[Congressional Record: June 10, 2009 (Senate)]
[Page S6438-S6440]

                      state secret protection act

  Mr. HATCH. Mr. President, I rise today to express my reservations 
regarding the State Secrets Protection Act. Since one of the purposes 
of government is to provide a strong national defense, there are 
methods and sources that should never be disclosed for fear of 
irreparable damage to national security. The judicial branch has a 
long-documented history in addressing the state secrets privilege. 
Through the years, courts have affirmed time and again the privilege of 
the government to withhold information that would damage national 
security programs.
  The modern origin of this doctrine was established in United States 
v. Reynolds. The Supreme Court created the Reynolds compromise, which 
stated that the privilege applies when the court is satisfied ``from 
all circumstances of the case, that there is a reasonable danger that 
compulsion of the evidence will expose military matters which, in the 
interest of national security, should not be divulged.'' That is what 
the Supreme Court has held, and it has continued to affirm this 
position with the utmost deference to the executive branch. Under 
Reynolds, the state secrets privilege cannot--and has not--been lightly 
invoked. The pending bill before the Judiciary Committee, known as the 
State Secrets Protection Act, would negate the Reynolds compromise and 
create a higher standard of proof for the government to assert the 
  My analysis of the legislation before us leads me to conclude that 
this bill will bring chaos to the balance struck by Reynolds. This bill 
lowers the deference that courts give to the executive branch in its 
assertion of the state secrets privilege. It raises the burden of proof 
that the government must meet to protect state secrets. The courts have 
built great flexibility into the state secrets doctrine to allow 
themselves the latitude to reach an effective compromise between the 
rights of litigants and the needs of national security. This is 
conducted on a case-by-case basis.
  The writers of this bill want to redefine the standard to only afford 
protection under the state secrets privilege only when the disclosure 
of evidence is ``reasonably likely to cause significant harm'' to 
national security. This is a serious departure from the long 
established precedent of Reynolds. This has ramifications that would 
severely impede the protection of national security secrets. It is 
preposterous to abandon a standard that has more than 55

[[Page S6439]]

years of jurisprudential evolution and case law to support it. The 
Reynolds compromise says if there is reasonable danger then we secure 
the information. S. 417 says if it is reasonably likely, you can 
compromise the information. 
S. 417 fails to protect state secrets.
  This state secrets privilege is never lightly used and never used 
with impunity. The assertion of this right must be made in writing by 
the head of the executive agency invoking the state secrets privilege. 
In recent cases this has sometimes been the Director of National 
Intelligence. Courts may conduct their own probe to ensure that the 
privilege has been invoke correctly. This probe will include an 
examination as to why the information being sought is needed to prove a 
plaintiff's case. Conversely, courts will examine as to why the 
information is critical to national security. After thoughtful review, 
a judge makes the determination on the production of evidence alleged 
to have been covered by the privilege. Not a law passed by politicians.
  There is a myth that the Bush administration invoked the state 
secrets privilege more than any other previous administration. Rooted 
in this fallacy is the idea that the administration overreached in 
asserting the privilege to protect information not previously thought 
to be within its scope. This erroneous notion was propagated by not 
only the media, but by Members of this body. Most legal experts in the 
field of national security law have stated that it is not possible to 
collect accurate annual statistics for year-to-year comparisons. There 
is no ``batting average'' that can be empirically compared from one 
presidential administration to another.
  To do so would incorrectly operate under the assumption that the 
government is presented with the same amount of cases each year in 
which the privilege can be asserted. It makes absolutely no sense to me 
to compare the administrations and judge them based on the total number 
of times they asserted the privilege.
  The flow of litigation changes from year to year and varies from each 
administration, as does the invocation of the privilege. It varies 
because of the times and circumstances. We have been living in very 
difficult times and circumstances where we have to protect this 
country; circumstances we have never had to face before. Therefore, it 
is ludicrous that attempts to compare the rate of assertions of this 
privilege and arrive at the incorrect conclusion that because the Bush 
administration used this privilege it must be changed.
  Unfortunately, for the authors of this bill, the data does not 
support the hypothesis that the Bush administration ever used the state 
secrets privilege in an attempt to dismiss complaints. Published 
opinions have revealed in the 1970s the government filed five motions. 
In the 1980s the government filed motions nine times. In the 1990s the 
government filed motions 13 times. Preliminary data available for the 
Bush administration indicate that the privilege was used 14 times.
  Therefore, the impetus for the State Secrets Protection Act does not 
support the conclusion that the Bush administration blazed a new trial 
in national security law. On the contrary, the authors of this bill are 
the ones attempting to alter national security law. Keep in mind, we 
have been going through an extended war on terrorism, and, frankly, 
there is a need to protect national security. That is why we have the 
state secrets law.
  In the first 100 days of the Obama administration--get that now--in 
the first 100 days of the Obama administration, the Department of 
Justice has invoked this privilege three times--in the first 100 days. 
This is the administration that was complaining about this. Now they 
found, when they faced reality and how important this privilege is, 
they changed their tune, and they should. I commend the administration 
and specifically the President for recognizing this.
  The administration has picked up where the Bush administration left 
off in three pending cases: Al Haramain Islamic Foundation v. Obama, 
Mohammed v. Jepperson Data Plan, and Jewell v. NSA. During an interview 
of a widely revered liberal journalist, Attorney General Eric Holder 
stated that in his opinion the Bush administration--get this word--
``correctly'' applied the state secrets privilege in these cases.
  If this legislation is passed in its present form, private attorneys 
would be given access to highly classified declarations before a judge 
rules on whether the state secrets privilege should prevent such a 
disclosure. Can you imagine the harm that could come to our country? It 
is hard to believe that anybody would be advocating this in the Senate 
with what we have been going through and the special wars that we have 
been going through and the special type of terrorists that we have been 
having to put up with.
  This legislation--lousy legislation--will have the effect of 
incentivizing lawsuits by rewarding attorneys who file lawsuits with a 
security clearance. I remember one case in New York where the attorney 
herself was convicted because she was passing on information.
  Now this clearance will grant these attorneys access to classified 
information that if divulged could reasonably harm our national 
security interests. It is bad enough trying to keep secrets around 
here, let alone with people who really should not be qualified for that 
type of classification. Does an attorney need absolute proof of some 
violation of law to file a lawsuit to learn details about classified 
programs? No, under this bill, they simply need to make an accusation. 
Any accusation will do.
  Ensuring national security programs stay classified is critical to 
our citizens' continued safety. Under this legislation, private 
attorneys, regardless of the merits of their lawsuits, will be given 
access to our Nation's secrets, secrets that are critical to the 
protection of our country. It is not hard to see how this legislation 
could seriously harm national security.
  It is hard for me to see why anybody would be arguing for this 
legislation. It is a legitimate concern that ideological attorneys 
would be willing to compromise national security interests and secrets 
and disclose classified information. There are at least two recent 
instances involving the disclosure of classified information. These are 
recent. I am just talking about the recent ones, and then only two of 
them. There may be more.
  In May 2007, a Navy JAG lawyer leaked classified information 
pertaining to Guantanamo detainees to a human rights lawyer. I find it 
disturbing that a U.S. military officer who is sworn to protect this 
Nation would disseminate classified information. But an even more 
troubling scenario is posed by private attorneys. In 2005, a more 
alarming case came to light when a civilian defense counsel was 
convicted of providing material support for a terrorist conspiracy by 
smuggling messages from her client, a Muslim cleric convicted of 
terrorism, to his Islamic fundamentalist followers in Egypt.
  Do you know how difficult it was to convict an Islamic fundamentalist 
religious leader? Yet this man was convicted, and rightly so. His 
attorney compromised these matters. In press interviews after the 
attorney was convicted, she said, ``I would do it again--it's the way 
lawyers are supposed to behave.''
  She also said that ``you can't lock up the lawyers. You cannot tell 
the lawyers how to do their job.''
  I am not implying that all lawyers would act so egregiously. What I 
am saying is there is a profound reason why the government has 
classifications for categorizing the sensitivity of information that is 
vital to national security. Providing top secret clearances to persons 
outside the employment of the United States is a colossal blunder. This 
bill will allow that.
  The courts recognize the executive branch's superior knowledge on 
military, diplomatic, and national security matters. Judges do not 
relish the thought of second-guessing decisions made by officials who 
are better versed on matters that may be jeopardized by allowing 
attorneys access to classified materials. Similarly, Congress should 
not relish the thought of second-guessing the judgment of courts that 
have given careful consideration regarding the appropriate legal 
standards to balance the interests of judges and national security 
  The State Securities Protection Act does not protect state secrets. 
This bill upsets the judicially developed balance between protection of 
national security and private litigants' access to secret

[[Page S6440]]

documents. The judicial branch has crafted a state secrets doctrine to 
give judges the flexibility to weigh these interests with appropriate 
deference to the executive branch. This judicially crafted doctrine is 
more than sufficient and has evolved from the 1912 case of Firth 
Sterling to Reynolds to current cases such as Hepting and Al Masri.
  The State Secrets Protection Act is unnecessary and potentially 
harmful to national security. Unless serious changes are made to this 
legislation and the amendments offered by myself and my Republican 
colleagues are adopted, I cannot in good conscience vote this bill out 
of committee. I do not know how any Senator sitting in this body can do 
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, I ask unanimous consent to speak as in 
morning business for 12 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.