Policy hearings began in the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties last week on the house version of the State Secrets Protection Act (H.R. 984). But it still appears that the administration is trying to discretely sit on the sidelines while it conducts its “policy review” of the privilege. Below, Subcommittee Chairman Jerrold Nadler describes the task before the subcommittee and ends by noting that he is “extremely disappointed that the Department of Justice has declined to provide a witness to discuss this very important issue.”
Video Of Chairman Nadler’s Opening Statement
As previously posted,
on June 4, 2009, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on H.R. 984, the State Secrets Protection Act of 2009. This initial legislative step, along with scheduling of a markup on a similar bill, S. 417, in the Senate Judiciary Committees, raised expectations that this might be the year for congressional action on the State Secrets Privilege.
In the prior Congress, similar legislation was introduced in the House of Representatives as H.R. 5607, by Rep. Jerrold Nadler, of New York, and in the Senate as S. 2533, by Senator Edward Kennedy, of Massachusetts. See 154 Cong. Rec. E392 (Mar. 13, 2008) (Rep. Nadler statement on introduction); 154 Cong. Rec. S198-S201 (Jan. 23, 2008) (Sen. Kennedy statement on introduction). The House bill was referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, without further action. The Senate measure was reported out by the Senate Judiciary Committee. See Sen. Rep. No. 442, 110th Cong., 2d Sess. (2008). Neither the House nor Senate took up the legislation.
With a new administration in the White House, it still may be too early to expect smooth sailing for H.R.984, which had been introduced by Chairman Nadler on February 11, 2009. The June 4th hearing made it clear that significant barriers may remain.
Seeming to cast a pall over the June 4th proceeding was the announcement that the administration had declined to appear and present its position on the proposed Act. Chairman Jerrold Nadler (-NY) discussed the significance of the administration’s “no show” in his opening remarks:
“I would just add that I am extremely disappointed that the Department of Justice has declined to provide a witness to discuss this very important issue. I have met with the Attorney General, and I understand that a review is currently under way. Nonetheless, the Department continues to go into court and take positions that are remarkably similar to positions taken by the Bush administration. While I greatly appreciate the Attorney General’s willingness to work with us, I believe that it should be possible to send someone to provide us with the Administration’s views, and answer our questions, to the extent that they are able. I hope that this not a sign of things to come."Nadler Chairs Hearing on Critical State Secrets Legislation, Office of Representative Jerrold Nadler, June 4, 2009.
The focus of the June 4th subcommittee hearing was on Nadler’s H.R. 984. The bill would mandate that the courts independently assess the government’s claim of a state secrets privilege in civil cases. Under the bill, evidence would be withheld under the privilege when “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.”
As Chairman Nadler explained, the subcommittee in assessing the role of the state secrets privilege would have to assess how the overlapping responsibilities of the executive, judiciary and congress could be balanced. A balance was necessary to protect the State Secrets’ Privilege while ensuring that the privilege does not overwhelm other interests of society:
“It is important to protect national security, and sometimes our courts have to balance the need for individual justice with national security considerations. Congress has, in the past, balanced these important, albeit sometimes competing demands. In the criminal context, we enacted the Classified Information Procedures Act. In FISA [Foreign Intelligence Surveillance Act], we set out procedures for the courts to examine sensitive materials. Through FOIA [Freedom of Information Act], we sought to limit any withholding of information from the public, whom the government is supposed to serve.Id.
“We can, and should, do the same in civil cases. Our system of government, and our legal system, has never relied on taking assurances at face value. The courts, and the Congress, have a duty to look behind what this administration, or any administration, says to determine whether or not those assurances are well founded.... 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 any merit. When the government itself is a party, the court cannot allow it to become the final arbiter of its own case. The purpose of this legislation is to ensure that the correct balance is struck."
Four witnesses testified at the subcommittee hearing. In the absence of an official transcript report, a brief contemporaneous account of the hearing was posted as an Open Thread by blogger emptywheel (aka Marcy Wheeler). The account, House Judiciary State Secrets Hearing Open Thread provides a rough account of the hearing. The summary of witnesses' statements below is based on emptywheel’s observations from the hearing. (In addition, prepared statements of all witnesses but Judge Wald are currently available and linked as well.)
- Patricia Wald (retired chief judge of the U.S. Court of Appeals for the District of Columbia): Judge Wald addressed the "[u]se of privilege to cut off relief,” reported emptywheel. The judge feared that the current procedures could serve to “produce injustice.” She also perceived that “[t]here is a consensus it's time to regularize the privilege.” It seemed her impressions of H.R. 984 was that it would not endanger national security and that Congress “has [the] power to regulate evidentiary rules.... Federal judges handle classified information every day. [H.R. 984] [i]ncoporates proven techniques.” The judge concluded that overall it would be a “good thing to have these techniques recognized in the law.” emptywheel.firedoglake.com, House Judiciary State Secrets Hearing Open Thread (June 4, 2009)
- Asa Hutchinson (former house member, (R-Arkansas) and senior partner, Asa Hutchinson Law Group): emptywheel recorded that Hutchinson noted that "[a]ny assertion of state secrets should not be immune from checks and balances” and warned that there was a “human tendency when that privilege is there to claim that privilege. Courts have proven their ability to manage secrets: FISA [Foreign Intelligence Surveillance Act], CIPA [Classified Information Procedures Act], FOIA [Freedom of Information Act]. You could make the case there's been more loose lips in other branches of government” he opined than the judiciary has displayed in its current responsibilities for managing secrets. The Prepared Remarks of Asa Hutchinson are available here.
- Andrew Grossman (Senior Partner, The Heritage Foundation): According to emptywheel, Mr. Grossman feared that H.R. 984 "would severely limit the state secrets privilege.... No evidence that [the privilege] is being used more frequently or differently than before." Mr. Grossman’s prepared remarks are available here.
- Ben Wizner (National Security Project Staff Attorney, ACLU): In emptywheel's brief account of his statement, he told the committee that "[w]e've seen state secrets mutate into an alternative form of immunity to shield the government from accountability." Prepared Remarks of Mr. Wizner are available here.
emptywheel.firedoglake.com, House Judiciary State Secrets Hearing Open Thread (June 4, 2009)
"It is unacceptable that the Department [of Justice] declined to come to this non-secret hearing [on H.R. 984]. They could not provide a witness, why? There's a review pending, and until it is solved, they don't want to come before this co-equal branch of government[?] They could have sent someone here to say we can't talk with you guys."
While not directly addressing the merits of the bill, the President did make some general comments on the State Secrets Privilege itself in remarks on national security at the National Archives on May 21, 2009:
"We're currently launching a review of current policies by all those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers -- especially when it comes to sensitive administration -- information.Remarks by the President on National Security, The White House – Office of the Press Secretary, May 21, 2009.
"Now, along these same lines, my administration is also confronting challenges to what is known as the 'state secrets' privilege. This is a doctrine that allows the government to challenge legal cases involving secrets programs. It's been used by many past Presidents -- Republican and Democrat -- for many decades. And while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that's why my administration is nearing completion of a thorough review of this practice.
"And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the Attorney General. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions."
The politics of the State Secrets Privilege seemed a bit slowed with the failure of the administration to weigh in more definitively on the House or Senate versions of the State Secrets Protection Act. While the wait continues for the administration to complete its “policy review” of the matter, two analyses became available on the States Secrets Privilege. These two reports survey the current state of the State Secrets Privilege and possible reforms:
- Edward C. Liu, The State Secrets Privilege and Other Limits on Litigation Involving Classified Information (Congressional Research Service May 28, 2009)
- Justin Florence and Matthew Gerke, National Security Issues in Civil Litigation: A Blueprint for Reform (Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution November 17, 2008)
While the June 4 House Judiciary Subcommittee hearing on the State Secrets Protection Act might have started the ball rolling on H.R. 984, it is unclear just how far it might roll while the administration completes its policy review on the issue.
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