[Senate Hearing 110-584]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 110-584
 
                       RESTORING THE RULE OF LAW

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                           SEPTEMBER 16, 2008

                               ----------                              

                          Serial No. J-110-119

                               ----------                              

         Printed for the use of the Committee on the Judiciary


                       RESTORING THE RULE OF LAW

                                                        S. Hrg. 110-584

                       RESTORING THE RULE OF LAW

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 16, 2008

                               __________

                          Serial No. J-110-119

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
EDWARD M. KENNEDY, Massachusetts     SAM BROWNBACK, Kansas
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
                    Robert F. Schiff, Chief Counsel
               Lauren B. Petron, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
    prepared statement...........................................   101
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     3

                               WITNESSES

Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, 
  D.C............................................................     8
Dellinger, Walter, Partner, O'Melveny & Myers, LLP, Visiting 
  Professor of Law, Harvard Law School, former Assistant Attorney 
  General, Office of Legal Counsel (1993-1996), former Acting 
  Solicitor General (1996-1997), Chapel Hill, North Carolina.....    29
Edwards, Mickey, Board of Directors, The Constitution Project; 
  Lecturer, Woodrow Wilson School of Public and International 
  Affairs, Princeton University; former Member of Congress 1977-
  1993; and former Chairman, House Republican Policy Committee, 
  Washington, D.C................................................    10
Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith 
  Professor of International Law, Yale Law School, New Haven, 
  Connecticut....................................................    14
Massimino, Elisa, Chief Executive Officer and Executive Director, 
  Human Rights First, Washington, D.C............................    33
Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, 
  D.C............................................................    35
Podesta, John D., President and Chief Executive Officer, Center 
  for American Progress Action Fund, Washington, D.C.............    39
Rotunda, Kyndra, Professor of Law, Chapman University School of 
  Law, Orange, California........................................    31
Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for 
  Justice, New York University School of Law, New York, New York.     5
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C................................................    37
Turner, Robert, Professor, General Faculty, Associate Director, 
  Center for National Security Law, University of Virginia School 
  of Law, Charlottesville, Virginia..............................    12

                         QUESTIONS AND ANSWERS

Response of Charles J. Cooper to questions submitted by Senator 
  Whitehouse.....................................................    51
Responses of Mickey Edwards to questions submitted by Senator 
  Whitehouse.....................................................    52
Responses of Elisa Massimino to questions submitted by Senator 
  Whitehouse.....................................................    54
Responses of John D. Podesta to questions submitted by Senator 
  Whitehouse.....................................................    55
Responses of Kyndra Rotunda to questions submitted by Senator 
  Whitehouse.....................................................    57
Responses of Frederick A.O. Schwarz to questions submitted by 
  Senator Whitehouse.............................................    58
Responses of Suzanne E. Spaulding to questions submitted by 
  Senator Whitehouse.............................................    65
Responses of Robert Turner to questions submitted by Senator 
  Whitehouse.....................................................    68

                       SUBMISSIONS FOR THE RECORD

Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, 
  D.C., statement................................................    85
Edwards, Mickey, Board of Directors, The Constitution Project; 
  Lecturer, Woodrow Wilson School of Public and International 
  Affairs, Princeton University; former Member of Congress 1977-
  1993; and former Chairman, House Republican Policy Committee, 
  Washington, D.C., statement....................................    96
Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith 
  Professor of International Law, Yale Law School, New Haven, 
  Connecticut, statement.........................................   103
Massimino, Elisa, Chief Executive Officer and Executive Director, 
  Human Rights First, Washington, D.C., statement and attachments   116
Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, 
  D.C., statement................................................   145
Podesta, John D., President and Chief Executive Officer, Center 
  for American Progress Action Fund, Washington, D.C., statement 
  and attachment.................................................   155
Professors of law and former attorneys in the Department of 
  Justice, Office of Legal Counsel, joint statement and 
  attachment.....................................................   178
Rotunda, Kyndra, Professor of Law, Chapman University School of 
  Law, Orange, California, statement.............................   197
Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for 
  Justice, New York University School of Law, New York, New York, 
  statement......................................................   204
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C., statement....................................   235
Turner, Robert, Professor, General Faculty, Associate Director, 
  Center for National Security Law, University of Virginia School 
  of Law, Charlottesville, Virginia, statement...................   246


                       RESTORING THE RULE OF LAW

                              ----------                              


                      TUESDAY, SEPTEMBER 16, 2008

                                       U.S. Senate,
                          Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:20 a.m., in 
room SD-562, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Cardin, Whitehouse, and 
Brownback.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold. I will call the Committee to order. 
Welcome, everybody, to this hearing of the Constitution 
Subcommittee entitled ``Restoring the Rule of Law.''
    We have two very distinguished panels of witnesses 
scheduled, and I want to thank all of you for being here.
    Tomorrow, September 17th, is the 221st anniversary of the 
day in 1787 when 39 members of the Constitutional Convention 
signed the Constitution in Philadelphia. It is a sad fact as we 
approach that anniversary that for the past 7\1/2\ years, and 
especially since 9/11, the Bush administration has treated the 
Constitution and the rule of law with a disrespect never before 
seen in the history of this country. By now, the public can be 
excused for being almost numb to new revelations of Government 
wrongdoing and overreaching. The catalogue is breathtaking, 
even when immensely complicated and far-reaching programs and 
events are reduced to simple catch phrases: torture, 
Guantanamo, ignoring the Geneva Conventions, warrantless 
wiretapping, data mining, destruction of e-mails, U.S. Attorney 
firings, stonewalling of congressional oversight, abuse of the 
state secrets doctrine and executive privilege, secret 
abrogation of executive orders, signing statements. This is a 
shameful legacy that will haunt our country for years to come.
    There can be no dispute that the rule of law is central to 
our democracy and our system of government. But what does ``the 
rule of law'' really mean? Well, as Thomas Paine said in 1776: 
``In America, the law is king.'' That, of course, was a truly 
revolutionary concept at a time when in many places kings were 
the law.
    Over 200 years later, we still must struggle to fulfill 
Paine's simply stated vision. It is not always easy, nor is it 
something that once done need not be carefully maintained. 
Justice Frankfurter wrote that the law is ``an enveloping and 
permeating habituation of behavior, reflecting the counsels of 
reason on the part of those entrusted with power in reconciling 
the pressures of conflicting interests. Once we conceive `the 
rule of law' as embracing the whole range of presuppositions on 
which government is conducted..., the relevant question is not, 
has it been achieved, but, is it conscientiously and 
systematically pursued.''
    So the post-9/11 period is not, of course, the first time 
that events have caused great stress for the checks and 
balances of our system of government. As Berkeley law 
professors Daniel Farber and Anne Joseph O'Connell write in 
testimony submitted for this hearing: ``The greatest 
constitutional crisis in our history came with the Civil War, 
which tested the nature of the Union, the scope of Presidential 
power, and the extent of liberty that can survive in war 
time.'' But as legal scholar Louis Fisher of the Library of 
Congress describes in his testimony, President Lincoln pursued 
a much different approach than our current President when he 
believed he needed to act in an extra-constitutional manner to 
save the Union. He acted openly and sought Congress's 
participation and ultimately approval of his actions. According 
to Dr. Fisher, ``[Lincoln] took actions we are all familiar 
with, including withdrawing funds from the Treasury without 
appropriation, calling up the troops, placing a blockade on the 
South, and suspending the writ of habeas corpus. In ordering 
those actions, Lincoln never claimed to be acting legally or 
constitutionally and never argued that Article II somehow 
allowed him to do what he did. Instead, Lincoln admitted to 
exceeding the constitutional boundaries of his office and 
therefore needed the sanction of Congress.  .  . He recognized 
that the superior lawmaking body was Congress and not the 
President.''
    So each era brings its own challenges to the conscientious 
and systematic pursuit of the rule of law. How the leaders of 
our Government respond to those challenges at the time they 
occur is, of course, critical. But recognizing that leaders do 
not always perform perfectly, that not every President is an 
Abraham Lincoln, the years that follow a crisis are perhaps 
even more important. And soon, this administration will be 
over. So the obvious question is: Where do we go from here? I 
believe that one of the most important things that the next 
President must do, whoever he may be, is take immediate and 
concrete steps to restore the rule of law in this country. He 
must make sure that the excesses of this administration do not 
become so ingrained in our system that they change the very 
notion of what the law is.
    That, of course, is much easier said than done. It is not 
simply a matter of a new President saying, ``OK, I won't do 
that anymore.'' This President's transgressions are so deep and 
the damage to our system of government so extensive that a 
concerted effort from the executive and legislative branches 
will be needed. And that means the new President will, in some 
respects, have to go against his own institutional interests.
    That is why I called this hearing: to hear from legal and 
historical experts on how the next President should go about 
tackling the wreckage that this President will leave. I have 
asked our two panels of experts who will testify to be forward-
looking, to not only review what has gone wrong in the past 7 
or 8 years, but to address very specifically what needs to be 
set right starting next year and how to go about it.
    In addition to the testimony of the witnesses here today, I 
solicited written testimony from advocates, law professors, 
historians, and other experts. So far we have received nearly 
two dozen submissions from a host of national groups and 
distinguished individuals, and I want to thank each and every 
person who made the effort to prepare testimony for this 
hearing. You have done the country a real service.
    Without objection, all of this testimony will be included 
in the written record of the hearing. I plan to present the 
full hearing record to the incoming administration. The 
submissions we have received so far can be seen on my website 
at feingold.senate.gov. I hope that many of these 
recommendations, along with the testimony we will hear today, 
will serve as a blueprint for the new President so that he can 
get started right away on this immense and extremely important 
job of restoring the rule of law.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    So now let me turn to our Ranking Member and thank him for 
his participation. Senator Brownback?

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you very much, Chairman Feingold. 
Thank you, witnesses, for being here today and the preparation 
that you have gone through to be here. I look forward to 
hearing your testimony, your thoughts, and the parameters that 
the Chairman has put forward, although first I have to take 
some question about the title of the hearing and the testimony 
offered by some of the witnesses here today, as both clearly 
are intended to imply that President Bush and certain members 
of the administration have undermined or even eviscerated the 
rule of law. I have to take issue with the premise.
    Clearly, there is a wide range of opinion as to how the 
President has conducted the war against terrorism over the past 
7 years. I give that. Just as there are differences of opinion 
with regard to how the courts and even we in Congress have 
handled that unique and unprecedented challenge.
    Had the attacks of September 11th and their aftermath 
occurred at a different time under a different President, that 
President might have done different policy judgments. I am 
pretty certain, though, that another President would not have 
found him- or herself immune to strong criticism, be it from 
the same voices that disagree with President Bush or from a 
different group of voices altogether.
    At the end of the day, though, the fact that these sorts of 
disagreements exist in no way demonstrates that our Nation is 
somehow subsisting in a lawless state. And I do not believe 
that it is helpful or even really productive to claim that it 
is.
    Second, the topics that will be raised in this hearing 
ranging from a debate over the proper scope of executive power 
to electronic surveillance to alleged torture to national 
security letters to Government secrecy to the terrorist 
detainee policy are certainly not new topics to the Judiciary 
Committee or the Subcommittee. By my staff's count, there have 
been 24 hearings in this Congress and the prior Congress 
addressing the very issues our witnesses today will discuss. 
And I appreciate that we are taking forward-looking sight and 
not a backward-looking one. But that does not even include, 
that number I listed, the times these issues have been raised 
at confirmation hearings or agency oversight hearings.
    Now, I come from a farming background, so the expression 
that comes to my mind is that this is ``well-plowed ground.'' 
Although these are obviously important issues, no one who has 
looked at the lengthy list of hearings we have had on these 
issues could legitimately claim that we have not received a 
significant amount of attention on these topics.
    Furthermore, we have to a certain extent always seen 
considerable changes on some of these topics. For example, 
earlier this summer we passed the Foreign Intelligence 
Surveillance Amendments Act, which, for better or for worse, 
expanded the types of circumstances in which our intelligence 
agencies must seek court approval before undertaking electronic 
surveillance. Additionally, the issue of waterboarding had 
previously raised considerable concern. We now have assurances 
that the CIA no longer engages in the practice. While I am sure 
that knowledge does not satisfy everyone testifying here today, 
I think they would at least believe it is a step in the right 
direction.
    With regard to detainee policy, the Supreme Court's 
decision this summer resolved some of the concerns of 
administration critics. And, of course, just as our panelists 
here today may disagree on whether our Constitution supports 
the President's broad very of executive power, I am sure they 
would also disagree on whether that same document requires that 
we grant Fourth Amendment protections to enemy combatants on 
foreign soil.
    My final point involves these enemy combatants and my home 
State. There are numerous individuals and organizations, 
including some represented on our panel today, who have called 
for the United States to close the detainee facility at 
Guantanamo Bay, Cuba, and relocate individuals being held as 
enemy combatants to the disciplinary barracks at Fort 
Leavenworth, Kansas. I have personally toured the facilities at 
Fort Leavenworth many times, and the facility simply is not 
equipped to handle these sorts of non-military detainees.
    First, the maximum security wing of the disciplinary 
barracks is near capacity with military prisoners and much too 
small to handle the Guantanamo Bay population.
    Second, Leavenworth cannot sufficiently separate detainees 
from the rest of the prison population, which would violate 
laws and policies against commingling.
    Third, Fort Leavenworth does not have the ability to house 
and feed the large number of personnel necessary to secure a 
detainee population.
    Fourth, Fort Leavenworth perimeter security is inadequate 
for a detainee mission.
    Fifth, the disciplinary barracks facility is not far enough 
away from the edge of Fort Leavenworth to safely house 
detainees.
    Sixth, the disciplinary barracks does not have 24-hour-a-
day medical facilities, which would require transporting 
detainees offsite for after-hours or emergency care.
    And, finally, it is unwise to put detainees on the same 
installation with the next generation of Army leaders studying 
at the Command and General Staff College.
    I would ask those who advocate moving terrorist detainees 
to my home State to consider these facilities and undertake an 
honest assessment of the physical realities of housing and 
securing a detainee population. I hope that the next President 
and many concerned Members of Congress will visit Fort 
Leavenworth to make such an assessment. I am confident any 
visitor would conclude that the Fort Leavenworth disciplinary 
barracks is not the best option for a detainee population. I 
would hope they would take that into consideration.
    Mr. Chairman, I look forward to the testimony that the 
witnesses will present.
    Chairman Feingold. Thank you, Senator Brownback.
    We will now turn to the testimony from our first panel of 
witnesses. Will the first panel of witnesses please stand and 
raise your right hand to be sworn? Do you swear or affirm that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Cooper. I do.
    Mr. Edwards. I do.
    Mr. Koh. I do.
    Mr. Schwarz. I do.
    Mr. Turner. I do.
    Chairman Feingold. Thank you, gentlemen, and you may be 
seated. I want to thank you, welcome you. I am extremely 
impressed with the caliber of the witnesses on both panels 
today. I would ask that you each limit your remarks to 5 
minutes, as we do have a lot to discuss. Your full written 
statements will, of course, be included in the record.
    Our first witness today will be Frederick A.O. Schwarz, Jr. 
Mr. Schwarz is a graduate of Harvard University and Harvard Law 
School. He is currently senior counsel at the Brennan Center 
for Justice at NYU Law School. Mr. Schwarz has had a long and 
impressive career in both private practice and public service. 
Of particular interest to us here today, in 1975 and 1976, he 
was chief counsel for the U.S. Senate Committee to study 
governmental operations with respect to intelligence 
activities, commonly known as the ``Church Committee.'' In 
2007, Mr. Schwarz co-authored with Aziz Huq the book entitled 
``Unchecked and Unbalanced: Presidential Power in a Time of 
Terror.''
    Mr. Schwarz, welcome and you may proceed.

  STATEMENT OF FREDERICK A. O. SCHWARZ, JR., SENIOR COUNSEL, 
BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW, 
                       NEW YORK, NEW YORK

    Mr. Schwarz. Thank you very much, Senator.
    You know, you referenced the Church Committee, and the 
lesson that was drawn from our work there was that crisis 
always makes it tempting to abandon the wise restraints that 
keep us free. That has always been true. It is true today. 
However, today we have a worse problem than any one in our 
history: first, the crisis has gone on for longer; and, second, 
there is a new theory, never before voiced by an administration 
in power, that the President has the right to ignore or defy 
the law. So in that sense, we are repeating history, but we are 
in a more dangerous part of history.
    I think the title of this hearing actually cuts to the 
heart of the matter because the current administration has 
ignored and defied the rule of law. And in so doing, it has 
undermined America's greatest strength, and that is, our 
compliance with the rule of law and our reputation for doing 
so. That has not only left Americans less free; it has also 
made us less safe.
    Now, I make a number of recommendations in my written 
testimony. One is that the new President, immediately upon 
taking office, should disavow the theory that Vice President 
Cheney first came up with 20 years ago that the President has 
the right to monarchical powers. That is very, very important. 
And I also recommend a number of specific pieces of 
legislation, many of which deal with secrecy.
    But the one I want to start with and try to cover in this 
short period of time is that the next Congress and the next 
President should appoint an independent, bipartisan 
investigatory commission charged with determining what has gone 
right and what has gone wrong with our policies in confronting 
terrorism and to recommend solutions. Without full knowledge of 
all the facts, we cannot know why wrong steps were taken, and 
we cannot take the necessary steps to repair the damage.
    We have plenty of problems. Torture--I talk about torture a 
lot in my paper, and even Colin Powell and Mr. Turner say that 
it is clear that what has been done has undermined America's 
greatest strength. Colin Powell put it: ``The world is 
beginning to doubt the moral basis of our fight against 
terrorism.'' And waterboarding, yes, it has been said they are 
not using it, but it has not been disavowed. The Attorney 
General refuses to disavow it, and the Vice President 
positively embraces it.
    These steps toward torture have hurt us enormously with our 
allies. We have lot support that we had. Intelligence services, 
even in Great Britain, are less willing to cooperate with us. 
And France and Germany have ordered the arrest of CIA 
officials.
    So to avoid repeating history requires understanding 
history. We know that excessive secrecy smothers the popular 
judgment that gives life to democracy. We need to cut through 
that secrecy, and a commission would serve several functions.
    First, it would reveal the many as yet unknown aspects of 
what our Government has done and, equally important, how 
internally it rationalized and evaluated its actions.
    Second, documenting violations of the public commitments of 
the United States is also to fulfill an important moral 
imperative. Renewing our commitment to the rule of law by 
confronting and acknowledging our recent failures gives 
substance to our national moral commitment, and thus can help 
begin to restore our reputation in the rest of the world.
    The findings of a commission also would play the important 
role of holding accountable those who are responsible for 
wrongdoing and for legal and constitutional violations. The 
public revelations made by a commission would lodge 
accountability for deeds where it belongs and serve as a 
warning to future Government officials not to again stray into 
the bound of unchecked power.
    And, finally, and most importantly, the commission's work 
would play an important role in preventing future abuses. 
Without the truth, we will not have--without the full truth, we 
will not have a sufficient factual basis for informed public 
debate on the role of Government activities in a free society 
during an extended time of crisis. And it is great that this 
Committee is having a debate, a discussion, and people on the 
other side who I respect, it is great that you are having a 
discussion about what we must do to restore the rule of law and 
to have a discussion about whether the President has the power 
to break the law.
    Now, while the revelations of a new commission charged 
rooting out the truth of this most recent period of Government 
failures might prove embarrassing to some individuals, and 
perhaps even to the country as a whole, that embarrassment is a 
price that must be paid. For, as the Church Committee concluded 
in one of its reports: ``We must remain a people who confront 
our mistakes and resolve not to repeat them. If we do not, we 
will decline; but if we do, our future will be worthy of the 
best of our past.''
    Now, I want to conclude with just one final thought, and 
that is, this is not, this should not be, it cannot be, a 
partisan issue. The need to restore checks and balances under 
the rule of law is far more important than the controversies 
that divide Americans. Indeed, understanding the importance of 
righting the separation of powers and checks and balances and 
restoring respect for the rule of law should bring all 
Americans together. If today's President happens to hail from 
one party and the congressional majority from another, in the 
future those affiliations will surely change. But the core 
principle that the preservation of the Constitution's checks 
and balances and respect for the rule of law is essential to 
effective Government endures, regardless of what party controls 
either branch. If we turn a blind eye to this truth, the Nation 
will feel the consequences far into the future.
    [The prepared statement of Mr. Schwarz appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much, Mr. Schwarz. Again, 
if people could try to keep their remarks to 5 minutes, it 
would be helpful.
    Mr. Schwarz. Did I manage to, or did I--I am sorry.
    [Laughter.]
    Chairman Feingold. We are pleased you are here.
    Mr. Schwarz. The clock is not working on this thing here.
    Chairman Feingold. We'll get the clock going. But I was 
delighted to hear your remarks.
    Our next witness is Charles Cooper. Mr. Cooper, a graduate 
of Yale University and Harvard Law School, is a founding member 
and chairman of the law firm of Cooper & Kirk, where his 
practice is concentrated in the areas of constitutional, 
commercial, and civil rights litigation. Mr. Cooper has over 25 
years of legal experience in Government and private practice 
and was named by the National Law Journal as one of the ten 
best civil litigators in Washington. He served as Assistant 
Attorney General for the Office of Legal Counsel in the Reagan 
administration.
    Mr. Cooper, thank you so much for being here today, and you 
may proceed.

 STATEMENT OF CHARLES J. COOPER, PARTNER, COOPER & KIRK, PLLC, 
                        WASHINGTON, D.C.

    Mr. Cooper. Thank you very much, Chairman Feingold and 
Ranking Member Brownback, for inviting me to this hearing. 
Before discussing particular separation of powers issues that 
have been at the forefront of today's controversy, I think it 
is important to remember the extraordinary context in which 
these issues have arisen.
    Just 5 days ago we marked the seventh anniversary of the 
September 11th terrorist attacks, and we entered into the 
eighth year of an out-and-out war with those who seek the 
destruction of our Nation and our way of life.
    In perilous times such as these, with regard to momentous 
and difficult issues such as those that have confronted our 
Government, can the imperative to grant the Executive the 
benefit of genuine legal doubt be any greater?
    Like Robert Jackson, the former Attorney General and 
Supreme Court Justice, I believe the President, especially in 
time of war, is surely entitled to ``the benefit of a 
reasonable doubt as to the law.''
    This has traditionally been the view of the President's 
legal advisers in the Office of Legal Counsel. And I feel bound 
also to say this about the lawyers that have recently served in 
OLC: I cannot imagine a more important, yet more difficult, 
more trying, more thankless, and, indeed, it now appears, more 
perilous job for a lawyer than being a legal adviser to the 
President and the administration in the weeks and months 
following 9/11. I give thanks that the office was not 
confronted with so grave and difficult a responsibility during 
my time at OLC, and I am grateful to the men and women who have 
served their country in that office under these awful 
circumstances.
    The bill of particulars that the administration's harshest 
critics have offered in support of the charge that the 
administration has abandoned the rule of law appears to focus 
on four general areas of concern, and I address each of those 
in my written statement, but in these remarks I will focus only 
on issues related to the detention and prosecution of foreign 
terrorists and enemy combatants.
    The debate over these issues more than any other of the 
issues that have arisen in the last 8 years has been settled in 
our courts. And in the Federal courts of appeals--that is, in 
the courts that are bound to follow faithfully Supreme Court 
precedent--the administration is undefeated in the major war on 
terror cases. In those cases--Rasul, Hamdi, Hamdan, and 
Boumediene, of the 12 votes cast by courts of appeals judges, 
11 of them came down on the side of the administration. Now, 
that judicial acceptance of the administration's positions 
surely established that they were well grounded in Supreme 
Court precedent.
    One can hardly fault the administration, for example, for 
failing to predict the Boumediene Court's abandonment of a 
venerable case like Eisentrager. The Boumediene case overturned 
the Military Commission Act of 2006, which was Congress's 
carefully considered statutory framework for determining the 
status of Guantanamo detainees. Thus, the five Justices in the 
Boumediene majority essentially ignored Justice Jackson's 
famous formulation in the steel seizure case that when the 
President acts pursuant to an act of Congress, his authority 
is, in Jackson's words, ``at its maximum'' and should be 
accorded ``the strongest of presumptions and the widest 
latitude of judicial interpretation.''
    Indeed, prior to the war on terror cases, the Supreme Court 
had uniformly accorded the President great deference in the 
area of national security and foreign and military affairs. 
That a bare majority of the Supreme Court has now effectively 
cast aside that long history of deference in an area so 
critical to our national security is, I would submit, the most 
significant development in the separation-of-powers area to 
come out of the last 8 years. If you want to know my advice on 
what the next President and Congress or Senate should do to 
ensure that the rule of law as embodied in our Constitution 
will be respected, it is this: appoint and confirm judges and 
Justices who will respect the constitutional prerogatives of 
the other branches of Government.
    One last point while I am on the subject of the Supreme 
Court. A large majority of the Court's decisions each term 
reverse the opinions of lower court judges, and the Court 
invalidates congressional statutes virtually every term. In 
other words, every term the Court declares that Congress and 
lower court judges got the law wrong. But these judges and 
Members of Congress are presumed, quite properly, to make good-
faith efforts to interpret the law honorably and to the best of 
their abilities. Yet that presumption is typically not accorded 
to members of the executive branch.
    Which brings me to something that the next administration 
and Congress, in my opinion, most assuredly should not do, and 
this will conclude my testimony, Senator Feingold. It should 
not threaten executive branch lawyers from the prior 
administration with ethical inquiries and criminal 
investigations. Even tranquil times, let alone times of war and 
national peril, engender serious debate and vigorous emotional 
disagreement over matters of policy and law. If disagreement 
between lawyers is sufficient to provoke criminal 
investigation, civil liability, or bar discipline proceedings, 
why would anyone--of either party or no party--elect to serve 
as a lawyer for the Government?
    Thank you, Senator Feingold.
    [The prepared statement of Mr. Cooper appears as a 
submission for the record.]
    Chairman Feingold. I thank you, Mr. Cooper.
    Our next witness is former Congressman Mickey Edwards. 
Congressman Edwards was a Republican Member of Congress from 
Oklahoma for 16 years, from 1977 to 1993, during which time he 
served on the House Appropriations and Budget committees and 
was a senior member of the House Republican leadership as 
Chairman of the party's Policy Committee. After leaving 
Congress, Edwards was on the Harvard faculty for 11 years, 
where he taught at both the Kennedy School of Government and 
Harvard Law School. For the past 4 years, he has been on the 
faculty of Princeton University Woodrow Wilson's School of 
Public and International Affairs. Congressman Edwards is also 
on the board of directors on the Constitution Project. He was 
one of three founding directors of the Heritage Foundation, 
national chairman of the American Conservative Union, and he 
has chaired the annual Conservative Political Action Conference 
five times.
    Congressman Edwards, thank you for being here and for your 
time today. You may proceed.

     STATEMENT OF MICKEY EDWARDS, BOARD OF DIRECTORS, THE 
CONSTITUTION PROJECT; LECTURER, WOODROW WILSON SCHOOL OF PUBLIC 
AND INTERNATIONAL AFFAIRS, PRINCETON UNIVERSITY; FORMER MEMBER 
 OF CONGRESS 1977-1993; AND FORMER CHAIRMAN, HOUSE REPUBLICAN 
               POLICY COMMITTEE, WASHINGTON, D.C.

    Mr. Edwards. Thank you, Mr. Chairman, members of the 
Committee. On behalf of myself and the Constitution Project, I 
want to thank you for the opportunity to discuss the rule of 
law as it pertains in particular to the prerogatives and 
obligations of the Congress. I have become increasingly 
concerned about the failures of Congress to meet its 
constitutional responsibilities.
    There are a great many important questions, substantive 
policy questions, to be face. Not one of those issues--and not 
all of them combined--is as important as remaining a Nation 
governed by the rule of law under our Constitution. In our 
case, the principal law that governs us and to which all other 
laws are subordinate is the Constitution, which spells out the 
powers and limits on the powers of the Government as a whole 
and of the component branches of the Government.
    There has been a great deal of criticism directed at the 
President over actions viewed by many--and by me--as 
overstepping the proper bounds of his authority and violating 
the Constitution. I have no intention of renewing those 
criticisms here today. I am not here to point a finger of blame 
at President Bush.
    So let me be clear. The current threat to our system of 
separated powers and the protections it affords stems not just 
from executive overreaching but also from the acquiescence of 
the Congress. America's Founders envisioned a system in which 
each branch of Government would guard its prerogatives and meet 
its obligations.
    But for years, the Congress has failed to live up to its 
responsibilities as the representative of the people. 
Congress's constitutional role includes primary authority over 
spending priorities, tax policies, and whether or not to go to 
war. All of those decisions require the gathering of the 
information necessary to act judiciously and a willingness to 
see to it that Congress's decisions are complied with.
    Instead of fulfilling this trust, Congress has too often 
been silent. When the President, in a direct challenge to 
Article I, Section 7 of the Constitution, declared that he 
would decide for himself whether he was bound by the laws he 
signed, both Houses of Congress held hearings but failed to 
pursue the matter any further. Particularly distressing to me 
as a former member of the Republican leadership was the 
reaction of the Republican members of the House Judiciary 
Subcommittee who indicated no concern at all about a 
President's declaration that he had the right to disregard the 
laws that the Congress had passed.
    When the President declared that he had the authority to 
disregard Federal law that required a judicial warrant before 
conducting electronic surveillance on American citizens, 
Congress held hearings but never required compliance with its 
requests for full disclosure about how the program was 
conducted. And the Congress acquiesced to the President's 
demands that the law be changed without obtaining the 
information it needed.
    When the President declared that the Congress could not 
question members of his staff to determine whether laws had 
been broken or new laws were needed, nearly half the members of 
the House--members of my party, which had always said it 
favored strict construction--walked out rather than hold White 
House staff members in contempt. And the Congress was forced to 
file a civil suit, as any citizen might do, as though it were 
not an equal branch of Government.
    When the Congress has required information about the 
undertaking of covert actions or needed access to information 
the Executive has classified, the Congress has permitted the 
Executive to dictate who among the Members of Congress and 
their staffs may have access to that information, the result 
being that information that is available to hundreds of 
executive branch staff members is withheld not only from 
congressional staff members but from Members of Congress 
themselves. And with this, the Congress meekly complies.
    Every Member of Congress takes an oath to uphold and defend 
the Constitution. Once that oath is taken, loyalty to the 
Constitution takes primacy over loyalty to party or individual. 
That is not what has happened in recent years.
    Do Members of the Senate recall that the President is the 
head of state but not the head of Government? Do they 
understand that they are members not merely of a separate 
branch of Government, but of a branch that is completely the 
equal of the Presidency and in many areas--taxing, spending, 
the power to declare war--the pre-eminent branch?
    Mr. Chairman and members of the Committee, do not let it be 
said that what the Founders created, you have destroyed. Do not 
let it be said that on your watch, the Constitution of the 
United States became not the law of the land but a suggestion. 
You are not a parliament; you are a Congress--separate, 
independent, and equal. And because of that you are the 
principal means by which the people maintain control of their 
Government.
    Mr. Chairman, the issue is not what the next President 
should do. It is what the next Congress should do.
    Thank you.
    [The prepared statement of Mr. Edwards appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Congressman Edwards. Your 
testimony I think is terribly important much beyond the 
confines of this hearing. I think it is a historic statement, 
and I welcome it.
    Our next witness this morning is Professor Robert Turner of 
the University of Virginia Law School. Professor Turner co-
founded the Center for National Security Law in April 1981 and 
has, with a few breaks for Government service, served as its 
Associate Director since then. A veteran of two Army tours in 
Vietnam, he has worked for the Senate Foreign Relations 
Committee, at the Pentagon, and the State Department, and has 
served as three-term chairman of the ABA Standing Committee on 
Law and National Security. Professor Turner attended Indiana 
University and the University of Virginia Law School.
    Professor Turner, it is good to see you again. Thank you 
for being here, and you may proceed.

    STATEMENT OF ROBERT TURNER, PROFESSOR, GENERAL FACULTY, 
     ASSOCIATE DIRECTOR, CENTER FOR NATIONAL SECURITY LAW, 
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA

    Mr. Turner. Thank you, Mr. Chairman, Senator Brownback, and 
members of the Committee. I am deeply honored to be here again 
before this Subcommittee because the topic is one of great 
importance to the Nation: ``Restoring the Rule of Law.'' 
Ironically, that was the subtitle to one of my books 
criticizing the War Powers Resolution.
    My central premise is that we have a hierarchy of laws in 
this country, with the Constitution at the top. The President 
is not breaking the law when he violates a statute he believes 
to be unconstitutional. He is upholding the supreme law of the 
land. And, sadly, over the past three or four decades, Congress 
has been flagrantly violating the Constitution in a variety of 
ways.
    As a Senate staff member in 1976, I drafted a lengthy 
memorandum explaining why legislative vetoes are 
unconstitutional. Seven years later, in the Chadha case, the 
Supreme Court reached exactly the same conclusion on a number 
of grounds. Sadly, rather than eliminating the hundreds of 
existing legislative vetoes already on the books, Congress 
responded by enacting more than 500 new patently 
unconstitutional legislative vetoes--thumbing its nose at the 
Supreme Court and the Constitution in the process. This is the 
single most common reason Presidents of both parties have found 
it necessary to issue signing statements.
    The greatest congressional lawbreaking by far has occurred 
in the area of foreign affairs. This is an area that is not 
understood by many Americans. I did my doctorate on it, 1,700 
pages, and have spent close to 40 years studying it. In my 
prepared statement, which runs some 60 or 70 pages, I include 
quotations from Founding Fathers like George Washington, Thomas 
Jefferson, James Madison, Alexander Hamilton, John Jay, and 
John Marshall, demonstrating their view that the Constitution 
gave exclusive control over foreign policy to the President--
subject only to narrowly construed ``exceptions'' given to the 
Senate and to the Congress--when it vested the executive power 
in Article II, Section 1 in that office. And I demonstrate in 
my testimony that there is a long history of agreement on this 
point by all three branches of Government.
    The Federalist Papers explained that, because Congress 
could not be trusted to keep secrets, the new Constitution had 
left the President, and I quote, ``able to manage the business 
of intelligence as prudence might suggest.'' Throughout our 
history that was the collective understanding until 35 years 
ago, when Congress began usurping power in this area.
    The first witness said that never before in our history has 
a President claimed the power to ignore a law. This is 
absolutely absurd. The first example probably was somebody--you 
cannot come from the University of Virginia and not mention 
Thomas Jefferson--who, upon assuming office, declared he was 
not going to be bound by the Alien and Sedition Acts because 
they were unconstitutional. They violated the First Amendment.
    FDR, in the famous Supreme Court Levin case, issued a 
signing statement declaring he was not going to enforce a rider 
stuck on an urgent supplemental appropriations bill for World 
War II that said no money could be used to pay the salaries of 
three people believed by some to be Communists in Government 
service. During that debate, many members said this was a 
``Star Chamber process.'' Congress was trying and punishing 
individuals without due process of law. Ultimately, the Supreme 
Court declared it was an unconstitutional bill of attainder.
    I quote John Marshall in Marbury v. Madison as declaring, 
and I quote, ``a legislative Act contrary to the Constitution 
is not law.'' Ergo, the President's duty to see the laws 
``faithfully executed'' does not include unconstitutional Acts 
of Congress.
    In Marbury v. Madison, in language often excluded from 
modern casebooks, Chief Justice Marshall noted the Constitution 
grants to the President a great deal of unchecked power. We 
hear today every power of a democracy must be checked. That was 
not the understanding of the Constitution by the Framers.
    For example, to quote from Marshall in Marbury: ``whatever 
opinion may be entertained of the manner in which executive 
discretion may be used, still there exists, and can exist, no 
power to control that discretion.''
    As recently as 1969, Senator J. William Fulbright, Chairman 
of the Senate Foreign Relations Committee, stated in a speech 
at Cornell Law School, ``The pre-eminent responsibility of the 
President for the formulation and conduct of American foreign 
policy is clear and unalterable.'' Soon thereafter, in the 
anger and heat of the Vietnam War, Congress began a rampage of 
lawbreaking.
    Finally, Mr. Chairman, I show how this congressional 
lawbreaking has done extraordinary harm to our national 
security and the cause of world peace. I explain how an 
unconstitutional 1973 appropriations rider snatched defeat from 
the jaws of victory in Indochina and led directly to the 
slaughter of millions of lives we had solemnly pledged to 
defend in Cambodia and South Vietnam. I show how the horribly 
partisan congressional subversion of our peacekeeping 
deployment in Beirut a decade later led directly to the 
terrorist attack that killed 241 Marines. I document the role 
of that incident in persuading Osama bin Laden to attack 
Americans on 9/11 because he concluded we could not accept 
casualties. And I also show how unconstitutional constraints on 
our Intelligence Community, including the Foreign Intelligence 
Surveillance Act, prevented it from protecting us from those 
attacks.
    Mr. Chairman, my time is up. I look forward to taking your 
questions at the appropriate time.
    [The prepared statement of Mr. Turner appears as a 
submission for the record.]
    Chairman Feingold. I thank you, Professor Turner.
    Our next witness is a dear friend of mine, but he also is 
better known, of course, as Harold Koh, the Dean and Professor 
of International Law at Yale Law School, where he has taught 
since 1985. Dean Koh attended Harvard College and Harvard Law 
School, and as I indicated, we had the pleasure of studying 
together at Oxford. From 1998 to 2001, Dean Koh served as 
Assistant Secretary of State for Democracy, Human Rights, and 
Labor. Before beginning work at Yale Law School, he practiced 
law at the Washington, D.C., law firm of Covington & Burling 
and worked in the Office of Legal Counsel at the Department of 
Justice.
    Dean Koh, thank you for being here, and you may proceed.

 STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C. & BERNICE 
LATROBE SMITH PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL, 
                     NEW HAVEN, CONNECTICUT

    Mr. Koh. Thank you, Mr. Chairman. As you mentioned, in my 
career I have had the privilege of serving our Government in 
both Republican and Democratic administrations and at the 
Justice Department and the State Department.
    Seven years ago, our country was properly viewed with 
universal sympathy as the victim of a brutal attack. But, 
tragically, the current administration chose to respond with a 
series of unnecessary and self-inflicted wounds, which you 
catalogued in your opening statement, which have gravely 
diminished our standing and damaged our reputation for respect 
for the rule of law. These violations have been extensively 
documented, so in my written testimony, I have tried to answer 
the two questions you raised: first, to look at the vision of 
constitutional power that the administration has invoked to 
justify its policies; and, second, to identify four steps that 
the next President and Congress can take to reverse the damage 
and restore the vision of checks and balances.
    First, the constitutional vision. Before September 11th, as 
a matter of constitutional law, our national security policy 
was conducted within four premises.
    First, that under the Constitution, executive power 
operates within a constitutional framework of checks and 
balances, resting on shared institutional powers, a vision set 
forth in Justice Jackson's opinion in the steel seizure case. 
The simple idea is that checks and balances do not stop at the 
water's edge.
    A second idea that within that realm of government 
activity, there are no persons, practices, zones, or courts 
outside the law.
    Third, that the President may not invoke legislative 
authority to impinge on civil liberties without clear 
legislative statement.
    And, fourth, that except for the right to vote and serve on 
juries, the distinctions between citizens and aliens, 
especially with regard to social and economic rights, are 
modest.
    Well, only 7 years later, that constitutional world has 
been turned upside down, each of these four aspects. The 
current administration has urged not a system of checks and 
balances, but a theory of unfettered power based on Article II 
and the Supreme Court's decision in U.S. v. Curtiss-Wright 
Export Corporation. They have argued for a system of law-free 
zones--Guantanamo; law-free practices--extraordinary rendition; 
law-free persons--enemy combatants; and law-free courts--
military commissions, all of whom they say are exempt from 
judicial review.
    Third, the executive branch has justified large-scale 
infringements on civil liberties based on vague legislative 
enactments, particularly the Authorization of the Use of 
Military Force Resolution of 2001. And as we all know, the 
conduct of the war on terror has led to sharp and growing 
distinctions between citizens and aliens, especially those of 
Muslim, Middle Eastern, and South Asian extraction with regard 
to their political rights.
    And in recent years, we have really heard an even more 
disturbing claim: that, once taken, executive action is a kind 
of law unto itself. With respect to torture, NSA surveillance, 
state secrets. signing statements, and preemptive pardons, the 
administration has tried to use constitutional claims of 
executive authority to change the rules.
    One example you remember well, Senator, came in January 
2005. Before the NSA program came to light, you asked Attorney 
General-designate Gonzales, ``Could the President violate 
existing criminal laws and spy on U.S. citizens without a 
warrant?'' He said it was a ``hypothetical situation'' and 
``not the policy of the President to authorize actions in 
contravention of criminal statutes.'' But, late, when it turned 
out that this was going on, and you asked him again, he said he 
had not misled Congress because once the President authorized 
it, it had become legal under the President's constitutional 
powers and could not contravene any criminal statute.
    The same line of reasoning was applied in the infamous 
torture opinion where the claim was that if Congress tries to 
regulate interrogations, it violates the Constitution's vesting 
of the Commander in Chief power; and further argued that those 
who torture at the direction of the Commander in Chief cannot 
be prosecuted.
    What this brings to mind is President Nixon's statement: 
``If the President does it, it means it is not illegal.'' But 
if that is true, then the President's word alone is law, and 
the system of checks and balances in the Constitution does not 
exist.
    This has led to a series of problems. It has clouded our 
human rights reputation. It has blunted our ability to 
criticize others. It has made us less safe and less free. And 
it has had huge costs for our foreign policy. And so in the 
second part of my testimony, I set forth four concrete steps to 
put our house back in order: closing Guantanamo through an 
interagency process; a series of executive orders to roll back 
some of these provisions; the introduction of national security 
legislation which could bring about repeals of some of the 
worst provisions of law; and, finally, a number of steps to 
reaffirm our respect for international national and 
institutions.
    In closing, let me say, Mr. Chairman, that the vision of 
unchecked executive authority offered by the administration and 
some of the witnesses offends the vision of shared national 
security power that is central to what Justice Jackson called 
in Youngstown the ``equilibrium of our constitutional system.'' 
Our Government is defined by the rule of law. The rule of law 
defines who we are as a Nation and a people. If this country 
does not stand for the rule of law, we really do not stand for 
anything.
    And so I think we have to remember that in the grand scheme 
of things, as difficult as the last 7 years have been, they 
loom far less important than the next 8 years, because the next 
8 years will determine will the pendulum of U.S. policy swing 
back from where it has been pushed or will it stay stuck in 
what you could call a ``new normal'' position.
    To regain our standing, I think the next President and 
Congress must unambiguously reassert our historic commitment to 
the rule of law as a major source of our moral authority.
    Thank you.
    [The prepared statement of Mr. Koh appears as a submission 
for the record.]
    Chairman Feingold. Thank you so much, Dean Koh.
    Senator Brownback, I think we will begin with 7-minute 
rounds for this panel.
    Senator Brownback. That is fine.
    Chairman Feingold. Thank you. Ohio State University law 
professor Peter Shane submitted written testimony in which he 
argues that we need to reinstate a rule-of-law culture in 
Government. As he explains, ``The written documents of law have 
to be buttressed by a set of norms, conventional expectations, 
and routine behaviors that lead officials to behave as if they 
are accountable to the public interest and to legitimate 
sources of legal and political authority at all times, even 
when the written rules are ambiguous and even when they 
probably could get away with merely self-serving behavior.''
    I think this cuts to the core of the problem that the next 
President will face. After 8 years of disregard for the rule of 
law at the highest level of Government, how can we instill new 
norms and expectations that permeate throughout the Federal 
Government? I would ask Dean Koh and Mr. Schwarz if they could 
address this. Dean Koh?
    Mr. Koh. Yes, Senator. The answer, I think, is in four 
parts.
    First, the message must come from the top. The President 
takes an oath to preserve, protect, and defend the Constitution 
of the United States of America. And so it takes a President, 
an Attorney General, a White House counsel, a head of an Office 
of Legal Counsel to send this message of commitment to the rule 
of law. And it can be done. After Watergate, President Ford, 
Attorney General Levi, Phil Buchen all worked together with 
Congress to restate a culture in the White House and in the 
executive branch of rule of law.
    Second, the process has to be made transparent and 
inclusive. There should be no secret legal opinions. We need 
full vetting by good lawyers. In the Washington Post, they have 
had coverage of Bart Gellman's book ``Angler.'' One of the 
issues raised was how a secret legal opinion on FISA was being 
challenged as making no sense, and former Deputy Attorney 
General Comey said, ``No good lawyer would ever rely on that 
opinion.'' But that opinion is still not available for anyone 
to look at it, even though people were relying on it to violate 
the law.
    Third, the President has to act quickly to take steps that 
will reverse the trend and not adopt half measures. And I have 
outlined in my testimony a package of suggestions: closing 
Guantanamo, executive orders, introducing legislation, taking a 
number of steps with regard to international law.
    And, finally, I think the President should create new 
structures. One structure that we propose is a national 
security law Committee which could be chaired by the Attorney 
General and guarantee that the President get good legal advice. 
It might make sense for Congress to consider creating a 
congressional legal adviser on the other side who could examine 
the kinds of legal justifications that are being brought 
forward.
    The key idea here is that the President has to report what 
he does to people who do not work for him, because they are 
ones who will be inclined to tell him something he does not 
want to hear, and to report to people whose job it is to look 
not to what he wants but what do the Constitution and laws 
direct.
    Chairman Feingold. Thank you, Dean Koh.
    Mr. Schwarz?
    Mr. Schwarz. I would agree with what the dean said. I would 
supplement slightly.
    The leadership side, I think it has to come from the 
Congress as well as the President. And in both cases, 
understanding by the people of where we have gone wrong and how 
it has hurt us contributes to people wishing to be leaders. And 
the public cannot do their job if secrecy smothers what has 
happened. So those things are all connected--the people, the 
leaders, secrecy, and the way in which leaders lead and the 
public demands that they lead.
    Transparency is obviously necessary. I think all the 
witnesses today would agree we should have more transparency. 
John Podesta in his testimony later is very good on what we 
should do about too much secrecy. My idea of a commission I 
think is helpful in that.
    Then the public needs to understand some of the key 
arguments, which are not being made forcefully enough to the 
general public. One is that when we abandon the rule of law, 
when we go against our own values, we are actually making this 
country less safe, because Muslim recruiters get talking points 
against us and our allies are less likely to join with us.
    The second thing the public needs to understand, which will 
then help produce the leadership, is that the--we have 
separation of powers of a very good reason. It makes Government 
work better. And if you do not have a debate surrounding 
important issues, you are far less likely to get the decision 
right and you are far more likely to get the decision wrong.
    Chairman Feingold. Thank you, Mr. Schwarz.
    I will go to Congressman Edwards, and I will have a follow-
up for Mr. Schwarz on this one as well.
    Congressman, I think your point that Congress has a 
significant role to play in preventing the executive branch 
from overreaching is obviously very important. No one was more 
disappointed and vocal about the congressional response to the 
revelations about warrantless wiretapping than I was. I think 
we abdicated our responsibility to the country and to the 
Constitution by not taking much more significant action once we 
learned what was going on.
    In this case, we had the President's party controlling the 
Congress at the time of the revelations, and that could be the 
situation in the future, of course. So what would be your 
advice for how the minority party should handle such a 
situation in the future? And how can we make it more likely 
that a majority party in Congress that is also of the 
President's party will be willing to part with him or her on 
these important issues?
    Mr. Edwards. Well, I want to go back to something Mr. 
Schwarz just said. You have to frame the issues in a way that 
gets the public involved in understanding why we have a 
separation of powers. When the party, my party, you know, as 
the majority with a Republican President, acquiesced to what 
the President was asking even when it went beyond 
constitutional authority, your party responded mostly with 
policy debate--with policy debate about where people should be, 
whether it should be at Guantanamo. You know, that is nothing--
never was the question of not policy but process raised about 
the fact that we preserve our liberties by virtue of having the 
people's branch retain its constitutional authority.
    Members of the majority party were never challenged on 
that. It was all a matter of policy, and you cannot win that 
way. And the Congress has authorities it does not use. The 
Congress has the power to withhold funding, the power to hold 
up appointments. If you really want to fight to preserve not 
your power, not your authority, but your responsibilities and 
obligations under the Constitution, then you have to use all 
the tools that are found in the first section of the 
Constitution. And I have not seen it happen. I mean, I used the 
example a moment ago about the executive branch telling the 
Congress--telling the Congress of the United States--you know, 
whether or not they would enforce a contempt citation, telling 
the Congress of the United States whether we will let you as a 
United States Senator have access to information that hundreds 
of executive branch staff people have. And the Congress goes--
you have to engage on that front and say, ``We are not going to 
put up with it. And if you insist, Mr. President, you are going 
to pay a price. You are going to pay a price in appointments. 
You are going to pay a price in withholding of funding,'' and 
so forth.
    Chairman Feingold. Of course, I could not agree with you 
more. I will turn to Senator Brownback in a second, but I just 
wanted to see if Mr. Schwarz had any thoughts on this point in 
light of your service on the Church Committee.
    Mr. Schwarz. Well, I think first that it is important that 
Congress overcome partisanship. I said these issues should not 
divide Americans. History tells us we have in the past, FDR and 
Lincoln in their Cabinets brought in members of the opposite 
party or political opponents. David Boren's terrific new book, 
a Senator from Oklahoma, talks about how when he was a rookie 
Senator, he had made a vote which Howard Baker, the Republican 
leader of the Senate, knew was going to hurt him in Oklahoma. 
And Howard Baker went up to him and said, ``You know, you ought 
to change that vote. You have not really understood it, and it 
is going to hurt you.'' That is a culture which we need to 
restore.
    Now, on the Church Committee--do you want me to make a 
comparison between--
    Chairman Feingold. Just very briefly, because I really 
should call on Senator Brownback.
    Mr. Schwarz. OK. The key issues that we found were 
troublesome--ambiguous laws, implicit orders to violate the 
law, excessive secrecy and lack of oversight--are all problems 
today. But I do think that the willingness and assertion of 
this administration that the President can violate the law--and 
when you look carefully at the Constitution, they will violate 
the Constitution--is something which is totally new and which 
this Committee and others ought to put to rest, and the new 
President, whoever it is, ought to renounce upon taking office.
    Chairman Feingold. Thanks so much.
    Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman, and I want to 
thank the panelists for their thoughts in considering these 
matters. You have obviously put a lot of consideration into it, 
and I appreciate your doing it.
    Mr. Cooper, I was struck, you said that 11 of 12 circuit 
court judges have ruled in favor of the administration. I want 
to make sure I am clear on what you were saying of that on 
these cases. Is that correct?
    Mr. Cooper. That is right, Senator Brownback. In the war on 
terror cases that the Supreme Court has decided, and it has 
decided them uniformly against the administration, but by very 
close votes, either three or usually four Justices in dissent. 
In every one of those cases, the administration won the case in 
the court of appeals and by lopsided votes. There was only one 
court of appeals judge who did not agree with the validity of 
the administration's legal analysis and views in those cases.
    Now, the court of appeals are not free, as the Supreme 
Court is, to break with Supreme Court precedent. They are bound 
to conscientiously and faithfully apply Supreme Court 
precedent. The point I was making Senator Brownback is that it 
is simply not reasonable to charge that the administration in 
its analysis and its conclusions that led to the decisions that 
were at issue in those cases, those four war on terror cases, 
was indifferent to, let alone contemptuous of, the rule of law. 
It carefully applied Supreme Court precedent, and at least the 
court of appeals uniformly thought they were actually right.
    But even if we accept for the moment that the majority in 
each one of those cases in the United States Supreme Court got 
it right and the dissent was wrong, and that, therefore, the 
administration was wrong on the legal call, it cannot 
reasonably or responsible be said that the administration was 
indifferent to the rule of law.
    Senator Brownback. I did not know that number.
    Dean Koh, good to see you again here. I am certain you are 
not suggesting moving the Guantanamo Bay detainees to Fort 
Leavenworth disciplinary barracks--is that correct?--in your 
testimony.
    Mr. Koh. In my testimony I said that there were four 
categories of detainees. As I understand it, there is a very 
tiny number of high-value detainees. They have a right of 
habeas corpus now under the Supreme Court's decision, and so 
they could be moved to supermax facilities in the United 
States. Where they move them obviously is a decision to be made 
by the executive branch.
    One thing I can say about--
    Senator Brownback. But you agree they cannot be mixed with 
the current population of prisoners. Is that correct?
    Mr. Koh. I think we have in the United States many 
dangerous detainees who are held separately in special 
facilities, and we have had that for a long time.
    I would say to say about Mr. Cooper's point, however, 
that--
    Senator Brownback. Could I finish this point? Because I 
have got limited time, and you can come back on the other one. 
I hope you would look and review particularly a situation like 
the Leavenworth disciplinary barracks, you are advocating the 
closing of Guantanamo Bay, to look at the problems of doing it 
at least in that facility. Now, maybe there is a place in 
Wisconsin that fits or works, but the disciplinary barracks in 
Leavenworth does not.
    As one advocates that position--and I respect you for doing 
that--there is a very practical side to then how you handle 
that, and this is one that--I have been there multiple times. I 
do not know if you have. I have not been incarcerated there, 
but I have been there many times. And I just hope you will look 
it over.
    Mr. Koh. Senator, Timothy McVeigh was held in a facility in 
Colorado and was tried there, and he was the adjudicated killer 
of thousands of people in the terrorist attack on U.S. soil. 
There is no suggestion that he was not held safely or without 
due process of law.
    Senator Brownback. Professor Turner, I want to ask you, if 
I could, it has been suggested that the Congress would withhold 
funding or make it conditional if the administration does 
things along this line that the Members of Congress would look 
at as questionable. I take it you would have great challenge to 
that on legal grounds, on constitutional grounds. Is that 
correct?
    Mr. Turner. Senator, the question is: Could Congress do it 
directly? If Congress attempts to do something by conditional 
appropriation, that it is not permitted under the Constitution 
to do directly--for example, tries to usurp, if Congress were 
to pass an appropriation bill and say no money can be used for 
combat operations in Cambodia, for example, which they, in 
fact, did and killed over 20 percent of the population of 
Cambodia as a result--that I believe would be unconstitutional.
    The best example I can give you: What if Congress were to 
pass a rider saying no funds shall be available for the 
judiciary if the Supreme Court declares any Act of Congress to 
be unconstitutional--thus trying to usurp judicial review?
    Now, there is a much stronger case for that under the 
Constitution than there is for usurping the Commander in Chief 
power, because judicial review is an implied power that John 
Marshall gave us in Marbury. I think it was intended by the 
Founding Fathers, I like it, but you cannot look at the 
constitutional text and say, ``Here it says the Supreme Court 
can overturn an Act of Congress.'' But that has been our law. 
If Congress were to pass a law saying no money shall be 
available for the judiciary unless the courts overturn Roe v. 
Wade--or if they overturn Roe v. Wade--my point is that would 
be an unconstitutional usurpation. And if we allowed this type 
of conditional appropriation, we would totally destroy the 
doctrine of separation of powers.
    Senator Brownback. Congressman Edwards, I have appreciated 
your career and all you have done, and I am looking forward to 
the football game. Hope we do well in it. We will see, with how 
strong Oklahoma is.
    Once in a while the Supreme Court gets it wrong, too: the 
Dred Scott decision, Korematsu, Plessy v. Ferguson. Are there 
things that we should look at, or is there anything that 
controls the Supreme Court in cases like that, other than, I 
guess, just time and wearing it out, that the society says, 
``No, this is wrong''? When you look at it, we can look back on 
those decisions and say, ``That was a horrible decision by the 
Supreme Court.'' You know, you have looked at the Congress 
toward the President, and your comments are there, and I 
respect and I understand those and I think those are good. Is 
there any limitation on the Court?
    Mr. Edwards. Well, at the lower courts, you always have the 
judicial review. Congress has the authority to limit 
jurisdiction, as you know. But, you know, generally, it is a 
matter of over time we get it right. It is not just the Supreme 
Court. I mean, we had the Alien and Sedition Acts. We had the 
imprisonment of the Japanese-Americans.
    We have this tendency sometimes to get it wrong, but I am 
not advocating, you know, that the Congress step in and, you 
know, try to second guess the courts. There are cases where 
policy can be made by the legislative branch. But, you know, I 
am not a scholar of the Supreme Court, and I do not pretend to 
be. But you are right, I mean, I agree with you there have been 
a lot of very bad decisions over the years, maybe starting with 
Marbury v. Madison.
    Senator Brownback. I will leave that alone.
    [Laughter.]
    Senator Brownback. Thank you, Mr. Chairman.
    Chairman Feingold. I want to thank Senator Cardin for 
attending the entire first panel before he had to leave, and 
now I am very delighted to turn to Senator Whitehouse for his 
round of questions.
    Senator Whitehouse. Thank you, Chairman. First of all, let 
me tell you how much I appreciate that you are holding this 
hearing. You have two very large and very distinguished panels, 
and it is a vital question that you inquire into. If only we 
had more time, because the extent to which the rule of law has 
been challenged by this administration, it is so broad that we 
could probably spend 2 hours on 10 different subsets of it.
    I would like to ask about two issues. I am a bit of a 
student of separation of powers, and I am firmly convinced of 
its importance to the preservation of liberty in our country. 
But within the executive branch, we have over time through the 
administrative apparatus we have set up, both independent 
commissions and executive agencies, a bit carved up or cut into 
or perhaps the best way to describe it would be ``required 
structure'' of executive decisions. The Administrative 
Procedures Act has requirements before an agency can act. A 
responsible office holder who takes his oath of office 
seriously in the light of the duties of the agency he serves 
and the office that he occupies or she serves or she occupies 
has certain constraints around them. They run in opposition to 
the unified executive theory in which everybody works for the 
President, everybody is supposed to do his bidding. As we read 
in a very impressive pair of articles in the Washington Post 
recently, it is the President's view that he decides what the 
law is. And there is impatience if not outright hostility to a 
control over the process by which decisionmaking takes place in 
the executive branch.
    I would be interested in your thoughts on to what extent we 
have created and should preserve a structure within the 
executive branch that controls executive decisionmaking. Some 
of it is quite formal, like the Administrative Procedures Act 
and the statutory missions of the different agencies. Some of 
it is a little bit more practical, and in some cases not even 
derived from Congress. One of my favorite examples is the rule 
that the Department of Justice developed over time to prevent 
White House officials from meddling in Department of Justice 
criminal and prosecution decisions, which was a very important 
firewall, was monitored by this Committee, and was 
systematically disassembled by the Bush administration until 
they satisfied themselves that, for instance, Vice President 
Cheney's legal counsel or Karl Rove now had access to 
prosecutors in the Department of Justice to talk with them 
about ongoing cases without what I would consider adult 
supervision.
    So there is a broad array of these things, and if you have 
anything to say about that sort of--for want of a better word, 
executive administrative separation of powers, I would be 
interested in hearing that, because we overlook that, I think.
    Mr. Schwarz. Maybe I could take a try on that. Without 
having those auxiliary devices within the executive branch, 
given the hugeness of the Federal Government, Congress cannot 
possibly do that which it should do. I mean, we all think 
Congress could do more. But unless you have within the 
executive branch internal checks and balances, Congress cannot 
do the job given the size of the Federal Government. So there 
are things like Inspector Generals that I think are lawful and 
appropriate and often work well.
    And then the other observation I would make from recent 
events is that one of the things that went wrong with the 
current administration was they fenced out from decisionmaking 
on matters of such importance as the Geneva Convention and 
torture. They fenced out people within the executive branch who 
would bring real expertise to that question--the State 
Department, military lawyers, and military generals. All of 
those people--
    Senator Whitehouse. The NSA lawyers, for instance, were not 
allowed to read the OLC opinion on the program that they 
themselves were administering.
    Mr. Schwarz. Exactly. And so that is an observation of how 
dangerous it is when not only do you not have the check of the 
Congress working the way the Constitution intended, but within 
the administration you have a tiny coterie of people who were 
deciding things that are going to affect our reputation in the 
whole world adversely and not consulting the relevant people 
within their own administration.
    Senator Whitehouse. So you are comfortable that, in 
addition the constitutional separation of powers among the 
branches, we should also in Congress attend to what you, I 
think, better than I called ``internal checks and balances'' 
within the executive branch of Government.
    Mr. Schwarz. Yes.
    Senator Whitehouse. Professor Koh? I think I saw a hand go 
up.
    Mr. Koh. Yes. The parallel to the Administrative Procedures 
Act on the national security side is the National Security Act 
of 1947 which creates the current such, and much of it has been 
amended by laws that were passed after the Watergate/Vietnam 
era, which were designed to create this both system of internal 
checks and balances and consultation.
    The breakdown here came from two different points. One is a 
concentration of decisionmaking within the executive branch, 
which, as Mr. Schwarz described, fenced out expertise, ruled 
out moderate voices, prevented legal opinions that were in 
secret from being examined, and disrupted the chain of command. 
And so you had this extraordinary situation where the counsel 
to the Vice President was giving direction to the Deputy 
Assistant Attorney General for the Office of Legal Counsel, 
with apparently not going through the Attorney General? And 
that is an extraordinary disruption of process and ought to be 
addressed.
    And I think a second point is that lawyers need to be 
included at the key points, brought in before, ex ante, to help 
make legal decisions, not after the fact to give legal 
justifications.
    Senator Whitehouse. Mr. Chairman, my time has expired. I 
appreciate your courtesy.
    Chairman Feingold. Thank you, Senator Whitehouse. I will 
begin a second round.
    Dean Koh, again, thank you for your excellent testimony. I 
particularly appreciate the specificity in your written 
testimony about what exactly the next President should do right 
off the bat. You list seven executive orders a President should 
issue to ``send the unequivocal message that the United States 
does not accept double standards in human rights.'' This is so 
important not only for what it says about who we are, but also 
for our relationships with our allies and the message we send 
to and about our adversaries. I hope that the next President 
and his advisers will read these suggestions and pay very close 
attention to them.
    Now, you have served in the State Department, and you say a 
bit about the importance of the rule of law and dealings with 
other countries, and particularly about its role in the next 
President's efforts to restore relationships with allies and 
build trust and cooperation that we are going to need to take 
on issues all the way from climate change or combating 
terrorism or extremism.
    Mr. Koh. Yes, Senator. The last 7 years have been 
devastating in this regard. Perhaps the worst example I could 
give is a conversation I had with a dissident in Cuba who is 
against the Castro regime. He described the situation he was 
under where he had been detained on numerous occasions without 
charge. His home was being wiretapped. I said, ``How much 
unrest is there about this domestically?'' And he said, ``If 
you raise this issue, all anyone can say is `Guantanamo.''' It 
is a complete answer to the idea that we have a right to point 
fingers.
    The same goes with regard to the Chinese who regularly in 
our diplomatic negotiations point to human rights issues at 
home as a way of saying that we should not interfere with 
internal affairs.
    On September 12, 2001, President Putin of Russia said, 
``You have your war on terror. So do we, which gives me carte 
blanche to act against the Chechens.''
    With regard to our close allies in the European Union, 
their concerns that individuals that they might turn over to us 
might be subjected to harsh treatment or other kinds of 
violations of human rights and the rule of law have 
dramatically interfered with our cooperation in these 
intergovernmental efforts.
    So I think that the costs have been huge, and I think it 
goes to the basic point that rule of law is very central to our 
stability and our reliability, and that what people think is 
that terrorists are a dangerous source of instability, but 
responding to terrorists in a way that violates the rule of law 
creates even more instability, and that is what we have been 
experiencing.
    Chairman Feingold. Thank you.
    Congressman Edwards, I was impressed by your statement 
that, ``Securing our position as a Nation governed by the rule 
of law is the most important issue facing the next President 
and the Congress.'' Can you say a little bit more about why you 
think that is the case? How does this issue in your experience 
interact with all the complicated and important domestic and 
international issues that we must tackle in the years ahead?
    Mr. Edwards. Senator, when the Founders created this 
country, they turned everything upside down, because in the Old 
World you had rulers and subjects, and the rulers decided and 
the subjects obeyed. And our Founders said, ``We are not going 
to be subjects. We are going to be citizens, and citizens tell 
their Government what to do instead of the other way around.'' 
And the way we do that is through the Congress, through the 
people selecting their representatives.
    Now, the Executive has said, this Executive has said that 
people do have a voice. They speak every 4 years. Well, that is 
not the way our system works. The people speak every day 
through you. They speak through their Representatives, their 
Senators. And the issues that are on the table today, whether 
it is energy independence, repairing our infrastructure, access 
to affordable health care, those issues and other issues come 
and go. They rise in importance. You know, they ebb. But what 
matters and makes us different is the way in which we keep the 
people in charge of the decisionmaking process. If we lose 
that, all of the other issues fade in importance.
    So that is why I argue that the number one issue that has 
to happen in the next couple of years, no matter who is elected 
President, is for the Congress to reassert its own role as an 
equal branch of Government. That will allow us to get past a 
lot of the problems we have had in the last few years.
    Chairman Feingold. Louis Fisher of the Library of Congress 
is one of the country's foremost experts on executive power. In 
his written testimony, he argues that the basis for the Bush 
administration's theory of inherent executive power--a theory 
that underlies so many of its controversial programs--is 
fundamentally misguided and that, in fact, there is no legal 
basis for any inherent power in the President.
    Dean Koh, can you explain why that is the case?
    Mr. Koh. Well, three points. This is the Subcommittee on 
the Constitution. Article II created a President and not a 
king. The difference is that a President is subject to checks 
and balances from Article I and Article III. And so, therefore, 
the scope of his executive power is limited by what he cannot 
do without the cooperation of the other branches.
    Second, there are some things that the executive has no 
inherent power to do. The executive has no inherent power to 
order torture. He is the Commander in Chief, not the torturer 
in chief. He has no power to order genocide or other kinds of 
acts. And so the idea that somehow these are justified by 
inherent powers is giving him power that no everything has.
    And the third point, which I think is a functional point, 
why is this good policy, is it is good law. A President who 
relies on inherent power and does not get either political 
support from Congress or legal approval from the courts ends up 
going it alone. And as a result of that, they end up having to 
rely on popularity polls. And if the war in which they engage 
or the acts which they pursue become unpopular, then they have 
no political or legal support for what they are doing.
    So the system of checks and balances was designed to ensure 
that a Government which runs on the consent of the governed as 
opposed to on the power of the kind is actually notified to the 
people and that the President talks to people who do not work 
for him.
    Chairman Feingold. Thank you.
    Mr. Schwarz, in your written testimony, you expressed your 
support for the State Secrets Protection Act, which establishes 
procedures for judges to review executive claims of the state 
secrets privilege. You also noted that this bill and the 
companion bill in the house could be strengthened.
    Could you just say a few words about how you think these 
could be strengthened to prevent--
    Mr. Schwarz. I would say two things that I think could 
strengthen it.
    The first is the current draft directs or suggests--I think 
directs--judges to give deference to the executive or 
substantial weight to the position of the executive. I do not 
think that is appropriate. The problem here with state secrets 
is that the courts have flopped over, particularly in times of 
crisis. The Supreme Court did differently because they looked 
at what was going on and said 7 years is too much. Indefinite 
period is too much. That is where we are going to put a stop to 
what in earlier wars they might not have stopped.
    But the district courts and the courts of appeals have been 
far too deferential to the executive branch. I think that is a 
problem with the draft. And then the draft, I think, also does 
not give sufficient attention to the importance of the district 
judge finding a way to allow the lawsuit to continue without 
breaching some narrow secret that may be involved. CIPA, the 
Classified Information Procedures Act, and other acts show that 
courts can work out practical solutions. I think more attention 
needs to be given to that.
    And, finally, I think it is very important that the law not 
leave the position open to just plain dismiss a case on the 
basis of an alleged state secret, which my experience suggests 
is going to be exaggerated, but sometimes will be real. But 
they should find a way to keep their case alive without 
compromising secrecy, and there are ways to do it.
    Those are the thoughts I had.
    Chairman Feingold. Thank you so much.
    Senator Brownback?
    Senator Brownback. No further questions.
    Chairman Feingold. Senator Whitehouse?
    Senator Whitehouse. The other question that I would love to 
get to with such an expert panel has to do with secrecy. On 
this Committee, we are from time to time presented with 
classified information. On the Intelligence Committee, on which 
Senator Feingold and I both serve, we are constantly bombarded 
with classified information, and it has a very crippling effect 
on our oversight of these agencies. And, in particular, there 
is a built-in bias toward the executive branch that is capable 
of being used perniciously, and I believe in this 
administration has been used perniciously. And that is that the 
senior executives who have access to classified information are 
often what are called ``declassifiers,'' which means they can 
stand up and tell you something that is secret in public, and 
they have not violated a confidence, they have not divulged 
classified information. They have declassified.
    And so you come into a situation in which there is an array 
of facts, as there are in many circumstances, and the executive 
branch will pick out and declassify a very selective group of 
facts and then go to their talking points and pound those 
publicly. And we in Congress are not capable--we are literally 
legally incapable of responding with the other facts that we 
know to make the counterargument, to explain to the public why 
the executive branch is wrong on this, because we are not 
declassifiers. We are trapped in the classification snare that 
the executive branch controls by classifying everything in 
sight and then declassifying selectively. And I have seen this 
just in my brief and year and--whatever it is--9 months in the 
Senate play out over and over and over again.
    It strikes me that the only way to solve this is to create 
a counterbalance, and the counterbalance that I would recommend 
is that the Chairman of the Senate Judiciary Committee and the 
Chairman of the Senate Select Committee on Intelligence also be 
made declassifiers. That, I think, will not only have the 
effect of allowing the Senate committees to make their case 
when they need to, it will also discourage the abuse of the 
selective declassification technique by the propaganda arm of 
the executive branch, because they will know they can be 
answered, so there is not the return on going there, and so you 
are spared the initial misleading salvo, if you will.
    I am not going to have time to hear from all of you on 
this, but I would like to ask that a question for the record, 
how you would respond to that, what concerns you might have, 
and where we go from here. I have maybe a little bit over 3 
minutes left, so we have time for a little bit of a response. 
But I see Professor Koh's and Professor Turner's and 
Representative Edwards's hands up. Can we try to keep it within 
a quick minute each given the timeframe? I do not want to 
trespass on the Chairman's time.
    Mr. Koh. Two points. One solution is to have documents be 
automatically declassified unless someone insists that they 
remain classified. I was in the executive branch, and many 
documents just were never classified because there is no 
incentive to declassify them.
    The second point, which I think is critical for the 
function of this hearing, is declassifying legal opinions, 
which are often based on facts which have now become public. 
And the fact of the matter is that these legal opinions ought 
to be examined, and sometimes the fact that the first paragraph 
mentions--
    Senator Whitehouse. I will jump in and let you know that I 
have examined them, and I could not agree with you more. And I 
am convinced that if the folks at the Office of Legal Counsel 
understood that those opinions would become public and be 
subjected to the critical scorn that they deserve, in my 
opinion, they would never have written them in the first place, 
and we would not have gone down those shameful roads.
    Mr. Koh. I agree.
    Mr. Turner. Just briefly, the Founding Fathers gave a lot 
of consideration to the issue of secrecy. Indeed, Madison said 
we would have had no Constitution had it not been for the 
strict rule of secrecy in the proceedings of the Convention. 
Ben Franklin, as Chair of the Committee of Secret 
Correspondence in 1776, concluded unanimously with the other 
members they could not tell the Continental Congress about a 
major French covert operation because ``we find by fatal 
experience that Congress consists of too many members to keep 
secrets.''
    Senator Whitehouse. Professor Turner, don't get me wrong. I 
am not against secrecy. I am against the abuse of secrecy.
    Mr. Turner. Oh, the question--
    Senator Whitehouse. And wouldn't everybody love to be in a 
debate in which they got to make their argument and they could 
tell the other side, ``I am sorry. You do not get to argue? ''
    Mr. Turner. Yes, sir. I'm sorry, Senator. The issue arose 
first during the Jay Treaty debate. I went back and read that 
entire debate in the Annals of Congress. It is very lengthy. 
Only one member said Congress had an absolute right to 
executive information. Several members said, were this an 
impeachment inquiry, Congress would have the right. James 
Madison, who knew the Constitution pretty well, said each 
branch was to be the judge of what information in its 
possession it would share with the other branches. And he said, 
``If Washington's refusal was based on the claim that these 
were sensitive secrets, I should not object.'' But his refusal 
was based on the claim the House had no role in treaty making, 
which Madison disputed.
    The Supreme Court, of course, in the Curtiss-Wright case, 
looked at that debate and said the Congress ultimately got it 
right, and Washington was right in refusing to give information 
to Congress. As recently as 1957, Ed Corwin in his classic 
study--
    Senator Whitehouse. Well, this is--again, you are not on 
the topic. This is in situations in which they have given 
information to Congress. We know it. But we just cannot argue 
back because we are under restriction of classification.
    Mr. Turner. But if they have a right--
    Senator Whitehouse. You are talking across my point and not 
at it.
    Mr. Turner. Sorry, Senator. If they have a right to say you 
cannot have the information, surely they have the right to say 
this is information we are very concerned about making public, 
but we will share it with you in return for a promise of--
    Senator Whitehouse. How would you remedy the situation in 
which, to secure propaganda advantage, one branch of Government 
discloses half of the information that supports its case and 
the other one is forbidden to by classification rules and, 
therefore, the public who we are here to serve never get 
actually a fair explanation of what the issue is?
    Mr. Turner. I think the problem there is trying to find a 
way to tell Congress and the American people everything without 
our enemies finding out. Let me just--
    Senator Whitehouse. Well, I understand that. Let me go on 
to Representative Edwards and then I saw Mr. Cooper's hand up.
    Mr. Edwards. Well, I thought your answer was a pretty good 
one. I mean, the President has the sole treaty-making 
authority. He has no treaty-approving authority, to react to 
that.
    You know, you used the words yourself. You said the problem 
is that you are legally incapable of doing something. 
``Legally'' is the law. Who writes the law? You do. Change it.
    Chairman Feingold. One more quick comment from each of you, 
and then I do need to move to the next panel.
    Mr. Cooper. If I could just make this comment: I have no 
brief for the abuse of classified information or state secrets 
by any stretch, and it does sound to me like you have described 
an abuse of the classification authority. But I do have some 
experience in dealing with classified information, distant 
experience, but that means that someone has made the sober 
judgment that the release of this information publicly would 
damage our vital national security interests.
    And so I think the Committee and the Congress would need to 
very, very carefully consider the potential implications and 
ramifications of adding to the individuals who would have 
declassification authority. But you certainly have identified a 
problem. It sounds me like some solution ought to be devised.
    Chairman Feingold. Did you have something, Mr. Schwarz?
    Mr. Schwarz. Well, I think, Senator, you put your finger on 
one of the most important problems, which is excessive secrecy. 
I believe the next Congress should, perhaps in cooperation with 
the next President, have a real serious study of the abuse of 
secrecy. There is far too much. Expert panels would probably be 
a good idea. It is something that reasonable people can come 
together on and stop arguing. There is far too much secrecy.
    Chairman Feingold. Thank you, Senator Whitehouse, and I 
thank the panel for an excellent job. I ask you to retire and 
ask the second panel to come forward. Thank you all.
    Now we will turn to the second panel. Will the witnesses 
please stand and raise your right hand to be sworn. Do you 
swear or affirm that the testimony you are about to give before 
the Committee will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Dellinger. I do.
    Ms. Rotunda. I do.
    Ms. Massimino. I do.
    Mr. Philbin. I do.
    Ms. Spaulding. I do.
    Mr. Podesta. I do.
    Chairman Feingold. Thank you very much. You may be seated.
    As with the first panel, I ask that you try to limit your 
remarks to 5 minutes. You have all provided excellent written 
testimony. I want to thank you for that. Your full written 
statements will be included in the record.
    Our first witness on this panel is Professor Walter 
Dellinger. Professor Dellinger is a partner at the Washington 
law firm of O'Melveny & Myers, and a Visiting Professor of Law 
at Harvard Law School. He headed the Office of Legal Counsel at 
the Department of Justice from 1993 to 1996. Professor 
Dellinger served as the Acting Solicitor General of the United 
States from 1996 to 1997, where he argued nine cases before the 
Supreme Court in a single term. Professor Dellinger graduated 
from the University of North Carolina and Yale Law School, and 
he clerked for Justice Hugo Black on the United States Supreme 
Court.
    Mr. Dellinger, it is great to have you here. Please 
proceed.

STATEMENT OF WALTER DELLINGER, PARTNER, O'MELVENY & MYERS, LLP, 
VISITING PROFESSOR OF LAW, HARVARD LAW SCHOOL, FORMER ASSISTANT 
 ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL (1993-1996), FORMER 
   ACTING SOLICITOR GENERAL (1996-1997), CHAPEL HILL, NORTH 
                            CAROLINA

    Mr. Dellinger. Thank you, Senator Feingold.
    We address this morning the issue surrounding the rule of 
law and the concern expressed by many of those who have 
responded to the Committee's invitation that, during the past 7 
years, we have wandered away from the kind of adherence to 
norms of lawfulness that ought to be achieved.
    To say that is not to demean the fact that there are 
dedicated career attorneys in the Department of Justice who 
have served with distinction throughout this period, nor that 
many of the political appointees have acted with courage and 
dedication. Indeed, one of the problems is that career 
attorneys were too often eliminated from the process, and the 
wonderful ballast that comes from the fact that the Department 
of Justice has so many lawyers who do not change with changing 
administrations, the wonderful effect of that was lost by the 
failure to include career attorneys, the failure to draw upon 
the judgment of officials, lawyers who had served throughout 
different administrations in the national security agencies, 
the military agencies, and otherwise.
    It does not necessarily mean that opinions were issued in 
bad faith, though when former Assistant Attorney General Jack 
Goldsmith says of the torture and a series of other memos that 
they were ``deeply flawed: sloppily reasoned, overbroad, and 
incautious,'' one certainly comes very close to wondering how, 
when you read these opinions, could have possibly been written 
by someone who was trying in good faith to achieve a lawful 
answer.
    But even where issued in good faith, an opinion, and 
especially a series of opinions, can undermine the essential 
elements of the rule of law, even where the views are held in 
good faith. I take it that it is a minimum of what we think 
about when we think of lawfulness that Government decisions are 
made as part of a good-faith effort to comply with the law. But 
that is not enough. There are substantive elements in our 
system that provide the legitimacy that goes under that term.
    The division of authority among branches of Government, 
with each branch having a role, checking and balancing one 
another, with the legislative, the executive branch, and the 
judiciary each having a role to play that is respected by the 
others, where the core legitimacy of our Government, moreover, 
depends upon the consent of the governed, where actions of the 
Government are not made public, where constitutional and 
statutory interpretations result in the President being 
empowered to disregard national laws promptly enacted by 
Congress under its authority, and in combination with the fact 
that this is done in secret, to have executive orders that 
state publicly what the rule of law is but a different law 
being applied contrary to that--this so fundamentally 
undermines the ability of the governed to consent to the kind 
of Government that they have, that even if those conclusions 
about executive power are reached entirely in good faith, I 
think it is still fair to say that they ill serve the basic 
concepts of the rule of law.
    How might one proceed from here? I think that what we heard 
this morning is clearly right, that the President must 
understand that every President is ill served if he wants 
answers from lawyers to give him what he wants to hear. It 
turns out that is not in the best interests of any President. I 
think transparency, as Mr. Podesta will argue, the elimination 
of secrecy to the extent possible, is absolutely critical to 
the rule of law. Proper procedures, fully vetting opinions, is 
also critical.
    If I had to make one suggestion, Senator, it would be with 
respect to the OLC opinions. I think we have to have some sense 
of bipartisanship with respect to reviewing what our essential 
legal constraints are, and that in either party, it would be 
advisable for the head of the Office of Legal Counsel to have 
an advisory committee, modeled somewhat on PFIAB in the 
intelligence area, a group of people, a bipartisan group, 
including those who have served in other administrations, who 
would review with the Office of Legal Counsel all of the 
opinions, including those that we have not seen, and make an 
assessment, where the Presidentially appointed, Senate-
confirmed Assistant Attorney General would have to make his or 
her decision at the end of the day, subject to review by the 
President and the Attorney General, but would make known what a 
bipartisan group, including some of those who have been 
witnesses here from each party, had to say about these issues. 
And I think that would go in some step to reclaiming the sense 
that we have had for a long time that we can trust the Office 
of Legal Counsel under political parties of both 
administrations, and indeed is exemplified by the courageous 
actions of Mr. Philbin and others in more recent 
administrations. It is a goal that can be attainable. We know 
in both parties OLC has stood up to the administration and told 
them no, and I think we can achieve that again.
    [The prepared statement of Mr. Dellinger appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Professor.
    Our next witness is Professor Kyndra Rotunda of Chapman 
University School of Law. Professor Rotunda is the former 
Director of the Clinic for Legal Assistance to Service Members 
at George Mason Law School, where she devised and taught a 
military curriculum to second- and third-year law students and 
supervised students representing military families in civil 
legal disputes. Professor Rotunda began her legal career as an 
officer in the U.S. Army JAG Corps. She remains in the U.S. 
Army Reserves and was recently selected for promotion to major. 
Ms. Rotunda graduated from the University of Wyoming and the 
University of Wyoming College of Law.
    We welcome you, Professor. Thank you for your time and you 
may proceed.

    STATEMENT OF KYNDRA ROTUNDA, PROFESSOR OF LAW, CHAPMAN 
          UNIVERSITY SCHOOL OF LAW, ORANGE, CALIFORNIA

    Ms. Rotunda. Thank you, gentlemen. It is a please to be 
with you this morning. I am a law professor at Chapman, and as 
you mentioned, sir, I am also a soldier. I am a major in the 
Army JAG Corps. I have served three tours in the global war on 
terror, including one in Guantanamo Bay and one as a legal 
prosecutor at the Office of Military Commissions, and my 
testimony today is based on those experiences serving in this 
global war.
    As we discuss the rule of law this morning, it is important 
to remember our military troops and our obligation to preserve 
and protect their rights, too. The United States should 
interpret the law in a way that helps and does not hurt our men 
and women in uniform. Unfortunately, in several important 
respects, that is not happening.
    For instance, in Guantanamo Bay, the U.S. military requires 
religious accommodation in a way that risks the safety of 
soldiers. It issues various religious items to each detainee, 
including a copy of the Koran. But, incredibly, it forbids 
military prison guards in charge of the facility from even 
touching the Koran under any circumstance. Not surprisingly, 
detainees have figured this out and they use the Koran to hide 
weapons, which they use to viciously attack our American 
soldiers. Attacks in Guantanamo Bay have risen to eight a day. 
In one year, detainees stabbed military troops with homemade 
knives 90 times.
    An incident at Camp Bucca, Iraq--a U.S.-run detention camp 
in southern Iraq--is just one example. At Camp Bucca, the 
military erected a tent as a mosque for detainees and 
designated it off limits to U.S. prison guards who were running 
Camp Bucca. The detainees used their makeshift mosque as a 
weapons cache, where they stashed concrete shards that they had 
dug from the concrete around tent poles, and home-made bombs 
that they had made with items we had given them. The prisoners 
attacked Camp Bucca from the inside out, and for 4 days they 
held off U.S. forces and seriously injured several troops. One 
officer was hit in the eye with a chunk of cinderblock. It 
fractured his cheek in three areas and broke his teeth. The 
U.S. was forced to call for back-up in order to get security of 
our own prison camp.
    What does the law say about religious accommodation? Well, 
the Geneva Conventions say that POWs must follow the 
disciplinary routine of their captors in order to preserve 
their religious latitude. This is similar to the standard 
applied in U.S. prisons. In O'Lone v. Estate of Shabazz, the 
Supreme Court said that prison officials could impinge on 
prisoners' right to exercise their religion for reasons related 
to legitimate prison management.
    The U.S. should restore the rule of law in Guantanamo Bay 
by allowing U.S. prison guards to search all items in detainee 
cells, including the Koran. No item or place within our own 
prison camps should be off limits to our guards. Doing so, 
gentlemen, is extremely dangerous, and neither international 
nor U.S. law require or authorize this unusual accommodation.
    When I served in Guantanamo Bay, I was appalled to learn 
that the U.S. military engages in gender discrimination against 
female military prison guards. Because it offends detainees, 
the U.S. forbids female soldiers from performing all aspects of 
their jobs within the detention camp. The U.S. should not 
engage in gender discrimination to appease the detainees. 
During World War II we did not discriminate against our Jewish 
soldiers to appease the Nazis, and we should not discriminate 
against our female soldiers to appease detainees who embrace 
similar discriminatory views.
    The U.S. should uphold the rule of law by ensuring that all 
troops are allowed to perform their jobs, without regard to the 
prejudices of our enemies.
    The U.S. follows the laws of war, and when our troops are 
captured, they are entitled to POW protections. That is not 
what happened for Staff Sergeant Matt Maupin.
    On April 9th of 2004, Iraqi terrorists attacked his convoy 
and led Private Maupin away from his convoy and his fellow 
soldiers. Later, terrorist captors released footage of Matt 
sitting on the floor, wearing his uniform, surrounded by masked 
gunmen and being forced to make a statement. Later, they 
claimed they murdered him. It was not until 4 years later, this 
last March in 2008, that we actually discovered his body.
    Incredibly, the military refused to acknowledge that Staff 
Sergeant Maupin was a POW. Instead, it gave him a title unknown 
under the Geneva Conventions. It considered him ``missing'' and 
called him ``missing/captured'' instead of referring to him, 
rightly, as a POW.
    Where was the International Committee of the Red Cross for 
Staff Sergeant Maupin? What happened to his rights under the 
Geneva Convention? We welcome the ICRC in Guantanamo Bay. I was 
the liaison to the ICRC during one of my tours there. We 
listened to their complaints, and we answered all of them while 
I was there. Should not the ICRC lobby to visit the prison 
camps where our soldiers are being held? The ICRC is supposed 
to issue complaints when it does not have the access necessary 
to determine if detainees are held humanely. But the ICRC has 
been silent.
    The U.S. should restore the rule of law and stop waiving 
POW protections for our own soldiers. U.S. soldiers adhere to 
the Geneva Conventions and, if captured, they are entitled to 
POW protections.
    In closing, I wish to thank the Committee for the 
opportunity to address this matter. It is important that we 
uphold the rule of law and protect our men and women in 
uniform.
    [The prepared statement of Ms. Rotunda appears as a 
submission for the record.]
    Chairman Feingold. I thank you, Professor Rotunda.
    Our next witness is Ms. Elisa Massimino. Ms. Massimino is 
the Chief Executive Officer and Director of Human Rights First. 
She joined Human Rights First as a staff attorney in 1991 and 
became the organization's Washington Director in 1997. This 
year, she was named to head the entire organization. She was 
also named by the Hill newspaper as one of the top 20 public 
advocates in the country. She holds degrees from Trinity 
University, Johns Hopkins University, and University of 
Michigan Law School, and she has taught at the University of 
Virginia School of Law, George Washington School of Law, and 
Georgetown University Law Center.
    Ms. Massimino, thank you for being here and please proceed.

   STATEMENT OF ELISA MASSIMINO, CHIEF EXECUTIVE OFFICER AND 
    EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST, WASHINGTON, D.C.

    Ms. Massimino. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here and share our views on this important 
topic.
    Restoring the Nation's commitment to the rule of law must 
be a top priority for the next President of the United States. 
Words will be important; but particularly because of the way 
the current administration has sought to distort, obscure, and 
evade the clear language of the law, words will not be enough. 
It will be the actions of the next administration that will 
either confirm Vice President Cheney's assertion that the drift 
away from the rule of law--which necessitates today's hearing--
is ``the new normal'' or will prove him wrong.
    Much of our focus today is on the impact of the policies of 
the last 7 years here at home, but it is important to 
understand that the erosion of human rights protections in the 
United States has had a profound impact on human rights 
standards around the world. Opportunistic governments have co-
opted the U.S. ``war on terror,'' citing U.S. counterterrorism 
policies as a basis for internal repression of domestic 
opponents. In some instances, U.S. actions have encouraged 
other countries to disregard domestic and international law 
when such protections stand in the way of U.S. counterterrorism 
efforts.
    In the course of my work, I often meet with human rights 
colleagues from around the world, many of them operating in 
extremely dangerous situations. When I ask them how we can 
support them as they struggle to advance human rights and 
democratic values in their own societies, invariably they tell 
me one thing: ``Get your own house in order. We need the United 
States to be in a position to offer strong leadership on human 
rights.'' The next President will have an opportunity to 
provide that leadership.
    You have asked me today to focus on concrete steps the 
United States must take in order to realize a return to the 
rule of law in the area of detainee treatment. In brief, the 
next President must do three things: enforce the prohibitions 
on torture and other cruel and inhuman treatment of prisoners; 
close Guantanamo; and abandon the failed experiment of military 
commissions in favor of the proven effectiveness--and due 
process--of our Federal criminal system.
    U.S. detention and interrogation policy over the past 7 
years have been marked by ongoing violations of fundamental 
humane treatment standards rationalized by a series of secret 
legal opinions that have stretched the law beyond recognition. 
Such violations range from abusive interrogations sanctioned by 
Department of Justice memoranda to renditions of individuals to 
torture and the maintenance of a secret detention system 
shielded even from the confidential visits of the International 
Committee of the Red Cross. The return to a detention policy 
that is firmly rooted in the rule of law--not in loophole 
lawyering--is essential both to restoring the moral authority 
of the United States and to ensuring the success and 
sustainability of U.S. counterterrorism efforts going forward.
    On the battlefield in Afghanistan and Iraq, the military 
has learned the importance of ensuring that prisoners are 
treated humanely. The new joint Army-Marine Corps 
Counterinsurgency Manual issued in June of 2006 under the 
leadership of General David Petraeus makes clear that in order 
to gain the popular support we need to confront insurgency 
threats, the United States must send an unequivocal message 
that it is committed to upholding the law and principles of 
basic human dignity. I refer you to my written statement for 
the details of our comprehensive recommendations, which I will 
try to summarize briefly now.
    To reclaim what General Petraeus called the ``moral high 
ground'' in our counterterrorism efforts, perhaps the most 
important step the next President must take is to revoke and 
repudiate all existing orders and legal opinions that authorize 
cruel interrogations or secret detentions or imply that legal 
standards of humane treatment differ when they are applied to 
the CIA. At the top of that list is Executive Order 13440, 
which authorizes the CIA to maintain a secret detention program 
using interrogation techniques that have been rejected by our 
own military as unlawful and unproductive. Professor Turner 
from the last panel has written eloquently about the dangerous 
impact of that order and warns that it places the President and 
all who implement that order in serious legal jeopardy. The 
next President must enforce a single standard of human 
treatment of prisoners across all Government agencies based on 
the military's Golden Rule standard. We cannot engage in 
conduct that we would consider unlawful if perpetrated by the 
enemy against captured Americans.
    In addition, we have to end the practices that facilitate 
torture, including rendition, and the operation of secret 
prisons, holding ``ghost prisoners'' outside of the range of 
the access of the ICRC, a provision that is included in this 
year's intelligence authorization bill and which was debated 
very eloquently on the floor last night by Senator Whitehouse.
    I refer you to my written statement for the details of our 
recommendations on a step-by-step plan on how to close 
Guantanamo and move prisoners into the Federal criminal justice 
system, which has shown itself quite adaptive and capable of 
delivering sentences in terrorism cases.
    Thank you.
    [The prepared statement of Ms. Massimino appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Ms. Massimino.
    Our next witness is Mr. Patrick Philbin. Mr. Philbin is a 
partner at the law firm of Kirkland & Ellis here in Washington, 
where he practices appellate litigation. Mr. Philbin has 
degrees from Yale University, Harvard Law School, and Cambridge 
University, and clerked for D.C. Circuit Judge Laurence 
Silberman and Supreme Court Justice Clarence Thomas. From 2001 
to 2005, Mr. Philbin served at the Department of Justice, 
including time in the Office of Legal Counsel and as Associate 
Deputy Attorney General. His responsibilities at DOJ centered 
on national security, intelligence, and terrorism issues.
    Thank you, sir, for taking the time, and you may proceed.

STATEMENT OF PATRICK F. PHILBIN, PARTNER, KIRKLAND & ELLIS LLP, 
                        WASHINGTON, D.C.

    Mr. Philbin. Thank you, Chairman Feingold, Ranking Member 
Brownback, and members of the Subcommittee. I appreciate the 
opportunity to address the topic before the Subcommittee today. 
Because the topic of the hearing is broad and time is limited, 
in my opening remarks I would like to touch on only three 
points.
    First, I respectfully take some issue with the title of 
today's hearing and the comments that some of the other 
witnesses have made. A hearing on ``Restoring the Rule of Law'' 
might be understood to suggest that there has been a widespread 
abandonment of the rule of law. I reject that premise. Such a 
premise would do a disservice to the dedicated men and women 
throughout the Federal Government who work tirelessly every 
day, and who have done so since 9/11, to ensure that the 
actions the Federal Government takes to protect the Nation 
remain within the bounds of the law. In my time at the 
Department of Justice, I was privileged to work with dozens of 
dedicated individuals, both career employees and political 
appointees, who were committed to getting the right answer and 
ensuring that the rule of law prevailed.
    That does not mean that mistakes have not been made or that 
there were not sharp disagreements about the law. I was 
involved in contentious debates that required us to address 
novel and complex issues of law under enormous pressures. And 
in some instances, I ultimately disagreed with the reasoning 
others had endorsed. In the most acrimonious debate that 
occurred during my time in Government, I believe the rule of 
law prevailed. In one way, the very fact that so much energy 
and contention was focused on disputes about legal 
interpretations shows that the rule of law was considered 
vital. If it were not, debates about legal interpretations 
would not have mattered so much. And disagreements, mistakes, 
or errors in interpreting the law do not amount to an 
abandonment of the rule of law.
    Second, I want to point out a danger that I believe comes 
along in some of the rhetoric that is used about the rule of 
law. All too often in debates about the war on terror, many 
attempt to pack into the concept of the ``rule of law'' the 
implicit assumption that any unilateral executive branch action 
or any argument for executive power that is not subject to 
judicial review necessarily abandons the rule of law. That is 
not the assumption of our Constitution. The Constitution 
assigns different roles to the three branches of Government, 
and particularly in the conduct of warfare, the role of the 
executive is paramount.
    One particular aspect of the judicial-centric rhetoric of 
the ``rule of law'' deserves emphasis. In many instances, 
arguments based on this approach are, at bottom, a challenge to 
the fundamental legal paradigm governing the conflict with al 
Qaeda. After 9/11, the President determined that the Nation was 
in a state of armed conflict and that this conflict should be 
treated as war, not as a matter of mere criminal law 
enforcement. Congress agreed with that assessment by passing 
the Authorization for Use of Military Force. And the Supreme 
Court itself endorsed it in Hamdi v. Rumsfeld. As the Court put 
it, detention of combatants, ``for the duration of the 
particular conflict in which they were captured, is so 
fundamental and accepted an incident to war as to be an 
exercise of the `necessary and appropriate force' Congress has 
authorized the President to use.'' The proper legal framework 
for our conflict with al Qaeda is thus provided by the laws of 
war, not what is most familiar to us from the processes of the 
criminal law. Complaints, therefore, about detention without 
trial are entirely misplaced here. Detention without trial is 
precisely what the law allows for enemy combatants.
    Third, and finally, I would like to address one area where 
I believe Congress can and should take action to accomplish not 
a restoration of the rule of law, but a needed restoration of 
balance in the law. I believe that, as Attorney General Mukasey 
has argued, legislation is warranted in response to the Supreme 
Court's decision in Boumediene v. Bush.
    In Boumediene, the Court determined that aliens detained by 
the military outside the sovereign territory of the United 
States in an ongoing armed conflict have a constitutional right 
to the writ of habeas corpus.
    At the same time that the Boumediene Court effected a 
seminal shift in the law concerning constitutional rights for 
aliens outside the United States, however, it declined to 
provide further concrete guidance concerning exactly what 
procedures would be required in these particular habeas cases 
to satisfy the right to the Great Writ. Under the Court's 
decision, that matter would be left entirely for lower courts--
and subsequently appellate courts, and eventually the Supreme 
Court itself--to sort out in litigation. At least as a 
practical matter, there thus may be some truth in what Chief 
Justice Roberts pointed out in dissent: what the decision is 
about most significantly is ``control of Federal policy 
concerning enemy combatants.'' The Supreme Court's decision 
shifts a large measure of that control to the judiciary and 
away from the political branches, both executive and 
legislative, which had already jointly crafted a detailed 
system of review for the detainees at Guantanamo through the 
Detainee Treatment Act and the Military Commissions Act of 
2006.
    Chief Justice Roberts makes an interesting point in noting 
that, if one considers who has ``won'' as a result of 
Boumediene, it is ``[n]ot the rule of law, unless by that is 
meant the rule of lawyers, who will now arguably have a greater 
role than military and intelligence officials in shaping policy 
for alien enemy combatants.''
    I believe that the lack of guidance the Court has 
provided--although the Court has determined that there is a 
constitutional right for the detainees at Guantanamo to habeas, 
the lack of guidance leaves a role for the political branches. 
Congress can and should step in to shape the habeas actions now 
required under Boumediene by legislation to streamline the 
procedures rather than leaving the matter solely to the ad hoc 
process of multiple rounds of litigation, which could take 
years.
    Legislation introduced by Senator Graham in the form of 
Senate bill 3401 provides a step in the right direction. I urge 
the Committee to give that bill, or similar legislation, 
serious consideration rather than leaving the contours of the 
habeas actions required in the wake of Boumediene to be 
determined solely by litigation.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Philbin appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Philbin. I thank, of 
course, everybody for their patience today.
    Our next witness is Ms. Suzanne Spaulding. Ms. Spaulding's 
expertise in national security issues comes from 20 years of 
experience in Congress and the executive branch. She has worked 
in both the House and Senate Intelligence Committees and has 
served as Legislative Director and Senior Counsel to Senator 
Specter. She has served as Executive Director of two different 
congressionally mandated commissions focused on terrorism and 
weapons of mass destruction and has worked at the CIA. She is 
currently a principal at Bingham Consulting Group and past 
Chair of the American Bar Association's Standing Committee on 
Law and National Security.
    Thank you very much for being here, and you may proceed.

     STATEMENT OF SUZANNE E. SPAULDING, PRINCIPAL, BINGHAM 
               CONSULTING GROUP, WASHINGTON, D.C.

    Ms. Spaulding. Thank you, Mr. Chairman, Ranking Member 
Brownback. I would like to begin by commending you for holding 
this hearing, focused not on re-litigating past disputes but on 
understanding the current and future imperative for upholding 
the rule of law.
    As we anticipate a new administration, it is appropriate to 
assess where we are and endeavor to put in place a long-term, 
sustainable approach to security, one that reflects all that we 
have learned in the intervening years about the nature of the 
threat today and effective strategies for countering it.
    We are all familiar with the ``soft-on-terror'' charge of 
having a ``September 10th mindset.'' The truth is that no 
American who experienced the horror of September 11 can ever 
again know the luxury of a September 10th mindset. The greater 
concern is being stuck in a September 12th mindset, unable or 
unwilling to understand the lessons we have learned since those 
terrible days. It is this mindset that undermines America's 
long-term security.
    On September 12, 2001, for example, we lived with a deep 
sense of fragility as we waited in fear for the next attack. 
Over the subsequent days and years, however, we have come to 
understand that resiliency is a powerful and essential weapon 
against terrorism. It means knowing that there may be another 
attack, but refusing to live in, or make decisions based upon, 
fear. If politicians and policymakers fall back on that 
September 12th mindset of fear to convey their message and 
promote their policies, they will undermine that essential 
public resiliency.
    On September 12th, we thought we could defeat terrorism by 
going to war. Today, most of us understand that we are engaged 
in long-term struggle for hearts and minds, competing against 
the terrorists' narrative of a glorious ``global jihad''--a 
narrative that can be very compelling to young people searching 
for identity and answers. But we now understand that the image 
of an America committed to the rule of law and ensuring that 
even suspected terrorists get their day in court can be a 
powerful antidote to that twisted allure of terrorism.
    We sought, in those first days and months after September 
11th, to ``balance'' national security and civil liberties, as 
if they were competing objectives on opposite sides of the 
scale. We thought we could only get more of one by taking away 
from the other. Over the past 7 years, however, we have been 
reminded that our values are an essential source of our 
strength as a Nation.
    For example, experts agree that the primary reason the 
United States does not face the level of homegrown terrorism 
threat that Europe has experienced is that immigrants are 
better integrated into American society. Effectively working 
with Muslim communities in this country is one of the most 
promising avenues for deterring radicalization of young people. 
Policies that undermine those efforts threaten our national 
security.
    Similarly, while it seemed to some that on September 12th 
our careful system of checks and balances was a luxury we could 
no longer afford, we have seen since that an avaricious 
arrogation of power by the Executive actually leads to a 
dangerously weakened President. We have been reminded that our 
Government is strongest when all three branches are fulfilling 
their constitutional roles.
    Mr. Chairman, we all awoke to a changed world on September 
12th. But the world has continued to change, and so must our 
understanding of the threat we now face and how to combat it. 
The struggle for hearts and minds is of tremendous consequence. 
The enemy is deadly, determined, and adaptive. We cannot defeat 
it if we are stuck in the past. It is essential to move beyond 
our fears and understand what it is that makes us strong.
    It is with this in mind that I recommend in my written 
testimony that a new administration undertake a comprehensive 
review of all domestic intelligence activities, all relevant 
laws, policies, regulations, guidelines, and memos. In 
addition, as I have previously testified, Congress should 
undertake its own similar review.
    At the same time, the administration should ask the 
Director of National Intelligence to oversee a thorough 
assessment of the nature, scale, and scope of the national 
security threat inside the United States.
    In conclusion, Mr. Chairman, I will quickly list just a few 
of the key issues that I describe in greater detail in my 
written testimony that should be part of a comprehensive 
review:
    A review of all electronic surveillance activities since 
January 2001 and of the entire Foreign Intelligence 
Surveillance Act, not just the amendments enacted this summer;
    A review of the legal regime for national security letters 
and its implementation--something I know is of particular 
interest to the Chairman of this Committee;
    A review of the new Attorney General guidelines for 
counterterrorism investigations;
    An assessment of the First Amendment implications of 
domestic intelligence activities, including safeguards to 
protect against political spying and the chilling effect of 
current and proposed policies and activities;
    The need for a legal framework for Government data 
collection and data mining practices;
    The appropriate role of the various entities engaged in 
domestic intelligence activities, and that includes, obviously, 
not just FBI but also CIA, NSA, the Department of Defense and 
its other intelligence components, DHS, and State and local 
police;
    And, finally, the need to enhance transparency and 
oversight--in both the executive branch and Congress--in order 
to sustain public support, improve the quality of intelligence, 
and ensure respect for the rule of law.
    It is clear that this Committee understands the absolute 
importance of that final bullet, and I again commend you for 
holding this hearing, and thank you very much for the 
opportunity to participate.
    [The prepared statement of Ms. Spaulding appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Ms. Spaulding, for your very 
useful testimony.
    Our final witness this morning is Mr. John Podesta. Mr. 
Podesta is the President and CEO of the Center for American 
Progress Action Fund. From October 1998 to January 2001, Mr. 
Podesta served as Chief of Staff of President Bill Clinton, 
where he was responsible for directing, managing, and 
overseeing all policy development, daily operations, 
congressional relations, and staff activities at the White 
House. Before that, he served on the United States Commission 
on Protecting and Reducing Government Secrecy, chaired by the 
late Senator Daniel Patrick Moynihan. Mr. Podesta is currently 
a Visiting Professor of Law on the faculty of Georgetown 
University Law Center and is a leading expert on technology 
policy and Government secrecy. Mr. Podesta is a graduate of 
Knox College and Georgetown University Law Center.
    Thank you for your patience and thank you so much for being 
here, and you may proceed.

  STATEMENT OF JOHN D. PODESTA, PRESIDENT AND CHIEF EXECUTIVE 
OFFICER, CENTER FOR AMERICAN PROGRESS ACTION FUND, WASHINGTON, 
                              D.C.

    Mr. Podesta. Thank you, Mr. Chairman and Mr. Brownback. It 
is an honor to be here today, and if you will permit me a brief 
moment of nostalgia, I got into this Government secrecy 
question as a counsel to this very Subcommittee when I served 
Senator Leahy here in 1981 when he successfully opposed 
amendments that would have gutted the Freedom of Information 
Act. So it is great to be back on this side of the table.
    I just want to make a few points. I have given you a 
lengthy statement on what I see as the excesses of secrecy in 
the current administration and what we need to do about it. But 
let me just make a few points.
    First of all, obviously most Americans appreciate the need 
to keep secret national security information whose disclosure 
would pose a genuine risk of harm to the United States. I 
certainly subscribe to that view, and I have seen operational 
plans, sources, and methods, information that needs to be 
classified to keep the public safe. But I think as the 9/11 
Commission concluded, too much secrecy can put our Nation at 
greater risk and breed insecurity by hindering oversight, 
accountability, and information sharing.
    Excessive secrecy conceals our vulnerabilities until it is 
too late to correct them. It slows the development of the 
scientific and technical knowledge we need to understand 
threats to our security and to respond to them effectively. And 
it short-circuits public debate. Moreover, it undermines the 
credibility of the information security system itself, which 
encourages leaks and causes people to second-guess legitimate 
restrictions.
    Finally, secrecy, I think, has a corrosive effect on the 
rule of law, the subject of this hearing, which requires that 
laws be known and understood and that Government officials be 
held accountable for their actions. Without such information, 
there can be no checks and balances, no accountability, no rule 
of law.
    You mentioned a commission I served on that was chaired by 
Senator Moynihan. It was a bipartisan commission that included 
Senator Helms as a co-chair. That commission concluded 
unanimously that the best way to ensure that secrecy is 
respected and that the most important secrets remain secret is 
for secrecy to be returned to its limited but necessary role. 
Secrets can be protected more effectively if secrecy is reduced 
overall. And, again, I recommend Senator Moynihan's very short 
volume on secrecy. It is a terrible book for those of you who 
are interested in this particular topic.
    Unfortunately, in my view, President Bush and Vice 
President Cheney have created, I think, a cult of secrecy 
within the executive branch that is probably rivaled only, I 
think, by the Nixon administration. The Bush administration has 
systematically overhauled policies and practices that deny 
Americans information held by the Government. I would note that 
this took place and preceded 9/11. It is not only a reaction to 
9/11. But I think some of those policies, his amendments to the 
Presidential Records Act, although issued right after 9/11, the 
Attorney General's memorandum which, I think, reversed the 
presumption of openness and Freedom of Information Act, all 
that preceded 9/11. I go into some detail in my testimony on 
that. So without sort of going over the abuses that I see in 
the policies implemented by the administration, let me go to 
six specific things that are summaries, again, of my testimony 
that need to be accomplished, I think, by either the next 
President, three in that category, or by the Congress itself.
    First, I believe that the next President should rewrite the 
Bush Executive on classification policy to reinstate the 
Clinton era provisions, which established a presumption against 
classification in cases of significant doubt and prohibited 
reclassification of material that had been properly 
declassified and released to the public. I think we also need 
to get back to really policing the system of automatic 
declassification that was, I think, a feature of the earlier 
Clinton order.
    Second, I think the next President and, if the President 
does not do it, the Congress should take action to reduce the 
practice of designating so-called controlled unclassified 
information. That has really exploded during the 
administration. The GAO found that 26 agencies use 56 different 
information control markings that are beyond the scope of the 
executive order on classification, and that is just growing. I 
think that is a matter that needs urgent attention. If the 
President does not undertake it, I think the Congress needs to 
pass legislation, some of which has already passed the House 
and I recommend it to you.
    Third, the next President should revoke the Bush executive 
order on the Presidential Records Act, which I think both 
permit surviving relatives of former Presidents to block access 
to Presidential records, created a new Vice Presidential 
privilege. It really turns over on its head the whole import of 
the Presidential Records Act, and I think that that needs to be 
reversed.
    Fourth, I think in the realm of the things that Congress 
need to undertake, Congress should enact legislation directing 
courts to weigh the costs and benefits of public disclosure 
before dismissing lawsuits on the basis of state secrets 
privilege. Fritz talked about that.
    Fifth, Congress should enact S. 3405, the Executive Order 
Integrity Act, introduced by you, Mr. Chairman, to prohibit the 
President from secretly modifying or revoking a published 
executive order.
    And, finally, Congress should strengthen the Whistleblower 
Protection Act of 1989 to protect public employees from 
reprisal when they disclose information, particularly to 
Congress, regarding Government wrongdoing.
    So, with that, let me conclude. Thank you.
    [The prepared statement of Mr. Podesta appears as a 
submission for the record.]
    Chairman Feingold. Thank you so much, Mr. Podesta.
    We will go to questions, a 7-minute round. I will begin.
    Mr. Dellinger, I opened my questions to the first panel by 
highlighting the need for a rule-of-law culture in Government. 
The majority of these executive actions will never be reviewed 
in a court of law or examined in a congressional hearing, and 
so a culture of respect for the rule of law within the 
executive branch itself is essential. I would like to return to 
that point now because I believe it has special relevance for 
the Office of Legal Counsel.
    From your vantage point as a former head of OLC, what can 
be done going forward to instill a culture of respect for the 
rule of law among the attorneys who give advice to the 
President and other executive agencies?
    Mr. Dellinger. Senator, I think first one has to recognize 
that administrations under both political parties have indeed 
maintained a very high standard over the years. There has been 
a bipartisanship, if you look at the Office of Legal Counsel 
under Ted Olson in the first Reagan administration, I believe 
Harold Koh, one of our witnesses today, and others served in 
the Office of Legal Counsel during that period of time. Charles 
Cooper, another of your witnesses today, issued opinions that 
were quite contrary to the intense political ambitions of the 
President and stuck with it. So that it is, first of all, 
important to overcome the cynicism that says this cannot be 
done.
    I think it is also important to recognize, quite honestly, 
that we did vary from it in this administration. To read the 
torture memo, one cannot just dismiss as a difference of legal 
opinion a torture memo that--whose reasoning is to tortuous as 
it goes through why there is no need to comply with or to 
interpret away the criminal assault statute, the maiming 
statute, the war crimes statute, the torture statute, customary 
international law, the Convention Against Torture, the Fifth, 
Eighth, and 14th Amendments. To read an opinion like that is 
just to be stunned at what it has done.
    I believe that one of the things a President has to 
understand is that Presidents who get the answer they want wind 
up being ill served by it. They get into trouble. It really is 
important, and the President should tell that to the Office of 
Legal Counsel. I think the Attorney General has to play an 
active role in advancing that, and I think most importantly, we 
have to follow the recommendations, I believe, in the 
legislation that you are introducing, suggested by the 
testimony of Mr. Podesta. There has to be as much transparency 
as national security imperatives will allow in making public 
what the basis for the President's legal conclusions are and to 
make those readily, timely, and widely available for Congress 
and the American public to assess.
    Chairman Feingold. Thank you, Professor.
    Ms. Massimino, you have recommended, as have a number of 
organizations who submitted written testimony, a single 
interrogation standard for all U.S. Government agencies. I 
could not agree more and have advocated this both publicly and 
behind closed doors at the Intelligence Committee for years. 
The argument I often hear in opposition is that intelligence 
interrogators have different needs and goals than military 
interrogators, and that the same rules should not apply.
    How do you respond to that? How do you know that we will 
not lose valuable intelligence information as a result?
    Ms. Massimino. First, I want to say that I, too, have heard 
the arguments from the President and other administration 
officials that the so-called enhanced interrogation techniques 
are effective at obtaining information. It is a difficult 
assertion to challenge, not because it is so obviously true, 
but because the people who have the information that would 
substantiate it are the only ones who have seen it.
    So I do want to point out first, though, that effectiveness 
does not convert a felony into a misdemeanor or not a crime. It 
does not rectify a breach of Common Article 3. And it does not 
make a given technique any less painful or inhumane.
    That said, though, there are serious reasons to question 
these assertions that intelligence interrogators need different 
techniques. The recent report by the Intelligence Science 
Board, called ``Educing Information,'' has found that there is 
no evidence to suggest that these so-called enhanced 
interrogation techniques produce reliable or actionable 
intelligence.
    Over the summer, my organization, Human Rights First, 
convened an off-the-record meeting with about 15 intelligence 
interrogation experts--from the military, the FBI, and the CIA. 
It was supposed to be a 2-day meeting. After about three-
quarters of the first day, they found such strong common 
agreement that not only did they not need to go beyond the 
standards of Common Article 3 as outlined in the military 
manual, but they were gravely concerned that we were going to 
permanently lose vital intelligence by continuing down the road 
of use of these enhanced techniques.
    Now, I am not an interrogation expert, but they sure are. 
Within that room was more than 150 years of intelligence 
interrogation expertise. And there was no doubt in anyone's 
mind that what they need to do and what they asked for was an 
investment by the next administration in developing and 
training human intelligence gatherers in the traditional 
rapport-building techniques that work.
    Chairman Feingold. Thank you.
    Ms. Spaulding, in the past several years I have repeatedly 
detected from the Justice Department a fundamental distrust of 
judges when it comes to domestic surveillance authorities, 
whether it is bypassing the FISA Court for more than 5 years or 
the NSA wiretapping program or arguing that statutes should be 
rewritten to decrease the role of the judiciary. This seems to 
be a consistent theme. Yet in our system of Government, the 
judicial branch plays a critical check on executive branch 
overreaching. Is this distrust of the judiciary warranted? And 
how should the role of the judiciary be considered in the 
context of the comprehensive review of domestic surveillance 
authorities that you have recommended?
    Ms. Spaulding. Senator, I think this mistrust of the courts 
is not warranted. As has been pointed out by other witnesses 
this morning, the courts are typically very deferential to the 
executive branch when it comes to national security, and it has 
been quite unusual to see the pushback from the Supreme Court 
recently with regard to administration legal claims in the war 
on terror. And I think that says less about the make-up of the 
Supreme Court than it does about the boundaries that this 
administration has been pushing in that legal context.
    It is very interesting. One of the arguments that is often 
made is that we cannot trust regular Article III judges with 
highly classified information. There have been leaks from the 
executive branch--lots. There have been leaks from Congress. 
There has never been, as far as I know, a leak of classified 
information from the courts, from the judiciary, from a judge.
    Judges deal with complex information all the time, and 
their role is absolutely vital when it comes to the areas that 
we are talking about today.
    Supreme Court Justice Powell articulated it very well in 
the Keith case, which, as you know, is one of the key cases as 
we look at domestic surveillance issues, when he talked about 
how the role of the executive branch is not envisioned to be a 
neutral arbiter or decider, but actually to investigate and 
prosecute. And it is not appropriate to leave these final 
decisions in their hands lest they become subject to abuse in 
the zeal for prosecution.
    The role of the judiciary in this area, particularly the 
area of domestic surveillance, is absolutely critical.
    Chairman Feingold. Thank you very much.
    Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman. I thank the 
panelists for your presentations and your thought that you put 
into your presentations. I appreciate that all very much.
    Professor Rotunda, particularly I was stunned by the things 
that you were talking about. I did not know about those factual 
situations, and I am hopeful we can get on top of that so we 
can keep our people safe.
    Do we make the same sort of requirement for other religious 
materials that they cannot be touched or examined?
    Ms. Rotunda. Sir, it is primarily the Koran. We do issue to 
detainees all kinds of religious items, including prayer oil, 
prayer beads, prayer rugs. We broadcast the call to prayer five 
times a day. We have arrows pointing to Mecca. At some points 
when they are praying, they are required to have 20 minutes of 
uninterrupted time, and we have prayer cones that we put up 
where guards cannot enter the area where they are praying.
    Senator Brownback. I want to get specific on this. Are 
there other religious documents that we hand to prisoners from 
other faiths that we say you cannot examine?
    Ms. Rotunda. No, sir.
    Senator Brownback. This is the only one that we tell the 
guards you cannot look at.
    Ms. Rotunda. Yes, sir.
    Senator Brownback. And the mosque is the only place we tell 
guards you cannot go into.
    Ms. Rotunda. As far as I am aware, sir. I know that was at 
Camp Bucca. Now, when we have prayer cones up in the prison 
camp, guards cannot go into those areas where detainees are 
praying. So that is true in Guantanamo Bay and also at Camp 
Bucca.
    Senator Brownback. OK. And I thought it also interesting 
the limitation on what we allow female guards to do. I had not 
thought about that aspect of it.
    Ms. Rotunda. Yes, sir.
    Senator Brownback. But not allowing them to do their job 
according to some other standard rather than our own of how we 
treat different genders.
    Ms. Rotunda. That is right, sir. It is clearly 
discrimination.
    Senator Brownback. Thank you for bringing those up. I 
thought those were quite interesting.
    Professor Philbin, Mr. Philbin, I want to talk with you, 
because this is the key kind of point, it seems like to me, of 
one of the things we have got to discuss, is how we are going 
to process these detainees at this point after the Supreme 
Court case. How is this going to be handled? And your point is 
that you are either going to do it on this kind of makeshift 
case or run it through a bunch of different trials, run it up 
the appellate court multiple times to kind of get a body of law 
developed where the Congress is going to pass something. That 
is the summation of your point.
    Mr. Philbin. Yes, essentially, sir.
    Senator Brownback. What do you think we should do and in 
what sort of legal framework should we look at these enemy 
combatants? Can you give me that in a minute or two? I realize 
that is a huge question, but it is one we have tried to wrestle 
with around here, thought we had something, and the courts said 
differently.
    Mr. Philbin. And I can understand frustration with that, 
Senator, coming from the Congress, because Congress did make a 
concerted effort to respond to the Supreme Court's decision in 
Hamdi and Hamdan that outlined what would be necessary, even 
for a U.S. citizen, for habeas corpus procedures and modeled 
the procedures at Guantanamo on that.
    I still think, though, that for the efficient conduct of 
the war, it is necessary not to allow things just to play out 
in years of litigation, but to take another stab at trying to 
determine what it is that the Court expects from these habeas 
proceedings. I think that the legal framework is the laws of 
war that these are enemy combatants. They can be detained 
without trial. But the specific contours of the habeas action 
have to be gleaned from the Supreme Court's decisions so far. 
And legislation that provided for a procedure that gave the 
necessary process and that also provided, I believe, for an 
expedited appellate proceeding so that the test case would go 
through, there would be an established timetable for an 
expedited appeal through the D.C. Circuit Court of Appeals, and 
perhaps then to the Supreme Court, to try to get the whole 
thing sorted out so that there is a clear guideline as soon as 
possible, because, otherwise, tremendous resources will be 
wasted in litigation.
    Senator Brownback. Now, this is not the first time this 
country has dealt with enemy combatants. Now, they were in a 
foreign government, and there were rules of law. But in World 
War II, we had a number of prisoners of war here in the United 
States. How did we treat them then? Under what legal system?
    Mr. Philbin. In World War II, there were over 400,000 POWs 
in the United States. They had rights under the Geneva 
Conventions. And as far as I am aware, there was no attempt, 
there was never an effort to bring a habeas corpus action on 
their behalf.
    Senator Brownback. With all 400,000?
    Mr. Philbin. As far as I am aware. There were efforts to 
bring habeas corpus actions on behalf of those in the Quirin 
Case, saboteurs who were not held as POWs, the Quirin Case, 
Colepaugh v. Looney, and at the end of the war, a U.S. citizen, 
Territo, a Ninth Circuit case, he was captured in the Italian 
Army, but he had been a U.S. citizen. But those were the only 
situations in which habeas corpus actions were entertained.
    Senator Brownback. But they were not treated as under our 
criminal law procedure at all. Correct?
    Mr. Philbin. Correct.
    Senator Brownback. It was under the Geneva Convention and 
the treatment--and there were not trials going on as long as 
the war went on. Is that correct?
    Mr. Philbin. That is correct.
    Senator Brownback. Then after the war, they were generally 
returned to their home country.
    Mr. Philbin. They were repatriated, as required by the 
Geneva Conventions.
    Senator Brownback. So you are suggesting, if I can 
understand this a lot more, that we need to go along that line 
rather than involving the Guantanamo Bay or the military 
detainees in our criminal law structure in the United States.
    Mr. Philbin. Well, I think it is important to maintain the 
paradigm that this is law, not simply--this is a war, and the 
laws of war apply and not simply a matter of criminal law 
enforcement. But given the Boumediene decision, there has to be 
a structure put in place for habeas corpus proceedings now for 
these detainees. That is the law under the Constitution as 
declared by the Supreme Court.
    I think the question that the political branches face is 
how much time and effort will have to be spent in litigation to 
try to sort out exactly what the procedures are for that and 
how much time can be saved by the political branches taking 
what I believe is their proper role in something that is really 
a matter of war policy, trying to define as quickly as possible 
what the contours of those habeas actions will look like.
    Senator Brownback. Which I agree with, and I think that is 
the route we should go.
    Ms. Massimino, I hope you were here at the outset when I 
was talking about the unsuitability of the disciplinary 
barracks at Fort Leavenworth for moving detainees. If you were 
not, I hope you could look at the specifics that I outlined, 
because I think this is just not an appropriate facility and 
not set up for this and not legal for us to move them there. 
And so I would hope in your advocacy of closing Guantanamo Bay, 
which I understand and appreciate, that you would also look at 
some of the difficult facilities we have in the United States 
and not--or at least question as well moving them to those 
places as well.
    Ms. Massimino. I will. And, in fact, Senator, in our 
written blueprint on how to close Guantanamo, we look at a 
number of different scenarios, possibilities. I think one of 
the challenges is to break down the population there into 
several categories, and the ones that we think are suitable to 
be moved to the United States or ones that we think the 
Government has identified as having committed crimes against 
the United States and should be tried. I have in my written 
testimony a whole explanation about why we think pursuant to 
this report we recently published on an evaluation of terrorism 
trials in the domestic criminal system that that is a far 
better--that our criminal system is far better suited than the 
current system of military commissions about which there has 
been so much controversy, even within the military command 
structure, about whether or not that system complies with our 
rules under the Geneva Conventions.
    I think that, you know, we are talking about the rule of 
law here today, and the requirements of the rule of law, what 
it really means, I think, in practice is transparency, 
predictability, consistency. We have procedures to deal with 
suspected terrorists. We actually have been using them 
effectively in the criminal system. And instead of setting that 
system aside, we ought to be embracing it and using all the 
tools at our disposal to deal with the terrorist threat. And I 
think that is one that has been underused and is part, in my 
view, of the solution to the situation at Guantanamo.
    Senator Brownback. I would note--and that talks about the 
Leavenworth Penitentiary, and I do not think you want to move 
these folks into the Leavenworth Penitentiary system let alone 
the disciplinary barracks for mixing of populations. I 
appreciate your thought and your background on it. I just think 
there are very practical problems that I would hope you would 
look at as well.
    Ms. Massimino. Senator--
    Senator Brownback. My time is up, Mr. Chairman.
    Chairman Feingold. Excuse me, Senator Brownback. I want to 
just do one more question, because it has already been over 
2\1/2\ hours. So I just want to ask Mr. Podesta: Government 
secrecy is an issue that permeates every other rule-of-law 
issue we are addressing here today. Almost every group or 
individual who submitted written testimony in advance of this 
hearing brought up the issue of Government secrecy, and they 
are more or less unanimous in their recommendations for 
concrete steps that the next President can take on day one of 
his administration. I truly hope that the next President takes 
note of this remarkable consensus and acts on this list of 
recommendations.
    Now, one of the organizations that submitted a written 
statement for the hearing is openthegovernment.org, a coalition 
of groups that support open government. The statement includes 
the following recommendation: ``The new President has an 
immediate opportunity to define the relationship between his 
administration and the public by issuing a Presidential 
memorandum on day one of his administration that makes clear 
that the Government information belongs to the public.''
    Do you agree with this recommendation? And do you have any 
thoughts about what principles and commitments might be 
included in such a memorandum?
    Mr. Podesta. Thank you, Mr. Chairman. CAP is a member of 
openthegovernment.org. I do agree with the recommendation. I 
was thinking about this a little bit during the course of the 
hearing, and maybe the President might start with a statement 
that formed the basis of a study that was done by Professor 
Harold Cross from the University of Missouri, which led to the 
enactment of the Freedom of Information Act. He said in his 
classic study that the right to speak and the right to print--
reflecting on the First Amendment--without the right to know 
are pretty empty. And I think that is a pretty strong statement 
that the President could issue on day one, direct his 
Government, again, the Justice Department, I think, to reverse 
and move back to the presumption of openness with regard to 
taking on FOIA cases, reform the executive order on 
classification, to deal with the problems that I have 
identified in my opening statement.
    But I think ultimately this is about culture. It is about 
whether the President and whether his Cabinet are going to 
implement policies and oversee their own officials in a way 
that I think promotes openness and restores that sense of 
openness and integrity to the Government.
    Chairman Feingold. Senator Brownback, did you have a quick 
follow-up?
    Senator Brownback. I do.
    Professor Rotunda, I am just curious. If we go the route 
that is being suggested by Ms. Massimino on the prisoners from 
Guantanamo Bay, what is kind of the practical effect? I am 
curious if actually people will be left in theater rather than 
moved back, and if that is done, if they will be repatriated to 
host countries. And I wonder if they will be better treated 
there than they would at Guantanamo. Do you have any thought?
    Ms. Rotunda. Yes, sir. Well, Senator, two things.
    First of all, under the Geneva Convention, we cannot take 
enemy combatants and move them to a prison with convicted 
criminals, and so that is one thing we have to consider. Those 
who have already been charged with a crime, one thing. We 
cannot just airlift Guantanamo Bay into a U.S. prison. And not 
only can't we, but we should not do that. Moving detainees to 
Guantanamo Bay presents significant security risks. We cannot 
maintain the type of security that is required. In Guantanamo 
Bay, we are surrounded by water on three sides and Cuba, with 
rows and rows of barbed wire, on the other side.
    If we move them to the United States, it will be a magnet 
for some terrorist bomber to attack the United States from 
within, again, and take himself out, all the U.S. troops he can 
take out, and the detainees in Guantanamo Bay. So I think it is 
very dangerous. All the polling I have seen is that Americans 
do not want it, it is not good for Americans.
    Additionally, the detainees in Guantanamo, many of them are 
very threatening toward their interrogators. Some of them have 
said that if they ever get out, they are going to hunt down 
their interrogators and their families and ``slit their throats 
like animals.'' That is what one detainee told his 
interrogator. It is dangerous to move them here.
    The other option, sir, you mentioned about moving them in 
theater, leaving them in Iraq or Afghanistan, I do not think 
that is a good idea either, and the reason is because right now 
in Guantanamo Bay, it is crawling with human rights advocates. 
The International Committee of the Red Cross had more access to 
detainees than I did, and I have a top secret security 
clearance, sir.
    There is media all over Guantanamo Bay. There are hundreds 
of lawyers coming in and out of Guantanamo Bay. If we move them 
to Iraq or Afghanistan, all of this oversight is going to stop. 
And so those who are truly concerned about the treatment of 
detainees should think twice about suggesting that we move them 
anywhere near the theater in Iraq or Afghanistan where they are 
not going to have this contact with the outside world.
    Chairman Feingold. Senator Whitehouse, do you have a 
follow-up?
    Senator Whitehouse. I know that the Chairman is seeking to 
bring this wonderful hearing to a conclusion because of the 
press of other business we face, so I would like to ask a 
couple of questions just for the record and ask if the 
witnesses would follow up as they wish. I would, however, first 
like to recognize Ms. Spaulding and welcome her back to the 
Committee. She was on the other side of the aisle, but she 
worked very hard for us and was a wonderful asset to the 
Committee, and it is nice to see her back in this capacity.
    Question 1 is on how you go about unwinding Guantanamo. 
Everybody says we have got to get rid of it. I believe that a 
committee should take a look at it. Some problems are easy to 
get into and very difficult to unsnarl. I suspect that a 
committee that was to look at this, or a commission, would need 
military expertise, would need corrections expertise, would 
need intelligence expertise, would need law enforcement 
expertise, would need immigration and international law 
expertise. But if there is anything else that you can add as to 
how we unwind this, that would be helpful.
    I would reiterate the same question I asked the first panel 
about secrecy. What is an appropriate response when you have an 
executive branch that is strategically declassifying for 
propaganda purposes in order to silence dissent or opposition 
from Congress by leaving us behind the veil of secrecy while 
they declassify at will their part of the argument?
    And the third is that one of the--as I have been reading 
through these OLC opinions, you know, it is sort of one horror 
leads to another. I keep calling this a ``George Bush Little 
Shop of Legal Horrors.'' One of the assertions that was made 
was that an executive order, because it is an executive order, 
cannot bind a President; he is free to depart from it at his 
pleasure or disobey it at his pleasure, and he is under no 
compunction at any point to report that he is disobeying it. 
That strikes me as turning the Federal Register into 
essentially a screen of falsehood on which people cannot rely. 
But there is a constitutional germ of truth buried in there, 
and I would love to get the advice of the panel on what we 
should to assure that when Americans look at an executive order 
that, as we know, has the force and effect of law, takes a 
congressional act to overrule it, and until then has the force 
and effect of law, they know that they can actually count on 
its efficacy, its accuracy that it is legal, that it is not 
just a phony screen that has been put up. I think that is very 
dangerous for a structure, a Government that is built on laws 
and the laws become phony and you can run illegal or un-legal 
programs behind the screen of legal artifice.
    So those would be the three questions I would love to hear 
from you, but I know that we have a caucus to get to, and you 
all have things to get to as well. And I very much appreciate 
the Chairman's courtesy, and I know I am taking more time, but 
I really would like to reiterate how extremely valuable and 
important I think this hearing is, how astonishingly good the 
witnesses have been, both in the number and expertise--it has 
really been a very, very impressive panel--and how much I value 
Chairman Feingold's leadership in calling this, along with the 
Ranking Member, Senator Brownback.
    Chairman Feingold. Thank you, Senator Whitehouse, and we 
have much to do, as we have indicated, and we will get on it.
    Senator Brownback, did you have anything further?
    Senator Brownback. Nothing, Mr. Chairman.
    Chairman Feingold. Let me thank all the witnesses for their 
testimony and this thoughtful discussion. I appreciate your 
taking the time to be here. I thank you for your insights.
    As the testimony today confirms, I do not think we can 
overstate the importance of this issue to our Nation and to 
this moment in history. We have heard a number of provocative 
and interesting proposals today, including some very concrete 
and practical recommendations for restoring the rule of law and 
returning to the principles on which this Nation was founded. 
This does not mean it will be easy, even though steps that are 
almost universally agreed upon, such as the necessity of 
closing the facility at Guantanamo Bay, are fraught with legal 
and practical complexity. And, of course, there may be 
institutional resistance within the executive branch to actions 
that are viewed as ceding power to the other branches of 
Government no matter how unprecedented the executive power 
theories that need to be undone.
    But as I said at the outset of the hearing, it is the years 
that follow a crisis that may matter most that are the true 
test of the strength of our democracy. So I hope that the next 
President will heed what has been said today and carefully 
review the many recommendations that we have presented even 
before he takes office. I truly believe that the future of our 
democracy depends on it. Indeed, I think it is so important 
that this be done that I believe the next President, whoever he 
is, in the Inaugural Address should specifically say that he 
has an allegiance to the rule of law and that he will reverse 
and renounce the course followed by the current President. I 
believe it would obviously have to be brief in such an address, 
but it rises to that magnitude.
    The hearing record will remain open for one week for 
additional materials to be submitted. Written questions for the 
witnesses must be submitted by the close of business one week 
from today. We will ask the witnesses to respond to those 
questions promptly so the record of this hearing can be 
completed and presented to the President the day that he takes 
office. And, again, I thank Senator Brownback for his 
tremendous patience and participation as the Ranking Member.
    The hearing is adjourned.
    [Whereupon, at 12:58 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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