interpreted the way judge wright did and i put that in my testimony today as well as the supplemental letter to the committee which says it does not mean some kind of blanket notion that when when the witness comes

and says i represent the government immediately he or she gets deference. it means according to judge wright and i think that's the correct meaning, it means that you get the kind of special weight from the judge that the qualifications, experience, and inherent persuasiveness and coherent testimony linder. i would give you an example but i don't want to use up other people's time. >> well, let me pursue this further. maybe i should complement you as its starting to sound like justice scalia who doesn't think anything we say over here makes any difference when a matter gets to court. but, even a few accept legislative history using substantial weight and a foia request it seems to me the type of material usually requested in foia is much less sensitive than

a material where an allegation of a state secret is asserted by the government. and doesn't it concern you that we would be having different standards if we have different types of wheat to the kuwait that are to be to government or administration concessions when records or information are attempted to be sought from the government? >> well, number 1i am not sure i simply don't have the experience although i've encountered both cases on the bench, both foia exemption one and a form of state secrets, but i don't have the wide experience to validate what you say that somehow state secrets are likely to involve much more sensitive material. in fact, my chief experiences with foia exception one, and

there were some very sensitive materials raised in some of those cases including the aborted helicopter rescue of the people at the end of the carter administration, etc.. but here i want to make another point and that is that the jeppersen caisse if i have the right case pointed out that they believe that different standards might be appropriate because what is at stake in foia xm schonborn is simply a citizen wanting to get the information not having to show any particular injury or any particular state in the balancing of equities. it just wants it. on the other hand if you're in a civil case where there's an allegation of injury and serious

the stakes are much more important so i am not sure and the third thing i want to point out is judges have interpreted foia extension one differently as pointed out. some states want to the look at the material and take the government's affidavits at face value but others look into the affidavit and they say will lead doesn't make a lot of sense to me and i don't think it's credible and i'm not going -- >> that gets to my final question. currently we do have a body of law with a substantial difference standard that is in the current law. this legislation repeals it does not substitute another standard and basically makes this a matter of judicial discretion. aren't we likely to get less certainty on what is a legitimate claim yet on suppression of information if we

start from scratch? with the case law would be a rather than keeping the current standard in all? >> i think not because as i said in my opening remarks, i think you've got -- you don't have a consistent body of law with a consistent standard now, and so therefore i think it's all over the map. i think we could almost began a new whiff of a standard that's in this small and began to build that body. i don't think we are going to blues anything inconsistent from the law. >> i thank the gentle man and recognize mr. conyers. >> thank you, mr. chairman. since i know the president and 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 is that addressed to? i'm sorry. >> anybody. >> if i could where you stand depends on where you sit. when senator obama -- when president obama was in the senate, when he was campaigning for the presidency, he had a very different position on the state secrets privilege. now that he's in the executive branch and now that he has seen the usefulness and utility of that and the importance he seems to have reached a very different view. i can understand that might be politically inconvenient for him to come and say that but i think there's some evidence that is what has occurred. >> i was afraid he would be the one that would answer my question. >> would the gentleman yield for

a moment? mr. grossman indicated some evidence -- are you speculating? >> i'm speculating based on -- >> speculating, and i yield back to the gentleman. >> please, go ahead. why? >> when they were in the senate but senator biden and obama were very strong critics of the state secrets privilege. since assuming office, the administration is used the privilege and at least three cases which we are aware and at least in all three of those cases were very controversial and vocations of the privilege. cases that have resulted in much debate in this congress as well as in the public's fear. these are the sorts of cases a senator was critical of prior to joining, prior to joining the executive branch suggests it's speculation. i have not asked anyone in the executive branch what they're thinking on this is but i think

a reasonable conclusion can be drawn by the fact that have occurred. >> well, since you have been so expert with the president, can you explain the attorney general's failure to provide a witness? >> no. >> anyone else want to weigh in on this? >> i will just say i think that i appreciate the fact be attorney general was looking in the branch as refining internal procedures on the assertion of the state privileges doctrine. but to me that really raises the profile necessity of congress to act and so whether they are here or not to me they are working on their branch of government but i'm delighted the concourse is considering. more comprehensive reform. >> croswell mr. frank and i are

the two people that have raised the question of constitutionality could 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 x preston her remarks on the constitutional authority to legislate in this area. i would only add that my understanding of the arguments that this bill would be unconstitutional would apply to equal force to the freedom of information act, to the foreign intelligence surveillance act and the classified information procedures act. these are all bills that give courts tools to handle sensitive and classified information and create procedures for courts to do that. none of those interest on the president's constitutional authority and neither does this legislation. >> judge wald, would you further comment?

>> i certainly agree with what mr. wizner said. all privileges, not all but many privileges have sort of tangents of constitutionality about the executive privilege certainly and you could all go back and say we need this. the executive has of have coloradans or how we're in order of to fulfill the commander-in-chief powers or fulfill in the case of executive privilege. it's the ability to run the government. but get, i think that these privileges have been considered to be susceptible to congressional concern going laid-back to 1969 when we were going to have the federal rules of evidence with more detail there actually was one drafted to deal with the state secrets privilege and congress abandoned the attempt to have a very specific set of codes on it. so i don't think -- like don't think the supreme court in reynolds or anyplace else suggested that this was some

kind of sacrosanct constitutional privilege that couldn't be touched. >> mr. hutcheson? >> i think the argument is that somehow legislative in this area and impedes the executive from his national security responsibilities protecting our country and i don't see any challenge to that authority at all. the legislation is being considered doesn't stop them from exercising state secrets from implementing national security programs. it doesn't change the fact they can assert that privilege. it just says that when it gets to the courts after the fact always when it's going to be reviewed then there's going to be a process in our system of checks and balances, so i do not see this as taken away from the authority of the chief executive

in terms of national security. >> well, if we were in court, mr. grossman, you would be on the short end of this discussion >> that is perhaps the true numerically speaking. [laughter] i think if you look at the supreme court's decisions and opinions and the airlines, mixing, time and time again the court has said that secrecy is in some domains and necessary incidents to the excessive power of commander in chief in other words those powers cannot be fully exercised without a strong degree of secrecy. further the court has actually said that the executive has an innate constitutional power to control access to classified information in other words who is trustworthy enough to receive certain types of classified information specifically diplomatic affairs as well as in

military national security affairs. it is my opinion that this legislation intrudes on that power that the executive has. for that reason it would be unconstitutional. >> mr. grossman you cite these cases the supreme court has said the secrecy is inherent in the executive, but it is true, is it not that the supreme court has always said these powers are not unlimited, not absolute, for instance limitation and secrecy. in fact no executive power, no congressional power for that matter is absolute. >> you are correct that no power is absolute. at the same time no power or is empty there and so to avoid any discussion whatsoever -- >> this bill we are discussing that doesn't avoid anything. it simply subject the executive's power of secrecy in

the context of court cases to supervision by the court. and to ultimate approval by the court. that's what it does. so just to talk about -- to just throw hour of phrases about the executive power and this or that, in fact the congress's power under article 1,, to regulate the negative ability of evidence it is a specific grant of power and that is what this is doing. >> i would argue that a grant of power is not unlimited for example -- >> sing would argue general power supersedes a specific grant of power? >> i would say it is an unlimited in example this body could not aggregate the fifth amendment privilege against self-incrimination despite its power to regulate -- >> because it is a specific limitation supercede generalities and you are reversing that. >> i would disagree. i think very specifically the

constitution assigns the palin and constitutional power to the president of the united states. if secrecy is unnecessary incident of the power of and that is the president's power. >> okay. well, mr. grossman, i would ask you to come back to the chamber if we were in court after we finished the session, but i appreciate your constructive attempts to defend your proposition. and i yield back, mr. chairman. >> thank you. i recognize the gentleman from iowa. >> thank you mr. turkoman and now mr. grossman on to compliment you on the nimble response to the chairman of the kennedy and i would first welcome mr. hutcheson back to the committee and thank all the witnesses for your testimony and first i would like to ask mr. hutcheson and was always able to hear most of the testimony and review some of it in print and look back over the

history of the country and wonder when it is i've been alarmed that the state secrets doctrine or executive privileges cause someone to lose their rights or privacy or made the nation less safe or was their anything in history we need to know about that we were not able to learn from because it was rolled up in an executive privilege? the bottom line and my question is, mr. hutcheson, what are we trying to fix? >> i'm 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 responsibility to make sure that the potential for abuse is minimized by systems of checks and balances and i commend this as a conservative. i do not believe in an unfettered and unchecked executive a branch any more than

an unfettered judiciary bench. we all have to expand balances and so to say the executive can assert a state secrets privilege without any review with broader authority, unbridled authority i think goes against the principles of the founding fathers so that is the sort of direction that i'm approaching. >> i appreciate that and as the point of information as a longtime member of congress and esteemed member of this committee on ask if you've ever gone into a classified hearing or classified hearing giving up your plan. cellphone and come back and recovered that and then stepped in front of a television screen in the scene this summer briefing paul already coming out in the news almost simultaneously. i think all of us have so that's the point of my concern i wonder if you care to speak to that. >> you're point is well taken

that there is a history and i might say i think that if other branches of government have spoken about what has been classified information the executive branch at we exiles in that, and so often something is classified and then two days later you will see an official go out and speak about that very subject. now, i think that the track record of the court is totally different. i think part of it is they don't have to stand for election in the federal judiciary. and so they have a track record that is extraordinary in protecting classified information both with a fine record that has been exemplary, but also with the classified information procedures act. >> mr. hutcheson, i agree with the point you've made and i know it was made in the testimony earlier brought out again and i thank for your response and turn to mr. grossman. in light of the nimble major you have responded to previous comments or questions, i would ask you if you could address this panel on the limit or the

scope of the existing executive privilege state secrets doctrine. let me just say hypothetically if there was a white house that had contracted with an enterprise that had the trappings of a criminal enterprise to engage as a contractor and working with developing the census which happens of course every ten years in the united states and if the results of the senses might genetically change the congressional districts in america, change the political dynamics in america, if those results of counting the people to maybe be extrapolated by formula than the constitutional requirement to count people, if those -- and if that enterprise appeared to be a criminal enterprise or something that happened to be also supportive of turning out the vote for that very same white house would there be able to express or assert an executive privilege that would keep us from finding out the details of that organization, mr. grossman? >> i do not believe that would

be the case for the reason that particular organization you described as well as the purpose that is directed to not concerned national security. they do not concern military affairs and they do not concern -- >> thank you mr. grossman. and into this record and would point out there are many more activities taking place i will mail name as a.c.o.r.n. and i would like to see the committee looking to a.c.o.r.n. and ask the committee to reconsider and ask the chairman of the subcommittee to take it that the evidence that has been filed in to this record which is substantial and purely justifies an investigation in a.c.o.r.n. and i asked you do so and i yield back the balance of my time. >> i would say after you join as a co-sponsor of the bill i will consider that request. >> is that a deal? i now recognize for five minutes -- you yelled back right? i recognize the distinguished gentleman from massachusetts. >> thank you, mr. chairman and

let me extend a personal welcome to our former colleague and my friend. i remember having breakfast during our first term together here in the congress, talking about the separation of powers and other issues as i am sure you remember to read it's great to have you here and by the way you are mr. and would be great to have you back on this side of the dice. and i read your testimony, and i am in total agreement. i think you have recaptured with the issues are and when we talk about the separation of powers, what we are really talking about limitations on the power of each of the coequal branches. and as i listen to mr. grossman,

his version of his understanding of article 2 is clearly in line with like think addington's and what has occurred over a period of time is the simply too much power, you know, to the executive and again, i want to be clear this is no partisan taint. we are talking about core constitutional order here. and people can have disagreements in terms of the power of the executive. and let me -- let me put this out. you know, when we talk about state secrets underlining that is the power to classified and i

think what we have failed to do as a committee is to examine the process of classification. because what i see again and again is the classification of material that is later in declassified or comes as you suggest or as the gentleman from iowa indicated goes into the public domain and every one is perplexed simply because it appears to be no rational basis for classifying that information so, you know, mr. grossman was seems to have great confidence in the executive. his testimony is there are seven separate requirements including department of justice review and personal consideration by higher

ranking federal officials insuring that the state secrets privilege is used only when necessary to protect the state secrets. and i respect the sincerity of his belief yet at the same time that's in my judgment is not what the founders designed when they created the constitution and that there were meant to be these checks and balances. it is the distrust of government, if you will. you indicated you were conservative. i share your conservatism in this particular area. because it is so fundamental. you know, secrecy really is the hallmark of totalitarianism and transparency is clearly an

aspect of viable, healthy democracy. and i think we have got to keep that -- we are out of balance now. i am not here to defend the obama administration. this is something that the united states congress must do to reorder if you will the balance powers and separation. we ought to be looking at how are things classified. i know how things are classified in some agencies. there's somebody in a cubicle somewhere that is just redacting. you've experienced that. mr. grossman, you make a statement that says that its -- eight could be unduly burdensome for the courts to have to actually revealed the information. what leads you to that conclusion? >> that would be burdensome to review classified information? uncertain case is especially those that are challenging

extensive secret programs, there may be enormous amounts of data -- >> how many of these cases have you been involved in? >> directly? i'm not a litigator. >> the answer is you haven't been involved in any of these cases? >> i'm a researcher i do not litigate any of these cases. >> fine. let me suggest to you -- i have been involved as mr. hutcheson as a prosecutor in numerous cases. i've interacted with the judges who were trial judges. let me assure you that judiciary has the capacity to suggest it is an on do burden on the judiciary simply is not accurate and you ought to speak to some litigators and judges before you make such statements and i say that to you with respect. >> the gentleman from georgia is recognized for five minutes. i'm sorry, arizona.

that's all right, they are close. [laughter] >> thank you very much, mr. chairman. and i, too, want to welcome my respected friend, asa hutcheson. i understand he's a little bit on the other side of the issue here today in a sense, but it shows even the most sage and why is among conservatives and become a little disoriented now and then but no, actually mr. chairman i know that he is coming from essentially the same foundation and perspective that i do perhaps to come to a slightly different conclusion but very glad that you are here. thank you for your service. mr. r chairman, i can't help notice that the pattern that seems to come from the conversation we had with mr. grossman. you know this administration recently decried interrogation

and certainly in the campaign did the same and of course as you also know they reserved under themselves the right to use the same techniques if they thought they were necessary. just recently just a think today the administration called mr. obama called the iraq war a war of choice yet he continues to persecute, prosecute that war. and he has withdrawal timetable is essentially the same as the bush administration. the guantanamo bay issue has been brought up a great deal and yet it appears the result will be either terrorists in the united states subject to all of our constitutional rights work creation of something essentially the same as guantanamo bay. the surveillance techniques that would decry so profoundly by the obama administration and the

obama campaign have been essentially left in place the same way. i even heard the president the other day say that we cannot sustain the deficit spending to amaze you sometimes. the obama justice department invoked the secrecy privilege in three court cases since the president of this. according to "the washington post" editorial page deal, administration state secrets mix of hard to distinguish from its predecessor. according to less day-to-day editorial page, quote, the obama administration's decision to increase the bush legacy of the state secrets doctrine has all the elements of hypocrisy. anthony romero the executive director of the aclu has written when it comes to key national security policies, the obama administration discontinuing a path paved by the previous administration. the new administration has embraced or superficially