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53–360 PDF 2009

S. HRG. 110–923 

EXAMINING THE STATE SECRETS PRIVILEGE: PROTECTING NATIONAL SECURITY WHILE PRESERVING ACCOUNTABILITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 13, 2008 

Serial No. J–110–74 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 23 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 4 

Leahy, Hon. Pratrick, a U.S. Senator from the State of Vermont ....................... 1 

prepared statement .......................................................................................... 174 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Chesney, Robert M., Associate Professor, Wake Forest University School of 

Law, Winston-Salem, North Carolina ................................................................ 13 

Fisher, Louis, Specialist in Constitutional Law, Law Library of the Library 

of Congress, Washington, D.C. ............................................................................ 11 

Nichols, Carl J., Deputy Assistant Attorney General, Department of Justice, 

Civil Division, Washington, D.C. ........................................................................ 7 

Vatis, Michael, Partner, Steptoe & Johnson LLP, New York, New York ........... 16 

Wald, Hon. Patricia M., former Chief Judge, Court of Appeals for the D.C. 

Circuit, Washington, D.C. ................................................................................... 9 

QUESTIONS AND ANSWERS 

Responses of Robert M. Chesney to questions submitted by Senators Kennedy ....................................................................................................................... 31 

Responses of Louis Fisher to questions submitted by Senators Kennedy, Cornyn and Feingold ................................................................................................. 38 

Responses of Michael Vatis to questions submitted by Senators Kennedy 

and Cornyn ........................................................................................................... 46 

Responses of Patricia M. Wald to questions submitted by Senators Kennedy, 

Feingold and Cornyn ........................................................................................... 50 

Questions submitted by Senators Kennedy, Feingold and Cornyn to Carl 

J. Nichols (Note: Responses to questions were not received as of the time 

of printing, November 18, 2009) ......................................................................... 45 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Caroline Fredrickson, Director, Washington 

Legislative Office, Washington, D.C., statement ............................................... 53 

Barlow, Richard M., former Intelligence Office and Plaintiff in Senate Reference Court Proceeding, New York, New York, statement and attachment . 64 

Brauner, Susan Parker, Knoxville, Tennessee, statement ................................... 84 

Chesney, Robert M., Associate professor of Law, Wake Forest University 

School of Law, Winston-Salem, North Carolina, statement ............................. 85 

Letter to Senator Kennedy, February 15, 2008 ............................................. 101 

‘‘The State Secrets Privilege and the Seperation of Powers’’, Amanda 

Frost, essay .................................................................................................... 104 

Constitution Project, Liberty and Security Committee & Coalition to Defend 

Checks and Balances, Washington, D.C., statement ........................................ 138 

Fisher, Louis, Specialist in Constitutional Law, Law Library of the Library 

of Congress, Washington, D.C., statement ......................................................... 159 

Herring, Patricia Reynolds, statement .................................................................. 176 

Nichols, Carl J., Deputy Assistant Attorney General, Department of Justice, 

Civil Division, Washington, D.C., statement ..................................................... 177 

Scholars of Constitutional Law and Students of Public Policy, letter ................. 186 

Page

IV 

Vatis, Michael, Partner, Steptoe & Johnson LLP, New York, New York, 

statement .............................................................................................................. 191 

Wald, Hon. Patricia M., former Chief Judge, Court of Appeals for the D.C. 

Circuit, Washington, D.C., statement ................................................................ 197 

Weaver, William G., J.D., PH.D., Director, Center for Law and Border Studies, Deputy Director, Inst. for Policy and Econ. Dev., University of Texas 

at El Paso, El Paso, letter ................................................................................... 203 

Webster, William H., Director, Central Intelligence, Washington, D.C., statement ...................................................................................................................... 214 

Wells, H. Thomas, Jr., President-Elect, American Bar Asssociation, Washington, D.C., statement and attachment ............................................................ 216 

(1) 

EXAMINING THE STATE SECRETS PRIVILEGE: 

PROTECTING NATIONAL SECURITY WHILE 

PRESERVING ACCOUNTABILITY 

WEDNESDAY, FEBRUARY 13, 2008 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:13 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Kennedy, Feingold, Whitehouse, Specter, and 

Hatch. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT, CHAIRMAN, COMMITTEE ON THE JUDICIARY 

Chairman LEAHY. I apologize to everybody for being late. I was 

at the dentist, as I was telling Mr. Fisher and Justice Wald and 

some others. Then the road I’d normally take, a tree had gone 

down, and so on and so forth. 

But somehow—in my own State, I live on a dirt road, up a long 

mountain road. We can have two feet of snow overnight and everything still goes on time. I won’t even get into the snow stories that 

Vermonters like to tell when there’s any weather down here. 

But we have a very important issue, the state secrets privilege. 

As a common law doctrine, as all the panelists know, the government can claim in court to prevent evidence that could harm national security, prevent it from being publicly revealed. 

To start off, I want to thank both Senators Kennedy and Senator 

Specter, both former chairmen of this Committee who did a great 

deal in helping to plan this hearing. I commend them for their 

work on the legislation to create uniform standards to guide courts 

in evaluating state secrets privilege claims. Both Senators have 

done, I believe, enormous service to the courts and to the country. 

We’re here because, over the past 7 years, the administration has 

aggressively sought to expand executive power in alarming ways. 

We have always gone on the sense of public accountability, but 

that’s been repeatedly frustrated because so many of the administration’s actions have been cloaked in secrecy. Time and again, 

they’ve fought tooth and nail to stop not only Congress, but the 

American people at large from having information about policies 

and practices. 

2 

After all, it wasn’t from anything we found out in the Congress 

from the administration, but it’s through the press that we learned 

about the secret surveillance of Americans by their own government in the years after 9/11, or the secret renditions abroad that 

violated U.S. law, secret prisons abroad, secret decisions to fire 

some of the Nation’s top prosecutors and the secret destruction of 

interrogation tapes that may have evidence of torture. 

That was all because of an overly expansive, and I believe selfjustifying view, of executive power. But now they seek secrecy protections. They’ve taken a legal doctrine that was intended to protect sensitive national security information, but they want to expand it to evade accountability for misdeeds. State secrets privileges have been used in recent years to stymie litigation at its very 

inception in cases alleging egregious government misconduct, extraordinary rendition, warrantless eavesdropping. 

Reflecting on this, the New York Times observed, ‘‘To avoid accountability, the Bush administration has repeatedly sought early 

dismissal of lawsuits that might expose government misconduct, 

brandishing the flimsy claim that going forward would put national 

security secrets at risk.’’ 

Of course, the clearest example of that was short-circuiting litigation in the 2006 case of Khalid al-Masri. Mr. al-Masri is a German 

citizen of Lebanese descent. He claimed he was kidnapped on New 

Year’s Eve in 2003 in Macedonia, transported against his will to 

Afghanistan, detained, and tortured as part of the Bush administration extraordinary rendition program. He sued the government 

over this detention and harsh treatment. 

A District Court judge in Virginia dismissed the entire lawsuit 

on the basis of an ex parte declaration from the Director of the 

CIA, and despite the fact that the government admitted publicly 

that the rendition program exists. An ex parte declaration. Not 

even a hearing in chambers with both parties to argue this. 

So he had no other remedy. The justice system is off limits to 

him. No judge ever reviewed, either in camera or in the courtroom, 

what the evidence was. The state secrets privilege serves important 

goals when it’s properly invoked, but like all things, it’s going to 

disappear if it’s used in a way just to cover one’s mistakes. You 

can’t have a case where the courthouse doors are closed forever, regardless of the severity of injury. Courts should be able to make 

a choice. 

Now, Senator Specter and Senator Kennedy and I introduced a 

bill to help guide the courts. We don’t restrict the government’s 

ability to assert the privilege in appropriate cases, but we at least 

say what standards should be followed, allowing judges to look at 

the actual evidence that government submits so that neutral 

judges, not self-interested executive branch officials, would render 

the ultimate decisions. 

When I think about the administration’s expansive use of the 

state secrets privilege, I’m reminded of another secretive administration involved in the Watergate scandal and the Pentagon papers 

case. That was a case about the government’s attempt to hide an 

historical study of this country’s involvement in Vietnam. The 

Nixon administration contended that knowledge of the study posed 

grave and immediate danger to the security of the United States. 

3 

Fortunately, the U.S. Supreme Court decided otherwise when 

they decided the Pentagon papers case. In his concurring opinion, 

Justice Black noted, ‘‘The guarding of military diplomatic secrets at 

the expense of an informed representative government provides no 

real security for our Republic.’’ So, it’s critical that Federal judges 

not advocate that role in our system of checks and balances. 

I’ll put my whole statement in the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

We are living in an era of extraordinary expansion of executive 

authority. I believe, at some point in the future, people will look 

back at this decade and comment about the need for expanded executive authority, but also raise questions about the response of 

checks and balances. 

Regrettably, the congressional oversight factor has been totally 

ineffective in restraining the expansion of executive authority. 

Now, I do not doubt or deny the need for the expansion of executive 

authority, but I think there has to be a check and a balance. 

The Terrorist Surveillance Program was put into effect with the 

President explicitly claiming that his Article 2 powers superseded 

legislation. Similarly, the President disregarded the National Security Act of 1947 in failing to inform the Intelligence Committees of 

both Houses, as required by law. We’ve had the signing statements, 

and the only restraint has been the courts. When we were considering retroactive immunity for the telephone companies, the issue 

arose as to a state secret defense. 

Senator Kennedy, Senator Leahy, and I put our heads together 

and decided that we really ought to have some congressional intervention here. I thank Senator Kennedy and his staff for the leadership on the issue, and the Chairman for setting up these hearings. 

This Committee is loaded with ex-chairmen. We have four ex-chairmen on this Committee. In fact, Senator Leahy has— 

Chairman LEAHY. You have three ex-chairman. One is still 

Chairman. Good Lord, don’t push me out that fast! 

[Laughter]. 

Senator SPECTER. Well, I’d like to, but I can’t. 

[Laughter]. 

Nothing personal. In fact, the personal relationship is extraordinarily good. 

Chairman LEAHY. Thank you. 

Senator SPECTER. I would disagree with my learned colleague, 

Senator Leahy, on the grounds that he has two capacities: notwithstanding the fact that he’s a chairman, he’s also an ex-chairman. 

Chairman LEAHY. You’re right. 

Senator SPECTER. So he serves in a dual capacity. There are four 

ex-chairmen on this Committee. 

Chairman LEAHY. I stand corrected. You’re absolutely right. 

Senator SPECTER. And we are going to move ahead. I believe that 

the pending legislation is very salutary because it brings the court 

4 

into the picture to make a determination on whether there is a 

state secret. It’s up to the Congress to define what a state secret 

is. We have done that. 

As I looked back over the case of United States v. Reynolds, a Supreme Court decision in 1953 where the government claimed that 

there was a state secret involved in a lawsuit brought by three widows whose husbands died in the crash of a B–29 bomber, and later 

it developed that there was no state secret and the injured parties 

sought redress at a later time, and the Third Circuit still upheld 

the claim of state secrets. It’s a little mystifying to me as to how 

that happened. 

So I think it’s really important, where we deal with this issue, 

that there be a legislative determination of the standard and procedures to deal with it, and ways to get some of the information examined in camera, and to have a substitute and perhaps redacted 

information. 

Pending is the Foreign Intelligence Surveillance Act. The effort 

to substitute the government for the telephone companies was unsuccessful in the Senate yesterday. We’ll see what happens in conference. It seems to me that that was a good example of a way to 

maintain national security, because the telephone companies would 

continue to provide whatever information they are and the courts 

would be kept open. 

Senator Leahy is quoted in this morning’s paper as saying that 

‘‘sometimes Senators get cold feet to contest what the government 

has to say, and we need some foot warmers around here.’’ That’s 

our job. That’s our job. If we can’t do it, then we’ve been totally ineffective. Senator Leahy and I sent a letter to the Attorney General 

and want to know about the CIA-destroyed tapes. We get back 

some comment, ‘‘Well, it’s political.’’ I don’t quite understand that, 

but it’s political. 

Then the Federal court has a case involving the CIA tapes and 

issues an order to provide the material. Well, the court’s not political. The Attorney General doesn’t have to obey the court, but he 

has taken an appeal and eventually it gets to Rasoul, and eventually the courts are involved. I think we have to be very careful 

when we exclude the judicial process in the determination of these 

issues, and this legislation goes a significant step in that direction. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator SPECTER. Thank you former Mr. Chairman. 

Chairman LEAHY. Actually, this is the third time I’ve been Chairman, once for 2 weeks. 

Senator Kennedy. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Will you guys get it straight so we can get on 

with the hearing? 

Thank you, Senator Leahy. I want to thank you very sincerely 

for having this hearing today. It’s long past time for the Committee 

to address the state secrets privilege, and I look forward to the testimony of the distinguished panel of witnesses. 

5 

Chairman Leahy, Senator Specter, and I have recently introduced a bill to regulate judicial review of the privilege, and the bill 

is called the State Secrets Protection Act. I thank Senator Leahy 

and Senator Specter for their commitment to this effort. By working together, we can make real bipartisan progress on this fundamental issue. 

The goal of our bill is to protect legitimate state secrets from disclosure, prevent misuse of the privilege, and allow litigants to have 

their day in court. Federal judges already handle sensitive information under the Classified Information Procedures Act, and the the 

Freedom of Information Act, and the Foreign Intelligence Surveillance Act, and there is no reason why they can’t do so in civil cases 

as well. 

Our bill has already been endorsed by a number of legal groups 

and scholars. As the New York Times editorial stated, ‘‘It will give 

victims fair access to the courts and make it harder for the governments to hide illegal or embarrassing conduct behind unsupported 

claims. Of course, legitimate secrets need to be protected, and the 

legislation contains safeguards to ensure that.’’ Similar editorials 

have been published by the San Francisco Chronicle, the Salt Lake 

Tribune, and numerous legal blogs. This hearing will provide valuable insight on the bill as we move towards mark-up. 

With the Chairman’s permission, there are a number of items I’d 

like to have included in the record to help clarify the issues we’ll 

be discussing today. All of the documents show why there is a need 

for Congress to take action on the state secrets privilege. First, a 

letter to Congress by 23 eminent scholars last October. They wrote 

that ‘‘legislation action on the privilege is essential to restore and 

strengthen the basic rights and liberties provided by our constitutional system of government.’’ 

Second is a bipartisan report released by the Constitution Project 

last May: ‘‘Reforming the State Secrets Privilege.’’ The report explains the problems with the current law on the privilege and concludes, ‘‘There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, 

fairness in the courtroom, and the adversary process.’’ 

Third is a report last August by the American Bar Association 

along the same lines, ‘‘urging Congress to enact legislation governing Federal civil cases implicating the state secrets privilege.’’ 

Fourth a statement by the American Bar Association’s presidentelect, prepared 2 weeks ago for a hearing in the House, endorsing 

our bill. 

Fifth is a statement submitted for this hearing by William Webster, who was a Federal District Judge for 3 years, Appellate Judge 

for 5 years, Director of the FBI for 9 years, and Director of the CIA 

for 4 years. If anyone knows the state secrets privilege from both 

the executive and judicial perspective, it’s William Webster. 

In his letter 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. They are fully competent to perform an independent review of executive branch assertions of the state secrets privilege.’’ 

6 

He concludes by saying, ‘‘Granting executive branch officials unchecked discretion to determine whether evidence should be the 

subject of the state secrets privilege provides too great a temptation for abuse. It makes much more sense to require the executive 

branch to submit such evidence to the courts for an independent 

assessment on whether the privilege should apply. Courts, not executive branch officials, should be entrusted to make these determinations and thereby preserve our constitutional system of checks 

and balances.’’ 

The sixth item is an analysis sent to me on February 8 by William Weaver and Danielle Escontrias. Professor Weaver is a leading expert on the state secrets privilege. His analysis responds to 

an empirical study published by one of our witnesses, Robert 

Chesney. Professor Weaver raises some concerns about Professor 

Chesney’s methodology and finds that ‘‘exploitation of the privilege 

over the last several decades represents a serious threat to congressional oversight and the ends of justice.’’ 

Finally, I’d like to put in the record two personal letters I received. Many in the room are aware that the leading case on the 

state secrets privilege is U.S. v. Reynolds, which has been heavily 

criticized. 

I’ll include a very personal, lovely letter from Patricia Reynolds 

Herring in the record. Senator Specter has referred to it. I’ll just 

read the last paragraph: ‘‘I’m very grateful and hopeful to see S. 

2533, the State Secret Protection Act. I’m confident this bill can be 

a positive step in creating a safeguard to balance U.S. v. Reynolds. This would give me great comfort.’’ 

Also, a very moving letter from Susan Parker Brauner, whose father was killed in the Reynolds airplane crash. Ms. Brauner’s letter 

concludes, ‘‘Correcting the flaws currently in the state secrets privilege will not give back the life that a young couple’’, Ms. Brauner’s 

parents, ‘‘had hopefully planned together all those years ago. It 

will, however, most certainly provide a measure of justice for all 

the families whose loved ones were killed on the flight.’’ 

Each of these documents, Mr. Chairman, helps make clear why 

this hearing is so important. It’s not just about abstract principles 

of separation of powers, open government, and constitutional 

rights. It’s also about whether real people can achieve justice in our 

courts. 

I look forward to the discussion, and I thank you again. 

Chairman LEAHY. Well, thank you very much, Senator. 

Our first witness would be Carl Nichols, the Deputy Assistant 

Attorney General in the Department of Justice’s Civil Division’s 

Federal Programs Branch. I understand, Mr. Nichols, you’ve been 

there since March of 2005. Is that correct? 

Mr. Nichols. That is correct. 

Chairman LEAHY. He oversees and coordinates the branch’s trial 

litigation on behalf of the Federal Government regarding constitutional challenges to Federal statutes. 

Prior to joining the Department he was a partner in the wellknown and respected Washington, DC office of Boies, Schiller & 

Flexner. He attended Dartmouth College in my neighboring State, 

eastern State—east as compared to Vermont—and received his law 

degree from the University of Chicago Law School. 

7 

Mr. Nichols, thank you for taking the time. We’re delighted to 

have you here. Please go ahead. 

STATEMENT OF CARL J. NICHOLS, DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, WASHINGTON, DC 

Mr. NICHOLS. Thank you very much. Chairman Leahy, Ranking 

Member Specter, and members of the Committee, thank you for the 

opportunity to testify concerning the important subject of today’s 

hearing, the state secrets privilege. 

Since March 2005, I have served in the Department of Justice as 

the Deputy Assistant Attorney General for the Civil Division’s Federal Programs Branch. In that capacity I’ve been involved in the 

decision-making process regarding whether, and when, the executive branch will assert the state secrets privilege in civil litigation. 

As the Committee is aware, the state secrets privilege is a wellestablished legal doctrine that plays a vital role in protecting the 

national security by ensuring that civil litigation does not result in 

the disclosure of information that, if made public, would cause serious harm to the United States. This privilege plays an important 

role in times of war and times of peace, has been asserted by the 

executive branch, and has been recognized by the courts, since the 

19th century, and is subject to review by the judiciary. 

While the judiciary plays an important role in assessing any assertion of the state secrets privilege, the privilege does have a constitutional pedigree. The Supreme Court made that clear in United 

States v. Nixon when it stated that ‘‘a claim of privilege on the 

ground that information constitutes military or diplomatic secrets’’—that is,—the state secrets privilege—necessarily involves 

areas of Article 2 duties assigned to the President. It is important 

to emphasize—however—I think it is very important to emphasize 

that although the state secrets privilege emanates from the President’s constitutional authority, the privilege is neither limitless nor 

unchecked. It is also important to emphasize that the executive 

branch asserts the privilege selectively, and when doing so details 

the specific harms to national security that would occur if sensitive 

information is publicly revealed, and it is important to emphasize 

that not every assertion of the state secrets privilege results in the 

dismissal of a pending case. 

Any assertion of the state secrets privilege involves a rigorous 

procedural and judicial process to ensure that the privilege is not, 

in the words of the Supreme Court, lightly invoked. To begin, several formal requirements apply to the privilege assertion. The 

privilege can be invoked only by the United States, only through 

a formal claim of privilege, only by the head of the department 

which has control of the matter, and only after that official has 

given actual personal consideration to the question. 

Meeting these requirements typically requires several layers of 

substantive departmental review and coordination, an important 

part of which is the agency head’s—often Cabinet official’s—personal review of various materials, including the declaration or declarations that he or she must sign, under penalty of perjury, in 

order to assert the privilege. 

8 

Once it has been decided that it is appropriate to assert the 

privilege in a particular case, the judicial branch plays a vital role 

in assessing whether the privilege will be upheld. Specifically, the 

court must decide whether the invocation of the privilege is predicated upon a reasonable danger that disclosure of the information 

will harm national security. 

In making that determination, a court often reviews not just publicly available materials, but also classified declarations and other 

information providing further detail for the court’s review. A common misperception is that classified information is never, or only 

rarely, shared with the courts and that the courts are therefore 

asked to uphold the privilege based on trust and non-specific 

claims of national security. That is simply inconsistent with our 

practice. In every case of which I am aware, we have made available to the courts both unclassified and classified declarations that 

justify, often in considerable detail, the bases for the privilege assertions. 

Once a court has concluded that the information is privileged, 

the information is removed from the case and the court plays a second and equally important role. It must decide whether, and if so 

how, the case can proceed without that information. Sometimes a 

case must be dismissed because it is obvious that the case could 

not proceed without information that would harm the United 

States. 

However, in other cases, and contrary to a popular misconception, the privileged information is peripheral and the case can proceed without it. Thus, rather than playing a passive role in accepting at face value blanket executive assertions of the state secrets 

privilege, courts play a vital role in determining whether the privilege will be upheld and adjudicating how and when cases can proceed if sensitive national security information is excluded. These 

dual roles underline the crucial role of the judiciary in checking assertions of the state secrets privilege and assuring against the disclosure of national security that would cause serious harm to the 

United States. 

Mr. Chairman, I would like to conclude with the following point. 

While there may be disagreement as to when this privilege ought 

to be asserted, rigorous executive branch safeguards and judicial 

review ensure that it is invoked and upheld only in circumstances 

necessary to protect the national security of the United States. On 

this point there should be no disagreement: such a privilege is not 

only desirable, but necessary to avert serious harm to national security. 

Thank you for the opportunity to appear before the Committee. 

I would be pleased to answer any questions you may have. 

[The prepared statement of Mr. Nichols appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. We will go back to questions. Although I could not help but think, listening to this rigorous review, 

if you have an ex parte, in camera review, I must admit, during 

my years as a prosecutor, I would love to have been able to have 

that advantage, to be able to argue ex parte. But we’ll get back to 

that. That’s just so you know some of the areas where I’m going 

to ask. 

9 

Judge Patricia Wald was a Circuit Judge on the U.S. Court of 

Appeals for the D.C. Circuit from 1979 to 1999, and 5 years as 

Chief Judge. She’s the author of over 800 judicial opinions. More 

recently, she served as a U.S. Judge on the International Criminal 

Tribunal for the former Yugoslavia in Hague, and she was given 

well-deserved international recognition for her significant decisions 

in the field of international humanitarian law. 

She’s received numerous honors and awards. She’s served on the 

boards of several commissions, including the President’s Commission on U.S. Intelligence Capabilities Regarding Weapons of Mass 

Destruction from 1999 to 2001. She went to Connecticut College, 

and got her law degree from Yale Law School. 

Judge Wald, you’re no stranger to us here. Please go ahead. 

STATEMENT OF HON. PATRICIA M. WALD, FORMER CHIEF 

JUDGE, U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, 

WASHINGTON, DC 

Judge WALD. Thank you, Chairman Leahy, Senator Specter, Senator Kennedy, Senator Feingold, Senator Hatch. 

The state secrets privilege is a common law privilege which has 

been entirely administered by the judges up to this point. A review 

of these cases I think will indicate, as the American Bar Association report and the American Constitution Project statement illustrated, the decisions have varied in the scope and in the procedures 

that judges have used in administering the privilege. Some of them 

have been very cautious, but in others it seems almost as though 

it were enough that if the government should raise the privilege, 

that it would be recognized. 

As a result, there has not been uniformity in the case law surrounding what the judges should do in administering the privilege. 

There’s no serious question that I know of that Congress does have 

the right, pursuant to the Constitution, Article 3, Section 2, to regulate rules of evidence for the Federal courts, consistent with the 

Constitution and due process, obviously. That is what this bill sets 

out to do, as I read it. 

Now, the Supreme Court has said in Reynolds that it is the judge 

and not the executive branch that is the final decision-maker in the 

application of the privilege. I think that this bill has admirably incorporated that view when it says that the judge shall decide 

whether the government’s claim is valid. 

I see this bill essentially as an enabling bill because it enables 

the judges to use all of the techniques which have developed since 

Reynolds, and sometimes in the context of other types of national 

secret cases, such as Exemption 1 under FOIA where you do have 

these kinds of classified information coming up, and in CIPA, 

which regulates the classified information in criminal cases. 

Out of those cases have come a variety of techniques, most of 

which, or many of which, are elucidated in the bill. They include 

not only the regular techniques of sealing, protective orders, separating segregated from non-segregated information, but also some 

of the more innovative ones, such as the Vaughn Index, which is 

specifically set out in this bill in which a government affidavit does 

have to go, almost line by line, through the material sought to be 

10 

excluded in trying to justify witholding. Particularly useful, I think, 

is the encouragement of masters. 

I presided in one case in the Court of Appeals where the government had initially said, no, we can’t disclose, I think it was hundreds of thousands of pages dealing with the hostage crisis at the 

end of the Carter administration and the aborted attempt to get 

the hostages. Judge Oberdorfer appointed a screened—an intelligence-screened master, who then sampled the documents and 

gave to the judge sample categories of the information and the arguments, pro and con witholding; he didn’t even make recommendations. 

As a result of that, something like 60,000 of those pages were ultimately agreed to be released, including one that I always like to 

mention which had originally been classified, and that was the fact 

that milk carried in cartons in the helicopters curdled. Many of 

these techniques are set out here. 

There are two things that the bill does that I think are especially 

important, in that it requires the court to proceed as far as it reasonably can without the secret evidence. In other words, it permits 

the judge to go forward, allow discovery of the non-secret evidence, 

and see if, as in some cases, the question can then be decided on 

a legal basis. So even though underneath there may be some state 

secret claim, you don’t have to get to those because there is a legal 

basis, rather than dismissing it at the front and saying, oh, boy, 

this case involves state secrets, over and out. 

The last thing I want to point out is that there are two areas, 

I think, that the Committee will want to look at especially in terms 

of the courts. One, is what will be the standard of review that the 

court will look at? In other words, one could have a spectrum going 

all the way from—I think one witness in the House talked about 

utmost deference to the affidavits and to the case that the government puts on. I would not endorse, myself, that kind of standard. 

I believe your bill talks about the judge deciding, if the claim is 

valid in a de novo review. I believe Judge Webster’s letter endorses 

that as well. An independent evaluation and a de novo review. 

That does not, of course, mean that the judge should not, and will 

not give substantial weight to the case laid out in the affidavits by 

the government, since clearly they will be experts in many of the 

areas of the intelligence and should be given the deference that is 

due to an expert witness. But I think it’s important that the judge 

make the decision de novo, giving substantial weight to the government. That, indeed, is the standard which we now have in Exemption 1. 

This is the last point. I would say there’s one interesting question that has arisen, which is, should the judge have to look at the 

secret evidence before invoking the privilege? Now, Reynolds suggested that in not all cases should he have to, it would depend 

upon whether there were other alternatives available. In that case, 

the alternative was, they could interview some of the witnesses. 

Your bill talks about ensuring that the basic evidence is available for review by the judge, and Mr. Nichols has suggested that 

in many of the cases—many, if not all—it is made available and 

the judge can review it. I think that’s very important because many 

parts of the bill suggest that the judge, if he thinks it is genuinely 

11 

a state secret may ask the government to try and come forth with 

an unclassified statement that will still allow the case to go forward and allow a due process hearing for the claimant, but will not 

contain any state secrets. 

I think it would be very difficult for a judge to decide whether 

or not such a statement is possible without actually looking at the 

material itself. So summing up, I do think Federal judges are capable of administering the state secrets privilege in a way that is set 

forth in the bill. I think it will be helpful to them to have a protocol, to have a series of steps they must go forward with. I think 

it will produce more uniform results. 

Chairman LEAHY. Thank you. 

[The prepared statement of Judge Wald appears as a submission 

for the record.] 

Chairman LEAHY. I also note that Senator Kennedy asked to put 

a number of items in the record. Of course, without objection that 

will be done. 

Senator KENNEDY. Thank you. 

[The documents appear as a submission for the record.] 

Chairman LEAHY. Our next witness, Louis Fisher, is Specialist in 

Constitutional Law. 

I’m delighted to see Senator Whitehouse here, who has joined our 

panel. 

Louis Fisher is a Specialist in Constitutional Law at the Law Library of the Library of Congress. He formerly worked at the Congressional Research Service from 1970 to 2006. He is the author of 

17 books dealing with constitutional law and national security. He 

has won numerous awards for his writing. He’s testified before 

Congress also numerous times on a wide range of issues, including 

NSA surveillance, executive privilege, and war powers. 

He received his doctorate in Political Science at the New School 

for Social Research, and has taught at a number of universities and 

law schools. 

On a personal note, during my years at Georgetown Law School, 

when it was in the old building—Judge Wald may remember that 

building. 

Judge WALD. I do. 

Chairman LEAHY. I spent many, many hours and many evenings 

in the Law Library at the Library of Congress, with fond memories, 

some bordering on panic as I was preparing for final exams. 

Mr. Fisher, go ahead, please. 

STATEMENT OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW, LAW LIBRARY OF THE LIBRARY OF CONGRESS, 

WASHINGTON, DC 

Mr. FISHER. Thank you, Mr. Chairman. Thank you for your leadership. 

This is an important hearing. It is a technical area, state secrets 

privileges, but it really goes to the heart of constitutional government about a system—a very American system—of checks and balances, independent judiciary, and giving private parties an opportunity in court to challenge government illegalities and unconstitutional action. So this is about as basic an area that we could look 

at today. 

12 

What’s new about this area? I wouldn’t look at past state secrets 

privilege cases and current ones and do a numbers game here and 

say this has gotten more or less, but I think it is different today. 

I’ve looked at all the state secrets cases over the years, and the 

ones that we’ve seen in recent years are those in which people are 

charging government with illegal and unconstitutional actions of 

violating statutes, violating treaties, violating provisions of the 

Constitution. So I think we are in a new area. 

As was said earlier today, the executive branch does have powers, and at a certain point can exercise them. At another point, 

when it’s pushed to an extreme—which I think has been done 

now—you start to lose it and you require Congress to legislate. 

We’ve seen that history for decades. 

I think the bill introduced by Senator Specter and Senator Kennedy protects the principles in the Constitution of checks and balances, of giving litigants an opportunity in court. We also have the 

other important constitutional principle of state secrets. I think we 

all recognize that they have to be protected. 

The problem with state secrets is that over the decades the executive branch has gone into court with information that’s not reliable—in fact, is false. There have been opportunities for the executive branch to correct the record and the executive branch doesn’t 

always do it. So to accept the statement by the executive branch 

as fact is very risky in this area. I provide many examples in my 

statement, a lot of appendices I put on my statement. 

I think that the state secrets privileges today, the way it’s been 

exercised, has done damage to the executive branch. It, therefore, 

does damage to government. It does damage to the United States 

here and abroad, and I think it does damage to the judiciary to the 

extent that courts are seen not as independent players, but as not 

much more than an arm of the executive branch. 

Judge Wald spoke about deference. What kind of standard should 

apply? I think the executive branch would like the utmost deference standard. I would not accept that. I would question even the 

need for deference because, as you know, on a national security 

case the executive branch already goes into court with quite a bit 

of advantage with their expertise. They also have the advantage, 

Mr. Chairman, as you mentioned, of ex parte, in camera proceedings. So they’ve already got an advantage. You can’t have private citizens go into court knowing that the game is almost over 

before it starts. 

So I would say that the standard would certainly be one of respect, not deference, and it would not be respect just for the executive branch, but respect for both sides. I call to your attention the 

al-Haramain case from last November, where the Ninth Circuit 

said: ‘‘We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege. Simply saying ‘‘military secret’’, ‘‘national security’’, ‘‘terrorist 

threat’’, or invoking the ethereal fear that disclosure will threaten 

our Nation is insufficient to support the privilege.’’ Yet a few lines 

later, the court says: ‘‘That said, we acknowledge the need to defer 

to the Executive on matters of foreign policy and national security 

and surely cannot legitimately find ourselves second guessing the 

13 

Executive in this arena.’’ So you can see the need for legislation to 

get some guidance. 

The bill defines state secret in this manner: ‘‘any information 

that, if disclosed publicly, would be reasonably likely to cause significant harm to national defense or foreign relations of the United 

States.’’ I think the definition favors executive power. There aren’t 

too many judges who are going to say to executive officials ‘‘I substitute my notion for national security and foreign affairs for 

yours.’’ 

So I would like to see a second sentence in the definition that 

says: ‘‘The assertion of a state secret by the executive is to be tested by independent judicial review.’’ That puts up front the independent quality you expect, and uses the word ‘‘assertion’’, which 

is the appropriate one. 

I would also like a third sentence: ‘‘The state secrets privilege 

may not shield illegal or unconstitutional activities.’’ We have a 

need for state secrets. I don’t know why we need a state secrets 

privilege that would shield illegal activity. 

Section 4055. I won’t go into the details, but it seems to me it 

gives defendants, such as the telecoms, an opportunity to avoid litigation if state secrets are involved. I think that’s a serious matter, 

that you would have people in the private sector and government 

acting illegally and made immune because state secrets are involved in the case. 

Thank you. 

Chairman LEAHY. Thank you. Thank you very much, Mr. Fisher. 

[The prepared statement of Mr. Fisher appears as a submission 

for the record.] 

Chairman LEAHY. Professor Robert Chesney teaches at Wake 

Forest University School of Law. He specializes in national security 

law. He has published in numerous academic journals, including 

the Michigan and North Carolina Law Reviews. 

He’s the founder and moderator of National Security Law. Is that 

correct? 

Professor Chesney. Yes. 

Chairman LEAHY. A list serve on national security issues. He recently served as the chair of the Section on National Security Law 

of the Association of American Law Schools. 

Before joining Wake Forest, Professor Chesney was a litigator at 

Davis, Polk & Wardwell while in New York City. He attended 

Texas Christian University and received his law degree from Harvard Law School. 

Professor, please go ahead. 

STATEMENT OF ROBERT M. CHESNEY, ASSOCIATE PROFESSOR, WAKE FOREST UNIVERSITY SCHOOL OF LAW, WINSTON-SALEM, NC 

Professor Chesney. Chairman Leahy, Senator Specter, and distinguished members of the Committee, thank you very much for allowing me to be here today to talk to you about the State Secrets 

Protection Act, which I’ll refer to as the SSPA. 

I’d like to make just a few points in my remarks, all of which 

are derived from my written testimony and explained in more detail there. 

14 

First of all, I think it’s important for us all to acknowledge that 

there’s a great deal in this bill that should not be controversial and 

that we should all be able to get behind. The vast majority of the 

provisions here represent codifications of existing practice, or at 

least practices that are tolerable and sometimes used under existing doctrine, and therefore there’s not much reason to be too concerned about them. 

Consider, for example, the proposition that it’s the judge and not 

the executive branch official who shall make the ultimate determination as to whether the privilege attaches. As Judge Wald said, 

that’s current doctrine and there’s no harm at all—in fact, there is 

some benefit—in codifying that. 

Similarly, as Carl mentioned, the executive branch does in fact 

provide—even in cases where there’s no specific item of evidence in 

issue—classified and unclassified declarations for ex parte review. 

There’s certainly no harm—and a lot of good when you take into 

account what happened in Reynolds—in clarifying that judges can 

and should review these items of information before making their 

determination. There are other examples. 

Of course, there’s some stuff in the bill that’s not just codifying 

what we do under the state secrets privilege. Most of it, also, I 

think, is unobjectionable—in fact, laudable. There are a few points 

that I think are likely to be controversial, however, and on a few 

of these I think there are compromise positions that are worth at 

least considering. I’d like to use my remaining time to identify 

these. 

First of all, I think the SSPA may go too far in its effort to add 

adversariality into the stage of the case when the judge is deciding 

whether the privilege attaches. Now, I want to be clear that I very 

much appreciate and applaud the spirit of adding adversariality. 

As you know, under current practice some of the most important 

elements of deciding whether the privilege attaches involves the ex 

parte presentation of the explanation from the government. 

That’s ideal from a security point of view, but not from an accuracy point of view. We all understand that adversariality, as the 

Chairman mentioned, is the touchstone of accuracy, and the more 

adversariality you can have, the more accurate your process will 

be. 

For that very reason, I endorse the idea of a guardian ad litem 

mechanism, and in particular I think it’s a terrific idea to break 

with current practice with respect to the ex parte information, appointing an attorney to stand in for the interests of the litigants 

to provide that adversariality. 

My personal preference however, is that this be done using a roster of pre-selected and pre-screened attorneys—a list that could be 

created and maintained by the Chief Justice of the United States, 

for example. 

The problem I have with the current legislation is that, while it 

has a guardian ad litem mechanism, it allows the judge to appoint 

literally anyone the judge might care to appoint for that role. Beyond that, it empowers the judge to skip the guardian mechanism 

altogether and permit the litigants’ attorneys to directly participate 

in the review and the arguments relating to the otherwise ex parte 

information. 

15 

I would note that even the more limited approach I’m endorsing 

is a significant break from current practice. It is also a departure 

from what goes on in CIPA in the Section 4 context, which I think 

is the CIPA scenario most analogous to what we’re talking about 

here. 

My next point is a related one. It concerns what the SSPA has 

to say about the scenario in which the government seeks the dismissal of a case on privilege grounds. Again, there’s a great deal 

to applaud, not least of which the very notion that we should try 

to minimize the circumstances where cases are dismissed. 

One of the most useful things done here, one of the best parts 

of the bill, is that it provides a clear ground for the government not 

to admit or deny an allegation, but instead to plead the state secrets privilege, and thus move beyond the pleading stage without 

being confronted with the obligation to admit classified or otherwise protected information. 

That said, there are concerns here as well. The SSPA addresses 

the scenario in which the government or a party has a defense that 

it can’t present without privileged information. I think it’s laudable 

to codify those procedures, but I am concerned about the way it’s 

done here in that it seems to call for a mini-trial on the evidentiary 

merits of the defense that apparently could include the litigants’ 

own attorneys, notwithstanding the conceded applicability of the 

privilege to the information necessary for that mini-trial. 

At a minimum, I think this section should be amended: first, to 

make it clear that such proceedings shall be in camera in all instances; second, that if there is a need for adversariality in that 

context, and there may well be, that we use the guardian ad litem 

mechanism that I just described; finally, I think we should also 

consider whether that particular process should not be an evidentiary mini-trial, but rather should be a legal sufficiency test 

akin to Rule 12(b)(6) adjudication. 

Finally, let me speak to perhaps the hardest issue, the scenario 

in which state secrets are the very subject matter of the litigation. 

In that scenario, the SSPA, as I read it, would not allow dismissal. 

I think that’s a scenario where we’re most likely going to see objections from the executive branch, that the SSP in that application 

would be unconstitutional. 

Let’s assume that Congress can, in fact, override the existing 

doctrine on this point, which perhaps it can. The question is, 

should it? In fact, more specifically, the question is, should Congress create a one-size-fits-all rule? We have a one-size-fits-all rule 

right now that favors the government winning in all such cases. It’s 

not clear to me that the best solution is to switch to a one-size-fitsall rule in which the government loses in all such cases or, rather, 

is put to the choice of losing or proceeding with the information 

being disclosed. 

I do think it’s important to remember that the impact of this legislation will be to concentrate the minds of judges, leading them to 

apply the privilege more rigorously. And I would emphasize in particular the notice provision in section 4058, which I think is very 

useful. It will put this Committee and others—and the Congress as 

a whole—in a position to know whether application of the privilege 

16 

in a given case has resulted in injustice, in which case the remedies of a private bill might be in order. 

I look forward to your questions. 

Chairman LEAHY. Well, thank you. Thank you very much. 

[The prepared statement of Professor Chesney appears as a submission for the record.] 

Chairman LEAHY. Our last witness is Michael Vatis. Did I pronounce that correctly? 

Mr. VATIS. Yes, sir. 

Chairman LEAHY. Thank you. He’s a partner with Steptoe & 

Johnson in New York City. His practice is focused on Internet ecommerce and technology matters. 

Prior to joining Steptoe & Johnson, he had a distinguished career 

in government. One of the things I followed at the time, is he was 

the founding director for the National Infrastructure Protection 

Center at the FBI, the first government organization responsible 

for detecting, warning, and responding to cyber attacks, including 

cyber terrorism, something we wish we didn’t need, but unfortunately we need more every day. 

Before that, he served as Associate Deputy Attorney General, 

Deputy Director of the Executive Office for National Security at the 

Department of Justice, where he worked on counterterrorism 

issues. He attended Princeton, and received his law degree from 

Harvard Law School. 

Please go ahead. I would indicate, if we have a roll call vote— 

you’ll have plenty of time to finish your testimony. If we do, we will 

just break briefly while we go to vote and then come back. 

Mr. Vatis, go ahead, please. 

STATEMENT OF MICHAEL VATIS, PARTNER, STEPTOE & 

JOHNSON LLP, NEW YORK, NY 

Mr. VATIS. Thank you, Mr. Chairman. 

Chairman Leahy, members of the Committee, I appreciate the 

opportunity to testify before you today about the state secrets privilege, and S. 2533 in particular. I will be very brief, but I do think 

it’s important to recognize that there are two significant trends 

that inform the discussion and understanding of the issue of the 

state secrets privilege. 

The first is one that you, Mr. Chairman, mentioned and that 

Senator Specter mentioned, and that is the recent aggressive assertions of executive power in many different areas, including the assertion of the authority to either disregard the law where it is perceived as infringing on the President’s Commander-in-Chief power, 

or the authority to reinterpret the law in the form of signing statements or by other methods. 

That, I think, is one important trend to keep in mind. The other 

trend that has gotten less focus in recent years is the fact of continuing over-classification of information by government officials. A 

decade ago, Senator Daniel Patrick Moynihan from New York 

chaired the so-called Moynihan Commission, which studied this 

problem and concluded that there was a great degree of over-classification at the time. 

I think real efforts were made in the late 1990s to address this 

problem, but if anything, over-classification has increased since 

17 

then. The problem stems from the fact that there really is no 

meaningful internal check within the executive branch to prevent 

classifying authorities from over-classifying information. 

So when you combine those two trends, what you end up with 

is a situation where there are more secrets and there is a more aggressive use of those secrets in many different contexts, including 

the context of asserting the state secrets privilege to thwart the 

vindication of people’s rights in civil litigation. It also, I think, results in the deterioration of effective checks and balances—including oversight by Congress and oversight by the judicial branch— 

which of course are such a fundamental aspect of our constitutional 

system. 

When considering the state secrets privileges, it is important to 

require meaningful judicial review of assertions of the privilege by 

the executive branch. I think the bill that has been introduced by 

Chairman Leahy, Senator Kennedy and Senator Specter does just 

that. But I also think—and here I think I disagree with a few of 

my colleagues on this panel—that it is important to recognize the 

executive branch’s constitutional responsibility for protecting our 

national defense and engaging as the principal organ of our foreign 

policy, and also to recognize the executive branch’s superior expertise in these fields. 

For that reason, I do think it is important that the bill specify 

that there should be deference to the executive branch’s assertions 

that disclosure of information would result in significant harm, or 

is reasonably likely to result in significant harm. I do not think 

that de novo review by a court of that determination would be appropriate. I think if the bill specifically called for de novo review, 

there would actually be more significant litigation and potential determination by the courts that the bill has constitutional flaws. 

Now, I would not let an executive assertion easily lead to the dismissal of litigation, and I think the bill has careful safeguards to 

prevent that from happening. I would also require that an executive assertion of the privilege be detailed and specific as to which 

information officials think cannot be disclosed without harming national security. 

But given all of those safeguards, I think it is important that the 

bill specify a particular standard of deference, and perhaps we can 

talk during the question period about what such standards of deference might be. There are many different options, but I do think 

that would be the one principal amendment that I would make to 

the bill. 

The last part that I will just mention, which I think should not 

go without touching on, is the importance of congressional oversight of this whole issue. I think the bill does that by providing for 

meaningful reports to Congress, to the Intelligence Committees, as 

well as to the Chairman and Ranking Member of this Committee 

and its counterpart on the House side. 

I think that is vitally important, because if you do have assertions of privilege resulting in some cases getting dismissed, congressional oversight will ensure that at least we don’t have systemic abuse of the privilege. There may be cases where a particular 

civil litigant is unable to vindicate his or her rights, but at least 

congressional oversight will ensure that we don’t have systematic 

18 

abuse of the privilege to hide government misconduct. I think that 

is vitally important. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Vatis appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. 

The vote has begun, so I am going to stand in recess, subject to 

the call of the Chair. It will probably take 5, 10 minutes to get over 

there and vote and come back, and we will start the questions. 

Some of our hearings are done because we have to do them and 

some are doing because they’re interesting. This follows both categories. It’s what we should do, and it’s also interesting. I thank 

you for the time you’ve spent. 

We’ll stand in recess, subject to the call of the Chair. 

[Whereupon, at 11:09 a.m. the hearing was recessed.] 

AFTER RECESS [11:42 a.m.] 

Chairman LEAHY. Thank you. 

Let me ask a couple questions. I was thinking. This is first to 

Judge Wald, but I was thinking, Mr. Nichols, of what you said earlier. I had mentioned the al-Masri case, Khalid al-Masri. Just put 

that back in perspective. German citizen, Lebanese descent, 

claimed he was kidnapped and transported against his will from 

Macedonia to Afghanistan under the Bush administration’s extraordinary rendition program. He claims it detained and tortured. 

The judge dismissed the entire lawsuit at the—I believe this was 

in a Virginia court. Is that correct? 

Judge WALD. Yes. 

Chairman LEAHY. The entire lawsuit, at the pleading stage, 

based on an affidavit from the CIA Director, the Court of Appeals 

affirmed. The Supreme Court declined to review the case. Now, this 

wasn’t on an argument or anything else. No evidence was taken, 

simply from the pleadings. At either the trial level or the appellate 

level, there was no review of actual evidence. 

The judge said in his decision that ‘‘al-Masri’s private interest 

must give way to the national interest in preserving state secrets.’’ 

I find that troubling because there was never any determination 

made whether there really were state secrets or whether it was a 

carton of milk on the helicopter. 

So, Judge Wald, do you agree with the judge’s calculation that 

it is only the litigant—in that case, Mr. al-Masri—who suffers 

when a court politely refuses to entertain a lawsuit that alleges serious government wrongdoing, or are there other interests at stake? 

Judge WALD. I think you can predict my answer, Senator Leahy. 

I think it is not, in that particular instance and in similar instances, only the claimant who is suffering. I think it is the appearance of justice. I think it is the perceived status of the judiciary as 

an ultimate protector of individual civil and constitutional rights. 

It’s been several months since I read the al-Masri case, but it 

does seem to me that many of the techniques and steps that you 

have outlined in this bill were ones that could have been followed. 

Whether they would have eventuated in a state secret privilege 

that must be recognized and could not allow the litigation to continue with other evidence, I don’t know. But we certainly knew at 

19 

the time that the fact that renditions were going on was something 

that was covered in every newspaper in the country. 

Chairman LEAHY. Isn’t it possible, without going into this case, 

to assume there might be cases if, if it’s in camera or otherwise, 

you had a hearing and determined some of the evidence is protected by state secrets, the case could go on on other evidence. Is 

that not correct? 

Judge WALD. Yes. 

Chairman LEAHY. Don’t courts do this all the time: this is going 

to be excluded, however, you can continue your case if you feel you 

still have one on what’s remaining. 

Judge WALD. That’s definitely a possibility in some of the cases, 

even some that I have actual knowledge of, that if the judge 

knows—and he would know if you passed the bill—that he should 

go through certain motions, that mentally he would go through certain loops, as it were, one of them being, if there is a state secret 

privilege somewhere here, first let me make sure that the litigant 

has exhausted his rights in discovery of any non-secret information. 

At that point, one could make a determination in some cases 

whether or not there’s enough evidence, non-secret evidence, to go 

ahead and make a prima facie case for the claimant, and then require the government to put on its defense of the case, or whether 

he should move into the state secrets privilege, look at it, and decide whether or not the government could produce a non-classified 

affidavit which had enough information in it which would help the 

claimant to go ahead with his right. So I think there are many 

steps that the judge should follow, and will follow, and will be glad 

to have some guidance in following before dismissing. 

Chairman LEAHY. If I might—and I apologize, Senator Specter. 

I’ve gone a little bit over here. But as I mentioned Mr. Nichols at 

the beginning, I wanted to be fair to him. 

You said, Mr. Nichols—my notes are that before asserting state 

secrets by the executive branch, 1) the privilege has to be invoked 

formally by the government; 2) the head of the department or agency has to invoke the privilege and not a lower-level official; 3) a 

senior official must personally consider the assertion and review of 

the materials; and 4) the Department of Justice must approve the 

assertion. But that is still assumes it could be done ex parte, in 

camera. 

A judge could make the determination based simply on the affidavit—assuming all these other steps, but it could still be the affidavit of the administration. In this case, it was something that was 

known in the press anyway—and agree to it. Is that fair? 

Mr. NICHOLS. Senator Leahy, if I could make a few points. 

Chairman LEAHY. Sure. 

Mr. NICHOLS. First, the courts have long recognized that ex parte 

adjudications are proper in national security cases. There’s a long 

pedigree of courts saying, we need to adjudicate issues ex parte because the alternative is disclosing to private litigants, who have no 

security clearances, necessarily, and certainly no independent need 

to know classified information— 

Chairman LEAHY. Well, even conceding that, doesn’t the court 

have an obligation if they’re going to do that to at least look beyond 

the four corners of the affidavit? 

20 

Mr. NICHOLS. Well, I think, Senator Leahy, that there’s a bit of 

an assumption built into your question, and that is that the declarations or the affidavits that are provided to the courts in the 

classified setting are basic, simple, and don’t contain details. 

Chairman LEAHY. I’ve seen some of these affidavits. I know they 

can be detailed. 

Mr. NICHOLS. And I think that the al Masri case is actually a 

very good example of the kind of steps we go through. If you look 

at the Fourth Circuit opinion—and I think it’s important to note 

that both the judge in the Eastern District of Virginia and all three 

judges on the Fourth Circuit agreed with us that we had properly 

asserted the privilege there, and the court said the following: the 

reason for the state secrets privilege and the Motion to Dismiss 

‘‘were explained largely in a classified declaration which sets forth 

in detail the nature of the information that the executive seeks to 

protect and explains why its disclosure would be detrimental to national security. We have reviewed the classified declaration and the 

extensive information it contains is crucial to our decision in the 

matter.’’ Then the court went on to say it then assessed whether 

the case could proceed. 

The court said the plaintiff would have to come forward and 

make his prima facie case, but that showing could be made only 

with evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations, which seems to 

me a very reasonable thing that we don’t want to be disclosing publicly, how the CIA organizes, staffs, and supervises its most sensitive intelligence operations. 

Then even if the plaintiff could come forward with a prima facie 

case, the defense side would have to prove, potentially, whether alMasri was or was not subject to the treatment, whether or not the 

defendants were involved, and the nature of their involvement. As 

the court says, any of those three showings on the defense side 

would require disclosure of information regarding the means and 

methods by which the CIA gathers intelligence. So I think the alMasri case is a perfect example of the steps that the executive 

branch goes to in providing very robust classified submissions— 

Chairman LEAHY. You understand that some would think that 

the al-Masri case provides a great example of why the procedures 

are stacked in favor of the government. 

Mr. NICHOLS. I understand people say that, but I think that a 

review of the Fourth Circuit’s opinion, which is an extremely careful analysis, makes clear that there is a significant difference. I 

think this is very important. There is a significant difference between being able to talk about an issue, like whether there’s a program that the CIA might have, and actually litigating a particular 

plaintiffs claims under that program, which requires very specific 

facts and details about what happened, who did it, where, when, 

and why. Those are the kind of details that the court looked at and 

said, we believe the state secrets assertion is properly asserted 

here. 

Chairman LEAHY. I’ll re-read the case. I remain somewhat skeptical. 

Judge WALD. Could I just add one sentence? 

Chairman LEAHY. One sentence. 

21 

Judge WALD. One sentence. 

Chairman LEAHY. One sentence. I am really way over my time. 

Go ahead. 

Judge WALD. The one sentence is that everything Mr. Nichols recounted I’m sure is true, but it was essentially a dialogue between 

the executive and the court. In other words, the plaintiff had no 

participation. 

Mr. FISHER. The problem with al-Masri is, the balancing test 

that you gave is al-Masri against the national interest. No individual would have a chance unless you stopped to say that it is not 

in the national interest to take an innocent person and put him 

away for 5 months. So, that’s a test that’s not useful. 

Chairman LEAHY. Thank you. 

Senator Specter. 

Senator SPECTER. Judge Wald, you have referred to a standard 

of review, talking about de novo substantial weight to the government. Consideration had been given to a balancing test and this 

proposal does not have a balancing test. It would grant the government’s claim on the determination by defining ‘‘state secret’’ as any 

information that, if publicly disclosed, would be reasonably likely 

to cause significant harm to the national defense or foreign relations of the United States. 

Do you think that there ought to be consideration for the person 

seeking the information which would import a balancing test? Is 

that what you’re thinking about as a standard of review? 

Judge WALD. Not necessarily. If I might make two quick points. 

One, several of the courts have pointed out—I think it may actually 

be in one of the Supreme Court cases, though I can’t cite you—that 

once you find that the state secrets privilege applies, there is no 

balancing of that against the need of the— 

Senator SPECTER. Do you agree with that? 

Judge WALD. Well, I guess I do, if it’s genuinely a state secret 

that is going to cause, by your definition, significant harm to the 

national defense or the military or diplomatic relations. 

Senator SPECTER. Mr. Vatis, do you think there ought to be a 

balancing test? 

Mr. VATIS. I don’t. I think a balancing test makes no sense. I 

think the plaintiff or civil litigants’ interests should be examined 

and weighed in determining what summaries or what substitute 

evidence should be made available in lieu of state secrets. But I 

think at the end of the day if the court agrees with the executive 

branch’s determination that disclosure would be reasonably likely 

to cause significant harm, I don’t think it should matter how much 

the civil litigant needs the information, it should not be disclosed. 

Senator SPECTER. Professor Chesney, how do you evaluate the 

contention that it really isn’t any business of the court to make a 

judgment on what is national security, that that’s an executive 

branch decision and the court ought to accept the executive branch 

determination? 

Professor CHESNEY. I don’t think that judges should have to accept the executive branch’s determination. It’s clearly appropriate, 

and is required in current doctrine, that the judge ultimately has 

to make the decision whether the substantive test in this bill or in 

current doctrine has been satisfied. That said, I do think that some 

22 

degree of non-binding deference needs to be shown to, for example, 

the Director of National Intelligence when, in his judgment, there 

would be such a harm from the disclosure. That official’s judgment 

can’t be entirely binding, but it should be given great weight. 

Senator SPECTER. Mr. Nichols, what’s your view on whether the 

courts should second-guess the executive branch on what is a state 

secret, or second evaluate? 

Mr. NICHOLS. Senator Specter, the courts have recognized, and 

I think they’re right to do so, that the executive branch is in far 

better institutional position to determine whether the disclosure of 

a particular piece of information is going to harm national security. 

Courts have recognized for many years that the executive branch 

has the full panoply of intelligence information, foreign relations 

information, and the like to know whether, and where, a particular 

piece of information sits and whether it makes sense or not to 

allow that piece of information to be disclosed. That’s not to say 

that when the executive branch has made that determination, that 

the courts have no role. But the courts have said, I think— 

Senator SPECTER. Well, what is, then, the court’s role? 

Mr. NICHOLS. The Supreme Court has made clear that the courts 

must review both the procedural components, i.e., that all of the 

steps are set up to ensure, and I think— 

Senator SPECTER. When you come to grips with the evaluation of 

whether it’s a legitimate, genuine state secret, what’s the court’s 

role? 

Mr. NICHOLS. It should defer, but it should not abdicate its responsibility to review. In other words, implausible— 

Senator SPECTER. Those words are all right. I’ve got 26 seconds 

left. 

Mr. Fisher— 

Chairman LEAHY. I took extra time. You take extra time. 

Senator SPECTER. No. I like to observe—well, okay. 

Mr. FISHER. Of course, I have a problem with the two words ‘‘national security’’. They can be so broad to swallow everything. You 

probably remember the first compulsory flag salute case in 1940 

was decided on national security grounds. So if the court ever said, 

in national security we have a subordinate role, it would be very 

destructive to an independent court. 

Senator SPECTER. Mr. Fisher, how would you define the role of 

the courts vis-a-vis the executive branch determination of what is 

a state secret? 

Mr. FISHER. I don’t think they should rely on affidavits and declarations, even if classified. I think they have to look at the evidence and come to a determination that has respect for the government’s position and the private party’s position, because that’s the 

one place we’re supposed to have some opportunity for justice, and 

you can’t do it if you have advance deference. 

Senator SPECTER. Well, my time has expired. I yield, Mr. Chairman. 

Chairman LEAHY. Are you sure you don’t have any more? 

Senator SPECTER. That’s fine. No. 

Chairman LEAHY. Senator Feingold. 

23 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I want to salute 

you, Mr. Chairman, the Ranking Member, and Senator Kennedy 

for taking the initiative on this issue. A rigorous examination of 

the state secrets privilege is long overdue, and I think this hearing 

will provide critical support for legislative efforts to fix the problem. 

In a democracy, the public should have the right to know what 

its government is doing. That should be the rule. Secrecy should be 

the rare exception, reserved for the few cases in which the national 

security is truly at stake. 

Unfortunately, this administration has stood that presumption 

on its head. It cloaks its actions in secrecy whenever possible and 

grudgingly submits to public scrutiny only when it can’t be avoided. 

And the state secrets privilege is a favorite weapon in the administration’s arsenal of secrecy. 

None of us disputes that information may properly be withheld 

as a state secret when disclosing the information would cause 

grave damage to national security. The problem arises when the 

privilege is abused and invoked to shield government wrongdoing. 

Indeed, that is exactly what happened the first time the Supreme 

Court recognized the privilege in 1953, in the case of United States 

v. Reynolds. The government had been sued after a military aircraft crash killed nine people, and it invoked the state secrets privilege to shield an internal investigative report. Decades later, when 

the report was declassified, it revealed nothing that could fairly be 

characterized as a state secret—but it did reveal faulty maintenance of the aircraft. 

Abuses like these can be prevented, but only if the courts fulfill 

their responsibility to carefully review claims of privilege. In the 

Reynolds case, no court actually looked at the privileged report. 

The government must be required to submit allegedly privileged information to the courts for in camera review. Courts handle highly 

classified information on a regular basis. There is no legitimate justification for skipping this crucial step. 

Furthermore, a determination that certain information is privileged should be the beginning of the analysis rather than the end. 

As Congress recognized when it passed the Classified Information 

Procedures Act, courts have many tools at their disposal to move 

litigation forward, even when some of the evidence cannot be disclosed. For example, courts can require the government to submit 

non-privileged substitutes for the privileged evidence, or fashion a 

variety of other remedies to serve the interests of justice. 

The need for these common-sense measures is greater than it has 

ever been. This administration has invoked the state secrets privilege to block judicial scrutiny in cases ranging from warrantless 

wire tapping, to extraordinary rendition, to employment discrimination. A country where the government need not answer to allegations of wrongdoing is not a democracy. We must ensure that the 

state secrets privilege does not become a license for the government 

to evade the laws that we pass. I commend the Chairman, the 

Ranking Member, and Senator Kennedy for making sure this is 

being considered. 

24 

Judge Wald, in your written testimony, you discussed a Freedom 

of Information Act case in which the government claimed the right 

to withhold a large amount of classified information. With the help 

of a special master, the court reviewed the information and determined that 64 percent of the material could be released. How common is it, in your experience as a judge, for the government to assert a privilege that ultimately turns out to be inapplicable? 

Judge WALD. My direct experience, Senator, is limited to a few 

cases. That’s probably the outstanding one where that happened. 

However, I am aware of not a great many, but several cases—let 

me put it that way, several cases—where indeed, when the evidence was looked at, it was determined by a court to have been, 

how shall I say, vastly over-classified. 

I think the problem of over-classification that Mr. Vatis referred 

to, everybody knows that that’s true. Peter Goss, who is the head 

of CIA, says so. Rumsfeld has issued statements when he was at 

the Defense Department, saying he knows it’s too easy to over-classify material. So there are instances. 

In fact, if there’s been any criticism under the FOIA Exemption 

1, it’s been that the courts have been too reluctant to use the power 

which was given them by Congress which says they can look behind a classification and see if it’s been reasonably classified to actually do that. I can’t say I’ve encountered many, many, many 

cases. I can say I’ve encountered, either myself or through my colleagues, several cases where material should not have been subject 

to state secrets or classified that was. 

Senator FEINGOLD. Have you ever experienced or observed a situation in which the government submitted affidavits asserting the 

state secrets privilege and then either withdrew the privilege claim 

or publicly disclosed the same information in some other venue? 

Judge WALD. I am aware of some Freedom of Information cases 

where the initial classification—the initial exemption was raised 

for many documents, and after negotiation, et cetera, and sometimes the court remanding for additional affidavits, et cetera, some 

of that was subsequently disclosed. I think every Freedom of Information Act lawyer that I know that deals with Exemption 1 has 

had some experiences where the initial invocation of privilege after 

negotiation or a remand has been cut down, cut back, and more 

evidence has been disclosed. 

Senator FEINGOLD. I thank the panel. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator. 

Mr. Vatis, I spent a lot of time looking at some of the areas that 

you worked in at the FBI and Department of Justice. You say, and 

I agree, the protection of sensitive sources, methods, and details of 

weapons systems, for example, is absolutely essential. 

I don’t think you’ll find anybody on this panel, Democratic or Republican, who would disagree with you. But then you say—and this 

is a quote that jumped out at me—‘‘there are secrets and then 

there are secrets’’, the point being that the executive branch often 

over-classifies or claims the need for secrecy and it’s too absolute 

because there’s no check on those claims. 

I mean, we’ve seen things marked ‘‘Top Secret’’ that were on a 

government Web site for 6 months, or they’ve been in the National 

25 

Archives for years. We are now spending several billion dollars a 

year to classify stuff, classify things that—we’ve actually had people testify in open session, and then all of a sudden say, oh, that’s 

got to be classified, so we can’t use it in debate. Do the courts need 

to make more of an independent judgment on this, and can we 

trust courts to make sound judgments? 

Mr. VATIS. I think we can trust courts, Mr. Chairman, to make 

sound judgments. The problem is, the windows of opportunity for 

courts to get involved are relatively few and far between. Assertions of the state secrets privilege, even if you believe that this administration is asserting it more, are still relatively rare. 

FOIA cases are more frequent, so they present an opportunity for 

courts to assess classification. But there is still so much more 

classifying going on that I don’t think that the courts alone provide 

a meaningful enough check. They’re still looking at discrete bits of 

information, and their review often is so long after the fact that it’s 

not as helpful as it might be. 

So I think there’s actually a greater role for Congress in trying 

to stem the over-regulation of information—which secrecy is really 

all about. I think one of the great insights of the Moynihan Commission is the idea that secrecy, or classification of information, is 

a form of regulation, and that this is one area in which the government, I think everybody would agree, is over-regulating. Congress 

needs to step in. 

Chairman LEAHY. It’s interesting when you mentioned the Moynihan Commission. Senator Moynihan’s office was just down the 

hall from mine, and we used to have some long discussions about 

this. You also just mentioned FOIA. We have passed a FOIA bill 

which, after opposition from the administration—it was a very bipartisan bill that got heavy, heavy support from both sides of the 

aisle, our argument being, we’re passing it now when we don’t 

know who’s going to be the next President so nobody is saying it’s 

aimed at a particular person. 

But when the President signed it around New Year’s Eve, they 

also then quietly put a thing into the President’s budget to basically repeal part of the act he signed. The act, without going into 

all the technicalities of it, allows disputes of what should be looked 

at in FOIA that will be handled by the U.S. Archivist, who has always been a non-political figure. They want to move that back into 

the Justice Department, the same department which, of course, 

was directed by the memo from former Attorney General Ashcroft 

saying, basically, resist all FOIA requests, or almost all. 

So I think real secrets, nobody questions. But I think too often 

secrets become secrets for convenience or to cover up mistakes or 

embarrassment. That’s just a long way around of saying, I agree 

with your line, ‘‘there are secrets, and then there are secrets.’’ 

Senator Kennedy is here. I am going to another hearing that I’m 

late for, so I’m going to turn it over to Senator Kennedy, and if you 

could wrap up when you finish. 

Senator KENNEDY. Thank you. All right. 

Chairman LEAHY. Thank you. 

Thank you all very much. We’ve actually had—and Senator Kennedy is here, but both have had two very interesting panels, entirely different, this one, the other one on the presidential papers 

26 

where we had the foremost historians of this country testify, sitting 

where you are, just a week ago. 

Senator KENNEDY. That’s it. 

Chairman LEAHY. Thank you. 

Senator KENNEDY. Thank you, Senator Leahy, again, for having 

this hearing and for your strong commitment to this issue and your 

willingness to move this whole process forward, which gives us a 

good sense of hope that we could make some progress. 

And to our witnesses, thank you for remaining here. I would like 

to, just very quickly, go into two areas, but they are important. 

One, is the constitutionality of our bill. We have to be clear about 

this issue, I think, to the extent that we can, that the actions that 

we’re talking about here are justified in view of any constitutional 

considerations. 

I’ll ask Judge Wald. 

Judge WALD. Senator, I don’t see anything in this bill which, to 

my mind, raises any serious constitutional objection in the sense 

that ultimately, even when all of the techniques are used and all 

of the procedures are used, the bottom line is that if the judge does 

find that there is a state secret, nothing in here requires him to 

reveal it, and in fact tells him he should not reveal it. So, in that 

sense, something that is a genuine state secret will not get revealed as a result of this bill. 

The only constitutional problem I could even conceptualize would 

be a kind of shared power. I think Mr. Nichols may have alluded 

to the fact that some courts have suggested that the state secrets 

may be derivative, at least in part, from the executive’s constitutional obligation to protect the national security. 

But this is the same kind of shared power problem that you have 

had to meet in FISA and in several of the other things, and which 

Justice Jackson in the Steel Seizure case met in which he set out 

his famous triumvirate, that the executive’s power is at its lowest 

ebb when Congress has actually legislated in the area. So in its 

present form, I don’t see any constitutional objections. 

Senator KENNEDY. Mr. Fisher. 

Mr. FISHER. I would like to add that if the executive branch invokes Article II, Congress can invoke Article I. So the fact that the 

President has certain Article II powers doesn’t stop Congress from 

legislating. In fact, I think Congress is the only legitimate branch 

here that can tackle the state secrets privilege. The courts could do 

it, but the courts have not done it. You can’t ask the executive 

branch to police it, they’re one of the litigants. So I think Congress 

has all the legitimacy in the world to provide the guidelines in the 

future. 

Senator KENNEDY. Good. 

Any others? Yes. 

Professor Chesney. Senator, may I? 

Senator KENNEDY. Mr. Chesney. 

Professor Chesney. There are two different ways Congress can 

legislate here: it can regulate and it can abrogate. The power to 

regulate, I think, is clearly within the constitutional power of Congress, enabling it to create rules that will govern the process of adjudicating the privilege. That covers the bulk of what’s in this bill. 

The tougher question is whether, if there’s anything in this bill 

27 

that actually overrides or abrogates the privilege, Congress can do 

that. In that case, you get into the question of whether you’re in 

Justice Jackson’s third category, the lowest ebb, uncertainty as of 

who wins. 

The two areas that even arguably go near that question are, 

first, the language that permits the government to raise a defense 

as a ground for dismissal but otherwise bars dismissal on privileged grounds. That has the effect of preventing the government 

from seeking dismissal based merely on the fact that the suit concerns privileged information, at least where there is no particular 

defense to raise. So the net effect of that language is to create a 

crime-or-illegality exception to current doctrine. 

I don’t think we really know for sure what result is most likely 

were that approach to be challenged on constitutional grounds. I 

assume the executive branch would argue that constitutionally dismissal still is required in that scenario. I don’t think they necessarily would win on that argument, but that’s one area where 

constitutional objections would come up. 

Second, insofar as the process of adjudicating privilege as 

sertions would involve adversariality in the form of actually disclosing the information to the litigants on the other side before the 

privilege is resolved, I can see the executive branch objecting on 

constitutional grounds there as well. 

Senator KENNEDY. Okay. 

Mr. VATIS. Senator Kennedy, I don’t think there’s a serious constitutional objection to Congress’ getting involved in this area and 

passing a statute that regulates the process for assessing the executive branch’s assertion of the privilege. The one place that I think 

there would at least be a constitutional issue, though, is if the bill 

either expressly called for, or was interpreted as calling for, de 

novo determination by a judge of whether disclosure would result 

in harm to national security. 

Because that sort of determination of harm implicates the President’s Article II power, I think there would be a colorable argument that de novo review would impinge on the executive’s authority. So that’s one of the reasons I think it’s important to specify a 

standard of review in the bill and to make it clear that some level 

of deference should be accorded to the executive branch’s determination of the likelihood of harm to national security. 

I would couple that standard of review, though, with some specific language requiring that the assertion of harm be made in a 

very specific and detailed way, so that you don’t just have blanket 

assertions of the privilege, with the executive saying that disclosure will harm national security, period, or disclosure will harm 

our diplomatic relations, period. There needs to be specificity. If 

there is such specificity, I think the procedures that are in the bill 

will do a great deal to prevent abuse of the privilege. 

Senator KENNEDY. Now, let me follow up on that, Mr. Vatis. In 

your testimony, you expressed strong support for the legislation but 

you suggested we codify the standard for judicial review, something 

that the bill, like virtually all bills—does not do. 

So how do you respond to the experts like Judge Wald, Judge 

Webster, and Mr. Fisher, who have argued that judges ought to be 

28 

respectful of the government’s claims of privilege, but that no special deference is appropriate? 

Mr. VATIS. I think it’s important to specify and codify the standard of review, for two reasons. First, if you don’t, there will be differing opinions among judges about what the level of deference 

should be. They will argue about this until it’s ultimately resolved 

by the Supreme Court. I think it’s fully appropriate for Congress 

to make the determination of what the standard of review should 

be and not let this just be litigated with inconsistent results. 

The second reason is the constitutional one. I think there would 

be a serious argument of at least constitutional problems, if not 

outright, unconstitutionality, if there was no deference called for at 

all. So I think Congress should provide for deference, but, again, 

make sure that the bill doesn’t allow for the executive to use that 

deference to abuse the privilege. 

Senator KENNEDY. Let me throw out some possible standards. 

Should the courts give substantial weight to the executive? Some 

weight? Something else? Who wants to take a crack at it? 

Mr. FISHER. Let me just point to your problem with the word 

‘‘deference.’’ You can look it up in the dictionary, and there’s no 

agreement even on what ‘‘deference’’ means. It could be ‘‘lean in 

your favor’’, it could be ‘‘respects.’’ So I don’t think the word ‘‘deference’’ helps. It clouds. 

I think Judge Wald and others have worked with standards like 

what weight should be given, but I don’t like litigation where, in 

advance, you know that the judge is giving substantial weight or 

deference to one side before the case begins. 

Senator KENNEDY. Yes? 

Professor CHESNEY. I’ll join in and add—I’m sorry, Judge. Please. 

Judge WALD. Okay. I was just going to say that I think Mr. Vatis 

is worried about specifying de novo review because it might have 

some constitutional problems, but I believe that Congress already 

did that in the 1974 amendment, which you led the fight on, in 

FOIA 1. I think it’s de novo review, and it’s the report that says, 

but of course they should give ‘‘substantial weight’’ to the affidavits 

of the government. There are many judicial formulations of de novo 

review, which then say, of course you should give different weights 

to some testimony others. Deference is a funny word. It means two 

things. 

It means in some instances, as Mr. Fisher showed in it double 

usage in the Ninth Circuit case, we’re going to defer, we’re going 

to go in there with the notion that if they show themselves to be 

reasonable, that’s enough. 

The other lesser meaning is just, we take account of the fact that 

these people know what they’re doing and they’ve got a lot of experience, the same way we would do for a patent expert if the judge 

had a patent case and didn’t know anything about it. So, actually 

I think I’d prefer the weight kind of thing, because judges do that 

all the time. They give whatever due weight should be accorded to 

the expertise of the individual testifying. 

Professor CHESNEY. I agree with Judge Wald on that. Choosing 

among a bunch of not very good options, the best terminology is 

‘‘weight’’ terminology. 

Judge WALD. I agree. 

29 

Professor CHESNEY. Something along the lines of ‘‘substantial 

weight’’ or ‘‘great weight.’’ The reality is that the way it’s calibrated, in terms of adjectives, won’t actually affect much how the 

judges ultimately apply it. This exact same issue arises in the context of executive branch interpretations of treaties and the question 

of how much weight judges should give to such interpretations, and 

the formulations of deference in that context have varied over the 

years without really changing substantive outcomes. 

Mr. NICHOLS. Senator Kennedy, if I might. 

Senator KENNEDY. Sure. 

Mr. NICHOLS. I think there are a couple of components to the 

question, and I’d like to break them apart. There’s a constitutional 

issue lurking here about whether Congress can require—notwithstanding decades-long precedent that says that in a assessing state 

secrets privilege assertion, that the courts must give utmost deference to the executive branch, and they often say that in constitutional terms. 

So there’s a question, and it’s not just an Article 1, Article 2 

issue, but it’s actually whether Congress could constitutionally give 

to Article 3 courts the ability to second-guess the executive branch 

on questions of national security. That’s a constitutional issue. I 

think the courts have long made clear that deference is appropriate 

in this area, both for constitutional concerns, but there’s a policy 

reason. 

That is, as I mentioned to Senator Specter before, the executive 

branch has before it all of the information relating to national security, intelligence programs, foreign relations. The Director of National Intelligence, as an example. When he asserts the state secrets privilege, he knows the full panoply of information and he can 

tell, he is the best situated to know whether the disclosure of a 

particular piece of information, given all that he knows, will harm 

national security. 

With all respect, that is simply not something that courts are institutionally as capable of assessing, and any standard of review 

that would have a court substituting its judgment for the considered judgment of someone like the Director of National Intelligence 

strikes me as, (A) potentially unconstitutional, but (B) more important, not very good policy. 

Senator KENNEDY. Let me sort of go to a related issue. Judge 

Wald, why are judges well-prepared to review sensitive national security claims? 

Judge WALD. Well, judges handle classified information in a variety of sources and they handle them every day. Just last week, 

Judge Burkima, who presided over the Moussaoui trial, gave a talk 

at American U, in which she said she felt that as a Federal judge 

she’d be glad to take another Moussaoui trial the next day. She felt 

she had the equipment she needed, the techniques she needed, and 

that judges are handling classified information in a variety of 

sources and are used to doing it. 

Now, judges often have to deal with complex matters about 

which they don’t instinctively know anything. I mean, some of the 

patent cases, some of the industrial contract cases, I know in many 

instances national security may have even higher stakes. But in 

terms of the complexity and the ability to look at all the material, 

30 

and to weigh it, and to give due regard to the sources which should 

be given due regard is something that they do, and they have to 

do. The Constitution ultimately says that it is the courts who shall 

declare what the law is. That goes back to Marbury v. Madison. 

Even when you have conflicts between executive branch and Congress, it is the courts who are supposed to ultimately decide. 

Admittedly they don’t like to do that very much and they steer 

away through doctrines like political question, et cetera, but basically that’s where the decision-making power lies. And certainly 

that is where the common law privilege, state secrets privilege, 

originated in the courts, the recognition of it. 

So I think it is something which courts take seriously and that 

they can master, and their temperament is such that they are not 

going to leap in and just put their own immediate view ahead of 

all of the expert testimony that comes before them. 

Mr. FISHER. Let me just add, on war power issues the Supreme 

Court, starting in 1800 and going up at least to the Korean War, 

took all the war power cases. They never said, oh, this is a sensitive matter, we don’t have competence. They took them all except 

for two cases I know of during the post-Civil War period. 

So I think we were thrown off guard in the Vietnam period 

where courts, as you remember, ducked those cases by the dozens 

on political question, mootness, ripeness, prudential considerations, 

you name it. So a lot of people, including judges today, were educated during the time where courts were ducking. But if you look 

at our history, courts have handled national security, war power 

issues, foreign affairs issues from the start and they’ve never 

ducked them, never felt that they were inadequate to handle such 

cases. 

Senator KENNEDY. Okay. Well, this has been an enormously 

helpful hearing. I’ve learned a lot from it, and I know our colleagues valued it very highly as well, so we want to thank all of 

you. It’s been very constructive and useful, and I’m sure we’re 

going to have additional questions as we move this whole process 

along. But I want to thank you all again for coming here today. 

The Committee stands in recess. 

[Whereupon, at 12:26 p.m. the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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