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REFORM OF THE STATE SECRETS PRIVILEGE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

JANUARY 29, 2008

Serial No. 110–74

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

JANUARY 29, 2008

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4

WITNESSES 

Mr. H. Thomas Wells, Jr., President-Elect, American Bar Association 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 11

Ms. Judith Loether, daughter of victim in U.S. v. Reynolds 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 24

The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court of Appeals 

for the D.C. Circuit 

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 28

Mr. Patrick F. Philbin, Partner, Kirkland & Ellis 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

Mr. Kevin S. Bankston, Senior Attorney, Electronic Frontier Foundation 

Oral Testimony ..................................................................................................... 43

Prepared Statement ............................................................................................. 45

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 6

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 71

(1)

REFORM OF THE STATE SECRETS PRIVILEGE 

TUESDAY, JANUARY 29, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:11 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Wasserman Schultz, 

Watt, Cohen, Franks, Issa, King, and Jordan. 

Staff present: David Lachmann, Subcommittee Chief of Staff; 

Burt Wides, Majority Council; Heather Sawyer, Majority Counsel; 

Caroline Mays, Professional Staff Member; Paul Taylor, Minority 

Counsel; and Jacki Pick, Minority Counsel. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on 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 5 minutes for an opening statement. 

Government has always needed to keep certain sensitive information secret. The challenge for a free society has always been to 

balance the need to keep secrets with the openness necessary for 

democracy to function. It has never been easy to strike this balance. 

What happens when claims that information must be kept confidential conflict with the rights of individuals to obtain justice in 

our courts or when coordinate branches of Government must make 

decisions concerning matters that the executive claims are too sensitive to be discussed even with them? Today, we examine just that 

problem. 

In too many cases, claims of state secrets have succeeded in 

keeping important cases out of court entirely or preventing courts 

from considering evidence vital to the outcome of a case. Courts 

have sometimes proved overly deferential to these claims, refusing 

even to look behind decisions of the state secrets privilege to determine whether it has been made in good faith, and we know that 

in some cases it has been made in bad faith. 

We will hear today from Judith Loether whose father was a civil 

engineer killed in a military plane crash. The report examining the 

crash has been withheld from the court on the grounds that it was 

a state secret, and the Supreme Court said that the courts have no 

2

business examining that claim. If there is one thing we have 

learned over the years, it is that we cannot take such assertions 

at face value. When the report finally came to light 50 years later, 

it revealed Government negligence, but no state secrets. 

We have the CIPA law that deals with how to deal with confidential information in the context of a criminal proceeding. We do not 

have a law codifying the state secrets privilege in the context of a 

civil proceeding, and we probably should. 

Studies show that the Bush administration has raised the state 

secrets privilege in over 25 percent more cases per year than previous Administrations and has sought dismissal in over 90 percent 

more cases. Originally, the privilege was used just to shield certain 

information; but, in recent years, it has been used increasingly to 

dismiss cases from the start to say, ‘‘You cannot get your day in 

court.’’

As one scholar noted recently, this Administration has used the 

privilege ‘‘to seek blanket dismissal of every case challenging the 

constitutionality of specific ongoing Government programs’’ related 

to its war on terrorism and, as a result, the privilege is impairing 

the ability of Congress and the Judiciary to perform their constitutional duty to check executive power. 

Another leading scholar recently found that ‘‘In practical terms, 

the state secrets privilege never fails.’’ Like other commentators, he 

concludes that the state secrets privilege is the most powerful secrecy privilege available to the President, and the people of the 

United States have suffered needlessly because the law is now a 

servant to executive claims of national security. 

I will shortly be introducing legislation to allow courts to examine these claims in a manner that would protect the information 

while giving the court a chance to determine whether the secrets 

need to be maintained or whether there is some other way to allow 

the case to go forward. This legislation would codify the state secrets privilege and would limit it. This is not a new task for the 

courts. They do it under CIPA in criminal cases, and they do it in 

Freedom of Information Act cases. 

I look forward to the testimony of our witnesses on this difficult 

issue, and I welcome them. 

I would now recognize our distinguished Ranking minority Member, the gentleman from Arizona, Mr. Franks, for his opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And thank you all for being here. 

Mr. Chairman, the state secrets privilege is a longstanding legal 

doctrine that is an irreplaceable tool in the war against Jihadist 

terrorism. The Supreme Court most recently described that doctrine in a case called United States v. Reynolds. 

In that case, the Supreme Court made clear that where the central issues of a case involve sensitive and classified national security information, the courts have the responsibility to determine 

whether disclosure of the information would pose a reasonable danger to national security. If so, the court is obliged to either dismiss 

the case or limit the public disclosure of national security information as necessary. 

3

Under this doctrine, people with legitimate claims are not denied 

access to court review. Rather, the doctrine allows judges to personally review any sensitive information, if necessary. 

The roots of the state secrets privilege extend all the way back 

to the Supreme Court’s decision in Marbury v. Madison, and the 

privilege is grounded in large part in the Constitution’s separation 

of powers principles. In that case, the court held that an executive 

branch official is not ‘‘obliged’’ to disclose any information that was 

‘‘communicated to him in confidence.’’ Four years later, the same 

Chief Justice Marshall who wrote the opinion in Marbury held that 

the Government need not produce any information that would endanger the public safety. 

In the modern era, Congress debated the issue of state secrets 

privilege under Federal law in the 1970’s, but ultimately chose to 

maintain the status quo, including the elements of the privilege put 

in place by the Supreme Court in the Reynolds decision. 

In United States v. Nixon, the court endorsed the executive privilege as ‘‘fundamental to the operation of Government and inextricably rooted in the separation powers under the Constitution’’ 

and strongly cautioned that sensitive information should not be 

disclosed if it involves ‘‘military, diplomatic, or sensitive national 

security secrets.’’

The First Circuit took exactly that same position in affirming 

dismissal of a case brought by Khaled el-Masri in which the court 

concluded that the state secrets privilege ‘‘has firm foundation in 

the Constitution in addition to its basis in the common law of evidence.’’

Not surprisingly, the state secrets privilege has played a significant role in the Justice Department’s response to civil litigation 

arising out of counterterrorism policies after 9/11. 

While political opponents of the President have argued that the 

Bush administration has employed the state secrets privilege with 

unprecedented frequency or in unprecedented contexts in recent 

years, a recent comprehensive survey of all state secrets cases has 

determined conclusively that neither claim is true. 

And I want to repeat that. A recent survey of all state secrets 

cases has determined conclusively that neither of those claims is 

true. 

As Professor Robert Chesney of Wake Forest University Law 

School has concluded, the data did not support the conclusion that 

‘‘the Bush administration chooses to resort to the privilege with 

greater frequency than prior Administrations or in unprecedented 

substantive contexts.’’

Because the privilege is based in the Constitution’s separation of 

powers principles, it is unclear whether Congress could constitutionally amend the state secrets privilege by statute. Professor 

Chesney pointed out that the ‘‘judges are nowhere nearly as well 

suited as executive branch officials to account for and balance the 

range of considerations that should inform assessments of dangers 

to national security.’’

I will strongly oppose, Mr. Chairman, any efforts that invite the 

courts to deviate from the sound procedures they currently follow 

and to divulge to our enemies sensitive national security information. Innocent Americans can only be protected if sensitive national 

4

security information is protected, and I will do whatever I can to 

keep those Americans safe. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I will now recognize for an opening statement the distinguished 

Chairman of the full Committee, the gentleman from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I want to protect the American people as much as anybody in the 

Congress, but there is a different problem here. It is not just the 

fact that there are more cases in which the state secrets privilege 

is asserted, but it is how it is being asserted and how it is being 

used that really makes the difference here. It is not just the numbers. 

And so I start off congratulating the American Bar Association 

and those other organizations that have been looking at this quite 

carefully. 

And I ask unanimous consent to put in the record today’s Washington Post article on the Greater Use of State Secrets Privilege 

Spurs Concerns and the washingtonpost.com’s Bush Order Expands Network Monitoring. 

Mr. NADLER. Without objection. 

[The information referred to follows:]

5


Article.eps
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Mr. CONYERS. So the other thing that I think should be taken 

into consideration, before this turns into who is more patriotic and 

who is fighting terror harder than anybody else or who is weakening our system and all that fear-mongering that goes on so 

much, is the question around the President issuances of executive 

orders which he can then ignore or claim they are modified. 

He can with a stroke of his pen increase monitoring of the Internet. He can stop court cases in their tracks by claiming state secrets privilege and then try to bully the Congress into rendering 

the cases moot by providing telecommunications companies’ retroactive immunity. We have a FISA issue going on in the Senate 

right now, and it will be going on very shortly in this body as to 

what the role should be. 

But there is something that bothers me deep down about this 

whole discussion, and that is that judges are not qualified to determine what is in the national interest. They could work on all the 

complex cases in the world, but when it comes to the Government 

being examined, ‘‘Well, that is off limits. We will handle that, fellows,’’ and although it is a common-law doctrine, we did not have 

a law on this until 1953. 

So I come to this saying that since Reynolds in 1953 both Administrations, the Democrats or Republicans, have generated a lot of 

concern that, if not properly policed, the privilege might be misused 

to conceal not just embarrassing information, but downright illegal 

activity, maybe impeachable conduct, and that the public disclosure, in fact, may not pose any genuine threat to national security. 

And, of course, these fears have been increased by the repeated 

use of the privilege, especially since 9/11, and it is being used 

now—get this—to dismiss cases challenging some of the most troubling aspects of the war on terror. It is being used to challenge rendition claims. It is being used to challenge torture claims. It is 

being used a lot to challenge warrantless wiretapping, which, by 

the way, went on apace across the years. It is not a brand-new 

issue. 

And so when the executive branch—this one or any other—responds to serious claims of misconduct or illegality with blanket 

claims of secrecy, often telling the Federal judges that the material 

is too sensitive for even the judge to see, then I have a problem 

here that makes this hearing extra important, in my view. 

There is understandable concern that the executive can use these 

claims frequently to shield unlawful conduct, and that is what we 

are here to examine today. 

I will put the rest of my statement in the record, Chairman Nadler. 

Thank you. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDI- CIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

CIVIL LIBERTIES

Today we examine the state secret privilege, a common law doctrine that allows 

the government to protect sensitive national security information from harmful disclosure in litigation. 

Since it was first recognized by the U.S. Supreme Court in the 1953 case of U.S. 

v. Reynolds, this privilege has been used by Democratic and Republican AdministraVerDate 0ct 09 2002 14:19 May 22, 2008 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 H:\WORK\CONST\012908\40454.000 HJUD1 PsN: DOUGA
7

tions alike, often generating concern that—if not properly policed—the privilege 

might be misused to conceal embarrassing information whose public disclosure 

poses no genuine threat to national security. 

These concerns have increased because of the Bush Administration’s repeated use 

of the privilege, in the wake of the September 11th terrorist attacks, as a tool to 

dismiss cases challenging some of the most troubling aspects of its war on terror—

including rendition, torture, and warrantless wiretapping. 

When the Executive Branch responds to serious allegations of misconduct with 

blanket claims of secrecy—often telling federal judges that material is too sensitive 

for even the courts to see—there is understandable concern that the Executive may 

be using those claims as a subterfuge to shield embarrassing facts or unlawful conduct from judicial discovery. 

This hearing will help us explore three important issues presented by the state 

secret privilege.First, we need to determine whether judges are using procedures 

and standards that allow for meaningful review of governmental claims. Some in 

the civil liberties community are concerned that the courts are being overly deferential to the Executive Branch, reluctant to review evidence and make their own independent assessment of whether the secrecy claim is valid. 

Second, the hearing will help us examine whether there is any validity to continuing concerns about judicial expertise in handling secret information. In the fifty 

years since the Reynolds decision, numerous laws have been enacted that require 

the courts to review national security materials. These include the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act. 

Acting under this authority, courts routinely review classified evidence under procedures that are designed to protect against harmful disclosure of sensitive information, while still providing a fair opportunity for litigants who seek justice and accountability from our government. 

And, third, today’s hearing provides an opportunity for us to consider whether 

there is any need for congressional action. The American Bar Association, for example, recommends that there should be clear procedures and standards for state secret claims. Likewise, the bipartisan Constitution Project urges that courts be required to review the claims and ensure that cases are not dismissed prematurely.These organizations want to ensure that parties have a full and fair opportunity to discover non- privileged facts, and that appropriate orders are issued to 

protect material determined to be subject to the privilege. 

This Administration’s aggressive efforts to create an Imperial Presidency—an Executive Branch whose decisions remain secret and unchecked by Congress or the 

courts—raises important concerns about how claims of secrecy may impair our constitutional system of checks and balances. 

Our firm commitment to respect for the rule of law requires that we take these 

concerns seriously.

Mr. NADLER. I thank the gentleman. 

I would now like to introduce our panel of witnesses. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I would ask that other Members submit their 

statements for the record. Without objection, all Members will have 

5 legislative days to submit opening statements for inclusion in the 

record. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order of their seniority on the Subcommittee, alternating between majority and minority, providing that the Member 

is present when his or her turn arrives. Members who are not 

present when their turn begins will be recognized after the other 

Members have had the opportunity to ask their questions. The 

Chair reserves the right to accommodate a Member who is unavoidably late or only able to be with us for a short time. 

And I would now like to introduce our panel of witnesses, now 

that we have the boilerplate out of the way. 

8

The first witness is H. Thomas Wells, Jr., the president-elect of 

the American Bar Association. He is a partner and founding member of the firm Maynard, Cooper & Gale in Birmingham, Alabama. 

He earned his BA and his JD from the University of Alabama. 

Judith Loether is the daughter Albert Palya, one of the civilian 

engineers whose deaths were at issue in United States v. Reynolds, the 1953 Supreme Court case that established the modern understanding of the state secrets privilege. 

The Honorable Patricia Wald has had a distinguished legal career. She served as a judge of the United States Court of Appeals 

for the D.C. Circuit from 1979 to 1999, serving as chief judge of the 

D.C. Circuit from 1986 to 1991. Judge Wald was also a judge with 

the International Criminal Tribunal for the Former Yugoslavia 

from 1999 to 2001 and a member of the President’s Commission on 

the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction from 2004 to 2005. 

Patrick Philbin is a partner in the firm of Kirkland & Ellis. From 

2001 to 2005, Mr. Philbin served the Department of Justice as a 

deputy assistant attorney general in the Office of Legal Counsel, 

from 2001 to 2003 where he advised the Attorney General and 

Counsel to the President on issues related to the war on terrorism, 

and as an associate deputy attorney general from 2003. He is a 

graduate of Yale University and Harvard Law School. 

Kevin Bankston is a senior attorney with the Electronic Frontier 

Foundation. He is lead counsel in Hepting v. AT&T, the first lawsuit brought against the telecommunications company for its role 

in the NSA’s warrantless surveillance program, and is the coordinating counsel in the multidistrict litigation over the NSA program 

that has been consolidated before the Northern District of California Federal Court. He was recently named as a fellow at Stanford Law School Center for Internet and Society where he will conduct further academic research on the Fourth Amendment as applied to the Internet. That should be a relatively new field. 

Mr. Bankston received his JD in 2001 from the University of 

Southern California Law Center and received his undergraduate 

degree from the University of Texas at Austin. 

I am pleased to welcome all of you. 

Each of your written statements will be made part of the record 

in its entirety. I would ask that you now summarize your testimony 

in 5 minutes or less. 

To help you stay within that time limit, there is a timing light 

at your table. When 1 minute remains, the light will switch from 

green to yellow, and then red when the 5 minutes are up. 

The first witness I will recognize for 5 minutes is Mr. Wells. 

[Witnesses sworn.] 

TESTIMONY OF H. THOMAS WELLS, JR., PRESIDENT-ELECT, 

AMERICAN BAR ASSOCIATION 

Mr. WELLS. Thank you, Chairman Nadler, Ranking Member 

Franks, and distinguished Members of the Committee. 

My name is Tommy Wells, and I am here today in my capacity 

as the president-elect of the American Bar Association and at the 

request of our current president, William Neukom. Mr. Neukom is 

sending his regrets that he is unable to attend this hearing. 

9

The ABA thanks the Committee for inviting us to present the 

views of the association on the state secrets privilege. 

The state secrets privilege is a common-law privilege, the roots 

of which reach back to the beginning of the republic. The privilege 

shields sensitive national security information from disclosure in 

civil litigation. However, today, most public discussion focuses on 

the U.S. Supreme Court’s modern articulation of the privilege in 

United States v. Reynolds. 

During the past several years, the Government has asserted the 

state secrets privilege in a growing number of cases, including 

those involving fundamental rights and serious allegations of Government misconduct, which raise critical legal issues. In the absence of congressional guidance, courts have adopted divergent approaches. 

In recent years, there has been concern that courts are deferring 

to the Government without engaging in sufficient inquiry into the 

Government’s assertion of the privilege. Thus, courts may be dismissing meritorious claims leading to potentially unjust results. 

Federal legislation outlining procedures and standards for consideration of these privilege claims would facilitate the ability of 

the courts to act as a meaningful check on the executive branch’s 

assertion of the state secrets privilege. 

Concern about these circumstances led the ABA House of Delegates to adopt a policy that calls upon Congress to establish a 

standardized process designed to ensure that whenever possible 

cases are not dismissed based solely on the assertion of the state 

secrets privilege. The establishment of uniform standards and procedures will bring greater transparency and predictability to the 

process and benefit the system as a whole. My written statement 

outlines the specifics of the ABA recommendation in detail. 

Fundamentally, the ABA believes that courts should evaluate 

privilege claims in a manner that protects legitimate national security interests, while permitting litigation to proceed with nonprivileged evidence. Judicial review informed by evidence would ensure 

that Government assertions of necessity are truly warranted and 

not simply a means to avoid embarrassment. Moreover, cases 

should not be dismissed based on the state secrets privilege, except 

as a last resort. 

The legislation we envision would not require disclosure of information subject to the state secrets privilege to the plaintiff or to 

the plaintiff’s counsel and would not require courts to balance the 

interests of the plaintiff in accessing particular privileged information against the Government’s national security interests. 

It would also not require the Government to choose between disclosing privileged information and forgoing a claim or a defense. 

The Government would face such a choice only with respect to the 

information the court had already determined was not privileged. 

Many of the ABA recommendations are drawn from the procedures Congress established in the Classified Information Procedures Act. Under CIPA, Federal courts review and analyze classified information in criminal cases. The ABA’s policy respects the 

roles of all three branches of Government in addressing state secrets issues. 

10

The policy does not suggest that courts should substitute their 

judgments on national security matters for those of the executive 

branch. Instead, it provides that executive branch privilege claims 

should be subject to judicial review under a deferential standard 

that takes into account the executive branch’s expertise in national 

security matters. 

This is the proper role for the judiciary because courts routinely 

perform judicial review of decisions made by expert Government 

agencies and, as the Reynolds case explained, the secrets privilege 

is an evidentiary privilege, the type of issue courts rule upon with 

great regularity. 

Ultimately, we believe there is a need to protect both the private 

litigants’ access to critical evidence as well as our critically important national security interests. 

The ABA believes that Congress should establish confidential 

procedures offering ample opportunity for the Government to assert 

the privilege, meaningful judicial access to the evidence at issue to 

evaluate whether the privilege should apply, and chance for litigation to proceed with nonprivileged evidence. 

Thank you for considering the American Bar Association’s views 

on an issue of such consequence to ensuring access to our justice 

system. 

Thank you. 

[The prepared statement of Mr. Wells follows:]

11

PREPARED STATEMENT OF H. THOMAS WELLS, JR.


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Mr. NADLER. Thank you very much. 

Ms. Loether? 

TESTIMONY OF JUDITH LOETHER, DAUGHTER OF VICTIM

IN U.S. v. REYNOLDS

Ms. LOETHER. Mr. Chairman, Members of the Committee, I 

would like to start by saying that this morning I saw the statues 

outside that represented the majesty of law and the spirit of justice. I would like to think those principles do indeed always guide 

us in this great country. 

I am Judy Loether. I am an ordinary housewife from the suburbs 

of Boston. You might call me chief cook and bottle-washer. I have 

come to tell you my story. 

Six years ago, I did not know the first thing about the state secrets privilege. 

Almost 60 years ago, when I was just 7 weeks old, my father, an 

engineer for RCA, was killed in the crash of a B-29. This put the 

death of my father and my mother’s subsequent lawsuit against the 

United States government squarely in the center of the landmark 

case United States v. Reynolds. 

My mother remarried and, while growing up, I knew very little 

about my own father and the lawsuit. My mother got some money. 

I thought she had won. I never knew her case went to the Supreme 

Court. 

The death of my father was quite a mystery to me. The newspaper clippings in the attic had pictures of the wreckage and talked 

of secret missions and even cosmic rays. My uncle used to tell me 

that he thought the Russians blew up the plane. 

After I had my own children, I became very interested in this 

man who was my father, the man whose pictures and documents 

of life and death had resided in the attic. When the Internet came 

to my house, I searched for information about anything related to 

his work and his life. 

One day, I happened to type into the search engine ‘‘B-29 + accident.’’ It was only chance that brought me to accident-report.com 

which provides accident reports for Air Force accidents from 1918 

to 1953. My first thoughts were, ‘‘This might tell me about the secret project he was working on. This might tell me if the Russians 

blew up the plane!’’

When I read this report, I felt a great deal of disappointment as 

there was no information about the project, the mission, or the 

equipment. Instead, it contained a truly sad and very dark comedy 

of errors that led to the terrible death of my father and eight other 

men. 

Just some of these mistakes: With engine number 1 in flames, 

the pilot shut down the wrong engine, number 4; the engineer, 

charged with the task of cutting the fuel to the burning engine, cut 

the fuel to engine number 2. Now we have the largest bomber in 

the world flying on one of its four engines. What is more, the heat 

shield to be retrofitted into B-29s to prevent fires was never installed. There were many, many more mistakes. 

The report did spur me on to look for and find another little girl 

who had lost her father on that plane. It was through her that I 

learned about the Supreme Court case. 

24

That very day, I looked up the Reynolds decision on my computer. What I read there sent me on a journey that has brought 

me here today. I read a decision that hinged on this very same accident report, an accident report that the Government claimed told 

of the secret mission and the secret equipment. All I could think 

was, ‘‘No, it does not!’’

Part of the Reynolds decision stated: ‘‘Certainly, there was a reasonable danger that the accident investigation report would contain 

references to the secret electronic equipment which was the primary concern of the mission.’’

This accident report was not about secret equipment. This accident report was not about a secret mission. Even more telling, this 

accident report was not even classified as secret. And I now understood that my mother had lost her case. 

As time passed, I came to understand the significance of the Reynolds case in establishing the state secrets privilege. I learned that 

it was discussed in law school courses on national security law. It 

seemed to me that the case that allows the executive to keep its 

secrets was, at its very foundation, a gross overstatement by the 

Government to forward its own purposes, to get themselves a privilege. At what cost? The cost was truth and justice and faith in this 

Government. 

Five years ago, I stood in the woods in Waycross, Georgia, at the 

crash site. I thought about my father who spent his entire career 

working for the Government. His last thoughts must have been for 

the wellbeing of his family and who would take care of them. 

Mistakes were made on that plane, and the Air Force should 

have done the right thing. The average American who backs out of 

his driveway and accidentally runs over his neighbor’s mailbox will 

stop, walk up to his house, knock on the door, and own up to his 

mistake. However hard it is to look the fool, however hard it is to 

fork over the cash, it is simply the right thing to do, and it is how 

we all expect our Government to act when it makes a mistake. 

For the other families, for my father, my mother, my two brothers and me, my America did not see fit to do the right thing, to 

step up, admit to their mistakes, and compensate three widows and 

five little children. It was more important to get a privilege. 

I decided that day to try to let the people of this country know 

this is not the American way and is contrary to what I believe 

America stands for in the minds and hearts of its people. 

The judiciary cannot give up any of the checks and balances that 

make this country great. Judicial review must be the watchdog 

that guards against actions by the executive that chip away at the 

moral character of this country. 

Thank you. 

[The prepared statement of Ms. Loether follows:]

PREPARED STATEMENT OF JUDITH LOETHER

I’m Judy Loether. I am an ordinary housewife from the suburbs of Boston. You 

might call me Chief Cook and Bottle-Washer. I’ve come to tell you my story. 

Six years ago, I didn’t know the first thing about the state secrets privilege. 

Almost sixty years ago, when I was just seven weeks old, my father, an engineer 

for Radio Corporation of America (RCA, an Air Force contractor), was killed in the 

crash of a B-29 Superfortress. This put the death of my father and my mother’s subsequent lawsuit against the United States government squarely in the center of the 

landmark case United States v. Reynolds. 

25

My mother remarried and while growing up I knew very little about my own father and the lawsuit. My mother got some money; I thought she had won. I never 

knew her case had gone to the Supreme Court. The death of my father was quite 

a mystery to me; the newspaper clippings in the attic had pictures of the wreckage 

and talked of secret missions and cosmic rays. My uncle used to tell me that he 

thought the Russians blew up the plane. After I had my own children I became very 

interested in this man who was my father, the man whose pictures and documents 

of life and death had resided in the attic. 

When the Internet came to my house I searched for information about anything 

related to his work and his life. One day I happened to type into the search engine 

B-29 + accident. It was only chance that brought me to accident-report.com which 

provides accident reports for Air Force accidents from 1918 to 1953. My first 

thoughts were that this might tell me about the secret project he was working on, 

this might tell me if the Russians blew up the plane! When I read this report I felt 

a great deal of disappointment as there was no information about the project, the 

mission, or the equipment. Instead, it contained a truly sad and very dark comedy 

of errors that lead to the terrible death of my father and eight other men. Just some 

of these terrible mistakes: with engine number 1 in flames, the pilot shut down engine number 4 by mistake; the co-pilot, a survivor, thought he corrected that by 

turning back on engine number 4, but he didn’t; finally, the engineer, charged with 

the task of cutting the fuel to the burning engine, cut the fuel to engine number 

2 by mistake. Now we have the largest bomber in the world, flying on only one of 

its four engines. What’s more, a heat shield to be retrofitted into B-29s to prevent 

fires was never installed. 

The report did spur me on to look for and find another little girl who had lost 

her father on that plane, now grown and living in my own state of Massachusetts. 

It was through her that I learned about the Supreme Court case and that very day 

I looked up the Reynolds decision on my computer. What I read there sent me on 

a journey that has brought me here today. I read a decision that hinged on this very 

same accident report, an accident report that the government claimed told of the 

secret mission and the secret equipment. All I could think was, no, it doesn’t! Part 

of the Reynolds decision stated: 

‘‘Certainly there was a reasonable danger that the accident investigation report 

would contain references to the secret electronic equipment which was the primary 

concern of the mission.’’

This accident report was not about secret equipment. This accident report was not 

about a secret mission. Even more telling, this accident report was not even 

stamped SECRET. I now understood that my mother had lost her case, that she had 

settled for less money than the Federal court had awarded her. How could the government lie in the Supreme Court of the United States of America!? 

As time passed I came to understand the significance of the Reynolds case in establishing the State Secrets Privilege. I learned that it was discussed in law school 

courses on national security law. The more I understood what had happened to my 

mother and why, the more betrayed I felt. It seemed that the case that allows the 

Executive to keep its secrets was, at its very foundation, a gross overstatement by 

the government to forward its own purposes; to get themselves a privilege. At what 

cost? The cost was truth and justice and faith in this government. 

Five years ago I stood in the woods in Waycross, Georgia, the crash site. I thought 

about my father who spent his entire career working for the government, developing 

technical equipment for the B-29. He sacrificed his life for it. His last thoughts must 

have been for the wellbeing of his family and who would take care of them. Mistakes were made on that plane and the Air Force should have done the right thing. 

The average American who backs out of his driveway and accidentally runs over his 

neighbor’s mailbox, will stop, walk up to his neighbor’s house, knock on the door, 

and own up to his mistake. However hard it is to look the fool, however hard it is 

to fork over the cash, it is simply the right thing to do, and it’s how we all expect 

our government to act when it makes a mistake. For the other families, for my father, my mother, my two brothers and me, my America did not see fit to do the 

right thing, to step up, admit to their mistakes, and compensate three widows. It 

was more important for them to get a privilege. I decided that day to try to let the 

people of this country know that an injustice had been done. This is not the American way, and is contrary to what I believe America stands for in the minds and 

hearts of its people. 

The judiciary cannot give up any of the checks and balances that make this country great. Judicial review must be the watchdog that guards against actions by the 

Executive that chip away at the moral character of this country.

Mr. NADLER. Thank you very much. 

26

Our next witness will be Judge Wald. 

TESTIMONY OF THE HONORABLE PATRICIA M. WALD, RETIRED CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE D.C. 

CIRCUIT 

Judge WALD. Chairman Nadler, Chairman Conyers, Committee 

Members, thank you for inviting me to testify today on the state 

secrets privilege. My testimony is going to deal with the capability 

of and the tools Federal judges need to administer the privilege in 

a manner that will not endanger national security at the same time 

it will permit litigants to the maximum degree feasible to pursue 

valid civil claims for injuries incurred at the hands of the Government or private parties. 

So let me make a very few points in summarizing my testimony. 

The first is I agree very much, especially with the letter which 

was submitted by William Webster, the former FBI and CIA director and former Federal judge, and with the prior ABA presidentto-be, that there is a wide consensus in the legal community, as the 

Bar Association report showed, of the importance of the issue of 

state secrets, regardless of what the percentage is of the increase 

in its application to the cases that are increasingly coming into the 

courts today, and, more important, I think the varying results of 

leaving the implementation of the privilege totally within the discretion of individual judges. That, I believe, militates toward the 

exercise by Congress of what I believe is its acknowledged power 

under Article I Section 8 and Article III Section 2 to prescribe regulations concerning the taking of evidence in the Federal courts. 

Again, as has already been pointed out, we have already had legislation in CIPA to take care of the criminal side with its classified 

information, in FISA in proceedings where information that was 

obtained under FISA, and especially I would like to point out, in 

the FOIA cases of which the D.C. Circuit had a great many—many 

of which I participated in—that it was Congress itself in 1974 that 

passed an amendment through FOIA Exemption 1 saying, when a 

request was made for information that might be classified, that the 

court not only had a duty to ensure that it had been classified according to the proper procedures, but that the court could itself 

look at the reasonableness of the classification. 

Now I will tell you, in my experience, courts have been very cautious and courts have been very, very cognitive of national security 

needs in using that kind of power. FOIA did not require the court 

to look at the actual evidence, but it did allow them, if the court 

found it necessary, and, in some cases, where there had been what 

the court ultimately found to be bad faith exercises of the classification power, they have done it. So we already do have a precedent where courts look at those materials. 

I also will tell you that courts look at national security materials 

and make a decision whether or not they have been validly classified in other contexts. I myself have participated in some of those 

cases, not only in the FOIA Exemption 1 cases, but on appeal of 

the CIPA cases. We have also had many cases—not many, but at 

least some cases—in which former CIA agents, et cetera, attempt 

to write books, articles, and according to their agreement to have 

them looked at by the agency before they are disclosed, there have 

27

been disputes which have gone to court. So it is not that unusual 

for Federal judges to actually look at classified material or secret 

material. 

I believe that even the Reynolds case—not even the Reynolds

case—but the Reynolds case had as its bottom assumption that it 

was a judicial function. It was the court’s function, not the executive’s function to decide ultimately in a dispute whether or not the 

material did present a ‘‘reasonable danger’’ to national defense or 

foreign relations. Ultimately, the judge makes that decision, not 

the Government. 

Now the problem that has arisen in many of these cases, the 

ones that I have read, is that the courts sometimes are so deferential that if the Government makes in its affidavits even a prime 

facie plausible claim of state security being involved, they will shy 

away and they will not go beyond that, and I think that legislation 

which required the courts to look at particular things, not to dictate whether or not something will be national security or will not 

be national security, but to actually, as it were, go through certain 

loops, will make judges themselves more aware of, more sensitive 

to the interests that are involved, and while ultimately if they decide something is a state secret, as Mr. Wells said, there is nothing 

in any legislation that I know about that would portend to tell 

them, ‘‘Well, we will release it anyway’’ or ‘‘We will balance it.’’

It is not like the executive privilege. Remember, these other 

privileges, the executive privilege, they can be balanced. If the litigants’ need is bad enough or is compelling enough, they can actually be required to be disclosed. There is nothing in this legislation 

or anybody proposing that that be true in this case. 

The other two points I would make is that the legislation, I 

think, should provide an array of alternatives that the court could 

look at, could substitute, as it does in CIPA. They might not need 

to be the same. I am aware, having read Mr. Philbin’s testimony, 

CIPA cases are not exactly like the kind of civil cases because the 

Government—ultimately, it is their prosecution, and they can go 

away from it if they decide that it is more important than providing any substitute. 

But we have had 20 years of experience, and courts, I think, 

have been pretty good. I have seen some of those appeals with the 

CIPA material in them, and they have been pretty good at creating 

alternatives that did not have classified information, summaries of 

information, stipulations by the Government and the parties which 

did away with the need to actually introduce the material in there. 

So I think we want to avail ourselves of that kind of experience. 

The last quick point I will make is what I think is terribly important is that we do not dismiss these cases right at the pleading 

stage, if at all possible, unless it is clear under the Federal rules 

of civil procedure that there is no way this particular civil claimant 

can make a case without the material. Then I think you should let 

the civil claimant proceed along the road to discovery of non-secret 

material until the state secret privilege has been litigated and decided because a large number of cases get dismissed at the pleading stage. 

There have been many studies on this which show that if somebody pleads something and then somebody introduces one piece of 

28

information, they immediately convert it to summary judgment and 

you are gone. I think that special caution has to be taken in these 

kinds of cases, and especially in the standing realm, which, I believe, Mr. Bankston will get to, whereby a person cannot even 

make out the standing to bring the case. 

Why can’t they make it out? I think this is interesting. Because 

the court doctrines of standing over the last 30 years—and I have 

written about this extensively—has become very, very complex—

causation, redressability. It is virtually impossible in many cases to 

get standing, but those are court-created doctrines. Those are not 

legislative, and they are not even constitutional. They are part of 

case in controversy, but they are court created. 

So I think, in a situation where standing is dependent upon state 

secrets, at least the case should not be dismissed until the state secrets business has been litigated and the claimants have been 

given every opportunity to try to make out their case by further 

discovery. 

So, in concluding, I would say I think that we have some of the 

tools already, some of the experience in the Federal courts, and 

with a legislation that would require judges go through certain procedures, just the way they do in habeus—the habeus statutes lay 

down what you have to do and who comes next and what then has 

to be shown, et cetera—I think that they would contribute mightily 

toward making it a fairer process. 

Thank you. 

[The prepared statement of Judge Wald follows:]

PREPARED STATEMENT OF THE HONORABLE PATRICIA M. WALD

Chairman Nadler, Committee Members:

Thank you for inviting me to testify briefly today on the state secrets privilege 

which is being increasingly raised as a determinative issue in federal court civil litigation involving alleged violations of civil and constitutional rights. My testimony 

will deal with the capability of federal judges to administer the privilege in a manner that will not endanger national security at the same time it permits litigants 

to the maximum degree feasible to pursue valid civil claims for injuries incurred at 

the hands of the government or private parties. In that regard let me make a few 

points. 

1. The state secrets privilege is a common law privilege originating with the judiciary which enunciated its necessity and laid down some directions for its scope in 

cases going back to the nineteenth century but more recently highlighted in United 

States v Reynolds, 345 U.S. 1 (1953). Reynolds recognized the government’s privilege in that case to refuse to reveal an airplane accident report in private injury 

litigation because of a ‘‘reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged’’ Id at 10. (as you undoubtedly know it turned out that there were no such 

secrets in the report). Since Reynolds, courts have been deciding cases where the 

government raises the privilege on their own in terms of its scope and its consequences and producing often inconsistent results. There is a wide consensus in the 

legal community as the American Bar Association Recommendations and Report 

demonstrate that the importance of the issue and the varying results of leaving the 

implementation of the privilege totally within the discretion of individual judges 

militate toward the exercise by Congress of its acknowledged power under Article 

I, Section 8 and Article III, Section 2 of the U.S. Constitution to prescribe regulations concerning the taking of evidence in the federal courts. Again as you are aware 

Congress has legislated many times on the Rules of Evidence governing federal 

court procedures including those for proceedings like habeas corpus and FISA proceedings that may involve matters of national security. In the criminal area, the 

Classified Intelligence Procedures Act (CIPA) provides a relevant model for alternatives to full disclosure of classified information which allow a prosecution to continue while affording a defendant his or her due process rights. The time is now 

29

ripe for such legislation in the civil arena; litigants and their counsel are confused 

and unsure as to how to proceed in cases where the government raises the privilege; 

the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it. 

2. Although at this juncture we are not discussing specific draft bills, I believe 

there are several principles which need to be considered in such legislation. Many 

come from the cases themselves, others from the CIPA legislation , my own judicial 

experience with cases involving national security information such as the FOIA, and 

still others from the ABA Report and from a Judicial Conference Advisory Committee Report back in 1969. dealing with codification of the privilege (hereafter Advisory Committee).These principles I believe are capable of being observed by federal judges without making their jobs unduly onerous and are within their competence to administer, as proven by their current use in other kinds of litigation. 

They will, I also believe, contribute to the uniformity of the privilege’s application 

throughout the federal judiciary and to both the reality and the perception of fairness for deserving litigants with valid civil claims. 

(a) Reynolds made it clear and subsequent cases have verbally agreed that 

whether the evidence sought to be withheld by the government does present ‘‘a reasonable danger’’ to national defense or foreign relations (the precise formulation of 

national security risk varies in the cases but is an issue to be accorded serious 

thoughts by legislators; too broad a definition could encompass virtually anything 

in which the government has an interest in the modern day globally interdependent 

world) is ultimately a matter for the judge, not the government to decide. Thus it 

should not be enough—though some cases appear to come close to saying it is—that 

a prima facie plausible claim of state secret be raised by the government. In this 

sense it is different from some other contexts in which secrecy and national security 

are involved such as the FOIA. There in Exemption 1, the government may withhold from public disclosure material that has been duly classified under Executive 

Order criteria if that classification is reasonable. Under a specific amendment in 

1974 however, the court has the authority to look at and decide de novo (though 

giving ‘‘substantial weight’’ to government affidavits) whether the classification is 

reasonable. The courts’ use of that authority I will say has been cautious to the extreme, but it does exist and on occasion has been employed to reject unjustified 

claims. A case for more intense scrutiny of the state secret privilege by judges can 

be made on the basis that the need for such information is more compelling in the 

case of a civil plaintiff than any member of the public as in FOIA and in the fact 

that to qualify for Exemption 1, the material must have been reasonably classified 

under Executive Order criteria—a requirement that is not to my knowledge a component of the state secrets privilege per se. But the FOIA example makes a basic 

point that judges do deal with national security information on a regular basis and 

can be entrusted with its evaluation on the relatively modest decisional threshold 

of whether its disclosure is ‘‘reasonably likely’’ to pose a national security risk. To 

my knowledge there have been no court ‘‘leaks’’ of any such information There is 

no doubt that such a decision is a weighty one but if our courts are to continue their 

best tradition of constitutional guardianship it is an obligation that they cannot 

avoid, And the potentiality of a serious judicial review of the material in conjunction 

with the governments affidavits on the need for nondisclosure even in a courtroom 

setting will itself pose a deterrent to the dangers of the privilege being too ‘‘lightly 

invoked’’ (Reynolds) 

(b) This brings me to the question of whether unlike FOIA which allows but does 

not require a judge to look at the allegedly risky material himself in camera rather 

than relying on the government’s affidavits, state secret legislation should require 

the judge to himself or herself review the material before making a decision on 

whether the privilege applies. I am of the view that it should. The stakes in civil 

litigation—as I said—tend to be higher than in FOIA for the plaintiff and our traditions of fair hearing dictate that to the maximum degree feasible all relevant evidence be admitted in judicial proceedings. Reynolds itself left open the possibility 

that in some contexts where the plaintiffs’ showing of need was not compelling, the 

judge need not do so, and as I have related ,in FOIA cases the judge may decide 

not to. On the other hand the judge in CIPA and in FISA cases does regularly inspect the material. in camera. I read the ABA Report to recommend a similar approach here. Only in that way can he fulfill the judicial obligation to insure a fair 

hearing but just as important only if he sees the evidence for himself can he make 

the CIPA like decision whether there are alternative ways than its presentation in 

original form to satisfy the plaintiff’s need but not to impugn national security as 

well as whether the objected to material can be segregated from other material in 

the same document that does not qualify for protection. (I do not discount the possibility that an extraordinary case might arise where both the government and the 

30

judge agree that his examination of the secret evidence would be unduly risky and 

alternatives c an be put in place that will insure fairness but this should not be 

the usual or ev en a frequent practice). My own experience with highly sensitive 

information is that our court security safekeeping facilities and procedures can insure its protection; law clerks or masters can be given clearances to handle it and 

if even that is not possible, the government’s own cleared employees can be sent 

over to stand guard outside the chambers door while the judge reads it. (I have had 

this done on at least one occasion). 

(c) The thrust of legislation on state secrets should be to emphasize judicial flexibility and creativity in finding alternatives to the original material that will permit 

the case to proceed whenever possible. Reynolds itself stressed this approach and 

it has been a hallmark of reform efforts on the privilege since the 1969 Advisory 

Report(if claim of state secrets is sustained and party is deprived of material evidence, judge shall make further orders in interest of justice including striking of 

witness testimony, finding against government on relevant issue, or dismissing action). Since 1969 however CIPA has listed and judges have additionally used less 

draconian measures such as requiring the government to produce an unclassified 

document with as much of the material as possible in the original, stipulating to 

facts that the original material was designed to prove or contravert, or a summary 

of the controversial document that allows the defendant ‘‘substantially the same 

ability to make his defense’’. 18 USC app 3 Sec. 6. 

(d) Another aspect of judicial flexibility should require a judge to make a conscious decision after a state secrets claim is raised whether the plaintiff’s case may 

proceed to the next stage without the secret material. Premature dismissals should 

be eschewed. Unless then without such material a party’s affirmative case or defense surely falls short of the threshold required by the federal rules of civil procedure (Rules 12(b)(6) and 12(c), the party suffering disadvantage from nondisclosure 

should be allowed to supplement their case by additional discovery whenever it 

could reasonably bolster their case. This actually is a very important point because 

a high percentage of cases are dismissed at the pleading stage without additional 

discovery being allowed, and the interposition of the secrets claim makes it fair to 

mandate special caution in such cases to let the party play out its nonsecret [O1] 

case. Also worth noting is the difficulty of plaintiffs who cannot show standing to 

bring the suit unless they are allowed to see secret evidence. Here particular care 

should be taken to allow maximum access to nonsecret discovery or even postponement of the standing decision until the secrecy claim is decided. Standing is after 

all a judicial doctrine which has become increasingly onerous and complex in the 

past few decades; since state secrets is also a judicially implemented doctrine the 

two should be brought into some form of coexistence that does not fatally disadvantage valid civil claimants. As the ABA Report pointed out the Totten and Tenet 

cases involving espionage employment contracts do present an absolute bar to 

justiciability but other cases do not. I agree with the Report’s suggestion as well 

that the government not be required to immediately plead’’ confirm or deny ‘‘at the 

pleading stage when the secrets claim is planning to be raised. FOIA practice provides an analog—the government has been allowed to raise a ‘‘neither confirm nor 

deny’’ answer as to whether a requested document exists in its pleadings in Exemption 1 cases. 

(e) Once the government raises a secrets claim, the question arises as to how it 

will be litigated and by whom. The government is certainly required by affidavit or 

testimony to justify the claim but where and who can take part in the litigation at 

that stage may be an issue. The 1969 Advisory Committee Report permitted the 

judge to hear the matter in chambers ‘‘but all counsel are entitled to inspect the 

claim and showing and to be heard thereon’’, subject to protective orders. In general 

every effort should be made to provide the regular counsel with the necessary clearances to litigate the claim, and where that turns out to be impossible to substitute 

counsel who have such clearances. In some cases the validity of the secrets claim 

can be litigated at a level which does not require special clearances. The FOIA cases 

have produced a useful tool known as the Vaughn index which requires the government to create a line by line justification of withheld material with the reasons for 

nondisclosure. This device has permitted the adversary system to operate at some 

level to litigate secrecy claims without revealing the material itself. Another device 

used successfully by our district court was the appointment of a master with the 

necessary clearances to organize and separate out sample categories of documents 

in a voluminous submission for which total secrecy was originally claimed under 

FOIA Exemption 1 and to present them to the judge with the arguments pro and 

con for the judges decision. As a result 64% of the material was eventually released. 

See In re United States Department of Defense, 848 F2d 232 (1988). In short, judges 

are used to handling confidential material through sealing, protective orders against 

31

disclosure by counsel, screened masters, and in camera or even ex parte submissions. But the need for guidance and a protocol for using such devices in a uniform 

manner is dominant. The mere exercise of going through the required procedural 

steps will concentrate the judge’s attention and sharpen his or her awareness of the 

interests involved at each stage. 

(f) Dismissal of a private party claim should be a last resort if it is based on the 

unavailability of state secret evidence. There will of course be cases where the judge 

ultimately and rightly decides that a state secret of significant consequence and risk 

cannot be revealed even under safeguards but I suggest legislators give some 

thought as to whether there are any compensatory remedies to the injured party 

in such cases. Or conversely whether when a secrets claim is upheld at the same 

time the court finds it is covering governmental misbehavior if some form of accountability is in order. Finally expedited appeal—interlocutory in many cases—

should be allowed on a truncated record (sealed if necessary) with cutback briefing 

and absent any requirement for a detailed written opinion by either court, although 

I do think a few sentences of explanation are always necessary for any kind of 

meaningful review at any level. But the expedited appeal—especially if the government loses its claim—should insure against prolonged delays in the trial itself. 

Thank you for this opportunity to present my views. I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the 

right balance between national security needs and fair judicial proceedings. I believe 

base d on my experience as a federal judge and my international war crimes experience that such a balance can be struck and that our federal judges are already acquainted with the use of many of the proper tools for doing so. I have confidence 

in the Committee’s ability and I encourage it to tackle the task.

Mr. NADLER. Thank you. 

Mr. Philbin is now recognized for 5 minutes. 

TESTIMONY OF PATRICK F. PHILBIN, PARTNER,

KIRKLAND & ELLIS 

Mr. PHILBIN. Thank you, Chairman Nadler, Member Fanks, and 

Members of the Subcommittee, for the opportunity to appear to address the important subject of today’s hearing, the state secrets 

privilege. 

When I served as an associate deputy attorney general at the Department of Justice from 2003 to 2005, I gained some expertise relating to the privilege and the critical function it plays in preventing the disclosure of national security information in litigation. 

I continue to watch developments in this area of the law with 

some interest, although at a distance. 

I should emphasize that I am expressing purely my personal 

views here today, and I am not here in any representative capacity. 

I would like to focus on three points in my testimony. 

First, any discussion of possible legislation altering or regulating 

the state secrets privilege should begin with the recognition of the 

vital function the privilege serves. It is a mechanism by which the 

United States can ensure the secrecy of information related to foreign affairs and national security that would do harm to the United 

States if publicly disclosed. 

The Supreme Court recognized the importance of the privilege in 

United States v. Reynolds. As explained, it is a privilege. When 

properly invoked, it is absolute. The court explained, ‘‘Even the 

most compelling necessity cannot overcome the claim of privilege if 

the court is ultimately satisfied that military secrets are at stake.’’

The privilege plays a particularly vital role when, as now, the 

Nation is involved in an armed conflict. The United States remains 

locked in a struggle with al-Qaida, an enemy that operates by seVerDate 0ct 09 2002 14:19 May 22, 2008 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 H:\WORK\CONST\012908\40454.000 HJUD1 PsN: DOUGA
32

crecy and stealth and whose primary objective is to unleash surprise attacks on the civilian population of the United States. 

In combating al-Qaida, superior intelligence is essential for the 

Nation’s success, yet currently pending litigation would, without 

interposition of the state secrets privilege, force the disclosure of 

innumerable details concerning the sources and methods of foreign 

intelligence operations, signals intelligence operations, and other 

activities the United States conducts in the ongoing conflict. The 

state secrets privilege plays a critical role in ensuring that such secrets, which would be welcome to our enemies, are not disclosed. 

Second, any approach to legislating in this area must also begin 

with the recognition that the state secrets privilege is not merely 

a common-law evidentiary privilege subject to plenary regulation 

by Congress. To the contrary, the privilege is rooted in the constitutional authorities assigned to the President under Article II as 

Commander in Chief and representative of the Nation in foreign affairs. As the Supreme Court has explained in discussing the protection of national security information, ‘‘The authority to protect such 

information falls on the President as head of the executive branch 

and as Commander in Chief.’’

In the United States v. Nixon, the Supreme Court expressly recognized that the privilege has its underpinnings in the Constitution. The court explained generally that to extent a claim of privilege relates to the effective discharge of the President’s powers, it 

is constitutionally based, and it expressly recognized that ‘‘a claim 

of privilege on the ground that information constitutes military or 

diplomatic secrets necessarily involves areas of Article II duties assigned to the President.’’

Given the unique constitutional role of the executive with respect 

to the protection of diplomatic intelligence and national security information, any legislation that would seek to reform the state secrets privilege as it is currently applied by the courts must be undertaken with the utmost caution. Legislation that would undermine the executive’s authority to protect national security information would run a grave danger of impermissibly encroaching on authority assigned by the Constitution to the executive branch. 

Third and finally, I would like to address and caution against a 

particular legislative change that may be considered. My comments 

here are necessarily tentative because there is not a specific legislative proposal before the Committee, but I think it bears noting 

that Congress should tread carefully in considering any legislation 

that would purport to alter substantially the deferential standard 

of review the courts apply in evaluating a claim of state secrets 

privilege. 

In particular, I believe it would be a mistake to attempt to have 

Article III judges substitute their own judgment concerning what 

information should remain secret without deference to the judgment of the executive. Such a standard of review would be a 

marked departure from the law established by the Supreme Court. 

The Reynolds court properly emphasized that it remains the duty 

and the responsibility of the courts to determine whether the privilege had been validly invoked in any particular case. The mere assertion the privilege by the executive does not require a court to 

accept without question that the material involved is a state secret. 

33

As the Supreme Court put it, ‘‘Judicial control over the evidence in 

a case cannot be abdicated to the caprice of executive officers.’’

Nevertheless, the court also made clear that a judge should not 

simply substitute his or her judgment for that of the executive 

branch. Rather, a court should proceed cautiously, showing deference to the judgment of the executive, concerning what constituted a secret that might do harm to the Nation if disclosed. 

In the United States v. Nixon, the court further explained that 

where the executive makes a claim of privilege on the ground of 

military or diplomatic secrets, the courts have traditionally shown 

the utmost deference to presidential responsibilities. That deferential standard of review is itself infused with constitutional significance based upon the separation of powers and unique authorities 

of the executive under Article II. 

The assertion of state secrets privilege is at its heart an exercise 

of a policy judgment concerning how the disclosure of certain information may affect the foreign affairs, the military and intelligence 

posture, or more broadly the national security of the United States. 

Time and again, the Supreme Court and lower courts have cautioned that such judgments are constitutionally assigned to the executive and that the judiciary is not institutionally suited to making them. 

Thus, in the context of a court evaluating a claim by executive 

that certain information must remain classified and protected from 

disclosure, the Supreme Court has cautioned that ‘‘What may seem 

trivial to the uninformed may appear of great moment to one who 

has a broad view of the scene and may put the questioned item of 

information in its proper context.’’ The quote went on to explain 

that the Director of Central Intelligence is ‘‘familiar with the whole 

picture as judges are not’’ and that his decisions upon what must 

be kept secret are, therefore, worthy of great deference. 

Any legislative proposal, therefore, that would attempt to alter 

the standard of review established under Reynolds and Nixon by 

permitting an Article III judge to substitute his or her independent 

judgment for that of the executive concerning the need for secrecy 

on a particular piece of information would be a mistake. Attempting to assign the courts that role by legislation would at a minimum raise a serious question of impermissible encroachment on 

authority assigned to the executive under the Constitution. 

Thank you, Mr. Chairman, for the opportunity to address the 

Committee. I would be happy to address any questions the Members may have. 

[The prepared statement of Mr. Philbin follows:]

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PREPARED STATEMENT OF PATRICK F. PHILBIN


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Mr. NADLER. Thank you. 

I will now recognize Mr. Bankston for 5 minutes. 

TESTIMONY OF KEVIN S. BANKSTON, SENIOR ATTORNEY, 

ELECTRONIC FRONTIER FOUNDATION 

Mr. BANKSTON. Good morning, Chairman Nadler, Ranking Member Franks, Chairman Conyers, and the Members of the Committee. 

Thank you for inviting me to testify today on behalf of the Electronic Frontier Foundation, a nonprofit member-supported public 

interest organization dedicated to protecting privacy and free 

speech in the digital age. 

I am here today because EFF represents AT&T customers in a 

lawsuit against that company for cooperating with the National Security Agency’s warrantless electronic surveillance program by disclosing the contents of tens of millions of Americans’ phone calls 

and e-mails, literally billions of domestic communications, to the 

NSA. Yet it is also co-coordinating counsel for 38 other NSA-related 

lawsuits consolidated in the Northern District of California. 

EFF filed its complaint against AT&T 2 years ago this Thursday. 

Yet our case, like all the others, has barely moved out of the starting gate. We are still litigating over whether or not these cases can 

proceed at all, and the reason for that is the state secrets privilege. 

The Administration has asserted an astonishingly broad claim 

that the courts cannot hear any case about the NSA’s warrantless 

wiretapping and that such cases must be dismissed at the outset. 

Indeed, the Administration goes so far as to argue that even if the 

court were to find in our case that the constitutional and statutory 

privacy rights of tens of millions of Americans were violated, as we 

allege, the court cannot be permitted to so rule because doing so 

would confirm our allegations.’’

Frankly, Mr. Chairman, to call such logic Kafkaesque would be 

an understatement. The breadth of the Administration’s state secrets claim is particularly astonishing considering that it is simply 

not a secret that AT&T and other telephone carriers helped the 

NSA. 

Rather, there have been extensive public discussions, often at the 

behest of the Administration, ranging from the testimony of the 

previous Attorney General to the Director of National Intelligence’s 

interview with the El Paso Times to the Administration’s own deliberate leaks to newspapers, confirming this fact. 

Indeed, as one court recently said, much of what is known about 

the terrorist surveillance program was spoon-fed to the public by 

the President and this Administration. 

The Administration apparently believes the disclosures it makes 

about the program to politically defend its actions or to urge this 

Congress to pass immunity for the telephone companies will not 

harm the national security, but that allowing the judicial branch 

to examine the legality of its conduct and that of the carriers somehow will. 

But the Administration should not be allowed to share or withhold information for its own political advantage or to avoid accountability. Rather, as Chief Judge Vaughn Walker ruled last 

summer when rejecting the Administration’s motion to dismiss the 

44

AT&T case, ‘‘If the government’s public disclosures have been 

truthful, revealing whether AT&T assisted in monitoring communication content should not reveal any new information that would 

assist a terrorist and adversely affect national security. And if the 

government has not been truthful, the state secrets privilege 

should not serve as a shield for its false public statements.’’

EFF believes that Congress can and should reform the commonlaw state secrets privilege to ensure that it cannot be used to shield 

wrongdoing. Such reform legislation should provide fair and secure 

procedures by which the court is empowered to privately examine 

purportedly secret evidence and evaluate the Government’s claims 

of state secrets. 

And EFF agrees with the ABA that any reform legislation should 

allow the courts to make every effort to avoid dismissing a civil action based on the privilege. EFF also believes that for certain cases 

where fundamental rights are at issue, Congress should ensure 

that a decision on the merits may be reached even if critical evidence is privileged, based on the court’s in camera and ex parte 

evaluation of that evidence. 

Indeed, as described at length in my written statement, we believe Congress has already done so for cases concerning the legality 

of electronic surveillance as a part of FISA at 50 USA 1806(f), 

though the Government disagrees and the court has yet to address 

this issue. 

Thus, Mr. Chairman, in addition to considering broader state secrets reform, EFF urges Congress to move immediately to clarify 

that FISA’s existing security procedures, which have been used for 

30 years without any harm to national security, apply in cases like 

EFF’s suit against AT&T. We respectfully submit that such a clarification of FISA’s procedures and not retroactive immunity is the 

appropriate response to claims by telephone carriers that they were 

acting in good faith but are prevented from defending themselves 

because of the Government’s invocation of the privilege. 

To conclude, Mr. Chairman, thank you for shining a spotlight 

today on the Administration’s efforts to prevent the judiciary from 

enforcing Congress’s laws using the shield of the state secrets privilege. EFF looks forward to working with this Committee to help 

achieve sensible state secrets reform and to rebuff an executive 

that insists that some branches of Government are more equal 

than others. 

I look forward to your questions. 

Thank you. 

[The prepared statement of Mr. Bankston follows:]

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PREPARED STATEMENT OF KEVIN S. BANKSTON


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Mr. NADLER. I thank the witnesses. 

And I will begin the questions by recognizing myself for 5 minutes. 

Mr. Philbin, as I gather, you are raising some constitutional concerns, but your bottom line simply seems to be that Congress 

should be careful in legislating this area. Is that correct? 

Mr. PHILBIN. That is the bottom line of the testimony because I 

do not have familiarity with——

Mr. NADLER. You are not saying that the executive’s power is absolute and Congress cannot legislate and limit or govern the way 

the privilege is applied, as we have, for instance, in CIPA for criminal cases? 

Mr. PHILBIN. Well, let me respond this way, Mr. Chairman. In 

CIPA, yes, I believe Congress had the authority to enact the procedures in CIPA because they are purely procedures, and they end 

up leaving it ultimately at the discretion of the Attorney General 

to say——

Mr. NADLER. But under certain circumstances, if the evidence 

cannot be used, the Government is penalized by the case being dismissed. 

Mr. PHILBIN. That is true. The Government——

Mr. NADLER. So, if we were to enact legislation along similar 

lines saying, under these circumstances, either the evidence must 

be revealed, at least to the court, and the court can insist that the 

evidence, in its judgment, can be revealed to the public, if it thinks 

it is not properly secret, or that a summary should be revealed to 

the public, or that if this cannot be done because it really is secret, 

then the inference, depending on the equities, must be for the Government or must be for the plaintiff, that would be within our 

rights to do as we have in CIPA. 

Mr. PHILBIN. Well, Mr. Chairman, there was a lot built into that 

question. So let me try to answer it this way. Depending on the 

standard that was put in the legislation for the court determining 

that this substitution is okay or this one is not or this can be disclosed, if the court is being told, ‘‘You independently determine that 

without deference to the executive,’’ I think there is a constitutional issue. 

Mr. NADLER. Well, wait a minute. Deference. Then the court 

would independently determine it. The degree of deference is up to 

the courts ultimately, as in anything else. 

Mr. PHILBIN. Well——

Mr. NADLER. You can write, ‘‘You should be deferential,’’ but how 

that is interpreted is going to be in the court. 

Mr. PHILBIN. That may be, but then, you see, again, Mr. Chairman, the reason I am being hesitant about giving absolute answers 

is I believe the devil is in the details of specific statutory language. 

Mr. NADLER. Okay. 

Now you would admit—or would you—in the case that Ms. 

Loether testified about—and this is a 50-year-old case, so we are 

not worried about casting any aspersions on individuals—clearly, 

what happened there was the Government at the time, whoever it 

was, lied. It said that this accident report involved secret information. It did not. The Government committed a fraud on the court. 

As a result of that, an unjust result happened, and you would 

55

agree that we should strive to prevent such occurrences in the future, given the fact that Government officials being human beings, 

we cannot assure that no one will ever lie again. 

Mr. PHILBIN. Yes, Mr. Chairman. I agree. Taking the facts to be 

as they have been described, yes, that was wrong, and it is not the 

sort of situation that we should want to be repeated. No. 

Mr. NADLER. And we should have procedures to make sure it 

does not happen as far as we can. 

Mr. PHILBIN. As far as possible, certainly, procedures that could 

help ensure that does not happen would be beneficial. 

Mr. NADLER. Okay. Thank you. 

Now you also quote an opinion in the Sims case saying that the 

director of central intelligence is ‘‘familiar with the whole picture 

as judges are not.’’ Judge William Webster wrote a letter to the 

Subcommittee in which he states as follows—and I ask unanimous 

consent at this point to put the letter in the record. 

Without objection. 

[The information referred to follows:]

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Mr. NADLER. The quote is, ‘‘As a former director of the FBI and 

director of the CIA, I fully understand and support our Government’s need to protect sensitive national security information. 

However, as a former Federal judge, I can also confirm that judges 

can and should be trusted with sensitive information, that they are 

fully competent to perform an independent review of executive 

branch assertions of the state secrets privilege.’’

My question is whether, despite these unequal credentials as 

both a judge and FBI and CIA director, you would think that Judge 

Webster’s assessment as to the competence of judges to perform an 

independent review of executive branch assertions of the state secrets privilege is wrong. 

Mr. PHILBIN. Well, not having seen Judge Webster’s letter, Mr. 

Chairman, I am hesitant to comment on it specifically, but I believe 

the courts have recognized—time and again—the Supreme Court, 

the D.C. Circuit, the Fourth Circuit, other circuits—that Article III 

judges are not in the same position as members of the executive 

branch—the President, the Director of Central Intelligence, or now 

the Director of National Intelligence—to assess the whole picture 

and understand how a particular piece of information in one case 

might, if revealed, have significance to foreign intelligence services 

or other parties hostile to the United States. The judges do not 

have that institutional confidence. 

Mr. NADLER. Thank you. 

Judge Wald, could you comment on our dialogue of the last few 

minutes? 

Judge WALD. Yes. I would not think that any legislation you 

have would rule out giving some deference, perhaps not the standard that you would like, utmost deference, but some due deference, 

something. Certainly, that is the way the FOIA legislation talks 

about substantial weight being given to the affidavits. 

Certainly, no judge that I have ever been acquainted with in my 

20 years on the Federal judiciary would ever go roaring in there 

and say, ‘‘Well, you know, never mind the President. Never mind 

those affidavits. You know, I do not happen to think this is.’’ Certainly, the Government would be allowed, as it does in all of these 

cases, to make its case by affidavit, sometimes even by deposition, 

et cetera, and the court looks at it, carefully listens to the full presentation that the Government wishes to make. 

The problem has been to what degree the other side is allowed 

to make a case given the secrecy of the information, and that is 

something the legislation has to take account of. So I do not see 

the fact that certainly the judiciary would give due deference to the 

Government’s case in deciding whether or not something was a 

state secret. 

As for the so-called mosaic theory, which we are all familiar 

with, which does have certainly a sliding scale kind of aspect to it, 

any one piece, when you look at all the other pieces, might be—

this is something the courts have had to deal with already in the 

FOIA, and it is something that they should certainly look at, give 

thought to, but it cannot be an absolute bar that any one piece, if 

you put it together with a thousand other pieces, might give some 

clue to somebody. 

59

So I do not see legislation that you are contemplating as presenting any more formidable obstacles than the other contexts in 

which the Government has to make its case on certain information, 

but the judge has ultimate power. 

Mr. NADLER. Thank you. 

My time has expired. 

I now recognize for 5 minutes the distinguished Ranking Member 

of the Subcommittee, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, it is a challenge when we are trying to balance 

these kinds of things today. I think everyone on the panel recognizes the need to protect national security secrets, and I think everyone on the panel, including those of us here on this side of the 

room, understand that there are times, like in Ms. Loether’s case, 

where Government officials do things that are clearly wrong and 

are not in comportment with the law. They use the law in ways 

that distort its purpose, and the challenge, of course, is to make a 

policy that still does the best that it can, given the fact that sometimes the nature of man is to distort things. 

With that said, Condoleeza Rice, Secretary of State, has publicly 

stated that ‘‘When and if mistakes are made, we work hard and as 

quickly as possible to rectify them. Any policy will sometimes have 

mistakes, and it is our promise to our partners that, should that 

be the case, we will do everything that we can to rectify those mistakes.’’

Now my question is—I will direct it to you, Mr. Philbin, if possible—what are the mechanisms if something happens like in Ms. 

Loether’s case? What are the mechanisms out there, what other 

source of remedies or relief could be granted someone that has been 

cheated under this situation by someone using the state secrets 

privilege to really distort the circumstances? In the legislative or 

the executive branch, what things are available, because that 

seems to me to be a similar question? 

Mr. PHILBIN. Well, I am certain that I cannot give an exhaustive 

list right now, but it occurs to me that the political branches do 

have the ability on their own to provide some compensation to a 

person where they believe a wrong has been done. There are examples. I believe that there were many bills in the 19th century. 

The Congress would pass special bills to provide compensation to 

various people for various reasons. The example that comes most 

clearly to mind more recently is special legislation to provide compensation to American citizens of Japanese ancestry who were interned during World War II and that was a situation where there 

was access to the courts, yet it was felt the courts had not provided 

justice, and, subsequently, the political branches then provide some 

compensation. 

So I think that there is an ability without using the court system, where a wrong has been done and the United States feels an 

obligation to make that right, for the political branches to do something. 

Mr. FRANKS. Well, Mr. Chairman, I think one of the challenges 

we have, of course, is to try to foster an environment in our Government, in all branches, where there is greater emphasis put upon 

60

people doing the right thing. It sounds very basic, but, ultimately, 

our system cannot survive apart from that fundamental ethic. 

One of the other controversies that has come here—and it is a 

little bit of a conflict. I certainly do not question the motivation or 

the intent of any of the other questioners here on the panel. But 

there is this debate here as to whether or not the Bush administration has invoked this privilege more often or in ways that are very 

different. 

And, Mr. Chairman, if I could, I would like to go ahead without 

objection and ask that the State Secrets and Limitations National 

Security Litigation Paper by Robert M. Chesney be placed in the 

record——

Mr. NADLER. Without objection. 

[The information referred to is printed in the Appendix.] 

Mr. FRANKS. I just directed my last question to Mr. Philbin here 

again. 

Professor Chesney published this study that contains a chart of 

every published court decision involving the state secrets doctrine 

in the modern era, and he has concluded that the available data 

do not suggest that the privilege has been—you know, it says that 

the data has continued to play an important role in the Bush administration, but it does not support the conclusion that the Bush 

administration chooses to resort to the privilege with greater frequency than prior Administrations or in unprecedented substantive 

contexts. And he has also said the state secrets privilege has not 

been used in recent years to protect information not previously 

thought to be within its scope. 

And finally, the professor writes that ‘‘some commentators have 

suggested that the Bush administration is breaking with past practice by using the privilege to seek dismissal of complaints rather 

than just exemption from discovery. The data do not support this 

claim, however.’’

Do you know of any compilation or review of all the published 

records decisions involving the state secrets doctrine in the modern 

era that have come to a different conclusion than Professor 

Chesney? 

Mr. PHILBIN. I am not aware of any. I have read Mr. Professor 

Chesney’s article, and I believe he points to other law review articles that assert a different conclusion, but he points out that they 

had not tabulated all of the data. 

Mr. FRANKS. Mr. Chairman, I see my time is gone, so I yield 

back. Thank you. 

Mr. NADLER. Thank you. 

I will now recognize the distinguished Chairman of the full Committee for 5 minutes. 

Mr. CONYERS. Thank you very much. 

I think we ought to recognize that in the course of a rather short 

period of time, we have come to some general parameters of how 

Congress might be able to work with it. We have a constitutional 

technician like Trent Franks and Steve King balanced by some of 

us on this side who, with all of you, you know, could shape——

Mr. Chairman and Mr. Franks, we could shape the outlines of a 

proposal. The president-elect has given us some guidance. 

61

And, Patrick Philbin, your work has been enormously appreciated when you were at the Department of Justice, but I know 

what a stickler you are about the second article, and you revealed 

it here again today. It seems to have run in the DNA of all the people from the Department of Justice, and I accept that. 

But with you and Bankston, with the judge, with the presidentelect of the ABA, and all of us here, I do not see us that far from 

shaping something that would meet the demands of my constitutional technocrats on the other side, and it is pretty clear here just 

from what we have done in an hour and a half that there has to 

be some congressional direction for the judges. That is not asking 

too much. That is certainly going to be constitutional, and I think 

we can meet that. 

Don’t you feel, Judge Wald, that we are making slow progress? 

Of course, we have different views. That is why we are all here. 

Judge WALD. Yes, I do, Chairman Conyers. It seems to me that 

the experience that Mr. Wells and I spoke about, the motivation 

that Ms. Loether spoke about, and—the only thing that I could find 

to disagree with in Mr. Philbin’s testimony basically was we could 

fight—not fight about, we could have an exchange about—and I am 

sure you will inside your Committee—what the level of review 

would be for the judge when they looked at the evidence. I certainly do not suggest he goes in just does what he feels like doing 

without taking full account of the Government’s case. 

On the other hand, I would think utmost deference might deteriorate into an automatic kind of ‘‘Well, they have made out a good 

case, and I am not going to stick my neck out and do anything 

about it.’’ But that I think is one of those important issues, but one 

that certainly would be worked out in the course of the legislation. 

Other than that, I am sure that people would not object to judges 

doing in the civil area what they are doing in the criminal area in 

terms of finding alternatives that do not require the disclosure of 

the disputed information because you can find an adequate substitute that does not violate national security. 

Mr. CONYERS. So we are coming out of this hearing with an 

agreement that no congressional statute under any circumstances 

could permanently block the President’s exercise of executive authority in matters of national security. The Government may refuse 

to cooperate with the judge, but they cannot, you know, use inherent contempt or something to force the matter out of him. 

So, for all the people afraid of weakening our opposition to terrorism, we are not putting the Government in some kind of a position where they would have to compromise whatever they believed 

in. 

Mr. Bankston, what do you have to add to this part of our discussion? 

Mr. BANKSTON. Well, I would just say that it is critical that 

judges be able to reach the legal questions that are at issue in the 

cases before them, of course, with a mind toward protecting legitimate state secrets, and just add that in our cases we are not seeking the revelation, as Mr. Philbin indicated, of any detailed means 

and methods regarding who the NSA listens to or how they target 

those people. We are simply trying to litigate the legality of the fact 

that has been reported on the front pages of the New York Times 

62

and the USA Today and corroborated by record whistleblower evidence that AT&T has opened its network to the NSA. 

Mr. CONYERS. Anna Diggs Taylor, the judge in the Eastern District of Michigan, made the same point, that everybody knows what 

they are complaining about is a state secret. It has been all over 

the newspapers and everyone knew about it. 

So, if we got Patrick Philbin, Esquire, to join us in this direction 

that we are moving in——

Are there any caveats that you will not give up on? 

Mr. PHILBIN. All right. I am sorry. I beg your pardon. 

Mr. CONYERS. Are there any details here that you are holding 

out on us that we cannot feel that we have a tentative direction 

that we are all moving in? 

Mr. PHILBIN. Well, I would say yes, Mr. Chairman, because I 

have focused on constitutional issues because I have not reviewed 

a specific legislative proposal. 

Mr. CONYERS. Well, so did this Committee. 

Mr. PHILBIN. Well, as I said to Chairman Nadler, the devil is 

often in the details. There is a constitutional issue about standard 

of review. Then, beyond constitutional issues, there are policy 

issues. If Congress has the constitutional power to enact procedures, then there are policy issues about what are wise and useful 

procedures. 

It seems from the summary description of the bill that has been 

introduced in the Senate that it would require a judge in a case 

to review every piece of evidence that is claimed to have some classification to it, and there are cases, there are instances, probably 

the cases that Mr. Bankston involved in, that for a judge to review 

every piece of evidence that bore in some way on that case could 

mean mountains and mountains of documents. I do not know exactly what these procedures are going to involve. 

Mr. CONYERS. Mr.——

Mr. PHILBIN. The policy issues involved——

Mr. CONYERS. Judge Wald, make us feel better. I ask for just a 

little time for her to make him feel more comfortable sitting next 

to you. 

Judge WALD. But I will say that we have had some experience 

in that, and I particularly wrote one decision while I was in the 

D.C. Circuit that came up under Exemption 1, but that is a national security exemption, the language of which, if you look at it, 

is, you know, very, very close to what we are talking about in 

terms of the ultimate substantive level that a judge would have to 

find. 

In this case, there were either tens or hundreds of thousands, 

but huge, huge numbers of documents, that the Government was 

raising a privilege on dealing with the aborted hostage attempt in 

1980, to rescue the Iranian hostages. 

Now what Judge Oberdorfer did in that case which came up to 

the appeals court, because the Government objected, was he appointed a master with security clearance, actually a person who 

had performed that function in the Justice Department previously, 

who would sit down with those tens or hundreds of thousands of 

documents, which would have taken him off the bench for the next 

year probably, segregated them into certain categories of objections 

63

and then summarized, did not attempt to tell the judge how he 

should rule, but summarized what the pros and cons of those arguments were. The judge was then able to make his decision about 

whether or not they needed to be classified. 

But here is the interesting thing. In that process, just because 

of that process, going forth—the Government was able, obviously, 

as they proceeded to talk with the other side—in the end, 64 percent of those documents, those tens or hundreds of thousands of 

documents, were released, and I think that, you know, this big, voluminous, big case thing is a real problem, but it is one that if you 

give the Federal judges tools——

But I have to tell you the one footnote that is always talked 

about. One of the classified pieces of information in the hundred 

thousand which was ultimately released was the fact that if you 

have milk in certain kinds of containers in helicopters, then it is 

going to curdle. [Laughter.] 

Judge WALD. So, I mean, you know, everybody knows about overclassification. Secretary Rumsfeld talked about it. Porter Goss 

talked about it. 

Mr. NADLER. Would the witness please conclude? 

Thank you. 

We are way over time at this point. 

The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

You know, I listened to the testimony here and the exchange that 

we have had and listened to Chairman Conyers make the point 

that no statute can force the Administration to risk our national 

security, and that is a subject matter that we are all wrestling with 

here. 

And I think I have to go back to a question I directed to Mr. 

Bankston first, and that is: Can this Congress tell a court what 

they can and cannot look at and what they can and cannot review? 

Do we have the statutory authority to do that if we pass the law? 

Mr. BANKSTON. Well, the Senate bill under consideration does 

not require the court, as Mr. Philbin said, to examine anything. 

Rather, it requires the Government to disclose to the court so that 

it is empowered to make its own evaluation as to the state secrets 

claim. 

And so in terms of your ability to legislate the state secrets privilege, it is a common-law evidentiary privilege. There is consensus 

on this panel, I think, that you can legislate in this area, even if 

there is a constitutional root to the privilege, which I humbly disagree with. 

So, yes, you do have the power to do that. 

Mr. KING. The answer is yes then. So the Congress can limit 

what evidence may be heard by the court, and that would constitutionally consistent——

Mr. BANKSTON. No, I would say——

Mr. KING [continuing]. Even though there are common-law precedents that you have referenced. 

Mr. BANKSTON. Well, Congress has the ability to legislate rules 

of procedure for the court, and the Senate bill under consideration 

requires the Government to disclose to the court. 

Mr. KING. I thank you, Mr. Bankston. 

64

And I direct to Mr. Wells: Do you agree generally with the response from Mr. Bankston? 

Mr. WELLS. I think generally yes, Congressman. Clearly, Congress has the right and has enacted and acted on proposed Federal 

rules of evidence. The rules of evidence by their very nature dictate 

what can and cannot be seen by a trier of fact, whether it be a 

judge or a jury. 

In fact, the proposal that the ABA put forth on the state secrets 

privilege in terms of the standard of review draws upon the draft 

that was submitted to Congress as Federal Rule of Evidence 509 

when Congress was considering enacting as a Federal Rule of Evidence all of the privileges, all the common-law privileges. 

Congress decided not to do that and instead enacted 501 which 

simply acknowledged all common-law privileges. 

Mr. KING. Okay. Mr. Wells, can you reference the constitutional 

authority that Congress has, the Constitution itself? 

Mr. WELLS. Sir, I was merely talking about the rules of evidence, 

not the——

Mr. KING. I understand that. They are based upon some authority, and I would presume that it is built upon constitutional authority, and I would ask if that is something that you are familiar 

with that you could address. 

Mr. WELLS. Sir, I have not researched that particular issue in 

terms of the broad question you asked. I would be glad to do so and 

get back to you on that if I could. 

Mr. KING. Well, I thank you for your response. It occurs to me 

that this is the Constitutional Subcommittee, so I always like to 

look at the Constitution. 

Mr. BANKSTON. Mr. King, I could answer that question if you 

would like. 

Mr. KING. And I think you are going to tell me Article III Section 

2. 

Mr. BANKSTON. Yes, yes. 

Mr. KING. And I appreciate your volunteering to do that. I then 

again ask the question back of Mr. Wells: Do you agree that this 

Congress has the authority to limit the jurisdictions of the court? 

Mr. WELLS. Clearly, in terms of Federal courts, you have limited 

the jurisdiction of Federal courts. You have set jurisdictional minimums in terms of the jurisdiction of Federal courts. So, yes, the 

Congress has the authority to a certain extent to limit the jurisdiction of Federal courts. 

Mr. KING. Okay. And I thank you because this brings me back 

to the question that was inspired by Chairman Conyers—and I 

agree with him—that no statute should be able to force the Administration to risk our national security, and the question that comes 

to me is: How does Congress enforce a jurisdictional limitation 

upon the court if the court refuses to acknowledge the authority of 

Congress? 

And I would ask that question of Justice Wald, please. How do 

we enforce if the court refuses to be guided by our statute? 

Judge WALD. I am thinking. 

Well, that situation, certainly, would be a unique one. In my experience, I will tell you, first of all, it is not like one district court 

65

judge could say, ‘‘The heck with that. I am not going to abide by 

what Congress has said.’’

You know the hierarchy. It then goes up to an appeals court, 

and, eventually, it goes, if it is important enough by certiorari or 

otherwise, to the Supreme Court. The likelihood that you would get 

through that entire hierarchy of the Federal judiciary with everyone of them saying—unless they declared it unconstitutional. 

Now it is, of course, always possible that a court as it went up 

to the hierarchy—I am not saying I think this was unconstitutional, but the abstract question of what would happen if the 

court——

Mr. KING. Well, Justice, didn’t that happen in the Hamden case 

in the D.C. Circuit? Wasn’t there judicial jurisdictional limitation 

there and the Supreme Court heard it even though it was exclusively directed to the D.C. Court of Appeals in Hamden? And then 

what do we do when the Supreme Court refuses to follow the direction of Congress? 

Judge WALD. I——

Mr. NADLER. The time has expired. The witness may answer the 

question briefly. 

Judge WALD. Well, first of all, my understanding—if you are 

talking about the same part of Hamden—is the Supreme Court 

took the Hamden case because it disagreed with the interpretation 

with——

Mr. KING. Yeah. 

Judge WALD. It interpreted what Congress did to say that it did 

not take away the jurisdiction in the pending cases. It did not sort 

of say, ‘‘Well, the heck with what you did.’’

Now, if you get all the way up to the Supreme Court, I mean, 

we can always go back to President Jackson’s, ‘‘You know, the court 

has made its ruling. Now let them enforce it.’’ However, that kind 

of thing has not happened, fortunately, very often in our history. 

I would doubt very much it would happen here. The only way, 

I would suspect, would be if the Supreme Court has two things it 

can do. It can interpret what you have done in a way you may not 

agree with. That happens frequently, I think—well, that would be 

the most likely thing—or it can declare what you have done unconstitutional as an infringement upon the Article III powers, and you 

are into a big separation of powers conflict. 

Given the FOIA experience and other experiences—even the Detainee Treatment Act where this Congress though it is not one of 

my favorite pieces of legislation, more or less said to the D.C. Circuit what you can review on—that is subject to a lot of interpretations, but they did lay down what you can look at when you are 

reviewing the CSRTs. 

Mr. NADLER. Thank you. 

The time of the gentleman has expired. 

The gentlelady from Florida is recognized for 5 minutes. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

My question is to Mr. Philbin. 

Mr. Philbin, in your——

Well, actually, before I ask my question, Mr. Chairman, I would 

like to ask unanimous consent to admit the statement of William 

H. Webster submitted to this Subcommittee dated——

66

Mr. NADLER. We have already done that. 

Ms. WASSERMAN SCHULTZ. Let us do it again. 

Mr. NADLER. Without objection. 

Ms. WASSERMAN SCHULTZ. Thank you. 

I was asleep at the switch or not here yet. Thank you very much. 

Mr. Philbin, you, in your statement, made reference to the state 

secrets privilege as when properly invoked, and you quoted an 

opinion in the Sims case saying that the director of central intelligence is ‘‘familiar with the whole picture as judges are not,’’ and 

you object to courts making an independent assessment of the submitted evidence. Is that right? 

Mr. PHILBIN. I think that a standard of review has to incorporate 

deference to the judgment of the executive, yes. 

Ms. WASSERMAN SCHULTZ. But do you support any involvement 

whatsoever in terms of an independent review by a judge? 

Mr. PHILBIN. Well, let me answer the question this way because 

I think we may be getting hung up on the word ‘‘independent.’’ 

There should be independent review in the sense that the judge, 

the court, is the ultimate decision-maker on whether or not the 

privilege was properly invoked. That is what the Supreme Court 

said in Reynolds. In my statement, I went through that, that it is 

not simply a rubber stamp once the executive invokes the privilege, 

that the court accedes to that. So there is some independent review 

in the sense that the decision belongs to the court, but——

Ms. WASSERMAN SCHULTZ. But there is not independent review 

in terms of review of the material. 

Mr. PHILBIN. In terms of whether or not this piece of information 

is classified, that this is a secret that will do harm if released, the 

judge in considering that, if the judge determines he should examine ex parte in camera something, should show deference to the 

judgment of the executive because judges, as the Supreme Court 

said in Sims and as many other courts have said, the D.C. Circuit 

has said, do not have the same expertise and do not have the full 

picture that those in the executive branch or any intelligence community have. 

Ms. WASSERMAN SCHULTZ. Well, let me further read from Judge 

Webster’s letter to the Subcommittee. 

He says, ‘‘As a former director of the FBI and director of the CIA, 

I fully understand and support our Government’s need to protect 

sensitive national security information. However, as a former Federal judge, I can also confirm that judges can and should be trusted 

with sensitive information and that they are fully competent to 

perform an independent review of executive branch assertions of 

the state secrets privilege.’’

So my question is really twofold. Why, despite his unequal credentials as a judge and former FBI and CIA director, do you think 

Judge Webster’s assertion is incorrect or wrong, and why do you 

think that there should be deference shown to the executive? 

There is a system of checks and balances in which the judiciary 

is a co-equal branch of Government, and despite the Reynolds decision, that is why we are here today, because the legislative branch 

is concerned about how far this Administration has taken the state 

secrets privilege and how many times it has excessively potentially 

invoked it. 

67

So, in light of that concern and our co-equal role in the system 

of checks of balances, can you answer my question? 

Mr. PHILBIN. Well, again, Madam Representative, there is a lot 

built in there, but let me try to go through it, and I am trying not 

to take issue with Mr. Webster’s letter because I have not read it, 

and I do not fully exactly what it says or if the quotation that you 

have read in this context would give me a better idea of exactly 

what it means. 

To the extent his statement is that Federal judges have and can 

be trusted with reviewing classified material, I have no dispute 

with that. Federal judges review classified material in multiple 

contexts, as Judge Wald has explained. The FISA court does it. 

Other courts do it in the FOIA context. So simply handling and 

looking at the material is not necessarily an issue. 

Then there is the question of determining whether or not the material, if released, would do harm to the United States, and as I 

was trying to explain before, I think we are getting hung up maybe 

on what the word ‘‘independent’’ builds into it. I believe that the 

judges can conduct and do under current law conduct a review to 

ensure that if the executive asserts that something is secret and 

would do damage to the United States if released, they look at that 

to determine whether that is appropriately invoked under a deferential standard of whether or not it was reasonable——

Ms. WASSERMAN SCHULTZ. But let me give you an idea of what 

he is talking about. In his letter, he refers to el-Masri v. the United 

States, and in the letter, he talked about how Mr. el-Masri had 

been denied his day in court, ‘‘even though no judge ever reviewed 

any evidence purportedly subject to the privilege, nor did any judge 

make an independent assessment as to whether or not the evidence 

might be available for Mr. el-Masri to proceed with his lawsuit 

based on public accounts of the rendition and an investigation conducted by the German government.’’

I mean, we are talking about a person who was by all accounts 

an innocent victim, as Judge Webster refers to in his letter, and, 

I mean, let us not split hairs. You know what an independent review means. An independent review means that without the executive looking over their shoulder, without the executive deciding 

what it is that the judge can see in order to make their decision, 

they independently review the evidence and decide whether the 

state secrets privilege has been properly invoked, as you referred 

to it being necessary in the beginning of your statement. 

Mr. PHILBIN. With all respect, Madam Representative, I am not 

attempting to split hairs. I am attempting to be precise about what 

I think is an issue that has some constitutional significance. 

I believe that judges should conduct, can conduct an independent 

review in the sense that they are the decision-maker and do not 

simply rubber stamp what the executive says. At the same time, 

the standard of review announced by the Supreme Court in Reynolds and in U.S. v. Nixon has constitutional significance and constitutional overtones, and Article III judges should show deference 

to the judgment of the executive in terms of what is material that 

will do harm to the national security of the United States if released. 

68

To the extent that Mr. Webster’s letter—and I have the greatest 

respect for him, and he has great expertise—suggests or that you 

understand this letter is suggesting that judges are equally qualified and should with complete independence from the judgment of 

the executive decide what is a secret or not or what would do harm 

to the United States, I respectfully disagree with that and believe——

Ms. WASSERMAN SCHULTZ. So——

Mr. PHILBIN [continuing]. It is against a long line of precedent. 

Mr. NADLER. The gentlelady’s time has expired. 

The gentleman from——

Ms. WASSERMAN SCHULTZ. The question, Mr. Chairman, is: How 

do we know? I mean, that is really the question, and I do not think 

the gentleman has answered that question. 

Mr. PHILBIN. I am sorry. I am not sure. How do we know? 

Ms. WASSERMAN SCHULTZ. How do we know that the Government’s privilege has been properly invoked, if the judge does not 

have an independent opportunity to review the evidence? I mean, 

we just do not know. 

Mr. PHILBIN. No, the judge can and should have an independent 

opportunity to review the evidence. I am merely trying to be precise about the standard under which the——

Mr. NADLER. Thank you. 

The gentleman from Tennessee is recognized for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chairman. 

I came in a little late, and I apologize. 

Mr. Philbin, you are taking the most pro executive Administration position—is that accurate—among the panelists here? 

Mr. PHILBIN. Yes. Among the panelists here, I am taking the 

most pro Administration position. 

Mr. COHEN. And do you feel Article III Section 2 gives them 

some type of unique—or not Article III, but Article II—gives the 

Administration some unique ability to have information and not to 

have it be checked, or do you just think there should be limited 

checks? 

Mr. PHILBIN. Well, I believe that Article II, in assigning the 

President authority as commander in chief and as representing the 

Nation in foreign affairs, does give the executive special and 

uniquely assigned constitutional responsibilities with respect to 

diplomatic, military, and national security information and that the 

other branches have to show respect for that unique constitutional 

role. 

Mr. COHEN. And does respect preclude review? 

Mr. PHILBIN. I do not think it absolutely precludes any review, 

and that is not the way the Supreme Court has treated it. But it 

does affect the standard and the scope of review. 

Mr. COHEN. And, Judge Wald, you have had some cases like this. 

Do you have a problem with the scope of review as has been proposed in the bill in the Senate or maybe if you have seen the one 

that Mr. Conyers intends to introduce in the House? 

Judge WALD. I have seen them, but I am going to have to go 

back and look. Or maybe you can remind me what the——

Mr. COHEN. Does anybody have an opinion on those bills? 

69

Judge WALD. I know when I looked at them, I had no problem 

with them——

Mr. COHEN. Objection? 

Judge WALD [continuing]. And I think I can find it. 

Mr. COHEN. I cannot. My eyes are not good enough, but——

Mr. Wells? 

Mr. WELLS. Yes, Congressman. The Senate bill is consistent with 

the ABA policy in large respect, and I believe the ABA would support the Senate bill that is currently drafted. 

Mr. COHEN. Thank you. 

I know we want to close. I just think that we need to provide as 

many checks and balances as possible. That is the foundation of 

our Government. 

I understand national security, but when an Administration will 

lie to send people into war, lie about weapons of mass destruction, 

lie about countries having uranium that they are going to give to 

a Nation to threaten our security, lie about relations with al-Qaida 

and 9/11, when they will lie about that, they will lie about anything. 

I felt so bad last night listening to President Bush and having 

to think that when he talked about Iran, I could not accept anything he said because I knew he lied to a previous Congress. So he 

has lost the ability for the American people to listen to anything 

he says, and it is like the sky is falling. 

And, unfortunately, he has done great damage to the Administration and to the presidency and to the judgment of the executive to 

assert privilege because when you will go to war under false pretenses and lies——

Mr. FRANKS. Mr. Chairman, I want to make a point of order that 

the gentleman’s words are unparliamentary because they are personally offensive toward the President of the United States. 

Mr. COHEN. If they are, you know, if we need to withdraw them, 

I will withdraw them, but I think that there was a report recently 

that suggested—maybe I could quote that—that 400 times they 

have been cited, the Administration, for giving mistruths, untruths, 

prevarications, and other type of statements to the American people. 

Mr. NADLER. Okay. Does the gentleman withdraw the words? 

Mr. COHEN. Withdraw them all. 

Mr. NADLER. Thank you. let us——

Mr. COHEN. Adios. 

Judge WALD. Mr. Chairman, I just want to answer yes or no because I did not finish it. 

Mr. NADLER. Yes, please. 

Judge WALD. I managed now to look at the underlying bill. I do 

not have a problem. I think the word ‘‘deference’’ is something that 

applies—there are 50,000 degrees of deference that you can give, 

and whenever any expert comes in, I mean, who has some kind of 

qualified experience, you say, ‘‘You are the expert in architecture, 

so we are going to look at your opinion with deference.’’ So, in that 

respect, I have no problem with the bill. 

Mr. NADLER. Thank you very much. 

The gentleman’s time has expired. 

70

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask the witnesses to respond to as 

promptly as you can so that their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Without objection, we unanimously thank all the witnesses. 

And with that, this hearing is adjourned. 

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.] 

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