While no public copy of the amended text of H.R. 984, as passed by the House Judiciary Committee, is presently available, a rough transcript of the committee’s markup session does provide a basis for understanding the committee’s action. As proposed on February 11, 2009, the measure addressed the following key issues:
- Claim In Civil Proceeding: In any civil action brought in federal or state court the government has a privilege to refuse to give information and to prevent any person from giving information. For this privilege to apply the government must show that public disclosure of the information claimed to be privileged would be reasonably likely to cause significant harm to the national defense or the diplomatic relations of the United States.
- Protecting Alleged Privileged Information: When a claim of state secrets privilege is made, the measure requires the court to take steps, including in camera hearings and other proceedings, to protect sensitive information that comes before it.
- Risk Of Harm Procedures: The legislation specifies rules on the participation of counsel or the disclosure of information when it presents a risk of harm. In addition, it allows for court-ordered presentation of adequate or non-privileged substitutes for the privileged information.
- Standing To Claim The Privilege: The bill allows the government either to (1) assert the privilege in connection with any claim in a civil action to which the government it is a party; or (2) intervene in a civil action to which the government is not a party (in order to assert the privilege).
- Prerequisites For Court Action: Under H.R. 984, once the government asserts the state secrets privilege, and before the court makes any determinations, the court shall: (1) make a preliminary review of the information in question; and (2) provide the government an opportunity to seek protective measures under the State Secrets Protection Act.
- Specify Standards Applicable To Privilege: The bill establishes procedures and a standard for assessing the privilege claim. ,li>Implementation Of Court Determination: The measure provides for the disclosure of information claimed as privileged to a nongovernmental party, or for admission at trial under the rules of evidence, of the information if the court determines that the privilege was not validly asserted. The bill also prohibits such disclosure or admission if the privilege is determined valid.
- Appeal: H.R. 984 also grants the courts of appeal jurisdiction of an appeal by any party from any interlocutory decision or order of a U.S. district court. Congressional Research Service Analysis of H.R. 984.
In introducing the bill to the committee, chairman Nadler discussed several "technical" amendments he proposed to the measure, including:
Attorney Security-Clearance Fall-Back Technical Amendment:
As explained by Representative Nadler, this amendment “streamlines the process for appointment of attorneys with appropriate security clearances. … [I]t clarifies the process contained in Section 5(e) of the bill for the appointment of cleared counsel to represent nongovernmental parties in proceedings under the act. Under Section 5(e), the court directs counsel to seek a security clearance from the government. If that counsel is not approved, the party can propose alternate counsel. And if that counsel also is not approved for security clearance, the court must appoint an attorney “who can obtain the necessary clearances…. The amendment substitutes the appointment of an attorney who already has the requisite security clearance for an attorney who can but still needs to obtain such clearance. This change will avoid the delay and uncertainty that would occur if another attorney had to go through the entire clearance process. The executive branch retains authority to decide whether or not to clear a particular attorney. But this change streamlines the process by, when necessary, requiring a resort to counsel who has already been cleared by the government.
Court Obligation To Decide Amendment:
Representative Nadler explained the second amendment as clarifying “the court's obligation to issue orders when the court determines that the state secret privilege does not apply to information the government seeks to protect. Currently Section 7(a) of the bill provides that information may be disclosed or used at trial if the court finds that the privilege does not apply. During markup in subcommittee, Mr. Sensenbrenner expressed some concern that, unless Section 7(a) affirmatively requires the court to issue an order requiring disclosure, the interlocutory appeal right contained in Section 8 might not be triggered, and the government might be deprived of its right to an immediate appeal.”
Any Special Weight Accorded To Government Claim Of Privilege:
Another amendment that received considerable attention from the committee involved a proposal by Representative Schiff (D-CA) regarding “the weight that courts should give government claims of harm to national security that would occur if evidence was disclosed.” Representative Nadler objected to Schiff’s proposed amendment and suggested an alternative. In explaining the change he sought, Schiff explained:
“It would specify the weight that courts should give government claims of harm to national security that would occur if evidence was disclosed. In the bill as it is currently drafted, courts are given no real guidance in this respect but are simply ordered to evaluate the testimony of a government witness the same way they would any other witness, any other expert witness. I am not sure that this is the correct standard or it is desirable for the Congress to be silent on this point. In the Senate legislation sponsored by Senators Leahy and Spector, they would include a substantial weight standard. This legislation offers something somewhat different that would provide that the government's assertion of harm should be given due deference. I think this is -- will facilitate the court in understanding that, whether the government expert is the Director of National Intelligence or the director of the CIA, that they do possess the broadest possible range of information on the impact on national security of the disclosure of a potential state secret. So what this amendment would do is it would remove the language in the underlying bill that says you give the government expert the same weight as any expert, and it says, instead, that the court shall give due deference to the assertion of harm by the government.”Transcript, 146-47.
In opposition to the Schiff amendment, Representative Nedler explained that he construed the amendment to go to the very heart of the measure:
“Mr. Chairman, first of all, we are preparing a secondary amendment. It is being typed right now. I would urge, if the secondary amendment which I am going to offer is not approved, the defeat of this [Schiff] amendment. This is very key because if you say -- the whole point here is that we are asking the court to judge whether the government's assertion that certain evidence must be kept secret is valid or not. And we are saying that there has to be a hearing, a secret in camera hearing, on that question in front of the judge. And we are saying … that the government witness must be given due deference, [where as the Schiff amendment] … is … putting your thumb on the scale and saying the executive should be given deference, and you are practically telling the judge, and many judges will read this as telling them, you have got to agree with the government. Now, in the FOIA cases where that is done, you rarely find the judge disagree with the government. But that is different. It is different in the sense that the government here is not a disinterested party, as it is in FOIA. The government here is a party who has allegedly, that is the accusation, wronged somebody.The House Judiciary Committee vote on the Schiff amendment was 12 yes and 17 no, so it was rejected. A second Amendment proposed by Representative Schliff was resolved by Representative Nadler proposing unanimous consent to a technical change in appointment of attorneys to handle a case pending the security clearance of the attorneys for the parties. The committee voted on the H.R. 984 as a whole, as amended by Representative Nadler, and it passed by a vote of 18 yes and 12 no.
“This is a suit against the government. The government allegedly has gone into somebody's house and stolen his guns or ransacked his papers or kidnapped him or tortured him or whatever, and someone is seeking redress in court. And when he seeks redress in court, the government is now saying, you can't see the documents, which may be necessary to prove the case. So we are saying that, well, the judge has to decide. The … government gets an interlocutory appeal if he doesn't like the decision -- the plaintiff does not, but the government does -- has got to have the opportunity to make that case. And what the bill says is, the court shall give the same weight to the government witnesses as it would to any other expert witness, depending on the facts, depending on the familiarity of the government witness, depending on his expertise. But it is not saying, as the gentleman's amendment would say, put the thumb on the scale. Now, we know the government doesn't always tell the truth. In the Reynolds case … the Supreme Court case, it came out 50 years later that the government was simply lying to the court, which relied on the government's representation and kept secret what would have proved a case of negligence and wrongful death. And it was kept secret because the government lied to the court and said it involved state secrets, whereas, in fact, it did not. In the Pentagon papers case, we saw similar.”
The measure will be reported to the House and scheduled for action as decided by the leadership. Because the text of the bill, as amended by the Judiciary Committee, is still unavailable, it is difficult to examine the measure that will go before the House. But in a press release on the day after the committee’s vote, Representative Nadler added a further explanation of the effect he thought would be achieved by passage of the bill in Congress:
“[I]f the Executive can have any case dismissed on the mere incantation of the magic phrase “state secrets” without having to prove to a court that the concerns about revelation of sensitive national security information are real – and not simply an excuse to shield embarrassing or illegal acts or information – then you have no remedy – and no rights – and the Executive can get away with anything, regardless of anything the laws or the Constitution may say, and no one will ever be the wiser. There can be no law, no rights, and no liberty if the Executive can do anything it wants behind an impenetrable wall of secrecy.
“The state secrets doctrine, as it has been reinvented in the last few years, is the greatest threat to liberty in this country. It must be limited and controlled, and the appropriate balance between our three branches of government must be restored. That is what this bill will do.”
As the hearing transcript reflects, a large minority – drawn along partisan lines- appears to feel that H.R. 984 does not correctly redress the balance between the branches of government. With less than a month until Congress begins to contemplate its holiday recess, whether a balance will be struck by the end of the year still remains uncertain.
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