robert gibbs that's scheduled to start at 1:00 pm eastern and you can watch it here on c-span2. meanwhile, we've got more-2on te situation in iran later today with the discussion on the recent elections there. international center for scholars. that's live at 12:30 pm eastern on c-span. >> join our three-hour conversation sunday on in depth. it's part of our three-day holiday weekend starting friday morning on c-span2's book tv.

how is c-span funded. >> publicly funded. >> donations maybe, i have no idea. >> government. >> c-span gets its funding through taxes. >> federal funding. a public funding thing >> maybe, i don't know. >> how is c-span funded. 30 years ago america's cable companies created c-span. a private business initiative, no government mandate, no government money. >> and now a house hearing on the use of the state secrets privilege which allows the government to withhold national security-related information during a trial. gerald nadler of new york chairs the judiciary subcommittee on the constitution. he's co-author of legislation that would make it harder to use the state secrets privilege. this runs about 90 minutes. >> 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 several members of the committee that would codify uniformed standards for dealing with claims of state secrets of civil litigation. we had an oversight hearing on the state secrets privilege and a hearing on this legislation. the bill was reported favorably to the full committee. our experiences demonstrated the destructive impact that's sweeping claims of secrecy can have on our nation. in order for the rule of law to have any meaning, individual liberties and rights must be enforceable in our courts. separation of powers kerns are concerns are at their highest with the secretive branch conduct and the government simply cannot hide behind unexamined claims of secrecy and become the final arbiter of its own conduct. yet claims of secrecy have been used to conceal matters from

congress even though members of the security clearance necessary to be briefed in an appropriate setting. that's been the case with respect to the use of torture, with the use of illegal spying on americans and other members and other matters of tremendous national importance. 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 a law where there's no right without a remedy if the government kidnaps you and tortures you and deliberatedly burns down your house and wire taps without a warrant, whatever, how do you enforce your right against the government? well, the administration could criminally prosecute its own members who have done so. that's unlikely. congress could exercise oversight. that's hit or miss. or the victim can sue in tort,

can sue the government for illegal wiretapping, for kidnapping for intentional mental distress or whatever. if the government can eliminate that lawsuit on the pleadings simply by coming into court and using the magic incantation of the word state secrets and say this case should be dismissed because we say on our unexamined assertion that trying the case would necessitate the revelation of state secrets, case dismissed, then there is no recourse to the courts and there is no enforcement of rights and rights without a remedy are elusory and we have no rights. therefore, we must put some limits on this use of the state secret doctrine. the same pattern of resorting to ex extravagant state secret claims has been evident in the courts. while the bush administration did not invent the use of the state secret privilege to conceal wrongdoing it certainly perfected the art. it was been abused by prior administrations to protect officials who 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 civilians 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%yh 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. yet, these families were denied justice because the supreme court never looked behind the government's false claim to determine whether it was valid. similarly, in the pentagon papers case then solicitor general irwin griswold warned the supreme court that publication of the supreme court 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, end quote, from the publication of the information and further admitted that, quote, the principle concern is not with national security but rather with government embarrassment of one sort or another, closed quote. it is important to protect national security. and sometimes our courts have to balance the need for individual justice with national security considerations. congress has in the past balanced these important albeit sometimes competing demands. in the criminal context we entered a act in fisaa we set up

courts to review sensitive materials in the freedom of information act we sought any withholding of the public whom the government is supposed to serve. we can and should do the same in civil cases. our system of government and our legal system have never relied on taking assurances at face value. the courts and the congress have a duty to look behind what this administration or any administration says to determine whether or not those assurances are well-founded. presidents and other government officials have been known not to tell the truth on occasion, especially, when it is in their interest to conceal something. the founders of this nation knew there needed to be checks in each branch of the government to protect such abuses from taking place or in the words of the ninth circuit, 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 is a party the court cannot allow it to become the final arbiter of its case. it's to ensure the correct balance is struck. 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've 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 that they are able. i hope this is not a sign of things to come. i look forward to the testimony of our witnesses. i now yield to the distinguished -- i would now recognize a distinguished ranking minority member the gentleman from wisconsin, mr. sensenbrenner for his opening statement. >> thank you, mr. chairman.

the state secret privilege is a long-standing legal doctrine the supreme court most recently discussed in a case called u.s. versus reynolds. in that case the court made it clear that if the court after giving appropriate deference branch giving public disclosure of information would harm national security, the court is obliged to either dismiss the case or limit the public disclosure of national security information as necessary. under this doctrine, people with legitimate claims are not demind access to court review. rather, the doctrine allow 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 secret privilege extend all the way back to chief justice marshall the author of marbury vs. madison who said the government need not provide any information that would endanger the public

safety. in the modern era, congress debated the issue of the 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 in its reynolds decision. the fourth circuit court of appeals recently employed the doctrine in affirming the dismissal of a case including that the state secret privilege has a firm foundation in the constitution. not surprisingly the privileges has played a significant role in the justice department's response to civil litigationjl@ 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 litigation rights to terrorists justice kennedy in his majority opinion acknowledged the government's interest in front protecting methods of

intelligence-gathering and stated we expect the district court will use this discretion to use this interest to the greatest extent possible while citing the reynolds state secret case in doing so. i oppose any efforts including this bill that invite the courts to deviate from the sound policies they follow to protect information. h.r. 984 would preclude judges to giving away branches national security and would authorize courts not to use ex parte proceedings in conducting a review of privileged claims and it would prevent courts from being able to dismiss a case when the government cannot defend itself without using privileged information. the obama administration is clearly not enamored with this approach to the legislation and has adhered to the court to the doctrine as asserted in the previous administration in at least three cases already. according to the "washington post" editorial page, the obama

administration's position on state secrets makes it hard to distinguish from its predecessor. anthony romero the executive director of the aclu has written that the new administration has embraced policies held over from the bush era including the use of the state secrets claim. last congress legislation essentially the same as h.r. 984 was cosponsored in the senate by senators joe biden and hillary clinton, who are now president obama's vice president and secretary of state. but this year president obama, vice president clinton and vice president biden and the secretary of state secretary have stood silent on the bill. the legislation goes exactly in the wrong direction. so much so that even president obama, vice president biden and secretary of state clinton are running away from it.

so should we. and i yield back the balance of my time. >> i thank the gentleman. i now recognize the distinguished chairman of the full committee for an opening statement. >> thank you, chairman. thank you, ranking member emeritus -- i mean, chairman emeritus. the president is running away from a lot of things so this is just one more of them. that doesn't mean that 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 got to rein in state secret privileges. he's acknowledged that 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 and 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, jewel, 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 secret to talk about. 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 a case brought in error. so we remain encouraged that the administration is taking a fair 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 with them. 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 walsh. he's been in judiciary so many

times. and our former colleague, ira hutchison, we're glad to have him back. grossman is always on the case. mr. wisener, you're a relative newcomer here. it's no secret. we're going to decide how we resolve this situation. thank you for 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 have five legislative days for optimism. without the chair will be authorized to declare a recess of the hearing which we will only do in case of votes on the floor. as we ask questions of our witnesses the chair will recognizes members in the order of their majority in the subcommittee and providing that

the members present when his or her turn arrives. members not present will be recognized after the other members have had the opportunity to ask their questions. the chair reserves the right to accommodate members late or who is only able to be with us for a short time. i would like now to introduce our panel of witnesses. the first witness is the honorable patricia wald who had a distinguished legal career. she served as a judge of the united states court of appeals for the dc circuit from 1979 to 1999 serving as chief judge from 1986 to 1991. she was a judge of the international criminal tribunal from 1999 to 2001. and was a member of the president's commission on the intelligence capabilities of the united states regarding weapons of mass destruction from 2004 to 2005. judge wald clerked for the honorable jerome frank on the second circuit and received a b.a. from the connecticut college for war on terrorism and you understand a j.d. from yale law school.

mr. hutchison served as a distinction from this committee. he represented the third district of arkansas from 1996 until president bush appointed him as administrator of the drug enforcement administration. in addition to his service in the judiciary committee, he was also a member of the intelligence committee. in january, 2003, representative hutchison was confirmed by the u.s. senate to be the first undersecretary of the newly created department of homeland security. where he served under 2005. he subsequently founded a law group in 2008 with his son. andrew grossman is the heritage foundation senior legal policy analyst. before being named a senior policy analyst in january, 2008, mr. grossman was a writer, editor and general analyst at heritage. contributing to think tanks research program in domestic policy, foreign policy and legal affairs. mr. grossman is a graduate of the george mason university school of law where he served the senior articles editor of the george mason law review.

he received his master degree of government from the university of pennsylvania in 2007. in 2002, he received his bachelor's degree in economics and anthropology from dartmouth college where he edited the dartmouth review. he specializing in national security human rights and first amendment issues. he's litigated several post-9/11 civil liberties cases in which the government has invoked the state secrets privilege including al-massi versus the united states the challenge to the cia, abduction, torture of an innocent german citizen, mohammed jepson a suit against a private aviation company for facilitating the cia's rendition to torture of five muslim men and edmonds versus department of justice a whistle blower retaliation suit on behalf of an fbi translator fired for reporting serious misconduct. he was a law clerk in the court of appeals for the ninth circuit. he's a graduate of harvard college and new york university

school of law. i must say have a particular fondness of new york university school of because since my son goes there. i 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 summarize your testimony in five minutes or less. to help you stay within that time limited, there's a light at your table when there's one minute it will switch to yellow and red when the five minutes are up. before we begin it's customary for the committee to swear in its 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 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 grievances. unfortunately, the judges have not been entirely consistent in the way they administer the privilege. some show a readiness to dismiss cases outright on mere allegations or 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 is there isn't even any consistency as to how substantial the risk has to be to justify closing down the case. so in sum, i think there is a consensus. it'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 that there is any instance in which this bill will make the government disclose something which has been identified by the judge as a state secret. all right, the second point i would make is that congress' power under article 1, section 8 and article 3, section 2 of the constitution to proscribe regulations on the admissibility of evidence in federal courts has been used many times in the federal rules of evidence and fisa proceedings, in cipa and i

don't think there's much doubt about their authority to do so. very recently in the el-haramin case out in california. a district court judge in an exhaustive opinion decided that the fisa procedures for treating information obtained under secret fisa warrants preempted invocation of the state secret privilege. another vindication at least at that level. we'll see whether the government appeals or not. of congress' power to legislate evidentiary rules. 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 summarize 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 will be necessary. i think that's a good thing for the following reasons. while many of these techniques are 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 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