STATE SECRET PROTECTION ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 984
__________
JUNE 4, 2009
__________
Serial No. 111-14
__________
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 DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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JUNE 4, 2009
Page
THE BILL
H.R. 984, the ``State Secret Protection Act of 2009.............. 4
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 17
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 18
WITNESSES
The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court
oF Appeals for the District of Columbia
Oral Testimony................................................. 21
Prepared Statement............................................. 24
The Honorable Asa Hutchinson, Senior Partner, Hutchinson Law
Group
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Mr. Andrew Grossman, Senior Legal Policy Analyst, The Heritage
Foundation
Oral Testimony................................................. 55
Prepared Statement............................................. 57
Mr. Ben Wizner, National Security Project Staff Attorney,
American Civil Liberties Union
Oral Testimony................................................. 83
Prepared Statement............................................. 85
APPENDIX
Material Submitted for the Hearing Record........................ 111
STATE SECRET PROTECTION ACT OF 2009
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THURSDAY, JUNE 4, 2009
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 2:09 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Delahunt,
Johnson, Sensenbrenner, Franks, and King.
Staff Present: Heather Sawyer, Majority Counsel; and Paul
Taylor, Minority Counsel.
Mr. Nadler. 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.
Today, the Subcommittee examines legislation that I have
introduced, along with the distinguished Chairman of the full
Committee, with Representative Tom Petri, and with several
other Members of the Committee, that would codify uniform
standards for dealing with claims of the state secrets
privilege by the government in civil litigation.
In the last Congress, we had an oversight hearing on the
state secrets privilege and a hearing on this legislation. The
bill was reported favorably to the full Committee.
Our experience has demonstrated the destructive impact that
sweeping claims of privilege and secrecy can have on our
Nation. In order for the rule of law to have any meaning,
individual liberties and rights must be enforceable in our
courts. Separation-of-powers concerns are at their highest with
regard to secret executive branch conduct, and the government
simply cannot be allowed to hide behind unexamined claims of
secrecy and become the final arbiter of its own conduct.
Yet, claims of secrecy have been used to conceal matters
from Congress even though Members have the security clearance
necessary to be briefed in an appropriately secure setting.
That has been the case with respect to the use of torture, with
the use of illegal spying on Americans, and other matters of
tremendous national importance.
And let me add here that this issue is perhaps the most
important issue, in my judgment, this Committee will face,
because this Committee is charged with enforcing civil rights
and civil liberties under our Constitution. And there is an
ancient maxim of law that says there is no right without a
remedy. And if the government violates your rights, if it
kidnaps you, it tortures you, it deliberately burns down your
house, it wiretaps you without a warrant, whatever, how do you
enforce your right against the government?
Well, the Administration could criminally prosecute its own
members who have done so; that is unlikely. Congress could
exercise oversight; that is hit or miss. Or the victim can sue
in tort, he can sue the government for illegal wiretapping, for
kidnapping, for intentional infliction of mental distress, for
assault, whatever.
But if the government can eliminate that lawsuit on the
pleadings simply by coming into court and using the magic
incantation of the words ``state secrets,'' and say, ``This
case should be dismissed because we say, in our unexamined
assertion, that trying the case would necessitate the
revelation of state secrets, case dismissed,'' then there is no
recourse to the courts and there is no enforcement of rights.
And rights without a remedy are illusory and we have no rights.
Therefore, we must put some limits on this use of the state
secret doctrine.
The same pattern of resorting to extravagant state secrets
claims has been evident in the courts. While the Bush
administration did not invent the use of the state secrets
privilege to conceal wrongdoing, it certainly perfected the
art. The state secrets privilege has been abused by prior
Administrations to protect officials who have behaved illegally
or improperly or simply in an embarrassing manner, rather than
to protect the safety and security of the Nation.
The landmark case in the field, U.S. v. Reynolds, is a
perfect case in point. The widows of three civilian engineers
sued the government for negligence stemming from a fatal air
crash. The government refused to produce the accident report,
even refusing to provide it to the court to review, claiming it
would reveal sensitive state secrets that would endanger
national security. The Supreme Court concurred without ever
looking behind the government's unsupported assertion that
national security was involved.
Half a century later, the report was found, now
declassified, online by the daughter of one of the engineers,
and it clearly revealed no state secrets. It clearly could have
been made available in a form that would have enabled those
families to vindicate their rights in court. It did, however,
reveal that the crash was caused by government negligence,
which I suspect was the real reason for the invocation, or the
invention in that case, of the state secrets doctrine.
Protecting the government from embarrassment and civil
liability, not protecting national security, was the real
reason for withholding the accident report. Yet these families
were denied justice because the Supreme Court never looked
behind the government's false claim to determine whether it was
valid.
Similarly, in the Pentagon Papers case, then-Solicitor
General Erwin Griswold warned the Supreme Court that
publication of the information would pose a grave and immediate
danger to national security. Eighteen years later, he
acknowledged that he had never seen, quote, ``any trace of a
threat to the national security,'' unquote, from the
publication of the information and further admitted that,
quote, ``The principle concern is not with national security
but rather with government embarrassment of one sort or
another,'' close quote.
It is important to protect national security, and sometimes
our courts have to balance the need for individual justice with
national security considerations. Congress has in the past
balanced these important, albeit sometimes competing, demands.
In the criminal context, we enacted the Classified Informations
Procedure Act. In FISA, we set up procedures for the courts to
examine sensitive materials. Through the Freedom of Information
Act, we sought to limit any withholding of information from the
public whom the government is supposed to serve.
We can and should do the same in civil cases. Our system of
government and our legal system have never relied on taking
assurances at face value. The courts and the Congress have a
duty to look behind what this Administration or any
Administration says to determine whether or not those
assurances are well-founded.
Presidents and other government officials have been known
not to tell the truth on occasion, especially when it is in
their interest to conceal something. The founders of this
Nation knew that there needed to be checks in each branch of
the government to prevent such abuses from taking the place.
Or, in the words of the Ninth Circuit in the recent Jeppesen
decision, ``The executive cannot be its own judge.'' To allow
that--and these are now my words--to allow that is to abandon
all the protections against tyranny that our Founding Fathers
established.
Courts have a duty to protect national security secrets,
but they also have a duty to make an independent judgment as to
whether state secrets claims have any merit. When the
government itself is a party, the court cannot allow it to
become the final arbiter of its own case. The purpose of this
legislation is to ensure that the correct balance is struck.
I would just add that I am extremely disappointed that the
Department of Justice has declined to provide a witness to
discuss this very important issue at this hearing. I have met
with the Attorney General, and I understand that a review of
this policy is currently under way. Nonetheless, the Department
continues to go into court while this review is under way and
take positions that are remarkably similar to positions taken
by the last Administration.
While I greatly appreciate the Attorney General's
willingness to work with us, I believe that it should be
possible to send someone to provide us with the
Administration's views and to answer our questions to the
extent that they are able. I hope this is not a sign of things
to come.
I look forward to the testimony of our witnesses.
I would now recognize the distinguished Ranking minority
Member, the gentleman from Wisconsin, Mr. Sensenbrenner, for
his opening statement.
[The bill, H.R. 984, follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Sensenbrenner. Thank you, Mr. Chairman.
The state secrets privilege is a longstanding legal
doctrine the Supreme Court most recently described in a case
called U.S. v. Reynolds. In that case, the court made it clear
that if the court, after giving appropriate deference to the
executive branch, determines that public disclosure of
information would harm national security, the court is obliged
to either dismiss the case or limit the public disclosure of
national security information as necessary.
Under this doctrine, people with legitimate claims are not
denied access to court review. Rather, the doctrine allows
judges to personally review any sensitive information. While
this doctrine may occasionally disadvantage someone suing in
court, it is vital to protecting the safety of all Americans.
The roots of the state secrets privilege extend all the way
back to Chief Justice Marshall, the author of Marbury v.
Madison, who held that the government need not provide any
information that would endanger public safety.
In the modern era, Congress debated the issue of the state
secrets privilege under Federal law in the 1970's but
ultimately chose to maintain the status quo, including elements
of the privilege put in place by the Supreme Court in its
Reynolds decision. The Fourth Circuit Court of Appeals recently
employed the doctrine in affirming the dismissal of the case,
including that the state secrets privilege has a firm
foundation in the Constitution.
Not surprisingly, the privilege has played a significant
role in the Justice Department's response to civil litigation
arising out of our counterterrorism efforts following 9/11.
The state secrets doctrine remains strongly supported by
today's Supreme Court. Even in its Boumediene decision granting
habeas litigation rights to terrorists, Justice Kennedy, in his
majority opinion, acknowledged the government's legitimate
interest in protecting sources and methods of intelligence
gathering and stated, ``We expect the district court will use
its discretion to accommodate this interest to the greatest
extent possible,'' while citing the Reynolds state secrets case
I mentioned earlier in doing so.
I oppose any efforts, including this bill, that invite the
courts to deviate from the sound procedures they currently
follow to protect vital national security information. H.R. 984
would preclude judges from giving weight to the executive
branch's assessment of national security. And it would
authorize courts not to use ex parte proceedings in conducting
a review of privileged claims. And it would prevent courts from
being able to dismiss a case when the government cannot defend
itself without using privileged information.
The Obama administration is clearly not enamored with the
approach of this legislation and has adhered in court to the
doctrine as asserted by the previous Administration in at least
three cases already. According to The Washington Post editorial
page, the Obama administration's position on state secrets
makes it hard to distinguish from its predecessor. Anthony
Romero, the executive director of the ACLU, has written that
the new Administration has embraced policies held over from the
Bush era, including the use of the state secrets claim.
Last Congress, legislation essentially the same as H.R. 984
was cosponsored in the Senate by Senators Joe Biden and Hillary
Clinton, who are now President Obama's Vice President and
Secretary of State. But this year, President Obama, Vice
President Biden, and Secretary of State Clinton have gone
silent on the bill. When asked about it recently, the Vice
President's communications director said, quote, ``No comment
on this one here.''
The legislation goes exactly in the wrong direction, so
much so that even President Obama, Vice President Biden, and
Secretary of State Clinton are running away from it. So should
we.
And I yield back the balance of my time.
Mr. Nadler. I thank the gentleman.
I will now recognize the distinguished Chairman of the full
Committee for an opening statement.
Mr. Conyers. Thank you, Mr. Chairman. Thank you, Ranking
Member Emeritus--I mean Chairman Emeritus.
The President is running away from a lot of things, so this
is just one more of them. That doesn't mean that consideration
is not extremely important.
We have been here before, ladies and gentlemen. I am for
state secrets. There are some secrets that we've got to keep
away from citizens and Congress people and everybody else--
bloggers. But, wait a minute, which ones? Well, that is what we
are here to try to sort out. We didn't say abolish state
secrets. And, look, state secrets have been used so much to
keep things secret that shouldn't have been kept secret; that
is the problem.
And, by the way, let's take a look at the great statements
of the President on this subject. He said, we've got to rein in
state secrets privileges. He acknowledged that the privilege is
overbroad and overused, and that he plans to embrace several
principles of reform. He has agreed that state secrets
shouldn't be used to protect information merely because it
reveals the violation of law or it may be embarrassing to the
government.
His Administration has also continued pressing an
aggressive view of state secrets privileges in the court,
adopting arguments perfected by the prior Administration.
Earlier this year, in the Mohamed case, the Administration
currently maintained the prior Administration's sweeping
assertion that the very subject matter of the case was a state
secret and that that should prevent judicial consideration of
the case. The case was about torture.
A few months later, another case was brought against the
government for unlawfully spying on its own citizens, Jewel.
And our Administration again sought outright dismissal, arguing
that litigating the case inevitably would require a harmful
disclosure of state secrets and that the court need not examine
any actual information on whether the case might proceed.
``It is too secret; we can't even talk about it. What do
you mean, a remedy of their rights? This is a right apparently
without any remedy at all. It is too secret to talk about.
Don't you get it? It is so secret, we can't even hear the case
to determine whether there is a right or a wrong involved or
whether it is a case brought in error.''
So, we remain encouraged that the Administration is taking
a thorough review of the state secrets privilege and his
assurance, number 44, that he will deal with Congress and the
courts as co-equal branches of government, and we can't sit
idly by. Well, if we are co-equal, then that is what we are
going to assert.
In closing, Chairman Nadler, it is unacceptable that the
Department declined to even come to this non-secret meeting.
Nobody is here. What is that about? They could not provide a
witness. Why? Well, there is a review pending, and it is not
solved, and it remains--until it is solved, they don't want to
come before this co-equal branch of government with them. Okay.
That doesn't sound very co-equal to me. They could have sent
someone here to say, ``We can't talk with you guys.'' They
could have sent someone here to say that, ``What we are doing
is not concluded. We understand your concern about the
matter.''
So what is with this state secrets business? Well, let's
see how far we can go. I am so glad to see Judge Wald. She has
been in Judiciary so many times. And our former colleague, Asa
Hutchinson, we are happy to see him back. Grossman is always on
the case. Mr. Wizner, you are a relative newcomer here, but we
welcome you.
And it is no secret that what we are going to say and do
here today is going to be information for everybody to help
decide how we resolve this situation.
Thank you for your indulgence, Chairman Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
In the interest of proceeding to our witnesses and mindful
of our busy schedule, 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, which we will only do in case of votes
on the floor.
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 who is
only able to be with us for a short time.
I would like now to introduce our panel of witnesses.
The first witness is the Honorable Patricia Wald, who has
had a distinguished legal career. She served as a judge for the
United States Court of Appeals for the D.C. Circuit from 1979
to 1999, serving as chief judge from 1986 to 1991.
Judge Wald was also a judge with the International Criminal
Tribunal for the former Yugoslavia from 1999 to 2001 and was a
member of the President's Commission on the Intelligence
Capabilities of the United States Regarding Weapons of Mass
Destruction from 2004 to 2005.
Judge Wald clerked for the Honorable Jerome Frank on the
U.S. Court of Appeals for the Second Circuit and received her
B.A. from the Connecticut College for Women and her J.D. from
Yale Law School.
Asa Hutchinson is a former colleague of ours in the
Congress and on this Committee, who served with distinction as
a Member of this Committee.
In 1982, President Ronald Reagan appointed him United
States Attorney. He represented the Third District of Arkansas
from 1996 until President Bush appointed him as the
Administrator of the Drug Enforcement Administration. In
addition to his service on the Judiciary Committee, he was also
a Member of the Intelligence Committee.
In January 2003, Representative Hutchinson was confirmed by
the U.S. Senate to be the first Under Secretary of the newly
created Department of Homeland Security, where he served until
2005. He subsequently founded the Asa Hutchinson Law Group in
2008 with his son, Asa III.
Andrew Grossman is The Heritage Foundation's senior legal
policy analyst. Before being named as senior legal policy
analyst in January 2008, Mr. Grossman was a writer, editor, and
general analyst at Heritage, contributing to the think-tank's
research program in domestic and economic policy, foreign
policy, and legal affairs.
Mr. Grossman is a graduate of the George Mason University
School of Law, where he served as senior articles editor of the
George Mason Law Review. He received his master's degree in
government from the University of Pennsylvania in 2007. In
2002, he received his bachelor's degree in economics and
anthropology from Dartmouth College, where he edited the
Dartmouth Review.
Ben Wizner has been a staff attorney at the ACLU since
2001, specializing in national security, human rights, and
first amendment issues. He has litigated several post-9/11
civil liberties cases in which the government has invoked the
state secrets privilege, including El-Masri v. The United
States, a challenge to the CIA's abduction, detention, and
torture of an innocent German citizen; Mohamed v. Jeppesen,
Dataplan, Inc., a suit against the private aviation services
company for facilitating the CIA's rendition of torture applied
to Muslim men; and Edmonds v. Department of Justice, a
whistleblower retaliation suit on behalf of an FBI translator
fired for reporting serious misconduct.
Mr. Wizner was a law clerk to the Honorable Stephen
Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
He is a graduate of Harvard College and New York University
School of Law. And I must say I have a particular fondness for
New York University School of Law since my son is currently a
student at New York University School of Law.
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 to red when the 5
minutes are up.
Before we begin, it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hands to take the oath.
[Witnesses sworn.]
Mr. Nadler. Let the record reflect that the witnesses
answered in the affirmative.
You may be seated.
The first witness is the Honorable Judge Wald.
TESTIMONY OF THE HONORABLE PATRICIA M. WALD, RETIRED CHIEF
JUDGE, U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
Judge Wald. Thank you, Chairman Nadler, Chairman Conyers. I
would like to make five brief points in the 5 minutes.
The first one is that the frequent use of the privilege in
recent years to deny all relief to civil plaintiffs who have
been injured by governmental action has become a matter of
grave concern to lawyers, judges, legal scholars, and the
American Bar Association. This total cutoff of relief is often
unnecessary and, I think, produces rank injustice in many
cases.
Now, in U.S. v. Reynolds, the Supreme Court acknowledged,
and there is no dispute, that ultimately it is a judge who must
decide whether the privilege applies or not. But judges who
have been administering the privilege have struggled with
varying success to find a middle way between national security
and ensuring access by worthy plaintiffs to some form of remedy
for their grievances.
Unfortunately, the judges have not been entirely consistent
in the way they administer the privilege. Some show a readiness
to dismiss cases outright on mere allegations or a conclusory
affidavit, and some probe more intensely. Some judges actually
look at the item that the state secrets privilege is raised as
to, and some don't and are content to look at the government's
affidavits. There isn't even any consistency as to how
substantial the risk has to be to justify closing down the
case.
So, in sum, I think there is a consensus: It is time to
regularize the administration of the privilege in a way that
protects national security but not at the expense of a total
shutdown of civil process for worthy claimants.
I want to make two points here.
One, there is nothing that I can find in this bill that
prevents the government from raising or invoking the state
secrets privilege. And once the state secrets privilege has
been found to apply, I find nothing in this bill that says the
judge can make the government actually disclose that. There are
various other kinds of substitutes, alternatives, but I really
don't think that there is any instance in which this bill will
make the government disclose something which has been
identified by the judge as a state secret.
The second point I would make is that Congress's power
under article 1, section 8, and article 3, section 2, of the
Constitution to prescribe regulations on the admissibility of
evidence in Federal courts has been used many times in the
Federal Rules of Evidence, in FISA proceedings, in CIPA, and I
don't think there has much doubt about their authority to do
so.
Very recently, in the Al-Haramain case out in California, a
district judge, in an exhaustive opinion, decided that the FISA
procedures for treating information obtained under secret FISA
warrants preempted invocation of the state secrets privilege--
another vindication, at least at that level--we will see
whether the government appeals or not--of Congress's power to
legislate evidentiary rules.
Number three point: Federal judges in other contexts handle
every day classified materials and secret materials and make
decisions as to whether redacted versions can be disclosed or
summaries made that can serve the purpose of continuing the
litigation without in any way undermining national security.
They do it all the time. They have, in many cases, used masters
in formative indices like the Vaughn Index in Exemption 1,
FOIA. They use sampling techniques where massive amounts of
material are included.
This bill wisely incorporates into the civil law area of
state secrets privilege many of these useful techniques with
which judges are already familiar in order to minimize the
number of cases--there will still probably be some--where
dismissal of the entire claim will be necessary.
I think that's a good thing for the following reason: While
many of these techniques are very familiar, they are not
absolutely, explicitly authorized, so that I had encountered
cases in my own experience on the bench where the government
would object to something, such as the use of a master, and it
came up on appeal. Ultimately, we decided the judge could use a
master, but the government objected. So I think it is a good
thing to have these techniques actually explicitly recognized
in the law.
I am not going to get into the Jeppesen case because I
think the counsel over here at the end--I will only say that,
to me, they did a very good thing in distinguishing using the
state secrets privilege as a kind of ``close-the-door because
of the subject matter of this.'' In this case, it was
extraordinary rendition. And the court said, no, the state
secrets privilege is only about particular pieces of
information, which you can raise them, you can debate them, you
can litigate them, but you can't say, ``No, we are not going to
talk about secret prisons, and we are not going to talk about
extraordinary rendition,'' because if you have other evidence
that is not subject to the state secrets privilege, you should
be able to go ahead. I thought that was very worthy.
The fourth point: Very briefly, I will point out some of
the things in this bill that I think are very useful.
They require initially that the government asserts in
affidavit form the factual basis for the claim of privilege. I
don't think anybody could object to that. That the judge then
makes a preliminary review and then confers with the party,
even at that early stage, as to whether there are special
protective provisions that need to be taken, such as a master
or an index, akin to that used in FOIA cases, to make sure that
it isn't disclosed even at this early stage.
He can then decide if, at that point, he is going to allow
the parties to continue with discovery of materials that are
not covered by the privilege to see if the case can go ahead
without his stopping dead in his tracks and making the decision
as to whether the privilege is involved. If he does find that
the privilege could be an indispensable part of either the
plaintiff's case or the defendant's dissent, then it provides
guidance, long-needed guidance, as to what standard he should
use.
Now, I think that the good thing about that is it allows
cases to go forward which possibly will be able to be litigated
without any use of the state secrets privilege at all or any
substitute for it. If, however, the judge finds that, indeed,
this is a truly legitimate case for invocation of state secrets
privilege, he then has a series of alternatives, which I don't
think anybody could object to. They have been long used in
CIPA. They are things such as stipulation, a summary that is
not classified or secret, et cetera.
The criteria on which he makes a decision as to whether it
is a state secret is whether or not significant harm is
reasonably likely to occur. And I think that is one which is in
line with some of what I would consider the best judging in the
past. The government does have the burden of proving the nature
of the harm, the likelihood of occurrence.
And this, I think, is very important, and I will save it,
one of the two issues, I think, that can legitimately be
discussed here today: that the court should weigh the testimony
from government experts in the same manner it does and along
with any other expert testimony. I think that is very
important, that the judge makes an independent judgment, he
looks at the testimony of the government, evaluates it the way
that we have learned to evaluate expert testimony--namely, the
qualifications of the expert, the experience of the expert, the
cohesiveness of the testimony. And those are exactly the
grounds on which one does give weight to expert testimony, and
that is what should be applied here.
The last point I would raise I have raised before, but I
want to underscore its importance. The bill does require the
judge to actually look at it. He can't just look at the
affidavit. He actually has to look at the evidence that is in
dispute as a state secret. And I think that that is very
essential, both as to the cases which will be dismissed because
there simply is no alternative and as to the cases where he
decides, no, there may be a good alternative. How can he say
what is a good alternative that will satisfy the legitimate
needs of the litigation if he doesn't even know what's in the
material?
With that, I'll conclude. But I think this legislation is
long overdue. I think it will be a great help to judges. And I
don't think it will in any significant way impugn our national
security.
Thank you.
[The prepared statement of Judge Wald follows:]
Prepared Statement of the Honorable Patricia M. Wald
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
And now I recognize for 5 minutes the Honorable Mr.
Hutchinson.
TESTIMONY OF THE HONORABLE ASA HUTCHINSON,
SENIOR PARTNER, HUTCHINSON LAW GROUP
Mr. Hutchinson. Thank you, Chairman Nadler. It is good to
be in your courtroom again. Chairman Conyers, it is good to see
you. Thank you for your distinguished leadership in the full
Committee. My good friend, Ranking Member Sensenbrenner, thank
you for your leadership, as well. And, all Members of the
Committee, it is good to be back to a Committee that I hold in
fond admiration.
As you know my background has been principally in law
enforcement and security as well as in elective office. But
both as United States Attorney, as head of the DEA, and then in
Homeland Security, obviously we handled national security
matters, sensitive matters at the highest level. And I bring
that background to this Committee, and I would emphasize
certain principles that I think should be followed as you
address this important legislation.
First, as has been acknowledged this morning already, there
is a national security interest in protecting state secrets.
This is not a figment of anybody's imagination. There are state
secrets. There are things that we don't want the public to
know, and certainly our enemies should not know that. There are
many programs, sources, methods of surveillance, and numerous
defense programs that need protection and secrecy. That is a
given and must be done.
However, I think it is important to underscore also that
any assertion of this state secrets privilege by the executive
branch should not be immune from our Federal system of checks
and balances. It is just fundamental to me in my governing
structures, in my understanding of what our Founding Fathers
created that we should not have an unfettered executive branch.
They are co-equal branches of government. And the system of
checks and balances is so critical to compensate for the
failures of human nature.
And if you can imagine being in the executive branch and
having some troublesome litigation filed, and you are advised
that, ``Well, we perhaps could claim the state secrets
privilege and avoid substantial litigation,'' and there is a
human tendency, when that privilege is there, to claim that
privilege. And with the failures of human nature, even though
that privilege many times is justifiably claimed, there also
are historical instances where perhaps it was not appropriately
claimed. Regardless, though, regardless, under our system of
government there needs to be a check and balance, and the
judiciary is the right position to do that.
And that is the third principle, I believe, that the courts
have proven themselves capable of protecting classified
information at the highest levels and establishing procedures
to balance the interests of secrecy and justice. The
illustrations, of course, are how they have very appropriately
handled FISA matters, how the Classified Information Procedures
Act has been implemented so well by the courts, and the
handling of classified information under FOIA requests.
And I think you could also make the case historically that
perhaps there has been more loose lips in other branches of
government than within the judiciary. They have a good track
record of protecting those things that have been entrusted to
them.
And I might add, I pointed out my background as a law
enforcement and national security official, but I also have
been blessed to be in the private sector, and currently I am
handling a national security case from the defense side. And
guess what the first thing the courts required? Well, you've
got to have your security, top-secret security clearances
upgraded; you have to go and view the evidence in secure
facilities. All the procedures are set up, even though they are
cumbersome, they are required, and they are implemented on a
routine basis by the courts.
Another point that I think is relevant to make today, that
currently, even though this is an historic doctrine, there is
insufficient authority, insufficient clarity, and insufficient
guidance for the courts to provide an independent review that I
believe is important in our system of checks and balances. We
have the Reynolds case that has been cited; the El-Masri case
most recently in the Eastern District of Virginia. The Jeppesen
case I understand will be discussed, the Fourth Circuit case.
All of these reflect different approaches and different
results--some better, some others are not so good, depending
upon your viewpoint.
But I believe that Congress, being the important third
branch of government, should act to provide the guidance and
clarity in terms of what is the right approach to provide the
independent review of when the state secrets privilege is
asserted. House Resolution 984 is an excellent foundation to
consider this. It provides for an independent assessment by the
courts, does not require substantial deference.
And I know this is a little bit of a touchy issue, but if I
might just make the point that, in other areas of litigation
where there is some deference--FOIA, other regulatory areas--
there are fine guidelines and history and regulations that give
guidance in those areas that fine-tune it before it ever gets
to the court. And perhaps there is the distinction between the
deferences given in those circumstances and the independent
review that is required here.
I want to abide by the time, but I think the bill is a good
starting point for discussion. It does provide the independent
assessment; clarifies that it is an evidentiary privilege, not
an immunity doctrine; and it does provide the courts with the
critical oversight.
Finally, I have enjoyed participating in the Constitution
Project's bipartisan Liberty and Security Committee, which I
have recently joined. And the report, entitled ``Reforming the
State Secrets Privilege,'' has been signed by more than 40
policy experts, former government officials, and legal scholars
of all political affiliations. And I would ask that that report
be included as part of the record in this hearing today.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hutchinson follows:]
Prepared Statement of the Honorable Asa Hutchinson
Thank you for the opportunity to testify today in support of
legislation to provide critical reforms to the state secrets privilege.
I am grateful for the leadership of this Subcommittee in holding this
hearing on a subject of critical importance to both our national
security and the security of individual rights.
In addition to having served as a Member of Congress (R-AR), I have
worked for many years in law enforcement and homeland security. I have
served as United States Attorney, as Director of the Drug Enforcement
Administration, and as Under Secretary for Border and Transportation
Security at the Department of Homeland Security. Because of my law
enforcement and security experience, I have a keen appreciation for our
country's need to protect its national security information. However,
my experience also demonstrates that it is important to reform the
state secrets privilege to ensure that our courts provide critical
oversight and independent review of executive branch state secrets
claims. I believe that Congress needs to act to serve both goals, and
help restore a proper balance between our need to safeguard national
security information and our responsibility to ensure access to the
courts for litigants.
The state secrets privilege was originally recognized as a doctrine
to protect particular evidence from disclosure in litigation, when such
disclosure might threaten national security. In recent years, however,
it has evolved from an evidentiary privilege into an immunity doctrine,
which has blocked any litigation of cases involving national security
programs. Over the past twenty years, courts have dismissed at least a
dozen lawsuits on state secrets grounds without any independent review
of the underlying evidence that purportedly would be subject to this
privilege. Not only does this create an incentive for overreaching
claims of secrecy by the executive branch, but it has prevented too
many plaintiffs from having their day in court. For example, in the
case of El-Masri v. United States, the trial court and the U.S. Court
of Appeals for the Fourth Circuit relied on the state secrets privilege
to dismiss a lawsuit by Khaled El-Masri, a German citizen who, by all
accounts, was an innocent victim of the United States' extraordinary
rendition program. The case was dismissed at the pleadings stage,
before any discovery had been conducted. No judge ever examined whether
there might be enough non-privileged evidence to enable the case to be
litigated, such as evidence from public accounts of the rendition and
an investigation conducted by the German government.
In April of this year, the U.S. Court of Appeals for the Ninth
Circuit issued a decision in Mohamed v. Jeppesen Dataplan, Inc., which
reflected a very different and much more encouraging interpretation of
the state secrets privilege. The court held that cases cannot be
foreclosed at the outset on the basis of the state secrets privilege,
and that the trial court must ``undertake an independent evaluation of
any evidence sought to be excluded to determine whether its contents
are secret within the meaning of the privilege.'' Such an independent
review is essential to provide the necessary check on executive
discretion. However, even if the Ninth Circuit's interpretation of the
privilege stands after further litigation, it is still critical that
Congress act to provide trial courts with the guidance they need to
conduct such an independent review. The State Secrets Protection Act,
H.R. 984, provides the type of legislative direction that would
establish necessary oversight and a more appropriate balance in the
application of the state secrets privilege.
Having served in both the Congress and the executive branch, I have
a full appreciation for the need for a robust system of checks and
balances, and a genuine respect for the role of our courts in our
constitutional system. I also understand the natural tendency on the
part of the executive branch to overstate claims of secrecy and to
avoid disclosure whenever possible. It is judges who are best qualified
to balance the risks of disclosing evidence with the interests of
justice. Judges can and should be trusted with sensitive information
and they are fully competent to evaluate independently whether the
state secrets privilege should apply to particular evidence.
It is Congress' responsibility, and fully within its constitutional
role, to enact such legislation to restore checks and balances in this
area. Legislation to reform the state secrets privilege would not
interfere with the President's responsibilities under Article II of the
Constitution. On the contrary, the United States Constitution
specifically grants Congress the power to enact ``Regulations''
regarding the jurisdiction of federal courts. U.S. CONST. Art. III,
Sec. 2. This includes the power to legislate reforms to the state
secrets privilege.
Congress should reform the state secrets privilege and allow courts
to independently assess whether the privilege should apply. I want to
highlight several particular provisions of the State Secrets Protection
Act, H.R. 984, that recognize this need for change and would institute
reforms that I support.
Section 6 of the State Secrets Protection Act would provide the
most basic and critical reform, by requiring that whenever the
executive branch asserts the state secrets privilege, the judge must
review the claim, including reviewing the actual evidence asserted to
be privileged, and must make ``an independent assessment'' of whether
the privilege applies. Section 3(b) of the Act provides that this
hearing may be conducted in camera, so that there would not be a risk
that the review itself might disclose any evidence. Judges are well-
qualified to review evidence asserted to be subject to the privilege
and make appropriate decisions as to whether disclosure of such
information is likely to harm our national security. Judges already
conduct similar reviews of sensitive information under such statutes as
the Foreign Intelligence Surveillance Act (FISA) and the Classified
Information Procedures Act (CIPA).
Section 6(c) provides that ``The court shall weigh testimony from
Government experts in the same manner as it does, and along with, any
other expert testimony.'' Executive branch officials are entitled to
the same respect and deference as any other expert witnesses but the
judgment these officials make should not be without oversight. I do not
believe it is appropriate, as the companion Senate bill does, to
include language requiring that executive branch assertions of the
privilege be given ``substantial weight.'' The standard of review in
H.R. 984 provides proper respect for executive branch experts, whereas
a ``substantial weight'' standard would unfairly tip the scales in
favor of executive branch claims before the judge's evaluation occurs,
and would undermine the thoroughness of the judge's own review. The
standard of review in H.R. 984 would ensure that a court's independent
review is meaningful and is not just a routine acceptance of executive
assertions.
Section 7(b): This provision requires that if the judge finds that
certain evidence is protected by the state secrets privilege, the judge
should also assess whether it is possible to create a non-privileged
substitute for the evidence that would allow the litigation to proceed.
If a non-privileged substitute is possible, the court must order the
government to produce such a substitute. This provision would help
restore an appropriate balance in national security litigation, by
ensuring both that national security secrets are protected from public
disclosure and also that litigation will be permitted to proceed where
possible. Judges are fully competent to assess whether it is possible
to craft a non-privileged substitute version of certain evidence, such
as by redacting sensitive information.
Section 7(c): This section would prohibit courts from dismissing
cases on the basis of the state secrets privilege at the pleadings
stage or before the parties have had the opportunity to conduct
discovery. The provision would still permit dismissals on other
grounds, such as for frivolousness. This section would help restore the
doctrine to its proper role as an evidentiary privilege rather than an
immunity doctrine, and would ensure that plaintiffs like Mr. El-Masri
will be able to have a judge independently determine whether there is
sufficient non-privileged evidence for their cases to be litigated.
Other sections: Several other provisions of H.R. 984 are designed
to ensure that judges have the tools they need to conduct their
independent reviews of state secrets claims, and should counter any
concern that judges may not have the necessary expertise and background
in national security matters to make these determinations. For example,
Section 5(b) of the bill instructs the court to consider whether to
appoint a special master with appropriate expertise to assist the court
in its duties, and Section 6(b) enables the court to rely on sampling
procedures when the evidence to be reviewed is voluminous.
These provisions would provide for independent judicial
determinations of whether the state secrets privilege should apply and
thereby help restore the critical oversight role of our courts.
Granting executive branch officials unchecked discretion to decide
whether evidence may be withheld under the state secrets privilege
provides too great a temptation for abuse. I urge you to support these
reforms contained in the State Secrets Protection Act and to help
preserve our constitutional system of checks and balances. Finally, I
am attaching to my prepared testimony a white paper released by the
Constitution Project's bipartisan Liberty and Security Committee, which
I have recently joined. The report, entitled Reforming the State
Secrets Privilege, is signed by more than forty policy experts, former
government officials, and legal scholars of all political affiliations.
Although it was released before I joined this committee, I endorse its
conclusions that judges should independently assess state secrets
claims by the executive branch, and that Congress should clarify that
judges, not the executive branch, must have a final say about whether
disputed evidence is subject to this privilege.
__________
Mr. Nadler. Without objection, that report will certainly
be included in the hearing.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. And I thank the witness.
I will now recognize Mr. Grossman for 5 minutes.
TESTIMONY OF ANDREW GROSSMAN, SENIOR LEGAL POLICY ANALYST, THE
HERITAGE FOUNDATION
Mr. Grossman. Good afternoon, Mr. Chairman, Ranking Member
Sensenbrenner, and Members of the Subcommittee. My testimony
today concerns the consequences of the State Secrets
Protections Act, which would severely limit the state secrets
privilege.
I have three points. First, this legislation is unnecessary
because there is absolutely no evidence that the state secrets
privilege has been abused. Second, it is unconstitutional
because it ignores clear Supreme Court precedent of the
President's power to safeguard national security secrets. And,
third, this legislation would invite the courts to intrude on
Congress's power and responsibility to make national security
policy, upsetting the careful balances that Congress has
struck.
I will begin with some background. Contrary to often-
repeated claims, there is nothing sinister or unusual about the
state secrets privilege. Seven separate requirements, including
Department of Justice review and personal consideration by
high-ranking Federal officials, ensure the privilege is used
only when necessary to protect national security. And judges
play a crucial role by ensuring that it has been properly
invoked.
Though the results may appear harsh in some cases, that is
true of all privileges. For example, courts have cited the
speech or debate clause to throw out suits against Members of
Congress and other legislators, involving invasion of privacy,
defamation, incitements to violence, age, race, and sex
discrimination, retaliation for reporting sexual
discrimination, and larceny and fraud. Yes, these are harsh
results, but for a greater good: unfettered speech in this
legislative body. In the same way, the state secrets privilege
advances a greater public good: protecting our Nation.
My first point today is that there is no evidence that the
state secrets privilege is being abused or is being more
frequently or in different ways than in the past. Data from
1954 through 2008 show that its use is rare. In reported
opinions, the privilege was asserted seven times in 2007 and
just three times in 2008. According to Robert Chesney of Wake
Forest University, the evidence does not support the conclusion
that the Bush administration used the privilege with greater
frequency than other Administrations.
The data also shows the privilege is being used to protect
the same national security interests as in the past. Over the
previous four decades, most state secrets cases concerned
intelligence programs, followed by military technology and
contracts, and then diplomatic communications. That is the same
pattern as today.
The data also showed the government is not seeking harsher
remedies, such as dismissal of cases, any more than it has in
the past.
Further, courts take seriously their duty to oversee their
privilege. During the Clinton administration, courts refused to
grant the requested privilege in 17 percent of opinions. That
rose to 40 percent during the Bush administration. If anything,
the courts have become less deferential.
Finally, President Obama, once a critic of the privilege,
now recognizes its great importance. Every President, going
back to Lyndon Johnson, has reached the same conclusion.
In sum, there is no evidence that the state secrets
privilege is being misused, overused, or otherwise abused. That
makes this legislation unnecessary.
My second point is that it is also unconstitutional. Unlike
most other privileges, this one is grounded in the
Constitution, specifically the powers it commits to the
President. The Supreme Court has said as much in case after
case, stating expressly that this constitutional power
protecting military or diplomatic secrets, the very things
covered by the privilege.
In my written testimony, I identify seven separate
provisions of the act, including the core operative provision,
that infringe on powers the courts have clearly stated belong
to the executive. This legislation may also infringe on the
judicial power by imposing a rule of decision on the courts
with deciding some constitutional issues. That, too, would be
unconstitutional. The result is that, based on its own
precedents, the Supreme Court would most likely strike down
this act.
My third and final point is that this legislation empowers
judges to usurp Congress's own powers and responsibilities. In
the constitutional design, Congress plays a leading role in
national security. This includes creating and funding defense
programs, some of which do require secrecy and stealth. But the
legislation would force courts to expose aspects of key
intelligence programs even if they ultimately rule in favor of
the government on the privilege issue. This would end or
severely hamper these programs, upsetting the careful balance
struck by Congress in making national security policy.
But that is the goal of several of the groups that support
this bill. It would give them a heckler's veto over programs
they were unable to convince this legislative body to amend or
to shut down. Perversely, some Members of Congress may welcome
this result. By passing the buck to the courts, they could
avoid the consequences of tough votes and controversial
national security programs. Congress should not abdicate its
responsibility or grant such legislative power to unelected
judges.
In conclusion, there is no justification for this
legislation. Beyond being unnecessary, it is risky. Members of
Congress should focus on the greater public good and look past
the narrow interests of those who would use the courts to make
policy.
Thank you.
[The prepared statement of Mr. Grossman follows:]
Prepared Statement of Andrew M. Grossman
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
I now recognize for 5 minutes Mr. Wizner.
TESTIMONY OF BEN WIZNER, NATIONAL SECURITY PROJECT STAFF
ATTORNEY, AMERICAN CIVIL LIBERTIES UNION
Mr. Wizner. Thank you, Chairman Nadler, Ranking Member
Sensenbrenner, Chairman Conyers, and distinguished Members of
this Subcommittee. I appreciate this opportunity to explain the
ACLU's interest in reform of the state secrets privilege, an
issue of critical importance to all Americans concerned about
the unchecked abuse of executive power.
I also want to commend Chairman Nadler and the cosponsors
of the State Secrets Protection Act, H.R. 984. If enacted, it
would place reasonable checks and balances on the executive
branch, re-empower courts to exercise independent judgment in
cases of national importance, and protect the rights of those
seeking redress through our courts system.
More than 50 years have passed since the Supreme Court
formally recognized the states secrets privilege in the United
States v. Reynolds. During that time, Congress has never
legislated to place reasonable restraints on the use of the
privilege or to provide standards or guidelines to increasingly
confused and divided Federal courts.
Congress's silence on this critical issue has become all
the more troubling in recent years, as we have seen the state
secrets privilege mutate from a common-law evidentiary rule
designed to protect genuine national security secrets into an
alternative form of immunity that is used more and more often
to shield the government and its agents from accountability for
systematic violations of the Constitution and this Nation's
laws.
The ACLU has been involved in a series of high-profile
cases in which the government has invoked the state secrets
privilege in response to allegations of grave government
misconduct, not simply to block access to specific information
that is alleged to be secret, but to dismiss lawsuits in their
entirety at the outset. This has happened in cases involving
rendition and torture, warrantless surveillance, and national
security whistleblowers. The dismissal of these suits does more
than harm the individual litigants who are denied opportunity
for redress. It deprives the American public of a judicial
determination regarding the legality of the government's
actions.
I have been personally involved in a number of these cases,
including the case of Khalid El-Masri, a German citizen who was
detained incommunicado by the CIA for nearly 5 months in a
squalid Afghan prison in a tragic case of mistaken identity.
Mr. El-Masri's case received such prominent press coverage in
the United States and abroad that he truly became the public
face of the CIA's extraordinary rendition program. Nonetheless,
Mr. El-Masri's lawsuit was dismissed on the basis of an
affidavit from the CIA, the very entity charged with
wrongdoing, that characterized the entire subject matter of Mr.
El-Masri's suit as a state secret. As a result, the one place
in the world where Mr. El-Masri's ordeal could not be discussed
was in a U.S. court of law.
A second ACLU lawsuit on behalf of victims of the CIA's
rendition program, this one targeting a Boeing subsidiary,
Jeppesen Dataplan, that provided flight services, enabling the
clandestine transfer of our clients to overseas prisons where
they were tortured, was similarly dismissed on the basis of a
CIA affidavit alone. And, as this Subcommittee knows, when the
case reached the Ninth Circuit Court of Appeals in February,
the Obama administration, in just its third week in office,
stood behind the Bush administration's broad claim of state
secrets.
In April, the Court of Appeals reversed the dismissal of
the suit, holding that the government's state secrets claim was
premature and overbroad. It held that the government's sweeping
theory of state secrets, quote, ``had no logical limit and
amounted to an argument that the judiciary should effectively
cordon off all secret government actions from judicial
scrutiny, immunizing the CIA and its partners from the demands
and the limits of the law.'' The court held that the
government's legitimate secrecy concerns would be amply
protected during further proceedings, where the privilege could
be invoked with respect to discrete evidence, not an entire
lawsuit.
It will come as no surprise to the Subcommittee that, in my
opinion, the Ninth Circuit got the law exactly right. But a
single correct judicial opinion does not relieve Congress of
its obligation to act in this area. Only Congress can provide a
comprehensive scheme applicable to all courts that addresses
all disputed aspects of the state secrets privilege and
resolves the conflict and confusion in the courts. The need for
uniform standards and practices is as urgent today as it was
prior to the Ninth Circuit's ruling.
At a press conference the day after the Ninth Circuit's
ruling in the Jeppesen case, President Obama was asked about
his Administration's position on state secrets. The President
responded, ``I actually think that the state secrets doctrine
should be modified. I think right now it's overbroad. Searching
for ways to redact, to carve out certain cases to see what can
be done so that a judge in chambers can review information
without it being in open court--you know, there should be some
additional tools so that it's not such a blunt instrument.''
Congress should provide those additional tools by enacting
H.R. 984.
Thank you.
[The prepared statement of Mr. Wizner follows:]
Prepared Statement of Ben Wizner
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
I'll begin the questioning by recognizing myself for 5
minutes.
Judge Wald, during markup of the bill in the Subcommittee
in the last Congress, one of my colleagues cited your testimony
last year as supporting a requirement that courts grant, quote,
``substantial weight'' to government assertions of the harm
likely to be caused by public disclosure of information the
government seeks to withhold as a state secret.
Is that accurate? Do you believe we should require the
courts automatically grant special deference, substantial
weight, or utmost deference, or something similar, to
government assertions? That is the standard in the Senate
companion bill but not in this bill, as you know.
Judge Wald. Yeah, Chairman Nadler, I'm glad you gave me an
opportunity to address that point. When I was here before the
House Judiciary Committee last year, you did not have a bill
yet. No draft bill had actually been submitted. We were talking
about principles of legislation.
One of the then-Administration officials raised the
proposal that ``utmost deference'' be the standard. And in that
colloquy that followed, I said, well, there are other places in
legislation, like Exemption FOIA 1, that use ``substantial
weight.''
I believe, though I don't have that quote right in front of
me, but I believe I also attached to that what I later said in
a supplemental letter that went to the House Judiciary
Committee, I meant the same kind of weight that any expert
witness gets. And I gave a quote from Skelly Wright in my
former court in Ray v. Turner, in which he defines
``substantial weight'' to mean only the weight that is
appropriate by the demonstration of qualifications, expertise,
et cetera.
Mr. Nadler. Thank you. So you think the language in the
current bill----
Judge Wald. I like the language in the current bill better.
I think it's confusing. I'm sorry if I contributed to the
confusion.
Mr. Nadler. That's fine. Thank you.
Now, if the language in the current bill is adequate to
account for government expertise, what are the risks, if any,
of putting in language about substantial weight or utmost
deference? Why shouldn't we do that?
Judge Wald. Because I think that the basic principle and
the one that was endorsed by the Supreme Court in Reynolds is
the judge should be the decisionmaker as to whether the
privilege applies, and he ought to make an independent
assessment. Other parts of your bill say that. And I think it
takes away from that underlying principle if you start saying,
``Well, you make an independent assessment, but you'd better
give a lot of weight, a lot of deference here,'' there.
Mr. Nadler. Okay. Thank you.
Congressman Hutchinson, those who oppose independent
judicial review of government secrecy claims often argue that
it is the President and the executive branch, not the courts,
that have the greater expertise and responsibility for
safeguarding national security.
This view, in my opinion, underestimates the ability and
the responsibility of the courts in our constitutional scheme,
and it also seems to overlook what you described in your
testimony as, quote, the natural tendency on the part of the
executive branch to overstate claims of secrecy and to avoid
disclosure whenever possible, end quote.
Doesn't the argument regarding the superior expertise of
the executive branch also overlook the potential conflict for
the government in the case where the information it seeks to
withhold might prove embarrassing, politically or otherwise,
might provide evidence of unlawful conduct or otherwise
undermine the position it is taking in the case?
Mr. Hutchinson. Well, the key point is that we have to give
the courts the tools and the guidance to assure an independent
review. Any language, such as substantial deference, would
undermine that independent review.
In terms of the ability of the courts to weigh expert
testimony, that's what's marvelous about our judiciary and our
rule of law in this country, is that you can have a judiciary
listen; they don't have to be experts on patent law to make a
fair decision or an expert in engineering to make a fair
decision in an engineering case.
Mr. Nadler. So you would trust the expertise of the courts?
Mr. Hutchinson. The expertise of the courts to weigh fairly
the expertise under normal guidelines of what's presented to
them.
Mr. Nadler. Thank you.
Mr. Wizner, in cases that you have handled, the government
has argued that the entire subject matter, like rendition to
torture, is a state secret. In the last Congress, we held
hearings on rendition. The government acknowledged that, quote,
rendition is a valuable tool in the war on terror, end quote,
and other governments have concluded, have conducted extensive
examination of particular cases.
In view of these facts, what are we to make of the
government's argument that the entire subject is too secret and
warrants outright dismissal of the cases?
Mr. Wizner. I think, Chairman, that it is evidence that the
government's approach to secrecy in these matters is somewhat
more opportunistic and malleable than it may seem. On very day
that I was in court in San Jose, California, the Jeppesen case,
responding to government lawyers' assertions that that case
should be thrown out on subject matter grounds, former CIA
Director Hayden was in Congress testifying that the CIA had
water-boarded three individuals.
And so that, when it is in the government's interest to
reveal those matters for whatever reason, the government is
quite forthcoming with that information if it needs to put it
in the public record to ensure that it can prosecute or execute
alleged terrorists. When it finds itself in the position of
being a defendant in a civil case, the same information becomes
secret as a way of avoiding accountability.
Mr. Nadler. Thank you.
Without objection, I will grant myself 1 additional minute,
so you can answer one more question.
Mr. Wizner, why should the government be required to prove
item-by-item that disclosure of particular information, a
particular piece of evidence, would harm national security? Why
isn't it sufficient for the court to accept as reasonable the
government's assertion that, in its expert view, litigation
will require revelation of state secrets at some point, that
dismissal is justified at the initial pleading stage?
Mr. Wizner. Judges are not clairvoyant. Judges are not in a
position at the beginning of the litigation to determine what
evidence will or will not be necessary for the parties to make
or defend their claims before that evidence has even been
presented by either side.
And when that argument is being advanced by an executive
branch official who stands to gain from the dismissal of the
lawsuit, I think courts need to be more wary about it because
of the inherent conflict of interest that's there.
It is never a waste of judicial resources to allow parties
to have their day in court and to try to make their case. And a
court cannot know at the outset that a plaintiff will not be
able to come up with alternative means of proving its case
without recourse to state secrets.
Mr. Nadler. Thank you very much.
And that concludes my questioning for the moment, maybe
more than a moment.
I now recognize the distinguished Ranking Member of the
Subcommittee, the former Chairman of the Committee, for 5
minutes, Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much.
Judge Wald, I have a quote from your testimony before the
predecessor of this Committee, Subcommittee, on January 29,
where you talk specifically about substantial weight being
given to a government assertion. And you seem to approve that,
and you also quoted the FOIA statute that requires a court to
give substantial weight to a government assertion when someone
is trying to get some information under the Freedom of
Information Act.
Have you changed your mind since last year on this subject,
and if so, why?
Judge Wald. I have not changed my mind. Perhaps I am in
that close group of people currently who wish they had stated
things a little bit more clearly the first time around.
Mr. Sensenbrenner. We all have that problem.
Judge Wald. Yes, yes, but I do want to just, on this
particular--as I pointed out, when I was before this Committee,
there wasn't any bill. There wasn't anything that we were
focusing on specifically. We were talking about principles.
When I talked about substantial weight, I used it as an
example of a standard that was in FOIA exemption. But I do want
to make one thing clear, Congressman Sensenbrenner. That is, it
isn't even in the FOIA text. It's only in the conference
committee report. So we don't even have an example where it's
actually in the statute.
Now, many judges have cited it from the conference report,
but it actually was in that thing we call legislative history.
I did use substantial weight the way, in my view, even
looking at the phrase, I interpret it the way Judge Wright did,
which says, and I have put that quote in my testimony here
today as well as in the supplemental letter to the Committee,
which says it does not mean some kind of blanket notion that
when the witness comes and says, I represent the government,
immediately, he gets deference--he or she gets deference.
That it means, according to Judge Wright, and I think
that's the correct meaning, it means that you get the kind of
weight, special weight from the judge that the qualifications,
experience, and inherent persuasiveness and coherence of the
testimony render it.
I could give you an example, but I don't want to use up
other people's time.
Mr. Sensenbrenner. Well, let me pursue this further.
Maybe I should compliment you as it is starting to sound
like Justice Scalia, who doesn't think that anything we say
over here makes any difference when a matter gets in court.
But, even if you accept legislative history using
substantial weight in the FOIA request, it seems to me that the
type of material usually requested in FOIA is much less
sensitive than a material where an allegation of a state secret
is asserted by the government.
And doesn't it concern you that we would be having
different standards if we have different types of weight that
are to be accorded to government assertions or Administration
assertions when records or information are attempted to be
sought from the government?
Judge Wald. Well, number one, I am not sure. I simply don't
have the experience, although I have encountered both kinds of
cases on the bench, both FOIA Exemption 1 and a form of state
secrets. But I don't have the wide experience to validate what
you say that somehow state secrets are likely to involve much
more sensitive material.
In fact, my chief experiences with FOIA Exemption 1, and
there were some very sensitive materials that were raised in
some of those cases, including the aborted helicopter rescue of
the people at the end of the Carter administration, et cetera.
But here I want to make another point, and that is that the
Jeppesen case, I think, if I have the right case, specifically
addressed this and pointed out that they believed that
different standards might be appropriate because what is at
stake in FOIA Exemption 1 is simply a citizen wanting to get
the information, not having to show any particular injury or
any particular stake in the balancing of equities; he just
wants it.
On the other hand, if you are in a civil case, where there
is an allegation of injury and serious injury, the stakes are
much more important. So I am not sure.
And the third thing I want to point out is judges have
interpreted FOIA Exemption 1 differently, as I have pointed
out. Some won't even look at the material and take the
government's affidavit at face value. But others look into the
affidavit, and they say, well, it doesn't make a lot of sense
to me, and I don't think it's credible, and I am not going to
give it.
Mr. Sensenbrenner. That gets to my final question.
Currently we do have a body of law with a substantial deference
standard that is in the current law that this legislation
repeals and does not substitute another standard and basically
makes this a matter of judicial discretion.
Aren't we likely to get less certainty on what is a
legitimate claim of suppression of information if we start from
scratch on what the case law would be rather than keeping the
current standard in the law?
Judge Wald. I think not, because, as I said in my opening
remarks, you have got--don't have a consistent body of law with
a consistent standard now.
And, so, therefore, I think it's all over the map. I think
it would be--we could almost begin anew with the standard
that's in this law and begin to build that body. I don't think
we are going to lose anything in consistency from the current
law.
Mr. Sensenbrenner. Thank you.
I yield back.
Mr. Nadler. I thank the gentleman.
I now recognize for 5 minutes the distinguished Chairman of
the Committee, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
Since I know the President and the Attorney General better
than anybody in this room, would you explain to me why the
President is so ambivalent and why the Attorney General didn't
send anyone to this hearing?
Judge Wald. Who is that addressed to, I am sorry?
Mr. Conyers. Anybody.
Mr. Grossman. If I could, there is a saying that I have
heard from a lot of my friends who have been in the military,
and that is, where he stands depends on where he sits.
When Senator Obama, when President Obama was in the Senate,
and when he was campaigning for the Presidency, he had very
different position on the state secrets privilege. Now that he
is in the executive branch, and now that he has seen the
usefulness and the utility of that and the importance of it, he
seems to have reached a very different view.
I can understand that might be politically inconvenient for
him to come here and say that, but I think there's some
evidence that that is what has occurred.
Mr. Conyers. I was afraid you would be the one that would
answer my question.
Mr. Delahunt. Would the gentleman yield for a moment?
Mr. Conyers. Yes.
Mr. Delahunt. Yes. Mr. Grossman indicated there is some
evidence. What is the evidence? Are you speculating?
Mr. Grossman. I am speculating based on the----
Mr. Delahunt. You're speculating. That's fine. I yield back
to the gentleman.
Mr. Conyers. No, please, go ahead. Why?
Mr. Grossman. Both--when they were in the Senate, both
Senator Biden and Senator Obama were both very strong critics
of the state secrets privilege.
Since assuming office, the Administration has used the
privilege in at least about three cases of which we are aware.
And in at least, in all three of those cases, were very
controversial invocations of the privilege, cases that have
resulted in much debate in this Congress as well as in the
public sphere. These are the sorts of cases that Senator Biden
especially was critical of prior to joining the executive
branch.
So, yes, it is speculation. I have not asked anyone in the
executive branch what their exact thinking on this is, but I
think a reasonable conclusion can be drawn by the facts of what
has actually occurred.
Mr. Conyers. Well, since you have been so expert with the
President, can you explain the Attorney General's failure to
provide a witness?
Mr. Grossman. No.
Mr. Conyers. Anyone else want to weigh in on this?
Mr. Hutchinson. Well, I will just say, I think that, I
appreciate the fact that the Attorney General is looking within
the executive branch as to refining their internal procedures
on assertion of the state privileges doctrine.
But, to me, that really raises the profile and the
necessity of Congress to act.
And so whether here or not, to me, they are working on
their branch of government, but I am delighted the Congress is
considering it at the same time, more comprehensive reform.
Mr. Conyers. Well, Mr. Franks and I are the two people that
raised the question of unconstitutionality more than anybody I
can think of in this Committee.
What do you think about the unconstitutional charge on this
measure, Mr. Wizner?
Mr. Wizner. Well, I share the views expressed by Judge Wald
in her opening remarks that Congress has the constitutional
authority to legislate in this area.
I would only add that my understanding of the arguments
that this bill would be unconstitutional would apply to equal
force to the Freedom of Information Act, to the Foreign
Intelligence Surveillance Act, and to the Classified
Information Procedures Act.
These are all bills that give courts tools to handle
sensitive and classified information and create procedures for
courts to do that. None of those intrude on the President's
constitutional authority, and neither does this legislation.
Mr. Conyers. Judge Wald, would you further comment?
Judge Wald. Well, I certainly agree with what Mr. Wizner
said.
All privileges, not all privileges, but many privileges
have little, you know, sort of tinges of constitutionality
about them, the executive privilege certainly. And you could on
all go back and say, we need this; the executive has got to
have this. It has got to have more power in order to fulfill
its commander-in-chief powers or to fulfill, in the case of
executive privilege, its ability to run the government.
But yet I think that these privileges have been considered
to be susceptible to congressional concern going way back to
1969. When we were going to have Federal rules of evidence with
more detail, there actually was one drafted to deal with the
state secrets privilege. Then Congress abandoned the attempt to
have a very specific set of codes on it.
So I don't think the Supreme Court in Reynolds or anyplace
else suggested that this was some kind of sacrosanct
constitutional privilege that couldn't be touched.
Mr. Conyers. Asa Hutchison, what say you?
Mr. Hutchinson. Well, I think the argument is that somehow
legislating in this area impedes the executive from his
national security responsibilities in protecting our country.
And I don't see any challenge to that authority at all.
The legislation that's being considered doesn't stop them
from exercising state secrets, from implementing national
security programs. It doesn't change the fact that they can
assert that privilege.
It just says that, when it gets to the courts, after the
fact always, when it's going to be reviewed, then there's going
to be a process in our system of checks and balances.
So I do not see this as taking away from the authority of
the chief executive in terms of national security.
Mr. Conyers. Well, if we were in court, Mr. Grossman, you
would be on the short end of this discussion.
Mr. Grossman. That is perhaps true, numerically speaking.
I think if you look at the Supreme Court's decisions, their
opinions, in Chicago and Southern Airlines, in Nixon, in Egan,
time and time again, the Court has said that secrecy is in some
domains a necessary incidence to the executive power and the
commander-in-chief power. In other words, those powers cannot
be fully exercised without a strong degree of secrecy.
Further, the Court has actually said that the executive has
an innate constitutional power to control access to classified
information. In other words, who is trustworthy enough to
receive certain types of classified information, specifically
in the diplomatic affairs, as well as in military and national
security affairs.
It is my opinion that this legislation intrudes on that
power that the executive has. For that reason, it would be
unconstitutional.
Mr. Nadler. Would the Chairman yield for a moment?
Mr. Conyers. Yes.
Mr. Nadler. Thank you.
Mr. Grossman, you cite these cases where the Supreme Court
has said that secrecy is inherent in the executive.
But it is true, is it not, that the Supreme Court has
always said these powers are not unlimited, not absolute. The
Pentagon papers case, for instance, was a limitation on
secrecy. In fact, no executive power, no congressional power,
for that matter, is absolute.
Mr. Grossman. You are correct that no power is absolute.
Mr. Nadler. Thank you.
Mr. Grossman. At the same time, no power is empty either.
And to devoid the executive of any discretion whatsoever on----
Mr. Nadler. Wait a minute. This bill, what we are
discussing, doesn't devoid anything. It simply subjects the
executive's power of secrecy in the context of Court cases to
supervision by the Court and to ultimate approval by the Court.
That's what it does.
So just to talk about empty--to just talk and throw around
phrases about the executive's power, this and that, in fact,
the Congress's power under article I--section--I forget which
we quoted before--to regulate evidence, to regulate the
admissibility of evidence; it's a very specific grant of power,
and that's what this is doing.
Mr. Grossman. I would argue, however, that that particular
grant of power is not unlimited. For example----
Mr. Nadler. So you would argue that a general power
supersedes a specific grant of power?
Mr. Grossman. I would say it is not unlimited in the sense
that, for example, this body could not abrogate the fifth
amendment privilege against self-incrimination despite its
power to regulate the----
Mr. Nadler. Because there's a specific limitation on that
power. The general rule of instruction is that specific
supersede generalities, and you are reversing that.
Mr. Grossman. I would disagree. I think, very specifically,
the Constitution assigns the executive power and the
constitutional power to the President of the United States. If
secrecy is a necessary incidence of that power, then that is
the President's power.
Mr. Nadler. Okay.
Mr. Conyers. Well, Mr. Grossman, if we were in court, I
would ask you to come back to chambers after we finished our
session, but I appreciate your constructive attempts to defend
your proposition.
And I yield back, Mr. Chairman.
Mr. Nadler. Thank you.
I now recognize the gentleman from Iowa for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
Mr. Grossman, I want to compliment you on the nimble
response to the Chairman of the full Committee.
First, though, I will welcome Mr. Hutchison back to the
Judiciary Committee, and I thank all the witnesses for your
testimony.
I would first like to ask Mr. Hutchinson, as I was able to
hear most of the testimony here and review some of it in print
and look back over the history of this country, and wonder when
it is that I have been alarmed that the state secrets doctrine
or executive privilege has caused someone to lose their rights
or their privacy or made the Nation less safe, or was there
anything in history that we needed to know about that we
weren't able to learn from because it was rolled up in
executive privilege.
The bottom line, and my question is, Mr. Hutchinson, what
are we trying to fix here?
Mr. Hutchinson. You know, and that's where--I am not coming
to this hearing in a critical fashion. Others have had
different experiences.
I am coming to this from the standpoint that, regardless of
the history of it, we have responsibility to make sure the
potential for abuse is minimized by a system of checks and
balances.
And I come at this as a conservative. I do not believe, in
an unfettered and unchecked executive branch anymore than I
believe in an unfettered and unchecked judiciary branch. We all
have checks and balances.
And so here to say the executive can assert a state secrets
privilege without any review, with a broad authority, unbridled
authority, I think goes against the principles of our Founding
Fathers. So that's sort of the direction I am approaching it.
Mr. King. Well, I appreciate that. And I just--this is a
point of information, as a long-time Member of Congress and
esteemed former Member of this Committee, I'd ask if you have
ever gone into a classified hearing, well, a classified
hearing, given up your BlackBerry and your cell phone and come
back and recovered that, and then stepped in front of a
television screen and seen the similar briefing already coming
out on the news almost simultaneously.
Mr. Hutchinson. Yes.
Mr. King. I think all of us have. So that's the point of my
concern. I wonder if you care to speak to that.
Mr. Hutchinson. And your point is well taken, that there is
a history, and I might say I think that, of other branches of
government that have spoken about classified information, the
executive branch actually excels in that. And so often,
something is classified, and 2 days later, you will see an
official go out and speak about that subject.
Now, I think that the track record of the courts is totally
different. I think part of it is they don't have to stand for
election in the Federal judiciary.
And so they have a track record that is extraordinary in
protecting classified information, both with the FISA courts,
that I think has been exemplary, but also with the Classified
Information Procedures Act.
Mr. King. Yes, actually, I agree with the point that you
have made, and I know it was made in the testimony earlier. I
am glad it was brought out again, and I thank you for your
response.
I turn to Mr. Grossman, in light of the nimble nature that
you have responded to previous comments or questions, I would
ask you if you could address this panel on the limit or the
scope of the existing executive privilege state secrets
doctrine.
Let me just say hypothetically, if there was a White House
that had contracted with an enterprise that had the trappings
of a criminal enterprise to engage in as a contractor and to
working with developing the Census, which happens of course
every 10 years here in the United States, and if the results of
that census might dramatically change the congressional
districts in America, change the political dynamics in America,
if those results of counting the people were maybe extrapolated
by a formula rather than the actual constitutional requirement
to count people, and if that enterprise that appeared to be a
criminal enterprise were something that happened to be also
supportive of turning out the vote for that very same White
House, would there be able to express or assert an executive
privilege that would keep us from finding out the details of
that contractual organization?
Mr. Grossman.
Mr. Grossman. No, I do not believe that would be the case
for the reason that that particular organization that you
describe as well as the purpose to which that relationship is
directed, do not concern national security. They do not concern
military affairs, and they do not concern----
Mr. King. I thank you, Mr. Grossman.
And then into this record I would like to point out that
there are many more suspicious activities taking place with
that hypothetical organization, which I will now name as ACORN.
And I would like to see this Committee look into ACORN.
And I would ask the Chairman of the full Committee to
reconsider his reconsideration. And I would ask the Chairman of
the Subcommittee to take a look at the evidence, that has been
filed into this record, which is substantial and purely
justified an investigation of ACORN.
I would ask that you do so.
And I would yield back the balance of my time.
Mr. Nadler. And I will say that, after you join as a
cosponsor of this bill, I will consider that request.
Mr. King. Is that a deal?
Mr. Nadler. I now recognize for 5 minutes the distinguished
gentleman from Massachusetts.
Mr. Delahunt. Yes, thank you, Mr. Chairman.
And let me extend a personal welcome to our former
colleague and my friend, whom I remember having breakfast with
during our first term together here in the Congress, talking
about the separation of powers and other issues, as I am sure
you remember, Asa.
It's great to have you here.
And by the way, you are sorely missed. It would be good to
have you back on this side of the dais.
And I read your testimony, and I am in total agreement. I
think you have really captured what the issues are.
And when we talk about the separation of powers, what we
are really talking about are limitations on the power of each
of the coequal branches.
And as I listen to Mr. Grossman, his version, or his
understanding of article II, is clearly in line with, I think,
Mr. Cheney's and Mr. Addington's.
And I, for one, believe that what has occurred over a
period of time is the accretion of simply too much power, you
know, to the executive. And, again, I want to be clear that
this is no partisan tint to it. I think we are really talking
about core constitutional order here. And people can have
disagreements in terms of the powers of the executive.
And let me put this out. You know, when we talk about state
secrets, underlying that is the power to classify, and I think
what we have failed to do as a Committee is to examine the
process of classification, because what I see again and again
is classification of material that is later declassified or
comes, as you suggest, or as the gentleman from Iowa indicated,
goes into the public domain, and everyone is perplexed simply
because there appears to be no rational basis for classifying
that information.
So, you know, Mr. Grossman seems to have great confidence
in the executive.
His testimony is that there's seven separate requirements,
including Department of Justice review and personal
consideration by high-ranking Federal officials, ensuring that
the state secrets privilege is used only when necessary to
protect state secrets.
And I respect the sincerity of his belief. Yet, at the same
time, that, in my judgment, is not what the Founders designed
when they created the Constitution and that there was meant to
be these checks and balances. It's a distrust of government, if
you will.
You indicated you are a conservative. I share your
conservatism in this particular area because it is so
fundamental.
You know, secrecy really is the hallmark of
totalitarianism, and transparency is clearly an aspect of
viable, healthy democracy. And I think we have got to keep
that. We are out of balance. We are out of kilter now.
I am not here to defend the Obama administration. This is
something that the United States Congress must do to reorder,
if you will, the balance of powers and the separation of
powers.
We ought to be looking at, how are things classified? I
know how things are classified in some agencies. There's
somebody in a cubical somewhere that's just redacting. You have
experienced that.
Mr. Grossman, you make a statement that says that it could
be unduly burdensome for the courts to have to actually review
the information. What leads you to that conclusion?
Mr. Grossman. That it would be unduly burdensome for courts
to review classified information?
Mr. Delahunt. Right.
Mr. Grossman. In certain cases, essentially, those that are
challenging extensive secret programs, there may be enormous
amounts of data that were subject to discovery.
Mr. Delahunt. How many of these cases you have been
involved in?
Mr. Grossman. Directly?
Mr. Delahunt. Right.
Mr. Grossman. I am not a litigator.
Mr. Delahunt. The answer is, you haven't been involved in
any of these cases?
Mr. Grossman. I am a researcher. I do not litigate cases.
That is----
Mr. Delahunt. Fine. Well, let me suggest to you, I have
been involved, and as I know Mr. Hutchinson has as well, as a
prosecutor in numerous cases. I have interacted with judges who
are trial judges.
Let me assure you, the judiciary has the capacity; to
suggest it's an undue burden on the judiciary simply is not
accurate. And you ought to speak to some litigators and some
judges before you make such statements, and I say that to you
with respect.
Mr. Nadler. Thank you, Mr. Delahunt.
The gentleman from Arizona is recognized for 5 minutes.
Mr. Franks. Thank you very much, Mr. Chairman.
I, too, want to welcome my very respected friend, Asa
Hutchison.
You know, I understand he is a little bit on the other side
of the issue here today in a sense, but it just shows that even
the most sage and wise among conservatives can become a little
disoriented now and then.
But, no, actually, Mr. Chairman, I know that he is coming
from essentially the same foundation and perspective that I do,
perhaps come to a slightly different conclusion.
But we are very glad that you are here and thank you for
your service, sir.
Mr. Chairman, I can't help but notice that the pattern that
seemed to come from the conversation you had with Mr. Grossman.
You know, this Administration recently decried enhanced
interrogation, and certainly in the campaign did the same. And,
of course, as you also know, they reserved unto themselves the
right to use the same techniques if they thought they were
necessary.
Just recently, just, I think, today, the Administration
called--Mr. Obama called the Iraq war a war of choice. And yet
he chooses to continue to prosecute that war, and he has a
withdrawal timetable, essentially the same as the Bush
administration.
The Guantanamo Bay issue has been brought up a great deal,
and yet it appears that the result will be either terrorists in
the United States subject to all of our constitutional rights
or the creation of something essentially the same as Guantanamo
Bay.
The surveillance techniques that were decried so profoundly
by the Obama administration and Obama campaign have been
essentially left in place the same way.
I even heard the President the other day say that we cannot
sustain this deficit spending. It's enough to really amaze you
sometimes.
The Obama--the Justice Department has invoked the state
secrets privilege in three court cases since the President took
office. According to the Washington Post editorial page, the
Obama administration's position on state secrets makes it hard
to distinguish from its predecessor.
According to USA Today's editorial page, ``The Obama
administration's decision to embrace the Bush legacy on the
state secrets doctrine has all the elements of hypocrisy.''
Anthony Romero, the executive director of the ACLU, has
written that, quote, when it comes to key national security
policies, the Obama administration is continuing along the path
paved by the previous Administration, end quote. The new
Administration has embraced or only superficially modified
several policies held over from the Bush era, including the use
of the state secrets claim that the Justice Department invoked
last month to throw out the ACLU suit on behalf of rendition
victims.
This has not changed. This is definitely more of the same.
Now, Mr. Chairman, I just got to tell you, I am thankful
that Mr. Obama has had some epiphanies lately. I hope that he
accelerates those epiphanies, because I think the national
security of the community and the economic future and the
constitutional foundations of the Nation are at stake.
But with that said, I am going to give Mr. Grossman an
opportunity, the ACLU said this has not changed, this is more
of the same. And I am going to give you a chance to agree or
disagree with the ACLU director.
Mr. Grossman. I agree entirely, and I think its quite
heartening. I think it demonstrates that this is not a partisan
matter. This is something, it is not a political matter. It's
about the safety of our Nation, and it's something where,
between political--I am sorry, between Presidential
administrations, there has been no disagreement.
Mr. Franks. Well, Mr. Chairman, I guess that's my main
point. I know I took the opportunity to express some feelings
that the Administration has been hypocritical in some of the
attacks that it made on the previous Administration and has
come to some realities that are always easy to ignore in a
campaign.
What is important here, I think, is for all of us to
realize that truth and time travel on the same road and that
truth always has the last word and that somehow, perhaps in
this institution and in our campaigns, we should try to figure
out what's right instead of who is right all the time.
And with that, I yield back. Thank you.
Mr. Nadler. I thank the gentleman.
I think the purpose of this hearing is, regardless of the
position of any Administration, to figure out what is right,
not who is right. And I agree with the gentleman in that.
I thank the witnesses.
Without objection, all Members will have 5 legislative days
to submit to the Chair written questions to the witnesses,
which we will forward and ask the witnesses to respond 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, I thank the witnesses and the Members.
With that, this hearing is adjourned.
[Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]
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