he has been in judiciary so many times, and our four colleague, mr. hutchinson, is back. mr. wisner, you are a relative newcomer here, but we welcome you, and is no secret that what we are going to see and do here today is going to the information for everybody to help decide how we resolve this situation. thank you for your indulgence, chairman nadler. >> thank you. mindful of the schedule, i would ask that other statements submit their statements to the record. the chair will be authorized to declare a recess in case there are folks on the floor.

we will alternate between majority and minority. members who are not present will be recognized to ask their questions. i would like to introduce our panel of witnesses. the honorable patricia walsh, who is it has had a distinguished legal career. see served in the d.c. circuit, serving as chief judge until 1991. she was also the judge with the international criminal tribunal and was a member of the president's commission on intelligence capability regarding weapons of mass destruction. she clerked for judge frank and received a b.a. from the

connecticut college of women. as a hutchinson is a former colleague of ours and on this committee who served with distinction as a member. in 1982, reagan appointed him the united states attorney. he represented the third district of arkansas until president bush appointed him as administrator of the drug enforcement administration. in 2003, he was confirmed by the senate to be the first undersecretary of the department of homeland security. he served in this office until 2005. andrew grossman is the heritage foundation senior legal policy analyst. he was a writer and analyst, current limiting to a program in foreign policy and legal affairs.

he is a graduate of the george mason university school of law. he received his master's degree from the university of pennsylvania. in 2002 he received his bachelor's degree from dartmouth college. mr. wiser has been a staff attorney at the aclu. he has litigated several cases in which the government has invoked the privilege, including a challenge to the cia's abduction of an innocent german citizen, and a suit against a private services, and then -- company, and a case on behalf of an fbi translator accused of misconduct. he was a clerk to the u.s. court

of appeals. he is a graduate of harvard college. i have a fondness of the new york student -- school of law since my son is a student there. i welcome all of you. it is -- each of your statements will be made a part of the record. i would ask you to summarize your testimony in five minutes or less. before we begin, it is custom mini for committee to swear in their witnesses. do you swear under penalty of perjury the testimony you will give is correct to the best of your knowledge? let the record reflect that the witness's answer it in the affirmative. you may be seated. the first when this is the hon.

judge. [unintelligible] could use the microphone, please? [unintelligible] >> i would like to make five brief points. the first is that the free was -- frequent use of the privilege to the night all relief to civil plaintiffs who have been injured by government action has become a matter of concern to lawyers and legal scholars and the american bar association. this cutoff of relief is unnecessary and i think produces injustice in many cases. reynolds, the supreme court acknowledged that ultimately it is a judge must decide whether

that privilege applies or not. judges who have been administering the privilege have struggled with varying success to find a middle way between protecting security and ensuring access i were the plaintiffs to some remedy. unfortunately, the judges have not been consistent in a way -- in the way the administer the privilege. some show a readiness to dismiss cases outright, and some pro more intensely. some judges look at the item that is the state secrets privilege has raised to, and some are content to look at the affidavits. there is not any consistency as to how substantial the risk has to be to justify closing down the case. in summary, i think there is a consensus is 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 the claimants. i make two points here. there is nothing that i can find in this bill that prevents the government from raising or invoking the state secrets privilege, and wants 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 do not think there is 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' power of the constitution to prescribe regulations on the admissibility of evidence in federal courts has been used many times in the

federal russo -- rules of evidence, in fisa proceedings, and i do not think there is doubt about their authority to do so. recently, in a case in california, a district judge in an exhaustive opinion decided that the fisa procedures for treating information obtained under warrants pre-empted indication of the state secrets privilege. this was another vacation, at that level. we will see whether the government appeals or not. number 3 point. federal judges -- in other contexts handle classified materials and makes decisions as to whether redacted versions can be disclosed or summaries made that can be served think the purpose of continuing the litigation with out undermining national security. they do it all the time.

they have in many cases used masters and indices like an egg -- like an index. they use sampling techniques. this bill incorporates into the civil wall area of state secrets privilege many of these useful techniques, which judges are already familiar in order to minimize the number of cases that will be where dismissal will be necessary. that is a good thing for the following reasons. while the techniques are familiar, they are not absolutely explicitly authorized said that i had encountered cases in my experience on the bench or the government would object to something such as the use of a master, and it came up on appeal. we decided the judge could use the master, but the government objected. it is a good thing to have these techniques explicitly recognized in the law.

i will not get into the johnson case because i think the council over here will. -- the counsel over here will. they had a good thing in using this dates secrets privilege as a closed door in the subject matter. this was a rendition. the court said the state secrets privilege is only about particular pieces of information which you can raise them, beat them, you can litigate them, but you cannot say where not want to talk about secret prisons or talk about extraordinary rendition because if you have other evidence that is not subject to the state secrets privilege, you should be able to go ahead. that was worthy. the first point, i will point out some of the things in this bill that i think are very useful. the required initially that the government asserts an affidavit

that forms the factual basis of the privilege. the judge then makes a preliminary review and then confers with the party, even at that early stage, as to where there are special provisions that lead -- that need to be taken, such as the master or the index to make sure that it is not disclosed at this early stage. he can then decide if at that point he will allow the parties to continue with discovery of materials that are not covered by the privilege. this will be to see if the case and go ahead without stopping dead in the tracks and making a decision whether the privilege is involved. if he finds that the privilege could be an indispensable part of either the plaintiff's case or the defendant's descent, then it provides guidance -- dissent,

then it provides guidance. this allows cases to go forward which will be able to be litigated without any use of the state secrets privilege at all or any substitute for it. if the judge finds that this is a truly the to the the case of the privilege, he has a series of alternatives, which nobody could object to. they have been used. they are stipulation, summary, not classified or secret, etc. the criteria 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 has the burden of proving the nature of the harm, the likelihood of occurrence, and this is very important, and

i will say is one of the two issues that can be discussed today. the court should with the testimony from experts in the same manner it does along with any other expert testimony. that is important that the judge makes an independent judgment. he looks at the testimony of the government, evaluates its, the way that we have learned to a fight expert tested many, the qualifications of the expert, the experience of the expert, the cohesiveness of 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 would raise, i raised before, but i want to underscore its importance. the bill requires the judge to look at it. he cannot just look at the affidavit.

he has to look at the evidence that is in dispute as a state secret, and i think that is the central, both as to the cases which will be dismissed, because there's no alternative, and as to the cases where he decides 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 does not even know what is in the material? with that, i will conclude, i think this legislation is long overdue. i think it will be a great help to judges, and i do not think it will in any significant way in punic our national security. -- impugn our national- security. >> thank you. it is could be and out -- in our court room again.

my good friend, 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 a fond admiration for. as you know my background, but my background has been in law enforcement and security as well as in elective office, but both as an attorney, has had as the dea, we handled national security manners at the highest level. 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 already, there is a national security interest in protecting state secrets. this is not a figment of the imagination. there are secrets and things that we do not want the public to know, and our enemies should

not know that. there are many programs, sources, and programs that need protection and secrecy. that is a given. however, it is important to underscore also that any assertion of the state secrets privilege by the executive branch should not be immune from our federal system of checks and balances. it is a -- it is fundamental to me in my governing structure and understanding of what our founding fathers created that we should not have an unfettered executive branch, and a system of checks and balances is so critical to compensate for the failures of human nature. if you can imagine being in the eight say the branch and having

some trouble some litigation filed and you are advised they can claim the state secrets privilege and avoid substantial litigation, and there is a human tennessee with that privilege is there to claim the privilege. -- a human tendency with that privilege is there to claim the privilege there are historical instances where perhaps it was not appropriately claimed. 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. that is the third principle that the courts have proven themselves capable of protecting classified information at the highest levels and establishing procedures to balance the interests of secrecy and justice. the illustrations are helping have handled fisa matters, how

the classified information procedures act has been implemented so well by the courts, and the handling of classified information under requests. i think you could also make the case historically that there has been more loose lips and other branches of government and within the judiciary. they have a good track record of protecting those things that have been entrusted to them. i might add my background is law enforcement, national security, but i also have been blessed to be in the private sector, and i am currently handling a national security case from defense side. guess what the first in the courts require -- you have to have your start -- your security clearances upgraded, you have to feed the evidence in secure facilities, all the procedures are set up, even though they are cumbersome. they are and lamented --

implemented on a routine basis by the courts. another point to make is that even though this is a historic doctrine, there is insufficient authority, clarity, and guidance for the courts to provide an independent review that i believe it is important in our system of checks and balances. we have the reynolds case, a recent case, the jefferson case will be discussed -- all these reflect different approaches and different results, some of better, some others are not so good, depending on your viewpoint. i believe 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 and provides for an independent assessment by the courts, does not require difference, and this is a touchy issue, but if i might just make the point that in other areas of litigation where there is a difference, foya, other regulatory areas, there are fine guidelines in history and regulations that give guidance that fine tune it before it gets to the court and perhaps there is a distinction between the deferences given those circumstances and 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 provides the independent assessment, clarifies it is an

evidentiary privilege, not an immunity doctrine, and provides critical oversight. i have been enjoying participating in the constitution projects by a committee which i recently joined and the report has been signed by more than 40 policy experts, 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. >> that report will be included. i recognize mr. grossman for 5 minutes. >> good afternoon. my testimony concerns the consequences of the state secrets protection act which limits the privilege. the legislation is unnecessary because there is no evidence

that the privilege has been abused. it is unconstitutional because it avoids -- in the board's -- ignores president. the legislation would invite the courts to intrude on the power and responsibility of congress to make policy. this would upset careful pollin crist balances. contrary to repeated claims, there is nothing unusual about the privilege. seven requirements ensure the privilege is used only when necessary. judges play a crucial role by ensuring is properly applied. courts have cited a debate clause to throw out suits by members of congress involved invasion of privacy, defamation,

discrimination, retaliation, and these are harsh results, but for a greater good. in the same way the privilege advances the greater public good -- protecting our nation. there is no evidence that the privilege is being abused or used more frequently than in the past. data show that its use is repaired the privilege was asserted seven times in 2007. the evidence does not support the conclusion that the bush administration used the privilege with greater frequency. it also showed the privilege is being used to protect the same interests as in the past. most cases concerned intelligence programs and

diplomatic communications. that is the same pattern as today. it shows the government is not seeking harsher remedies any more than it has been in the past. courts take seriously it their duty to oversee the privilege. the courts have become less deferential. president obama recognizes its great importance. ever president has reached -- every president back to johnson has reached the same conclusion. the legislation is unnecessary. the second point is is also on constitutionality -- unconstitutional. the privilege is based in the constitution. the supreme court -- i

identify provisions of the act, including the core operatives provision. the legislation may infringe on digital power by imposing a decision on the courts when deciding some issues. that would be unconstitutional. the result is the supreme court would most likely strike down this act. the third and final point is the legislation empowers judges to usurp congress' own responsibilities. this includes creating and funding defense programs. the legislation would force the courts to expose aspects of programs even if the rule in favor of the government on the privilege issue. this would hamper the programs,

upsetting the balance struck by congress. that is the goal of several of the groups who support this bill. it would give them a veto. perversely, members of congress may welcome this result. by passing the buck, they can avoid the consequences of tough votes. congress should not abdicate its responsibility or grant such powers to unelected judges. there is no justification for this legislation. it is risky. members of congress should 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 recognize mr. wisner. >> thank you. i appreciate this opportunity to explain the aclu's position on

the privilege. i want to commend the chairman and co-sponsors of the act. it would praise -- a place reasonable checks and balances on the the courts. more than 50 years have passed since the supreme court recognized the state secrets privilege. during that time congress has never legislated the place restraints on the use of the privilege which provide standards or guidelines to confused courts. congress' silence has become troubling in recent years as we have seen the privilege be tate from a common-law rule designed to protect secrets into an alternative form of immunity

used to shield the government from accountability. the aclu has been involved in a series of cases in which the government has invoked the privilege in response to allegations of great misconduct. not simply to block access to specific information that is alleged to be secret, but to dismiss lawsuits. this has happened in cases involving rendition and torture. the dismissal of the seats does more than harm the that begins who are denied opportunity for redress. the price the public of information regarding the legality of the government's actions. i have been involved in a number of these cases, including the case of a german citizen who was detained for five months in a tragic case of mistaken identity. his case received such prominent

press coverage that he became the public face of the cia's rendition program. his lawsuit was dismissed on the basis of an affidavit from the cia. the care -- this characterized his case as a state secret. the one place in the world when we're his case could not be discussed was in a court of law in united states. another case in which a company provides services, was dismissed on the basis of a cia affidavit. the obama administration stood behind a bush administration's walk -- broad claim. in april, the court of appeals reversed the dismissal of