has to be to justify closing down the case, so in some, i think there is a consensus. is it is time to regularize the administration of a privilege and it with the protect national security but not at the expense of a total shutdown of cybil process for the clements. i make two points here. one, there is nothing 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 the the various other kinds of substitutes and alternates is but i really don't think there's any instance in which this bill will make the government disclosed 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 i, section 8 and article iii, section 2 of the constitution to describe regulations on the miscibility of the evidence in federal courts has been used many times in the federal rules of evidence, in fisa proceedings, in seat but and i don't think there is much doubt about their authority to do so. very recently in the telhami case out in california a district judge in an exhaustive opinion, decided that the fisa procedures for trading information obtained under secret fisa warns preempted invocation of the state secret privilege. another indication, at least at that level, we will see whether the government appeals are not of congress's power to legislate evidentiary rules. number three-point, federal judges in other contexts and delivery 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 and formative indices like the vaughn index an exemption one foia. the use sampling techniques for massive amounts of material. this bill wisely incorporates into the civil lot area of state sacred 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 for somewhere dismissal of the entire claim will be necessary. i think that is the good thing for the following reason. while many of these techniques are very familiar they are not absolutely explicitly authorized the 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 hickham 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 explicitly recognize in a lot. i am 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 coup 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 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 are we are not going to talk about extraordinary rendition because if you have other evidence not--

i thought that was very worthy. the fair-- 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 an affidavit form a on a 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. used in foia cases to make sure 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 the discovery of materials that are not covered by the privilege to see if the case can go ahead without him stopping dead in its tracks and making a decision as to whether privilege is involved. if he does find that the

privilege is, could be an indispensable part of either the plaintiffs' case or the defendants dissent, then it provides guidance, loung headon 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 a legitimate case for invitation 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 seep up. there things such as stipulation, summary. it is not classified or secret etc.. the criteria on which makes the 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 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 i think this is very important, say one of the two issues that can legitimately be discussed here today, that the court should way 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 we have learned to evaluate expert testimony, namely the qualifications of the experts, the experience of the expert, the cohesiveness of the testimony and those are exactly the grounds on which one does get waived to expert testimony and that is what should be

applied here. the last point i would raise and i have raised before, but i want to underscore it is important. 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 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 know, there may be a good alternative. how can he say what is sicle alternate sieve that will satisfy the legitimate needs of the litigation if he doesn't even know what is in the material of. with that i will conclude by thank-- 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. >> thank you and i recognize for

five minutes the honorable mr. hutchinson. >> thank you chairman nadler. it is due to be new yorker rim again for co-chairman conyers, it is good to see you. thank you for your distinguished leadership on the full committee curve. 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 the holden fund admiration. as you know, my background, but my background has been principally in law enforcement and security as well as an elective office but both as united states attorney, head of the dea and homeland security obviously. we handle national-security matters, sensitive matters at the highest level. and, i'd bring that background to this committee and i would emphasize certain principles that i think should be followed as you address this import 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 we don't want the public to know answered my our enemy 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 secret privilege by these executive-branch should not be emmy in 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.

there coequal branches of government in 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 trouble some litigation filed, and you are advised that will be perhaps could claim the state secrets privilege and avoid substantial litigation. there is a human tendency when that privilege is there, to claim that privilege. with the failures of human nature, even though that privilege many times is justifiably claim, there also are historical instances where perhaps it was not appropriately claimed, regardless, regardless under our system of government, there needs to be a check and balance and the judiciary is in the right position to do that. as to the third principle, the courts are 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 request. and i think you could also make the case historically that perhaps there has been more loose lips and other branches of government then even within the judiciary. they have a good track record of protecting those things that have been entrusted to them. i might add that i pointed out my background as a law enforcement and national security official, but i also have been blessed to be the private sector and currently at candle national security cases from the defense side and guess what the first thing the courts require? well, you have got to have your

security, topsy tritt security clearances upgraded. you have to do the evidence and secure facilities. all the procedures set up them even though there cumbersome, they are required and their implemented on a routine basis by the courts. another point that i think is relevant to make today, that currently, even though this is a historic doctrined, there is insufficient clarity and insufficient guidance for the course to provide an independent review that i believe is important in our system of checks and balances. we have the reynolds case that this unsighted, the almaz r.e. case most recently in the eastern district of-- the jefferson case that i understand will be discussed for gall of these for five 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. provides for an independent assessment by the courts, it 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 with there is some deference, foia, other regulatory areas, there are fine guidelines in history and regulations that give guidance in those areas that fine-tune it before it ever gets to court and perhaps there is a distinction between the deferences given those circumstances and the in

the pending 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, clarify that it is evidentiary privilege, not an immunity doctrine and it does provide the courts with critical oversight. finally, i have been enjoyed participating in the constitution projects bipartisan liberty and security committee, which i have recently joined and informing the state secrets privilege has been signed by more than 40 policy experts, government officials and legal scholars of all political affiliations. i would ask that that report be included as part of the record in this hearing today. thank you mr. chairman. >> without objection, their report will strictly be included in the hearing and i thank the witness. i will now recognize mr. grossman for five minutes. >> good afternoon mr. chairman,

ranking member sensenbrenner and members of the 70. my testimony concerned the consequences of the state secrets protection act. and i have three points. first, this legislation is unnecessary because there's absolutely no evidence the state's sikh which privilege has been abused for the second it is unconstitutional because it of ignores clear supreme court precedent of the president's power to safeguard national security secrets and third, this position when and by the courts to insure on congress' power and responsibility to make security policy. upsetting the careful balance is congress has struck. i will begin with some background. contrary to often repeated claims there's nothing sinister or unusual about the state secrets privilege. seven supper requirements including the part of justice review and personal consideration by high-ranking federal officials insure the privilege is used only when necessary to protect national security and judges play a crucial role by ensuring it is done properly and of.

the the results may appear harsh in some cases, it is true all privileges. courts it cited the claws to drop suits against members of congress and other legislators involving the invasion of privacy, defamation, incitement to violence, age, race and sex discrimination and retaliation for reporting sexual discrimination and larceny and fraud. yes these are harsh results before a greater good. in the same way the state secrets privilege began to enhance its public protecting our nation. my first one today is that there's the evidence of the states a great privileges being abused or is being used more frequently or in different ways than in the past. data from 1954 through 2008 showed that its use is rare. and reported can use the privilege with asserted seven times in 2007 and just three times in 2008. robert chesney of wake forest and jury-- university the bush administration use the privilege

with greater frequency than other administrations. the data also show the privileges being used to protect the same national security interests as in the past. the previous four decades most state secrets case is concerned intelligence programs, followed by military technology and contracts and then diplomatic communications. that is the same pattern as a day. the data also showed the government is not seeking hirshon remini such as dismissal cases anymore than it has in the past. further courts dig seriously their duty to oversee the privilege. tyrannic going to demonstration core trease to grant the privilege and 17% of her opinions. that rose to 40% during the bush administration. if anything the course of beacom last year friendship. president obama now recognizes its great importance for the ever-present going back to lyndon johnson as reach the same conclusion. and some, there's the evidence the state secrets privileges being misused, overused or otherwise abused. it makes legislation

unnecessary. my second point is that it is also unconstitutional. unlike most other privileges this one is grounded in the constitution because the civically the power it commits to the present part of the supreme court has said as much saying expressive as constitution power extends protecting military or diplomatic secrets, the very things covered by the privilege. in my written testimony i did at the seven provisions of the act including the corporate provision that infringe on powers the court is clearly stated belong to the executive board of this legislation may also infringe on the judicial power by imposing eberle decision on the courts when deciding some constitutional issues. that to be an constitutional. 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 constitution designed congress was a leading role in national security.

this includes funding defense programs some of which requires secrecy itself but the legislation with force courts expose says that's a key intelligence programs even if the ultimately rule in favor of the government on the privilege issue. this would and are severely hampered these programs upsetting the care of balance struck by congress in making national security policy. that is the goal of several groups that support this bill. would give them a hacker's veto over programs there were unable to convince this body to remand or shut down. perversely some members of congress may welcome this result but by passing the buck to the course 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. inkless luzhin there is no justification for this legislation. beyond the necessary it is risky. members of congress should focus on the greater public good and look at the narrow interests of this that would use the courts to make policy. thank you.

>> thank you. i now recognize for five minutes mr. wizner. >> thank you chairman and distinguished members of the subcommittee. ipers sheed this opportunity to explain the aclu interest in reform of the state's secret provision issue of critical importance americans concerned about the adjective use of executive power. i also want to commend chairman nadler and the co-sponsors of the state secrets protection act, h.r. 94. if enacted would place result sex and balances on the rebrands, riyadh park courts exercise independent judgment in cases of national importance and protect the rights of those seeking redress terrorist courts system. more than 50 years have passed since the supreme court recognized the state secrets privilege in the united states forces reynolds. internet time congress has never legislated to place reasonable restraints on the use of a privilege or to provide standards or guidelines to increasingly confused and divided federal courts.

congress's silence on this critical issue as become all the more troubling in recent years as we have seen state secrets privilege mutate for me, evidentiary rule designed protect national security secrets into an alternative form of immunity use more and more often to shield the government and its agents from accountability for systematic violations of the constitution and the stations lossbert of the aclu has been involved in a series of high-profile cases which the government has invoked the privilege in response to allegations of grave government misconduct. not simply to block access to specific information alleged to be sicker but to dismiss lawsuits in their entirety at the outset. this is happening cases involving rendition and torture, warrantless surveillance and national security whistle-blowers. the dismissal of these suits does more than harm individual litigants who were denied the opportunity for redress. deprives the 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 a masri, a german citizen contains incommunicado in a squalid afghan prison in a tragic case of mistaken identity. mr. l masri's case receive such press coverage in the united states and abroad he truly became the public face of the cia's rendition program. nonetheless his case was dismissed on the basis of an affidavit from the cia, the very entity charged with wrongdoing. the characterize the subject matter of mr. l masri's state's ticket and as a result where he-- his ordeal could not be discussed was in the u.s. court of law. a second aclu lawsuit in the rendition program, this one targeting a boeing subsidiary enabling the clandestine transfer to overseas presence where there were torture. was similarly dismissed on the basis of in affidavit alone. as the subcommittee knows when

the case reached the ninth circuit court of appeals in february the obama administration in just its third week in office the behind bush administration's broad clemency secrets. in april, the court of appeals reversed the dismissal of the suit holding that the government states the quitclaimed was repenter and overbroad. it held that the government's sweeping theory of state secrets "had no logical limit and amounted to an argument that the did you share should effectively gordon of waldack actions from judicial scrutiny, immunize in the cia and partners from the demands of the limits of the law. the court held that the government legitimate secrecy concerns would be amply protected during further proceedings for the privilege to be invoked with respect to discrete evidence, not entire lawsuit. it will come as no surprise to the subcommittee that in my opinion the ninth circuit that the law exactly right, but a single opinion does that leave 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 resolve 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 fresen obama was asked about his administration's position on state secrets. the president responded, i actually think the state secrets doctrine should be modified. i think right now it is over broad. searching for ways to redact come to carve out some cases to be see what can be done so a judge in chambers kimmage the information without it being in open court, you know there should be additional tools so that it is not the jubilance instrument. congress should provide this additional tools by enacting h.r. 984. thank you. >> thank you. i will begin the questioning by

recognizing myself for five minutes. judge wald, during mark of the bill in the subcommittee in alaska and was one of my colleagues that it your testimony last year is supporting requirement that grants the substantial weight to government assertions of the harm likely to be caused a public disclosure of information the government seeks to withhold as the state secrets. is that accurate? do you believe we should require the courts automatically grant special deference, substantial weight rick most thetford as something similar to govern assertions? that is the standard in the senate companion bill but not in this bill, as you know. >> chairman medler i am glad you gave me an opportunity to address that point. when i was here before the house judiciary committee last year and you did not have a bill yet, no draft bill had actually been submitted a we were talking about principles of legislation. one of the then administration officials raised the the

proposal that the utmost deference be the standard, and in that colloquy that followed i said, well there are other places in legislation like exemption foia wallen that use substantial weight. i believe, the why don't have that quote in front of me but i believe i also attach to that what i later said in a supplemental letter that went to the house judiciary committee. at i meant the same kind of weight that an expert witness gets and i gave a quote from skelly right in my former court in rafe versus turner in which she defined substantial weight to mean only the weight that is appropriate by the demonstration of qualifications expertise. >> thank you, so you think the language bess. >> i like the language in the

current bill. i think it is confusing. >> that is fine, thank you. if the crime bill is adequate to account for government expertise, what are the risks, if any, of putting in language about the of moe substantial weight or the utmost difference? why should we do that? >> 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 that, it takes away from that the underlying principle if you start saying, you make an independent assessment but you better give a lot of foia inder frontier. >> thank you. congressman hutchinson, those who oppose independence secrecy

claims often argued that it is the president and executive branch, not the courts, that have a greater expertise and responsibility for sigar the national security. this view in my opinion underestimates the ability and responsibility of the courts and our constitutional scheme and elses scenes overlook what you described as "the natural tendency on the part of the executive branch to overstate clinton secrecy and to avoid disclosure whenever polis-- possible." doesn't the argument regarding the expertise of the executive branch also overlooked the potential conflict for the government in the case of information it seeks to prove embarrassing politically or otherwise might provide evidence of unlawful conduct or otherwise undefined positions taken in the case? >> the key point is that we have to give the courts the tools and the guidance to insure an independent review. in the language such as substantial deference would undermine that independent review.

in terms of the ability of the courts to way expert testimony, that is what is 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 an engineering to make a fair decision in an engineering case. >> which was the expertise of the courts? >> the expertise of the courts away fairly the expertise under normal guidelines. >> thank you. in missed-- mr. wizner, the entire subject matter like rendition and torture is a state secret. in the lefkow moore's we held hearings in rendition brokovich rettig knowledge rendition is a valuable tool in the war on terror and other governments have conducted extensive examination in particular cases. in kube these facts were we to make of the government's argument the entire ec