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tv   [untitled]  CSPAN  June 9, 2009 1:00am-1:30am EDT

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.. >> i think that perhaps too much was made of the cooperation between israel and these arab
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states. i am not sure i completely understand your question, how the two are linked. >> if israel feels a threat from iran, and that is why it is cooperating with moderate arabs, so keeping the threat of iran alive might have some benefits to resolve some conflict in the region. it is that a true assumption or not? >> that is an interesting take. you know, i mean i think our interviews in the region, when we looked at the arab perceptions of the iranian threat, one kuwaiti rights activists said, address the palestinian issue and you will defang i ran in the region and i think much of its mobilizing capability, the vocabulary that it uses is partly related to the arab-israeli issue. it is not completely and i think the fundamental issue is this
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legitimacy in their societies and the gap their, the tension there is expressed in the terms of arab-israeli conflict. that is why palestine is such an important issue, so from the region i think the arab-israeli front is a critical one for addressing the challenge of iran. >> i think we might also just quickly add a good litmus test would be to see what the reaction is to this obama administration's overtures to arab allies to see whether they going to put forward on the peace process and if the concern over iran use them that incentive to do so, maybe that would be a good litmus test but so far we have yet to see results so that might just be an answer to you. we are going to take a break, because i assume that all of you folks who have stayed with us all morning, which we are greater beauford and evin joy this discussion so far, are probably very hungry so there is food outside in the hallway.
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we are doing box lunches since we are stadium seating here. take your various breaks and bring your lunch is beck and we are going to have dr. brzezinski on hopefully by 12:20. that is the ambition, no later than 12:20, try to get back in the room to reconvene for our final session. thank you all. [applause] [inaudible conversations] >> the head of the congressional panel overseeing the treasury department 700 billion-dollar troubled asset relief program, elizabeth warren, will talk
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about her panel cost in report. live coverage starting at 10:00 a.m. eastern on c-span. also tomorrow, treasury secretary tim geithner and irs commissioner douglas shulman testified before a senate appropriations subcommittee about the budgets for next year. live coverage it 10:30 a.m. eastern on c-span3. >> now a house hearing on the use of the state secrets privilege. it allows the government to withhold national security related information during a
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trial. jerrold nadler of new york chairs the subcommittee on the constitution. he is the coates author of legislation that would make it harder to use the state secrets privilege. this is an hour, 30 minutes. >> this hearing of the subcommittee of the constitution civil-rights and civil liberties will come to order. today's hearing will examine the state secrets privilege for the chair recognizes himself for five minutes for an opening statement. today is the committee examines legislation that i have introduced along with the distinguished chairman of the full committee with representative tom petri and several other members of the committee. it would codify uniform standards for dealing with claims of a state secret privilege by the government in civil litigation. endless climber sui of an oversight hearing on this legislation. the bill was reported favorably to the full committee. our-- sweeping claims of privilege in secrecy can have on our nation. in order for the rule of law to have any meaning, individual
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liberties and rights must be enforceable in our courts. separation of powers concerns are at their highest with regard to secret executive branch contacts in the government simply cannot be allowed to hide behind and examine claims of secrecy and become the final arbiter of its own conduct. it claims the secrecy have been used to conceal congress even though members of the security clearance necessary to be brief and in a properly secure setting part of that has been the case with respect to the use of torture with the use of illegal spying in americans and other matters of tremendous national importance. let me add here that this issue is perhaps the most important issue in my judgment this committee will phase because this committee is charged with enforcing civil rights and civil liberties under our constitution anders in ancient maxim of law that says there's no right without a remedy and if the government file is your right and kidnaps eeyore torture zeal or deliberately burned down your
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house, wiretaps without a warrant, whatever how do you when force your right, how you enforce your right against the government? the administration could criminally prosecute its own members have done so. that is unlikely. congress could exercise oversight. that is hit or miss. or, the victim can sue in court and sue the government for illegal wiretapping, for kidnapping or intentional mental distress, opsahl whatever but a government can eliminate that lost it on the pleading simply by coming into court and using the magic incantation of the word state secrets and say this case should be dismissed because we say on our underexamined assertion that trying the case would necessitate the revelation of state secrets, the case dismissed, then there is no recourse 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 a state
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secret doctrine. this same pattern of resorting to an extravagant claims has been evident in the courts. while the bush administration did not invent the use of the states it is privileged to conceal wrong doing it certainly perfective there. the privilege has been abused by prayer restrictions to protect officials who have behaved illegally or improperly or simply in an embarrassing manner rather than to protect the safety and security of the nation. the landmark case in the field u.s. versus reynolds is a perfect case in point. the wittes of three civilian engineers to the government for negligence, stemming from a fatal air crash. the government refused to produce the accident report, even refusing to provide to the court to review clammy would reveal sensitive secrets that would endanger national security for the supreme court concurred without looking behind the government's unsupported assertion that national security was a ball. have a century later the report was found, now declassified on line by the daughter of one of
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the engineers and it clearly revealed no state secrets. could have been made available in a form that one of enabled those families to vindicate their rights in court. did reveal the government was caused by negligence which i suspect was the real reason for the invocation or the invention in that case of the state secrets doctrine parker protecting the government from embarrassments civil liability, not protecting national security was the real reason for withholding tax the report. these families were denied justice because the supreme court never looked behind the government's false claim to determine whether it was sallet. similarly in the pentagon papers case then solicitor general irwin griswold for the supreme court the publication of information would pose a grave in immediate danger to national security. 18 years later he melody had never seen any trace of a threat to the national security from the publication of the information and further admitted the principal concern is not with national security but rather with government embarrassment of one sort or
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another. it is important to protect national security and sometimes our courts set to balance the need for individual justice with national security considerations. congress has in the past balance these albeit sometimes competing demands. in the criminal context and that the the classified information procedures act. and fisa we set out procedures for the court to examine sensitive materials through the freedom of information act which sought to limit information from the public when the government is supposed to serve. we can and should do the same in civil cases. our system of governments and legal system had never relied on taking assurances that they study. the courts incumber seven did he to look behind what does it administration or any administration says determine whether those are well founded. presidents and government officials have been known not to tell the truth on occasion, especially when it is in their interest to conceal something. the founders of this nation is there need to be checked for the government to prevent such abuses from taking place or in the words of the ninth circuit
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in the recent jeppesen decision the executive cannot keep its own judge. to allow that and these are now my words, to allow that is to abandon all the protections in their founding fathers established. core seven dutiful to protect national security secrets but they also have a duty to make an independent judgment as to whether state secrets have any merit. when the government itself as a party the court cannot allow to become the final arbiter of its own case. the purpose of this legislation is to insure the correct balance is struck. i would just that i'm disappointed the department justice has declined to provide a witness to discuss this very important issue at this hearing. i met with attorney general and understand the review of this policy is currently underway. nonetheless the department continues to go into court while this review is underway and take positions remarkably similar to positions taken by the last administration. while i appreciate the willingness to work with us i believe it should be possible to send someone to provide the
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administration's use an answer questions to the extent they are able. i hope this is not a sign of things to come. i look forward to the testimony of our witnesses. i now yield to the distinguished-- i now recognize the minority leader, the gentleman from wisconsin, mr. sensenbrenner for his opening statement. >> the state's ikard pro-image is a longstanding legal doctrine the supreme court was recently decided a case called u.s. forces reynolds. in that case the court made it clear that if the court, after giving appropriate deference to the executive branch determines the public disclosure of information would harm national security, a qorvis of lice to dismiss the case or limit the public disclosure of national security information is necessary. under this doctrine people with legitimate claims are not denied access to court review. rather, the doctrine allows judges to personally beddia any sensitive information.
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while this doctrine may occasionally disadvantage someone suing in court it is vital to protecting the safety of all americans. their roots of the state secrets privilege extend all the way back to chief justice marshall, the author of marbury versus madison, who held the government need not provide any information that would endanger the public's safety. in the modern era, congress debated the issue of the state's ikard privilege under federal law in the '70s, but ultimately chose to maintain the status quo including elements of the privilege put in place by the supreme court in its reynolds decision. the fourth circuit court of appeals recently employed the doctrine and affirmed the dismissal of the case including the state sacred privilege has a firm foundation in the constitution. now not surprisingly the privilege has played a significant role in the justice department's response to civil litigation arising out of our
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counter-terrorism efforts following 9/11. the state secrets doctrine remains strongly supported by today's supreme court. even in its boom at the and decision granting habeus litigation rights, justice kennedy in his majority opinion and ballots the government's use legitimate interests and for detecting intelligence gathering and stated they expected this record will use its discretion to accommodate the centrist with the greatest extent possible, while citing the reynolds fates ikard case i mentioned earlier in doing so. i oppose any efforts including this bill that in by the courts to deviate from the sound procedures they currently follow to protect vital national security information. h.r. 984 would preclude judges from giving away to the executive branch is the assessment of fascial security. it would authorize courts not to use ex parte proceedings in conducting a review of privilege claims and it would prevent courts from being able to dismiss a case from the
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government cannot defend itself without using privileged information. the obama administration is clearly not enamored with the approach of this legislation and it is in here in court to the doctrine asserted by the previous administration in at least three cases already. according to "the washington post" editorial page, the obama administration's position on state secrets makes it hard to distinguish from its predecessor. anthony romero, the executive director of the aclu, has written a new administration has embraced policies held over from the bush era including the use of the state secrets play. less congress legislation essentially the same as h.r. 984, was co-sponsored in the senate by senator joe biden and hillary clinton, who were now president obama's vice president and secretary of state but this year president obama, vice president clinton and secretary-- vice president
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biden, excuse me and secretary of state: have gone silent on the bill. when asked about recently the vice president's communications director said "no comment on this from here." the legislation goes exactly in the wrong direction. so much so that even president obama, vice president biden and secretary of state clinton are running away from it. so should we and i yield back the balance of my time. >> i thank the gentleman and i now recognize the distinguished chairman of the full committee for an opening statement. >> thank you chairman, thank you ranking member in marriages, i mean chairman emeritus. the president is running away from a lot of things, so this is just one more of them. that doesn't mean that the consideration is not extremely important. we have been here before ladies
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and gentlemen. i am for state secrets. there are some secrets that we have got to keep away from citizens and congress people, and everybody else, bloggers. but, wait a minute, which once? well, that is what we are here to try to sort out. we didn't say abolish state secrets. and, of the state secrets have been used so much to keep things secret that should not have been kept secret. that is the problem. and by the way, let's take a look at the great state bens of
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the president on this subject. he said we have got to reign in state secrets privileges. he has the knowledge that the privilege is overbroad and over used. and that he plans to embrace several principles of reform he has agreed the state secrets should not be used to protect information merely because it reveals the violation of law or it may be embarrassing to the government. his administration is also continued pressing an aggressive do you of state secrets privileges in the court. adopting arguments perfected by the prior administration.
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earlier, this year, in the mohammed case, the administration currently maintained that the prior administration's sweeping assertion that this very subject matter of the case was a state secret, and that that should be prevent judicial consideration of the case. the case was about torture. a few months later, another case was brought against the government for unlawfully spying on its own citizens, jewell.
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our administration again sought out right dismissal, arguing that litigating the case inevitably would require a harmful disclosure of state secrets and that the court need not examine any actual information on whether the case might proceed. it is to secret. we can't even talk about it. what do you mean a remedy of rights? this is a right apparently without any remedy at all. it is too secret to talk about. don't you get? it is so secret we can't even hear the case to determine whether it is a wrong or a right involved or whether it is a case
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brought in error. so, we remain encouraged that the administration is taking a fair review of the state secrets privilege. and, his assurance, number 44, that he will deal with congress and the courts as coequal branches of government, and we can't sit idly by. we are going to-- if we are coequal than that is what we are going to research. and, in closing chairman nadler, it is unacceptable that the department declined to even come to this lebanon secret meeting.
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nobody is here. what is that about? they could not provide a witness. why? well, there is a review pending and it is not solved and it remains, until it is solved they don't want to come before this coequal branch of government with then. okay, that doesn't sound very coequal to me. they could get sense someone here to say, we can't talk with you guys. they could have sent someone here to say that, but we are doing is not concluded and we understand your concern about the matter.
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so, what is with this state secrets business? well, let's see how far we can go. i am so glad to see judge walsh. he has been in judiciary so many times, and our former colleague, asa hutchinson. we are happy to see him back. grossman it is always on the case, mr. wizner. you are a relative newcomer here but we welcome you and it is no secret that what we are going to see and do here today is going to be information for everybody to help decide how we resolve this situation. thank you for your indulgence mr. chairman. >> thank you mr. chairman. in the interest of proceeding to our witnesses and mindful of their busy schedules i would ask
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members submit their statements for the record. without objection all members have five legislative days to submit-- the chair will be efforts to declare a recess of the hearing which we do in the case of those on the floor. as well as questions the sure will recognize members in the order of seniority on the subcommittee alternating between majority and minority providing. members or not present when their term begins will be recognized after the other members have had an opportunity to ask questions. the chair urges the rights to only able to be with us for a short time. i would like that to introduce our panel of witnesses. the first witness the honorable patricia wald who is have distinguished legal career. she served as a judge to the united states court of appeals for the d.c. circuit from 1979 to 1999 serving as chief judge from 1986 to '91 for good judge walled is a judge in the criminal tribunal where the former yugoslavia from 1999 to 2001 and was a member of the
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president's commission on intelligence capabilities of the united states regarding weapons of mass destruction in 2004 to 2005. judge walled court for the honorable judge frank aunt received a b.a. from the connecticut college for women and a j.d. from yale law school. asa hutchison is a former colleague of ours in the congress and on this committee to serve with distinction as a member of this committee. in 1982 president ronald reagan appointed him an yeah attorney. you represented the third district of arkansas from 1996 until president bush appointed him as administrator of the drug edmund enforcement administration. in addition he was a member of the intelligence committee. in january 2003 representative hutchinson was confirmed by the u.s. senate to be the first undersecretary of the newly created department of homeland security where he served until 2005. visas supinely founded the asa hedges and law group with his son, asa the third. and your grossman is the heritage foundation senior legal
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policy analyst. before being named as senior legal policy analyst mr. grossman was the writer editor and analyst at heritage. contributed to think-tanks research program in domestic and economic policy, foreign policy and legal affairs. mr. grossman is a graduate of the george mason university school of law resurgence in your article editor to the lardy. receive his master's degree from the university of pennsylvania. in 2002 he received his bachelor degree in economics and anthropology from dartmouth college rate edited the dartmouth review. ben wizner has been a staff attorney at the aclu since 2001, specializing in national security human rights and first amendment issues. u.s levigate several civil liberties cases in which the government in-- in both states the chris provision including the cia detchon detention and torture of an innocent german citizen. mohammed rafiq jepsen iysoo against the private aviation
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services committee for facilitating the cia rendition to torture of five muslim men and edmonds versus the department judgement whistle-blower suit and the behalf of the fbi translator pfeiffer reporting serious misconduct. mr. west was a law clerk to the honorable stephen reinhardt of the court of appeals for the ninth circuit. is a graduate of harvard college in new york university's school of law and i must say i have the funds for the new york university of lawson's my son is currently a student. i am pleased to welcome all of you. it is no mullite-- each of your reinstatements abed made part of the record in its entirety and i would ask you summarize your testimony in five minutes or less. there is a timing for your table. when one minute remains the light will switch from green to yellow and then to read when the five minutes are up. before we began to discuss-- if you please stand and raise your right hand to take the oath.
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do you swear or affirm under penalty of perjury the testimony you are about to give is true and correct to the best of your knowledge, information and belief? the record reflect the witnesses into in the affirmative. you may be seated. the first with this is the honorable judge wald. [inaudible] could you use the mic please? [inaudible] >> i would like to make-- i would like to make five brief points in five minutes. the first one is that the frequent use of the privilege in recent years to deny all relief to several plaintiffs who have been injured by governmental action has become a matter of great concern to lawyers, judges, legal scholars, the american bar association.
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this total cutoff of relief is often unnecessary and i think produces rank injustice in many cases. u.s. bee reynolds, the supreme court a ballots and there's no dispute that ultimately it is the judge must decide whether the privilege applies or not. the judges who have been administering the privilege have struggled with varying success to find a middle way between protecting national security and ensuring access by war the plaintiffs to some form of remedy for their grievances. unfortunately the judges have not been entirely consistent in the way they have mincer the privilege. some showy ready does to dismiss cases out right on mer allegations are conclusory affidavits and some more intensely. some judges actually look at the item that the state secret privilege is raised as to and some don't and are content to look at the government's affidavits.


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