[Senate Hearing 110-604]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-604



                               before the


                                 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
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            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




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


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



                       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.


    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 
    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 
    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 
    [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.

                           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 
    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 
    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 
    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.


    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 
    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 
    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 
    Professor, thank you very much for taking time out of what 
I know is a very busy schedule to be here. You may begin.


    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 
    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 
    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.

                        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 
    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 
    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 


    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 
    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 
    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 
    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 
    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 
    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.

                        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 
    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.


    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 
    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 


    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 Feingold. Thank you, Senator.
    We'll begin the third, and what I suspect will be the final 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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