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February 13, 2008
Testimony of Michael A. Vatis
Hearing before the
"Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability"
Wednesday, February 13, 2008
Chairman Leahy, Senator Specter, and Members of the Committee: Thank you for inviting me to testify today concerning the state secrets privilege and S. 2533, the "State Secrets Protection Act." My fellow panelists have testified with great knowledge and insight concerning the history of the state secrets privilege and some of the constitutional questions it raises. I will seek to avoid retreading ground that my colleagues have already ably covered, and instead devote my remarks to the issue of government secrecy in general and how judicial oversight should be crafted to preserve the Executive Branch's discretion and authority in national security matters while advancing the significant interests in government openness and accountability.
I start from two bedrock principles, both of which may be considered truisms, but which also happen to lie in great tension with each other. First, secrecy in government
At the same time, the second principle is equally true, and no less important:
secrecy in government is antithetical to democratic governance. Too much secrecy shields officials from oversight and inevitably breeds abuse and misconduct; it thus can fatally weaken the system of checks and balances that defines our system of government.
At rock bottom, government "by the people" becomes impossible if the people do not know what their government is doing.
Add to these two principles a corollary derived less from theory than from observation: there are secrets, and then there are secrets. Too often, information deemed
The fundamental question, then, is how to balance these competing principles. In considering this question, it is helpful to recall one of the central insights of the so-called
Given the lack of transparency of the "regulatory" process, the modern administrative state tends to overregulate, rather than underregulate, information. This tendency is exacerbated by the fact that, in bureaucracies, information is power. Secrecy serves to tighten the bureaucrat's grip on power, and that grip is not easy to dislodge. As Weber, again quoted by the Moynihan Commission, wrote:
The pure interest of the bureaucracy in power...is efficacious far beyond those areas where purely functional interests make for secrecy. The concept of the "official secret" is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude, which cannot be substantially justified beyond these specifically qualified areas....Bureaucracy naturally welcomes a poorly informed and hence a powerless parliament--at least in so far as ignorance somehow agrees with the bureaucracy's interests.2
Substitute "Congress" - as well as "courts" -for "parliament," and Weber's assessment is no less true in Washington, D.C. today than in Europe a century ago.
As with other forms of regulation, Executive Branch secrecy can and should be subject to legislative and judicial oversight. This is, of course, not an entirely new idea. Congress has seen fit--in legislation such as the Classified Information Procedures Act,3 the Foreign Intelligence Surveillance Act,4 and the Freedom of Information Act5--to make rules governing the protection and disclosure of national security-related information. What has been lacking is a legislative prescription as to how courts should assess Executive Branch assertions of the state secrets privilege in civil litigation, leading to confusion in the courts about the standards to apply, the procedures to use, and the deference to accord Executive Branch claims.
S. 2253 represents a much needed and commendable first step toward the necessary legislative role in setting the ground rules for the state secrets privilege.
In particular, it recognizes the need to balance and reconcile, where possible, the sometimes competing interests of justice and openness, on the one hand, and national security, on the other, through several procedural mechanisms.
Most notable is the bill's requirement that a court review all evidence that the government asserts is protected from disclosure by the privilege. This represents a departure from the approach established by the Supreme Court in Reynolds v. United States,6 which specifically declined to require such review:
[W]e will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.7
This requirement in the bill seems necessary, in order to ensure that courts do not assess state secrets claims in a vacuum, without fully understanding the nature of the information at issue, the government's reason for wanting to keep it secret, or even whether the secret information is really at issue in the material to which a civil litigant might be seeking access. Requiring judicial consideration of the evidence will improve government accountability, promote justice for individuals
One point that seems lacking from the bill, however, is any reference to the standard of review or level of deference courts should apply in assessing government assertions of the privilege. Given the President's constitutional responsibilities under Article II as Commander-in-Chief of the armed forces and
The mere fact of judicial review of the evidence in dispute should serve to check unreasonable, arbitrary or abusive assertions of the privilege. Allowing courts to exercise de novo review and substitute their own judgment for that Executive Branch officials, however, would pay short shrift to the President's constitutional responsibilities and Executive officials' superior expertise in defense and foreign relations. Deferential review--combined with expedited appeals and regular, meaningful reporting to Congress--would strike the appropriate balance.
In sum, S. 2253 is a commendable effort to provide needed guidance to courts on how to assess Executive Branch assertions of the state secrets privilege, and provides valuable mechanisms for balancing and reconciling the sometimes conflicting interests of justice and transparency in government, on the one hand,and protection of national security information, on the other.
2 Max Weber, Essays in Sociology, trans. and ed. H.H. Gerth and C. Wright Mills (New York: Oxford
3 18 U.S.C. App. 3.
4 50 U.S.C. § 1801 et seq.
5 5 U.S.C. § 552 et seq.
6 345 U.S. 1 (1953).
7 Id. at 10.