premature and over broad. it held the government's sweeping. a state secrets had no limit and amounted to an argument that to that judiciary should cordon off all actions from scrutiny immunizing the cia from the limits of law. . . and confusion in the court. a need for uniform standards and practices is as urgent today.

at a press conference today after the ruling, the president obama was asked about his is administration's position on state secrets. he responded, i think that the state secrets doctrine should be modified. searching for ways to redact, to carve out certain cases so that a judge can review information without being in open court, there should be additional tools so that it is not such a blunt instrument. congress should provide those additional tools. >> i will begin the questioning by recognizing myself for five minutes. judge, during the subcommittee in the last congress, your testimony last year as supporting requirements had

system -- a substantial way -- wait, the government seeks to withhold as a state secret. is that accurate? do you believe we should recall -- require that the courts grant automatic deference? that is the standard in the senate companion bill, but not this one. >> when i was here before the house judiciary committee last year, you did not have a bill yet. we were talking about principles and legislation. one of the then administration officials raised the proposal that at most different beat the standard. i said there were other places in legislation like exemption401

that use substantial way. i believe i also attached to that what i later said in a supplemental letter that went to the house judiciary committee, i meant the same kind of wheat that any expert witness gets. he defines substantial weight as only the weight that is the proper it by that demonstration of qualifications and expertise. >> you think the language in that -- >> i like the language in the current bill better. i think it is confusing. >> if that is adequate to account for government expertise, what are the risks, if any of putting in language,

why shouldn't we do that? >> i think that the basic principle, the one that was endorsed by the supreme court in reynolds, it is the judge should be the decision maker as to whether it a privilege applies. he ought to make an appear -- a -- and an independent assessment. it takes away that from the underlying principle. >> congressman hutchinson come those who oppose often argue that it is the president of the executive branch, not the court that has greater expertise and responsibility for safeguarding national security. did you underestimate the responsibility of the courts in

our cost digital scheme, your testimony says york times to overstate to avoid exposure, does the argument also overlook the potential conflict for the government in the case with the information that seeks to withhold information that might be embarrassing or provide information about illegal conduct? >> the key point is that we have to give the courts but tools and a guidance to ensure an independent review. any language, such as substantial deference would undermine that independent review in terms of the ability of the courts to wait expert testimony, that is what is marvelous about our judiciary and our rule of law in our country, is that you can have a

judiciary -- they don't have to be experts on patent law to make of decision, or an expert in the engineering to make, i would trust the expertise of the courts, under normal guidelines, what is presented. >> in cases you have handled, the government has argued that the entire subject matter like rendition and torture are still secret. >> this is a valuable war -- tool in the war on terror. in view of these facts, what do we make of the government's back -- of all right dismissal of cases? >> it is evidence that the government's approach to secrecy is somewhat more opportunist -- opportunistic.

on the day i responded to government -- attorneys that it should be thrown out on, it was discovered that three individuals were water boarded. when it finds itself in the position of being a defendant in the case, it becomes a secret. >> why should the government be required to prove item by item that exposure to expect -- particular information, why isn't it sufficient to except as risible the government's assertion that in its view of litigation would provide -- revealed litigation and it justifies the initial pleating stage? >> judges are not clear for it.

they are not in a position at the beginning of a litigation to determine what evidence will or will not be necessary for the parties to make to prove their claim. when that argument is being advanced by an executive-branch official, who stands to gain, i think courts need to be even more wary about it because of the inherent conflict of interest. a court cannot know at the outset that a plaintiff will not be able to come up without an alternative means without recourse. >> thank you very much. that concludes my question for the moment. i now recognize the former chairman of the committee for five minutes. let's i have a quote from your

testimony from january 29th, where you talk specifically about substantial weight being given to government assertion. you seem to approve of that. you also quoted a satchel that requires the court to give substantial weight when someone is trying to get information under the freedom of information act. have you changed your mind this last year on the subject? >> i have not changed my mind. perhaps i am in the close group of people currently, who wished they had stated things a little bit more clearly the first time around. on this particular thing, as i pointed out, there was not any bill or anything we were

focusing on specifically when talking about principles. when i talked about weight, i used it as an example of a standard that was an exemption. i want to make one thing clear. it isn't even in the the text. it is only in the conference committee report. we don't have an example where is in the statute. many judges have cited it from the conference report. it was in the legislative history. i did use substantial weight, in my view in looking at the phrase, i interpreted the with the judge writes it, i put that quote in there today which says it does not mean some kind of blanket notion, that when the

witness comes and says, i represent the government, he or she immediately gets deference. it means according to the judge, it means that you get the kind of waite, special weight from the judge that the qualifications, experience, and coherence of the testimony of -- to render it. >> let me pursue this further. even if you essex let -- except the legislative history, it seems to meet the type of

material usually requested is much less sensitive than out material, where an allegation of the state secret is asserted by the government. doesn't it concern you that you would be having different standards, that we have different kinds of ways that could be accorded to government assertions when records or information are attempted to be sought from the government? >> number one, i am not sure. i do not have the experience although i encountered those kinds of cases on the bench. i do not have the experience to validate what you say that some of state secrets are set some how to involve much more sensitive material.

my chief experience -- there was sensitive materials that were raised in some of those cases, including the aborted a helicopter rescue of the people at the end of the carter administration. i want to make another point, and that is that the jefferson case, it specifically addressed and pointed out that they believe that different standards might be appropriate. what is at stake in employee exemption one is a citizen wanted to get the information, not having to show any particularly -- particular injury in the balance of equities. on the other hand, if you are in a civil case, whether it is an

allegation of injury, the stakes are much more important. i am not sure. i want to point out that judges have interpreted this differently. sometimes, they will even look at the material and take the government's affidavit at face -- value. others say, it will not make sense to me. >> that gets to my final question. currently, we do have a body of law with a substantially different standards that is in the current law. that basically makes this a matter of judicial discretion. aren't we likely to get, what is

the legend acclaim for information, if we start to scratch on what the case law should be? >> i think not. i don't think you have a consistent body of lot -- lock, with a consistent standard now. i think it is all over the map. we could almost begin a new with the standard, and begin to build that body. i don't think we will lose anything inconsistency from the current law. >> since i know the president and attorney general better than anybody in this room, could you

explain to me why the president is so ambivalent, and why the attorney general did not send anyone to this hearing? >> who is that addressed to? >> anybody. >> when the senate chair -- when president obama was in the senate, and campaigning, he had a very different position on the state secrets privilege. now that he is in the executive branch, now that he has seen the usefulness and utility of its, he seems to have reached a very different view. i can understand that might be politically inconvenient, but i think there is some evidence that is what has occurred. >> i was afraid you would be the one who would answer my

question. >> mr. grossman indicated there was some evidence. what is that evidence? or are you speculate? >> i am speculating, based on. >> that's fine. no, please go ahead. >> when they were in the senate, both senator biden and senator obama were both critics of the state secrets privilege. since assuming office, the administration has used the privilege in at least three cases that we are aware. all three of those cases were very controversial in vocations of privilege. the cases that have resulted in much of the -- in this congress, as well as in the public theater. essentially, it is speculation.

i have not asked anyone in the executive branch what their thinking on this is, but a reasonable conclusion can be drawn by what has exit occurred. >> can you explain the attorney general's failure to provide a witness? >> no. >> anyone else want to weigh in on this? >> i will to say, i appreciate the fact that the attorney general is looking within the executive branch as to refining their internal procedures of the assertion of the state privileges doctrine. to me, that raises the profile, especially in congress come to act. whether here or not, they are working on their branch of government. i am glad that congress is considering it at the sun time, more comprehensive reform. >> we are the two people who

raise the question of unconstitutionality. what do you think about the unconstitutional charge on this measure? ike >> i share the opinion with a judge. i would only add that my understanding of the argument that this bill would be unconstitutional would apply equal force to the freedom of information act, and to the classified information procedures act. they give courts tools to handle sensitive intimation, and create procedures for courts to do that. none of those entered on the president's constitutional authority.

>> i certainly agree with what mr. wiseman said. all privileges, many privileges have tinges of constitutionality about executive privilege. if we could all go back and say that we need this, we have to have more power in order to for felt the commander in chief powers. i think that these privileges have been considered to be susceptible to congressional concern, going back to 1969, when we were going to have federal rules of evidence with more details. there was one drafted to deal with state secrets per fro -- privilege, then congress abandoned the attempt to have a very specific set of codes on it. i don't think the supreme court

in reynolds or anyplace else suggested that this was some kind of sacrosanct constitutional privilege i could not be touched. >> i think the argument is that somehow legislating in this area impedes the executive from his national security responsibility of protecting our country. i don't see any challenge to that authority at all, the legislation being considered doesn't stop them from exercising state secrets from implementing national security programs, it doesn't change the fact that they can assert that privilege. it just says that when it gets to the court, after the fact always, when it will be reviewed, then there will be a process in our system of checks and balances. i did not see this as taking

away from the authority of the chief executive come in terms of national security. >> while we were in court, you would be on the short end of this discussion. >> that is true numerically speaking. i think if you look at the supreme court's decisions in chicago, nixon, and others, the court has said that secrecy is in some demands unnecessary incidents to the commander-in- chief power. those powers cannot be fully exercised without a strong degree of secrecy. the court has actually said that the executive has the constitutional power to control access to classified information. who is just for the enough to receive certain types of

classified information? , particularly in affairs. parks it for that reason, it would be unconstitutional. >> the supreme court in these cases has said that secrecy is inherent in the executive, but it is true is it not, that the supreme court has always said that these powers are limited and not absolute. no executive power, no congressional power is absolute. >> you are correct. at the same time, no power is -- either. >> this bill does not avoid anything. it's simply suggest executive

powers of secrecy in the context of court cases is supervision by the court. and to altman approval by the court. -- and to the ultimate approval by the court. congress's power under article one to regulate evidence and the administration of evidence has been granted power. >> that grant of power is unlimited. >> you would argue that a general power supersedes a random power? >> this body could not abrogate systematic privilege against self-incrimination, despite its power to regulate --. >> you are reversing that. >> i would disagree.

the constitution cites the executive and constitutional power to the president. if secrecy is unnecessary incidents of that power, that is, the president's power. >> ok. mr. grossman, if we were in court, i would ask you to come back to chambers after we were finished. i appreciate your constructive a temps to defend your proposition. i yield back, mr. chairman. >> i recognize the gentleman from iowa for five minutes. >> thank you. i would like to compliment you of the nimble response to the chairman of the full committee. at first, i'd like to ask mr. hutchinson as i was able to hear most of the testimony here, and

look back over the history of this country and wonder when it is i have been alarmed at the state's secrets document says or cause someone to lose their rights or privacy, or made the nation less safe. was there anything in history that we were not able to learn from, because it was rolled up in an executive privilege? my question is, what are we trying to fix? >> i am not coming to this hearing in a critical fashion. others have had different experiences. i am coming to this from the standpoint that regardless of the history of it, we have a responsibility to make sure that the potential for abuse is minimize by a system of checks and balances. ike come at this as a conservative. i do not believe that an

unfettered unchecked excel -- executive branch. we all have checks and balances. here is an executive can assert state secrets privilege, without any review, with broad authority, unbridled authority. i think this goes against the principles of our founding fathers. >> i appreciate that. just a point of intermission as a longtime member of congress, if you have ever gone into a classified hearing, given up your blackberry and cell phone and come back and recover that and then stepped in front of a television screen and seen the similar briefing coming out on the news summit -- simultaneously, like all of us have.

>> your point is well taken, that there is a history. there are other branches of government have spoken about what has been classified information, the knicks -- the executive branch excels in that. i think the track record for the court is totally different. they don't have to stand for federal election and the judiciary. they have a track record that is extraordinary and protecting classified information. >> i agree with that point. i am glad it was brought out again. in light of the nimble nature that you have responded to previous questions or comments,

can you address this panel on the limits or scope of the exit -- existing executive privilege? if there was a white house that had contracted with an enterprise that had the trappings of a criminal enterprise to engage as a contractor into working with developing the senses, which happens every 10 years here in the united states. if the result of that census might dramatically change the congressional districts, change the political dynamics, and if that enterprise appeared to be a criminal enterprise, or something that happened to be supportive of turning out the vote for that white house, would you be able to assert an executivevi