[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
privilege.
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
programs.
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
so.
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.
