>> guest: i agree, peter, that this is a civil rights issue or social issue to some extent. about 11 or 12 percent of american homes watch television over the air, and they are disproportionately among the low-income homes and minority homes and so forth, and one of the reasons that we've tried very hard basically to have no one left behind for lack of effort on our part is that it's very important that these people not lose what is their principle connection to the outside world, news, public events, public safety messages as well as entertainment. so it's very important to us not to have a portion of the population cut off from the mainstream of the american public. >> host: erica swanson, are you pleased with the fcc's response to the dtv transition? >> guest: we can tell you what we've seen in recent weeks has begun to make a difference. we've seen the fcc, the national telecommunication association really make an investment in the small agencies who are called on

to do this work, and that makes a difference. 1-888-call fcc, it's a very good resource, complimentary to that are the hundreds and hundreds of local resources in cities and communities across the country. >> host: erica swanson is with the leadership conference on civil rights, and their web site civil rights.org/dtv if you'd like to see what they're doing. bill lake, final question. what would you do differently that we didn't do if you could do it all again? >> guest: i think we would have started the concentrated outreach efforts that we're engaged in now well before february, and i think if we had, we would be in even better shape in terms of reducing the number of households that are unready. >> host: would you have stuck with the coupon program? >> guest: i think the coupon program has been very good because we've heard there are a number of people for whom that $40 is asian -- decisional.

if the box cost $50, that additional $10 is a problem for some, so we've been encouraging the availability of $40 boxes so there's no co-pay, if you will. >> host: bill lake is with the fcc, he's the dtv transition coordinator. this is all going to happen on june 12th, and next week on "the communicators" we'll get an update. ..

>> how is c-span funded? >> private donations. >> taxpayers? >> i don't really know. >> from public television. >> donations. >> i don't know where the money comes from. >> federally? >> through contributions from donors. >> how is c-span funded? 30 years ago america's cable companies created c-span as a public service, a private business initiative, no government mandate, no government money. >> and now a hearing on the use of the states secrets privilege a role that's been used to block lawsuits against government.

new york representative gerald nadler chairs this 90-minute hear of the house judiciary subcommittee on the constitution. he's cosponsoring a bill that would make it harder for the federal government to invoke this doctrine. >> this hearing of the subcommittee of 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 five minutes for an opening statement. today the subcommittee examines legislation that i've introduced along with the distinguished chairman of the full committee with representative tom petry and other members of the committee that would codify uniformed standards for dealing with claims of state secrets bit government in civil litigation. in the last congress we had an oversight hearing on the state secrets privilege and the hearing of this legislation. the bill was reported favorably to the full committee. our experience has demonstrated the destructive impact that's sweeping claims of privilege and secrecy can have in 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 behind claims of secrecy and become the final arbiter of its own conduct. yet claims of secrecy have been used to conceal members of congress even though the members of the security clearance necessary to be briefed in an appropriate setting. that has been used with the use of torture and illegal spying of americans and other matters of tremendous national importance. and let me adhere 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's an ancient maxim maximum -- maxmu there's to right or liberty.

if it deliberately tortures or burns out your house or wiretaps without a warrant, how do you enforce your right against the government? well, the administration could criminally prosecute its own members who have done so, it's unlikely. congress could exercise oversight. that's hit or miss. or the victim can sue in tort, can sue the government for illegally wiretapping, for kidnapping, for intentional infliction of mental distress, 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 state secrets and say this case should be dismissed because we say on an 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

elusory. the same pattern of exhorting to state secrets has been evident in the state courts. why the bush administration did not invent the privilege to conceal wrongdoing it certainly perfected the art. the state secrets has been used 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. versus 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 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. 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 irwin griswold warned the supreme court that publication of the information would pose a grave and immediate danger to national security. 18 years later he acknowledged that he had never seen, quote, any trace of a threat to the national security, unquote for the publication of the information and further admitted that, quote, the principal concern is not with national security but rather with government embarrassment of one

sort or another, closed quote. it's 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 out procedures for the court to set out 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 -- 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 there needed to be checks in each branch of the government to prevent such abuses from taking place or in the words of the

ninth circuit in a recent 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'm 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 underway. nonetheless, the department continues to go into court while this review is underway. 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 they are able. i hope this is not a sign of things to come. i look forward to the testimony of our witnesses. i now yield to the distinguished -- i would now recognize our distinguished ranking minority member, the gentleman from wisconsin, mr. sensenbrenner for his opening statement. >> thank you, mr. chairman. the state secret privilege is a longstanding legal doctrine the supreme court most recently described in a case called u.s. versus 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 dismiss the case or shielding it from the public information is 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 versus madison who held that the government need not provide any information that would endanger the public safety. in the modern era congress debated the issue of a state secret privilege under federal law in the '70s but ultimately chose to maintain the status quo including elements of the privilege put in place by the supreme court and its reynolds decision. the fourth court of appeals recently employed a doctrine in affirming the dismissal of a case including that the state secret privilege has affirm 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 decision granting habeas rights to terrorists. it's the limit right of protecting sources and methods of intelligence gathering and we expect the district court will use its discretion to accommodate this interest to the greatest extent possible. while citing the reynolds state secret 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. it would authorize courts not to ex parte proceedings in claims and it would prevent courts 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 to the 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 his 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 clinton and -- or vice president biden, excuse me,

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 from 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. he yield back the balance of my time. >> i thank the gentleman. i now recognize the distinguished chairman of the full committee for an opening statement. >> 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 the consideration is not extremely important.

we've been here before, ladies and gentlemen. i'm 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's what we're 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's the problem. and, by the way, let's take a

look at the great statements of the president on the subject. he said we've got to rein state secret privileges. he's acknowledged the privilege is overbroad and overused and that he plans to embrace several principles of reform. he's 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 mohammed case, the administration currently maintained that 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.

and our administration again sought outright dismissal arguing that litigating the case inevitably would require the harmful disclosure of state secrets and that the court need not examine any actual information on whether the case might proceed. it's too secret. we can't -- we can't even talk about it. what do you mean a remedy with rights? this is a right apparently without any remedy at all. it's too secretive to talk about. don't you -- don't you get it? it's so secret we can't even hear the case to determine whether there's a right or a wrong involved.

or whether it's a case brought in error. so we remain encouraged that the administration is taking a fairer review of the state secrets privilege. and his assurance, number 44, that he will deal with congress and the courts as coequal branches of government. and we can't sit idly by. well, we're going to -- if we're coequal, then that's what we're going to assert. and in closing, chairman nadler, it is unacceptable that the department declined to even come

to this nonsecret meeting. nobody's here. what's that about? they could not provide a witness. why? well, there's a review pending and it's not solved, and it remains until it is solved, they don't want to come before this coequal branch of government. okay. that doesn't sound very coequal 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're doing is not concluded and we understand your concern about the matter.

so what's with this state secrets business? well, let's see how far we can go. i'm so glad to see judge wald. she's been in judiciary so many times and our former colleague, we're happy to see him back. grossman is always on the case. mr. wizner, you're a relative newcomer here but we welcome you and it's no secret that what we're going to say and do here today is going to be information for everybody to help decide how we resolve this situation. tufor your indulgence, chairman 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 who have five legislative sundays to submit statements for inclusion of the record. we will declare a recess for votes on the floor as we ask questions of the witness the chair will recognize witnesses in the order of their seniority ultimating between majority and minority they are member when their turn recognized. the chair reserves the right to accommodate a member who is late or who is able to be with us for a short time. i would like to introduce our panel of witnesses. the first witness is the honorable patricia wald who had a distinguished legal career. she served as the united states court of appeals for the d.c. circuit from 1979 to 1999 serving as chief judge from 1986 to '91. judge wald is 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 kicked for the honestly judge frank for the second circuit and receive her b.a. from the connecticut college from women and her j.d. from yale law school. >> and asa hutchinson served with distinction ronald reagan appointed him united states attorney and he represented the third district of arkansas from 1986 until president bush appointed him to the drug enforcement administration. in addition to his service on the 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 undersecretary of the newly created department of homeland security. where he served until 2005. he subsequently found the asa hutchinson law group in 2008 with his son, asa iii. andrew grossman is the heritage

foundation senior policy analyst. before being named in january 2008, mr. grossman was a writer, editor and general analyst at heritage. contributing to the think tank program on economic policy, foreign policy and legal affairs. mr. grossman is a graduate of george mason university school of law where he served the senior article of the george mason law review he received his master from the university of pennsylvania in 2007. in 2002, he received his bachelor's rieg in economics in anthropology from dart -- dartmouth university. he's litigated several post-9/11 civil liberties cases in which the government has invoked the state secret privileges including al-massry vs. united states a challenge to the abduction, and torture of an innocent german citizen,

mohammed v. jepson for facilitating the cia's rendition of torture of five muslim men and edmonds department of justice a whistle blower retaliation suit for a translator fired for reporting misconduct. he's a graduate of harvard college and new york university school of law. i must have a particularly off the top of my heads in of new york school of law since my son is a student at the new york university of law. i'm pleased to welcome all of you. it is now my -- 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 five minutes or less. to help you stay within that time limit there's a timing light at your table. when one minute remains the light will switch from green to yellow and then to red when the five minutes are up. it's customary for the witnesses to swear in their witnesses. if you would please stand and raise your right hands to take the oath.

do you swear or affirm under penalty of perjury that the testimony you're about to give is true and correct to the best of your knowledge, information and belief? let the record reflect that the witnesses have answered in the affirmative. you may be seated. the first witness is the honorable judge wald. [inaudible] >> could you use the mic, please. let's see if it's turned on. [inaudible] >> yeah. >> i'd like to make -- got it. i'd like to make five brief points in the five 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, the american bar association.

this total cutoff of relief is often unnecessary and i think produces rank injustice in many cases. now 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 protecting national security and ensuring access by worthy plaintiffs to some form of remedy for their grievance. 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 conclusionary affidavits and some probe more intensely. some judges actually look at the item that's the state secret privilege is raised as to and some don't and are content to look at the government's

affidavits. there isn't even 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's 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 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 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.