[国会记录：2009年6月10日（参议院）][第S6438-S6440页]国家机密保护法，哈奇先生。总统先生，我今天站起来对《国家机密保护法》表示保留。由于政府的目的之一是提供强大的国防，因此有一些方法和来源永远不应披露，以免对国家安全造成无法弥补的损害。司法部门在处理国家机密特权方面有着悠久的历史。多年来，法院一次又一次地确认政府有权保留可能损害国家安全计划的信息。这一学说的现代起源是在美国诉德国一案中确立的。雷诺兹。最高法院制定了雷诺兹折衷案，该案规定，如果法院“从案件的所有情况来看，都认为强制提供证据有可能暴露军事事件，而为了国家安全，“这就是最高法院所坚持的立场，它继续以对行政部门的最大尊重确认这一立场。在雷诺兹的统治下，国家机密特权不能——也没有——被轻易援引。司法委员会正在审议的被称为《国家机密保护法》的法案将否定雷诺妥协案，并为政府主张这一特权创造更高的证据标准。我对摆在我们面前的立法的分析使我得出结论，这项法案将给雷诺兹所达成的平衡带来混乱。该法案降低了法院在维护国家机密特权时对行政部门的尊重。这增加了政府为保护国家机密必须满足的举证责任。法院在国家机密原则中赋予了极大的灵活性，允许自己在诉讼当事人的权利和国家安全的需要之间达成有效的妥协。这是在个案基础上进行的。该法案的起草者希望重新定义标准，仅当披露证据“合理地可能对国家安全造成重大损害”时，才根据国家机密特权提供保护。这严重背离了雷诺兹早已确立的先例。这将严重阻碍国家安全机密的保护。放弃一个拥有55年以上法学发展和判例法支持的标准是荒谬的。雷诺兹妥协案说，如果存在合理的危险，那么我们将确保信息的安全。S.417说，如果有合理的可能性，你可以泄露信息。第417条未能保护国家机密。这一国家机密特权绝不会轻易使用，也绝不会逍遥法外。这项权利的主张必须由援引国家机密特权的执行机构负责人以书面形式提出。在最近的案例中，这有时是国家情报局局长。法院可自行进行调查，以确保该特权被正确调用。这项调查将包括审查为什么需要所寻求的信息来证明原告的案件。相反，法院将审查为什么这些信息对国家安全至关重要。经过深思熟虑的审查后，法官对据称属于特权范围的证据的出示作出裁定。不是政客通过的法律。有一种说法是，布什政府比以往任何一届政府都更多地援引了国家机密特权。这一谬论的根源在于，政府在主张保护以前认为不在其范围内的信息的特权时，做得太过火了。这一错误观念不仅被媒体传播，而且被本机构成员传播。国家安全法领域的大多数法律专家都表示，不可能收集准确的年度统计数据进行年度比较。从经验上看，没有一个“打击平均数”可以从一届总统政府到另一届总统政府进行比较。这样做的假设是错误的，即政府每年都会收到相同数量的案件，在这些案件中可以主张这一特权。对我来说，比较行政当局并根据他们声称享有特权的总次数来判断他们是毫无意义的。诉讼的流程每年都在变化，每届政府的诉讼流程也各不相同，特权的调用也不相同。它因时代和环境而异。我们一直生活在非常困难的时期和环境中，我们必须保护这个国家；我们以前从未面对过的情况。因此，试图比较这一特权的主张率并得出错误结论是可笑的that because the Bush administration used this privilege it must be changed. Unfortunately, for the authors of this bill, the data does not support the hypothesis that the Bush administration ever used the state secrets privilege in an attempt to dismiss complaints. Published opinions have revealed in the 1970s the government filed five motions. In the 1980s the government filed motions nine times. In the 1990s the government filed motions 13 times. Preliminary data available for the Bush administration indicate that the privilege was used 14 times. Therefore, the impetus for the State Secrets Protection Act does not support the conclusion that the Bush administration blazed a new trial in national security law. On the contrary, the authors of this bill are the ones attempting to alter national security law. Keep in mind, we have been going through an extended war on terrorism, and, frankly, there is a need to protect national security. That is why we have the state secrets law. In the first 100 days of the Obama administration--get that now--in the first 100 days of the Obama administration, the Department of Justice has invoked this privilege three times--in the first 100 days. This is the administration that was complaining about this. Now they found, when they faced reality and how important this privilege is, they changed their tune, and they should. I commend the administration and specifically the President for recognizing this. The administration has picked up where the Bush administration left off in three pending cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jepperson Data Plan, and Jewell v. NSA. During an interview of a widely revered liberal journalist, Attorney General Eric Holder stated that in his opinion the Bush administration--get this word-- ``correctly'' applied the state secrets privilege in these cases. If this legislation is passed in its present form, private attorneys would be given access to highly classified declarations before a judge rules on whether the state secrets privilege should prevent such a disclosure. Can you imagine the harm that could come to our country? It is hard to believe that anybody would be advocating this in the Senate with what we have been going through and the special wars that we have been going through and the special type of terrorists that we have been having to put up with. This legislation--lousy legislation--will have the effect of incentivizing lawsuits by rewarding attorneys who file lawsuits with a security clearance. I remember one case in New York where the attorney herself was convicted because she was passing on information. Now this clearance will grant these attorneys access to classified information that if divulged could reasonably harm our national security interests. It is bad enough trying to keep secrets around here, let alone with people who really should not be qualified for that type of classification. Does an attorney need absolute proof of some violation of law to file a lawsuit to learn details about classified programs? No, under this bill, they simply need to make an accusation. Any accusation will do. Ensuring national security programs stay classified is critical to our citizens' continued safety. Under this legislation, private attorneys, regardless of the merits of their lawsuits, will be given access to our Nation's secrets, secrets that are critical to the protection of our country. It is not hard to see how this legislation could seriously harm national security. It is hard for me to see why anybody would be arguing for this legislation. It is a legitimate concern that ideological attorneys would be willing to compromise national security interests and secrets and disclose classified information. There are at least two recent instances involving the disclosure of classified information. These are recent. I am just talking about the recent ones, and then only two of them. There may be more. In May 2007, a Navy JAG lawyer leaked classified information pertaining to Guantanamo detainees to a human rights lawyer. I find it disturbing that a U.S. military officer who is sworn to protect this Nation would disseminate classified information. But an even more troubling scenario is posed by private attorneys. In 2005, a more alarming case came to light when a civilian defense counsel was convicted of providing material support for a terrorist conspiracy by smuggling messages from her client, a Muslim cleric convicted of terrorism, to his Islamic fundamentalist followers in Egypt. Do you know how difficult it was to convict an Islamic fundamentalist religious leader? Yet this man was convicted, and rightly so. His attorney compromised these matters. In press interviews after the attorney was convicted, she said, ``I would do it again--it's the way lawyers are supposed to behave.'' She also said that ``you can't lock up the lawyers. You cannot tell the lawyers how to do their job.'' I am not implying that all lawyers would act so egregiously. What I am saying is there is a profound reason why the government has classifications for categorizing the sensitivity of information that is vital to national security. Providing top secret clearances to persons outside the employment of the United States is a colossal blunder. This bill will allow that. The courts recognize the executive branch's superior knowledge on military, diplomatic, and national security matters. Judges do not relish the thought of second-guessing decisions made by officials who are better versed on matters that may be jeopardized by allowing attorneys access to classified materials. Similarly, Congress should not relish the thought of second-guessing the judgment of courts that have given careful consideration regarding the appropriate legal standards to balance the interests of judges and national security programs. The State Securities Protection Act does not protect state secrets. This bill upsets the judicially developed balance between protection of national security and private litigants' access to secret [[Page S6440]] documents. The judicial branch has crafted a state secrets doctrine to give judges the flexibility to weigh these interests with appropriate deference to the executive branch. This judicially crafted doctrine is more than sufficient and has evolved from the 1912 case of Firth Sterling to Reynolds to current cases such as Hepting and Al Masri. The State Secrets Protection Act is unnecessary and potentially harmful to national security. Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee. I do not know how any Senator sitting in this body can do so. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. INHOFE. I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. INHOFE. Mr. President, I ask unanimous consent to speak as in morning business for 12 minutes. The PRESIDING OFFICER. Without objection, it is so ordered.