[Senate Hearing 110-584]
[From the U.S. Government Publishing Office]
S. Hrg. 110-584
RESTORING THE RULE OF LAW
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
SEPTEMBER 16, 2008
----------
Serial No. J-110-119
----------
Printed for the use of the Committee on the Judiciary
RESTORING THE RULE OF LAW
S. Hrg. 110-584
RESTORING THE RULE OF LAW
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 16, 2008
__________
Serial No. J-110-119
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
45-240 PDF WASHINGTON DC: 2008
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
------
Subcommittee on the Constitution
RUSSELL D. FEINGOLD, Wisconsin, Chairman
EDWARD M. KENNEDY, Massachusetts SAM BROWNBACK, Kansas
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
Robert F. Schiff, Chief Counsel
Lauren B. Petron, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
prepared statement........................................... 101
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 3
WITNESSES
Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington,
D.C............................................................ 8
Dellinger, Walter, Partner, O'Melveny & Myers, LLP, Visiting
Professor of Law, Harvard Law School, former Assistant Attorney
General, Office of Legal Counsel (1993-1996), former Acting
Solicitor General (1996-1997), Chapel Hill, North Carolina..... 29
Edwards, Mickey, Board of Directors, The Constitution Project;
Lecturer, Woodrow Wilson School of Public and International
Affairs, Princeton University; former Member of Congress 1977-
1993; and former Chairman, House Republican Policy Committee,
Washington, D.C................................................ 10
Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith
Professor of International Law, Yale Law School, New Haven,
Connecticut.................................................... 14
Massimino, Elisa, Chief Executive Officer and Executive Director,
Human Rights First, Washington, D.C............................ 33
Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington,
D.C............................................................ 35
Podesta, John D., President and Chief Executive Officer, Center
for American Progress Action Fund, Washington, D.C............. 39
Rotunda, Kyndra, Professor of Law, Chapman University School of
Law, Orange, California........................................ 31
Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for
Justice, New York University School of Law, New York, New York. 5
Spaulding, Suzanne E., Principal, Bingham Consulting Group,
Washington, D.C................................................ 37
Turner, Robert, Professor, General Faculty, Associate Director,
Center for National Security Law, University of Virginia School
of Law, Charlottesville, Virginia.............................. 12
QUESTIONS AND ANSWERS
Response of Charles J. Cooper to questions submitted by Senator
Whitehouse..................................................... 51
Responses of Mickey Edwards to questions submitted by Senator
Whitehouse..................................................... 52
Responses of Elisa Massimino to questions submitted by Senator
Whitehouse..................................................... 54
Responses of John D. Podesta to questions submitted by Senator
Whitehouse..................................................... 55
Responses of Kyndra Rotunda to questions submitted by Senator
Whitehouse..................................................... 57
Responses of Frederick A.O. Schwarz to questions submitted by
Senator Whitehouse............................................. 58
Responses of Suzanne E. Spaulding to questions submitted by
Senator Whitehouse............................................. 65
Responses of Robert Turner to questions submitted by Senator
Whitehouse..................................................... 68
SUBMISSIONS FOR THE RECORD
Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington,
D.C., statement................................................ 85
Edwards, Mickey, Board of Directors, The Constitution Project;
Lecturer, Woodrow Wilson School of Public and International
Affairs, Princeton University; former Member of Congress 1977-
1993; and former Chairman, House Republican Policy Committee,
Washington, D.C., statement.................................... 96
Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith
Professor of International Law, Yale Law School, New Haven,
Connecticut, statement......................................... 103
Massimino, Elisa, Chief Executive Officer and Executive Director,
Human Rights First, Washington, D.C., statement and attachments 116
Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington,
D.C., statement................................................ 145
Podesta, John D., President and Chief Executive Officer, Center
for American Progress Action Fund, Washington, D.C., statement
and attachment................................................. 155
Professors of law and former attorneys in the Department of
Justice, Office of Legal Counsel, joint statement and
attachment..................................................... 178
Rotunda, Kyndra, Professor of Law, Chapman University School of
Law, Orange, California, statement............................. 197
Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for
Justice, New York University School of Law, New York, New York,
statement...................................................... 204
Spaulding, Suzanne E., Principal, Bingham Consulting Group,
Washington, D.C., statement.................................... 235
Turner, Robert, Professor, General Faculty, Associate Director,
Center for National Security Law, University of Virginia School
of Law, Charlottesville, Virginia, statement................... 246
RESTORING THE RULE OF LAW
----------
TUESDAY, SEPTEMBER 16, 2008
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:20 a.m., in
room SD-562, Dirksen Senate Office Building, Hon. Russell D.
Feingold, Chairman of the Subcommittee, presiding.
Present: Senators Feingold, Cardin, Whitehouse, and
Brownback.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I will call the Committee to order.
Welcome, everybody, to this hearing of the Constitution
Subcommittee entitled ``Restoring the Rule of Law.''
We have two very distinguished panels of witnesses
scheduled, and I want to thank all of you for being here.
Tomorrow, September 17th, is the 221st anniversary of the
day in 1787 when 39 members of the Constitutional Convention
signed the Constitution in Philadelphia. It is a sad fact as we
approach that anniversary that for the past 7\1/2\ years, and
especially since 9/11, the Bush administration has treated the
Constitution and the rule of law with a disrespect never before
seen in the history of this country. By now, the public can be
excused for being almost numb to new revelations of Government
wrongdoing and overreaching. The catalogue is breathtaking,
even when immensely complicated and far-reaching programs and
events are reduced to simple catch phrases: torture,
Guantanamo, ignoring the Geneva Conventions, warrantless
wiretapping, data mining, destruction of e-mails, U.S. Attorney
firings, stonewalling of congressional oversight, abuse of the
state secrets doctrine and executive privilege, secret
abrogation of executive orders, signing statements. This is a
shameful legacy that will haunt our country for years to come.
There can be no dispute that the rule of law is central to
our democracy and our system of government. But what does ``the
rule of law'' really mean? Well, as Thomas Paine said in 1776:
``In America, the law is king.'' That, of course, was a truly
revolutionary concept at a time when in many places kings were
the law.
Over 200 years later, we still must struggle to fulfill
Paine's simply stated vision. It is not always easy, nor is it
something that once done need not be carefully maintained.
Justice Frankfurter wrote that the law is ``an enveloping and
permeating habituation of behavior, reflecting the counsels of
reason on the part of those entrusted with power in reconciling
the pressures of conflicting interests. Once we conceive `the
rule of law' as embracing the whole range of presuppositions on
which government is conducted..., the relevant question is not,
has it been achieved, but, is it conscientiously and
systematically pursued.''
So the post-9/11 period is not, of course, the first time
that events have caused great stress for the checks and
balances of our system of government. As Berkeley law
professors Daniel Farber and Anne Joseph O'Connell write in
testimony submitted for this hearing: ``The greatest
constitutional crisis in our history came with the Civil War,
which tested the nature of the Union, the scope of Presidential
power, and the extent of liberty that can survive in war
time.'' But as legal scholar Louis Fisher of the Library of
Congress describes in his testimony, President Lincoln pursued
a much different approach than our current President when he
believed he needed to act in an extra-constitutional manner to
save the Union. He acted openly and sought Congress's
participation and ultimately approval of his actions. According
to Dr. Fisher, ``[Lincoln] took actions we are all familiar
with, including withdrawing funds from the Treasury without
appropriation, calling up the troops, placing a blockade on the
South, and suspending the writ of habeas corpus. In ordering
those actions, Lincoln never claimed to be acting legally or
constitutionally and never argued that Article II somehow
allowed him to do what he did. Instead, Lincoln admitted to
exceeding the constitutional boundaries of his office and
therefore needed the sanction of Congress. . . He recognized
that the superior lawmaking body was Congress and not the
President.''
So each era brings its own challenges to the conscientious
and systematic pursuit of the rule of law. How the leaders of
our Government respond to those challenges at the time they
occur is, of course, critical. But recognizing that leaders do
not always perform perfectly, that not every President is an
Abraham Lincoln, the years that follow a crisis are perhaps
even more important. And soon, this administration will be
over. So the obvious question is: Where do we go from here? I
believe that one of the most important things that the next
President must do, whoever he may be, is take immediate and
concrete steps to restore the rule of law in this country. He
must make sure that the excesses of this administration do not
become so ingrained in our system that they change the very
notion of what the law is.
That, of course, is much easier said than done. It is not
simply a matter of a new President saying, ``OK, I won't do
that anymore.'' This President's transgressions are so deep and
the damage to our system of government so extensive that a
concerted effort from the executive and legislative branches
will be needed. And that means the new President will, in some
respects, have to go against his own institutional interests.
That is why I called this hearing: to hear from legal and
historical experts on how the next President should go about
tackling the wreckage that this President will leave. I have
asked our two panels of experts who will testify to be forward-
looking, to not only review what has gone wrong in the past 7
or 8 years, but to address very specifically what needs to be
set right starting next year and how to go about it.
In addition to the testimony of the witnesses here today, I
solicited written testimony from advocates, law professors,
historians, and other experts. So far we have received nearly
two dozen submissions from a host of national groups and
distinguished individuals, and I want to thank each and every
person who made the effort to prepare testimony for this
hearing. You have done the country a real service.
Without objection, all of this testimony will be included
in the written record of the hearing. I plan to present the
full hearing record to the incoming administration. The
submissions we have received so far can be seen on my website
at feingold.senate.gov. I hope that many of these
recommendations, along with the testimony we will hear today,
will serve as a blueprint for the new President so that he can
get started right away on this immense and extremely important
job of restoring the rule of law.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
So now let me turn to our Ranking Member and thank him for
his participation. Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you very much, Chairman Feingold.
Thank you, witnesses, for being here today and the preparation
that you have gone through to be here. I look forward to
hearing your testimony, your thoughts, and the parameters that
the Chairman has put forward, although first I have to take
some question about the title of the hearing and the testimony
offered by some of the witnesses here today, as both clearly
are intended to imply that President Bush and certain members
of the administration have undermined or even eviscerated the
rule of law. I have to take issue with the premise.
Clearly, there is a wide range of opinion as to how the
President has conducted the war against terrorism over the past
7 years. I give that. Just as there are differences of opinion
with regard to how the courts and even we in Congress have
handled that unique and unprecedented challenge.
Had the attacks of September 11th and their aftermath
occurred at a different time under a different President, that
President might have done different policy judgments. I am
pretty certain, though, that another President would not have
found him- or herself immune to strong criticism, be it from
the same voices that disagree with President Bush or from a
different group of voices altogether.
At the end of the day, though, the fact that these sorts of
disagreements exist in no way demonstrates that our Nation is
somehow subsisting in a lawless state. And I do not believe
that it is helpful or even really productive to claim that it
is.
Second, the topics that will be raised in this hearing
ranging from a debate over the proper scope of executive power
to electronic surveillance to alleged torture to national
security letters to Government secrecy to the terrorist
detainee policy are certainly not new topics to the Judiciary
Committee or the Subcommittee. By my staff's count, there have
been 24 hearings in this Congress and the prior Congress
addressing the very issues our witnesses today will discuss.
And I appreciate that we are taking forward-looking sight and
not a backward-looking one. But that does not even include,
that number I listed, the times these issues have been raised
at confirmation hearings or agency oversight hearings.
Now, I come from a farming background, so the expression
that comes to my mind is that this is ``well-plowed ground.''
Although these are obviously important issues, no one who has
looked at the lengthy list of hearings we have had on these
issues could legitimately claim that we have not received a
significant amount of attention on these topics.
Furthermore, we have to a certain extent always seen
considerable changes on some of these topics. For example,
earlier this summer we passed the Foreign Intelligence
Surveillance Amendments Act, which, for better or for worse,
expanded the types of circumstances in which our intelligence
agencies must seek court approval before undertaking electronic
surveillance. Additionally, the issue of waterboarding had
previously raised considerable concern. We now have assurances
that the CIA no longer engages in the practice. While I am sure
that knowledge does not satisfy everyone testifying here today,
I think they would at least believe it is a step in the right
direction.
With regard to detainee policy, the Supreme Court's
decision this summer resolved some of the concerns of
administration critics. And, of course, just as our panelists
here today may disagree on whether our Constitution supports
the President's broad very of executive power, I am sure they
would also disagree on whether that same document requires that
we grant Fourth Amendment protections to enemy combatants on
foreign soil.
My final point involves these enemy combatants and my home
State. There are numerous individuals and organizations,
including some represented on our panel today, who have called
for the United States to close the detainee facility at
Guantanamo Bay, Cuba, and relocate individuals being held as
enemy combatants to the disciplinary barracks at Fort
Leavenworth, Kansas. I have personally toured the facilities at
Fort Leavenworth many times, and the facility simply is not
equipped to handle these sorts of non-military detainees.
First, the maximum security wing of the disciplinary
barracks is near capacity with military prisoners and much too
small to handle the Guantanamo Bay population.
Second, Leavenworth cannot sufficiently separate detainees
from the rest of the prison population, which would violate
laws and policies against commingling.
Third, Fort Leavenworth does not have the ability to house
and feed the large number of personnel necessary to secure a
detainee population.
Fourth, Fort Leavenworth perimeter security is inadequate
for a detainee mission.
Fifth, the disciplinary barracks facility is not far enough
away from the edge of Fort Leavenworth to safely house
detainees.
Sixth, the disciplinary barracks does not have 24-hour-a-
day medical facilities, which would require transporting
detainees offsite for after-hours or emergency care.
And, finally, it is unwise to put detainees on the same
installation with the next generation of Army leaders studying
at the Command and General Staff College.
I would ask those who advocate moving terrorist detainees
to my home State to consider these facilities and undertake an
honest assessment of the physical realities of housing and
securing a detainee population. I hope that the next President
and many concerned Members of Congress will visit Fort
Leavenworth to make such an assessment. I am confident any
visitor would conclude that the Fort Leavenworth disciplinary
barracks is not the best option for a detainee population. I
would hope they would take that into consideration.
Mr. Chairman, I look forward to the testimony that the
witnesses will present.
Chairman Feingold. Thank you, Senator Brownback.
We will now turn to the testimony from our first panel of
witnesses. Will the first panel of witnesses please stand and
raise your right hand to be sworn? Do you swear or affirm that
the testimony you are about to give before the Committee will
be the truth, the whole truth, and nothing but the truth, so
help you God?
Mr. Cooper. I do.
Mr. Edwards. I do.
Mr. Koh. I do.
Mr. Schwarz. I do.
Mr. Turner. I do.
Chairman Feingold. Thank you, gentlemen, and you may be
seated. I want to thank you, welcome you. I am extremely
impressed with the caliber of the witnesses on both panels
today. I would ask that you each limit your remarks to 5
minutes, as we do have a lot to discuss. Your full written
statements will, of course, be included in the record.
Our first witness today will be Frederick A.O. Schwarz, Jr.
Mr. Schwarz is a graduate of Harvard University and Harvard Law
School. He is currently senior counsel at the Brennan Center
for Justice at NYU Law School. Mr. Schwarz has had a long and
impressive career in both private practice and public service.
Of particular interest to us here today, in 1975 and 1976, he
was chief counsel for the U.S. Senate Committee to study
governmental operations with respect to intelligence
activities, commonly known as the ``Church Committee.'' In
2007, Mr. Schwarz co-authored with Aziz Huq the book entitled
``Unchecked and Unbalanced: Presidential Power in a Time of
Terror.''
Mr. Schwarz, welcome and you may proceed.
STATEMENT OF FREDERICK A. O. SCHWARZ, JR., SENIOR COUNSEL,
BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW,
NEW YORK, NEW YORK
Mr. Schwarz. Thank you very much, Senator.
You know, you referenced the Church Committee, and the
lesson that was drawn from our work there was that crisis
always makes it tempting to abandon the wise restraints that
keep us free. That has always been true. It is true today.
However, today we have a worse problem than any one in our
history: first, the crisis has gone on for longer; and, second,
there is a new theory, never before voiced by an administration
in power, that the President has the right to ignore or defy
the law. So in that sense, we are repeating history, but we are
in a more dangerous part of history.
I think the title of this hearing actually cuts to the
heart of the matter because the current administration has
ignored and defied the rule of law. And in so doing, it has
undermined America's greatest strength, and that is, our
compliance with the rule of law and our reputation for doing
so. That has not only left Americans less free; it has also
made us less safe.
Now, I make a number of recommendations in my written
testimony. One is that the new President, immediately upon
taking office, should disavow the theory that Vice President
Cheney first came up with 20 years ago that the President has
the right to monarchical powers. That is very, very important.
And I also recommend a number of specific pieces of
legislation, many of which deal with secrecy.
But the one I want to start with and try to cover in this
short period of time is that the next Congress and the next
President should appoint an independent, bipartisan
investigatory commission charged with determining what has gone
right and what has gone wrong with our policies in confronting
terrorism and to recommend solutions. Without full knowledge of
all the facts, we cannot know why wrong steps were taken, and
we cannot take the necessary steps to repair the damage.
We have plenty of problems. Torture--I talk about torture a
lot in my paper, and even Colin Powell and Mr. Turner say that
it is clear that what has been done has undermined America's
greatest strength. Colin Powell put it: ``The world is
beginning to doubt the moral basis of our fight against
terrorism.'' And waterboarding, yes, it has been said they are
not using it, but it has not been disavowed. The Attorney
General refuses to disavow it, and the Vice President
positively embraces it.
These steps toward torture have hurt us enormously with our
allies. We have lot support that we had. Intelligence services,
even in Great Britain, are less willing to cooperate with us.
And France and Germany have ordered the arrest of CIA
officials.
So to avoid repeating history requires understanding
history. We know that excessive secrecy smothers the popular
judgment that gives life to democracy. We need to cut through
that secrecy, and a commission would serve several functions.
First, it would reveal the many as yet unknown aspects of
what our Government has done and, equally important, how
internally it rationalized and evaluated its actions.
Second, documenting violations of the public commitments of
the United States is also to fulfill an important moral
imperative. Renewing our commitment to the rule of law by
confronting and acknowledging our recent failures gives
substance to our national moral commitment, and thus can help
begin to restore our reputation in the rest of the world.
The findings of a commission also would play the important
role of holding accountable those who are responsible for
wrongdoing and for legal and constitutional violations. The
public revelations made by a commission would lodge
accountability for deeds where it belongs and serve as a
warning to future Government officials not to again stray into
the bound of unchecked power.
And, finally, and most importantly, the commission's work
would play an important role in preventing future abuses.
Without the truth, we will not have--without the full truth, we
will not have a sufficient factual basis for informed public
debate on the role of Government activities in a free society
during an extended time of crisis. And it is great that this
Committee is having a debate, a discussion, and people on the
other side who I respect, it is great that you are having a
discussion about what we must do to restore the rule of law and
to have a discussion about whether the President has the power
to break the law.
Now, while the revelations of a new commission charged
rooting out the truth of this most recent period of Government
failures might prove embarrassing to some individuals, and
perhaps even to the country as a whole, that embarrassment is a
price that must be paid. For, as the Church Committee concluded
in one of its reports: ``We must remain a people who confront
our mistakes and resolve not to repeat them. If we do not, we
will decline; but if we do, our future will be worthy of the
best of our past.''
Now, I want to conclude with just one final thought, and
that is, this is not, this should not be, it cannot be, a
partisan issue. The need to restore checks and balances under
the rule of law is far more important than the controversies
that divide Americans. Indeed, understanding the importance of
righting the separation of powers and checks and balances and
restoring respect for the rule of law should bring all
Americans together. If today's President happens to hail from
one party and the congressional majority from another, in the
future those affiliations will surely change. But the core
principle that the preservation of the Constitution's checks
and balances and respect for the rule of law is essential to
effective Government endures, regardless of what party controls
either branch. If we turn a blind eye to this truth, the Nation
will feel the consequences far into the future.
[The prepared statement of Mr. Schwarz appears as a
submission for the record.]
Chairman Feingold. Thank you very much, Mr. Schwarz. Again,
if people could try to keep their remarks to 5 minutes, it
would be helpful.
Mr. Schwarz. Did I manage to, or did I--I am sorry.
[Laughter.]
Chairman Feingold. We are pleased you are here.
Mr. Schwarz. The clock is not working on this thing here.
Chairman Feingold. We'll get the clock going. But I was
delighted to hear your remarks.
Our next witness is Charles Cooper. Mr. Cooper, a graduate
of Yale University and Harvard Law School, is a founding member
and chairman of the law firm of Cooper & Kirk, where his
practice is concentrated in the areas of constitutional,
commercial, and civil rights litigation. Mr. Cooper has over 25
years of legal experience in Government and private practice
and was named by the National Law Journal as one of the ten
best civil litigators in Washington. He served as Assistant
Attorney General for the Office of Legal Counsel in the Reagan
administration.
Mr. Cooper, thank you so much for being here today, and you
may proceed.
STATEMENT OF CHARLES J. COOPER, PARTNER, COOPER & KIRK, PLLC,
WASHINGTON, D.C.
Mr. Cooper. Thank you very much, Chairman Feingold and
Ranking Member Brownback, for inviting me to this hearing.
Before discussing particular separation of powers issues that
have been at the forefront of today's controversy, I think it
is important to remember the extraordinary context in which
these issues have arisen.
Just 5 days ago we marked the seventh anniversary of the
September 11th terrorist attacks, and we entered into the
eighth year of an out-and-out war with those who seek the
destruction of our Nation and our way of life.
In perilous times such as these, with regard to momentous
and difficult issues such as those that have confronted our
Government, can the imperative to grant the Executive the
benefit of genuine legal doubt be any greater?
Like Robert Jackson, the former Attorney General and
Supreme Court Justice, I believe the President, especially in
time of war, is surely entitled to ``the benefit of a
reasonable doubt as to the law.''
This has traditionally been the view of the President's
legal advisers in the Office of Legal Counsel. And I feel bound
also to say this about the lawyers that have recently served in
OLC: I cannot imagine a more important, yet more difficult,
more trying, more thankless, and, indeed, it now appears, more
perilous job for a lawyer than being a legal adviser to the
President and the administration in the weeks and months
following 9/11. I give thanks that the office was not
confronted with so grave and difficult a responsibility during
my time at OLC, and I am grateful to the men and women who have
served their country in that office under these awful
circumstances.
The bill of particulars that the administration's harshest
critics have offered in support of the charge that the
administration has abandoned the rule of law appears to focus
on four general areas of concern, and I address each of those
in my written statement, but in these remarks I will focus only
on issues related to the detention and prosecution of foreign
terrorists and enemy combatants.
The debate over these issues more than any other of the
issues that have arisen in the last 8 years has been settled in
our courts. And in the Federal courts of appeals--that is, in
the courts that are bound to follow faithfully Supreme Court
precedent--the administration is undefeated in the major war on
terror cases. In those cases--Rasul, Hamdi, Hamdan, and
Boumediene, of the 12 votes cast by courts of appeals judges,
11 of them came down on the side of the administration. Now,
that judicial acceptance of the administration's positions
surely established that they were well grounded in Supreme
Court precedent.
One can hardly fault the administration, for example, for
failing to predict the Boumediene Court's abandonment of a
venerable case like Eisentrager. The Boumediene case overturned
the Military Commission Act of 2006, which was Congress's
carefully considered statutory framework for determining the
status of Guantanamo detainees. Thus, the five Justices in the
Boumediene majority essentially ignored Justice Jackson's
famous formulation in the steel seizure case that when the
President acts pursuant to an act of Congress, his authority
is, in Jackson's words, ``at its maximum'' and should be
accorded ``the strongest of presumptions and the widest
latitude of judicial interpretation.''
Indeed, prior to the war on terror cases, the Supreme Court
had uniformly accorded the President great deference in the
area of national security and foreign and military affairs.
That a bare majority of the Supreme Court has now effectively
cast aside that long history of deference in an area so
critical to our national security is, I would submit, the most
significant development in the separation-of-powers area to
come out of the last 8 years. If you want to know my advice on
what the next President and Congress or Senate should do to
ensure that the rule of law as embodied in our Constitution
will be respected, it is this: appoint and confirm judges and
Justices who will respect the constitutional prerogatives of
the other branches of Government.
One last point while I am on the subject of the Supreme
Court. A large majority of the Court's decisions each term
reverse the opinions of lower court judges, and the Court
invalidates congressional statutes virtually every term. In
other words, every term the Court declares that Congress and
lower court judges got the law wrong. But these judges and
Members of Congress are presumed, quite properly, to make good-
faith efforts to interpret the law honorably and to the best of
their abilities. Yet that presumption is typically not accorded
to members of the executive branch.
Which brings me to something that the next administration
and Congress, in my opinion, most assuredly should not do, and
this will conclude my testimony, Senator Feingold. It should
not threaten executive branch lawyers from the prior
administration with ethical inquiries and criminal
investigations. Even tranquil times, let alone times of war and
national peril, engender serious debate and vigorous emotional
disagreement over matters of policy and law. If disagreement
between lawyers is sufficient to provoke criminal
investigation, civil liability, or bar discipline proceedings,
why would anyone--of either party or no party--elect to serve
as a lawyer for the Government?
Thank you, Senator Feingold.
[The prepared statement of Mr. Cooper appears as a
submission for the record.]
Chairman Feingold. I thank you, Mr. Cooper.
Our next witness is former Congressman Mickey Edwards.
Congressman Edwards was a Republican Member of Congress from
Oklahoma for 16 years, from 1977 to 1993, during which time he
served on the House Appropriations and Budget committees and
was a senior member of the House Republican leadership as
Chairman of the party's Policy Committee. After leaving
Congress, Edwards was on the Harvard faculty for 11 years,
where he taught at both the Kennedy School of Government and
Harvard Law School. For the past 4 years, he has been on the
faculty of Princeton University Woodrow Wilson's School of
Public and International Affairs. Congressman Edwards is also
on the board of directors on the Constitution Project. He was
one of three founding directors of the Heritage Foundation,
national chairman of the American Conservative Union, and he
has chaired the annual Conservative Political Action Conference
five times.
Congressman Edwards, thank you for being here and for your
time today. You may proceed.
STATEMENT OF MICKEY EDWARDS, BOARD OF DIRECTORS, THE
CONSTITUTION PROJECT; LECTURER, WOODROW WILSON SCHOOL OF PUBLIC
AND INTERNATIONAL AFFAIRS, PRINCETON UNIVERSITY; FORMER MEMBER
OF CONGRESS 1977-1993; AND FORMER CHAIRMAN, HOUSE REPUBLICAN
POLICY COMMITTEE, WASHINGTON, D.C.
Mr. Edwards. Thank you, Mr. Chairman, members of the
Committee. On behalf of myself and the Constitution Project, I
want to thank you for the opportunity to discuss the rule of
law as it pertains in particular to the prerogatives and
obligations of the Congress. I have become increasingly
concerned about the failures of Congress to meet its
constitutional responsibilities.
There are a great many important questions, substantive
policy questions, to be face. Not one of those issues--and not
all of them combined--is as important as remaining a Nation
governed by the rule of law under our Constitution. In our
case, the principal law that governs us and to which all other
laws are subordinate is the Constitution, which spells out the
powers and limits on the powers of the Government as a whole
and of the component branches of the Government.
There has been a great deal of criticism directed at the
President over actions viewed by many--and by me--as
overstepping the proper bounds of his authority and violating
the Constitution. I have no intention of renewing those
criticisms here today. I am not here to point a finger of blame
at President Bush.
So let me be clear. The current threat to our system of
separated powers and the protections it affords stems not just
from executive overreaching but also from the acquiescence of
the Congress. America's Founders envisioned a system in which
each branch of Government would guard its prerogatives and meet
its obligations.
But for years, the Congress has failed to live up to its
responsibilities as the representative of the people.
Congress's constitutional role includes primary authority over
spending priorities, tax policies, and whether or not to go to
war. All of those decisions require the gathering of the
information necessary to act judiciously and a willingness to
see to it that Congress's decisions are complied with.
Instead of fulfilling this trust, Congress has too often
been silent. When the President, in a direct challenge to
Article I, Section 7 of the Constitution, declared that he
would decide for himself whether he was bound by the laws he
signed, both Houses of Congress held hearings but failed to
pursue the matter any further. Particularly distressing to me
as a former member of the Republican leadership was the
reaction of the Republican members of the House Judiciary
Subcommittee who indicated no concern at all about a
President's declaration that he had the right to disregard the
laws that the Congress had passed.
When the President declared that he had the authority to
disregard Federal law that required a judicial warrant before
conducting electronic surveillance on American citizens,
Congress held hearings but never required compliance with its
requests for full disclosure about how the program was
conducted. And the Congress acquiesced to the President's
demands that the law be changed without obtaining the
information it needed.
When the President declared that the Congress could not
question members of his staff to determine whether laws had
been broken or new laws were needed, nearly half the members of
the House--members of my party, which had always said it
favored strict construction--walked out rather than hold White
House staff members in contempt. And the Congress was forced to
file a civil suit, as any citizen might do, as though it were
not an equal branch of Government.
When the Congress has required information about the
undertaking of covert actions or needed access to information
the Executive has classified, the Congress has permitted the
Executive to dictate who among the Members of Congress and
their staffs may have access to that information, the result
being that information that is available to hundreds of
executive branch staff members is withheld not only from
congressional staff members but from Members of Congress
themselves. And with this, the Congress meekly complies.
Every Member of Congress takes an oath to uphold and defend
the Constitution. Once that oath is taken, loyalty to the
Constitution takes primacy over loyalty to party or individual.
That is not what has happened in recent years.
Do Members of the Senate recall that the President is the
head of state but not the head of Government? Do they
understand that they are members not merely of a separate
branch of Government, but of a branch that is completely the
equal of the Presidency and in many areas--taxing, spending,
the power to declare war--the pre-eminent branch?
Mr. Chairman and members of the Committee, do not let it be
said that what the Founders created, you have destroyed. Do not
let it be said that on your watch, the Constitution of the
United States became not the law of the land but a suggestion.
You are not a parliament; you are a Congress--separate,
independent, and equal. And because of that you are the
principal means by which the people maintain control of their
Government.
Mr. Chairman, the issue is not what the next President
should do. It is what the next Congress should do.
Thank you.
[The prepared statement of Mr. Edwards appears as a
submission for the record.]
Chairman Feingold. Thank you, Congressman Edwards. Your
testimony I think is terribly important much beyond the
confines of this hearing. I think it is a historic statement,
and I welcome it.
Our next witness this morning is Professor Robert Turner of
the University of Virginia Law School. Professor Turner co-
founded the Center for National Security Law in April 1981 and
has, with a few breaks for Government service, served as its
Associate Director since then. A veteran of two Army tours in
Vietnam, he has worked for the Senate Foreign Relations
Committee, at the Pentagon, and the State Department, and has
served as three-term chairman of the ABA Standing Committee on
Law and National Security. Professor Turner attended Indiana
University and the University of Virginia Law School.
Professor Turner, it is good to see you again. Thank you
for being here, and you may proceed.
STATEMENT OF ROBERT TURNER, PROFESSOR, GENERAL FACULTY,
ASSOCIATE DIRECTOR, CENTER FOR NATIONAL SECURITY LAW,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA
Mr. Turner. Thank you, Mr. Chairman, Senator Brownback, and
members of the Committee. I am deeply honored to be here again
before this Subcommittee because the topic is one of great
importance to the Nation: ``Restoring the Rule of Law.''
Ironically, that was the subtitle to one of my books
criticizing the War Powers Resolution.
My central premise is that we have a hierarchy of laws in
this country, with the Constitution at the top. The President
is not breaking the law when he violates a statute he believes
to be unconstitutional. He is upholding the supreme law of the
land. And, sadly, over the past three or four decades, Congress
has been flagrantly violating the Constitution in a variety of
ways.
As a Senate staff member in 1976, I drafted a lengthy
memorandum explaining why legislative vetoes are
unconstitutional. Seven years later, in the Chadha case, the
Supreme Court reached exactly the same conclusion on a number
of grounds. Sadly, rather than eliminating the hundreds of
existing legislative vetoes already on the books, Congress
responded by enacting more than 500 new patently
unconstitutional legislative vetoes--thumbing its nose at the
Supreme Court and the Constitution in the process. This is the
single most common reason Presidents of both parties have found
it necessary to issue signing statements.
The greatest congressional lawbreaking by far has occurred
in the area of foreign affairs. This is an area that is not
understood by many Americans. I did my doctorate on it, 1,700
pages, and have spent close to 40 years studying it. In my
prepared statement, which runs some 60 or 70 pages, I include
quotations from Founding Fathers like George Washington, Thomas
Jefferson, James Madison, Alexander Hamilton, John Jay, and
John Marshall, demonstrating their view that the Constitution
gave exclusive control over foreign policy to the President--
subject only to narrowly construed ``exceptions'' given to the
Senate and to the Congress--when it vested the executive power
in Article II, Section 1 in that office. And I demonstrate in
my testimony that there is a long history of agreement on this
point by all three branches of Government.
The Federalist Papers explained that, because Congress
could not be trusted to keep secrets, the new Constitution had
left the President, and I quote, ``able to manage the business
of intelligence as prudence might suggest.'' Throughout our
history that was the collective understanding until 35 years
ago, when Congress began usurping power in this area.
The first witness said that never before in our history has
a President claimed the power to ignore a law. This is
absolutely absurd. The first example probably was somebody--you
cannot come from the University of Virginia and not mention
Thomas Jefferson--who, upon assuming office, declared he was
not going to be bound by the Alien and Sedition Acts because
they were unconstitutional. They violated the First Amendment.
FDR, in the famous Supreme Court Levin case, issued a
signing statement declaring he was not going to enforce a rider
stuck on an urgent supplemental appropriations bill for World
War II that said no money could be used to pay the salaries of
three people believed by some to be Communists in Government
service. During that debate, many members said this was a
``Star Chamber process.'' Congress was trying and punishing
individuals without due process of law. Ultimately, the Supreme
Court declared it was an unconstitutional bill of attainder.
I quote John Marshall in Marbury v. Madison as declaring,
and I quote, ``a legislative Act contrary to the Constitution
is not law.'' Ergo, the President's duty to see the laws
``faithfully executed'' does not include unconstitutional Acts
of Congress.
In Marbury v. Madison, in language often excluded from
modern casebooks, Chief Justice Marshall noted the Constitution
grants to the President a great deal of unchecked power. We
hear today every power of a democracy must be checked. That was
not the understanding of the Constitution by the Framers.
For example, to quote from Marshall in Marbury: ``whatever
opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no
power to control that discretion.''
As recently as 1969, Senator J. William Fulbright, Chairman
of the Senate Foreign Relations Committee, stated in a speech
at Cornell Law School, ``The pre-eminent responsibility of the
President for the formulation and conduct of American foreign
policy is clear and unalterable.'' Soon thereafter, in the
anger and heat of the Vietnam War, Congress began a rampage of
lawbreaking.
Finally, Mr. Chairman, I show how this congressional
lawbreaking has done extraordinary harm to our national
security and the cause of world peace. I explain how an
unconstitutional 1973 appropriations rider snatched defeat from
the jaws of victory in Indochina and led directly to the
slaughter of millions of lives we had solemnly pledged to
defend in Cambodia and South Vietnam. I show how the horribly
partisan congressional subversion of our peacekeeping
deployment in Beirut a decade later led directly to the
terrorist attack that killed 241 Marines. I document the role
of that incident in persuading Osama bin Laden to attack
Americans on 9/11 because he concluded we could not accept
casualties. And I also show how unconstitutional constraints on
our Intelligence Community, including the Foreign Intelligence
Surveillance Act, prevented it from protecting us from those
attacks.
Mr. Chairman, my time is up. I look forward to taking your
questions at the appropriate time.
[The prepared statement of Mr. Turner appears as a
submission for the record.]
Chairman Feingold. I thank you, Professor Turner.
Our next witness is a dear friend of mine, but he also is
better known, of course, as Harold Koh, the Dean and Professor
of International Law at Yale Law School, where he has taught
since 1985. Dean Koh attended Harvard College and Harvard Law
School, and as I indicated, we had the pleasure of studying
together at Oxford. From 1998 to 2001, Dean Koh served as
Assistant Secretary of State for Democracy, Human Rights, and
Labor. Before beginning work at Yale Law School, he practiced
law at the Washington, D.C., law firm of Covington & Burling
and worked in the Office of Legal Counsel at the Department of
Justice.
Dean Koh, thank you for being here, and you may proceed.
STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C. & BERNICE
LATROBE SMITH PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL,
NEW HAVEN, CONNECTICUT
Mr. Koh. Thank you, Mr. Chairman. As you mentioned, in my
career I have had the privilege of serving our Government in
both Republican and Democratic administrations and at the
Justice Department and the State Department.
Seven years ago, our country was properly viewed with
universal sympathy as the victim of a brutal attack. But,
tragically, the current administration chose to respond with a
series of unnecessary and self-inflicted wounds, which you
catalogued in your opening statement, which have gravely
diminished our standing and damaged our reputation for respect
for the rule of law. These violations have been extensively
documented, so in my written testimony, I have tried to answer
the two questions you raised: first, to look at the vision of
constitutional power that the administration has invoked to
justify its policies; and, second, to identify four steps that
the next President and Congress can take to reverse the damage
and restore the vision of checks and balances.
First, the constitutional vision. Before September 11th, as
a matter of constitutional law, our national security policy
was conducted within four premises.
First, that under the Constitution, executive power
operates within a constitutional framework of checks and
balances, resting on shared institutional powers, a vision set
forth in Justice Jackson's opinion in the steel seizure case.
The simple idea is that checks and balances do not stop at the
water's edge.
A second idea that within that realm of government
activity, there are no persons, practices, zones, or courts
outside the law.
Third, that the President may not invoke legislative
authority to impinge on civil liberties without clear
legislative statement.
And, fourth, that except for the right to vote and serve on
juries, the distinctions between citizens and aliens,
especially with regard to social and economic rights, are
modest.
Well, only 7 years later, that constitutional world has
been turned upside down, each of these four aspects. The
current administration has urged not a system of checks and
balances, but a theory of unfettered power based on Article II
and the Supreme Court's decision in U.S. v. Curtiss-Wright
Export Corporation. They have argued for a system of law-free
zones--Guantanamo; law-free practices--extraordinary rendition;
law-free persons--enemy combatants; and law-free courts--
military commissions, all of whom they say are exempt from
judicial review.
Third, the executive branch has justified large-scale
infringements on civil liberties based on vague legislative
enactments, particularly the Authorization of the Use of
Military Force Resolution of 2001. And as we all know, the
conduct of the war on terror has led to sharp and growing
distinctions between citizens and aliens, especially those of
Muslim, Middle Eastern, and South Asian extraction with regard
to their political rights.
And in recent years, we have really heard an even more
disturbing claim: that, once taken, executive action is a kind
of law unto itself. With respect to torture, NSA surveillance,
state secrets. signing statements, and preemptive pardons, the
administration has tried to use constitutional claims of
executive authority to change the rules.
One example you remember well, Senator, came in January
2005. Before the NSA program came to light, you asked Attorney
General-designate Gonzales, ``Could the President violate
existing criminal laws and spy on U.S. citizens without a
warrant?'' He said it was a ``hypothetical situation'' and
``not the policy of the President to authorize actions in
contravention of criminal statutes.'' But, late, when it turned
out that this was going on, and you asked him again, he said he
had not misled Congress because once the President authorized
it, it had become legal under the President's constitutional
powers and could not contravene any criminal statute.
The same line of reasoning was applied in the infamous
torture opinion where the claim was that if Congress tries to
regulate interrogations, it violates the Constitution's vesting
of the Commander in Chief power; and further argued that those
who torture at the direction of the Commander in Chief cannot
be prosecuted.
What this brings to mind is President Nixon's statement:
``If the President does it, it means it is not illegal.'' But
if that is true, then the President's word alone is law, and
the system of checks and balances in the Constitution does not
exist.
This has led to a series of problems. It has clouded our
human rights reputation. It has blunted our ability to
criticize others. It has made us less safe and less free. And
it has had huge costs for our foreign policy. And so in the
second part of my testimony, I set forth four concrete steps to
put our house back in order: closing Guantanamo through an
interagency process; a series of executive orders to roll back
some of these provisions; the introduction of national security
legislation which could bring about repeals of some of the
worst provisions of law; and, finally, a number of steps to
reaffirm our respect for international national and
institutions.
In closing, let me say, Mr. Chairman, that the vision of
unchecked executive authority offered by the administration and
some of the witnesses offends the vision of shared national
security power that is central to what Justice Jackson called
in Youngstown the ``equilibrium of our constitutional system.''
Our Government is defined by the rule of law. The rule of law
defines who we are as a Nation and a people. If this country
does not stand for the rule of law, we really do not stand for
anything.
And so I think we have to remember that in the grand scheme
of things, as difficult as the last 7 years have been, they
loom far less important than the next 8 years, because the next
8 years will determine will the pendulum of U.S. policy swing
back from where it has been pushed or will it stay stuck in
what you could call a ``new normal'' position.
To regain our standing, I think the next President and
Congress must unambiguously reassert our historic commitment to
the rule of law as a major source of our moral authority.
Thank you.
[The prepared statement of Mr. Koh appears as a submission
for the record.]
Chairman Feingold. Thank you so much, Dean Koh.
Senator Brownback, I think we will begin with 7-minute
rounds for this panel.
Senator Brownback. That is fine.
Chairman Feingold. Thank you. Ohio State University law
professor Peter Shane submitted written testimony in which he
argues that we need to reinstate a rule-of-law culture in
Government. As he explains, ``The written documents of law have
to be buttressed by a set of norms, conventional expectations,
and routine behaviors that lead officials to behave as if they
are accountable to the public interest and to legitimate
sources of legal and political authority at all times, even
when the written rules are ambiguous and even when they
probably could get away with merely self-serving behavior.''
I think this cuts to the core of the problem that the next
President will face. After 8 years of disregard for the rule of
law at the highest level of Government, how can we instill new
norms and expectations that permeate throughout the Federal
Government? I would ask Dean Koh and Mr. Schwarz if they could
address this. Dean Koh?
Mr. Koh. Yes, Senator. The answer, I think, is in four
parts.
First, the message must come from the top. The President
takes an oath to preserve, protect, and defend the Constitution
of the United States of America. And so it takes a President,
an Attorney General, a White House counsel, a head of an Office
of Legal Counsel to send this message of commitment to the rule
of law. And it can be done. After Watergate, President Ford,
Attorney General Levi, Phil Buchen all worked together with
Congress to restate a culture in the White House and in the
executive branch of rule of law.
Second, the process has to be made transparent and
inclusive. There should be no secret legal opinions. We need
full vetting by good lawyers. In the Washington Post, they have
had coverage of Bart Gellman's book ``Angler.'' One of the
issues raised was how a secret legal opinion on FISA was being
challenged as making no sense, and former Deputy Attorney
General Comey said, ``No good lawyer would ever rely on that
opinion.'' But that opinion is still not available for anyone
to look at it, even though people were relying on it to violate
the law.
Third, the President has to act quickly to take steps that
will reverse the trend and not adopt half measures. And I have
outlined in my testimony a package of suggestions: closing
Guantanamo, executive orders, introducing legislation, taking a
number of steps with regard to international law.
And, finally, I think the President should create new
structures. One structure that we propose is a national
security law Committee which could be chaired by the Attorney
General and guarantee that the President get good legal advice.
It might make sense for Congress to consider creating a
congressional legal adviser on the other side who could examine
the kinds of legal justifications that are being brought
forward.
The key idea here is that the President has to report what
he does to people who do not work for him, because they are
ones who will be inclined to tell him something he does not
want to hear, and to report to people whose job it is to look
not to what he wants but what do the Constitution and laws
direct.
Chairman Feingold. Thank you, Dean Koh.
Mr. Schwarz?
Mr. Schwarz. I would agree with what the dean said. I would
supplement slightly.
The leadership side, I think it has to come from the
Congress as well as the President. And in both cases,
understanding by the people of where we have gone wrong and how
it has hurt us contributes to people wishing to be leaders. And
the public cannot do their job if secrecy smothers what has
happened. So those things are all connected--the people, the
leaders, secrecy, and the way in which leaders lead and the
public demands that they lead.
Transparency is obviously necessary. I think all the
witnesses today would agree we should have more transparency.
John Podesta in his testimony later is very good on what we
should do about too much secrecy. My idea of a commission I
think is helpful in that.
Then the public needs to understand some of the key
arguments, which are not being made forcefully enough to the
general public. One is that when we abandon the rule of law,
when we go against our own values, we are actually making this
country less safe, because Muslim recruiters get talking points
against us and our allies are less likely to join with us.
The second thing the public needs to understand, which will
then help produce the leadership, is that the--we have
separation of powers of a very good reason. It makes Government
work better. And if you do not have a debate surrounding
important issues, you are far less likely to get the decision
right and you are far more likely to get the decision wrong.
Chairman Feingold. Thank you, Mr. Schwarz.
I will go to Congressman Edwards, and I will have a follow-
up for Mr. Schwarz on this one as well.
Congressman, I think your point that Congress has a
significant role to play in preventing the executive branch
from overreaching is obviously very important. No one was more
disappointed and vocal about the congressional response to the
revelations about warrantless wiretapping than I was. I think
we abdicated our responsibility to the country and to the
Constitution by not taking much more significant action once we
learned what was going on.
In this case, we had the President's party controlling the
Congress at the time of the revelations, and that could be the
situation in the future, of course. So what would be your
advice for how the minority party should handle such a
situation in the future? And how can we make it more likely
that a majority party in Congress that is also of the
President's party will be willing to part with him or her on
these important issues?
Mr. Edwards. Well, I want to go back to something Mr.
Schwarz just said. You have to frame the issues in a way that
gets the public involved in understanding why we have a
separation of powers. When the party, my party, you know, as
the majority with a Republican President, acquiesced to what
the President was asking even when it went beyond
constitutional authority, your party responded mostly with
policy debate--with policy debate about where people should be,
whether it should be at Guantanamo. You know, that is nothing--
never was the question of not policy but process raised about
the fact that we preserve our liberties by virtue of having the
people's branch retain its constitutional authority.
Members of the majority party were never challenged on
that. It was all a matter of policy, and you cannot win that
way. And the Congress has authorities it does not use. The
Congress has the power to withhold funding, the power to hold
up appointments. If you really want to fight to preserve not
your power, not your authority, but your responsibilities and
obligations under the Constitution, then you have to use all
the tools that are found in the first section of the
Constitution. And I have not seen it happen. I mean, I used the
example a moment ago about the executive branch telling the
Congress--telling the Congress of the United States--you know,
whether or not they would enforce a contempt citation, telling
the Congress of the United States whether we will let you as a
United States Senator have access to information that hundreds
of executive branch staff people have. And the Congress goes--
you have to engage on that front and say, ``We are not going to
put up with it. And if you insist, Mr. President, you are going
to pay a price. You are going to pay a price in appointments.
You are going to pay a price in withholding of funding,'' and
so forth.
Chairman Feingold. Of course, I could not agree with you
more. I will turn to Senator Brownback in a second, but I just
wanted to see if Mr. Schwarz had any thoughts on this point in
light of your service on the Church Committee.
Mr. Schwarz. Well, I think first that it is important that
Congress overcome partisanship. I said these issues should not
divide Americans. History tells us we have in the past, FDR and
Lincoln in their Cabinets brought in members of the opposite
party or political opponents. David Boren's terrific new book,
a Senator from Oklahoma, talks about how when he was a rookie
Senator, he had made a vote which Howard Baker, the Republican
leader of the Senate, knew was going to hurt him in Oklahoma.
And Howard Baker went up to him and said, ``You know, you ought
to change that vote. You have not really understood it, and it
is going to hurt you.'' That is a culture which we need to
restore.
Now, on the Church Committee--do you want me to make a
comparison between--
Chairman Feingold. Just very briefly, because I really
should call on Senator Brownback.
Mr. Schwarz. OK. The key issues that we found were
troublesome--ambiguous laws, implicit orders to violate the
law, excessive secrecy and lack of oversight--are all problems
today. But I do think that the willingness and assertion of
this administration that the President can violate the law--and
when you look carefully at the Constitution, they will violate
the Constitution--is something which is totally new and which
this Committee and others ought to put to rest, and the new
President, whoever it is, ought to renounce upon taking office.
Chairman Feingold. Thanks so much.
Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman, and I want to
thank the panelists for their thoughts in considering these
matters. You have obviously put a lot of consideration into it,
and I appreciate your doing it.
Mr. Cooper, I was struck, you said that 11 of 12 circuit
court judges have ruled in favor of the administration. I want
to make sure I am clear on what you were saying of that on
these cases. Is that correct?
Mr. Cooper. That is right, Senator Brownback. In the war on
terror cases that the Supreme Court has decided, and it has
decided them uniformly against the administration, but by very
close votes, either three or usually four Justices in dissent.
In every one of those cases, the administration won the case in
the court of appeals and by lopsided votes. There was only one
court of appeals judge who did not agree with the validity of
the administration's legal analysis and views in those cases.
Now, the court of appeals are not free, as the Supreme
Court is, to break with Supreme Court precedent. They are bound
to conscientiously and faithfully apply Supreme Court
precedent. The point I was making Senator Brownback is that it
is simply not reasonable to charge that the administration in
its analysis and its conclusions that led to the decisions that
were at issue in those cases, those four war on terror cases,
was indifferent to, let alone contemptuous of, the rule of law.
It carefully applied Supreme Court precedent, and at least the
court of appeals uniformly thought they were actually right.
But even if we accept for the moment that the majority in
each one of those cases in the United States Supreme Court got
it right and the dissent was wrong, and that, therefore, the
administration was wrong on the legal call, it cannot
reasonably or responsible be said that the administration was
indifferent to the rule of law.
Senator Brownback. I did not know that number.
Dean Koh, good to see you again here. I am certain you are
not suggesting moving the Guantanamo Bay detainees to Fort
Leavenworth disciplinary barracks--is that correct?--in your
testimony.
Mr. Koh. In my testimony I said that there were four
categories of detainees. As I understand it, there is a very
tiny number of high-value detainees. They have a right of
habeas corpus now under the Supreme Court's decision, and so
they could be moved to supermax facilities in the United
States. Where they move them obviously is a decision to be made
by the executive branch.
One thing I can say about--
Senator Brownback. But you agree they cannot be mixed with
the current population of prisoners. Is that correct?
Mr. Koh. I think we have in the United States many
dangerous detainees who are held separately in special
facilities, and we have had that for a long time.
I would say to say about Mr. Cooper's point, however,
that--
Senator Brownback. Could I finish this point? Because I
have got limited time, and you can come back on the other one.
I hope you would look and review particularly a situation like
the Leavenworth disciplinary barracks, you are advocating the
closing of Guantanamo Bay, to look at the problems of doing it
at least in that facility. Now, maybe there is a place in
Wisconsin that fits or works, but the disciplinary barracks in
Leavenworth does not.
As one advocates that position--and I respect you for doing
that--there is a very practical side to then how you handle
that, and this is one that--I have been there multiple times. I
do not know if you have. I have not been incarcerated there,
but I have been there many times. And I just hope you will look
it over.
Mr. Koh. Senator, Timothy McVeigh was held in a facility in
Colorado and was tried there, and he was the adjudicated killer
of thousands of people in the terrorist attack on U.S. soil.
There is no suggestion that he was not held safely or without
due process of law.
Senator Brownback. Professor Turner, I want to ask you, if
I could, it has been suggested that the Congress would withhold
funding or make it conditional if the administration does
things along this line that the Members of Congress would look
at as questionable. I take it you would have great challenge to
that on legal grounds, on constitutional grounds. Is that
correct?
Mr. Turner. Senator, the question is: Could Congress do it
directly? If Congress attempts to do something by conditional
appropriation, that it is not permitted under the Constitution
to do directly--for example, tries to usurp, if Congress were
to pass an appropriation bill and say no money can be used for
combat operations in Cambodia, for example, which they, in
fact, did and killed over 20 percent of the population of
Cambodia as a result--that I believe would be unconstitutional.
The best example I can give you: What if Congress were to
pass a rider saying no funds shall be available for the
judiciary if the Supreme Court declares any Act of Congress to
be unconstitutional--thus trying to usurp judicial review?
Now, there is a much stronger case for that under the
Constitution than there is for usurping the Commander in Chief
power, because judicial review is an implied power that John
Marshall gave us in Marbury. I think it was intended by the
Founding Fathers, I like it, but you cannot look at the
constitutional text and say, ``Here it says the Supreme Court
can overturn an Act of Congress.'' But that has been our law.
If Congress were to pass a law saying no money shall be
available for the judiciary unless the courts overturn Roe v.
Wade--or if they overturn Roe v. Wade--my point is that would
be an unconstitutional usurpation. And if we allowed this type
of conditional appropriation, we would totally destroy the
doctrine of separation of powers.
Senator Brownback. Congressman Edwards, I have appreciated
your career and all you have done, and I am looking forward to
the football game. Hope we do well in it. We will see, with how
strong Oklahoma is.
Once in a while the Supreme Court gets it wrong, too: the
Dred Scott decision, Korematsu, Plessy v. Ferguson. Are there
things that we should look at, or is there anything that
controls the Supreme Court in cases like that, other than, I
guess, just time and wearing it out, that the society says,
``No, this is wrong''? When you look at it, we can look back on
those decisions and say, ``That was a horrible decision by the
Supreme Court.'' You know, you have looked at the Congress
toward the President, and your comments are there, and I
respect and I understand those and I think those are good. Is
there any limitation on the Court?
Mr. Edwards. Well, at the lower courts, you always have the
judicial review. Congress has the authority to limit
jurisdiction, as you know. But, you know, generally, it is a
matter of over time we get it right. It is not just the Supreme
Court. I mean, we had the Alien and Sedition Acts. We had the
imprisonment of the Japanese-Americans.
We have this tendency sometimes to get it wrong, but I am
not advocating, you know, that the Congress step in and, you
know, try to second guess the courts. There are cases where
policy can be made by the legislative branch. But, you know, I
am not a scholar of the Supreme Court, and I do not pretend to
be. But you are right, I mean, I agree with you there have been
a lot of very bad decisions over the years, maybe starting with
Marbury v. Madison.
Senator Brownback. I will leave that alone.
[Laughter.]
Senator Brownback. Thank you, Mr. Chairman.
Chairman Feingold. I want to thank Senator Cardin for
attending the entire first panel before he had to leave, and
now I am very delighted to turn to Senator Whitehouse for his
round of questions.
Senator Whitehouse. Thank you, Chairman. First of all, let
me tell you how much I appreciate that you are holding this
hearing. You have two very large and very distinguished panels,
and it is a vital question that you inquire into. If only we
had more time, because the extent to which the rule of law has
been challenged by this administration, it is so broad that we
could probably spend 2 hours on 10 different subsets of it.
I would like to ask about two issues. I am a bit of a
student of separation of powers, and I am firmly convinced of
its importance to the preservation of liberty in our country.
But within the executive branch, we have over time through the
administrative apparatus we have set up, both independent
commissions and executive agencies, a bit carved up or cut into
or perhaps the best way to describe it would be ``required
structure'' of executive decisions. The Administrative
Procedures Act has requirements before an agency can act. A
responsible office holder who takes his oath of office
seriously in the light of the duties of the agency he serves
and the office that he occupies or she serves or she occupies
has certain constraints around them. They run in opposition to
the unified executive theory in which everybody works for the
President, everybody is supposed to do his bidding. As we read
in a very impressive pair of articles in the Washington Post
recently, it is the President's view that he decides what the
law is. And there is impatience if not outright hostility to a
control over the process by which decisionmaking takes place in
the executive branch.
I would be interested in your thoughts on to what extent we
have created and should preserve a structure within the
executive branch that controls executive decisionmaking. Some
of it is quite formal, like the Administrative Procedures Act
and the statutory missions of the different agencies. Some of
it is a little bit more practical, and in some cases not even
derived from Congress. One of my favorite examples is the rule
that the Department of Justice developed over time to prevent
White House officials from meddling in Department of Justice
criminal and prosecution decisions, which was a very important
firewall, was monitored by this Committee, and was
systematically disassembled by the Bush administration until
they satisfied themselves that, for instance, Vice President
Cheney's legal counsel or Karl Rove now had access to
prosecutors in the Department of Justice to talk with them
about ongoing cases without what I would consider adult
supervision.
So there is a broad array of these things, and if you have
anything to say about that sort of--for want of a better word,
executive administrative separation of powers, I would be
interested in hearing that, because we overlook that, I think.
Mr. Schwarz. Maybe I could take a try on that. Without
having those auxiliary devices within the executive branch,
given the hugeness of the Federal Government, Congress cannot
possibly do that which it should do. I mean, we all think
Congress could do more. But unless you have within the
executive branch internal checks and balances, Congress cannot
do the job given the size of the Federal Government. So there
are things like Inspector Generals that I think are lawful and
appropriate and often work well.
And then the other observation I would make from recent
events is that one of the things that went wrong with the
current administration was they fenced out from decisionmaking
on matters of such importance as the Geneva Convention and
torture. They fenced out people within the executive branch who
would bring real expertise to that question--the State
Department, military lawyers, and military generals. All of
those people--
Senator Whitehouse. The NSA lawyers, for instance, were not
allowed to read the OLC opinion on the program that they
themselves were administering.
Mr. Schwarz. Exactly. And so that is an observation of how
dangerous it is when not only do you not have the check of the
Congress working the way the Constitution intended, but within
the administration you have a tiny coterie of people who were
deciding things that are going to affect our reputation in the
whole world adversely and not consulting the relevant people
within their own administration.
Senator Whitehouse. So you are comfortable that, in
addition the constitutional separation of powers among the
branches, we should also in Congress attend to what you, I
think, better than I called ``internal checks and balances''
within the executive branch of Government.
Mr. Schwarz. Yes.
Senator Whitehouse. Professor Koh? I think I saw a hand go
up.
Mr. Koh. Yes. The parallel to the Administrative Procedures
Act on the national security side is the National Security Act
of 1947 which creates the current such, and much of it has been
amended by laws that were passed after the Watergate/Vietnam
era, which were designed to create this both system of internal
checks and balances and consultation.
The breakdown here came from two different points. One is a
concentration of decisionmaking within the executive branch,
which, as Mr. Schwarz described, fenced out expertise, ruled
out moderate voices, prevented legal opinions that were in
secret from being examined, and disrupted the chain of command.
And so you had this extraordinary situation where the counsel
to the Vice President was giving direction to the Deputy
Assistant Attorney General for the Office of Legal Counsel,
with apparently not going through the Attorney General? And
that is an extraordinary disruption of process and ought to be
addressed.
And I think a second point is that lawyers need to be
included at the key points, brought in before, ex ante, to help
make legal decisions, not after the fact to give legal
justifications.
Senator Whitehouse. Mr. Chairman, my time has expired. I
appreciate your courtesy.
Chairman Feingold. Thank you, Senator Whitehouse. I will
begin a second round.
Dean Koh, again, thank you for your excellent testimony. I
particularly appreciate the specificity in your written
testimony about what exactly the next President should do right
off the bat. You list seven executive orders a President should
issue to ``send the unequivocal message that the United States
does not accept double standards in human rights.'' This is so
important not only for what it says about who we are, but also
for our relationships with our allies and the message we send
to and about our adversaries. I hope that the next President
and his advisers will read these suggestions and pay very close
attention to them.
Now, you have served in the State Department, and you say a
bit about the importance of the rule of law and dealings with
other countries, and particularly about its role in the next
President's efforts to restore relationships with allies and
build trust and cooperation that we are going to need to take
on issues all the way from climate change or combating
terrorism or extremism.
Mr. Koh. Yes, Senator. The last 7 years have been
devastating in this regard. Perhaps the worst example I could
give is a conversation I had with a dissident in Cuba who is
against the Castro regime. He described the situation he was
under where he had been detained on numerous occasions without
charge. His home was being wiretapped. I said, ``How much
unrest is there about this domestically?'' And he said, ``If
you raise this issue, all anyone can say is `Guantanamo.''' It
is a complete answer to the idea that we have a right to point
fingers.
The same goes with regard to the Chinese who regularly in
our diplomatic negotiations point to human rights issues at
home as a way of saying that we should not interfere with
internal affairs.
On September 12, 2001, President Putin of Russia said,
``You have your war on terror. So do we, which gives me carte
blanche to act against the Chechens.''
With regard to our close allies in the European Union,
their concerns that individuals that they might turn over to us
might be subjected to harsh treatment or other kinds of
violations of human rights and the rule of law have
dramatically interfered with our cooperation in these
intergovernmental efforts.
So I think that the costs have been huge, and I think it
goes to the basic point that rule of law is very central to our
stability and our reliability, and that what people think is
that terrorists are a dangerous source of instability, but
responding to terrorists in a way that violates the rule of law
creates even more instability, and that is what we have been
experiencing.
Chairman Feingold. Thank you.
Congressman Edwards, I was impressed by your statement
that, ``Securing our position as a Nation governed by the rule
of law is the most important issue facing the next President
and the Congress.'' Can you say a little bit more about why you
think that is the case? How does this issue in your experience
interact with all the complicated and important domestic and
international issues that we must tackle in the years ahead?
Mr. Edwards. Senator, when the Founders created this
country, they turned everything upside down, because in the Old
World you had rulers and subjects, and the rulers decided and
the subjects obeyed. And our Founders said, ``We are not going
to be subjects. We are going to be citizens, and citizens tell
their Government what to do instead of the other way around.''
And the way we do that is through the Congress, through the
people selecting their representatives.
Now, the Executive has said, this Executive has said that
people do have a voice. They speak every 4 years. Well, that is
not the way our system works. The people speak every day
through you. They speak through their Representatives, their
Senators. And the issues that are on the table today, whether
it is energy independence, repairing our infrastructure, access
to affordable health care, those issues and other issues come
and go. They rise in importance. You know, they ebb. But what
matters and makes us different is the way in which we keep the
people in charge of the decisionmaking process. If we lose
that, all of the other issues fade in importance.
So that is why I argue that the number one issue that has
to happen in the next couple of years, no matter who is elected
President, is for the Congress to reassert its own role as an
equal branch of Government. That will allow us to get past a
lot of the problems we have had in the last few years.
Chairman Feingold. Louis Fisher of the Library of Congress
is one of the country's foremost experts on executive power. In
his written testimony, he argues that the basis for the Bush
administration's theory of inherent executive power--a theory
that underlies so many of its controversial programs--is
fundamentally misguided and that, in fact, there is no legal
basis for any inherent power in the President.
Dean Koh, can you explain why that is the case?
Mr. Koh. Well, three points. This is the Subcommittee on
the Constitution. Article II created a President and not a
king. The difference is that a President is subject to checks
and balances from Article I and Article III. And so, therefore,
the scope of his executive power is limited by what he cannot
do without the cooperation of the other branches.
Second, there are some things that the executive has no
inherent power to do. The executive has no inherent power to
order torture. He is the Commander in Chief, not the torturer
in chief. He has no power to order genocide or other kinds of
acts. And so the idea that somehow these are justified by
inherent powers is giving him power that no everything has.
And the third point, which I think is a functional point,
why is this good policy, is it is good law. A President who
relies on inherent power and does not get either political
support from Congress or legal approval from the courts ends up
going it alone. And as a result of that, they end up having to
rely on popularity polls. And if the war in which they engage
or the acts which they pursue become unpopular, then they have
no political or legal support for what they are doing.
So the system of checks and balances was designed to ensure
that a Government which runs on the consent of the governed as
opposed to on the power of the kind is actually notified to the
people and that the President talks to people who do not work
for him.
Chairman Feingold. Thank you.
Mr. Schwarz, in your written testimony, you expressed your
support for the State Secrets Protection Act, which establishes
procedures for judges to review executive claims of the state
secrets privilege. You also noted that this bill and the
companion bill in the house could be strengthened.
Could you just say a few words about how you think these
could be strengthened to prevent--
Mr. Schwarz. I would say two things that I think could
strengthen it.
The first is the current draft directs or suggests--I think
directs--judges to give deference to the executive or
substantial weight to the position of the executive. I do not
think that is appropriate. The problem here with state secrets
is that the courts have flopped over, particularly in times of
crisis. The Supreme Court did differently because they looked
at what was going on and said 7 years is too much. Indefinite
period is too much. That is where we are going to put a stop to
what in earlier wars they might not have stopped.
But the district courts and the courts of appeals have been
far too deferential to the executive branch. I think that is a
problem with the draft. And then the draft, I think, also does
not give sufficient attention to the importance of the district
judge finding a way to allow the lawsuit to continue without
breaching some narrow secret that may be involved. CIPA, the
Classified Information Procedures Act, and other acts show that
courts can work out practical solutions. I think more attention
needs to be given to that.
And, finally, I think it is very important that the law not
leave the position open to just plain dismiss a case on the
basis of an alleged state secret, which my experience suggests
is going to be exaggerated, but sometimes will be real. But
they should find a way to keep their case alive without
compromising secrecy, and there are ways to do it.
Those are the thoughts I had.
Chairman Feingold. Thank you so much.
Senator Brownback?
Senator Brownback. No further questions.
Chairman Feingold. Senator Whitehouse?
Senator Whitehouse. The other question that I would love to
get to with such an expert panel has to do with secrecy. On
this Committee, we are from time to time presented with
classified information. On the Intelligence Committee, on which
Senator Feingold and I both serve, we are constantly bombarded
with classified information, and it has a very crippling effect
on our oversight of these agencies. And, in particular, there
is a built-in bias toward the executive branch that is capable
of being used perniciously, and I believe in this
administration has been used perniciously. And that is that the
senior executives who have access to classified information are
often what are called ``declassifiers,'' which means they can
stand up and tell you something that is secret in public, and
they have not violated a confidence, they have not divulged
classified information. They have declassified.
And so you come into a situation in which there is an array
of facts, as there are in many circumstances, and the executive
branch will pick out and declassify a very selective group of
facts and then go to their talking points and pound those
publicly. And we in Congress are not capable--we are literally
legally incapable of responding with the other facts that we
know to make the counterargument, to explain to the public why
the executive branch is wrong on this, because we are not
declassifiers. We are trapped in the classification snare that
the executive branch controls by classifying everything in
sight and then declassifying selectively. And I have seen this
just in my brief and year and--whatever it is--9 months in the
Senate play out over and over and over again.
It strikes me that the only way to solve this is to create
a counterbalance, and the counterbalance that I would recommend
is that the Chairman of the Senate Judiciary Committee and the
Chairman of the Senate Select Committee on Intelligence also be
made declassifiers. That, I think, will not only have the
effect of allowing the Senate committees to make their case
when they need to, it will also discourage the abuse of the
selective declassification technique by the propaganda arm of
the executive branch, because they will know they can be
answered, so there is not the return on going there, and so you
are spared the initial misleading salvo, if you will.
I am not going to have time to hear from all of you on
this, but I would like to ask that a question for the record,
how you would respond to that, what concerns you might have,
and where we go from here. I have maybe a little bit over 3
minutes left, so we have time for a little bit of a response.
But I see Professor Koh's and Professor Turner's and
Representative Edwards's hands up. Can we try to keep it within
a quick minute each given the timeframe? I do not want to
trespass on the Chairman's time.
Mr. Koh. Two points. One solution is to have documents be
automatically declassified unless someone insists that they
remain classified. I was in the executive branch, and many
documents just were never classified because there is no
incentive to declassify them.
The second point, which I think is critical for the
function of this hearing, is declassifying legal opinions,
which are often based on facts which have now become public.
And the fact of the matter is that these legal opinions ought
to be examined, and sometimes the fact that the first paragraph
mentions--
Senator Whitehouse. I will jump in and let you know that I
have examined them, and I could not agree with you more. And I
am convinced that if the folks at the Office of Legal Counsel
understood that those opinions would become public and be
subjected to the critical scorn that they deserve, in my
opinion, they would never have written them in the first place,
and we would not have gone down those shameful roads.
Mr. Koh. I agree.
Mr. Turner. Just briefly, the Founding Fathers gave a lot
of consideration to the issue of secrecy. Indeed, Madison said
we would have had no Constitution had it not been for the
strict rule of secrecy in the proceedings of the Convention.
Ben Franklin, as Chair of the Committee of Secret
Correspondence in 1776, concluded unanimously with the other
members they could not tell the Continental Congress about a
major French covert operation because ``we find by fatal
experience that Congress consists of too many members to keep
secrets.''
Senator Whitehouse. Professor Turner, don't get me wrong. I
am not against secrecy. I am against the abuse of secrecy.
Mr. Turner. Oh, the question--
Senator Whitehouse. And wouldn't everybody love to be in a
debate in which they got to make their argument and they could
tell the other side, ``I am sorry. You do not get to argue? ''
Mr. Turner. Yes, sir. I'm sorry, Senator. The issue arose
first during the Jay Treaty debate. I went back and read that
entire debate in the Annals of Congress. It is very lengthy.
Only one member said Congress had an absolute right to
executive information. Several members said, were this an
impeachment inquiry, Congress would have the right. James
Madison, who knew the Constitution pretty well, said each
branch was to be the judge of what information in its
possession it would share with the other branches. And he said,
``If Washington's refusal was based on the claim that these
were sensitive secrets, I should not object.'' But his refusal
was based on the claim the House had no role in treaty making,
which Madison disputed.
The Supreme Court, of course, in the Curtiss-Wright case,
looked at that debate and said the Congress ultimately got it
right, and Washington was right in refusing to give information
to Congress. As recently as 1957, Ed Corwin in his classic
study--
Senator Whitehouse. Well, this is--again, you are not on
the topic. This is in situations in which they have given
information to Congress. We know it. But we just cannot argue
back because we are under restriction of classification.
Mr. Turner. But if they have a right--
Senator Whitehouse. You are talking across my point and not
at it.
Mr. Turner. Sorry, Senator. If they have a right to say you
cannot have the information, surely they have the right to say
this is information we are very concerned about making public,
but we will share it with you in return for a promise of--
Senator Whitehouse. How would you remedy the situation in
which, to secure propaganda advantage, one branch of Government
discloses half of the information that supports its case and
the other one is forbidden to by classification rules and,
therefore, the public who we are here to serve never get
actually a fair explanation of what the issue is?
Mr. Turner. I think the problem there is trying to find a
way to tell Congress and the American people everything without
our enemies finding out. Let me just--
Senator Whitehouse. Well, I understand that. Let me go on
to Representative Edwards and then I saw Mr. Cooper's hand up.
Mr. Edwards. Well, I thought your answer was a pretty good
one. I mean, the President has the sole treaty-making
authority. He has no treaty-approving authority, to react to
that.
You know, you used the words yourself. You said the problem
is that you are legally incapable of doing something.
``Legally'' is the law. Who writes the law? You do. Change it.
Chairman Feingold. One more quick comment from each of you,
and then I do need to move to the next panel.
Mr. Cooper. If I could just make this comment: I have no
brief for the abuse of classified information or state secrets
by any stretch, and it does sound to me like you have described
an abuse of the classification authority. But I do have some
experience in dealing with classified information, distant
experience, but that means that someone has made the sober
judgment that the release of this information publicly would
damage our vital national security interests.
And so I think the Committee and the Congress would need to
very, very carefully consider the potential implications and
ramifications of adding to the individuals who would have
declassification authority. But you certainly have identified a
problem. It sounds me like some solution ought to be devised.
Chairman Feingold. Did you have something, Mr. Schwarz?
Mr. Schwarz. Well, I think, Senator, you put your finger on
one of the most important problems, which is excessive secrecy.
I believe the next Congress should, perhaps in cooperation with
the next President, have a real serious study of the abuse of
secrecy. There is far too much. Expert panels would probably be
a good idea. It is something that reasonable people can come
together on and stop arguing. There is far too much secrecy.
Chairman Feingold. Thank you, Senator Whitehouse, and I
thank the panel for an excellent job. I ask you to retire and
ask the second panel to come forward. Thank you all.
Now we will turn to the second panel. Will the witnesses
please stand and raise your right hand to be sworn. Do you
swear or affirm that the testimony you are about to give before
the Committee will be the truth, the whole truth, and nothing
but the truth, so help you God?
Mr. Dellinger. I do.
Ms. Rotunda. I do.
Ms. Massimino. I do.
Mr. Philbin. I do.
Ms. Spaulding. I do.
Mr. Podesta. I do.
Chairman Feingold. Thank you very much. You may be seated.
As with the first panel, I ask that you try to limit your
remarks to 5 minutes. You have all provided excellent written
testimony. I want to thank you for that. Your full written
statements will be included in the record.
Our first witness on this panel is Professor Walter
Dellinger. Professor Dellinger is a partner at the Washington
law firm of O'Melveny & Myers, and a Visiting Professor of Law
at Harvard Law School. He headed the Office of Legal Counsel at
the Department of Justice from 1993 to 1996. Professor
Dellinger served as the Acting Solicitor General of the United
States from 1996 to 1997, where he argued nine cases before the
Supreme Court in a single term. Professor Dellinger graduated
from the University of North Carolina and Yale Law School, and
he clerked for Justice Hugo Black on the United States Supreme
Court.
Mr. Dellinger, it is great to have you here. Please
proceed.
STATEMENT OF WALTER DELLINGER, PARTNER, O'MELVENY & MYERS, LLP,
VISITING PROFESSOR OF LAW, HARVARD LAW SCHOOL, FORMER ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL (1993-1996), FORMER
ACTING SOLICITOR GENERAL (1996-1997), CHAPEL HILL, NORTH
CAROLINA
Mr. Dellinger. Thank you, Senator Feingold.
We address this morning the issue surrounding the rule of
law and the concern expressed by many of those who have
responded to the Committee's invitation that, during the past 7
years, we have wandered away from the kind of adherence to
norms of lawfulness that ought to be achieved.
To say that is not to demean the fact that there are
dedicated career attorneys in the Department of Justice who
have served with distinction throughout this period, nor that
many of the political appointees have acted with courage and
dedication. Indeed, one of the problems is that career
attorneys were too often eliminated from the process, and the
wonderful ballast that comes from the fact that the Department
of Justice has so many lawyers who do not change with changing
administrations, the wonderful effect of that was lost by the
failure to include career attorneys, the failure to draw upon
the judgment of officials, lawyers who had served throughout
different administrations in the national security agencies,
the military agencies, and otherwise.
It does not necessarily mean that opinions were issued in
bad faith, though when former Assistant Attorney General Jack
Goldsmith says of the torture and a series of other memos that
they were ``deeply flawed: sloppily reasoned, overbroad, and
incautious,'' one certainly comes very close to wondering how,
when you read these opinions, could have possibly been written
by someone who was trying in good faith to achieve a lawful
answer.
But even where issued in good faith, an opinion, and
especially a series of opinions, can undermine the essential
elements of the rule of law, even where the views are held in
good faith. I take it that it is a minimum of what we think
about when we think of lawfulness that Government decisions are
made as part of a good-faith effort to comply with the law. But
that is not enough. There are substantive elements in our
system that provide the legitimacy that goes under that term.
The division of authority among branches of Government,
with each branch having a role, checking and balancing one
another, with the legislative, the executive branch, and the
judiciary each having a role to play that is respected by the
others, where the core legitimacy of our Government, moreover,
depends upon the consent of the governed, where actions of the
Government are not made public, where constitutional and
statutory interpretations result in the President being
empowered to disregard national laws promptly enacted by
Congress under its authority, and in combination with the fact
that this is done in secret, to have executive orders that
state publicly what the rule of law is but a different law
being applied contrary to that--this so fundamentally
undermines the ability of the governed to consent to the kind
of Government that they have, that even if those conclusions
about executive power are reached entirely in good faith, I
think it is still fair to say that they ill serve the basic
concepts of the rule of law.
How might one proceed from here? I think that what we heard
this morning is clearly right, that the President must
understand that every President is ill served if he wants
answers from lawyers to give him what he wants to hear. It
turns out that is not in the best interests of any President. I
think transparency, as Mr. Podesta will argue, the elimination
of secrecy to the extent possible, is absolutely critical to
the rule of law. Proper procedures, fully vetting opinions, is
also critical.
If I had to make one suggestion, Senator, it would be with
respect to the OLC opinions. I think we have to have some sense
of bipartisanship with respect to reviewing what our essential
legal constraints are, and that in either party, it would be
advisable for the head of the Office of Legal Counsel to have
an advisory committee, modeled somewhat on PFIAB in the
intelligence area, a group of people, a bipartisan group,
including those who have served in other administrations, who
would review with the Office of Legal Counsel all of the
opinions, including those that we have not seen, and make an
assessment, where the Presidentially appointed, Senate-
confirmed Assistant Attorney General would have to make his or
her decision at the end of the day, subject to review by the
President and the Attorney General, but would make known what a
bipartisan group, including some of those who have been
witnesses here from each party, had to say about these issues.
And I think that would go in some step to reclaiming the sense
that we have had for a long time that we can trust the Office
of Legal Counsel under political parties of both
administrations, and indeed is exemplified by the courageous
actions of Mr. Philbin and others in more recent
administrations. It is a goal that can be attainable. We know
in both parties OLC has stood up to the administration and told
them no, and I think we can achieve that again.
[The prepared statement of Mr. Dellinger appears as a
submission for the record.]
Chairman Feingold. Thank you, Professor.
Our next witness is Professor Kyndra Rotunda of Chapman
University School of Law. Professor Rotunda is the former
Director of the Clinic for Legal Assistance to Service Members
at George Mason Law School, where she devised and taught a
military curriculum to second- and third-year law students and
supervised students representing military families in civil
legal disputes. Professor Rotunda began her legal career as an
officer in the U.S. Army JAG Corps. She remains in the U.S.
Army Reserves and was recently selected for promotion to major.
Ms. Rotunda graduated from the University of Wyoming and the
University of Wyoming College of Law.
We welcome you, Professor. Thank you for your time and you
may proceed.
STATEMENT OF KYNDRA ROTUNDA, PROFESSOR OF LAW, CHAPMAN
UNIVERSITY SCHOOL OF LAW, ORANGE, CALIFORNIA
Ms. Rotunda. Thank you, gentlemen. It is a please to be
with you this morning. I am a law professor at Chapman, and as
you mentioned, sir, I am also a soldier. I am a major in the
Army JAG Corps. I have served three tours in the global war on
terror, including one in Guantanamo Bay and one as a legal
prosecutor at the Office of Military Commissions, and my
testimony today is based on those experiences serving in this
global war.
As we discuss the rule of law this morning, it is important
to remember our military troops and our obligation to preserve
and protect their rights, too. The United States should
interpret the law in a way that helps and does not hurt our men
and women in uniform. Unfortunately, in several important
respects, that is not happening.
For instance, in Guantanamo Bay, the U.S. military requires
religious accommodation in a way that risks the safety of
soldiers. It issues various religious items to each detainee,
including a copy of the Koran. But, incredibly, it forbids
military prison guards in charge of the facility from even
touching the Koran under any circumstance. Not surprisingly,
detainees have figured this out and they use the Koran to hide
weapons, which they use to viciously attack our American
soldiers. Attacks in Guantanamo Bay have risen to eight a day.
In one year, detainees stabbed military troops with homemade
knives 90 times.
An incident at Camp Bucca, Iraq--a U.S.-run detention camp
in southern Iraq--is just one example. At Camp Bucca, the
military erected a tent as a mosque for detainees and
designated it off limits to U.S. prison guards who were running
Camp Bucca. The detainees used their makeshift mosque as a
weapons cache, where they stashed concrete shards that they had
dug from the concrete around tent poles, and home-made bombs
that they had made with items we had given them. The prisoners
attacked Camp Bucca from the inside out, and for 4 days they
held off U.S. forces and seriously injured several troops. One
officer was hit in the eye with a chunk of cinderblock. It
fractured his cheek in three areas and broke his teeth. The
U.S. was forced to call for back-up in order to get security of
our own prison camp.
What does the law say about religious accommodation? Well,
the Geneva Conventions say that POWs must follow the
disciplinary routine of their captors in order to preserve
their religious latitude. This is similar to the standard
applied in U.S. prisons. In O'Lone v. Estate of Shabazz, the
Supreme Court said that prison officials could impinge on
prisoners' right to exercise their religion for reasons related
to legitimate prison management.
The U.S. should restore the rule of law in Guantanamo Bay
by allowing U.S. prison guards to search all items in detainee
cells, including the Koran. No item or place within our own
prison camps should be off limits to our guards. Doing so,
gentlemen, is extremely dangerous, and neither international
nor U.S. law require or authorize this unusual accommodation.
When I served in Guantanamo Bay, I was appalled to learn
that the U.S. military engages in gender discrimination against
female military prison guards. Because it offends detainees,
the U.S. forbids female soldiers from performing all aspects of
their jobs within the detention camp. The U.S. should not
engage in gender discrimination to appease the detainees.
During World War II we did not discriminate against our Jewish
soldiers to appease the Nazis, and we should not discriminate
against our female soldiers to appease detainees who embrace
similar discriminatory views.
The U.S. should uphold the rule of law by ensuring that all
troops are allowed to perform their jobs, without regard to the
prejudices of our enemies.
The U.S. follows the laws of war, and when our troops are
captured, they are entitled to POW protections. That is not
what happened for Staff Sergeant Matt Maupin.
On April 9th of 2004, Iraqi terrorists attacked his convoy
and led Private Maupin away from his convoy and his fellow
soldiers. Later, terrorist captors released footage of Matt
sitting on the floor, wearing his uniform, surrounded by masked
gunmen and being forced to make a statement. Later, they
claimed they murdered him. It was not until 4 years later, this
last March in 2008, that we actually discovered his body.
Incredibly, the military refused to acknowledge that Staff
Sergeant Maupin was a POW. Instead, it gave him a title unknown
under the Geneva Conventions. It considered him ``missing'' and
called him ``missing/captured'' instead of referring to him,
rightly, as a POW.
Where was the International Committee of the Red Cross for
Staff Sergeant Maupin? What happened to his rights under the
Geneva Convention? We welcome the ICRC in Guantanamo Bay. I was
the liaison to the ICRC during one of my tours there. We
listened to their complaints, and we answered all of them while
I was there. Should not the ICRC lobby to visit the prison
camps where our soldiers are being held? The ICRC is supposed
to issue complaints when it does not have the access necessary
to determine if detainees are held humanely. But the ICRC has
been silent.
The U.S. should restore the rule of law and stop waiving
POW protections for our own soldiers. U.S. soldiers adhere to
the Geneva Conventions and, if captured, they are entitled to
POW protections.
In closing, I wish to thank the Committee for the
opportunity to address this matter. It is important that we
uphold the rule of law and protect our men and women in
uniform.
[The prepared statement of Ms. Rotunda appears as a
submission for the record.]
Chairman Feingold. I thank you, Professor Rotunda.
Our next witness is Ms. Elisa Massimino. Ms. Massimino is
the Chief Executive Officer and Director of Human Rights First.
She joined Human Rights First as a staff attorney in 1991 and
became the organization's Washington Director in 1997. This
year, she was named to head the entire organization. She was
also named by the Hill newspaper as one of the top 20 public
advocates in the country. She holds degrees from Trinity
University, Johns Hopkins University, and University of
Michigan Law School, and she has taught at the University of
Virginia School of Law, George Washington School of Law, and
Georgetown University Law Center.
Ms. Massimino, thank you for being here and please proceed.
STATEMENT OF ELISA MASSIMINO, CHIEF EXECUTIVE OFFICER AND
EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST, WASHINGTON, D.C.
Ms. Massimino. Thank you, Mr. Chairman. I appreciate the
opportunity to be here and share our views on this important
topic.
Restoring the Nation's commitment to the rule of law must
be a top priority for the next President of the United States.
Words will be important; but particularly because of the way
the current administration has sought to distort, obscure, and
evade the clear language of the law, words will not be enough.
It will be the actions of the next administration that will
either confirm Vice President Cheney's assertion that the drift
away from the rule of law--which necessitates today's hearing--
is ``the new normal'' or will prove him wrong.
Much of our focus today is on the impact of the policies of
the last 7 years here at home, but it is important to
understand that the erosion of human rights protections in the
United States has had a profound impact on human rights
standards around the world. Opportunistic governments have co-
opted the U.S. ``war on terror,'' citing U.S. counterterrorism
policies as a basis for internal repression of domestic
opponents. In some instances, U.S. actions have encouraged
other countries to disregard domestic and international law
when such protections stand in the way of U.S. counterterrorism
efforts.
In the course of my work, I often meet with human rights
colleagues from around the world, many of them operating in
extremely dangerous situations. When I ask them how we can
support them as they struggle to advance human rights and
democratic values in their own societies, invariably they tell
me one thing: ``Get your own house in order. We need the United
States to be in a position to offer strong leadership on human
rights.'' The next President will have an opportunity to
provide that leadership.
You have asked me today to focus on concrete steps the
United States must take in order to realize a return to the
rule of law in the area of detainee treatment. In brief, the
next President must do three things: enforce the prohibitions
on torture and other cruel and inhuman treatment of prisoners;
close Guantanamo; and abandon the failed experiment of military
commissions in favor of the proven effectiveness--and due
process--of our Federal criminal system.
U.S. detention and interrogation policy over the past 7
years have been marked by ongoing violations of fundamental
humane treatment standards rationalized by a series of secret
legal opinions that have stretched the law beyond recognition.
Such violations range from abusive interrogations sanctioned by
Department of Justice memoranda to renditions of individuals to
torture and the maintenance of a secret detention system
shielded even from the confidential visits of the International
Committee of the Red Cross. The return to a detention policy
that is firmly rooted in the rule of law--not in loophole
lawyering--is essential both to restoring the moral authority
of the United States and to ensuring the success and
sustainability of U.S. counterterrorism efforts going forward.
On the battlefield in Afghanistan and Iraq, the military
has learned the importance of ensuring that prisoners are
treated humanely. The new joint Army-Marine Corps
Counterinsurgency Manual issued in June of 2006 under the
leadership of General David Petraeus makes clear that in order
to gain the popular support we need to confront insurgency
threats, the United States must send an unequivocal message
that it is committed to upholding the law and principles of
basic human dignity. I refer you to my written statement for
the details of our comprehensive recommendations, which I will
try to summarize briefly now.
To reclaim what General Petraeus called the ``moral high
ground'' in our counterterrorism efforts, perhaps the most
important step the next President must take is to revoke and
repudiate all existing orders and legal opinions that authorize
cruel interrogations or secret detentions or imply that legal
standards of humane treatment differ when they are applied to
the CIA. At the top of that list is Executive Order 13440,
which authorizes the CIA to maintain a secret detention program
using interrogation techniques that have been rejected by our
own military as unlawful and unproductive. Professor Turner
from the last panel has written eloquently about the dangerous
impact of that order and warns that it places the President and
all who implement that order in serious legal jeopardy. The
next President must enforce a single standard of human
treatment of prisoners across all Government agencies based on
the military's Golden Rule standard. We cannot engage in
conduct that we would consider unlawful if perpetrated by the
enemy against captured Americans.
In addition, we have to end the practices that facilitate
torture, including rendition, and the operation of secret
prisons, holding ``ghost prisoners'' outside of the range of
the access of the ICRC, a provision that is included in this
year's intelligence authorization bill and which was debated
very eloquently on the floor last night by Senator Whitehouse.
I refer you to my written statement for the details of our
recommendations on a step-by-step plan on how to close
Guantanamo and move prisoners into the Federal criminal justice
system, which has shown itself quite adaptive and capable of
delivering sentences in terrorism cases.
Thank you.
[The prepared statement of Ms. Massimino appears as a
submission for the record.]
Chairman Feingold. Thank you, Ms. Massimino.
Our next witness is Mr. Patrick Philbin. Mr. Philbin is a
partner at the law firm of Kirkland & Ellis here in Washington,
where he practices appellate litigation. Mr. Philbin has
degrees from Yale University, Harvard Law School, and Cambridge
University, and clerked for D.C. Circuit Judge Laurence
Silberman and Supreme Court Justice Clarence Thomas. From 2001
to 2005, Mr. Philbin served at the Department of Justice,
including time in the Office of Legal Counsel and as Associate
Deputy Attorney General. His responsibilities at DOJ centered
on national security, intelligence, and terrorism issues.
Thank you, sir, for taking the time, and you may proceed.
STATEMENT OF PATRICK F. PHILBIN, PARTNER, KIRKLAND & ELLIS LLP,
WASHINGTON, D.C.
Mr. Philbin. Thank you, Chairman Feingold, Ranking Member
Brownback, and members of the Subcommittee. I appreciate the
opportunity to address the topic before the Subcommittee today.
Because the topic of the hearing is broad and time is limited,
in my opening remarks I would like to touch on only three
points.
First, I respectfully take some issue with the title of
today's hearing and the comments that some of the other
witnesses have made. A hearing on ``Restoring the Rule of Law''
might be understood to suggest that there has been a widespread
abandonment of the rule of law. I reject that premise. Such a
premise would do a disservice to the dedicated men and women
throughout the Federal Government who work tirelessly every
day, and who have done so since 9/11, to ensure that the
actions the Federal Government takes to protect the Nation
remain within the bounds of the law. In my time at the
Department of Justice, I was privileged to work with dozens of
dedicated individuals, both career employees and political
appointees, who were committed to getting the right answer and
ensuring that the rule of law prevailed.
That does not mean that mistakes have not been made or that
there were not sharp disagreements about the law. I was
involved in contentious debates that required us to address
novel and complex issues of law under enormous pressures. And
in some instances, I ultimately disagreed with the reasoning
others had endorsed. In the most acrimonious debate that
occurred during my time in Government, I believe the rule of
law prevailed. In one way, the very fact that so much energy
and contention was focused on disputes about legal
interpretations shows that the rule of law was considered
vital. If it were not, debates about legal interpretations
would not have mattered so much. And disagreements, mistakes,
or errors in interpreting the law do not amount to an
abandonment of the rule of law.
Second, I want to point out a danger that I believe comes
along in some of the rhetoric that is used about the rule of
law. All too often in debates about the war on terror, many
attempt to pack into the concept of the ``rule of law'' the
implicit assumption that any unilateral executive branch action
or any argument for executive power that is not subject to
judicial review necessarily abandons the rule of law. That is
not the assumption of our Constitution. The Constitution
assigns different roles to the three branches of Government,
and particularly in the conduct of warfare, the role of the
executive is paramount.
One particular aspect of the judicial-centric rhetoric of
the ``rule of law'' deserves emphasis. In many instances,
arguments based on this approach are, at bottom, a challenge to
the fundamental legal paradigm governing the conflict with al
Qaeda. After 9/11, the President determined that the Nation was
in a state of armed conflict and that this conflict should be
treated as war, not as a matter of mere criminal law
enforcement. Congress agreed with that assessment by passing
the Authorization for Use of Military Force. And the Supreme
Court itself endorsed it in Hamdi v. Rumsfeld. As the Court put
it, detention of combatants, ``for the duration of the
particular conflict in which they were captured, is so
fundamental and accepted an incident to war as to be an
exercise of the `necessary and appropriate force' Congress has
authorized the President to use.'' The proper legal framework
for our conflict with al Qaeda is thus provided by the laws of
war, not what is most familiar to us from the processes of the
criminal law. Complaints, therefore, about detention without
trial are entirely misplaced here. Detention without trial is
precisely what the law allows for enemy combatants.
Third, and finally, I would like to address one area where
I believe Congress can and should take action to accomplish not
a restoration of the rule of law, but a needed restoration of
balance in the law. I believe that, as Attorney General Mukasey
has argued, legislation is warranted in response to the Supreme
Court's decision in Boumediene v. Bush.
In Boumediene, the Court determined that aliens detained by
the military outside the sovereign territory of the United
States in an ongoing armed conflict have a constitutional right
to the writ of habeas corpus.
At the same time that the Boumediene Court effected a
seminal shift in the law concerning constitutional rights for
aliens outside the United States, however, it declined to
provide further concrete guidance concerning exactly what
procedures would be required in these particular habeas cases
to satisfy the right to the Great Writ. Under the Court's
decision, that matter would be left entirely for lower courts--
and subsequently appellate courts, and eventually the Supreme
Court itself--to sort out in litigation. At least as a
practical matter, there thus may be some truth in what Chief
Justice Roberts pointed out in dissent: what the decision is
about most significantly is ``control of Federal policy
concerning enemy combatants.'' The Supreme Court's decision
shifts a large measure of that control to the judiciary and
away from the political branches, both executive and
legislative, which had already jointly crafted a detailed
system of review for the detainees at Guantanamo through the
Detainee Treatment Act and the Military Commissions Act of
2006.
Chief Justice Roberts makes an interesting point in noting
that, if one considers who has ``won'' as a result of
Boumediene, it is ``[n]ot the rule of law, unless by that is
meant the rule of lawyers, who will now arguably have a greater
role than military and intelligence officials in shaping policy
for alien enemy combatants.''
I believe that the lack of guidance the Court has
provided--although the Court has determined that there is a
constitutional right for the detainees at Guantanamo to habeas,
the lack of guidance leaves a role for the political branches.
Congress can and should step in to shape the habeas actions now
required under Boumediene by legislation to streamline the
procedures rather than leaving the matter solely to the ad hoc
process of multiple rounds of litigation, which could take
years.
Legislation introduced by Senator Graham in the form of
Senate bill 3401 provides a step in the right direction. I urge
the Committee to give that bill, or similar legislation,
serious consideration rather than leaving the contours of the
habeas actions required in the wake of Boumediene to be
determined solely by litigation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Philbin appears as a
submission for the record.]
Chairman Feingold. Thank you, Mr. Philbin. I thank, of
course, everybody for their patience today.
Our next witness is Ms. Suzanne Spaulding. Ms. Spaulding's
expertise in national security issues comes from 20 years of
experience in Congress and the executive branch. She has worked
in both the House and Senate Intelligence Committees and has
served as Legislative Director and Senior Counsel to Senator
Specter. She has served as Executive Director of two different
congressionally mandated commissions focused on terrorism and
weapons of mass destruction and has worked at the CIA. She is
currently a principal at Bingham Consulting Group and past
Chair of the American Bar Association's Standing Committee on
Law and National Security.
Thank you very much for being here, and you may proceed.
STATEMENT OF SUZANNE E. SPAULDING, PRINCIPAL, BINGHAM
CONSULTING GROUP, WASHINGTON, D.C.
Ms. Spaulding. Thank you, Mr. Chairman, Ranking Member
Brownback. I would like to begin by commending you for holding
this hearing, focused not on re-litigating past disputes but on
understanding the current and future imperative for upholding
the rule of law.
As we anticipate a new administration, it is appropriate to
assess where we are and endeavor to put in place a long-term,
sustainable approach to security, one that reflects all that we
have learned in the intervening years about the nature of the
threat today and effective strategies for countering it.
We are all familiar with the ``soft-on-terror'' charge of
having a ``September 10th mindset.'' The truth is that no
American who experienced the horror of September 11 can ever
again know the luxury of a September 10th mindset. The greater
concern is being stuck in a September 12th mindset, unable or
unwilling to understand the lessons we have learned since those
terrible days. It is this mindset that undermines America's
long-term security.
On September 12, 2001, for example, we lived with a deep
sense of fragility as we waited in fear for the next attack.
Over the subsequent days and years, however, we have come to
understand that resiliency is a powerful and essential weapon
against terrorism. It means knowing that there may be another
attack, but refusing to live in, or make decisions based upon,
fear. If politicians and policymakers fall back on that
September 12th mindset of fear to convey their message and
promote their policies, they will undermine that essential
public resiliency.
On September 12th, we thought we could defeat terrorism by
going to war. Today, most of us understand that we are engaged
in long-term struggle for hearts and minds, competing against
the terrorists' narrative of a glorious ``global jihad''--a
narrative that can be very compelling to young people searching
for identity and answers. But we now understand that the image
of an America committed to the rule of law and ensuring that
even suspected terrorists get their day in court can be a
powerful antidote to that twisted allure of terrorism.
We sought, in those first days and months after September
11th, to ``balance'' national security and civil liberties, as
if they were competing objectives on opposite sides of the
scale. We thought we could only get more of one by taking away
from the other. Over the past 7 years, however, we have been
reminded that our values are an essential source of our
strength as a Nation.
For example, experts agree that the primary reason the
United States does not face the level of homegrown terrorism
threat that Europe has experienced is that immigrants are
better integrated into American society. Effectively working
with Muslim communities in this country is one of the most
promising avenues for deterring radicalization of young people.
Policies that undermine those efforts threaten our national
security.
Similarly, while it seemed to some that on September 12th
our careful system of checks and balances was a luxury we could
no longer afford, we have seen since that an avaricious
arrogation of power by the Executive actually leads to a
dangerously weakened President. We have been reminded that our
Government is strongest when all three branches are fulfilling
their constitutional roles.
Mr. Chairman, we all awoke to a changed world on September
12th. But the world has continued to change, and so must our
understanding of the threat we now face and how to combat it.
The struggle for hearts and minds is of tremendous consequence.
The enemy is deadly, determined, and adaptive. We cannot defeat
it if we are stuck in the past. It is essential to move beyond
our fears and understand what it is that makes us strong.
It is with this in mind that I recommend in my written
testimony that a new administration undertake a comprehensive
review of all domestic intelligence activities, all relevant
laws, policies, regulations, guidelines, and memos. In
addition, as I have previously testified, Congress should
undertake its own similar review.
At the same time, the administration should ask the
Director of National Intelligence to oversee a thorough
assessment of the nature, scale, and scope of the national
security threat inside the United States.
In conclusion, Mr. Chairman, I will quickly list just a few
of the key issues that I describe in greater detail in my
written testimony that should be part of a comprehensive
review:
A review of all electronic surveillance activities since
January 2001 and of the entire Foreign Intelligence
Surveillance Act, not just the amendments enacted this summer;
A review of the legal regime for national security letters
and its implementation--something I know is of particular
interest to the Chairman of this Committee;
A review of the new Attorney General guidelines for
counterterrorism investigations;
An assessment of the First Amendment implications of
domestic intelligence activities, including safeguards to
protect against political spying and the chilling effect of
current and proposed policies and activities;
The need for a legal framework for Government data
collection and data mining practices;
The appropriate role of the various entities engaged in
domestic intelligence activities, and that includes, obviously,
not just FBI but also CIA, NSA, the Department of Defense and
its other intelligence components, DHS, and State and local
police;
And, finally, the need to enhance transparency and
oversight--in both the executive branch and Congress--in order
to sustain public support, improve the quality of intelligence,
and ensure respect for the rule of law.
It is clear that this Committee understands the absolute
importance of that final bullet, and I again commend you for
holding this hearing, and thank you very much for the
opportunity to participate.
[The prepared statement of Ms. Spaulding appears as a
submission for the record.]
Chairman Feingold. Thank you, Ms. Spaulding, for your very
useful testimony.
Our final witness this morning is Mr. John Podesta. Mr.
Podesta is the President and CEO of the Center for American
Progress Action Fund. From October 1998 to January 2001, Mr.
Podesta served as Chief of Staff of President Bill Clinton,
where he was responsible for directing, managing, and
overseeing all policy development, daily operations,
congressional relations, and staff activities at the White
House. Before that, he served on the United States Commission
on Protecting and Reducing Government Secrecy, chaired by the
late Senator Daniel Patrick Moynihan. Mr. Podesta is currently
a Visiting Professor of Law on the faculty of Georgetown
University Law Center and is a leading expert on technology
policy and Government secrecy. Mr. Podesta is a graduate of
Knox College and Georgetown University Law Center.
Thank you for your patience and thank you so much for being
here, and you may proceed.
STATEMENT OF JOHN D. PODESTA, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, CENTER FOR AMERICAN PROGRESS ACTION FUND, WASHINGTON,
D.C.
Mr. Podesta. Thank you, Mr. Chairman and Mr. Brownback. It
is an honor to be here today, and if you will permit me a brief
moment of nostalgia, I got into this Government secrecy
question as a counsel to this very Subcommittee when I served
Senator Leahy here in 1981 when he successfully opposed
amendments that would have gutted the Freedom of Information
Act. So it is great to be back on this side of the table.
I just want to make a few points. I have given you a
lengthy statement on what I see as the excesses of secrecy in
the current administration and what we need to do about it. But
let me just make a few points.
First of all, obviously most Americans appreciate the need
to keep secret national security information whose disclosure
would pose a genuine risk of harm to the United States. I
certainly subscribe to that view, and I have seen operational
plans, sources, and methods, information that needs to be
classified to keep the public safe. But I think as the 9/11
Commission concluded, too much secrecy can put our Nation at
greater risk and breed insecurity by hindering oversight,
accountability, and information sharing.
Excessive secrecy conceals our vulnerabilities until it is
too late to correct them. It slows the development of the
scientific and technical knowledge we need to understand
threats to our security and to respond to them effectively. And
it short-circuits public debate. Moreover, it undermines the
credibility of the information security system itself, which
encourages leaks and causes people to second-guess legitimate
restrictions.
Finally, secrecy, I think, has a corrosive effect on the
rule of law, the subject of this hearing, which requires that
laws be known and understood and that Government officials be
held accountable for their actions. Without such information,
there can be no checks and balances, no accountability, no rule
of law.
You mentioned a commission I served on that was chaired by
Senator Moynihan. It was a bipartisan commission that included
Senator Helms as a co-chair. That commission concluded
unanimously that the best way to ensure that secrecy is
respected and that the most important secrets remain secret is
for secrecy to be returned to its limited but necessary role.
Secrets can be protected more effectively if secrecy is reduced
overall. And, again, I recommend Senator Moynihan's very short
volume on secrecy. It is a terrible book for those of you who
are interested in this particular topic.
Unfortunately, in my view, President Bush and Vice
President Cheney have created, I think, a cult of secrecy
within the executive branch that is probably rivaled only, I
think, by the Nixon administration. The Bush administration has
systematically overhauled policies and practices that deny
Americans information held by the Government. I would note that
this took place and preceded 9/11. It is not only a reaction to
9/11. But I think some of those policies, his amendments to the
Presidential Records Act, although issued right after 9/11, the
Attorney General's memorandum which, I think, reversed the
presumption of openness and Freedom of Information Act, all
that preceded 9/11. I go into some detail in my testimony on
that. So without sort of going over the abuses that I see in
the policies implemented by the administration, let me go to
six specific things that are summaries, again, of my testimony
that need to be accomplished, I think, by either the next
President, three in that category, or by the Congress itself.
First, I believe that the next President should rewrite the
Bush Executive on classification policy to reinstate the
Clinton era provisions, which established a presumption against
classification in cases of significant doubt and prohibited
reclassification of material that had been properly
declassified and released to the public. I think we also need
to get back to really policing the system of automatic
declassification that was, I think, a feature of the earlier
Clinton order.
Second, I think the next President and, if the President
does not do it, the Congress should take action to reduce the
practice of designating so-called controlled unclassified
information. That has really exploded during the
administration. The GAO found that 26 agencies use 56 different
information control markings that are beyond the scope of the
executive order on classification, and that is just growing. I
think that is a matter that needs urgent attention. If the
President does not undertake it, I think the Congress needs to
pass legislation, some of which has already passed the House
and I recommend it to you.
Third, the next President should revoke the Bush executive
order on the Presidential Records Act, which I think both
permit surviving relatives of former Presidents to block access
to Presidential records, created a new Vice Presidential
privilege. It really turns over on its head the whole import of
the Presidential Records Act, and I think that that needs to be
reversed.
Fourth, I think in the realm of the things that Congress
need to undertake, Congress should enact legislation directing
courts to weigh the costs and benefits of public disclosure
before dismissing lawsuits on the basis of state secrets
privilege. Fritz talked about that.
Fifth, Congress should enact S. 3405, the Executive Order
Integrity Act, introduced by you, Mr. Chairman, to prohibit the
President from secretly modifying or revoking a published
executive order.
And, finally, Congress should strengthen the Whistleblower
Protection Act of 1989 to protect public employees from
reprisal when they disclose information, particularly to
Congress, regarding Government wrongdoing.
So, with that, let me conclude. Thank you.
[The prepared statement of Mr. Podesta appears as a
submission for the record.]
Chairman Feingold. Thank you so much, Mr. Podesta.
We will go to questions, a 7-minute round. I will begin.
Mr. Dellinger, I opened my questions to the first panel by
highlighting the need for a rule-of-law culture in Government.
The majority of these executive actions will never be reviewed
in a court of law or examined in a congressional hearing, and
so a culture of respect for the rule of law within the
executive branch itself is essential. I would like to return to
that point now because I believe it has special relevance for
the Office of Legal Counsel.
From your vantage point as a former head of OLC, what can
be done going forward to instill a culture of respect for the
rule of law among the attorneys who give advice to the
President and other executive agencies?
Mr. Dellinger. Senator, I think first one has to recognize
that administrations under both political parties have indeed
maintained a very high standard over the years. There has been
a bipartisanship, if you look at the Office of Legal Counsel
under Ted Olson in the first Reagan administration, I believe
Harold Koh, one of our witnesses today, and others served in
the Office of Legal Counsel during that period of time. Charles
Cooper, another of your witnesses today, issued opinions that
were quite contrary to the intense political ambitions of the
President and stuck with it. So that it is, first of all,
important to overcome the cynicism that says this cannot be
done.
I think it is also important to recognize, quite honestly,
that we did vary from it in this administration. To read the
torture memo, one cannot just dismiss as a difference of legal
opinion a torture memo that--whose reasoning is to tortuous as
it goes through why there is no need to comply with or to
interpret away the criminal assault statute, the maiming
statute, the war crimes statute, the torture statute, customary
international law, the Convention Against Torture, the Fifth,
Eighth, and 14th Amendments. To read an opinion like that is
just to be stunned at what it has done.
I believe that one of the things a President has to
understand is that Presidents who get the answer they want wind
up being ill served by it. They get into trouble. It really is
important, and the President should tell that to the Office of
Legal Counsel. I think the Attorney General has to play an
active role in advancing that, and I think most importantly, we
have to follow the recommendations, I believe, in the
legislation that you are introducing, suggested by the
testimony of Mr. Podesta. There has to be as much transparency
as national security imperatives will allow in making public
what the basis for the President's legal conclusions are and to
make those readily, timely, and widely available for Congress
and the American public to assess.
Chairman Feingold. Thank you, Professor.
Ms. Massimino, you have recommended, as have a number of
organizations who submitted written testimony, a single
interrogation standard for all U.S. Government agencies. I
could not agree more and have advocated this both publicly and
behind closed doors at the Intelligence Committee for years.
The argument I often hear in opposition is that intelligence
interrogators have different needs and goals than military
interrogators, and that the same rules should not apply.
How do you respond to that? How do you know that we will
not lose valuable intelligence information as a result?
Ms. Massimino. First, I want to say that I, too, have heard
the arguments from the President and other administration
officials that the so-called enhanced interrogation techniques
are effective at obtaining information. It is a difficult
assertion to challenge, not because it is so obviously true,
but because the people who have the information that would
substantiate it are the only ones who have seen it.
So I do want to point out first, though, that effectiveness
does not convert a felony into a misdemeanor or not a crime. It
does not rectify a breach of Common Article 3. And it does not
make a given technique any less painful or inhumane.
That said, though, there are serious reasons to question
these assertions that intelligence interrogators need different
techniques. The recent report by the Intelligence Science
Board, called ``Educing Information,'' has found that there is
no evidence to suggest that these so-called enhanced
interrogation techniques produce reliable or actionable
intelligence.
Over the summer, my organization, Human Rights First,
convened an off-the-record meeting with about 15 intelligence
interrogation experts--from the military, the FBI, and the CIA.
It was supposed to be a 2-day meeting. After about three-
quarters of the first day, they found such strong common
agreement that not only did they not need to go beyond the
standards of Common Article 3 as outlined in the military
manual, but they were gravely concerned that we were going to
permanently lose vital intelligence by continuing down the road
of use of these enhanced techniques.
Now, I am not an interrogation expert, but they sure are.
Within that room was more than 150 years of intelligence
interrogation expertise. And there was no doubt in anyone's
mind that what they need to do and what they asked for was an
investment by the next administration in developing and
training human intelligence gatherers in the traditional
rapport-building techniques that work.
Chairman Feingold. Thank you.
Ms. Spaulding, in the past several years I have repeatedly
detected from the Justice Department a fundamental distrust of
judges when it comes to domestic surveillance authorities,
whether it is bypassing the FISA Court for more than 5 years or
the NSA wiretapping program or arguing that statutes should be
rewritten to decrease the role of the judiciary. This seems to
be a consistent theme. Yet in our system of Government, the
judicial branch plays a critical check on executive branch
overreaching. Is this distrust of the judiciary warranted? And
how should the role of the judiciary be considered in the
context of the comprehensive review of domestic surveillance
authorities that you have recommended?
Ms. Spaulding. Senator, I think this mistrust of the courts
is not warranted. As has been pointed out by other witnesses
this morning, the courts are typically very deferential to the
executive branch when it comes to national security, and it has
been quite unusual to see the pushback from the Supreme Court
recently with regard to administration legal claims in the war
on terror. And I think that says less about the make-up of the
Supreme Court than it does about the boundaries that this
administration has been pushing in that legal context.
It is very interesting. One of the arguments that is often
made is that we cannot trust regular Article III judges with
highly classified information. There have been leaks from the
executive branch--lots. There have been leaks from Congress.
There has never been, as far as I know, a leak of classified
information from the courts, from the judiciary, from a judge.
Judges deal with complex information all the time, and
their role is absolutely vital when it comes to the areas that
we are talking about today.
Supreme Court Justice Powell articulated it very well in
the Keith case, which, as you know, is one of the key cases as
we look at domestic surveillance issues, when he talked about
how the role of the executive branch is not envisioned to be a
neutral arbiter or decider, but actually to investigate and
prosecute. And it is not appropriate to leave these final
decisions in their hands lest they become subject to abuse in
the zeal for prosecution.
The role of the judiciary in this area, particularly the
area of domestic surveillance, is absolutely critical.
Chairman Feingold. Thank you very much.
Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman. I thank the
panelists for your presentations and your thought that you put
into your presentations. I appreciate that all very much.
Professor Rotunda, particularly I was stunned by the things
that you were talking about. I did not know about those factual
situations, and I am hopeful we can get on top of that so we
can keep our people safe.
Do we make the same sort of requirement for other religious
materials that they cannot be touched or examined?
Ms. Rotunda. Sir, it is primarily the Koran. We do issue to
detainees all kinds of religious items, including prayer oil,
prayer beads, prayer rugs. We broadcast the call to prayer five
times a day. We have arrows pointing to Mecca. At some points
when they are praying, they are required to have 20 minutes of
uninterrupted time, and we have prayer cones that we put up
where guards cannot enter the area where they are praying.
Senator Brownback. I want to get specific on this. Are
there other religious documents that we hand to prisoners from
other faiths that we say you cannot examine?
Ms. Rotunda. No, sir.
Senator Brownback. This is the only one that we tell the
guards you cannot look at.
Ms. Rotunda. Yes, sir.
Senator Brownback. And the mosque is the only place we tell
guards you cannot go into.
Ms. Rotunda. As far as I am aware, sir. I know that was at
Camp Bucca. Now, when we have prayer cones up in the prison
camp, guards cannot go into those areas where detainees are
praying. So that is true in Guantanamo Bay and also at Camp
Bucca.
Senator Brownback. OK. And I thought it also interesting
the limitation on what we allow female guards to do. I had not
thought about that aspect of it.
Ms. Rotunda. Yes, sir.
Senator Brownback. But not allowing them to do their job
according to some other standard rather than our own of how we
treat different genders.
Ms. Rotunda. That is right, sir. It is clearly
discrimination.
Senator Brownback. Thank you for bringing those up. I
thought those were quite interesting.
Professor Philbin, Mr. Philbin, I want to talk with you,
because this is the key kind of point, it seems like to me, of
one of the things we have got to discuss, is how we are going
to process these detainees at this point after the Supreme
Court case. How is this going to be handled? And your point is
that you are either going to do it on this kind of makeshift
case or run it through a bunch of different trials, run it up
the appellate court multiple times to kind of get a body of law
developed where the Congress is going to pass something. That
is the summation of your point.
Mr. Philbin. Yes, essentially, sir.
Senator Brownback. What do you think we should do and in
what sort of legal framework should we look at these enemy
combatants? Can you give me that in a minute or two? I realize
that is a huge question, but it is one we have tried to wrestle
with around here, thought we had something, and the courts said
differently.
Mr. Philbin. And I can understand frustration with that,
Senator, coming from the Congress, because Congress did make a
concerted effort to respond to the Supreme Court's decision in
Hamdi and Hamdan that outlined what would be necessary, even
for a U.S. citizen, for habeas corpus procedures and modeled
the procedures at Guantanamo on that.
I still think, though, that for the efficient conduct of
the war, it is necessary not to allow things just to play out
in years of litigation, but to take another stab at trying to
determine what it is that the Court expects from these habeas
proceedings. I think that the legal framework is the laws of
war that these are enemy combatants. They can be detained
without trial. But the specific contours of the habeas action
have to be gleaned from the Supreme Court's decisions so far.
And legislation that provided for a procedure that gave the
necessary process and that also provided, I believe, for an
expedited appellate proceeding so that the test case would go
through, there would be an established timetable for an
expedited appeal through the D.C. Circuit Court of Appeals, and
perhaps then to the Supreme Court, to try to get the whole
thing sorted out so that there is a clear guideline as soon as
possible, because, otherwise, tremendous resources will be
wasted in litigation.
Senator Brownback. Now, this is not the first time this
country has dealt with enemy combatants. Now, they were in a
foreign government, and there were rules of law. But in World
War II, we had a number of prisoners of war here in the United
States. How did we treat them then? Under what legal system?
Mr. Philbin. In World War II, there were over 400,000 POWs
in the United States. They had rights under the Geneva
Conventions. And as far as I am aware, there was no attempt,
there was never an effort to bring a habeas corpus action on
their behalf.
Senator Brownback. With all 400,000?
Mr. Philbin. As far as I am aware. There were efforts to
bring habeas corpus actions on behalf of those in the Quirin
Case, saboteurs who were not held as POWs, the Quirin Case,
Colepaugh v. Looney, and at the end of the war, a U.S. citizen,
Territo, a Ninth Circuit case, he was captured in the Italian
Army, but he had been a U.S. citizen. But those were the only
situations in which habeas corpus actions were entertained.
Senator Brownback. But they were not treated as under our
criminal law procedure at all. Correct?
Mr. Philbin. Correct.
Senator Brownback. It was under the Geneva Convention and
the treatment--and there were not trials going on as long as
the war went on. Is that correct?
Mr. Philbin. That is correct.
Senator Brownback. Then after the war, they were generally
returned to their home country.
Mr. Philbin. They were repatriated, as required by the
Geneva Conventions.
Senator Brownback. So you are suggesting, if I can
understand this a lot more, that we need to go along that line
rather than involving the Guantanamo Bay or the military
detainees in our criminal law structure in the United States.
Mr. Philbin. Well, I think it is important to maintain the
paradigm that this is law, not simply--this is a war, and the
laws of war apply and not simply a matter of criminal law
enforcement. But given the Boumediene decision, there has to be
a structure put in place for habeas corpus proceedings now for
these detainees. That is the law under the Constitution as
declared by the Supreme Court.
I think the question that the political branches face is
how much time and effort will have to be spent in litigation to
try to sort out exactly what the procedures are for that and
how much time can be saved by the political branches taking
what I believe is their proper role in something that is really
a matter of war policy, trying to define as quickly as possible
what the contours of those habeas actions will look like.
Senator Brownback. Which I agree with, and I think that is
the route we should go.
Ms. Massimino, I hope you were here at the outset when I
was talking about the unsuitability of the disciplinary
barracks at Fort Leavenworth for moving detainees. If you were
not, I hope you could look at the specifics that I outlined,
because I think this is just not an appropriate facility and
not set up for this and not legal for us to move them there.
And so I would hope in your advocacy of closing Guantanamo Bay,
which I understand and appreciate, that you would also look at
some of the difficult facilities we have in the United States
and not--or at least question as well moving them to those
places as well.
Ms. Massimino. I will. And, in fact, Senator, in our
written blueprint on how to close Guantanamo, we look at a
number of different scenarios, possibilities. I think one of
the challenges is to break down the population there into
several categories, and the ones that we think are suitable to
be moved to the United States or ones that we think the
Government has identified as having committed crimes against
the United States and should be tried. I have in my written
testimony a whole explanation about why we think pursuant to
this report we recently published on an evaluation of terrorism
trials in the domestic criminal system that that is a far
better--that our criminal system is far better suited than the
current system of military commissions about which there has
been so much controversy, even within the military command
structure, about whether or not that system complies with our
rules under the Geneva Conventions.
I think that, you know, we are talking about the rule of
law here today, and the requirements of the rule of law, what
it really means, I think, in practice is transparency,
predictability, consistency. We have procedures to deal with
suspected terrorists. We actually have been using them
effectively in the criminal system. And instead of setting that
system aside, we ought to be embracing it and using all the
tools at our disposal to deal with the terrorist threat. And I
think that is one that has been underused and is part, in my
view, of the solution to the situation at Guantanamo.
Senator Brownback. I would note--and that talks about the
Leavenworth Penitentiary, and I do not think you want to move
these folks into the Leavenworth Penitentiary system let alone
the disciplinary barracks for mixing of populations. I
appreciate your thought and your background on it. I just think
there are very practical problems that I would hope you would
look at as well.
Ms. Massimino. Senator--
Senator Brownback. My time is up, Mr. Chairman.
Chairman Feingold. Excuse me, Senator Brownback. I want to
just do one more question, because it has already been over
2\1/2\ hours. So I just want to ask Mr. Podesta: Government
secrecy is an issue that permeates every other rule-of-law
issue we are addressing here today. Almost every group or
individual who submitted written testimony in advance of this
hearing brought up the issue of Government secrecy, and they
are more or less unanimous in their recommendations for
concrete steps that the next President can take on day one of
his administration. I truly hope that the next President takes
note of this remarkable consensus and acts on this list of
recommendations.
Now, one of the organizations that submitted a written
statement for the hearing is openthegovernment.org, a coalition
of groups that support open government. The statement includes
the following recommendation: ``The new President has an
immediate opportunity to define the relationship between his
administration and the public by issuing a Presidential
memorandum on day one of his administration that makes clear
that the Government information belongs to the public.''
Do you agree with this recommendation? And do you have any
thoughts about what principles and commitments might be
included in such a memorandum?
Mr. Podesta. Thank you, Mr. Chairman. CAP is a member of
openthegovernment.org. I do agree with the recommendation. I
was thinking about this a little bit during the course of the
hearing, and maybe the President might start with a statement
that formed the basis of a study that was done by Professor
Harold Cross from the University of Missouri, which led to the
enactment of the Freedom of Information Act. He said in his
classic study that the right to speak and the right to print--
reflecting on the First Amendment--without the right to know
are pretty empty. And I think that is a pretty strong statement
that the President could issue on day one, direct his
Government, again, the Justice Department, I think, to reverse
and move back to the presumption of openness with regard to
taking on FOIA cases, reform the executive order on
classification, to deal with the problems that I have
identified in my opening statement.
But I think ultimately this is about culture. It is about
whether the President and whether his Cabinet are going to
implement policies and oversee their own officials in a way
that I think promotes openness and restores that sense of
openness and integrity to the Government.
Chairman Feingold. Senator Brownback, did you have a quick
follow-up?
Senator Brownback. I do.
Professor Rotunda, I am just curious. If we go the route
that is being suggested by Ms. Massimino on the prisoners from
Guantanamo Bay, what is kind of the practical effect? I am
curious if actually people will be left in theater rather than
moved back, and if that is done, if they will be repatriated to
host countries. And I wonder if they will be better treated
there than they would at Guantanamo. Do you have any thought?
Ms. Rotunda. Yes, sir. Well, Senator, two things.
First of all, under the Geneva Convention, we cannot take
enemy combatants and move them to a prison with convicted
criminals, and so that is one thing we have to consider. Those
who have already been charged with a crime, one thing. We
cannot just airlift Guantanamo Bay into a U.S. prison. And not
only can't we, but we should not do that. Moving detainees to
Guantanamo Bay presents significant security risks. We cannot
maintain the type of security that is required. In Guantanamo
Bay, we are surrounded by water on three sides and Cuba, with
rows and rows of barbed wire, on the other side.
If we move them to the United States, it will be a magnet
for some terrorist bomber to attack the United States from
within, again, and take himself out, all the U.S. troops he can
take out, and the detainees in Guantanamo Bay. So I think it is
very dangerous. All the polling I have seen is that Americans
do not want it, it is not good for Americans.
Additionally, the detainees in Guantanamo, many of them are
very threatening toward their interrogators. Some of them have
said that if they ever get out, they are going to hunt down
their interrogators and their families and ``slit their throats
like animals.'' That is what one detainee told his
interrogator. It is dangerous to move them here.
The other option, sir, you mentioned about moving them in
theater, leaving them in Iraq or Afghanistan, I do not think
that is a good idea either, and the reason is because right now
in Guantanamo Bay, it is crawling with human rights advocates.
The International Committee of the Red Cross had more access to
detainees than I did, and I have a top secret security
clearance, sir.
There is media all over Guantanamo Bay. There are hundreds
of lawyers coming in and out of Guantanamo Bay. If we move them
to Iraq or Afghanistan, all of this oversight is going to stop.
And so those who are truly concerned about the treatment of
detainees should think twice about suggesting that we move them
anywhere near the theater in Iraq or Afghanistan where they are
not going to have this contact with the outside world.
Chairman Feingold. Senator Whitehouse, do you have a
follow-up?
Senator Whitehouse. I know that the Chairman is seeking to
bring this wonderful hearing to a conclusion because of the
press of other business we face, so I would like to ask a
couple of questions just for the record and ask if the
witnesses would follow up as they wish. I would, however, first
like to recognize Ms. Spaulding and welcome her back to the
Committee. She was on the other side of the aisle, but she
worked very hard for us and was a wonderful asset to the
Committee, and it is nice to see her back in this capacity.
Question 1 is on how you go about unwinding Guantanamo.
Everybody says we have got to get rid of it. I believe that a
committee should take a look at it. Some problems are easy to
get into and very difficult to unsnarl. I suspect that a
committee that was to look at this, or a commission, would need
military expertise, would need corrections expertise, would
need intelligence expertise, would need law enforcement
expertise, would need immigration and international law
expertise. But if there is anything else that you can add as to
how we unwind this, that would be helpful.
I would reiterate the same question I asked the first panel
about secrecy. What is an appropriate response when you have an
executive branch that is strategically declassifying for
propaganda purposes in order to silence dissent or opposition
from Congress by leaving us behind the veil of secrecy while
they declassify at will their part of the argument?
And the third is that one of the--as I have been reading
through these OLC opinions, you know, it is sort of one horror
leads to another. I keep calling this a ``George Bush Little
Shop of Legal Horrors.'' One of the assertions that was made
was that an executive order, because it is an executive order,
cannot bind a President; he is free to depart from it at his
pleasure or disobey it at his pleasure, and he is under no
compunction at any point to report that he is disobeying it.
That strikes me as turning the Federal Register into
essentially a screen of falsehood on which people cannot rely.
But there is a constitutional germ of truth buried in there,
and I would love to get the advice of the panel on what we
should to assure that when Americans look at an executive order
that, as we know, has the force and effect of law, takes a
congressional act to overrule it, and until then has the force
and effect of law, they know that they can actually count on
its efficacy, its accuracy that it is legal, that it is not
just a phony screen that has been put up. I think that is very
dangerous for a structure, a Government that is built on laws
and the laws become phony and you can run illegal or un-legal
programs behind the screen of legal artifice.
So those would be the three questions I would love to hear
from you, but I know that we have a caucus to get to, and you
all have things to get to as well. And I very much appreciate
the Chairman's courtesy, and I know I am taking more time, but
I really would like to reiterate how extremely valuable and
important I think this hearing is, how astonishingly good the
witnesses have been, both in the number and expertise--it has
really been a very, very impressive panel--and how much I value
Chairman Feingold's leadership in calling this, along with the
Ranking Member, Senator Brownback.
Chairman Feingold. Thank you, Senator Whitehouse, and we
have much to do, as we have indicated, and we will get on it.
Senator Brownback, did you have anything further?
Senator Brownback. Nothing, Mr. Chairman.
Chairman Feingold. Let me thank all the witnesses for their
testimony and this thoughtful discussion. I appreciate your
taking the time to be here. I thank you for your insights.
As the testimony today confirms, I do not think we can
overstate the importance of this issue to our Nation and to
this moment in history. We have heard a number of provocative
and interesting proposals today, including some very concrete
and practical recommendations for restoring the rule of law and
returning to the principles on which this Nation was founded.
This does not mean it will be easy, even though steps that are
almost universally agreed upon, such as the necessity of
closing the facility at Guantanamo Bay, are fraught with legal
and practical complexity. And, of course, there may be
institutional resistance within the executive branch to actions
that are viewed as ceding power to the other branches of
Government no matter how unprecedented the executive power
theories that need to be undone.
But as I said at the outset of the hearing, it is the years
that follow a crisis that may matter most that are the true
test of the strength of our democracy. So I hope that the next
President will heed what has been said today and carefully
review the many recommendations that we have presented even
before he takes office. I truly believe that the future of our
democracy depends on it. Indeed, I think it is so important
that this be done that I believe the next President, whoever he
is, in the Inaugural Address should specifically say that he
has an allegiance to the rule of law and that he will reverse
and renounce the course followed by the current President. I
believe it would obviously have to be brief in such an address,
but it rises to that magnitude.
The hearing record will remain open for one week for
additional materials to be submitted. Written questions for the
witnesses must be submitted by the close of business one week
from today. We will ask the witnesses to respond to those
questions promptly so the record of this hearing can be
completed and presented to the President the day that he takes
office. And, again, I thank Senator Brownback for his
tremendous patience and participation as the Ranking Member.
The hearing is adjourned.
[Whereupon, at 12:58 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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