the second point i would make is that congress power under article 1 section 8 and article 1 section 2 of the constitution to proscribe relations on the admissibility of evidence in federal courts has been used many times in the federal rules of evidence, in fisa proceedings and cipa and i don't think there's much doubt about their authority to do so. very recently in the al-haramin case out in california a district judge and an exhaustive opinion decided that the fisa procedures for treating information obtained under secret fisa warrants preempted in -- innvoca shun for congress to legislate evidentiary rule. number three point federal judges in other context handle every day classified material 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 informative indices. they use sampling techniques with massive amounts of material. this bill wisely incorporates into the civil law area of state secret privilege many of these useful techniques with which judges are already familiar in order to minimize the number of, cases there will probably still be somewhere dismissal of the entire claim is 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's a good thing to have these techniques actually explicitly recognized. in the law. i'm not going to get into the jefferson case because i think the counsel over here at the end, i will only say to me, they did a very good thing in distinguishing between 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 privileges 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're not going to talk about secret prisons. we're not going to talk about extraordinary rendition because if you have other evidence that's 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 of a claim of privilege. i don't think anybody could object to that. that the judge then makes a preliminary review and then confers at the party even at that early stage whether there are special protective provisions that need to be taken such as an 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's 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 is -- 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 that 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 the states secrets privilege he has a series of alternatives which i don't think anybody could object to. they've 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's 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 of the likelihood of occurrence and this i think it's very important. i'll save one of the two issues. but that can be legitimating 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's very important that the judge makes an independent judgment. he looks at the testimony of the government, evaluates it the way that we learn -- 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's what should be applied here. the last point i would raise -- i've 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 that is as a state secret. both as cases which will be dismissed but there simply is no alternative and as to the cases where he decides, no, there may be a good alternative. how can he -- 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. >> i thank you.

and i recognize for five minutes the honorable mr. hutchinson. >> thank you, chairman nadler. it is good to be in your courtroom again. chairman conyers, it's good to see you. thank you for your distinguished leadership on the full committee. my good friend ranking member sensenbrenner, thank you for your leadership as well and all members of the committee. it's good to be back to a committee that i hold in fond admiration. as you know my background but 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 at 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 involved 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 enemy should not know that. there are many program 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 secret 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 we should not have an unfettered executive branch. there are coequal 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're advised that, well, we perhaps could claim the state secrets privilege and avoid substantial litigation and there's 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 are also historically instances where perhaps it was not an appropriate claim, 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's 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 interest and secrecy. the interest, of course, is 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 request. and i think you could also make the case historically that perhaps there's been more loose lips in other branches of government than even 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 in my background as a law enforcement and national security official, i also have been blessed to be in the private sector and currently i'm 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 secured facilities. all the procedures are set up even though they are cumbersome, they're required and they are implemented on a routine basis by the courts. another point that i think is relevant to me today is that currently -- even though this is a historic doctrine, there's 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's been cited. the al-masri case most recently in the eastern district of virginia. the jeppison case will be discussed. all 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. it does not require substantial deference and i know this is a touchy issue but if i might make the point but 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's the distinction between the deferences given this those circumstances and the

independent review that's required here. i will -- 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, clairefies it is an evidentiary privilege, not an immunity doctrine and it does provide the courts with the critical oversight. finally, i've been enjoying participation in the constitution projects bipartisan liberty and security committee which i've recently joined and the report entitled reforming the state secrets privilege has been signed by more than 40 policy experts, government officials and legal scholars of all legal affiliations. i would ask that that report be included as part of the record in this hearing today. thank you, mr. chairman. >> without objection, that hearing -- that report rather will be included in the hearing and i thank the witness. i'll now recognize mr. grossman for five minutes. >> good afternoon, mr. chairman.

ranking member sensenbrenner and members of the subcommittee. my testimony today concerns the consequences of the state secrets protection act which will severely limit the state secrets privilege. i have three points. first this legislation is unnecessary because there's absolutely no evidence that the state secrets privilege has been abused. second, it is unconstitutional because it ignores supreme court precedent on the president's power to safeguard national security secrets and third this legislation would invite the courts to intrude on congress' power and responsibility to make national security policy. upsetting the careful balances the congress has struck. i'll begin with some background. contrary to often-repeated claims there's 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 that the privilege is used only when necessary to protect national security. and judges play a crucial role by ensuring it has been properly

invoked. though the results may appear harsh in some cases it's true of all privileges. for example, courts have debated in 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 and date in this legislative body. in the same way the state secrets privilege advantages greater public good protecting our nation. my first point today is that there is no evidence in the state secrets privilege is being abused or is being used 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 since 2007 and just three times in 2008. according to robert chesney of wake forest university it 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 the privilege. during the clinton administration, courts refused to grant the requested privilege in 17% of opinions. that rose to 40% 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.

it 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 permits to the president. the supreme court has said in case after case stating expressly that the constitutional power extends to 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 court has clearly stated along to the executive. this legislation may also infringe on the scombrushl power by imposing a rule of decision on the courts when deciding some constitutional issues. that too would be unconstitutional. the result is that based on its own precedence, the supreme court would most likely strike down this act. my third and final point is that the legislation empowers judges to usurp congress's own powers and responsibilities. and the constitutional design congress plays a leading role in

national security, 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. perverse ly some members would avoid this. it would be tough votes and tough 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.

>> thank you. i now recognize for five minutes mr. wizner. >> thank you and distinguished members of the 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 it would provide check and balances on the executive branch reempower courts to exercise independent judgment in cases of national importance and protect the rights of those seeking redress through our court system. more than 50 years have passed since the supreme court formally recognized the state secrets privilege in the united states versus reynolds. during that time, congress has never legislated to put restraints on the privilege or provide standards or guidelines to increasingly confused and

divided federal courts. congress' silence on this critical issue has become all the more troubling in recent years as we have seen the state secrets privilege mugait from a common law evidentiary rule 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 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 state secrets in gave criminal misconduct not to block access it 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 whistle blowers. the dismissal of these seats does more than harm the individual litigants for redress. it's regarding the legalality of the government's action.

i have been involved in these cases including the case of al-masri a german citizen who was detained by the cia in a tragic case of mistaken identity. his case received such prominent press coverage in the united states and abroad he truly became the public face of the cia's extraordinary rendition program. his lawsuit was dismissed on the basis of an affidavit from the cia, the very entity charged with wrongdoing. they characterized the suit as a state secret as a result the one place in the world where mr. al-masri's ordeal could not be discussed in the u.s. court of law. a second aclu lawsuit on behalf of the victims of the cia's ren days program this one a boeing plan allowing the clandestined camps where they were tortured.

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 that the cordoned all secrets 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 in the proceedings where the privilege could be invoked with discreet 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 uniformed standards and practices is as urgent today as it was prior to the ninth circuit's ruling. at a prudence a day after the ruling in the jeppeson case. president obama was asked on his position on state secrets. he responded he actually the states secrets doctrine should be modified. i think right now it's overbroad. searching for ways to redact, to carve out cases 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. >> thank you. i'll begin the questioning by

recognizing myself for five minutes. judge wald, during the markup of the bill in the subcommittee in the last congress one of my colleagues cited your testimony last year as supporting the requirement the 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, special weight or utmost deference to something similar to government assertions? that is a standard in the senate companion bill but not in this bill, as you know? >> 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 -- 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 used substantial weight. i believe but i don't have that quote right in front of me but i believed i 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 selly wright in re versus turner in which he describes substantial weight to mean only the weight that is that is appropriate by the demonstration of qualifications and expertise. >> thank you. so you think the -- >> i like the language in the current bill better.

i think it's confusing. i'm sorry if i contributed initially to the confusion. >> 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 utmost -- substantial weight or utmost deference. why shouldn't we do that? >> because i think that the basic principle on the one that was endorsed by the supreme court in reynolds is the judge should be the decision maker as to whether the privilege applies, and he ought to make an independent assessment. other parts of your bill say that. and i think that if you -- it takes away from that underlying principle if you start saying, well, you make an independent assessment but you better give a lot of weight, a lot of deference here. >> thank you. congressman hutchinson, those who oppose independent judicial

review of the government secrecy claims often argue that it's the president and the executive branch and 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 also seems to what you overlooked in your testimony is, 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 with information seeks they might withhold embarrassing politically or otherwise or unlawful conduct or otherwise undermine the positions taken in the case. >> well, the key point is that we have to give the courts and the tools and the guidance to ensure an inspect 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 -- 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. >> so you would trust the expertise of the courts? >> the expertise of the courts to weigh fairly the expertise under normal guidelines of what's presented to them. >> thank you. mr. wizner, in cases you've 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 ruled that it's a valuable tool end quote and they've conducted substantial examination in particular case in view of these facts what are we to make that the government's

arguments that the entire subject matter is too secret and warrants outright dismissal of the cases? >> i think chairman that it is evidence that the government's approach to secrecy in these matters is somewhat more opportunistic and malleable. on the very day that i was in court in san jose california, the jeppeson that that case should be thrown out on subject matter grounds, former cia director hayden was in congress testifying that the cia water beaded three individuals. when it's important to reveal those matters for whatever reason the government is quite forthcoming for that information. if it needs to put it in the public record to prosecute alleged terrorists. when it finds itself to be a defendant in a civil case the same information is secret as a way of avoiding accountability. >> i'll grant myself one additional minute so you can answer one question, mr. wizner. why should the government be required to prove item by item that disclosure of particular