U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

43–832 PDF 2009

STATE SECRETS PROTECTION ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

H.R. 5607 

JULY 31, 2008 

Serial No. 110–155 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 31, 2008 

Page 

THE BILL 

H.R. 5607, the ‘‘State Secrets Protection Act of 2008’’ ......................................... 4 

OPENING STATEMENTS 

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

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

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

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

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

Rights, and Civil Liberties .................................................................................. 17 

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

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

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 19 

WITNESSES 

Ms. Meredith Fuchs, General Counsel, National Security Archives 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 27 

Mr. Steven Shapiro, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 37 

Prepared Statement ............................................................................................. 39 

Mr. Michael A. Vatis, Partner, Steptoe & Johnson, LLP 

Oral Testimony ..................................................................................................... 51 

Prepared Statement ............................................................................................. 53 

Mr. Bruce Fein, Chairman, The American Freedom Agenda 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Los Angeles Times article dated May 21, 2006, submitted by the Honorable 

John Conyers, Jr., a Representative in Congress from the State of Michigan, Chairman, Committee on the Judiciary, and Member, Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties ...................................... 20 

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

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

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

and Civil Liberties ............................................................................................... 22 

(1) 

STATE SECRETS PROTECTION ACT OF 2008 

THURSDAY, JULY 31, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 12:33 p.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Davis, 

Wasserman Schultz, and Franks. 

Staff present: David Lachmann, Subcommittee Chief of Staff; 

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

Caroline Mays, Majority Professional Staff Member; Paul Taylor, 

Minority Counsel; and Charlotte Sellmyer, Minority Professional 

Staff Member. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. Without 

objection, the Chair is authorized to declare a recess of the hearing. 

We will now proceed to Member’s opening statements. As has 

been the practice in this Subcommittee, I will recognize the Chairs 

and Ranking Members of the Subcommittee and of the full Committee to make opening statements. In the interest of proceeding 

to our witnesses and mindful of our busy schedules, I would ask 

that other Members submit their statement for the record. Without 

objection, all Members will have 5 legislative days to submit opening statements for inclusion in the record. 

The Chair now recognizes myself for 5 minutes for an opening 

statement. 

Today, the Subcommittee examines legislation that would codify 

uniform standards for dealing with claims of a state secrets privilege by the government in civil litigation. In January, we had an 

oversight hearing on the state secrets privilege. Based on the findings of that hearing and the very insightful testimony we received, 

I introduced H.R. 5607, the State Secrets Protection Act of 2008, 

on March 13. 

Our hearings over the last 2 years and the Administration’s persistent attempts to withhold information from Congress have demonstrated the destructive impact that sweeping claims of privilege 

and secrecy have had on our Nation. Claims of secrecy have been 

used to conceal matters from Congress, even though Members have 

the security clearance necessary to be briefed in an appropriately 

2 

secure setting. That has been the case with respect to the use of 

torture, illegal spying on Americans and other matters of tremendous national importance. 

We have a constitutional obligation to conduct oversight, and the 

facts that have begun to come out certainly demonstrate the consequences of the misuse of state secrets claims. This same pattern 

of resorting to extravagant claims of state secrets has also been evident in the courts. While this Administration did not invent the 

use of the state secrets privilege to conceal its wrongdoing, it certainly has perfected the art, whether it is rendition to torture, illegal spying or government malfeasance, the state secrets privilege 

has been abused by Administrations past and present to protect officials who have behaved illegally or improperly rather than to protect the safety and security of the Nation. 

The landmark case in the field, U.S. v. Reynolds, is a perfect case 

in point. The widows of three civilian engineers sued the government for negligence stemming from a fatal air crash. The government refused to produce the accident report, even refusing to provide it to the court to review, claiming it would reveal state secrets. 

The Supreme Court concurred without ever looking behind the government’s unsupported assertion that national security was involved. 

A half-century later, the report was found online by the daughter 

of one of the engineers, and it contained no sensitive information. 

It did, however, reveal that the crash was caused by government 

negligence. So, in other words, the government committed a fraud 

on the court in order to hide embarrassing information and protected itself by misuse of the state secrets doctrine. And this fraud 

on the court ended up in plaintiffs losing evidence which they 

clearly should have had. 

Protecting the government from embarrassment and liability, not 

protecting national security, was the only justification for withholding the accident report. Yet these families were denied justice 

because the Supreme Court never looked behind the government’s 

claim, its wrongful and knowingly deceitful claim, to determine 

whether it was valid. 

It is important to protect national security, and sometimes it is 

necessary for our courts to balance the need for individual justice 

with national security considerations. Congress has in the past balanced these important albeit sometimes competing demands. In the 

criminal context, we enacted the Classified Information Procedures 

Act to protect classified information without derogating the rights 

of the accused. In FISA, we set up procedures for the court to examine sensitive materials. Through the Freedom of Information 

Act, we sought to limit any withholding of information from the 

public, whom the government is supposed to serve. 

We can and should do the same in civil cases. Our system of government and our legal system have never relied on taking assurances at face value. The courts and the Congress both have a duty 

to look behind what this Administration or any Administration 

says to determine whether or not those assurances are well-founded. 

Presidents and other government officials have been known to 

lie, especially when it is in their interest to conceal something. The 

3 

founders of this Nation assumed that there needed to be checks in 

each branch of government to prevent such abuses from taking 

place. Courts have a duty to protect national security secrets, but 

they also have a duty to make an independent judgment as to 

whether state secrets claims have merit. 

When the government itself is a party, the court cannot allow it 

to become the final arbiter of its own case. In particular, the courts 

cannot allow cases to be dismissed on a motion to dismiss on the 

unsupported allegation that defending the case will necessitate the 

revelation of state secrets and so the party never even gets a day 

in court. The purpose of this legislation is to ensure that the correct balance is struck, that litigants have their day in court and 

that national security is also protected. 

I look forward to the testimony of our witnesses. 

[The bill, H.R. 5607, follows:] 

4 


HR5607-1.eps
5 


HR5607-2.eps
6 


HR5607-3.eps
7 


HR5607-4.eps
8 


HR5607-5.eps
9 


HR5607-6.eps
10 


HR5607-7.eps
11 


HR5607-8.eps
12 


HR5607-9.eps
13 


HR5607-10.eps
14 


HR5607-11.eps
15 


HR5607-12.eps
16 


HR5607-13.eps
17 

Mr. NADLER. I would now recognize our distinguished Ranking 

minority Member, the gentleman from Arizona, Mr. Franks, for his 

opening statement. 

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

state secrets privilege is a longstanding legal doctrine that keeps 

all Americans safe. The Supreme Court most recently described 

that doctrine in a case called United States v. Reynolds. In that case, the Supreme Court made clear that when a court 

reviews a case in which the central issues involve sensitive, classified, national security information, the courts have a responsibility 

to determine whether disclosure of the information at issue would 

pose a reasonable danger to national security. If the court determined that public disclosure of such information would harm national security, the court is obliged to either dismiss the case or 

limit the public disclosure of national security information as necessary. 

Under this doctrine, people with legitimate claims are not denied 

access to court review, rather the doctrine allows judges to personally review any sensitive information if necessary. While this doctrine may occasionally disadvantage someone suing in court, it is 

absolutely necessary to protect our national security and the safety 

of all Americans. 

The roots of the states privilege extend all the way back to the 

Supreme Court’s decisions in Marbury v. Madison. And the privilege is grounded in large part in the Constitution’s separation of 

powers principles. In that case, the court ruled that executive 

branch officials are not obligated or obliged to disclose any information that was communicated to them in confidence. Four years 

later, the same Chief Justice Marshall who wrote the opinion in 

Marbury held that the government need not produce any information that would endanger the public safety. 

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

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

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

place by the Supreme Court in its Reynolds decisions. At approximately the same time, the Supreme Court continued to indicate 

that the state secrets privilege derives from separation of powers 

considerations when it handed down its decision in United States 

v. Nixon. 

In that case, the court endorsed executive privilege as a ‘‘fundamental to the operation of government and inextricably rooted in 

the separation of powers under the Constitution.’’ It also went out 

of its way to say that sensitive information should not be disclosed 

if it involves military, diplomatic or sensitive national security secrets. The Fourth Circuit took exactly the same position in affirming dismissal of a case brought by Khaled el-Masri, in which the 

court concluded that the state secrets privilege, quote, has a firm 

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

Not surprisingly, Mr. Chairman, the state secrets privilege has 

played a significant role in the Justice Department’s response to 

civil litigation arising out of the counterterrorism policies after 9/ 

11. While political opponents of the president have argued that the 

Bush administration has employed the state secrets privilege with 

18 

unprecedented frequency or in unprecedented contexts in recent 

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

determined conclusively that neither of those claims are true. 

As Professor Chesney of Wake Forest University law school has 

concluded, ‘‘recent assertions of the privilege are not different in 

kind from the practice of other Administrations.’’ Professor 

Chesney elaborated that, quote, the available data to suggest that 

the privilege has continued to play an important role—rephrase 

that, Mr. Chairman. He said that, ‘‘the available data do suggest 

that the privilege has continued to play an important role during 

the Bush administration, but it does not support the conclusion 

that the Bush administration chooses to resort to the privilege with 

greater frequency than prior Administrations or in unprecedented 

substantive context.’’ 

Because the state secrets privilege is based in the Constitution 

separation of powers principles, it is unclear whether Congress 

could constitutionally amend the state secrets privilege by statute. 

It is also worth noting that as professor Chesney has pointed that, 

quote, judges as an institutional matter, are nowhere nearly as 

well situated as executive branch officials to account for and balance the range of considerations that should inform assessments of 

dangers to national security. 

So far, courts have appropriately restrained themselves and 

acted to preserve sensitive national security information when absolutely necessary. Of course, no system is perfect, Mr. Chairman, 

and mistakes will be made. As Secretary of State Condoleezza Rice 

has stated, ‘‘When and if mistakes are made, we work very hard 

and as quickly as possible to rectify them. Any policy will sometimes have mistakes, and it is our promise to our partners that 

should that be the case, that we will do everything that we can to 

rectify those mistakes.’’ I pledge to work with my colleagues to 

make sure that amends are made and justice is achieved through 

the executive or legislative branches whenever the executive 

branch makes a mistake in good faith efforts to keep all Americans 

safe. 

The state secrets doctrine remains strongly supported by today’s 

Supreme Court, even in its Boumediene decision, granting unbelievably habeas litigation rights to terrorists. Justice Kennedy in 

his majority opinion acknowledged that the government’s, quote, legitimate interest in protecting sources and methods of intelligence 

gathering, and stating we expect that the district court will use its 

discretion to accommodate this interest to the greatest extent possible while citing the Reynolds state secrets case I mentioned earlier in doing so. 

The state secrets privilege is as vital now as it has ever been, 

Mr. Chairman. And now that 200 terrorists in Guantanamo Bay 

can litigate their detention in Federal court under the Supreme 

Court’s Boumediene decision, it is remarkable that the Democrat 

majority decides to hold a hearing on legislation that threatens to 

disclose vital intelligence information in court right after 200 terrorists are starting to sue their American captors in Federal court. 

[Laughter.] 

You laugh to maintain sanity. 

19 

I strongly oppose any efforts, including H.R. 5607, that invite the 

courts to deviate from the sound procedures they currently follow 

that protect vital national security information. H.R. 5607 would 

preclude judges from giving weight to the executive branch’s assessment of national security related to its assertion of privilege. 

It would authorize courts not to use ex parte proceedings in conducting review of privileged claims. And it would prevent courts 

from being able to dismiss a case when the government cannot defend itself without using privileged information. 

Mr. Chairman, innocent Americans can only be protected if sensitive national security information is protected. And I will do 

whatever I can to keep Americans safe. 

And with that I yield back. 

Mr. NADLER. Thank you. I just want to clarify that this is a legislative hearing considering a particular bill which does not eliminate the privilege, the state secrets privilege, but seeks to codify it 

and to regulate it within certain limits, and that is the bill before 

us. 

I will now recognize the distinguished Chairman of the full Committee, Mr. Conyers. 

Mr. CONYERS. I regret that the Ranking Member hasn’t examined the legislation because in no way does it do what he claims 

is so ridiculous as to be laughable. I think that is a serious error 

that should—— 

Mr. FRANKS. [Off mike] 

Mr. CONYERS. Oh, you weren’t laughing at the bill; you were 

laughing at the habeas corpus rule. The bill is a little funny, too? 

Well, anyway, whatever it was you were laughing about, I think we 

ought to carefully examine this legislation. This is a very serious 

hearing. And I am impressed by the fact they are asking some 

questions that have to be answered about why and whether the 

state secrets act is overused. To me, that is the question that 

brings me to this hearing with great concern and interest. 

It has been admitted by the Administration representatives that 

at least 50 percent of the time that the government has overclassified information. I refer and ask that it be put in the record the 

Los Angeles Times record of May 21, 2006. 

Mr. NADLER. Without objection. 

[The information referred to follows:] 

20 


A-1.eps
21 


A-2.eps
22 

Mr. CONYERS. In addition, it should be noted, and I hope that it 

will be commented on by the distinguished group of witnesses, that 

President Reagan’s executive secretary at the National Security 

Council told a Blue Ribbon Commission looking at classification in 

1997 that only 10 percent of the secrecy stamps were for legitimate 

protection of secrets. 

Erwin Griswold, who prosecuted the Pentagon Papers case said 

that it becomes apparent to any person who has considerable experience with classified material that there is a massive overclassification and that the principal concern of the classifiers is not with 

security but with governmental embarrassment of one sort or another. And so we want to examine that. 

Maybe these assertions are overstimulated or exaggerated. But I 

don’t think that this hearing needs to be made as some kind of a 

stunt or political—have some political objective in mind when the 

Constitution committee in the Congress takes steps to reexamine 

this. We are the only ones with the authority to deal with this. And 

for us not to deal with it I think would be a dereliction. 

And so I am happy to insert my statement into the record and 

yield back my time. 

[The prepared statement of Chairman Conyers follows:] 

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

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

CIVIL LIBERTIES

Today, we examine H.R. 5607, the ‘‘State Secret Protection Act of 2008.’’ This bill 

would codify the state secret privilege and protect national security by providing 

safe, fair, and responsible procedures and standards for handling sensitive information in civil cases. 

Some might ask, why is there a need for this legislation? It is very much needed 

because this Administration has aggressively sought to create an Imperial Presidency—an Executive Branch whose decisions remain secret and unchecked by Congress or the courts—that has raised important concerns about how claims of secrecy 

may impair our constitutional system of checks and balances. 

For example, President Bush eavesdropped on American citizens. When the victims challenged this warrantless wiretapping as a violation of FISA and the Fourth 

Amendment, the Administration raised the state secret privilege to block judicial review of their claims. It similarly has used the privilege to seek dismissal of cases 

challenging other troubling aspects of its war on terror, including rendition to torture. 

Concerned that the Executive was claiming state secrets in order to protect embarrassing facts or unlawful conduct from becoming public, rather than to protect 

truly secret information, the Constitution Subcommittee held an oversight hearing 

earlier this year. 

Witnesses—including the American Bar Association and former D.C. Court of Appeals Chief Judge Patricia Wald—confirmed the need for legislative reform of the 

privilege. H.R. 5607 has been crafted to address that need. 

I want to highlight three key points about H.R. 5607. 

First—contrary to claims that I am certain we will hear today—H.R. 5607 fully 

protects state secrets. The bill would require courts to take protective measures, 

such as conducting non-public proceedings and limiting access to documents. Where 

the court upholds the claim of privilege, the bill prevents harmful disclosure of the 

protected information. 

Second, H.R. 5607 establishes procedures for independent judicial review of secrecy claims. It requires the government to specify how disclosure of the information 

would be harmful, and specifies that the courts must review the information that 

the government seeks to withhold and independently determine whether the secrecy 

claim is valid. 

William Webster—who served as a federal appellate judge and as director of both 

the CIA and FBI—advised the Subcommittee that courts can be trusted to safeVerDate Aug 31 2005 15:47 Jan 07, 2009 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 H:\WORK\CONST\073108\43832.000 HJUD1 PsN: 43832
23 

guard sensitive secrets and are fully competent to assess the validity of privilege 

claims. 

Finally, H.R. 5607 prevents premature dismissal of entire lawsuits based on the 

mere assertion of the state secret privilege. For example, where the privilege is 

upheld, H.R. 5607 requires the court to consider whether a non-privileged substitute 

for the privileged information would allow the litigation to continue. 

Our firm commitment to respect for the rule of law requires us to advance legislation that protects and respects the Constitution. H.R. 5607 is one such bill, and I 

look forward to hearing from our witnesses on this important piece of legislation. 

Mr. NADLER. I thank the gentleman. 

I now want to welcome our distinguished panel of witnesses 

today and introduce them. 

Meredith Fuchs is the general counsel for the National Security 

Archives, where she oversees Freedom of Information Act and Federal Records Act litigation. She has supervised six governmentwide audits of Federal agency policy and performance under Federal disclosure law, including one relating to the proliferation of 

sensitive, unclassified document control policies at Federal agencies. 

She was a partner at the firm of Wiley Rein & Fielding. Ms. 

Fuchs clerked for Judge Patricia Wald of the U.S. Court of Appeals 

for the District of Columbia, who I think was a witness at our last 

hearing on this subject in January, and Judge Paul Friedman of 

the U.S. District Court for the District of Columbia. She is a graduate of New York University law school and received her B.S. from 

the London School of Economics and Political Science. 

Steven Shapiro has been the legal director of the American Civil 

Liberties Union since 1993 and served as the associate legal director from 1987 to 1993. He is an adjunct professor of constitutional 

law at Columbia Law School. Mr. Shapiro is a graduate of Harvard 

Law School and clerked for Judge J. Edward Lumbard of the U.S. 

Court Appeals for the Second Circuit. 

Michael Vatis is a partner with the firm of Steptoe & Johnson. 

From 2003 to 2004, Mr. Vatis was the executive director of the 

Markle Task Force on National Security in the Information Age. 

From 1998 to 2001, he served as the director of the National Infrastructure Protection Center. From 1994 to 1998, he served as the 

Associate Deputy Attorney General and Deputy Director of the Executive Office for National Security in the Department of Justice. 

From 1993 to 1994, Mr. Vatis served as a law clerk to Justice 

Thurgood Marshall and to then Judge Ruth Bader Ginsburg. He is 

a graduate of Princeton University and Harvard Law School. 

Bruce Fein is a frequent witness before our hearings and is the 

founder and chairman of the American Freedom Agenda, which has 

as its aim the restoration of the Constitution’s checks and balances. 

Mr. Fein served in the Department of Justice under President 

Reagan. He served as the Assistant Director of the Office of Legal 

Policy, legal advisor to the Assistant Attorney General for Antitrust 

and the Associate Deputy Attorney General. 

Mr. Fein was then appointed general counsel for the Federal 

Communications Commission followed by an appointment as the 

research director for the Joint Congressional Committee on Covert 

Arms Sales to Iran. Mr. Fein has been an adjunct scholar with the 

American Enterprise Institute, a resident scholar at the Heritage 

Foundation, a lecturer at the Brookings Institute and an adjunct 

24 

professor at George Washington University. He is a graduate of 

Harvard Law School. 

Before we begin, it is customary for the Committee to swear in 

its witnesses, if you would please stand and raise your right hands 

to take the oath. 

Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your 

knowledge, information and belief? 

[Witnesses sworn.] 

Mr. NADLER. Let the record reflect that the witnesses answered 

in the affirmative. You may be seated. 

Without objection, your written statements will be made a part 

of the record in their entirety. We would ask each of you to summarize your testimony in 5 minutes or less. To help you keep time, 

there is a timing light at your table. When 1 minute remains, the 

light will switch from green to yellow and then to red when the 5 

minutes are up. And I will inform you the Chair is reasonably lax 

in the 5 minutes but not totally. 

Our first witness is Ms. Fuchs, who is recognized for 5 minutes. 

TESTIMONY OF MEREDITH FUCHS, GENERAL COUNSEL, 

NATIONAL SECURITY ARCHIVES 

Ms. FUCHS. Thank you, Chairman Nadler, Ranking Member 

Franks and distinguished Members of the Subcommittee. I appreciate this opportunity to appear before you to comment on the 

State Secrets Protection Act of 2008. 

I submitted a written statement, so I am going to focus my oral 

statement on the importance of judges conducting meaningful, 

independent, judicial review into government secrecy claims. For 

context, I am going to put a few well-established matters on the 

table which I am happy to discuss later. 

First, there is massive unnecessary secrecy within the executive 

branch. It is not just my view, as Mr. Conyers pointed out, it is the 

view of many officials throughout the military and the intelligence 

establishment. And I just want to comment on that for a moment. 

Mr. Conyers was for the most part referring to the classification 

system, which at least is moored in an executive order that is public, that provides standards for security classification and has oversight and reporting requirements by the Information Security 

Oversight Office. None of that even exists in the state secrets context, which as far as I can tell is the government’s free to define 

as it sees fit. 

The second point I want to put on the table is that while secrecy 

is clearly needed for many reasons, there is no doubt that national 

security secrecy can and has had the impact of covering up wrongdoing in many instances. This context cannot be forgotten when 

you are examining how courts should handle civil cases in which 

the plaintiffs allege government wrongdoing and the government 

wields the state secrets privilege to end the case before the issues 

are even joined. 

My experience arises primarily in the Freedom of Information 

Act context, where Congress already has explicitly granted courts 

the authority to conduct a de novo review of the agency’s decision 

to keep information secret. De novo for lawyers traditionally means 

25 

the court doesn’t defer to the agency. Instead, the court weighs the 

facts, the law and the arguments to make its decision. 

In the legislative history of FOIA however, the committee report 

expresses the assumption that courts will grant substantial weight 

to agency views expressed in affidavits. In practice, these divergent 

standards have meant that some courts do try to grant de novo review and they test the government assertions, and some courts 

grant utmost deference and refuse to consider alternative facts and 

arguments. 

In our experience seeking security-classified records, we have 

seen that when there is an independent, higher-level inquiry made 

into the government’s secrecy claims, the almost invariable result 

is that more information can be released than the government was 

prepared to release in the first place. When, on the other hand, 

there is no countervailing pressure, the agencies have no incentive 

to seriously consider whether information could cause harm to national security if released. Sometimes when we see documents 

years later and we find out what the government was protecting, 

it is clear that the government either was overreaching or it was 

not taking seriously its obligation to disclose information that is 

not properly classified. 

So in the point of context, courts that have conducted true de 

novo reviews have used many of the types of tools that the State 

Secrets Protection Act of 2008 would encourage. In fact, it has become standard fare today for the government to file a Vaughn 

index, even successive, more detailed Vaughn indexes to itemize 

their secrecy claims. That forces the government to actually review 

the documents and explain the withholding. It enables the plaintiff 

to have some ability to respond and helps the court conduct a review. 

The use of a special master in the Washington Post v. Department of Defense case is perhaps most illustrative of how courts can 

employ an expert to achieve better results in the interest of both 

security and justice. In that case, Kenneth Bass, an attorney who 

had served as counsel for the intelligence policy at the Department 

of Justice and who held appropriate clearances, acted as a special 

master. The result was that the government secrecy claim went 

down from 14,000 pages to 2,000 or 3,000 pages. 

So, this gets at the central issue and controversy, I believe, related to this bill, whether and to what extent the courts should become enmeshed in the question of what actually merits state secrets protection. Given that courts are getting involved in that sort 

of issue in FOIA and in the CIPA context, there doesn’t seem to 

me to be a strong constitutional argument against judicial involvement. 

In light of the substantial interests asserted by plaintiffs claming 

government wrongdoing, there is also a strong reason for courts to 

get involved as a matter of justice. And in my view, many of the 

procedures in the State Secrets Protection Act of 2008 will have an 

impact on the government’s own assertion for secrecy without the 

court ever having to choose between one side or the other. I am 

particularly hopeful about the use of special masters or technical 

experts to resolve over-broad secrecy claims. 

26 

In addition, courts must consider the evidence propounded by the 

plaintiffs in these cases. Under FOIA, some courts have refused to 

consider declarations from nongovernmental experts, even when 

those experts were former intelligence agency staff who saw the information before they left the agency—senators, former ambassadors, retired government officials and the like. This doesn’t make 

any sense to me. 

Certainly a retired, high-level official will have something useful 

to tell a court in some of these cases. And so a categorical rule that 

would exclude them and what they have to say doesn’t make sense. 

Moreover, there are instances when the government’s claims are 

simply not factually or logically consistent. The very purpose of this 

bill will be frustrated if the court’s hands are tied and the court 

cannot consider arguments on these sorts of issues. 

On a final note, I offer a precaution to you if you decide to 

change the standard of judicial review in this bill. In the FOIA context, where the law explicitly says de novo review, de novo standard of review, the courts have moved from de novo review to substantial weight consideration of evidence to a substantial weight 

standard of review to great deference. 

And finally, recently courts have expanded that deference concept way beyond the security classification area to other areas of 

sensitivity. This is not what Congress intended. Given the very 

substantial interest at stake here, any adjustment of the standard 

should be done with a full understanding of the possibility that 

careful drafting is necessary in order to avoid nullifying the good 

purposes of this bill. 

I thank you for seeking my input, and I would be happy to respond to any questions. 

[The prepared statement of Ms. Fuchs follows:] 

27 

PREPARED STATEMENT OF MEREDITH FUCHS


MF-1.eps
28 


MF-2.eps
29 


MF-3.eps
30 


MF-4.eps
31 


MF-5.eps
32 


MF-6.eps
33 


MF-7.eps
34 


MF-8.eps
35 


MF-9.eps
36 


MF-10.eps
37 

Mr. NADLER. I thank the witness. 

Mr. Shapiro is recognized for 5 minutes. 

TESTIMONY OF STEVEN SHAPIRO, 

AMERICAN CIVIL LIBERTIES UNION 

Mr. SHAPIRO. Thank you Chairman Nadler, Ranking Member 

Franks and distinguished Members of the Subcommittee. I appreciate this opportunity to explain the ACLU’s interest in reform of 

the state secrets privilege, an issue of critical importance to all 

Americans concerned about the unchecked abuse of executive 

power. 

I also want to commend Chairman Nadler for crafting the State 

Secrets Protection Act, H.R. 5607. If enacted, it would place reasonable checks and balances on the executive branch, re-empower 

courts to exercise independent judgment in cases of national importance and protect the rights of those seeking redress through our 

court system. 

Over the years, we have seen the state secrets privilege mutate 

from a common law evidentiary rule designed to protect genuine 

national security secrets into an alternative form of immunity that 

is used more and more often to shield the government and its 

agents from accountability for systemic violations of the Constitution and this Nation’s laws. The ACLU has been involved in a series of high-profile cases in which the government has invoked the 

state secrets privilege in response to allegations of serious government misconduct, not simply to block access to specific information 

that is alleged to be secret but to dismiss the lawsuits in their entirety. 

This has happened in cases involving rendition and torture, 

warrantless surveillance and national security whistleblowers 

among others. The dismissal of these suits does more than harm 

the individual litigants who are denied any opportunity for redress. 

It deprives the American public of the judicial determination regarding the legality of the government’s actions. 

This Subcommittee, I know, is familiar with Khaled el-Masri, 

who Representative Franks referred to in his opening remarks. Mr. 

el-Masri is an ACLU client who was detained incommunicado for 

5 months and subject to coercive interrogation under the CIA’s rendition program because he was confused with somebody else in a 

tragic case of mistaken identity. Mr. el-Masri’s ordeal received 

prominent coverage throughout the world, including on the front 

pages of this Nation’s leading newspapers. 

German and European authorities began official investigations of 

Mr. el-Masri’s allegations. And on numerous occasions, U.S. government officials publicly confirmed the existence of the rendition 

program. Nevertheless, Mr. el-Masri’s lawsuit was dismissed based 

on the government’s claim that the state secrets privilege barred 

any judicial review of what had happened to him. In effect, Mr. elMasri was told that the one place where there could be no discussion of his mistreatment by the U.S. government was in a U.S. 

court of law. 

H.R. 5607 takes great strides toward restoring essential constitutional checks on executive power. By codifying the state secrets 

38 

privilege, H.R. 5607 will bring needed clarity and balance to an 

area of the law that is now desperately in need of both. 

Given limited time, I will highlight just a few important aspects 

of the bill. First, H.R. 5607 requires judges to look at the evidence 

that the government is seeking to shield by invoking the state secrets privilege, unless the evidence is too voluminous, in which case 

the court can review a representative sample. This will address the 

too frequent practice of relying exclusively on the government’s affidavits in ruling on the state secrets privilege. The bill also places 

the burden of proof on the government that is trying to keep the 

evidence secret which is where it belongs. 

Second, H.R. 5607 recognizes that judges can and should give 

due deference to the expert opinion of government officials without 

deferring entirely or abdicating their responsibility to make an 

independent assessment of the evidence. In order to assure that the 

court’s decision is properly informed, the bill encourages the maximum participation possible by opposing counsel and gives courts 

the authority to appoint an independent expert to advise the court 

in appropriate circumstances. 

Third, as a direct response to the increasing tendency to dismiss 

cases at the outset of litigation based on the government’s broad 

and aggressive assertion of the state secrets privilege, H.R. 5607 

restores the state secrets privilege to its proper evidentiary role by 

providing that a case shall not be dismissed until the opposing 

party has had a full opportunity to complete discovery of non-privileged evidence and to litigate the claim based on that evidence. 

Courts have long experience in handling national security information responsibly and assessing its appropriate role in the judicial process. As Chairman Nadler noted, Congress has recognized 

the value of judicial involvement in these crucial decisions under 

the Classified Information Protection Act, the Freedom of Information Act and the Foreign Intelligence Surveillance Act. If history is 

any guide, there is no reason to believe that courts will likely disagree with the government’s assessment of national security risks. 

But the Supreme Court’s ruling in the Pentagon Papers case provides a vivid illustration of the importance of maintaining an independent judicial role in national security cases as a constitutional 

safety valve against excessive secrecy. The ACLU therefore supports H.R. 5607 and urges its enactment as soon as possible. I 

would be happy to answer any questions the Committee might 

have. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Shapiro follows:] 

39 

PREPARED STATEMENT OF STEVEN SHAPIRO


SRS-1.eps
40 


SRS-2.eps
41 


SRS-3.eps
42 


SRS-4.eps
43 


SRS-5.eps
44 


SRS-6.eps
45 


SRS-7.eps
46 


SRS-8.eps
47 


SRS-9.eps
48 


SRS-10.eps
49 


SRS-11.eps
50 


SRS-12.eps
51 

Mr. NADLER. Thank you. 

Mr. Vatis, you are recognized for 5 minutes. 

TESTIMONY OF MICHAEL A. VATIS, PARTNER, 

STEPTOE & JOHNSON, LLP 

Mr. VATIS. Thank you, Mr. Chairman. Mr. Chairman, Mr. 

Franks and distinguished Members of the Committee, thank you 

for inviting me here today to talk about this extremely important 

subject. 

I agree entirely with my fellow witnesses about both the need for 

and the propriety of Congress’s regulating the state secrets privilege. It is perfectly appropriate for Congress to determine what role 

courts should play and what the standard of review should be for 

court decision-making in cases in which the government asserts the 

state secrets privilege. 

Even if one views that privilege as founded on or at least derived 

from constitutional principles, as I do, there is still an appropriate 

role for Congress to play. Congress has authorities in the areas of 

war and national defense and it has authorities in the area of diplomatic relations, which give it ample authority to make laws that 

affect both of those realms, as H.R. 5607 would do. 

I would like to spend just a moment, though, on the one area 

where I might have a slightly different perspective and that is on 

whether and how much deference should be accorded to the government’s judgment about whether disclosure of a state secret would 

cause harm to either national defense or to diplomatic relations. 

My one concern with the bill as it is written today is with Section 

6, which I believe could be read as directing courts to give no deference whatsoever to the executive branch’s judgment about potential harm to national defense or diplomatic relation, but rather that 

the courts should treat the government’s judgment as no different 

from other witnesses that might appear on the other side. 

I believe that reading the statute this way would cause tremendous harm potentially. The executive naturally has greater expertise from its day-to-day experience and from its access to intelligence in the areas of defense and diplomacy. It also has constitutional responsibilities for these areas that should be acknowledged 

and respected in any law that is passed in this area. So, deference 

to the executive branch on this sole issue of whether harm would 

result from disclosure should be required. 

Now, I want to be clear and not misunderstood on what I mean 

by deference. This doesn’t mean that courts should not engage in 

independent review of the propriety of the privilege. It doesn’t 

mean courts should not engage in their own judgment about 

whether harm truly would be caused. Courts will still look at all 

of the evidence. They would still consider opposing witnesses from 

the government. And they would still exercise judgment, but they 

would give at least substantial weight to the government’s assertion of harm. 

Other protections would still exist to protect against government 

overreaching. The government would still retain the burden of 

proof in asserting the privilege. It would still have to prove that 

disclosure is reasonably likely to cause significant harm to national 

52 

defense or diplomatic relations. And they must make those assertions in writing. 

And courts can insist on specificity so that the government can’t 

just rely on the say-so of a senior executive official. They would 

have to explain the rationale and the supporting evidence. And I 

think these are sufficient and adequate to protect against abuse. To 

go further, though, and have courts simply give the same weight 

to government judgment in this area as to other witnesses I think 

would go too far and would be a mistake. 

Finally, I don’t think that Congress should be ambiguous in this 

area and leave it up to the courts to determine how much deference 

should be accorded. I think that would just replicate the situation 

we have today, where some courts accord a lot of deference, some 

courts accord a little deference and some courts potentially none at 

all. 

I think it is Congress’ responsibility to be clear on this, to have 

consistency in the way courts review these issues, which I think is 

the objective of the legislation. And I think being clearer about the 

level of deference that should apply would be the one fix that I 

would recommend in the legislation as it stands. 

To sum up, I don’t think it is fair for people to complain about 

activist judges if legislation virtually invites activism by not being 

clear on dispositive issues such as this. And so I would urge the 

court to take up this issue and be specific—urge this Committee to 

take up this issue and be specific on the level of deference that 

courts should apply. 

Thank you. 

[The prepared statement of Mr. Vatis follows:] 

53 

PREPARED STATEMENT OF MICHAEL A. VATIS


Vatis-1.eps
54 


Vatis-2.eps
55 


Vatis-3.eps
56 


Vatis-4.eps
57 


Vatis-5.eps
58 


Vatis-6.eps
59 


Vatis-7.eps
60 


Vatis-8.eps
61 

Mr. NADLER. Thank you. 

I will now recognize Mr. Fein. 

TESTIMONY OF BRUCE FEIN, CHAIRMAN, 

THE AMERICAN FREEDOM AGENDA 

Mr. FEIN. Thank you, Mr. Chairman and Members of the Committee. I would like to begin by trying to demonstrate why I think 

something is rotten in the state of the state secrets doctrine. 

And let me begin by quoting a fundamental precept of our jurisprudence announced by Chief Justice John Marshall in Marbury 

against Madison, which has been celebrated as a feature of all civilized law. He wrote: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the 

laws whenever he receives an injury. The government of the United 

States has been emphatically termed a government of laws and not 

of men. It will certainly cease to deserve this high appellation if the 

laws furnish no remedy for the violation of a vested legal right. 

And let us go to a hypothetical—it is derived from the el-Masri 

case—about how the state secrets doctrine applies to deprive someone of a remedy for the violation of a vested legal right. Suppose 

an American citizen residing in Berlin is kidnapped and tortured 

by CIA operatives based—excuse me—CIA operatives based 

abroad. And they are acting on the basis of the president’s gut instincts that this American has collaborated with al-Qaida in Iraq. 

The suspicion proves erroneous and the citizen sues his CIA kidnappers and torturers for deprivation of liberty and torture and 

violation of the Constitution. 

The state secrets privilege is invoked as a defense. It is averred 

in an affidavit submitted by the director of the CIA that to prove 

the kidnapping would disclose to the international terrorist enemy 

a method of capture that would enable a terrorist to train for 

means of evasion and that to prove the torture would disclose a 

method of intelligence collection that would alienate allies of the 

United States and would enable the enemy to train terrorists to resist the type of torture they might anticipate. 

The prevailing state secrets doctrine would require dismissal of 

the citizen’s case. I don’t think that doctrine then, to quote from 

Congressman Franks, protects all Americans. That American probably thinks it did a disservice to his rights. 

Moreover, I want to underscore that there is no anomaly in the 

law to requiring the executive to choose between a fair trial, disclosing information necessary for justice in a civil case, when we 

examine the analogy in the criminal context. And I want to draw 

on a very vivid snippet from history. 

You may recall in the atomic spies case concerning the Rosenbergs, those who had stolen secrets from Los Alamos, there was an 

individual named David Hall. He was complicit. He was never 

prosecuted because the FBI, the government, thought that a prosecution would require disclosure of our ability to break the Soviet 

Venona code. He still today is free; he was never prosecuted. But 

the government was required to choose between criminally prosecuting an atomic spy or due process, and they decided they would 

not reveal the information, and he still remains free. 

62 

So, when you think about regulating the state secrets doctrine, 

which at its most disadvantageous posture toward the government, 

it simply in some cases where the privilege is rejected would require the government to say, all right, we will accept a default 

judgment or an adverse finding of fact and keep the state secret 

as was done with regard to David Hall (sic). There is nothing unusual about that. No one has claimed that the doctrine that requires the government to choose in the CIPA context between prosecution and due process has created a danger to the United States. 

With regard to the specifics of deference that have been raised, 

it is certainly true, I think, that Mr. Franks is accurate that the 

government has a unique expertise with regard to intelligence. 

They have been in the business a long time. They can see pieces 

of a puzzle put together that someone on the outside can’t. So, that 

certainly is a strike in their favor in deference, and judges are not 

superior to the executive branch on that score. 

But there is equally true another attribute of the executive 

branch that looks in the opposite direction. There is a motivation 

to lie and distort and to prevaricate to cover up wrongdoing to 

cover up political embarrassment, and that is hardly an exception 

in the annals of the United States, the Pentagon Papers being one. 

We all remember Nixon claimed the CIA assets in Mexico would 

be disclosed if you traced the money to the Watergate burglars and 

otherwise. 

And we can see the use of classified information for political purposes in the Valerie Plame disclosure, where the president unilaterally decided to declassify a document obviously to try to disparage what he viewed as an adversary, Mr. Wilson, in view of the 

purchase of uranium in Niger by Iraq and otherwise. So, when you 

take on the one hand the expertise, on the other hand the motivation to perhaps distort the evidence, in my judgment this legislation should just flag for the judge both of those elements to be considered in determining whether the state secrets standard that has 

been erected in the legislation has been satisfied. 

I would like to conclude by making a couple of observations about 

constitutional qualms. I think any constitutional challenge to this 

bill would be frivolous. Remember, even assuming that the president enjoys an inherent constitutional right to protect some state 

secrets, that does not shield it from regulation by Congress. Article 

I, Section 8, Clause 18 says Congress can regulate the exercise of 

any power vested by the United States Constitution in any branch 

or officer thereof. 

And here we have a very mild congressional regulation of the 

president’s ability to keep state secrets, establishing certain standards and levels of judicial review that have been shown through 

the years if we could draw upon the experience under FOIA, the 

experience under CIPA, the experience under FISA, as well as the 

rather regular efforts that judges are given in making determinations whether the CIA prepublication review of written books and 

otherwise have disclosed classified information. In none of these instances has there been shown that this kind of judicial review cripples or handicaps or impairs the president’s ability to protect the 

national security. 

63 

In all of these respects, I think the Committee is well advised to 

move forward on this legislation. Indeed, there is only one structural suggestion I would make—is that at present, the bill does not 

distinguish between violations of constitutional rights where the 

public interest in vindication is at its zenith and violation of other 

rights under the Federal Tort Claims Act. I would argue that when 

you have a constitutional violation, the government’s burden of 

proof should rise to clear and convincing evidence that you have a 

state secret involved and not simply a preponderance. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Fein follows:] 

PREPARED STATEMENT OF BRUCE FEIN

Dear Mr. Chairman and Members of the Committee: 

As Chairman of the American Freedom Agenda, I am pleased to share views on 

the state secrets privilege generally and legislation that would limit its invocation 

to frustrate private redress for constitutional or sister violations of law perpetrated 

or aided and abetted by the government. The American Freedom Agenda seeks legislative reform of the state secrets doctrine as one of its tenets for restoring checks 

and balances and protections against government abuses. The organization was 

formed by stalwart conservatives, including Richard Viguerie and former Congressman Bob Barr. 

But the state secrets privilege is neither a liberal nor a conservative issue. It addresses a question raised by Chief Justice John Marshall of the United States Supreme Court more than two centuries ago in Marbury v. Madison (1803): ‘‘The very 

essence of civil liberty certainly consists in the right of every individual to claim the 

protection of the laws whenever he receives an injury. . . . The government of the 

United States has been emphatically termed a government of laws and not of men. 

It will certainly cease to deserve this high appellation, if the laws furnish no remedy 

for the violation of a vested legal right.’’ 

‘‘If this obloquy is to be cast on the jurisprudence of our country, it must arise 

from the peculiar character of the case.’’ 

The state secrets privilege assaults what Chief Justice Marshall maintained was 

the essence of civil liberty. It denies a plaintiff injured by constitutional wrongdoing 

of a remedy if proof of liability would require disclosure of a state secret, i.e., information that might damage the national security. In the words of the great Chief 

Justice, the doctrine casts ‘‘obloquy’’ on the nation’s jurisprudence, and can be justified only by the ‘‘peculiar character’’ of the litigation. The origin of state secrets as 

a defense to any type of alleged government wrongdoing was thoroughly misconceived by Justice Stephan Field in Totten v. United States (1875). There, the 

Court declared that a contract with the government to spy was not enforceable if 

proof of the contract would reveal a state secret. As applied to voluntary contracts, 

the state secrets doctrine was unalarming because if the government habitually dishonored its promises private entities would no longer volunteer. But the gratuitous 

and expansive language of Totten has been interpreted to make state secrets applicable to any litigation where government wrongdoing is alleged. 

The state secrets privilege is further dubious because it runs against the grain 

of the doctrine frowning on evidentiary privileges announced by Justice Byron White 

in Branzburg v. Hayes (1972): the public enjoys a presumptive right to everyman’s 

evidence. 

The need for legislative reform of state secrets as the doctrine has evolved in litigation is self-evident. Consider the following hypothetical, fashioned largely from 

the state secrets case involving the abduction, imprisonment, and interrogation 

abuse of Khalid El-Masri, a German citizen of Lebanese descent. An American citizen residing in Berlin is kidnapped and tortured by CIA operatives based on President George W. Bush’s signature ‘‘gut instincts’’ that the American has collaborated 

with Al Qaeda in Iraq. The President’s suspicion is erroneous, and the citizen sues 

his CIA kidnappers and torturers for a deprivation of liberty and torture in violation 

of the Constitution. The state secrets privilege is invoked as a defense. It is averred 

in an affidavit submitted by the Director of the CIA that to prove the kidnapping 

would disclose to the international terrorist enemy a method of capture that would 

enable terrorists to train for means of evasion; and, that to prove the torture would 

disclose a method of intelligence collection that would alienate allies of the United 

States and would enable the enemy to train terrorists to resist the type of torture 

64 

disclosed. The prevailing state secrets doctrine would require dismissal of the citizen’s case resting on kidnapping and torture, despite the obloquy the ruling would 

cast on the jurisprudence of the United States. Moreover, by denying a remedy for 

the constitutional wrongdoing the doctrine encourages repetitions of lawlessness. 

That understanding is what provoked the Supreme Court to fashion an exclusionary 

rule remedy for Fourth Amendment violations in Mapp v. Ohio (1961), plus a civil 

damages remedy in Bivens v. Six Unknown Agents (1971). 

I thus applaud the endeavor of H.R. 5607 to constrain abusive applications of the 

state secrets doctrine. My opening observations lead to several legislative recommendations. 

The burden of proving entitlement to the state secrets privilege should be placed 

on the government for threefold reasons: evidentiary privileges obstruct the search 

for truth; the state secrets privilege casts aspersion on the nation’s system of justice 

by blocking a remedy for a violation of constitutional or sister legal rights; and, the 

government holds the information relevant to proving the state secrets privilege. I 

would also recommend that in cases implicating constitutional as opposed to nonconstitutional wrongdoing, the government should be required to prove state secrets 

by clear and convincing evidence standard, not simply by a preponderance. 

In ruling on state secrets claims, the legislation should also instruct judges to consider both the government’s unique expertise in knowing what disclosures might 

harm national security and the government’s institutional incentives to prevaricate 

or distort the truth over national security to conceal crime, maladministration, or 

politically embarrassing mistakes. In Reynolds, the government lied about secret 

spying equipment to avoid civil liability for an airplane crash under the Federal 

Tort Claims Act. In the Pentagon Papers case, the government misrepresented the 

harm that would ensue from publishing the history of the Vietnam War. President 

Nixon also made bogus national security claims in an effort to obstruct the Watergate investigation. In United States v. United States District Court (1972), the Supreme Court rejected the government’s claim that judges were too naive in domestic 

security cases to ascertain probable cause needed for warrants. Justice Lewis Powell 

explained: ‘‘We cannot accept the Government’s argument that internal security 

matters are too subtle and complex for judicial evaluation. . . . If the threat is too 

subtle or complex for our senior law enforcement officers to convey its significance 

to a court, one may question whether there is probable cause for surveillance.’’ 

While judicial vetting of national security determinations are not daily subjects 

of litigation, neither are they a novelty. They are made in suits under the Freedom 

of Information Act. They are made by FISA judges in issuing warrants for the collection of foreign intelligence. And judges review the government’s deletions of alleged national security information included in the writings of former CIA officers 

or otherwise, for example, the decision by the United States Court of Appeals for 

the Fourth Circuit in United States v. Marchetti (1972). 

Evenhandedness is a chief feature of civilized law. The state secrets privilege 

should not skew justice. It should not expose itself to withering criticism reminiscent of Anatole France’s observation: ‘‘The law, in its majestic equality, forbids the 

rich as well as the poor to sleep under bridges, to beg in the streets, and to steal 

bread.’’ Similarly, the state secrets privilege should empower the judge, after examining in camera all evidence said to be protected by state secrets, to award judgment 

either in favor of the plaintiff or in favor of the defendant whenever the ends of justice would so require. The privilege should not be a one-way street in favor of the 

defendant, especially because—in the words of Chief Justice Marshall—its invocation by the defendant casts obloquy on the nation’s jurisprudence. 

Finally, constitutional doubts raised by detractors of the legislation are frivolous. 

No Supreme Court decision holds that state secrets in civil litigation is anchored 

to the Constitution. Further, under the Gravel precedent, Members of Congress 

enjoy authority to disclose classified information in conjunction with their legislative 

duties. In addition, even if there were no state secrets privilege whatsoever, the 

President would not be compelled to disclose anything. The government could simply accept a default judgment or an adverse finding of fact and keep all information 

secret to protect what the President believes is national security. A similar choice 

is required in criminal prosecutions under the Classified Information Procedures Act 

of 1980: when a summary of classified information will not satisfy the notice required by due process, the government must drop the prosecution if it wishes to protect the alleged state secrets. 

Even assuming the state secrets privilege is an inherent Article II power to protect the national security, Congress is empowered to regulate its exercise under the 

Necessary and Proper Clause to prevent abuses which cast obloquy on the nation’s 

jurisprudence and to deter constitutional and related legal wrongdoing. In addition, 

the separation of powers doctrine only prevents Congress from exercising an ‘‘overVerDate Aug 31 2005 15:47 Jan 07, 2009 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6621 H:\WORK\CONST\073108\43832.000 HJUD1 PsN: 43832
65 

riding’’ influence over an executive power. The proposed legislation does not require 

the President to reveal anything believed to need secrecy to protect the national security. The maximum sanction under the proposed legislation is the payment of 

money damages which would be funded from congressional appropriations. And the 

state secrets standard established by the legislation does not compromise national 

security but generally echoes what the President through executive orders has decreed justifies secrecy. 

In sum, state secrets legislation is clearly constitutional and should not be skewed 

by concocted fears of unconstitutionality. 

Mr. NADLER. Thank you. 

We will now go to questioning of the witnesses. As we ask questions of our witnesses, the Chair will recognize Members in the 

order of their seniority on the Subcommittee, alternating between 

majority and minority, provided that the Member is present when 

his or her turn arrives. 

Members who are not present when their turn begins will be recognized after the other Members have had the opportunity to have 

their questions. The Chair reserves the right to accommodate a 

Member who is unavoidably late or only able to be with us for a 

short time. 

I will begin by recognizing myself for 5 minutes to question the 

witnesses. 

First of all, Mr. Fein, we have heard arguments that the Constitution empowers the president to protect national security and 

that the state secrets has a grounding in these constitutional 

claims. Mr. Vatis says that it requires the courts to defer to the 

government’s claim. 

It seems that at bottom this is the same argument we have 

heard over and over in regard to many controversial secret programs, namely that we look only to the president’s Article II powers, as if the Congress’ Article I powers and the Judiciary’s Article 

II powers did not exist. Could you comment on this briefly because 

I have got a bunch of other questions? 

Mr. FEIN. Yes, the Constitution abhors the idea that any particular power is totally unchecked by any of the other branches. 

The basic standard is do other branches that are regulating or 

overseeing exercise a crippling or dominating influence over the executive branch, and this legislation certainly does not meet the 

standard. 

Mr. NADLER. So, it would be constitutional in your view. 

Mr. FEIN. Absolutely. 

Mr. NADLER. Thank you. 

Mr. Vatis, we seem to agree on many points: that Congress must 

check the tendency of any Administration to overclassify and use 

secrecy to cover up, that judges must directly examine the evidence 

and make the ultimate judgment on privilege, as has not often 

been the case in the state secret cases. I question your view that 

a court should give deference to the government’s judgment on the 

privilege, as I understand your position. 

According to the dictionary, deference—and the bill says that the 

government’s testimony should have the same weight as other expert witnesses. According to the dictionary, deference has two main 

meanings. It can mean that one shows appropriate, courteous respect to a person perhaps for their knowledge, expertise, experience, et cetera. We expect a judge to show deference in that sense 

66 

to any expert witness. And our bill says that the government’s expert testimony should be treated in the same manner as other expert testimonies. 

However, the primary meaning of deference, according to the dictionary, is submission or yielding to the opinion or judgment of another. If the judge has to submit or to yield to the judgment of the 

executive, can he meaningfully make the ultimate independent 

judgment if in the next breath you suggest that the judge has to 

defer to the executive’s assertion, or do you have a different meaning of the word deference? 

Mr. VATIS. Mr. Chairman, I definitely do not mean the second 

definition that you offered of submission. I do mean, though, giving 

due regard and substantial weight to the government’s judgment 

about the narrow issue of whether—— 

Mr. NADLER. Shouldn’t the court give due regard and substantial 

weight to any expert witness? 

Mr. VATIS. It should give due regard based on the background of 

those witnesses, but I think going in, there should be at the very 

least a presumption that the government has a valid basis and that 

it is—— 

[Crosstalk.] 

Mr. NADLER. I think that is the key. There should be a presumption that the government has a valid basis for its claim of secrecy. 

Mr. VATIS. If supported by logic and commonsense and by the 

evidence that the official relies on—— 

Mr. NADLER. All right—— 

Mr. VATIS [continuing]. In the declaration or affidavit. 

Mr. NADLER. All right, well, the bill encourages courts to appoint 

special masters or independent experts to assist the court. If the 

court were to appoint an independent expert, let us say, who had 

recently served as the director of the CIA, and on behalf of the government a junior CIA official testifies, why shouldn’t the court 

treat these two witnesses the same and be required to undertake 

a similar assessment of their expertise and credibility, particularly 

since the independent expert has no vested interest in the outcome? 

Mr. VATIS. Because I think that the—for two reasons: One, this 

presently serving government official has access to intelligence and 

knowledge of ongoing programs and ongoing governmental interests that the former government official who might be serving as 

a special master or witness—— 

Mr. NADLER. And second? 

Mr. VATIS [continuing]. Does not have. Second is the constitutional responsibilities that I think should be accorded some weight. 

And I think it is important on this issue to think of some concrete 

examples. If the plaintiff in a civil case is seeking access to notes 

of a meeting between a high-level U.S. government official and a 

high-level allied official, for example, in which a key decision was 

made that affected the plaintiff, and the government says if that 

information is disclosed, it will cause significant harm to our diplomatic relations with that ally, they will never trust us again, and 

they offer details, I don’t think the court should say, well, the witness—— 

67 

Mr. NADLER. You don’t think the court should substitute its judgment—you don’t think the court should substitute its judgment on 

that question. 

Mr. VATIS. On that sort of question. 

Mr. NADLER. Okay, Mr. Fein, could you comment on what Mr. 

Vatis has said? 

Mr. FEIN. Well, there is a similar argument that was made by 

the government in a case in 1972. It was called the Keith case— 

Mr. Conyers probably remembers that; it is out of his district, 

Judge Keith—in which the government argued that judges are too 

naive and simpleminded to decide in domestic security cases 

whether there is probable cause to believe that some wrongdoing 

in a security area was underway. 

And Justice Powell wrote for a unanimous court, quote, ‘‘we cannot accept the government’s argument that internal security matters are too subtle and complex for judicial evaluation. If the threat 

is too subtle or complex for our senior law enforcement officers to 

convey its significance to a court, one may question whether there 

is probable cause for surveillance.’’ That certainly was a repudiation of the idea that judges simply are uncomprehending of the 

nature of security risks and therefore must trust the word of the 

government branches. 

Mr. NADLER. Thank you. My last question—because my time is 

almost up under lenient interpretation. 

Ms. Fuchs, you have litigated a lot of government secrecy claims, 

and you have written a major article on the proper role of judges 

in state secret cases. We know there has been abuse of secrecy 

claims illustrated in cases like Reynolds and through admissions of 

high-ranking officials of massive overclassification to avoid government embarrassment. In light of that history, what do you think 

the impact would be of requiring substantial deference or utmost 

deference of state secret assertions? 

Ms. FUCHS. I frankly think that using the word deference at all 

is going to nullify everything else that is in the bill. I think that 

it is clear in the FOIA instance where courts are supposed to be 

conducting de novo review that they will always sort of tend toward deference anyway. And so it is important that any extra 

weight that is given to the government be very narrowly constrained. 

Mr. Vatis talked about due regard being given to the government’s view based on their background. And indeed, you know, the 

expertise of someone who is currently operating within an intelligence agency would be given regard by a judge. That is what 

judges do all the time. But if the word deference is used for some 

sort of weight, then the impact is basically going to be that courts 

are going to tend toward a sort of chevron deference. And if that 

is the case, there is not going to be any real check on the secrecy. 

Mr. NADLER. I thank the witnesses. 

Now recognized for 5 minutes, the distinguished Ranking Member, Mr. Franks. 

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

You know, Mr. Chairman, one of the privileges I have in this 

Congress is also to serve on the Armed Services Committee and the 

Subcommittee on Strategic Forces. And of course the Strategic 

68 

Forces Committee has to do with the nuclear profile of this country. And I was struck by Mr. Fein’s comment relating to the Rosenbergs. And you know, it occurs to me that sometimes we need to 

understand the significance of our state secrets. 

I am convinced historically that had we been able to control our 

state secrets that there never would have been a Cold War. And 

as we discuss some of the challenges that we face with other Nations even today—China is a perfect example. Much of the technologies that they have received—and this is all open-source information—that they have received—at least the reports or the comments that I am making are—that much of the information that 

they have received from our government, either clandestinely— 

they have either stolen it or it was given to them otherwise—has 

given them great advances in the area of aiming technologies, missile aiming technologies, that are, for instance, part of the reason 

that they have been able to advance their ASAT capability, shooting down their own satellites. 

And I am afraid that some of that information was lost accidentally by the United States. Some of it was transferred openly by 

the Clinton administration. But the reality is that we probably are 

on some type of collision course at some point with China in what 

I don’t know how will completely play out. 

The challenges of state secrets are not small ones. I am convinced, being on the Armed Services Committee, that the greatest 

compromise to American military superiority is the loss of our secrets. Nothing empowers our opponents more than them gaining 

our technologies and either leapfrogging on it or building on it to 

be able to surpass where they would have been otherwise. 

I just wanted to throw that out, Mr. Chairman. 

Mr. Chairman, the state secrets doctrine remains strongly supported by today’s Supreme Court, even in its Boumediene decision, 

granting habeas corpus litigation rights to terrorists. And by the 

way, Mr. Chairman, that was the part that I found laughable, not 

the bill—was the—— 

Mr. NADLER. I think that was clear. 

Mr. FRANKS [continuing]. That the court—I just wanted to 

make—in deference to my good friend, Chairman Conyers. 

Granting habeas litigation rights to terrorists, I think, is also 

something else that is on a collision course with reality. Justice 

Kennedy in his major opinion acknowledged the government’s, 

quote, legitimate interest in protecting sources and methods of intelligence gathering and stating we expect that the district court 

will use its discretion to accommodate this interest to the greatest 

extent possible, while citing its Reynolds decision in doing so. 

And so, Mr. Vatis, my question to you is what does that tell you 

about the Supreme Court’s continued interest in protecting the 

state secrets privilege as understood today? 

Mr. VATIS. I think the Supreme Court in the Boumediene decision and in other previous decisions—Reynolds and even earlier as 

you have alluded to—have articulated a privilege that has substantial force. And I think if left unregulated by a statute, the Supreme 

Court and lower courts will continue to do so. As I said in my opening statement, I don’t think that precludes this body of government 

from getting involved and regulating judicial review of assertions 

69 

of the state secrets privilege. I think it is a perfectly appropriate 

endeavor. 

I do think, though, that the regard for executive judgment and 

executive prerogatives under the Constitution should be part of 

this statute. And I think the place where that should be reflected 

is in the standard review, as I have alluded to. 

And again, I don’t want my position to be misunderstood or 

mischaracterized. I agree with the provisions in the bill calling for 

independent judgment, independent review of all of the evidence by 

the judge. It is merely a question of whether government witnesses 

should be given deference. 

The word deference does not need to be used. Words like substantial weight, words like if it is supported by the evidence or if 

a determination is reasonable, things like that. There are many 

ways that this body of government has required deference. There 

are many articulations of it and many levels of it. I think utmost 

deference would be the wrong standard. 

Mr. FRANKS. I understand. 

Mr. VATIS. But—— 

Mr. FRANKS. Thank you, Mr. Vatis. 

Mr. VATIS. But I think there should be some level of deference—— 

Mr. FRANKS. Thank you, sir. 

Mr. Chairman, I guess, you know, I have made this point before. 

This, again, is another hearing that seems to point toward doing 

what we can to give terrorists or the enemies of American national 

security greater rights, greater opportunities to avoid justice here. 

And I understand that part of our constitutional system is to 

make sure that those accused have the rights of being able to either extol or demonstrate their innocence. I understand that, and 

I believe in part of it. But we have not had one hearing yet on 

doing what we can in this Committee, which is our primary charge, 

to protect the constitutional rights of the people, to protect their 

lives and their constitutional rights, their lives being their first 

constitutional right—— 

Mr. NADLER. Would the gentleman yield? 

Mr. FRANKS. Yes, sir, Mr. Chairman. 

Mr. NADLER. Well, I just point out that the bill we are considering has nothing to do with the rights of people accused of anything. The question of how to handle secrets in the context of a 

criminal trial was determined by this Congress 30 years ago, 20 

years ago, in the—what do you call it—the Classified Information 

Procedures Act. What this bill deals with and what this hearing 

deals with is how to deal with civil litigation if someone is suing 

the government claiming his rights are violated and the government asserts a state secret. 

Mr. FRANKS. I understand that, Mr. Chairman. 

Mr. NADLER. I yield back. 

Mr. FRANKS. I am reclaiming my time. 

The challenge is that some—you know, the terrorist organizations are not so acquainted with the subtleties that you mention, 

and they are already suing our government. So, it is astonishing 

to me. I mean, in my opening testimony, I talked about GuantaVerDate Aug 31 2005 15:47 Jan 07, 2009 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073108\43832.000 HJUD1 PsN: 43832
70 

namo detainees that will be suing our government pretty soon 

under the new habeas rights that the Supreme Court gave them. 

So, the bottom line here is—what concerns me is it seems like 

most of the impulse of the Committee has been to try and embarrass the Administration, hurt the Administration, rather than try 

to do what we can to protect the Constitution and the American 

people. And I just point to the Robert Chesney of Wake Forest University law school, the study that he did showing—and I will just 

read these two quotes and I am done. 

He concluded that recent assertions of privilege are not different 

in kind from the practice of other Administrations. And he also 

concluded that the available data, while they do suggest privileges 

continue to play an important role in the Bush administration, it 

does not support the conclusion that the Bush administration 

chooses to resort to the privilege with greater frequency than prior 

Administrations or unprecedented substantive context. 

And I just feel like we are once again focusing on things that are 

not to the greatest extent important to the American people and to 

the Constitution of the United States. And I think that is a failing 

of the Committee here. 

And I yield back. 

Mr. NADLER. I thank the gentleman. 

I would simply like to comment briefly that this is not an attempt to embarrass this or any other Administration. I believe, and 

we differ obviously, that for future Administrations—because if we 

pass this bill, by the time it is signed into law, it is going to be 

a future Administration—we need to control the use of the state secrets privilege. And whether or not the Bush administration has 

used it more frequently is an interesting question. 

But the real change is that it is used today in a way that it 

wasn’t used previously to dismiss a case ab initio, that is from the 

beginning, not merely to object to a specific piece of evidence. And 

this bill seeks to deal with that question too, although we haven’t 

had any comment on that. 

But I will now yield to the gentleman, the Chairman of the full 

Committee, the gentleman from Michigan, Mr. Conyers, for questions. 

Mr. CONYERS. Thank you, Mr. Chairman. This is an incredible 

hearing for this reason. My dear friend, the Ranking Member, 

thinks it is an incredible hearing for another reason. But the reason that I think it is incredible is that all of the witnesses have 

a common point of agreement except on the exact standard of court 

review. That is really quite amazing to me. 

Mr. Vatis argues for deference. Ms. Fuchs and Shapiro and Fein 

caution strongly against that. And we may be able to—is there 

someway that there is a compromise that could loom up that would 

get all of you aboard on this point that Mr. Vatis has raised, or are 

we going to have to decide one way or the other? 

Mr. VATIS. Mr. Chairman, I think there are ways to bridge the 

perceived gap because I don’t think the gap is as large as it might 

be described. I think there are, as I mentioned earlier, different 

levels of deference that can be accorded. 

Ms. Fuchs has said courts are going to defer anyway, but essentially I think she said don’t invite them to defer too much. I think 

71 

by being specific in the statute that is ultimately passed, Congress 

can make sure that they don’t defer too much. If the statute doesn’t 

say with specificity how much deference to give, how much weight 

to give to the Administration’s assertion, some courts will defer too 

much; other courts won’t defer enough in my judgment. 

And so I just think Congress should be specific about how much 

weight should be given to the Administration’s assertions of harm. 

And I think different words can be used, and we could probably 

come up with words or options, I think, that might be a compromise. 

Mr. CONYERS. Well, that is encouraging. 

Mr. FEIN. I think, however, that there needs to be some consensus as to whether or not the judge only is to be alerted to the 

fact that the government has expertise without mentioning it does, 

but it also has the incentive to use that expertise for political purposes and distort the record. They are both true, and they both look 

in opposite directions when it comes to paying attention to what 

the executive branch has said would be the national security fallout. 

The fact is the government sometimes lies about what it knows— 

I mean, if we would go back to the Gulf of Tonkin Resolution with 

President Lyndon Johnson about whether there were torpedoes 

shot against the Turner Joy. So, it doesn’t mean that they always 

lie, but sometimes they do; sometimes they don’t. And I think it is 

important that the statute flag that as an element that the judge 

should consider. I think there is a too ready acceptance that anytime the executive branch says anything, well, we should automatically bow like vassals and say it must be true. 

Mr. CONYERS. But is Mr. Vatis right that we might be able to 

resolve this language? This is a matter of phrasing. 

Mr. SHAPIRO. Mr. Chairman, let me just say, I do not think this 

is an unbridgeable gap. But I think the first point you made is 

really the most important and that is that the areas of agreement 

among all of us are far more substantial than this area of disagreement, as important as it may be. 

So, everybody who is testifying here today believes: number one, 

that Congress has the constitutional authority to act; number two, 

Congress should exercise that authority; number three, Congress 

should exercise that authority in a way that preserves a meaningful and independent judicial role in reviewing the state secrets 

privilege; and number four, the state secrets privilege should not, 

except in the rarest of circumstances, be used to dismiss cases in 

their entirety. 

Those areas of common agreement, seem to me, form the basis 

for very significant legislation from this Committee and this Congress. I happen to agree with Mr. Fein and Ms. Fuchs that the 

issue is really not one of deference, that the issue is one of persuasiveness. Deference tends to confuse the issue. 

And to use Mr. Vatis’ example, if you have a present Administration official who has access to ongoing intelligence information that 

is no longer available to a former Administration official, then the 

present Administration official’s testimony will be more persuasive 

and is likely to be credited by the judge for that reason without 

having to put the language of deference or substantial weight into 

72 

the bill. I think the way to address the concern that Mr. Vatis is 

raising, which I understand, may be not in the language of the bill 

but in some cautionary language in the Committee report. 

Mr. CONYERS. Does the witness represent your views, Ms. Fuchs, 

pretty well? 

Ms. FUCHS. I would say that does represent my view. I just want 

to add one point, which is that this bill also does provide for interlocutory appeal. And so there is a protection against a judge who 

is overreaching from the government’s perspective. While it may be 

that there is a concern about one rogue judge, once you get it to 

the court of appeals where you have three appellate judges, that 

is certainly a significant protection against a judge going too far. 

But I also just would add that the former director of the Information Security Oversight Office, who is also the secretary of the 

Interagency Security Classification Appeals Panel, which decides 

on classification reviews within the government, has said that his 

power to actually order declassification was never used but proved 

to be a very forceful power to have in trying to get the agency to 

explain why things couldn’t be declassified. 

Mr. CONYERS. Well, I want to thank you all. This has been a very 

important and significant hearing. 

Mr. NADLER. The gentleman from Virginia is recognized. 

Mr. SCOTT. Thank you, Mr. Chairman, and thank you for calling 

the hearing. 

Mr. Fein, as I understand your testimony, the state secret privilege does not exist in criminal court. 

Mr. FEIN. There is a requirement that if the government is unable to provide a summary of classified information that would give 

the defendant all the due process, notice and warning that he 

would need to mount an adequate defense, the government either 

has to dismiss the case or yield the evidence. 

Mr. SCOTT. And if the government is being sued as a defendant 

in a case, the state secret is a defense in a civil case. 

Mr. FEIN. That is correct. And I think what this bill does in circumstances where the judge would think it would be in the interest 

of judgment to say that if the government does not comply with an 

obligation to give over evidence that it may think should be protected but the judge says should not be, then the government has 

to choose either default judgment or give over the evidence. 

Mr. SCOTT. Okay, now, this works when the government is a defendant. How does it work if the government is not a defendant but 

just evidence is needed to sue somebody else? 

Mr. FEIN. The government usually then intervenes and makes 

the case. That is what happened in the telecommunications cases 

that were recently mooted by this House’s decision to vote for the 

FISA Amendments Act of 2008. 

Mr. SCOTT. Now, who gets to claim the privilege? Is it the president himself, high-ranking officials or any Federal employee? 

Mr. FEIN. I think the Congress could stipulate who should be required to actually submit the affidavit and claim the privilege. Customarily, it has not been required to be the president. Oftentimes, 

it would be CIA director, sometimes Defense Department persons. 

But I think this body could require the highest level of attention 

73 

to this, like in executive privilege cases where the president would 

have to invoke the privilege for it to apply. 

Mr. SCOTT. Now, you have indicated that there is a difference between a state secret and an embarrassing situation. And if you 

have presented a prima facie case, you don’t want the government 

just to say we win but we have a state secret and can’t show you 

why. 

Mr. FEIN. No, I don’t want that to happen, especially when you 

have constitutional wrongdoing at stake. And I think, Mr. Congressman, that it is especially important to preserve the ability to 

seek redress for constitutional wrongdoing in a private litigation 

because as we know that the government has exclusive discretion 

to bring criminal charges against an executive official based upon 

alleged constitutional wrongdoing, and there is no check on the executive branch that decides that is not appropriate. So, this is a 

complement to separation of powers to enable at least a different 

forum to examine what is allegedly a constitutional wrong. 

Mr. SCOTT. And with a state secret privilege claim, who has the 

burden of proof now, and who would have the burden of proof 

under the bill? 

Mr. FEIN. Well, the burden of proof and privilege customarily lies 

on the party seeking to invoke it. And this bill I think properly 

makes it clear that the burden of proof is on the government. I 

would suggest that in constitutional claims it be a burden not just 

by preponderance but by clear and convincing evidence when the 

result is if it is proven, the claim is dismissed. 

Mr. SCOTT. Now, is this an ex parte or an adversary proceeding? 

Mr. FEIN. It is really up to the judge to decide what is necessary 

to protect national security. 

Mr. SCOTT. And is the fact that our government actually tortured 

someone—is that a state secret? 

Mr. FEIN. Well, I think certainly in many executive branch officials that would be correct because you are disclosing a method of 

intelligence collection. And it is often said the reason why we have 

to keep secret all these methods is that otherwise the enemy would 

know how to train its cohorts to resist this kind of torture. And 

that is what, to me, makes the state secrets doctrine without some 

regulation quite an instrument of oppression. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. I see Mr. Cohen is just arriving. 

And, Mr. Cohen, do you wish to be recognized to ask questions 

at this point? 

The gentleman from Tennessee is recognized. 

Mr. COHEN. Thank you, Mr. Chairman. I have been in Transportation, where I had a bill. 

What should the judge do if the government provides a substitute for limited release to counsel and parties but the government argues it cannot provide an unclassified version as the bill 

currently stipulates? 

Mr. Fein, can you help me with that? 

Mr. FEIN. Well, my desire is that if the unclassified version provides all the evidence needed for the plaintiff to move forward on 

the case, there is nothing wrong with that. That is how it works 

in the criminal context. 

74 

My view is that if the plaintiff can establish a prima facie constitutional wrong, and that obviously means the government has to 

have an opportunity to discredit the evidence submitted, and then 

the government says, but sorry, you lose because state secrets 

would be disclosed in order to prove a defense maybe that we didn’t 

torture you or whatever, then I think, as in the criminal context, 

the judge should have discretion, just award judgment for the 

plaintiff. 

The plaintiff would have to then prove the amount of damages 

involved. I don’t think it comports with our idea of justice to tell 

someone you lose your right for a remedy for a constitutional wrong 

because the government would disclose a state secret in order to 

defend or in order for you to prevail. 

And let me give an example of the situation: the el-Masri case, 

where the gist of the government’s defense was if Mr. el-Masri had 

to prove the identity of the CIA operatives who kidnapped and took 

him to Bagram for coercive questioning—well, a CIA operative is 

an intelligence source and so there is a state secret, so you lose. 

That seems to me a monstrous proposition in a government that 

is supposed to be a government of laws and not of men. 

Mr. COHEN. Does anybody on the panel differ? Good. 

I understand state secrets and the importance of the state secrets, but as Mr. Fein points out, the government is supposed to 

be of laws, and we are supposed to give people an opportunity 

when they have had some wrong done to them to have a redress 

of grievances. That seems inherent in our system of government, 

a due process hearing and opportunity for a hearing and then for 

some type of a decision. And it does seem like we should come up 

with some type of an alternative that can satisfy both parties, 

which we normally do in these cases. 

And I would yield the remainder—— 

Mr. NADLER. Would the gentleman yield for a moment before he 

yields back? 

Mr. COHEN. Yes. 

Mr. NADLER. Thank you. 

I just want to mention that the bill is very clear on that point. 

It says in a civil action brought against the government, if the 

court orders the government to provide a non-privileged substitute 

for evidence or information and the government fails to comply, in 

addition to any other appropriate sanctions, the court shall find 

against the government—the court shall find against the government on the factual or legal issue to which the privileged information is relevant. 

It doesn’t go as far as Mr. Fein would say that the courts shall 

find against the government on the case that you win. But it says 

on the factual or legal evidence, on the factual or legal issue to 

which the point of evidence is relevant, that if the government refuses to provide it despite the court saying it can be provided, that 

the court shall find against the government on that factual or legal 

issue, which may or may not determine the outcome of the entire 

case. 

Mr. COHEN. And now I yield back the remainder of my time. 

75 

Mr. NADLER. Let us see—we have no further witnesses. Without 

objection—well, first of all, let me say I thank the witnesses, and 

I thank the Members for their participation. 

Mr. FEIN. Mr. Chairman—— 

Mr. NADLER. I am told that Mr. Fein had something he wanted 

to add, so—— 

Mr. FEIN. I just would like—— 

Mr. NADLER. Without objection, I will recognize him. 

Mr. FEIN. Thank you, Mr. Chairman. 

I would like to make this closing observation, and that is there 

has been a suggestion that all of these efforts to inject due process 

in the rule of law makes us less safe. Well, we have 26 CIA 

operatives under indictment and prosecution in Milan, Italy, for 

kidnapping and allegedly taking an Egyptian cleric to Egypt for 

torture. That is not making us safer. 

With Mr. el-Masri’s case, I believe there are arrest warrants out 

for 13 CIA operatives for the kidnapping and abuse of Mr. el-Masri. 

We now have suggestions in the recent book by Jane Mayer that 

FBI agents who are experts in interrogation refused to participate 

in detainee debriefing by the CIA because they did not want to be 

complicit in war crimes. Those kinds of things don’t make us safer. 

It is wrong to assume that every time we move to a rule of law we 

become safer. 

Mr. FRANKS. Mr. Chairman, could I just respond—60 seconds? 

I—— 

Mr. NADLER. Without objection. 

Mr. FRANKS [continuing]. Absolutely believe that the gentleman 

makes a good point. I would suggest that the indictments and that 

these people are being looked for is some evidence that the system 

is working already. 

Mr. NADLER. But those—excuse me, would the gentleman yield? 

Mr. FRANKS. Sure. 

Mr. NADLER. Are those indictments in the United States or in 

other countries? 

Mr. FEIN. They are indictments of the United States officials, 

and moreover we have refused to extradite and cooperate—— 

Mr. NADLER. So, they are indictments in other countries. 

Mr. FEIN. Yes. 

Mr. NADLER. Thank you. 

I would suggest that indictments in other countries don’t necessarily show—Mr. Franks, I would suggest that indictments of 

American government officials by other countries don’t necessarily 

show that the system is working well. 

Mr. FRANKS. To suggest that we have war crimes on our hands 

here, Mr. Chairman, I just am convinced that, you know, when we 

see wrongdoing in our system, there is an existing commitment to 

pursue that. We are going to execute one of our own soldiers before 

long, Mr. Chairman. This country is committed to justice. And I am 

just convinced that we are going in a direction here that is ultimately not to the benefit of the American people and the Constitution. 

Mr. CONYERS. Mr. Chairman, might I—— 

Mr. NADLER. Without objection, the Chairman is—— 

76 

Mr. CONYERS. What is the direction that you see me going in 

that is detrimental to the country? 

Mr. FRANKS. Mr. Chairman, I think in general—I have said this 

before. I think in general this Committee has—and I understand 

the political nature of the Committee, but I think we have been so 

focused on things like habeas corpus for terrorists, which will ultimately make our efforts against them unworkable, things like that, 

that we are moving so much in a direction here to make it easier 

for terrorists to survive the system that we are overlooking the fact 

that jihadist terrorism and the coincidence of nuclear proliferation 

represents a profound threat to this country. And perhaps we may 

have to revisit this in times in the future that we don’t—— 

Mr. CONYERS. And do you have the same view of the direction 

of the Supreme Court? 

Mr. FRANKS. I apologize, Mr. Chairman. 

Mr. CONYERS. I said do you have the same view about the direction of the Supreme Court as well as this Committee? 

Mr. FRANKS. Well, the only Supreme Court ruling that I talked 

about today was the Boumediene decision, and I think that was 

wrongly decided. And I think ultimately the Congress will have to 

address it. 

Mr. CONYERS. I am not talking about that one case. I am talking 

about the direction of the Supreme Court in your opinion. 

Mr. FRANKS. You are talking about the general trend—— 

Mr. CONYERS. Yes. 

Mr. FRANKS [continuing]. Of the United States Supreme Court? 

Mr. CONYERS. That is right. 

Mr. FRANKS. Well, I guess right now it is pretty much, you know, 

been politicized to the extent that almost everyone in this Congress 

knows that there are four liberals on the court and four conservatives and one guy in the middle. And it shouldn’t be such that 

every time the Supreme Court sits down that we have to wonder 

what one guy is going to do to the Constitution. 

Mr. CONYERS. So then, I presume that your answer to my question is yes. 

Mr. FRANKS. I am not trying to be dense here, Mr. Chairman. 

Your question is: Do I think the Supreme Court is doing what? 

Mr. CONYERS. Well, that is what I was trying to find out from 

you, sir. You were the one who said you thought the Committee 

was moving in the wrong direction. 

Mr. FRANKS. Right. 

Mr. CONYERS. And then I was asking you do you think the Supreme Court is moving in the wrong direction as well, and I presume that your answer is yes. 

Mr. FRANKS. I think they went in the wrong direction with the 

Boumediene decision, yes, sir, I do. 

Mr. CONYERS. Well, I give up. 

Mr. FRANKS. You know—— 

Mr. CONYERS. But we have plenty of opportunity—look, you and 

I work together 4 to 5 days a week whenever we are in session, 

and so we have a great opportunity to continue this discussion 

without taking up the time—— 

77 

Mr. FRANKS. Thank you, Mr. Chairman, I would be glad. I really 

do want to—I do think Mr. Alito and Mr. Roberts were great additions to the court. 

Mr. NADLER. Well, thank you for that opinion. 

Inspired by this colloquy, without objection, I am going to ask the 

witnesses one final question for each of you. And this will actually 

get back to discussing this bill sort of. [Laughter.] 

If you have an Administration, and I don’t mean to cast any aspersion on this or any other Administration. I am asking a theoretical question now. If you have an Administration that is abusing 

civil liberties, that does wrong things to people, and let us assume 

that an agent of that Administration improperly arrests someone, 

improperly holds that person under incommunicado, improperly 

tortures that person, improperly does all kinds of violations of 

rights of that person, one presumes that that Administration will 

not prosecute itself, will not prosecute its own agents for those terrible acts. 

The normal remedy in American law—the only remedy that I 

know of—is for that person, once recovered from the torture, to sue 

for various kinds of damages and in court elucidate the facts and 

so forth and get some justice and perhaps bring out to light what 

happened so that that Administration would not do it again or the 

next one wouldn’t. 

If, however, that lawsuit can be dismissed right at the pleading 

stage by the assertion of state secrets, and if the court doesn’t look 

behind the assertion to the validity of that assertion and simply 

takes it at face value, well, the government says state secrets 

would be revealed and it would harm the national security if this 

case went forward, therefore case dismissed, which seems to be the 

current state of the law—if that continues and if we don’t change 

that, what remedy is there ever to enforce any of our constitutional 

rights? Or am I being too alarmist? 

Why don’t we go left to right here. 

Ms. FUCHS. I mean, indeed that is a fact, sort of the model in 

the FOIA, because the government certainly isn’t doing anything to 

make sure that the public is getting information it wants. And so 

we are very free to sue, and we go to court. And Congress has said 

in cases where its exemption—where the information is security 

classified, you can still sue, and you can still challenge the secrecy. 

And so that is exactly what is needed here. 

I wonder if I might take one moment to respond to Mr. Franks’ 

statements earlier—because I have a burning desire to do so— 

about the importance of protecting our country. I suspect that everyone on this panel cares a great deal about protecting country. 

I mean, we are all American citizens. You know, I have children; 

I am a mother. I want my kids safe. And I live in Washington, 

D.C., which some people think is, you know, ridiculous. 

I don’t think this bill is about, you know, whether or not we are 

protecting our country. The reality is that our government spent $8 

billion in the last year protecting secrets, and I would like that $8 

billion of my tax money and everyone else’s tax money to be spent 

protecting real secrets, not protecting things that are just embarrassing to the government and not using that to interfere with people’s ability to seek compensation—— 

78 

Mr. NADLER. Thank you. 

Mr. Shapiro? 

Mr. SHAPIRO. Four quick sentences: Number one, what you describe as hypotheticals are, of course, sadly not hypotheticals for 

the actual experiences of not only Mr. el-Masri but Mr. Arar and 

others. Number two, I think when the government invokes the 

state secrets privilege to prevent inquiry into serious allegations of 

torture and kidnapping, courts need to look at the invocation of the 

state secrets privilege skeptically and make sure that it is really 

being raised to protect national security and not to shield government officials from legal and political accountability. 

Number three, I will say that the point you raise about not dismissing cases at the outset is an extraordinarily important one. I 

tried to address it, albeit briefly, in my opening remarks. I have no 

doubt that had we been given the opportunity in the el-Masri case, 

we could have proven that he had been the victim of serious and 

government misconduct and abuse based on non-privileged information in the public record. We were never given that opportunity. 

And fourth, I think if the courts are not going to respond, I would 

hope at the very least that this Committee and other Committees 

in Congress could perform a fact-finding role in some of these 

cases—— 

Mr. NADLER. All right, but my question, and I hope you will answer the question and the other two witnesses also. Let us assume 

we change nothing with regard to the state secrets and it continues 

the way it is. What mechanism exists if any under which we can 

prevent any Administration from violating all sorts of constitutional rights period? 

Mr. SHAPIRO. I think we have no legal mechanism, Mr. Chairman. 

Mr. NADLER. Thank you. 

Mr. Vatis? 

Mr. VATIS. Mr. Chairman, I think even under this bill, if it were 

passed as written today, there would still be cases where the government could violate the law, could violate criminal laws, and yet 

the state secrets privilege would result in the case ultimately being 

dismissed if there were no other way to make the case with unclassified, non-secret evidence. But there is another mechanism. We 

should not rely just on the courts to check illegal conduct by the 

executive branch. 

There is, after all, this body, which has extensive oversight powers and also ultimately has the power of impeachment, which at 

least in the last 8 years has not been utilized. And I will leave it 

purely in the realm of the hypothetical that you pose, but if an Administration is acting lawlessly and repeatedly so in violation of 

criminal laws, that is certainly a high crime and misdemeanor worthy of impeachment. And so the political branch that this body represents, I think, has a role that it can and should play in such instances. 

Mr. NADLER. Thank you. 

Mr. Fein? 

Mr. FEIN. I don’t need to elaborate on my view of impeachment, 

but there is an alternate idea that maybe can be explored. I understand the independent counsel law fell into—because of disrepute, 

79 

but it would be constitutional under the Supreme Court’s decision 

to establish the ability to create a special counsel, if you will, appointed by judges in cases where the government had the clear conflict of interest you identified that would prevent an evenhanded 

assessment of whether or not crime had been committed to enable 

something like a second edition of Archibald Cox to investigate 

something like Watergate. 

And that is what I think needs to be seriously explored, because 

you are not going to resort to impeachment, you know, every time 

the government violates a law and it is not prosecuted by the president of the United States. So, it is something that would be an ad 

hoc kind of arrangement when the conflict of interest is most acute, 

when it is the higher-level-up officials who are implicated. 

And one example would be: I know the investigation now underway with the CIA officers who destroyed that video interrogation 

tape would be guilty of obstruction of justice or otherwise. There 

the reliance upon the Department of Justice to prosecute is—the 

confidence level is very low. An outside counsel would probably be 

a better choice. 

Mr. NADLER. Thank you. 

I will now recognize the distinguished Ranking Member for comment. 

Mr. FRANKS. Mr. Chairman, just to clarify. You know, my comments related to what I perceive as the wrong focus of this Committee does not in any way call into question the patriotism or the 

commitment to anyone on the panel. I would just suggest that 

while we have spent $8 billion—and I will accept your number— 

to keep our state secrets, I would remind us all that two airplanes 

hitting two buildings cost us $2 trillion. And if those same people 

gain the right state secrets, they may turn jihad into nuclear jihad, 

and that will be of unfathomable danger to our children. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I wish to thank our witnesses and the remaining Members. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as you can so that the answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion in the record. 

With that, again I thank the witnesses. I thank the Members. 

And this hearing is adjourned. 

[Whereupon, at 2:04 p.m., the Subcommittee was adjourned.] 

Æ