S. Hrg. 110-604
SECRET LAW AND THE THREAT TO DEMOCRATIC AND ACCOUNTABLE GOVERNMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
APRIL 30, 2008
__________
Serial No. J-110-89
__________
Printed for the use of the Committee on the Judiciary
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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
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 3
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
prepared statement........................................... 115
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 150
WITNESSES
Aftergood, Steven, Director, Project on Government Secrecy,
Federation of American Scientists, Washington, D.C............. 17
Berenson, Bradford A., Partner, Sidley Austin, LLP, Washington,
D.C............................................................ 9
Elwood, John P., Deputy Assistant Attorney General, Office of
Legal Counsel, Department of Justice, Washington, D.C.......... 6
Johnsen, Dawn E., Professor, Indiana University School of Law-
Bloomington, former Acting Assistant Attorney General, Office
of Legal Counsel, Bloomington, Indiana......................... 7
Kitrosser, Heidi, Associate Professor of Law, University of
Minnesota Law School, Minneapolis, Minnesota................... 15
Leonard, J. William, former Director, Information Security
Oversight Office, Leonardtown, Maryland........................ 11
Rivkin, David B., Jr., Partner, Baker Hostetler, Washington, D.C. 13
QUESTIONS AND ANSWERS
Responses of Steven Aftergood to questions submitted by Senators
Feingold and Kennedy........................................... 42
Responses of John P. Elwood to questions submitted by Senators
Feingold and Brownback......................................... 48
Responses of Dawn Johnsen to questions submitted by Senators
Feingold and Kennedy........................................... 65
Responses of Heidi Kitrosser to questions submitted by Senator
Kennedy........................................................ 70
Responses of J. William Leonard to questions submitted by
Senators Feingold and Kennedy.................................. 74
SUBMISSIONS FOR THE RECORD
Aftergood, Steven, Director, Project on Government Secrecy,
Federation of American Scientists, Washington, D.C., statement. 77
Berenson, Bradford A., Partner, Sidley Austin, LLP, Washington,
D.C., statement................................................ 88
Elwood, John P., Deputy Assistant Attorney General, Office of
Legal Counsel, Department of Justice, Washington, D.C.,
statement...................................................... 109
Harrison, James P., Director, The Identity Project, statement.... 117
Johnsen, Dawn E., Professor, Indiana University School of Law-
Bloomington, former Acting Assistant Attorney General, Office
of Legal Counsel, Bloomington, Indiana, statement and
attachment..................................................... 124
Kitrosser, Heidi, Associate Professor of Law, University of
Minnesota Law School, Minneapolis, Minnesota, statement........ 137
Leonard, J. William, former Director, Information Security
Oversight Office, Leonardtown, Maryland, statement............. 152
Rivkin, David B., Jr., Partner, Baker Hostetler, Washington,
D.C., statement................................................ 162
Weismann, Anne L., Chief Counsel, CREW, Washington, D.C., letter. 171
SECRET LAW AND THE THREAT TO DEMOCRATIC AND ACCOUNTABLE GOVERNMENT
----------
WEDNESDAY, APRIL 30, 2008
United States Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 9:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, chairman of the subcommittee, presiding.
Also present: Senators Whitehouse and Brownback.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I call the Committee to order.
Good morning, everybody. Welcome to this hearing of the
Constitution Subcommittee entitled ``Secret Law and the Threat
to Democratic and Accountable Government''.
We are honored to have with us today a distinguished panel
of witnesses to help us examine this very important and timely
issue.
I'll start by making just a few remarks, and then I'll
recognize the Ranking Member, Senator Brownback, for an opening
statement. Then we'll turn to our witnesses.
More than any other administration in recent history, this
administration has a penchant for secrecy. To an unprecedented
degree, it has invoked executive privilege to thwart
congressional oversight and the state secrets privilege to shut
down lawsuits.
It has relied increasingly on secret evidence and closed
tribunals, not only in Guantanamo, but here in the United
States. It has initiated secret programs involving
surveillance, detention, and interrogation, some of the details
of which remain unavailable today, even to Congress.
These examples are the topic of much discussion and
concern, and appropriately so. But there is a particularly
sinister trend that has gone relatively unnoticed: the
increasing prevalence in our country of secret law.
The notion of secret law has been described in court
opinions and law treatises as ``repugnant'' and ``an
abomination''. It is a basic tenet of democracy that the people
have a right to know the law. In keeping with this principle,
the laws passed by Congress and the case law of our courts have
historically been matters of public record. When it became
apparent in the middle of the 20th century that Federal
agencies were increasingly creating a body of non-public
administrative law, Congress passed several statutes requiring
this law to be made public for the express purpose of
preventing a regime of secret law.
That purpose today is being thwarted. Congressional
enactments and agency regulations are, for the most part, still
public. But the law that applies in this country is determined
not only by statutes and regulations, but also by the
controlling interpretations of courts and, in some cases, the
executive branch. More and more, this body of executive and
judicial law is being kept secret from Congress as well.
The recent release of the March 2003 John Yoo torture
memorandum has shone a sobering light on this practice. A legal
interpretation by the Justice Department's Office of Legal
Counsel, or OLC, binds the entire executive branch, just like a
regulation or the ruling of a court. In the words of former OLC
head Jack Goldsmith, ``These executive branch precedents are
`law' for the executive branch.'' The Yoo memorandum was, for a
nine-month period in 2003 until it was withdrawn by Mr.
Goldsmith, the law that this administration followed when it
came to matters of torture. And course, that law was
essentially a declaration that few, if any, laws applied.
This entire memorandum was classified and withheld from
Congress and the public for years on the claim that it
contained information that would harm national security. Now,
it may be appropriate, prior to public disclosure of an OLC
memorandum, to redact information about, for example, specific
intelligence sources or methods. But as we now know, this 81-
page document contains no information about sources, methods,
or any other operational information that could compromise
national security. What it contains is a shocking glimpse of
the ``law'' that governed the administration's conduct during
the period this memo was in effect. The many, many footnoted
references to other OLC memos we have never seen suggest that
there is an entire regime of secret law that may be just as
shocking.
Another body of secret law is the controlling
interpretations of the Foreign Intelligence Surveillance Act
that are issued by the FISA Court. FISA, of course, is the law
that governs the government's ability in intelligence
investigations to conduct wiretaps and search the homes of
people in the United States. Under that statute, the FISA Court
is directed to evaluate wiretap and search warrant applications
and decide whether the standard for issuing a warrant has been
met a largely factual evaluation that is properly done behind
closed doors. But with the evolution of technology and with
this administration's efforts to get the Court's blessing for
its illegal wiretapping activities, we now know that the
Court's role is broader and that it is very much engaged in
substantive interpretations of the governing statute.
These interpretations are as much a part of this country's
surveillance law as the statute itself. Without access to them,
it is impossible for Congress or the public to have an informed
debate on matters that deeply affect the privacy and civil
liberties of all Americans. While some aspects of the FISA
Court's work involve operational details and should not be
publicly disclosed, I do not believe that same presumption must
apply to the Court's purely legal interpretations of what the
statute means. Yet, the administration has fought tooth and
nail against public disclosure of how the court interprets the
law and has strictly limited even congressional access to some
of those decisions.
The administration's shroud of secrecy extends to agency
rules and executive pronouncements, such as Executive orders,
that carry the force of law. Through the diligent efforts of my
colleague Senator Whitehouse, we have learned that OLC has
taken the position that a President can ``waive'' or ``modify''
a published Executive order without any notice to the public or
Congress--simply by not following it.
Now, none of us disputes that a President can withdraw or
revise an Executive order at any time. That's the President's
prerogative. But abrogating an Executive order without any
public notice works a secret change in the law. Worse, because
the published order stays on the books, it actively misleads
Congress and the public as to what the law is. That has the
effect--presumably the intended effect--of derailing any
accountability or oversight that could otherwise occur.
That gets us to the heart of the problem. In a democracy,
the government must be accountable to the people, and that
means the people must know what the government is doing.
Through the classification system and the common law, we have
carved out limited exceptions for highly sensitive factual
information about military operations, intelligence sources and
methods, nuclear programs, and the like. That is entirely
appropriate and important to protecting our national security.
But even in these areas, Congress and the courts must maintain
some access to the information to ensure that the President is
acting in accordance with the law and the Constitution. And
when it comes to the law that governs the executive branch's
actions, Congress, the courts, and the public have the right
and the need to know what law is in effect. An Executive that
operates pursuant to secret law makes a mockery of the
democratic principles and freedoms on which this country was
based.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
We'll hear today from several experts who can help us
understand the extent of this problem, and also help us begin
to think about solutions. But before I turn to them, let me
first turn to my colleague and the Ranking Member, Senator
Brownback, for any comments he'd like to make.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman. I appreciate
that. Panel members, thank you for being here today. I look
forward to a good discussion, interesting information, and a
good vetting on this topic. I look forward to discussion from
you on the so-called issue of secret laws.
At the outset, however, I must say that I'm not convinced
that the topics we'll address here today comport with the
notion of secret law as defined by our Federal courts.
Hopefully you can illuminate me on that. Courts have defined
secret laws as ``administrative guidance or standards that an
agency applies to the public.''
I'm confident that we can all agree, as our courts have
long recognized, that an administrative agency should ``not be
permitted to develop a body of secret law used by it in the
discharge of its regulatory duties and in its dealings with the
public, but hidden behind a veil of privilege because it is not
designated as formal, binding, or final.''
The application of such quasi-regulations would, of course,
violate our fundamental commitment to the principle of
legality, as it is beyond dispute that members of the public
cannot be expected to conform their behavior to legal
requirements that have been concealed from them.
In 1971, the Court of Appeals, District of Columbia,
addressed the problem of such secret laws stating this: ``To
prevent the development of secret law within an administrative
agency, we must require the agency to disclose orders and
interpretations which it actually applies in cases before it.''
Despite this widely understood description of secret law,
every branch of the Federal Government has at times been
accused of making secret law that falls outside this
definition.
Prior to the adoption of the Federal rule of appellate
procedure, 32.1, for example, certain courts in our Federal
jurisdiction were sharply criticized in the past for policies
under which many of their opinions are deemed ``non-
precedential'', or excluded from electronic databases and
collections of published cases. Critics called these decisions
``secret law'', even though they were not truly secret and, due
to their non-binding nature with regard to other parties before
the courts, could not in one sense be called law.
In Congress, they are not immune from this criticism. In a
case cited by our witnesses, the Seventh Circuit proclaimed
that ``the idea of secret laws is repugnant.'' That case,
however, did not deal with secret law at all. Instead, the
plaintiff in that case was arguing that a properly enacted
statute passed by both Houses of Congress and signed into law
by the President was too inaccessible to him to be fairly
considered binding.
The court concluded that the statute at issue was not
secret, and that Congress has no duty to take measures to delay
a statute's applicability long enough for its content to be
widely disseminated.
Finally, as our witnesses today will discuss at length,
there are many individuals who criticize the executive branch
for promulgating supposedly secret law, particularly certain
memorandum prepared by the Department of Justice's Office of
Legal Counsel. I'm not convinced that these memoranda, however,
can truly be considered secret law as our courts have
understood that term. The D.C. Circuit's 1971 opinion on secret
law distinguished ``the ideas and theories which go into making
the law'' from ``the law itself'', suggesting that the latter,
but not the former, must always be made available to the
public.
OLC's legal opinions are the ideas and theories which go
into the making of the law and they do not affect the public
directly in the ways that other agency guidance or
interpretations may. Rather, the White House and executive
agencies use OLC's opinions to determine whether their proposed
policies comply with the law. his is a vital function within
the executive branch, one that sometimes requires that those
opinions be kept confidential.
Regardless, I believe--and I think our witnesses will
agree--that there are circumstances in which our natural
inclination towards openness in all branches of government must
be tempered by other considerations. We must take care to
value, of course, our national security. We must also be
sensitive to the reality that information we make available to
the public also becomes available to those who would do us
harm.
We must promote, to the extent practicable, executive
agencies' unfettered access to legal opinions on their proposed
policies without fear that ill-advised, and therefore rejected,
policies will become public. We must respect not only the
essential checks and balances that our constitutional system
provides, but also the privileges that it affords to each
branch of our Federal Government, including, however unpopular
at the moment, the executive privilege.
I'd like to thank our witnesses for taking the time to
appear before our subcommittee. I recognize that service as a
witness requires a significant commitment of time and effort
and a sharing of your expertise. It requires commitment both in
research and in preparing written testimony, traveling here,
and appearing in person before the Senate. So, I appreciate
very much your input and your thoughts. I look forward to it.
I appreciate the hearing, Mr. Chairman.
Chairman Feingold. Thank you, Senator Brownback.
We'll now turn to our witnesses. Will the witnesses please
stand? Would you all please raise your right hand to be sworn?
[Whereupon, the witnesses were duly sworn.]
Chairman Feingold. I thank the witnesses. You may be
seated. I want to welcome you and thank you for being here with
us this morning. I ask that you each limit your remarks to 5
minutes, as we have a full panel today and we need to finish up
in time for the joint session at 11. Your full written
statements will, of course, be included in the record.
We'll begin today with John Elwood. Mr. Elwood serves as
Deputy Assistant Attorney General in the Justice Department's
Office of Legal Counsel. He previously served in the Department
as Assistant to the Solicitor General and as an attorney in the
Criminal Division.
Before you start, Mr. Elwood, I want to mention that the
Department of Justice and the Office of the Director of
National Intelligence informed my office yesterday evening that
the administration plans to give the Senate Intelligence
Committee limited access to Office of Legal Counsel memoranda
related to the CIA's interrogation program. We were also
informed that parts of some memos may be made available to the
Judiciary Committee.
Certainly some access is better than no access, but that's
about the best thing I can say about this arrangement. First,
it took years to get this far. During that time, the Attorney
General refused to even talk to the Intelligence Committee
about the legal basis for the interrogation program, which I
strongly oppose on legal, moral, and national security grounds.
And now, the access that is being granted comes with strings
that will make it difficult for the committees to make use of
this information. I understand that the Intelligence Committee
members will not actually be given the memos to allow for a
thorough review, and the conditions of access for the Judiciary
Committee remain unclear.
So while I appreciate that there has been some movement
here, I don't think there's any way that we can say that
Congress is being provided what it needs with respect to these
memos. And none of this, of course, provides the public with
any information about how the executive branch interprets the
law governing torture.
So having said that, Mr. Elwood, I will have some questions
for you about this, but I would like you to now proceed with
your testimony.
STATEMENT OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, WASHINGTON,
D.C.
Mr. Elwood. Thank you, Mr. Chairman, Ranking Member
Brownback, and members of the subcommittee for giving me the
opportunity to discuss how the Office of Legal Counsel works to
balance the values of transparency, accountability, and the
confidentiality that is essential to the provision of candid
legal advice.
The Department of Justice shares the Subcommittee's
interest in ensuring that our government works in as
transparent and accountable a manner as possible. Indeed, our
Office regularly publishes opinions that address issues of
interest to the executive branch, to Congress, and to the
public, and our approach to publication is consistent with that
of prior Administrations.
At the same time, administrations of both parties have
recognized that policymakers within the executive branch, like
any decisionmaker, sometimes need to consult with attorneys
within the confidential bounds of the attorney/client
relationship. For 54 years, OLC has assisted the Attorney
General in his role as legal adviser to the President and
executive agencies. Confidentiality is critical in performing
that role as legal adviser to ensure that officials will be
willing to seek our advice at precisely those critical times
when it is most needed, and to ensure that our legal advice is
candid.
There are, thus, times when the national interest requires
that OLC advice remain confidential. There also are times when
OLC must provide advice on matters that other agencies and
offices have classified, for OLC lacks original classification
authority.
Under such circumstances, our confidential legal opinions
themselves cannot be made public, at least for a time. But this
does not mean that our confidential legal advice in any sense
constitutes ``secret law'' governing the lives of Americans.
First, OLC does not make law in the same sense that Congress or
the courts do. It is true that OLC opinions ordinarily are
controlling within the executive branch on questions of law.
While OLC's legal advice may inform its clients' policy
decisions, its legal advice rarely, if ever, compels the
adoption of any particular policy. Rather, it remains up to the
policymakers to decide whether, and how, to act. OLC, thus,
lacks the ability to affect private parties directly, and its
legal views are not binding on the legislative branch, the
courts, or the general public.
Second, even when the documents communicating our legal
advice to the client remain confidential, that does not mean
that a policy's basis in law is secret. If officials adopt a
policy that OLC has declared legally permissible, the policy
will be public unless it is classified, and appropriate
officials may be called upon to explain the policy, including
its basis in law. Classified activities are, of course, subject
to review by the Intelligence Committees.
In this manner the Department has provided Members of
Congress and committees with an explanation of its position on
legal issues of interest to Congress, while preserving the
confidentiality of legal advice on that issue from OLC to an
executive branch client. The Department has done so in
meetings, in conversations, in briefings, testimony, letters,
questions for the record, and in more substantial documents
such as the 42-page white paper providing the Department's
legal position on the NSA activities described by the President
in December 2005.
In recent months, the executive branch has even made copies
of confidential OLC opinions available to Members of Congress,
including highly classified opinions, as the Chairman mentioned
this morning. While such steps are extraordinary, the
Department is committed to working with Congress to find
appropriate ways to keep Congress well informed about the basis
in law for executive branch policies.
OLC recognizes the value of openness in government, which
promotes public confidence that the Government is making its
decisions through a process of careful and thoughtful
reasoning. By publishing OLC opinions when possible and by
making concerted efforts to accommodate congressional requests
for information, we strive to balance the values of
transparency and accountability, while maintaining the
confidentiality that is necessary to performing our historic
function--providing reasoned and objective legal advice.
I thank the Subcommittee for the opportunity to testify,
and would be happy to take any questions you may have.
Chairman Feingold. Thank you, Mr. Elwood.
[The prepared statement of Mr. Elwood appears as a
submission for the record.]
Chairman Feingold. Our next witness is Professor Dawn
Johnsen. Professor Johnsen is Professor of Law at the Indiana
University School of Law-Bloomington, where she teaches and
writes about issues of constitutional law, and especially about
presidential power.
During the Clinton administration she served in the Office
of Legal Counsel, first as Deputy Assistant Attorney General
and then as Acting Assistant Attorney General from 1996 to
1998.
Professor, thank you very much for taking time out of what
I know is a very busy schedule to be here. You may begin.
STATEMENT OF DAWN E. JOHNSEN, PROFESSOR, INDIANA UNIVERSITY
SCHOOL OF LAW-BLOOMINGTON, FORMER ACTING ASSISTANT ATTORNEY
GENERAL FOR THE OFFICE OF LEGAL COUNSEL, BLOOMINGTON, INDIANA
Ms. Johnsen. Thank you, Mr. Chairman and Senator Brownback.
My written testimony submitted for the record generally
discusses the harm of secret law, and especially the role of
OLC, where I served for 5 years.
I do want to mention, I think secret law is an appropriate
term for at least some OLC opinions because they do profoundly
affect the lives of private persons.
I would like, now, though, to address one aspect of the
Bush administration's secret law that I believe most profoundly
threatens the rule of law and democratic accountability, and
that is OLC's practice of issuing secret legal opinions that
essentially tell the President that he has the constitutional
authority to violate statutes.
Mr. Elwood, not surprisingly, did not focus on this precise
question. He talked more generally about the need for secrecy
in some instances. Clearly, the executive branch must protect
some national security information, and also some OLC opinions
must remain confidential and secret. That is beyond serious
dispute, and I'd be happy to answer questions about the details
of that.
But that is not what fundamentally brings us here today.
The more pointed question is, may OLC issue binding legal
opinions that in essence tell the President and the executive
branch that they need not comply with existing laws, and then
not share those opinions with Congress and the American people?
I would submit that, clearly in our constitutional democracy,
the answer to that question must be no.
There are at least two major problems with much of OLC's
legal advice regarding counterterrorism measures, and I'd like
to say a few words about each of these two.
First, on many occasions OLC wrongly advised the executive
branch that it did not need to comply with existing legal
restrictions. The basis for that flawed advice was an extreme
and plainly erroneous view of the President's constitutional
powers. For example, the March 14, 2003 OLC opinion released
last month sweepingly declared, ``Congress has no authority to
regulate the President's ability to detain and interrogate
enemy combatants, or to try them before military commissions.''
Many commentators, including Jack Goldsmith, who served at
the Bush administration's OLC, have detailed why this view of
presidential power beyond Congress's control is clearly and
dangerously wrong.
Problem two. OLC kept their profoundly flawed legal
interpretations secret, which made it impossible for there to
be any public debate, or scrutiny, or remedy of these extreme
legal views, or the government's actions in many cases that
were taken based on these views, actions that of course
included electronic surveillance here in the United States
without complying with FISA's court order requirements, the use
of extreme interrogation methods including waterboarding in
violation of legal prohibitions, indefinite detention of people
at Guantanamo Bay and secret prisons abroad.
As this Subcommittee well knows, in some cases Congress and
the public did not even learn about these violations of laws
for years, and only then after leaks, in many cases. The Bush
administration continues to withhold many legal opinions and
forces Congress essentially to legislate in the dark.
So this combination of the claimed authority not to comply
with the law and to do so secretly, it's a terrible abuse of
power without limits and without checks, and it clearly is
antithetical to our constitutional democracy.
I've appended to my written testimony a document entitled
``Principles to Guide the Office of Legal Counsel'', which I
co-authored in 2004 with 18 other former OLC lawyers in
response to the first leaked OLC torture opinion. Among the 10
principles, which were built on longstanding best practices at
OLC, is a call for OLC to publicly disclose its written legal
opinions in a timely manner, absent strong reason for delay and
non-disclosure. The principles explained that this will help
deter excessive claims of executive authority.
I'm going to read just one other of the principles:
``Absent the most compelling need for secrecy, any time the
executive branch disregards a Federal statutory requirement it
should publicly release a clear statement explaining the
deviation.''
Congress actually already has enacted legislation requiring
the executive branch to notify it if it declines to enforce or
defend a statute on constitutional grounds. The Bush
administration has evaded this by claiming it is simply
interpreting statutes to avoid constitutional problems. I would
recommend one statutory change which I have described in
greater detail in my written testimony. Congress should add a
requirement that the executive branch report any time it
interprets a statute to avoid a constitutional problem, as well
as when it admits that it is actually refusing to enforce the
statute.
I'm going to close by thanking the Subcommittee for its
work upholding the Constitution and holding the Government
accountable. [Applause].
Chairman Feingold. Thank you for your testimony.
[The prepared statement of Professor Johnsen appears as a
submission for the record.]
Our next witness is Bradford Berenson. Mr. Berenson served
as Associate Counsel to President George W. Bush from 2001 to
2003. He's now a partner in the Washington office of Sidley
Austin, and a frequent witness before the Judiciary Committee.
Mr. Berenson, we're glad to have you back. You may proceed.
STATEMENT OF BRADFORD A. BERENSON, PARTNER, SIDLEY AUSTIN, LLP,
WASHINGTON, D.C.
Mr. Berenson. Thank you very much, Mr. Chairman, Ranking
Member Brownback, and other members of the Subcommittee for the
opportunity to appear.
I would like to start where Ranking Member Brownback
started, which is with the question whether what we're really
discussing here this morning is secret law at all in the way
that most Americans watching this hearing would understand that
term.
I don't think that it is. It doesn't mean that the issue
isn't serious, it doesn't mean that there can't be problems or
haven't been abuses that are worth discussing. But the kinds of
things we're talking about, FISA Court opinions that interpret
the FISA statute, Executive orders, OLC opinions, those are not
sources of law that regulate the primary conduct of private
citizens. They are all fundamentally sources of law that
regulate the conduct of the executive branch itself. Again,
that doesn't mean they aren't important, but it means that the
issues of democratic accountability that are on the table today
have to be seen in a somewhat different light.
In particular, it means that we have to distinguish between
what we make public and what we give Congress access to. I
think in general terms it is far more important in some of
these areas where we may be dealing with classified activities
and classified information to ensure accountability through
having access in the Congress to the internal executive branch
law. Where Congress does have legislative authority and
responsibilities, then those sources of law which govern
internal executive branch activities should be made available
to the Congress. Obviously there's a value in all instances of
making information available to the general public. You can
stimulate debate and criticism and discussion, all of which
does tend to produce more thoughtful and more accurate
decision-making.
But as regards the general public, there are important
countervailing considerations that I think everybody here would
acknowledge. In general, executive branch law that is not made
public, generally public, is not made generally public for one
of two reasons. Either that's because it threatens harm to the
national security of the country--that's essentially the
classification issue--or because it involves confidential
advice, legal or otherwise, provided to the President about how
to discharge his constitutional responsibilities. Some scope
for receiving confidential advice is clearly essential to the
proper functioning of that office no matter who occupies it,
and I don't think that's terribly controversial, either.
Let's take the example of FISA Court rulings for a moment.
The FISA Court engages in a classic judicial activity and it
interprets a statute of Congress, the Foreign Intelligence
Surveillance Act. I think it's important for Congress to
understand how that Act is being interpreted, but because that
Act only guides government agents in how they conduct
themselves and sets the limits on what they can do in highly
classified areas of foreign intelligence, I think the broader
public interest in seeing those rulings, certainly to the
extent that they might disclose or hint at what is actually
being done in the foreign intelligence surveillance realm, is
outweighed by the needs of national security.
So long as Congress can understand what the court is saying
so that it can make legislative adjustments that it deems
appropriate, I think the public interest is largely protected
there, and that should occur through the mechanism established
by the National Security Act of 1947, through the oversight of
the Intelligence Committees.
I will say that I agree with Professor Johnsen on her
central criticism. I think there is an important interest in
safeguarding against abuse by making sure that when the
executive branch reaches a conclusion that a statute of
Congress is unconstitutional as applied to a particular course
of conduct, or even when it thinks the constitutional question
is so serious that it will strain hard to interpret a statute
to avoid it, there is a legitimate and strong interest on the
part of the Congress in knowing about that.
Again, I'm not sure the public has quite the same interest
because sometimes--particularly if this is occurring in the
defense or intelligence realm--the very existence of the legal
interpretation, and certainly the nature of it, can disclose
what we are doing. But I'm generally supportive of the notion
that the executive branch should be transparent with the
Congress, at least the appropriate committees of the Congress,
when circumstances like that arise.
Thank you very much for the opportunity to share my views,
and I look forward to answering any questions you may have.
Chairman Feingold. Thank you very much, Mr. Berenson.
[The prepared statement of Mr. Berenson appears as a
submission for the record.]
Chairman Feingold. Our next witness is J. William Leonard.
Mr. Leonard recently retired after 34 years of Federal service.
Between 2002 and 2007, he served as Director of the Information
Security Oversight Office, where he was responsible for
oversight of classification policy throughout the executive
branch. In 2002, the President conferred upon Mr. Leonard the
rank of Meritorious Executive.
Mr. Leonard, we're delighted to have you here and we thank
you for your long and fruitful government service. You may
proceed.
STATEMENT OF J. WILLIAM LEONARD, FORMER DIRECTOR, INFORMATION
SECURITY OVERSIGHT OFFICE, LEONARD- TOWN, MARYLAND
Mr. Leonard. Thank you, Mr. Chairman, Senator Brownback.
I'd just like to open by addressing one point that my
colleague, Mr. Berenson, made with respect to FISA Court
opinions and the fact that they only regulate the conduct of
the executive. I think such opinions are a classic example.
When you think about the significant surveillance capability
that this government has, I think it's of profound interest to
any American to know to what extent, and under what
circumstances, he or she may in fact be subject to Government
surveillance. I think such opinions are a classic example of
how even internal regulations are of profound interest to
Americans.
I'd like to focus most of my attention this morning on the
OLC memorandum that was released earlier this month, because
when it was released I was profoundly disappointed because I
believe it represents one of the worst abuses of the
classification system that I have seen. This memorandum is pure
legal analysis. It is not operational in nature. Its contents
give no advantage to the enemy. To learn that such a document
was classified had the same effect on me as waking up one
morning and learning that, after all these years, there was a
secret article to the Constitution that the American people
somehow didn't know about.
Whoever, affixed classification markings to this document
had either profound ignorance of, or deep contempt for, the
process set forth by the President in which he delegates to
certain Government officials his authority to restrict
dissemination of information in the interest of national
security. The classification of this memo is wrong on so many
levels, and I provide specific details in my prepared written
testimony.
What is equally disturbing is that this memo was not some
obscure document written by a low-level bureaucrat who did not
know any better and had inadequate supervision. Rather, the
memo was written by the Deputy of the OLC, the very entity
which has the responsibility to render interpretations of all
Executive orders, to include the governing order that
distinguishes between the proper and improper classification of
information.
The effects of inappropriately classifying the OLC memo are
visible to all. Use of classification in this instance is a
prime example of how classification is used not for purposes of
national security, but rather as a bureaucratic weapon to blunt
potential opposition. Reportedly, top lawyers for the military
services did not receive a final copy of the OLC memo, in part
because they opposed the harsh interrogation techniques
endorsed in the memo, as well as the lack of transparency about
how we handle enemy combatants, all out of concern for our own
men and women sent into combat; again, another example of how
the American people are directly impacted by these types of
decisions.
The OLC memorandum is but one example of an issue with
respect to the balance of constitutional powers. It's long been
recognized that the President must have the ability to
interpret and define his constitutional authorities, and at
times to act unilaterally. The limits of the President's
authority to act unilaterally are defined by the willingness
and the ability of the Congress and the courts to constrain it.
Of course, before the Congress or the courts can constrain
presidential claims they must first be aware of those claims.
Yet, a long-recognized power of the President is to classify,
and thus restrict, the dissemination of information in the
interest of national security.
The combination of those two powers of the President--that
is, when the President lays claim to power to act unilaterally,
but does so in secret--can equate to the very open-ended
executive authority that the Constitution's framers sought to
avoid in constructing a system of checks and balances.
Added to this is the reality that the President is not
irrevocably bound by his own Executive orders, and this
administration claims the President can depart from the terms
of an Executive order without public notice. Thus, at least in
theory, the President could authorize the classification of the
OLC memo, even though to do so would violate the standards of
his own governing Executive order.
Equally possible, the President could change his order
governing secrecy and do so in secret, all unbeknownst to the
Congress and the courts. It's as if Lewis Carroll, George
Orwell, and Franz Kafka jointly conspired to come up with the
ultimate recipe for unchecked Executive power.
There are, I believe, a number of tools at the disposal of
Congress to address this issue. In my prepared written
testimony I make suggestions with respect to how Congress can
leverage agency Inspectors General, as well as the Public
Interest Declassification Board, in ferreting out similar
abuses of the classification system. I also make other
recommendations with respect to enhancing transparency in this
area.
I appreciate the opportunity to provide my perspective on
this issue and look forward to any questions or comments the
members of the Subcommittee may have.
Thank you.
Chairman Feingold. Thank you so much, Mr. Leonard.
[The prepared statement of Mr. Leonard appears as a
submission for the record.]
Chairman Feingold. Our next witness is David Rivkin. Mr.
Rivkin served in a variety of legal and policy positions in the
administrations of Ronald Reagan and George H.W. Bush,
including positions at the White House Counsel's Office, the
Office of the Vice President, the Department of Justice, and
the Department of Energy.
He's currently a partner in the Washington office of Baker
Hostetler, LLP. He has also appeared before the Judiciary
Committee before, and we thank him for taking time to be with
us this morning.
Mr. Rivkin, you may proceed.
STATEMENT OF DAVID B. RIVKIN, PARTNER, BAKER HOSTETLER,
WASHINGTON, D.C.
Mr. Rivkin. Chairman Feingold, Ranking Member Brownback,
Senator Whitehouse. I am glad to meet with you this morning. I
want to spend just a few minutes putting the issue we are
discussing today, the so-called secret law, in its proper legal
and policy context.
I think we all agree that the United States finds itself
today committed to a difficult and protracted military,
ideological, economic conflict with a very difficult enemy,
typified by such groups as al Qaeda and the Taliban. We
obviously did not seek this conflict, but this is a conflict we
must prosecute well and win.
To do so, it is essential that the U.S. Government act
within the proper legal paradigm. Indeed, contrary to what many
people believe, war is not a domain of pure violence but is one
of the most rule-driven human activities.
In this context and September 11, the Bush administration
has embarked on a concerted effort to resolve many difficult
issues of both international and domestic law raised by this
conflict. These issues include the applicability of the 1949
Geneva Conventions to the complex al Qaeda and Taliban, rules
governing collection of electronic intelligence and other types
of intelligence, and a whole host of other issues.
Much of this analysis was originally classified. In my
view, this is neither inappropriate nor unprecedented. The
issues of attorney/client privilege and executive privilege
aside, keeping this material secret from the enemy is, and
remains, a vital necessity.
Much of the legal analysis prepared by the administration
was either based upon sensitive factual information, but did
not contain the facts by establishing what are the parameters
for future administration behavior. It certainly would reveal
how the U.S. Government would operate in certain circumstances,
and therefore was very important to keep it secret.
Now, I realize that a number of the administration's legal
positions, as they become publicly known as a result of leaks
to the media or declassification decisions, have attracted
considerable criticism, some of which we heard this morning and
many other times in the past, and I'm sure in the future.
I want to submit to you the questions that the
administration's lawyers have sought to address, particularly
dealing with issues governing the interrogation of captured
enemy combatants, uncomfortable and difficult issues that do
not mesh well with our 21st century sensibilities.
Many legal conclusions have struck many people as
excessively harsh. Some of them, of course, have been watered
down or amended as a result of internal administration debate
or as a result of public and political pressure brought to bear
upon the administration.
While I don't concur with every single aspect of the
administration's post-September 11 wartime policies, I would
vigorously defend the exercise of asking difficult legal
questions and trying to work through them. To me, the fact that
this exercise was undertaken at all attests actually to the
vigor and strength of our democracy and the administration's
commitment to rule of law, even in the most serious
circumstances. In this regard, I want to point out that few of
our democratic allies have ever engaged in so probing and
searching illegal exegesis more times. Let me just briefly
mention that I happen to do a fair amount of these type of
debates with European friends. For example, whenever I ask our
British friends, who of course face, in my opinion, a far less
existentialist threat in dealing with IRA, the extent to which
their interrogation, detention, and other policies had been
predicated upon a concerted effort to obtain legal advice. The
answer I get is, we did not do nearly as much of that.
I would also strongly defend the overarching legal
framework chosen by the administration. In fact, I think the
critics' rejection of this overarching legal framework, which
is properly found in the laws of war paradigm, is the basis for
so much of the criticism we hear today.
Let me stop the rest of my prepared remarks and just point
out one thing, with all due respect to Professor Johnsen. The
proposition that the President has both a right--indeed, an
obligation--to disregard constitutional statutes is certainly
not an old one. In fact, if you look at OLC jurisprudence,
probably the best work done in this area is done by none other
than Walter Dillinger during the Clinton administration tenure,
and I would certainly commend everybody to that opinion.
Let me also point out that it is absolutely true that
whenever an administration believes that a particular
congressional enactment is unconstitutional either in whole or
in part, it should say so. I somewhat chuckle when I hear this
observation, because of course typically the administration has
done that in the content of a signing statement. As some of you
undoubtedly know, that practice has also been somewhat
controversial, so it's somewhat difficult for me to figure out
exactly how the President can convey, without arousing
criticism from you, that a particular statutory enactment is
unconstitutional.
Thank you very much for your time, and I'll look forward to
answering your questions.
Chairman Feingold. Thank you, sir.
[The prepared statement of Mr. Rivkin appears as a
submission for the record.]
Chairman Feingold. Our next witness is Professor Heidi
Kitrosser. Professor Kitrosser is an Associate Professor at the
University of Minnesota Law School. She's a scholar of
constitutional law who has written extensively on the
separation of powers, government secrecy, and free speech.
Professor, I appreciate your coming to D.C. today to give
us your testimony, and you may proceed.
STATEMENT OF HEIDI KITROSSER, ASSOCIATE PROFESSOR OF LAW
UNIVERSITY OF MINNESOTA LAW SCHOOL, MINNEAPOLIS, MINNESOTA
Ms. Kitrosser. Thank you, Chairman Feingold, Ranking Member
Brownback, Senator Whitehouse. Thank you very much for inviting
me to testify on secret law and the threat that it poses to
democratic and accountable government. My testimony will
consider the light that constitutional law sheds on the topic.
I do want to start, first, though, by echoing the point
made by both Professor Johnsen and Mr. Leonard, that indeed,
secret law, I think, is a very appropriate characterization of
the types of decisions and materials that we're addressing here
in this hearing as opposed to routine legal or administrative
advice or discussion.
Rather, the types of decisions that we're addressing here,
whether in the form of secret OLC memoranda or in the form of
secret Executive orders, are decisions that establish
Government policy of the executive branch that impact countless
individuals, such as, for example, decisions to circumvent
existing limitations on surveillance of American citizens, and
in particular where this is done in circumvention of existing
publicly known law that the public has every reason to believe
is being followed. It is particularly important that this
replacement of existing law be out in the open. So when
openness is not adhered to in this context, I think it is quite
appropriate to characterize what is occurring as secret law.
All right. With that in mind, I wish to make two main
points today, again, about the light the constitutional law
sheds on this topic. First, the text, structure, and history of
the Constitution reflect a brilliant design that reconciles the
dangers of Government secrecy with the occasional need for
secrecy.
Under the Constitution, policy decisions--again, the types
of decisions we're talking about today as opposed to routine
legal advice--presumptively are transparent in nature, but the
executive branch retains some limited leeway to implement those
transparent policies in secret.
Furthermore, the Constitution gives us structural
mechanisms, such as Congress's oversight capacity, to check
even secret implementation of transparent policies to ensure
that it does not cloak circumvention of the law--again, to
oversee the distinction between implementation and policymaking
is being observed.
Second, over the past several years we have seen a
disturbing trend whereby the executive branch has taken its
structural capacities to secretly implement law and abuse them
to secretly make new law and to circumvent established law. The
damage of this trend is exacerbated by the fact that the
executive branch has circumvented not only substantive law, but
also procedural law such as statutory mandates to share
information with Congress.
On the first point of constitutional design, we see a
careful balance between secrecy's virtues and its risks in the
Constitution's text and structure. Specifically, we see a
negative correlation in the Constitution between the relative
openness of each political branch and the relative control that
each branch has over the other. Congress is relatively
transparent and dialogue-driven. The executive branch, in
contrast, is structurally capable of much secrecy, but also is
largely beholden to legislative directives. Thus, the executive
branch again can be given leeway to operate in secret, but
remains subject to being overseen or otherwise restrained in
its secrecy by the legislature.
Looking at history, we see an understanding by the Founders
that such a balance would, indeed, be struck. Among the
President's claimed virtues was a structural capacity for
secrecy, yet it was equally crucial to the Founders that the
President would be constrained through legislation, oversight,
and other means.
As Alexander Hamilton put it, one person ``will be more
narrowly watched and most readily suspected.'' In short then,
the Constitution reconciles competing needs for openness and
secrecy by giving us an executive branch that has the
structural capacity to keep secrets but that must operate
within policy parameters that are themselves transparent and
subject to revision.
On the second point as to recent events, we increasingly
see a dangerous breakdown in the structure. For example, as was
alluded to earlier, we know now that for years the
administration relied on a series of secret Executive orders
and secret legal opinions, many of which to this day remain
classified, in order to run secret surveillance and
interrogation programs. Furthermore, the existence of these
programs was made possible in part by the additional
circumvention of statutory disclosure mandates by the executive
to Congress.
Finally, let me end by noting that these events turn the
constitutional structure upside down, seizing for the executive
branch the power not only to legislate, but to create secret
alternate legislative regimes. The only thing that could make
matters worse would be for such events to become normalized in
the eyes of Americans. I fear that we have already started down
this road and I urge Congress to use its substantial
constitutional powers of legislation and oversight to make
clear to the executive branch and to all Americans that secret
law has no place in our constitutional system.
Thank you very much.
Chairman Feingold. Thank you very much, Professor.
[The prepared statement of Professor Kitrosser appears as a
submission for the record.]
Chairman Feingold. Our last witness today is Steven
Aftergood. Mr. Aftergood is a senior research analyst at the
Federation of American Scientists, where he specializes in
national security information and intelligence policies. He
directs the FAS Project on Government Secrecy, and he writes
and edits Secrecy News, an e-mail newsletter and blog which is
read by more than 13,000 subscribers in media, Government, and
among the general public. He has won numerous awards for his
work in this field.
Mr. Aftergood, thank you for coming this morning. You may
proceed.
STATEMENT OF STEVEN AFTERGOOD, DIRECTOR, PROJECT ON GOVERNMENT
SECRECY FEDERATION OF AMERICAN SCIENTISTS, WASHINGTON, D.C.
Mr. Aftergood. Thank you, Chairman Feingold, Ranking Member
Brownback, and Senator Whitehouse.
In October 2004, former Congressman Helen Chenoweth was
attempting to board a United Airlines flight from Boise to Reno
when she was pulled aside for additional security screening.
She was told she needed to undergo a physical pat-down. Before
doing so, she asked to see the TSA regulation that authorized
such a procedure. She was told she could not see it because it
is designated ``sensitive security information'' and could not
be disclosed. She declined to submit to a pat-down under those
circumstances and she was not permitted to board the aircraft.
This is a scenario that has played out innumerable times
since the Transportation Security Administration decided to
withhold its security directives from public disclosure. It
means that secret law is not just a metaphor, it is a reality
of our time in the most literal sense. There are binding
requirements that purport to regulate Americans' conduct, but
that cannot be examined or reviewed by them. I have attempted
to catalog many of these categories of secret law in my written
statement.
One of those that has already been mentioned a couple of
times is the secret opinions of the Foreign Intelligence
Surveillance Court. As we all know, the court is charged with
reviewing Government applications for electronic surveillance
and physical search to ensure that they are consistent with the
law. What is not as well known is that the court has repeatedly
reinterpreted that law, yet its interpretations are secret. Of
course, I would emphasize I'm talking about legal
interpretations, not operational information. Everyone
understands that there are sensitive operational considerations
that have to be protected.
What is harder to understand is how legal analysis and
interpretation can be kept secret. But since it is secret, the
current debate over whether, and how, to amend the Foreign
Intelligence Surveillance Act is occurring in a significant
vacuum and Americans' own understanding of the law is obscured.
If I travel abroad, are my communications protected from
warrantless surveillance or not? It's hard for me to get a
definitive answer. Under what circumstances could my
communications, my telephone calls abroad or my e-mails, be
subject to interception? Again, it's very hard to get a clear
and complete answer. In this way, the rule of law is
diminished.
Now, if secret law produced wise, effective policy, then
that would have to be weighed in its favor. But to our dismay,
we have repeatedly seen that secret law actually distorts the
decisionmaking process and it often produces bad policy that
cannot stand the light of day. The clandestine endorsement of
torture or coercive interrogation as official policy is proof
of that.
The idea of secret law, courts have said, is repugnant.
Thank you for holding this hearing to help shed some light on
this repugnant phenomenon and for helping to keep it at bay.
Last, I would say that I was glad to hear the news from
Chairman Feingold that the administration has decided to yield
a bit on disclosure of OLC memoranda on interrogation, but I
was only a little bit pleased because it sounds like I'm not
going to see them and it's not clear that this Committee will
either.
I would observe that the flip side of secret law is
tactical disclosure, that is where information is disclosed at
a time and in a way that advances a particular policy agenda.
That is not the way to conduct the affairs of the world's
greatest democracy, or any democracy. I hope that this
Committee can help find a way to bring order to this practice
in a way that serves the public interest.
Thank you very much.
Chairman Feingold. Thank you very much, Mr. Aftergood, and
all the witnesses.
[The prepared statement of Mr. Aftergood appears as a
submission for the record.]
Chairman Feingold. Before we start the questions, I want to
briefly address the notion that an OLC memo is not what courts
would consider secret law. The Supreme Court has held that
``opinions and interpretations which embody the agency's
effective law and policy'' must be disclosed precisely because
it would be ``secret law'' not to do so. That definition
clearly would cover some OLC opinions.
Let me also comment on the notion that giving Congress
information is sufficient to address some of these issues and
the public can be kept in the dark. Members of Congress are
representatives of the people. We need to, and should, give
great consideration to the input of the public. Unless there
are specific national security reasons to keep information
private, we should always strive to give the public as much
information as possible so that we can better do our job of
representing them.
We will now turn to questions for the witnesses. We'll
start with 7-minute rounds.
Mr. Elwood, in your written testimony, you argue that OLC
doesn't make ``secret law'' because its legal views are not
binding on the legislative branch, the courts, or members of
the general public.
But OLC's legal views are binding on the executive branch,
and your statement, therefore, goes to the very heart of the
problem: the complete absence of checks and balances when the
executive branch makes law in secret.
By saying that OLC's legal views are not binding on the
legislative branch, you acknowledge that Congress can override,
through legislation, the otherwise binding legal interpretation
of OLC. But Mr. Elwood, Congress can't exercise that
prerogative if it doesn't know what OLC's interpretation is,
can it?
Mr. Elwood. Two things. First of all, I'd like to--well, I
will address the second question first, because that's the most
recent. Just because we don't turn over our communications to
our client embodying our views doesn't mean that you can't know
what our position on the law is. Whenever a policy is adopted--
and this is the reason why OLC opinions aren't law because they
don't become law until some agency decides to choose among the
various legal possibilities and say this is the policy we're
going to adopt. At that point when it starts operating on the
public, I think you can reasonably call that law.
But once it becomes public like that, you can ask us all
day long for what our legal position is on the matter. The only
thing that we think there's a confidentiality interest is in
the deliberative communication to the client of what that law
is. So to choose any example you want for a public policy, you
could say, why are you adopting this policy? An appropriate
witness can come up or we can write you a letter and say, this
is the basis in law for that position. That's how Congress can
legislate.
Chairman Feingold. I understand what you're saying, but
I've been a legislator for 26 years. Simply being given a
general policy position, as opposed to knowing exactly what the
rationale is, makes it very difficult to legislate. It makes it
extremely difficult to anticipate exactly what we need to say
in the law in order to make sure the Executive doesn't try
again to resist it.
Mr. Elwood, you've testified that ``we remain committed to
working with Congress to find appropriate ways to keep Congress
well-informed about the basis in law for executive branch
policies.'' In fact, until now, the administration has refused
to share with Congress OLC opinions on the CIA's interrogation
program. When I asked Attorney General Mukasey if he would
brief the Intelligence Committee behind closed doors on the
legal justification for the program, he refused on the ground
that the OLC memos spoke for themselves, even though we were
not allowed to see them. That was where things stood for years,
which doesn't strike me as demonstrating a commitment to
keeping Congress well-informed.
As of yesterday, as we talked about, the administration has
now decided to provide the Intelligence Committee with limited
access to these opinions. As I've indicated, this is certainly
too late, and from what I understand too little, as well. But I
would like to ask some follow-up questions with regard to this.
Will the interrogation memos that you'll be providing the
Intelligence Committee include all the memos on interrogation,
including those that are currently in effect and those that are
no longer in effect?
Mr. Elwood. It's my understanding that the memoranda that
are going to be provided to the Intelligence Committee are
going to be unredacted copies of all the memos, both in effect
and those no longer in effect. That's correct.
If I might, I was not involved in briefing the Intelligence
Committees earlier, but it was my understanding that they
were--although they were not provided with copies of the
opinions, that they were briefed on the legal basis for the
policies, both of the Intelligence Committees, and Mr. Bradbury
testified in front of House Judiciary on the legal basis for
the current interrogation policies. Certainly it is my
understanding that we wish to provide you an understanding of
our basis in law for all of these positions. So I would just
say, at the risk of irritating my colleagues who actually
provide these briefings, just keep asking.
Chairman Feingold. Okay. And can you confirm that if there
are any new OLC memos that supersede the memos you're making
available, that they, too, will be provided to Congress as soon
as they go into effect?
Mr. Elwood. It's my understanding that the Intelligence
Committees are going to get all of the opinions on
interrogation.
Chairman Feingold. And going forward?
Mr. Elwood. That is something I simply don't know one way
or the other. The only thing I know of is what was said
yesterday.
Chairman Feingold. All right.
Now, will all these memos we're discussing be made
available to the Judiciary Committee?
Mr. Elwood. I understand that those discussions are still
ongoing, but we are seriously committed to making an
accommodation that will get the Judiciary Committee the
information it needs.
Chairman Feingold. In the same form or in a redacted form?
Mr. Elwood. I believe that--well, I think this is still the
subject of negotiation, so I'm not prepared to say anything
further other than the fact that they are very interested in
working something out.
Chairman Feingold. All right. We'll have to take a close
look at any proposed redactions to make sure that this
Committee has what it needs to evaluate the legal issues.
Will you agree to make these memos public, with appropriate
redactions to protect sensitive information about specific
operational details?
Mr. Elwood. Senator, I'm not in a position to say one way
or the other. It's really not up to me. But our main goal right
at the moment is to make sure that Congress has the information
that it needs to be apprised of our policies, as you say, so it
can legislate.
Chairman Feingold. I will certainly be engaged, as will I
think some of my colleagues, in getting as much appropriate
public access as possible.
Going back to your testimony that OLC's legal views are not
binding on the courts, it is reassuring that you admit that a
court's interpretation of the law would trump the
interpretation of the executive branch. I think I'd be a little
more reassured, though, if the Administration weren't
simultaneously arguing that the courts aren't allowed to decide
many of these issues because it would require the disclosure of
``state secrets.''
A court can't override the executive branch's legal
interpretation of, for example, its wiretapping authority if
the court is prevented from deciding the case, can it?
Mr. Elwood. Senator, I think that the way the Government's
wiretapping authority would be decided would be in courts that
issue wiretap warrants. Civil suits, it's a different matter.
Where the state secrets privilege is asserted is in civil
litigation, which doesn't directly involve wiretapping. It only
does through imposition of damages, I would imagine. I'm not
involved in state secrets practice. That's principally handled
by the Civil Division. I know that Carl Nichols has testified
on that. But I would simply want to note that all we can do,
all the executive branch can do, is make our position known to
the courts that certain material is state secrets, and it's up
to the judiciary to decide whether or not they agree.
Chairman Feingold. Mr. Elwood, thank you for your answers
to my first round of questions.
Now we'll turn for a round to Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman. Thank you to
the panel. I appreciate the discussion.
In starting on a premise of this, as a recovering lawyer
like the Chairman, some of this I look at and I think, I want
the administration asking a whole bunch of legal questions all
the time. I want them asking these questions a lot. I want them
asking lawyers and various agencies and branches a lot of
various ways and avenues.
My guess is that if we get into a very tight practice of,
all legal opinions have to be disclosed--and I know none of you
are saying all legal opinions have to be disclosed, but you're
pushing that a lot more of them be disclosed--that there'd be a
tendency to ask a lot less legal questions. People would say,
well, let's not ask because if we do then this sort of
information has to be disclosed, or we're going to get in some
gray category and then we're going to get some committee asking
us questions about this, so let's just not ask the question.
Maybe that doesn't happen. My sense of it is that people
generally practice in ways that they think are going to be
least subject to criticism so that they just won't ask
questions. Maybe I'm off on that. That's one premise that I
think we need to be careful about in looking at this.
Having said that, Mr. Berenson, you suggested at the end of
your testimony there was a particular area here that you
thought needed to be probed further in your agreement. I'd like
for you to develop that particular area some more because I
thought that was interesting, but I'm not sure I comprehended
fully what you were discussing on that.
Mr. Berenson. Was this the moment when I was responding to
Professor Johnsen's suggestion about avenues for disclosure to
the Congress?
Senator Brownback. Yes.
Mr. Berenson. I think it is obviously true that there are
instances when statutes passed by Congress are
unconstitutional. We see it every year in the Supreme Court.
They can be unconstitutional for a variety of reasons, and
rarely, but sometimes, a statute will transgress the
President's Article 2 powers that belong to him alone. So there
are going to be circumstances in which it is perfectly
legitimate for the executive branch to reach a constitutional
conclusion that a statute, in some particular circumstance as
applied, has gone too far and has restricted the President's
freedom of action in a way that is inconsistent with the
constitutional design.
When that happens, I agree that there is a serious danger
of abuse and essentially self-aggrandizement by the Executive
if the executive can reach that conclusion without apprising
the coordinate branch of Government that passed the statute in
the first place.
There is already law on the books which suggests that when
the Executive concludes that a statute is unconstitutional and/
or decides not to defend it in court, the Executive needs to
apprise the Congress. I think that's the right rule. Depending
on circumstances, you may need to do that just with the
Intelligence Committees, or in closed-door briefings if they
would compromise operational information about intelligence or
military activities.
But the best practice, I think, is for the Executive to be
transparent with the legislative branch when it reaches that
conclusion. The difficulty arises when the Executive doesn't
forthrightly conclude ``this is unconstitutional as applied to
us'', but rather says this might be unconstitutional. It's so
close to being unconstitutional that we're going to interpret
the statute in another way.
That doesn't fall within the ambit of the existing law, but
it is evidence that the Executive has concluded that the
statute might be, or could be, or probably would be
unconstitutional. That's where the gray area is. I think I
agree with Professor Johnsen that even in those circumstances
there should be some mechanism for inter-branch discussion so
that there isn't abuse.
Senator Brownback. So we should pas some sort of law
addressing that particular area and requirement of disclosure
for the legal opinion on which the basis of a constitutional
question or probability of unconstitutionality exists?
Mr. Berenson. I think Professor Johnsen has probably
thought a lot more deeply than I have about the precise
mechanism, but I suspect that a few words added to the existing
provision would be sufficient to accomplish that objective.
Senator Brownback. Professor Johnsen, I'm on limited time,
but could you describe that narrow category for me? I'm sure
you want to talk about a whole bunch of things, but I've got
limited time. If you could, just hit that category.
Ms. Johnsen. Yes, certainly. I'm very glad to hear Mr.
Berenson agrees that would be helpful. The category arises
because very often the Bush administration, in particular,
rather than acknowledge that they are declining to comply with
the statute outright, instead they say we will interpret the
statute in a way that is not consistent with the statute's
plain meaning, because to construe it the way that it's written
would violate what the Bush administration views as the
President's constitutional authorities.
So they say, it seems the statute says X, but we'll
interpret it to say Y, because if we say it says X as it seems
to it would violate their view of the President's sweeping
constitutional authorities to act unilaterally. So that's not
captured by the existing reporting requirement, and I do think
it could be changed with the addition of a sentence or so.
Senator Brownback. And your testimony has that particular
provision thought through? It seems like, Mr. Berenson, it
would be great if you could review that that they have in there
and give the Committee some recommendations on this.
Mr. Rivkin, just briefly, you have concerns, in the
asymmetrical warfare that we're in right now, on the impact of
some of what is being suggested by some of the panel members, I
take it.
Mr. Rivkin. I do, Senator Brownback. Very briefly, to me
one of the biggest problems of the critics is that I have not
heard any of them acknowledge that the balancing, the baseline
for balancing, the openness and public safety is any different
now than it was prior to 9/11. But also, let's be honest about
it. It's a question of what to disclose. Disclosing the bottom-
line policy position, disclosing the bottom-line legal position
is one thing. Disclosing the ebb and flow of legal advice does
entail significant consequences. Let's be candid: it chills the
candor which people offer legal advice, because unfortunately,
this debate is not being carried out in a particularly
dispassionate and collegial manner.
People whose advice is revealed, shall we say, don't
prosper, they don't get confirmed, they get ostracized, people
write nasty articles in various magazines suggesting they be
tried for war crimes. The long-term implication of disclosing
the ebb and flow of legal advice is very simple. Any
administration would have fewer and fewer lawyers.
You mentioned correctly, the Executive would not ask for
advice. But even if he does--or she does--he wouldn't get
candid opinions, which would be bad all the way around from the
standpoint of a vigorous democratic accountability. So there's
a huge price to be paid, and for the life of me I don't
understand every nuanced aspect, ebb and flow of legal advice,
is necessary for you to legislate as long as you know what the
Executive's bottom-line legal conclusion and policy conclusion
is. I suspect a lot of our disclosures is really not driven by
the legislative needs, it's driven by the sort of interagency,
interbranch--
Senator Brownback. Tension.
Mr. Rivkin. Political warfare and tension with
consequences. Does anybody really doubt that there are
consequences to people whose legal advice is revealed, as they
go forward with the rest of their lives and careers? I wish it
would not be the case. Frankly, if that were not the case I
would be a lot less concerned about the disclosure of this
information.
Senator Brownback. Thank you.
Thank you, Mr. Chairman.
Chairman Feingold. Thank you, Senator Brownback.
I can tell you as a legislator, based on my experience in
trying to deal with the illegal wiretapping program, the
shifting justifications that just kept flying at us, after we
shot down the notion that somehow the Authorization for Use of
Military Force was a justification, show exactly why we need to
know the scope and the depth of the legal justification, or you
can't legislate because every time you legislate they come up
with some new, usually absurd, argument to justify what was
illegal. So that is why it's important for me, as a legislator,
to know that.
Senator Brownback?
Senator Brownback. If I could make just a brief comment. I
appreciate your delving into this because it is a significant
issue and it's a significant one we need to know about. But I
have been witness, and I think you have too--a couple of the
people on the panel have served in administrations--of the
internal administration fighting that goes on, because you've
got a bunch of bright people that hold their position strongly.
I think if you're saying, okay, we want to know about the ebb
and flow of this, it's really more of a political debate than
once it gets out in front of, this group says this and that one
says that.
Now, probably that's not specifically what you're asking
for, but if we don't provide some protection for that
discussion you are either not going to have that or you're not
going to have it in writing and it's all going to be oral, or
people just aren't going to ask the question and you're going
to have poorer administration decision-making taking place. I
think there's a danger in us doing that to the administration
that we shouldn't.
Chairman Feingold. I won't continue this long, but I think
this is healthy for us to discuss. You mentioned people having
served in the administration. We've got a couple of them here
who have served in different administrations, Professor Johnsen
and Mr. Leonard, who agree with my proposition that this is
something we have to deal with, and apparently aren't terribly
concerned about this alleged chilling effect. So we have
testimony right here from people to serve in both Republican
and Democratic administrations who say the opposite.
Senator Brownback. Well, you've got Mr. Rivkin who has
testified differently who has served in another administration,
so you've got, even on your panel, a dispute relative to this.
I think what we could focus on, though, is you do have an
agreement of a narrower category here that I think would be a
more interesting, more likely to produce results probe of what
Mr. Berenson was suggesting in an agreement with Professor
Johnsen. I mean, I think if you tightened in on your focus more
there is some possibility here.
Chairman Feingold. You know, I may well be able to work
with you on that. I think that has a lot of merit. I'm hoping
we can come together in the way they came together on this
matter.
Now I am pleased to turn to Senator Whitehouse, who of
course is a distinguished member of the Committee. I want to
repeat my compliment to him on the excellent work he did in
helping reveal this problem of Executive orders being rescinded
in secret. I thank you, and I turn it over to Senator
Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. I appreciate
those kind words very, very much.
Mr. Berenson, you and I probably disagree on a great number
of things, but I have to tell you that I was impressed by your
testimony. I found it very lucid, very disciplined, very
thoughtful, the sort of thing that I would hope to find in OLC
opinions and recently have not.
But if I accept your proposition, as I think most people
do, that there is a necessity for secrecy in various aspects of
Government operations, and that necessity for secrecy in turn
provides benefits back to the public through public safety if
it's being done correctly, I would suggest to you that when an
administration chooses to exercise the privilege of secrecy
that it is given, when it chooses to pull that mantle of
secrecy over its actions, it undertakes at the same time a very
high and solemn obligation to use that zone of secrecy in a
proper way, for two reasons. First, it's just indecent not to
and it runs contrary to Government principles in our American
system of democracy.
But from a practical point of view, if you foul the nest,
if you will, then you create the skepticism and concern that
Congress has now and you create the risk that we will tighten
down on these security issues, and fundamentally you put future
administrations and the public safety that it is the very
purpose of secrecy to safeguard, in the future at risk as a
result of having done it. It's kind of a complex version of
crying wolf. I'd like to hear your reactions to that analysis.
Mr. Berenson. Thank you, Senator. I think I can say that
I'm in complete agreement with that analysis. Both of the
reasons you identify for exercising the privilege to keep
something secret, I think, are exactly correct. There are
manifest benefits to open debate, discussion, and criticism
that you lose when something is secret, and, as with almost any
authority, when you abuse it you undermine the rationale for
having it in the first place and you threaten it in the future.
It is very difficult day-to-day operationally inside the
Government, as all of this is happening in real time through
the Department of Defense, the intelligence community, and the
White House, to find a good way to police it and to guard
against abuse. There are inevitable self-interested tendencies
that cause people to use this power when they have it, and some
of those have been alluded to by other members of the panel. It
can sometimes be a way to win a bureaucratic war by controlling
information to insulate yourself from criticism, to essentially
get your way.
You can convince yourself, delude yourself into thinking
that you're making something secret in order to protect the
larger national security interests. Ultimately, it comes down
to the judgment and good faith of the individuals who serve in
the Executive branch. I'm not sure there's much other
alternative, and it's why another of this body's powers is so
vital, namely the power of confirmation.
Senator Whitehouse. Let me ask you a quick, admittedly
hard, question. To the extent that the classified opinions of
OLC have been made public and you are familiar with them, do
they meet that high standard?
Mr. Berenson. I think that this is another area where being
at 5 years distance from my own Government service gives me a
little more freedom and a little more perspective. I do think
that there is a strong argument that some of these memos that
we've been discussing this morning should not have been
classified and that they did not comport with the standards
that we've been talking about. Part of the reason for that, I
think, is that they were constructed structurally in a way that
I don't think they should ever have been, or that any OLC
opinion should ever be, namely divorcing the discussion of law
from the facts to which it is applied.
OLC should be asked concrete questions about particular
policies and practices and render an opinion no broader than
necessary to answer that specific question. That fundamental
flaw, that original sin in the way these memos were
constructed, I think, led to the creation of an opinion that
probably shouldn't have been classified, but in the minds of
the classifiers was properly classified because it was part and
parcel of other documents that were being considered
simultaneously.
Senator Whitehouse. Let me ask Mr. Leonard a quick
question, because he's the person with the greatest expertise
in the classification process I've ever had the occasion to
come across. I was interested, on page 6 of his testimony,
where he quoted Jack Goldsmith's observation that before Mr.
Goldsmith arrived at OLC, ``not even NSA lawyers were allowed
to see the Justice Department's legal analysis of what NSA was
doing.''
Now, that implies, to me, that the legal analysis
supporting a classified program is more highly classified than
the classified program itself, because clearly the NSA knew
what the heck was going on. They were doing it. So why on earth
would NSA, in any respect, be prohibited from seeing legal
analyses? In what world does it make more sense for the legal
analysis supporting a classified program to be more highly
classified than the program itself?
Mr. Leonard. That's an excellent observation, Senator. I
mean, I have a very simple question I ask whenever I encounter
this type of situation: from who are we trying to keep the
information? When you answer that question who, that often will
tell you the why, why is this being applied. As Mr. Berenson
pointed out, and as I have, it's often done because of internal
bureaucratic struggles.
Senator Whitehouse. Will we have a second round, Mr.
Chairman?
Chairman Feingold. Yes.
Senator Whitehouse. Okay. Good. Thank you. I won't go into
it in any great detail at this point, but I think as the panel
knows, my concern is that the administration took advantage of
the secrecy of OLC to violate I think what Ms. Johnsen has well
described as the longstanding practices of the Attorney General
and Office of Legal Counsel across time and administrations in
order to essentially cook the books in ways that would not
survive peer review and, therefore, they wouldn't expose it to
peer review. As a result, these sweeping and, at a minimum,
highly questionable legal theories were propounded in these
opinions.
But my time has expired.
Chairman Feingold. Thank you, Senator. We will return. I'll
start the second round now, and we'll get back to you shortly.
Mr. Leonard, I assume you read the entire March 14, 2003
memorandum by John Yoo?
Mr. Leonard. Yes, I have, Mr. Chairman.
Chairman Feingold. As the former head of the office
responsible for implementing the President's standards for
classification, did you see anything in this memo that should
have been classified?
Mr. Leonard. Absolutely nothing.
Chairman Feingold. You have testified that, in your view,
pure legal analysis should never be classified. It's been
suggested, however, that the law of war is different from the
law of taxes or the law of health care, and that the law of war
is properly classified and kept secret. What's your response to
that argument?
Mr. Leonard. I think the perfect response to that is,
again, some of the reasons why this memo was classified
reportedly in the first place, and that was to keep it out of
the hands of the military services' legal people, because they
very much recognize, from a reciprocity point of view, any
steps--any positions we take with respect to the handling of
enemy combatants--lack of transparency and interrogation
methods that they're subjected to--that our young men and women
that we send into combat, they, too, are potentially subject to
be held to that same reciprocal standard.
So that is why, from that perspective, the military service
attorneys are great advocates of transparency. Not to say that
our adversary, particular in this case, is anything but brutal.
But our goal is not to reduce ourselves to the level of our
adversary, but rather to use our own beliefs and values as a
positive vision for the rest of the world so as to isolate the
extremists.
Chairman Feingold. Professor Johnsen, as you know, the
Attorney General is required by statute to inform Congress if
the Justice Department determines that it will not enforce or
defend a statute on the ground that it is unconstitutional.
You've made the case that the Attorney General also should
be required to inform Congress when it applies the doctrine of
``Constitutional avoidance'' to construe a statute's
limitations narrowly.
Why, in your view, is it important for the executive branch
to notify Congress when it has decided that it does not need to
fully comply with a statute?
Ms. Johnsen. Let me make one preliminary point, if I may.
I'm delighted we're all moving towards some agreement that it
would be good to extend it that way.
I do need to point out that President Bush has created a
real problem by saying in previous statements that it is
unconstitutional in some applications for Congress even to
require what it has required, so certainly the Bush
administration would say this extension also would
unconstitutionally infringe the President's powers, which I
think is clearly wrong, but that's something that we need to be
aware of.
So I think it's simply self-evident for the reasons, Mr.
Chairman, you described, that in a democracy the Government
must be accountable to the people and Congress must know how
the executive branch, in particular, is interpreting and
enforcing statutes that are already on the books. The whole
system falls apart if the executive branch is allowed to keep
those interpretations secret.
I want to clarify, no one is talking about revealing the
ebb and flow of discussions. I am a big supporter, and saw
firsthand, the importance of having confidentiality in
deliberations about policy and legal interpretation as well.
What we're talking about is a limited class of OLC opinions and
a presumption in favor of release, not an absolute requirement.
I would be opposed to Congress going beyond what we've
discussed and requiring the release of all OLC opinions.
Chairman Feingold. And I agree with that as well.
Is it a sufficient substitute for such notification, in
your view, for the administration to brief a few Members of
Congress under the condition that they keep the information
secret?
Ms. Johnsen. Absolutely not. I realize there may be some
very rare circumstances where that is the only possible
opportunity. But remember, as it's been said, and as you said,
we're talking about legal reasoning and legal conclusions here.
We're not talking about sources, methods, and operational
details. The better approach is to redact that information to
the extent it does appear in an OLC opinion. As Mr. Berenson
pointed out, what we're talking about--in these OLC opinions we
know about, at least--are not discussions of those kinds of
details.
Mr. Berenson, I think, is right. They should contain more
and be more pointed. But I do think in some cases OLC does need
to give more general advice. But part of the problem was, it
was trying to give sweeping immunization to Government actors
to violate criminal statutes. That's what really was going on
with some of these opinions.
Chairman Feingold. Professor, a couple of witnesses have
suggested that these OLC memos address matters that are not
proper subjects of congressional interest. Do you agree with
that?
Ms. Johnsen. Absolutely not. Congress clearly has broad
authority to regulate with regard to war and national security.
You talked about FISA, interrogation methods, military
commissions. It was the position, in the March 2003 opinion,
that Congress did not have that authority. But the Supreme
Court has rejected that and it was plainly wrong, and it's been
widely ridiculed. The administration itself, once these
opinions are leaked and made public, regularly backs down from
the more extreme assertions.
Chairman Feingold. Thank you, Professor.
Mr. Aftergood, Mr. Berenson draws a distinction between
laws that govern the conduct of private citizens and laws that
govern the conduct of government officials. In fact, he says
that the laws governing the conduct of the executive branch are
not what is meant by the term ``law,'' which I find puzzling.
In any event, he claims that when the law that governs the
conduct of government officials is withheld from the public,
that is not truly secret law and not something the public
should be concerned with.
What is your response to that?
Mr. Aftergood. I find that hard to understand. In fact,
there is a spectrum of legal activity delineated in my
statement, some of which directly affects the conduct of
American citizens and requires them to behave in a certain way,
such as the example I gave of Transportation Security
directives that cannot be inspected by ordinary citizens.
But even more important than those are the decisions of
executive branch officials that have tremendous ramifications
and implications for the rights of American citizens. The whole
question of domestic surveillance. Under what conditions might
I be subject to interception of communications? These are
elemental questions of American citizenship, and when they are
moved behind a cloak of secrecy, we are all diminished as
citizens.
Chairman Feingold. Thank you very much, Mr. Aftergood.
Senator Brownback?
Senator Brownback. Thank you.
Mr. Elwood, can the OLC decide for itself whether to
classify information?
Mr. Elwood. No, Senator. OLC lacks the authority to
classify information itself, so-called original classification
authority. However, when we discuss matters that have been
classified by other agencies, the discussions of them must be
classified. That's so-called derivative classification. I will
note that Executive order 12958 requires that original
classification be respected by the people who deal with that
information later.
Senator Brownback. So you cannot classify information on
your own, but you have to abide by the agency that you're
working with?
Mr. Elwood. That's right. We can neither classify nor
declassify information, essentially.
Senator Brownback. Okay. So it's all bound by the other
agencies' classification process. Is that correct?
Mr. Elwood. That's correct.
Senator Brownback. Okay.
Now, is that uniform across the administration or is that
per agency-by-agency?
Mr. Elwood. It's agency-by-agency, and even component-by-
component. I suspect that there are parts of DOJ that can
classify information. Like, I wouldn't be surprised if the
National Security Division could. But I just don't know that
off the top of my head.
Senator Brownback. Whereas, there'd be other agencies that
wouldn't have near the classification needs or requirements, I
would guess. Is that correct?
Mr. Elwood. That's correct. I believe, for example, the
Department of State does have classification authority;
Department of Defense does. My understanding is that it's
agency heads who are designated in the Federal Register have
classification authority.
Senator Brownback. That seems to me to be prudent, that
different agencies would have different requirements. You can't
classify anything, but that agency has its own procedure. That
seems prudent to me. Has that been workable within OLC, by and
large?
Mr. Elwood. Certainly. Yes. We haven't had the need to do
any of that ourselves.
Senator Brownback. Okay.
There is a document attached to Ms. Johnsen's testimony
entitled, ``Principles to Guide the Office of Legal Counsel''.
In your experience, are these principles generally followed in
the current Office of Legal Counsel?
Mr. Elwood. Yes, absolutely. I remember the first time I
saw the principles, and I read them from front to back. I
remember thinking that it described the ordinary practice of
the office.
Senator Brownback. And that's been your experience within
the OLC, is that these are followed?
Mr. Elwood. Yes, that's right. I've been in OLC since
October of 2005, and it is definitely consistent with our
practice during that time.
Senator Brownback. Good. Thank you.
Thank you, Mr. Chairman.
Chairman Feingold. Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
Mr. Elwood, I'll confess, I was a little disappointed by
your testimony. I'd like to challenge some of the things you
said in it which I think are misleading, perhaps.
One, is the suggestion on page 3 of your testimony that OLC
lacks the ability to affect private parties directly. If, as
Professor Johnsen has just said, the purpose of the OLC opinion
is to provide legal cover for Executive activities that would
otherwise be tortuous, or illegal, or even criminal, but
particularly if they would be tortuous, by virtue of having
received an opinion from OLC upon which the government actor
can rely, they are now protected. It would strike me that that
is a considerable ability to affect private parties directly.
In fact, you're taking away a right of action from the
individual who is the victim of the action.
The second thing that concerns me is that immediately after
that you say, ``if the executive branch adopts a policy that
OLC has declared legally permissible, the policy will be public
unless it is classified, and appropriate officials may be
called upon to explain the policy, including its basis in
law.'' Then you dropped this little parenthetical: ``Classified
activities are, of course, subject to review by the
Intelligence Committees.''
Well, I sit on the Intelligence Committees, and we've had
the most god-awful fight getting these opinions. There are ones
we still don't have. So I don't know how on earth you can say
that ``classified activities are, of course, subject to the
review by the Intelligence Committees'' when we don't have
them. We've asked for years to get these things. There's an
absolute stone wall thrown up around this stuff.
It seems to me that it is just extremely misleading to kind
of glibly pass off as if there were no problem here that of
course the Intelligence Committees have access to this stuff,
when you know perfectly well that we don't and that there's
been a very, very determined effort to prevent us having access
to them for, how long has it been? Since before I've been a
Senator, but certainly the entire time I've been here.
If you could respond to those two things, because I just--
Mr. Elwood. Certainly. Well, whenever says that someone
says that my testimony has been misleading, I have a very
strong interest in responding very fully. The three points that
I heard were, first, that it affects private parties directly
because these provide legal cover for stuff that would be
otherwise tortious. That is not the purpose for OLC opinions. I
can only speak for what has occurred in the Office since I've
been there, which is October 2005.
But the purpose of OLC opinions is not to provide cover,
even legal protection, for actors. Its purpose is to help the
President effect his duty to take care that the laws be
faithfully executed. So before he undertakes action, he
routinely asks us for legal advice on matters that might be
subject to dispute. That's the purpose of OLC opinions.
Senator Whitehouse. That's the theory. But there is very
little that prevents the practice from straying into the area
of providing legal cover.
Mr. Elwood. That, I will tell you that since I've joined
OLC since October 2005, that has been the purpose of the
opinions I have seen. I think that people do have--should have
the ability--who rely on them, should have the ability to rely
on them. However, that does not eliminate--
Senator Whitehouse. Even if the purpose--let me just
interrupt you a second. Even if the purpose is well-
intentioned, it would nevertheless have the effect of providing
that legal cover and of taking away a claim because of the
reliance that the actor now can make on the OLC opinion so that
he would not have the requisite scienter to qualify for the
tort or for the level of knowledge required for culpability
under the criminal statute.
Mr. Elwood. I think that--I don't think it would affect--it
depends on what the tort is, but I don't think it would
extinguish the cause of action. It might provide a factual
defense--
Senator Whitehouse. A defense.
Mr. Elwood.--if there is a scienter requirement. But again,
that requires a scienter requirement, and then there's still
the discussion of--
Senator Whitehouse. So you'll concede that where somebody
has been the victim of an act and this defense takes away their
claim, they have been affected as a result of OLC's action?
Mr. Elwood. But I wouldn't accept the premise that it would
take away their claim.
Senator Whitehouse. It could be a complete defense to their
claim.
Mr. Elwood. No, I don't think it would be. It may be a
factual defense depending on what the tort is, but again, it
would depend on what the tort is. There are a lot of torts on
the books and there are a lot of creative lawyers, and so I
wouldn't say that it would provide a protection against torts.
Senator Whitehouse. Well, let's go on to your reaction to
my concern to your statement that ``classified activities are,
of course, subject to review by the Intelligence Committees.''
Mr. Elwood. One of the fundamental points that I want to
make here--I mean, you may not agree with it, but one of my
points--if I have not made this point, I have not done my job--
is that you don't need to have OLC opinions to know what our
legal basis is for a policy. OLC opinions are a--when they are
written they are a confidential, legal, deliberative document
that gives our advice to one party, the client.
When a policy has been adopted, then whatever committee has
jurisdiction over it, whether it be an Intelligence Committee,
this Committee, the Agriculture Committee, whatever, has the
perfect right to say, what is your legal basis for doing this?
They can keep asking the questions to their satisfaction until
they feel like they know what our legal basis is.
My understanding is that you were given legal briefings on
the basis in law for our interrogation programs and for the
surveillance programs. I wasn't involved in that, so I can't
tell you what it is.
Senator Whitehouse. Well, ultimately what we were given was
a big stack of documents about that high on the Terrorist
Surveillance Program, and one, or maybe two of a great number,
apparently, of legal opinions and letters related to the
interrogation program.
Mr. Elwood. But again, those are the actual opinions. You
can have witnesses and talk to them until you're satisfied with
the understanding of the basis in law. That's not the only
thing. We also write letters and--
Senator Whitehouse. Isn't it a little bit different when
the opinion itself isn't just one little blip of legal advice
to a particular agency, but actually becomes part of the
ongoing precedent of OLC and becomes something that future
administrations will rely on. It's like having a court that
publishes its decisions and creates precedent, but won't tell
lawyers practicing before them what the precedent is.
Mr. Elwood. Well, when the documents serve in that sort of
precedential fashion, that's a reason why OLC publishes
opinions it has--it does. We've published 82 since January
2005. We've published 13 just in 2008, including one that went
live this morning. So, no, we are very attuned to those sort of
precedential concerns. When it's a classified document it puts
an additional wrinkle on things, but we are committed--and I
mean this very sincerely--to getting Congress the information
it needs to know what we're doing.
Senator Whitehouse. My time has expired. Thank you,
Chairman.
Chairman Feingold. Thank you, Senator.
We'll begin the third, and what I suspect will be the final
round.
Professor Johnsen, how do you respond to Mr. Elwood's
statement that OLC, under this administration, has complied
with the ``Principles to Guide the Office of Legal Counsel'' ?
Ms. Johnsen. To fully reply would take quite a long time.
I'm a little--kind of amazed that Mr. Elwood said he agreed
with the principles. It does not seem consistent with his point
that OLC should not need to reveal the actual legal opinions
that it has issued. I also believe that OLC has not been
forthcoming in other ways. But one of the principles is that
there should be presumption in favor of releasing OLC opinions
to the public, not just to Congress. So that is flatly
inconsistent with Mr. Elwood's description of OLC opinions as
confidential legal advice that routinely should be withheld
from the public.
I think also important, is Mr. Elwood only talked about,
since he's been there in October, 2005. We just don't have, and
Congress does not have, a good sense of what has happened at
OLC over time. We do know isolated opinions that have been
publicly released, and some of them are, concededly, before
October, 2005.
Those opinions do, as Senator Whitehouse said, have
precedential force within the OLC, within this administration,
and in future administrations. So I'd be curious to hear what
Mr. Elwood thinks about the pre-October, 2005 opinions that
flatly contradict the guidelines, the ``Principles to Guide
OLC,'' because they clearly were not written to give accurate
principled legal advice. They were not written with the input
of all interested, knowledgeable agencies. They violated many
of the specifics of the principles.
Chairman Feingold. Thank you, Professor.
Professor Kitrosser, for the past 6 months, Congress has
been working on legislation to amend FISA. But FISA Court
decisions that are directly relevant to the drafting of that
legislation have been withheld from most lawmakers, leaving
them to even consider proposed amendments and statutory terms
in the dark, without the benefit of the Court's prior
interpretations.
How does this disrupt the constitutional balance among the
branches of Government? Can Congress really do its job under
these circumstances?
Ms. Kitrosser. Senator Feingold, I believe it disrupts it
very substantially. As I talked about in my oral testimony and
in more detail in my written testimony, the Constitution, I
think, strikes a rather brilliant balance by ensuring that the
policy framework under which the executive branch implements
that policy is transparent, even if some implementation can
occur in secret. However, as we have seen and as we've
discussed at length today, there is a danger that that
opportunity and capacity for secret implementation will be
abused, will be taken advantage of, and will be used not merely
to implement law, but to circumvent law.
Now, how can we strike that balance? How can we ensure that
doesn't happen? Congressional oversight is absolutely crucial.
One problem that we've seen in the past with FISA over the last
few years is a failure of the administration that still has not
really explained adequately the reasons for this failure,
failure of the administration to comply with its informing
requirements under the NSA, and certainly going forward I would
agree that Congress has a need to understand how FISA has been
implemented, as well, certainly, as any policy decisions that
the FISA Court has made in order to understand how the statute
might need to be amended in the future.
Chairman Feingold. Thank you.
Mr. Elwood, I'd like to ask you about a certain memo that
is referenced in the March 2003 memo. There's a memo to the
Defense Department dated October 23, 2001 entitled ``Authority
for Use of Military Force to Combat Terrorist Activities in the
United States'', authored by John Yoo.
It's my understanding that some of my colleagues in
Congress have been asking to see this memo for years. Has this
memo been provided to Congress? If not, on what ground?
Mr. Elwood. I don't know whether it has been provided to
Congress. I suspect from your question that it has not. If it
has not been provided, I can't say specifically why that
particular memo wasn't provided. But I can say something
generally about the terrorism-related opinions that were
released--or not released, were signed--in 2001 to 2003. That
is, there was always a lag in time between when an OLC opinion
is signed and when it is published. I think the shortest it
ever got was with the December 2004 torture law opinion that
OLC put out that was put on the website the same day, but
generally it is a period of months, or even years.
I've seen where they aren't even sent out for circulation
for a while because at the time they are made they are
confidential legal advice. The policy decisions have not been
made. After a period of years, the confidentiality interests
come down because the decisions have been made and so revealing
the opinions won't disrupt the decisional process.
I think that the terrorism opinions are in some ways sui
generis, if I can use a legalism, which I'm usually loathe to
do, because in the aftermath of 9/11, a catastrophic terrorist
attack when thousands of people died, they were scrambling to
try to figure out what to do because they thought another
terrorist attack would be coming and they didn't know where it
would be coming from or what it would look like, so there was a
lot of think-tanking on various contingencies.
One thing that I think heightens the confidentiality
interest of many of the terrorism opinions is that the policies
discussed weren't implemented. If you look through all of the
opinions--which some day I think they will be released. There
are some in the publication pipeline now--you will see things
in there that were considered, but not adopted.
I think there is heightened confidentiality interest there
because people aren't going to come to you and ask for legal
advice if they know that, even if they don't wind up doing it,
everyone's going to find out that they were thinking about it.
So as a general matter, that's why I think the war on terror
opinions are especially sensitive, but many of them are on a
pipeline for publication.
Chairman Feingold. Will you agree to promptly release the
portion of the October 23, 2001 memo that addresses the legal
conclusion about the Fourth Amendment that has now been made
public?
Mr. Elwood. I will certainly go back and--it's not my
decision, but I'll certainly go back and convey it. Inasmuch as
I understand that the Attorney General himself has criticized
that conclusion, I don't think that that is any longer an
operative conclusion of the Office. But, yes, I'll take that
back.
Chairman Feingold. Is this memo still in effect and binding
on the executive branch?
Mr. Elwood. The entire memo? I don't know the answer to
that question. That particular conclusion, I think, has been
repudiated.
Chairman Feingold. Thank you, Mr. Elwood.
Senator Brownback?
Senator Brownback. Mr. Elwood, Professor Johnsen seems to
disagree with your statement about whether or not you have
followed, generally, the recommendations made by the group that
she cited in her testimony. I'd like to give you a chance to
respond to her accusations. It seems like you'd probably be in
a better position to respond to those.
Mr. Elwood. I really appreciate that.
To begin with, I don't think it's an accurate statement to
say that we don't feel that we have to reveal legal opinions or
that we don't want to. We are committed to publishing them, and
it's been a real priority of mine and Steve Bradbury to publish
as many opinions as we can. We are constantly trying to move
them through, because as you can imagine, when you're sending
around a request for consent to various agencies, the last
thing they want to do is do your business. They want to do
their own business, first. But that's something we do, is we're
constantly pinging agencies to try to move the process along.
Senator Brownback. Because the agency is the one that
determines this, not OLC?
Mr. Elwood. No. No. But you want to get at least their
views on it. They don't have the last word. We have the last
word on it. But it's one of the best practices, I think, of the
Office to ask the people who might be affected by publication
for what their views on publication are. But it is our
decision.
But we are committed to publishing them. I think one thing,
I think we still have a presumption in favor of releasing the
opinions, but the fact of the matter is that it has been my
understanding that the historic practice of OLC is to publish
them when they have been turned into policy, because otherwise
if it's just, here's our opinion and they say, thanks very much
but we're going to do something else, or even though you say
we're not legally required to do this we're going to do it
anyway as a matter of policy, it might be publishable but it's
a completely different, I think, confidentiality interest when
they've decided, for policy reasons, to do something else than
what they discussed with you.
But for opinions that have been implemented as policy, we
have a very strong commitment to making them public as fast as
possible. In fact, one thing that we have been, I think,
especially aggressive on is attempting to move the process
along quickly. If you look at our web site, there are four
opinions on there from just the last 5 months, including three
that were signed in 2008. As I said, we published 13 just in
2008 and it's only April.
Senator Brownback. Thank you.
Mr. Rivkin, there's been a suggestion here at the hearing
that the TSA regulations all be made available to the traveling
public. I don't want to over-generalize on that, but do you
have any concerns about all of the TSA regulations being
disclosed, or that there'd be any impact on security issues if
those are disclosed?
Mr. Rivkin. Thank you very much, Senator Brownback. I think
the answer is very obvious: of course they'll have an impact.
If we're talking about regulations that describe the particular
screening scenarios in terms of when they're triggered, as well
as how they're implemented, they're obviously going to give
notice to folks we do not want to give notice.
Look, again, to be fair, there is inherent constructive
balance, as in most issues dealt with in a democracy. My
problem with most of the critics, including my good colleague
Mr. Aftergood, is there is sort of reluctance to acknowledge
that there is a cost to more disclosure. The disclosure may be,
indeed, necessary, but let's be honest about what the
implications of a disclosure are.
In this case, again, the answer is very obvious. If people
knew, for example, what triggers secondary screening or even
know some routines of secondary screening, what do you think is
going to happen? They're going to try to avoid it, either
triggering it at all or, you know, secret things about their
body that would not be detected by that particular search
routine. I mean, to me it's just pretty obvious.
Senator Brownback. Mr. Berenson, do you have a thought on
that, by chance?
Mr. Berenson. I do. I agree with Mr. Rivkin, that secrecy
is appropriate where you're talking about sensitive security
information from the Homeland Security Department, whether it
relates to the security measures we take to protect air travel
through the TSA or it relates to procedures that we employ at
chemical plants or nuclear plants to safeguard them against
attack.
Nobody is worried about what Mr. Aftergood himself would do
with that information. What we're worried about is what people
who would be determined to breach those defenses, to take down
an airliner, to attack a chemical plant or a nuclear plant,
would do. I think it's obvious that the more you know about how
our defenses are constructed and our practices and procedures,
the better chance you have, if you mean us harm, to succeed. So
I don't find it terribly troubling that some of the procedures
of the TSA, for example, are not generally available. I do
think they should be available to the Congress. Congress has a
legitimate legislative interest in knowing that. So pursuant to
appropriate security procedures, I would hope they would be
shared with the legislative branch. But this is one area where
I would make a distinction between the people themselves and
their elected Representatives in Congress.
Senator Brownback. It seems to me that you've got a healthy
tension between a desire to disclose as much as possible to the
public, which we should, and we need to and we need to get as
much out there, but also the need to protect the public. The
desire here, and the key mechanism then, is disclosure to
Congress in appropriate settings of that information so that
you've got not just one entity of the government, the executive
branch, but also the legislative branch reviewing this.
I'd like to see a lot more information put out there. But
at the same time, when I'm getting on a plane I want to be safe
in this, and make sure that the procedures are followed that we
can be as safe as possible, given the asymmetrical war that
we're in and the desire of a number of people in the world in
different places to do us harm. So, it's a tough balance. I'm
glad that we're discussing it because I think there are places
that we can see improvement in the disclosure. But at the same
time, I think we need to discuss it with the public from the
standpoint of, here's why some of this is not disclosed, to be
able to express that openly to the public.
Mr. Berenson. And having served in the administration on 9/
11 and the period immediately thereafter, I would echo one of
the observations that Mr. Elwood made, which is, it is hard,
and especially hard now so many years removed from those
events, to understand just what an extraordinary, difficult,
and unprecedented time that was.
There was an atmosphere of genuine crisis and genuine
threat, and almost everything I observed during my time in
government suggested that our public servants in both of the
political branches of government were doing their level best to
deal with a very serious, very dangerous threat. I think most
of the decisions that were made, even on disclosure matters,
were made with the best of intentions and sincerely for the
purpose of trying to protect the public.
The fact that we may focus here on a couple of celebrated
instances where, with the benefit of hindsight, we now know
that there may have been an error made shouldn't obscure from
view the fact that I think the vast run of these decisions were
well-intentioned and properly made.
Mr. Aftergood. Senator Brownback, may I quickly respond?
Senator Brownback. I'm out of time. But Mr. Chairman, if
you want to--
Chairman Feingold. You're welcome to.
Senator Brownback. If you don't object, I'll let Mr.
Aftergood quickly respond.
Mr. Aftergood. The suggestion was made earlier that there's
really no such thing as secret law in the sense of regulations
that are binding on the conduct of members of the public. My
point was, in fact, there are such regulations. I think that
the initial suggestion has been refuted. Secrecy comes with a
price. Among the prices are that we lose the ability to
critique our security policies. I think there's a lot of room
to doubt the wisdom and efficacy of TSA procedures. Part of the
reason for that is that so much of it is conducted in secret.
Chairman Feingold. Thank you, Mr. Aftergood. Thank you,
Senator Brownback, for your courtesy on that.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
One of the reasons that I'm concerned about the
transparency issue has to do with the very institutional
integrity of one of the great institution of our government.
The concern, I think, has become reasonably widespread that in
this sort of hothouse environment of a classified program with
nobody looking in at what's going on, the OLC became kind of,
you know, the little shop of legal horrors that would deliver
what was requested. When you have the actual opinion out, you
can actually look at, you know, kind of the merits of the legal
analysis, whether it stands up.
I mean, I disagree with Mr. Berenson on a million topics, I
said, but his testimony here was incredibly lucid and clear.
When you see something like that you think, oh, that's pretty
good scholarship. Then you see something like this. I won't go
through it. It's been in the testimony already. That's a pretty
alarming proposition that an Executive order is just ignorable,
willy-nilly, with no reporting. When it became apparent that I
was going to release this, that I'd had it declassified, I was
told that it stands on precedent.
When they told me what the precedent was, the precedent was
a Griffin-Bell opinion that said that the President can legally
revoke or supersede an Executive order at will. Well, of course
the President can legally supersede or revoke an Executive
order at will. There's a process for doing that. That's a
completely different proposition than saying that the Executive
can use the Executive orders of this country as a screen behind
which they can operate programs directly contrary to the text
of the Executive order.
So, there is one example. The other one that I declassified
was the proposition that the President, exercising his
constitutional authority under Article 2, can determine whether
an action is a lawful exercise of the President's authority
under Article 2.
I mean, aside from the ``pulling yourself up from your own
bootstraps'' nature of that argument, it stands on an earlier
opinion that says the executive branch has an independent
constitutional obligation to interpret and apply the
Constitution. Well, of course they do in the exercise of their
duties. But among the things that that opinion goes on to say
is that it requires deference to legislative judgments.
Once you hang it off Article 2, which the Executive, under
this unitary executive theory, claims it is immune from either
judicial or legislative intrusion, you are now saying a very
different thing. When you actually see the opinion and see how
the extra step has been taken, you know, you know it's a little
bit--something else is going on other than just plain legal
interpretation.
The last one--this is my ``justice bound''. The Department
of Justice is bound by the President's legal determinations. I
mean, I thought we'd cleared that when President Nixon told an
interviewer that if the President does it it's not illegal.
That stands on the proposition that the President has authority
to supervise and control the activity of subordinate officials
within the executive branch.
But the idea that the Attorney General of the United States
and the Department of Justice don't tell the President what the
law is and count on it, but rather it goes the other way, opens
up worlds for enormous mischief. I think it's a sweeping
proposition. The three of them, as precedent, open enormous
avenues for further mischief if you're going to climb out, and
out, and out further on your own precedent.
So let me ask you, Mr. Rivkin. These three theories that we
have put up, you say that there's a cost to revealing these
things. What is the cost in security in revealing any one of
those three propositions, or all three of them together?
Mr. Rivkin. Well, Senator Whitehouse, those three
propositions, I don't see any particular cost in revealing
them. It doesn't, of course, mean that there may not be other
propositions it would be costly to reveal. But let me just say
a couple of things.
Senator Whitehouse. So at least as far as these three are
concerned, you'll concede that there's no cost?
Mr. Rivkin. I do. And let me also say, I think the language
is rather stark. As most of us lawyers, you hate to look at one
sentence. I certainly wouldn't have, particularly the last--
Senator Whitehouse. I'd be delighted to show you the whole
rest of the opinion, but I'm not allowed to. It's classified. I
had to fight to get these declassified.
Mr. Rivkin. No, no.
Senator Whitehouse. They made me take--they kept my notes.
They then delivered them to the Intelligence Committee, where I
could only read them in the secure confines of the Intelligence
Committee. Then I had to--again in a classified fashion--send
this language back to be declassified. I'm doing it again with
a piece of language that relates to the question of
exclusivity. There is a sentence that describes whether or not
the FISA statute exclusivity provision is really exclusive
enough for the OLC. We're still going through this process.
Mr. Rivkin. I understand. But if I could just say--
Senator Whitehouse. I'd like to be able to tell you more
about this.
Mr. Rivkin. But this is a very--language. If I can just
take 15 seconds with regards to the first proposition about the
President's not being bound constitutionally by Executive
order. I would say, mindful of your earlier remarks, in most
circumstances it would be a matter of good government for the
Executive who bothered to issue an Executive order giving some
kind of notice to the public and the world at large as to how
he or she would discharge their duties to go for the same
exercise, but surely we can all agree that there may be some
very unique circumstances not promiscuously or frequently
triggered where you have an Executive order that, if it were
done publicly, would give some notice to people we don't want
to give notice.
Very rarely--and I certainly wouldn't defend any particular
frequency which has been applied. But as a constitutional
matter, of course the President is not bound by Executive
order, and of course the President can violate the Executive
order, and of course the President can retract the Executive
order sotto voce. I mean, that's constitutionally
unexceptional. As a matter of competence in government and good
policy, we can all agree it should not be done, except in the
rarest of circumstances.
Mr. Elwood. May I respond, since this is directed at a
Department of Justice product?
Senator Whitehouse. Sure.
Mr. Elwood. The opinion--you should have also have been
provided with an opinion that has been public for 20 years and
was put out by my Office and provided to Congress in 1987,
which reads as follows: ``E.O. 12333, like all Executive
orders, is a set of instructions from the President to his
subordinates in the executive branch. Activities authorized by
the President cannot violate an Executive order in any legal
and meaningful sense because this authorization creates a valid
modification of, or exception to, the Executive order.'' So
this is not secret law, this is as public as it can get. It's
turned over to Congress and put in--
Senator Whitehouse. Well, there's an important piece
missing from that, which is not telling anybody and running a
program that is completely different from the Executive order
without ever needing to go back and clean it up.
Mr. Elwood. This opinion actually involved a secret
modification that involved Iran-Contra, so it was also
classified.
Senator Whitehouse. So your opinion is that in saying that
an Executive order cannot limit a President, there is no
constitutional requirement for a President to issue a new
Executive order whenever he wishes to depart from the terms of
a previous Executive order. Rather than violate an Executive
order, the President has, instead, modified or waived it. There
is no requirement for the President ever to go back and clean
up.
Mr. Elwood. I think that Mr. Rivkin got it exactly right,
which is that in the ordinary course, yes, that's the whole
reason we have Executive orders. The President doesn't have to
make Executive orders, or make them public. But he does both of
those things because--
Senator Whitehouse. Well, I've gone over my time, so let me
just close by making the point that I'm trying to make with all
this, which is that if you can't see the opinion itself you
can't make these determinations. It looks very much to me--
although we can debate the proposition--as if these are
extremely broad, extremely stark, and extremely
constitutionally challenging opinions. It is different for us
to read this than to see a carefully, finely crafted point such
as Mr. Rivkin suggested. That is why I think it's important to
see these opinions, and that's the reason I went through this.
I apologize for going over my time, Mr. Chairman.
Chairman Feingold. Thank you, Senator Whitehouse.
The Ranking Member has asked to make brief closing remarks,
and I will follow him.
Senator Brownback?
Senator Brownback. Thank you, Mr. Chairman.
I want to thank the panelists for being here and for their
discussion and thought that you've put into the process. I
think it's helpful. I think it's helpful to us to be able to
look at it. I am hopeful that there's at least one point that
we can get some agreement on that I was probing in the first
round, and I'd like to work with each of you on it.
I would just urge the majority caution on this. I
appreciate the sentiment in which the disclosure is being
pursued, what you're putting forward, and I appreciate the
tenacity with it. I just would note, let us be careful on this
so we don't hurt the security of the people of the country. I
don't think anybody's intent is to do that. And let's also not
hurt the process by which we hope an administration comes up
with good policy, which is a battle of ideas back and forth
between, you hope, highly competent, qualified, good-hearted
people. You don't disclose things that--a process date, time,
or place in which you thwart that, or you make everything go
and be oral instead of in writing.
I mean, I was one--I would hope that whether the
administration is Republican, or Democrat, or Independent, or
whatever the case might be, that they would have a good,
aggressive battle of ideas internally and that those be shared,
and that those be put in writing, and that those be sent back
and forth and that they allow it to come up with as much as
they possibly can, and that security not be harmed in this time
of a big, asymmetric war that we're going to be in for a long
time.
So I know your hearts are good on this. I just would urge
us to take some real caution and make sure that we do this in
an appropriate way that can be done in getting good decisions
and not harming the public and public security for this
country.
Thank you for the hearing, Mr. Chairman.
Chairman Feingold. Thank you, Senator Brownback.
I want to thank all the witnesses for their testimony and
for this very enlightening discussion. I want to particularly
thank both of my colleagues for their very diligent attention
throughout this two-hour plus hearing. I think this is a unique
matter. In fact, I think this is a groundbreaking hearing with
regard to this area of law.
As much as we've accomplished here today, I feel that we've
only scratched the surface with this hearing. I take the
Ranking Member's concern about caution seriously. There is not
a single member of the Senate who would not act cautiously in
this area. But I must say that the fact that we're having this
hearing is an indication of almost a complete lack of caution
on the part of the administration in terms of the other side of
this, a complete failure to be concerned about disclosure and
what the failure to disclose means for the American public.
That's why we're here today. Presumably this never would have
been as serious an issue under many other administrations. It
is this administration's approach that has caused us to have to
take these actions and investigate this issue.
We focused today on the OLC memos and on FISA Court
opinions--appropriately so, in my opinion, because they are
critical and timely examples of the problem. But it is more and
more clear to me that this problem is a systemic one and that
there's much more secret law out there than most of us
suspected.
It is also clear to me that this systemic problem needs a
systemic solution. While it is true that this administration
has raised secret Government concerns to a new level, I think
it would be naive to expect that this problem will disappear
when the Bush administration leaves office. Government secrecy
has been compared to kudzu, and I think there's something to
that: once it takes hold, it's difficult to pry loose. We've
heard some ideas here about ways to tackle the problem, and I
intend to continue to give this issue close study.
The hearing record will remain open for one week for
additional materials and written questions for the witnesses to
be submitted. As usual, we will ask the witnesses to respond
promptly to any written questions so that the record of the
hearing can be completed.
Thank you. The hearing is adjourned.
[Whereupon, at 11:07 a.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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