House Judiciary State Secrets Hearing Open Thread

I’m a little late to the the House Judiciary State Secrets Hearing (committee stream here).

Here are the witnesses:

Hon. Patricia M. Wald
Retired Chief Judge
U.S. Court of Appeals for the District of Columbia
Washington, DC
Hon. Asa Hutchinson
Senior Partner
Asa Hutchinson Law Group
Washington, DC
Andrew Grossman
Senior Partner
The Heritage Foundation
Washington, DC
Ben Wizner
National Security Project Staff Attorney
American Civil Liberties Union
Washington, DC

[Also, though it’s related more generally to the two bills on this than this hearing, Secrecy News just made a recent Congressional Research Service paper on State Secrets available.]

Jerrold Nadler has had his opening statement–the big news in that was that Holder refused to make a witness available for this hearing. Jim Sensenbrenner is up noting that Obama has adopted Bush’s approach on State Secrets.


And if I’m not mistaken, Sensenbrenner accidentally called Hillary VP, not Biden. 

Conyers: The President’s running away from a lot of things, that doesn’t make this different. We’ve been here before, Ladies and Gentlemen. I’m for State Secrets. There are some secrets we’ve got to keep away from citizens and congresspeople and bloggers. But which ones. We didn’t say "abolish state secrets." 

[Man, something has made Conyers cranky.]

Conyers: [Now listing the cases in which Obama has invoked State Secrets.] It is unacceptable that the Department declined to come to this non-secret hearing. 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.

Patricia Wald: Use of privilege to cut off relief. Unnecessary, produces rank injustice. US v Reynolds, ultimately it is a judge who must decide whether privilege applies. There is a consensus it’s time to regularize the privilege. Nothing that I can find in this bill would make govt turn over information. Not much doubt Congress has power to regulate evidentiary rules. In al-Haramain, judge decided that FISA pre-empted state secret’s privilege. Federal judges handle classified information every day. Incoporates proven techniques, good thing to have these techniques recognized in the law. Jeppesen, to me they did a very good thing in distinguishing using State secrets to dismiss as a whole. Court should weigh govt’s testimony in same way as he evaluates expert testimony. The bill does require the judge to actually look at it.

Asa Hutchinson:  Law enforcement background. Any assertion of state secrets should not be immune from checks and balances. A human tendency when that privilege is there to claim that privilege. Courts have proven their ability to manage secrets: FISA, CIPA, FOIA. You could make the case there’s been more loose lips in other branches of government. 

Andrew Grossman: This legislation would severely limit the state secrets privilege. [The Heritage Foundation sent someone whose voice has yet to change to oppose this bill.] No evidence that it is being used more frequently or differently than before. "There’s a bunch of Democrats who love state secrets too!!!" This empowers judges to usurp Congress’ powers. [huh? Well, it’s a novel approach.] "This is about using the Courts to make policy."

Ben Wizner: We’ve seen state secrets mutate into an alternative form of immunity to shield the government from accountability.

Nadler: Do you agree that the courts must grant govt substantial weight? This is one in the SJC bill but not this one.

Wald: Utmost deference, in the colloquy that followed, like exemption FOIA 1, use substantial weight, I believe I also attached to that what I later said, I meant the same kind of weight that any expert witness gets. Only weight appropriate according to expertise. I like the language in this bill. 

Nadler: What are the risks of putting in "substantial deference"?

Wald: Basic principle is that judge should be decision maker, ought to make independent assessment. 

Hutchinson: "Substantial deference" would undermine independent judgment. 

Nadler: You’d trust expertise of courts.

Nadler: Wizner, entire subject state secrets. Govt acknowledged rendition. What are we to make of subject that entire subject matter too secret.

Wizner: Govt approach is opportunistic and maleable. 

[One note about this. Kagro noted today that this hearing is happening on the same day that SJC is marking up their bill on this. It sure seems like Nadler’s pushing back hard against Leahy on this…]

Sensenbrenner: Wald, you said, "substantial weight." Have you changed your mind?

Wald: Deference not in any statute. Different stakes in FOIA and state secrets, if you’re in a civil case where there’s an allegation of injury, stakes are much more important. Judges have interpreted FOIA 1 differently. 

Sensenbrenner: Body of law in current law, repeals does not substitute another standard. Aren’t we likely to get less certainty on what is legitimate claim of suppression of information?

Conyers: Why has Obama blown this off?

Grossman: Obama likes state secrets now.

Conyers: I was afraid you’d answer.

[Someone, I don’t know whom]: Are you just speculating?

Grossman: Yes. Reasonable conclusion can be drawn. 

Conyers: Since you’ve been so expert with President, can you explain AG?

Hutchinson: Appreciate fact that AG is looking within the executive branch, but that raises the profile and necessity of Congress to act. They’re working on their branch of govt, I’m glad Congress is considering it as well.

Conyers: Mr. Frank and I raise unconstitionality more than anyone else?

Wizner: I share Wald’s opinion that Congress has authority to legislate in this area. My understanding that if this were unconstitutional, it’d apply to FISA, CIPA, FOIA. None of those intrude on President’s constitutional authority, and neither would this bill. 

Hutchinson: Impedes President’s ability to protect. Doesn’t stop from exercising state secrets. It just says that when it gets to the courts after the fact, then there’s going to be a process in our system of checks and balances. 

Conyers: if we were in court, Mr. Grossman, you’d be on the short end of this discussion.

Grossman: Time and time again, secrecy in some domains C-i-C powers. [names Nixon] Govt has innate power to control classified information. It is my opinion that this legislation intrudes on this power. 

Nadler: Grossman, you cite these cases where SCOTUS says secret. It has always said that this is not unlimited.

Grossman: No power is absolute. No power is empty either.

Conyers: If we were in Court, Mr. Grossman, I’d ask you to come back to Chambers afterwards but I appreciate your attempts to defend your ideas. 

King: Anything in history where state secrets has made it less safe. What are we trying to fix?

Hutchinson: Regardless of history, we have responsibility that potential for abuse minimized by checks and balances. I come at this as a conservative. I do not believe in an unfettered and unchecked executive branch any more than I believe in an unchecked judiciary branch. That goes against our Founding Fathers.

King: Ever gone into classified hearing and given up blackberry and cell phone and seen similar briefing already come out in news. 

Hutchinson: Executive branch excels in speaking of classified information. Track record with Courts totally different. Track record is extraordinary. 

King: If the President was about to contract with a criminal enterprise to do the census to flip the congress. [Gotta attack ACORN!!!]

Grossman: No, that organization that you describe, do not concern national security.

Nadler: Sure, I’ll reconsider whether ACORN should be investigated if you co-sponsor this bill.

Delahunt: What we have failed to do is look at the process of classification. 

Delahunt: Grossman, why do you think this would be burdensome to review this? How many of these have you been involved in?

Grossman: I’m a researcher.

Delahunt: You ought to speak to some litigators and some judges before you say that.

Franks: Asa’s on the other side of the issue. Even the most sage and wise among conservatives can be a little disoriented. Mr. Chairman, pattern of conversation you had with Grossman. Reserved under themselves the right to use same techniques if they thought were necessary. Obama called Iraq War war of choice, and yet he continues to prosecute that war. Has withdrawal timetable, same as Bush Administration. Gitmo, appears the results will be terrorists in the US or creation of something essentially the same as Gitmo. Surveillance have been left in place. I even heard the President say we cannot sustain this deficit spending. Invoked State Secrets three court cases. "Makes it hard to distinguish from its predecessor." All the elements of hyprocrisy. I’m thankful that Mr. Obama has had some epiphanies. 

Grossman: Not a partisan matter. There has been no disagreement. 

[Hey, you think those who have unlimited power like to keep that unlimited power?]

Nadler: Purpose of hearing is to find out what’s right, not who’s right. 

25 replies
  1. Citizen92 says:

    Andrew Grossman. Legal policy expert, but the kid’s not even a lawyer. Only a Penn Grad (Master’s in Gov’t) from ‘07. Typical Heritage.

  2. Mary says:

    Who is the witness Holder isn’t making available? Kris maybe?

    It sure seems not having Johnsen at OLC yet is working out really well for Obama in his quest to be mini-Bush. Be nice if he could follow his own directives from his Cairo speech and start saying things out loud (about illegal wiretapping and torture and war crimes and pictures that prove he and Bush have let murders and rapists go without prosecution and …) that everyone is discussing in private and, oh yeah, in “secret” memos.

    Odd panel – I’m not sure I understand what a panel approach of “balanced” he said/she saids is going to get to on this, but here’s hoping something happens.

    And here’s hoping they address the issue of Executive branch crime and invocations of state secrets to cover it up.

  3. hackworth1 says:

    ‘Tex Sensenbrenner’s been keeping a low profile lately. Good to see he’s not attemting to paper over anything.

  4. Mauimom says:

    Marcy, thank you so much for this.

    I’m off to donate [for the third time] to your efforts.

  5. Mauimom says:

    [The Heritage Foundation sent someone whose voice has yet to change to oppose this bill.]

    What, Brad Schlossman wasn’t available??

  6. freepatriot says:

    I’m for State Secrets. There are some secrets we’ve got to keep away from citizens and congresspeople and bloggers. But which ones. We didn’t say “abolish state secrets.”

    [Man, something has made Conyers cranky.]

    ain’t you like, one of his constituents, or sumtin ???

    I think he’s on to ya, ew

    the guy probably looked at a summary of your blog for the past week or so, an said “Holy Shit, and this was in the public domain ???”

    a staffer musta clued him in

    an did ya notice that he used the word “bloggers” where he shoulda said the word “journalists” or “reporters ???

    ain’t that Freudian or sumtin ???

    I’m thinkin yer past the “ignore you” and the “ridicule you” part of this thingy (that’s Ghandian, right ???)

    they’re fightin ya there

    that’s a good sign


  7. Mary says:

    I still think they need to flat out ask the questions –

    What prevents Exec from committing crimes and invoking state secrets to cover them up, esp when Exec branch controls DOJ and DOJ has had a history of being less than forthright with Congress and Courts?

    Courts, and juries, – not Exec – interpret law so how do you get around Exec doing something that Courts and juries might find to be criminal, but Exec branch gets a Gonzales or Bybee memo internally that says it isn’t, the Exec branch invokes states secrets to cover up the criminal activity?

    Is defending Exec Branch members and ex-members from criminal and civil penalty prosecution – putting them above the law – a valid national security interest if their activities were international in scope and/or we are a nation at war?

    Can the Exec branch violate the Bill of Rights and invoke state secrets in citizens suits, where the AG acts as President’s counsel and refuses to pursue criminal complaints?

  8. klynn says:

    Would like to hear historical dialogue about case law regarding states secrets.

    Like Mary wrote irt Reynolds the other day:

    Mary wrote:

    The case as a case stands for what it stands for, so a District Court in particular would have a hard time saying that its holdings can be ignored. But this is why facts are so important (the issue I kept raising with the OLC opinions prior to the releases of the Bybee Torture II and the Bradbury memos – reliance opinions have to have facts) to case law. Certainly, what the facts have demonstrated is that the Executive branch lied to the Judicial branch. The highest level of gov officers swore out false affidavits, they bore false witness. So I do think that the court might be justified, based on the factual components that have since been revealed, in asking for more from the Exec.

    In particular, though, I’d love sit through some oral argument on State’s secrets were DOJ gets asked about Reynold’s – do you still stand by it as a state secret? If so, why? If that is your version of a “state secret” at DOJ, is that reasonable and if you are not reasonable should you receive any deference at all? If you concede now that it was not a state secret and that the Executive branch lied to the Judicial branch – how many bites of that apple should the Exec get?

  9. kurish says:

    Anybody have a link to the video? The stream in the OP doesn’t work for me–presumably it’s a live-only stream? Can’t find it on CSPAN, either… Thanks!

  10. bmaz says:

    The Heritage Foundation sent someone whose voice has yet to change to oppose this bill.

    Heh, I was expecting Alvin & The Chipmunks Schnauzie Schlozman!

    This empowers judges to usurp Congress’ powers.

    Fucking brilliant argument. Jeebus.

  11. bmaz says:

    Oops, I see Mauimom beat me to the Schlozman crack. It really would have been nice to see questions as Mary suggested on use to conceal criminal and quasi-criminal activity.

    Man, testy ole Conyers sure doesn’t like kids on his lawn.

  12. Mary says:

    There haven’t been any ”a man’s home is his castle” moments in the hearings. I do think Nadler is one of the good guys though and I think he’d like to find a way from A to Z.

    Maybe Nadler can convince Cairo Obama to sit down with US Obama and convince US Obama to act on Cairo Obama’s call for honesty.

    I guess I’ll have to wait for the LOLcat summary on howt hat one turns out.

  13. Aeon says:

    Steve Aftergood has obtained a copy of a new Congressional Research Service paper (exclusively for members and staffers of Congress) on the state secrets privilege.

    “The State Secrets Privilege and Other Limits on Litigation Involving Classified Information” (23-page pdf), May 28, 2009.

    The discussion of Reynolds omits the fact that the invocation of the privilege in the landmark case was to cover up Air Force negligence — not to protect any valid state secrets. Our congresspeople probably should have gotten this information from their research arm, alas.

    The summaries of the two upcoming bills H.R. 984 and S. 417 are useful though.

    United States v. Reynolds: The Seminal Case…………………………………………………………………….2
    Asserting the Privilege …………………………………………………………………………………………….2
    Evaluating the Validity of the Privilege ………………………………………………………………………3
    The Effect of a Valid Privilege…………………………………………………………………………………..3
    Totten v. United States: The Special Case of Nonjusticiable Contracts for Espionage ……………….5
    The Classified Information Procedures Act and Secret Evidence in Criminal Litigation……………6
    Withholding Classified Information During Discovery ………………………………………………….7
    The Confrontation Clause and the Use of Secret Evidence At Trial………………………………….9
    Legislative Modification of the State Secrets Privilege ……………………………………………………..10
    The Foreign Intelligence Surveillance Act …………………………………………………………………10
    The State Secrets Protection Act………………………………………………………………………………12


    Appendix A. Section-by-Section Summary of the Classified Information Procedures Act,
    18 U.S.C. App. 3……………………………………………………………………………………………………..14

    Appendix B. Section-by-Section Summary of H.R. 984…………………………………………………….16

    Appendix C. Section-by-Section Summary of S. 417………………………………………………………..18


    Steve Aftergood has also posted the Justice Department’s FY 2010 budget request for OLC.(20-page pdf)

    Some interesting stuff there. Including the requested budget for next year [$7,665,000], the total number of employees [37, of which 25 are lawyers], and a general profile of current operations.

  14. skdadl says:

    Darn. I missed Nadler and Delahunt. They have both been terriers for Arar, so I’m a fan. Plus I love the accents. (Forgive me, but I’m a Canuck, and we don’t have accents here. You guys are so interesting that way.)

    I’m kind of sorry I missed the Schlozman clone too, although for different reasons. Maybe there’s an archive.

    • fatster says:

      Hello! You’ve been missed.

      A clip of Obama’s Cairo speech over at tpm shows he started out defining as his “first duty as President to protect the American people” (see 1:12).

      They’ve ducked behind that one so frequently. And they need tools like expanded “states secrets” to do it, too.

      But what about our Constitution? Sigh.

      • freepatriot says:

        But what about our Constitution? Sigh

        looks like we gotta bend the message to include “Defending And Protecting The Constitution”

        • fatster says:

          They’ve bent the message, Freep. They’re making protecting us their number one priority (or diversion, thanks to 9/11 9/11 9/11). But they took an oath of office that sez the Constitution is their number one priority. I want this back to the straight skinny. Gimme back my Constitution and protect it. Dammit! (Thnx for allowing me to vent.)

  15. MadDog says:

    Not totally OT, EFF, under the Jewel v. NSA case, filed a couple of things yesterday with Judge Walker. Per EFF:

    Plaintiffs’ opposition to government’s motion to dismiss (29 page PDF)

    EFF’s Legal Director, Cindy Cohn’s Declaration (6 page PDF)

    In Cindy Cohn’s Declaration, I found these interesting “discovery” requests:

    9. For instance, the Summary of Voluminous Evidence references the unclassified nature of 17 paragraphs of notes of then White House Counsel Alberto Gonzales’ March 10, 2004 meeting with certain members of Congress known as the “Gang of Eight.” The notes discuss legal concerns about the program. As the Inspector General of the Department of Justice reported: “The NSA officials determined that 3 of 21 paragraphs in the notes contains SCI information about the NSA surveillance program [and] 1 paragraph contains SCI information about signals intelligence”…

    …Those notes themselves are evidence, or at a minimum are likely to lead to the discovery of admissible evidence, about the scope and legal justification for some portion of the alleged surveillance.

    10. Similarly, testimony regarding issues discussed at the March 10, 2004 meeting in Attorney General Ashcroft’s hospital room is not classified, since non-cleared personnel were present…

    …Again, those issues are either directly relevant to surveillance alleged in this case or are likely to lead to the discovery of admissible evidence about the facts of the surveillance that led to legal concerns about it at the Department of Justice…

    There’s more of course, but I thought I’d leave at least a little bit of room here for other comments. *g*

  16. freepatriot says:

    these stupid fuckers JUST LOVE jumping on the LANDMINES

    GOP reveals (classified) briefing info

    sounds like some repuglitarded congresscritters can’t wait to violate national security laws and amit they had knowledge of Crimes Against Humanity

    is there a pile of dogshit that the repuglitarded won’t happily smear on their faces ???

    • behindthefall says:

      Just as troubling — I’ve just seen daylight and am not thinking yet — is that actually their judo ain’t bad, and why do I think that the Ds didn’t see this coming? If you’re an R, this is probably about your best way to hog and spin the “news cycle” for a few days.

  17. timbo says:

    My guess? They’ll pass some laws that almost completely exempt judges from liability if they don’t enforce those laws. That seems to be the MO for the gangsters running the law making apparatus these days. They put a pretty face on their illegal and immoral behavior but avoid any accountability for those who make decisions about enforcement of the laws. It’s a pattern that’s been growing in recent years.

    Thought I’d mention that in case anyone hadn’t noticed.

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