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 is only particularly on information, which you can raise them, you can debate them and you can litigate them but you can't say, no, we're not going to talk about secret prisons and 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. erntd ..

if he does find that the privilege could be an indispensable part of you to the plaintiff's case or the descendants descend, then it provides guidance, long needed guidance as to what standard he should use. malcomite 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's secrets privilege at all or any substitute for it. if however the judge finds that indeed this is a truly legitimate case for indication of the state's secrets privilege, he then has a series of alternatives which i don't think anybody could object to. they have been long used in cipa, things the gesticulation, a summary that is not classified or secret etc.. the criteria 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 would consider the best judging in the past. the government does have the proving the likelihood of a crenson this i thank is very important, and i will say in one of the two issues i think i can

legitimately be discussed here today. that the court should way the testimony from government experts in the same manner it does and then 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 that we 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 is what should be applied here. the last point i will raise, and i have 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 to the affidavit. the 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 a good alternative that will satisfy the legitimate needs of the litigation if he doesn't even know what is in the material? with that i will 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 in pn our national security. thank you. >> thank you and now i will recognize for five minutes the honorable mrs. hutchison. >> thank you chairman nadler. it is good to be in your courtroom again. chairman conyers it is 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 is good to be back to a committee that i hold in fond admiration. as you know, my background, my background has been principally in law enforcement and security. as well as an elective office but both as united states attorney, as head of the dea and homeland security obviously we handle 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 followed 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. their state secrets. there things we don't want the public to know and certainly our enemies should not know that.

there are many programs sources, the methods of survey on numerous defense programs that need protection and secrecy. that is a given and must be done, however think it is important to underscore also that any assertion of this state secrets 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 that we should not have an unfettered executive branch. there are coequal branches of government and its 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 we

perhaps unclaimed the state's secrets privilege and avoid substantial litigation. and, there is 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 acclaimed, there also are historical instances where perhaps it was not appropriately claimed. regardless though, regardless under our system of government there needs to be a check and balance and the judiciary has been in the right position to do that. and that is the third principle i believe that the courts a proven themselves capable of protecting classified information at the highest levels and establishing procedures to balance the interest 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 and i might add, and i pointed out my background as a law enforcement, and national security official but i also have been blessed to be in the private sector and currently i am handling from the defense side. guess what the first in the courts require? well, you have got to have your security, a top-secret security clearance is upgraded. you have to go with the evidence and secure facilities. all the procedures or set up stephen daubert cumbersome, that require that and they are implemented on a routine basis by the courts. another point that i think is

relative to make today, that currently even though this is an historic doctrine, there is insufficient authority, and sufficient 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 has been cited, the el-masri site most recently, the eastern district of virginia, the jefferson case i understand luby discussed, the fourth circuit case. all these reflect different approaches in different results. some better, some 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 the state's secrets privilege. 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 where 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 the court and perhaps there is a distinction between the deference given in those circumstances and the independent review 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, clarifies that it is evidentiary privilege not an immunity doctrine and it does

provide the courts with the critical oversight. finally, i have been enjoying participating in the constitution projects bipartisan liberty and security committee, which i have recently joined and reforming the state's secrets privilege has been signed by more than 40 policy experts, the former government of officials and legal scholars of all political affiliations. and, i would ask that that report to be included as part of the record in this hearing today. thank you mr. chairman. >> without objection, the report will be certainly included in the hearing. i thank the witness. i will now recognize mr. grossman for five minutes. >> good afternoon members of the subcommittee. my testimony today describes the consequences of the state's secrets protection act which severely limits the privilege. i have three points. first this legislation is unnecessary because there is absolutely no evidence the state secret for the secrets privilege has been abused.

second it is unconstitutional because it ignores clear supreme court precedent for the president's power to safeguard national security secrets. third, this legislation when and by the courts to ensure congress' power and responsibility to make security policy. upsetting the careful balance is that congress has struck. i will begin with some background. contrary to the often repeated claims there's nothing sinister about the state's secrets privilege. seven separate requirements including departments justice review and personal consideration by high-ranking federal officials ensure the privileges used only when necessary to protect national security. judges play a crucial role by ensuring it is properly invoke. though the results may appear harsh in some cases it is true of all privileges. for example courts unsighted this beach or debate clause two drought suits against members of congress and other legislators involving invasion of privacy, defamation, incitement to violence, age race and sex discrimination retaliation for

reporting sex discrimination and larceny and fraud. a debate in this legislative body, in the same with the state's secrets privilege of vance is greater public good protecting our nation. my first point today is that there is no evidence of the state's secrets privilege 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. the reported opinions, the privilege was asserted seven times in 2007 and just three times in 2008. according to robert chesney, the evidence does not support the conclusion that the bush administration use the privilege with greater frequency than the other administrations. the data also showed the privilege being used to protect the same national security interest as in the past. over the previous four decades most state secret case is concerned intelligence programs, followed by military technology and contracts and then diplomatic communications. that is the same pattern as

today. the data shows the government is not seeking harsher remedies such as dismissal of cases and more than it has in the past. further, the courts take seriously their duty to oversee the privilege. during the clinton administration courts refused to grant the privilege and 17%. that rose to 40% during the bush administration. if anything the course of become less deferential. finally, president obama onesy critic of the privilege, now recognizes its great importance. freepress.net going back to lyndon johnson has reached the same conclusion. in some, there's no evidence the state privilege secret is being misused, over used or abused. my second point is that it is also unconstitutional. unlike most other privileges this one is grounded in the constitution. specifically the power commence the present. the supreme court has said as much in case after case, the constitutional power extends protecting military or diplomatic secrets. the very things covered by the

privilege. in my written testimony i identify seven provisions of the act including the core operative provision that infringe on powers the court has clearly stated belongs to the executive. this legislation may infringe on the judicial power by imposing earl decision on the courts when deciding some issues. that too would be unconstitutional. the result is based on its own precedence the supreme court most likely will strike down this act. my third and final point is that this legislation empowers judges to use-- you cerp congress powers and in the constitution designed congress plays a leading role in national security. this includes creating in funding defense programs, some of which require secrecy. but the legislation would force courts to expose aspects of key intelligence programs even if the rule in favor of the government on the privilege issue. this would hamper these programs of setting the careful balance struck by congress in making national-security policy.

if that is the goal of several of the groups that support this group, we give them a hecklers bidault over programs there were unable to convince this body to amend or shut down. perversely some members of congress may welcome this result. by passing the buck to the courts they can 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. in conclusion, there's no justification for this legislation. beyond being a necessary it is risky. members of congress to 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 of mr. wiesner. >> thank you chairman nadler, chairman conyers and distinguished members of the subcommittee. i appreciate this opportunity to explain the acod a's interest in reforming the state's secrets privilege in issue of critical

importance to all americans concerned about the unchecked abuse of power. i also want to commend chairman nadler and the co-sponsors of the protection act, h.r. 984. if enacted would place reasonable checks and balances on the executive branch reempower courts to exercise independent judgment cases of national importance and protect the rights of those seeking redress for court system. more than 50 years of passed since the supreme court formally recognize the state's secrets privilege in the united states versus reynolds. during that 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 basa once on this critical issue has become all the more troubling in recent years as we have seen the state's secrets privilege mutate from a common law evidentiary rule designed to protect genuine 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 loss. the aclu has been involved in a series of high-profile cases in which the government has invoked the state's secrets privilege in response to allegations of great government misconduct, not simply to block access to specific information was to be secret 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 the suits does more than carmody lincoln's denied the opportunity for redress. in deprive the american public of a judicial determination regarding legality of the government's actions. i had been personally involved in a number of these cases, including the case of el-masri a german citizen detained incommunicado by the cia for nearly five months in a squalid prison and a tragic case of mistaken identity. mr. el-masri's case receive such prominent coverage in the united states and abroad that he truly became the public face of the

cia's extraordinary rendition program. nonetheless, el-masri dismissed. the very entity charged with wrongdoing. the characterized the entire subject matter of mr. el-masri's as a state secret. as a result of one place in the world or mr. el-masri's are deal could not be discussed was in the u.s. court of law. a second aclu on behalf of victims of the cia rendition program, this one targeting a boeing subsidiary that provided flight services enabling the clandestine transfer of our clients to oversees prisons where they were tortured. it was similarly dismissed on the cia affidavit alone as this-- when the case reached the ninth circuit court of appeals, the obama and his administration injustice third week in office the behind the administration's broad claim the state secrets. in april, the court of appeals reversed the dismissal of the suit, holding the government states secrets claim was premature and overbroad.

it held that the government's sweeping theory of state secrets "had no logical limit and amounted to an argument the duchschere should effectively cordon off all secret government actions from judicial scrutiny immunizing the cia and its partners from the the manson limits of a lot less "the court held the government's legitimate secrecy concern would be appellee protected during proceedings with the privilege to be invoked with respect to evidence, not entire lawsuit. he will come as no surprise to the subcommittee that in my opinion the ninth circuit that the logs that were right. but, single correction opinion does not relieve congress of its obligation to act. only congress can provide a comprehensive applicable to all courts that addresses all disputed aspects of the state's 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 ruling. had a press conference the day after the ruling, handed

jeppesen case president obama was at about his administrations position on state secrets. the president responded, i actually think that the state's secrets doctrine should be modified. i think right now it is overbroad. searching for ways to redact and carve out cases to see what can be done so a judge in chambers can review information without it being an open court, there should be some additional tools so that it is not such a blunt instrument. congress should provide those additional tools by enacting h.r. 984. thank you. >> thank you. i will begin the questioning and i recognize myself for five minutes. judge wald, there in the market of the bill on the subcommittee in the last congress one of my colleagues cited your testimony last year supporting requirements that puts substantial weight to government assertions of the harn 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 courts automatically grant special deference substantial weight or utmost deference to something similar to government assertions? that is the standard and the companion bill but not in this bill, as you know. >> chairman nadler, i am 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 been submitted a we were talking about principles of legislation. one of the then administration officials, raised, raised the proposal that the utmost deference be the standard and in that colloquy that follow they said, there are other places in legislation like exemption foia won that use substantial weight. i believe, though i don't have

that quote in front of me but i believe i also attached to that what i later said in a supplemental letter that led to the house judiciary committee. i meant the same kind of void that any expert witness gets and i gave a quote from skelly wright in my former court, in which he defined substantial weight to mean only the weight that is appropriate by the demonstration of qualifications, expertise that cedras be so you think the language-- >> i like the language in the current bill. i think it is confusing. i am sorry if i contributed to the confusion. >> if the language is adequate to account for government expertise, what are their risk, if any, of putting in language about the utmost substantial weight or utmost deference?

why shouldn't 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 he better give the latter wait a lot of difference there. >> thank you. congressman hutchinson those who oppose government secrecy claims often argued that it is the president and executive branch, not the courts, that have the greater expertise and responsibility for safeguarding national security. this view in my opinion underestimates the ability of the courts and our constitutional scheme and seems to overlook what you describing your testimony as "the natural

tendency on the part of the executive branch to overstate cleanse its secrecy and avoid disclosure whenever possible." doesn't the argument regarding superior expertise in the executive branch also overlooked the potential conflict for the government in the case of information that seek to withhold embarrassing, politically or otherwise might provide evidence of unlawful conduct can't or otherwise-- >> a key point is that we have to give the courts and that tools and the guidance to assure an independent review. any language such as substantial deference would undermine that independent review. in terms of the ability of the courts to wait expert testimony, that is what is marvelous about our judiciary and our rule of law of 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 in engineering to make a fair decision and engineering cases. >> so, you trust the expertise of the courts? >> the expertise of the courts to weigh fairly the expertise under normal guidelines of what is presented. >> thank you. in cases to handle the government has argued the entire subject matter is a state secret. in the last congress we held hearings of rendition. the government knowledge rendition as a valuable tool on the war on terror, and other governments have conducted extensive examinations of particular cases. in view these facts what are we to make of the government's argument the entire subject matter is to 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 valuable than it may seem. on the very day that i was in court in san jose california jeppesen case responding to government lawyers assertions

that that case should be thrown out on subject matter grounds, former cia director hagan was in congress testifying the cia had waterboarded three individuals and so when it is in the government's interest to reveal those matters for whatever reason the government is quite forthcoming with that information. if it needs to put it in the public record that it can prosecute or-- one of finds itself in the position of being a defendant in the civil case the same information become secret as a way of avoiding accountability. >> without objection i will graham myself one additional minute. why should the government be required to prove item by item to disclose particular pieces of evidence of national security? wiseness the vision for the court to accept as reasonable the government's assertion that in it expert feel litigation over choir relations state secrets at some point that this missile is justified in the initial planning stage? >> judges are not clairvoyant. judges are not in a position at the beginning of the litigation

to determine what evidence will or will not be necessary for the parties to defend their claims before the evidence has been presented by the other side. when that argument is being advanced by a thicket of france official who stands to gain from the dismissal of a lawsuit i think the courts need to be even more wary because of the inherent conflict of interest that is there. it is never a waste of judicial resources to allow parties to have their day in court and to try to make their case and a court cannot know at the outset that depletive will not be able to come up with alternative means of proving its case without recourse to state secrets. >> thank you very much and that concludes my questioning for the moment. maybe for more than a moment. i now recognize the distinguished ranking member of the subcommittee, the former chairman of the committee for five minutes, mr. sensenbrenner. >> thank you very much for good judge wald, i have a quote from your testimony before the predecessor of this committee, subcommittee on january 29th.

were you talk specifically about substantial weight being given to the government, and you seem to "the foia statute that requires a clerk to give substantial way to the government's assertion when someone is trying to get some information under the freedom of information act. have you changed your mind since last year on this subject and if so, why? >> i have not changed my mind. perhaps i am in that's close group of people currently, to which they had stated things a little bit more clearly the first time around. >> we all have that problem. ..