information, particular piece of information 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 state secrets at some point that dismissal it is he pleading stage? >> judges are not clairvoyant at the beginning of a litigation to determine what evidence will or will not be necessary for the parties to defend their claims before that evidence has been presented by either side. ..

>> i have a quote from your testimony before the subcommittee where you talk about substantial weight being given to the government insertion. you seem to approve, you also quoted the foia statute that is weight to the government's assertion when someone is trying to get information under the freedom of information act. have you changed your mind since last year on this subject? if so, why? >> i have not changed my mind. perhaps i am in that close group

of people currently who wish they had stated things a little more clearly the first time around. >> we all have that problem. >> on this particular -- as i pointed out before this committee, there wasn't any bill, there was an danny thing we were focusing on specifically, we were talking about principles. when i talked about substantial weight, i use it as an example of a standard that was in foia exemptions. i want to make something clear, it wasn't even in the foia tax, it is only in the conference committee report. we don't even have an example where it is actually in the statute. many judges have cited it from the conference report but it was actually in 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. i put the quote in my testimony 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 your she gets a difference. it means according to judge wright, that is the right meaning, it means you get the kind of special weight from the judge that the qualifications, experience and persuasiveness and coherence of the testimony render it. i could give you an example but i don't want to take other people's time. >> let me pursue this further. maybe i should complement you

over justice scalia who thinks that nothing we say makes a difference. even if you accept number 2 legislative history, employer request, it seems to me the type of material usually requested in foia is much less sensitive than a material where an allocation of a state secret is asserted by the government. doesn't it concern you that we would be having different standards if we have different types of weight to be accorded to government assertions or administration assertions when records or information are attempted to be sold from the government? >> i am not sure, i simply don't

have the experience although i have encountered both kinds of cases, foia exemption i and a former state secrets but i don't have the experience to validate what you say, that somehow state secrets are likely to involve much more sensitive material. my chief experience with foia, there were sensitive materials race in some of those cases including the helicopter rescue of the people at the end of the carter administration. i want to make another point, the jefferson case, if i have the right case, specifically addressed this and pointed out, they believe that different standards might be appropriate

because what is at stake in foia exemption i is a citizen wanting to get the information, not having to show any particular injury or stake in the balancing of equity. on the other hand, if you are in a civil case where there is an allegation of injury, serious mistakes are much more important. the third thing i want to point out, judges have interpreted foia exemption i differently. some won't even look at the material and take the government's affidavit at face value but others look into the affidavit, they say it doesn't make sense to me and i don't think it is credible. >> that gets to my final question. currently we have a body of law with substantially different standards as in the current law.

this legislation does not substitute another standard, makes this a matter of judicial discretion. are we likely to get less certainty, what the legitimate claim of suppression of information, would we start from scratch on what the case law would be rather than keeping the current standard in the law? >> i think not. as i sit in my opening remarks, you don't have a consistent body with a consistent standard. it is all over the map. we could almost begin a new with this statute in this law and fill that body. i don't think we are going to lose anything in consistency

from the current law. >> i think the gentlemen and recognize the distinguished chairman of the committee. >> since i know the chairman 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? >> who was bad address to? >> anybody. >> there is a saying i have heard from a lot of my friends in the military. where you stand depends on where you sit. when senator obama -- when the president was in the senate, when he was campaigning for the presidency, he was in a very different position on state secrets privilege. now that he is in the executive branch and has seen the

usefulness and utility of that and the importance of it, he seems to have reached a very different view. that might be politically convenient for him to come here and say that, but there's some evidence that that is what has occurred. >> i was afraid you would be the one who would answer my question. >> would the gentleman yield for a moment? >> mr. grossman indicated there was some evidence. what is the evidence or are you speculating? >> i am speculating. >> that is fine, i yield back. >> please go ahead. >> why? >> when they were in the senate, senator biden and senator obama were strong critics of the state secrets privilege. since assuming office the administration has used the privilege in at least 3 cases, in all 3 of those cases, very

controversial invocations of the privilege, cases that have resulted in much debate in this congress as well as the public's fear. these were the sorts of cases that senator biden was critical of prior to joining the executive branch. it is speculation. i have not asked anyone in the is a hit french what their thinking on this is the reasonable conclusion can be drawn by the facts. >> since you have been so expert with the president, can you explain the attorney-general's failure to provide a witness? >> note. >> does anyone else want to weigh in on this? >> i just want to say that i think i appreciate the fact that the attorney general is looking at the executive branch as refining their internal procedures on their assertion of the state privilege doctrine but to me, that really raises the

profile and intensity of congress to act. to me, they are working on their branch of government but i am delighted congress is considering it at the same time, a more comprehensive reform. >> mr. frank, 2 people raise the question of and constitutionality more than anybody i can think of in this committee. what do you think about the unconstitutional charge on this measure, mr. wizner? >> i share the views expressed by judge wald that the constitutional authority to legislate this area, i would only add that my understanding of the argument, that this bill would be unconstitutional, would apply equal force to the freedom

of information act, the florida surveillance act and the classified information act. these are all bills that give courts tools to handle classified information and create procedures for the court to do that. none of those intrude on the president's constitutional authority or this legislation. >> any further comment? >> i agree with what mr. wizner said. all privileges, not all privileges but many privileges have constitutionality about the executive privilege. you could all go back and say we need -- the executive has got to have this, has got to have more power to fulfill as commander-in-chief, powers to fulfill in the case of executive privilege, the ability to run the government. i think these privileges have been considered to be of congressional concern going back

to 1969 when we were going to have federal rules of evidence with more detail, there was actually one drafted to deal with the state secrets privilege that congress abandoned the attempt to have the very specific set of codes on it. i don't think the supreme court suggested that this was some kind of sacrosanct constitutional privilege that couldn't be touched. >> what say you? >> the argument is somehow legislated in this area, impedes the executive from his national security responsibilities, protecting our country and i don't see any challenge to that authority at all. legislation is 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, when it is going to be reviewed, this is going to be a process in our system of checks and balances, i do not see this as taking away from the authority of the chief executive in terms of national security. >> when we were in court, mr. grossman, going into this discussion? >> that is perhaps true numerically speaking. if you look at the supreme court's decisions in chicago, time and time again, the court has said that secrecy, in some domain, is necessary, the power of the commander-in-chief, those

powers cannot be exercised without a strong degree of secrecy. the court has actually said that the executive has been in a constitutional power to control access to classified information, who received certain types of classified information, diplomatic affairs as well as military and national security affairs. it is my opinion that this legislation in truth on that power that the executive has. for that reason, it would be unconstitutional? >> you cite these cases, the supreme court has said that secrecy inherent in the executive, it is true, is it not, that the supreme court always said these powers are not absolute. the pentagon papers, no executive power, no

congressional power is absolute? >> you are correct that no power is absolute. at the same time, no power is empty. to avoid the executive of any discretion -- >> this bill simply subjects the executive's power to secrecy. in the context of court cases, supervision by the court. and ultimate approval by the court. that is what it does. just to throw around phrases about the executives or this and that, congress's power to regulate evidence, the admissibility of evidence, that is what this is doing. >> i would argue that it is limited. >> you would argue that general power supersedes the specific grant of power?

>> it is not unlimited, this body could not abrogate the fifth amendment privilege against self-incrimination despite the power to regulate -- >> the specific limitation of that power. it does not supersede generalities. you are reversing that. >> specifically the constitution assigns executive power and constitutional power to the president and the united states. secrecy is a necessary incident of that power, the president's power. >> if we were in court i would ask you to come back to the chambers after we finished the session. but i appreciate your constructive attempts to defend your proposition. i yield back, mr. chairman. >> recognize the gentleman from iowa for 5 minutes.

>> i compliment you on the response to the chairman of the committee. i welcome mr. asa hutchinson back to the committee. i would like to ask, as i was able to hear most of the testimony 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 doctor nor executive privilege has caused some want to lose their rights or privacy or made the nation less safe. is there anything in history we need to know about that we were not able to learn from because it was ruled in executive privilege? my question is, what are we trying to fix? >> 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 the responsibility to make sure the potential for abuse is minimized by a system of checks and balances. and come to this as a conservative. i do not believe in the executive branch anymore than i believe in the judiciary branch. we all have checks and balances. to say the executive can assert a state secret privilege without any review, broad authority, unbridled authority, goes against the principles of our founding fathers. that is the direction i am approaching. >> and just a point of information, long time member of congress and this committee, have you ever gone into a

classified hearing, classified hearing, given up your blackberry and cellphone, recovered that and stepped in front of the television screen and seen the similar briefing already coming out of the news almost simultaneously, i think all of us have. the point of my concern, speak to that. >> your point is well taken. there is a history. other branches of government that have spoken about what has been classified information. so often, something that is classified, that very subject. i think the track record of the courts is very different. they don't have to stand for election in the federal judiciary. they have a track record that is extraordinary in protecting classified information. it has been exemplary, but also

the classified information procedures. >> i agree with the point that you made. it was brought out again, thank you for your response. in light of the nimble nature that he responded to in previous comments or questions, i would ask if you could address this panel, on the scope of the existing executive privilege. let me say hypothetically, if there was a white house that had contract on an enterprise that had the trappings of a criminal enterprise to engage in a contractor, working with developing the census which happens every 10 years in the united states and of the result of that census might dramatically change the congressional districts in america, change the political dynamics in america, if those results of counting the people who might be extrapolated by

formula rather than the actual constitutional requirement, if that enterprise was a criminal enterprise, we were also supportive of turning out the same white house, would they express or a search detailed contractual organization? >> that would not be the case because that particular organization you described, that is not where the relationship is directed, does not concern military affairs. >> thank you. into this record, there are many more specific -- suspicious activity taking place. i would like to see this committee look into a corner and i ask the chairman of the committee to reconsider his reconsideration as i ask the chairman of the subcommittee to look at the government, it was substantial and apparently justified the investigation and

to move. >> after you co-sponsor this bill, i will consider that request. i now recognize for 5 minutes the distinguished gentleman from massachusetts. >> thank you, mr. chairman. let me extend a personal welcome to my former colleague and friend. who i remember having breakfast with during our first term together. talking about separation of powers and other issues as i am sure you remember. by the way, you are sorely missed. it is good to be back on this side of the dais. i read your testimony and i am in total agreement. you really captured what the

issues are. 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. as i listened to mr. grossman, his version, his version of article ii is online with mr. cheney's. what has occurred, over the period of time, was the accretion of too much power to the executive. this has no partisan tenth to it. we are talking about constitutional order. people can have disagreements in

terms of the powers of the executive. let me put this out. when we talk about state secrets, underlying that is the power to classify. what we have failed to do as a community 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, the gentleman from iowa has indicated, goes into the public domain and everyone is perplexed, simply because there's no rational basis for

classifying that information. so, mr. grossman seems to have great confidence in the executive. his testimony is there are 7 separate requirements including the 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. i respect the sincerity of his belief. but at the same time, in my judgment, it is not what the founders designed when they created the constitution, and there was meant to be these checks and balances. it is and distrust of

government. >> you indicated you are a conservative. i share your conservatism in this particular area because it is so fundamental. secrecy is the hallmark of totalitarianism, and transparency is clearly the aspect of viable democracy. we are out of balance. i am not here to defend the obama administration. this is something the united states congress must do. to reorder the balance of power, the separation of power. we ought to be looking at how are things classified? i know how things are classified in some agencies. there's someone in a cubicle. you have experience that.

you make a statement saying that it could be unduly burdensome for the courts to have to actually review the information. what leads you to that conclusion? >> that it would be unduly burdensome to reveal classified information. in certain cases, especially those that are challenging extensive secret programs, there may be enormous amounts of data. >> how many of these have you been involved? >> i am not a litigator. >> you haven't been involved in any of these cases? >> i and researcher, i don't litigate cases. >> let me suggest to you, i have been involved, and mr. hudson has as well as a prosecutor in numerous cases. let me assure you, the judiciary has the capacity to suggest an

undue burden on the judiciary simply is not accurate. you ought to speak to some litigators and some judges before you make such statements. i say that you with respect. >> the gentleman from georgia is recognized. i am sorry, arizona. to close. >> i want to welcome my very respected friend, asa hutchinson. i understand he is on the other side of the issue today, but it shows that even the most stage and was among conservatives can become disoriented now and then. i know that he is coming from the same foundation and perspective that i