Judiciary Hearing on State Secrets Legislation

Today, the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on the State Secret Protection Act of 2009 (HR 984). The bi-partisan legislation would ensure meaningful judicial determination of the state secrets privilege--curbing abuse of the privilege while providing protection for valid state secrets. Rep. Jerrold Nadler, Chair of the Judiciary Subcommittee, explained this "bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases. The right to have one's day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy."

Read prepared witness testimony:

Patricia M. Wald, Retired Chief Judge, U.S. Court of Appeals for the District of Columbia

Hon. Asa Hutchinson, Senior Partner, Asa Hutchinson Law Group

Andrew Grossman, Senior Partner, The Heritage Foundation

Ben Wizner, National Security Project Staff Attorney, American Civil Liberties Union

Subcommittee Chairman Jerrold Nadler (D-NY) opens the hearing:

Rep. Nadler: "In order for the rule of law to have any meaning, individual liberties and rights must be enforceable in our courts. Separation of powers concerns are at their highest with regard to secret executive branch conduct, and the government simply cannot be allowed to hide behind unexamined claims of secrecy, and become the final arbiter of its own conduct."

Subcommittee Chairman Jerrold Nadler (D-NY) questions the ACLU's Ben Wizner on the government's assertion that the entire subject matter of certain cases may be too secret to consider:

Rep. Nadler: "Mr. Wizner, in cases that you've handled the government has argued that the entire subject matter, from rendition to torture, is a state secret. In the last Congress, we held hearings on rendition. The government acknowledged that "rendition is a valuable tool in the war on terror," and other governments have conducted extensive examination of particular cases. In view of these facts, what are we to make of the government's argument that the entire subject matter is too secret, and warrants outright dismissal of cases?" Ben Wizner: "I think, Chairman, that it is evidence that the government's approach to secrecy in these matters is somewhat more opportunistic and malleable than it may seem."

Rep. Bill Delahunt (D-MA):

Rep. Delahunt: "Secrecy really is the hallmark of totalitarianism, and transparency is clearly an aspect of a viable, healthy democracy. And I think we're out of balance, we're out of kilter now... this is something that the United States Congress must do to re-order the separation of powers. We ought to be looking at how are things classified. I know how things are classified in some agencies, there's somebody in a cubicle somewhere that's just redacting."