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 today the subcommittee examines legislation that i've introduced along with the distinguished chairman of the full committee with representative time to try and with several other members of the committee that would kind of by uniform standards for dealing with claims of a state secrets privilege by the government in civil litigation in the last congress  oversight hearing on the state secrets privilege and a hearing on this legislation the bill was reported favorably to the full committee our experience has demonstrated the destructive impact that sweeping claims of privilege and 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 concerns are at their highest with regard to secret executive branch conduct and the government simply cannot be allowed to hide behind and examine claims of secrecy and become the final arbiter of its own conduct your claims of secrecy have been used to conceal matters from congress even though members of the security clearance necessary to be briefed in an appropriately secure cladding setting that has been the case has respect for the use of torture with the use of illegal spying on americans and other members and other matters of tremendous national importance and let me add here 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 is an ancient maxim of law that says there is no right without a remedy and if the government violates your right to kidnap tortures you it deliberately burns down your house  oversight that's hit or miss or the victim can sue in tort and sue the government for illegal wiretapping or kidnapping for intentional infliction of mental distress for assault whatever it is the government can eliminate that lawsuit on the pleading 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 and i think zammit assertion that trying the case would necessitate the revelation of state secrets mess then there is no recourse to the courts and there is no enforcement of rights and rights without a remedy are illusory and we have no rights therefore we must put some limits on this use of the state secrets doctrine the same pattern of resorting to extravagant state secrets claims has been evident in the courts while the bush administration did not invent the use of the state secrets privilege to conceal wrongdoing it certainly perfected the art the state secrets privilege has been abused by prior administrations to protect officials have behaved illegally or improperly or simply in an embarrassing memo met manner rather than to protect the safety and security of the nation the landmark case in the field u s vs reynolds is a perfect case in point the widows of three civilian 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 involved half a century that later the report was found now the classified 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 that the crash was caused by government negligence which i suspect was a 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 actual report that these families with and i just because the supreme court never look government's false claim to determine whether it was valid similarly in the pentagon papers case then solicitor general erwin griswold warned the supreme court that publication of the information would pose a grave an immediate danger to national security eighteen years later he acknowledged that he had never seen quote any trace of a threat to the national security unquote from the publication of the information and further admitted that quote the principal concern is not with national security but rather with government embarrassment of one sort or another close 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 balance these important albeit sometimes competing demands in the criminal context we enacted the classified information procedures act in five is that we set up procedures for the court to examine sensitive materials through the freedom of information act we sought to limit any withholding of information from the public when 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 lied and take your sharon says at face value the courts and the congress have a duty to look behind what this is ministration or any administration says to determine whether or not those assurances are well founded presidents and other government officials have been known to not 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 that there needed to be checks in each branch of the government to prevent the such abuses from taking place or in the words of the ninth circuit  recent jepson decision 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 of any merit when the government itself is a party the court cannot allow it to become the final or arbiter of its own case the purpose of this legislation is to ensure that the correct i would just add that i'm extremely disappointed that the department of justice has a client to provide a witness to discuss is very important issue at this hearing i have met with the attorney general and i understand that her view 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 when 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 of their 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 recognize the distinguished ranking minority member made it clear that if the court after giving appropriate deference to the executive branch determines that public disclosure of information would harm national security a 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 denied access to court review rather the doctrine allows judges to personally review any sensitive  vs madison who held that the government need not provide any information that would endangered the public's safety in the modern era congress debated the issue of the state secrets privilege under federal law in the sevent chose to maintain the status including elements of the privilege put in place by the supreme court in this reynolds decision the fourth circuit court of appeals recently employed the doctrine and affirming the dismissal of the including that the state secrets privilege has a firm foundation in the constitution not surprisingly the privilege played a significant role in the justice department's response to the civil litigation arising out of our counterterrorism efforts opinion the government's legitimate interest in protecting sources and methods of intelligence gathering and stated we expect the district court will use its discretion to accommodate to the greatest extent possible while citing the reynold asserted by 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 his predecessor away from a lot of things so this is just one more of them but it doesn't mean that the consideration is not extremely  important we've been here before ladies and gentlemen i'm forced chris there are some secrets that we've got to keep away from citizens and congress people and everybody  and the 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 of the president on this subject he said we've got to rein in the state secrets privilege is acknowledge that the privilege is overbroad and overused and that he embrace several principles of reform he's agreed the state secrets shouldn't be used to protect information because it reveals  violation of law or it may be embarrassing to the government and his administration is also continue pressing and aggressive view of state secrets privilege is in the court adopting n earlier this year and the mohammad case ministration currently maintains that the prior administrat sweeping assertion that the very subject matter of the case was a state secret and and that should prevent judicial consideration of the case what's that about they could they could not provide a witness why well there's a review pending and and that that what we're doing is concluded and we understand your concern about the matter so what's with this secret business well let's see how far we can go i'm so glad this judge well she's been in judiciary so many times german 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 or members who are five legislative days to submit opening statements  arrives members who are not present when the term begins will be recognized after the other members about the opportunity to question the chairs or write to accommodate a members unavoidably late or who is only able to be with us for a short time i would like now to introduce our panel judge world was also a judge of the international criminal tribunal for the former yugoslavia one thousand nine hundred ninety two thousand and one and was a member of president of the president's commission on the intelligence capability of the united states regarding weapons of mass destruction from two thousand and four to two thousand congress and on this committee who served with distinction as a member this committee in one hundred eighty two president ronald reagan appointed him united states attorney to represent the third district of arkansas from one thousand eighty six until president bush appointed him as administrator of the drug enforcement administration in addition to a service in the judiciary committee he was also a member of the intelligence committee in january two thousand and three representative hutchinson was confirmed by the u s senate to be the first undersecretary of the newly created department of homeland security where he served until two thousand and five he subsequently found a the a sergeant in law group in two thousand and eight with his son ace of the third andrew grossman is a heritage foundation senior legal policy analyst before being named a senior legal policy analyst in january two thousand eight mr gross was a writer editor and general analyst at heritage contributing to the think tanks research program in domestic and economic policy foreign policy and legal affairs mr grossman is a graduate of the george mason university school of law we serve the senior there as been a staff attorney at the a c l u since two thousand and one specializing in national security human rights and first amendment issues is litigated several post nine eleven civil liberties cases in which the government is invoked the state secrets privilege including  states a challenge to the cia's abduction detention torture of an innocent german citizen mohammed the jepson data planning a suit against a private aviation services company for facilitating the cia's rendition to torture of five m harvard college a new york university school of law i must have a particular fondness for new york university school of law since my son is currently a student at new york university law i'm pleased to welcome all of you it is now my  governmental action has become a matter of grave concern to legal scholars the american bar association this total cutoff of relief is often unnecessary i think produces rank injustice struggled with varying success to find a middle way between protecting national security and ensuring access by where the point to some form of remedy for their grievances the judges have not been entirely just by closing down the case so i think there is a consensus it's time to regularize the administration of the privilege you know way that protects national security but not at the expense of a total shut down  process for where the climate is 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 or the second point i would make is that congress power under article one section eight in article three section two of the constitution to prescribe regulations on the admissibility of evidence in federal courts has many times in the federal rules of thing for the following reason while many of these techniques are very familiar they are not absolutely explicitly authorized so that i had encountered in my own experience on the bench whether government would object to something such as the use of a master and it came up on appeal ultimately we judge the master but the government objected so i think it's a good thing to have these techniques actually explicitly recognized in the as a kind of closed door because of the subject matter in this case it was extraordinary rendition and the court said no the state secrets privilege is only about particular pieces of information which you can raise them you can debate them you can let them but you can't say no we're not going to talk about secret prisons or we're not going to talk about extraordinary rendition because if you have other evidence that's not subject to the state you should be able to go  could be an indispensable part of either case or the defendant's dissent then it provides guidance long needed guidance as to what standards he should know i think that's a good thing about allows cases to go forward which possibly will be able to be litigated without any use of the state secrets privilege at all or any substitute for it if however the harm is reasonably likely to occur and i think that's one which is unwind with some of what i would consider the best judging in the past the government does have the burden of proving the nature of the harm the likelihood of occurrence and this i think other expert testimony i think that's very important that the judge makes an independent judgment he looks at the testimony of a government of value weight to the way that we learn 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's what should be applied here the last point i raised before but i want to underscore it's important the bill does require the judge to actually look at it he can't just look at the  security obviously we handle national security matters matters at the highest level and bring that background to this committee and i would emphasize certain principles that i think should be followed  must be done however i think it is important 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 and my governing structure in my understanding of what our founding fathers created that we should not have an  executive branch they're a co equal branches of government and the system of checks and balances is so critical to compensate for the failures of human nature and if you can imagine  n in the executive branch and having some trouble some litigation filed and you're advised that well we perhaps could claim the state secrets privilege and avoid substantial litigation and there's a human tendency when that privilege is there to claim that privilege and with years of human nature even though that privilege many times is justifiably claimed there also are historical instances where perhaps it was not appropriate regardless though regardless under our system of government there needs to be a check and balance and the judiciary is the right position to do that and that's the third principle i believe that the courts have 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 matters have the classified information procedures act has been implemented so well by the courts and the handling of classified information under fo requests and i think you could also make the case historically that perhaps there's been more loose lips in other branches 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 that i pointed out my background is law enforcement and national security official by also have been blessed to be in the private sector and currently i'm handling national security case from the defense side and guess what the first thing the courts require well you've got to have your security top secret security clearances upgraded you have to go into the evidence and secure facilities all the procedures are set up even though they're cumbersome they're required and they are implemented on a routine basis by the courts another point that i think is relevant to make today is that currently even though this is a historic doctrine there is insufficient authority insufficient clarity and insufficient guidance for the course to provide an independent review that i believe as important in our system of checks and balances we have the  better some others are not so good depending upon your viewpoint but i believe that congress be in the important third branch of government should provide the guidance and clarity  terms of what is the right approach to provide the independent review when the state secrets privilege is asserted house resolution nine eighty four is an excellent foundation to consider this provides for an independent assessment by the court does not require substantial deference and i know this a little bit of a touchy but if i might just make the point that in other areas of litigation where there is some deference you other regulatory areas there are fine guidelines and history and regulations that give guidance in those areas that fine tune it before it ever gets the court and perhaps there's a distinction between the deference is given in those circumstances and the independent review that's required here i will want to abide by the time but i think the bill is a good point a starting point for discussion  constitution project's bipartisan liberty and security committee which i recently joined and the report entitled reform in the state secrets privilege is been signed by more than forty policy experts former government officials and legal scholars of all political affiliations and i would ask that that report be included as part of the record in this hearing today thank you mr chairman without objection that hearing that report rather will certainly be included in the airing and i think the witness now recognizes aggressive five minutes good afternoon mr chairman ranking member sensenbrenner and members of the subcommittee my testimony today concerns the consequences of the state secrets protection act which is severely limit the state secrets privilege three points first this legislation is unnecessary because there is absolutely no evidence that the state secrets secrets privilege has been abused second it is unconstitutional because it avoids it ignores clear supreme court precedent for the president's power to safeguard national security secrets and third this legislation would invite the courts to intrude on congress's power in response to make national security policy upsetting the careful balance is that congress has struck again with some background contrary to often repeated claims there is nothing sinister or unusual about the state secrets privilege seven second seven separate requirements including department of justice review and personal consideration by high ranking federal officials ensure the privilege is used only when necessary to protect national security and judges play a crucial role by ensuring that isn't properly invoke the result may appear harsh in some cases that's true of all privileges for example courts have cited the speech or debate clause to throw out suits against members of congress and other legislators involving invasion of privacy defamation incitement to violence age race and sex discrimination retaliation for reporting sexual a scream anation and larceny and fraud yes these are harsh results but for a greater good unfettered speech and debate in this legislative body in the same way the state secrets privilege vance's a greater public good protecting our nation my first point today is that there is no evidence the state secrets privilege is being abused or is being roberts has named wake forest university the evidence does not support the conclusion that the bush administration used the privilege with greater frequency than other administrations that also show the privileges being used to protect the same national security interests as in the past over the previous four decades most state secrets cases concerned intelligence programs followed by military technology and contracts and then diplomatic communications that is the same pattern as today but that also shows the government is not seeking harsher remedies such as dismissal of cases anymore than it has in the past further courts take seriously their duty to oversee the privilege during the clinton administration of course refused to grant the requested privilege in seventeen percent of opinions that rose to forty percent during the bush administration if anything the courts have become less deferential finally president obama once a critic of the privilege now recognizes its great importance every president going back to lyndon johnson has reached the same conclusion in some there is no evidence the state secrets privilege is being misused overused or otherwise abuse that makes this legislation unnecessary my second point is that it is also unconstitutional unlike most other privileges this one is grounded in the constitution specifically the powers it commits to the president the supreme court has said as much in case after case stating expressly that this constitutional power extends to protecting military or diplomatic secrets the very things covered by the privilege in my written testimony identify seven separate provisions of the act including the core operative provisions but infringe on powers the court has clearly stated along to the executive this legislation may also infringe on the judicial power by imposing a rule of decision on the courts when deciding some constitutional issues that's who would be unconstitutional the result is that based on its own precedents the supreme court would most likely strike down the my third and final point is that this legislation powers judges do use or progress his own powers and responsibilities in the constitutional design congress plays a leading role in national security this includes creating and funding defense programs some of which do require secrecy in style but the legislation would force courts to expose aspects of key intelligence programs even if they ultimately rule in favor of the government on the privilege issue this would end or severely hamper these programs upsetting the careful balance struck by congress in making national security policy but that is the goal of several of the groups that support this bill would give them a heckler's veto over programs they were unable to convince this legislative body to amend or to shut down perversely some members of congress may welcome this by passing the buck to the courts they could avoid the consequences of tough votes and controversial national security programs congress should not abdicate its responsibility or grant such legislative power to unelected judges in conclusion there is no justification for this legislation being unnecessary 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 now recognize five minutes mr wise and thank you chairman nobbler ranking member sensenbrenner and chairman conyers and distinguished members of the subcommittee i appreciate this opportunity to explain the a c l u interest in reform of the state secrets privilege an issue of critical importance to all americans concerned about the unchecked abuse of executive power i also want to commend chairman adler on the co sponsors of the state secrets protection act h r ninety four if enacted it would place reasonable checks and balances on the executive branch re empower courts to exercise independent judgment in cases of national importance and protect the rights of those seeking redress through our court system more than fifty years have passed since the supreme court formally recognized the state secrets privilege in united states versus reynolds during that time congress has never legislated to place reasonable restraints on the use of the privilege or to provide standards or guidelines to increasingly confused and divided federal court congress's silence on this critical issue has become all the more troubling in recent years as we have seen the state secrets privilege mutate from a common law evidentially rule designed to protect genuine national security secrets into an alternative form of immunity that is used more and more often to shield the government and its agents from accountability for systematic violations of the constitution and this nation's laws the u has been involved in a series of high profile cases in which the government has invoked the state secrets privilege in response to allegations of grave government misconduct not simply to block access to specific information that is alleged to be secret but to dismiss lawsuits in their entirety at the outset this has happened in cases involving rendition and torture warrantless surveillance and national security whistleblowers the dismissal of these suits does more than harm the individual but again to are denied opportunity for address it deprives the american public of a judicial determination regarding the legality of the government's actions i have been personally involved in a number of these cases including the case of khalid al masri a german citizen who was detained in incommunicado by the nonetheless mr al masri lawsuit was dismissed on the basis of an affidavit from the cia the very entity charged with wrongdoing that characterized the entire subject matter of mr el masry as a state secret as a result the one place in the world clandestine transfer of our clients to overseas prisons where they were tortured was similarly dismissed on the basis of a cia affidavit alone as this subcommittee knows when the case reached the ninth circuit court of appeals in february the obama administration in just a third week in office stood behind the bush administration's broad claim of state secrets in april the court of appeals reversed the dismissal of the suit holding that the government's state secrets claim was premature and overbroad it held that the government sweeping theory of state secrets quote had no logical limit and amounted to an argument that the judiciary should affectively cordoned off all secret government actions from judicial scrutiny immunizing the cia and its partners from the demands and the limits of the law the court held that the government's legitimate secrecy concerns would be amply protected during further proceedings where the privilege could be invoked with respect to discrete evidence not an entire lawsuit it will come as no surprise to the subcommittee that in my opinion the ninth circuit got the law exactly right but a single correct judicial opinion does not relieve congress of its obligation to act in this area only congress can provide a comprehensive scheme clickable to all courts that addresses all disputed aspects of the state secrets privilege and about his administration's position on state secrets the president responded i actually think that the state secrets doctrine should be modified i think right now it's overbroad searching for ways to redact to carve out certain cases to see what can be done so that a judge in chambers can review information without it being in open court you know there should be some additional tools so that it's not such a blunt instrument congress should provide those additional tools by enacting h r ninety thank you i'll begin the questioning by recognize myself in five minutes and judge wald during market with a bill in the subcommittee in the last congress one of my colleagues cited your testimony last year as supporting a requirement that courts grant quote substantial weight to government searches of the harm 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 the opportunity to address that point when i was here before the house judiciary committee last year you did not have a bill yet draft bill that had actually been submitted we were talking about principles of legislation one of the  legislation like exemption for one that use substantial weight i believe i don't have that right in front of me but i believe i also attach to that what late what i later said  in a supplemental letter that went to the house judiciary committee i met the same kind of weight that any expert witness gets and i gave a quote from scalia right in my former court in re versus turner in which he defined substantial weight to mean only the weight that is appropriate by the demonstration of qualifications thank you so you think the language in the current i decision so you would trust the expertise of the courts the expertise the court fairly the expertise under normal guidelines of what's presented today thank you mr wise the cases you've handled the government has argued that the particular cases in view of these facts what are we to make of the government's argument that the entire subject matters to secret and warrants 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 malleable than it may seem on the very day that i was in court in san jose california jepson case responding to government lawyers assertions that that case should be thrown out on subject matter grounds former cia director hayden was in congress testifying that the cia had waterboarding three individuals and so that when it is in the government's interest to reveal in those matters for for whatever reason the government is quite forthcoming with that information if it needs to put it in the public record to ensure that it can prosecute or execute alleged terrorists when it finds itself in the position of being a defendant in a civil case the same information becomes secret as a way of avoiding accountability thank you without objection i'll get myself one additional minute so you can answer one more question as to why why should the government be required to prove item by item that disclose your particular information particular piece of evidence or harm national security why isn't it sufficient for the court to accept as reasonable the government's assertion that it's  require revelation of state secrets at some point that dismissal is justified the initial pleading 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 make  it is never a waste of judicial resources to allow parties to have their day in court and try to make their case and a court cannot know at the outset that it will not be able to come up with alternative means of proving its case without mr frank and the two people that raise the question of unconstitutionality more than anybody i can think of in this committee what do you think about the to legislate in this area i would only add to that my understanding of the argument that this bill would be unconstitutional would apply equal force to the freedom of information act the foreign intelligence surveillance to 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 and none of those intrude on the president's constitutional constitutional power to control access to classified information in other words who is trustworthy enough to receive certain certain types of classified information specifically in diplomatic affairs as well as in military national court cases supervision by the court and to ultimate approval by the court that's what it does so just to talk about the throw around phrases about the executive power this and that in fact the  unlimited for example so you would argue that a general power supersedes a specific grant of power i would say it's not unlimited in the sense that for example this body could not abrogate this is amendment privilege against self incrimination despite its executive power the constitutional power to the president of the united states if secrecy is a necessary incident of that power and that is the president's power ok well mr grossman if we're in executive privilege has caused someone to lose their rights or their privacy made the nation less safe or was there anything in history that we needed to know about that we were able to learn from because it was rolled up in an executive privilege was the bottom  and that's where i'm not coming to this hearing in a critical fashion others have had different experiences i'm coming to this from the standpoint that regardless of the history of  it we have responsibility to make sure the potential for abuse is minimized by a system of checks and balances and i come of this is a conservative i do not believe in an unf red executive branch anymore than i believe in an unchecked and unfettered judiciary branch we all have checks and balances and so here is the executive can assert a state secrets privilege without any that and so often something is classified in two days later you'll see the official go out and speak about that very subject i think that the track record of the courts is totally different i think part of it is they don't have to stand for election in the federal judiciary they have a track record that is extraordinary in protecting classified information both with the courts and i think it's been exemplary but also with the classified information procedures act as such i agree with that point that you've made and i know was made of a criminal enterprise to engage as a contractor and do working with developing this which happens of course every ten years here in the united states and if the results of that census might dramatically change their congressional districts enterprise appeared to be a criminal enterprise were something that happened to be also supportive of turning out the vote for that very same white house whether it be able to express or assert an executive privilege that would keep us from finding out the details of that contractual organization m into this into this record i'd like to point out that there are many more suspicious activities taking place with that hypothetical organization which i'll now name as acorn and i'd like to see this committee look into acorn and i asked the chairman of the full committee to reconsider as reconsideration and asked the t and i read your testimony and i'm in total agreement i think you've really captured what the issues and when we talk about the separation of   and personal consideration by higher ranking federal officials ensuring that the state secrets privilege only when necessary to protect  designed when they created the constitution and that there was meant to be checks and balances it's a distrust of government if you you indicated you're a conservative  transparency is clearly a aspect of a viable healthy democracy and i think we've got to keep that out of balance out of kilter and i'm not here to defend the o judiciary simply is not accurate and you ought to speak to some litigators and some judges before you make such statements and i say that to you with respect sense but it shows that even the most sage and wise among conservatives we can can become a little disoriented now and then but not actually mr chairman i know that he's coming from a centrally the same foundation  course as you also know the reserve under themselves the right to use the same techniques that they thought they we're necessary just recently just i think today the administration called mr obama call the iraq war a war of choice and yet he chooses to continue to persecute prosecute that war and he has a withdrawal timetable essentially the same as the bush administration the guantanamo bay issue has been brought up a great deal and yet it appears that the result will be either terrorist in the united states subject to all of our constitutional rights or  place the same way i even heard the president the other day say that we cannot sustain this deficit spending it's enough to really amaze you sometimes the obama justice department has invoked the state secrets privilege in three court cases since the president took office according to washington post editorial page the obama administration position of state state secrets makes it hard to distinguish from its predecessor according to usa today's editorial page quote  policies the obama administration is continuing along the pays path paid by the previous administration new ministration has embraced or only superficially modified several policies held over from the bush era including the use entirely and i think it's quite heartening i think it demonstrates that this is not a partisan matter this is something it is not a political matter it's about the safety of our nation and it's something where among between political story between our presidential a there has been no disagreement when mr chairman i guess that's my main point i know i took the opportunity to express some feelings of that the administration has been hypocritical in some of the attacks that it made on the previous administration and has come to some realities that are always easy to ignore in a campaign what is important here i think is for all of us to realize that truth and time travel on the same road and th truth always has the last word and that somehow perhaps in this institution and in our campaigns we should try to figure out what's right and who's right all the time and with that i yield back thank you i thank the gentleman i think the this hearing is regardless of the position of any administration to figure out what's right not who is right and i agree with the gentleman that i thank the witnesses without objection all members will have five legislative days to submit to the chair additional written questions for the witnesses which we w