Mr. Nadler. But under certain circumstances, if the
evidence cannot be used, the Government is penalized by the
case being dismissed.
Mr. Philbin. That is true. The Government----
Mr. Nadler. So, if we were to enact legislation along
similar lines saying, under these circumstances, either the
evidence must be revealed, at least to the court, and the court
can insist that the evidence, in its judgment, can be revealed
to the public, if it thinks it is not properly secret, or that
a summary should be revealed to the public, or that if this
cannot be done because it really is secret, then the inference,
depending on the equities, must be for the Government or must
be for the plaintiff, that would be within our rights to do as
we have in CIPA.
Mr. Philbin. Well, Mr. Chairman, there was a lot built into
that question. So let me try to answer it this way. Depending
on the standard that was put in the legislation for the court
determining that this substitution is okay or this one is not
or this can be disclosed, if the court is being told, ``You
independently determine that without deference to the
executive,'' I think there is a constitutional issue.
Mr. Nadler. Well, wait a minute. Deference. Then the court
would independently determine it. The degree of deference is up
to the courts ultimately, as in anything else.
Mr. Philbin. Well----
Mr. Nadler. You can write, ``You should be deferential,''
but how that is interpreted is going to be in the court.
Mr. Philbin. That may be, but then, you see, again, Mr.
Chairman, the reason I am being hesitant about giving absolute
answers is I believe the devil is in the details of specific
statutory language.
Mr. Nadler. Okay.
Now you would admit--or would you--in the case that Ms.
Loether testified about--and this is a 50-year-old case, so we
are not worried about casting any aspersions on individuals--
clearly, what happened there was the Government at the time,
whoever it was, lied. It said that this accident report
involved secret information. It did not. The Government
committed a fraud on the court. As a result of that, an unjust
result happened, and you would agree that we should strive to
prevent such occurrences in the future, given the fact that
Government officials being human beings, we cannot assure that
no one will ever lie again.
Mr. Philbin. Yes, Mr. Chairman. I agree. Taking the facts
to be as they have been described, yes, that was wrong, and it
is not the sort of situation that we should want to be
repeated. No.
Mr. Nadler. And we should have procedures to make sure it
does not happen as far as we can.
Mr. Philbin. As far as possible, certainly, procedures that
could help ensure that does not happen would be beneficial.
Mr. Nadler. Okay. Thank you.
Now you also quote an opinion in the Sims case saying that
the director of central intelligence is ``familiar with the
whole picture as judges are not.'' Judge William Webster wrote
a letter to the Subcommittee in which he states as follows--and
I ask unanimous consent at this point to put the letter in the
record.
Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. The quote is, ``As a former director of the FBI
and director of the CIA, I fully understand and support our
Government's need to protect sensitive national security
information. However, as a former Federal judge, I can also
confirm that judges can and should be trusted with sensitive
information, that they are fully competent to perform an
independent review of executive branch assertions of the state
secrets privilege.''
My question is whether, despite these unequal credentials
as both a judge and FBI and CIA director, you would think that
Judge Webster's assessment as to the competence of judges to
perform an independent review of executive branch assertions of
the state secrets privilege is wrong.
Mr. Philbin. Well, not having seen Judge Webster's letter,
Mr. Chairman, I am hesitant to comment on it specifically, but
I believe the courts have recognized--time and again--the
Supreme Court, the D.C. Circuit, the Fourth Circuit, other
circuits--that Article III judges are not in the same position
as members of the executive branch--the President, the Director
of Central Intelligence, or now the Director of National
Intelligence--to assess the whole picture and understand how a
particular piece of information in one case might, if revealed,
have significance to foreign intelligence services or other
parties hostile to the United States. The judges do not have
that institutional confidence.
Mr. Nadler. Thank you.
Judge Wald, could you comment on our dialogue of the last
few minutes?
Judge Wald. Yes. I would not think that any legislation you
have would rule out giving some deference, perhaps not the
standard that you would like, utmost deference, but some due
deference, something. Certainly, that is the way the FOIA
legislation talks about substantial weight being given to the
affidavits.
Certainly, no judge that I have ever been acquainted with
in my 20 years on the Federal judiciary would ever go roaring
in there and say, ``Well, you know, never mind the President.
Never mind those affidavits. You know, I do not happen to think
this is.'' Certainly, the Government would be allowed, as it
does in all of these cases, to make its case by affidavit,
sometimes even by deposition, et cetera, and the court looks at
it, carefully listens to the full presentation that the
Government wishes to make.
The problem has been to what degree the other side is
allowed to make a case given the secrecy of the information,
and that is something the legislation has to take account of.
So I do not see the fact that certainly the judiciary would
give due deference to the Government's case in deciding whether
or not something was a state secret.
As for the so-called mosaic theory, which we are all
familiar with, which does have certainly a sliding scale kind
of aspect to it, any one piece, when you look at all the other
pieces, might be--this is something the courts have had to deal
with already in the FOIA, and it is something that they should
certainly look at, give thought to, but it cannot be an
absolute bar that any one piece, if you put it together with a
thousand other pieces, might give some clue to somebody.
So I do not see legislation that you are contemplating as
presenting any more formidable obstacles than the other
contexts in which the Government has to make its case on
certain information, but the judge has ultimate power.
Mr. Nadler. Thank you.
My time has expired.
I now recognize for 5 minutes the distinguished Ranking
Member of the Subcommittee, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, it is a challenge when we are trying to
balance these kinds of things today. I think everyone on the
panel recognizes the need to protect national security secrets,
and I think everyone on the panel, including those of us here
on this side of the room, understand that there are times, like
in Ms. Loether's case, where Government officials do things
that are clearly wrong and are not in comportment with the law.
They use the law in ways that distort its purpose, and the
challenge, of course, is to make a policy that still does the
best that it can, given the fact that sometimes the nature of
man is to distort things.
With that said, Condoleeza Rice, Secretary of State, has
publicly stated that ``When and if mistakes are made, we work
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, we will do everything
that we can to rectify those mistakes.''
Now my question is--I will direct it to you, Mr. Philbin,
if possible--what are the mechanisms if something happens like
in Ms. Loether's case? What are the mechanisms out there, what
other source of remedies or relief could be granted someone
that has been cheated under this situation by someone using the
state secrets privilege to really distort the circumstances? In
the legislative or the executive branch, what things are
available, because that seems to me to be a similar question?
Mr. Philbin. Well, I am certain that I cannot give an
exhaustive list right now, but it occurs to me that the
political branches do have the ability on their own to provide
some compensation to a person where they believe a wrong has
been done. There are examples. I believe that there were many
bills in the 19th century.
The Congress would pass special bills to provide
compensation to various people for various reasons. The example
that comes most clearly to mind more recently is special
legislation to provide compensation to American citizens of
Japanese ancestry who were interned during World War II and
that was a situation where there was access to the courts, yet
it was felt the courts had not provided justice, and,
subsequently, the political branches then provide some
compensation.
So I think that there is an ability without using the court
system, where a wrong has been done and the United States feels
an obligation to make that right, for the political branches to
do something.
Mr. Franks. Well, Mr. Chairman, I think one of the
challenges we have, of course, is to try to foster an
environment in our Government, in all branches, where there is
greater emphasis put upon people doing the right thing. It
sounds very basic, but, ultimately, our system cannot survive
apart from that fundamental ethic.
One of the other controversies that has come here--and it
is a little bit of a conflict. I certainly do not question the
motivation or the intent of any of the other questioners here
on the panel. But there is this debate here as to whether or
not the Bush administration has invoked this privilege more
often or in ways that are very different.
And, Mr. Chairman, if I could, I would like to go ahead
without objection and ask that the State Secrets and
Limitations National Security Litigation Paper by Robert M.
Chesney be placed in the record----
Mr. Nadler. Without objection.
[The information referred to is printed in the Appendix.]
Mr. Franks. I just directed my last question to Mr. Philbin
here again.
Professor Chesney published this study that contains a
chart of every published court decision involving the state
secrets doctrine in the modern era, and he has concluded that
the available data do not suggest that the privilege has been--
you know, it says that the data has continued to play an
important role in 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 contexts. And
he has also said the state secrets privilege has not been used
in recent years to protect information not previously thought
to be within its scope.
And finally, the professor writes that ``some commentators
have suggested that the Bush administration is breaking with
past practice by using the privilege to seek dismissal of
complaints rather than just exemption from discovery. The data
do not support this claim, however.''
Do you know of any compilation or review of all the
published records decisions involving the state secrets
doctrine in the modern era that have come to a different
conclusion than Professor Chesney?
Mr. Philbin. I am not aware of any. I have read Mr.
Professor Chesney's article, and I believe he points to other
law review articles that assert a different conclusion, but he
points out that they had not tabulated all of the data.
Mr. Franks. Mr. Chairman, I see my time is gone, so I yield
back. Thank you.
Mr. Nadler. Thank you.
I will now recognize the distinguished Chairman of the full
Committee for 5 minutes.
Mr. Conyers. Thank you very much.
I think we ought to recognize that in the course of a
rather short period of time, we have come to some general
parameters of how Congress might be able to work with it. We
have a constitutional technician like Trent Franks and Steve
King balanced by some of us on this side who, with all of you,
you know, could shape----
Mr. Chairman and Mr. Franks, we could shape the outlines of
a proposal. The president-elect has given us some guidance.
And, Patrick Philbin, your work has been enormously
appreciated when you were at the Department of Justice, but I
know what a stickler you are about the second article, and you
revealed it here again today. It seems to have run in the DNA
of all the people from the Department of Justice, and I accept
that.
But with you and Bankston, with the judge, with the
president-elect of the ABA, and all of us here, I do not see us
that far from shaping something that would meet the demands of
my constitutional technocrats on the other side, and it is
pretty clear here just from what we have done in an hour and a
half that there has to be some congressional direction for the
judges. That is not asking too much. That is certainly going to
be constitutional, and I think we can meet that.
Don't you feel, Judge Wald, that we are making slow
progress? Of course, we have different views. That is why we
are all here.
Judge Wald. Yes, I do, Chairman Conyers. It seems to me
that the experience that Mr. Wells and I spoke about, the
motivation that Ms. Loether spoke about, and--the only thing
that I could find to disagree with in Mr. Philbin's testimony
basically was we could fight--not fight about, we could have an
exchange about--and I am sure you will inside your Committee--
what the level of review would be for the judge when they
looked at the evidence. I certainly do not suggest he goes in
just does what he feels like doing without taking full account
of the Government's case.
On the other hand, I would think utmost deference might
deteriorate into an automatic kind of ``Well, they have made
out a good case, and I am not going to stick my neck out and do
anything about it.'' But that I think is one of those important
issues, but one that certainly would be worked out in the
course of the legislation.
Other than that, I am sure that people would not object to
judges doing in the civil area what they are doing in the
criminal area in terms of finding alternatives that do not
require the disclosure of the disputed information because you
can find an adequate substitute that does not violate national
security.
Mr. Conyers. So we are coming out of this hearing with an
agreement that no congressional statute under any circumstances
could permanently block the President's exercise of executive
authority in matters of national security. The Government may
refuse to cooperate with the judge, but they cannot, you know,
use inherent contempt or something to force the matter out of
him.
So, for all the people afraid of weakening our opposition
to terrorism, we are not putting the Government in some kind of
a position where they would have to compromise whatever they
believed in.
Mr. Bankston, what do you have to add to this part of our
discussion?
Mr. Bankston. Well, I would just say that it is critical
that judges be able to reach the legal questions that are at
issue in the cases before them, of course, with a mind toward
protecting legitimate state secrets, and just add that in our
cases we are not seeking the revelation, as Mr. Philbin
indicated, of any detailed means and methods regarding who the
NSA listens to or how they target those people. We are simply
trying to litigate the legality of the fact that has been
reported on the front pages of the New York Times and the USA
Today and corroborated by record whistleblower evidence that
AT&T has opened its network to the NSA.
Mr. Conyers. Anna Diggs Taylor, the judge in the Eastern
District of Michigan, made the same point, that everybody knows
what they are complaining about is a state secret. It has been
all over the newspapers and everyone knew about it.
So, if we got Patrick Philbin, Esquire, to join us in this
direction that we are moving in----
Are there any caveats that you will not give up on?
Mr. Philbin. All right. I am sorry. I beg your pardon.
Mr. Conyers. Are there any details here that you are
holding out on us that we cannot feel that we have a tentative
direction that we are all moving in?
Mr. Philbin. Well, I would say yes, Mr. Chairman, because I
have focused on constitutional issues because I have not
reviewed a specific legislative proposal.
Mr. Conyers. Well, so did this Committee.
Mr. Philbin. Well, as I said to Chairman Nadler, the devil
is often in the details. There is a constitutional issue about
standard of review. Then, beyond constitutional issues, there
are policy issues. If Congress has the constitutional power to
enact procedures, then there are policy issues about what are
wise and useful procedures.
It seems from the summary description of the bill that has
been introduced in the Senate that it would require a judge in
a case to review every piece of evidence that is claimed to
have some classification to it, and there are cases, there are
instances, probably the cases that Mr. Bankston involved in,
that for a judge to review every piece of evidence that bore in
some way on that case could mean mountains and mountains of
documents. I do not know exactly what these procedures are
going to involve.
Mr. Conyers. Mr.----
Mr. Philbin. The policy issues involved----
Mr. Conyers. Judge Wald, make us feel better. I ask for
just a little time for her to make him feel more comfortable
sitting next to you.
Judge Wald. But I will say that we have had some experience
in that, and I particularly wrote one decision while I was in
the D.C. Circuit that came up under Exemption 1, but that is a
national security exemption, the language of which, if you look
at it, is, you know, very, very close to what we are talking
about in terms of the ultimate substantive level that a judge
would have to find.
In this case, there were either tens or hundreds of
thousands, but huge, huge numbers of documents, that the
Government was raising a privilege on dealing with the aborted
hostage attempt in 1980, to rescue the Iranian hostages.
Now what Judge Oberdorfer did in that case which came up to
the appeals court, because the Government objected, was he
appointed a master with security clearance, actually a person
who had performed that function in the Justice Department
previously, who would sit down with those tens or hundreds of
thousands of documents, which would have taken him off the
bench for the next year probably, segregated them into certain
categories of objections and then summarized, did not attempt
to tell the judge how he should rule, but summarized what the
pros and cons of those arguments were. The judge was then able
to make his decision about whether or not they needed to be
classified.
But here is the interesting thing. In that process, just
because of that process, going forth--the Government was able,
obviously, as they proceeded to talk with the other side--in
the end, 64 percent of those documents, those tens or hundreds
of thousands of documents, were released, and I think that, you
know, this big, voluminous, big case thing is a real problem,
but it is one that if you give the Federal judges tools----
But I have to tell you the one footnote that is always
talked about. One of the classified pieces of information in
the hundred thousand which was ultimately released was the fact
that if you have milk in certain kinds of containers in
helicopters, then it is going to curdle. [Laughter.]
Judge Wald. So, I mean, you know, everybody knows about
overclassification. Secretary Rumsfeld talked about it. Porter
Goss talked about it.
Mr. Nadler. Would the witness please conclude?
Thank you.
We are way over time at this point.
The gentleman from Iowa is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
You know, I listened to the testimony here and the exchange
that we have had and listened to Chairman Conyers make the
point that no statute can force the Administration to risk our
national security, and that is a subject matter that we are all
wrestling with here.
And I think I have to go back to a question I directed to
Mr. Bankston first, and that is: Can this Congress tell a court
what they can and cannot look at and what they can and cannot
review? Do we have the statutory authority to do that if we
pass the law?
Mr. Bankston. Well, the Senate bill under consideration
does not require the court, as Mr. Philbin said, to examine
anything. Rather, it requires the Government to disclose to the
court so that it is empowered to make its own evaluation as to
the state secrets claim.
And so in terms of your ability to legislate the state
secrets privilege, it is a common-law evidentiary privilege.
There is consensus on this panel, I think, that you can
legislate in this area, even if there is a constitutional root
to the privilege, which I humbly disagree with.
So, yes, you do have the power to do that.
Mr. King. The answer is yes then. So the Congress can limit
what evidence may be heard by the court, and that would
constitutionally consistent----
Mr. Bankston. No, I would say----
Mr. King [continuing]. Even though there are common-law
precedents that you have referenced.
Mr. Bankston. Well, Congress has the ability to legislate
rules of procedure for the court, and the Senate bill under
consideration requires the Government to disclose to the court.
Mr. King. I thank you, Mr. Bankston.
And I direct to Mr. Wells: Do you agree generally with the
response from Mr. Bankston?
Mr. Wells. I think generally yes, Congressman. Clearly,
Congress has the right and has enacted and acted on proposed
Federal rules of evidence. The rules of evidence by their very
nature dictate what can and cannot be seen by a trier of fact,
whether it be a judge or a jury.
In fact, the proposal that the ABA put forth on the state
secrets privilege in terms of the standard of review draws upon
the draft that was submitted to Congress as Federal Rule of
Evidence 509 when Congress was considering enacting as a
Federal Rule of Evidence all of the privileges, all the common-
law privileges.
Congress decided not to do that and instead enacted 501
which simply acknowledged all common-law privileges.
Mr. King. Okay. Mr. Wells, can you reference the
constitutional authority that Congress has, the Constitution
itself?
Mr. Wells. Sir, I was merely talking about the rules of
evidence, not the----
Mr. King. I understand that. They are based upon some
authority, and I would presume that it is built upon
constitutional authority, and I would ask if that is something
that you are familiar with that you could address.
Mr. Wells. Sir, I have not researched that particular issue
in terms of the broad question you asked. I would be glad to do
so and get back to you on that if I could.
Mr. King. Well, I thank you for your response. It occurs to
me that this is the Constitutional Subcommittee, so I always
like to look at the Constitution.
Mr. Bankston. Mr. King, I could answer that question if you
would like.
Mr. King. And I think you are going to tell me Article III
Section 2.
Mr. Bankston. Yes, yes.
Mr. King. And I appreciate your volunteering to do that. I
then again ask the question back of Mr. Wells: Do you agree
that this Congress has the authority to limit the jurisdictions
of the court?
Mr. Wells. Clearly, in terms of Federal courts, you have
limited the jurisdiction of Federal courts. You have set
jurisdictional minimums in terms of the jurisdiction of Federal
courts. So, yes, the Congress has the authority to a certain
extent to limit the jurisdiction of Federal courts.
Mr. King. Okay. And I thank you because this brings me back
to the question that was inspired by Chairman Conyers--and I
agree with him--that no statute should be able to force the
Administration to risk our national security, and the question
that comes to me is: How does Congress enforce a jurisdictional
limitation upon the court if the court refuses to acknowledge
the authority of Congress?
And I would ask that question of Justice Wald, please. How
do we enforce if the court refuses to be guided by our statute?
Judge Wald. I am thinking.
Well, that situation, certainly, would be a unique one. In
my experience, I will tell you, first of all, it is not like
one district court judge could say, ``The heck with that. I am
not going to abide by what Congress has said.''
You know the hierarchy. It then goes up to an appeals
court, and, eventually, it goes, if it is important enough by
certiorari or otherwise, to the Supreme Court. The likelihood
that you would get through that entire hierarchy of the Federal
judiciary with everyone of them saying--unless they declared it
unconstitutional.
Now it is, of course, always possible that a court as it
went up to the hierarchy--I am not saying I think this was
unconstitutional, but the abstract question of what would
happen if the court----
Mr. King. Well, Justice, didn't that happen in the Hamden
case in the D.C. Circuit? Wasn't there judicial jurisdictional
limitation there and the Supreme Court heard it even though it
was exclusively directed to the D.C. Court of Appeals in
Hamden? And then what do we do when the Supreme Court refuses
to follow the direction of Congress?
Judge Wald. I----
Mr. Nadler. The time has expired. The witness may answer
the question briefly.
Judge Wald. Well, first of all, my understanding--if you
are talking about the same part of Hamden--is the Supreme Court
took the Hamden case because it disagreed with the
interpretation with----
Mr. King. Yeah.
Judge Wald. It interpreted what Congress did to say that it
did not take away the jurisdiction in the pending cases. It did
not sort of say, ``Well, the heck with what you did.''
Now, if you get all the way up to the Supreme Court, I
mean, we can always go back to President Jackson's, ``You know,
the court has made its ruling. Now let them enforce it.''
However, that kind of thing has not happened, fortunately, very
often in our history.
I would doubt very much it would happen here. The only way,
I would suspect, would be if the Supreme Court has two things
it can do. It can interpret what you have done in a way you may
not agree with. That happens frequently, I think--well, that
would be the most likely thing--or it can declare what you have
done unconstitutional as an infringement upon the Article III
powers, and you are into a big separation of powers conflict.
Given the FOIA experience and other experiences--even the
Detainee Treatment Act where this Congress though it is not one
of my favorite pieces of legislation, more or less said to the
D.C. Circuit what you can review on--that is subject to a lot
of interpretations, but they did lay down what you can look at
when you are reviewing the CSRTs.
Mr. Nadler. Thank you.
The time of the gentleman has expired.
The gentlelady from Florida is recognized for 5 minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
My question is to Mr. Philbin.
Mr. Philbin, in your----
Well, actually, before I ask my question, Mr. Chairman, I
would like to ask unanimous consent to admit the statement of
William H. Webster submitted to this Subcommittee dated----
Mr. Nadler. We have already done that.
Ms. Wasserman Schultz. Let us do it again.
Mr. Nadler. Without objection.
Ms. Wasserman Schultz. Thank you.
I was asleep at the switch or not here yet. Thank you very
much.
Mr. Philbin, you, in your statement, made reference to the
state secrets privilege as when properly invoked, and you
quoted an opinion in the Sims case saying that the director of
central intelligence is ``familiar with the whole picture as
judges are not,'' and you object to courts making an
independent assessment of the submitted evidence. Is that
right?
Mr. Philbin. I think that a standard of review has to
incorporate deference to the judgment of the executive, yes.
Ms. Wasserman Schultz. But do you support any involvement
whatsoever in terms of an independent review by a judge?
Mr. Philbin. Well, let me answer the question this way
because I think we may be getting hung up on the word
``independent.'' There should be independent review in the
sense that the judge, the court, is the ultimate decision-maker
on whether or not the privilege was properly invoked. That is
what the Supreme Court said in Reynolds. In my statement, I
went through that, that it is not simply a rubber stamp once
the executive invokes the privilege, that the court accedes to
that. So there is some independent review in the sense that the
decision belongs to the court, but----
Ms. Wasserman Schultz. But there is not independent review
in terms of review of the material.
Mr. Philbin. In terms of whether or not this piece of
information is classified, that this is a secret that will do
harm if released, the judge in considering that, if the judge
determines he should examine ex parte in camera something,
should show deference to the judgment of the executive because
judges, as the Supreme Court said in Sims and as many other
courts have said, the D.C. Circuit has said, do not have the
same expertise and do not have the full picture that those in
the executive branch or any intelligence community have.
Ms. Wasserman Schultz. Well, let me further read from Judge
Webster's letter to the Subcommittee.
He says, ``As a former director of the FBI and director of
the CIA, I fully understand and support our Government's need
to protect sensitive national security information. However, as
a former Federal judge, I can also confirm that judges can and
should be trusted with sensitive information and that they are
fully competent to perform an independent review of executive
branch assertions of the state secrets privilege.''
So my question is really twofold. Why, despite his unequal
credentials as a judge and former FBI and CIA director, do you
think Judge Webster's assertion is incorrect or wrong, and why
do you think that there should be deference shown to the
executive?
There is a system of checks and balances in which the
judiciary is a co-equal branch of Government, and despite the
Reynolds decision, that is why we are here today, because the
legislative branch is concerned about how far this
Administration has taken the state secrets privilege and how
many times it has excessively potentially invoked it.
So, in light of that concern and our co-equal role in the
system of checks of balances, can you answer my question?
Mr. Philbin. Well, again, Madam Representative, there is a
lot built in there, but let me try to go through it, and I am
trying not to take issue with Mr. Webster's letter because I
have not read it, and I do not fully exactly what it says or if
the quotation that you have read in this context would give me
a better idea of exactly what it means.
To the extent his statement is that Federal judges have and
can be trusted with reviewing classified material, I have no
dispute with that. Federal judges review classified material in
multiple contexts, as Judge Wald has explained. The FISA court
does it. Other courts do it in the FOIA context. So simply
handling and looking at the material is not necessarily an
issue.
Then there is the question of determining whether or not
the material, if released, would do harm to the United States,
and as I was trying to explain before, I think we are getting
hung up maybe on what the word ``independent'' builds into it.
I believe that the judges can conduct and do under current law
conduct a review to ensure that if the executive asserts that
something is secret and would do damage to the United States if
released, they look at that to determine whether that is
appropriately invoked under a deferential standard of whether
or not it was reasonable----
Ms. Wasserman Schultz. But let me give you an idea of what
he is talking about. In his letter, he refers to el-Masri v.
the United States, and in the letter, he talked about how Mr.
el-Masri had been denied his day in court, ``even though no
judge ever reviewed any evidence purportedly subject to the
privilege, nor did any judge make an independent assessment as
to whether or not the evidence might be available for Mr. el-
Masri to proceed with his lawsuit based on public accounts of
the rendition and an investigation conducted by the German
government.''
I mean, we are talking about a person who was by all
accounts an innocent victim, as Judge Webster refers to in his
letter, and, I mean, let us not split hairs. You know what an
independent review means. An independent review means that
without the executive looking over their shoulder, without the
executive deciding what it is that the judge can see in order
to make their decision, they independently review the evidence
and decide whether the state secrets privilege has been
properly invoked, as you referred to it being necessary in the
beginning of your statement.
Mr. Philbin. With all respect, Madam Representative, I am
not attempting to split hairs. I am attempting to be precise
about what I think is an issue that has some constitutional
significance.
I believe that judges should conduct, can conduct an
independent review in the sense that they are the decision-
maker and do not simply rubber stamp what the executive says.
At the same time, the standard of review announced by the
Supreme Court in Reynolds and in U.S. v. Nixon has
constitutional significance and constitutional overtones, and
Article III judges should show deference to the judgment of the
executive in terms of what is material that will do harm to the
national security of the United States if released.
To the extent that Mr. Webster's letter--and I have the
greatest respect for him, and he has great expertise--suggests
or that you understand this letter is suggesting that judges
are equally qualified and should with complete independence
from the judgment of the executive decide what is a secret or
not or what would do harm to the United States, I respectfully
disagree with that and believe----
Ms. Wasserman Schultz. So----
Mr. Philbin [continuing]. It is against a long line of
precedent.
Mr. Nadler. The gentlelady's time has expired.
The gentleman from----
Ms. Wasserman Schultz. The question, Mr. Chairman, is: How
do we know? I mean, that is really the question, and I do not
think the gentleman has answered that question.
Mr. Philbin. I am sorry. I am not sure. How do we know?
Ms. Wasserman Schultz. How do we know that the Government's
privilege has been properly invoked, if the judge does not have
an independent opportunity to review the evidence? I mean, we
just do not know.
Mr. Philbin. No, the judge can and should have an
independent opportunity to review the evidence. I am merely
trying to be precise about the standard under which the----
Mr. Nadler. Thank you.
The gentleman from Tennessee is recognized for 5 minutes.
Mr. Cohen. Thank you, Mr. Chairman.
I came in a little late, and I apologize.
Mr. Philbin, you are taking the most pro executive
Administration position--is that accurate--among the panelists
here?
Mr. Philbin. Yes. Among the panelists here, I am taking the
most pro Administration position.
Mr. Cohen. And do you feel Article III Section 2 gives them
some type of unique--or not Article III, but Article II--gives
the Administration some unique ability to have information and
not to have it be checked, or do you just think there should be
limited checks?
Mr. Philbin. Well, I believe that Article II, in assigning
the President authority as commander in chief and as
representing the Nation in foreign affairs, does give the
executive special and uniquely assigned constitutional
responsibilities with respect to diplomatic, military, and
national security information and that the other branches have
to show respect for that unique constitutional role.
Mr. Cohen. And does respect preclude review?
Mr. Philbin. I do not think it absolutely precludes any
review, and that is not the way the Supreme Court has treated
it. But it does affect the standard and the scope of review.
Mr. Cohen. And, Judge Wald, you have had some cases like
this. Do you have a problem with the scope of review as has
been proposed in the bill in the Senate or maybe if you have
seen the one that Mr. Conyers intends to introduce in the
House?
Judge Wald. I have seen them, but I am going to have to go
back and look. Or maybe you can remind me what the----
Mr. Cohen. Does anybody have an opinion on those bills?
Judge Wald. I know when I looked at them, I had no problem
with them----
Mr. Cohen. Objection?
Judge Wald [continuing]. And I think I can find it.
Mr. Cohen. I cannot. My eyes are not good enough, but----
Mr. Wells?
Mr. Wells. Yes, Congressman. The Senate bill is consistent
with the ABA policy in large respect, and I believe the ABA
would support the Senate bill that is currently drafted.
Mr. Cohen. Thank you.
I know we want to close. I just think that we need to
provide as many checks and balances as possible. That is the
foundation of our Government.
I understand national security, but when an Administration
will lie to send people into war, lie about weapons of mass
destruction, lie about countries having uranium that they are
going to give to a Nation to threaten our security, lie about
relations with al-Qaida and 9/11, when they will lie about
that, they will lie about anything.
I felt so bad last night listening to President Bush and
having to think that when he talked about Iran, I could not
accept anything he said because I knew he lied to a previous
Congress. So he has lost the ability for the American people to
listen to anything he says, and it is like the sky is falling.
And, unfortunately, he has done great damage to the
Administration and to the presidency and to the judgment of the
executive to assert privilege because when you will go to war
under false pretenses and lies----
Mr. Franks. Mr. Chairman, I want to make a point of order
that the gentleman's words are unparliamentary because they are
personally offensive toward the President of the United States.
Mr. Cohen. If they are, you know, if we need to withdraw
them, I will withdraw them, but I think that there was a report
recently that suggested--maybe I could quote that--that 400
times they have been cited, the Administration, for giving
mistruths, untruths, prevarications, and other type of
statements to the American people.
Mr. Nadler. Okay. Does the gentleman withdraw the words?
Mr. Cohen. Withdraw them all.
Mr. Nadler. Thank you. let us----
Mr. Cohen. Adios.
Judge Wald. Mr. Chairman, I just want to answer yes or no
because I did not finish it.
Mr. Nadler. Yes, please.
Judge Wald. I managed now to look at the underlying bill. I
do not have a problem. I think the word ``deference'' is
something that applies--there are 50,000 degrees of deference
that you can give, and whenever any expert comes in, I mean,
who has some kind of qualified experience, you say, ``You are
the expert in architecture, so we are going to look at your
opinion with deference.'' So, in that respect, I have no
problem with the bill.
Mr. Nadler. Thank you very much.
The gentleman's time has expired.
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 to as promptly as you can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Without objection, we unanimously thank all the witnesses.
And with that, this hearing is adjourned.
[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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