U.S. GOVERNMENT PRINTING OFFICE50-070 PDF WASHINGTON : 2009For sale by the Superintendent of Documents, U.S. Government PrintingOffice Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP,Washington, DC 20402-0001COMMITTEE ON THE JUDICIARYJOHN CONYERS, Jr., Michigan, ChairmanHOWARD L. BERMAN, California LAMAR SMITH, TexasRICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,JERROLD NADLER, New YorkWisconsinROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North CarolinaMELVIN L. WATT, North Carolina ELTON GALLEGLY, CaliforniaZOE LOFGREN, California BOB GOODLATTE, VirginiaSHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, CaliforniaMAXINE WATERS, California DARRELL E. ISSA, CaliforniaWILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, VirginiaROBERT WEXLER, Florida STEVE KING, IowaSTEVE COHEN, Tennessee TRENT FRANKS, ArizonaHENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, TexasGeorgia JIM JORDAN, OhioPEDRO PIERLUISI, Puerto Rico TED POE, TexasMIKE QUIGLEY, Illinois JASON CHAFFETZ, UtahLUIS V. GUTIERREZ, Illinois TOM ROONEY, FloridaBRAD SHERMAN, California GREGG HARPER, MississippiTAMMY BALDWIN, WisconsinCHARLES A. GONZALEZ, TexasANTHONYD. WEINER, New YorkADAM B. SCHIFF, CaliforniaLINDA T. SANCHEZ, CaliforniaDEBBIE WASSERMAN SCHULTZ, FloridaDANIEL MAFFEI, New YorkPerry Apelbaum, Majority Staff Director and Chief CounselSean McLaughlin, Minority Chief of Staff and General Counsel------Subcommittee on the Constitution, Civil Rights, and Civil LibertiesJERROLD NADLER, New York, ChairmanMELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,ROBERT C. ``BOBBY'' SCOTT, Virginia WisconsinWILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, FloridaHENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, IowaGeorgia TRENT FRANKS, ArizonaTAMMY BALDWIN, Wisconsin LOUIE GOHMERT, TexasJOHN CONYERS, Jr., Michigan JIM JORDAN, OhioSTEVE COHEN, TennesseeBRADSHERMAN,CaliforniaSHEILA JACKSON LEE, TexasDavid Lachmann, Chief of StaffPaul B. Taylor, Minority CounselC O N T E N T S----------JUNE 4, 2009PageTHE BILLH.R. 984, the ``State Secret Protection Act of 2009.............. 4OPENING STATEMENTSThe Honorable Jerrold Nadler, a Representative in Congress fromthe State of New York, and Chairman, Subcommittee on theConstitution, Civil Rights, and Civil Liberties................ 1The Honorable F. James Sensenbrenner, Jr., a Representative inCongress from the State of Wisconsin,and RankingMember,Subcommittee on the Constitution, Civil Rights, and CivilLiberties...................................................... 17The Honorable John Conyers, Jr., a Representative in Congressfrom the State of Michigan, Chairman, Committee on theJudiciary, and Member, Subcommittee on the Constitution, CivilRights, and Civil Liberties.................................... 18WITNESSESThe Honorable Patricia M. Wald, retired Chief Judge, U.S. CourtoF Appeals for the District of ColumbiaOral Testimony................................................. 21Prepared Statement............................................. 24The Honorable Asa Hutchinson, Senior Partner, Hutchinson LawGroupOral Testimony................................................. 29PreparedStatement............................................. 31Mr.Andrew Grossman, Senior Legal Policy Analyst, The HeritageFoundationOral Testimony................................................. 55Prepared Statement............................................. 57Mr. Ben Wizner, National Security Project Staff Attorney,American Civil Liberties UnionOral Testimony................................................. 83Prepared Statement............................................. 85APPENDIXMaterial Submitted for the Hearing Record........................ 111STATE SECRET PROTECTION ACT OF 2009----------THURSDAY, JUNE 4, 2009House of Representatives,Subcommittee on theConstitution,Civil Rights, and Civil Liberties,Committee on the Judiciary,Washington, DC.The Subcommittee met, pursuant to notice, at 2:09 p.m., inroom 2141, Rayburn House Office Building, the Honorable JerroldNadler (Chairman of the Subcommittee) presiding.Present: Representatives Nadler, Conyers, Delahunt,Johnson, Sensenbrenner, Franks, and King.Staff Present: Heather Sawyer, Majority Counsel; and PaulTaylor, Minority Counsel.Mr. Nadler. This hearing of the Subcommittee on theConstitution, Civil Rights, and Civil Liberties will come toorder.Today's hearing will examine the state secrets privilege.The Chair recognizes himself for 5 minutes for an openingstatement.Today, the Subcommittee examines legislation that I haveintroduced, alongwith the distinguished Chairman of the fullCommittee, with Representative TomPetri, and with severalother Members of the Committee, that would codify uniformstandards for dealing with claims of the state secretsprivilege by the government in civil litigation.In the last Congress, we had an oversight hearing on thestate secrets privilege and a hearing on this legislation. Thebill was reported favorably to the full Committee.Our experience has demonstrated the destructive impact thatsweeping claims of privilege and secrecy can have on ourNation. In order for the rule of law to have any meaning,individual liberties and rights must be enforceable in ourcourts. Separation-of-powers concerns are at their highest withregard to secret executive branch conduct, and the governmentsimply cannot be allowed to hide behind unexamined claims ofsecrecy and become the final arbiter ofits own conduct.Yet, claims of secrecy have been used to conceal mattersfrom Congress even though Members have the security clearancenecessary to be briefed in an appropriately secure setting.That has been the case with respect to the use of torture, withthe use of illegal spying on Americans, and other matters oftremendous national importance.And let me add here that this issue is perhaps the mostimportant issue, in my judgment, this Committee will face,because this Committee is charged with enforcing civil rightsand civil liberties under our Constitution. And there is anancient maxim of law that says there is no right without aremedy. And if the government violates your rights, if itkidnaps you, it tortures you, it deliberately burns down yourhouse, it wiretaps you without a warrant, whatever, how do youenforce your right against the government?Well, theAdministration could criminally prosecute its ownmembers who have done so; that isunlikely. Congress couldexercise oversight; that is hit or miss. Or the victim can suein tort, he can sue the government for illegal wiretapping, forkidnapping, for intentional infliction of mental distress, forassault, whatever.But if the government can eliminate that lawsuit on thepleadings simply by coming into court and using the magicincantation of the words ``state secrets,'' and say, ``Thiscase should be dismissed because we say, in our unexaminedassertion, that trying the case would necessitate therevelation of state secrets, case dismissed,'' then there is norecourse to the courts and there is no enforcement of rights.And rights without a remedy are illusory and we have no rights.Therefore, we must put some limits on this use of the statesecret doctrine.The same pattern ofresorting to extravagant state secretsclaims has been evident in the courts. While theBushadministration did not invent the use of the state secretsprivilege to conceal wrongdoing, it certainly perfected theart. The state secrets privilege has been abused by priorAdministrations to protect officials who have behaved illegallyor improperly or simply in an embarrassing manner, rather thanto protect the safety and security of the Nation.The landmark case in the field, U.S. v. Reynolds, is aperfect case in point. The widows of three civilian engineerssued the government for negligence stemming from a fatal aircrash. The government refused to produce the accident report,even refusing to provide it to the court to review, claiming itwould reveal sensitive state secrets that would endangernational security. The Supreme Court concurred without everlooking behind the government'sunsupported assertion thatnational security was involved.Half a century later, thereport was found, nowdeclassified, online by the daughter of one of the engineers,and it clearly revealed no state secrets. It clearly could havebeen made available in a form that would have enabled thosefamilies to vindicate their rights in court. It did, however,reveal that the crash was caused by government negligence,which I suspect was the real reason for the invocation, or theinvention in that case, of the state secrets doctrine.Protecting the government from embarrassment and civilliability, not protecting national security, was the realreason for withholding the accident report. Yet these familieswere denied justice because the Supreme Court never lookedbehind the government's false claim to determine whether it wasvalid.Similarly, in the Pentagon Papers case,then-SolicitorGeneral Erwin Griswold warned the Supreme Court thatpublication of the information wouldpose a grave and immediatedanger to national security. Eighteen years later, heacknowledged that he had never seen, quote, ``any trace of athreat to the national security,'' unquote, from thepublication of the information and further admitted that,quote, ``The principle concern is not with national securitybut rather with government embarrassment of one sort oranother,'' close quote.It is important to protect national security, and sometimesour courts have to balance the need for individual justice withnational security considerations. Congress has in the pastbalanced these important, albeit sometimes competing, demands.In the criminal context, we enacted the Classified InformationsProcedure Act. In FISA, we set up procedures for the courts toexamine sensitivematerials. Through the Freedom of InformationAct, we sought to limit any withholding of information from thepublic whom the government is supposed to serve.We can and should do the same in civil cases. Our system ofgovernment and our legal system have never relied on takingassurances at face value. The courts and the Congress have aduty to look behind what this Administration or anyAdministration says to determine whether or not thoseassurances are well-founded.Presidents and other government officials have been knownnot to tell the truth on occasion, especially when it is intheir interest to conceal something. The founders of thisNation knew that there needed to be checks in each branch ofthe government to prevent such abuses from taking the place.Or, in the words of the Ninth Circuit in the recent Jeppesendecision, ``The executive cannot be its own judge.'' To allowthat--and these are now my words--to allow that is to abandonall the protections against tyranny that ourFounding Fathersestablished.Courts have a duty to protect national security secrets,but they also have a duty to make an independent judgment as towhether state secrets claims have any merit. When thegovernment itself is a party, the court cannot allow it tobecome the final arbiter of its own case. The purpose of thislegislation is to ensure that the correct balance is struck.I would just add that I am extremely disappointed that theDepartment of Justice has declined to provide a witness todiscuss this very important issue at this hearing. I have metwith the Attorney General, and I understand that a review ofthis policy is currently under way. Nonetheless, the Departmentcontinues to go into court while this review is under way andtake positions that areremarkably similar to positions takenby the last Administration.While I greatly appreciate the Attorney General'swillingness to work with us, I believe that it should bepossible to send someone to provide us with theAdministration's views and to answer our questions to theextent that they are able. I hope this is not a sign of thingsto come.I look forward to the testimony of our witnesses.I would now recognize the distinguished Ranking minorityMember, the gentleman from Wisconsin, Mr. Sensenbrenner, forhis opening statement.[The bill, H.R. 984, follows:][GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]Mr. Sensenbrenner. Thank you, Mr. Chairman.The state secrets privilege is a longstanding legaldoctrine the Supreme Court most recently described in a casecalled U.S. v. Reynolds. In that case, the court made it clearthat if the court,after giving appropriate deference to theexecutive branch, determines that public disclosure ofinformation would harmnational security, the court is obligedto either dismiss the case or limit the public disclosure ofnational security information as necessary.Under this doctrine, people with legitimate claims are notdenied access to court review. Rather, the doctrine allowsjudges to personally review any sensitive information. Whilethis doctrine may occasionally disadvantage someone suing incourt, it is vital to protecting the safety of all Americans.The roots of the state secrets privilege extend all the wayback to Chief Justice Marshall, the author of Marbury v.Madison, who held that the government need not provide anyinformation that would endanger public safety.In the modern era, Congress debated the issue of the statesecrets privilege under Federal law in the1970's butultimately chose to maintain the status quo, including elementsof the privilege put in place by the Supreme Courtin itsReynolds decision. The Fourth Circuit Court of Appeals recentlyemployed the doctrine in affirming the dismissal of the case,including that the state secrets privilege has a firmfoundation in the Constitution.Not surprisingly, the privilege has played a significantrole in the Justice Department's response to civil litigationarising out of our counterterrorism efforts following 9/11.The state secrets doctrine remains strongly supported bytoday's Supreme Court. Even in its Boumediene decision grantinghabeas litigation rights to terrorists, Justice Kennedy, in hismajority opinion, acknowledged the government's legitimateinterest in protecting sources and methods of intelligencegathering and stated, ``We expect the district court will useitsdiscretion to accommodate this interest to the greatestextent possible,'' while citing the Reynolds state secrets caseImentioned earlier in doing so.I oppose any efforts, including this bill, that invite thecourts to deviate from the sound procedures they currentlyfollow to protect vital national security information. H.R. 984would preclude judges from giving weight to the executivebranch's assessment of national security. And it wouldauthorize courts not to use ex parte proceedings in conductinga review of privileged claims. And it would prevent courts frombeing able to dismiss a case when the government cannot defenditself without using privileged information.The Obama administration is clearly not enamored with theapproach of this legislation and has adhered in court to thedoctrine as asserted by the previous Administration in at leastthree cases already. Accordingto The Washington Post editorialpage, the Obama administration's position on state secretsmakes it hard to distinguish fromits predecessor. AnthonyRomero, the executive director of the ACLU, has written thatthe new Administration has embraced policies held over from theBush era, including the use of the state secrets claim.Last Congress, legislation essentially the same as H.R. 984was cosponsored in the Senate by Senators Joe Biden and HillaryClinton, who are now President Obama's Vice President andSecretary of State. But this year, President Obama, VicePresident Biden, and Secretary of State Clinton have gonesilent on the bill. When asked about it recently, the VicePresident's communications director said, quote, ``No commenton this one here.''http://mcvictimsworld.ning.com/profiles/blogs/abc-news-1979-special-missionABC News 1979 Special: Mission Mind Control (29 mins)- Coffee and water poison in USA also chemtrail sprays and tainted food, over the counter drugs, prescription drugs.ABC News 1979 Special: Mission Mind Control (29 mins)
U.S. GOVERNMENT PRINTING OFFICE50-070 PDF WASHINGTON : 2009For sale by the Superintendent of Documents, U.S. Government PrintingOffice Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP,Washington, DC 20402-0001COMMITTEE ON THE JUDICIARYJOHN CONYERS, Jr., Michigan, ChairmanHOWARD L. BERMAN, California LAMAR SMITH, TexasRICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,JERROLD NADLER, New YorkWisconsinROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North CarolinaMELVIN L. WATT, North Carolina ELTON GALLEGLY, CaliforniaZOE LOFGREN, California BOB GOODLATTE, VirginiaSHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, CaliforniaMAXINE WATERS, California DARRELL E. ISSA, CaliforniaWILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, VirginiaROBERT WEXLER, Florida STEVE KING, IowaSTEVE COHEN, Tennessee TRENT FRANKS, ArizonaHENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, TexasGeorgia JIM JORDAN, OhioPEDRO PIERLUISI, Puerto Rico TED POE, TexasMIKE QUIGLEY, Illinois JASON CHAFFETZ, UtahLUIS V. GUTIERREZ, Illinois TOM ROONEY, FloridaBRAD SHERMAN, California GREGG HARPER, MississippiTAMMY BALDWIN, WisconsinCHARLES A. GONZALEZ, TexasANTHONYD. WEINER, New YorkADAM B. SCHIFF, CaliforniaLINDA T. SANCHEZ, CaliforniaDEBBIE WASSERMAN SCHULTZ, FloridaDANIEL MAFFEI, New YorkPerry Apelbaum, Majority Staff Director and Chief CounselSean McLaughlin, Minority Chief of Staff and General Counsel------Subcommittee on the Constitution, Civil Rights, and Civil LibertiesJERROLD NADLER, New York, ChairmanMELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,ROBERT C. ``BOBBY'' SCOTT, Virginia WisconsinWILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, FloridaHENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, IowaGeorgia TRENT FRANKS, ArizonaTAMMY BALDWIN, Wisconsin LOUIE GOHMERT, TexasJOHN CONYERS, Jr., Michigan JIM JORDAN, OhioSTEVE COHEN, TennesseeBRADSHERMAN,CaliforniaSHEILA JACKSON LEE, TexasDavid Lachmann, Chief of StaffPaul B. Taylor, Minority CounselC O N T E N T S----------JUNE 4, 2009PageTHE BILLH.R. 984, the ``State Secret Protection Act of 2009.............. 4OPENING STATEMENTSThe Honorable Jerrold Nadler, a Representative in Congress fromthe State of New York, and Chairman, Subcommittee on theConstitution, Civil Rights, and Civil Liberties................ 1The Honorable F. James Sensenbrenner, Jr., a Representative inCongress from the State of Wisconsin,and RankingMember,Subcommittee on the Constitution, Civil Rights, and CivilLiberties...................................................... 17The Honorable John Conyers, Jr., a Representative in Congressfrom the State of Michigan, Chairman, Committee on theJudiciary, and Member, Subcommittee on the Constitution, CivilRights, and Civil Liberties.................................... 18WITNESSESThe Honorable Patricia M. Wald, retired Chief Judge, U.S. CourtoF Appeals for the District of ColumbiaOral Testimony................................................. 21Prepared Statement............................................. 24The Honorable Asa Hutchinson, Senior Partner, Hutchinson LawGroupOral Testimony................................................. 29PreparedStatement............................................. 31Mr.Andrew Grossman, Senior Legal Policy Analyst, The HeritageFoundationOral Testimony................................................. 55Prepared Statement............................................. 57Mr. Ben Wizner, National Security Project Staff Attorney,American Civil Liberties UnionOral Testimony................................................. 83Prepared Statement............................................. 85APPENDIXMaterial Submitted for the Hearing Record........................ 111STATE SECRET PROTECTION ACT OF 2009----------THURSDAY, JUNE 4, 2009House of Representatives,Subcommittee on theConstitution,Civil Rights, and Civil Liberties,Committee on the Judiciary,Washington, DC.The Subcommittee met, pursuant to notice, at 2:09 p.m., inroom 2141, Rayburn House Office Building, the Honorable JerroldNadler (Chairman of the Subcommittee) presiding.Present: Representatives Nadler, Conyers, Delahunt,Johnson, Sensenbrenner, Franks, and King.Staff Present: Heather Sawyer, Majority Counsel; and PaulTaylor, Minority Counsel.Mr. Nadler. This hearing of the Subcommittee on theConstitution, Civil Rights, and Civil Liberties will come toorder.Today's hearing will examine the state secrets privilege.The Chair recognizes himself for 5 minutes for an openingstatement.Today, the Subcommittee examines legislation that I haveintroduced, alongwith the distinguished Chairman of the fullCommittee, with Representative TomPetri, and with severalother Members of the Committee, that would codify uniformstandards for dealing with claims of the state secretsprivilege by the government in civil litigation.In the last Congress, we had an oversight hearing on thestate secrets privilege and a hearing on this legislation. Thebill was reported favorably to the full Committee.Our experience has demonstrated the destructive impact thatsweeping claims of privilege and secrecy can have on ourNation. In order for the rule of law to have any meaning,individual liberties and rights must be enforceable in ourcourts. Separation-of-powers concerns are at their highest withregard to secret executive branch conduct, and the governmentsimply cannot be allowed to hide behind unexamined claims ofsecrecy and become the final arbiter ofits own conduct.Yet, claims of secrecy have been used to conceal mattersfrom Congress even though Members have the security clearancenecessary to be briefed in an appropriately secure setting.That has been the case with respect to the use of torture, withthe use of illegal spying on Americans, and other matters oftremendous national importance.And let me add here that this issue is perhaps the mostimportant issue, in my judgment, this Committee will face,because this Committee is charged with enforcing civil rightsand civil liberties under our Constitution. And there is anancient maxim of law that says there is no right without aremedy. And if the government violates your rights, if itkidnaps you, it tortures you, it deliberately burns down yourhouse, it wiretaps you without a warrant, whatever, how do youenforce your right against the government?Well, theAdministration could criminally prosecute its ownmembers who have done so; that isunlikely. Congress couldexercise oversight; that is hit or miss. Or the victim can suein tort, he can sue the government for illegal wiretapping, forkidnapping, for intentional infliction of mental distress, forassault, whatever.But if the government can eliminate that lawsuit on thepleadings simply by coming into court and using the magicincantation of the words ``state secrets,'' and say, ``Thiscase should be dismissed because we say, in our unexaminedassertion, that trying the case would necessitate therevelation of state secrets, case dismissed,'' then there is norecourse to the courts and there is no enforcement of rights.And rights without a remedy are illusory and we have no rights.Therefore, we must put some limits on this use of the statesecret doctrine.The same pattern ofresorting to extravagant state secretsclaims has been evident in the courts. While theBushadministration did not invent the use of the state secretsprivilege to conceal wrongdoing, it certainly perfected theart. The state secrets privilege has been abused by priorAdministrations to protect officials who have behaved illegallyor improperly or simply in an embarrassing manner, rather thanto protect the safety and security of the Nation.The landmark case in the field, U.S. v. Reynolds, is aperfect case in point. The widows of three civilian engineerssued the government for negligence stemming from a fatal aircrash. The government refused to produce the accident report,even refusing to provide it to the court to review, claiming itwould reveal sensitive state secrets that would endangernational security. The Supreme Court concurred without everlooking behind the government'sunsupported assertion thatnational security was involved.Half a century later, thereport was found, nowdeclassified, online by the daughter of one of the engineers,and it clearly revealed no state secrets. It clearly could havebeen made available in a form that would have enabled thosefamilies to vindicate their rights in court. It did, however,reveal that the crash was caused by government negligence,which I suspect was the real reason for the invocation, or theinvention in that case, of the state secrets doctrine.Protecting the government from embarrassment and civilliability, not protecting national security, was the realreason for withholding the accident report. Yet these familieswere denied justice because the Supreme Court never lookedbehind the government's false claim to determine whether it wasvalid.Similarly, in the Pentagon Papers case,then-SolicitorGeneral Erwin Griswold warned the Supreme Court thatpublication of the information wouldpose a grave and immediatedanger to national security. Eighteen years later, heacknowledged that he had never seen, quote, ``any trace of athreat to the national security,'' unquote, from thepublication of the information and further admitted that,quote, ``The principle concern is not with national securitybut rather with government embarrassment of one sort oranother,'' close quote.It is important to protect national security, and sometimesour courts have to balance the need for individual justice withnational security considerations. Congress has in the pastbalanced these important, albeit sometimes competing, demands.In the criminal context, we enacted the Classified InformationsProcedure Act. In FISA, we set up procedures for the courts toexamine sensitivematerials. Through the Freedom of InformationAct, we sought to limit any withholding of information from thepublic whom the government is supposed to serve.We can and should do the same in civil cases. Our system ofgovernment and our legal system have never relied on takingassurances at face value. The courts and the Congress have aduty to look behind what this Administration or anyAdministration says to determine whether or not thoseassurances are well-founded.Presidents and other government officials have been knownnot to tell the truth on occasion, especially when it is intheir interest to conceal something. The founders of thisNation knew that there needed to be checks in each branch ofthe government to prevent such abuses from taking the place.Or, in the words of the Ninth Circuit in the recent Jeppesendecision, ``The executive cannot be its own judge.'' To allowthat--and these are now my words--to allow that is to abandonall the protections against tyranny that ourFounding Fathersestablished.Courts have a duty to protect national security secrets,but they also have a duty to make an independent judgment as towhether state secrets claims have any merit. When thegovernment itself is a party, the court cannot allow it tobecome the final arbiter of its own case. The purpose of thislegislation is to ensure that the correct balance is struck.I would just add that I am extremely disappointed that theDepartment of Justice has declined to provide a witness todiscuss this very important issue at this hearing. I have metwith the Attorney General, and I understand that a review ofthis policy is currently under way. Nonetheless, the Departmentcontinues to go into court while this review is under way andtake positions that areremarkably similar to positions takenby the last Administration.While I greatly appreciate the Attorney General'swillingness to work with us, I believe that it should bepossible to send someone to provide us with theAdministration's views and to answer our questions to theextent that they are able. I hope this is not a sign of thingsto come.I look forward to the testimony of our witnesses.I would now recognize the distinguished Ranking minorityMember, the gentleman from Wisconsin, Mr. Sensenbrenner, forhis opening statement.[The bill, H.R. 984, follows:][GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]Mr. Sensenbrenner. Thank you, Mr. Chairman.The state secrets privilege is a longstanding legaldoctrine the Supreme Court most recently described in a casecalled U.S. v. Reynolds. In that case, the court made it clearthat if the court,after giving appropriate deference to theexecutive branch, determines that public disclosure ofinformation would harmnational security, the court is obligedto either dismiss the case or limit the public disclosure ofnational security information as necessary.Under this doctrine, people with legitimate claims are notdenied access to court review. Rather, the doctrine allowsjudges to personally review any sensitive information. Whilethis doctrine may occasionally disadvantage someone suing incourt, it is vital to protecting the safety of all Americans.The roots of the state secrets privilege extend all the wayback to Chief Justice Marshall, the author of Marbury v.Madison, who held that the government need not provide anyinformation that would endanger public safety.In the modern era, Congress debated the issue of the statesecrets privilege under Federal law in the1970's butultimately chose to maintain the status quo, including elementsof the privilege put in place by the Supreme Courtin itsReynolds decision. The Fourth Circuit Court of Appeals recentlyemployed the doctrine in affirming the dismissal of the case,including that the state secrets privilege has a firmfoundation in the Constitution.Not surprisingly, the privilege has played a significantrole in the Justice Department's response to civil litigationarising out of our counterterrorism efforts following 9/11.The state secrets doctrine remains strongly supported bytoday's Supreme Court. Even in its Boumediene decision grantinghabeas litigation rights to terrorists, Justice Kennedy, in hismajority opinion, acknowledged the government's legitimateinterest in protecting sources and methods of intelligencegathering and stated, ``We expect the district court will useitsdiscretion to accommodate this interest to the greatestextent possible,'' while citing the Reynolds state secrets caseImentioned earlier in doing so.I oppose any efforts, including this bill, that invite thecourts to deviate from the sound procedures they currentlyfollow to protect vital national security information. H.R. 984would preclude judges from giving weight to the executivebranch's assessment of national security. And it wouldauthorize courts not to use ex parte proceedings in conductinga review of privileged claims. And it would prevent courts frombeing able to dismiss a case when the government cannot defenditself without using privileged information.The Obama administration is clearly not enamored with theapproach of this legislation and has adhered in court to thedoctrine as asserted by the previous Administration in at leastthree cases already. Accordingto The Washington Post editorialpage, the Obama administration's position on state secretsmakes it hard to distinguish fromits predecessor. AnthonyRomero, the executive director of the ACLU, has written thatthe new Administration has embraced policies held over from theBush era, including the use of the state secrets claim.Last Congress, legislation essentially the same as H.R. 984was cosponsored in the Senate by Senators Joe Biden and HillaryClinton, who are now President Obama's Vice President andSecretary of State. But this year, President Obama, VicePresident Biden, and Secretary of State Clinton have gonesilent on the bill. When asked about it recently, the VicePresident's communications director said, quote, ``No commenton this one here.''http://mcvictimsworld.ning.com/profiles/blogs/abc-news-1979-special-missionABC News 1979 Special: Mission Mind Control (29 mins)- Coffee and water poison in USA also chemtrail sprays and tainted food, over the counter drugs, prescription drugs.ABC News 1979 Special: Mission Mind Control (29 mins)
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