[House Prints 111-33]
[From the U.S. Government Publishing Office]


 
                   REINING IN THE IMPERIAL PRESIDENCY 
    Reining in the Imperial Presidency: Lessons and Recommendations  
              Relating to the Presidency of George W. Bush 

                            C O N T E N T S 

                                                                   Page
Foreword.........................................................     1

Executive Summary................................................     9

Preface: Deconstructing the Imperial Presidency..................    17
 I. The September 25, 2001 War Powers Memorandum.....................20
II. Critique of John Yoo's Flawed Theory of Presidential Supremacy...25
III.The Need for a Judiciary Committee Staff Report..................32


Section 1--Politicization of the Department of Justice...........    33
 I. Politicization of the Prosecution Function.......................35
                        A. Hiring and Firing of U.S. Attorneys 
                              and other Department Personnel.....    35
                        B. Selective Prosecution.................    42
II. Politicization of the Civil Rights Division......................46
                        A. Factual Background....................    46
                        B. Committee Actions.....................    49
III.Findings.........................................................57

                        Politicization of the Prosecution 
                              Function...........................    57
                        Politicization of the Civil Rights 
                              Division and Voting Rights 
                              Enforcement........................    62

Section 2--Assault on Individual Liberty: Detention, Enhanced 
  Interrogation, Ghosting and Black Sites, Extraordinary 
  Rendition, Warrantless Domestic Surveillance, and National 
  Security and Exigent Letters...................................    65
 I. Detention........................................................67
                        A. Factual Background....................    67
              November 2001 Decision to Try Detainees, Including 
                  U.S. Citizens, in Military Commissions.........    68
              December 2001 Decision to Hold Detainees at 
                  Guantanamo.....................................    71
              The Administration's Public Defense of Its 
                  Guantanamo Policies............................    71
                        B. The Bush Administration's Detention 
                              Policies in the Courts.............    74
              The President's Power to Detain an American Citizen 
                  Captured in Afghanistan Without Judicial Review 
                  (Hamdi)........................................    74
              The President's Power to Establish Military 
                  Commissions to Determine Validity of Detention 
                  (Hamdan).......................................    78
              The President's Power to Order Detention of Persons 
                  Without Access to Federal Courts--Rasul and 
                  Boumediene.....................................    80
              The President's Power to Order the Military 
                  Detention of an American Citizen Seized by 
                  Civilian Authorities in the United States 
                  (Padilla)......................................    82
              The President's Power to Order Military Detention 
                  of Lawfully Admitted Alien Seized by Civilian 
                  Authorities in the United States (al-Marri)....    94
                        C. Committee Action......................    98
II. Interrogation...................................................100
                        A. Factual Background....................   100
              December 2001 to February 2002--Determinations That 
                  the Protections of the Geneva Conventions, 
                  Including Common Article III, Do Not Apply to 
                  Guantanamo Detainees...........................   100
              The August 1, 2002 Torture Memorandum..............   102
              August 1, 2002--Waterboarding Approved for CIA Use.   104
              October 2002 to March 2003--Development of 
                  Techniques for Use at Guantanamo...............   105
              John Yoo's March 14, 2003 Torture Memorandum.......   107
              Use of Harsh Interrogation at Guantanamo...........   109
              Migration of Guantanamo Interrogation Techniques to 
                  Abu Ghraib.....................................   111
              Role of High-level Officials.......................   112
              The Congress and the President Battle over 
                  Interrogation Techniques.......................   112
              Destruction of CIA Waterboarding Videotapes........   116
                        B. Committee Action......................   117
              Effectiveness of Enhanced Interrogation............   117
              Potential Criminal Liability for Destruction of 
                  Videotapes.....................................   118
              OLC Opinions Concerning Enhanced Interrogation and 
                  Potential Legal Liability Thereto..............   119
III.Extraordinary Rendition, Ghosting and Black Sites...............125

                        A. Factual Background for Legal Memoranda   125
                        B. Committee Action......................   129
IV. Warrantless Surveillance........................................132
                        A. The Genesis of the Bush 
                              Administration's Warrantless 
                              Surveillance Program...............   132
                        B. Internal Disagreements as to the 
                              Program's Legality; Disclosure of 
                              the Program by The New York Times 
                              in December 2005...................   135
                        C. Bush Administration's Public 
                              Statements Concerning Warrantless 
                              Surveillance.......................   140
                        D. Concerns About Legality and 
                              Effectiveness of the President's 
                              Warrantless Surveillance...........   142
                        E. Additional Scrutiny and Legislative 
                              Activity in the 110th Congress.....   146
 V. National Security Letters (NSLs) and Exigent Letters............151
                        A. The Increased use of NSLs Subsequent 
                              to 9/11 and the Enactment of the 
                              PATRIOT Act and PATRIOT 
                              Reauthorization Act................   151
                        B. March 2007 Justice Department 
                              Inspector General Report and 
                              Subsequent Committee Hearings......   152
                        C. March 2008 Justice Department IG 
                              ``Assessment of Corrective Action'' 
                              Report and Subsequent Committee 
                              Hearings...........................   156
VI. Findings........................................................158
                        Detention................................   158
                        Interrogation............................   159
                        Extraordinary Rendition, Ghosting and 
                              Black Sites........................   161
                        FISA/Warrantless Surveillance............   162
                        NSLs and Exigent Letters.................   165

Section 3--Misuse of Executive Branch Authority..................   167
 I. Presidential Signing Statements.................................168
                        A. Historical Background.................   168
                        B. The Bush Administration's Use of 
                              Signing Statements.................   169
              The McCain Amendment on Treatment of Detainees.....   170
              USA PATRIOT Act....................................   170
              Affirmative Action.................................   170
              Whistleblower Protections..........................   171
                        C. Committee Actions.....................   171
II. Rulemaking Process..............................................173
                        A. Factual Background....................   173
                        B. Executive Control by the Bush 
                              Administration.....................   175
              Executive Order 13422: Expanding White House 
                  Political Control Over Rulemaking..............   175
              Greater Specificity and Market Analysis 
                  Requirements...................................   175
              Heightened Scrutiny of Significant Guidance 
                  Documents......................................   176
              Greater Emphasis on Cost-Benefit Analysis..........   177
              Greater Role for Political Appointees in the 
                  Rulemaking Process.............................   177
                        C. Efforts by OIRA to Control Rulemaking.   178
              Direct Intervention by the Administration to 
                  Control Rulemaking.............................   179
              Using Directives and Other Means to Circumvent 
                  Formal Rulemaking..............................   180
              Midnight Rulemaking................................   180
                        D. Lack of Transparency..................   182
III.Findings........................................................185

                        Abuse of Presidential Signing Statements.   185
                        Rulemaking Process.......................   186

Section 4--Retribution Against Critics...........................   189
 I. The Leak of Valerie Plame Wilson's Covert CIA Identity and Its 
    Aftermath.......................................................189
                        A. The July 2003 Disclosure by the Press.   189
                        B. The Bush Administration's Response to 
                              the Leak...........................   191
                        C. The Libby Indictment and Trial: 
                              Evidence of a White House Leak.....   192
                        D. Mr. Libby's Conviction, Sentence, and 
                              Presidential Grant of Clemency.....   197
                        E. Committee Actions.....................   199
              The Leak...........................................   199
              The White House's Response to the Leak.............   201
              The President's Grant of Clemency..................   203
II. Retaliation Against Other Administration Critics................205
                        Military Officers--Including Former 
                              General Eric Shinseki..............   206
                        Former Treasury Secretary Paul O'Neill 
                              and Economic Advisor Lawrence 
                              Lindsey............................   207
                        Counter-terrorism Czar Richard Clarke....   208
                        Army Corps of Engineers Chief Contracting 
                              Office Bunnatine Greenhouse........   209
III.Findings........................................................209

                        The Leak of Valerie Plame Wilson's Covert 
                              CIA Identity.......................   209

Section 5--Government in the Shadows: Executive Privilege, 
  Secrecy, and the Manipulation of Intelligence..................   213
 I. Executive Privilege.............................................214
                        A. Formal Assertions of Executive 
                              Privilege..........................   214
              Pushing the Boundaries Early On....................   214
              FBI's Valerie Plame Leak Investigation.............   215
              EPA Investigation..................................   216
              Investigation Into the U.S. Attorney Firings by the 
                  House and Senate Judiciary Committees..........   218
                        B. Withholding Documents or Testimony 
                              Without Formally Asserting 
                              Executive Privilege................   222
II. Improper Use of State Secrets and Other Authorities.............225
                        A. Abuse of State Secrets................   225
              Extraordinary rendition............................   225
              Warrantless Wiretapping Program....................   226
              Employee lawsuits..................................   227
                        B. Abuse of Other Authorities............   228
              Classification.....................................   228
              FOIA Requests......................................   231
              Presidential Records Act...........................   232
              Vice President's Office............................   232
III.Manipulation and Misuse of Intelligence.........................233

IV. Findings........................................................242
                        Expansion of Executive Privilege.........   242
                        State Secrets Privilege..................   244
                        Abuse of Classification and Other 
                              Authorities........................   244
                        Manipulation and Misuse of Intelligence..   245

Section 6--Policy Recommendations................................   249
    General......................................................   249

 1. The Congress and the Judiciary Committee should pursue document and 
witness requests pending at the end of the 110th Congress, including 
subpoenas, and the incoming Administration should cooperate with those 
requests.

                                                                    249

 2. Congress should establish a Blue Ribbon Commission or similar panel to 
investigate the broad range of policies of the Bush Administration that 
were undertaken under claims of unreviewable war powers, including 
detention, enhanced interrogation, ghosting and black sites, extraordinary 
rendition, and warrantless domestic surveillance.

                                                                    250

 3. The Attorney General should appoint a Special Counsel, or expand the 
scope of the present investigation into CIA tape destruction, to determine 
whether there were criminal violations committed pursuant to Bush 
Administration policies that were undertaken under unreviewable war powers, 
including enhanced interrogation, extraordinary rendition, and warrantless 
domestic surveillance.

                                                                    250

Politicization of the Department of Justice......................   252

 4. The incoming Administration should review and consider strengthening 
the policy limiting contacts concerning prosecution and enforcement 
matters.

                                                                    252

 5. The incoming Administration should continue the customary practice of 
replacing U.S. Attorneys at the outset of the Administration.

                                                                    252

 6. Congress should expand Justice Department Inspector General 
jurisdiction.

                                                                    253

 7. Congress should pass legislation providing Inspectors General the power 
to subpoena former agency employees and contract employees for testimony 
related to matters that occurred in connection with their employment or 
contract.

                                                                    253

 8. The incoming Administration should improve the Executive Office of 
Immigration Review (EOIR) and the functioning of the immigration courts.

                                                                    254

 9. The Department of Justice should rescind the policy prohibiting career 
voting section employees from making recommendations as to whether the 
Department should object to proposed voting changes.

                                                                    255

10. The Attorney General should conduct an independent review as to whether 
Bradley Schlozman violated criminal laws in his testimony before Congress.

                                                                    255

11. The Department of Justice should revise the Federal Prosecution of 
Election Offenses Manual.

                                                                    256

12. Congress should enact comprehensive election reform legislation.

                                                                    256

Assault on Individual Liberty: Detention, Enhanced Interrogation, 
  Ghosting and Black Sites, Extraordinary Rendition, Warrantless 
  Domestic Surveillance, and National Security and Exigent 
  Letters........................................................   257

13. The Department of Justice should reform its Office of Legal Counsel.

                                                                    257

14. The incoming Administration should close the U.S. prison at Guantanamo 
Bay.

                                                                    258

15. The incoming Administration should require that all persons arrested in 
the United States be subject to civilian law enforcement procedures with 
requisite due process guarantees.

                                                                    259

16. The incoming Administration should end torture and abuse.

                                                                    260

17. The incoming Administration should end the CIA program of secret 
detention and abusive interrogation.

                                                                    260

18. The incoming Administration should end the Bush Administration's 
practice of the extraordinary rendition of terror suspects.

                                                                    261

19. The President, the Director of National Intelligence, the Director of 
the Central Intelligence Agency, and the Director of the National Security 
Agency should implement policies to ensure that there is no ``reverse 
targeting'' used under authorities created by the FISA Amendments Act of 
2008.

                                                                    262

20. The President, the Director of National Intelligence, the Director of 
the Central Intelligence Agency, and the Director of the National Security 
Agency should implement policies to ensure that foreign intelligence 
surveillance is limited to targeted collection.

                                                                    263

21. The incoming Administration should ensure full implementation of 
Inspector General recommendations concerning the FBI's use of NSLs.

                                                                    263

22. The incoming Administration should withdraw the proposed Justice 
Department rule on criminal intelligence system operating policies and 
carefully review and revise as needed the Attorney General's guidelines for 
FBI operations.

                                                                    264

23. The President should nominate and bring into operation the Privacy and 
Civil Liberties Oversight Board.

                                                                    265

24. The President should renew efforts to implement U.S. obligations under 
human rights treaties.

                                                                    265

25. The incoming Administration should review and consider modifications to 
Bureau of Prisons' use of authority under Special Administrative Measures

                                                                    266

Misuse of Executive Branch Authority.............................   266

26. The President should end abuse of presidential signing statements

                                                                    266

27. The incoming Administration should restore rulemaking from the White 
House to traditional agency authority consistent with congressional intent 
and the public interest

                                                                    267

28. The incoming Administration should make rulemaking more transparent, 
understandable, and informative, thereby permitting greater accountability 
to Congress and the public

                                                                    267

29. The incoming Administration should rein in ``Midnight'' rulemaking 
which implements the priorities of a lame-duck administration even though a 
new President has been elected

                                                                    268

Other Incursions by the Executive Branch.........................   268

30. The incoming Administration and Congress should restore the full 
protection of the attorney-client privilege

                                                                    268

31. Congress should enact press shield legislation

                                                                    269

32. The incoming Administration should limit the ability of Executive 
Branch officials of preventing victims of terrorism from recovering for 
their losses

                                                                    270

33. Congress should pass legislation holding Administration-designated 
contractors in Iraq and elsewhere responsible for their criminal misconduct

                                                                    270

34. The Department of Justice should issue guidelines to require 
transparency and uniformity of corporate deferred and non-prosecution 
agreements

                                                                    271

Retribution Against Critics......................................   272

35. Congress should consider legislation concerning the exercise of 
clemency involving government officials

                                                                    272

36. Congress should enhance and strengthen protection for Executive Branch 
whistleblowers

                                                                    272

Government in the Shadows: Executive Privilege, Secrecy, and the 
  Manipulation of Intelligence...................................   273

37. Congress should enact changes in statutes and rules to strengthen 
Congress's contempt power

                                                                    273

38. The incoming Administration should establish procedures for asserting 
Executive Privilege

                                                                    274

39. The incoming Administration and Congress should prevent abusive 
assertion of the state secrets privilege

                                                                    274

40. The incoming Administration and Congress should improve the system for 
classification and declassification

                                                                    275

41. Congress should consider legislation requiring the President to 
publicly announce the declassification of classified materials

                                                                    276

42. The Department of Justice should restore the presumption of disclosure 
under FOIA

                                                                    276

43. The President should rescind Bush White House memoranda that 
significantly restrict the use and disclosure of non-classified information

                                                                    277

44. The President should place the Office of FOIA Ombudsperson in the 
National Archives

                                                                    277

45. The incoming Administration should restore the accessibility of 
presidential records

                                                                    278

46. Congress should modernize the Presidential Records Act

                                                                    278

47. The incoming Administration should clarify the applicability of rules 
of access to the Office of the Vice President

                                                                    279

48. The incoming Administration should eliminate overly restrictive ``Gang 
of 8'' briefings in favor of more effective mechanisms

                                                                    279

49. The incoming Administration mandate steps to avoid manipulation and 
misuse of intelligence

                                                                    280

50. The incoming Administration should conduct an internal review to 
determine what involvement, if any, the CIA or any other intelligence 
agency played in the preparation or dissemination of the forged ``Habbush'' 
memorandum, leaked in December 2003, that: 1) purported to establish a link 
between Saddam Hussein and al Qaeda prior  to  the 9/11 attacks, and 2) 
purported to establish that Iraq did, in fact, purchase uranium from Niger 
as suggested in President Bush's 2003 State of the Union address

                                                                    281

Appendix.........................................................   283
 I. Books, Reports, and Articles....................................283
II. Hearings of the House  Committee on the Judiciary During the 110th
    Congress........................................................288
III.Select Bush Administration Materials............................299

IV. Select Government Studies and Reports...........................303
 V. Select House Judiciary Committee Correspondence, January 2007-Feb-
    ruary 2009......................................................306
VI. Pending Reports and Related Activities from the Departments of 
    Justice
    and Homeland Security...........................................312
Endnotes.........................................................   315
                                Foreword

    In 1973, historian Arthur Schlesinger coined the term 
``Imperial Presidency'' to describe a presidency that had 
assumed more power than the Constitution allows, and had 
circumvented the traditional checks and balances of our 
constitutional system. Until recently, the Nixon Administration 
seemed to represent the singular embodiment of that idea. But 
today, as the Bush Administration comes to a close, there can 
be little doubt concerning the persistence of Mr. Schlesinger's 
notion. More than three decades later, Mr. Schlesinger himself 
characterized the Bush Administration as ``the Imperial 
Presidency redux,'' although he more optimistically predicted 
that ``democracy's singular virtue--its capacity for self-
correction--will one day swing into action.'' Today, in 
hindsight I can attest to the prescience of Mr. Schlesinger's 
warnings of unchecked power, even as we vigorously pursue the 
much-needed democratic self-correction he anticipated.
    The Bush Administration's approach to power is, at its 
core, little more than a restatement of Mr. Nixon's famous 
rationalization of presidential misdeeds: ``When the president 
does it, that means it's not illegal.'' Under this view, laws 
that forbid torturing or degrading prisoners cannot constrain 
the president because, if the president ordered such acts as 
Commander in Chief, ``that means it's not illegal.'' Under this 
view, it is not the courts that decide the reach of the law--it 
is the president--and neither the judiciary nor Congress can 
constrain him. And where statutory law or the Constitution 
itself appear to impose obstacles to presidential whim, 
creative counselors can be relied upon to reach whatever result 
the president desires.
    This dismissive approach to our system of checks and 
balances was exemplified when the Vice President's Chief of 
Staff, David Addington, appeared before the House Judiciary 
Committee on June 26, 2008. As much as any individual in the 
Bush Administration, David Addington is considered the 
architect of the concept of unchecked and unreviewable 
presidential powers known as the ``unitary executive'' (in a 
New Yorker profile, a former Pentagon attorney, Richard 
Schiffrin, said that he left one meeting with Mr. Addington 
with the impression that he ``doesn't believe there should be 
co-equal branches''). Yet when I questioned Mr. Addington about 
the unitary executive theory of government during our Judiciary 
Committee hearing, he responded, ``I frankly, don't know what 
you mean by unitary theory of government.''
    Perhaps nowhere was the range and scope of this most recent 
version of the Imperial Presidency more apparent than within 
the United States Department of Justice, the cornerstone of law 
enforcement in our country. While each administration re-
populates the upper reaches of the Department with its own 
appointees, the men and women who have served there--in 
administrations of both political parties and throughout our 
Nation's history--have taken to heart the Department's core 
values of fair, honest, and impartial justice. Thus, at the 
height of Watergate, in what became known as the ``Saturday 
Night Massacre,'' President Nixon's Attorney General Elliot 
Richardson and Mr. Richardson's Deputy William Ruckelshaus 
famously resigned rather than carry out the President's order 
to fire Special Prosecutor Archibald Cox, who had subpoenaed 
White House tape recordings.
    The contrast with the Bush Department of Justice could not 
be starker. In this Administration, too many Department leaders 
abandoned that proud tradition of independence and integrity, 
and made decisions based on political objectives rather than 
the facts and the law. Young political operatives were given 
control over the most sensitive operations of the Department, 
and federally protected, non-partisan law enforcement positions 
were used to provide political patronage. The Civil Rights 
Division was twisted to obtain partisan electoral advantage, 
rather than protect the most vulnerable among us from 
discrimination.
    In keeping with its imperial aspirations, the 
Administration went to extraordinary lengths to hide its 
conduct from scrutiny and avoid accountability. Thus, the White 
House refused to respond to congressional subpoenas, and 
insisted that presidential aides--and even former aides--are 
immune from subpoena, even though numerous presidential aides 
have testified under congressional subpoena during past 
administrations, as every citizen is legally obligated to do. 
Here, too, the Administration was following the example set by 
Richard Nixon. When President Nixon suggested such a claim, 
Senator Sam Ervin responded: ``That is not executive privilege. 
That is executive poppycock.''
    The Bush Administration has relied on even more extreme 
claims in refusing to release documents subpoenaed by Congress. 
In the end, the Administration has been so recalcitrant in 
asserting this ``executive poppycock'' that the Committee was 
forced to pursue witnesses and documents in federal court. Even 
after the Committee secured a historic victory rejecting the 
Administration's claims, the White House still refused to 
relent. As of this writing, the matter remains in litigation.
    There have been additional transgressions against the 
Constitution and the country by the Bush Administration. There 
was the contrived and manipulated drive to a preemptive war of 
aggression with Iraq. In the words of the Downing Street 
Minutes, ``the intelligence and facts were being fixed around 
the policy.'' There was the unconscionable use of detention 
without cause; enhanced interrogation if not outright torture; 
extraordinary rendition; the extralegal use of national 
security letters; warrantless wiretaps of American citizens; 
the unilateral weakening of our regulatory system; the use of 
signing statements to override the laws of the land; and the 
intimidation and silencing of critics and whistleblowers who 
dared tell fellow citizens what was being done in their name.
    Many think these acts rise to the level of impeachable 
conduct. I agree. I have never wavered in my belief that this 
President and Vice-President are among the most impeachable 
officials in our Nation's history, and the more we learn the 
truer that becomes.
    Some ardent advocates of impeachment have labeled me a 
traitor--or worse--for declining to begin a formal impeachment 
inquiry in the House Judiciary Committee. While I reject that 
particular criticism, I want to make clear how much I respect 
those who have given so much time and energy to the cause of 
fighting for the impeachment of President Bush and Vice-
President Cheney. While we may not agree on the best path 
forward, I know they are acting on the basis of our shared love 
of this country. These citizens are not fringe radicals, and 
they are obviously not motivated simply by personal feelings 
about President Bush, however strong those feelings may be at 
times. They are individuals who care deeply about our 
Constitution and our Nation, and who have stood up to fight for 
the democracy they love, often at great personal cost. Our 
country was founded, and our democracy has long been nurtured, 
by people willing to take such risks, and we should honor their 
vigilance and courage.
    However, as I have said, while President Bush and Vice 
President Cheney have earned the dishonorable eligibility to be 
impeached, I do not believe that would have been the 
appropriate step at this time in our history, and I would like 
again to briefly explain why that is the case.
    Contrary to assertions by some advocates, the predecessor 
to this Report--the Judiciary Committee then-Minority staff's 
``Constitution in Crisis''--did not call for impeachment. 
Rather, it concluded that there was substantial evidence of 
impeachable misconduct and that there should be a full 
investigation by a select Committee armed with subpoena power. 
Prior to the 2006 elections, when I saw that my views on 
impeachment were being misstated by friends and foes alike, I 
set the record straight in an essay published in The Washington 
Post titled ``No Rush to Impeachment'':

    The administration's stonewalling, and the lack of 
oversight by Congress, have left us to guess whether we are 
dealing with isolated wrongdoing, or mistakes, or something 
worse. In my view, the American people deserve answers, not 
guesses. I have proposed that we obtain these answers in a 
responsible and bipartisan manner. It was House Republicans who 
took power in 1995 with immediate plans to undermine President 
Bill Clinton by any means necessary, and they did so in the 
most autocratic, partisan and destructive ways imaginable. If 
there is any lesson from those ``revolutionaries,'' it is that 
partisan vendettas ultimately provoke a public backlash and are 
never viewed as legitimate.
    So, rather than seeking impeachment, I have chosen to 
propose comprehensive oversight of these alleged abuses. The 
oversight I have suggested would be performed by a select 
committee made up equally of Democrats and Republicans and 
chosen by the House speaker and the minority leader.
    The committee's job would be to obtain answers--finally. At 
the end of the process, if--and only if--the select committee, 
acting on a bipartisan basis, finds evidence of potentially 
impeachable offenses, it would forward that information to the 
Judiciary Committee. This threshold of bipartisanship is 
appropriate, I believe, when dealing with an issue of this 
magnitude.

    Nonetheless, I have been accused of ``violating my oath of 
office'' by ``playing politics'' with impeachment, and I have 
been criticized for saying that I have the Constitution in one 
hand and a calculator in the other. I would suggest that this 
argument ignores the text and history of the Constitution. 
There is nothing mandatory about using the power to impeach 
when wrongful conduct is shown, and the decision whether or not 
to impeach was always intended to be subject to the politics at 
the time. We live in a democracy, after all.
    Thus, in Federalist No. 65, Alexander Hamilton described 
impeachable offenses as ``those . . . which proceed from the 
misconduct of public men . . . which may with peculiar 
propriety be denominated POLITICAL . . .'' (Caps in original.) 
To address these ``political'' offenses, the Constitutional 
Convention rejected using either a judicial tribunal (that was 
the approach of the ``Virginia Plan'') or a hybrid committee of 
judicial and political officers (as proposed by Gouverneur 
Morris and Charles Pinckney), and instead vested the authority 
in the legislature. As the records of the Convention detail, 
the Founders made this choice fully aware of the political 
considerations that would factor into impeachment decisions.
    The simple fact is, despite the efforts of impeachment 
advocates, the support and votes have not been there, and could 
not reasonably be expected to materialize. It takes 218 votes 
in the House and 67 votes in the Senate to impeach and remove a 
president from office. The resolution I offered three years ago 
to simply investigate whether an impeachment inquiry was 
warranted garnered only 38 cosponsors in the House, and the 
Democratic Leader of the Senate labeled it ``ridiculous.'' 
Impeachment resolutions against Vice President Cheney and 
President Bush offered by my friend and colleague Dennis 
Kucinich only garnered 27 and 11 House cosponsors, 
respectively.
    Impeachment, if done right, also takes time. When I became 
Chairman of the House Judiciary Committee in January of 2007, 
after twelve years of Republican rule, we had to start much of 
our oversight from scratch, and against an Administration more 
dedicated to secrecy and obfuscation than any in our history. 
Unlike the Nixon impeachment, we did not have the benefit of 
the bipartisan Ervin Committee or a fearless special prosecutor 
such as Archibald Cox or Leon Jaworski to help lay the 
groundwork needed to remove a president or vice president from 
office.
    During the failed impeachment of President Bill Clinton, 
many of us derided House Republicans for, in the words of 
Senator Bob Kerrey, ``sloppily'' conducting the inquiry. 
Without calling a single fact witness, the Republicans 
essentially rubber-stamped the work of Independent Counsel Ken 
Starr and forwarded his allegations on to defeat in the Senate. 
Many advocates would have had me do the same to this President 
based on newspaper and magazine articles. But that course would 
have cheapened the impeachment process itself--and would not 
have led to success.
    The final plea was: ``Why not try? What do you have to 
lose?'' Impeachments, however, both successful and 
unsuccessful, have precedential consequences--they set 
standards for future presidential behavior. The House Judiciary 
Committee's rejection of an article of impeachment against 
President Nixon for failing to file tax returns, for example, 
was used as precedent in acquitting President Clinton for 
impeachment based on personal misdeeds.
    While some of the difficulty in garnering support for 
impeachment results from fatigue over the recent and 
unjustified impeachment of President Clinton, and concern about 
routinizing what should be an extraordinary constitutional 
event--whatever the reason, an impeachment vote in the House 
was certain to fail. What, then, would be the precedent set by 
a House vote against the impeachment of President Bush or Vice 
President Cheney for deceiving our nation into war, allowing 
torture, engaging in warrantless domestic surveillance, and 
retaliating against those who attempted to reveal the truth 
about these acts? In my view, a failed impeachment--by an 
almost certainly lopsided vote--would have grossly lowered the 
bar for presidential behavior and caused great damage to our 
Constitution. More immediately, a failure to impeach President 
Bush and Vice President Cheney would have been trumpeted by 
their allies as a vindication for them and for their 
overreaching policies.
    To all of us who treasure our constitutional form of 
government and our standing in the world, and mourn the loss of 
life in a war built on deception, I know the failure to impeach 
is a deeply unsatisfying outcome. As one who has participated 
in more impeachments than any other Member of Congress, I came 
to the realization that this is the reality of this moment in 
history.
    Faced with that reality, I had a choice: do nothing; or 
redouble my efforts to peel away the secrecy of this 
Administration, expose its wrongdoing, and protect the 
liberties and freedoms of the American people.
    I chose the latter course. This is what led me to bring 
suit in federal court to challenge the legality of the Iraq 
War. This is what led me to publish my own report, ``What Went 
Wrong in Ohio,'' and join with Barbara Boxer and the late 
Stephanie Tubbs Jones in filing an election challenge on the 
House floor challenging the unjust result in 2004. This is what 
led me to personally deliver a letter to the White House 
regarding the manipulation of intelligence described in the 
Downing Street Minutes, signed by 121 Members and more than 
500,000 Americans, to challenge the warrantless surveillance of 
innocent Americans, and to hold a series of Minority hearings 
in the basement of the Capitol and the Rayburn Building 
regarding these matters. This is what led me to call for a 
special counsel to investigate the culpability of the White 
House in the outing of Valerie Plame. And over the last two 
years in the Majority, this is what led the Judiciary Committee 
to conduct 157 days of oversight hearings.
    These choices produced results. As just one example, our 
Committee issued the first subpoenas of the new Congress when 
we learned that United States Attorneys had been mysteriously 
dismissed. Our investigative efforts turned up thousands of 
pages of documents, which were made available, in real time, on 
the Internet to the public. We went to court and obtained the 
testimony of former Justice Department/White House liaison 
Monica Goodling. These efforts exposed substantial wrongdoing 
at the Department, and resulted in passage of a new law 
regarding the replacement of U.S. Attorneys, the resignations 
of numerous high-ranking Department officials, including the 
Attorney General, and an ongoing criminal investigation of 
these officials.
    When the culpability for the firing of the United States 
Attorneys appeared to lead into the White House, the Committee 
subpoenaed high-ranking presidential aides and internal White 
House memos. When the Administration refused to comply, our 
Committee held the responsible officials in contempt, and the 
full House followed suit. And when the Justice Department 
refused to prosecute, the Committee filed suit in federal court 
and won a landmark victory.
    In addition to the appointment of Patrick Fitzgerald as 
Special Counsel in the Valerie Plame matter and the conviction 
of Scooter Libby, I released a Homeland Security Inspector 
General Report calling into question the rendition of Maher 
Arar to Syria, and obtained two GAO reports confirming the harm 
and danger of President Bush's signing statements. At the time 
of this Report, we are awaiting an Office of Professional 
Responsibility report concerning what may have been the 
selective, politically biased prosecution of former Alabama 
Governor Don Siegelman and others, Inspector General reports 
concerning the propriety of the President's warrantless 
surveillance program, a Special U.S. Attorney investigation 
into the U.S. Attorney firings, and a Special U.S. Attorney 
investigation into the CIA tape destruction. All of this is 
occurring even before the onset of a new, more open 
Administration.
    Moreover, history is already judging President George W. 
Bush. As of this writing, his approval rating is in the mid-
20s, dismal by any standard. The November 2008 election is 
widely viewed as a landslide repudiation of President Bush and 
his policies.
    But our work is not done. The lesson I took away from 
Watergate and the Vietnam era spying abuses was that much of 
the work of reining in an Imperial Presidency takes place after 
the change in Administrations. It was only due to the work of 
the Church Committee and other reviews initiated after 
President Nixon resigned that we were able to pass historic 
legislation such as the Federal Campaign Finance Act, the 
Foreign Intelligence Surveillance Act, the Independent Counsel 
Act, the Ethics in Government Act, and the Presidential Records 
Act. It was Pecora Commission's work after the Wall Street 
Crash in 1929 that helped lay the ground work for the New Deal 
banking and securities reforms.
    Likewise, I believe now is when much of the work to remedy 
the excesses of the most recent Imperial Presidency begins. 
That is why this Report recommends that the Judiciary Committee 
and the Congress pursue any unresolved subpoenas and document 
requests left over from the last Congress; that we create a 
``blue-ribbon'' commission or similar select committee, along 
the lines of the 9/11 Commission, to investigate these matters 
and report to Congress, the President, and the public; and that 
the incoming Administration finally begin an independent 
criminal review of activities of the outgoing Administration, 
such as enhanced interrogation, extraordinary rendition, and 
domestic warrantless surveillance. These initiatives can and 
should work collectively and without prejudice to one another. 
The fact that Congress is pursuing responsible oversight should 
not impact any criminal investigations, just as the work of the 
Ervin Committee did not limit the prerogatives of Special 
Counsels Cox or Jaworski. As a matter of fact, information 
gleaned from one review could reinforce and galvanize others. 
While I understand there is a powerful desire to simply move on 
and focus on the many large issues facing us, we simply cannot 
sweep these matters under the rug of history without addressing 
them head on. As the world's oldest democracy, I am certain we 
are strong enough to survive and even prosper from these 
proposed inquiries.
    In addition to these threshold recommendations, the Report 
goes on to make a total of 50 policy recommendations. These 
range from passing laws regarding self-serving presidential 
pardons, helping to protect whistleblowers from retribution, 
and reforming our elections; as well as commencing executive 
and Justice Department actions to end torture and extraordinary 
rendition, close Guantanamo Bay, provide due process to 
detainees, end the use of abusive signing statements and 
assertions of state secrets, and end the selective 
declassification and manipulation of intelligence information.
    Candidate Obama repeatedly and publicly spoke out against 
the violations of our Constitution perpetrated by the Bush 
Administration. It is my hope that these recommendations will 
help to ensure that President Obama follows through and rolls 
back those excesses, and restores the checks and balances that 
have made our nation strong. There remain numerous questions 
about the Bush Administration's misdeeds, many of them 
described in the text that follows, and the more these facts 
are uncovered and aired, the stronger they will make our 
democracy.
                              ----------                              

    The Constitution has been sorely tested over the last eight 
years. But like the late Mr. Schlesinger, I am confident in our 
capacity to self-correct. Doing so will require much hard work 
and diligence, and that effort only continues with the release 
of this Report. Our work is far from complete.

                                   John Conyers, Jr.,
                                           January 2009
                           Executive Summary

    This Report has been prepared at the direction of Rep. John 
Conyers, Jr., Chairman of the House of Representatives 
Committee on the Judiciary. It was drafted to itemize and 
document the various abuses that occurred during the Bush 
Administration relating to the Committee's review and 
jurisdiction, and to develop a comprehensive set of 
recommendations to prevent the recurrence of these or similar 
abuses in the future. The Report was initially published on the 
internet on January 13, 2009. This final version corrects 
typographical errors, includes an Appendix that highlights 
significant source materials and Judiciary Committee 
accomplishments, and accounts for the final days of the Bush 
Administration.
    The Report begins with a preface titled ``Deconstructing 
the Imperial Presidency,'' which describes and critiques the 
key war power memos that gave rise to the concept of broad-
based, unreviewable, and secret presidential powers in time of 
war. These legal theories, many of which took seed shortly 
after September 11, 2001, rely on breathtaking assertions 
regarding the nature and scope of the so-called ``global war on 
terror,'' such as those set forth in an October 23, 2001, 
memorandum concluding that the president may order extensive 
military operations inside the United States. As the Report 
documents, these theories were relied on time and again in 
numerous other contexts by the Bush Administration over the 
next seven and one half years.
    The next five sections of the Report describe specific 
abuses of the Imperial Presidency relating to Judiciary 
Committee inquiries. Section 1, ``Politicization of the 
Department of Justice,'' describes the Committee's U.S. 
Attorneys investigation and concerns relating to the 
politicization of the Civil Rights Division in general and the 
Voting Rights Division in particular. Section 2, ``Assault on 
Individual Liberties,'' broadly details Bush Administration 
policies relating to detention, enhanced interrogation, 
extraordinary rendition, ghosting and black sites, warrantless 
domestic surveillance, and the issuance of national security 
and exigent letters. Section 3, ``Misuse of Executive Branch 
Authority,'' describes concerns relating to signing statements 
and misuse of regulatory authorities. Section 4, ``Retribution 
against Critics,'' details the facts ascertained relating to 
the outing of former intelligence agent Valerie Plame Wilson, 
and other instances of improper retribution by the Bush 
Administration against its critics. Section 5, ``Government in 
the Shadows,'' describes multifaceted efforts of the Bush 
Administration to avoid accountability and culpability through 
a variety of legal techniques, including broad and 
unprecedented assertions of executive privilege, withholding 
testimony and information without formal assertion of 
privilege, extraordinary assertions of state secrets, broad 
uses of classification authorities, and unduly narrow 
construction of the Freedom of Information Act, as well as 
manipulation of intelligence in the run-up to the Iraq War. 
Each of these sections includes a comprehensive set of findings 
detailing specific legal and factual conclusions drawn from the 
review.
    Section 6 of the Report sets forth a comprehensive set of 
50 policy recommendations designed to respond to the abuses and 
excesses of the Bush Imperial Presidency. The list begins with 
three major threshold recommendations:
     First, that the Judiciary Committee pursue its 
document requests and subpoenas pending at the end of the 110th 
Congress.
     Second, that Congress create an independent blue 
ribbon commission or similar body to investigate the host of 
previously unreviewable activities of the Bush Administration; 
including detention, enhanced interrogation, extraordinary 
rendition, ghosting and black sites, and warrantless domestic 
electronic surveillance.
     Third, that the new Administration conduct an 
independent criminal inquiry into whether any laws were broken 
in connection with these activities.
    In this regard, the Report firmly rejects the notion that 
we should move on from these matters simply because a new 
Administration is set to take office. This is because there 
never has been an independent, comprehensive review of these 
very serious allegations with a full report to the American 
public. The investigations to date have either been limited in 
scope or authority, hidden from the public and the Congress, or 
stonewalled or obstructed by the outgoing Administration behind 
impenetrable walls of classification and privilege. The purpose 
of the above-described investigations is not payback, but to 
uphold the rule of law, allow us to learn from our national 
mistakes, and prevent them from recurring. Such an effort would 
be a welcome sign to our friends, and a warning to our foes, 
that this Nation can indeed serve as a beacon of liberty and 
freedom without weakening our ability to combat terrorism or 
other threats.
    The Report makes clear that even after scores of hearings, 
investigations, and reports, Congress and the American public 
still do not have answers to some of the most fundamental 
questions concerning the Bush Imperial Presidency. These 
include the following:
1. Who created the U.S. Attorney firing list, and how were specific 
        U.S. Attorneys included or excluded from the list?
    After more than 13 House and Senate Judiciary committee 
hearings and depositions with over 12 witnesses, we still do 
not know who created the U.S. Attorney firing list and why. 
Witnesses testifying included then-Attorney General Alberto 
Gonzales, his Chief of Staff Kyle Sampson, Deputy Attorney 
General Paul McNulty, White House Liaison Monica Goodling, and 
every other senior Department of Justice official with a 
reported role in the matter, but none have accepted 
responsibility for creating the list. Then-Attorney General 
Gonzales, for example, claimed that he ``was not involved in 
seeing any memos, was not involved in any discussions about 
what was going on,'' and testified that he did not place the 
fired U.S. Attorneys on the list, even as he later claimed not 
to remember any details of the firings or the reasons those 
U.S. Attorneys were fired. He testified at one point that he 
regretted not having the Deputy Attorney General ``directly 
involved'' in the process, only to later assert that the one 
person he had relied upon ``in particular'' was the Deputy 
Attorney General. Mr. Gonzales defended his inability to 
recollect the facts by claiming that he had not spoken to key 
fact witnesses ``to preserve the integrity'' of the 
investigation, but Ms. Goodling said that the Attorney General 
had rehearsed his recollection of the facts with her.
    Chairman Conyers has repeatedly stated that ``the bread 
crumbs in this investigation have always led to 1600 
Pennsylvania Avenue,'' yet the White House has asserted a broad 
and unprecedented form of executive privilege and supposed 
immunity from subpoena to prevent Harriet Miers and Karl Rove 
from testifying and to justify the refusal by the White House 
and the Republican National Committee refusing to turn over 
relevant documents and e-mails. The Bush Administration has 
continued to stonewall even after House votes for contempt of 
Congress and a federal district court decision rejecting its 
legal position.
2. Were any laws broken as a result of the enhanced interrogation 
        tactics engaged in by the Bush Administration?
    Notwithstanding various internal reports by the Bush 
Administration and a number of investigations and hearings in 
the Congress (limited and constrained in many cases by 
Administration obstruction), there never has been a full and 
independent inquiry into whether there have been criminal 
violations of federal statutes prohibiting torture and war 
crimes. Consider the following exchange between Chairman 
Conyers and Attorney General Mukasey at a February 7, 2008, 
hearing concerning admitted instances of waterboarding, an 
interrogation method the Bush Administration belatedly 
acknowledged was unlawful:

    Mr. Conyers: Well, are you ready to start a criminal 
investigation into whether this confirmed use of waterboarding 
by United States agents was illegal?
    Mr. Mukasey: No, I am not, for this reason: Whatever was 
done as part of a CIA program at the time that it was done was 
the subject of a Department of Justice opinion through the 
Office of Legal Counsel and was found to be permissible under 
law as it existed then.

Unanswered was how the Attorney General could know the 
waterboarding was done in good faith reliance on the OLC 
opinions and within any limits or constraints set by the 
Justice Department without first investigating the facts.
    Consider also the following exchanges between Subcommittee 
Chairman Nadler, former Attorney General Ashcroft, and Attorney 
General Mukasey at hearings on July 17, 2008, and July 23, 
2008, respectively, concerning waterboarding:

    Mr. Nadler: Attorney General Ashcroft, in your testimony 
you mentioned Abu Zubaydah, who was captured in March 2002. The 
Inspector General report on the FBI's role in interrogation 
makes clear that he was interrogated beginning in March of that 
year. The Yoo-Bybee legal memo [approving CIA interrogation 
techniques] was not issued until August 2002. So was the 
interrogation of Abu Zubaydah before August 2002 done without 
DOJ legal approval?
    Mr. Ashcroft: I don't know.
    Mr. Nadler: Well, did you offer legal approval of 
interrogation methods used at that time?
    Mr. Ashcroft: At what time, sir?
    Mr. Nadler: Prior to August of 2002, [in] March 2002.
    Mr. Ashcroft: I have no recollection of doing that at all.
    Mr. Nadler: . . . Do you know if waterboarding was used on 
Abu Zubaydah before the DOJ approved it?
    Mr. Ashcroft: I do not.

Attorney General Mukasey was no more responsive:


    Mr. Nadler: [I]t is now clear that one of the detainees, 
Abu Zubaydah, for example, was interrogated for months in the 
spring and summer of 2002, before the first OLC opinion and the 
issue we know of, the August 1, 2002, legal memo by John Yoo 
was issued . . . have you or anyone at the Department 
investigated the legality of the interrogation methods used 
before the August 1 Yoo memo was issued?
    Mr. Mukasey: I have not investigated that myself. I think 
part of that question involves whether the methods employed 
were consistent with that memo or not, and I don't know whether 
they were or they were not.
    Mr Nadler: Do you think someone should take a look at that?
    Mr. Mukasey: I think a look at that may very well be taken 
or have been taken. I am not specifically aware of it as I sit 
here.
    Mr. Nadler: Can you let us know?
    Mr. Mukasey: I will take a look.


The Committee has not heard back on the matter from the 
Attorney General.

3. Were any laws broken as a result of the extraordinary rendition 
        tactics engaged in by the Bush Administration?

    The Committee has uncovered considerable evidence of 
potential criminal culpability relating to the rendition of 
Maher Arar. This includes:
     A Department of Homeland Security Inspector 
General report found that Immigration and Naturalization 
Service (INS) officials had determined that it was ``more 
likely than not'' that Mr. Arar would be tortured if sent to 
Syria, but sent him anyway, even though the ``assurances upon 
which INS based Mr. Arar's removal were ambiguous regarding the 
source or authority purporting to bind the Syrian government to 
protect Arar.''
     The Inspector General also expressed concern about 
the speed with which Administration officials transferred Mr. 
Arar and about possible interference with his access to 
counsel. ``The method of the notification of the [Convention 
Against Torture protection] interview to Mr. Arar's attorneys 
and the notification's proximity to the time of the interview 
[a phone message left at a work number at 4:30 p.m. on a Sunday 
for an interview that started at 9:00 p.m. that same Sunday 
night] were questionable.''
     Former Department of Homeland Security Inspector 
General Clark Ervin has also testified before the Committee 
that: ``There is no question but that given everything we know, 
the intention here was to render him to Syria, as opposed to 
Canada, because of the certainty that he would be tortured in 
Syria and he would not be in Canada.''
    While these troubling facts led to apologies to Mr. Arar by 
the Chairs and Ranking Members of the House Judiciary 
Committee's Subcommittee on the Constitution, Civil Rights, and 
Civil Liberties, and the House Foreign Affairs Committee's 
Subcommittee on Oversight, there has never been an adequate 
explanation as to why these facts have not warranted a criminal 
investigation.

4. Were any laws broken as a result of the so-called ``Terrorist 
        Surveillance Program'' and related activities?

    There have been numerous efforts to obtain a judicial 
determination of the legality of the President's warrantless 
domestic surveillance program. Among other things, the 
Electronic Frontier Foundation filed a lawsuit alleging that 
AT&T had collaborated with the National Security Agency (NSA) 
to engage in illegal surveillance (which became one of a series 
of consolidated cases challenging the program); the American 
Civil Liberties Union brought a suit alleging the program was 
unlawful; and Rep. Maurice Hinchey (D-NY) sought a Department 
of Justice Office of Professional Responsibility investigation 
into whether Department attorneys had violated their legal or 
ethical responsibilities in connection with the program.
    Each and every one of these efforts has been obstructed by 
the Bush Administration. After unsuccessfully arguing that the 
Electronic Frontier Foundation suit should be dismissed as a 
result of the state secrets doctrine, the Bush Administration 
insisted that retroactive legal immunity for telecommunications 
companies involved in the program be included in recently 
enacted surveillance legislation. After a federal court in 
Michigan found the warrantless surveillance program to be 
unlawful, the Administration succeeded in having the decision 
reversed on appeal on procedural grounds. The Department's 
internal investigation died in early 2006 after President Bush 
denied the investigators the necessary security clearances (the 
investigation was belatedly revived by the new Attorney General 
last year, but only after substantial time on the relevant 
statutes of limitations had elapsed).

5. To what extent were President Bush and Vice President Cheney 
        involved in the outing of Valerie Plame Wilson and its 
        aftermath?

    There is considerable evidence that culpability for the 
outing of Valerie Plame Wilson and subsequent obstruction goes 
above and beyond Scooter Libby. We have learned the following 
as a result of the Special Counsel and congressional 
investigations and the trial and conviction of the Vice 
President's former Chief of Staff I. Lewis Libby:
     Mr. Libby's notes from on or before June 11, 2003, 
reveal that the Vice President informed Mr. Libby that 
Ambassador Wilson's wife, Valerie Plame Wilson, worked in the 
Central Intelligence Agency's Counterproliferation Division.
     That same day, Cathie Martin, Assistant to the 
Vice President for Public Affairs, learned that Ambassador 
Wilson's wife worked at the CIA, and she relayed that 
information to Mr. Cheney and Mr. Libby during a meeting in the 
Vice President's office.
     A few weeks later, on or about July 6, 2003, Mr. 
Cheney clipped Ambassador Wilson's New York Times op-ed 
questioning the Bush Administration's Iraq-uranium claim and, 
in his own hand, wrote the following rhetorical note 
conspicuously above its title: ``Have they [i.e., the CIA] done 
this sort of thing before? Send an ambassador to answer a 
question . . . Or did his wife send him on a junket?''
     The next day, Ms. Martin e-mailed White House 
Press Secretary Ari Fleischer with talking points on the Niger 
trip by Mr. Cheney. He subsequently dictated a revised set of 
talking points that Ms. Martin circulated to the press. It has 
been reported that the FBI's summary of the Special Counsel's 
interview with Vice President Cheney reflects that he ``was at 
a loss to explain how the change of the talking points focusing 
attention on who specifically sent Wilson to Niger would not 
lead . . . to exposure'' of Valerie Plame Wilson's identity.
     In the early fall of 2003, Mr. Cheney wrote a note 
to himself on the unfairness of Mr. Libby, alone among White 
House staffers, having been asked to ``stick his neck in the 
meat grinder'' in connection with the White House's response to 
Ambassador Wilson's op-ed.
     Mr. Libby's key disclosure of Ms. Plame Wilson's 
identity to New York Times reporter Judith Miller occurred 
during a meeting arranged at the behest of the Vice President.
     A redacted report of the FBI's interview with Mr. 
Libby that the Justice Department allowed the staff of the 
House Oversight Committee to review reflects that Mr. Libby 
told the FBI that ``it was `possible' that Vice President 
Cheney instructed him to disseminate information about 
Ambassador Wilson's wife to the press.''
    While this and other evidence strongly suggests vice 
presidential and/or presidential involvement, complete 
understanding of this matter has been obstructed by both the 
President's assertion of executive privilege and threatened 
assertion to deny the Oversight and Government Reform Committee 
and the Judiciary Committee access to relevant information, and 
by Mr. Libby's lies to FBI interviewers and the grand jury 
convened to investigate the leak. As Special Counsel Fitzgerald 
emphasized during his closing argument, Mr. Libby's lies put a 
``cloud over what the Vice President did'' immediately 
following the publication of Ambassador Wilson's op-ed.
    Given that so many significant questions remain unanswered 
relating to these core constitutional and legal matters, many 
of which implicate basic premises of our national honor, it 
seems clear that our country cannot simply move on. As easy or 
convenient as it would be to turn the page, our Nation's 
respect for the rule of law and its role as a moral leader in 
the world demand that we finally and without obstruction 
conduct and complete these inquiries. This can and should be 
done without rancor or partisanship.
                              ----------                              

    This Report could not have been completed absent the 
hearings and investigatory work undertaken by other committees, 
and their work is relied upon and cited throughout. In 
particular, this Report includes the work of the Senate 
Judiciary Committee, the House and Senate Select Committees on 
Intelligence, the House and Senate Armed Services Committees, 
the House Oversight and Government Reform Committee, and the 
House Foreign Relations Committee (which held a series of 
hearings in conjunction with the House Judiciary Committee). 
The work of the many diligent Inspectors General was also vital 
to the Committee's work, including in particular the Department 
of Justice Inspector General's office.
            Preface: Deconstructing the Imperial Presidency

    In the Founders' view, the ``blessings of liberty'' were 
threatened by ``those military establishments which must 
gradually poison its very fountain.''. . . Except for the 
actual command of military forces, all authorization for their 
maintenance and all explicit authorization for their use is 
placed in the control of Congress under Article I, rather than 
the President under Article II.--Justice Antonin Scalia in 
Hamdi v. Rumsfeld.\1\

    ``Imperial Presidency'' is a term used to embody a 
fervently held anti-democratic belief system, rooted in a 
constitutionally unsupportable view of the president's power 
vis-a-vis the Congress, the courts, and the people of the 
United States.
    The Imperial Presidency of George W. Bush--constructed and 
enforced by Vice President Dick Cheney and his chief legal 
advisor David Addington,\2\ given legal veneer in Department of 
Justice Office of Legal Counsel opinions by Deputy Assistant 
Attorney General John C. Yoo, and endorsed by White House 
Counsel and later Attorney General Alberto Gonzales--has been 
characterized by the determined effort to arrogate for the 
president vast uncheckable power in large spheres of government 
action, coupled with the equally determined willingness to do 
battle with the courts and Congress for the president's right 
to maintain these prerogatives. For the president to seek 
legislative authorization from Congress, rather than simply act 
unilaterally (on detention policy, for example), was scorned as 
``giv[ing] away the President's power.'' \3\ Even the 
Republican-controlled Congress was viewed by David Addington 
with hostility for the potential threat it posed to the 
president's ability to act unilaterally.\4\ The determined 
insistence that the president had the right to go it alone was 
typified by Mr. Addington's statement: ``We're going to push 
and push and push until some larger force makes us stop.'' \5\
    Among the most far-reaching instances of President Bush's 
arrogation of power are actions he took in the aftermath of the 
terror attacks of September 11, 2001. Here, as will be set 
forth in greater detail, President Bush relied on extreme--and 
secret--interpretations of his constitutional powers to 
implement aggressive and far-reaching policies relating to 
detention, interrogation, and electronic surveillance. Whenever 
these actions have been exposed and challenged in court, the 
courts have generally held them to be unconstitutional--or 
constitutional only to the extent they were authorized by 
Congress.
    President Bush has similarly ``pushed and pushed'' for 
presidential power vis-a-vis Congress and the courts in other 
significant areas of activity. For example, he has stonewalled 
legitimate congressional requests for information, going so far 
as to assert that his White House advisors need not so much as 
show up in response to congressional subpoenas--even in 
instances where there are no communications with the President 
involved that might support an assertion of executive 
privilege. He has also taken the position that, simply by 
issuing a ``signing statement'' at the time he signs a bill 
into law, he may excuse himself from his responsibility under 
the Constitution to ``take care that the laws be faithfully 
executed.'' \6\
    A cornerstone of the legal rationale contrived to support 
the Imperial Presidency has been a radically expansive view of 
the president's constitutional authority as Commander in Chief. 
The Bush Administration has asserted that the Commander-in-
Chief power extends far beyond the battlefield, and that any 
action he takes under claim of that power, in whatever arena, 
is presumptively considered the equivalent to ordering the 
movements of troops on the battlefield, and thus can neither be 
limited by Congress nor reviewed by the courts. According to 
this view, the president alone defines the scope of 
circumstances in which he may exercise these Commander in Chief 
powers, even in connection with a ``war'' that has no 
limitation in either geographical location or duration--the 
conflict may be world-wide, including within U.S. borders, and 
may extend potentially forever.
    Under this view, for example, President Bush has claimed 
the power to label American citizens and lawfully admitted 
aliens as ``enemy combatants,'' and on that basis to seize them 
in the United States; hold them in military custody, in 
solitary confinement, without access to an attorney or any 
meaningful opportunity to challenge the evidentiary basis for 
their detention; and subject them to harsh interrogation 
methods, including methods condemned as torture under settled 
international law, and try them in closed military commissions 
instead of in a court of law, all in flagrant disregard of 
Fifth Amendment due process protections. He has also claimed 
the power to wiretap and record the conversations of American 
citizens, without obeying the Fourth Amendment requirement to 
obtain a warrant to do so.
    Moreover, under this view, the president is not even 
required to inform the courts or Congress of the legal basis 
for asserting that his decisions are unreviewable, or the 
classes of decisions covered, or the definition of the 
``battlefield'' on which these decisions operate. Rather, the 
decisions as to such issues of human liberty as detention, 
interrogation methods, and surveillance can be justified by 
secret internal memoranda. In effect, this view gives the 
president license to operate under secret interpretations of 
his powers, even inside the United States, and even against 
United States citizens.
    The bare text of the Constitution says nothing about the 
extent of the president's Commander in Chief powers; it says 
only that the president ``shall be Commander in Chief of the 
Army and Navy of the United States.'' \7\ But such an expansive 
view of these powers as articulated by the Bush Administration 
could render the rest of the Constitution null, eviscerating 
the separation of powers structure designed to limit Executive 
power, and trampling the Bill of Rights.
    The ambitious reach of the Bush Administration's imperial 
vision, the audacity with which it was pursued, and the extent 
to which its pursuit was acquiesced in, is unprecedented in our 
Nation's history. But the imperial impulse--and the dangers it 
poses to democracy, the rule of law, the public welfare, and 
international peace--are all too familiar to students of world 
history. The Founders had ready examples from their own era, 
beginning with King George III of England.\8\ Keenly mindful of 
these dangers when they met in Philadelphia to draft our 
Constitution, the Founders carefully devised a system of checks 
and balances among the three Branches so as to restrain the 
imperial tendencies of the Executive.
    After laying largely dormant for the first six years of the 
Bush Presidency, that system of checks and balances is now 
seeing new vigor. In the 110th Congress, over the past two 
years, the House Committee on the Judiciary, along with other 
Committees in both Houses of Congress, has endeavored to 
uncover, shine a light on, and correct the imperial excesses of 
the Bush Presidency--including its policies and practices in 
areas ranging from detention, interrogation, and rendition to 
electronic surveillance, to signing statements, as well as the 
improper politicization of federal law enforcement and its 
overall proclivity to secrecy.
    The results to date of this endeavor are described in this 
Report. It will be left for others to describe the damage the 
Imperial Presidency has done to our standing in the world of 
nations; this Report focuses on the damage it has done to our 
constitutional values, and on what must be done to restore 
those values to their rightful place in our government.
    Already, the harshest interrogation technique known to have 
been employed under the direction of Bush Administration 
officials--waterboarding--has been confirmed by Administration 
officials in testimony before Congress in 2008,\9\ and Vice 
President Cheney himself has now admitted having given his 
support to its use.\10\ Though the legislation updating the 
Foreign Intelligence Surveillance Act (FISA) is in many 
respects problematic, it does include features designed to 
ensure the primacy of the Legislative and Judicial Branches in 
formulating and ensuring compliance with appropriate procedures 
and safeguards for electronic surveillance of American 
citizens. Congressional investigation into the improper 
politicization of the Justice Department appears to have been a 
factor leading to the resignation of a number of key Department 
and White House officials, apparently bringing a halt to this 
corrupting influence on federal law enforcement. Meanwhile, the 
role of various White House officials is still under active 
investigation.
    Although Congress and the courts have awakened to reassert 
their proper constitutional roles in the functioning of the 
federal government--particularly in connection with the 
protection of individual liberties against encroachment by the 
Executive Branch--further action and continued vigilance are 
needed. To promote and assist in those efforts, this Report 
reviews the rise of the Imperial Presidency in the Bush 
Administration, describes the response in Congress and the 
courts during the past two years, and sets forth 
recommendations as to how to restore Constitutional balance and 
maintain it in the future.
    Benjamin Franklin, as he emerged from Independence Hall on 
the final day of the Constitutional Convention's deliberations, 
was reported to have replied when asked what kind of government 
the people were getting: ``A republic--if you can keep it.''
    This preface provides a prelude to the overall report. It 
does so by honing in on the initial set of expansive legal 
opinions stating that the president had essential, unreviewable 
powers in innumerable aspects of our nation's legal policy 
during a time of armed conflict. These views began to take root 
shortly after the September 11 terrorist attacks.

            I. The September 25, 2001 War Powers Memorandum

    In the immediate aftermath of the September 11, 2001, 
terrorist attacks, President Bush sought authorization from 
Congress to use military force against those responsible for 
the attacks. There was little question that this use of 
military force was appropriate and would be authorized. 
Simultaneously, however, there were immediate efforts--through 
Vice President Cheney and David Addington--to exploit the 
events of 9/11, and the fact that the country was rallying 
behind the President, to claim for the president broad powers 
that went far beyond any targeted response to the 9/11 attacks.
    The initial White House draft for a proposed congressional 
resolution authorizing the President to use military force, 
submitted to Congress on September 12, 2001, the day after the 
attacks, would have authorized the President not only to use 
military force to attack those responsible for the 9/11 attacks 
but, in addition, ``to deter and pre-empt any future acts of 
terrorism or aggression against the United States.'' \11\ This 
latter purpose, of using force to deter and pre-empt aggression 
has been described as being of ``inescapable elasticity,'' 
because nearly any military action can be asserted or 
rationalized as being taken with this goal in mind.\12\ This 
request to Congress, made within a day or two of the 9/11 
attacks, embodies what became the Administration's ``pre-
emption'' rationale for the use of military force against Iraq 
18 months later; indeed, as will be discussed, it may have been 
intended at that time to justify an attack on Iraq as a 
purported response to the 9/11 attacks.
    According to Senator Tom Daschle, Senate Majority Leader at 
the time, the Bush Administration also sought authority to use 
war powers within the domestic United States. In the form in 
which the resolution came to the Senate floor, it authorized 
the President to ``use all necessary and appropriate force 
against those nations, organizations, or persons he determines 
planned, authorized, committed, or aided the terrorist attacks 
that occurred on September 11, 2001.'' But as Senator Daschle 
recounted:


          Literally minutes before the Senate cast its vote, 
        the Administration sought to add the words ``in the 
        United States and'' after ``appropriate force'' in the 
        agreed-upon text. This last-minute change would have 
        given the president broad authority to exercise 
        expansive powers not just overseas--where we all 
        understood he wanted authority to act--but right here 
        in the United States, potentially against American 
        citizens. I could see no justification for Congress to 
        accede to this extraordinary request for additional 
        authority. I refused.\13\


    Ultimately, neither of these two requests for additional, 
extraordinary authorization--to use military force for pre-
emption and deterrence, and to use military force inside the 
United States--was included in the final version of the Act. As 
signed into law on September 18, 2001, the Authorization for 
the Use of Military Force (AUMF) authorized the President to:


        use all necessary and appropriate force against those 
        nations, organizations, or persons he determines 
        planned, authorized, committed, or aided the terrorist 
        attacks that occurred on September 11, 2001, or 
        harbored such organizations or persons, in order to 
        prevent any future acts of international terrorism 
        against the United States by such nations, 
        organizations or persons.\14\


Congress cited the War Powers Act in authorizing the President 
to use military force for the specified purposes set forth in 
the AUMF.\15\
    Despite the fact that Congress declined to endorse either 
of these additional authorizations in the AUMF per the 
Administration's request, a memorandum prepared by Deputy 
Assistant Attorney General John Yoo \16\ in the Justice 
Department's Office of Legal Counsel, dated September 25, 2001, 
less than a week after the President signed the AUMF into law, 
flatly asserted that the president possessed this authority 
inherently.\17\
    In setting forth the legal basis for the use of military 
force in response to the 9/11 attacks, the memorandum, titled 
``The President's Constitutional Authority to Conduct Military 
Operations Against Terrorists and Nations Supporting Them,'' 
asserted that the president possessed nearly unlimited power in 
any matter that touched war policy in response to the 9/11 
attacks, and explicitly rejected any constitutional role for 
Congress in that sphere of action. Notwithstanding the clear 
intent of Congress in the development of the AUMF, this War 
Powers Memorandum asserted that the president had authority to 
take military action against nations having nothing to do with 
the 9/11 attacks (such as Iraq) under a deterrence/pre-emption 
rationale, as well as authority to use military power inside 
the United States--subject to no congressional limitations on 
his exercise of these powers.
    To fully appreciate the intended reach of that memorandum, 
it is important to remember that at the time it was written, 
numerous voices inside of and close to the Bush Administration 
expressed substantial interest in attacking Iraq as part of the 
response to the 9/11 attacks, even though there was little 
evidence that Iraq had any involvement in those attacks.\18\ 
The 9/11 Commission, for example, in its report summarized its 
interviews with National Security Advisor Condoleezza Rice and 
Secretary of State Colin Powell in which they discussed the 
efforts of others (primarily Deputy Secretary of Defense 
Wolfowitz) to pursue an attack on Iraq:


    According to Rice, the issue of what, if anything, to do 
about Iraq was really engaged at Camp David. Briefing papers on 
Iraq, along with many others, were in briefing materials for 
the participants. Rice told us the Administration was concerned 
that Iraq would take advantage of the 9/11 attacks. She 
recalled that in the first Camp David session chaired by the 
President, Rumsfeld asked what the Administration should do 
about Iraq. Deputy Secretary Wolfowitz made the case for 
striking Iraq during ``this round'' of the war on terrorism.

           *       *       *       *       *       *       *

    Secretary Powell recalled that Wolfowitz--not Rumsfeld--
argued that Iraq was ultimately the source of the terrorist 
problem and should therefore be attacked . . . Powell said that 
Wolfowitz was not able to justify his belief that Iraq was 
behind 9/11. ``Paul was always of the view that Iraq was a 
problem that had to be dealt with,'' Powell told us. ``And he 
saw this as one way of using this event as a way to deal with 
the Iraq problem.'' \19\

    Mr. Yoo started his War Powers Memorandum with a discussion 
of presidential power in general, distinguishing the 
``legislative'' powers of Congress from the ``executive'' 
powers of the president. Under this dichotomy, the president 
was the ``exclusive'' determiner as to the use of military 
force, and Congress had no role in these decisions: 
``[C]ongress's legislative powers are limited to the list 
enumerated in Article I, section 8, while the president's 
powers include inherent executive powers that are unenumerated 
in the Constitution. In that ``the decision to deploy military 
force is `executive' in nature,'' Mr. Yoo asserted, it is 
``exclusively entrusted to the president.'' \20\
    Mr. Yoo characterized Congress's passage of the AUMF as 
merely ``demonstrat[ing] Congress's acceptance of the 
president's unilateral war power in an emergency situation like 
that created by the September 11 incidents.'' \21\ Any 
perceived limitations on executive power set forth in the AUMF 
(in authorizing military force only against those who attacked 
the United States and in rejecting the request that the 
military powers could be used inside the United States) were 
dismissed. Mr. Yoo was explicit in his view that the 
president's power was broader than Congress's authorization, 
and included the power to engage in a ``pre-emptive'' war (the 
subsequent rationale for invading Iraq) against foreign states 
or actors having nothing to do with 9/11, and for which 
military actions had not been authorized by Congress:


    [T]he Joint Resolution [i.e., the AUMF] is somewhat 
narrower than the President's constitutional authority. The 
Joint Resolution's authorization to use force is limited only 
to those individuals, groups, or states that planned, 
authorized, committed, or aided the attacks, and those nations 
that harbored them. It does not, therefore, reach other 
terrorist individuals, groups, or states, which cannot be 
determined to have links to the September 11 attacks. 
Nonetheless, the President's broad constitutional power to use 
military force to defend the Nation, recognized by the Joint 
Resolution itself, would allow the President to take whatever 
actions he deems appropriate to pre-empt or respond to 
terrorist threats from new quarters.\22\


    Further, even though Congress specifically rejected the 
President's request for authorization to use military authority 
within the United States, Mr. Yoo asserted that the president 
had inherent authority to use that power ``at home or 
overseas'':


    Military actions need not be limited to those individuals, 
groups, or states that participated in the attacks on the World 
Trade Center and the Pentagon: the Constitution vests the 
President with the power to strike terrorist groups or 
organizations that cannot be demonstrably linked to the 
September 11 incidents, but that, nonetheless, pose a similar 
threat to the security of the United States and the lives of 
its people, whether at home or overseas.\23\


    Though inside the Justice Department and the White House, 
the AUMF was regarded as a legal irrelevancy, and the Congress 
that enacted it as an impediment to be evaded, Mr. Yoo 
publically praised the AUMF, and stressed its importance, with 
no hint that its limitations were being flouted. Consider, for 
example, his statements in a 2007 interview:


    Q: Is there any controversial element to [the authorization 
obtained from Congress in the AUMF]?
    Mr. Yoo: No. In fact, I don't think so. It's passed by 
large majorities of the House and Senate. And remember the 
Senate [at] this time is controlled by Democrats, and so we 
spent a lot of time negotiating with them about the exact 
language, but the finished product is a consensus document. The 
statute says use all necessary means to stop future terrorist 
attacks and to find those responsible for the past attacks. 
It's an extremely broad statute, but Congress knew what it was 
doing. I know that for a fact because we negotiated very 
closely with them about the wording.\24\


Similarly, it is not without some irony that the Justice 
Department would ultimately rely on the AUMF to claim, when the 
Administration's detention policies later came under legal 
challenge, that they were undertaken pursuant to congressional 
authorization.\25\
    Consistent with the expansive view of presidential war 
powers, when President Bush ordered the use of military force 
against al Qaeda in October 2001, he did not cite the AUMF as 
authority for that action. His letter informing Congress of his 
use of force in Afghanistan stated only that he ``appreciate[d] 
the continuing support of Congress, including its enactment of 
[the AUMF].'' Aside from this passing reference, his letter 
made clear that he was relying solely on his Constitutional 
power as Commander in Chief.


    I have taken these actions pursuant to my constitutional 
authority to conduct U.S. foreign relations as Commander in 
Chief and Chief Executive. It is not possible to know at this 
time either the duration of combat operations or the scope and 
duration of the deployment of U.S. Armed Forces necessary to 
counter the terrorist threat to the United States. As I have 
stated previously, it is likely that the American campaign 
against terrorism will be lengthy. I will direct such 
additional measures as necessary in exercise of our right to 
self-defense and to protect U.S. citizens and interests.
    I am providing this report as part of my efforts to keep 
the Congress informed, consistent with the War Powers 
Resolution and Public Law 107-40. Officials of my 
Administration and I have been communicating regularly with the 
leadership and other members of Congress, and we will continue 
to do so. I appreciate the continuing support of the Congress, 
including its enactment of Public Law 107-40, in these actions 
to protect the security of the United States of America and its 
citizens, civilian and military, here and abroad.\26\


    The assertions of unreviewable presidential power as 
Commander in Chief would be advanced time and again in the 
context of specific presidential actions. For example, in 
connection with the use of military commissions (November 
2001):


          [U]nder 10 U.S.C. 821 and his inherent powers as 
        Commander in Chief, the President may establish 
        military commissions to try and punish terrorists 
        apprehended as part of the investigation into, or in 
        military and intelligence operations in response to, 
        the September 11 attacks. . . . Indeed, if Sec. 821 
        were read as restricting the use of military 
        commissions and prohibiting practices traditionally 
        followed, it would infringe on the President's express 
        constitutional powers as Commander in Chief.\27\


In connection with whether the War Crimes Act could constrain 
the president in the conduct of military activity (January 
2002):


          The [War Crimes Act] regulates the manner in which 
        the U.S. Armed Forces may conduct military operations 
        against the enemy; as such, it potentially comes into 
        conflict with the President's Commander in Chief power 
        under Article II of the Constitution. As we have 
        advised others earlier in this conflict, the Commander 
        in Chief power gives the President the plenary 
        authority in determining how best to deploy troops in 
        the field. Any congressional effort to restrict 
        presidential authority by subjecting the conduct of the 
        U.S. Armed Forces to a broad construction of the Geneva 
        Convention, one that is not clearly borne by its text, 
        would represent a possible infringement on presidential 
        discretion to direct the military.\28\


In connection with whether the federal torture statute could 
constrain the president in his choice of interrogation methods 
(August 2002):


          Even if an interrogation method arguably were to 
        violate [18 U.S.C. 2340A, the felony prohibition 
        against torture], the statute would be unconstitutional 
        if it impermissibly encroached on the President's 
        constitutional power to conduct a military campaign. As 
        Commander-in-Chief, the President has the 
        constitutional authority to order interrogations of 
        enemy combatants to gain intelligence information 
        concerning the military plans of the enemy. . . .Any 
        effort to apply Section 2340A in a manner that 
        interferes with the President's direction of such core 
        war matters as the detention and interrogation of enemy 
        combatants thus would be unconstitutional.\29\


Regarding applicability of the criminal torture statute (March 
2003):


          [F]ederal criminal laws of general applicability do 
        not apply to properly-authorized interrogations of 
        enemy combatants, undertaken by military personnel in 
        the course of an armed conflict. Such criminal 
        statutes, if they were misconstrued to apply to the 
        interrogation of enemy combatants, would conflict with 
        the Constitution's grant of the Commander in Chief 
        power solely to the President.\30\


    It was this expansive view of the president's supreme, 
inherent powers that Vice President Cheney, David Addington, 
and John Yoo ``pushed and pushed''--all the way to the Supreme 
Court.

   II. Critique of John Yoo's Flawed Theory of Presidential Supremacy

    It would be difficult to overstate how profoundly flawed 
the Yoo/Addington/Cheney theories of presidential supremacy are 
vis-a-vis the power of Congress and the courts. At their core, 
these theories rest on a fictionalized version of American 
history--one in which the Revolutionary War was fought to give 
the president near monarchical, uncheckable powers over foreign 
affairs and the use of the military; the Constitution was 
constructed to provide carefully limited powers to Congress but 
unlimited powers to the president; the president, by merely 
claiming that a decision touched on the exercise of military 
power, would enjoy nearly unfettered power to deprive United 
States citizens of liberties protected by the Bill of Rights, 
with the Congress and the courts essentially powerless to stop 
him.
    Mr. Yoo has attempted to dismiss his critics by 
caricaturing them, claiming that they would have Congress 
micro-manage a war's execution;\31\ or that ``the left'' is 
seeking, as part of its ``campaign against the war,'' to have 
every captured terrorist given Miranda warnings.\32\ But his 
notions contradict every reasonable understanding of the 
American experience as colonies, the events leading to the 
Declaration of Independence and the Revolutionary War, the 
intent of the Framers, and the structure and plain text of the 
Constitution.
    Out of the wealth of writings of the Framers, many in 
contexts having nothing to do with war powers, there are a 
number of opportunities for Mr. Yoo to isolate a sentence here 
or there to bolster his radical contentions.\33\ Refuting those 
contentions involves a more thoughtful study of the Federalist 
Papers, the full writings of Alexander Hamilton and James 
Madison, the experiences of the colonists with King George III 
that animated the Framers' concerns regarding executive power, 
and the seminal Supreme Court opinions from the late 1700s and 
early 1800s, to carefully divine the fundamental principles 
that remain relevant more than 200 years later.
    Mr. Yoo's writings have received widespread scholarly 
criticism based on such study. For purposes of this Report, the 
following can be distilled: Mr. Yoo utterly disregarded 
important colonial and revolutionary experience against which 
the Constitution was written--a stance which led him to grossly 
misread the legal principles that have developed in that 
historical context. In particular, he failed to recognize that 
the Constitution explicitly grants Congress broad powers for 
the very purpose of checking the president, including in the 
sphere of war and foreign affairs. His claim that the 
Constitution gives the president vast ``inherent'' powers, 
while Congress's powers are limited to those enumerated, simply 
cannot withstand scrutiny.
    For example, Mr. Yoo's treatment, in the September 25, 2001 
War Powers Memorandum, of Alexander Hamilton's statement on the 
virtues of ``energy in the executive . . . for protection of 
the community against foreign attacks'' to support his 
assertion that the president has exclusive power in the realms 
of war, foreign policy, and national defense provides a useful 
example of his flawed approach. He wrote:


          Our reading of the text [of the Constitution] is 
        reinforced by analysis of the constitutional structure. 
        First, it is clear that the Constitution secures all 
        federal executive power in the President to ensure a 
        unity in purpose and energy in action. ``Decision, 
        activity, secrecy, and dispatch will generally 
        characterize the proceedings of one man in a much more 
        eminent degree than the proceedings of any greater 
        number.'' [The Federalist No. 70 (Alexander Hamilton).] 
        The centralization of authority in the President alone 
        is particularly crucial in matters of national defense, 
        war, and foreign policy, where a unitary executive can 
        evaluate threats, consider policy choices, and mobilize 
        national resources with a speed and energy that is 
        superior to any other branch. As Hamilton noted, 
        ``Energy in the executive is a leading character in the 
        definition of good government. It is essential to the 
        protection of the community against foreign attacks.'' 
        [Id.] This is not less true in war. ``Of all the cares 
        or concerns government, the direction of war most 
        peculiarly demands those qualities which distinguish 
        the exercise of power by a single hand.''' [The 
        Federalist No. 74 (Alexander Hamilton).] \34\


    Mr. Yoo's analysis here is flawed in a number of important 
respects. To begin with, he relies on Federalist No. 70, a 
writing that is primarily devoted to the proposition that the 
Executive should be a single individual rather than several 
individuals or a council. This is the ``unity'' and ``energy'' 
that Hamilton is referencing, and the concern is simply that it 
would be dissipated if the executive powers were to reside in 
more than one person. Federalist No. 70 does not speak to the 
``unity'' of the president's power in military matters or 
foreign affairs powers to the exclusion of Congress; indeed, it 
does not address the allocation of war or foreign affairs 
powers between Congress and the president at all.
    Hamilton specifically discusses the president's war powers 
in Federalist No. 69, the immediate preceding writing, well 
known to all who have dispassionately studied this issue, 
though not even mentioned by Mr. Yoo. In that writing, Hamilton 
stresses the limitations on the president's war power, 
emphasizing that the president is not to have monarchical-type 
powers in the use of the military. Here, as elsewhere in our 
constitutional republic, the ``energy'' required of the 
Executive is to carry out the law as duly enacted, not to 
autocratically make the law.
    Likewise, Hamilton's reference to the direction of a war 
requiring a ``single hand'' is no more than another reference 
to the proposition that the Commander in Chief should be a 
single individual. This understanding is unambiguous from 
examining the context in which the reference was written. A 
preceding sentence in the very paragraph of Federalist No. 69 
from which Mr. Yoo extracts the ``single hand'' sentence 
mentions that the state constitutions place military power with 
the governor--that is, a ``single hand''--and not an executive 
council of some sort. ``Even those of them [states], which have 
in other respects coupled the Chief Magistrate [i.e., the 
governor] with a Council, have, for the most part concentrated 
the military authority in him alone.'' No fair reading of the 
passage from which this phrase is excerpted supports the notion 
that Hamilton was advocating that absolute authority related to 
war should be placed in the hand of the president to the 
exclusion of Congress.
    In Federalist No. 69, Hamilton sought to reassure the 
public, which had so recently suffered under the military 
adventurism and abuses of the British monarchy--by including, 
prominently, a discussion of the military abuses that 
precipitated the Declaration of Independence,\35\ and by 
stressing that the Constitution would constrain the president's 
incentives to exercise military authority by placing that 
authority in check by Congress:\36\

    The President is to be commander-in-chief of the army and 
navy of the United States. In this respect his authority would 
be nominally the same with that of the king of Great Britain, 
but in substance much inferior to it. It would amount to 
nothing more than the supreme command and direction of the 
military and naval forces, as first General and admiral of the 
Confederacy.

           *       *       *       *       *       *       *

    The one [the president] would have a right to command the 
military and naval forces of the nation: The other [the King] 
in addition to this right, possesses that of declaring war, and 
of raising and regulating fleets and armies by his own 
authority. The one [the president] would have a concurrent 
power with a branch of the Legislature in the formation of 
treaties: The other is the sole possessor of the power to 
making treaties . . .\37\


    To this end, the Constitution provided to Congress--not the 
president--nearly each and every pertinent power which bears 
directly on the execution of war, with the sole exception of 
the Commander-in-Chief power. These included the power to:
           ``provide for the common Defence and general 
        Welfare of the United States,''
           ``regulate Commerce with foreign Nations, 
        and among the several States, and with the Indian 
        Tribes,''
           ``define and punish Piracies and Felonies 
        committed on the high Seas, and Offenses against the 
        Law of Nations;''
           ``declare War, grant Letters of Marque and 
        Reprisal, and make Rules concerning Captures on Land 
        and Water,''
           ``raise and support Armies, but no 
        Appropriation of Money to that Use shall be for a 
        longer Term than two Years,''
           ``provide and maintain a Navy,''
           ``make Rules for the Government and 
        Regulation of the land and naval Forces,''
           ``provide for calling forth the Militia to 
        execute the Laws of the Union, suppress Insurrections 
        and repel Invasions,''
           ``provide for organizing, arming, and 
        disciplining the Militia, and for governing such Part 
        of them as may be employed in the Service of the United 
        States, reserving to the States respectively, the 
        Appointment of the Officers, and the Authority of 
        training the Militia according to the discipline 
        prescribed by Congress.'' \38\
    To the same end, the Constitution even provided that 
negotiating treaties and appointing ambassadors--core 
``executive''--type powers in the sphere of foreign affairs--
would require concurrence by the Senate.\39\ And inclusion of 
the Third Amendment in the Bill of Rights, prohibiting the 
quartering of soldiers in private homes, is yet another 
indication of the Framers' concern with the potential for the 
president to abuse his military authority, and of the intent to 
check its exercise.
    Justice Scalia relied on the guidance of the Framers in 
dissenting in the Hamdi case, on the basis that the 
Government's unconstitutional detention of a United States 
citizen in military custody without access to counsel or habeas 
corpus required that the appeals court's contrary holding be 
not merely vacated, but reversed:


    The proposition that the Executive lacks indefinite wartime 
detention authority over citizens is consistent with the 
Founders' general mistrust of military power permanently at the 
Executive's disposal. In the Founders' view, the ``blessings of 
liberty'' were threatened by ``those military establishments 
which must gradually poison its very fountain.'' [The 
Federalist No. 45, (J. Madison).] No fewer than 10 issues of 
the Federalist were devoted in whole or part to allaying fears 
of oppression from the proposed Constitution's authorization of 
standing armies in peacetime. . . . Except for the actual 
command of military forces, all authorization for their 
maintenance and all explicit authorization for their use is 
placed in the control of Congress under Article I, rather than 
the President under Article II. As Hamilton explained, the 
President's military authority would be ``much inferior'' to 
that of the British King:
    It would amount to nothing more than the supreme command 
and direction of the military and naval forces, as first 
general and admiral of the confederacy: while that of the 
British king extends to the declaring of war, and to the 
raising and regulating of fleets and armies; all which, by the 
constitution under consideration, would appertain to the 
legislature.'' [The Federalist No. 69.]
    A view of the Constitution that gives the Executive 
authority to use military force rather than the force of law 
against citizens on American soil flies in the face of the 
mistrust that engendered these provisions.\40\


    Perhaps the most fundamental expression of the Framer's 
intent is that the Constitution allocates to Congress the power 
to declare war. Mr. Yoo attempts to dismiss the Framers' 
decision to give Congress this most central and critical power, 
on which all other war powers rest, by asserting that it is 
meant only to give Congress the right to recognize the 
existence of a war, not the authority to decide that war should 
be waged.\41\ But James Madison refuted any such notion in 
1793:


          Those who are to conduct a war cannot in the nature 
        of things, be proper or safe judges, [of] whether a war 
        ought to be commenced, continued, or concluded. They 
        are barred from the latter functions by a great 
        principle in free government, analogous to that which 
        separates the sword from the purse, or the power of 
        execution from the power of enacting laws.\42\


In a letter to Thomas Jefferson, Madison emphasized that the 
Constitution ``supposes, what the History of all Gov[ernmen]ts 
demonstrates, that the Ex[ecutive] is the branch of power most 
interested in war, & most prone to it. It has accordingly with 
studied care, vested the question of war in the 
Legisl[ature].'' \43\
    One historian has referred to Mr. Yoo's effort to minimize 
the significance of the Declare War Clause of the Constitution 
as an example of his ``fictionalizing of the founding period'':


          Yoo's fictionalizing of the founding period is best 
        exemplified by his lengthy discussion of the August 17, 
        1787, debate at the Constitutional Convention in 
        Philadelphia. The surviving notes of this debate are 
        admittedly garbled, cryptic and open to interpretation. 
        But two things come through with ringing clarity. 
        First, the word ``declare,'' as the Framers used it, 
        had a loose and fluctuating meaning. Second, most 
        participants in the discussion agreed on the importance 
        of limiting the President's war powers by granting 
        important war powers to Congress. This consensus 
        stemmed from a conviction that war is the nurse of 
        executive aggrandizement and that the President, whose 
        powers balloon unnaturally in wartime, has a dangerous 
        incentive to contrive and publicize bogus pretexts for 
        war.\44\


    The historical record could not be more abundantly clear: 
The Framers, concerned that the president would have incentives 
toward military adventurism, carefully constructed the 
Constitution to assure that Congress--on behalf of the people--
would have the power to keep the president's war-making and 
related foreign affairs powers in check. In attempting to make 
a case for his contrary assertions, Mr. Yoo ignores the entire 
sweep of history of the colonial era and the events leading to 
the Revolutionary War and the Constitution, including, 
prominently, the military abuses by the King that precipitated 
that War.
    Mr. Yoo's corollary assertion that the executive power 
vested in the president in Article II of the Constitution 
includes unspecified inherent and implied powers, while the 
legislative power vested in the Congress under Article I is 
limited to the enumerated powers, is likewise unsupportable 
upon examination. Mr. Yoo asserts that:


          Article II, Section 1 provides that ``[t]he executive 
        Power shall be vested in a President of the United 
        States.''. . . This difference in language indicates 
        that Congress's legislative powers are limited to the 
        list enumerated in Article I, section 8, while the 
        President's powers include inherent executive powers 
        that are unenumerated in the Constitution.\45\


    But the notion that the Constitution's enumeration of 
relatively few powers to the president should be read to imply 
expansive unenumerated powers, while the Constitution's 
enumeration of a far greater range of powers to Congress should 
be considered as a general limit on congressional power to act, 
makes little sense--especially where so many of the powers 
given to Congress can readily be seen as specifically intended 
to check presidential power--including in matters of war and 
foreign affairs.
    Article II does, in fact, enumerate several specific 
responsibilities for the president. These powers include being 
Commander in Chief of the Army and Navy, having the authority 
to require the opinion of inferior officers in the Executive 
Branch, granting pardons, making treaties (with advice and 
consent of the Senate), appointing inferior officers, and, 
importantly, ``tak[ing] Care that the Laws be faithfully 
executed.'' If, as Mr. Yoo claims, the Constitution granted 
inherent and unenumerated powers to the president by virtue of 
its vesting the president with the ``executive Power,'' this 
enumeration of specific powers would be unnecessary.
    In an effort to reconcile his contradictory assertions, Mr. 
Yoo posits that ``the enumeration in Article II marks the 
points at which several traditional executive powers were 
diluted or reallocated [to Congress]. Any other, unenumerated 
executive powers, however, were conveyed to the President by 
the Vesting Clause.'' \46\ This is not only the obviously 
strained construct of a sophist, however; it is easily refuted 
on its own terms, by noting that there are certain enumerated 
executive powers that are allocated wholly to the president, 
without any ``dilution''--such as the power to pardon, or to 
employ inferior officers and secure advice from them.
    More broadly, this strained construct overlooks the plain 
text of the Constitution. The Constitution does, indeed, speak 
to the allocation of residual, unenumerated power--to the 
Legislative Branch. Article I, section 8, the ``Necessary and 
Proper Clause,'' gives Congress the power:

          To make all Laws which shall be necessary and proper 
        for carrying into Execution the foregoing Powers, and 
        all other Powers vested by this Constitution in the 
        Government of the United States, or in any Department 
        or Officer thereof. \47\

    While there have been situations in which an unenumerated 
power must reasonably be implied in order to give effect to an 
enumerated power, and there may be others in the future, these 
judgments should be approached with due caution and humility, 
keeping in mind the Constitution's strong structural 
presumption against implicit Executive power.
    Finally, as to Mr. Yoo's efforts to marginalize the courts, 
his assertion that the Constitution does not provide a role for 
the courts in checking the president's war powers is likewise 
flawed and manifestly contradicted by seminal Supreme Court 
decisions from the first decades of the Republic. Finding that 
assertion in a law review article Mr. Yoo had published in 1996 
\48\ prompted Constitutional historian Louis Fisher to question 
how a competent law student editing Mr. Yoo's piece could have 
let it slip through:

          Looking initially at the first two decades, the 
        student would have discovered the decisions of the 
        Supreme Court in Bas v. Tingy (1800), Talbot v. Seeman 
        (1801) and Little v. Barreme (1804), where the Court 
        looked exclusively to Congress for the meaning of the 
        war power. In the latter case, the Court decided that 
        when a collision occurs in time of war between a 
        presidential proclamation and a congressional statute, 
        the statute trumps the proclamation.\49\

    Mr. Fisher noted that Mr. Yoo had ``ignor[ed] Chief Judge 
Marshall's statement in Talbot that the `whole power of war 
being, by the constitution of the United States, vested in 
[C]ongress, the acts of that body can alone be resorted to as 
our guides in this inquiry.' '' \50\
    Mr. Yoo also ignores Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 579 (1952), in which the Court rejected the 
President's claim that he had inherent constitutional authority 
to seize U.S. steel mills to keep them operating in the face of 
a scheduled labor strike. Like Mr. Yoo, the President's lawyers 
had relied on the provisions in Article II stating that ``the 
executive Power shall be vested in a President''; and that the 
president ``shall be Commander in Chief of the Army and Navy of 
the United States.'' Justice Jackson's concurring opinion 
rejected this argument and set out the considerations that 
should go into deciding, consistent with the equilibrium of 
separation of powers granted to the federal government under 
the Constitution, whether the president has a given power, 
emphasizing that an assertion that a power is ``within [the 
president's] domain and beyond control by Congress'' are the 
``circumstances which leave presidential power most vulnerable 
to attack and in the least favorable of possible constitutional 
postures.'' 51,}52

          III. The Need for a Judiciary Committee Staff Report

    Mr. Yoo's flawed theories metastasized into every corner of 
the Bush Imperial Presidency--from the politicization of the 
Justice Department, to defiant signing statements, to unchecked 
regulatory authority; from the arrogantly unilateral approach 
to detention and interrogation of detainees, and warrantless 
surveillance of Americans, to misuse of National Security 
Letters to evade established court oversight procedures; from 
manipulation of pre-war intelligence, to misuse of executive 
privilege and secrecy, to retaliation against critics. In these 
and other areas, we have seen an Administration with a single-
minded determination to advance its aims even at the cost of 
abrogating the powers of the other Branches and abridging the 
rights and liberties of U.S. citizens. The dangers to our 
democracy of this effort to marshal these extraordinary powers 
into the Executive are what has compelled this Committee, over 
the past two years, to uncover and document this effort in all 
its excesses, to begin the work of remedying the damage it has 
done, and to help prevent any similar effort in the future.
         Section 1--Politicization of the Department of Justice

    I feel a special obligation, maybe a special--an additional 
burden coming from the White House to reassure the career 
people at the department and to reassure the American people 
that I'm not going to politicize the Department of 
Justice.\53\--Attorney General-designee Alberto Gonzales, 
January 6, 2005

    I work for the White House, you work for the White 
House.\54\--Attorney General Alberto Gonzales, April 21, 2005

    One of the most significant issues explored by the 110th 
Congress was the politicization of basic government functions 
that had occurred during the Bush Administration. Concern about 
this issue arose as early as 2002, when former White House aide 
John Dilulio complained, ``[t]here is no precedent in any 
modern White House for what is going on in this one: a complete 
lack of a policy apparatus. What you've got is everything, and 
I mean everything, being run by the political arm. It's the 
reign of the Mayberry Machiavellis.'' \55\
    When Hurricane Katrina struck and the Administration's 
deeply inadequate response was left to an unqualified political 
appointee in charge of the Federal Emergency Management Agency, 
the gravity of the problem became tragically clear.\56\ Further 
reports have only heightened concern about the scope and depth 
of the problem, such as the recent charge by the head of the 
non-partisan American Association for the Advancement of 
Science that unqualified political appointees were ``burrowing 
in'' to the civil service and taking over career jobs with 
responsibility for making and administering government science 
policy: ``You'd just like to think people have more respect for 
the institution of government than to leave wreckage behind 
with these appointments,'' this official charged.\57\ 
Additionally, the House Committee on Oversight and Government 
Reform has documented numerous other instances of government 
action being driven by political considerations, such as an 
aggressive White House campaign to deploy government resources 
in support of Republican political candidates and repeated 
examples of White House and Administration officials overruling 
policy recommendations of agency career professionals for 
apparently political reasons.\58\
    It was against this backdrop that a series of disturbing 
reports emerged in early 2007 of federal prosecutors being 
forced from office in suspicious circumstances.\59\ 
Enterprising journalists immediately began collecting and 
analyzing these reports and noted that, in a number of cases 
the prosecutors who had been forced out were highly regarded; 
and that, in some cases, the prosecutors were also handling 
highly sensitive matters, such as political corruption 
investigations of Administration allies.\60\ The controversy 
took on further life when one of the removed United States 
Attorneys, David Iglesias of New Mexico, stated that his 
removal was ``a political fragging, pure and simple.'' \61\
    The Administration's claims that the removed prosecutors 
were poor performers also did little to quell the controversy. 
In very large part, these claims were contradicted by the 
Department's formal evaluations of the removed prosecutors 
which rated their performance as excellent, and in many cases 
home state lawyers and other officials rose to publicly defend 
the prosecutors' reputations.\62\
    When documents surfaced showing that the removals were the 
result of a lengthy process in which United States Attorneys 
were ranked based on their loyalty to the President and in 
which some prosecutors were praised as ``loyal Bushies,'' the 
controversy took on yet another dimension. If some United 
States Attorneys were forced out for taking actions harmful to 
the Administration's political interests, what actions had been 
taken by the ``loyal Bushie'' prosecutors who were allowed to 
keep their jobs? \63\
    Concern that politics may have influenced prosecution 
decisions only mounted when two professors published a study 
indicating that the Bush Administration was seven times as 
likely to investigate Democratic officeholders than Republican 
officeholders.\64\ The issue sharpened when a federal appeals 
court reversed the politically-sensitive conviction of a 
Wisconsin state official named Georgia Thompson and within 
several hours of hearing oral argument ordered Ms. Thompson 
freed immediately from federal prison.\65\ In the context of 
the unfolding controversy over the U.S. Attorney removals, many 
questioned whether Ms. Thompson's prosecution had been 
influenced by political concerns (Ms. Thompson was hired in 
2001 into the civil service by the State of Wisconsin, and had 
been indicted for allegedly awarding a state contract to a 
travel agency whose executives had made political contributions 
to Democratic Governor Jim Doyle), particularly after it was 
revealed that the Republican United States Attorney handling 
the case had been on the firing list for a time but was removed 
soon after he filed this indictment.\66\ When a Republican 
lawyer from Alabama executed a sworn affidavit asserting that 
Karl Rove himself had urged the federal prosecution of 
Democratic Alabama governor Don Siegelman, it was clear that 
the issue of politically-selective prosecutions required 
thorough investigation.\67\
    In addition to reports regarding the suspicious 
circumstances surrounding the removal of federal prosecutors, 
there were also widespread reports concerning the 
politicization of the Civil Rights Division (CRT) at the 
Department of Justice. Historically, the CRT had been viewed as 
the government engine at the forefront of the struggle to 
ensure equal justice under the law--from spearheading the fight 
to end school segregation to promoting racial, ethnic, and 
gender diversity and prosecuting hate crimes. The Division's 
image for vigorous law enforcement, fairness, and impartially 
had been tarnished.
    Over the past eight years, the Division has received 
substantial criticism over charges of politicization in its 
decision-making and personnel hiring process. Beginning in 
2002, the Department came under fire for misusing its authority 
to ensure redistricting plans that favored Republicans.\68\ 
Notwithstanding the Department's assertion that it was 
committed to fully enforcing civil rights laws, attorneys both 
in and out of the Department argued that the Civil Rights 
Division has been less aggressive in bringing discrimination 
cases.
    In particular, staff said the Department eased up on 
several traditional areas of civil rights enforcement,\69\ such 
as housing, voting, employment, and disability discrimination. 
According to a 2006 Boston Globe article, ``the kinds of cases 
the Civil Rights Division is bringing have undergone a shift. 
The division is bringing fewer voting rights and employment 
cases involving systematic discrimination against African-
Americans . . .'' \70\ Richard Ugelow, a 23-year veteran of the 
CRT, said the Division's statutory mandate was conscientiously 
fulfilled in an even-handed and judicious fashion under both 
Republican and Democratic Administrations, until the George W. 
Bush Administration.\71\
    As criticism mounted over the politicization of enforcement 
decisions within the Division, experienced civil rights 
attorneys were driven out of the Department. In 2005, The 
Washington Post reported that nearly 20 percent of the 
division's lawyers had left, in part because of a buyout 
program that some lawyers believe was aimed at pushing out 
those who did not share the Administration's conservative view 
on civil rights laws.\72\ Many veteran litigators complained 
that political appointees had cut them out of hiring and major 
policy decisions, including approvals of controversial GOP 
redistricting plans which career staff had concluded 
discriminated against minority voters.\73\ A Boston Globe 
article suggested that the Bush Administration was quietly 
remaking the Justice Department's Civil Rights Division by 
filling the permanent ranks with lawyers who had strong 
conservative credentials but little experience in civil 
rights.\74\ Documents obtained by the Globe reveal that only 42 
percent of the lawyers hired since 2003, after the 
Administration changed internal policies to give political 
appointees more influence in the hiring process, had civil 
rights experience.\75\ In the two years before the change, 77 
percent of those who were hired had civil rights 
backgrounds.\76\ It is against this backdrop that the Committee 
commenced a series of hearings to investigate whether political 
considerations influenced the Department's civil rights 
enforcement work and hiring practices.

             I. Politicization of the Prosecution Function

            A.  Hiring and Firing of U.S. Attorneys and other 
                    Department Personnel
    On March 1, 2007, House Judiciary Committee Chairman John 
Conyers, Jr. issued the first subpoenas of the newly convened 
110th Congress.\77\ Those subpoenas compelled the public 
testimony of a group of Bush Administration United States 
Attorneys who had been forced from office under suspicious 
circumstances, and ignited a controversy that eventually would 
engulf the Administration. By the time the initial phase of the 
Committee's investigation was complete, the entire leadership 
of the Department of Justice as well as two key political aides 
at the White House had resigned. Reportedly, the President had 
even been compelled to seek the resignation of his closest 
advisor and confidant, Karl Rove, telling him in church one 
Sunday in Summer 2007 ``there's too much heat on you.'' \78\
    The controversy began when reports surfaced around the 
country of United States Attorneys being forced from office 
under suspicious circumstances.\79\ Several Members of Congress 
immediately expressed concern, and Chairman Conyers and along 
with Courts, the Internet, and Intellectual Property 
Subcommittee Chairman Berman quickly wrote to Attorney General 
Alberto Gonzales on January 17, 2007, demanding information 
about the matter.\80\ Mr. Gonzales testified before the Senate 
Judiciary Committee on January 18, 2007, that ``I would, never, 
ever make a change in a United States attorney for political 
reasons or if it would in any way jeopardize an ongoing serious 
investigation. I just would not do it.'' \81\ This assurance 
did not mitigate the significant concern about the firings that 
had emerged, however.
    In February and March 2007, both the House and Senate 
Judiciary Committees held hearings to explore the reasons for 
the firings and to address concerns that political 
considerations may have influenced the Administration's 
decisions. Principal Associate Deputy Attorney General Will 
Moschella testified before the House Judiciary Committee's 
Commercial and Administrative Law Subcommittee on this subject, 
providing both a private briefing and public testimony at a 
March 6, 2007, hearing regarding the reasons for the forced 
resignations.\82\ He claimed that, with one exception, the U.S. 
Attorneys had been fired because of their poor performance. 
Under questioning by Chairman Conyers, Mr. Moschella asserted 
the White House played only a very modest role in the matter, 
stating ``because these are political appointees,'' it would be 
``unremarkable'' to ``send the list to the White House and let 
them know our proposal and whether they agreed with it.'' \83\
    The same day that Mr. Moschella testified, the Subcommittee 
also heard from six of the removed U.S. Attorneys, who appeared 
pursuant to subpoena. These prosecutors described the 
circumstances of their removal, testifying that they were given 
virtually no explanation of why they were being asked to 
resign, and they responded to the charges of poor performance 
that the Administration had subsequently leveled against 
them.\84\ In addition, evidence emerged that two of the U.S. 
Attorneys had received what appeared to be highly inappropriate 
communications from Members of Congress or their staff about 
pending prosecution matters, and that they had disappointed 
those politicians by declining to provide confidential 
information or to take requested action. United States Attorney 
David Iglesias described receiving calls from Senator Pete 
Domenici and Representative Heather Wilson, both Republicans 
from New Mexico, about a public corruption matter that 
allegedly implicated a New Mexico Democrat, and testified that: 
``My sense was that they expected me to take action on these 
widely reported corruption matters, and I needed to do it 
immediately.'' \85\ He continued to explain that after the 
first of these contacts, ``I had a sick feeling in the pit of 
my stomach that something very bad had just happened. And 
within six weeks, I got the phone call from Mike Battle 
indicating that it was time for me to move on.'' \86\ United 
States Attorney John McKay also described receiving a 
``disconcerting'' call regarding his handling of election cases 
from the Chief of Staff to United States Representative Doc 
Hastings, a Republican from Washington.\87\
    This testimony substantially increased concern that the 
firings were politically driven. Further questions were raised 
by testimony that day from another fired U.S. Attorney, Bud 
Cummins, describing a troubling conversation he had with Mike 
Elston, the Deputy Attorney General's Chief of Staff, in which 
Mr. Elston discouraged Mr. Cummins and the other U.S. Attorneys 
from discussing this matter. In written testimony submitted 
after the hearing, Mr. Cummins elaborated on these disturbing 
communications.\88\ Others of the U.S. Attorneys also described 
similar contacts from Mr. Elston.\89\
    To address the questions raised by this testimony, Chairman 
Conyers and Subcommittee Chairwoman Sanchez immediately 
demanded access to documents and interviews with White House 
and Department of Justice personnel at the center of the 
firings.\90\ That demand was given teeth by a vote on March 21, 
2007, of the Commercial and Administrative Law Subcommittee to 
authorize the Chairman to issue additional subpoenas in order 
to compel production of documents and to obtain testimony from 
witnesses such as Karl Rove, Harriet Miers, Monica Goodling, 
and others who appeared to have played key roles.\91\ The need 
for this vote was soon apparent as the Department of Justice's 
voluntary efforts at producing documents were so incomplete 
that the Chairman was compelled to issue a document subpoena to 
Attorney General Gonzales on April 10, 2007.\92\
    The documents obtained from the Department of Justice only 
raised more questions about the firings. Multiple drafts of 
lists of U.S. Attorneys to be fired were produced that had 
passed between the White House and the Department.\93\ One e-
mail addressed the need to find a quick replacement for Carol 
Lam in San Diego, describing ``the real problem we have right 
now with Carol Lam.'' \94\ That e-mail was sent the very day 
Ms. Lam informed senior Justice Department officials that she 
would be executing search warrants in her expanding 
investigation into Republican corruption.\95\ The earliest 
document on the matter identified by the Department was an e-
mail to Kyle Sampson, the Attorney General's Chief of Staff, 
from a member of the White House Counsel's office with the 
subject line ``Question From Karl Rove'' asking whether U.S. 
Attorneys would be replaced.\96\
    Unfortunately, none of these documents clearly established 
how or by whom the particular list of fired U.S. Attorneys was 
assembled. Nor did a marathon appearance by the Attorney 
General's former Chief of Staff Kyle Sampson--who had resigned 
as the scandal broke--before the Senate Judiciary Committee, 
nor did a series of detailed staff interviews of Department of 
Justice personnel. Indeed, the more the Committee learned, the 
less clear the answers became.
    In short order, the Committee's investigation established 
that the so-called ``performance based'' reasons offered by the 
Administration to justify these firings were not true.\97\ The 
U.S. Attorneys were in almost all cases top performers. 
Respected former Deputy Attorney General and conservative Jim 
Comey testified before the Commercial and Administrative Law 
Subcommittee on May 3, 2007, that he deeply respected and 
valued many of these prosecutors.\98\ Interviews of numerous 
Justice Department officials further debunked the reasons given 
to Congress and the public to support these firings.\99\ For 
example, the reasons offered to justify the firing of John 
McKay arose only after he was placed on the firing list. 
Similarly, the notion that David Iglesias was an ``absentee 
landlord''--the reason given to the Committee by the Justice 
Department to justify this firing--did not appear until after 
Mr. Iglesias had already been fired.\100\ In the case of 
Arkansas United States Attorney Bud Cummins, who was asked to 
resign to create a place for Republican political operative Tim 
Griffin, the Administration also provided after-the-fact 
justifications that were not related to the actual decision to 
force his resignation, such as the apparently baseless claim 
that he was a poor performer or the inaccurate claim that he 
had already announced plans to resign.\101\
    While the investigation established that the Department's 
justifications did not appear to be accurate, it only further 
raised suspicion about the real reasons for these firings. 
Indeed, based on the Department of Justice documents and 
interviews obtained by the Committee, it became increasingly 
apparent that a number of the U.S. Attorneys were removed for 
purely political reasons. Bud Cummins, for example, was 
apparently removed at least in part simply to make way for Karl 
Rove's aide Tim Griffin to obtain U.S. Attorney experience to 
enhance his future employment and political prospects.\102\ 
David Iglesias appears to have been removed because of concern 
by New Mexico Republicans about his refusal to bring particular 
vote fraud prosecutions where he had concluded there was no 
appropriate basis to prosecute, and also because he angered New 
Mexico Members of Congress who had hoped he would bring other 
prosecutions ahead of the 2006 elections.\103\ In a number of 
other cases, serious concerns about the role of politics in the 
firings remain.\104\ Furthermore, it was clear that, at least 
in part, whether or not a U.S. Attorney was placed on or 
removed from the firing list depended on whether he or she had 
political support from Administration allies \105\--in this 
way, as the Justice Department Inspector General would 
ultimately explain to the Committee, all the firings appear to 
have been substantially infected by improper political 
considerations:

          Sampson also acknowledged that he considered whether 
        particular U.S. Attorneys identified for removal had 
        political support .  .  . If a U.S. Attorney must 
        maintain the confidence of home state political 
        officials to avoid removal, regardless of the merits of 
        the U.S. Attorney's prosecutorial decisions, respect 
        for the Department of Justice's independence and 
        integrity will be severely damaged, and every U.S. 
        Attorney's prosecutorial decisions will be 
        suspect.\106\

    Attorney General Gonzales appeared before the House and 
Senate Judiciary Committees, yet could not dispel these 
concerns. Mr. Gonzales claimed that he did not place any of the 
U.S. Attorneys on the firing list.\107\ He also repeatedly 
claimed not to remember any of the details regarding the firing 
process or the reasons why these U.S. Attorneys were fired. In 
other significant ways, the Attorney General's testimony 
appeared to conflict with either his prior statements or those 
of his subordinates, including on whether the Deputy Attorney 
General had played a meaningful role in the firing process--at 
one point the Attorney General said that the Deputy was a key 
figure, but at another point he said that the Deputy was not 
significantly involved--and on whether he had spoken to other 
participants in the firing process about their potential 
testimony.\108\ On the later point, he first denied speaking to 
so-called ``fact witnesses'' but later admitted talking over 
the facts of the matter with Monica Goodling, the Justice 
Department's Liaison to the White House.\109\ Ms. Goodling 
testified before the full House Judiciary Committee under 
compulsion of a subpoena and a limited grant of immunity that 
was needed to overcome her invocation of the Fifth 
Amendment.\110\ This was the first time a witness had appeared 
before a Congressional Committee under compulsion of subpoena 
and a grant of limited immunity since 2003 and the only time it 
occurred during the 110th Congress. At this hearing, Ms. 
Goodling acknowledged ``crossing the line'' by considering 
political factors in hiring career prosecutors and immigration 
judges, and in approving Department personnel for important 
``details'' in Department leadership offices.\111\ This 
testimony led to two detailed reports by the Department's 
Offices of the Inspector General and Professional 
Responsibility that found widespread and in some cases unlawful 
consideration of improper political considerations in 
Department hiring for a diverse array of positions including 
Honors program entry level positions, career Assistant United 
States Attorney jobs, summer internships, and details to top 
Department offices and immigration judgeships.\112\
    These findings echoed concerns stated by former Deputy 
Attorney General James Comey, who had previously testified 
before a Judiciary Subcommittee about the harm that would 
result if the Department was found to have taken politics into 
account in hiring federal prosecutors:

          [T]hat concerns me a great deal. I hope that didn't 
        happen. I hope the investigation turns out that it 
        didn't happen. But that is a very serious thing. U.S. 
        Attorneys are political appointees, as the chairman 
        said. They can be terminated for any reason. And I 
        understood that I was a political appointee. But these 
        AUSAs, they are the ones on whom the whole system 
        rests. And we just cannot have that kind of political 
        test .  .  . It's very troubling. I don't know how you 
        would put that genie back in the bottle, if people 
        started to believe we were hiring our AUSAs for 
        political reasons. I don't know that there's any window 
        you can go to get the Department's reputation back if 
        that kind of stuff is going on. \113\

    During her House Judiciary Committee testimony, Ms. 
Goodling also described a very disturbing conversation with 
Attorney General Gonzales in which he appears to have rehearsed 
his version of the facts regarding the firings with Ms. 
Goodling while the congressional investigation of the matter 
was proceeding.\114\ According to Ms. Goodling, she had visited 
Mr. Gonzales' office as the controversy unfolded seeking a 
transfer or change of duties, and Mr. Gonzales instead 
proceeded to go over his view of the relevant events, saying, 
`` `Let me tell you what I can remember.' And he kind of--he 
laid out for me his general recollection.'' Ms. Goodling 
further stated that this conversation with the Attorney General 
made her uncomfortable: ``And I remember thinking at that point 
that this was something that we were all going to have to talk 
about, and I didn't know that it was--I just--I didn't know 
that it was maybe appropriate for us to talk about that at that 
point, and so I just didn't.'' \115\
    Finally, Ms. Goodling confirmed Committee concerns that the 
Administration had made an intentional effort to obscure and 
minimize the role of the White House in the matter, telling 
Members that Deputy Attorney General McNulty had warned her 
away from a Senate briefing on the issue because, if she were 
present, Senators might be encouraged to ask questions about 
the actions of the White House.\116\ While it thus provided 
important information for the Committee's investigation, Ms. 
Goodling's testimony did not, however, explain who had 
identified these U.S. Attorneys for firing or why.
    Eventually, the Committee exhausted all sources of 
information from within the Department of Justice without being 
able to answer key questions about the firings. As Mr. Conyers 
put it in questioning the Attorney General, there was only one 
more place to look for answers: ``The breadcrumbs in this 
investigation have always led to 1600 Pennsylvania Avenue.'' 
\117\ Accordingly, on June 13, 2007, the Chairman issued 
subpoenas for White House documents and for the appearance of 
former White House Counsel Harriet Miers regarding these 
matters.\118\ That same day, Senate Judiciary Committee 
Chairman Leahy issued an identical document subpoena to the 
White House as well as a subpoena for the testimony of Karl 
Rove's aide Sara Taylor. Chairman Conyers also subpoenaed White 
House documents known to be contained on the computer servers 
of the Republican National Committee (RNC), which had been used 
by White House personnel, apparently in an effort to avoid 
federal record keeping requirements.\119\
    On July 12, 2007, the Commercial and Administrative Law 
Subcommittee convened to hear the testimony of Harriet Miers. 
Ms. Miers, however, refused to appear for the hearing, making 
the unprecedented claim that, as a former aide to President 
Bush, she was immune from congressional subpoena.\120\ The 
White House similarly refused to produce a single subpoenaed 
document, claiming that every piece of paper within the White 
House related to the U.S. Attorney firings was covered by 
executive privilege, and refusing even to provide a log 
describing the documents that were being withheld.\121\ The RNC 
also refused to provide most of the subpoenaed documents or a 
privilege log, claiming that White House orders prevented it 
from doing so.\122\
    On July 25, 2007, the full Judiciary Committee voted 22-17 
to recommend that the House of Representatives find Harriet 
Miers and White House Chief of Staff Josh Bolten, as custodian 
of White House documents, in contempt of Congress.\123\ On 
February 14, 2008, the contempt resolution came to the House 
for a vote. In support of the Committee, the full House voted 
to cite Ms. Miers and Mr. Bolten for contempt and refer them 
for criminal prosecution, by an overwhelming vote of 223-
32.\124\ This was the first vote to cite a person for contempt 
of Congress in over 25 years.
    The Administration refused to prosecute the contempt 
however, at the direction of newly-installed Attorney General 
Michael Mukasey, in possible violation of the federal criminal 
contempt statute.\125\ In response, Chairman Conyers used the 
authority granted to him by the House to take the matter to 
Court. On March 10, 2008, the Committee filed a civil action in 
the U.S. District Court seeking a legal ruling that the 
Administration's theories of immunity from subpoena and 
executive privilege were legally unsound.\126\
    On July 31, 2008, United States District Judge John Bates 
granted the Committee's motion for partial summary judgment and 
ruled, as the Committee had argued, that Harriet Miers was not 
immune from congressional subpoena and that she was required to 
appear and testify before the Committee.\127\ Judge Bates 
explained:

          The Executive cannot identify a single judicial 
        opinion that recognizes absolute immunity for senior 
        presidential advisors in this or any other context. 
        That simple yet critical fact bears repeating: the 
        asserted absolute immunity claim here is entirely 
        unsupported by existing case law. In fact, there is 
        Supreme Court authority that is all but conclusive on 
        this question and that powerfully suggests that such 
        advisors do not enjoy absolute immunity. The Court 
        therefore rejects the Executive's claim of absolute 
        immunity for senior presidential aides.\128\

    Judge Bates also ruled that the Administration had no valid 
excuse for refusing to produce non-privileged documents and 
that the Administration was obligated to provide a more 
detailed listing and description of any documents withheld from 
the Committee's subpoena on executive privilege grounds than it 
previously had done.\129\ The matter is now pending in the 
United States Court of Appeals for the District of Columbia, 
and the Judge's order has been stayed during the appeal.\130\
    On September 29, 2008, the Department's Offices of the 
Inspector General and Professional Responsibility released 
their own detailed report on the forced resignation of the U.S. 
Attorneys.\131\ The report confirmed the Committee's initial 
conclusions that the so-called performance-based reasons 
offered by the Administration to justify these firings were in 
large part untrue and that a number of the firings were 
politically motivated, concluding that ``political partisan 
considerations were an important factor in the removal of 
several of the U.S. Attorneys.'' \132\ The Department's report 
further concluded that inaccurate and misleading statements 
were made to the Congress and the public on this matter, and 
that a number of laws may have been violated by both the 
firings and the potential false statements of Administration 
officials.\133\ Finally, the report described a widespread 
refusal by White House witnesses to cooperate with the 
Department's investigation and the refusal of the White House 
to make key documents available, and concluded that because of 
this obstruction, Department investigators ``were unable to 
determine the role the White House played in these removals.'' 
\134\
    Because of the seriousness of their findings and the limits 
on their authority to compel White House cooperation, the 
Department watchdogs called in this report for the appointment 
of a federal prosecutor to continue the investigation and 
evaluate whether criminal charges should be brought.\135\ 
Accepting this recommendation, Attorney General Mukasey 
appointed Norah M. Dannehy, the Acting United States Attorney 
for the District of Connecticut, to continue the 
investigation.\136\ As of this writing, Ms. Dannehy's 
investigation is ongoing.
            B. Selective Prosecution
    Just as the Committee's investigation has revealed that 
some U.S. Attorneys who apparently were not considered 
sufficiently loyal were forced to resign, concerns have also 
been raised that political pressure may have been brought to 
bear on some U.S. Attorneys who were permitted to keep their 
jobs--including the so-called ``loyal Bushies,'' as they were 
described by Kyle Sampson, Chief of Staff to then-Attorney 
General Gonzales.\137\ These concerns were reinforced and 
heightened by an academic study published by Professors Donald 
Shields and John Cragan in February 2007 and updated for 
presentation at an October 23, 2007, joint hearing of the 
Crime, Terrorism, and Homeland Security and Commercial and 
Administrative Law Subcommittees that found federal prosecutors 
during the Bush Administration have investigated Democratic 
officeholders far more frequently than their Republican 
counterparts.\138\ The updated findings--based on a sample of 
820 reported cases and investigations--determined that during 
the Bush Administration, 80% of federal public corruption 
investigations have involved Democratic officeholders and only 
14% have involved Republican officeholders.\139\ Based on these 
data, the study's author testified that the Administration's 
investigations of Democrats are ``highly disproportionate,'' 
and that there was ``less than one chance in 10,000'' that the 
over-representation of Democrats was by chance, concluding that 
selective prosecution of Democrats must have occurred.\140\
    The Committee's investigation generated bipartisan concern 
about politically motivated prosecutions. During the summer of 
2007, the Committee received a bipartisan petition signed by 44 
former state Attorneys General calling for action.\141\ At the 
Subcommittees' joint hearing, Ronald Reagan and George H. W. 
Bush Attorney General Richard Thornburgh stated his concern 
about ``apparent political prosecution'' and warned that 
citizens ``may no longer'' have ``confidence that the 
Department of Justice is conducting itself in a fair and 
impartial manner without actual political influence or the 
appearance of political influence.'' \142\
    Against this background, Committee staff investigated 
numerous allegations of selective prosecution that have 
surfaced around the country. In the early stages of its work, 
the Committee focused particularly on three cases where 
concerns about politically-motivated prosecutions have been 
especially intense: the Georgia Thompson case in Milwaukee, 
Wisconsin; the prosecution of the Democratic former Governor of 
Alabama Don Siegelman; and the criminal prosecution of 
Allegheny County coroner Cyril Wecht in Pittsburgh, 
Pennsylvania. Staff has also examined several cases brought 
against a group of judges and a practicing attorney in Jackson, 
Mississippi, including Mississippi Supreme Court Justice Oliver 
Diaz and trial attorney Paul Minor. Each of these matters 
presented at best a questionable exercise of prosecutorial 
discretion, and they often involved charges that appear to have 
elevated routine political fund-raising or similarly mundane 
conduct into aggressive federal criminal charges. As stated 
above, other cases of alleged selective prosecution have also 
been reported from states such as Georgia, Illinois, and 
elsewhere. The facts and circumstances of these prosecutions, 
as revealed by a detailed staff investigation, are summarized 
in a thorough report prepared for Chairman Conyers by the 
Committee's majority staff that was released on April 17, 
2008.\143\
    Even since that report, however, additional instances of 
potentially politicized decision-making within the Department 
have continued to arise, such as charges that the Department 
failed to fully prosecute corruption within the politically 
controversial Interior Department Oil and Gas leasing program, 
and that politically-connected Interior Department officials 
pressured Main Justice officials to overrule local prosecutors 
and keep the Department out of civil whistleblower cases 
involving that same program.\144\ In one such case, the local 
U.S. Attorney complained on the record of being overruled ``at 
the highest levels'' of the Department and the career civil 
chief handling the matter reportedly suggested to the 
whistleblower's lawyer that ``the case `had political stuff 
written all over it.' '' \145\
    The case of former Alabama Governor Don Siegelman has 
raised the greatest controversy and seen the greatest level of 
investigative activity in this area. The House Judiciary 
Committee obtained sworn testimony on the case, through the 
September 14, 2007, deposition under oath of a Republican 
lawyer from Alabama, Dana Jill Simpson, who testified that she 
heard extensive discussion of Karl Rove pressing the Justice 
Department into prosecuting Don Siegelman.
    As noted in Section 5, the Committee has actively pursued 
testimony from Karl Rove, issuing a subpoena for his testimony 
on May 22, 2008. When Mr. Rove refused to appear in response to 
subpoena, the Subcommittee and then the full Committee by a 20-
14 vote recommended that the full House of Representatives cite 
Mr. Rove for contempt of Congress.
    On the Wecht case, the United States Attorney responsible 
for the prosecution, Mary Beth Buchanan, was interviewed on the 
record by Committee majority and minority staff in connection 
with the broader U.S. Attorney purge investigation, although 
the Department (and Committee minority staff) objected to 
questions regarding the Wecht matter and thus she was prevented 
from testifying.\146\
    On October 23, 2007, the Crime, Terrorism, and Homeland 
Security Subcommittees held a joint hearing on the subject, and 
heard from witnesses on the Siegelman and Wecht cases, 
including former Attorney General Richard Thornburgh and former 
United States Attorney Doug Jones, as well as one of the 
authors of the statistical analysis discussed above.\147\ As 
quoted above, former Attorney General Thornburgh testified 
about the very disturbing facts of the Wecht case and stated 
his view that it appeared that politics had affected the 
prosecution decision. Former U.S. Attorney Jones testified 
about facts he learned while representing Don Siegelman in 
Alabama.\148\ Mr. Jones explained that at one point the 
investigation had essentially closed, but just as the 2006 
gubernatorial election primary season arrived, it heated back 
up. When Mr. Jones asked about this, he was told that the order 
came down from ``Washington'' to give the case a top-to-bottom 
review, which resulted in an entire new investigation being 
launched under circumstances that greatly troubled Mr. 
Jones.\149\
    The Committee also aggressively pursued access to documents 
needed for this investigation. On July 17, 2007, Chairman 
Conyers, Commercial and Administrative Law Subcommittee 
Chairwoman Sanchez, and Committee Members Artur Davis and Tammy 
Baldwin sent a letter to then-Attorney General Gonzales seeking 
documents regarding the Department's handling of the Siegelman, 
Wecht, and Thompson cases, including materials that would 
explain the Department's charging analysis and decision-making 
process.\150\ Two months later, on September 4, 2007, the 
Department responded by refusing to produce any 
``predecisional'' or ``deliberative'' documents regarding any 
of these cases, relying on a statement of the Department's 
claimed ``longstanding'' position made in a 2002 letter 
authored by Alberto Gonzales when he served as White House 
Counsel.\151\ The Department did provide a small number of 
documents (less than 30 pages) regarding the Thompson case, 
which it considered a ``closed'' matter about which information 
could be somewhat more freely shared, and offered to make 
United States Attorney Biskupic available for an untranscribed 
briefing on that case.\152\ The Department refused, however, to 
provide any non-public information or documents regarding the 
Siegelman and Wecht cases, asserting that it could not provide 
such information to the Committee on ``open'' matters.\153\
    Chairman Conyers, Chair Sanchez, and Representatives Davis 
and Baldwin responded by further clarifying the scope of the 
Committee's information request and explaining that the 
Department's refusal to provide any information on ``open'' 
cases or any ``deliberative'' materials was inconsistent with 
past practice and Department precedent.\154\ In fact, Congress 
repeatedly has obtained prosecution memoranda and other 
deliberative materials of the Department regarding both open 
and closed criminal matters during past congressional 
investigations.\155\ The Administration even made available to 
Congress the very prosecution memoranda that were at issue in 
the 2002 letter authored by Mr. Gonzales on which the 
Department relied.\156\
    Negotiations regarding the possible production of documents 
continued between Committee staff and the Department's Office 
of Legislative Affairs. Some progress was made on the Thompson 
case, and a provisional agreement was reached in which 
Committee majority and minority staff members were permitted to 
review some relevant documents on Department premises, 
including interview memoranda and internal Department 
correspondence, as well as a detailed pre-indictment analysis 
akin to the prosecution memo, as a predicate for an 
untranscribed briefing by Mr. Biskupic (offered without 
prejudice to a subsequent transcribed interview or hearing if 
deemed necessary). In December 2007, Mr. Biskupic provided a 
confidential briefing on the Thompson case and related matters 
to Committee majority and minority staff during which he denied 
having any political motives in bringing the prosecution, and 
claimed that he had not even known that he was under 
consideration to be removed from his position as a U.S. 
Attorney by Department leaders.
    Unfortunately, the Department largely stonewalled all 
further requests for information and has completely denied 
access to non-public materials regarding the Siegelman or Wecht 
matters. Accordingly, on June 27, 2008, Chairman Conyers issued 
a subpoena for these documents. Despite extensive negotiations, 
that subpoena has not been fully complied with and the 
Siegelman and Wecht documents have been withheld.\157\ On 
December 10, 2008, Chairman Conyers wrote to the Attorney 
General demanding that these documents--and others subject to 
outstanding Committee subpoenas and requests--be appropriately 
preserved during the transition to a new administration.\158\
    Recent developments have only heightened concern about 
these cases. On March 27, 2008, the federal appeals court in 
Atlanta, Georgia ruled that former Alabama Governor Siegelman 
should be released from prison pending his appeal, having 
concluded that ``Siegelman has satisfied the criteria set out 
in the statute, and has specifically met his burden of showing 
that his appeal raises substantial questions of law or fact'' 
regarding the viability of his conviction.\159\ And more 
recently, new information has surfaced describing additional 
acts of apparent misconduct by the Siegelman prosecution team. 
On November 7, 2008, Chairman Conyers wrote the Attorney 
General transmitting troubling documents provided by a 
Department whistleblower suggesting that the Siegelman jury had 
improperly communicated with the prosecution during trial, 
contacts that were never disclosed to the defense or the 
judge.\160\ Chairman Conyers also transmitted documents 
suggesting that the Republican-connected U.S. Attorney, who had 
purportedly recused herself from the case at the insistence of 
the defense, had in fact communicated information and a 
litigation strategy recommendation to the active members of the 
team. Commentators have expressed extensive concern about this 
new information, such as law professor Carl Tobias who said 
that the e-mails raise ``legitimate questions'' about the 
prosecution's conduct.\161\
    Developments in the Wecht case have also only reinforced 
the Committee's concerns. In early April, after a two-month 
trial during which the prosecution presented over forty 
witnesses (the defense rested without putting on any evidence, 
arguing that the prosecution had not proved its case), and 
following ten days of deliberations, the jury announced that it 
was deadlocked and the presiding judge declared a mistrial. The 
prosecution immediately sought a retrial, a decision that 
defense lawyers criticized as having been made without due 
deliberation and before the reasons for the hung jury had been 
assessed.\162\
    Subsequently, a member of the jury revealed that ``[t]he 
majority of the jury thought he was innocent,'' and the 
Pittsburgh Post-Gazette editorialized that the case ``added up 
to a big zero'' and that it would be a ``travesty'' for the 
prosecution to continue and would ``tarnish the integrity of 
the U.S. Attorney's office.'' \163\ Indeed, on learning that a 
retrial was planned, the jury foreman wondered if the 
prosecution had any additional evidence that the jury had not 
seen, and stated that ``as the case went on, my thoughts were 
this was being politically driven.'' \164\ Other jurors 
apparently also had become concerned during trial that politics 
had played a role in the prosecution.\165\ Local alarm was only 
further heightened by news that the prosecution had dispatched 
FBI agents to visit members of the jury.\166\ Further 
demonstrating the bipartisan nature of public concern about the 
course of this prosecution, on April 16, 2008, a group of 
Republican and Democratic citizens of the Western District of 
Pennsylvania wrote to Attorney General Mukasey and U.S. 
Attorney Buchanan urging that the snap decision to retry Dr. 
Wecht be reconsidered.\167\
    On April 17, 2008, along with the release of the Committee 
majority staff's report on this subject, Chairman Conyers, 
Chair Sanchez, and Representatives Davis and Baldwin requested 
a full investigation of these cases by the Department's Offices 
of Professional Responsibility and Inspector General, and the 
Office of Professional Responsibility has launched such an 
investigation, which remains pending as of this writing.\168\

            II. Politicization of the Civil Rights Division

            A. Factual Background
    The Civil Rights Division (CRT) was created as part of the 
Civil Rights Act of 1957 which sought to protect the voting 
rights of African Americans who suffered widespread and 
pervasive discrimination, particularly in the Deep South. In 
the years that followed the passage of the Act, the Division's 
narrow mandate was expanded to include the enforcement of civil 
rights statutes aimed at eliminating discrimination in 
employment, housing, schools, lending institutions, public 
accommodations, and federally assisted programs. The Division's 
mandate was also extended beyond race discrimination to include 
discrimination based on national origin, immigration status, 
religion, sex, disability, and family status.\169\
    During the Bush Administration, a series of news reports 
and complaints surfaced concerning the selective enforcement of 
civil rights statutes by the Justice Department. From 2002 to 
2007, the CRT was embroiled in controversy surrounding the 
politicization of the policy decisions affecting its hiring 
practices, the preclearance of discriminatory redistricting 
plans, and the limited number of discrimination cases brought 
throughout the Division, particularly in the areas of voting, 
housing, and employment. Within that five year period, there 
were consistent allegations that the Division had strayed from 
its core mission of enforcing federal civil rights statutes 
aimed at eliminating discrimination and ensuring equal 
treatment and equal justice under law.\170\
    In a 2007 report submitted to the United Nations Committee 
on the Elimination of Racial Discrimination, the American Civil 
Liberties Union (ACLU) concluded that racial and ethnic 
discrimination and inequality remain ongoing and pervasive in 
the United States, and that the U.S. Government has not done 
enough to address these important problems. The report cited 
the Civil Rights Division's enforcement work since 2001 as an 
example of the government's failure to take proactive steps to 
end racial discrimination in the United States.\171\ The ACLU 
argued that ``the Justice Department's Civil Rights Division 
has abandoned much of the traditional civil rights enforcement 
work it once pursued. For instance, the Voting Section 
encouraged states to limit, rather than expand, the 
franchise.'' \172\
    In 2007, Bob Kengle, former Deputy Chief of the Voting 
Section of the Civil Rights Division and a Justice Department 
veteran, said that he left the Division because he reached his 
``personal breaking point.'' He explained, ``in short, I lost 
faith in the institution as it had become. This was not the 
result of just one individual, such as Brad Schlozman, although 
he certainly did his share and then some. Rather, it was the 
result of an institutional sabotage after which I concluded 
that as a supervisor I no longer could protect line attorneys 
from political appointees, keep the litigation I supervised 
focused on the law and the facts, ensure that attorneys place 
civil rights enforcement ahead of partisanship, or pursue cases 
based solely on merit.'' \173\
    Kengle's concerns were confirmed in a report released in 
January 2009 by the U.S. Department of Justice Office of the 
Inspector General (OIG) and the Office of Professional 
Responsibility (OPR), which investigated allegations of 
politicized hiring and other improper personnel actions in the 
Civil Rights Division.\174\ The report focused primarily on the 
actions of Deputy Assistant Attorney General Bradley Schlozman, 
who played a major role in hiring candidates for career 
positions who shared Republican political views. The report 
chronicled numerous instances between 2001 and 2007 in which 
Mr. Schlozman eliminated qualified applicants who were not 
Republicans or who had perceived ties to liberal organizations. 
Details of e-mails and interviews with department officials 
revealed that Mr. Schlozman referred to candidates as ``libs'', 
``commies'', and ``pinkos.'' \175\ The report also highlighted 
one incident where Mr. Schlozman e-mailed a racially charged 
remark made by John Tanner, then the Voting Section Chief with 
the comment ``Y'all will appreciate Tanner's response.'' \176\ 
In that incident, Mr. Tanner sent an e-mail to Mr. Schlozman 
asking him to bring coffee to a meeting both were scheduled to 
attend. Mr. Schlozman replied asking Mr. Tanner how he liked 
his coffee. Mr. Tanner's response was, ``Mary Frances Berry 
style--black and bitter.'' Ms. Berry, an African-American, was 
the Chairperson of the U.S. Commission on Civil Rights from 
November 1993 until late 2004.
    In a separate incident, Andrew Lelling, who at the time was 
an Assistant U.S. Attorney in the Eastern District of Virginia, 
contacted former Assistant Attorney General Wan Kim, then 
Deputy Assistant Attorney General, to express concerns about a 
conversation he had with Mr. Schlozman. Mr. Lelling told Mr. 
Kim that he had called Mr. Schlozman to recommend a colleague 
at the U.S. Attorney's Office who was interested in a position 
in the Criminal Section of the Civil Rights Division. Mr. 
Lelling told Mr. Kim that Mr. Schlozman had asked Mr. Lelling, 
``Well, is this guy conservative?'' or something to that 
effect. Mr. Lelling said he had replied, ``I don't know. I 
don't think so. I'm not sure,'' and Mr. Schlozman told him, 
``Then he probably won't be hired.'' \177\
    The report cited many other examples where Mr. Schlozman 
used a candidate's political affiliation as a litmus test to 
decide who would be hired in the Civil Rights Division. In a 
January 30, 2004, e-mail to Mr. Kim, Mr. Schlozman declined an 
invitation to join Mr. Kim for lunch, noting, ``Unfortunately I 
have an interview at 1 with some lefty who we'll never hire but 
I'm extending a courtesy interview as a favor.'' \178\ 
According to the OIG report, an applicant Mr. Schlozman 
recruited for a career attorney position in the Division said 
Mr. Schlozman told him that there were too many liberal, 
Democratic trial attorneys in the Voting Section and that he 
was trying to ``remedy'' the situation by identifying 
conservative applicants and selecting them outside the official 
application process.\179\
    The report found that Mr. Schlozman not only considered 
political and ideological affiliations when hiring, but also in 
transferring and assigning cases to career attorneys in the 
sections he supervised, in violation of Department policy and 
federal law.\180\ According to Appellate Section Chief Diana 
Flynn, Mr. Schlozman referred to the Appellate Section lawyers 
hired during prior administrations as ``Democrats'' and 
``liberals,'' and said they were ``disloyal,'' could not be 
trusted, and were not ``on the team.'' Ms. Flynn said Mr. 
Schlozman pledged to move as many of them out of the Division 
as he could to make room for the ``real Americans'' and 
``right-thinking Americans'' he wanted to hire.\181\ The report 
concluded that Mr. Schlozman's superiors, Assistant Attorneys 
General R. Alexander Acosta, Wan Kim and Principal Deputy 
Assistant Attorneys General Sheldon Bradshaw and J. Michael 
Wiggins, had indications of potential problems in Schlozman's 
actions and judgment, and that each had sufficient information 
about Schlozman's conduct to have raised red flags warranting 
closer supervision of him.\182\ Further, the report noted that 
Messrs. Kim, Wiggins, and Bradshaw were informed of specific 
instances that should have raised concerns that Mr. Schlozman 
was using impermissible political considerations in making 
hiring decisions. Yet, despite the warning, they took no action 
to investigate, bring the matter to the attention of their 
supervisors, or change Brad Schlozman's role in hiring for the 
Division.\183\
    Notably, the report also concluded that Mr. Schlozman gave 
false statements to Congress when he denied factoring politics 
into his hiring decisions. The report quoted several of Mr. 
Schlozman's e-mail and voice mail messages to colleagues and 
underlings, as he talked about reshaping the political makeup 
of the Civil Rights Division and doing away with ``pinko'' and 
``crazy lib'' lawyers and others he did not consider ``real 
Americans.''
    The findings of the OIG report were referred to the U.S. 
Attorney's Office for the District of Columbia in March 2008. 
However, the U.S. Attorney's Office declined to bring criminal 
charges against Mr. Schlozman in January 2009.
    Notwithstanding declining caseloads and intense criticism 
regarding the adequacy of the Department's enforcement work, 
the Bush Administration maintained that the Civil Rights 
Division continued robust and vigorous enforcement of civil 
rights laws. A close examination of the Division's docket, 
however, revealed a dramatic shift in the kinds of cases the 
Civil Rights Division litigated. The division brought very few 
voting rights and employment cases involving systematic 
discrimination against African-Americans and other minorities, 
but instead focused on cases alleging reverse discrimination 
against whites and religious discrimination against Christians. 
According to Department statistics, prosecutions for the kinds 
of racial and gender discrimination crimes traditionally 
handled by the division declined 40 percent over the past five 
years. Dozens of CRT attorneys found themselves handling 
appeals of deportation orders and other immigration matters 
instead of civil rights cases.\184\ Shortly after it became 
public that political appointees within the Division approved a 
Georgia law requiring photo identification to vote over the 
strong objections of career professionals, the Voting Section 
leadership instituted a new rule requiring that staff members 
who review Section 5 voting submissions limit their written 
analysis to the facts surrounding the matter, and expressly 
prohibited the career staff from making recommendations as to 
whether or not the Department should impose an objection to the 
voting change.\185\
    Much of the controversy surrounding the Voting Section 
centered around its enforcement of the Voting Rights Act of 
1965.\186\ This statute contains two sections that are key to 
the Department's ability to combat racial and language based 
discrimination in the election process: Section 5 and Section 
2. Section 5 requires jurisdictions with a history of 
discrimination in voting to preclear, or get federal approval 
of, any new voting practices or procedures and to show that 
they do not have a discriminatory purpose or effect. 
Preclearance may be granted by the Attorney General or the 
Federal District Court for the District of Columbia. All voting 
changes submitted to the Department of Justice are reviewed and 
evaluated by the Voting Section, and if the Section finds that 
the submitting authority has failed to meet its burden of 
proving the absence of a discriminatory purpose or effect, the 
Justice Department can interpose an objection to prevent the 
implementation of the voting change. Section 2 is another 
critical enforcement tool the Department uses to eliminate 
discrimination in voting. Section 2 is a national prohibition 
on practices and procedures that deny individuals an equal 
opportunity to participate effectively in the political process 
on the basis of race or membership in a language minority 
group.\187\ Section 2 is enforced through litigation brought by 
the Justice Department's Voting Section or private litigants.
            B. Committee Actions
    With this background, Chairman Conyers and Constitution 
Subcommittee Chairman Jerrold Nadler held a series of hearings 
focusing on enforcement, voting rights, fair housing, and 
employment discrimination. Because the greatest evidence of 
politicization occurred in voting, the Committee focused most 
of its oversight efforts on the enforcement work of the Voting 
Section, holding a total of seven hearings relating to the 
subject in the 110th Congress.
    On March 7, 2007, Chairman Conyers held a full Committee 
hearing on ``Protecting the Right to Vote: Election Deception 
and Irregularities in Recent Federal Elections.'' In his 
opening statement Chairman Conyers explained that, ``there is 
no more important issue that comes before this Committee, this 
Congress or this Nation than protecting the right to vote. Our 
democracy is premised on the notion of one person, one vote. It 
is the keystone right of our nation, and without it, all of the 
other rights and privileges of our people would quickly become 
meaningless.''
    During his testimony, Ralph Neas, president of People for 
the American Way, explained that voter suppression techniques 
were used throughout the 2006 mid-term federal election to 
deceive voters into changing their votes, to vote on the wrong 
day, or to go to the wrong polling place. Some schemes 
attempted to convince citizens that voting will be difficult or 
even dangerous, or simply annoy them so much that they would 
stay home from the polls in disgust at the whole process.\188\ 
For example, thousands of Latino voters in Orange County, 
California, received letters warning them in Spanish that, ``if 
you are an immigrant, voting in a federal election is a crime 
that can result in incarceration.'' \189\ In Maryland, 
``democratic sample ballot'' fliers were disseminated in 
predominately African-American neighborhoods which deceptively 
identified Democratic candidates as Republicans.\190\ Virginia 
voters received robo calls from a so-called ``Virginia 
Elections Commission'' informing them--falsely--that they were 
ineligible to vote. Virginia voters were also told that they 
couldn't vote if they had family members who had been convicted 
of a crime.\191\ Commenting on the Department's voting 
enforcement record, then-Senator Obama argued that a private 
right of action provision was needed in the Deceptive Practices 
and Voter Intimidation Prevention Act ``to allow individuals to 
go to court to stop deceptive practices while they are 
happening. That is important, given how uninterested the 
current Justice Department has proved to be in cracking down on 
election-season dirty tricks.'' \192\
    On March 22, 2007, Chairman Nadler and Chairman Conyers 
held a hearing to evaluate the enforcement work of the Civil 
Rights Division. Witnesses included Wan Kim, former Assistant 
Attorney General for the Civil Rights Division (2005-2007), Joe 
Rich, former Voting Section Chief for the Civil Rights Division 
(1999-2005), and Leadership Conference on Civil Rights (LCCR) 
President Wade Henderson. This hearing, ``Changing Tides: 
Exploring the Current State of Civil Rights Enforcement within 
the DOJ,'' coincided with the release of a report by the 
Citizens' Commission on Civil Rights, ``The Erosion of 
Rights.'' \193\
    The Commission's report provided detailed accounts of new 
policies implemented within the Civil Rights Division during 
the Bush Administration that led to a rapid decline in civil 
rights enforcement despite staff recommendations and complaints 
of discrimination. It focused on four distinct areas of the 
Division: Voting Section, Employment Section, Criminal Section, 
and personnel decisions. Of the sections highlighted, the 
Voting Section was by far the most controversial because of 
highly questionable legal and policy positions by the 
Department in key voting rights matters that appeared to 
undertaken to benefit Republicans.\194\ Many current and former 
lawyers in the section argued that senior officials exerted 
political influence in many of the sensitive voting-rights 
cases the unit handled from 2001 to 2005 including two in 
Georgia,\195\ one in Mississippi \196\ and a Texas \197\ 
redistricting plan orchestrated by Congressman Tom DeLay in 
2003.\198\ ``Erosion of Rights'' contends that fair and 
vigorous enforcement of Section 5 was compromised because of 
partisan political concerns. The report concluded that these 
actions damaged the Section 5 process, undermined the 
credibility of the Justice Department and the Civil Rights 
Division, and resulted in discriminatory voting changes being 
precleared.\199\ In explaining the level of politicization that 
had seeped not only into voting rights enforcement, but also 
into personnel matters, Mr. Rich testified that he ``was 
ordered to change standard performance evaluations of attorneys 
under his supervision to include critical comments of those who 
had made recommendations that were counter to the political 
will of the front office and to improve evaluations of those 
who were politically favored.'' \200\
    Further still, some in the civil rights community have 
argued that the Bush Administration has undertaken a series of 
actions through regulations, litigation, and budgetary policy 
that illustrate a pattern of hostility toward core civil rights 
values and signal a diminished commitment to eradicating 
discrimination in this country.\201\ In his testimony, Wade 
Henderson, the Executive Director of the LCCR, said, ``over the 
last six years, we have seen politics trump substance and alter 
the prosecution of our nation's civil rights laws in many parts 
of the Division. We have seen career civil rights division 
employees--section chiefs, deputy chiefs, and line lawyers--
forced out of their jobs in order to drive political agendas. 
We have seen whole categories of cases not being brought, and 
the bar made unreachably high for bringing suit in other cases. 
We have seen some outright overruling of career prosecutors for 
political reasons,\202\ and also many cases being `slow 
walked,' to death.'' \203\
    On October 30, 2007, the Subcommittee held a hearing 
focusing exclusively on issues in the Voting Section. One of 
the key witnesses was John Tanner, then head of the Voting 
Section. Among other things, Mr. Tanner was questioned 
concerning his previous controversial comments defending the 
Department's decision to overrule staff in favor of preclearing 
the Georgia voter ID law. Mr. Tanner had explained that 
``primarily elderly persons'' are the ones adversely affected 
by such laws, but ``minorities don't become elderly the way 
white people do: They die first.'' So, anything that 
``disproportionately impacts the elderly, has the opposite 
impact on minorities,'' he added.\204\ After questioning Mr. 
Tanner about the factual basis of his comments, Congressman 
Artur Davis said, ``[w]ell, this is the problem. Once again, 
you engaged in an analysis without knowing the numbers . . . 
You are charged with enforcing the voting rights laws in this 
country. And if you are not fully informed about things that 
you're talking about and pontificating about, if you're basing 
your conclusions on stereotypes and generalizations, that 
raises a question in the minds of some of us whether or not you 
are the person in the best position to make these choices.'' 
\205\
    Toby Moore, former Geographer and Social Science Analyst of 
the Voting Section of the CRT assigned to the controversial 
Georgia photo voter identification matter, testified that ``the 
eagerness to conform analysis to decisions already made that 
characterized the Section's efforts in Ohio in 2004 and in 2003 
enforcement generally led to a Georgia voter ID investigation 
in the summer of 2005 in which a determined effort was made to 
suppress evidence of retrogression, manufacture evidence in 
support of voter ID laws generally, and to punish those of us 
who disagreed. To me, it represents the nadir of Voting Section 
enforcement, worse even than the Section's action in the 
Mississippi redistricting case.'' \206\
    In describing the impact of the Voting Section's actions in 
the Georgia case, Laughlin McDonald, ACLU Voting Rights Project 
Director, testified that ``the revelations of partisan bias in 
the Civil Rights Division Voting Section's decision making 
create a lack of confidence and trust in the section.'' He 
explained that political bias undermines the Section's 
effectiveness and calls into question the Section's decisions 
about what to investigate and what kind of cases to bring. He 
also pointed out that ``the section's recent action is a clear 
signal that partisanship can trump racial fairness, and thus 
increases the likelihood that minorities will be manipulated to 
advance partisan goals.'' \207\
    Julie Fernandes, former Counsel to the Assistant Attorney 
General for Civil Rights, testified:

          [S]ince 2001, the Civil Rights Division has brought 
        two cases alleging voting discrimination against 
        African Americans. One, in Crockett County, Tennessee, 
        was authorized under the previous Administration, with 
        the complaint finally filed in April 2001. The other 
        was in 2006 in Euclid, Ohio. No cases involving voting 
        discrimination against African Americans have been 
        brought in the Deep South throughout the entire 
        Administration. Not one. The only case brought alleging 
        racial discrimination in the Deep South was a case to 
        protect White voters in Mississippi. Of course, White 
        voters are protected by the Voting Rights Act. But it 
        strains the imagination to believe that the only 
        example of racial discrimination in voting in the Deep 
        South for the past 6 years was a case involving White 
        voters.\208\

    Several other enforcement actions that appeared to be 
influenced by political considerations were addressed during 
the hearing. In a letter dated April 15, 2005, Hans von 
Spakovsky, then-Counsel to the Assistant Attorney General for 
the Civil Rights Division, informed the Arizona Secretary of 
State that, under the Help America Vote Act (HAVA), voters 
without identification can be denied provisional ballots.\209\ 
This position taken by Mr. von Spakovsky reversed existing 
Department of Justice positions on HAVA provisional ballot 
requirements and ultimately was rescinded. Furthermore, the 
April 15, 2005, letter appeared to be issued in a manner 
inconsistent with Justice Department and Election Assistance 
Commission (EAC) protocol.\210\ Another example of apparently 
unwarranted and restrictive voting rights intervention by the 
Department raised at the hearing was the agency's unsolicited 
October 29, 2004, letter to an Ohio federal judge, advising 
that challenges to voters' eligibility in Ohio are legally 
permissible,\211\ despite the fact that such challenges to Ohio 
voters would appear to constitute caging, a discriminatory 
voter suppression tactic that is prohibited by Section 2 of the 
Voting Rights Act \212\ and a Republican National Party Consent 
Decree.\213\
    On February 26, 2008, the Subcommittee held a hearing to 
further examine the enforcement actions and priorities of the 
Department of Justice. At this hearing, Hilary O. Shelton, 
Director, Washington Bureau of the National Association for the 
Advancement of Colored People (NAACP), testified that ``the 
number of voter suppression cases brought by the current 
Department of Justice does not reflect the number of complaints 
of people across the Nation who feel their rights have been 
violated.'' Mr. Shelton also said that ``the NAACP, as well as 
representatives from almost every other civil and voting rights 
organization, all report an increase in the number of 
Americans--primarily racial and ethnic minority Americans--who 
say that they have been denied their Constitutional right to 
register and vote.'' \214\
    Lorriane C. Minnite, Ph.D., Assistant Professor of 
Political Science, testified that voter fraud is rare,\215\ and 
questioned the efficacy and fairness of the Department vote 
fraud investigations. She also questioned the purpose of the 
Department of Justice's Ballot Access and Voting Integrity 
Initiative, pointing out that the program has turned up very 
little individual voter fraud. Ms. Minnite found that, three 
years after the Department of Justice Ballot Access and Voting 
Integrity Initiative was launched in 2002, government records 
show that only 24 people were convicted of or pled guilty to 
illegal voting between 2002 and 2005, an average of eight 
people a year.\216\ This includes 19 people who were ineligible 
to vote, five because they were still under state supervision 
for felony convictions, 14 who were not U.S. citizens, and five 
people who voted twice in the same election.\217\
    Policy modifications and changes to the Federal Prosecution 
of Election Offenses Manual, published in May 2007, and which 
provides guidelines regarding voter fraud prosecutions, was 
also a topic during the hearing. In a letter admitted into the 
hearing record, J. Gerald Hebert, Executive Director and 
Director of Litigation of the Campaign Legal Center, discussed 
the changes to the manual.\218\ Mr. Hebert, a 20-year veteran 
of the CRT Voting Section, argued that the changes to the 
manual ``appear to open the door for partisan abuse of election 
law enforcement by political appointees at DOJ.'' He explained 
that the manual removed the precautionary measures instituted 
to prevent partisan abuse of election law enforcement by 
political appointees in the timing of investigations or 
indictments, the pursuit of isolated instances of individual 
voter fraud (as compared to mass cases of voter suppression), 
and the types of pre-election investigations to be avoided by 
prosecutors.
    On May 14, 2008, the Commercial and Administrative Law and 
Crime, Terrorism, and Homeland Security Subcommittees held a 
joint hearing to examine two matters that raised serious 
questions about the Department's approach to allegations of 
voter suppression. The hearing showed how the Department's 
aggressive effort to prosecute questionable cases of so-called 
voter fraud stands in marked contrast to its far more passive 
approach to allegations that voting rights have been 
suppressed. At the outset of the hearing, the Administration's 
disengagement with these issues was clearly shown when it 
refused to send a witness to present the Department's view of 
the matters despite Chairman Conyers' request that they do 
so.\219\
    The first matter explored at the hearing was the effort by 
Republican political operatives to jam telephones for ride-to-
the polls services offered by the New Hampshire Democratic 
Party and the Manchester Fire Fighters Association on Election 
Day 2002. A federal judge found that this scheme was an 
``insidious'' effort ``to suppress as many votes for Democratic 
candidates as possible by sabotaging efforts to get citizens 
with transportation problems rides to polling places--citizens 
who the conspirators thought would largely vote for Democratic 
candidates.'' \220\
    The hearing explored evidence that the Justice Department's 
investigation of this matter was limited to low-level party 
operatives, that leads pointing to the involvement of senior 
White House officials were not fully investigated, and that 
Administration officials obstructed and the delayed the 
progress of the prosecution effort to benefit Republican Party 
interests. For example, witness Paul Twomey who represented the 
New Hampshire Democratic Party in a civil suit related to the 
matter testified that ``the slow pace of this case has been 
occasioned by delays caused by individuals at the highest 
levels of the Department of Justice and that all decisions had 
to be reviewed by the Attorney General himself.'' \221\ He 
further testified that evidence leading to the White House did 
not appear to have been fully investigated, even though 
``[d]uring the course of the criminal conspiracy, [plot 
organizer] James Tobin made literally hundreds of calls to the 
political office of the White House.'' \222\ Mr. Twomey also 
described how ``the Republican National Committee had paid 
several million dollars for the [plotters'] legal fees'' and 
had done so ``in consultation with the White House.'' \223\ One 
of the key implementers of the scheme, Republican operative 
Allen Raymond, who later wrote the book ``How To Rig An 
Election'' documenting his role in this and other Republican 
vote suppression tactics, also testified and stated his view 
that the senior most officials and attorneys of the Republican 
Party apparatus would likely have known about a scheme such as 
this.\224\
    The second matter explored at the May 14th hearing was the 
Department's apparent failure to take meaningful action in 
response to reports that Republican-connected voter 
registration firm named Sproul and Associates had engaged in 
serious misconduct. The allegations included declining to 
register Democratic voters and actually destroying registration 
cards collected from Democratic voters in several states prior 
to the national elections in 2004.\225\ Evidence of such 
misconduct was widely broadcast in the month prior to those 
elections, when a television news program in Nevada obtained 
destroyed registration cards from the trash and a former Sproul 
employee described in an affidavit being trained to register 
only Republicans and to tear up Democratic registrations in 
that state.\226\ An investigative reporter in Las Vegas 
obtained destroyed registration cards and contacted the 
registrants who reported being ``shocked to learn'' that their 
forms had not been filed.\227\
    At the hearing, a letter to Committee staff from Holly 
McCullough, a library manager in Pittsburgh, Pennsylvania was 
entered into the record. Ms. McCullough described her contacts 
with Sproul employees and how she had received complaints from 
her staff that Sproul employees would ask patrons who they 
planned to vote for in the 2004 presidential election and then 
would only register people who said that they planned to vote 
to re-elect President Bush.\228\ Ms. McCullough further 
reported that, although she was easily located by the media 
seeking information about the activities of Sproul, she had 
never been contacted by any state or federal law enforcement 
investigator about the matter. Ms. McCullough further stated 
that, as a result of Sproul's misconduct, she would no longer 
allow any voter registration activities to occur at her 
facilities.\229\
    On July 24, 2008, the Constitution Subcommittee held a 
hearing titled ``Lessons Learned from the 2004 presidential 
Election.'' The hearing examined the voting problems that were 
encountered during the 2004 presidential election in order to 
glean key lessons that could be applied to prevent recurring 
voting problems before the 2008 general election. The hearing 
also included a discussion about proactive measures that could 
be taken by the Department of Justice, Election Assistance 
Commission, and local and state election officials to 
effectively address potential voting problems. Two key 
witnesses who testified during the Subcommittee hearing were J. 
Kenneth Blackwell, former Secretary of State of Ohio, who 
appeared only after the Subcommittee voted to authorize a 
subpoena in February 2008,\230\ and Hans von Spakovsky, 
Visiting Scholar at the Heritage Foundation, who had 
significant involvement in the Department's decision to approve 
the Georgia photo identification requirement.
    Mr. Blackwell was the focus of many of the questions during 
the hearing. He gained national prominence for his dual roles 
as Chief Elections Official of Ohio and co-chair of the 
``Committee to re-elect George W. Bush'' during the 2004 
election. Allegations of conflict of interest and voter 
disenfranchisement led to the filing of at least sixteen 
election related lawsuits naming Mr. Blackwell as a 
defendant.\231\ Until this point, he had refused to respond to 
a series of letters from Chairman Conyers and other Members of 
the Committee concerning the 2004 election, as described in a 
102-page report produced in 2005 at Mr. Conyers' request.\232\ 
In questioning Mr. Blackwell, Congresswoman Debbie Wasserman 
Schultz noted, ``what is disturbing to me is it appears as 
though you spent more time as secretary of state in the 2004 
election reducing or suppressing voter participation as opposed 
to expanding it.'' She cited several examples: ``you created 
new standards on the use of provisional ballots which 
disfranchised thousands of voters in predominantly Democratic 
or minority areas. You rejected thousands of new voter 
applications simply because they were not printed on the 
correct weight of paper.'' \233\
    In discussing suggestions to prevent voting problems during 
the 2008 election, Gilda Daniels, former Deputy Voting Section 
Chief, testified, ``In 2004, in my estimation, DOJ's 
perspective was too retrospective and not preventive. An 
inordinate amount of resources went into election day 
activities. In order to protect the fundamental right to vote, 
the government must act prior to election day.'' \234\ 
Expounding on the steps that had been taken by the Department, 
Mr. von Spakovsky stated that the Bush Administration officials 
met with civil rights organizations. Mr. Hebert countered that 
the Department should move beyond meeting. He said, ``I would 
agree that it's important obviously for the Justice Department 
to meet with civil rights organizations and voting groups and 
others. But you have to do more than just meet. You have to 
agree on what the procedures are going to be at the Department 
of Justice when you encounter a real problem, say like vote 
caging.'' \235\
    Finally, on September 24, 2008, the Subcommittee on the 
Constitution and the Committee on House Administration's 
Subcommittee on Elections held a joint oversight hearing to 
examine federal, state, and local efforts to prepare for the 
2008 election. Several state and local election officials and 
voting rights experts testified. Witnesses acknowledged the 
significant increase in the number of voters--more than 3.5 
million new voters, up 64% from the same period four years ago. 
The witnesses discussed the proactive and preemptive steps that 
will and should be taken by federal, state, and local official 
to address election administration and voting rights issues 
likely to arise during the 2008 presidential election in order 
to ensure a fair election. Witnesses addressed a range of 
issues, from early voting, machine allocation and military 
voting and provisional ballots and voter suppression.
    In urging the Department to take proactive, preemptive 
steps to prepare for the upcoming election Paul Hancock, 
Partner, K&L Gates and former Justice Department Acting Deputy 
Assistant Attorney General for Civil Rights, cautioned that 
there is no ``re-run'' in presidential elections. ``So when we 
talk about preparing for this election, what we need to do is 
have a procedure in place, a program in place, for identifying 
the problems before the day of the election and correcting 
those problems before the day of the elections, or at least 
promptly as the election is taking place.'' \236\
    More recently, in the run up to the 2008 presidential 
election, Chairman Conyers and other members took action in 
response to apparent efforts to suppress votes by targeting 
groups such as Association of Community Organizations for 
Reform Now (ACORN) which work to register and turn out voters. 
Republican animosity towards ACORN was well-known to the 
Committee from the investigation into the U.S. Attorney 
removals, as David Iglesias appears to have been targeted for 
removal in part because he resisted Republican pressure to 
bring a frivolous indictment of the group.\237\ And Bradley 
Schlozman--who replaced U.S. Attorney Todd Graves in Missouri 
after Mr. Graves resisted a flawed lawsuit proposed by Mr. 
Schlozman that unduly burdened the right to vote--himself 
brought several highly questionable (and widely publicized) 
indictments against ACORN workers in the days before the 2006 
elections.\238\
    Thus, when a supposed nationwide investigation into ACORN 
was launched and improperly leaked in the weeks just before the 
2008 presidential election, Chairman Conyers immediately 
questioned the Attorney General and the Director of the FBI on 
the matter, writing that ``it is simply unacceptable that such 
information would be leaked during the very peak of the 
election season'' and pointing out that the leak likely 
violated Department regulations as well as ``valuable 
Department traditions regarding the need for cautious and 
sensitive handling of election-related matters during the run 
up to voting (or, as here, while early voting is underway).'' 
\239\ Several days later, Chairman Conyers and Subcommittee 
Chairs Nadler and Sanchez wrote again on this subject, decrying 
reports of violence and intimidation against election workers 
around the country, including threats that had been made 
against ACORN after the leak of information about the supposed 
investigation of the group.\240\ In response to these 
communications, the Department has referred the matter to its 
Offices of the Inspector General and Professional 
Responsibility.\241\
    The Committee continued to keep a watchful eye on charges 
of voter suppression around the country in the run up to the 
2008 elections. For example, Chairman Conyers along and 
Subcommittee Chairman Nadler sent a letter to Attorney General 
Mukasey on September 18, 2008 requesting an investigation into 
reports that the Republican Party in Macomb County, was 
planning to use a list of foreclosed homes as a basis to 
challenge voters and block them from participating in the 
November 2008 election.\242\ In addition, on October 29, 2008, 
Chairman Conyers and Subcommittee Chairmen Nadler and Bobby 
Scott wrote a letter to the Department to inform them of and 
call for an appropriate investigation of a fraudulent flyer 
claiming that state law required Democrats to vote on 
Wednesday, November 5, 2008.\243\

                             III. Findings


Politicization of the Prosecution Function

    1. United States Attorneys were removed from office based 
on improper partisan political considerations. In some cases, 
the removals were based on overt political reasons such as a 
desire to satisfy Republican operatives or politicians or 
displeasure with the U.S. Attorney's approach to politically 
sensitive matters such as voter fraud prosecutions. In other 
cases, the role of politics was more indirect, such as where 
U.S. Attorneys were removed to create an open job for a favored 
Republican political operative.
     Former United States Attorney David Iglesias 
appears to have been removed from his position for improper 
political reasons, including complaints by New Mexico 
Republicans regarding his handling of voter fraud and political 
corruption cases.\244\
     Former United States Attorney Todd Graves appears 
to have been removed from his position for improper political 
reasons, including his refusal to intervene in a political 
disagreement among Missouri Republicans.\245\ Mr. Graves may 
also have been removed because his approach to voting cases was 
not helpful to Republican political interests.\246\
     Former United States Attorney John McKay may have 
been removed from his position for improper political reasons, 
such as Republican complaints about his refusal to bring voter 
fraud charges in connection with the extremely close 2004 
gubernatorial election in Washington state.\247\
     Former United States Attorney Bud Cummins appears 
to have been improperly removed to create a position for former 
Karl Rove aide Tim Griffin to fill. Some other firings remain 
unsatisfactorily explained (such as the removal of former 
United States Attorney Dan Bogden) and may also have been 
intended to create openings for young Republicans to enhance 
their future employment and political prospects.\248\
    2. Because the Administration and its allies have refused 
to cooperate with either the congressional investigation or the 
Department of Justice's own internal investigation into this 
matter, critical facts about the reasons for the firings or the 
broader issues of the politicization of the Department of 
Justice remain unknown. While the Committee's investigation was 
extensive (as was the Inspector General's), thousands of 
documents remain hidden inside the White House and no White 
House officials have provided sworn testimony about their role 
in these matters. The Justice Department too has refused to 
provide subpoenaed documents on this subject. Examples of the 
stonewalling by the Administration on this subject include the 
following:
     Karl Rove, Harriet Miers, and other White House 
figures refused to speak with the Committee or with other 
investigators and White House documents have been 
withheld.\249\
     Senator Domenici and his staff have refused to 
speak with Department investigators.\250\
     The Republican National Committee has refused to 
produce subpoenaed documents about the firings.\251\
     The Justice Department has refused to produce 
documents about the Siegelman case or other instances of 
alleged selective prosecution.\252\
    3. The removal of some of the United States Attorneys may 
have violated the law. While the full facts are not yet known, 
it appears that at least some of the removals may have violated 
federal laws against public corruption, fraud, and obstruction 
of justice.
     The pressure placed on David Iglesias to make 
charging and prosecutorial decisions based on partisan 
political considerations may have violated federal statutes 
regarding obstruction of justice (18 U.S.C. Sec. 1503), wire 
fraud (18 U.S.C. Sec. 1343), provision of honest services (18 
U.S.C. Sec. 1346), and conspiracy (18 U.S.C. Sec. 1349, 18 
U.S.C. Sec. 371).\253\
     Removing federal prosecutors such as David 
Iglesias, John McKay, or Todd Graves based on their refusal to 
use their public offices to affect elections may have violated 
the criminal Hatch Act's prohibition on retaliation against 
employees who refuse to aid a political campaign (18 U.S.C. 
Sec. 606).\254\
     Removing federal prosecutors such as David 
Iglesias, John McKay, or Todd Graves to influence the outcome 
of future elections or as part of a broader-based effort to 
hinder citizens' exercise of their constitutional right to vote 
may have violated the civil Hatch Act (5 U.S.C. Sec. 7332) and 
the federal criminal prohibition on depriving citizens of the 
constitutional rights under color of law (18 U.S.C. 
Sec. 242).\255\
    4. Then-Attorney General Alberto Gonzales made inaccurate 
or misleading statements to Congress and the public, including: 

     Alberto Gonzales' statement that he ``was not 
involved in seeing any memos, was not involved in any 
discussions about what was going on'' appears to have been 
false.\256\ Just a few months before he made this statement, 
Mr. Gonzales participated in the key meeting on November 27, 
2006, where he received a memorandum detailing the plan and 
personally approved the removals.\257\
     At least one of Alberto Gonzales' contradictory 
statements about the role of the Deputy Attorney General, some 
of which were given under oath, appears to have been 
false.\258\ At one point, Mr. Gonzales testified that the 
Deputy's views were of paramount importance to him in approving 
the removals and at another point he testified that the Deputy 
was not sufficiently involved in the matter.\259\
     Mr. Gonzales' testimony that ``I would never, ever 
make a change in a United States attorney position for 
political reasons . . . I just would not do it'' was false; at 
a minimum, it is clear that U.S. Attorney Bud Cummins was 
removed so that a former aide to Karl Rove could bolster his 
political resume with service as a U.S. Attorney.\260\
     Mr. Gonzales' testimony about his conversations 
with Senator Domenici in late 2005 and early 2006 concerning 
David Iglesias appears to have been false, as these 
conversations do not appear to have involved complaints by 
Senator Domenici about Mr. Iglesias' job performance and 
instead appear to have focused on the Senator's belief that Mr. 
Iglesias should be given more resources.\261\
     Mr. Gonzales' statement that he did not discuss 
the matter with potential witnesses appears to have been false 
in light of Monica Goodling's testimony that he reviewed his 
recollections with her.\262\
     Mr. Gonzales' statements to Department 
investigators that he had ``no present recollection'' of 
approving a sweeping order delegating personnel authority to 
Kyle Sampson and Monica Goodling may have been inaccurate in 
light of his testimony before the House Judiciary Committee on 
May 10, 2007, describing the creation of this order in which 
Mr. Gonzales' did not profess any lack of recollection on the 
subject.\263\
    5. Then-Deputy Attorney General Paul McNulty and then-
Principal Associate Deputy Attorney General Will Moschella made 
several inaccurate or misleading statements, including: 
     Testimony by Deputy Attorney General McNulty and 
Principal Associate Deputy Attorney General Moschella that 
minimized the role of the White House in the U.S. Attorney 
firings was misleading.\264\ The White House did not play 
merely a perfunctory or ``final approval'' role at the end of 
the process in Fall 2006, as Mr. McNulty and Mr. Moschella 
testified, but was substantially involved in the matter from 
its inception in early 2005. Indeed, White House officials 
Harriet Miers and Karl Rove appear to have originally proposed 
the idea of removing U.S. Attorneys and Ms. Miers' office 
received multiple drafts of the firing list over a two year 
period. In addition, while these documents have not yet been 
made available, the Department of Justice has confirmed that 
internal White House documents discuss the plan, including 
``specific U.S. Attorneys who could be removed.'' \265\
     Mr. McNulty and Mr. Moschella's failure to inform 
the Committee of Sen. Domenici's October 2006 call to Mr. 
McNulty regarding Mr. Iglesias was a significantly misleading 
omission, because that call appears to have played a material 
role in the decision to remove Mr. Iglesias from his 
position.\266\
    6. Former Chief of Staff to the Attorney General Kyle 
Sampson made inaccurate or misleading statements to Congress 
and the public, including: 
     Kyle Sampson's written statement to Senate counsel 
that only 8 U.S. Attorneys were removed from their positions in 
2006 was false.\267\ In fact, 9 U.S. Attorneys were removed in 
2006: Daniel Bogden, Paul Charlton, Margaret Chiara, Bud 
Cummins, Todd Graves, David Iglesias, Carol Lam, John McKay, 
and Kevin Ryan.\268\
     Kyle Sampson's claim that the removals were based 
on poor performance appears to have been false.\269\ Most of 
the removed U.S. Attorneys were top performers as reflected in 
their Department performance evaluations.\270\
     Kyle Sampson's testimony regarding the addition of 
David Iglesias to the removal list as part of a ``group'' of 
United States attorneys added together at the end of the 
removal process was inaccurate, as there was no such group 
added at the end and David Iglesias was placed on the list on 
his own, not as part of a larger set of additions.\271\
     The Department's written statement, drafted by Mr. 
Sampson and reviewed by White House officials, that Karl Rove 
had no role in the firing of Bud Cummins appears to have been 
false, as Mr. Rove appears to have been involved in the 
matter.\272\
     Kyle Sampson's repeated professed lack of memory 
was also highly suspicious given the seriousness of the issues 
and the length of time he worked on the replacement 
process.\273\
    7. Then-Chief of Staff to the Deputy Attorney General 
Michael Elston made apparently inaccurate or misleading 
statements, including: 
     Mr. Elston made statements about telephone calls 
he placed to the removed U.S. Attorneys that may have been 
inaccurate or misleading. The U.S. Attorneys who received these 
calls considered them threatening or intimidating, but Mr. 
Elston denied this.\274\
     Mr. Elston's testimony about a November 1, 2006, 
e-mail listing the names of U.S. Attorneys that he transmitted 
to Kyle Sampson may have been incomplete or inaccurate. Mr. 
Elston testified that he was not actually recommending that any 
of the U.S. Attorneys named on this e-mail be removed from 
their positions, but sitting U.S. Attorney Mary Beth Buchanan 
has accused Mr. Elston of lying to her and, by extension, to 
the Committee about this subject.\275\
     Several of the inaccurate or misleading statements 
described above may have violated the federal False Statements 
statute, 18 U.S.C. Sec. 1001. A criminal investigation of this 
matter is underway, and press reports indicate that at least 
one Department official has been referred to a grand jury.\276\
    8. White House officials played a significant role in the 
removal of United States Attorneys and subsequent inaccurate or 
misleading statements on this subject. Although the full extent 
of this involvement is not known due to the Administration's 
withholding of documents and testimony, it is clear even on the 
current record that the White House played a significant role 
in instigating, planning, and executing the removal of U.S. 
Attorneys.
     The idea to remove U.S. Attorneys originated with 
Karl Rove and Harriet Miers in early 2005, when Mr. Rove asked 
attorneys in the White House Counsel's office if U.S. Attorneys 
would be ``selectively replace[d]'' and Ms. Miers raised the 
idea of replacing all 93 U.S. Attorneys at that time.\277\
     White House officials reviewed multiple drafts of 
the firing list between early 2005 and December 2006.\278\
     White House officials in the legal, political, and 
communications offices gave final approval for the 
removals.\279\
     White House officials participated in developing 
and approving the Department of Justice's response to the 
controversy that arose after the removals.\280\
     White House documents subpoenaed by the Committee 
discuss ``the wisdom of [the] proposal, specific U.S. Attorneys 
who could be removed, potential replacement candidates, and 
possible responses to congressional and media inquiries about 
the dismissals.'' \281\
     Because the President and former White House 
officials have refused to cooperate with either the 
congressional investigation or the Department of Justice 
investigation into this matter, critical facts about the role 
of White House officials in this matter remain unknown.\282\
    9. Other Department personnel appear to have been hired or 
fired based on improper or unlawful partisan political 
considerations. After Monica Goodling testified before the 
House Judiciary Committee that she had ``crossed the line'' in 
basing hiring decisions on political considerations, the 
Department of Justice's Offices of the Inspector General and 
Professional Responsibility concluded that there had been 
extensive consideration of such factors for a range of career 
and non-political Department posts in violation of Department 
policies and regulations, and in some cases contrary to federal 
statutes.
     Improper or unlawful partisan political 
considerations were taken into account in the selection of 
summer interns and Department Honors program attorneys.\283\ 
The problem was most severe in 2006 when, according to the 
Department's Offices of the Inspector General and Professional 
Responsibility, ``the Screening Committee inappropriately used 
political and ideological considerations to deselect many 
candidates.'' \284\
     Improper or unlawful partisan political 
considerations were taken into account in the hiring of career 
prosecutors and immigration judges, and the selection of 
detailees for placement in senior Department offices.\285\ In 
particular, Monica Goodling ``improperly subjected candidates 
for certain career positions to the same politically based 
evaluation she used on candidates for political positions, in 
violation of federal law and Department policy'' and 
``considered political or ideological affiliations when 
recommending and selecting candidates for other permanent 
career positions, including a career SES position in the 
Executive Office for U.S. Attorneys (EOUSA) and AUSA positions. 
These actions violated federal law and Department policy, and 
also constituted misconduct.'' \286\
     This conduct was harmful to the operations of the 
Department ``because it resulted in high-quality candidates for 
important details being rejected in favor of less-qualified 
candidates. For example, an experienced career terrorism 
prosecutor was rejected by Goodling for a detail to EOUSA to 
work on counter terrorism issues because of his wife's 
political affiliations. Instead, EOUSA had to select a much 
more junior attorney who lacked any experience in counter 
terrorism issues and who EOUSA officials believed was not 
qualified for the position.'' \287\
     ``[T]he most systematic use of political or 
ideological affiliations in screening candidates for career 
positions occurred in the selection of [Immigration Judges] who 
work in the Department's Executive Office for Immigration 
Review (EOIR).'' \288\
    10. Partisan politics may have influenced federal criminal 
prosecutions around the country. A number of federal criminal 
matters such as the politically-charged prosecutions of former 
governor of Alabama Donald Siegelman, former Wisconsin civil 
servant Georgia Thompson, former Allegheny County Coroner Cyril 
Wecht, Mississippi Supreme Court Justice Oliver Diaz and 
Mississippi trial attorney Paul Minor may have been tainted by 
politics, but the House Judiciary Committee has been refused 
access to information needed to reach conclusions on this 
issue.\289\

Politicization of the Civil Rights Division and Voting Rights 
        Enforcement

    11. Partisan politics appears to have influenced Justice 
Department pre-clearance determinations to the detriment of 
minority voters. 
     There are three specific voting cases where 
politics appear to have influenced the enforcement decisions of 
the Department: (i) In 2001, the Justice Department 
unnecessarily delayed its determination on whether a 
Mississippi redistricting plan met the requirements of the 
Voting Rights Act which resulted in the implementation of a 
redistricting that favored the Republican Party and harmed 
minority voters; (ii) in 2003, CRT career professional staff 
(attorneys and analysts) concluded that the Texas congressional 
redistricting plan spearheaded by Rep. Tom DeLay violated the 
Voting Rights Act because it illegally diluted the votes of 
blacks and Hispanics in order to ensure a Republican majority 
in the state's congressional delegation, however Justice 
Department political appointees overruled the lawyers and 
approved the plan; and (iii) in 2005, CRT staff attorneys and 
analysts who reviewed a Georgia voter-identification law 
recommended the law's rejection, because they determined that 
the law was likely to discriminate against black voters, 
however, political officials \290\ overruled the team's 
recommendation.\291\
     In its report, ``The Erosion of Rights,'' the 
Citizens Commission on Civil Rights found that current and 
former Justice Department attorneys stated that political 
considerations led senior officials to delay the Mississippi 
redistricting case and overrule the staff in the Georgia photo 
ID and Texas redistricting case.\292\
     The Department's analysis in these cases was 
illustrated by then-Voting Right Division Chief John Tanner who 
said in defending Department's decision to approve the Georgia 
Photo ID voting law that ``minorities don't become elderly the 
way white people do: They die first.'' \293\
     After overruling the career professionals in the 
Voting Section in both the Georgia and Texas matters, the 
Justice Department barred staff attorneys from offering 
recommendations in major Voting Rights Act cases, marking a 
significant change in the procedures meant to insulate such 
decisions from politics.\294\
    12. Partisan politics appears to have led to the decline of 
discrimination cases involving voting rights brought by the 
Justice Department. 
     In 2007, former senior Civil Rights Division 
attorneys testified that ``since 2001, the Civil Rights 
Division has brought only two cases alleging voting 
discrimination against African Americans. One, in Crockett 
County, Tennessee, was authorized under the previous 
Administration, with the complaint finally filed in April 2001. 
The other was in 2006 in Euclid, Ohio. No cases involving 
voting discrimination against African Americans voters have 
been brought in the Deep South throughout the entire 
Administration.'' \295\
     During the Bush Administration, the Department 
took a series of positions adverse to the right of minority 
voters, such as advising states to deny provisional ballots to 
voters without IDs, and asking a federal judge in Ohio shortly 
before the 2004 presidential election to permit challenges to 
minority voters based on ``caging'' tactics banned in other 
jurisdictions.\296\
     The Department modified the Federal Prosecution of 
Election Offenses manual in a manner that increases the 
opportunity for partisan political consideration to influence 
an election by allowing voting fraud investigations and 
prosecutions cases to be initiated immediately before an 
election, and allowing such cases to be brought on an isolated 
rather than a systemic basis.\297\
     Political appointees in the Department's Civil 
Rights Division also took unprecedented steps to change 
performance evaluations of career attorneys based on political 
considerations. Joe Rich, a former Voting Rights Chief from 
1999 to 2005, testified that he ``was ordered to change 
standard performance evaluations of attorneys under his 
supervision to include critical comments of those who had made 
recommendations that were counter to the political will of the 
front office and to improve evaluations of those who were 
politically favored.'' \298\
     Section 2--Assault on Individual Liberty: Detention, Enhanced 
   Interrogation, Ghosting and Black Sites, Extraordinary Rendition, 
 Warrantless Domestic Surveillance, and National Security and Exigent 
                                Letters

    [T]he state of war is not a blank check for the President 
when it comes to the rights of the nation's citizens.\299\--
Supreme Court Justice Sandra Day O'Connor, in Hamdi v. 
Rumsfeld.

    A few days after the 9/11 attacks, Vice President Dick 
Cheney appeared on Meet the Press, where he was interviewed by 
Tim Russert. One part of the interview went as follows:

    Mr. Russert: When Osama bin Laden took responsibility for 
blowing up the embassies in Kenya and Tanzania, U.S. embassies, 
several hundred died, the United States launched 60 tomahawk 
missiles into his training sites in Afghanistan. It only 
emboldened him. It only inspired him and seemed even to 
increase his recruitment. Is it safe to say that that kind of 
response is not something we're considering, in that kind of 
minute magnitude?
    Mr. Cheney: I'm going to be careful here, Tim, because I--
clearly it would be inappropriate for me to talk about 
operational matters, specific options or the kinds of 
activities we might undertake going forward. We do, indeed, 
though, have, obviously, the world's finest military. They've 
got a broad range of capabilities. And they may well be given 
missions in connection with this overall task and strategy.
    We also have to work, though, sort of the dark side, if you 
will. We've got to spend time in the shadows in the 
intelligence world. A lot of what needs to be done here will 
have to be done quietly, without any discussion, using sources 
and methods that are available to our intelligence agencies, if 
we're going to be successful. That's the world these folks 
operate in, and so it's going to be vital for us to use any 
means at our disposal, basically, to achieve our 
objective.\300\

    For years, it was not clear what the ``dark side'' 
consisted of, what was meant by the ``shadows of the 
intelligence world,'' and what were the ``sources and methods'' 
that the Vice President considered to be ``available to our 
intelligence agencies'' that were among the ``any means at our 
disposal.'' Over time, however, at least some of the facts have 
emerged. The Administration engaged in a series of unilateral 
actions at the direction of the President through his 
subordinates in connection with detention, interrogation, and 
intelligence collection that were characterized by the 
assertion of unreviewable executive power and the rejection of 
congressional and judicial limitations on this power.
    The facts that have emerged have come from various sources. 
Some documents, such as certain of the Department of Justice 
Office of Legal Counsel memoranda, have been disclosed by the 
White House and the Department of Justice. Other information, 
such as certain facts associated with the President's decision 
to implement his own foreign intelligence collection system 
outside of FISA, was uncovered and disclosed by the press. In 
numerous cases, congressional oversight hearings were critical 
in obtaining the public disclosure of facts associated with 
some of the conduct at issue--such as public confirmation of 
the facts associated with the attempts by then-White House 
Counsel Alberto Gonzales to obtain the signature of then-
Attorney General Ashcroft on orders extending the President's 
surveillance program at a time when Mr. Ashcroft was in 
intensive care at the hospital, or testimony in which the 
Director of the CIA acknowledged the use of water-boarding on 
certain detainees. In other instances, Inspector General 
Reports were critical in detailing misconduct, such as with 
respect to the FBI's misuse of National Security and Exigent 
Letters, or confirming instances of harsh treatment of 
detainees at Guantanamo.
    After the initiation of hostilities in Afghanistan, the 
Bush Administration had to make decisions as to what to do with 
persons captured as suspected enemy fighters or terrorists. 
There were several interrelated issues: what procedures should 
be used to determine whether the detainees should be held in 
custody, and for how long; where should the detainees be held 
and under what conditions; and what limitations, if any, 
existed on the techniques used to interrogate them. These 
decisions presented numerous legal issues, such as whether 
federal court jurisdiction extends to Guantanamo Bay, Cuba, for 
purposes of the application of the habeas corpus statutes; if 
so, whether foreign detainees were entitled to pursue habeas 
corpus remedies in the federal courts; whether a military 
commissions system may be implemented at the direction of the 
President--even where Congress has legislated on this topic; 
and whether the congressionally enacted torture or war crimes 
statutes constrained the conduct of U.S. Government employees 
in interrogating detainees.
    Though each of these policy decisions presented its own 
legal issues, as a matter of policy-making they can also be 
seen as intertwined. For the Administration's policy decision 
to hold detainees where they would have no access to the courts 
was devised precisely to permit the Executive Branch--through 
the military or the intelligence community--to interrogate them 
under rules set by that Branch, without interference by the 
Congress or the courts, without the constraints of either the 
criminal laws or the Constitution.
    Three critical decisions were made in the first months 
after the 9/11 attacks to effectuate these goals:
          1. to implement a military commission system for the 
        purposes of determining the status of the detainees--
        built from scratch--so as to avoid the procedures 
        related to military commissions already enacted by 
        Congress in the Code of Military Justice;
          2. to hold the detainees in Guantanamo Bay, Cuba--in 
        the hopes this would be outside the reach of U.S. 
        courts; and
          3. to decide as a legal matter that the detainees 
        would not be entitled to treatment as prisoners of war 
        under the Geneva Conventions, and also would not 
        qualify for the protections of Common Article 3 of the 
        Conventions--which meant that the criminal prohibitions 
        under the federal War Crimes statute would not apply to 
        the U.S. interrogators.
    This Section details the nature of those decisions as they 
relate to detention and interrogation policy, as well as 
probing the Administration's policies with regard to 
extraordinary rendition, black sites and ghosting, warrantless 
surveillance and National Security and Exigent Letters.

                              I. Detention

            A. Factual Background

October 2001 Domestic War Powers Memorandum

    On October 23, 2001, Deputy Assistant Attorney General John 
Yoo and Special Counsel Robert Delahunty in the Department of 
Justice's Office of Legal Counsel (OLC) prepared a memorandum 
entitled: ``Authority for Use of Military Force to Combat 
Terrorist Activities Within the United States.'' \301\ This 
unclassified memorandum suggests broad power of the President 
as Commander in Chief to use military force inside the United 
States, contemplating even seizure and detention of United 
States citizens (or lawfully admitted aliens) in some 
circumstances. As such, the memorandum--though it does not 
squarely address detention policy--is consistent with the 
September 25, 2001 War Powers Memorandum which claimed for the 
President domestic war powers, anticipates the assertions of 
Presidential power in the domestic detention context just a few 
months later, and anticipates the November 2001 conclusion that 
the President has the power to subject United States citizens 
to military commissions.
    The memorandum, which was directed to White House Counsel 
Alberto Gonzales and Defense Department General Counsel William 
J. Haynes, addresses whether the President has constitutional 
or statutory authority to use military force inside the United 
States in terrorism-related situations and, if so, whether such 
domestic military operations would be barred by either the 
Fourth Amendment or the federal Posse Comitatus statute. 
Examples of the type of force considered for purposes of the 
analysis include, but are not limited to: (1) destroying 
civilian aircraft that are believed to have been hijacked; (2) 
deploying troops to control traffic in and out of a major 
American city; (3) seizing or attacking civilian property, such 
as apartment buildings, office complexes, or ships, believed to 
contain terrorism suspects; and, (4) using military-level 
eavesdropping and surveillance technology on domestic targets.
    Mr. Yoo and Mr. Delahunty concluded that both Article II of 
the Constitution and the 9/11 use of force resolution would 
authorize these types of domestic military operations (even 
though Congress had expressly rejected language proposed by the 
Administration for the AUMF that would have authorized domestic 
military operations).\302\ The memorandum also contains 
extended discussion of a hypothetical example which posits that 
a domestic military commander has received information, not 
rising to the level of probable cause, suggesting that a 
terrorist has hidden inside an apartment building and may 
possess weapons of mass destruction. According to the 
memorandum, not only does the Constitution permit the commander 
to seize the building, detain everyone found inside, and then 
interrogate them--all without obtaining any sort of warrant--
but information gathered by military commanders in this way 
could used for criminal prosecution purposes as long as the 
primary reason for the seizure was the military fight against 
terrorism and not law enforcement. This memorandum was 
referenced in a subsequent OLC memorandum for the legal 
conclusion ``that the Fourth Amendment had no application to 
domestic military operations.'' \303\

November 2001 Decision to Try Detainees, Including U.S. Citizens, in 
        Military Commissions

    Originally, the issue of what to do with the detainees was 
assigned to a task force composed of representatives of several 
agencies, under the direction of Ambassador Pierre-Richard 
Prosper, a career prosecutor who worked for Secretary of State 
Colin Powell. Ambassador Prosper described that initial process 
as follows:

          A week after September 11th, I was in the White 
        House, meeting with the then-White House counsel, 
        Alberto Gonzales, and David Addington. . . . And 
        because of my background, having been a war crimes 
        prosecutor in Rwanda and having dealt with these 
        issues, it was decided that I would lead an interagency 
        group to look at this question. . . . I put the problem 
        on the table. How are we going to deal with them? How 
        can we prosecute them? What can we prosecute them for? 
        And ultimately, where will they be detained? \304\

    The legal rationale for the use of military commissions was 
set forth in an OLC memorandum dated November 6, 2001, which 
provided that ``under 10 U.S.C. Sec. 821 and his inherent 
powers as Commander in Chief, the president may establish 
military commissions to try and punish terrorists apprehended 
as part of the investigation into, or the military and 
intelligence operations in response to, the September 11 
attacks.'' \305\ Notably, as in other contexts, the OLC opinion 
recognizes no limitation on the president's power to establish 
such commissions--Congress's prior actions or inactions in this 
sphere of activity were irrelevant: ``Even if Congress had not 
sanctioned the use of military commissions to try all offenses 
against the laws of war, the President, exercising his 
authority as Commander in Chief, could order the creation of 
military commissions to try such offenses.'' \306\
    Just as any limitations on the president's war-making 
powers in the Authorization for Use of Military Force Against 
Terrorists (AUMF) were dismissed, so were any limitations in 
section 821: ``[Section] 821 simply gives sanction to the 
existing practice of the Executive in making use of military 
commissions, it does not on its face place any restriction on 
the use of commissions.'' \307\ The memorandum asserted that 
``if Sec. 821 were read as restricting the use of military 
commissions . . . it would infringe on the President's express 
constitutional powers as Commander in Chief.'' \308\ The 
memorandum also asserted that U.S. citizens could be tried by 
military commissions: ``[I]n the context of the current 
conflict, any actions by U.S. citizens that amount to hostile 
acts against the United States or its citizens . . . would make 
a person a `belligerent' subject to trial by military 
commission. . . .'' \309\ And finally, the memorandum asserted, 
since aliens enjoyed even fewer protections than U.S. citizens 
(especially in times of war), enemy aliens--including those 
lawfully admitted into the United States--seized in the United 
States would likewise be subject to trial by military 
commission.\310\
    On November 13, 2001, President Bush signed an order 
establishing the framework for the trial of detainees by 
military commission.\311\ According to press reports, this 
order was prepared by David Addington and Deputy White House 
Counsel Tim Flanigan, at Vice President Cheney's direction, in 
secret.\312\ As one reporter described:

    Three days after the Ashcroft meeting, Cheney brought the 
order for military commissions to Bush. No one told [White 
House Counsel John B.] Bellinger, [Condoleezza] Rice or [Colin] 
Powell, who continued to think that Prosper's working group was 
at the helm.
    After leaving Bush's private dining room, the vice 
president took no chances on a last-minute objection. He sent 
the order on a swift path to execution that left no sign of his 
role. After Addington and Flanigan, the text passed to 
Berenson, the associate White House counsel. Cheney's link to 
the document broke there: Berenson was not told of its 
provenance.
    Berenson rushed the order to deputy staff secretary Stuart 
W. Bowen Jr., bearing instructions to prepare it for signature 
immediately--without advance distribution to the president's 
top advisers. Bowen objected, he told colleagues later, saying 
he had handled thousands of presidential documents without ever 
bypassing strict procedures of coordination and review. He 
relented, one White House official said, only after ``rapid, 
urgent persuasion'' that Bush was standing by to sign and that 
the order was too sensitive to delay.\313\

    Both the State Department and the Justice Department had 
been kept out of the loop on the decision, and both were upset. 
Ambassador Prosper, in an interview for PBS's Frontline, 
confirmed that he and Secretary of State Colin Powell had been 
kept in the dark about this decision.\314\ The Washington Post 
described the secrecy of the process, as well as the angry 
reaction by Attorney General John Ashcroft to the decision to 
use military commissions instead of civilian courts, a decision 
which effectively excluded the Justice Department from the role 
of trying terrorists, as follows:

          The attorney general [sic] found Cheney, not Bush, at 
        the broad conference table in the Roosevelt Room. 
        According to participants, Ashcroft said that he was 
        the president's senior law enforcement officer, 
        supervised the FBI and oversaw terrorism prosecutions 
        nationwide. The Justice Department, he said, had to 
        have a voice in the tribunal process. He was enraged to 
        discover that [John] Yoo, his subordinate, had 
        recommended otherwise--as part of a strategy to deny 
        jurisdiction to U.S. courts.
          Raising his voice, participants said, Ashcroft talked 
        over Addington and brushed aside interjections from 
        Cheney. ``The thing I remember about it is how rude, 
        there's no other word for it, the attorney general was 
        to the vice president,'' said one of those in the room. 
        Asked recently about the confrontation, Ashcroft 
        replied curtly: ``I'm just not prepared to comment on 
        that.'' \315\

    Because the order establishing military commissions was 
silent as to the procedures to be used by the commissions, its 
potential scope was ominous, and it drew immediate criticism. 
As one rights organization warned:

    Under President Bush's November 13th Military Order on 
military commissions, any foreign national designated by the 
President as a suspected terrorist or as aiding terrorists 
could potentially be detained, tried, convicted and even 
executed without a public trial, without adequate access to 
counsel, without the presumption of innocence or even proof of 
guilt beyond reasonable doubt, and without the right to appeal. 

    The U.S. State Department has repeatedly criticized the use 
of military tribunals to try civilians and other similar 
limitations on due process around the world. Indeed, its annual 
Country Reports on Human Rights Practices evaluate each country 
on the extent to which it guarantees the right to a ``fair 
public trial''--which it defines to include many of the due 
process rights omitted by the President's Military Order. The 
Order may make future U.S. efforts to promote such standards 
appear hypocritical. Indeed, even if its most egregious 
failings are corrected in subsequent regulations, the text of 
the Order may become a model for governments seeking a legal 
cloak for political repression.\316\

Conservative New York Times columnist William Safire derided 
the military commissions as ``Star Chamber tribunals'' and 
``kangaroo courts.'' He noted:

          The [Uniform Code of Military Justice] demands a 
        public trial, proof beyond reasonable doubt, an 
        accused's voice in the selection of juries and right to 
        choose counsel, unanimity in death sentencing and above 
        all appellate review by civilians confirmed by the 
        Senate. Not one of those fundamental rights can be 
        found in Bush's military order setting up kangaroo 
        courts for people he designates before ``trial''' to be 
        terrorists. Bush's fiat turns back the clock on all 
        advances in military justice, through three wars, in 
        the past half-century.\317\

    The decision to use military commissions thus was designed 
to exclude both Congress and the courts from a role in 
determining the circumstances under which persons should be 
detained and remain detained.

December 2001 Decision to Hold Detainees at Guantanamo

    The next decision was where to detain those captured in 
Afghanistan, to keep them from potential judicial oversight or 
other scrutiny. In December 2001, the decision was announced to 
hold the detainees at the military prison in Guantanamo Bay, 
Cuba, a place described by Secretary of Defense Rumsfeld as 
``the least worst place we could have selected. It has 
disadvantages, as you suggest. Its disadvantages, however, seem 
to be modest relative to the alternatives.'' \318\ Central to 
the decision to use Guantanamo was John Yoo's legal conclusion 
that the Guantanamo detainees would not enjoy access to U.S. 
courts. According to Mr. Yoo, ``a district court cannot 
properly entertain an application for a writ of habeas corpus 
by an enemy alien'' who was detained there.\319\ In short, 
Guantanamo was selected as a ``law free'' zone, where the 
detainees enjoyed no legal protections.

The Administration's Public Defense of Its Guantanamo Policies

    The Administration's public defense of its Guantanamo 
policies has consisted largely of stressing the evil nature of 
the detainees and overstating their intelligence value. In 
January 2002, President Bush characterized the detainees as 
``killers'' and ``terrorists'' and ``parasite[s],'' \320\ and 
Vice President Cheney described them in similarly harsh terms:

          These are the worst of a very bad lot. They are very 
        dangerous. They are devoted to killing millions of 
        Americans, innocent Americans, if they can, and they 
        are perfectly prepared to die in the effort.\321\

Admiral John Stufflebeam described them as ``the worst of the 
worst and if let out on the street, they will go back to the 
proclivity of trying to kill Americans and others''; \322\ 
Defense Secretary Rumsfeld, as ``among the most dangerous, 
best-trained, vicious killers on the face of the earth''; \323\ 
and General Richard Myers, as ``people that would gnaw through 
hydraulic lines in the back of a C-17 to bring it down.'' \324\
    Despite these sweeping descriptions, however, more than 
two-thirds of those detained at Guantanamo Bay have been 
released. In May 2006, the Department of Defense issued a list 
of 759 individuals who had been detained at Guantanamo.\325\ 
Defense Department press releases indicate that approximately 
19 other persons have since been brought there \326\--for a 
total of about 780. As of December 2008, approximately 250 
remained there.\327\
    What has happened to the released detainees? In 2006, the 
Associated Press reported that it had located 245 of the 360 
men who had been freed as of that time. Of that group, ``205 of 
the 245 were either freed without being charged or were cleared 
of charges related to their detention at Guantanamo. Forty 
either [stood] charged with crimes or continue to be 
detained.'' \328\ The report continued:

    Only a tiny fraction of transferred detainees have been put 
on trial. The AP identified 14 trials, in which eight men were 
acquitted and six are awaiting verdicts. Two of the cases 
involving acquittals--one in Kuwait, one in Spain--initially 
resulted in convictions that were overturned on appeal.
    The Afghan government has freed every one of the more than 
83 Afghans sent home. Lawmaker Sibghatullah Mujaddedi, the head 
of Afghanistan's reconciliation commission, said many were 
innocent and wound up at Guantanamo because of tribal or 
personal rivalries.
    At least 67 of 70 repatriated Pakistanis are free after 
spending a year in Adiala Jail. A senior Pakistani Interior 
Ministry official said investigators determined that most had 
been ``sold'' for bounties to U.S. forces by Afghan warlords 
who invented links between the men and al-Qaida. ``We consider 
them innocent,'' said the official, who declined to be named 
because of the sensitivity of the issue.
    All 29 detainees who were repatriated to Britain, Spain, 
Germany, Russia, Australia, Turkey, Denmark, Bahrain and the 
Maldives were freed, some within hours after being sent home 
for ``continued detention.'' \329\

    In June 2005, after the Government had released hundreds of 
Guantanamo prisoners, Vice President Cheney asserted that the 
balance that remained, then over 500, were ``serious, deadly 
threats'': ``We had some 800 people down there. We've screened 
them all, and we've let go those that we've deemed not to be a 
continuing threat. But the 520 some that are there now are 
serious, deadly threats to the United States. For the most 
part, if you let them out, they'll go back to trying to kill 
Americans.'' \330\ About 270 of those 520 have since been 
released.
    It likewise appears that the Administration may have 
overstated the intelligence value of the detainees to publicly 
justify their prolonged detention. Again, numerous reports 
suggested that the intelligence value was limited to a few 
individuals, and the lack of results from the initial 
interrogation of the detainees--prompting the use of harsher 
methods--had less to do with the methods being used than with 
the essential fact that the detainees had little to offer. As 
summarized in one report:

          Senior military officials, like Steve Rodriguez, the 
        Head of Interrogations at Guantanamo, have questioned 
        the intelligence value of the majority of Guantanamo 
        prisoners. In 2004, Rodriguez maintained that ``20, 30, 
        40, maybe even 50 [of the Guantanamo detainees] are 
        providing critical information today.'' Lt. Col. 
        Anthony Christino stated in 2004 ``that there is a 
        continuing intelligence value . . . for [s]omewhere 
        a[round] a few dozen, a few score at the most'' of the 
        Guantanamo prisoners.\331\

    Three years later Vice President Cheney, in the final week 
of the Bush Administration, continued to push the same sort of 
``worst of the worst'' rhetoric. In an interview on January 13, 
2009, one week prior to the inauguration of President Obama, 
Vice President Cheney described the Guantanamo detainees as 
follows:

    So we've not been, I think, especially harsh in terms of 
the judgments we've made. We have let some people go, and we 
erred a bit on the side obviously of--in letting the wrong 
people go on a few occasions. But now what's left, that is the 
hardcore. And you've got to decide what you're going to do with 
those folks before you're going to control--before you're going 
to close the facility. These are al Qaeda members. These are 
people that we captured on the battlefield. These are folks 
whose main objective in life is to kill Americans.\332\

On the following day, January 14, 2009, however, United States 
District Court Judge Richard Leon granted the petition for a 
writ of habeas corpus filed by Mohammed el Gharani, an 
individual who was 14 when he was captured and turned over by 
the Pakistan government to the United States in 2002 and then 
transferred by the United States to Guantanamo. Judge Leon 
concluded that the evidence submitted by the Government to 
support the continued detention of Mr. el Gharani as an enemy 
combatant was insufficient:

          [T]he Government's evidence against el Gharani 
        consists principally of the statements made by two 
        other detainees while incarcerated at Guantanamo Bay. 
        Indeed, these statements are either exclusively, or 
        jointly, the only evidence offered by the Government to 
        substantiate the majority of their allegations. In 
        addition, unlike the other cases reviewed by this Court 
        to date, the credibility and reliability of the 
        detainees being relied upon by the Government has 
        either been directly called into question by Government 
        personnel or has been characterized by Government 
        personnel as undetermined.\333\

Then, on Monday, January 19, 2009, The New York Times reported 
that a military panel had concluded that an Afghan detainee, 
Haji Bismullah (who had protested his innocence for six years), 
``should no longer be deemed an enemy combatant.'' The article 
noted that from roughly October 2008 through January 2009 ``at 
least 24 detainees have been declared improperly held by courts 
or a tribunal--or nearly 10 percent of the population at the 
detention camp [at Guantanamo] where about 245 men remain.'' 
\334\
    These detention policies were implemented as intended. As 
noted, hundreds of individuals were captured overseas and 
brought to Guantanamo. The Administration sought to have them 
subject to the military commission system established by the 
Executive Branch to determine the validity of their detention 
and vigorously defended this policy and the denial of the 
detainees of access to the federal courts. Even in the domestic 
United States, a United States citizen (Jose Padilla) and a 
lawfully admitted alien (Ali Saleh Kahlal al-Marri) were 
arrested in the United States by civilian law enforcement 
authorities and then transferred to military custody at the 
order of the President. For years, they were held in military 
custody, and during substantial periods of their detentions, 
they were deprived of access to counsel to challenge the bases 
of their detentions. All the while, the Administration 
vigorously defended the prerogative of the president, as 
Commander-in-Chief, to exercise this power over individual 
liberty, inside the United States, and to insist that this 
exercise of discretion was not subject to meaningful review by 
the courts.
            B. The Bush Administration's Detention Policies in the 
                    Courts
    The Administration's detention policies were rooted in 
views as to the scope of the president's inherent, uncheckable 
powers as Commander in Chief. In 2002, once persons were 
captured in Afghanistan or in other foreign countries, or were 
taken into custody in the United States, the lawfulness of the 
Administration's detention policies--and the scope of the 
president's claimed powers--came under challenge in federal 
courts.
    The cases are discussed in some detail below, for several 
reasons. First, they raised profound issues as to the power of 
the president as Commander in Chief under the Constitution, 
including whether actions taken under that claimed power could 
be checked by Congress or reviewed by the courts. Second, they 
also raised profound issues as to the statutory and 
constitutional rights, if any, to which the detainees were 
entitled, including whether those rights could be infringed by 
the president acting alone, or acting with the authorization of 
Congress. Third, the Administration's conduct of the 
litigation, including steps it took in connection with the 
actual circumstances of confinement of the given plaintiffs 
during the course of the litigation to influence the facts 
subject to review, reveals the intensity of the 
Administration's determination to have its views of 
presidential power accepted by the courts. Fourth, the cases 
are an important part of the narrative of how the detention 
policies evolved, as, for example, the Supreme Court's decision 
invalidating the President's military commission system in 2006 
led to Congress's enactment of the Military Commissions Act, 
which itself contained terms implicating the habeas corpus 
rights of the Guantanamo detainees, thus occasioning yet 
further Supreme Court litigation.
    Finally, the cases reveal the near unanimous rejection by 
the courts of the President's broad claims of Commander in 
Chief powers, or other inherent powers, to undertake actions 
without congressional authorization--a rejection that can best 
be understood by an appreciation of exactly what the 
Administration argued, the persistence and the repetition of 
those arguments in a variety of settings, and other actions 
associated with its conduct of the litigation.

The President's Power to Detain an American Citizen Captured in 
        Afghanistan Without Judicial Review (Hamdi)

    The first case involved U.S. citizen Yaser Esam Hamdi, who 
was captured in Afghanistan in 2001 and taken to Guantanamo in 
2002. When it became apparent that he was an American citizen, 
Mr. Hamdi was transferred to the Norfolk Naval Station Brig. On 
May 10, 2002, Mr. Hamdi's father, as a ``next friend,'' filed a 
petition for habeas corpus with the U.S. District Court for the 
Eastern District of Virginia. The issue was whether the federal 
courts could review the President's basis for Mr. Hamdi's 
detention, and if so, what would be the nature of that review.
    First, in May and June 2002, the District Court ordered 
that Mr. Hamdi be permitted access to his attorney. The 
Government appealed these rulings to the Fourth Circuit Court 
of Appeals. In addition, the Government advanced a sweeping 
assertion of presidential power, arguing the petition should be 
dismissed in its entirety and that the federal court ``may not 
review at all [the President's] designation of an American 
citizen as an enemy combatant--that [the President's] 
determinations on this score are the first and final word.'' 
\335\
    In rejecting the government's contentions, the Court of 
Appeals in July 2002 concisely described the implications of 
dismissing the case on the grounds asserted by the Government:

          In dismissing, we ourselves would be summarily 
        embracing a sweeping proposition--namely that, with no 
        meaningful judicial review, any American citizen 
        alleged to be an enemy combatant could be detained 
        indefinitely without charges or counsel on the 
        government's say-so.\336\

    On remand to the district court, the Government submitted 
an affidavit dated July 24, 2002, to support the 
Administration's position that Mr. Hamdi was an enemy 
combatant. The affidavit represented that Mr. Hamdi had been a 
Taliban fighter who had surrendered to the Northern Alliance. 
The affidavit did not claim that Mr. Hamdi had fought against 
the United States, or that he was affiliated with al 
Qaeda.\337\ In an opinion dated August 16, 2002, the district 
court held that due process required a more detailed and 
specific showing than was set forth in the affidavit.\338\
    The Government immediately appealed to the Fourth Circuit. 
In January 2003, the Fourth Circuit reversed, holding that Mr. 
Hamdi's concession that he was seized in the battlefield was 
sufficient to justify his being held as an enemy combatant, and 
that the trial court went too far in seeking more information 
as to the facts justifying Mr. Hamdi's detention.\339\ After 
the Fourth Circuit denied rehearing by the full panel in July 
of 2003,\340\ the case was taken to the Supreme Court.
    From the time Mr. Hamdi was captured until the Supreme 
Court decided to hear his case, Mr. Hamdi--a U.S. citizen 
incarcerated by the United States--was not permitted access to 
an attorney. The Supreme Court agreed to hear the case on 
January 3, 2004. On February 3, 2004, more than two years after 
this U.S. citizen was detained, the Government for the first 
time permitted Mr. Hamdi to consult with an attorney.\341\
    Again, in front of the Supreme Court, the Government argued 
that the decision to label Mr. Hamdi an enemy combatant was 
solely for the President to make, and that the bases for that 
decision were not subject to judicial review.
    In an opinion issued June 28, 2004, Justice Sandra Day 
O'Connor, writing for a four-Justice plurality, avoided 
deciding the question whether the President, under the 
Constitution and solely relying on his Article II Commander-in-
Chief powers, had the power to designate a U.S. citizen an 
enemy combatant and thereby order his detention. Justice 
O'Connor did conclude, however, that Congress, by way of the 
AUMF, had granted the President that power.\342\ Significant to 
Justice O'Connor's conclusion was that Mr. Hamdi was seized in 
the shooting battlefield. To this end, Justice O'Connor 
stressed that ``[b]ecause detention to prevent a combatant's 
return to the battlefield is a fundamental incident of waging 
war, in permitting the use of `necessary and appropriate 
force,' Congress has clearly and unmistakably authorized 
detention in the narrow circumstances considered here.'' \343\
    In interpreting the scope of the AUMF, Justice O'Connor 
acknowledged that this ``war'' was unlike other wars, and that 
the AUMF could not be read as sanctioning the ``indefinite'' 
detention of Mr. Hamdi for purposes of interrogation:

          Hamdi contends that the AUMF does not authorize 
        indefinite or perpetual detention. Certainly, we agree 
        that indefinite detention for the purpose of 
        interrogation is not authorized. Further, we understand 
        Congress' grant of authority for the use of ``necessary 
        and appropriate force'' to include the authority to 
        detain for the duration of the relevant conflict, and 
        our understanding is based on longstanding law-of-war 
        principles.\344\

    Even though the president had the power granted by Congress 
to seize an American as an enemy combatant, as a procedural 
matter, the Court held, the factual grounds for the detention 
were subject to judicial review.\345\ The plurality squarely 
concluded that ``due process demands that a citizen held in the 
United States as an enemy combatant be given a meaningful 
opportunity to contest the factual basis for that detention 
before a neutral decision-maker,'' \346\ and that Mr. Hamdi--a 
citizen--possessed ``core rights to challenge meaningfully the 
Government's case and to be heard by an impartial 
adjudicator.'' \347\
    The four-Justice plurality explicitly warned of the threat 
to liberty posed by a broad interpretation of the president's 
Commander in Chief powers, and stressed the Constitutional role 
of Congress and the courts in protecting individual liberties: 
that ``the state of war is not a blank check for the President 
when it comes to the rights of the Nation's citizens''; that 
``unless Congress acts to suspend it, the Great Writ of habeas 
corpus allows the Judicial Branch to play a necessary role in 
maintaining this delicate balance of governance, serving as an 
important judicial check on the Executive's discretion in the 
realm of detentions''; and that ``it would turn our system of 
checks and balances on its head to suggest that a citizen could 
not make his way to court with a challenge to the factual basis 
for his detention by his Government, simply because the 
Executive opposes making available such a challenge.'' \348\
    The unlikely pair of Justices Antonin Scalia and John Paul 
Stevens dissented altogether, finding that the President had 
acted outside the limits of his Constitutional powers. For Mr. 
Hamdi's detention in this manner to be lawful, Congress would 
have to have first suspended the writ of habeas corpus--which 
it certainly had not done.\349\ As Justice Scalia wrote in 
dissent:

          If the situation demands it, the Executive can ask 
        Congress to authorize suspension of the writ--which can 
        be made subject to whatever conditions Congress deems 
        appropriate, including even the procedural novelties 
        invented by the plurality today. To be sure, suspension 
        is limited by the Constitution to cases of rebellion or 
        invasion. But whether the attacks of September 11, 
        2001, constitute an ``invasion,'' and whether those 
        attacks still justify suspension several years later, 
        are questions for Congress rather than this Court 
        [citations omitted]. If civil rights are to be 
        curtailed during wartime, it must be done openly and 
        democratically, as the Constitution requires, rather 
        than by silent erosion through an opinion of this 
        Court.\350\

    Another two Justices (Souter and Ginsburg) believed that 
Congress had not provided the president the authority to 
designate detainees enemy combatants, but concurred in the 
holding that further judicial review of the bases of Mr. 
Hamdi's detention was required.\351\
    So, even though not all the Constitutional issues were 
resolved by this decision, six of the Justices agreed that due 
process required that Mr. Hamdi, a U.S. citizen, have an 
opportunity to challenge the factual bases underlying his 
detention--notwithstanding the Administration's claims that 
either under the Constitution or under the AUMF, the president 
on his unreviewable word alone could order his detention as an 
enemy combatant.
    As a result of the Supreme Court's decision, Mr. Hamdi, 
after spending close to three years in custody, a great portion 
of it in solitary confinement without access to an attorney, 
would finally obtain the hearing he had been seeking, where he 
could contest the legal basis for his detention, albeit under 
evidentiary standards broadly favorable to the Government. And 
for its part, the Executive Branch, which had announced to the 
world that only the ``worst of the worst'' had been seized and 
brought to Guantanamo, would have the opportunity (and 
obligation) to prove its case, demonstrating the dangerousness 
of at least one Guantanamo detainee and thereby helping 
vindicate the President's military detention policy.
    But this did not happen; and what happened instead is 
telling: By way of an agreement between Mr. Hamdi and the 
United States dated September 17, 2004--less than 90 days after 
the Supreme Court ruled--the United States agreed to send Mr. 
Hamdi back to Saudi Arabia.\352\ The terms of the agreement did 
not require that Mr. Hamdi be detained in Saudi Arabia--to the 
contrary, the United States specifically agreed ``to make no 
request that Hamdi be detained by the Kingdom of Saudi Arabia 
based on information as to Hamdi's conduct known to the United 
States.'' \353\ In exchange for the various promises of the 
United States, including that of permitting his return to Saudi 
Arabia,\354\ Mr. Hamdi agreed to renounce terrorism, not to 
travel to specific locations, including Pakistan and 
Afghanistan, to renounce his U.S. citizenship, and to dismiss 
the habeas petition.\355\

The President's Power to Establish Military Commissions to Determine 
        Validity of Detention (Hamdan)

    In the case of Salim Hamdan, the Supreme Court again 
recognized an essential role for Congress in establishing 
certain military policies, rejecting the President's claims of 
uncheckable Commander-in-Chief powers. Once again, the issue 
was the extent of presidential power--this time to implement 
the ``military commission'' procedures--where such procedures 
were not authorized by Congress, and where Congress had 
provided alternative procedures.\356\
    Salim Hamdan, Osama bin Laden's driver, was captured by 
American forces in Afghanistan in 2001, and was transferred to 
Guantanamo in 2002. In July of 2003, the President designated 
Mr. Hamdan for trial by a military commission.\357\ Counsel was 
appointed in December 2003 and, in April of 2004, Mr. Hamdan 
filed a habeas corpus petition, which was transferred to the 
U.S. District Court for the District of Columbia. Mr. Hamdan 
challenged the President's order establishing the military 
commission as a violation of separation of powers--arguing that 
Congress, and not the President, had the power to prescribe the 
rules of war.\358\ The Administration's position was described 
by the district court as follows: ``The major premise of the 
Government's argument that the President has untrammeled power 
to establish military tribunals is that his authority emanates 
from Article II of the Constitution and is inherent in his role 
as commander-in-chief.'' \359\ The district court rejected this 
argument, citing Supreme Court precedent establishing that 
``the authority to appoint military commissions is found, not 
in the inherent power of the presidency, but in the Articles of 
War (a predecessor of the Uniform Code of Military Justice) by 
which Congress provided rules for the government of the army.'' 
\360\
    The trial court found that the military commissions 
prescribed for the Guantanamo detainees were defective on due 
process grounds, as the accused could be excluded from his 
trial under rules that could prevent him from being informed of 
the evidence against him. The district court held that ``in 
this critical respect[,] the rules of the Military Commission 
are fatally 'contrary to or inconsistent with' the statutory 
requirements for courts-martial convened under the Uniform Code 
of Military Justice, and thus unlawful.'' \361\
    On appeal, the Government again argued that the President, 
as Commander in Chief, possessed ``inherent authority to 
establish military commissions,'' as to which Congress had no 
proper role: ``That Congress also has powers that may be 
relevant to the prosecution of terrorists, such as the power to 
establish inferior Article III courts and the power to define 
and punish offenses against the law of nations . . . in no way 
undermines the President's authority, as Commander in Chief, to 
exercise the traditional functions of a military commander by 
using military commissions to punish enemies who violate the 
laws of war.'' \362\ The Government urged the court of appeals 
to abstain from judicial review;\363\ but it reversed the lower 
court on the issue of the legal validity of the military 
commissions, concluding they were valid--not because of 
inherent presidential powers under Article II, but because 
Congress, by way of the AUMF and other laws, had authorized the 
president to establish them.\364\
    On petition to the Supreme Court, the Government repeated 
its contentions:

          The President's war power under Article II, Section 
        2, of the Constitution includes the inherent authority 
        to create military commissions even in the absence of 
        any statutory authorization, because that authority is 
        a necessary and longstanding component of his war 
        powers.\365\

    In a 5-3 June 2006 decision, the Supreme Court squarely 
rejected the Government's contentions, holding that the power 
to create alternate military tribunals was entrusted by the 
Constitution to Congress:

    The Constitution makes the President the ``Commander in 
Chief'' of the Armed Forces, Art. II, 2, cl. 1, but vests in 
Congress the powers to ``declare War . . . and make Rules 
concerning Captures on Land and Water,'' Art. I, Sec. 8, cl. 
11, to ``raise and support Armies,'' id., cl. 12, to ``define 
and punish . . . Offences against the Law of Nations,'' id., 
cl. 10, and ``To make Rules for the Government and Regulation 
of the land and naval Forces,'' id., cl. 14. The interplay 
between these powers was described by Chief Justice Chase in 
the seminal case of Ex parte Milligan:
    ``The power to make the necessary laws is in Congress; the 
power to execute in the President. Both powers imply many 
subordinate and auxiliary powers. Each includes all authorities 
essential to its due exercise. But neither can the President, 
in war more than in peace, intrude upon the proper authority of 
Congress, nor Congress upon the proper authority of the 
President . . . Congress cannot direct the conduct of 
campaigns, nor can the President, or any commander under him, 
without the sanction of Congress, institute tribunals for the 
trial and punishment of offences, either of soldiers or 
civilians, unless in cases of a controlling necessity, which 
justifies what it compels, or at least insures acts of 
indemnity from the justice of the legislature.'' \366\

Thus, in Hamdan, the Supreme Court rejected the assertions of 
uncheckable presidential power that were set forth in Mr. Yoo's 
September 25, 2001 War Powers Memorandum and November 6, 2001, 
Military Commissions Memorandum, including, implicitly, the 
broader assertion in those memoranda that the president's 
powers in the Constitution could be read far more expansively 
than Congress's. The Court's opinion marked a significant 
repudiation of the Bush-Cheney conception of expansive, 
uncheckable war powers for the president.
    In the wake of Hamdan, Congress enacted the Military 
Commissions Act of 2006, establishing a military commission 
system for trying the Guantanamo detainees.\367\ (That Act is 
described in the Interrogation Section of this Report.) Mr. 
Hamdan was ultimately tried by this military commission; in the 
summer of 2008, he was convicted of providing material support 
for terrorism, but acquitted of more serious charges.\368\ 
Despite a request by the prosecutors for a sentence of at least 
30 years, the military panel sentenced Mr. Hamdan to 66 
months.\369\ Mr. Hamdan received credit for the 61 months he 
had been held prior to trial. He was released and returned to 
Yemen in late November 2008 to serve the remaining few months 
of his sentence.\370\

The President's Power to Order Detention of Persons Without Access to 
        Federal Courts--Rasul and Boumediene

    In Rasul v. Bush,\371\ the Supreme Court decided a narrow 
but significant legal issue of statutory interpretation 
relating to the scope of federal court jurisdiction over 
detainees held in Guantanamo. As framed by the Court, the issue 
was ``whether the habeas statute confers a right to judicial 
review of the legality of executive detention of aliens in a 
territory over which the United States exercises plenary and 
exclusive jurisdiction, but not `ultimate sovereignty.' '' 
\372\ Mr. Rasul argued that Guantanamo Bay was part of the 
United States for purposes of the habeas statute; the Bush 
Administration argued to the contrary. The Court, noting that 
``[b]y the express terms of its agreements with Cuba, the 
United States exercises `complete jurisdiction and control' 
over the Guantanamo Bay Naval Base, and may continue to 
exercise such control permanently if it so chooses,'' \373\ 
concluded that ``[the habeas statute] confers on the District 
Court jurisdiction to hear [Mr. Rasul's and other] habeas 
corpus challenges to the legality of their detention at the 
Guantanamo Bay Naval Base.'' \374\ The Court did not address 
what it meant by the ``legality of their detention,'' nor did 
it prescribe the nature of the factual review a district court 
should undertake to determine whether the detention was lawful. 
Rasul, unlike Hamdi and Hamdan, did not explicitly involve a 
clash as to the limits of presidential power vis-a-vis the 
power of Congress--it involved the reach of federal judicial 
power.
    Subsequently, in the Boumediene case, the Supreme Court 
faced a series of issues relating to the rights of the 
Guantanamo detainees to seek habeas relief in the U.S. 
courts.\375\ The threshold issue for the Court was whether the 
Military Commissions Act (MCA)--enacted in the aftermath of 
Hamdan--was intended to deprive the courts of their 
jurisdiction to hear habeas claims filed by the Guantanamo 
detainees, and if so, whether that deprivation was 
constitutional.\376\
    The Court held that the MCA did, in fact, purport to 
``den[y] the federal courts jurisdiction to hear habeas corpus 
actions pending at the time of its enactment.'' \377\ but that 
the Constitution provided the Guantanamo detainees a right to 
have their habeas petitions heard, and that the MCA thus worked 
an unconstitutional ``suspension'' of that right.\378\ The 
procedures previously provided in the Detainee Treatment Act 
(DTA) for reviewing the validity of an individual's detention 
were not an adequate substitute for habeas review, the Court 
stated. In particular, the DTA procedures did not permit the 
federal courts to engage in adequate fact-finding, or to 
release prisoners:

          Although we do not hold that an adequate substitute 
        must duplicate Sec. 2241 in all respects, it suffices 
        that the Government has not established that the 
        detainees' access to the statutory review provisions at 
        issue is an adequate substitute for the writ of habeas 
        corpus. [The MCA] thus effects an unconstitutional 
        suspension of the writ.\379\

    The Court stressed that the habeas writ was an essential 
check on governmental power--in this case, presidential power: 
``The Framers'' inherent distrust of governmental power was the 
driving force behind the constitutional plan that allocated 
powers among three independent branches. This design serves not 
only to make Government accountable but also to secure 
individual liberty.'' \380\
    Thus, the Court concluded that the right to seek a habeas 
writ was available to the Guantanamo detainees, notwithstanding 
their status as non-citizens, and, picking up on Justice 
O'Connor's concerns in Hamdi about indefinite detention, 
specifically alluded to the fact that the detainees had now 
spent years in custody, with no end in sight:

          It is true that before today the Court has never held 
        that noncitizens detained by our Government in 
        territory over which another country maintains de jure 
        sovereignty have any rights under our Constitution. But 
        the cases before us lack any precise historical 
        parallel. They involve individuals detained by 
        executive order for the duration of a conflict that, if 
        measured from September 11, 2001, to the present, is 
        already among the longest wars in American history. See 
        Oxford Companion to American Military History 849 
        (1999). The detainees, moreover, are held in a 
        territory that, while technically not part of the 
        United States, is under the complete and total control 
        of our Government. Under these circumstances the lack 
        of a precedent on point is no barrier to our 
        holding.\381\

    Though the Court did not address the legal standards that 
governed the detention, or the nature of the fact-finding 
proceeding to which the detainees were entitled, the Court did 
make clear that the lower federal courts were to engage in a 
substantive review of the evidence, that exculpatory material 
must be considered, and that an essential component of the 
power of the reviewing court was the power to order release of 
the detainee if the evidence did not support the detainee's 
continued detention.
    The reaction of the Bush Administration was swift. Attorney 
General Mukasey made a speech calling upon Congress ``to 
resolve the difficult questions left open by the Supreme 
Court,'' a request that many critics felt would have the effect 
of only further delaying court review of the Guantanamo 
cases.\382\ Mr. Mukasey desired legislation based on six 
principles, a number of which would have greatly limited the 
ability to address Guantanamo cases or to fashion an 
appropriate remedy where detention was found to have been 
improper: 1) that the federal courts ``may not order the 
government to bring enemy combatants into the United States; 2) 
that national security information be protected; 3) that the 
Military Commission trials proceed, with the habeas petitions 
permitted only after the commission trials; 4) that ``the 
legislation should acknowledge again and explicitly that this 
Nation remains engaged in an armed conflict with al Qaeda, the 
Taliban, and associated organizations, who have already 
proclaimed themselves at war with us and who are dedicated to 
the slaughter of Americans, soldiers and civilians alike . . . 
[C]ongress should reaffirm that for the duration of the 
conflict the United States may detain as enemy combatants those 
who have engaged in hostilities or purposefully supported al 
Qaeda, the Taliban, and associated organizations''; \383\ 5) 
that Congress establish sensible procedures for habeas 
challenges going forward, such as providing that one court have 
exclusive jurisdiction over those cases; and 6) that ``Congress 
should provide a single means to challenge detention.''

The President's Power to Order the Military Detention of an American 
        Citizen Seized by Civilian Authorities in the United States 
        (Padilla)

    Perhaps the most troubling of all the detention cases is 
that involving U.S. citizen Jose Padilla. On May 8, 2002, Mr. 
Padilla was arrested in Chicago on a material witness warrant 
issued out of the Southern District of New York. In June 2002, 
the Government withdrew the subpoena on which the arrest 
warrant had been based, and the President issued an order 
directing that the Secretary of Defense take custody of Mr. 
Padilla as an enemy combatant. Pursuant to the November 2001 
military commission order then in place, this meant that Mr. 
Padilla would be held in military custody and, presumably, 
tried by a military commission.\384\ Mr. Padilla was then moved 
to military custody and held at the Navy Brig in South 
Carolina.\385\
    The Padilla litigation was taking place at the same time as 
the Hamdi litigation, with perhaps the key difference being the 
fact that Mr. Padilla was arrested by civilian law enforcement 
authorities inside the United States, whereas Mr. Hamdi, also a 
U.S. citizen, was taken into custody in Afghanistan--a 
detention upheld by the Court.
            1. June-December 2002--initial litigation in Southern 
                    District of New York; Chief Judge Mukasey orders 
                    Government to permit Mr. Padilla access to counsel.
    After Mr. Padilla was transferred to South Carolina, his 
attorney filed a writ of habeas corpus with the Southern 
District of New York, and the case was assigned to then-Chief 
Judge Michael Mukasey. Mr. Padilla, like Mr. Hamdi, was denied 
access to counsel in connection with this habeas claim. The 
critical issues raised by the initial litigation were the scope 
of the president's power to designate Mr. Padilla--like Mr. 
Hamdi, a U.S. citizen--an enemy combatant and transfer him to 
military custody, the nature of judicial review (if any) of 
that decision, and whether the conditions of confinement, 
including the denial of access to counsel, were permissible. 
There were also venue issues as to whether the petition was 
properly brought in the Southern District of New York, where 
Mr. Padilla was seized, as opposed to South Carolina, where he 
was being held.
    In its initial brief before Chief Judge Mukasey, the 
Government argued that the president had essentially 
unreviewable ``core Commander in Chief'' powers to determine 
that Mr. Padilla was an enemy and place him in military 
custody--that ``[t]he capture and detention of enemy combatants 
during wartime falls within the president's core constitutional 
powers as Commander in Chief, which, in the present conflict, 
are exercised with the specific support of Congress'' \386\--
and that the U.S. military may constitutionally ``seize and 
detain enemy combatants or other enemy belligerents for the 
duration of an armed conflict.'' \387\ It was not ``significant 
that an enemy combatant is captured within United States 
territory in civilian dress rather than in uniform or on a 
foreign battlefield.'' \388\ Mr. Padilla's status as an 
American citizen ``does not affect the authority of the 
military to detain [him].'' \389\
    On December 4, 2002, Chief Judge Mukasey held that the 
President did have the power to order Mr. Padilla's detention: 
``[T]he President is authorized under the Constitution and by 
law to direct the military to detain enemy combatants in the 
circumstances present here, such that Mr. Padilla's detention 
is not per se unlawful.'' \390\ As to the scope of judicial 
review, Chief Judge Mukasey held that ``to resolve the issue of 
whether Mr. Padilla was lawfully detained on the facts present 
here, the court will examine only whether the President had 
some evidence to support his finding that Mr. Padilla was an 
enemy combatant, and whether that evidence has been mooted by 
events subsequent to his detention.'' \391\ Chief Judge Mukasey 
further ruled that Mr. Padilla had a right to counsel in 
connection with such a proceeding.\392\
            2. December 2002 to March 2003--Government refuses to 
                    provide counsel
    The Government refused to comply with the part of Chief 
Judge Mukasey's order requiring that Mr. Padilla have access to 
an attorney, and on January 9, 2003 asked him to amend that 
part of the order.\393\ The Government argued it was crucial in 
the interrogation process for Mr. Padilla to believe 
circumstances were hopeless and that permitting Mr. Padilla to 
consult with an attorney would interfere with the interrogation 
and thus endanger national security.\394\ The Government 
submitted an affidavit from the Defense Intelligence Agency 
(DIA) (the ``Jacoby Declaration'') that represented:

    Permitting Padilla any access to counsel may substantially 
harm our national security interests. As with most detainees, 
Padilla is unlikely to cooperate if he believes that an 
attorney will intercede in his detention. DIA's assessment is 
that Padilla is even more inclined to resist interrogation than 
most detainees. DIA is aware that Padilla has had extensive 
experience in the United States criminal justice system and had 
access to counsel when he was being held as a material witness. 
These experiences have likely heightened his expectations that 
counsel will assist him in the interrogation process. Only 
after such time as Padilla has perceived that help is not on 
the way can the United States reasonably expect to obtain all 
possible intelligence information from Padilla.\395\
    Chief Judge Mukasey held a hearing in which he castigated 
the Government's counsel Paul Clement (who would later serve as 
Solicitor General under Mukasey at the Department of Justice) 
for the Government's refusal to grant Mr. Padilla access to 
counsel--an act which appeared on its face to be contumacious. 
Though the Government had filed a motion to amend the terms of 
his order, Chief Judge Mukasey perceived that the Government 
was seeking simply to reargue its position that Mr. Padilla 
should not have counsel. And as Mukasey made clear, if the 
Government's motion to amend the order was in substance a 
``motion to reargue,'' the Government had not complied with 
certain procedural requirements. At the argument on the 
Government's motion, the following interchange occurred:
    The Court: Good morning. This conference, as it was 
initially conceived, was supposed to be for the purpose of 
discussing what steps had been taken voluntarily by the parties 
to arrange for counsel to see Mr. Padilla. It appears, or I 
gather from the papers that have been submitted, that the 
government has no intention of allowing that to happen, at 
least not voluntarily.

           *       *       *       *       *       *       *

    The Court: You decided this really wasn't a reargument 
motion so you didn't have to mention the law at all on the 
subject, right? That's what you're telling me?
    Mr. Clement: Well----
    The Court: Is that what you're telling me?
    Mr. Clement: I certainly apologize that----
    The Court: I'm not looking for an apology; I'm looking for 
an explanation. Is that what you're telling me?
    Mr. Clement: What I'm telling you is that because the 
motion was not directed at a traditional reconsideration but 
was directed at the terms----
    The Court: Then why did you apologize for leaving facts 
out? \396\

After some additional give and take, with Chief Judge Mukasey 
challenging the Government's conduct and its legal position, 
Mr. Clement turned the discussion toward the substantive issue 
of permitting Mr. Padilla access to an attorney:

    Mr. Clement: . . . And I think in fairness, as we read your 
Honor's opinion, we felt that we had not done our job in 
apprising you of the nature of our concerns [relating to right 
to counsel]. You seemed to read our concern about interrupting 
interrogation in the sense that we were somehow suggesting that 
the attorney would be there for every interrogation on an 
ongoing basis and that was our concern, and the concern that we 
wanted your Honor to be aware of was the concern and the 
potential for interference----
    The Court: Okay. Are there any other facts that you have 
that you haven't apprised me of?
    Mr. Clement: No . . .

           *       *       *       *       *       *       *

    The Court: I want you to be clear first about the things 
that I'm asking you about. Would you please be clear about 
whether you have any additional facts, either relating to Mr. 
Padilla specifically or relating to people in Mr. Padilla's 
category, that you think I ought to take into account before 
deciding the motion?
    Mr. Clement: The only thing I would say, your Honor, what I 
was about to say, is that as the Jacoby declaration says on its 
first page----
    The Court: I've seen the declaration. Do you have anything 
else?
    Mr. Clement: What the Jacoby declaration says is that it's 
not based on ongoing interrogations with Padilla because we've 
been sensitive to the concerns.
    The Court: What the answer to my question, do you have 
additional facts or not?
    Mr. Clement: If the Court would like to order us to 
provide----
    The Court: I'm not ordering anything. You're the lawyer. 
What I want to know is whether if I decide this motion now I'm 
going to get another submission that says, judge, we've got 
some additional fact or additional facts to the additional 
facts. Do you understand the question?
    Mr. Clement: I understand the question.
    The Court: What's the answer?
    Mr. Clement: The answer to that would be no.
    The Court: Thank you. You may take your seat . . .\397\

    In an order dated March 11, 2003, Judge Mukasey declined to 
reverse his initial order that Mr. Padilla be permitted to 
consult with counsel.\398\
            3. March-December 2003--Appeal to Second Circuit
    The case was appealed to the Second Circuit.\399\ In an 
opinion dated December 18, 2003--about 21 months after Mr. 
Padilla's detention--the Second Circuit concluded that the 
power to define circumstances justifying seizure and detention 
of American citizens seized in this country was squarely 
allocated by the Constitution to Congress--not the president--
and thus rejected the President's claims that his Commander-in-
Chief powers permitted him to detain Mr. Padilla:

          [C]ongress, not the Executive, should control 
        utilization of the war power as an instrument of 
        domestic policy . . . Thus, we do not concern ourselves 
        with the Executive's inherent wartime power, generally, 
        to detain enemy combatants on the battlefield. Rather, 
        we are called on to decide whether the Constitution 
        gives the President the power to detain an American 
        citizen seized in this country until the war with al 
        Qaeda ends.\400\

    The Second Circuit arrived at this conclusion from its 
reading of the powers granted Congress and those granted the 
President by the Constitution:

          The level of specificity with which the Framers 
        allocated these domestic powers to Congress and the 
        lack of any even near-equivalent grant of authority in 
        Article II's catalogue of executive powers compels us 
        to decline to read any such power into the Commander-
        in-Chief Clause. In sum, while Congress--otherwise 
        acting consistently with the Constitution--may have the 
        power to authorize the detention of United States 
        citizens under the circumstances of Padilla's case, the 
        President, acting alone, does not.\401\

This holding was the complete opposite of Mr. Yoo's assertion 
that the President's enumerated powers were a limitation on 
congressional power.
    The Second Circuit ordered the Secretary of Defense:

          to release Padilla from military custody within 30 
        days. The government can transfer Padilla to 
        appropriate civilian authorities who can bring criminal 
        charges against him. Also, if appropriate, Padilla can 
        be held as a material witness in connection with grand 
        jury proceedings. In any case, Padilla will be entitled 
        to the constitutional protections extended to other 
        citizens.\402\
            4. December 2003 to June 2004--Appeal to Supreme Court; 
                    Government permits Mr. Padilla access to counsel
    The Government sought Supreme Court review and, as it had 
in the courts below, defended its decision to hold Mr. Padilla 
as an enemy combatant as a proper exercise of the President's 
Commander-in-Chief powers, supported by the authority granted 
to him by Congress under the AUMF. As argued in the 
Government's March 2004 brief to the Supreme Court:

          The President, explicitly invoking Congress's [AUMF], 
        as well as his authority as Commander in Chief, made a 
        determination that Jose Padilla ``is, and at the time 
        he entered the United States in May 2002, was, an enemy 
        combatant,'' that Padilla is ``closely associated with 
        al Qaeda'' and has engaged in ``hostile and war-like 
        acts,'' and that ``it is in the interest of the United 
        States that'' he be detained ``as an enemy combatant.'' 
        . . . The President's determination represents a core 
        exercise of the authority both conferred by Congress 
        and granted him by Article II, and it makes clear that 
        Padilla . . . squarely fits this Court's definition of 
        an enemy combatant subject to military seizure and 
        detention.\403\

    On the same day that it filed its brief in the Supreme 
Court, the Government permitted Mr. Padilla--18 months after 
his seizure--to consult with an attorney,\404\ and by so doing 
removed this issue from Supreme Court review.
    On June 28, 2004, in a 5-4 decision, the Supreme Court 
reversed the Second Circuit on venue, holding that the 
litigation should have been brought where Mr. Padilla was in 
custody--that is, where his ``custodian'' was located--namely, 
South Carolina and not New York.\405\ This sent the case to the 
federal courts in the Fourth Circuit.
            5. July 2004 to February 2005--Litigation resumes before 
                    the district court in South Carolina
    Mr. Padilla had to start over again in the Fourth Circuit. 
In February 2005--now over two-and-a-half years after his 
seizure--the District Court in South Carolina, for largely the 
same reasons that were set forth by the Second Circuit, ruled 
that Mr. Padilla's detention was illegal. The court held that 
the President did not have the inherent power to order the 
detention, and that Congress had not authorized it in the AUMF.
            6. February-September 2005--Appeal to Fourth Circuit; 
                    Clement announces that the United States is a 
                    ``battlefield''
    The case was then appealed to the Fourth Circuit, where 
both sides repeated their earlier arguments. At oral argument 
July 19, 2005, Mr. Clement, still counsel for the Government, 
and recently confirmed as Solicitor General, argued that Mr. 
Padilla's seizure was legally equivalent to Mr. Hamdi's, and 
thus that Mr. Padilla's detention was authorized under the 
AUMF, as was Mr. Hamdi's. The only way the two seizures could 
be equivalent, however, was if Chicago and New York (where 
citizen Padilla was seized, transferred, and then turned over 
to the military) were considered the legal equivalent of the 
``battlefield'' of Afghanistan where Mr. Hamdi had been seized.
    If accepted by the court, such an equivalency would mean 
that the president had the power to designate any person in the 
United States--even one who had never taken up arms--as an 
``enemy combatant,'' and order him or her thrown into the Navy 
brig without any meaningful judicial review. It also had 
broader implications for other military powers the president 
might claim for use in the United States--such as the power to 
call out troops to search buildings, or use military personnel 
to spy on U.S. citizens.
    Mr. Clement, apparently aware of the legal and political 
ramifications of claiming the United States was a battlefield, 
initially seemed to attempt to avoid making this claim, even 
though it was the position that the Administration had secretly 
developed in 2001 and had acted on the basis of ever since. 
Rather, Mr. Clement noted that Mr. Padilla had come to Chicago 
from Afghanistan, and argued that he was fittingly designated 
as an ``enemy combatant'' for his activities there. In a 
colloquy with the Fourth Circuit judges, Clement initially 
attempted to avoid being pinned down on the ``battlefield'' 
point, instead trying to broaden the ruling of Hamdi to non-
battlefield seizures. Judge Michael asked Mr. Clement to cite 
legal authority for such a seizure.

    Judge Luttig: If the facts of [Hamdi] are that it involves 
a battlefield detention, is it not your understanding that the 
holding of the case is limited to that set of facts, even if 
the reasoning could be read broader? The holding is limited to 
that set of facts?
    Mr. Clement: Again, that is not how I would read it your 
honor . . .

           *       *       *       *       *       *       *

    J. Michael: What in the Laws of War allows you to undertake 
a non-battlefield capture and hold someone for the duration? I 
don't think you cite to anything, in the Laws of War.
    Mr. Clement: Your honor, I think . . . if one wants to talk 
about the Laws of War I think there are two principles that I 
would start with. One is the Laws of War that Hamdi recognized, 
it doesn't focus solely on capture on the battlefield, it's the 
activities on the battlefield that makes somebody an enemy 
combatant. If they're picked up in town or the battle or 
something, that doesn't limit the authority. . . .
    J. Michael: Well that may make some sense but what, you've 
got people in the Defense Department that ought to be studying 
the Laws of War all the time, you've got the Laws of Warfare, I 
don't see that you've cited us to anything out of the Laws of 
War that would authorize a non-battlefield capture and 
detention. If you can cite us chapter and verse I think that 
would be helpful.

    Eventually, under forceful questioning by Judge Luttig, 
Clement made the assertion, with increasing conviction, that 
the United States was, in fact, a ``battlefield'' for purposes 
of assessing the reach of the president's Commander-in-Chief 
powers.

    Judge Luttig: In effect, Mr. Clement, doesn't the United 
States have to be arguing that, at least in the War on Terror, 
the battlefield includes the United States?
    Mr. Clement: Your honor, I think that is certainly true. . 

    Judge Luttig: Is that the position of the United States? 
    Mr. Clement: That is the position of the United States.
    Judge Luttig: That the United States of America is a 
battleground in the War on Terror[?]
    Mr. Clement: That is our position and I don't see how it 
could be otherwise if one understands the context.
    Judge Luttig: You keep referring, in fairness, in response 
to our questions, that we have nonbattlefield detention here. 
So the import of the question is this: do we not in effect have 
a battlefield detention?
    Mr. Clement: I think that you can characterize it in that 
way and I think that's accurate, and again, in fairness to the 
questions that were asked of me, I think that there is language 
in the Hamdi plurality that is talking about foreign 
battlefield and so, I mean . . .
    Judge Luttig: Well? That drives you right back into my 
threshold question whether Hamdi as a precedent would control. 
And if, as your point there suggests, it was limited to foreign 
battlefields, then a fortiori it would not govern here unless 
you are prepared to say that this is a battlefield.
    Mr. Clement: Well, I am prepared to say that this is a 
battlefield, I am not prepared to say it is a foreign 
battlefield?. . . .

           *       *       *       *       *       *       *

    Judge Luttig: Why would you go surveying the universe of 
possible battlefields to the seeming exclusion of the United 
States? Is it just a reluctance to represent on behalf of the 
United States that the President believes that this is a 
battlefield on the War on Terror?
    Mr. Clement: No its not your honor, it's a simple . . .
    Judge Luttig: Well then why wouldn't you say that's it? And 
then you're covered by Hamdi, you're covered by the Laws of 
War, relied upon in Hamdi, and you don't have to resort to this 
more attenuated argument that, ``Well, take for instance the 
battlefield on terrorism moves to London, our concern is that 
Padilla may fly to London.'' Well that's okay, but it's hardly 
persuasive.
    Mr. Clement: Well, your honor with all respect, I think, I 
color my reluctance to the advocate's unwillingness to rest on 
a single argument when he has two. And I think that the fact . 
. .
    Judge Luttig: The question is, the advocate usually rests 
on his best argument and not his second best if he only has 
one.
    Mr. Clement: Well I haven't had any resistance to resting 
on both your honor[.]

           *       *       *       *       *       *       *

    Judge Luttig: Don't you see all of these niceties don't get 
you very far unless you are prepared to boldly say that the 
United States of America is a battlefield in the War on Terror? 
And don't you see that if you are prepared to say that and you 
can successfully defend that position, it cuts a wide swath 
through everything that you have been challenged on here today?
    Mr. Clement: Your honor, I can say that, I can say it 
boldly[.] \406\

    On September 9, 2005, the Fourth Circuit ruled for the 
Government and against Mr. Padilla, holding that pursuant to 
the AUMF, the President had the power to order Mr. Padilla 
detained in military custody, and specifically referencing the 
need for interrogation--intelligence gathering--as a basis for 
detention.\407\ The court rejected Mr. Padilla's contention 
that the Government was required either to charge him in the 
criminal courts or let him go, and ultimately concluded that 
these aspects of Mr. Padilla's detention were authorized by 
Congress under the AUMF:

    Equally important, in many instances criminal prosecution 
would impede the Executive in its efforts to gather 
intelligence from the detainee and to restrict the detainee's 
communication with confederates so as to ensure that the 
detainee does not pose a continuing threat to national security 
even as he is confined--impediments that would render military 
detention not only an appropriate, but also the necessary, 
course of action to be taken in the interest of national 
security.
    The district court acknowledged the need to defer to the 
President's determination that Padilla's detention is necessary 
and appropriate in the interest of national security. . . . 
However, we believe that the district court ultimately accorded 
insufficient deference to that determination, effectively 
imposing upon the President the equivalent of a least-
restrictive-means test. To subject to such exacting scrutiny 
the President's determination that criminal prosecution would 
not adequately protect the Nation's security at a very minimum 
fails to accord the President the deference that is his when he 
acts pursuant to a broad delegation of authority from Congress, 
such as the AUMF.\408\

The Fourth Circuit, in upholding Mr. Padilla's detention, 
relied on the AUMF, and did not consider whether the President 
could order the detention based on Article II powers.
            7. September-December 2005--Government seeks to transfer 
                    Mr. Padilla to Florida to moot Supreme Court review
    Within days of the Fourth Circuit's ruling in favor of the 
United States--and while the parties were awaiting the Supreme 
Court's decision whether to accept the case for review--the 
Government requested approval for Mr. Padilla to be transferred 
from military custody to a civilian jail, to face federal 
criminal prosecution--evidently intending to moot Supreme Court 
review of the Fourth Circuit's decision upholding his military 
confinement.
    That the Government could, after holding Mr. Padilla in 
military custody for three and half years, abruptly find that 
the need to do so had come to an end, so soon after it had 
obtained a favorable ruling from the Fourth Circuit, and 
perhaps just days prior to a decision from the Supreme Court as 
to further review, stunned the Fourth Circuit and strained its 
credulity, as evidenced in its December 21, 2005 order denying 
Mr. Padilla's transfer:

    Because of their evident gravity, we must believe that the 
consequences of the actions that the government has taken in 
this important case over the past several weeks, not only for 
the public perception of the war on terror but also for the 
government's credibility before the courts in litigation 
ancillary to that war, have been carefully considered. But at 
the same time that we must believe this, we cannot help but 
believe that those consequences have been underestimated.
    For, as the government surely must understand, although the 
various facts it has asserted are not necessarily inconsistent 
or without basis, its actions have left not only the impression 
that Padilla may have been held for these years, even if 
justifiably, by mistake--an impression we would have thought 
the government could ill afford to leave extant. They have left 
the impression that the government may even have come to the 
belief that the principle in reliance upon which it has 
detained Padilla for this time, that the President possesses 
the authority to detain enemy combatants who enter into this 
country for the purpose of attacking America and its citizens 
from within, can, in the end, yield to expediency with little 
or no cost to its conduct of the war against terror--an 
impression we would have thought the government likewise could 
ill afford to leave extant. And these impressions have been 
left, we fear, at what may ultimately prove to be substantial 
cost to the government's credibility before the courts, to whom 
it will one day need to argue again in support of a principle 
of assertedly like importance and necessity to the one that it 
seems to abandon today. While there could be an objective that 
could command such a price as all of this, it is difficult to 
imagine what that objective would be.\409\

    The Supreme Court approved Mr. Padilla's transfer,\410\ and 
ultimately declined to review the Fourth Circuit's 
opinion.\411\ The Government, in arguing against Supreme Court 
review, claimed that in light of Mr. Padilla's transfer to 
civilian custody the case was moot,\412\ but the Court declined 
to reach the mootness question.
    The Fourth Circuit's opinion in Padilla stands as the 
ruling of the highest court to consider the power of the 
President--albeit under the AUMF--to order the military 
detention of an American seized in the United States. It is one 
of the few instances where the Administration has succeeded in 
persuading a court to adopt any of its expansive views of the 
President's Commander-in-Chief powers. Its potential 
precedential significance is undermined by: 1) the Government's 
effort to moot Supreme Court review; 2) the Fourth Circuit's 
hindsight suggestion that the opinion was procured by 
representations that were no longer credible, and 3) the 
Government's request, once its conduct in the litigation was 
called into question, that the Fourth Circuit vacate the 
opinion.\413\ Nevertheless, it sits in the case law for the 
proposition that an American can be seized in the United States 
by civilian law enforcement personnel, handed over to the 
military, and interrogated for years at the direction of the 
President, with only limited recourse to the courts to 
challenge the basis for the detention.
            8. Mr. Padilla's allegations that he was subjected to harsh 
                    treatment
    Mr. Padilla's treatment while in custody was not at issue 
in the habeas litigation, but it sheds light on the conduct of 
the litigation and the relationship between the U.S. military 
and the Justice Department in formulating litigation policy.
    After Mr. Padilla was transferred to Florida to face 
federal terrorism charges, he filed a motion, through his 
attorney, requesting that the prosecution be dismissed because 
of ``outrageous government misconduct.'' In a lengthy pleading, 
Mr. Padilla described at length his treatment while in 
captivity, characterizing it as torture:

                              ----------                              

    On June 9, 2002, President George W. Bush declared Mr. 
Padilla an Enemy combatant and directed Secretary of Defense 
Donald H. Rumsfeld to take custody of Mr. Padilla from the 
Attorney General. Mr. Padilla was transferred to the Naval 
Consolidated Brig at the Naval Weapons Station in Charleston, 
South Carolina (hereinafter ``Naval Brig''), where he was 
denied all access to counsel. The government argued that Mr. 
Padilla should not be allowed to see a lawyer because he might 
pass illicit communications through his attorney. The 
government also asserted that allowing Mr. Padilla access to 
counsel or to learn that a court was hearing his case could 
provide him with the expectation that he would someday be 
released.
    Only after such time as Padilla has perceived that help is 
not on the way can the United States reasonably expect to 
obtain all possible intelligence information from Padilla . . . 
Providing him access to counsel now . . . would break--probably 
irreparably--the sense of dependency and trust that the 
interrogators are attempting to create. [Jacoby Declaration].
    In an effort to gain Mr. Padilla's ``dependency and 
trust,'' he was tortured for nearly the entire three years and 
eight months of his unlawful detention. The torture took myriad 
forms, each designed to cause pain, anguish, depression and, 
ultimately, the loss of will to live. The base ingredient in 
Mr. Padilla's torture was stark isolation for a substantial 
portion of his captivity. For nearly two years--from June 9, 
2002, until March 2, 2004, when the Department of Defense 
permitted Mr. Padilla to have contact with his lawyers--Mr. 
Padilla was in complete isolation. Even after he was permitted 
contact with counsel, his conditions of confinement remained 
essentially the same. He was kept in a unit comprising sixteen 
individual cells, eight on the upper level and eight on the 
lower level, where Mr. Padilla's cell was located. No other 
cells in the unit were occupied. His cell was electronically 
monitored twenty-four hours a day, eliminating the need for a 
guard to patrol his unit. His only contact with another person 
was when a guard would deliver and retrieve trays of food and 
when the government desired to interrogate him.
    His isolation, furthermore, was aggravated by the efforts 
of his captors to maintain complete sensory deprivation. His 
tiny cell--nine feet by seven feet--had no view to the outside 
world. The door to his cell had a window, however, it was 
covered by a magnetic sticker, depriving Mr. Padilla of even a 
view into the hallway and adjacent common areas of his unit. He 
was not given a clock or a watch and for most of the time of 
his captivity, he was unaware whether it was day or night, or 
what time of year or day it was.
    In addition to his extreme isolation, Mr. Padilla was also 
viciously deprived of sleep. This sleep deprivation was 
achieved in a variety of ways. For a substantial period of his 
captivity, Mr. Padilla's cell contained only a steel bunk with 
no mattress. The pain and discomfort of sleeping on a cold, 
steel bunk made it impossible for him to sleep. Mr. Padilla was 
not given a mattress until the tail end of his captivity. Mr. 
Padilla's captors did not solely rely on the inhumane 
conditions of his living arrangements to deprive him of regular 
sleep. A number of ruses were employed to keep Mr. Padilla from 
getting necessary sleep and rest. One of the tactics his 
captors employed was the creation of loud noises near and 
around his cell to interrupt any rest Mr. Padilla could manage 
on his steel bunk. As Mr. Padilla was attempting to sleep, the 
cell doors adjacent to his cell would be electronically opened, 
resulting in a loud clank, only to be immediately slammed shut. 
Other times, his captors would bang the walls and cell bars 
creating loud startling noises. These disruptions would occur 
throughout the night and cease only in the morning, when Mr. 
Padilla's interrogations would begin.
    Efforts to manipulate Mr. Padilla and break his will also 
took the form of the denial of the few benefits he possessed in 
his cell. For a long time Mr. Padilla had no reading materials, 
access to any media, radio or television, and the only thing he 
possessed in his room was a mirror. The mirror was abruptly 
taken away, leaving Mr. Padilla with even less sensory 
stimulus. Also, at different points in his confinement Mr. 
Padilla would be given some comforts, like a pillow or a sheet, 
only to have them taken away arbitrarily. He was never given 
any regular recreation time. Often, when he was brought outside 
for some exercise, it was done at night, depriving Mr. Padilla 
of sunlight for many months at a time. The disorientation Mr. 
Padilla experienced due to not seeing the sun and having no 
view on the outside world was exacerbated by his captors' 
practice of turning on extremely bright lights in his cell or 
imposing complete darkness for durations of twenty-four hours, 
or more.
    Mr. Padilla's dehumanization at the hands of his captors 
also took more sinister forms. Mr. Padilla was often put in 
stress positions for hours at a time. He would be shackled and 
manacled, with a belly chain, for hours in his cell. Noxious 
fumes would be introduced to his room causing his eyes and nose 
to run. The temperature of his cell would be manipulated, 
making his cell extremely cold for long stretches of time. Mr. 
Padilla was denied even the smallest, and most personal shreds 
of human dignity by being deprived of showering for weeks at a 
time, yet having to endure forced grooming at the whim of his 
captors.
    A substantial quantum of torture endured by Mr. Padilla 
came at the hands of his interrogators. In an effort to 
disorient Mr. Padilla, his captors would deceive him about his 
location and who his interrogators actually were. Mr. Padilla 
was threatened with being forcibly removed from the United 
States to another country, including U.S. Naval Base at 
Guantanamo Bay, Cuba, where he was threatened his fate would be 
even worse than in the Naval Brig. He was threatened with being 
cut with a knife and having alcohol poured on the wounds. He 
was also threatened with imminent execution. He was hooded and 
forced to stand in stress positions for long durations of time. 
He was forced to endure exceedingly long interrogation 
sessions, without adequate sleep, wherein he would be 
confronted with false information, scenarios, and documents to 
further disorient him. Often he had to endure multiple 
interrogators who would scream, shake, and otherwise assault 
Mr. Padilla. Additionally, Mr. Padilla was given drugs against 
his will, believed to be some form of lysergic acid 
diethylamide (LSD) or phencyclidine (PCP), to act as a sort of 
truth serum during his interrogations.
    Throughout most of the time Mr. Padilla was held captive in 
the Naval Brig he had no contact with the outside world. In 
March 2004, one year and eight months after arriving in the 
Naval Brig, Mr. Padilla was permitted his first contact with 
his attorneys. Even thereafter, although Mr. Padilla had access 
to counsel, and thereby some contact with the outside world, 
those visits were extremely limited and restricted. 
Significantly though, it was not until Mr. Padilla was 
permitted to visit with counsel that one of his attorneys, 
Andrew Patel, was able to provide Mr. Padilla with a copy of 
the Quran. Up until that time, for a period of almost two 
years, Mr. Padilla was [denied] the right to exercise his 
religious beliefs.\414\
                              ----------                              


The motion was denied.
    Mr. Padilla was convicted at trial of conspiracy charges. 
The Government sought a life sentence, but Judge Marcia Cooke, 
noting that ``[t]here is no evidence that these defendants 
personally maimed, kidnapped [sic] or killed anyone in the 
United States or elsewhere,'' sentenced him to 17 years. 
Significantly, Judge Cooke said that she took into account the 
``harsh'' conditions to which Mr. Padilla was subjected while 
in the brig.\415\ He remains in custody.\416\

The President's Power to Order Military Detention of Lawfully Admitted 
        Alien Seized by Civilian Authorities in the United States (al-
        Marri)

    Another case presenting some of the same features as 
Padilla is that of Ali Saleh Kahlal al-Marri. Mr. al-Marri was 
arrested as a material witness December 12, 2001, at his home 
in Peoria, Illinois. He was a Qatari citizen, in the United 
States lawfully, with his family, on a student visa pursuing a 
masters degree at Bradley University, where he had previously 
received a bachelors degree in 1991. He was indicted in 
February 2002 on various credit card fraud offenses. A year 
later, in January of 2003, he was indicted on additional 
charges relating to identification fraud and false statements 
to the FBI. These charges were dismissed in the Southern 
District of New York for improper venue, but identical charges 
were filed in the Central District of Illinois, where Mr. al-
Marri was transferred for trial. On May 29, 2003, the district 
judge set a July 21, 2003 trial date, and on June 20, 2003, the 
court scheduled a suppression hearing for July 2, 2003.
    On June 23, 2003, the Government moved ex parte to dismiss 
the indictment based on a declaration signed by President Bush 
setting forth his determination that Mr. al-Marri was an 
``enemy combatant.'' President Bush ordered the Attorney 
General to transfer Mr. al-Marri to military custody at the 
Charleston brig, where Mr. al-Marri has since remained, in 
solitary confinement, without charge or trial.
    Mr. al-Marri's conditions of confinement, as described by 
his attorneys in his September 2008 petition for Supreme Court 
review of his detention, are markedly similar to the treatment 
alleged by Mr. Padilla:

          For the first sixteen months of al-Marri's military 
        confinement, he was held incommunicado. His attorneys, 
        his wife and five children, and the International 
        Committee for the Red Cross (``ICRC'') all were denied 
        access. The government ignored al-Marri's counsel's 
        repeated requests to communicate with him. During that 
        time, al-Marri was repeatedly interrogated in ways that 
        bordered on, and sometimes amounted to, torture, 
        including sleep deprivation, painful stress positions, 
        extreme sensory deprivation, and threats of violence or 
        death.
          Only in October 2004 was al-Marri again allowed 
        access to counsel. Al-Marri, however, remains in 
        virtual isolation in the brig. Other than his attorneys 
        and ICRC officials, al-Marri is not permitted to see 
        anyone from the outside world. To date, he has been 
        allowed only two phone calls with his family, both 
        earlier this year, and then only after the government 
        faced litigation challenging his conditions of 
        confinement.\417\

    Over the years during his detention, Mr. al-Marri has 
sought to challenge the bases of his incarceration. Initially, 
in July of 2003, shortly after he was turned over to the 
military, his attorney filed a petition on his behalf for a 
writ of habeas corpus in Illinois, where his criminal charges 
had been pending. This petition was dismissed on venue grounds, 
because he was by then being held in South Carolina.\418\
    In July of 2004, Mr. al-Marri's counsel filed a subsequent 
habeas petition in South Carolina, initiating a round of 
litigation that involved many of the same issues as those in 
the Padilla case. Mr. al-Marri maintained that he was entitled 
to know the factual bases for his detention, and to challenge 
them in a real court proceeding, where he would not only be 
informed of the specific charges but would have the opportunity 
to challenge the evidence and present evidence on his behalf. 
The Government, in response, asserted that the President had 
the constitutional power as Commander in Chief, or power 
granted him under the AUMF, to designate Mr. al-Marri an 
``enemy combatant,'' that the court must defer to those 
assertions of power, and that the court should affirm Mr. al-
Marri's detention on the basis of an affidavit executed by an 
official of the Executive Branch, portions of which were 
secret, and nearly all of which consisted of hearsay.
    In further support for its right to continue Mr. al-Marri's 
detention, potentially indefinitely, the Government submitted a 
``Declaration of Jeffrey N. Rapp of the Joint Intelligence Task 
Force for Combating Terrorism.'' The ``Rapp Declaration'' sets 
forth serious allegations, including, for example, that Mr. al-
Marri had met with Osama bin Laden, had researched the use of 
cyanide, and intended to be involved in deadly terrorist events 
in the United States. It did not allege that Mr. al-Marri was 
ever on or near a ``battlefield.''
    In considering the positions of the parties, the district 
court found that the Rapp Declaration was sufficient on its 
face to justify the continued military detention of Mr. al-
Marri, and placed the burden on Mr. al-Marri to rebut the 
allegations set forth in the Rapp Declaration. Mr. al-Marri 
responded that he was not required to rebut the allegations, 
some of which were secret and unknown to him; rather, it was 
for the Government to prove them, and that Mr. al-Marri was 
entitled to certain basic due process rights, such as the 
disclosure of exculpatory evidence. In August of 2006, Mr. al-
Marri's habeas petition was dismissed,\419\ and Mr. al-Marri 
appealed the dismissal to the Fourth Circuit.
    In June of 2007, a three-judge panel of the Fourth Circuit 
reversed the district court and concluded that Mr. al-Marri's 
military detention must end.\420\ The Government then sought 
and obtained rehearing by the full court.
    Over a year later, on July 15, 2008, the Fourth Circuit en 
banc reversed the panel decision and ruled, in a 5-4 decision, 
that the AUMF granted the President the power to detain Mr. al-
Marri as an enemy combatant, but that Mr. al-Marri had the 
right to challenge the allegation that he was an enemy 
combatant.\421\ As to this latter point, the court held that 
the district court's placing the burden on Mr. al-Marri to 
respond to secret and hearsay allegations and denying him 
access to essential evidence did not accord with constitutional 
due process protections to which he was entitled. Notably, no 
member of the panel agreed that the President had the inherent 
authority as Commander in Chief to order Mr. al-Marri's 
military detention inside the United States.
    The al-Marri case, like the Padilla case, has the following 
features: the civilian arrest of a person lawfully in the 
United States; the order by the President that the person be 
turned over to military custody for potentially indefinite 
incarceration; the subjection of that individual to harsh 
interrogation techniques such as sleep deprivation; the denial 
to that individual of legal counsel and other essential aspects 
of due process to permit him to challenge the bases of his 
detention; the claim that the President enjoys such powers over 
the individual's liberty as Commander in Chief, or, in the 
alternative, that such power were granted by Congress in the 
AUMF. The implications of the President's view of his power are 
obvious and ominous: ``This intolerable reading of the law 
would leave a president free to suspend the rights of anyone, 
including American citizens.'' \422\
    Judge Motz, writing for the 4 judges who believed the 
Executive did not have authority to subject Mr. al-Marri to 
military detention as an ``enemy combatant,'' either inherently 
under the Constitution, or under the AUMF, made it clear she 
was not suggesting that Mr. al-Marri be freed, but that the 
Government comply with the law:

          We would also grant al-Marri habeas relief. Even 
        assuming the truth of the Government's allegations, 
        they provide no basis for treating al-Marri as an enemy 
        combatant or as anything other than a civilian. This 
        does not mean that al-Marri, or similarly situated 
        American citizens, would have to be freed. Like others 
        accused of terrorist activity in this country, from the 
        Oklahoma City bombers to the convicted September 11th 
        conspirator, they could be tried on criminal charges 
        and, if convicted, punished severely. But the 
        Government would not be able to subject them to 
        indefinite military detention.
          With regret, we recognize that this view does not 
        command a majority of the court. Our colleagues hold 
        that the President can order the military to seize from 
        his home and indefinitely detain anyone in this 
        country--including an American citizen--even though he 
        has never affiliated with an enemy nation, fought 
        alongside any nation's armed forces, or borne arms 
        against the United States anywhere in the world. We 
        cannot agree that in a broad and general statute, 
        Congress silently authorized a detention power that so 
        vastly exceeds all traditional bounds. No existing law 
        permits this extraordinary exercise of executive power. 
        [footnote omitted] Even in times of national peril, we 
        must follow the law, lest this country cease to be a 
        nation of laws. For ``[l]iberty and security can be 
        reconciled; and in our system they are reconciled 
        within the framework of the law.'' \423\

    Mr. al-Marri sought Supreme Court review of the Fourth 
Circuit decision, urging the Court to resolve ``the scope of 
the government's domestic military detention power granted by 
the AUMF and permitted under the Constitution.'' \424\ The Bush 
Administration urged the Court not to grant review, arguing, 
among other reasons, that review was not yet appropriate 
because Mr. al-Marri had not yet availed himself of the 
expanded protections ordered by the Fourth Circuit: ``If 
petitioner's challenge is successful, there will be no need for 
this Court to consider the purely legal question of the 
President's authority. If it is not successful, petitioner will 
be able to reassert his claims at that time.'' \425\ In 
addition, the Government argued that the military detention of 
Mr. al-Marri based upon facts set forth in the Rapp Declaration 
was authorized by the AUMF, because Mr. al-Marri was an ``enemy 
combatant'' within those facts.\426\
    On December 5, 2008, the Supreme Court agreed to hear the 
case.\427\
                              ----------                              

    When subjected to judicial scrutiny, the Administration's 
claims of vast uncheckable Commander-in-Chief powers supposedly 
provided the President under the Constitution have largely 
disintegrated. In Hamdi, the Supreme Court declined to endorse 
the Government's claim that those powers inherently authorized 
him to keep Hamdi in military detention simply because he was 
seized on the battlefield, though a four-Justice plurality held 
that Congress had granted him that authority in the AUMF. In 
Hamdan, the Supreme Court held that those powers did not 
authorize the President to establish military trial commissions 
in violation of the Uniform Code of Military Justice (enacted 
by Congress) and the Geneva Conventions. Even in Padilla and 
al-Marri, the Fourth Circuit, in upholding the two detentions, 
held that they were lawful only because Congress had given the 
President the requisite power. Further, the ability of the 
Executive Branch to avoid jurisdiction of the courts by holding 
the detainees at Guantanamo was foreclosed by the Supreme 
Court's decisions in Rasul and Boumediene. As a last resort, 
the Administration turned to efforts to moot judicial review, 
by belatedly providing access to counsel or transferring to 
civilian custody after prolonged military detention.
    One of the most emphatic rejections of this 
Administration's expansive assertions of presidential military 
power came from Justice Scalia, in his dissent in Hamdi: ``The 
very core of liberty by our Anglo-Saxon system of separated 
power has been freedom from indefinite imprisonment at the will 
of the Executive.'' \428\
            C. Committee Action
    The House Committee on the Judiciary engaged in a number of 
hearings and oversight activities with regard to the Bush 
Administration's detention policies and related issues.
    An oversight hearing on detention-related issues, titled 
``Habeas Corpus and Detentions at Guantanamo Bay,'' was held by 
the Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties, on June 26, 2007. At that time, the due process 
landscape for the detainees was bleak. This hearing focused on 
the Administration's Guantanamo detention polices that placed 
all decisions related to detention in the hands of the military 
components of the Executive Branch. Moreover, the 
Administration had scrapped traditional military justice 
procedures for adjudicating the status of detainees and, 
through the passage of the Military Commissions Act of 
2006,\429\ not only implemented a military commission process 
with evidentiary rules stacked against the detainees but sought 
to deprive them of their ability to seek habeas corpus relief 
in the federal courts. The Administration was, at that time, 
arguing in the federal courts that the detainees had no right 
to judicial review of those decisions.
    Subcommittee Chairman Jerrold Nadler described the 
situation as follows:

          This Administration seems to believe that it has 
        greater wisdom and virtue than governments of the last 
        800 years, that it can be trusted to make correct and 
        just determinations about who should be locked up 
        without any independent review.
          The President claims the power to point his finger at 
        anybody who is not an American citizen and say, ``you 
        are an enemy combatant because I say so. And because I 
        say so, we are going to keep you in jail forever, with 
        no hearing, no writ of habeas corpus, no court 
        proceeding, no confrontation of witnesses, no probable 
        cause, no due process of any kind.'' \430\

    One of the witnesses, Jonathan Hafetz of the ACLU's 
National Security Project, bluntly described the Combatant 
Status Review Tribunal--the military body established by the 
Administration to make decisions about a detainee's status--as 
having been ``created deliberately to avoid habeas review.'' He 
further described it as follows:

          [a] summary proceeding that lacks all the hallmarks 
        of due process: denying detainees attorneys, relying on 
        secret evidence, preventing detainees from calling 
        witnesses or presenting evidence, using evidence gained 
        by torture and other abuse, and rubber-stamping 
        detentions based on what higher-up have said and 
        political influence.\431\

He characterized Guantanamo as a ``failure'' and stated that 
``a principal reason is that the United States has denied 
habeas corpus to Guantanamo detainees; it has prevented any 
lawful or meaningful process to determine whether we are 
detaining people in accordance with law.'' \432\
    Subcommittee Chairman Nadler challenged former 
Administration lawyer Bradford Berenson on the Administration's 
legal theory in Padilla:

    Mr. Nadler: The President claims the power, for example, in 
the Padilla case, to seize someone in the United States, some 
who we don't know to be an enemy combatant--there may be 
information to that effect, . . . and throw them in a military 
brig forever.
    How is that not a new tyrannical power? 
    Mr. Berenson: I think that is a misunderstanding of the 
power that the President claimed with respect to Mr. Padilla.
    I was working in the White House at the time that Padilla 
was first captured, and the United States never took the 
position that Mr. Padilla did not have right of access to U.S. 
courts and did not have the ability to file a writ of habeas 
corpus.

           *       *       *       *       *       *       *

    [T]he dispute was really over what the habeas court could 
do. The administration took a very restrictive view of the 
right mode of judicial review for the habeas court; that is, it 
was extremely deferential review, which essentially amounted to 
a review of the record on which the administration had based 
its conclusion that Padilla was a combatant. The administration 
did not want trial-type adversary proceedings, with lawyers on 
both sides duking it out----
    Mr. Nadler: How can the characterization of the accusation 
deprive me of rights?
    Mr. Berenson: Because it is a fundamentally different thing 
to take up arms against this Nation----

           *       *       *       *       *       *       *

    Mr. Nadler: The position you are taking is that, because 
they are accused of being an enemy combatant, they should have 
fewer rights than someone accused of different crimes but even 
more serious crimes. 
    Mr. Berenson: Well, the evidence on which the President 
certified that Mr. Padilla was an enemy combatant included very 
good intelligence about his meetings with Osama bin Laden----
    Mr. Nadler: It may or may not be wonderful intelligence. It 
may or may not be true. That is not the question.\433\

    Other witnesses at that hearing stressed the numerous 
problems with the Military Commissions Act and the 
Administration's determined efforts to deny detainees the right 
to seek habeas relief. They made the following points:
     Permitting habeas review would impose a very 
modest burden on the courts.\434\
     As a policy matter, ``[f]or the very reason that 
the law of war allows us to detain persons without charging 
them with criminal conduct for extended periods, it is all the 
more important to be sure that the process for determining who 
those people are is beyond reproach.'' \435\
     The ``global war on terror'' has ``no identifiable 
enemies, no recognizable battlefields and no foreseeable end. 
It is precisely the indeterminate, open-ended nature of the 
fight against terrorism that increases the risk that government 
officials will inadvertently detain the wrong people based upon 
suspicion, innuendo or mistake. In other words, the very nature 
of what the Administration calls a global war on terror makes 
habeas corpus more, not less, important.'' \436\
     The Guantanamo detention policies have shaken the 
trust that the world had in America's justice system, and 
undermined the faith that is necessary to fight terrorism.\437\
    In addition, the Committee has specifically sought public 
release of the Memorandum dated October 23, 2001, that 
addressed the lawfulness of the use of military powers inside 
the United States \438\--a topic that appears to address or 
implicate the president's ability to exercise military powers 
in connection with detention policy of Americans inside the 
United States.

                           II. Interrogation

            A. Factual Background

December 2001 to February 2002--Determinations that the protections of 
        the Geneva Conventions, including common Article III, do not 
        apply to Guantanamo detainees

    The decision announced in December 2001 that the 
Administration intended to detain captives at Guantanamo--based 
on the private legal conclusion that ``a district court cannot 
properly entertain an application for a writ of habeas corpus 
by an enemy alien'' who was detained there \439\--reflected its 
desire to, among other things, interrogate the detainees 
without interference from the courts.
    At about the same time, the Defense Department General 
Counsel's Office began soliciting information from the ``Joint 
Personnel Recover Agency''(JPRA) regarding detainee 
``exploitation.'' \440\ One of the functions of JPRA is to 
train American personnel to resist interrogation techniques 
considered illegal under the Geneva Conventions. In particular, 
the JPRA oversaw ``Survival Evasion Resistance and Escape 
(SERE) training. As described by the Senate Armed Services 
Committee:

          The techniques used in SERE school, based, in part, 
        on Chinese Communist techniques used during the Korean 
        war to elicit false confessions, include stripping 
        students of their clothing, placing them in stress 
        positions, putting hoods over their heads, disrupting 
        their sleep, treating them like animals, subjecting 
        them to loud music and flashing lights, and exposing 
        them to extreme temperatures. It can also include face 
        and body slaps and until recently, for some who 
        attended the Navy's SERE school, it included 
        waterboarding.\441\

Over the next two years, the JPRA would consult with and assist 
the Department of Defense in the formulation of interrogation 
techniques.
    On January 9, 2002, Deputy Assistant Attorney General Yoo 
signed a memorandum that concluded that detainees from the war 
in Afghanistan were not entitled to the protections of the 
Geneva Conventions, particularly the right to protections as 
prisoners of war and the even more fundamental protections of 
the Conventions' Common Article 3.\442\ These legal conclusions 
were not only necessary to ensure that U.S. military personnel 
at Guantanamo could use coercive interrogation on the 
detainees--a practice not permitted if the detainees were 
protected by the Conventions--but, more significantly, to 
assure that the U.S. military personnel would not be subject to 
the limitations on their conduct under the War Crimes Act of 
1996. That Act defined ``war crime'' as either a ``grave 
breach'' of the Conventions, or any violation of Common Article 
3,\443\ and provided for fines, life imprisonment, and even 
execution for criminal violations, whether perpetrated inside 
or outside of the United States.
    Mr. Yoo concluded that al Qaeda was not eligible to claim 
the protections of the Geneva Conventions because, among other 
reasons, al Qaeda was a ``non-State actor,'' and because the 
``nature of the conflict''--that is, a conflict between a 
``nation State and a non-governmental organization''--was not a 
conflict covered by Common Article 3 of the Conventions.\444\ 
Similarly, the Taliban militia was not entitled to those 
protections because, among other reasons, Afghanistan was a 
``failed state'' that ``was without the attributes of statehood 
necessary to continue as a party to the Geneva Conventions,'' 
or was otherwise ``functionally indistinguishable from al 
Qaeda.'' \445\
    On January 25, 2002, White House Counsel Alberto Gonzales, 
in a memorandum to President Bush, endorsed Yoo's analysis in 
the January 9, 2002 memorandum, and advised President Bush to 
declare the Taliban and Al Qaeda exempt from Geneva Convention 
protections.\446\
    On February 2, 2002, State Department Legal Advisor William 
H. Taft IV authored a memorandum to White House Counsel 
Gonzales warning that rejection of the Geneva Conventions would 
raise serious concerns. ``A decision that the conventions do 
not apply to the conflict in Afghanistan in which our armed 
forces are engaged deprives our troops there of any claim to 
the protection of the conventions in the event they are 
captured.'' \447\
    On February 7, 2002, President Bush signed a Memorandum 
titled ``Humane Treatment of al Qaeda and Taliban Detainees'' 
that resolved the internal debate regarding the treatment of 
detained individuals. This Memorandum provided that the 
protections enumerated in the Conventions would not apply to 
the detainees. The President's memo stated there was a need for 
``new thinking in the law of war,'' though it did call for 
humane treatment for the detainees ``in a manner consistent 
with the principles of Geneva''--``to the extent appropriate 
and consistent with military necessity.'' \448\
    Having determined that key provisions of international law 
(and hence the War Crimes Act) did not constrain the 
interrogators, the next question was whether other domestic 
criminal statutes--such as the federal criminal torture 
statute--constrained them. There were evidently separate 
interrogation policies for the military (at Guantanamo) and for 
the CIA, though the precise roles of these agencies, and the 
precise evolution of policies for these different agencies, are 
not always clear from the information obtained to date.

The August 1, 2002 Torture Memorandum

    Having decided that persons seized in the conflict with al 
Qaeda and the Taliban would be detained at Guantanamo, where it 
was believed they would have no access to the courts to 
challenge their detentions, and having decided that the 
detainees were not were not to be treated as POWs or protected 
by Common Article 3 of the Geneva Conventions, the next issue 
for the Administration was the limits of interrogation--what 
was meant by ``torture,'' and the potential application of the 
federal criminal torture statutes to the conduct of the 
interrogators.\449\ In a memorandum to Alberto Gonzales (then 
White House Counsel) dated August 1, 2002, the Justice 
Department's OLC provided advice to the White House as to the 
legal meaning of ``torture'' under the federal criminal 
statutes that prohibited it.\450\ The memorandum did not 
distinguish between acts of the military and acts of the 
CIA.\451\
    Recognizing that torture involves the infliction of 
``severe pain,'' one controversial aspect of the opinion was 
its conclusion that ``severe pain . . . as used [in the federal 
criminal statute prohibiting torture] must rise to . . . the 
level that would ordinarily be associated with a sufficiently 
serious physical condition such as death, organ failure, or 
serious impairment of body functions.'' \452\ This would appear 
to allow, for example, crushing the little toe or water-
boarding or drilling through a tooth.\453\
    Even aside from minimizing the ``pain'' aspect of what was 
meant by torture, this memorandum set forth other bases whereby 
torture would be permitted. For example, in one instance, Mr. 
Yoo argued that torture could be justified in the name of 
national defense. This is how one law professor dissected that 
claim:

          The analysis of self-defense, for example, inverts a 
        doctrine permitting last-resort defensive violence 
        against assailants into a rationale for waterboarding 
        helpless prisoners. OLC cites no conventional legal 
        authority for this inversion, for the simple reason 
        that there is none. Although OLC claimed to base its 
        analysis on the teachings of ``leading scholarly 
        commentators'' . . . in fact this is only one such 
        commentator, and OLC flatly misrepresents what he says. 
        [footnote omitted].\454\

    The memorandum further concluded that the President could 
not be constrained from ordering torture, even under a broad 
definition of that term, because neither Congress nor a treaty 
could limit the President in the exercise of his Commander-in-
Chief powers:

    In light of the President's complete authority over the 
conduct of war, without a clear statement otherwise, we will 
not read a criminal statute as infringing on the President's 
ultimate authority in these areas.

           *       *       *       *       *       *       *

    In order to respect the President's inherent constitutional 
authority to manage a military campaign against al Qaeda and 
its allies, [18 U.S.C. 2340A] must be construed as not applying 
to interrogations undertaken pursuant to his commander-in-chief 
authority. As our Office has consistently held during this 
Administration and previous Administrations, Congress lacks 
authority under Article I to set the terms and conditions under 
which the President may exercise his authority as Commander in 
Chief to control the conduct of operations during a war . . . 
[T]he President's power to detain and interrogate enemy 
combatants arises out of his constitutional authority as 
Commander in Chief . . . Congress may no more regulate the 
President's ability to detain and interrogate enemy combatants 
than it may regulate his ability to direct troop movements on 
the battlefield. Accordingly, we would construe Section 2340A 
to avoid this constitutional difficulty, and conclude that it 
does not apply to the President's detention and interrogation 
of enemy combatants pursuant to his Commander-in-Chief 
authority.\455\

    Under the logic of Deputy Assistant Attorney General Yoo's 
view of presidential power, the President, as Commander in 
Chief, could direct the torture of a detainee's innocent child 
in order to obtain his cooperation, and no law can stop him. 
This is no exaggeration, nor is it a proposition from which Mr. 
Yoo would retreat. In a December 1, 2005, debate with Notre 
Dame Professor Doug Cassel, Mr. Yoo stated the President could 
lawfully order ``crushing the testicles of a person's child'':
    Mr. Cassel: If the President deems that he's got to torture 
somebody, including by crushing the testicles of the person's 
child, there is no law that can stop him?
    Mr. Yoo: No treaty.
    Mr. Cassel: Also no law by Congress. That is what you wrote 
in the August 2002 memo.
    Mr. Yoo: I think it depends on why the President thinks he 
needs to do that.\456\

    After the August 1, 2002 Torture Memorandum was leaked, it 
came under a barrage of criticism--particularly for its 
assertions regarding the scope of presidential power. In 
December 2004, the OLC, now under Acting Assistant Attorney 
General Daniel Levin, issued another opinion superseding the 
earlier memorandum in its entirety, and specifically rejecting 
the ``organ failure'' definition of torture.\457\ The new 
opinion did not address the President's supposed power to order 
torture (notwithstanding federal law that prohibited torture)--
an issue deemed ``unnecessary'' because the President had 
directed that U.S. personnel not torture.

August 1, 2002--Waterboarding Approved for CIA Use

    In March 2002, a senior al Qaeda operative, Abu Zubaydah, 
was captured, and the CIA sought guidance on how it could 
interrogate him. As reported by the Senate Armed Services 
Committee:

          Secretary of State Condoleezza Rice, who was then the 
        National Security Advisor, said that, ``in the spring 
        of 2002, CIA sought policy approval from the National 
        Security Council (NSC) to begin an interrogation 
        program for high-level al-Qaida terrorists.'' Secretary 
        Rice said that she asked Director of Central 
        Intelligence George Tenet to brief NSC Principals on 
        the program and asked Attorney General John Ashcroft 
        ``personally to review and confirm the legal advice 
        prepared by the Office of Legal Counsel.'' She also 
        said that Secretary of Defense Donald Rumsfeld 
        participated in the NSC review of CIA's program.\458\

    On August 1, 2002, the same day that the Torture Memorandum 
was issued, the Justice Department OLC, in a separate 
memorandum signed by Jay Bybee, approved the CIA's use of 
waterboarding.\459\ This memorandum is heavily redacted, and 
the publicly disclosed portions do not specifically mention 
waterboarding. However, its contents are described in an 
undated memorandum from the CIA to OLC, referring to CIA 
interrogators having been informed that the Justice Department 
had in a classified August 1, 2002 opinion concluded that 
certain interrogation techniques, ``including the waterboard,'' 
did not violate the torture statute.\460\ Moreover, in context, 
it appears that the redacted August 1, 2002, Justice Department 
OLC memorandum was written to authorize the waterboarding of 
Abu Zubaydah, who was captured in March of 2002.\461\ It is not 
publicly known what, if any, other interrogation techniques 
were approved in that second August 1, 2002 memorandum.\462\
    The full extent of the CIA's interrogation program has not 
been disclosed.\463\ Vice President Cheney has recently taken 
credit for it, however, in an ABC News interview:

    Mr. Karl: Did you authorize the tactics that were used 
against Khalid Sheikh Mohammed?
    Mr. Cheney: I was aware of the program, certainly, and 
involved in helping get the process cleared, as the agency in 
effect came in and wanted to know what they could and couldn't 
do. And they talked to me, as well as others, to explain what 
they wanted to do. And I supported it.\464\

October 2002 to March 2003--Development of Techniques for Use at 
        Guantanamo

    It has been reported that throughout 2002, there was a 
growing sense within the Administration that the interrogation 
policies at Guantanamo were not yielding the desired 
intelligence, and a corresponding desire that more aggressive 
interrogation techniques be used to extract information from 
the detainees. In September 2002, David Addington, with others, 
went to Guantanamo.\465\ One of the purposes of the visit was 
to address issues associated with the limits on interrogation. 
The reaction of one of the JAG officers there, Diane Beaver, 
was described as follows:

          [Addington, Gonzales, and Department of Defense 
        General Counsel Jim Haynes] met with the intelligence 
        people and talked about new interrogation methods. They 
        also witnessed some interrogations. Beaver spent time 
        with the group . . . She recalled the message they had 
        received from the visitors: Do ``whatever needed to be 
        done.'' That was a green light from the very top--the 
        lawyers for Bush, Cheney, Rumsfeld, and the CIA.\466\

    On October 11, 2002, the head of the Military Intelligence 
Task Force, General Michael Dunlavey, requested that his 
superior officers approve the use of certain ``counter 
resistance techniques'' for interrogation. Lieutenant Colonel 
Diane Beaver provided the supporting legal advice. In the 
letter, Dunlavey divided the ``counter-resistance strategies'' 
into three categories. Category I techniques include yelling 
and deceiving. Category II techniques include stress positions, 
forcing individuals to stand for up to four hours, for example; 
isolation for up to 30 days; hooding during transportation and 
questioning; 20-hour interrogations; removal of ``comfort items 
(including religious items)''; nudity; forced grooming; and the 
use of ``detainee's individual phobias (such as fear of dogs) 
to induce stress.'' Category III techniques--which, in General 
Dunlavey's scheme, only a commanding general could approve, 
included:
          (i) The use of scenarios designed to convince the 
        detainee that death or severely painful consequences 
        are imminent for him and/or his family.
          (ii) Exposure to cold weather or water (with 
        appropriate medical monitoring).
          (iii) Use of a wet towel and dripping water to induce 
        the perception of suffocation, or waterboarding.
          (iv) Use of mild, non-injurious physical contact 
        (such as grabbing and light pushing).\467\
As the Senate Armed Services Committee reported, some of these 
techniques--``including stress positions, exploitation of 
detainee fears (such as fear of dogs), removal of clothing, 
hooding, deprivation of light and sound, and the so-called wet 
towel treatment or the waterboard''--were patterned after those 
associated with the Armed Forces SERE training.\468\
    On October 25, 2002, General James Hill sent General 
Dunlavey's request to the Defense Department with his own 
letter stating, ``I desire to have as many options as possible 
at my disposal and therefore request that Department of Defense 
and Department of Justice lawyers review the third category of 
techniques. I believe we should provide our interrogators with 
as many legally permissible tools as possible.'' \469\
    During the October-November 2002 time-frame, numerous 
voices from components of the military expressed their 
opposition to or concerns with the enhanced interrogation 
techniques being urged.\470\
    On November 27, 2002, Department of Defense General Counsel 
Jim Haynes requested that Secretary Rumsfeld approve the 
counter-resistance techniques.\471\ On December 2, 2002, 
Secretary Rumsfeld approved Haynes's request for the use of 
Category I and II techniques. He additionally approved the use 
of the ``mild, non-injurious'' Category III techniques. Beside 
his approval, Rumsfeld wrote, ``However, I stand for 8-10 hours 
a day. Why is standing limited to 4 hours? D.R.'' \472\
    The response of the Guantanamo investigators was swift. 
According to the Senate Armed Services Committee Report:

    Following the Secretary's December 2, 2002 authorization, 
senior staff at GTMO began drafting a Standard Operating 
Procedure (SOP) specifically for the use of SERE techniques in 
interrogations. The draft SOP stated that ``The premise behind 
this is that the interrogation tactics used at U.S. military 
SERE schools are appropriate for use in real-world 
interrogations. These tactics and techniques are used at SERE 
school to `break' SERE detainees. The same tactics and 
techniques can be used to break real detainees during 
interrogation.'' The draft ``GTMO SERE SOP'' described how to 
slap, strip, and place detainees in stress positions. It also 
described other SERE techniques, such as ``hooding,'' 
``manhandling,'' and ``walling'' detainees.
    On December 30, 2002, two instructors from Navy SERE school 
arrived at GTMO. The next day, in a session with approximately 
24 interrogation personnel, the two SERE instructors 
demonstrated how to administer stress positions, and various 
slapping techniques. According to two interrogators, those who 
attended the training even broke off into pairs to practice the 
techniques.
    Exemplifying the disturbing nature of the training, the 
SERE instructors explained ``Biderman's Principles''--which 
were based on coercive methods used by the Chinese Communist 
dictatorship to elicit false confessions from U.S. POWs during 
the Korean War--and left with GTMO personnel a chart of those 
coercive techniques. Three days after they conducted the 
training, the SERE instructors met with GTMO's Commander, Major 
General Geoffrey Miller. According to some who attended that 
meeting, Major General Miller stated that he did not want his 
interrogators using the techniques that the Navy SERE 
instructors had demonstrated. That conversation, however, took 
place after the training had already occurred and not all of 
the interrogators who attended the training got the 
message.\473\

    On January 15, 2003, in response to concerns raised by the 
General Counsel for the Department of Navy, Alberto Mora, 
Secretary Rumsfeld rescinded his December 2 instructions, 
disallowed the use of the Category II and III interrogation 
techniques, and required that the Secretary approve the use of 
these techniques.\474\ He also set up a ``working group'' to 
address the interrogation policies.
    On March 6, 2003, the working group issued a ``Working 
Group Report on Detainee Interrogations in the Global War on 
Terrorism.'' The report adopted what was in essence the Yoo-
Gonzales conclusions from 2002--that the President, as 
Commander in Chief, was not bound by international treaties 
prohibiting torture, or the federal anti-torture statutes:

          In order to respect the President's inherent 
        constitutional authority to manage a military campaign, 
        [the statutory prohibitions against torture] must be 
        construed as inapplicable to interrogations undertaken 
        pursuant to his authority as Commander-in-Chief. 
        Congress lacks authority under Article I to set the 
        terms and conditions under which the President may 
        exercise his authority as Commander-in-Chief to control 
        the conduct of operations during a war.

The Report concluded that Executive Branch officials, including 
those in the military, could be immune from domestic and 
international prohibitions against torture for a variety of 
reasons, including a belief by interrogators that they were 
acting on orders from superiors ``except where the conduct goes 
so far as to be patently unlawful.'' \475\

John Yoo's March 14, 2003 Torture Memorandum

    In a March 14, 2003, memorandum, Mr. Yoo again opined on 
the issue of torture.\476\ The legal aspects of the memorandum 
generally track the same expansive views of presidential power 
set forth in prior memoranda, including his reliance on the 
presumed reach of the AUMF.\477\ Significantly, as with the 
September 25, 2001 War Powers Memorandum described in the 
Preface to this Report, this memorandum intimated but did not 
explicitly state that the President enjoyed the latitude to 
exercise Commander-in-Chief powers inside the United States. 
Mr. Yoo noted that ``the Government has engaged in a broad 
effort at home and abroad to counter terrorism.'' \478\ The 
memorandum cites newspaper articles for the proposition that 
``al Qaeda continues to enjoy information and resources that 
allow it to organize and direct active hostile forces against 
this country, both domestically and abroad,'' \479\ and 
therefore that ``information is perhaps the most critical 
weapon for defeating al Qaeda.'' \480\ And he asserts that 
``[o]ne of the core functions of the Commander-in-Chief is that 
of capturing, detaining, and interrogating members of the 
enemy.'' \481\
    Mr. Yoo spends significant efforts explaining that neither 
the Fifth Amendment (due process) or Eighth Amendment (cruel 
and unusual punishments) provide rights to captured enemy 
soldiers, and, in a footnote, further notes that ``the Fourth 
Amendment ha[s] no application to domestic military 
operations.'' \482\ Mr. Yoo would have had at least two reasons 
to insert this qualification as to the applicability of the 
Fourth Amendment: first, he certainly knew that Jose Padilla, a 
U.S. citizen, had been seized in the United States, had been 
turned over to the military--without a judge ever passing on 
the military detention, and was then being subject to the sort 
of coercive interrogation that Yoo would further discuss in the 
memorandum; second, he would likely have known that the United 
States was engaging in electronic surveillance in the United 
States that was not permitted under FISA and arguably violated 
the Fourth Amendment.
    Mr. Yoo's discussion of the President's war power is again 
couched in extreme and sweeping terms: ``The President enjoys 
complete discretion in the exercise of his Commander-in-Chief 
authority . . .''; ``[the President has] complete authority 
over the conduct of war;'' ``[the] President [is placed] in the 
dominant constitutional position due to his authority as 
Commander in Chief  . .''; ``the conduct of war is a matter 
that is fundamentally executive in nature, the power over which 
the Framers vested in a unitary executive.'' In light of those 
war powers, he reasons, federal criminal law involving assault, 
maiming, stalking and torture cannot be applied to the 
military, for to do so would ``infring[e] on the President's 
ultimate authority [over the conduct of war]'' \483\ and that 
those statutes should therefore be interpreted so as not to 
create a Constitutional conflict.
    In his effort to make the point that the torture statute is 
ambiguous, Mr. Yoo points out, for example, that criminal 
statutes against murder do not explicitly provide an exception 
to permit the military forces to kill an enemy in combat--yet 
clearly the homicide statutes would not be applied to the 
military in that context. By this logic, he reasons that the 
torture statute, which does not specifically set forth its 
applicability to military personnel, would also not apply to 
the military.\484\ He compares applying criminal torture laws 
against service personnel who torture in the performance of 
their duties with, for example, applying criminal drug laws 
against undercover law enforcement officers who possess drugs 
in the performance of their duties, or applying speeding laws 
against an ambulance driver.\485\ According to Mr. Yoo, ``the 
legislative history indicates no intent to apply [the torture 
prohibition] to the conduct of military personnel.'' \486\
    The application of the torture statute to the military, 
however, would appear evident from the statute. When Congress 
enacted the statute, it explicitly stated it was implementing 
the Convention Against Torture, and that Convention explicitly 
contemplates that the torture prohibitions were to apply to the 
military in wartime.\487\ For example, Article 2 provides:
          1. Each State Party shall take effective legislative, 
        administrative, judicial or other measures to prevent 
        acts of torture in any territory under its 
        jurisdiction.
          2. No exceptional circumstances whatsoever, whether a 
        state of war or a threat or war, internal political 
        instability or any other public emergency, may be 
        invoked as a justification of torture.
          3. An order from a superior officer or a public 
        authority may not be invoked as a justification of 
        torture.\488\
    Similarly, Article 10 provides:
          1. Each State Party shall ensure that education and 
        information regarding the prohibition against torture 
        are fully included in the training of law enforcement 
        personnel, civil or military, medical personnel, public 
        officials and other persons who may be involved in the 
        custody, interrogation or treatment of any individual 
        subjected to any form of arrest, detention or 
        imprisonment.
          2. Each State Party shall include this prohibition in 
        the rules or instructions issued in regard to the 
        duties and functions of any such persons.\489\
Further, the prohibition in the torture statute explicitly 
reaches acts of torture committed ``outside the United 
States,'' \490\ again contemplating that it would reach actors 
(such as the military) that operate in the international arena. 
Moreover, the notion that Congress enacted a ban against 
torture that would not apply to the circumstances when torture 
would appear to be the most likely--when used by the military 
(of any country) against enemies, external and internal--makes 
no sense.\491\
    Again, Mr. Yoo brandished his trump card: if his 
interpretation of the torture or war crimes statute was wrong, 
and it was interpreted as applying to the military, then, he 
claimed, it would be unconstitutional.\492\
    On April 16, 2003, Secretary Rumsfeld approved 24 
techniques laid out in a memo to General Hill. Four of the 
techniques were considered stressful enough to require 
Rumsfeld's explicit approval.\493\
    On December 30, 2004, Acting Assistant Attorney General Dan 
Levin, head of the Justice Department's Office of Legal 
Counsel, issued a new memorandum that superceded the Yoo-Bybee 
memorandum. The Levin memorandum stated that ``torture is 
abhorrent,'' but stated in a footnote that the OLC ``[did] not 
believe that any of their conclusions [in the prior memorandum] 
would be different under the standards set forth in this 
memorandum.'' \494\

Use of Harsh Interrogation at Guantanamo

    The techniques set forth in the various memoranda issued in 
late 2002 and early 2003 were, in fact, used at Guantanamo. 
Already previously documented in various contexts, this was 
confirmed by Department of Justice Inspector General Glenn 
Fine, whose report describing observations of FBI agents 
visiting Guantanamo, summarized the techniques observed being 
used on one detainee, Muhammad al-Khatani (also spelled 
``Qahtani''):
           Tying a dog leash to the detainee's chain, 
        walking him around the room, and leading him through a 
        series of dog tricks
           Repeatedly pouring water on his head
           Stress positions
           20-hour interrogations
           Stripping him naked in the presence of a 
        female
           Holding him down while a female interrogator 
        straddled the detainee without placing weight on him
           Women's underwear placed over his head and a 
        bra placed over his clothing
           A female interrogator massaging his back and 
        neck region over his clothing
           Describing his mother and sister to him as 
        ``whores''
           Showing him pictures of scantily clothed 
        women
           Discussing his repressed homosexual 
        tendencies in his presence
           A male interrogator dancing with him
           Telling him that people would tell other 
        detainees that he got aroused when male guards searched 
        him
           Forced physical training
           Instructing him to pray to an idol 
        shrine.\495\
    Indeed, the treatment of al-Kahtani was so severe that 
Susan J. Crawford, named by Secretary of Defense Robert Gates 
to be the convening authority for military commissions, 
declined to refer his case for prosecution. As reported in The 
Washington Post on January 14, 2009, Ms. Crawford bluntly 
stated: ``We tortured Qahtani.'' \496\ The Post further noted:

          ``For 160 days his only contact was with the 
        interrogators,'' said Crawford, who personally reviewed 
        Qahtani's interrogation records and other military 
        documents. ``Forty-eight of 54 consecutive days of 18- 
        to 20-hour interrogations. Standing naked in front of a 
        female agent. Subject to strip searches. And insults to 
        his mother and sister.''

           *       *       *       *       *       *       *

          The interrogation, portions of which have been 
        previously described by other news organizations, 
        including The Washington Post, was so intense that 
        Qahtani had to be hospitalized twice at Guantanamo with 
        bradycardia, a condition in which the heart rate falls 
        below 60 beats a minute and which in extreme cases can 
        lead to heart failure and death. At one point Qahtani's 
        heart rate dropped to 35 beats per minute, the record 
        shows.\497\

    Inspector General Fine's report also described the 
technique of ``short-shackling'':

          Prolonged short-shackling, in which a detainee's 
        hands were shackled close to his feet to prevent him 
        from standing or sitting comfortably, was another of 
        the most frequently reported techniques observed by FBI 
        agents at Guantanamo. This technique was sometimes used 
        in conjunction with holding detainees in rooms where 
        the temperature was very cold or very hot in order to 
        break the detainees' resolve.
          A DOD investigation, discussed in the Church Report, 
        described the practice of short-shackling prisoners as 
        a ``stress position.'' Stress positions were prohibited 
        at Guantanamo under DOD policy beginning in January 
        2003. However, these FBI agents' observations confirm 
        that prolonged short-shackling continued at Guantanamo 
        for at least a year after the revised DOD policy took 
        effect.\498\

The use of these interrogation techniques at Guantanamo has 
also been confirmed by other sources.\499\

Migration of Guantanamo Interrogation Techniques to Abu Ghraib

    It has been established that the Guantanamo techniques 
``migrated'' to Abu Ghraib. An internal Department of Defense 
report stated:

          In August 2003, [Major General] Geoffrey Miller [then 
        Commander of Guantanamo] arrived [in Iraq] to conduct 
        an assessment of DoD counterterrorism interrogation and 
        detention operations in Iraq. . . . He brought to Iraq 
        the Secretary of Defense's April 16, 2003 policy 
        guidelines for Guantanamo--which he reportedly gave to 
        CJTF-7 \500\ as a potential model--recommending a 
        command-wide policy be established. He noted, however, 
        the Geneva Conventions did apply to Iraq. . . . [T]here 
        was also a store of common lore and practice within the 
        interrogator community circulating through Guantanamo, 
        Afghanistan and elsewhere.\501\

    Indeed, although the Administration had acknowledged that 
the Geneva Conventions applied to the treatment and 
interrogation of detainees in Iraq,\502\ Air Force interrogator 
Steve Kleinman testified before the Senate Armed Services 
Committee that he had observed interrogations in Iraq that 
would clearly violate the Conventions.\503\ Mr. Kleinman 
further testified that, when he complained of these apparent 
violations of Geneva Convention obligations, he was told that 
Department of Defense Counsel William ``Jim'' Haynes had 
approved the interrogation methods and that ``terrorists'' 
detained in Iraq were not entitled to Geneva convention 
protections.
    Though the Administration has attempted to lay the blame 
for abuses at Abu Ghraib on a ``few bad apples,'' \504\ 
according to a bipartisan report by the Senate Armed Services 
Committee, the record indicates that the actions there were 
rooted in the decisions associated with the use of harsh 
interrogation techniques at Guantanamo--including techniques 
developed from SERE training--and in particular, the decision 
by Secretary Rumsfeld to implement those techniques in December 
of 2002. The Senate Armed Services Committee concluded:

          The abuse of detainees at Abu Ghraib in late 2003 was 
        not simply the result of a few soldiers acting on their 
        own. Interrogation techniques such as stripping 
        detainees of their clothes, placing them in stress 
        positions, and using military working dogs to 
        intimidate them appeared in Iraq only after they had 
        been approved for use in Afghanistan and at GTMO. 
        Secretary of Defense Donald Rumsfeld's December 2, 2002 
        authorization of aggressive interrogation techniques 
        and subsequent interrogation policies and plans 
        approved by senior military and civilian officials 
        conveyed the message that physical pressures and 
        degradation were appropriate treatment for detainees in 
        U.S. military custody. What followed was an erosion in 
        standards dictating that detainees be treated 
        humanely.\505\

Role of High-level Officials

    It has also been reported that the decisions as to which 
techniques were to be used on which detainees were made by a 
``Principals Group'' consisting of the most senior officials in 
the Bush Administration, including Vice President Cheney, 
former National Security Advisor Condoleezza Rice, Defense 
Secretary Donald Rumsfeld, and Secretary of State Colin Powell, 
as well as CIA Director George Tenet and Attorney General John 
Ashcroft. ABC News reported, for example:

    The so-called Principals who participated in the meetings 
also approved the use of ``combined'' interrogation 
techniques--using different techniques during interrogations, 
instead of using one method at a time--on terrorist suspects 
who proved difficult to break, sources said.
    Highly placed sources said a handful of top advisers signed 
off on how the CIA would interrogate top al Qaeda suspects--
whether they would be slapped, pushed, deprived of sleep or 
subjected to simulated drowning, called waterboarding. 
    The high-level discussions about these ``enhanced 
interrogation techniques'' were so detailed, these sources 
said, some of the interrogation sessions were almost 
choreographed--down to the number of times CIA agents could use 
a specific tactic.
    The advisers were members of the National Security 
Council's Principals Committee, a select group of senior 
officials who met frequently to advise President Bush on issues 
of national security policy.
    At the time, the Principals Committee included Vice 
President Cheney, former National Security Advisor Condoleezza 
Rice, Defense Secretary Donald Rumsfeld and Secretary of State 
Colin Powell, as well as CIA Director George Tenet and Attorney 
General John Ashcroft.\506\

    ABC News further reported that Attorney General Ashcroft, 
for one, was less than comfortable in that role: ``Then-
Attorney General Ashcroft was troubled by the discussions. He 
agreed with the general policy decision to allow aggressive 
tactics and had repeatedly advised that they were legal. But he 
argued that senior White House advisers should not be involved 
in the grim details of interrogations, sources said.'' \507\

The Congress and the President Battle over Interrogation Techniques

    In June of 2004, the August 1, 2002, Torture Memorandum was 
leaked and published by The Washington Post,\508\ and over the 
next year additional details emerged concerning the 
Administration's interrogation practices.
    In December 2005, Congress passed the Detainee Treatment 
Act of 2005, which President Bush signed into law in January 
2006.\509\ This Act addressed permissible interrogation 
practices for both the Armed Forces and the intelligence 
community:
     As to the Armed Forces, section 1002(a) provided 
that ``[n]o person in the custody or under the effective 
control of the Department of Defense or under detention in a 
Department of Defense facility shall be subject to any 
treatment or technique of interrogation not authorized by and 
listed in the United States Army Field Manual on Intelligence 
Interrogation.''
     Recognizing that persons were held not only by the 
Armed Forces but by the intelligence community, section 1003(a) 
provided that ``[n]o individual in the custody or under the 
physical control of the United States Government, regardless of 
nationality or physical location, shall be subject to cruel, 
inhuman, or degrading treatment or punishment.'' \510\
     Section 1004(a) provided an affirmative defense--
retroactive as well as prospective--for those who may have 
engaged in what otherwise might be considered to have been 
criminal conduct in connection with interrogation, providing 
that in civil or criminal actions against government personnel, 
it shall be a defense that ``a person of ordinary sense and 
understanding would not know the practices were unlawful,'' and 
that ``[g]ood faith reliance on advice of counsel should be an 
important factor, among others, to consider in assessing 
whether a person of ordinary sense and understanding would have 
known the practices to be unlawful.'' \511\
    After its enactment, however, the President issued a 
signing statement declaring that: (i) the Act's scope was 
unclear, and that he would ``construe it'' consistent with his 
Commander-in-Chief powers, and (ii) he did not accept that 
under the Constitution he was bound by any strictures of the 
Act:

          The executive branch shall construe Title X in 
        Division A of the Act, relating to detainees, in a 
        manner consistent with the constitutional authority of 
        the President to supervise the unitary executive branch 
        and as Commander in Chief and consistent with the 
        constitutional limitations on the judicial power, which 
        will assist in achieving the shared objective of the 
        Congress and the President, evidenced in Title X, of 
        protecting the American people from further terrorist 
        attacks.\512\

    Following the Supreme Court's June 2006 decision in Hamdan 
invalidating the military commission system set up by the 
President--among other reasons, because it had not been 
authorized by Congress, it conflicted with the procedures 
Congress had established in the Uniform Code of Military 
Justice, and its procedures did not comply with the Geneva 
Conventions--the President sought and obtained legislation from 
Congress that purported to address the defects identified by 
the Court. (Hamdan is discussed in the Interrogation Section in 
this Report.) In October 2006, the President signed the 
``Military Commissions Act of 2006'' (MCA) into law.\513\
    The MCA was designed to remove the chief legal obstacles 
that the Administration's detention and interrogation policies 
were facing in the courts. First, the Act provided 
congressional authorization for a military commission system, 
pursuant to which ``unlawful enemy combatants'' would be tried, 
leaving it to the Executive Branch to say who was an unlawful 
enemy combatant. It permitted the use of evidence obtained by 
coercion in certain circumstances.\514\ It also stripped from 
Guantanamo detainees their right to seek habeas relief in the 
federal courts.\515\
    Second, the Act imposed a new interpretation of how the 
Geneva Conventions applied. It gave the President the principal 
role in determining what kinds of conduct would constitute a 
violation of Common Article 3, also a crime under U.S. law, or 
would constitute a violation of the prohibition against 
``cruel, inhuman and degrading'' treatment in violation of the 
Conventions, a ``grave breach'' of which would also constitute 
a crime under U.S. law:

          As provided by the Constitution and by this section, 
        the President has the authority for the United States 
        to interpret the meaning and application of the Geneva 
        Conventions and to promulgate higher standards and 
        administrative regulations for violations of treaty 
        obligations which are not grave breaches of the Geneva 
        Conventions.

    During debate on the bill in the Senate, Senator John 
Warner understood this to be a virtue of the bill:

          [T]his bill acknowledges the President's authority 
        under the Constitution to interpret the meaning and 
        application of the Geneva Conventions, and to 
        promulgate administrative regulations for violations of 
        our broader treaty obligations which are not grave 
        breaches of the Geneva Conventions.\516\

But Senator Patrick Leahy saw it in precisely the opposite 
light:

          In fact, the new legislation muddies the waters. It 
        saddles the War Crimes Act [which criminalizes certain 
        violations of the Geneva Convention] with a definition 
        of cruel or inhuman treatment so oblique that it 
        appears to permit all manner of cruel and extreme 
        interrogation techniques. Senator McCain said this 
        weekend that some techniques like waterboarding and 
        induced hypothermia would be banned by the proposed 
        law. But Senator Frist and the White House disavowed 
        his statements, saying that they preferred not to say 
        what techniques would or would not be allowed. That is 
        hardly clarity; it is deliberate confusion.
          Into that breach, this legislation throws the 
        administration's solution to all problems: more 
        presidential power. It allows the administration to 
        promulgate regulations about what conduct would and 
        would not comport with the Geneva Conventions, though 
        it does not require the President to specify which 
        particular techniques can and cannot be used. This is a 
        formula for still fewer checks and balances and for 
        more abuse, secrecy, and power-grabbing. It is a 
        formula for immunity for past and future abuses by the 
        Executive.\517\

    The Act did not specify whether ``waterboarding'' was 
prohibited. But Senators John McCain and Lindsey Graham, in a 
joint statement the following year, said it clearly was: 
``Waterboarding is clearly outlawed by several statutes, 
including both the Detainee Treatment Act and the Military 
Commissions Act.'' \518\
    Upon the Senate's passage of the MCA, President Bush 
quickly asserted that the MCA would not be interpreted as 
impacting the CIA's interrogation programs:

          The Military Commissions Act of 2006 will allow the 
        continuation of a CIA program that has been one of 
        America's most potent tools in fighting the War on 
        Terror. Under this program, suspected terrorists have 
        been detained and questioned about threats against our 
        country. Information we have learned from the program 
        has helped save lives at home and abroad.\519\

    The 110th Congress responded to this loophole President 
Bush sought to create as to the range of permissible conduct of 
intelligence agency interrogation, this time by limiting the 
intelligence community to the techniques in the Army Field 
Manual. Section 327(a) of the Intelligence Authorization Act 
for Fiscal Year 2008 that was passed by Congress on February 
13, 2008, provided:

          No individual in the custody or under the effective 
        control of an element of the intelligence community or 
        instrumentality thereof, regardless of nationality or 
        physical location, shall be subject to any treatment or 
        technique of interrogation not authorized by the United 
        States Army Field Manual on Human Intelligence 
        Collector Operations.\520\

    President Bush vetoed this Act on March 8, 2008. In doing 
so, he stressed the need for a separate CIA interrogation 
program, and specifically noted that ``waterboarding'' was no 
longer part of that program.

    Section 327 of the bill would harm our national security by 
requiring any element of the Intelligence Community to use only 
the interrogation methods authorized in the Army Field Manual 
on Interrogations. It is vitally important that the Central 
Intelligence Agency (CIA) be allowed to maintain a separate and 
classified interrogation program. . .
    My disagreement over section 327 is not over any particular 
interrogation technique; for instance, it is not over 
waterboarding, which is not part of the current CIA program. 
Rather, my concern is the need to maintain a separate CIA 
program that will shield from disclosure to al Qaeda and other 
terrorists the interrogation techniques they may face upon 
capture. In accordance with a clear purpose of the ``Military 
Commissions Act of 2006,'' my veto is intended to allow the 
continuation of a separate and classified CIA interrogation 
program that the Department of Justice has determined is lawful 
and that operates according to rules distinct from the more 
general rules applicable to the Department of Defense. While I 
will continue to work with the Congress on the implementation 
of laws passed in this area in recent years, I cannot sign into 
law a bill that would prevent me, and future Presidents, from 
authorizing the CIA to conduct a separate, lawful intelligence 
program, and from taking all lawful actions necessary to 
protect Americans from attack.\521\

Destruction of CIA Waterboarding Videotapes

    In December 2007, the news media reported that two years 
earlier, the CIA had destroyed at least two videotapes 
documenting the 2002 interrogation of two senior al Qaeda 
operatives in the agency's custody.522,}523 The 
videotapes depicted CIA operatives subjecting the two terrorism 
suspects, Abu Zubaydah (the first detainee in CIA custody) and 
Abd al-Rahim as-Nashiri, to severe interrogation techniques, 
including waterboarding.\524\ They were destroyed around 
November 2005, in the midst of judicial scrutiny of the CIA's 
detention program, and as Congress was debating standards for 
interrogation practices, and insulating them from judicial 
review, in what became the Detainee Treatment Act.
    In a December 6, 2007, statement to CIA employees, CIA 
Director Michael Hayden said that the decision to destroy the 
tapes was made ``within the CIA,'' and that the tapes were 
destroyed in an effort to protect the safety of undercover 
officers. General Hayden said that the tapes posed a ``serious 
security risk,'' and that if they had become public, they would 
have exposed CIA officials ``and their families to retaliation 
from al Qaeda and its sympathizers.'' General Hayden further 
claimed that the tapes no longer had intelligence value.\525\ 
He added that the tapes were mainly used as an ``internal 
check,'' and that they were destroyed only after the agency's 
Office of General Counsel and Office of the Inspector General 
had examined them and determined that they showed lawful 
methods of questioning.\526\ It was reported that the ultimate 
decision to destroy the tapes was made by Jose Rodriguez, Jr., 
head of the Directorate of Operations, and that the CIA's own 
lawyer, John Rizzo, was not notified beforehand.\527\
    Although General Hayden claimed that congressional 
oversight committees had been fully briefed about the existence 
of the tapes, and told in advance of the decision to destroy 
them, Congressman Peter Hoekstra (the House Intelligence 
Committee's chairman from 2004-2006) later said he was ``never 
briefed or advised that [the] tapes existed, or that they were 
going to be destroyed.'' \528\ Furthermore, Congresswoman Jane 
Harman (the Ranking Member of that Committee from 2002-2006), 
said she had told CIA officials several years ago that 
destroying any interrogation tapes would be a ``bad idea.'' 
\529\
    On December 19, 2007, The New York Times revealed that at 
least four top White House lawyers had taken part in 
discussions with the CIA between 2003 and 2005 about whether to 
destroy the videotapes.\530\ According to that report, White 
House officials who participated in those discussions included 
then-White House counsel Alberto Gonzales; David Addington; 
John Bellinger III, who until January 2005 was the senior 
lawyer at the National Security Council; and Harriet Miers, 
then-Deputy White House Counsel, who succeeded Mr. Gonzales in 
2005.\531\ The accounts further detail that there were 
conflicting sentiments among White House officials regarding 
whether or not to destroy the tapes, with some officials 
expressing ``vigorous sentiment'' to destroy them.
            B. Committee Action
    During the 110th Congress, the House Judiciary Committee 
conducted over a dozen hearings that either focused exclusively 
or touched on the problems raised by interrogation policy under 
the Bush Administration. These included hearings concerning the 
effectiveness of physically coercive interrogation techniques, 
potential legal liability relating to destruction by the CIA of 
harsh interrogation tapes; and a series of hearings concerning 
the various OLC opinions dealing with interrogation and 
potential legal liability relating thereto.

Effectiveness of Enhanced Interrogation

    On November 8, 2007, the Subcommittee on Constitution, 
Civil Rights, and Civil Liberties held a hearing titled: 
``Torture and the Cruel, Inhuman and Degrading Treatment of 
Detainees: The Effectiveness and Consequences of `Enhanced' 
Interrogation.' '' This hearing explored claims that aggressive 
interrogation--beyond the standards set forth in the Army Field 
Manual--is necessary and effective when questioning detainees 
in the Administration's war on terror. Chairman Nadler posed 
the following questions in his opening: ``Does betraying our 
values make us safer? Do we need to do these terrible things in 
order to survive in this dangerous world?'' \532\
    One of the witnesses, a former instructor at the U.S. Navy 
Survival, Evasion, Resistance and Escape (SERE) School, 
described waterboarding as follows:

    The SERE [curriculum] was designed over 50 years ago to 
show that, as a torture instrument, waterboarding is a 
terrifying, painful and humiliating tool that leaves no 
physical scars and which can be repeatedly used as an 
intimidation tool. Waterboarding has the ability to make the 
subject answer any question with a truth, a half-truth, or 
outright lie in order to stop the procedure. Subjects usually 
resort to all three, often in rapid sequence.
    Most media representations or recreations of the 
waterboarding are inaccurate, amateurish, and dangerous 
improvisations which do not capture the true intensity of the 
act. Contrary to popular opinion, it is not a simulation of 
drowning. It is drowning.
    In my case, the technique was so fast and professional that 
I didn't know what was happening until the water entered my 
nose and throat. It then pushes down into the trachea and 
starts to process a respiratory degradation. It is an 
overwhelming experience that induces horror, triggers a frantic 
survival instinct. As the event unfolded, I was fully conscious 
of what was happening: I was being tortured.\533\

    Colonel Steven Kleinman, an expert interrogator and human 
intelligence officer, testified that the conclusion that 
coercion is an effective means of obtaining reliable 
intelligence information ``is, in my professional opinion, 
unequivocally false.'' \534\ Witnesses discussed further the 
lack of reliability of information gained through aggressive, 
coercive interrogation, and how using such techniques has 
damaged the U.S. moral and legal standing in the world.
    Witnesses also stressed the following points:
           excessive stress, insufficient sleep, and 
        other environmental influences can result in 
        substantial memory deficit, increasing the 
        unreliability of intelligence gathered from a detainee 
        such conditions; \535\
           official authorization of harsh techniques 
        opens the door to widespread abuse and torture of 
        detainees, as illustrated by the widespread abuse of 
        prisoners at Abu Ghraib, with photographs showing use 
        of techniques that had been approved by high-ranking 
        Administration officials for use on detainees at 
        Guantanamo Bay; \536\
           ``enhanced'' interrogation has devastating 
        physical and mental consequences, with government 
        documents revealing, for example, that a detainee who 
        had been left in a room with a temperature over 100 
        degrees was found ``almost unconscious on the floor, 
        with a pile of hair lying next to him. He had 
        apparently literally been pulling his own hair out 
        throughout the night.''; \537\
           the standards of conduct for interrogation 
        contained in the Army Field Manual are sufficiently 
        flexible to allow for fully effective interrogation; 
        \538\
           lowering the standard on how the United 
        States treats its detainees sets a harmful and 
        dangerous standard for treatment of its own servicemen 
        and women by other countries;
           the reported torture and cruel treatment of 
        detainees by the United States has increased anti-
        American feelings in the Middle East.\539\

Potential Criminal Liability for Destruction of Videotapes

    Following reports that the CIA had destroyed videotapes 
depicting the harsh interrogation of ``high value'' al Qaeda 
detainees, the full Committee held the first public hearing on 
this matter on December 20, 2007.\540\ That hearing focused on 
the possible legal liability related to conduct depicted on 
interrogation tapes and destruction of the tapes. Despite 
repeated invitations, the Department of Justice did not appear 
at the hearing. Other witnesses, including Professor Steven 
Saltzburg, and Elisa Massimino of Human Rights Watch, explained 
the need for independent congressional oversight of 
Administration interrogation policy, and highlighted the 
following points:
           the apparent purpose for the destruction of 
        tapes was to prevent any review--by any judicial 
        tribunal or Congress--of the interrogation techniques 
        depicted on those tapes, which reportedly included 
        waterboarding; \541\
           with regard to congressional review, the 
        November 2005 destruction of tapes reportedly occurred 
        after discussion with White House lawyers and as 
        Congress was considering imposing additional 
        restrictions on interrogations. At this same time, Vice 
        President Cheney was aggressively lobbying Congress to 
        exempt the CIA from any such restrictions; therefore, 
        the destruction was intended to deprive Congress of 
        information relevant to its oversight role; \542\
           as for judicial review, destruction of the 
        tapes may have violated court orders requiring 
        preservation of evidence of detainee interrogations; 
        \543\
           destruction of the tapes also may jeopardize 
        prosecution of detainees; \544\
           Congress should conduct independent 
        oversight of the issue, particularly given its passage 
        of standards for detainee treatment in the DTA, and its 
        decision to exempt the CIA from those standards.
    Chairman Conyers called for Attorney General Mukasey to 
appoint a truly independent special prosecutor to investigate 
this matter, and to investigate harsh interrogation methods 
generally.\545\ While Mr. Mukasey did appoint a Department 
employee to investigate the matter, he refused to appoint an 
independent prosecutor under the relevant DOJ regulations. That 
investigation remains ongoing.

OLC Opinions Concerning Enhanced Interrogation and Potential Legal 
        Liability Thereto

    The Judiciary Committee held a series of hearings 
concerning the range of issues stemming from the controversial 
legal opinions justifying waterboarding and other enhanced 
interrogation techniques. The issues included potential legal 
liability relating to such acts, as well as the FBI's 
involvement.
    The first of these hearings took place February 7, 2008--
two days after CIA Director Michael Hayden informed the Senate 
Select Committee on Intelligence that the CIA had waterboarded 
three detainees.\546\ Chairman Conyers questioned Attorney 
General Mukasey at an oversight hearing as to whether the 
Department of Justice would launch a criminal investigation 
concerning the CIA's use of waterboarding:

    Mr. Conyers: Well, are you ready to start a criminal 
investigation into whether this confirmed use of waterboarding 
by United States agents was illegal?
    Mr. Mukasey: . . . No, I am not, for this reason: Whatever 
was done as part of a CIA program at the time that it was done 
was the subject of a Department of Justice opinion through the 
Office of Legal Counsel and was found to be permissible under 
law as it existed then.
    For me to use the occasion of the disclosure that that 
technique was one part of the CIA program--an authorized part 
of the CIA program, would be for me to tell anybody who relied, 
justifiably, on a Justice Department opinion that not only may 
they no longer rely on that Justice Department opinion, but 
that they will now be subject to criminal investigation for 
having done so.
    That would put in question not only that opinion, but also 
any other opinion from the Justice Department.
    Essentially, it would tell people: ``You rely on a Justice 
Department opinion as part of a program, then you will be 
subject to criminal investigation when, as and if the tenure of 
the person who wrote the position changes or, indeed, the 
political winds change.'' And that is not something that I 
think would be appropriate and it is not something I will 
do.\547\

    Unanswered was the implicit question as to how the Attorney 
General could know the waterboarding was done in good faith 
reliance on the OLC opinions and within whatever limits had 
been set by the Justice Department without first investigating 
the facts.\548\
    Next, at an April 23, 2008, oversight hearing on the FBI, 
in response to questioning pertaining to his decision to remove 
his agents from situations in which the CIA was engaging in 
enhanced interrogation techniques, Director Mueller explained 
that ``our protocol is not to have been--not to use coercion in 
any of our interrogations or our questioning, and we have 
abided by our protocol.'' \549\ He also mentioned that the FBI 
follows its protocol of alerting the proper authorities and 
determining whether certain interrogation techniques are 
illegal. When asked whether the FBI followed that protocol in 
the context of the CIA's interrogation techniques, Director 
Mueller stated that ``we followed our own protocols'' \550\ and 
``reached out to DOD and DOJ in terms of activity that [the FBI 
was] concerned might not be appropriate.\551\
    Director Mueller further described the FBI's practices as 
follows: ``[W]e do not engage in coercion in any form, and my 
saying that meaning, quite obviously, [we] do not engage in 
torture, but coercion in any form in the course of our 
interrogations. Our protocol and our policy is to generally 
develop rapport as the mechanism of obtaining the information 
we need in the course of an investigation, and I will say it 
has served us well.'' \552\ Though there was some ambiguity on 
the matter, it appears that Director Mueller was unaware of, 
and that the FBI was not involved in, the harsh interrogations 
inflicted on Mr. al-Marri and Mr. Padilla.\553\
    The Committee also explored the question of possible legal 
liability stemming from the apparent fact that one of the three 
men who were waterboarded--Abu Zubaydah--was captured in March 
2002, and presumably interrogated prior to the August 1, 2002 
memorandum authorizing waterboarding, which Attorney General 
Mukasey alluded to in his testimony.\554\ In subsequent 
hearings, former Attorney General Ashcroft and Attorney General 
Mukasey were each questioned about the potential criminal 
responsibility for waterboarding that may have occurred prior 
to the issuance of that memorandum--that is, at a time when 
such conduct could not be defended or excused as having 
occurred in conformance with Justice Department OLC guidance. 
Neither of them was knowledgeable of the pertinent facts:
    On July 17, 2008, former Attorney General Ashcroft 
testified as follows:

    Mr. Nadler: Attorney General Ashcroft, in your testimony 
you mentioned Abu Zubaydah, who was captured in March 2002. The 
Inspector General report on the FBI's role in interrogation 
makes clear that the was interrogated beginning in march of 
that year. The Yoo-Bybee legal memo [i.e., the ``torture 
memorandum''] was not issued until August 2002. So was the 
interrogation of Abu Zubaydah before August 2002 done without 
DOJ legal approval?
    Mr. Ashcroft: I don't know.
    Mr. Nadler: Well, did you offer legal approval of 
interrogation methods used at that time?
    Mr. Ashcroft: At what time, sir?
    Mr. Nadler: Prior to August of 2002, [in] March 2002.
    Mr. Ashcroft: I have no recollection of doing that at all.
    Mr. Nadler: . . . Do you know if waterboarding was used on 
Abu Zubaydah before the DOJ approved it?
    Mr. Ashcroft: I do not.\555\
    Attorney General Mukasey was no more responsive at an 
oversight hearing the following week:

    Mr. Nadler: [W]hen you last appeared before this committee 
[in February 2008], sir, you stated that you could not order an 
investigation into interrogation practices that have been 
authorized by the OLC opinions because it would not be fair to 
infer any possibility of criminal intent to someone who is 
following an OLC legal opinion. But it is now clear that one of 
the detainees, Abu Zubaydah, for example, was interrogated for 
months in the spring and summer of 2002, before the first OLC 
opinion on the issue we know of, the August 1, 2002, legal memo 
by John Yoo was issued.
    Attorney General Ashcroft testified last week he did not 
recall providing legal advice on interrogation methods at that 
time and did not recall whether anyone else at the Department 
had provided such advice. Now given the uncertainty about 
whether any legal advice had been provided before these 
interrogations, have you or anyone at the Department 
investigated the legality of the interrogation methods used 
before the August 1 Yoo memo was issued?
    Mr. Mukasey: I have not investigated that myself. I think 
part of that question involves whether the methods employed 
were consistent with that memo or not, and I don't know whether 
they were or they were not.
    Mr Nadler: Do you think someone should take a look at that?
    Mr. Mukasey: I think a look at that may very well be taken 
or have been taken. I am not specifically aware of it as I sit 
here.
    Mr. Nadler: Can you let us know?
    Mr. Mukasey: I will take a look.\556\

    On February 14, 2008, the Constitution Subcommittee 
convened a hearing with the author of some of the memoranda 
that permitted harsh interrogation practices, the acting head 
of the Office of Legal Counsel Steven Bradbury.\557\ At this 
hearing, Mr. Bradbury provided detailed information about the 
Administration's legal analysis of waterboarding, and confirmed 
that the interrogation program had been derived from military 
SERE training.\558\ Mr. Bradbury sought to deflect Members' 
concern about the waterboarding practice by arguing that the 
U.S. form of waterboarding was not the same as that perpetrated 
during the Spanish Inquisition.
    The Committee also pressed the Department of Justice for 
access to these secret legal memoranda, described in press 
reports as so disturbing that then-Deputy Attorney General 
James Comey ``told colleagues at the department that they would 
all be `ashamed' when the world eventually learned'' of 
them.\559\ The Central Intelligence Agency vigorously resisted 
Committee efforts on this matter, but eventually Committee 
staff succeeded in obtaining limited access to the documents.
    The Committee's interest in the secret work of the 
Department's Office of Legal Counsel was heightened when the 
Defense Department declassified and released John Yoo's March 
14, 2003, Torture Memorandum. That memorandum referenced nearly 
a dozen additional non-public legal memoranda, prompting 
Chairman Conyers and Constitution Subcommittee Chair Nadler to 
write the Attorney General seeking information about what 
appeared to be a growing catalog of secret Department opinions 
on War on Terror issues.\560\ The Committee has attempted to 
obtain all the pertinent memoranda that address the 
Administration's claimed war powers in areas that touch 
detention, interrogation, and other areas impacting civil 
liberties.
    On June 27, 2008, after efforts to obtain the memoranda 
through cooperative means had proven unavailing, the Committee 
issued a subpoena to the Attorney General seeking, among other 
documents:

          Complete and unredacted versions . . . of any and all 
        non-classified, non-public Office of Legal Counsel 
        opinions addressing issues related in any way to 
        national security, war, terrorism interrogations, civil 
        or constitutional rights of U.S. citizens, or 
        presidential, congressional, or judicial power that the 
        Office of Legal Counsel has issued since January 20, 
        2001.\561\

While some of these documents have been provided, the 
Department's refusal to provide a full list of the relevant 
memoranda makes it impossible to assess how many are still 
being improperly withheld.
    In Spring and Summer 2008, the Committee, largely through 
the Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties, held a series of further hearings exploring the 
origin of and legal rationalization for the Administration's 
interrogation programs.
    At the first of those hearings, on May 6, 2008, Professor 
Philippe Sands described the findings of his investigation into 
these matters and his conclusion that, contrary to 
Administration assertions, the push to employ the harsh 
interrogation techniques did not originate on the front lines, 
but was instead a top-down initiative, approved and pressed at 
the highest levels of government.\562\ Professor Sands also 
described the key role in this matter played by senior 
Administration officials such as David Addington at the White 
House, Jim Haynes and Douglas Feith at the Department of 
Justice, and John Yoo at the Department of Justice.
    Legal ethics expert David Luban of Georgetown University 
discussed the extraordinary substantive flaws in the John Yoo 
legal opinions, and raised significant concerns about the 
process used to draft them.\563\ Under questioning, Professor 
Luban addressed another issue that often comes up during 
discussion or investigation of interrogation methods, 
testifying that, in his years of study, including a detailed 
look at the Bush Administration's claims, he has never come 
across any actual ``ticking bomb'' scenario of the type often 
used to justify extreme interrogation measures.\564\
    On June 18, 2008, the Subcommittee heard from former Office 
of Legal Counsel head Daniel Levin and former Chief of Staff to 
Secretary of State Powell, Lawrence Wilkerson.\565\ Mr. Levin 
described his concerns about the substance of and the process 
used to draft the OLC torture memoranda and his efforts to 
draft a more responsible replacement memo.\566\ Mr. Levin 
further confirmed that he was forced out of the Office of Legal 
Counsel by Attorney General Gonzales, at a time when he was 
preparing additional legal opinions that would impose 
constraints on the use of harsh interrogation practices such as 
waterboarding.\567\ Mr. Levin was thus never able to complete 
those opinions; instead, they were finished by Mr. Bradbury, 
and became the memos that so troubled Jim Comey that he said 
the Nation would be ``ashamed'' when they became public.
    Colonel Wilkerson testified regarding his own investigation 
into the Administration's interrogation program, and his 
concerns about the great harm to the Nation's security that the 
Administration's policies had wrought. Colonel Wilkerson also 
described his understanding of Secretary Powell's views on this 
matter, stating that Secretary Powell had been very upset with 
Donald Rumsfeld's approach to these issues, which Secretary 
Powell believed had harmed the nation. According to Col. 
Wilkerson, Secretary Powell had also been troubled by the 
President's role in authorizing these harsh interrogation 
techniques; in Secretary Powell's view, Mr. Bush was 
``complicit'' in these abuses.\568\
    Pursuant to subpoenas issued by the Subcommittee, John Yoo 
and David Addington, two key architects of the Administration's 
interrogation policies, appeared before the Subcommittee on 
June 26, 2008, giving their only public testimony on this 
subject.\569\ Mr. Yoo distanced himself from responsibility for 
the contents of the August 1, 2002 Torture Memorandum, 
testifying that ``I did not draft it by myself'' and that he 
merely ``contributed to the drafting of it.'' \570\ This effort 
to deny responsibility for the memo was quite striking, 
considering that in his own book he quite directly states that 
he was the ``drafter'' of such opinions.
    Mr. Yoo was unwilling to state that any interrogation 
method would be unlawful if the President believed it 
necessary, even refusing, under questioning by Chairman 
Conyers, to rule out burying a suspect alive.\571\ When asked 
whether it would constitute torture if an enemy were to use the 
same interrogation techniques on U.S. personnel that he had 
approved for use on the enemy, he had trouble providing a 
direct answer, saying that ``it would depend on the 
circumstances'' but that he was ``not saying it would never--
that it would always not be torture.'' \572\
    Mr. Addington likewise minimized his role in these matters, 
despite extensive press reports that he was an active and 
aggressive advocate for the Administration's harsh 
interrogation program. He stated that he was merely a 
``client'' (or possibly a representative of the White House 
client) of John Yoo and that he simply approved Mr. Yoo's plan 
to analyze these legal issues.\573\ That testimony is at odds 
with the numerous reports of his extensive role in advancing 
and enforcing the Administration's views of presidential power. 
Furthermore, although Mr. Addington acknowledged being 
substantially involved in the CIA's interrogation program, he 
denied that, if aspects of the program were found unlawful, he 
personally would bear any legal or moral responsibility.\574\
    Douglas Feith, former number three official at the Defense 
Department, also appeared before the Subcommittee as part of 
this series of hearings. Mr. Feith generally testified that he 
supported humane treatment of detainees; \575\ however, his 
concept of ``humane treatment'' included the techniques 
authorized by Secretary Rumsfeld, at Mr. Feith's urging, in 
December 2002, including methods such as 20-hour interrogation 
sections, stress positions, nudity, manipulation of phobias, 
and unlimited deprivation of light and sound.\576\
    Attorney General Ashcroft, in testimony before the House 
Judiciary Committee on July 17, 2008, was clear that he 
perceived that Mr. Yoo did not approach the weighty tasks with 
appropriate independence. Mr. Ashcroft was asked by Rep. Brad 
Sherman about former OLC head Jack Goldsmith's statement that 
Mr. Yoo ``took instructions'' from White House Counsel Alberto 
Gonzales ``without running the matters by his superiors in the 
Department of Justice,'' and that ``when the White House wanted 
to elevate Yoo to lead the office of OLC, [Mr. Ashcroft] put 
[his] foot down and vetoed Yoo for the job.'' \577\ In 
response, Mr. Ashcroft stated:

    Mr. Ashcroft: Let me say what I can say here. I think it is 
very important, and this is consistent with the traditions and 
responsibility of OLC to have independent, detached, fully 
vetted advice provided by the OLC, the Office of Legal Counsel, 
to the President of the United States.
    During this time in the Justice Department there were key 
individuals in the Department that served me and served the 
Department, served America, that expressed to me reservations 
that related to the proximity that characterized the 
relationship that he had with various individuals in the 
administration . . .
    Mr. Sherman: So you were opposed to Mr. Yoo getting the job 
as Chief of OLC?
    Mr. Ashcroft: I felt that the United States of America and 
the President would both best be served, especially as it 
related to the characteristics I previously mentioned, if there 
would be an OLC Chief that would emphasize those 
characteristics more profoundly.\578\

    Indeed, in some instances Mr. Yoo took positions contrary 
to those of Attorney General Ashcroft, and in others, he 
advanced such extreme positions that his successors, Jack 
Goldsmith and Daniel Levin, had to retract Mr. Yoo's memoranda 
regarding torture, Mr. Goldsmith, former Deputy Attorney 
General James Comey, and FBI Director Robert Mueller had to 
disavow interpretations of law associated with FISA 
(precipitating the March 4, 2004 hospital confrontation 
discussed in Part IV of this Section), and Attorney General 
Mukasey ultimately disavowed Mr. Yoo's conclusion that the 
Fourth Amendment did not apply to domestic military operations.

         III. Extraordinary Rendition, Ghosting and Black Sites

            A. Factual Background for Legal Memoranda
    Subsequent to the September 11th terrorist attacks, press 
reports and court cases have shed some light on the U.S. 
government's practice of ``extraordinary rendition'': the 
covert transfer of individuals to foreign states in 
circumstances where torture or cruel, inhuman, or degrading 
treatment is likely.\579\ While defending rendition as a 
valuable tool in the war on terror,\580\ the Bush 
Administration has kept the specifics of this practice shrouded 
in secrecy. As a result, it remains unknown how many 
individuals have been subjected to the Administration's 
extraordinary rendition program; but U.S. officials have 
indicated that the practice has been used frequently following 
the 9/11 attacks.\581\ Estimates range from 100-150 to several 
thousand renditions of terror suspects, to countries including 
Egypt, Syria, Saudi Arabia, Jordan, and Pakistan.\582\ And the 
facts that have emerged about the program paint a picture, 
according to The Washington Post of a ``CIA-sponsored operation 
. . . in which terrorism suspects are forcibly taken for 
interrogation to countries where torture is practiced.'' \583\ 
As described by one Administration official directly involved 
in rendering suspects to foreign countries: ``We don't kick the 
[expletive] out of them. We send them to other countries so 
they can kick the [expletive] out of them.'' \584\
    According to former U.S. government officials, rendition 
has been used by several administrations, primarily by or at 
the request of a receiving state and for the purpose of 
bringing individuals to answer criminal charges in that 
state.\585\ Involvement in these renditions to ``justice'' has 
been widely acknowledged; \586\ but news reports and individual 
cases suggest that the purpose of rendition shifted following 
the 9/11 terrorist attacks from rendition to ``justice'' to 
rendition for the purpose of interrogation, often in 
circumstances indicating that torture was foreseeable.\587\
    The transfer of an individual to a country where torture is 
foreseeable violates U.S. and international law.\588\ The U.N. 
Convention Against Torture and Cruel, Inhuman and Degrading 
Treatment (Torture Convention) prohibits torture and the 
transfer of individuals to countries where it is likely that 
they will be tortured.\589\ The Federal Torture Statute 
criminalizes torture committed outside the United States and 
the conspiracy to commit torture outside the United States 
\590\ If a U.S. official rendered an individual to another 
country with the agreement or mutual understanding that the 
individual would be tortured, the official would be criminally 
liable under the Federal Torture Statute.\591\
    The Administration has taken the position that, to the 
extent any of these laws apply to its extraordinary rendition 
program,\592\ U.S. officials comply with laws prohibiting 
transfers in circumstances where torture is likely, by, ``when 
appropriate, obtaining assurances from a foreign government 
that an individual will not be tortured if transferred to that 
country.'' \593\ However, press reports, congressional 
testimony, and the experience of individuals who have 
apparently been rendered to foreign countries and tortured, 
indicate that such assurances are insufficient at best, and--at 
worst--may be a cynical attempt to defeat criminal liability. A 
March 2005 Washington Post article quoted one unnamed CIA 
officer involved in renditions as describing assurances from 
other countries as ``a farce,'' while another U.S. government 
official took the position that ``it's beyond that. It's widely 
understood that interrogation practices that would be illegal 
in the U.S. are being used.'' \594\ That article reported that 
the CIA's general counsel requires only a ``verbal assurance'' 
from a receiving country's security service that a detainee 
will be treated humanely before a rendition can take 
place.\595\
    A related component of the CIA rendition program is the 
agency's use of secret overseas prisons--``black sites''--and 
its ``ghosting'' of detainees. According to press reports, six 
days after the 9/11 attacks, President Bush issued a classified 
directive authorizing the CIA for the first time to capture, 
detain, and interrogate terrorism suspects. This directive, 
which remains secret, allowed the CIA to hold individuals 
without any official record of doing so, thus avoiding any 
accountability for or monitoring of their identities, 
whereabouts, or treatment. Individuals held at these secret 
``black sites''overseas were held incommunicado--without access 
to the International Committee of the Red Cross, much less 
their government officials, families, or lawyers--and subject 
to aggressive interrogation procedures approved by Department 
of Justice lawyers for use by the CIA, including 
waterboarding.\596\
    In addition to holding detainees at secret ``black sites,'' 
according to a Defense Department internal report, the CIA also 
detained and interrogated individuals at prison facilities in 
Iraq, without officially acknowledging or registering them as 
detainees, a practice referred to as holding ``ghost'' 
detainees, or ``ghosting.'' \597\ Because these detainees were 
not processed as prisoners, and there are no records or 
identifying information for them, ``the audit trail of 
personnel responsible for capturing, medically screening, 
safeguarding and properly interrogating the 'ghost detainees' 
cannot be determined.'' \598\
    Through use of secret ``black sites'' and the ghosting of 
detainees within or among prison facilities in Iraq, the CIA 
has reportedly engaged in a sustained practice of ``enforced 
disappearance,'' thereby placing individuals outside the 
protection of the law, in possible contravention of U.S. and 
international law.\599\ It has been estimated that the CIA 
``disappeared'' at least 100 prisoners subsequent to the 9/11 
attacks, with the whereabouts of as many as two to three dozen 
still unknown.\600\
    President Bush finally confirmed the existence of the CIA 
secret detention program on September 6, 2006--five years after 
he secretly authorized it. This revelation came shortly before 
the fifth anniversary of the 9/11 attacks, and in response to 
the Supreme Court's decision in Hamdan v. Rumsfeld. Hamdan held 
that Common Article 3 of the Geneva Conventions applied to 
individuals detained in the Administration's war on terror, and 
that the Administration's military commissions system at 
Guantanamo violated the Conventions and U.S. law. According to 
President Bush, the Hamdan decision jeopardized the future of 
the CIA secret detention program, and required the transfer of 
14 detainees, previously held secretly by the CIA and subject 
to an ``alternative set'' of interrogation procedures, to 
military detention at Guantanamo Bay, Cuba.\601\ That group of 
detainees included Khalid Sheikh Mohammed, identified by 
President Bush as ``the mastermind behind the 9/11 attacks.''
    On October 17, 2006, President Bush signed into law the 
Military Commissions Act (described in Section II of this 
Chapter)--which he had called for in his September 6, 2006 
speech--emphasizing that it would allow the CIA to continue its 
program of secret detention and interrogation:

          The Military Commissions Act of 2006 is one of the 
        most important pieces of legislation in the war on 
        terror. This bill will allow the Central Intelligence 
        Agency to continue its program for questioning key 
        terrorist leaders.\602\

    On July 20, 2007, President Bush issued an executive order 
interpreting Common Article 3 of the Geneva Conventions as it 
applies to interrogation programs operated by the CIA.\603\ 
U.S. officials have taken the position that the order 
authorizes ``what the administration calls `enhanced' 
interrogation techniques'' and have confirmed that the CIA 
``again is holding prisoners in `black sites' overseas.'' \604\
    There appears to be considerable evidence with respect to 
both previous and ongoing use of black sites/ghosting as well 
as extraordinary rendition. With regard to black sites and 
ghosting we have the following evidence:
     In February 2008, ABC News reported that the 
Administration had continued to admit that ``alternative'' 
interrogation procedures were used on detainees held in the 
CIA's black sites (and that at least three of these detainees 
were waterboarded).\605\
     In 2007 Amnesty International released a Report 
titled ``Off the Record, U.S. Responsibility for Enforced 
Disappearances in the `War on Terror,' '' describing detainees 
claiming to have been held and interrogated in secret (and also 
alleging that they had been tortured).\606\
     Earlier press accounts describing the practice of 
black sites; \607\ the President's own admission regarding 
black sites in his September 6, 2006, speech, along with the 
transfer of 14 detainees from such cites to Guantanamo Bay; and 
Inspector General Reports describing ghosting in Iraq.\608\
    And with regard to the practice of extraordinary rendition, 
we have the following evidence:
     Khalid El-Masri, a German citizen, allegedly was 
rendered by U.S. agents because he was mistaken for a terror 
suspect with a similar name from Macedonia, where he was 
vacationing, to a detention center in Afghanistan, where he was 
allegedly tortured for several months.\609\
     Binyam Mohammed, an Ethiopian student, was 
rendered by U.S. agents to prisons in Morocco and Afghanistan, 
where he was reportedly held and tortured before being 
transferred to the U.S. detention facility at Guantanamo Bay, 
Cuba.\610\ Mr. Mohammed has alleged that he was held at CIA 
``black sites''overseas for nearly three years and that, during 
this time, he was regularly interrogated by a CIA agent and 
subject to regular beatings, hung for hours from his wrists, 
and cut with a small scalpel on his chest and penis.\611\
     Mamdouh Habib, an Egyptian-born citizen of 
Australia, was detained in Pakistan in October 2001, and claims 
to have been brutally interrogated and placed in the custody of 
Americans who rendered him to Egypt. Mr. Habib was held in 
Egypt for six months, where he was reportedly beaten with blunt 
instruments, threatened with rape, shackled and forced to stand 
on tiptoe for hours with water up to his chin, and forced into 
prolonged, painful stress positions.\612\ Under brutal 
interrogation, Mr. Habib made multiple false confessions. He 
was then returned to U.S. custody and flown to the U.S. 
detention facility in Guantanamo Bay, Cuba, where he remained 
until released, without charge, in January 2005.\613\
     Bisher al-Rawi, a British permanent resident, was 
reportedly kidnaped in Gambia in November 2002 and flown to a 
CIA site in Afghanistan where he was reportedly imprisoned, 
interrogated and tortured--including being subject to extreme 
cold temperatures and beaten--before being transferred to the 
U.S. detention facility in Guantanamo Bay, Cuba in February 
2003.\614\ He was imprisoned there until his release, without 
charge, in March 2007.\615\
     Osama Mustafa Hassan Nasr (Abu Omar), an Egyptian 
cleric and legal resident of Italy, was abducted in Milan in 
February 2003, flown to Egypt, and turned over to Egyptian 
intelligence services, where he was interrogated and allegedly 
tortured.\616\ After nearly four years in custody, Mr. Omar was 
released in 2007.\617\
     Muhammad Saad Iqbal, a Pakistani, was arrested 
early in 2002 in Indonesia and flown by the CIA to Egypt, where 
he was imprisoned for three months, interrogated, and allegedly 
tortured--including being beaten, tightly shackled, covered 
with a hood and given drugs, subjected to electric shocks, and 
denied sleep.\618\ After several months, Mr. Iqbal was flown by 
the CIA to Bagram, the American air base in Afghanistan, where 
he was held and interrogated for nearly a year--sometimes 
shackled and handcuffed in a small cage with other detainees--
before being transferred to Guantanamo Bay. Mr. Iqbal was 
released without charge in 2008, after more than six years in 
American custody.
     Maher Arar, a Canadian citizen, was stopped by 
U.S. immigration officials as he was changing planes at the JFK 
Airport in New York City in September 2002 on his way home to 
Canada from a family vacation. Federal agents and officials 
detained and interrogated Mr. Arar for nearly two weeks on 
suspicion that he had ties to al Qaeda and then transferred him 
to Syria where he was imprisoned for a year and reportedly 
tortured.
    Other countries--including some of our strongest allies--
have condemned the Administration's extraordinary rendition of 
terror suspects, and have taken steps to ensure that they are 
not cooperating in this practice.\619\ In February 2008, 
Members of Parliament in the United Kingdom accused 
Administration officials of lying regarding rendition flights, 
after U.S. officials admitted that prior assurances that 
British airspace or airfields were not being used for rendition 
flights had proven false.\620\
    German Chancellor Angela Merkel openly disapproved of CIA 
rendition flights. In December 2005, after she said that 
Secretary of State Condoleezza Rice had admitted that mistakes 
had been made in Mr. El-Masri's case, ``aides to Ms. Rice 
scrambled to deny that, saying instead that Ms. Rice had said 
only that if mistakes were made, they would be corrected.'' 
\621\ In June 2007, German authorities issued arrest warrants 
against ten U.S. agents for their alleged involvement in Mr. 
El-Masri's rendition.\622\
    Similarly, Italian authorities have pursued criminal 
charges against twenty-six U.S. agents involved in the 
extraordinary rendition of terror suspect Abu Omar, who was 
taken from Italy to Egypt, where he was allegedly tortured. And 
the United Kingdom currently is investigating whether to bring 
criminal charges against the American CIA agents allegedly 
responsible for the rendition and torture of Binyam 
Mohamed.\623\
            B. Committee Action
    The Subcommittee on Constitution, Civil Rights, and Civil 
Liberties, working jointly with the Subcommittee on 
International Organizations, Human Rights, and Oversight of the 
House Committee on Foreign Affairs, conducted two hearings 
focused on rendition. At the first of these hearings, on 
October 18, 2007, Fred Hitz, the first CIA Inspector General, 
and a retired career intelligence officer, described what 
appeared to be the Administration's extraordinary rendition 
policies as ``unwise if not illegal.''

          The concept of renditions mutated after 9/11, when 
        ``the gloves were taken off'' law enforcement and 
        intelligence [and] . . . instead of snatching the 
        suspected terrorists for trial in the U.S., we 
        delivered them to allied nations for interrogation 
        under rules and circumstances that resulted in the use 
        of interrogation methods beyond what would have been 
        permitted to U.S. authorities.
          In some instances, we sought to protect ourselves 
        against blowback by writing a letter to the foreign 
        liaison contact seeking assurances that the methods 
        used would be congruent with international law, but the 
        letter was exchanged at such a low level diplomatically 
        and in such boilerplate language that it was really 
        meaningless as a restraint on the practices of nations 
        with poor human rights records.
          I believe this is doing indirectly what U.S. 
        officials would be prohibited from doing directly and 
        is unwise, if not illegal.\624\

    The particular focus of these hearings was the case of 
Maher Arar, the Canadian citizen who was seized by U.S. agents 
and sent to Syria, where he was imprisoned for a year and 
reportedly tortured.
    Mr. Arar testified by satellite that he was stopped by U.S. 
immigration officials while transiting through JFK airport in 
New York, detained for nearly two weeks, and then sent to 
Syria, against his wishes, and despite telling U.S. officials 
that he would be tortured there. Mr. Arar described his year in 
a Syrian jail cell as being held ``in a grave,'' and described 
how, during interrogations, he was blindfolded, punched, and 
beaten with a shredded electrical cable.\625\ He also recalled 
being placed outside other interrogation rooms, where he could 
hear other prisoners screaming in pain during interrogations, 
telling the Subcommittee that ``the women's screams haunt me 
the most.'' \626\
    Other hearing witnesses, law professors Kent Roach and 
David Cole, described Canada's response to Mr. Arar's case. 
After Mr. Arar returned to Canada in October 2003, the Canadian 
government agreed to convene a commission (the ``Arar 
Commission'') to investigate his case. The Arar Commission 
spent two-and-a-half years looking into his case, interviewed 
83 witnesses, and subpoenaed approximately 21,000 
documents.\627\ It ultimately concluded that there was no 
evidence that Mr. Arar had ever been linked to terrorist 
groups, or had ever posed a security threat. It further 
concluded that the Canadian government had shared inaccurate 
information with the United States, which had led to Mr. Arar's 
detention by the United States while he was transiting through 
JFK airport on his way home to Canada.\628\
    Following issuance of the Arar Commission's report, 
Canadian Prime Minister Stephen Harper apologized to Mr. Arar 
and his family, and announced that the Canadian government 
would compensate Mr. Arar in the amount of $10.5 million 
(Canadian). Royal Canadian Military Police Commissioner 
Giuliano Zaccardelli also apologized to Mr. Arar and his family 
for RCMP's role in the ``terrible injustices'' they had 
endured, and later resigned after admitting that he gave 
incorrect testimony to the Arar Commission.\629\ Mr. Arar has 
never been charged with wrongdoing by Canada, Syria, or the 
United States.
    As Professor Cole testified, Canada's response 
``demonstrates how a democracy should respond when such a wrong 
has been done . . . By contrast, the United States argues that 
Arar's claims cannot even be heard in court, claiming that its 
interest in secrecy trumps even the prohibition on torture.'' 
\630\ Professor Cole, along with Fred Hitz, former Inspector 
General and Legislative Counsel of the CIA, and Daniel 
Benjamin, former National Security Council advisor, also 
discussed the problematic evolution of the use of rendition 
following the 9/11 attacks. Their points included:
     Rendition has evolved from a means of bringing 
suspects from foreign countries to the United States in order 
to stand trial, into a means for transferring suspects to 
foreign countries to be interrogated harshly, through the use 
of methods that violate U.S. and international law.\631\
     The United States's rendition of terror suspects 
to countries where they have been tortured has undermined the 
legitimacy of U.S. policy, harmed U.S. relationships with 
foreign allies, and put future cooperation from foreign allies 
at risk.\632\
     Rendition to torture violates U.S. and 
International laws,\633\ including the Substantive Due Process 
Clause of the Fifth Amendment to the U.S. Constitution, the 
Federal Torture Statute,\634\ the Torture Victim Protection Act 
(TVPA),\635\ the Foreign Affairs Reform and Restructuring Act 
of 1998 (FARRA),\636\ the United Nations Convention Against 
Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment (CAT),\637\ and the International Convention on 
Civil and Political Rights (ICCPR).\638\
     ``Assurances'' from a receiving country, promising 
that a suspect will not be tortured, are insufficient. Such 
assurances are inherently unreliable, because countries that 
torture generally deny that they do so, and because there is no 
effective means to monitor the assurances once a suspect has 
been transferred and is out of the control of the sending 
state.\639\
    During this hearing, both Chairs and both Ranking Members 
of the Subcommittees apologized to Mr. Arar for his 
mistreatment at the hands of U.S. officials, with Chairman 
Nadler further apologizing for the failure of the 
Administration to remove Mr. Arar from its terror watchlists:

          On behalf of my fellow citizens, I want to apologize 
        to you, Mr. Arar, for the reprehensible conduct of our 
        Government for kidnaping you, for turning you over to 
        Syria, a nation that our own State Department routinely 
        recognizes as routinely practicing torture. I also want 
        to apologize for the continued and, from everything I 
        have seen, some of which I am not at liberty to 
        discuss, baseless decision to maintain the fiction that 
        you are a danger to this country.\640\

    Following this hearing, in December 2007, the DHS Office of 
Inspector General (OIG) finally produced a classified report 
that had been requested by Mr. Conyers in December, 2003.\641\ 
The report was accompanied by a one-page unclassified summary, 
which contained a brief recitation of facts already admitted 
publicly by the Administration, but omitted any conclusions 
reached or recommendations.
    After receiving the classified report and one-page 
unclassified summary, Chairman Conyers objected to 
classification of the entire report as ``SECRET,'' noting 
concerns that ``there appears to be significant over-
classification'' of information, and that there was no 
explanation of the claim that additional, unclassified 
information in the report was protected by ``legal 
privileges.'' Chairman Conyers asked DHS to explain, paragraph-
by-paragraph, the basis for its classification and other 
asserted privileges.\642\ In follow-up discussions with 
Committee staff, the DHS General Counsel agreed to release 
additional portions of the report, and to identify and explain 
the specific privileges being claimed for the remaining 
restricted, but unclassified, information.
    Delays in release of a revised report prompted the 
Constitution Subcommittee to announce another joint hearing. On 
the eve of this hearing, held June 5, 2008, the DHS General 
Counsel agreed to release additional portions of the report 
publicly at the hearing. DHS General Counsel still has not 
addressed the concerns about significant over-classification 
with respect to a number of paragraphs designated as 
``SECRET.''
    The publicly released version of the DHS OIG report reveals 
troubling facts suggesting possible criminal misconduct. For 
example, the Inspector General concluded that, after finding 
that it was ``more likely than not'' that Mr. Arar would be 
tortured if sent to Syria,\643\ INS officials still decided 
that the United States could send Mr. Arar there even though 
the ``assurances upon which INS based Arar's removal were 
ambiguous regarding the source or authority purporting to bind 
the Syrian government to protect Arar,'' \644\ and their 
``validity'' ``appears not to have been examined.'' \645\ The 
Inspector General also expressed concern with the speed with 
which U.S. officials rushed to remove Mr. Arar, and their 
possible interference with his access to counsel:

    The method of the notification of the [Convention Against 
Torture protection] interview to Arar's attorneys and the 
notification's proximity to the time of the interview [a phone 
message left at a work number at 4:30 p.m. on a Sunday for an 
interview that started at 9:00 p.m. that same Sunday night] 
were questionable. INS attorneys believed that Arar and his 
attorney would have had the opportunity to review the I-148 
after its issuance and INS attorneys expected the `inevitable 
habeas' to be filed at any time. However, that opportunity was 
never realized as Arar was removed immediately after service of 
the I-148.'' \646\

    Indeed, Mr. Arar was not served with the I-148 removal 
order until he was being transported to an airport in New 
Jersey, where he was the sole passenger boarded on a private 
plane that ultimately took him to Amman, Jordan via Washington, 
D.C. He was then transferred to the custody of Syrian 
officials.\647\
    At the June 5, 2008, hearing addressing the Arar rendition, 
under questioning from Constitution Subcommittee Chairman 
Jerrold Nadler, current DHS Inspector General Richard L. 
Skinner, former DHS Inspector General Clark Ervin, and 
International law expert Scott Horton all testified that they 
believed the removal of Mr. Arar to Syria may have violated 
criminal laws, including the Convention Against Torture and 
Federal Torture Statute.\648\ As Mr. Ervin explained:

          [t]here is no question but that given everything we 
        know, the intention here was to render him to Syria, as 
        opposed to Canada, because of the certainty that he 
        would be tortured in Syria and he would not be in 
        Canada.\649\

    Inspector General Skinner and Professor Horton agreed that, 
if it could be demonstrated that high-ranking U.S. officials 
intentionally deprived Mr. Arar of the means to challenge his 
detention and transfer to Syria with the knowledge that he 
would likely be tortured there, that would constitute a prima 
facie case of criminal misconduct.\650\
    Following the hearing, Chairmen Conyers, Nadler, and 
Delahunt called upon Attorney General Mukasey to appoint an 
outside special counsel to investigate whether criminal laws 
were violated in Mr. Arar's case because of concerns, in 
particular, about possible obstruction with Mr. Arar's efforts 
to obtain legal counsel and the apparent ambiguity regarding 
the validity of the alleged assurances received from 
Syria.\651\ The Attorney General refused that request.\652\

                      IV. Warrantless Surveillance

            A.   The Genesis of the Bush Administration's Warrantless 
                    Surveillance Program
    On or about October 4, 2001, the Bush Administration 
commenced a program of warrantless foreign intelligence 
wiretapping--wiretapping not authorized by The Foreign 
Intelligence Surveillance Act (FISA).\653\ This program--
referred to as the ``President's surveillance program'' or the 
``Terrorist Surveillance Program'' (TSP) \654\--was described 
by Attorney General Gonzales in February 2006 as permitting 
interceptions ``where one party to the communication is outside 
the U.S. and the government has `reasonable grounds to believe' 
that at least one party to the communication is a member or 
agent of al Qaeda, or an affiliated terrorist organization,'' 
and the Program was reviewed and reauthorized by the President 
approximately every 45 days.'' \655\
    According to Director of National Intelligence (DNI) 
Michael McConnell, the surveillance program was not static; the 
``details of the activities [of this program] changed in 
certain respects over time.'' \656\ Public reporting indicates 
that the program not only involved the collection of the 
contents of targeted communications, but also the interception 
of a large volume of information to collect and analyze ``meta-
data'' such as identifying or routing information for social 
network analysis \657\ without penetrating the content of the 
communications (hereinafter, ``the data-base program'').\658\ 
The legal rationale for this program was based, like other 
parts of the Imperial Presidency, on the Administration's 
theory of uncheckable presidential power as Commander in Chief, 
or on the claim that the program was implicitly authorized by 
Congress in the Authorization for the Use of Military Force 
(AUMF).
    As with the other expansive powers claimed by the 
Administration in the weeks after 9/11, it appears that the 
legal justification was obtained from then-Deputy Assistant 
Attorney General John Yoo, working closely with Vice President 
Cheney's staff. The Washington Post has reported that ``Yoo 
wrote a memo that said the White House was not bound by a 
federal law prohibiting warrantless eavesdropping on 
communications that originated or ended in the United States.'' 
\659\
    As with other sensitive issues regarding the President's 
claimed war powers, an extraordinary line of communication was 
set up between the Department of Justice and the White House, 
through the Department's Office of Legal Counsel. This 
alternative line of communication was directly between Mr. Yoo 
and Mr. Addington in the Office of the Vice President, rather 
than through Departmental structures that had been developed 
specifically to prevent abuses of power. Indeed, Mr. Addington 
was so fiercely protective of the program that he refused to 
allow even the NSA to know the legal basis for it: it has been 
reported that when, in late 2003, the NSA's General Counsel and 
Inspector General sought access to Mr. Yoo's memoranda, which 
underlay the Attorney General's certification of the form and 
legality of the President's authorizations, Mr. Addington 
angrily rebuffed them and sent them away empty-handed.\660\
    According to former OLC head Jack Goldsmith, it was Mr. 
Addington who was the ``chief legal architect of the Terrorist 
Surveillance Program,'' \661\ and who famously boasted, 
``[w]e're one bomb away from getting rid of that obnoxious 
[FISA] court.'' \662\
    The Vice President did not try to conceal his leadership of 
the program--indeed, it was his office that took the lead in 
briefing the few Senators and Representatives who were read in 
to the program. According to The New York Times:

          After the special program started, Congressional 
        leaders from both political parties were brought to 
        Vice President Dick Cheney's office in the White House. 
        The leaders, who included the chairmen and ranking 
        members of the Senate and House intelligence 
        committees, learned of the N.S.A. operation from Mr. 
        Cheney, Lt. Gen. Michael V. Hayden of the Air Force, 
        who was then the agency's director and is now a full 
        general and the principal deputy director of national 
        intelligence, and George J. Tenet, then the director of 
        the C.I.A., officials said.\663\

    The Washington Post reported the Vice President's 
involvement as well. ``We met in the Vice President's office 
[to be briefed on the warrantless surveillance],' recalled 
former Senator Bob Graham (D-FL). Bush had told Graham already, 
when the Senator assumed the intelligence panel chairmanship, 
that `the Vice President should be your point of contact in the 
White House.' Cheney, the president said, `has the portfolio 
for intelligence activities.' '' \664\
    This approach continued when Senator Graham was replaced as 
the leading Democrat on the Intelligence Committee by Senator 
Jay Rockefeller (D-WV). When Senator Rockefeller was alarmed 
about information he received in a briefing about the 
surveillance activities, he was forbidden to follow up with 
expert staff, but required to present his concerns in a hand-
written note to the Vice President.\665\ This tight rein was 
not limited to congressional oversight committees. All secret 
documents pertaining to the program were kept in the Office of 
the Vice President, and David Addington had the power within 
the Administration to reject the NSA's request to review the 
Yoo memoranda providing the legal justification for the secret 
program they were being tasked to undertake, and to block for 
some time attempts to read the Deputy Attorney General into the 
program.\666\
    At some point after the establishment of the initial NSA 
warrantless surveillance program, the Administration informed 
Chief Judges Royce Lamberth, and later Colleen Kollar-Kotelly, 
of the Foreign Intelligence Surveillance Court (FISC) about the 
program. Both Chief Judges expressed concerns about the 
program's legality, and sought to ensure that FISA warrants 
were not issued based on affidavits that contained information 
from the NSA warrantless surveillance programs.\667\ According 
to government sources, ``[b]oth judges expressed concern to 
senior officials that the president's program, if ever made 
public and challenged in court, ran a significant risk of being 
declared unconstitutional . . . Yet the judges believed they 
did not have the authority to rule on the president's power to 
order the eavesdropping . . . and focused instead on protecting 
the integrity of the FISA process.'' \668\
    For instance, Chief Judge Royce Lamberth reached a 
compromise agreement with the Administration on FISA warrant 
applications involving information developed through the 
warrantless surveillance program. These applications were to be 
carefully ``tagged.'' They were to be presented only to the 
presiding judge. And information obtained through warrantless 
NSA surveillance could not form the basis for obtaining the 
FISA warrant; instead, independently gathered information would 
have to provide the justification for FISA monitoring.\669\ 
Both Chief Judges Lamberth and Kollar-Kotelly were given 
personal assurances that no information obtained in the 
warrantless surveillance program would be used to gain warrants 
from their court.
    Despite these assurances, and the existence of minimization 
procedures to protect Americans' information that might have 
been inadvertently acquired, information was not as well 
segregated as intended. For instance, according to Newsweek, 
``although the NSA is supposed to follow data minimization 
procedures that protect the identities of its intelligence 
targets, the agency . . . apparently revealed the names of more 
than 10,000 U.S. citizens that it has monitored.'' \670\
            B.  Internal Disagreements as to the Program's Legality; 
                    Disclosure of the Program by The New York Times in 
                    December 2005
    In late 2003, frustrations with the program within the 
legal teams at the Justice Department and NSA began to bubble 
over. John Yoo had left the Department. Jack Goldsmith, the new 
Assistant Attorney General for the Office of Legal Counsel, was 
shutting down the informal channels through which David 
Addington had for so long directed the legal justification for 
the Administration's interrogation, detention, and surveillance 
policies. Attorneys became increasingly concerned that the FISC 
would begin to assert itself. This led to a high-stakes 
showdown in which the President, confronted by the imminent 
resignation of the higher levels of the Department of Justice 
and FBI, blinked. It also appears to have caused such 
disruption within the Department that a whistleblower was moved 
to contact The New York Times, which eventually revealed the 
existence of the program.
    By early 2004, James A. Baker, Counsel for Intelligence 
Policy in Justice Department's Office of Intelligence Policy 
and Review (OIPR), was forced to acknowledge to the FISC that 
NSA was not providing the Justice Department with the 
information needed to implement the tagging system, and that 
the Department may have inadvertently provided the court 
``tainted'' information (that is, information obtained from the 
President's surveillance programs) to obtain FISA warrants. It 
seemed that the government's agreement with Judge Kollar-
Kotelly and Judge Lamberth had been breached.\671\
    Judge Kollar-Kotelly complained to Attorney General 
Ashcroft, which apparently led to a review of the program.\672\ 
Eventually, the Department agreed that a high-level official 
would certify that the information provided to the FISC was 
accurate, or face possible perjury charges. It has been 
reported that, once the program was disclosed to the public, 
one of the judges on the court--District Court Judge James 
Robertson--became so concerned about the program's legality 
that he resigned his position in protest.\673\
    It was not until December 2005--more than four years after 
the surveillance program commenced--that aspects of its 
existence were disclosed publicly. In early 2004, Thomas Tamm, 
an attorney in OIPR who was not read into the program, became 
concerned as parts of his workload bumped up against the 
information that was being segregated per the agreement with 
the Chief Judges. As he inquired further about what appeared to 
be a back-door process that was not authorized by FISA, he was 
warned off. When he asked a supervisor directly if there was a 
secret program, he was told ``I assume what they are doing is 
illegal.'' He was told by one of Baker's deputies that the 
office was in trouble with the Chief Judge of the FISC, and 
that the special process was being shut down. The deputy told 
him ``[t]his may be [a time] the Attorney General gets 
indicted.''
    Shocked by the prospect of illegal activity going on within 
the Justice Department, Tamm contacted a reporter for The New 
York Times \674\ and relayed what little he knew about the 
program.\675\ While a team of Times reporters began to 
investigate the story into the Fall of 2004, initial reporting 
was suspended after Times editors concluded that sourcing was 
too thin to justify an election-eve bombshell about an illegal 
surveillance program.\676\
    Over a year later, The New York Times finally reported on 
the program, despite an unprecedented last-minute intervention 
by the Administration, in which President Bush summoned the 
publisher and editor to the Oval Office to try to dissuade them 
from running the story.\677\ On December 16, 2005, the paper 
disclosed that the NSA had conducted warrantless wiretaps on 
certain international communications that may have involved 
individuals in the United States:

          While many details about the program remain secret, 
        officials familiar with it say the N.S.A. eavesdrops 
        without warrants on up to 500 people in the United 
        States at any given time. The list changes as some 
        names are added and others dropped, so the number 
        monitored in this country may have reached into the 
        thousands since the program began, several officials 
        said.\678\

    The salient features of the program, as they emerged, 
revealed that the various authorizations for the surveillance 
program had apparently been counter-signed by Attorney General 
Ashcroft, seemingly with little enthusiasm and through a 
truncated process that cut out his normal intelligence 
advisors. As The New York Times reported, Mr. Ashcroft 
initially signed off on the program without formal legal review 
and without the concurrence of Deputy Attorney General Larry 
Thompson. Mr. Ashcroft was reported to have complained to 
associates that the White House ``just shoved it in front of me 
and told me to sign it.'' \679\
    As time went by and he could not bring in his full national 
security team to discuss the authorizations, Attorney General 
Ashcroft reportedly became increasingly concerned about the 
legal underpinnings of the surveillance program. These concerns 
came to a head in early 2004, as the relationship between the 
Department and the FISC became strained over the segregated 
information obtained by non-FISA warrantless electronic 
surveillance, and as the Vice President's back-door channel 
into the Department closed.
    With John Yoo having departed the Department of Justice, 
newly appointed OLC chief Jack Goldsmith reviewed the secret 
wiretapping program, and concluded it was legally flawed and 
could not withstand legal scrutiny. Deputy Attorney General 
James Comey agreed with Mr. Goldsmith's legal conclusions. In 
March of 2004, Attorney General Ashcroft was hospitalized as 
one of the 45-day authorizations for the program was coming 
due. The day that Mr. Ashcroft was stricken with pancreatitis, 
he and Mr. Comey had discussed Jack Goldsmith's findings. In 
light of that conversation, Mr. Comey refused to certify the 
periodic authorization for legality in his role as Acting 
Attorney General.\680\
    Mr. Comey was called to the White House and confronted by 
the Vice President and his lawyers. He refused to back down 
from the Department's legal concerns. Mr. Comey argued to the 
Vice President that ``[i]f I can't find a lawful basis for 
something, your telling me you really, really need to do it 
doesn't help me.'' He was direct with the Vice President and 
the intelligence community leaders who Vice President Cheney 
had assembled to pressure him--the legal reasoning that John 
Yoo and David Addington had used to create the program was 
``facially flawed.'' \681\
    That night, a high-stakes incident unfolded. Mr. Comey and 
FBI Director Robert Mueller had to race to the hospital to 
shield the prostrate Attorney General from an attempt by White 
House Counsel Alberto Gonzales and Chief of Staff Andrew Card 
to pressure him into certifying the program in a weakened state 
from his intensive-care unit sickbed. Mr. Comey's Senate 
testimony about this incident dramatically describes the 
events:

    Mr. Comey: In the early part of 2004, the Department of 
Justice was engaged--the Office of Legal Counsel, under my 
supervision--in a reevaluation both factually and legally of a 
particular classified program. And it was a program that was 
renewed on a regular basis, and required signature by the 
attorney general certifying to its legality.
    And the--and I remember the precise date. The program had 
to be renewed by March the 11th, which was a Thursday, of 2004. 
And we were engaged in a very intensive reevaluation of the 
matter.
    And a week before that March 11th deadline, I had a private 
meeting with the attorney general for an hour, just the two of 
us, and I laid out for him what we had learned and what our 
analysis was in this particular matter.
    And at the end of that hour-long private session, he and I 
agreed on a course of action. And within hours he was stricken 
and taken very, very ill.
    Mr. Schumer: (inaudible) You thought something was wrong 
with how it was being operated or administrated or overseen.
    Mr. Comey: We had--yes. We had concerns as to our ability 
to certify its legality, which was our obligation for the 
program to be renewed.
    The attorney general was taken that very afternoon to 
George Washington Hospital, where he went into intensive care 
and remained there for over a week. And I became the acting 
attorney general.
    And over the next week--particularly the following week, on 
Tuesday--we communicated to the relevant parties at the White 
House and elsewhere our decision that as acting attorney 
general I would not certify the program as to its legality and 
explained our reasoning in detail, which I will not go into 
here. Nor am I confirming it's any particular program. That was 
Tuesday that we communicated that.
    The next day was Wednesday, March the 10th, the night of 
the hospital incident. And I was headed home at about 8 o'clock 
that evening, my security detail was driving me. And I remember 
exactly where I was--on Constitution Avenue--and got a call 
from Attorney General Ashcroft's chief of staff telling me that 
he had gotten a call.

           *       *       *       *       *       *       *

    [The call was from] Mrs. Ashcroft from the hospital. She 
had banned all visitors and all phone calls. So I hadn't seen 
him or talked to him because he was very ill.
    And Mrs. Ashcroft reported that a call had come through, 
and that as a result of that call Mr. Card and Mr. Gonzales 
were on their way to the hospital to see Mr. Ashcroft.

           *       *       *       *       *       *       *

    So I hung up the phone, immediately called my chief of 
staff, told him to get as many of my people as possible to the 
hospital immediately. I hung up, called Director Mueller and--
with whom I'd been discussing this particular matter and had 
been a great help to me over that week--and told him what was 
happening. He said, ``I'll meet you at the hospital right 
now.''

           *       *       *       *       *       *       *

    And so I raced to the hospital room, entered. And Mrs. 
Ashcroft was standing by the hospital bed, Mr. Ashcroft was 
lying down in the bed, the room was darkened. And I immediately 
began speaking to him, trying to orient him as to time and 
place, and try to see if he could focus on what was happening, 
and it wasn't clear to me that he could. He seemed pretty bad 
off.
    Spoke to Director Mueller by phone. He was on his way. I 
handed the phone to the head of the security detail and 
Director Mueller instructed the FBI agents present not to allow 
me to be removed from the room under any circumstances. And I 
went back in the room.

           *       *       *       *       *       *       *

    I sat down in an armchair by the head of the Attorney 
General's bed. The two other Justice Department people stood 
behind me. And Mrs. Ashcroft stood by the bed holding her 
husband's arm. And we waited.
    And it was only a matter of minutes that the door opened 
and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. 
They came over and stood by the bed. They greeted the attorney 
general very briefly. And then Mr. Gonzales began to discuss 
why they were there--to seek his approval for a matter, and 
explained what the matter was--which I will not do.
    And Attorney General Ashcroft then stunned me. He lifted 
his head off the pillow and in very strong terms expressed his 
view of the matter, rich in both substance and fact, which 
stunned me--drawn from the hour-long meeting we'd had a week 
earlier--and in very strong terms expressed himself, and then 
laid his head back down on the pillow, seemed spent, and said 
to them, ``But that doesn't matter, because I'm not the 
Attorney General.'' \682\

           *       *       *       *       *       *       *

    And as he laid back down, he said, ``But that doesn't 
matter, because I'm not the attorney general. There is the 
attorney general,'' and he pointed to me, and I was just to his 
left.
    The two men did not acknowledge me. They turned and walked 
from the room. And within just a few moments after that, 
Director Mueller arrived. I told him quickly what had happened. 
He had a brief--a memorable brief exchange with the Attorney 
General and then we went outside in the hallway.

           *       *       *       *       *       *       *

    While I was talking to Director Mueller, an agent came up 
to us and said that I had an urgent call in the command center, 
which was right next door. They had Attorney General Ashcroft 
in a hallway by himself and there was an empty room next door 
that was the command.
    And he said it was Mr. Card wanting to speak to me.
    I took the call. And Mr. Card was very upset and demanded 
that I come to the White House immediately.
    I responded that, after the conduct I had just witnessed, I 
would not meet with him without a witness present.
    He replied, ``What conduct? We were just there to wish him 
well.''
    And I said again, ``After what I just witnessed, I will not 
meet with you without a witness. And I intend that witness to 
be the Solicitor General of the United States.''

           *       *       *       *       *       *       *

    I was very upset. I was angry. I thought I just witnessed 
an effort to take advantage of a very sick man, who did not 
have the powers of the attorney general because they had been 
transferred to me. I thought he had conducted himself, and I 
said to the attorney general, in a way that demonstrated a 
strength I had never seen before. But still I thought it was 
improper.
    And it was for that reason that I thought there ought to be 
somebody with me if I'm going to meet with Mr. Card.\683\

    The crisis that this scene triggered cannot be overstated. 
The White House was willing to circumvent the legal chain of 
command at the Justice Department to try to pressure a man in 
intensive care to certify a form that he knew was inaccurate. 
In the wake of the hospital visit, the Acting Attorney General 
of the United States--an attorney of unquestioned ethics--was 
unwilling to meet with the White House Chief of Staff without a 
witness present. The Director of the FBI posted agents to the 
Attorney General's sickbed not to guard against terrorists or 
other threats, but to guard him and his deputy from the White 
House Counsel and Chief of Staff.\684\ As Director Mueller's 
contemporaneous notes recount, he observed that the Attorney 
General was, ``feeble, barely articulate, [and] clearly 
stressed'' in the wake of the incident.\685\
    The next day, the Vice President forced through--over the 
Justice Department's objections--an Addington-drafted 
reauthorization of the program that substituted the White House 
Counsel for the Attorney General as the official certifying the 
legality of the program. Immediately, the Acting Attorney 
General, the Director of the FBI, the General Counsel of the 
FBI, the General Counsel of the CIA, the Assistant Attorney 
General for the Office of Legal Counsel, the Assistant Attorney 
General for the Criminal Division, and other Justice Department 
officials began to prepare to resign en masse.\686\ In fact, 
Attorney General Ashcroft's Chief of Staff asked that Mr. Comey 
delay his resignation until Mr. Ashcroft's medical condition 
improved, so that he could join the group in resigning.\687\
    As is recounted by Barton Gellman in his Pulitzer-
prizewinning series on Vice President Cheney, on March 12, 
2004, President Bush countermanded the authorization that he 
had signed the day before when he realized that Mr. Comey and 
FBI Director Mueller were planning to resign that afternoon. In 
pulling back from the brink, President Bush allowed the Justice 
Department to not only reassess the legal underpinnings of the 
program, but to demand modifications to the program as well. 
Some of the changes that were made as a result of the near-
rebellion are public. For instance, by the end of the summer of 
2004, the Justice Department and the NSA had promulgated an 
internal checklist to determine whether probable cause existed 
to monitor conversations under the program, rather than trying 
to legally justify undifferentiated dragnet surveillance.\688\
            C.  Bush Administration's Public Statements Concerning 
                    Warrantless Surveillance
    Despite all of the internal questions that were being 
raised as to the legality of the warrantless surveillance 
program, President Bush publicly made statements that implied 
that all wiretaps involved court orders. For instance, on April 
19, 2004, in arguing for renewal of the PATRIOT Act, the 
President stated:

          I'll tell you another good thing that happened. 
        Before September the 11th, investigators had better 
        tools to fight organized crime than to fight 
        international terrorism. That was the reality. For 
        years, law enforcement used so-called roving wire taps 
        to investigate organized crime. You see, what that 
        meant is if you got a wire tap by court order--and, by 
        the way, everything you hear about requires court 
        order, requires there to be permission from a FISA 
        court, for example.\689\

    The next day, as he continued to press for reauthorization 
of the PATRIOT Act, the President again made a statement 
implying that the foreign intelligence collection system was 
one that depended on wiretaps: ``When we're talking about 
chasing down terrorists, we're talking about getting a court 
order before we do so.'' \690\
    President Bush made similar statements throughout 2005. For 
instance, in June 2005, President Bush told the Ohio State 
Highway Patrol that ``Law enforcement officers need a federal 
judge's permission to wiretap a foreign terrorist's phone, a 
federal judge's permission to track his calls, or a federal 
judge's permission to search his property.'' \691\ Similarly, 
in an event at the Port of Baltimore in July, 2005, President 
Bush tried to rebut concerns about civil liberties in anti-
terrorist activities, stating ``Law enforcement officers need a 
federal judge's permission to wiretap a foreign terrorist's 
phone, or to track his calls, or to search his property.'' 
\692\
    Once the warrantless wiretapping program became public, the 
Administration's denials switched to attempts at justification. 
In December 2005, after The New York Times ran the story that 
the Administration had engaged in various warrantless 
wiretapping programs, President Bush admitted to at least 
portions of the program.\693\ Under one description, the NSA 
targeted international communications when there was cause to 
believe that at least one party to the communication was 
outside of the United States and was a member or agent of al 
Qaeda or an associated terrorist organization.\694\
    The notion that collection was permissible when only one 
party to the conversation was outside of the United States 
(``one-end-foreign'') directly contradicted the common 
understanding that collection of communications within the 
United States was covered by the Fourth Amendment and FISA. 
FISA specifically applied to the ``interception of 
international wire communications to or from any person 
(whether or not a U.S. person) within the United States without 
the consent of at least one party.'' \695\ And yet, in 
defending the President's surveillance program, the 
Administration claimed that such interceptions were legal, and 
acted as though this had never been in question. For instance, 
in a speech in January 2006, Vice President Cheney brushed 
aside the firestorm of criticism that followed The New York 
Times piece, stating

    [Y]ou frequently hear this called a ``domestic surveillance 
program.'' It is not. We are talking about international 
communications, one end of which we have reason to believe is 
related to al Qaeda or to terrorist networks affiliated with al 
Qaeda.

           *       *       *       *       *       *       *

    This is a wartime measure, limited in scope to surveillance 
associated with terrorists, and conducted in a way that 
safeguards the civil liberties of our people.\696\

    In that speech, Cheney not only ignored the requirements of 
FISA, but brushed off attacks on the program; in his view, a 
``vital requirement in the war on terror is that we use 
whatever means are appropriate to try to find out the 
intentions of the enemy,'' and only through ``round the clock 
efforts'' and ``decisive policies'' had major terrorist attacks 
been averted since those of September 11.
            D.  Concerns About Legality and Effectiveness of the 
                    President's Warrantless Surveillance
    As details emerged, the President's surveillance program 
engendered widespread opposition across the political spectrum. 
The legal and constitutional underpinnings of the program were 
questioned by a broad range of observers, including 
conservatives and non-partisan groups such as: ``then-Senate 
Judiciary Chairman Arlen Specter (R-PA), Senators Chuck Hagel 
(R-NE), Olympia Snowe (R-ME), Richard Lugar (R-IN), Susan 
Collins (R-ME), John Sununu (R-NH), Larry Craig (R-ID), Lindsey 
Graham (R-SC), and John McCain (R-AZ); former GOP Congressman 
Bob Barr; conservative activists Grover Norquist, David Keene, 
and Paul Weyrich; former Republican officials such as Judge and 
former Reagan FBI Director William Sessions, former Reagan 
Associate Deputy Attorney General Bruce Fein, and former Nixon 
White House Counsel John Dean; conservative legal scholars such 
as CATO's Robert Levy and University of Chicago Professor 
Richard Epstein, noted conservative columnists William Safire, 
George Will, and Steve Chapman; the American Bar Association; 
the Congressional Research Service; and numerous current and 
former members of the Bush Administration.'' \697\
    Among other things, Senator Specter stated that the 
Administration's legal interpretation ``just defies logic and 
plain English.'' \698\ Numerous government officials who were 
familiar with the warrantless surveillance program considered 
it to be ``unlawful and possibly unconstitutional, amounting to 
an improper search.'' \699\ Other officials were quoted as 
stating that ``an investigation should be launched into the way 
the Bush Administration has turned the intelligence community's 
most powerful tools against the American people, while 
officials at the NSA indicated they wanted nothing to do with 
the program and were fearful that it was an illegal 
operation.\700\
    The consensus that the President's warrantless surveillance 
activities and the arguments set forth in its defense were a 
radical departure from accepted FISA law was expressed in 
detail by David Kris, the former Associate Deputy Attorney 
General for national security, who issued a 23-page legal 
analysis finding that the Administration's arguments were 
``weak'' and unlikely to be supported by the court.\701\ Thomas 
H. Kean, Chairman of the 9/11 Commission, counted himself among 
those who doubted the legality of the program. He said in an 
interview that the Administration did not inform his commission 
about the program and that he ``wished it had.'' \702\
    One government official involved in the operation of the 
President's surveillance program said that he had privately 
complained to a congressional official about his doubts as to 
the program's legality, but that nothing had come of his 
inquiry.\703\ Another former senior intelligence official at 
the NSA explicitly stated that ``there was apprehension, 
uncertainty in the minds of many about whether or not the 
President did have that constitutional or statutory 
authority.'' \704\
    The Bush Administration has implicitly acknowledged that 
the President's surveillance program did not meet then-existing 
FISA requirements. In a letter to the Intelligence Committees 
in December 2005, the Department of Justice explained to 
Congress that ``FISA could not have provided the speed and 
agility required for the early warning detection system.'' 
\705\ As details of the program began to emerge, the 
Administration issued a public justification of it,\706\ 
claiming that the President had the power to implement it 
either pursuant to his inherent Article II authority as 
Commander in Chief, or pursuant to implicit authorization by 
Congress when it enacted the AUMF.\707\
    In a press conference in December 2005, Attorney General 
Gonzales was asked why the Administration did not seek 
legislation for the President's surveillance program:

    Q. [Reporter]: If FISA didn't work, why didn't you seek a 
new statute that allowed something like this legally?
    Mr. Gonzales: That question was asked earlier. We've had 
discussions with members of Congress, certain members of 
Congress, about whether or not we could get an amendment to 
FISA, and we were advised that that was not likely to be--that 
was not something we could likely get, certainly now without 
jeopardizing the existence of the program, and therefore, 
killing the program. And that--and so a decision was made that 
because we felt that the authorities were there, that we should 
continue moving forward with this program.''  \708\

    Thus, the Administration asserted on the one hand that 
Congress authorized the NSA program in the AUMF, and at the 
same time, said it did not ask Congress for such authorization 
because it feared Congress would say no. Moreover, the 
Administration's reliance on the AUMF is belied by the 
legislative history of the AUMF--Congress specifically rejected 
the Administration's request that the AUMF be written to give 
the president authority to ``use all necessary and appropriate 
force in the United States'' as well as ``against those 
nations, organizations, or persons he determines planned, 
authorized, committed, or aided the terrorist attacks that 
occurred on September 11, 2001.'' \709\
    Not only did the AUMF not explicitly amend FISA; it is not 
even clear that the AUMF constitutes a ``statute'' within the 
meaning of FISA. As Professor Jonathan Turley explained in a 
2006 briefing before House Judiciary Committee Democrats, ``the 
Force Resolution is not a statute for the purpose of Section 
1809 [of FISA].'' \710\ The Congressional Research Service also 
concluded that, ``[a]lthough section 109(a) of FISA does not 
explicitly limit the language ``as authorized by statute'' to 
refer only to Title III and to FISA, the legislative history 
suggests that such a result was intended.'' \711\
    The Bush Administration was willing to violate FISA, to 
risk a Constitutional crisis, to put at risk prosecutions, and 
tie up law enforcement resources in order to pursue its 
warrantless wiretapping programs. However, there is little 
indication that the President's surveillance program was 
beneficial in the war against terrorism, in no small part 
because the flood of undifferentiated information was so 
massive as to be meaningless, from an intelligence standpoint. 
One Pentagon consultant admitted, ``[t]he vast majority of what 
we did with the [NSA] intelligence was ill-focused and not 
productive. It's intelligence in real time, but you have to 
know where you're looking and what you're after.'' \712\
    Government sources told The Washington Post that the 
program had had little discernible impact on the government's 
ability to prevent terrorist plots by al Qaeda, and that fewer 
than ten U.S. persons per year aroused sufficient suspicion to 
justify seeking a full-fledged FISA warrant--a ``washout'' rate 
so low as to make it doubtful whether the President's program 
could be deemed reasonable under the Fourth Amendment.\713\ In 
December 2005, The Washington Times reported that:

          . . . more than four years of surveillance by the 
        National Security Agency has failed to capture any 
        high-level al Qaeda operative in the United States. 
        They said al Qaeda insurgents have long stopped using 
        the phones and even computers to relay messages. 
        Instead, they employ couriers. `They have been way 
        ahead of us in communications security,' a law 
        enforcement source said. `At most, we have caught some 
        riff-raff. But the heavies remain free and we believe 
        some of them are in the United States.' \714\

    According to The New York Times, ``[L]aw enforcement and 
counterterrorism officials said the program had uncovered no 
active Qaeda networks inside the United States planning 
attacks. `There were no imminent plots--not inside the United 
States,' the former FBI official said.'' \715\ On February 2, 
2006, FBI Director Mueller testified that the warrantless 
surveillance program had not identified a single al Qaeda 
representative in the United States since the September 11 
attacks.\716\
    The limited usefulness of the President's surveillance 
program seems to have cut across its various aspects. For 
instance, The Washington Post reported that ``[i]ntelligence 
officers who eavesdropped on thousands of Americans in overseas 
calls under authority from President Bush have dismissed nearly 
all of them as potential suspects after hearing nothing 
pertinent to a terrorist threat, according to accounts from 
current and former government officials and private-sector 
sources with knowledge of the technologies in use.\717\ So too, 
there is little evidence that the NSA's domestic database 
program aided in the apprehension of terrorists. Newsweek 
reported that ``administration officials [they] interviewed . . 
. questioned whether the fruits of the NSA [database] program--
which they doubted, though not publicly at the risk of losing 
their jobs--have been worth the cost to privacy.'' \718\
    A former senior prosecutor stated that ``[t]he information 
was so thin, and the connections were so remote, that they 
never led to anything, and I never heard any follow-up,'' and 
FBI resources were sidetracked on fruitless investigations of 
``dead ends or innocent Americans.'' \719\ Indeed, the leads 
from the President's surveillance program were seen as so 
unproductive within the FBI that agents joked that ``a new 
bunch of tips meant more calls to Pizza Hut,'' even after the 
NSA began ranking its tips in response to FBI complaints.\720\ 
FBI Director Mueller testified to the Senate that ``most leads 
[received by the FBI], whether it be from the NSA or overseas 
from the CIA, ultimately turn out not to be valid or 
worthwhile.'' \721\ And when interviewed by Wolf Blitzer on May 
14, 2006, then-Senate Majority Leader Bill Frist (R-TN), while 
defending the program's lawfulness, refused to identify or even 
acknowledge any specific successes against terrorism, even 
though he was asked three separate times whether ``there has 
been one success story that you can point to.'' \722\
    When the Administration sought to amend FISA in the 110th 
Congress, it had no problem revealing details of the 
President's non-FISA wiretapping, or broadly characterizing 
surveillance activities--often inaccurately. After years in 
which the Administration denied access to Congress about these 
activities, Director of National Intelligence McConnell 
revealed certain aspects of the program to the El Paso Times in 
an attempt to explain his actions in negotiating the Protect 
America Act of 2007.\723\ Minority Leader John Boehner was also 
reported to have perhaps revealed classified information on 
television about the FISA Court ruling that rejected the Bush 
Administration's attempts to bring the President's program 
under the court's imprimatur.\724\
    Thereafter, the Administration and its supporters seemingly 
mischaracterized surveillance activities, and perhaps publicly 
revealed classified information, inaccurately claiming that 
TSP-style programs had been used in a terrorism case in 
Germany, and arguing that traditional FISA standards undercut 
the military's ability to respond to the kidnaping and murder 
of soldiers from the 10th Mountain Division in Iraq. Both of 
these claims were revealed as false when the facts were made 
public.\725\
    In the wake of the December 2005 public disclosure of the 
Program's existence, the Department of Justice's Office of 
Professional Responsibility (OPR), at the request of 
Representative Maurice Hinchey (D-NY), attempted to conduct an 
internal investigation into the program. This effort died in 
early 2006, after the President himself denied OPR 
investigators the necessary security clearances to learn about 
the program's workings.\726\ Immediately after Michael Mukasey 
was confirmed as Attorney General in November 2007, the 
investigation was re-opened--a decision that suggested to many 
that Mukasey ``wanted to remedy what many in Congress saw as an 
improper decision by the President to block the clearances.'' 
\727\ As this Report is written, we are still awaiting results 
of that investigation.
    In January 2006, the Electronic Frontier Foundation (EFF) 
filed a federal class-action lawsuit alleging that AT&T had 
collaborated with the NSA in a massive illegal program to 
wiretap and data-mine communications. Cases from around the 
country alleging similar violations were consolidated before 
Chief Judge Vaughn Walker of the Northern District of 
California,\728\ who declined to dismiss the cases on ``state 
secrets'' grounds as urged by the Administration.\729\ In 
January 2009, Judge Walker again refused to dismiss one of the 
consolidated cases, Al Haramain Islamic Foundation v. Bush, 
holding that the plaintiffs in that case had alleged sufficient 
facts for their case to proceed, even though the Government had 
used ``state secrets'' grounds to withhold classified 
information the plaintiffs believed would help establish that 
they were aggrieved parties entitled to sue under FISA.\730\ In 
one of the final legal acts of the Bush presidency, the 
Administration petitioned Judge Walker on the eve of the 2009 
inaugural to stay that ruling so that they could appeal to the 
Ninth Circuit.\731\
    Another federal lawsuit, filed in January 2006 by the ACLU 
in the Eastern District of Michigan, alleged both a secret 
warrantless program to intercept Americans' communications with 
persons overseas, and a massive data-mining project in which 
the e-mails call records of Americans were sifted through 
indiscriminately.\732\ In that case, Judge Anna Diggs Taylor 
granted summary judgment for the ACLU on the issues concerning 
the President's surveillance program, ruling that warrantless 
interception within the United States of ``international 
telephone and internet communications of numerous persons and 
organizations'' was illegal.\733\
    First, Judge Diggs Taylor ruled, the program violated FISA. 
``In this case, the President has acted, undisputedly, as FISA 
forbids. FISA is the expressed statutory policy of our 
Congress. The presidential power, therefore . . . cannot be 
sustained.'' \734\ Second, it violated the Constitution. 
``[T]he Office of the Chief Executive has itself been created, 
with its powers, by the Constitution. There are no hereditary 
Kings in America and no powers not created by the Constitution. 
So all 'inherent powers' must derive from that Constitution.'' 
\735\
    Subsequently, the Sixth Circuit overturned Judge Diggs 
Taylor's decision, on jurisdictional grounds--without rejecting 
her substantive reasoning--ruling that the plaintiffs did not 
have standing to bring the case because they had no evidence 
with which to establish that they were targets of the 
warrantless surveillance of which they complained.\736\
            E.  Additional Scrutiny and Legislative Activity in the 
                    110th Congress
    Following the elections of 2006, in which Democrats gained 
control of Congress, the Bush Administration brought the 
President's program under FISC review.\737\ According to a 
public letter from Attorney General Gonzales, on January 10, 
2007, the Administration decided to bring these activities 
(referred to by the Attorney General as the ``Terrorist 
Surveillance Program'') within the scrutiny of the FISC.
    According to that letter, a judge of the FISC issued an 
order ``authorizing the Government to target for collection 
international conversations into or out of the United States 
where there is probable cause to believe that one of the 
communicants is a member or agent of al Qaeda or an associated 
terrorist organization.'' Further, ``any electronic 
surveillance that was occurring as part of the Terrorist 
Surveillance Program will now be conducted subject to the 
approval of the Foreign Intelligence Surveillance Court.'' 
\738\ That judicial oversight soon posed problems, as the 
Administration's strained theories of presidential power were 
put to the test by a neutral adjudicator.\739\ The court's 
opportunity to fully examine the program quickly revealed that 
the President's program was not a simple recasting of existing 
FISA, but was a dramatically new approach to foreign 
intelligence surveillance. In May 2007, the FISC rejected the 
use of administratively-issued programmatic authorizations for 
the interception of foreign communications which were acquired 
within the United States.\740\
    On June 7, 2007, the Judiciary Committee held its first 
FISA hearing in the 110th Congress: ``Oversight Hearing on the 
Constitutional Limitations on Domestic Surveillance,'' under 
the auspices of the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties. At that time, the Administration 
had not notified the Committee that certain OLC memos written 
by John Yoo had been repudiated, or that changes to the program 
had resulted as a consequence of a revitalized FISC. Rather, 
the Administration characterized the involvement of the FISC as 
their own ``achievement'' that allowed the President to decide 
not to continue the program.\741\
    At that hearing, Principal Deputy Assistant Attorney 
General Steven Bradbury, who was then acting as head of the 
Office of Legal Counsel, tried to defend the legality of the 
President's program by simply repeating the justifications set 
forth in the Justice Department's White Paper of January 2006. 
Bradbury argued that the President had ``full authority'' to 
authorize the TSP in order to carry out his duty ``to protect 
the Nation from armed attack,'' and in the alternative, that 
the AUMF allowed such surveillance, notwithstanding the law 
that FISA is the exclusive means of electronic 
surveillance.\742\
    In the summer of 2007, the Administration suddenly and 
urgently called on Congress to enact FISA revisions before its 
imminent August recess, to close what the Administration termed 
``pressing gaps'' in the surveillance regime. Director 
McConnell publicly characterized these gaps as having been 
created by different rulings concerning the surveillance 
program by different judges of the FISC after the program was 
brought under its supervision in January 2007, leaving the 
intelligence community ``in extremis'' after May 31, 2007.\743\ 
According to Director McConnell, this created an ``intelligence 
gap,'' as the intelligence community worked to prepare FISA 
warrant applications for countless acquisitions of foreign-to-
foreign communications that happened to flow through switches 
in the United States.
    These claims, and the insistence that there was no time for 
a more deliberative consideration of the important 
Constitutional issues at stake, that the country was at grave 
risk, provided the impetus for FISA legislation that was passed 
on August 4, 2007, and signed into law the following day--the 
``Protect America Act'' (PAA).\744\ Congress insisted, however, 
that the legislation be short-term, to expire in 180 days, so 
that a more careful examination could be undertaken before any 
changes became permanent. Foreign surveillance under the 
temporary PAA authorizations began soon after it was passed, 
and continued until replaced by the more stringent FISA 
Amendments Act of 2008.\745\
    The PAA was immediately criticized for lacking prior court 
approval of the procedures by which Americans' communications 
would be filtered, for allowing broad collection of information 
from libraries, landlords, and businesses, and for lacking 
protections for Americans swept up in overseas dragnets.
    Following the passage of the PAA, House Speaker Nancy 
Pelosi tasked Chairman Conyers and his Intelligence Committee 
counterpart Silvestre Reyes with immediately revisiting FISA 
reform to address the weaknesses of the PAA. As those efforts 
began, Director McConnell, in an interview with the El Paso 
Times, explained details of the program enacted in the PAA, 
defending the program, and his actions in the legislative 
effort to pass the PAA. While making his case, Director 
McConnell may have inadvertently confirmed some of the 
parameters of the President's program:

    There are a couple of issues to just be sensitive to. 
There's a claim of reverse targeting. Now what that means is we 
would target somebody in a foreign country who is calling into 
the United States and our intent is to not go after the bad 
guy, but to listen to somebody in the United States. That's not 
legal, it's, it would be a breach of the Fourth Amendment. You 
can go to jail for that sort of thing.
    And if a foreign bad guy is calling into the United States, 
if there's a need to have a warrant, for the person in the 
United States, you just get a warrant. And so if a terrorist 
calls in and it's another terrorist, I think the American 
public would want us to do surveillance of that U.S. person in 
this case. So we would just get a warrant and do that.
    It's a manageable thing. On the U.S. persons side it's 100 
or less. And then the foreign side, it's in the thousands. Now 
there's a sense that we're doing massive data mining. In fact, 
what we're doing is surgical. A telephone number is surgical. 
So, if you know what number, you can select it out. So that's, 
we've got a lot of territory to make up with people believing 
that we're doing things we're not doing.\746\

    On September 5, 2007, the Full Committee began to examine 
the issue, through the hearing ``Warrantless Surveillance and 
the Foreign Intelligence Surveillance Act: The Role of Checks 
and Balances in Protecting Americans' Privacy Rights.'' The 
hearing continued on September 18, 2007. In that hearing, civil 
liberties and national security experts Suzanne Spaulding, Mort 
Halperin, and former Congressmen Bob Barr urged the Committee 
to draft FISA legislation that preserved the oversight role of 
the FISC, rather than leaving the wiretapping in the 
unsupervised hands of the Executive Branch. They also urged 
that any bill contain protections against reverse targeting, 
and robust minimization standards to prevent the indiscriminate 
dissemination of intercepted communications.
    Suzanne Spaulding cautioned that oversight and judicial 
review were necessary not just to protect against abuse, but 
also to ensure that any surveillance program actually worked. 
According to Ms. Spaulding, secret programs that mock the rule 
of law actually hinder our ability to confront the real threats 
posed by international terrorism, as such cynical exercises 
weaken our moral authority in the world: ``[T]he best way to be 
strong on terrorism is not to defer to the avaricious 
accumulation of power by the executive branch but to better 
understand the true nature of the long-term struggle against 
violent extremism. We can only defeat this threat by building 
upon the strengths of our system, including its checks and 
balances.'' \747\
    A witness called by the Minority, University of Virginia 
law professor Robert Turner, argued that the president had the 
power to engage in surveillance without court oversight or 
congressional sanction, and that even the original FISA statute 
was an unconstitutional infringement on those powers.\748\ For 
their part, Director McConnell and Assistant Attorney General 
for National Security Ken Wainstein argued for maximum 
flexibility for surveillance programs going forward, and for 
immunity for telecommunications carriers who had cooperated 
with the President's surveillance program.
    In the wake of those hearings, and companion hearings held 
by the Select Committee on Intelligence,\749\ a new bill, H.R. 
3773, the ``RESTORE Act,'' was introduced jointly by Chairman 
Conyers and Select Committee Chairman Silvestre Reyes, which 
passed the House of Representatives by a 227-189 vote in 
November 2007. That bill set forth a surveillance program that 
responded to the expressed needs of the intelligence community 
while also including important FISC review procedures and civil 
liberties protections, such as a prohibition on reverse 
targeting, that were not included in the PAA. The RESTORE Act 
did not provide the telecommunications carrier immunity for 
which the Administration had been pressing. The Senate passed 
its version of FISA reform legislation in February 2008. Unlike 
the House bill, the Senate bill provided immunity for the 
carriers, and had less court review and other protections than 
did the House bill.
    The Committee finally obtained access to the highly-
classified documents it had been seeking in January 2008, after 
months of negotiations \750\ and attempts by the Administration 
to severely limit the access.\751\ These documents included the 
President's authorization for the warrantless wiretapping 
program, legal opinions underlying the President's program, and 
the requests sent to the telecommunications companies.\752\ 
Following review of the classified President's surveillance 
program, the Judiciary Committee conducted lengthy and 
extensive classified hearings on February 28 and March 5, 2008, 
to hear testimony from Administration officials and from the 
telecommunications carriers that had participated in the 
warrantless surveillance program. A key focus was the issue of 
retroactive immunity for the carriers.
    In the wake of the classified hearings, Democratic Members 
of the Committee issued an unclassified report concluding that 
the Bush Administration had not credibly established a 
justification for Congress to take the extraordinary action of 
enacting blanket retroactive immunity for the carriers.\753\ In 
their unclassified statement, the Democratic Members indicated 
that the case for retroactive immunity might have been stronger 
if the carriers had responded consistently to the 
Administration's requests; instead, there appeared to be a 
variety of responses at various times, with differing 
justifications. The statement also explained that the Members' 
review of classified information ``reinforced serious concerns 
about the potential illegality of the Administration's actions 
in authorizing and carrying out its warrantless surveillance 
program.'' \754\
    Following the classified hearings and issuance of the 
Democratic report, the House passed a response to the Senate 
bill. Representing a compromise with the Senate version, the 
new House bill addressed the issue of telecommunications 
carrier liability, but not through a grant of immunity. Rather, 
it responded to concerns that the carriers were hamstrung in 
their defense by allowing the court access to classified 
information to enable it to determine whether the carrier's 
justifications were valid, effectively overruling the 
Administration's assertion of the state secrets privilege that 
had blocked the companies from establishing their right to 
immunity under FISA. Even this provision drew a veto threat 
from the White House.
    In June of 2008, after many months of negotiations between 
House Democrats and House Republicans, the Senate, and the 
Administration, a final bill was passed that represented an 
improvement over the PAA, though it continued to fall short on 
a number of key issues.
    Some of the key positive provisions in the FISA Amendments 
Act of 2008 (FAA), H.R. 6034, include:
     Requiring prior FISC approval of procedures for 
overseas surveillance.
     Closing a loophole in FISA that for thirty years 
had left Americans totally unprotected from surveillance when 
out of the country, by now requiring a prior showing of 
probable cause.
     Requiring the Executive Branch to promulgate 
guidelines for appropriate targeting, for minimization, and to 
prevent reverse targeting.
     Mandating reports on a number of features of the 
collection systems authorized by the Act, and these reports 
must be disclosed to the House and Senate Judiciary Committees, 
not simply the Intelligence Committees.
     Tasking the Inspectors General of the agencies 
with intelligence responsibilities to investigate the 
President's warrantless wiretapping program, and release a 
public version of their findings. While private litigation can 
play an important role in uncovering the truth, such a strategy 
is currently hampered by the state secrets privilege, 
classification, and other restrictions on information. It is 
expected that the oversight provisions of the FAA will 
supplement private efforts to uncover and redress surveillance 
abuses by the Bush Administration, and to protect Americans in 
the future.
     Reiterating that FISA is the only legal means of 
electronic surveillance, and that no novel legal theories of 
presidential power can support additional programs.\755\
     Requiring all future requests to 
telecommunications carriers or others for assistance to name 
the specific statutory basis for the request.
    Some of the key concerns with the FAA include:
     The omission of the more stringent reverse 
targeting prohibitions and programs of the alternative bills, 
such as the RESTORE Act. Most notably, the FAA does not require 
that the reverse targeting guidelines the FISC must approve 
define reverse targeting as listening to a foreigner when a 
significant purpose is to target an American; instead, 
targeting is not reverse targeting unless a primary purpose is 
to target an American.
     The failure of the FAA to mandate the specific 
criteria of earlier versions of FISA reform, through which 
reverse targeting could be inferred from a telltale pattern of 
multiple disseminations of a U.S. person's communications.
     The weakening of emergency provisions of earlier 
versions of FISA reform, in which the government had to show 
that the intelligence would be ``lost'' if they did not act 
immediately. The FAA allows an exception for exigent 
circumstances in which surveillance can occur for up to a week 
before an application is submitted to the FISC. Exigent 
circumstances are defined broadly, including a circumstance 
when intelligence might not be ``timely acquired.''
     The inclusion of provisions allowing for a 
retroactive grant of telecommunications carrier immunity. While 
the FAA did provide the courts slightly greater access to 
information about the program, and did not engage in court-
stripping in favor of the secret FISC, the final bill does not 
provide for effective judicial review of the lawfulness of the 
President's secret wiretapping program or the lawfulness of the 
actions of the carriers.

        V. National Security Letters (NSLs) and Exigent Letters

            A.  The Increased use of NSLs Subsequent to 9/11 and the 
                    Enactment of the PATRIOT Act and PATRIOT 
                    Reauthorization Act
    National Security Letters (NSLs) are written directives 
from the FBI to provide information, issued directly to third 
parties, such as telephone companies, financial institutions, 
Internet service providers, and consumer credit agencies, 
without judicial review.\756\ Over the last 20 years, Congress 
has enacted a series of laws authorizing the FBI to use NSLs to 
obtain information in terrorism, espionage, and classified 
information leak investigations without obtaining warrants from 
the FISC or from any other court.\757\ The PATRIOT Act 
substantially expanded the FBI's preexisting authority to 
obtain information through NSLs, by broadening the scope of 
entities that could use the authority and the scope of the 
parties subject to NSLs, and relaxing the preconditions for 
seeking NSLs.
    A November 6, 2005, Washington Post article reported that 
the FBI was at that time issuing 30,000 NSLs per year, a 
hundredfold increase over historical practices.\758\ The 
article also suggested that the FBI was using NSLs to spy on 
ordinary Americans--in contrast with the Justice Department's 
assurances to the Committee a year earlier that the Department 
was ``unaware of any case where any provision of the USA 
PATRIOT Act has been abused.'' \759\ The Department wrote a 
letter to then-Chairman F. James Sensenbrenner accusing The 
Washington Post of presenting a ``materially misleading 
portrayal'' of the FBI's use of NSLs.\760\
    The disclosures in The Washington Post article increased 
congressional concern regarding the potential abuse of NSLs. As 
a result, in the USA PATRIOT Improvement and Reauthorization 
Act (PATRIOT Reauthorization Act), enacted on March 9, 2006, 
Congress directed the Justice Department's Office of the 
Inspector General (OIG) to review ``the effectiveness and use, 
including any improper or illegal use, of national security 
letters issued by the Department of Justice.'' \761\ Congress 
also directed the OIG to review and report on the use of NSLs 
for two time periods: calendar years 2003 through 2004, and 
calendar years 2005 through 2006. The first report was provided 
to Congress in March 2007. The second report, due on December 
31, 2007, was not finalized until March 2008.\762\
    The PATRIOT Reauthorization Act included requirements that 
the Attorney General submit to Congress the total number of NSL 
requests issued under each of the NSL statutes.\763\ However, 
President Bush rebuffed these reporting requirements in a 
signing statement, declaring that he did not consider himself 
bound to tell Congress how these authorities were being used 
and that, despite the law's requirements, he could withhold the 
information at his discretion. He wrote: ``The executive branch 
shall construe the provisions . . . that call for furnishing 
information to entities outside the executive branch . . . in a 
manner consistent with the president's constitutional authority 
to supervise the unitary executive branch and to withhold 
information.'' \764\
            B.  March 2007 Justice Department Inspector General Report 
                    and Subsequent Committee Hearings
    The March 2007 Justice Department Inspector General report 
on the FBI's use of NSLs \765\ identified a variety of FBI 
abuses of the expanded NSL authority that Congress had granted 
the FBI post 9/11. Many of these abuses included gathering vast 
amounts of irrelevant private information about individuals, 
uploading and indefinitely retaining it in FBI databases; 
inaccurate reporting to Congress regarding the number and use 
of NSLs; issuing NSLs without proper authorization and outside 
statutory and regulatory requirements; and widespread abuse in 
the use of so-called ``exigent letters''--``emergency'' 
requests for telephone and other data--in non-emergencies, 
without even a pending investigation, as a means to bypass 
normal NSL procedures.\766\
    In particular, the OIG found that on over 700 occasions, 
the FBI had obtained telephone toll billing records or 
subscriber information from three telephone carriers without 
first issuing NSLs or grand jury subpoenas.\767\ Instead, the 
FBI had issued ``exigent letters,'' signed by FBI Headquarters 
Counterterrorism Division personnel not authorized to sign 
NSLs.\768\ The FBI Communications Analysis Unit (CAU) 
contracted with three telephone carriers between May 2003 and 
March 2004.\769\ In order to justify funds for these contracts, 
the CAU had explained in memoranda that ``[p]revious methods of 
issuing subpoenas or National Security Letters (NSL) and having 
to wait weeks for their service . . . is insufficient to meet 
the FBI's terrorism prevention mission.'' \770\ The exigent 
letters typically stated that ``[d]ue to exigent circumstances, 
it is requested that records for the attached list of telephone 
numbers be provided. Subpoenas requesting this information have 
been submitted to the U.S. Attorney's Office who will process 
and serve them formally . . . as expeditiously as possible.'' 
\771\ However, the OIG learned that, contrary to those 
assertions, the FBI had obtained the telephone records prior to 
serving NSLs or grand jury subpoenas, and that the subpoenas 
had actually not been provided to the U.S. Attorney's Office 
before the FBI sent the letters to the telephone carriers.\772\
    Furthermore, there was often no pending investigation 
associated with the request at the time the exigent letter was 
sent, much less any exigent circumstances.\773\ Moreover, the 
FBI was unable to determine which letters were sent in true 
emergency situations due to inadequate record-keeping.\774\ To 
attempt to cover for these violations, the FBI issued NSLs 
after-the-fact, sometimes months later; \775\ and CAU officials 
would ask FBI field offices to open new investigations, so the 
after-the-fact NSLs could be issued, without telling them that 
the requested documents had already been obtained.\776\
    FBI attorneys in the National Security Law Branch (NSLB) 
became aware of the use of exigent letters in 2004, after FBI 
field offices complained. In late 2004, an NSLB assistant 
general counsel advised CAU officials that the practice did not 
comply with the ECPA NSL statute. The NSLB still recommended 
the use of exigent letters in true emergencies,\777\ however, 
and offered to dedicate personnel to expedite the issuance of 
CAU NSL requests, but the CAU never pursued that offer.\778\ As 
of March 2007, the FBI had discontinued the use of exigent 
letters, but was still unable to determine the extent to which 
NSLs or grand jury subpoenas were issued to cover the documents 
requested with ``exigent letters.'' \779\
    The OIG concluded that the FBI had ``made factual 
misstatements in its official letters to the telephone 
companies either as to the existence of an emergency justifying 
shortcuts around lawful procedures or with respect to steps the 
FBI supposedly had taken to secure lawful process.'' \780\ The 
OIG further concluded that the FBI's acquisition of this 
telephone information circumvented the ECPA NSL statute, and 
also violated the Attorney General's Guidelines and internal 
FBI policy.\781\
    The OIG also found that the FBI had sent at least 19 
``certificate letters'' to a Federal Reserve Bank seeking 
financial records concerning 244 named individuals, instead of 
issuing NSLs pursuant to the Right to Financial Privacy Act 
(RFPA).\782\ Although most of the individuals whose records 
were sought were subjects of FBI investigations, not all 
were.\783\ The assistant general counsel discovered by accident 
in 2004 that these letters had actually requested records from 
the Federal Reserve Bank, as opposed to merely requesting that 
a search for records be conducted, as FBI personnel had 
represented to FBI attorneys.\784\
    According to the OIG, the FBI also did not report possible 
Intelligence Oversight Board violations. OIG reviewed NSL 
violations that the FBI was required to report to the 
President's Intelligence Oversight Board (IOB). Executive Order 
12863 directs the IOB to inform the president of any activities 
that the IOB believes ``may be unlawful or contrary to 
Executive Order or presidential directive.'' \785\ The FBI has 
developed an internal process for self-reporting possible IOB 
violations to its General Counsel's office.\786\
    The FBI identified 26 possible violations involving the use 
of NSL authorities from 2003 through 2005, of which it reported 
19 to the IOB. These 19 violations involved the issuance of 
NSLs without proper authorization, improper requests under the 
statutes cited in the NSLs, and unauthorized collection of 
telephone or Internet e-mail transactional records, including 
records containing data beyond the time period requested in the 
NSL itself.\787\ Twenty-two of the 26 possible IOB violations 
were due to FBI errors, while four were due to third-party 
errors.\788\
    In addition to the violations that the FBI reported, the 
OIG also found possible violations in documents it reviewed 
relating to NSLs in a sample of FBI investigative files in four 
FBI field offices. In that review, the OIG found that 17 of 
these files (or 22%) contained one or more possible violations 
that the FBI had not identified. These possible violations 
included infractions that were similar to those that the FBI 
had identified, but also included instances in which the FBI 
issued NSLs for different information than what had been 
approved by the field supervisor. Based on this sample, the OIG 
concluded that a significant number of possible NSL-related 
violations are not being identified or reported by the 
FBI.\789\
    The OIG found that the data regarding NSLs issued by the 
FBI from 2003 through 2005 were incomplete and inaccurate 
during the relevant review period.\790\ The Justice Department 
was required to file semi-annual classified reports to Congress 
describing the total number of NSL requests issued pursuant to 
three of the five NSL authorities.\791\ In those reports, the 
Justice Department provided the number of requests for records 
and the number of investigations of different persons or 
organizations that generated NSL requests.\792\ These numbers 
were each broken down into separate categories for 
investigations of ``U.S. persons or organizations'' and ``non-
U.S. persons or organizations.'' \793\
    According to unclassified data that the FBI reported to 
Congress, the number of NSL requests has increased since 2000. 
The FBI claimed it issued approximately 8,500 NSL requests in 
2000, approximately 39,000 in 2003, approximately 56,000 in 
2004, and approximately 47,000 in 2005.\794\ However, the OIG 
concluded that these numbers were inaccurate, due to three 
flaws in the manner in which the FBI records, forwards, and 
accounts for information about its use of NSLs, including 
incomplete and inaccurate information in the Office of General 
Counsel's National Security Letter database (OGC); the failure 
of FBI special agents or support personnel to consistently 
enter the NSL approval Electronic Communications into its 
Automated Case Support system in a timely manner; \795\ and 
incorrect data entries found when the OIG examined the OGC 
database.\796\
    The OIG also determined that during the period 2003 through 
2005, FBI Headquarters Counterterrorism Division had generated 
over 300 NSLs exclusively from administrative ``control 
files,'' rather than from ``investigative files,'' in violation 
of FBI policy as reflected in the FBI's National Foreign 
Intelligence Program Manual.\797\ Less rigorous documentation 
requirements apply to control files, and the OIG found that the 
practice of generating NSLs from them made it difficult for FBI 
supervisors who reviewed the NSLs to determine if the required 
statutory predicate had been satisfied and whether the 
information sought was relevant to an authorized 
investigation.\798\
    There was also a concern regarding the retention of 
information acquired in violation of NSL authorities. According 
to the report, neither the Attorney General's National Security 
Investigation Guidelines nor internal FBI policies required the 
purging of information derived from NSLs in FBI databases, 
regardless of the outcome of the investigation.\799\ Therefore, 
once information is obtained in response to a NSL, it is 
indefinitely retained and retrievable by the plethora of 
authorized personnel who have access to various FBI 
databases.\800\
    On March 20, 2007, the House Judiciary Committee convened a 
hearing to explore NSL issues including those raised in the 
Inspector General's report. In his opening statement, Chairman 
Conyers noted that ``in the immediate aftermath of September 
11th, the Department of Justice told us that they needed 
significantly enhanced authority, while promising the members 
of this committee in no uncertain terms that these new tools 
would be carefully and appropriately used . . . [O]ne week ago, 
the Inspector General told us that the exact opposite was true 
of the promise that had been made that there was not a single 
instance, when the PATRIOT Act was being reauthorized, that the 
law had been abused.'' \801\
    Justice Department Inspector General Glenn Fine and FBI 
General Counsel Valerie Caproni were the only witnesses. Mr. 
Fine recounted the 7 instances found in the small sampling from 
the FBI field office audit in which the FBI had engaged in 
illegal uses of NSLs, specifically when the FBI obtained 
information to which it was not entitled via the use of an 
NSL.\802\ Those instances included using NSLs to acquire 
educational records or full credit reports in a 
counterintelligence case.\803\ Given the small sample size of 
the audit, Mr. Fine noted that ``I think there are possible 
violations of either law, the attorney general guidelines or 
the FBI's policies several thousand times, if you statistically 
extrapolate.'' \804\
    During much of her testimony, FBI General Counsel Valerie 
Caproni was pressed to respond to the most troubling aspect of 
the OIG report: the improper use of exigent letters. Ms. 
Caproni testified that, while the use of the exigent letters 
had stopped, they ``were undoubtedly an inappropriate shortcut 
to the [statutory] process.'' \805\ Recognizing that the use of 
exigent letters, among other identified abuses of NSLs, was an 
indictment on the FBI's ability to police itself, Ms. Caproni 
testified that ``I think this report has told us we internally 
have to do a far better job at making sure that we are 
maintaining internal controls over the use of the [NSL] tool.'' 
\806\ In addressing the issue of accurate congressional 
reporting, Ms. Caproni said that ``[t]he responsibility to 
gather the data for congressional reporting lies with my 
division, and we did not do an acceptable job. The processes we 
put in place for tabulating NSLs were inadequate, and we had no 
auditing process in place to catch errors.'' \807\ The report 
had also exposed that, in many of the FBI field offices, the 
files did not contain signed copies of NSLs that had already 
been issued. When specifically questioned about this, Ms. 
Caproni acknowledged that it was a problem but could not 
explain why it was the case.\808\
    Republican Congressman Jim Sensenbrenner, who chaired the 
Committee when the PATRIOT Act passed in 2001 and when it was 
reauthorized in 2006, explained during the hearing that ``I 
just make the observation that one of the things that gets 
people in this town in big trouble is overreaching. I think 
that, given your report, Mr. Fine, the FBI has had a gross 
overreach. What this does is it erodes support for the function 
that the FBI does to protect all of us from future terrorist 
attacks.'' \809\
            C.  March 2008 Justice Department IG ``Assessment of 
                    Corrective Action'' Report and Subsequent Committee 
                    Hearings
    In March 2008, the Justice Department OIG released its 
second report, ``A Review of the FBI's Use of National Security 
Letters: Assessment of Corrective Actions and Examination of 
NSL Usage in 2006.'' \810\ The 2008 report found that while 
top-level FBI officials had shown a commitment to correcting 
the deficiencies, but that their efforts had not always 
adequately filtered down to the FBI field offices.\811\ The 
report made several recommendations to address this 
problem.\812\
    The OIG found that the FBI's own reviews had not only 
confirmed deficiencies identified in OIG reports, it had found 
additional problems:\813\ Among the findings:
     The FBI's own reviews confirmed that the types of 
deficiencies identified in OIG's 2007 report had occurred 
throughout the FBI from 2003 through 2006.\814\
     The FBI's field review found a higher overall 
possible Intelligence Oversight Board (IOB) violation rate 
(9.43%) than OIG found (7.5%) in the sample that OIG examined 
in the 2007 report.\815\
     The FBI's review did not capture all NSL-related 
possible intelligence violations in the files it reviewed.
     FBI inspectors were unable to locate information 
provided in response to a significant number of NSLs chosen for 
review in its sample, leading the OIG to conclude that the 
results of the FBI field review likely understated the rate of 
possible intelligence violations.\816\
     11 blanket NSLs issued by Headquarters officials 
in 2006, seeking telephone data on 3,800 telephone numbers, did 
not comply with PATRIOT Reauthorization Act requirements, 
internal FBI policy, or both.\817\
    OIG noted that in 2006 the FBI issued 49,425 NSL requests, 
a 4.7% increase over NSL 2005.\818\ And it reconfirmed the 
finding in its 2007 report that NSL requests generally, and 
those involving U.S. persons specifically, had increased during 
the period from 2003 through 2006.\819\
    OIG acknowledged that because only one year had passed 
since the last report, some corrective measures had not been 
fully implemented, and it might be too early to definitively 
state whether the corrective measures had appropriately 
addressed the problems OIG identified in the 2007 report.\820\ 
The report found that while the majority of NSLs and approval 
memoranda complied with the PATRIOT Reauthorization Act 
certification requirements and FBI policy, 17 NSL approval 
memoranda (5% of the random sample) contained insufficient 
explanations to justify imposition of these obligations.\821\ 
As a result, OIG suggested that Special Agents in Charge and 
Chief Division Counsel were not careful in reviewing and 
approving relevant documents.\822\
    OIG also identified Intelligence Oversight Board 
violations, many of which had been unreported: These included:
     84 possible intelligence violations involving the 
use of NSLs, of which the FBI had determined that 34 needed to 
be reported to the President's Intelligence Oversight Board 
(IOB).\823\
     Of the 34 intelligence violations, 20 were the 
result of FBI errors, while 14 resulted initially from mistakes 
by recipients of the NSLs.\824\
As a result of these findings, OIG ultimately suggested 17 
recommendations for the FBI, ranging from improved review of 
NSL authorities prior to their issuance to the provision of 
timely reports of possible intelligence violations.\825\
    On April 15, 2008, the House Judiciary's Subcommittee on 
the Constitution, Civil Rights, and Civil Liberties held a 
second hearing concerning NSLs.\826\ The first panel of 
witnesses at the hearing consisted of OIG Glenn Fine and FBI 
General Counsel Valerie Caproni. Inspector General Fine's 
testimony was consistent with the findings in his office's 2008 
report. He explained that the FBI had made some progress in 
implementing the recommendations from the 2007 report,\827\ 
like developing a new data system to facilitate the issuance 
and tracking of NSLs, issuing guidance memoranda and providing 
mandatory training to agents, prohibiting the use of exigent 
letters, and creating a new Office of Integrity and 
Compliance,\828\ but said that ``additional work remains to be 
done.'' \829\ A working group established to examine how NSL-
derived information is used and retained by the FBI had not 
adequately addressed measures to label or tag NSL-derived 
information, or to minimize the retention and dissemination of 
such information. The FBI still needed to implement several key 
recommendations from the 2007 report, including reevaluating 
the reporting structure for the chief division counsel in each 
FBI field office. The FBI's own reviews of its field case files 
found a higher rate of NSL violations than the Inspector 
General's review. The number of intelligence violations 
identified by the field reviews was 640, a substantial number, 
and the number of violations the field offices reported in 2006 
was significantly higher than in prior years.\830\
    In responding to concerns about the FBI's use of NSLs, Ms. 
Caproni, while highlighting some of the progress the FBI had 
made, acknowledged that ``there were clearly failures of 
internal controls, as well as instances in which [the FBI] had 
inadequate controls and training.'' \831\ While attempting to 
minimize the FBI's actions, Ms. Caproni said that ``the vast 
majority of [NSL] errors involved third-party errors, that is, 
the recipient of the NSL giving us more information than we 
asked for, or inattention to detail . . .'' \832\ She 
acknowledged that the discussion of exigent letters in the 
Inspector General's 2007 report was ``the single most troubling 
discovery by the inspector general,'' and that the FBI was 
already beginning to take corrective actions to remedy the 
problems that the use of exigent letters produced.\833\
    The second panel of witnesses at the hearing included 
Jameel Jaffer, director of the ACLU's National Security 
Project; Bruce Fein, adjunct scholar with the American 
Enterprise Institute, resident scholar at the Heritage 
Foundation, lecturer at the Brookings Institution, and adjunct 
professor at George Washington University; Michael Woods, 
former chief of the FBI's National Security Unit (1997-2002); 
and David Kris, former Associate Deputy Attorney General (2000-
2003) and currently adjunct professor at Georgetown University 
Law Center.
    Mr. Jaffer explained that, because of changes made by the 
PATRIOT Act, ``the FBI can compile vast dossiers about innocent 
people--dossiers that could include financial information, 
credit information and even information that is protected by 
the First Amendment.'' \834\ He noted that the ``inspector 
general's audits confirm that the FBI is collecting information 
about people two and three times removed from actual 
suspects.'' \835\ He also asserted that the problem of gag 
orders needed to be addressed, and that a potential solution 
would place time limits on them, and allow NSL recipients to 
challenge them in court.\836\
    Inspector General Fine emphasized that the use of NSLs 
naturally raises questions about the need for customary checks 
and balances.\837\ In that context, he discussed the fact that 
with a grand jury, unlike the FBI and NSLs, there ``are 
citizens who decide whether to issue a subpoena for records 
that are sought in NSLs. And the grand jury is overseen by a 
judge, an Article III judge.'' \838\ Mr. Woods testified that 
while NSLs must be flexible and efficient, they need to be 
controlled, and it is necessary to have ``effective 
minimization rules, effective retention rules.'' \839\ He 
continued to explain that ``beyond the sort of legal 
effectiveness or legal elegance of [rules governing NSLs], they 
have to be rules that inspire confidence in the American 
public, confidence that this authority is under control, 
confidence that it is being used correctly.'' \840\
    Mr. Kris advocated for the enactment of ``a single statute 
providing for national security subpoenas to replace all of the 
current NSL provisions.'' \841\ Doing this, he explained, 
``would streamline and simplify current law, which is both 
intricate and idiosyncratic, to the detriment of both our 
liberty and our security.'' \842\

                              VI. Findings


Detention

    1. The President claimed and asserted powers in connection 
with detainees that, under the Constitution, were not his to 
claim and assert.
     The President, through the Department of Defense, 
ordered that detainees be held at Guantanamo Bay for 
potentially indefinite duration, and sought to deny them access 
to the U.S. courts or to other procedures required by the 
Geneva Conventions pursuant to which they could challenge the 
factual and legal bases of their detention.\843\ The Supreme 
Court held that the Constitution provided the detainees the 
right to seek habeas corpus, that these rights could not be 
denied by the President, and that only the Congress could 
suspend the right of habeas corpus for them.\844\
     To try the detainees, the President, through 
others in the Executive Branch, implemented a military 
commission system that was unlawful because, among other 
reasons, it had not been authorized by Congress (to whom the 
Constitution gives the authority to provide for the rules of 
war), it violated the Uniform Code of Military Justice (duly 
enacted by Congress), and violated the Geneva Conventions.\845\
    2. The President used extreme and unprecedented legal 
theories to order the detention of Americans or persons 
detained in America, and, through subordinates, detained them 
in military custody.
     The President, claiming power as Commander in 
Chief, ordered that a United States citizen (Jose Padilla), 
arrested in the United States, be turned over to military 
custody, where he was then held without counsel, placed in 
solitary confinement, and subjected to harsh 
interrogation.\846\
     To frustrate Mr. Padilla's ability to obtain 
judicial review of the bases for his detention, the Government 
refused to permit Mr. Padilla access to an attorney, refused to 
comply with an order of the district court ordering Mr. Padilla 
to have access to an attorney (instead appealing the order), 
and only permitted Mr. Padilla access to an attorney 20 months 
after his turnover to military custody to avoid the prospect of 
Supreme Court scrutiny of this refusal.
     To avoid Supreme Court review of the Fourth 
Circuit's opinion upholding Mr. Padilla's military detention, 
and to preserve that opinion as favorable precedent, the 
Government transferred him to civilian custody. In the face of 
a critical reaction from the Fourth Circuit that the 
Government's litigation positions and tactics undermined the 
credibility of its representations, the Government said it 
would not object to the Fourth Circuit's vacating the opinion.
     The President ordered that a lawfully admitted 
alien, Ali Saleh Kahlah Al-Marri, arrested in the United 
States, be turned over to military custody, held without 
counsel, and subjected to harsh interrogation; and the 
Department of Justice defended these actions by claiming that 
the President had, in addition to powers granted by the 
Authorization to Use Military Force, essentially unreviewable 
power to undertake such actions pursuant to power granted him 
by the Constitution as Commander in Chief.
     The Department of Justice has opined in other 
contexts that the President has certain unreviewable powers as 
Commander in Chief, not subject to check by Congress, that he 
could exercise to detain persons in the United States--even 
U.S. citizens. In October 23, 2001, an OLC memorandum asserted 
that the Fourth Amendment did not apply to military operations 
in the United States--a legal position that Attorney General 
Mukasey has apparently withdrawn. The November 6, 2001, 
Military Commissions Memorandum similarly concluded that the 
President, as Commander in Chief, could direct that U.S. 
citizens be tried by military commissions.

Interrogation

    3. The President, through the Central Intelligence Agency 
and Department of Defense, has subjected detainees to 
waterboarding, extreme temperature manipulation, stress 
positions, sleep deprivation, and other harsh interrogation 
techniques. There are serious questions whether these actions 
constitute torture, or a ``grave breach'' of the prohibition 
against cruel, inhuman, and degrading treatment, in violation 
of the Geneva Conventions and U.S. criminal law. These 
techniques appear to have been approved by the highest 
officials within the Bush Administration.
     Commencing in late 2001, at about the time the 
decisions were made to bring detainees to Guantanamo, the 
Department of Defense ``reverse engineered'' the SERE 
interrogation techniques which had been designed to severely 
test U.S. service personnel as a way of training them to 
withstand harsh interrogation by the enemy--to use them instead 
as interrogation techniques against Guantanamo Bay 
detainees.\847\
     The Justice Department Office of Legal Counsel, 
working with and at the direction of the President's and Vice 
President's lawyers Alberto Gonzales and David Addington, 
advanced and relied on flawed and discredited legal rationales 
in support of the use of these interrogation techniques, 
including: (I) asserting that al Qaeda and Taliban prisoners 
were not entitled to the baseline protections of Common Article 
3 of the Geneva Conventions, which prohibits torture, and cruel 
and degrading treatment \848\--a contention subsequently 
rejected by the Supreme Court in Hamdan v. Rumsfeld; \849\ and, 
(ii) advancing legal opinions--in a January 2002 memorandum 
dealing with the application of the War Crimes Act, an August 
1, 2002 Torture Memorandum, and a March 14, 2003 Torture 
Memorandum--that the President, as Commander in Chief, can 
order harsh interrogation techniques that might otherwise 
violate the War Crimes Act or other criminal law, and that any 
laws or treaties that would constrain him would be 
unconstitutional. The legal conclusions set forth in the August 
1, 2002 Torture Memorandum as to the scope of this presidential 
power have been withdrawn.
     In another August 1, 2002, Memorandum, the Justice 
Department OLC specifically approved the use of 
``waterboarding'' by the CIA. Three al Qaeda individuals were 
waterboarded by U.S. government personnel.
     It is unknown whether waterboarding was initiated 
prior to the August 1, 2002, Justice Department OLC memorandum 
that, on its face, would have permitted it. No investigation 
appears to have been conducted as to potential criminal conduct 
associated with pre-August 1, 2002, waterboarding or other 
interrogation practices used at that time.\850\
     In late 2002, Secretary of Defense Donald Rumsfeld 
approved a list of interrogation techniques that included 
stress positions, isolation, hooding, nudity, changes in 
temperature, and exploitation of individual phobias such as 
fear of dogs, for use on detainees at Guantanamo.\851\ Pursuant 
to this approval, numerous Guantanamo detainees were subjected 
to harsh interrogation techniques that were not authorized by 
the Code of Military Justice.\852\
     The use of the harsh interrogation techniques 
migrated from Guantanamo to Iraq, where they were employed by 
inexperienced soldiers on the detainees at Abu Ghraib--conduct 
which has caused severe damage to the United States's 
reputation and credibility.\853\
     The persons identified with the use of harsh 
interrogation techniques include Vice President Cheney, then-
National Security Advisor Condoleezza Rice, then-Defense 
Secretary Donald Rumsfeld, then-Secretary of State Colin 
Powell, then-CIA Director George Tenet, and then-Attorney 
General John Ashcroft.\854\
     These principals reportedly approved the use of 
``combined'' interrogation techniques--using multiple methods 
at one time--and the waterboarding of ``high value'' detainees. 
Vice President Cheney has publicly associated himself with the 
CIA's use of these harsh techniques, including 
waterboarding.\855\

Extraordinary Rendition, Ghosting and Black Sites

    4. President Bush granted the CIA unprecedented authority 
to detain and interrogate terror suspects, resulting in a 
secret program in apparent violation of U.S. and International 
law.
     Six days after the 9/11 attacks, President Bush 
issued a classified directive, which remains secret, that 
allowed the CIA for the first time to capture, detain, and 
interrogate terrorism suspects. Under this authority, the CIA 
used several methods--including the rendition of suspects to 
other countries where torture was likely and the use of secret 
prisons--to avoid legal limits and oversight mechanisms that 
prevent the torture and other inhumane treatment of 
detainees.\856\
     The President acknowledged the existence of this 
secret program--and that detainees had been held secretly by 
the CIA and subject to an ``alternative set'' of interrogation 
procedures--only after the Supreme Court rejected the 
Administration's argument that it was not legally bound by the 
humane treatment requirements in Common Article 3 of the Geneva 
Conventions.\857\
     Individuals who were subject to the CIA's secret 
program have reported that they were interrogated using 
techniques--including beatings, threats of rape, shackling in 
painful stress positions, extreme sleep and temperature 
manipulation--that violate prohibitions on torture and other 
cruel, inhuman, or degrading treatment.\858\
    5. The President's classified directive resulted in the 
unlawful ``extraordinary rendition'' of an unknown number of 
individuals in possible contravention of United States and 
International Law.
     By or with the assistance of the CIA, anywhere 
from 100-150 to several thousand terror suspects were abducted 
and transferred to countries known to practice torture for the 
apparent purpose of avoiding legal limits--or criminal 
liability for--harsh interrogation.\859\
     In an apparent effort to avoid legal liability for 
transferring suspects to torture in violation of U.S. and 
International law, the Administration has argued that it 
obtains ``assurances'' from foreign government that individuals 
will not be tortured. But press reports, congressional 
testimony, and the experience of individuals rendered to 
torture indicate that such assurances are insufficient, and 
raise troubling questions about whether these assurances have 
been obtained and relied upon in good faith by U.S. 
officials.\860\
     Foreign allies have condemned the Administration's 
``extraordinary rendition'' program and have filed criminal 
charges against U.S. agents involved in renditions in their 
countries.\861\
     The Inspector General of the Department of 
Homeland Security has concluded that further investigation is 
warranted to determine whether criminal laws were violated when 
U.S. officials rendered Maher Arar to Syria even after finding 
that it was ``more likely than not'' that he would be tortured. 
In that case, the Inspector General concluded that alleged 
assurances that he would not be tortured ``were ambiguous'' and 
their ``validity'' appeared not to have been examined.\862\
     The Inspector General's investigation into Maher 
Arar's case was not completed until late 2007--over four years 
after it was requested. That investigation was delayed by, 
among other things, the Administration's use of legal 
privileges and classification to block even the inspector 
general's access to information.\863\ In half that time, Canada 
convened and completed a public inquiry into Mr. Arar's case 
and issued a public 1,600-page, three-volume report with 
factual background, analysis, and recommendations.
     The Administration has sought to avoid judicial 
review of its extraordinary rendition program by raising the 
state secret privilege as a complete bar to suit, arguing that 
any case involving extraordinary rendition must be dismissed 
outright and without any effort to determine whether the case 
can be litigated without disclosure of information harmful to 
national security.\864\
    6. The President's classified directive resulted in the 
enforced disappearance of detainees through use of CIA secret 
overseas prisons--``black sites''--or by the ``ghosting'' of 
detainees in possible violation of United States and 
International Law.
     The CIA appears to have created and maintained a 
system of secret overseas prisons--``black sites''--that 
allowed it to detain and interrogate individuals without any 
official record of doing so. The CIA also ``ghosted'' 
detainees, holding them at prison facilities in Iraq without 
officially acknowledging or registering them as detainees.\865\
     The CIA apparently used these ``black sites'' or 
``ghosted'' detainees in order to avoid accountability for or 
monitoring or their identities, whereabouts, or treatment. By 
placing these detainees outside the protection of the law--
denying them access to the International Committee of the Red 
Cross, government officials, families, or lawyers--the CIA 
engaged in a sustained practice of ``enforced disappearance.'' 
\866\
     While the CIA's program of secret detention and 
interrogation was suspended by President Bush in 2006, 
following the Supreme Court's Hamdan decision that Common Art. 
3 of the Geneva Convention applies to detainees in the war on 
terror, the President's subsequent July 20, 2007 executive 
order appears to have revived it. The whereabouts of as many as 
two to three dozen of the estimated 100 or more detainees 
``disappeared'' by the CIA are still unknown.\867\

FISA/Warrantless Surveillance

    7. The Bush Administration pursued a warrantless 
wiretapping program in apparent violation of the Foreign 
Intelligence Surveillance Act.
     The Administration--through the direction of the 
Office of the Vice President--conducted warrantless electronic 
surveillance contrary to the express provisions of the Foreign 
Intelligence Surveillance Act of 1978 (``FISA'') that mandated 
that FISA shall be the ``exclusive means by which electronic 
surveillance . . . and the interception of wire and oral 
communication may be conducted.'' \868\
     The Administration justified wiretapping outside 
of FISA by way of a spurious claim that the president had the 
inherent powers as Commander in Chief to exercise military 
powers (including spying) inside the domestic United States, 
and that the Authorization for the Use of Military Force 
enacted in the wake of the September 11th Attacks had 
implicitly modified FISA.\869\
     The AUMF did not override FISA's status as the 
exclusive legal means of foreign intelligence surveillance. Nor 
did the AUMF override the requirement that statutes be amended 
through legislative action, rather than implicitly. While FISA 
certainly is subject to amendment, it is clear that the AUMF 
does not come close to being an ``implicit'' amendment.\870\ In 
the January 2006 White Paper that attempted to justify a 
domestic surveillance program, the Bush Administration was 
dismissive of clear congressional intent that authorization for 
expanded surveillance authority would have to take the form of 
a particularized amendment, relegating this position to one 
held by ``some Members of Congress'' at the time FISA was 
adopted.\871\ The White Paper failed to note that those ``some 
Members'' were actually the committees of jurisdiction who 
issued the report on the bill.\872\
     The only court to rule on the lawfulness of the 
program found it unlawful, and among other things rejected the 
Administration's inherent authority argument, finding that 
``There are no hereditary Kings in America and no power not 
created by the Constitution.'' \873\ (The decision was 
overturned on jurisdictional, not substantive, grounds)
     The Administration admits that it undertook, 
within the United States and without a warrant from the FISA 
Court, the widespread collection of international calls and e-
mail even when one party to the communications was in the 
United States.\874\ The program also is reputed to have 
involved the bulk interception and storage of communications in 
order to sift for patterns and ``meta-data.'' \875\
    8. Legal and policy procedures were circumvented as part of 
the warrantless surveillance program, to put a legal gloss on 
the Administration's activities.
     The Administration set up secret channels outside 
of the chain of command, through which the Office of the Vice 
President and an attorney in the Justice Department's Office of 
Legal Counsel set surveillance law and policy. This caused the 
Attorney General to certify the legality of a warrantless 
surveillance program without full counsel of his national 
security and intelligence advisors.\876\
     When the Justice Department and the FISA Court 
began to question the legality of the secret program justified 
by John Yoo and David Addington, the Administration overrode 
the concerns of the Acting Attorney General, the Director of 
the FBI, and senior Justice Department officials. Rather, the 
Administration had the White House Counsel certify to the 
program's lawfulness, on the theory that the president was the 
ultimate arbiter of what the law is for the Executive Branch.
     The abrogation of long-established processes that 
ensure sound legal policymaking had the result of the President 
both authorizing the program and certifying that what had been 
done was lawful, removing even the thinnest veneer of legal 
oversight from the extra-legal program.\877\
    9. The Administration tried to conceal its actions by 
shielding from liability those private companies who cooperated 
in intercepting communications without a warrant.
     Telecommunications companies willingly 
participated in warrantless wiretapping, without insisting on 
FISA warrants or other statutorily-mandated directives or 
requests. Despite the lack of judicial authorization or a 
statutory basis for surveillance, the Administration insisted 
on shielding the companies from lawsuit, so as to prevent a 
full understanding of the extent of any illegal activities and 
a full accounting for how those activities came to occur. As 
reflected in the Democratic House Judiciary Committee Members' 
public report following review of the secret wiretapping 
memoranda, there appeared to be a variety of actions at various 
times with differing justifications in response to 
Administration requests.\878\
     President Bush and Attorney General Gonzales had a 
direct conflict of interest when they asserted the state 
secrets privilege in privacy lawsuits against 
telecommunications carriers, when they insisted upon immunity 
for the carriers in FISA reform legislation, and when they 
denied the Justice Department's Office of Professional 
Responsibility the ability to investigate a domestic 
surveillance program. These actions had the effect of shielding 
their apparently illegal activity from legal scrutiny. Any 
consideration of the lawfulness of the conduct of the 
telecommunications carriers would have naturally entailed a 
consideration of the lawfulness of the Administration's own 
conduct.
     On this issue, the Administration was on shaky 
legal ground notwithstanding the secret justifications obtained 
from John Yoo, and had to know that there would be serious 
problems if the Justice Department's internal re-evaluation and 
near rebellion were to ever come to light. The courts had 
already held that the Administration could not implement 
military commissions in Guantanamo, Cuba, based on presidential 
assertions of Commander in Chief power.\879\ Here, the 
Administration would have to maintain that the President 
enjoyed the power to engage in domestic warrantless 
surveillance inside the United States even though Congress had 
specifically enacted a statutory scheme--FISA--to limit him in 
the exercise of that power. If the AUMF did not authorize the 
President to exercise certain military powers outside of the 
United States against aliens, it is difficult to imagine any 
court concluding the AUMF authorized him to conduct warrantless 
electronic surveillance inside the United States against 
civilians.
    10. The President and Vice President misled the public 
about domestic surveillance programs.
     On many occasions while the warrantless 
wiretapping program was operating, the President and Vice 
President made misleading statements to give the impression to 
the public and to Congress that all foreign surveillance was 
being conducted through established FISA principles and 
methods. For instance, just weeks after the crisis in which the 
leadership of the Justice Department almost resigned en masse 
over the program, the President gave a speech in which he 
claimed ``everything you hear about requires court order, 
requires there to be permission from a FISA court.'' \880\ 
These public claims contrast with the Administration's 
arguments--internally, to the FISA Court, and to select 
congressional intelligence oversight members (conveniently 
sworn to secrecy).
     These claims are also contradicted by the 
development, administration, and constant reauthorization of a 
program which was specifically designed to conduct surveillance 
without a court order--that is, without a warrant or 
``permission from a FISA court.'' While certain legalities and 
forms were observed, court orders were specifically not 
required. Indeed, the entire point of the President's non-FISA 
foreign intelligence surveillance program was to avoid 
obtaining such orders.

NSLs and Exigent Letters

    11. The FBI collected and uploaded personal information on 
individuals who were innocent and irrelevant to FBI 
investigations.
     In a few instances, documents reflecting receipt 
of responsive records specifically incorporated Social Security 
numbers and date of birth information on individuals who were 
not relevant to the underlying investigation were 
electronically uploaded into FBI databases by the field office 
that served the NSL.\881\
     Neither the Attorney General's National Security 
Investigation Guidelines nor internal FBI policies required the 
purging of information derived from NSLs in FBI databases, 
regardless of the outcome of the investigation.\882\ Therefore, 
once information is obtained in response to a NSL, it is 
indefinitely retained and retrievable by the plethora of 
authorized personnel who have access to various FBI databases.
    12. The FBI tried to or actually obtained information that 
it was not entitled to obtain through NSLs.
     The FBI issued an NSL to obtain educational 
records from a university, even though the particular NSL 
statute specifically did not authorize the acquisition of 
education records.\883\
     The FBI acquired full credit reports in a 
counterintelligence investigation, when full credit reports are 
only permissible in counterterrorism cases.\884\
     After the FISA Court had denied an FBI request in 
2006 for a Section 215 business record order seeking ``tangible 
things'' as part of a counterterrorism case--citing First 
Amendment concerns--the FBI then circumvented the court's 
oversight and pursued the investigation using three NSLs based 
on the same information contained in the Section 215 
application, despite the fact that NSLs are subject to the same 
First Amendment constraints.\885\
     The FBI sent at least 19 ``certificate letters'' 
to a Federal Reserve Bank seeking financial records concerning 
244 named individuals, instead of issuing NSLs pursuant to the 
Right to Financial Privacy Act.\886\ Although most of the 
individuals whose records were sought were subjects of FBI 
investigations, some were not.\887\
    13. The FBI was not fully forthcoming with the American 
public and Congress regarding its use and abuse of national 
security letters.\888\
     From 2003 through 2005, the FBI identified 26 
possible intelligence violations involving its use of 
NSLs.\889\ When the Department of Justice's OIG visited four 
FBI field offices and reviewed a sample of 77 investigative 
case files and 293 NSLs, it found 22 possible violations that 
the FBI had not identified or reported.\890\
     Given that the Department of Justice's OIG had no 
reason to believe that the number of violations it identified 
in the field offices was skewed or disproportionate to the 
number of violations in other files, Inspector General Fine 
concluded that the evidence suggests that the large number of 
NSL-related violations throughout the FBI had not been 
identified or reported by FBI personnel.\891\
     According to unclassified data that the FBI 
reported to Congress, the number of NSL requests has increased 
since 2000. The FBI claimed it issued approximately 8,500 NSL 
requests in 2000, approximately 39,000 in 2003, approximately 
56,000 in 2004, and approximately 47,000 in 2005.\892\ However, 
the Department of Justice's Inspector General concluded that 
these numbers were inaccurate due to three flaws in the manner 
in which the FBI records, forwards, and accounts for 
information about its use of NSLs, including incomplete and 
inaccurate information in the Office of General Counsel's 
National Security Letter database; the failure of FBI special 
agents or support personnel to consistently enter the NSL 
approval Electronic Communications into its Automated Case 
Support system in a timely manner;\893\ and incorrect data 
entries when it examined the OGC database.\894\
     FBI General Counsel Valerie Caproni acknowledged 
that ``[t]he responsibility to gather the data for 
congressional reporting lies with my division, and we did not 
do an acceptable job. The processes we put in place for 
tabulating NSLs were inadequate, and we had no auditing process 
in place to catch errors.'' \895\
    14. Through the improper use of exigent letters, the 
Administration circumvented statutory NSL procedures, Attorney 
General Guidelines, and FBI policies by collecting telephone 
toll billing records or subscriber information from three 
telephone companies without first issuing NSLs or grand jury 
subpoenas.\896\
     The FBI used these exigent letters in non-
emergency circumstances and failed to ensure that there were 
authorized investigations to which the requests could be 
tied.\897\
     The exigent letters also inaccurately represented 
that the FBI had already requested subpoenas for the 
information when in fact it had not.\898\
     The FBI failed to ensure that NSLs were issued 
promptly to telephone companies after the exigent letters were 
sent; instead, after obtaining the records from telephone 
companies, the FBI often issued NSLs months after the fact to 
cover the information it had already obtained.\899\
     The exigent letters were signed by FBI 
Headquarters Counterterrorism Division personnel who were not 
authorized to sign NSLs.\900\
     National Security Law Branch (NSLB) FBI attorneys 
became aware of the use of exigent letters as early as 2004, 
after FBI field offices complained to them.\901\
     In late 2004, although an NSLB Assistant General 
Counsel counseled FBI officials that the practice of using 
exigent letters did not comply with the NSL statute, the NSLB 
office still recommended their use in true emergencies.\902\
     The FBI issued 11 ``blanket NSLs'' in 2006 seeking 
data on 3,860 telephone numbers. The Department of Justice's 
Inspector General found that none of these ``blanket NSLs'' 
complied with FBI policy and eight imposed non-disclosure 
requirements on recipients that did not comply with the law. 
The ``blanket NSLs'' were written to ``cover information 
already acquired through exigent letters and other informal 
requests.'' \903\
            Section 3--Misuse of Executive Branch Authority

    Our Constitution is very clear . . . in making the 
President an overseer of all the varied duties the Congress 
creates for government agencies to perform. Yet our 
Constitution is equally clear in permitting Congress to assign 
these duties to them and not the President. He is not ``the 
decider,'' but the overseer of decisions by others. When the 
President fails to honor that admittedly subtle distinction, he 
fails in his constitutional responsibility to ``take Care that 
the Laws be faithfully executed.'' The assignment of decisional 
responsibility to others is a part of those laws to whose 
faithful execution he must see.\904\--Professor Peter L. 
Strauss, Columbia Law School

    Serious concerns have been raised about the Bush 
Administration's efforts to override or contradict 
congressional authority in several respects, including through 
the use of presidential signing statements and the agency 
rulemaking process. President Bush has used signing 
statements--formal statements issued by a president when he 
signs legislation--to claim the power to nullify, without a 
veto, parts of more than 100 laws passed by Congress, based on 
assertions of executive authority and the theory of the 
``unitary executive.'' These include assertions of the power to 
violate legislation concerning such matters as the treatment of 
detainees, whistleblower protections, affirmative action, and 
censorship of scientific data. Specific examples include the 
McCain Amendment, which explicitly outlawed cruel, inhuman, and 
degrading treatment of detainees held by the United States; 
provisions of the 2005 Energy Policy Act protecting 
whistleblowers at the Department of Energy; and provisions in 
the 2004 Intelligence Reform and Terrorism Prevention Act that 
directed the national intelligence director to recruit and 
train more women and minorities in order to diversify the 
intelligence community.
    The Bush Administration's aggrandized control over the 
rulemaking process may be the strongest assertion of 
presidential power in this area in decades, to the detriment of 
the public interest. A most notable example is President Bush's 
Executive Order 13422, which substantially changes how 
regulations are promulgated. Some fear that it is a ``power 
grab'' that can be used to undermine public protections and 
that it represents ``an attempt to bypass Congress by 
establishing standards for regulatory initiation that are not 
consistent with statutory requirements.'' \905\ In addition, 
certain rules protecting public health and the environment have 
been delayed or weakened because of intervention by the Bush 
Administration. The Administration used directives and other 
alternative processes as a means to circumvent formal 
rulemaking and override congressional intent.

                   I. Presidential Signing Statements

    The first oversight hearing held by the House Judiciary 
Committee in the 110th Congress, on January 31, 2007, concerned 
the use of presidential signing statements by the Bush 
Administration.\906\ Although presidents have often issued 
signing statements when enacting legislation to explain their 
interpretation of the law, significant controversy had arisen 
because President Bush's statements often challenged or 
indicated a possible intent to disregard specific statutory 
provisions. In 2006, the issue attracted significant press 
attention, a Senate Judiciary Committee hearing,\907\ and a 
report by an American Bar Association Task Force. The Task 
Force concluded that the use of signing statements to claim the 
power to disregard legislation is ``contrary to the rule of law 
and our constitutional system of separation of power'' and 
recommended additional congressional oversight on the 
subject.\908\
            A. Historical Background
    Presidents have used signing statements since the Monroe 
Administration,\909\ and the first controversies regarding 
signing statements arose during the Jackson and Tyler 
Administrations.\910\ Presidents Polk and Pierce appeared to 
move away from signing statements, and President Grant, while 
using them, admitted that it was an unusual practice.\911\
    Signing statements, particularly those used to voice 
constitutional objections, became somewhat more common by 
1950.\912\ They reached a new prominence, however, during the 
Reagan Administration. President Reagan issued 276 signing 
statements, 71 of which (26%) questioned the constitutionality 
of a statutory provision.\913\ The Reagan Administration's 
goal, as articulated by then-Office of Legal Counsel lawyer 
Samuel Alito, was to establish the signing statement as part of 
a statute's legislative history that courts would use in 
interpretation.\914\ This met with limited success; while the 
Supreme Court referenced signing statements in two major cases, 
there is no indication that it granted them any significant 
weight.\915\ In one particularly contentious case, President 
Reagan used a signing statement to state that he was 
specifically instructing the Attorney General not to comply 
with portions of a law he considered unconstitutional.\916\ 
However, after unfavorable judicial rulings that upheld the 
underlying law and after the House took steps to eliminate 
funds for the Attorney General's office, the Administration 
agreed to comply with the law.\917\
    President George H. W. Bush and, to a lesser extent, 
President Bill Clinton continued to expand the use of signing 
statements. Out of the 214 signing statements issued by the 
first President Bush, 146 (68%) raised constitutional 
objections, and out of the 391 issued by President Clinton, 105 
(27%) raised constitutional objections.\918\ Both used the 
statements as ways to object to perceived encroachment by 
Congress on the president's executive powers. Clinton Assistant 
Attorney General Walter Dellinger argued that signing 
statements could theoretically be used to make ``substantive 
legal, constitutional, or administrative pronouncements,'' 
\919\ and that the president--after careful and explicit 
weighing of the circumstances and where he believes that the 
Supreme Court would agree with him--could refuse to enforce 
statutes he believes to be unconstitutional.\920\ At a White 
House briefing on February 9, 1996, Assistant Attorney General 
Dellinger elaborated:

          When the president's obligation to execute laws 
        enacted by Congress is in tension with his 
        responsibility to act in accordance to the 
        Constitution, questions arise that really go to the 
        very heart of the system, and the president can decline 
        to comply with the law, in our view, only where there 
        is a judgment that the Supreme Court has resolved the 
        issue.\921\
            B.  The Bush Administration's Use of Signing Statements
    As Chairman Conyers explained in his opening statement at 
the January 31, 2007, hearing, the Committee's concern focused 
on presidential signing statements as symptomatic of the 
``growing abuse of power within the Executive Branch'' under 
the George W. Bush Administration.\922\ The Committee learned 
that, as of January 2007, President Bush had issued 150 signing 
statements challenging over 1,100 provisions of law, more than 
all previous presidents combined. These have included 
statements challenging the McCain amendment explicitly 
outlawing the cruel, inhuman, and degrading treatment of 
detainees, reporting requirements of the USA PATRIOT Act, 
affirmative action provisions, and whistleblower protections. 
These statements often claimed that challenged legal provisions 
improperly interfered with Executive Branch authority or 
violated the ``unitary executive'' theory, under which all 
Executive Branch-related power is controlled solely by the 
president.
    President Bush's signing statements have differed from 
those of President Clinton and his other predecessors in 
several key respects. First, an overwhelming number of them 
(100 out of 128 or 86% as of September 20, 2006) have raised 
constitutional objections, and without specific indication that 
the Supreme Court had addressed or resolved the issue in the 
President's favor.\923\ Second, each statement typically 
challenged multiple provisions of a statute. The American Bar 
Association (ABA) Task Force found:

          From the inception of the Republic until 2000, 
        Presidents produced signing statements containing fewer 
        than 600 challenges to the bills they signed. According 
        to the most recent update, in his one and a half terms 
        so far, President George W. Bush (Bush II) has produced 
        more than 800.\924\

According to signing statement expert Professor Christopher 
Kelley, as of January 12, 2007, President Bush had issued 150 
signing statements challenging 1,149 provisions of law.\925\
    In challenging the constitutionality of portions of the USA 
PATRIOT Act and other high-profile laws, President Bush's 
signing statements have essentially asserted that the President 
does not believe that he is bound by key provisions of the 
legislation.\926\ Finally, they have sought to further a broad 
view of executive power and President Bush's view of the 
``unitary executive.'' \927\ In general, President Bush's 
signing statements have not contained specific refusals to 
enforce particular provisions or analysis of specific legal 
objections, but instead have been broad statements asserting 
that the president will enforce a particular law or provision 
consistent with the president's constitutional authority, 
making their true intentions and scope unclear and rendering 
them difficult to challenge.\928\
    Several examples of controversial Bush Administration 
signing statements illustrate this inclination:

The McCain Amendment on Treatment of Detainees

    The McCain Amendment, which was part of the 2005 Department 
of Defense Authorization bill, explicitly outlawed cruel, 
inhuman, and degrading treatment of detainees held in United 
States custody anywhere in any part of the world.\929\ After 
significant negotiations between Congress and the White House, 
the McCain Amendment passed by veto-proof margins in both 
houses, including a 90-9 margin in the Senate.\930\ Despite the 
apparent agreement between the White House and Congress, 
President Bush issued a signing statement suggesting that the 
government could ignore the McCain Amendment in certain 
circumstances.\931\ A senior Administration official told a 
Boston Globe reporter that the President, pursuant to the 
signing statement, might use interrogation techniques banned 
under the legislation in ``special'' national security-related 
situations.\932\

USA PATRIOT Act

    After the reauthorization of the USA PATRIOT Act, President 
Bush on March 9, 2006, issued a signing statement suggesting he 
could disregard the legislation's requirement that the 
President report to Congress on the steps he was taking to 
implement the Act's provisions.\933\ Senator Leahy, then the 
ranking member of Senate Judiciary Committee, called the 
President's action ``nothing short of a radical effort to re-
shape the constitutional separation of powers and evade 
accountability and responsibility for following the law.'' 
\934\

Affirmative Action

    Signing statements on the Export-Import Bank 
Reauthorization Act of 2002 and on 14 other Acts during 
President Bush's first term indicated that the Executive Branch 
would carry out affirmative action provisions ``in a manner 
consistent with the requirements of equal protection under the 
Due Process Clause of the Fifth Amendment.'' \935\ This phrase 
raised concerns that, since many Bush Administration officials 
regard affirmative action programs as a violation of equal 
protection, the Administration might refuse to carry out 
affirmative action programs in the affected statutes.\936\ In 
the Intelligence Reform and Terrorism Prevention Act of 2004, 
Congress required the national intelligence director to recruit 
and train women and minorities in order to diversify the 
intelligence community.\937\ The President's signing statement 
for that Act was issued with the same caveat despite the 
Supreme Court's ruling in Grutter v. Bollinger,\938\ upholding 
affirmative action as consistent with the Equal Protection 
Clause.

Whistleblower Protections

    In 2002, President Bush issued a signing statement 
accompanying the Sarbanes-Oxley law combating corporate fraud. 
The statement was read by many as attempting to narrow a 
provision protecting corporate whistleblowers in a way that 
would have left them with very little protection.\939\ Senators 
Leahy and Grassley wrote a letter to the President stating that 
his narrow interpretation was at odds with the plain language 
of the statute, and the Administration appeared to back 
away.\940\
    As part of the Energy Policy Act of 2005, Congress included 
another provision protecting whistleblowers at the Department 
of Energy and the Nuclear Regulatory Commission, reportedly 
``because lawmakers feared that Bush appointees were 
intimidating nuclear specialists so they would not testify 
about safety issues related to a planned nuclear waste 
repository at Yucca Mountain in Nevada.'' \941\ Notwithstanding 
the previous exchange with Senators Leahy and Grassley, 
President Bush once again claimed, in a signing statement on 
August 8, 2005, that the Executive Branch does not have to 
comply with these whistleblower protections. As discussed 
below, later Government Accountability Office (GAO) analysis 
undertaken at the Judiciary Committee's request revealed that 
some of these provisions have in fact not been followed.
            C. Committee Actions
    These facts and concerns about the Bush Administration's 
use of signing statements were thoroughly explored at the 
Judiciary Committee's January 31, 2007, hearing. Testimony at 
the hearing also revealed strong bipartisan opposition to such 
abuse of signing statements, as expressed by Republican former 
Representative Mickey Edwards and ABA President Karen Mathis. 
As Professor Charles Ogletree of Harvard Law School explained, 
moreover, the Bush Administration not only has claimed the 
right to refuse to implement parts of legislation through 
signing statements, in violation of law and the Constitution, 
but also has failed to identify those provisions it has 
improperly disregarded in practice. Professor Ogletree pointed 
out that ``[w]hen the president refuses to enforce a law on 
constitutional grounds without interacting with the other 
branches of government, it is not only bad public policy, but 
also creates a unilateral and unchecked exercise of authority 
in one branch of government without the interaction and 
consideration of the others.'' Chairman Conyers made clear that 
the Committee would continue its efforts to ``get to the 
bottom'' of the Administration's abuse of signing statements.
    On March 2, 2007, following up on the January 31 hearing, 
Chairman Conyers and Constitution, Civil Rights, and Civil 
Liberties Subcommittee Chairman Nadler wrote to the Attorney 
General asking detailed questions about 17 particularly 
troubling signing statements in which President Bush claimed 
the authority to disregard provisions of law. A partial 
response on May 30, 2007, indicated that the Administration had 
in fact properly implemented five of these challenged statutes. 
The Department declined, however, to answer the remainder of 
the Committee's questions.
    Chairman Conyers proceeded to work with Senator Robert Byrd 
to engage the help of the GAO to pursue the Committee's 
concerns. In general, the GAO found that the use of 
presidential signing statements was increasing and that federal 
courts have cited or referred to such statements ``only 
infrequently'' and ``have only in rare instances relied on them 
as authoritative interpretations of the law.'' \942\ For the 
first time, moreover, the GAO reports specifically examined the 
question of whether federal agencies were carrying out portions 
of federal statutes to which the President objected in signing 
statements. In consultation with Chairman Conyers and Senator 
Byrd, the GAO selected for review a number of signing 
statements in which the President claimed the ability to 
disregard selected provisions of federal law. These included 
signing statements issued with respect to fiscal year 2006 
appropriations acts and signing statements challenging ten 
provisions of law that were raised by Chairman Conyers and 
Chairman Nadler in their March 2, 2007, letter to the Justice 
Department. The GAO issued two reports, in June and December 
2007, examining a total of 22 signing statements in which the 
President claimed the ability to disregard selected provisions 
of federal law.\943\
    The GAO determined that in 9 of the 22 instances (over 
40%), federal agencies had failed to fully execute legal 
provisions to which the President had objected in signing 
statements. These included, for example, the failure of the 
Defense Department to include separate budget justification 
documents explaining how Iraq War funding was to be spent in 
its 2007 budget request as required by Congress, and the 
failure of the Department of Energy to comply with all the 
whistleblower protections mandated by Congress, as discussed 
above.\944\ Although in several instances the agencies 
indicated that they were not intentionally defying the law and 
did plan to achieve compliance, both Chairman Conyers and 
Senator Byrd expressed concern and called for continued 
oversight. As Chairman Conyers explained, ``[T]his 
Administration's power grabbing attitude should be checked and 
balanced with more congressional oversight of the use and abuse 
of presidential signing statements.'' \945\
    Partly because of the negative attention focused on signing 
statements and the increased use by President Bush of the veto 
pen, 2008 witnessed a decrease in the use of signing statements 
to challenge legislation. Serious concerns were raised, 
however, when a presidential signing statement concerning the 
National Defense Authorization Act for 2008 claimed the 
authority to disregard several provisions of law, including 
expanding protections for whistleblowers who work for 
government contractors and limiting the Administration's 
ability to set up permanent bases in Iraq without congressional 
approval. Judiciary Committee staff worked closely with the 
staff of the House Armed Services's Subcommittee on Oversight 
and Investigations, which conducted a hearing on the issue on 
March 11, 2008. At the hearing, Chairman Vic Snyder announced 
that the Defense Department had assured him that it intended to 
implement the Act as written.\946\
    Finally, in October 2008, President Bush used signing 
statements to challenge parts of a military authorization act 
and a statute giving inspectors general greater independence 
from White House control. Specifically, the signing statements 
took exception to provisions forbidding funding from being used 
to exercise control over Iraq oil resources, requiring 
negotiations for an agreement for Iraq to share some of the 
costs of American military operations, and strengthening legal 
protections against possible political interference with agency 
inspectors general. Although there has been no indication that 
agencies would in fact disobey these provisions and President 
Bush will be leaving office in January, the author of several 
of these sections commented that such signing statements 
``create uncertainty in the law that should not be there.'' 
\947\
    Perhaps reflecting the continued congressional and public 
scrutiny and skepticism concerning the Bush Administration's 
abuse of signing statements, both presidential candidates in 
this year's election made clear their opposition to this 
practice and pledged to end it if elected.\948\ In particular, 
President-elect Obama has pledged not to ``use signing 
statements to nullify or undermine congressional instructions 
as enacted into law,'' explaining that:

          While it is legitimate for a president to issue a 
        signing statement to clarify his understanding of 
        ambiguous provisions of statutes and to explain his 
        view of how he intends to faithfully execute the law, 
        it is a clear abuse of power to use such statements as 
        a license to evade laws that the president does not 
        like or as an end-run around provisions designed to 
        foster accountability. I will not use signing 
        statements to nullify or undermine congressional 
        instructions as enacted into law. The problem with this 
        Administration is that it has attached signing 
        statements to legislation in an effort to change the 
        meaning of the legislation, to avoid enforcing certain 
        provisions of the legislation that the president does 
        not like, and to raise implausible or dubious 
        constitutional objections to the legislation.\949\

This critique, and this pledge, correspond closely to the views 
of congressional, academic, and professional critics of the 
Bush Administration's abuse of signing statements.

                         II. Rulemaking Process

            A. Factual Background
    ``Federal regulation, like taxing and spending, is one of 
the basic tools of government used to implement public 
policy.'' \950\ Impacting on nearly every aspect of our lives, 
regulations \951\ have significant benefits and costs as aptly 
summarized in the following:

          Agencies issue thousands of rules and regulations 
        each year to implement statutes enacted by Congress. 
        The public policy goals and benefits of regulations 
        include, among other things, ensuring that workplaces, 
        air travel, foods, and drugs are safe; that the 
        Nation's air, water and land are not polluted; and that 
        the appropriate amount of taxes is collected. The costs 
        of these regulations are estimated to be in the 
        hundreds of billions of dollars, and the benefits 
        estimates are even higher. Given the size and impact of 
        federal regulation, it is no surprise that Congresses 
        and Presidents have taken a number of actions to refine 
        and reform the regulatory process within the past 25 
        years. One goal of such initiatives has been to reduce 
        regulatory burdens on affected parties, but other 
        purposes have also played a part. Among these are 
        efforts to require more rigorous analyses of proposed 
        rules and thus provide better information to decision 
        makers, to enhance oversight of rule making by Congress 
        and the President, and to promote greater transparency 
        and participation in the process.\952\

    The Administrative Procedure Act (APA),\953\ enacted in 
1946, establishes minimum procedures to be followed by federal 
administrative agencies when they conduct business that affects 
the public and requires judicial review of certain 
administrative acts. Many agency actions, however, are not 
subject to the APA. As one academic noted, ``the American 
administrative system, by evolution and design, is 
characterized by a considerable degree of informality, agency 
discretion and procedural flexibility.'' \954\ With federal 
agencies issuing ``more than 4,000 final rules each year on 
topics ranging from the timing of bridge openings to the 
permissible levels of arsenic and other contaminants in 
drinking water,'' \955\ the current federal regulatory process 
faces many significant challenges. President John F. Kennedy in 
1961 observed that ``the steady expansion of the Federal 
administrative process during the past several years has been 
attended by increasing concern over the efficiency and adequacy 
of department and agency procedures.'' \956\
    Within the Executive Office of the President, the Office of 
Management and Budget (OMB) is charged with the responsibility 
to oversee and coordinate Executive Branch agencies. The Office 
works with agencies ``to help improve administrative 
management, to develop better performance measures and 
coordinating mechanisms, and to reduce any unnecessary burdens 
on the public.'' \957\ Since the 1930s, OMB has been involved 
in ``questions of management and organization of the Executive 
Branch'' and the level of its involvement has fluctuated over 
time.\958\
    With regard to the regulatory processes of Executive Branch 
agencies, OMB's Office of Information and Regulatory Affairs 
(OIRA) reviews significant proposed and final rules from 
federal agencies before they are published in the Federal 
Register.\959\ As a result of OIRA's review, draft rules may be 
revised before publication, withdrawn before a review is 
completed, or returned to the agencies ``because, in OIRA's 
analysis, certain aspects of the rule need to be 
reconsidered.'' \960\ According to the Judiciary Committee's 
bipartisan Administrative Law, Process and Procedure Project 
for the 21st Century,\961\ ``OIRA can have a major influence on 
the direction of a wide range of public policies.'' \962\
    OMB's participation in rulemaking during some 
Administrations can be problematic. Academics, such as 
Georgetown University Law Center Professor David Vladeck, state 
that OMB can cause ``an agency to take action that is contrary 
to the statutory directive that the agency is required to 
enforce, or is otherwise arbitrary or irrational.'' \963\ He 
explains:

          OMB's participation is a one-way ratchet--OMB presses 
        agencies to do less to protect the public health, not 
        more, and to focus on lower cost options, not more 
        protective ones. OMB's job is to ensure that rules meet 
        a cost/benefit litmus test, and many experts claim that 
        cost/benefit analysis is inherently anti-regulatory . . 
        . While the anticipated costs of regulation are 
        generally easier to estimate (and easy to overstate), 
        the benefits of regulation--avoided cancers, 
        miscarriages, genetic damage that might cause 
        infertility or birth defects, kidney failures requiring 
        dialysis and transplant, to name just a few--are 
        notoriously difficult to quantify and are often 
        downplayed or ignored by OMB.\964\
            B. Executive Control by the Bush Administration

Executive Order 13422: Expanding White House Political Control Over 
        Rulemaking

    ``With little fanfare,'' \965\ President Bush issued 
Executive Order 13422 on January 18, 2007.\966\ Executive Order 
13422 substantively amended the procedures and requirements 
that agencies must follow to promulgate rules that had been in 
place since 1993 pursuant to Executive Order 12866, a directive 
issued by President Clinton.\967\
    President Bush's order ``gives the White House much greater 
control over the rules and policy statements that the 
government develops to protect public health, safety, the 
environment, civil rights and privacy.'' \968\ Critics of this 
order question whether it is an attempt to establish standards 
for rulemaking that are inconsistent with statutory 
requirements.\969\ For example, a New York Times commentator 
noted that Executive Order 13422 ``will make it even easier for 
political appointees to overrule the professionals, tailoring 
government regulations to suit the interests of companies that 
support the G.O.P.'' \970\
    Shortly after Executive Order 13422 was issued, the House 
Judiciary Committee's Subcommittee on Commercial and 
Administrative Law held an oversight hearing on the order.\971\ 
Witnesses who testified at this hearing included: Steven D. 
Aitken, Acting Administrator Office of Information and 
Regulatory Affairs, Office of Management and Budget; Professor 
Sally Katzen, University of Michigan Law School; Dr. Curtis W. 
Copeland, Specialist in American National Government, 
Congressional Research Service; Paul R. Noe with C&M Capitolink 
LLC; and Professor Peter L. Strauss, Columbia University School 
of Law. The hearing focused on four general concerns presented 
by the order as follows:

Greater Specificity and Market Analysis Requirements

    Executive Order 13422 revises Executive Order 12866's first 
principle of regulation. Under the prior order, each agency was 
required to identify the problem (including where applicable, 
failures of public markets or public institutions that warrant 
new agency action) as well as assess the significance of such 
problem. As revised, the agency must now ``identify in writing 
the specific market failure (such as externalities, market 
power, lack of information) or other specific problems that it 
intends to address (including where applicable, the failures of 
public institutions) that warrant new agency action, as well as 
assess the significance of that problem, to enable assessment 
of whether any new regulation is warranted.'' \972\ CRS 
explains:

          The new language appears to (1) elevate ``market 
        failure'' to greater prominence as a rulemaking 
        rationale (removing the ``where applicable'' caveat and 
        placing it before and on par with the more general 
        statement of problem identification); (2) more clearly 
        define what constitutes a market failure (e.g., 
        ``externalities, market power, lack of information''); 
        (3) require a more precise delineation of why the 
        agency is issuing the rule (the ``specific'' market 
        failure or the ``specific'' problem); (4) require that 
        the delineation be in writing; and (5) make clear that 
        the purpose of this requirement is to facilitate a 
        determination of whether the rule is needed.\973\

    As a result of this revision, it appears that agencies may 
have to meet a much higher threshold before they can promulgate 
regulations with a greater likelihood of ``paralysis by 
analysis.'' \974\ A greater concern is that Executive Order 
13422 may be ``an attempt to bypass Congress by establishing 
standards for regulatory initiation that are not consistent 
with statutory requirements.'' \975\ As Chairman Conyers 
observed:

          Executive Order 13422's requirement that a ``market 
        failure'' or problem be identified to justify 
        governmental intervention also marks a serious increase 
        of regulatory control by the White House. It is often 
        at the request of the industry that the agencies issue 
        best practices and policies. To make them more 
        complicated only seems to further interfere in the 
        regulatory process.\976\

Heightened Scrutiny of Significant Guidance Documents

    Agencies, from time to time, issue guidance documents 
intended to provide non-binding information regarding their 
regulations. Issued often at the request of industry, these 
documents ``interpret key policy and technical questions.'' 
\977\ Executive Order 13422 makes several substantive 
amendments to Executive Order 12866 with respect to guidance 
documents.\978\ First, it adds a definition of ``guidance 
document,'' which is defined as ``an agency statement of 
general applicability and future effect, other than regulatory 
action, that sets forth a policy on a statutory, regulatory, or 
technical issue or an interpretation of a statutory or 
regulatory issue.'' \979\ Second, it defines a ``significant 
guidance document.'' \980\ Third, and perhaps most importantly, 
it extends certain requirements that pertain to rulemaking to 
guidance documents issued by agencies \981\ which, as a result, 
will ``allow the White House to create a bureaucratic 
bottleneck that would slow down agencies' ability to give the 
public the information it needs.'' \982\
    CRS notes that the implications of these new requirements 
``are potentially significant.'' \983\ It explains:

          Agencies issue thousands of guidance documents each 
        year that are intended to clarify the requirements in 
        related statutes and regulations. Therefore, the 
        requirement that agencies provide OIRA with advance 
        notification of significant guidance documents may 
        represent a major expansion of the office's (and, 
        therefore, the President's) influence, particularly 
        when coupled with the ability of OIRA to determine 
        which guidance documents are ``significant'' and the 
        ability of OIRA to conclude that ``additional 
        consultation will be required'' before a document is 
        issued. Also, the requirement that presidentially 
        appointed regulatory policy officers ensure compliance 
        with this requirement arguably represents another 
        extension of the President's authority in regulatory 
        agencies.\984\

Greater Emphasis on Cost-Benefit Analysis

    Executive Order 13422 now requires an agency, as part of 
its regulatory plan, to include, in addition to its estimate of 
the anticipated costs and benefits of each rule that the agency 
reasonably expects to issue in the upcoming fiscal year, its 
best estimate of the combined aggregate costs and benefits of 
all of its regulations planned for the calendar year to assist 
with the identification of priorities.\985\ This requirement 
may be problematic as Sally Katzen, OIRA Administrator under 
the Clinton Administration explained at a hearing held by the 
Judiciary Subcommittee on Commercial and Administrative Law in 
2007:

          [T]o try to estimate either costs or benefits at the 
        notice of inquiry stage or before the agency has made 
        even tentative decisions is like trying to price a new 
        house before there is even an option on the land and 
        before there are any architects plans. The numbers may 
        be interesting, but hardly realistic, and to aggregate 
        such numbers would likely do little to inform the 
        public but could do much to inflame the opponents of 
        regulation.\986\

And, because certain aspects of this new requirement are 
unclear, CRS notes that it may ``prove difficult to implement 
in a meaningful fashion.'' \987\ For example, CRS pointed out 
that agencies typically would not have developed cost or 
benefit information at the time that the regulatory plan is 
developed, and that some regulations in the plan are never 
promulgated.

Greater Role for Political Appointees in the Rulemaking Process

    As issued in 1993, Executive Order 12866 required agencies 
to establish regulatory policy officers, but left to the 
agencies who those individuals would be and how much influence 
the would have over the rulemaking process. In contrast, 
Executive Order 13422 mandates that an agency designate a 
presidential appointee to be a regulatory policy officer.\988\ 
It also says that this officer must approve every proposed 
regulation before the agency may commence the rulemaking 
process and before such regulation may be included in the 
agency's regulatory plan.\989\ In response to these new 
requirements, Representative Henry A. Waxman (D-CA), Chair of 
the Committee on Oversight and Government Reform, observed, 
``The executive order allows the political staff at the White 
House to dictate decisions on health and safety issues, even if 
the government's own impartial experts disagree. This is a 
terrible way to govern, but great news for special interests.'' 
\990\
    Ultimately, however, it may be difficult to determine what 
effect these changes have had on the rulemaking process. As CRS 
explained, it is currently unclear whether agency regulatory 
policy officers have stopped any agency regulatory initiatives 
before they became draft rules, or, if so, whether there has 
been an increase in such stoppages since the officers' 
authority was enhanced by Executive Order 13422.'' \991\ 
Nevertheless, CRS noted that certain of these new requirements 
appear ``to significantly enhance the role of the agency 
regulatory policy officer as part of the regulatory planning 
process.'' \992\ CRS also pointed out that Executive Order 
13422 is ``silent as to whether the designated presidential 
appointee would be subject to Senate confirmation,'' which 
provides a means to strengthen congressional ``influence over 
agency decision making.'' \993\ CRS concluded that, ``Given the 
enhanced power and authority of the policy officer to control 
day-to-day rulemaking activities within federal agencies (``no 
rulemaking shall commence''), the policy officer could be 
considered to be an officer of the United States under the 
appointments clause of the Constitution.'' \994\ Therefore, 
Congress could require the policy officers to be subject to 
Senate confirmation. As Chairman Conyers observed:

          [T]he policies and regulations that are created to 
        protect public health, safety, the environment, civil 
        rights, and privacy and should be created by experts in 
        the field and not by a political appointees. Such a 
        deviation from past process only serves to compromise 
        the protection of the public while enhancing the 
        president's political power.\995\
            C. Efforts by OIRA to Control Rulemaking
    During the Clinton Administration, the OIRA Administration 
saw her roles as collegial. Over the course of the George W. 
Bush Administration, however, OIRA has returned to the role it 
had during the Reagan Administration, even describing itself in 
an annual report as the ``gatekeeper for new rulemakings.'' 
\996\ The Administrator of OIRA explained that one of his 
office's functions is ``to protect people from poorly designed 
rules,'' and that OIRA review is a way to ``combat the tunnel 
vision that plagues the thinking of single-mission 
regulators.'' \997\ This ``return to the gatekeeper perspective 
of OIRA's role has implications for an array of OIRA's 
functions.'' \998\
    It has been argued that ``OIRA's increasingly aggressive 
role in controlling agency action'' may be ``the biggest 
administrative law story of the new century.'' \999\ 
Manifestations of OIRA's heightened role in the rulemaking 
process, as identified by the GAO \1000\ and CRS,\1001\ include 
the following:
           the development of a detailed economic 
        analysis circular and what agency officials described 
        as a perceptible ``stepping up the bar'' in the amount 
        of support required from agencies for their rules, with 
        OIRA reportedly more often looking for regulatory 
        benefits to be quantified and a cost-benefit analysis 
        for every regulatory option that the agency considered, 
        not just the option selected;
           the issuance of 21 letters returning rules 
        to the agencies between July 2001 and March 2002--three 
        times the number of return letters issued during the 
        last six years of the Clinton Administration; \1002\
           the issuance of 13 ``prompt letters'' 
        between September 2001 and December 2003 suggesting 
        that agencies develop regulations in a particular area 
        or encouraging ongoing efforts. However, OIRA issued 
        two prompt letters in 2004, none in 2005, one in 2006, 
        and none in 2007[.]
According to CRS, these and other initiatives ``represent the 
strongest assertion of presidential power in the area of 
rulemaking in at least 20 years.'' \1003\

Direct Intervention by the Administration to Control Rulemaking

    In addition to the ways in which the Bush Administration 
has exerted control over the rulemaking process discussed 
above, the Administration has informally intervened in this 
process by either overriding agency action or delaying its 
review of rules. For example, it came to light earlier this 
year that the U.S. Environmental Protection Agency (EPA) 
weakened some of its regulatory limits on smog-forming ozone 
``after an unusual last-minute intervention by President Bush, 
according to documents released by the EPA.'' \1004\ Although 
the EPA's Clean Air Scientific Advisory Committee supported the 
EPA's proposed ozone standard rule, OIRA Administrator Dudley 
``urged the EPA to consider the effects of cutting ozone 
further on `economic values and on personal comfort and well-
being.' '' \1005\ President Bush intervened and he ``decided on 
a requirement weaker than what the EPA wanted.'' \1006\
    At an oversight hearing that examined the aftermath of 
Executive Order 13422, Chairman Conyers explained the 
problematic aspects of when politics trump public safety:

          I am concerned that the Administration's 
        unprecedented control over the rulemaking process 
        serves as yet another barrier to against consumer 
        protection, specifically against exposure to harmful 
        environmental pollutants and other safety and health 
        requirements. This is most recently illustrated by the 
        controversy over the air quality regulations issued by 
        the EPA for ozone standards. Notwithstanding that 
        agency's sage advice about the need for tougher 
        standards, the President personally intervened to 
        ensure that lower standards would be used.
          We have seen in other contexts that this President 
        has tried to take unto himself absolute authority on 
        issues such as surveillance, privacy, torture, enemy 
        combatants, and rendition, and signing statements. The 
        issue of public health and safety that we are looking 
        at today, as protected by our administrative agencies, 
        is no less important.\1007\

    Another means by which the Administration has directly 
controled agency rulemaking is to delay its review of rules. 
For example, Executive Order 12866 requires OIRA's reveiws to 
be completed within 90 days of when a rule is submitted, unless 
such period is extended by no more than 30 days at the request 
of the agency head.\1008\ According to data available from the 
General Services Administration, however, OIRA failed to 
complete its review of various rules within these limits.\1009\ 
As of early 2008, one EPA draft rule (on radiation protection 
guidance for the general public) had been under OIRA review for 
two and one-half years (since October 2005), and another EPA 
rule (on standards for radioactive waste disposal in Yucca 
Mountain, Nevada) had been under review for fifteen months 
(since December 2006). Until OIRA's review is completed, these 
rules cannot be formally promulgated.

Using Directives and Other Means to Circumvent Formal Rulemaking

    The Congressional Review Act \1010\ serves to keep 
``Congress informed of the rulemaking activities of federal 
agencies'' \1011\ by requiring agencies to submit to each 
chamber of Congress and the Comptroller General a copy of the 
rule and certain other materials before the rule may take 
effect.\1012\ Once a rule is submitted, Congress has 60 
legislative or session days to complete its review and, if 
necessary, disapprove the rule.\1013\
    In an apparent effort to avoid the Act's requirement, the 
Bush Administration sought to avoid congressional review by 
issuing directives instead of rules. For example, the Centers 
for Medicare & Medicaid Services (CMS) issued a letter on 
August 17, 2007 to state health officials concerning the State 
Children's Health Insurance Program for the purpose of 
``clarifying'' how CMS will apply existing statutory and 
regulatory requirements in its review of requests by states to 
extend eligibility under the Program to children from lower-
income families.\1014\ CMS established new requirements and 
stated in the letter that it could take corrective action 
against states that fail to adopt the identified measures 
within 12 months.\1015\ Although both CRS and GAO concluded 
that this letter was a ``rule'' within the meaning of the 
Congressional Review Act and must therefore be submitted to 
Congress before it could take effect,\1016\ CMS stated that 
``GAO's opinion does not change the department's conclusion 
that the Aug. 17 letter is still in effect.'' \1017\ Because 
the letter was never submitted to Congress, the Congressional 
Review Act's disapproval process was not initiated.

Midnight Rulemaking

    The term ``midnight rule'' refers to a final (usually 
executive-branch) administrative agency rule promulgated at the 
end of an outgoing administration's term of office, usually 
between the November presidential election and inauguration 
day.\1018\ Empirical evidence shows that, at least since the 
Carter Administration, outgoing administrations have increased 
the rate at which they have issued final rules following the 
November presidential election. The increase has been greatest 
when the new president and the former president have hailed 
from different political parties.\1019\
    There are a number of reasons why an outgoing 
administration will increase the rate at which it issues final 
rules during the so-called ``midnight period.'' The most 
commonly cited reason is the administration's desire to set 
long-term regulatory policy that will survive its 
departure.\1020\ Another oft-cited reason is the 
administration's desire to await the conclusion of the November 
elections before issuing controversial rules that may cost its 
party votes.\1021\
    An incoming administration cannot simply undo a final 
midnight rule published in the Federal Register if the rule is 
subject to the Administrative Procedure Act's notice-and-
comment requirements, as is the case with most significant 
rules. The new administration can modify or revoke the rule 
only by initiating a new rule-making procedure--that is, by 
publishing a new proposed rule in the Federal Register, 
affording the public an opportunity to submit comments, 
reviewing the comments, and so forth.\1022\
    Most final midnight rules survive changes in 
administration. One study found that only nine percent of the 
first Bush Administration's midnight rules were repealed by the 
Clinton Administration, and nearly half went unmodified. The 
Clinton Administration's midnight rules faired even better. 
Only three percent were repealed, and more than three-quarters 
went unmodified.\1023\ Political pressures, legal constraint, 
and time and resource limitations have been cited as the main 
reasons why midnight rules so often survive changes in 
administration.\1024\
    As for the Bush Administration's record on midnight 
rulemaking, it has come under especially strong criticism from 
commentators representing diverse viewpoints. It initially 
appeared that the Administration would try to limit the number 
of end-of-term regulations. On May 9, 2008, the White House 
chief of staff directed that all executive departments and 
agencies propose any rules to be ``finalized'' during the Bush 
administration ``no later than June 1, 2008,'' and to issue 
``any final regulations . . . no later than November 1, 2008, . 
. . except in extraordinary circumstances.'' \1025\ But the 
Bush Administration failed to honor this directive. Several 
significant proposed rules--governing such important matters as 
the environment,\1026\ civil rights,\1027\ workplace 
safety\1028\--were proposed after June 1, 2008. More 
importantly, the Bush Administration issued dozens of final 
rules after November 1, 2008. As a result, many commentators 
have concluded that the purpose of the May 9 memorandum was not 
to limit midnight rule-making, as it stated, but to ensure that 
any midnight rules issued by the Administration would survive 
its departure.\1029\ Administration officials may have 
anticipated that their successors would address midnight rules 
the same way that they had addressed the Clinton 
Administration's midnight rules--by withdrawing any rules that 
had not yet been issued in final form and suspending the 
effective date of any rules that had been issued in final form 
but not yet taken effect.\1030\
    Concerns have been raised less about the volume of Bush 
Administration's midnight rules and more about the process 
through which they were promulgated and the political interests 
that they served. Respected commentators have charged the Bush 
Administration with: departing from well-established regulatory 
practices and procedures governing public notice and comment, 
agency review of comments, and OMB/OIRA review of proposed 
agency rules; substituting anti-regulatory ideology for sound 
regulatory policy based on empirical evidence; and placing 
powerful special interests above the public interest and 
statutory mandates.\1031\
    Bush Administration midnight rules that have come under 
especially strong criticism include:\1032\
     Environmental Protection Agency rules that, among 
other things: allow mining companies to dump waste from 
mountaintop mining operations into rivers and streams, subject 
only to the requirement that they ``minimize the creation of 
excess spoil and the adverse environmental impacts'' \1033\; 
exempt factory farms from reporting pollution emissions from 
animal waste\1034\; and open two million acres of Western lands 
to harmful oil shale development.\1035\
     A Department of the Interior rule, which was 
opposed even by the Administration's own Fish and Wildlife 
Service Director and National Park Service Director, that 
lifted the 25 year-old-ban on concealed weapons in national 
parks.\1036\
     A Department of Transportation rule (an earlier 
version of which was struck down by the U.S. Court of Appeals 
for the District of Columbia Circuit) that allows truck drivers 
to drive up to 11 consecutive hours without a break and 
shortens mandatory rest periods between work weeks.\1037\
     A Department of Health and Human Services 
regulation that narrows the definition of outpatient hospital 
services under the Medicaid regulations and thereby severely 
limits the services available to Medicaid beneficiaries.\1038\
     A Department of Health and Human Services rule 
that effectively deprives medical institutions and a large 
number of medical workers of the right to provide abortion 
counseling, abortion referrals, and emergency 
contraception.\1039\
     Department of Labor regulations governing the use 
of alien temporary guest workers (both agricultural and non-
agricultural) that will likely weaken labor standards for 
workers and limit the employment opportunities of domestic 
workers.\1040\
     A Department of Labor rule governing leave under 
the Family and Medical Leave Act that makes it more difficult 
for workers to avail themselves of statutory leave rights and 
makes it easier for employers to insist on the right to speak 
with employees' personal physicians.\1041\
            D. Lack of Transparency
    Patrick Henry warned more than 300 years ago, ``The 
liberties of a people never were, nor ever will be, secure when 
the transactions of their rulers may be concealed from them.'' 
\1042\ In the absence of oversight, those liberties can be 
jeopardized particularly if the Executive Branch is not checked 
by Congress. Without transparency, it is impossible to know the 
extent, for example, that special interests or inappropriate 
factors play in official action.
    Although the extent these factors play in rulemaking is 
critical, the nonpartisan CRS observes, ``[I]t is difficult for 
anyone outside the agencies or OIRA to determine the impact of 
most of the Bush Administration's regulatory management 
initiatives.'' \1043\ For example, the Committee, through the 
Subcommittee on Commercial and Administrative Law, sought to 
consider the impact and ramifications of Executive Order 13422 
one year after it was promulgated at an oversight hearing held 
on May 6, 2008.\1044\ The hearing also examined other aspects 
of the Administration's role in the rulemaking process. Dr. 
Curtis Copeland, a Specialist in American National Government 
at CRS, testified at this hearing that it was unclear whether:
           agency RPOs [regulatory policy officers] 
        have stopped any agency regulatory initiatives before 
        they became draft rules, or, if so, whether there has 
        there been an increase in such stoppages since the 
        RPOs' authority was enhanced by Executive Order 13422;
           OIRA has declared certain scientific 
        information ``highly influential,'' therefore requiring 
        the rulemaking agencies to use detailed peer review 
        procedures;
           OIRA is using the general principles for 
        risk assessment (e.g., that agencies use the ``best 
        reasonably obtainable scientific information'') to stop 
        agency rules;
           OIRA has used its authority in Executive 
        Order 13422 to require ``additional consultation'' 
        before agencies can issue significant guidance 
        documents; and
           the January 2007 ``good guidance practices'' 
        bulletin has changed the nature of the guidance that 
        agencies give to regulated entities.\1045\
Likewise, Dr. Copeland observed that it was ``unclear how many 
`significant guidance documents' '' OIRA has reviewed since 
Executive Order 13422 was issued in January 2007.'' \1046\ In 
addition, he noted that ``[although OIRA is required to 
disclose when agency rules are submitted for review, when the 
reviews are complete, and the results of the reviews, no such 
requirements pertain to agency guidance documents.'' \1047\
    In 2003, GAO reached a similar conclusion regarding the 
opaqueness of OIRA's reviews.\1048\ Specifically, GAO said 
that:
           OIRA interpreted the transparency 
        requirements in Section 6 of Executive Order 12866 as 
        applying only to formal reviews (which can be as short 
        as one day), not to informal OIRA reviews that can go 
        for months, and which OIRA has described as the period 
        when it can have its greatest impact on agency rules;
           OIRA interpreted a requirement that OIRA 
        disclose documents exchanged between OIRA and the 
        agencies as not applying to documents exchanged by OIRA 
        desk officers;
           OIRA's meeting log did not clearly indicate 
        which regulatory action was being discussed or the 
        affiliations of the participants in those meetings; and
           OIRA's database did not clearly indicate 
        which rules had been changed at the direction of OIRA, 
        or the significance of those changes.
    ``Federal regulations are among the most important and 
widely used tools for implementing the laws of the land--
affecting the food we eat, the air we breathe, the safety of 
consumer products, the quality of the workplace, the soundness 
of our financial institutions, the smooth operation of our 
businesses,'' although it is extremely difficult to follow the 
regulatory process.\1049\ And, while e-rulemaking ``has 
transformative potential to increase the comprehensibility, 
transparency and accountability of the regulatory process,'' 
\1050\ a report prepared under the auspices of the American Bar 
Association concluded that the Administration's efforts to 
promote this initiative has not been ``entirely successful.'' 
The report noted basic deficiencies with respect to how the 
Administration's e-rulemaking system is structured and funded 
and with respect to the public's ability to access the 
system.\1051\
    Equally problematic is the concern that the Administration 
may have advised agencies to not cooperate with Congress with 
respect to the conduct of congressionally-sanctioned empirical 
studies done as part of the Administrative Law, Process and 
Procedure Project for the 21st Century. The Project, which was 
originally approved on January 26, 2005, by the Judiciary 
Committee as part of its Oversight Plan for the 109th 
Congress\1052\ and continued as part of the Committee's 
Oversight Plan for the 110th Congress,\1053\ was intended to 
undertake a nonpartisan, academically credible analysis of 
administrative law, process and procedure.\1054\ As part of 
this Project, seven hearings were held on this subject matter, 
three symposia were held,\1055\ and the Project sponsored three 
empirical studies.\1056\
    Over the course of the Project, however, it came to light 
that the Administration apparently instructed certain agencies 
to not cooperate with two of these empirical studies. An 
academic researcher contracted by the CRS to study public 
participation at the development stage of a rulemaking 
proceeding encountered reluctance by most agencies to provide 
information vital to one of these studies. According to CRS, 
his ``requests for information were often met with reluctance 
and suspicion and his most valuable contacts with knowledgeable 
officials were on deep background.'' \1057\ Similarly, a 
comprehensive study of science advisory panels in federal 
agencies encountered little cooperation among the agencies, 
even though the Administration was provided letters of 
introduction from the Director of CRS and the Chairman and 
Ranking Member of the Subcommittee on Commercial and 
Administrative Law.\1058\
    The failure of the Project to secure cooperation with the 
Administrative underscores the need to reauthorize and 
appropriate funding for the Administrative Conference of the 
United States (ACUS or Conference). Established as a permanent 
independent agency in 1964 (which became operational three 
years later),\1059\ the Conference was created to develop 
recommendations for improving procedures by which federal 
agencies administer regulatory, benefit, and other government 
programs.\1060\ It served as a ``private-public think tank'' 
that conducted ``basic research on how to improve the 
regulatory and legal process'' \1061\ and served as a 
consultative resource for Congress.\1062\ The organization and 
independence of ACUS encouraged cooperative involvement from 
all three branches of government. As a result, ACUS-sponsored 
empirical research generally garnered support and cooperation 
from all sectors of government. This may explain why the 
Conference's recommendations were well-founded, effective, and 
generally accepted. After failing to be appropriated funds for 
fiscal year 1996, ACUS ceased operations as of October 31, 
1995.\1063\ The statutory provisions establishing ACUS, 
however, were not repealed and, in 2008, ACUS was reauthorized 
for an additional three years.\1064\

                             III. Findings


Abuse of Presidential Signing Statements

    1. President Bush has improperly used signing statements to 
attempt to nullify, without a veto, more than 1100 provisions 
in over 100 laws passed by Congress, based on assertions of 
executive authority and the theory of the ``unitary 
executive.'' These have included, for example:
     The McCain Amendment, which explicitly outlawed 
cruel, inhuman, and degrading treatment of detainees held by 
the U.S.\1065\ In signing the Defense appropriations 
legislation to which the Amendment was attached, however, 
President Bush claimed the authority to construe it in accord 
with his asserted authority to ``supervise the unitary 
Executive Branch and as Commander in Chief,'' in order to help 
in ``protecting the American people from further terrorist 
attacks.'' \1066\ As several scholars and analysts have pointed 
out, this effectively amounts to a claim that the president can 
``waive the torture ban if he decides that harsh interrogation 
techniques will assist in preventing terrorist attacks.'' 
\1067\ In fact, a senior Administration official reportedly 
stated that pursuant to the signing statement, the president 
might authorize interrogation techniques banned under the 
legislation in ``special'' national security-related 
situations.\1068\
     Provisions of the 2005 Energy Policy Act 
protecting whistleblowers at the Department of Energy and the 
Nuclear Regulatory Commission who provide information to 
Congress.\1069\ When the President signed this legislation, he 
issued a statement asserting that he would interpret these 
provisions ``in a manner consistent with the President's 
constitutional authority to supervise the unitary Executive 
Branch'' which, analysts have pointed out, claims that the 
president, not Congress, ``will determine whether'' such 
employees ``can give information to Congress.'' \1070\
     Provisions in the 2004 Intelligence Reform and 
Terrorism Prevention Act that directed the national 
intelligence director to recruit and train more women and 
minorities in order to diversify the intelligence 
community.\1071\ Yet when the President signed this law, he 
asserted that he would interpret it ``consistent with the 
requirement that the Federal Government afford equal protection 
of the laws under the Due Process Clause of the Fifth 
Amendment,'' raising concerns that since some Administration 
officials regard affirmative action program as a violation of 
equal protection, the Administration could refuse to carry out 
this and similar provisions.\1072\
    2. The Bush Administration has failed to fully execute a 
number of public law provisions--9 of 22 studied by the GAO--to 
which the President has objected in signing statements. For 
example:
     In its FY2006 appropriations legislation, Congress 
required that the Department of Defense include separate budget 
justification documents concerning its 2007 budget requests 
explaining how funding for contingency operations would be 
spent. As with other signing statements asserting Executive 
Branch authority, President Bush issued a signing statement 
claiming that these provisions would be applied ``in a manner 
consistent with the President's constitutional authority to . . 
. recommend for congressional consideration such measures as 
the President shall judge necessary and expedient.'' In fact, 
the GAO found that the Department failed to submit a budget 
justification document with respect to contingency operations 
in Iraq, as required by law. The GAO concluded that the 
Executive Branch ``did not execute this provision as written.'' 
\1073\
     As discussed above, the President objected under 
the ``unitary executive'' theory to provisions of the Energy 
Policy Act of 2005 that provided additional protections to 
whistleblowers at the Nuclear Regulatory Commission and the 
Department of Energy. One specific provision required the 
agencies to notify their employees that they are covered by 
specific whisteblower protections. The GAO found that despite 
acknowledging this requirement, the Energy Department had not 
so notified its employees more than two years after the statute 
was enacted and ``did not state when it plans'' to do so. The 
GAO thus concluded that the Energy Department ``has not 
implemented'' the law as required by Congress.\1074\
    3. In contrast to his predecessors, an overwhelming number 
of President Bush's signing statements have raised 
constitutional objections to multiple provisions of statutes he 
has signed and asserted that he is not bound by them.\1075\ 
Such claims would violate Article II, section 3, of the 
Constitution, which requires the president to ``take care that 
the laws be faithfully executed,'' as well as Article I, 
section 7, which requires the president to either sign or veto 
legislation. As interpreted by the Supreme Court, Article I, 
section 7, does not permit a partial veto of legislation, 
although that is arguably what the Administration has done in 
issuing signing statements objecting to parts of legislation 
and then, in at least some cases, failing to implement 
them.\1076\

Rulemaking Process

    4. The Administration's greatly enhanced control over the 
rulemaking process has been to the detriment of the public 
interest and has served to circumvent legislative intent. As 
noted by the nonpartisan CRS, this Administration's regulatory 
and rulemaking initiatives represent the strongest assertion of 
presidential power in this area in at least 20 years.\1077\ 
This enhanced presidential control over rulemaking has been 
manifested in various ways.
      One of the most egregious examples of this 
excessive control is Executive Order 13422, which substantially 
changed how rules are promulgated by agencies. Issued by 
President Bush without any prior consultation, Executive Order 
13422 made the most significant changes to the presidential 
review process since its predecessor was issued in 1993. 
According to the nonpartisan CRS, the executive order 
represents ``a clear expansion of presidential authority over 
regulatory agencies'' that is ``consistent with the President's 
view of the `unitary executive.' '' \1078\
     Under President Bush, the role of the Office of 
Information and Regulatory Affairs (OIRA) within OMB has 
changed from serving as a counselor for agencies to a self-
described ``gatekeeper'' of agency rulemaking. As a result of 
this changed role, the Administration has undermined 
legislative intent. OIRA's enhanced control over rulemaking has 
been manifested in numerous respects.\1079\
     Contrary to the public interest, the Bush 
Administration has directly and indirectly intervened in the 
rulemaking process to weaken or delay rules. Specific examples 
include: (i) efforts by the Environmental Protection Agency 
(EPA) to weaken some of its limits on smog-forming ozone after 
an unusual last-minute intervention by President Bush, who 
wanted a requirement weaker than what the EPA advised. Congress 
delegated rulemaking authority with regard to ozone to the EPA, 
not the president. This action represents a usurpation of 
congressionally delegated rulemaking authority from the EPA to 
the president; \1080\ and (ii) the Administration has delayed 
its review of a time-sensitive regulation intended to protect a 
seriously endangered species.\1081\
     The Bush Administration has sought to circumvent 
the requirements of the Congressional Review Act, which 
mandates that agencies submit rules to Congress before they 
become effective. Notwithstanding opinions issued by the GAO 
and CRS finding that a ``directive'' issued by the Department 
of Health & Human Services constitutes a ``rule'' within the 
meaning of the Act, the agency refused to rescind its 
``directive'' until just days before the states would have lost 
funding for their failure to comply.\1082\
     The Bush Administration promulgated a series of 
``midnight regulations,'' some of which were ``among the most 
controversial deregulatory steps of the Bush era'' and involved 
easing controls on emissions of pollutants that contribute to 
global warming, relaxing drinking-water standards and lifting a 
key restriction on mountaintop coal mining.\1083\
     Serious concerns have been raised that, in its 
rush to regulate, the Bush Administration has given the public 
insufficient time to submit comments, conducted hasty and 
perfunctory reviews of important public comments, and otherwise 
deviated from accepted rulemaking practices.\1084\ In the case 
of one controversial midnight rule, for example, an executive-
branch agency asked its experts to review 200,000 public 
comments in just 32 hours.\1085\ In another, the agency 
required staff to review 300,000 comments disapproving of a 
rule in only a week.\1086\
    5. Under the Bush Administration, the rulemaking process 
has become less transparent and less accountable to the public 
and to Congress. Key parts of the rulemaking review process are 
not transparent. As a result, it is unclear to what extent 
outside entities and the Administration influence rulemaking 
and subvert legislative intent.
     The Administration's influence on agency 
rulemaking is difficult to discern even after the proposed or 
final rule is published because key parts of the OIRA review 
process and other Administration initiatives are not 
transparent.\1087\
     President Bush's Executive Order 13422 made 
rulemaking even less transparent by requiring political 
appointees to pre-approve agencies' proposed regulations.\1088\
     On two occasions, this Administration thwarted 
efforts by the House Judiciary Committee to conduct a 
nonpartisan empirical analysis of the early stages of the 
rulemaking process and with respect to an analysis of the role 
of federal advisory committees by instructing agencies not to 
cooperate with these studies.\1089\
                 Section 4--Retribution Against Critics

    The critic of the war [Joseph F. Wilson] comes out. He 
points fingers at the White House . . . He is fair game. 
Anything goes . . . His wife [Valerie Plame Wilson] had a job 
with the CIA. She worked in the counterproliferation division . 
. . She gets dragged into the newspapers. Some may think that's 
okay. It isn't.\1090\--Special Counsel Patrick Fizgerald, 
Closing Argument in United States v. Libby

    The Bush Administration has been repeatedly charged with 
employing improper and even unlawful means to discredit--and, 
in some cases, retaliate against--both internal and external 
critics. No act of retribution against its critics, though, has 
attracted more public attention than the 2003 leak of Valerie 
Plame Wilson's covert CIA identity following the publication of 
an op-ed by her husband, Ambassador Joseph F. Wilson, 
criticizing the Administration, and the subsequent criminal 
conviction of Vice President Cheney's Chief of Staff I. Lewis 
Libby for obstructing the investigation of the leak.
    Although the most notable victims of Administration's 
retribution against critics, Ambassador Wilson and his wife 
were not the only ones. The Administration retaliated against 
numerous other critics. Notable victims have included former 
General Eric Shinseki, former Secretary of the Treasury Paul 
O'Neill, former White House counter-terrorism czar Richard 
Clarke, Richard Kay and other prominent CIA officials, and 
Department of Justice whistleblowers Thomas Tamm and Jesselyn 
Radack to name only a few.

   I. The Leak of Valerie Plame Wilson's Covert CIA Identity and Its 
                               Aftermath

            A. The July 2003 Disclosure By the Press
    The event that set in motion the unauthorized leak of 
Valerie Plame Wilson's covert CIA identity in June and July of 
2003 was the publication of Nicholas Kristof's May 6, 2003, 
article in The New York Times titled ``Missing in Action: 
Truth.'' \1091\ The article concerned President Bush's by-then-
disproved claim that Iraq had tried to purchase uranium from 
Niger to build nuclear weapons. Mr. Kristof reported that he 
had been ``told by a person involved in the Niger caper that 
more than a year ago the Vice President's office asked for an 
investigation of the uranium deal, so a former ambassador to 
Africa was dispatched to Niger. In February 2002, according to 
someone present at the meeting, that envoy reported to the 
C.I.A. and State Department that the information was 
unequivocally wrong.'' \1092\ Mr. Kristoff did not identify the 
former ambassador by name.
    On June 12, 2003, reporter Walter Pincus published a 
follow-up article in The Washington Post. He reported that, in 
response to an inquiry made by the Vice President, the CIA had 
sent an unnamed ``retired ambassador'' to Niger to investigate 
the claim that Iraq had sought to procure uranium from that 
country and that, at the conclusion of the trip, the Ambassador 
reported to the CIA that the `` `uranium-purchase story was 
false.' '' \1093\
    Five days after Mr. Pincus' article appeared, a still more 
critical article titled ``The First Casualty: The Selling of 
the Iraq War'' appeared in The New Republic online.\1094\ Like 
the Kristof and Pincus articles, The New Republic article 
reported that, following a request for information by the Vice 
President, the CIA had dispatched an unnamed ambassador to 
Niger to investigate the allegation that Iraq had sought 
uranium from Niger to build nuclear weapons. The article 
included a statement by the unnamed ambassador that, by early 
2002, Administration officials ``knew the Niger story was flat-
out false.'' \1095\ The article was especially critical of the 
Administration's (and, in particular, Vice President Cheney's) 
handling of intelligence.
    On July 6, 2003, Ambassador Joseph F. Wilson published an 
op-ed in the The New York Times in which he identified himself 
as the unnamed ambassador in the earlier press accounts.\1096\ 
(He also discussed his trip during a July 6 appearance on NBC's 
Meet the Press and a July 8 appearance on NBC News.) \1097\ 
Ambassador Wilson revealed that, in February 2002, the CIA had 
sent him on a trip to Niger to investigate the allegations 
regarding Iraq's nuclear activities, that he doubted the 
veracity of the allegation, and that he believed the Vice 
President had been briefed on his conclusions.\1098\ Ambassador 
Wilson's disclosure generated extensive media coverage.\1099\
    On July 14, 2003, Mr. Novak revealed Ms. Wilson's name and 
identity in a column that appeared in The Chicago Sun Times. He 
wrote: ``Wilson never worked for the CIA, but his wife, Valerie 
Plame, is an agency operative on weapons of mass destruction. 
Two senior officials told me his wife suggested sending Wilson 
to Niger . . .'' \1100\ Other public disclosures in the press 
soon followed.\1101\ Accusations that White House officials had 
retaliated against Ambassador Wilson surfaced immediately. At 
least one high-ranking White House official, Karl Rove, was 
apparently undisturbed. It has been widely reported that he 
informed Chris Matthews of MSNBC that Ambassador Wilson's 
``wife'' was ``fair game.'' \1102\
    As of the date Mr. Novak published his article, Ms. Wilson 
was an ``under cover'' (that is, covert) CIA ``operative on 
weapons of mass destruction.'' Her employment status with the 
CIA was ``classified information prohibited from disclosure 
under Executive Order 12958,'' \1103\ which governs the 
handling and disclosure of classified information.\1104\
    With the publication of Mr. Novak's article, Ms. Wilson's 
then-classified and covert CIA identity was blown and her 
career at the CIA over.\1105\ The effect of the disclosure was 
not only to destroy Ms. Wilson's career in intelligence, but 
also to hinder U.S. intelligence efforts working overseas, as 
well as others who may have interacted with Ms. Wilson or her 
cover organization for many years.\1106\ Any reliable 
assessment of the damage, though, would require review of the 
classified ``damages assessment'' that the CIA conducted after 
Mr. Novak's column appeared.\1107\
            B. The Bush Administration's Response to the Leak
    Immediately after Mr. Novak's column appeared, the CIA 
contacted the Justice Department four times in the span of 
three weeks to notify it that the disclosure of Ms. Wilson's 
name and covert status likely violated the law and to request a 
criminal investigation.\1108\ Months passed without the 
commencement of an investigation. In late September 2003, over 
a month after the first CIA notification, the Justice 
Department finally confirmed it had authorized the FBI to begin 
an investigation (though without the supervision of an 
independent special counsel).\1109\ Even then, the Department 
waited three days before notifying the White House of the 
investigation, and the White House in turn waited eleven hours 
before asking all White House staff to preserve evidence.\1110\ 
Adding to the delay was the White House counsel's decision to 
screen all evidence for ``relevance'' before turning it over to 
the Justice Department.\1111\
    Other aspects of the Justice Department's handling of the 
investigation have come under scrutiny. Of particular concern 
is that then-Attorney General Ashcroft was privately briefed on 
the FBI's interview of Karl Rove.\1112\ Mr. Ashcroft had 
personal and political connections to Mr. Rove: Mr. Rove was an 
adviser to Mr. Ashcroft during the latter's political campaigns 
for the U.S. Senate, for which he earned almost $750,000.\1113\ 
Mr. Rove was also instrumental in securing Mr. Ashcroft's 
appointment as Attorney General after Mr. Ashcroft lost his 
Senate seat.
    On December 30, 2003, Attorney General Ashcroft finally 
recused himself from the investigation. Then-Deputy Attorney 
General James Comey became the acting Attorney General with 
respect to the leak investigation. He appointed Patrick 
Fitzgerald, the Bush-appointed U.S. Attorney for the Northern 
District of Illinois, as a special counsel to lead the 
investigation.\1114\
    From the outset, though, Mr. Fitzgerald encountered 
numerous problems. Among them was the failure of senior White 
House officials to execute waivers so that reporters with whom 
they had spoken could submit to interviews and provide 
testimony without breaching their confidentiality 
obligations.\1115\ In a March 2005 court filing, Mr. Fitzgerald 
stated he could not close the matter because of New York Times 
reporter Judith Miller's inability to testify about 
conversations with senior White House officials.\1116\ Mr. 
Fitzgerald later noted that the failure to execute the waivers 
delayed the conclusion of the investigation (and the Libby 
indictment) by over a year.\1117\
    While the FBI was investigating the leak allegations, Press 
Secretary Scott McClellan was denying any wrongdoing by the 
President's aides. He insisted during a September 29, 2003, 
press conference that he had personally spoken with Karl Rove, 
and that Mr. Rove had denied any involvement in the leak. He 
also represented that the President ``kn[ew] that Karl Rove 
wasn't involved,'' but he did not say how the President knew, 
contenting himself with the observation that the allegations 
against Mr. Rove were ``ridiculous.'' \1118\
    Mr. McClellan reaffirmed Mr. Rove's innocence at an October 
7, 2003, press conference held soon after the Justice 
Department's investigation began. This time, though, Mr. 
McClellan ``categorically'' denied not only Mr. Rove's 
involvement in the leak, but also Mr. Libby's (just as he had 
privately done with reporters several days 
earlier).1119,}1120 Mr. McClellan later revealed 
during testimony before the House Judiciary Committee that the 
``President and Vice President directed me to go out there and 
exonerate Scooter Libby'' \1121\ and that ``the top White House 
officials who knew the truth--including Rove, Libby, and the 
Vice President--allowed [him], even encouraged [him], to repeat 
a lie.'' He also told the Committee that he ``regret[ed] the 
role he played in ``relaying false information.'' \1122\ 
Anticipating a promise that the President would soon make, Mr. 
McClellan also promised that any White House official found to 
have leaked classified information would be fired.\1123\ Mr. 
McClellan repeated the denials of White House involvement in 
the leak during an October 10 press conference.\1124\
    Mr. Rove also publicly denied his involvement in the leak. 
Asked by an ABC News reporter whether he leaked the name or 
identity of Ms. Wilson, Mr. Rove answered unequivocally ``no.'' 
\1125\ He gave this assurance even though several months 
earlier, just after news of the leak broke, he had told Chris 
Matthews of MSNBC's Hardball that Ambassador Wilson's wife was 
``fair game.''
    President Bush, for his part, responded to the 
investigation by promising to fire any leakers. On September 
30, 2003, when asked about Mr. Rove's involvement in the leak, 
the President declared: ``Listen, I know of nobody--I don't 
know of anybody in my Administration who leaked classified 
information . . . If somebody did leak classified information, 
I'd like to know it, and we'll take the appropriate action. And 
this investigation is a good thing.'' \1126\ The President was 
even more definitive during a June 10, 2004, exchange with the 
press when he answered the question, ``Do you stand by your 
pledge to fire anyone found to have done so,' '' with an 
unqualified ``yes.'' \1127\ On July 18, 2005, however, the 
President appeared to back off his earlier promises when, in 
response asked at a press conference, he promised to fire only 
any White House officials who had actually ``committed a 
crime.'' \1128\ The President's press secretary, Scott 
McClellan, would later acknowledge in testimony before the 
House Judiciary Committee that the President had ``changed the 
threshold'' for accountability among his aids.\1129\
            C.  The Libby Indictment and Trial: Evidence of a White 
                    House Leak
    On October 28, 2005, special counsel Fitzgerald held a 
press conference at which he announced that, although his 
investigation would continue, the grand jury convened to 
investigate the leak of Ms. Wilson's identity had returned a 
five-count indictment against Scooter Libby.\1130\ The 
indictment did not charge Mr. Libby with violating any laws 
governing the disclosure of Ms. Wilson's identity, but instead 
with obstructing the special counsel's investigation by lying 
both to FBI investigators (during interviews held in October 
and November of 2003) and to the grand jury convened to 
investigate the leak (during testimony given in March 
2004).\1131\
    A six-week trial was held during January and February of 
2007 in the U.S. District Court for the District of Columbia. 
On March 6, 2007, the jury found Mr. Libby guilty all but one 
of the counts set forth in the indictment, including the 
indictment's main count--obstruction of justice.\1132\ The 
trial evidence, though focused on the issue of obstruction of 
justice, necessarily revealed important facts about the 
circumstances under which Ms. Wilson's CIA identity was leaked. 
The evidence received into evidence at trial (including Mr. 
Libby's grand jury testimony) conclusively established the 
following facts.\1133\
    After Nicholas Kristof's New York Times article appeared in 
early May 2003, Vice President Cheney and Mr. Libby immediately 
began investigating the circumstances of Ambassador Wilson's 
Niger trip.\1134\ Five key events came to light at the trial:
    (i) Libby's Contacts with the Department of State.--May 29, 
2003. On May 29, 2003, Mr. Libby asked Marc Grossman, the 
Undersecretary of State for Political Affairs, for information 
about the travel of the unnamed retired ambassador referenced 
in the Kristoff New York Times article. That same day Mr. 
Grossman called Mr. Libby with information about the trip 
(which he had acquired from e-mails received from the Assistant 
Secretary of State for Intelligence and the Assistant Secretary 
of State for African Affairs). Mr. Grossman informed Mr. Libby 
that the former ambassador was Joseph F. Wilson and that he 
would report back upon concluding his investigation. He then 
commissioned an internal report.\1135\
    (ii) Mr. Libby's Communications with the Vice President--
June 11, 2003. On June 11, 2003, Mr. Libby and the Vice 
President spoke by phone in anticipation of a Washington Post 
article by reporter Walter Pincus--an article about which Mr. 
Pincus had contacted the Vice President's press office seeking 
comment and information. The Vice President dictated several 
talking points to share with Mr. Pincus. Chief among them was 
that the Vice President had not requested Ambassador Wilson's 
mission to Niger. It was during this conversation that Vice 
President informed Mr. Libby, as Mr. Libby's own notes clearly 
reveal, that Ambassador Wilson's wife, Valerie Plame Wilson, 
worked in the CIA's Counterproliferation Division.\1136\ (How 
Vice President Cheney learned of Ms. Wilson's identity has 
never been definitively established.\1137\ He may have learned 
it from, among others, CIA Director George Tenet.\1138\) Mr. 
Libby thereafter shared the talking points with Mr. Pincus 
prior to the publication of Mr. Pincus' June 12 article.\1139\
    (iii) Mr. Libby's Communications with the CIA--June 11, 
2003. On June 11, 2003, following his conversation with Vice 
President Cheney, Mr. Libby called Robert Grenier, Associate 
Deputy Director of Operations at the CIA. Mr. Libby told Mr. 
Grenier that Ambassador Wilson was telling people that he had 
been sent to Niger at the request of the Vice President. Mr. 
Libby asked Mr. Grenier whether the CIA had sent Ambassador 
Wilson to Niger and, if so, whether it was done in response to 
inquiries made by the Vice President about the Iraq-Niger 
nuclear weapons allegations. After consulting with the CIA's 
Counterproliferation Division, Mr. Grenier called Mr. Libby 
back that day. He informed Mr. Libby, among other things, that 
Ambassador Wilson's wife (whom Mr. Grenier did not identity by 
name) was a CIA employee in the Counterproliferation Division 
and played a role in sending him to Niger. Mr. Libby responded 
by asking Mr. Grenier if the CIA's Director of Public Affairs, 
William Harlow, would make public Mr. Grenier's finding that 
the Department of State and Defense were ``interested'' in 
Ambassador Wilson's trip. (Mr. Libby and the Vice President 
wanted the information relayed to the public before the 
publication of Mr. Pincus' forthcoming June 12 article to 
dispel the notion that the Vice President was behind the 
trip.\1140\) After consulting with Mr. Harlow, Mr. Grenier 
called back Mr. Libby and told him that the CIA could probably 
make that information public.\1141\
    (iv) The Vice President's and Mr. Libby's Communications 
with Cathie Martin of the Vice President's Staff--June 11, 
2003. Also on June 11, 2003, Cathie Martin, then Assistant to 
the Vice President for Public Affairs and later Director of 
Communications for Policy and Planning at the White House, 
spoke with Mr. Harlow by way of follow up to Mr. Libby's above-
referenced conversation with Mr. Grenier. She learned from Mr. 
Harlow that Ambassador Wilson's wife worked at the CIA. As soon 
as she received this information, she relayed it to both the 
Vice President and Mr. Libby during a meeting in the Vice 
President's office.\1142\
    (v) Mr. Grossman's Report to Mr. Libby--June 12, 2003. On 
June 10 or 11, 2003 (most likely the latter), Mr. Grossman 
received a memo dated June 10 from the State Department's 
Intelligence and Research Branch prepared in response to Mr. 
Libby's May 29 inquiry. The next day (probably June 12) Mr. 
Grossman reported to Mr. Libby on the memo's findings. After 
giving Mr. Libby background on Ambassador Wilson's trip, Mr. 
Grossman told him that ``there was one other thing that I 
thought he needed to know, which was that Mrs. Wilson, or that 
Joe Wilson's wife worked at the Agency'' (that is, the CIA). 
(As a matter of ``protocol,'' Mr. Grossman supplied a copy of 
the memo to Deputy Secretary of State Richard Armitage. He also 
told Secretary of State Colin Powell about his conversation 
with Mr. Libby.) \1143\ Two days later (June 14), Mr. Libby 
revealed Ms. Wilson's name to his CIA briefer, Craig Schmall, 
during his daily intelligence briefing.\1144\
    On June 23, 2003, Mr. Libby met with New York Times 
reporter Judith Miller.\1145\ According to Ms. Miller, Mr. 
Libby was ``agitated and frustrated,'' and ``angry'' with the 
CIA for the way it had handled the Niger matter. He explained 
that the Vice President had not sent Ambassador Wilson to 
Niger; the CIA had done so unbeknownst to the Vice President. 
During this conversation, Mr. Libby also informed Ms. Miller 
that Ambassador Wilson's wife worked at the CIA's ``non-
proliferation bureau.'' \1146\ This was the first known leak of 
Ms. Wilson's identity outside the Administration.
    By the time his July 6 op-ed appeared in The New York 
Times, Ambassador Wilson had become (in the words of Special 
Counsel Patrick Fitzgerald) an ``obsession'' for Mr. Libby, the 
Vice President, and other White House officials.\1147\ Mr. 
Libby himself admitted that he and the Vice President were 
``upset'' over the op-ed.\1148\ The Vice President clipped the 
article using a pen knife and, in his own hand, wrote the 
following rhetorical note consciously above its title: ``Have 
they [i.e., the CIA] done this sort of thing before. Send an 
ambassador to answer a question . . . Or did his wife send him 
on a junket.'' \1149\ Mr. Libby likewise clipped the article 
and underlined its key passages.\1150\
    Just a day after the op-ed appeared, Mr. Libby had lunch 
with White House Press Secretary Ari Fleischer. Mr. Fleischer 
informed Mr. Libby that he had been questioned by reporters 
about Ambassador Wilson's trip to Niger. Mr. Libby replied that 
the Vice President had not sent Ambassador Wilson on the trip; 
it was his wife who had. Mr. Libby then informed Mr. 
Fleischer--on the ``Q.T.,'' as Mr. Fleischer testified--that 
Ambassador Wilson's wife (whom Mr. Fleischer recalls Mr. Libby 
identifying by name) worked at the ``counter proliferation 
division'' of the CIA. Mr. Fleischer did not ask Mr. Libby 
whether Ms. Wilson's identity was covert or classified. 
Evidence introduced during the Libby trial strongly suggests 
that Mr. Libby shared this information with the hope that Mr. 
Fleischer would pass it along to White House reporters.\1151\
    Also on July 7, 2003, the Vice President's Special 
Assistant for Public Affairs, Cathie Martin, e-mailed Mr. 
Fleischer with talking points on the Niger trip personally 
dictated by the Vice President. The key talking point was again 
that the Vice President had not sent Ambassador Wilson on the 
trip. Mr. Fleischer repeated the talking points during his July 
7 press briefing.\1152\ The very next day, July 8, the Vice 
President dictated a revised set of talking points to Ms. 
Martin for dissemination to the press by Mr. Fleischer.\1153\ 
The revised talking points began with the following sentence: 
``It is not clear who authorized Joe Wilson's trip to Niger.'' 
\1154\ The addition of this talking point raises important 
questions, for it is undisputed that the Vice President knew 
(1) that the CIA had authorized the trip and (2) that, during 
his July 7 press briefing, Mr. Fleischer had so informed the 
press. Journalists have speculated that Vice President Cheney 
included the new July 8 talking point to lead ``reporters in 
the direction of asking about Plame.'' \1155\ An anonymous 
source who has apparently reviewed the confidential report of 
the FBI's interview with the Vice President has reported that 
the Vice President ``was at a loss to explain how the change of 
the talking points focusing attention on who specifically sent 
Wilson to Niger would not lead . . . to exposure'' of Ms. Plame 
Wilson's identity.\1156\
    While traveling with the President in Africa aboard Air 
Force One on July 11, 2003, Mr. Fleischer heard from yet 
another high-ranking White House official--this time White 
House Communications Director Dan Bartlet--that Ambassador 
Wilson was sent to Niger by his wife, a CIA employee, not the 
Vice President. (How exactly Mr. Bartlett knew was not revealed 
at trial; Mr. Fleischer indicated that Mr. Bartlett was reading 
off an unidentified document.) Soon thereafter Mr. Fleischer 
had informal conversations with three journalists traveling 
with the President in Africa--Tamara Lipper of Newsweek, David 
Gregory of NBC News, and John Dickerson of Time Magazine--about 
Ambassador Wilson's Niger trip. He informed them that the 
Ambassador's wife, a CIA employee, was responsible for sending 
him on the Niger trip.\1157\
    On July 12, 2003, Mr. Fleischer and Mr. Bartlett, while on 
board a return Air Force One flight from Africa, agreed to 
contact several reporters to address negative press surrounding 
the President's state-of-the-union claim of a Iraq-Niger 
uranium connection. Mr. Fleischer followed up by contacting, 
among others, Walter Pincus of The Washington Post. Mr. 
Fleischer did not recall at trial disclosing Ms. Wilson's 
identity to Mr. Pincus,\1158\ but Mr. Pincus testified with 
certainty that, in the context of disclaiming any involvement 
by the Vice President in arranging Ambassador Wilson's Niger 
trip, Mr. Fleischer did so. Mr. Pincus' contemporaneous notes 
reflect that Mr. Fleischer told him that ``Wilson's wife'' 
handled ``WMD'' (weapons of mass destruction).\1159\ Mr. Pincus 
added that it was Mr. Fleischer who brought up the subject; Mr. 
Pincus did not solicit the information.\1160\ As for Mr. 
Bartlett, it was not revealed at trial to whom, if anyone, he 
disclosed Ms. Wilson's identity.
    Mr. Libby, for his part, disclosed Ms. Wilson's identity to 
at least two reporters following the appearance of the Wilson 
op-ed on July 6, 2003--first to Judith Miller (for a second 
time) on July 8, 2003, and then to Matt Cooper of Time Magazine 
on July 11 or 12, 2003. As for Ms. Miller, Mr. Libby arranged 
the July 8 meeting with her at the Vice President's behest. 
(Mr. Libby also spoke with NBC News' Andrea Mitchell at the 
Vice President's behest to pass along the talking points he had 
drafted for Cathie Martin.\1161\) The main purpose of the 
meeting was for Mr. Libby to leak portions of the National 
Intelligence Estimate--which the President had declassified (a 
fact then known only to the President, the Vice President, and 
Mr. Libby)--in order to support the White House's position that 
the Administration's statements about the alleged Iraq-Niger 
connection had been well-founded.\1162\ The Vice President told 
Mr. Libby to ``get everything out'' during his meeting with Ms. 
Miller. (Mr. Libby denied during his grand jury testimony the 
Vice President's directive included leaking Ms. Wilson's CIA 
identity.\1163\) Mr. Libby and Ms. Miller spoke for two hours. 
Ms. Miller testified that Mr. Libby again told her (this time 
on ``deep background'') that Ms. Wilson worked for a CIA 
division he called ``WINPAC'' (Weapons Intelligence Non-
Proliferation and Arms Control). (Significantly, July 8 was the 
same date that, as noted above, the Vice President revised the 
press talking points for Cathie Martin so as to focus the 
press' attention on the question of who authorized Ambassador 
Wilson's trip.) Mr. Libby repeated the information during a 
follow-up telephone conversation with Ms. Miller.\1164\
    A revealing trial exhibit at least raises the possibility 
that the Vice President had directed Mr. Libby to leak Ms. 
Wilson's identity to Ms. Miller and reporters. It consists of 
notes the Vice President wrote to himself in the early fall of 
2003 when Mr. Libby was lobbying Press Secretary Scott 
McClellan to issue a statement, as Mr. McClellan had done for 
Mr. Rove, exonerating him from the accusations that White House 
officials had leaked Ms. Wilson's classified CIA identity. The 
Vice President noted the unfairness of Mr. Libby, alone among 
White House staffers, having been asked to ``stick his neck in 
the meat grinder'' after the Ambassador Wilson story broke and 
then having been denied the same support that Mr. Rove received 
from the White House Press Secretary.\1165\ Other testimony, 
noted below, is in accord.
    As for Mr. Cooper, Mr. Libby spoke to him four days later 
(July 12), also at the direction of the Vice President. The 
Libby-Cooper conversation occurred immediately after Mr. Libby 
conferred with the Vice President about how to deal with the 
press regarding Ambassador Wilson's claims about the Iraq-Niger 
matter.\1166\ (During an interview with the FBI, Mr. Libby 
conceded the possibility that, during their July 12 
conversation, the Vice President directed him to discuss Ms. 
Wilson's CIA affiliation with the press in order to counter 
Ambassador Wilson's claims. Here again, though, Mr. Libby 
attributed his knowledge about Ms. Wilson's identity to 
reporters.\1167\) Mr. Cooper testified that, during their July 
12 meeting, Mr. Libby confirmed for him what Mr. Cooper had 
already heard from another White House source the day before 
(July 11, 2003)--that Ambassador Wilson's trip was arranged by 
his wife, a CIA employee.\1168\ (Mr. Libby admitted during his 
grand jury testimony that he discussed Ms. Wilson with Mr. 
Cooper, although he attributed his knowledge of her identity 
entirely to other reporters.\1169\)
    Mr. Cooper's other White House source was none other than 
key presidential advisor (and later Deputy Chief of Staff) Karl 
Rove. It is not publicly known who told Mr. Rove that 
Ambassador Wilsons's wife worked at the CIA.\1170\ It is 
undisputed, however, that on July 11 Mr. Rove told Mr. Cooper 
that Ms. Wilson (whom he did not identify by name--only as 
Ambassador Wilson's wife) worked on weapons of mass destruction 
at the CIA and had arranged the 2002 Niger trip. At the end of 
their conversation, Mr. Rove told Mr. Cooper not to ``get too 
far out on Mr. Wilson.'' He also told Mr. Cooper that he had 
``already said too much.'' Mr. Cooper testified that, following 
his call with Mr. Rove, he perceived that a campaign to 
discredit Ambassador Wilson was afoot.\1171\
    Mr. Cooper was not the only reporter, though, to whom Mr. 
Rove disclosed Ms. Wilson's CIA employment during early July 
2003. Of more significance for obvious reasons, Mr. Rove also 
disclosed it to journalist Robert Novak--a subject that Mr. 
Rove and Mr. Libby privately discussed on July 10 or 11.\1172\ 
Mr. Novak testified that he first learned of Ms. Wilson's CIA 
employment from Deputy Secretary of State Richard Armitage. Mr. 
Rove independently confirmed that information.\1173\ Defending 
his public disclosure of Ms. Plame's name and CIA identity in 
his July 14 Chicago Sun Times column, Mr. Novak would later 
observe: ``I didn't dig it out, it was given to me [by 
Secretary Armitage and Mr. Rove] . . . They thought it was 
significant, they gave me the name and I used it.'' \1174\
            D.  Mr. Libby's Conviction, Sentence, and Presidential 
                    Grant of Clemency
    On March 6, 2007, after a six-week trial, a federal jury 
found Mr. Libby guilty of obstruction of justice, perjury, and 
related felony offenses arising from his late 2003 statements 
to FBI agents during two investigatory interviews conducted in 
late 2003 and his testimony before the grand jury convened to 
investigate the leak in early 2004. Special Counsel Patrick 
Fitzgerald observed in a post-trial court submission that ``Mr. 
Libby lied about nearly everything that mattered.'' \1175\ The 
following facts (which are drawn from the undisputed evidence 
introduced at trial and narrated so as to comport with the 
jury's verdict) underlay Mr. Libby's conviction. \1176\
    During the Justice Department's investigation, Mr. Libby 
told the FBI that, at the end of a conversation with Tim 
Russert of NBC News on July 10, 2003, Mr. Russert asked him if 
he ``was aware that Wilson's wife worked for the CIA.'' Mr. 
Libby responded by telling Mr. Russert that ``he did not know, 
and Russert replied that all the reporters knew.'' Mr. Libby 
further claimed that Mr. Russell's disclosure was news to him: 
He did not at the time recall that, just a few weeks earlier on 
June 12, 2003, the Vice President had told him that Ambassador 
Wilson's wife worked at the CIA. (Mr. Libby had no choice but 
to admit to the FBI that the Vice President had shared this 
information. The FBI had in its possession Mr. Libby's 
handwritten notes reflecting his conversation with the Vice 
President and the disclosure of Ms. Wilson's CIA employment.) 
Mr. Libby also told the FBI that ``he did not discuss Wilson's 
wife'' with New York Times reporter Judith Miller during their 
lengthy meeting on July 8, 2003.\1177\
    During his March 2004 testimony before the grand jury, Mr. 
Libby repeated in sum and substance the above statements about 
his conversation with Mr. Russert. He made several additional 
statements to similar effect. Among them was that, during 
conversations with other reporters during July 2003, Mr. Libby 
advised them that he had heard from reporters that Ms. Wilson 
worked at the CIA, but that he himself did not know whether Ms. 
Wilson worked there.\1178\
    As the undisputed facts establish, however, none of these 
statements were true. When Mr. Libby spoke with Mr. Russert and 
other reporters, he was ``well aware'' that Ms. Wilson worked 
at the CIA. To highlight only the key facts set forth in the 
preceding section: Mr. Libby was informed several times in 
early June 2003--that is, well before Ambassador Wilson 
published his July 6 op-ed in The New York Times and Mr. Novak 
published his July 14 article disclosing Ms. Wilson's 
identity--of Ms. Wilson's employment at the CIA: on June 11 by 
the Vice President himself; sometime in June by the Vice 
President's Assistant for Public Affairs, Cathie Martin; on 
June 11 by a CIA official; and on June 12 by an Undersecretary 
of State. He then had several conversations about the matter 
during June, including a June 14 conversation with his CIA 
briefer and, more importantly, a June 23 conversation with 
Judith Miller of The New York Times during which he disclosed 
Ms. Wilson's CIA affiliation (but not her name). Several key 
conversations predating his July 10 discussion with Mr. Russert 
followed in July: On July 7, Mr. Libby informed White House 
Press Secretary Ari Fleischer, and then on July 8 informed Ms. 
Miller for a second time, that Ms. Wilson worked at the CIA. On 
July 12, Mr. Libby had yet another conversation with Ms. Miller 
during which he discussed Ms. Wilson's employment at the CIA. 
He also had a conversation on July 8 with David Addington, the 
Vice President's counsel and himself a former CIA lawyer, about 
what internal paperwork would exist if a person whose spouse 
worked at the CIA had been sent on an overseas trip.\1179\
    As for Mr. Libby's key statements and testimony concerning 
his conversation with Mr. Russert on July 10, 2003, they were 
proved to be a complete fabrication. Mr. Russert and Mr. Libby 
did speak on July 10. But Mr. Russert neither asked Mr. Libby 
if he knew that Ambassador Wilson's wife worked at the CIA nor 
told Mr. Libby that all reporters knew it. In fact, they did 
not even discuss Ms. Wilson, let alone her employment at the 
CIA. The discussed only Mr. Libby's complaints about MSNBC's 
television coverage of the Vice President.\1180\
    On June 5, 2007, the U.S. District Court for the District 
of Columbia sentenced Mr. Libby to a prison term of 30 months 
to be followed by two years of supervised release and imposed a 
$250,000 fine. Mr. Libby asked the court to release him on bond 
pending the resolution of his then-pending appeal. The court 
denied his request, finding that Mr. Libby had not satisfied 
the statutory requirement for release pending appeal--namely, 
that his appeal ``raise[d] a substantial question of law or 
fact likely to result . . . in reversal'' \1181\ of his 
conviction.\1182\ On July 2, 2007, the U.S. Court of Appeals 
for the DC Circuit affirmed the district court's order.
    President Bush immediately responded by commuting Mr. 
Libby's prison sentence in its entirety. He left intact Mr. 
Libby's conviction, as well as the fine and supervised release. 
President Bush did not question Mr. Libby's guilt. To the 
contrary, he praised the special counsel's integrity, 
acknowledged that he ``respected'' the jury's verdict, and 
emphasized the importance of holding ``accountable'' high 
government officials who breached the public trust by perjuring 
themselves. (It has been reported that White House Counsel Fred 
Fielding privately told the President how overwhelming the 
evidence was against Mr. Libby.) President Bush cited as the 
sole basis for granting clemency his determination that Mr. 
Libby's 30-month prison sentence was ``excessive.'' He pointed 
out that, despite the sentence commutation, Mr. Libby remained 
subject to a ``harsh punishment'' in the form of a fine and 
supervised release. The President also noted in this regard 
that the ``reputation'' Mr. Libby had ``gained through his 
years of public service and professional work in the legal 
community'' would be ``forever damaged'' and that the 
``consequences of his felony conviction on his former life as a 
lawyer, public servant, and private citizen will be long-
lasting.'' \1183\
    During a press conference held the next day, White House 
Press Secretary Tony Snow (who had replaced Mr. McClellan) 
reiterated that the basis of the President's clemency decision 
was the excessiveness of Mr. Libby's sentence. (Mr. Snow added 
in a USA Today op ed published the next day that the President 
sought to ``rectify an excessive punishment.'' \1184\) Mr. 
Snow, though, refused to answer several important questions 
about the President's decision, including whether the President 
had consulted with Vice President Cheney. Mr. Snow even refused 
to disclose whether the President had consulted with any 
Justice Department officials.\1185\ He did acknowledge, 
however, that the President had not consulted the U.S. Pardon 
Attorney,\1186\ whose recommendations presidents ``usually'' 
seek before making clemency decisions.\1187\
            E. Committee Actions

The Leak

    The special counsel's investigation and the Libby trial 
confirmed and, in some cases revealed to the public for the 
first time, important facts about the circumstances of the 
Valerie Plame Wilson leak. But other key facts eluded the 
special counsel as a result of Scooter Libby's lies to the FBI 
and grand jury . As the special counsel explained at a press 
conference announcing the indictment, Mr. Libby's lies 
prevented him from answering with sufficient certainty to 
justify criminal charges such critical questions as what White 
House officials knew about Ms. Wilson's classified status when 
they leaked her identity, what motivated them to do so, and 
whether they acted with the requisite criminal intent. He also 
explained, both during this press conference and during his 
closing argument during the trial, that Mr. Libby's lies had 
left a ``cloud'' over the Vice President's office.\1188\ The 
special counsel declined to say whether he thought a crime was 
committed--insisting that he could comment only within the 
``four corners of the indictment''--and declined the House 
Committee on Oversight and Government Reform's subsequent 
request to be interviewed.\1189\
    Both the House Judiciary Committee and the House Oversight 
Committee sought answers to the questions left unanswered by 
the Libby trial. Beginning in 2007, after the Democratic party 
regained control of the House,\1190\ both committees made 
repeated letter requests of the Administration to disclose one 
key category of documents that might well answers those 
questions: reports of FBI interviews of President Bush, Vice 
President Cheney, and key White House officials alleged to have 
participated in the leak.\1191\
    Citing ``confidentiality interests,'' the White House 
responded by allowing the Oversight Committee staff to review 
only redacted versions of the reports of interviews with White 
House officials (though it initially declined to allow the 
House Judiciary Committee staff even that inadequate access, 
relenting only in the face of a Committee subpoena),\1192\ and 
it refused altogether to allow any access to the reports of the 
interviews with President Bush and Vice President Cheney. That 
left the committees with no choice but to serve subpoenas on 
Attorney General Mukasey--the Oversight Committee on June 16, 
2008, and the Judiciary Committee on June 27, 2008--compelling 
the production of the reports.\1193\
    Again citing ``confidentiality interests,'' the Attorney 
General refused to comply with the subpoenas. The Oversight 
Committee responded by informing Attorney General Mukasey that, 
on July 16, 2008, it would meet to consider a resolution 
holding him in contempt if he did not produce the subpoenaed 
documents (except for the report of President Bush's interview, 
which the Committee was willing to forego if the subpoenas were 
otherwise honored) or the President did not raise a valid claim 
of executive privilege by that date.\1194\ The Attorney General 
responded on July 16, 2008, by raising an unprecedented and 
belated claim of executive privilege on the President's 
behalf.\1195\ The dispute between Congress and the Bush 
Administration remains unresolved.\1196\
    As for President Bush and Vice President Cheney, the 
redacted portions of FBI interviews with high-ranking White 
House officials raised ``significant questions'' about their 
involvement in the leak.\1197\ A letter from House Oversight 
and Government Reform Committee Chairman Waxman to the Attorney 
General noted that, in ``his interview with the FBI, Mr. Libby 
stated that it was `possible' that Vice President Cheney 
instructed him to disseminate information about Ambassador 
Wilson's wife to the press.'' \1198\

The White House's Response to the Leak

    On March 16, 2007, the House Oversight and Government 
Reform Committee held a hearing to address, among other things, 
whether the Administration took ``the appropriate investigative 
and disciplinary steps'' following the public disclosure of Ms. 
Wilson's CIA identity in July 2003.\1199\ Much of the hearing 
focused on the Administration's apparent failure to comply with 
Executive Order 12958,\1200\ which ``prescribes a uniform 
system for classifying, safeguarding, and declassifying 
national security information,'' \1201\ and the ``Classified 
Information Nondisclosure Agreement,'' \1202\ which all Bush 
Administration officials who leaked Ms. Wilson's identity 
signed at the outset of their employment.\1203\ The Committee 
heard from two witnesses on these questions: James Knodell, 
Chief Security Office for the Office of Security and Emergency 
Preparedness, Office of Administration, Executive Office of the 
President, and William Leonard, Director, Information Security 
Oversight Office, National Archives and Records Administration.
    During the March 16 hearing, the Oversight Committee 
established that Executive Order 12958 requires administration 
officials who learn that classified information has been 
compromised--whether intentionally or unintentionally--to 
report promptly whatever they know to the White House Office of 
Security and Emergency Preparedness. That office must then 
conduct an investigation and, upon finding that any classified 
information was disclosed to an unauthorized person, must take 
necessary corrective action, which may include rescinding the 
security clearance of any official found to have been 
responsible for the disclosure.\1204\ Of equal importance, 
Executive Order 12958 requires that executive-branch officials 
who disclose classified information to unauthorized 
recipients--whether the disclosure is made ``knowingly, 
willfully, or negligently''--be ``subject to appropriate 
sanctions.'' Sanctions include ``reprimand, suspension . . . 
removal . . . [and] loss or denial of access to classified 
information.'' \1205\
    As for the ``Classified Information Nondisclosure 
Agreement'' (which Executive Order 12958 requires White House 
employees to sign), it requires the signatory to comply with 
Executive Order 12958 and other specifically designated laws 
prohibiting the disclosure of classified information (including 
the above-noted Intelligence Identities Protection Act); (ii) 
prohibits the signatory from divulging classified information 
``to anyone'' not authorized to receive it; (iii) requires the 
signatory, whenever he or she is in doubt about the 
classification status of information, to confirm that it is not 
classified before disclosing it and to ``verify'' that anyone 
to whom he or she discloses classified information is 
authorized to receive it; (iv) informs the signatory of the 
damage to national security that may attend the unauthorized 
disclosure of classified information; and (v) warns him or her 
that breach of the agreement (whether or not intentional) may 
result in disciplinary action, including the rescission of any 
security clearances he holds and the termination of his 
employment.\1206\ Signatories to the agreement acknowledge, 
upon signing it, they have ``received a security 
indoctrination'' on its contents.\1207\ All of the White House 
officials involved in the Plame Wilson leak investigation 
signed the agreement.
    Mr. Knodell confirmed that all signatories to 
``Nondisclosure Agreement'' have an ``affirmative 
responsibility, . . . if there is any question in their mind as 
to the true classification status of information they are 
provided, . . . to seek clarification before the disclosure.'' 
\1208\ (They also have a responsibility to disclose its 
classified status to any authorized recipient.\1209\) That 
obligation appears not only in the agreement but also in an 
accompanying briefing booklet that signatories receive.\1210\ A 
closely related obligation appearing in the booklet (which is 
of particular relevance to Karl Rove's disclosure to Mr. Novak) 
is that a signatory may not confirm classified information 
obtained by a reporter without first ``confirm[ing] through an 
unauthorized official that the information . . . has been 
declassified.'' \1211\
    Principally through Mr. Knodell's testimony, the Committee 
on Oversight and Government Reform established three important, 
undisputed facts. First, no White House official (including 
Karl Rove) reported the public disclosure of Ms. Wilson's 
classified identity to the White House Office of Security and 
Emergency Preparedness. Second, neither that office nor any 
other office within the White House conducted any investigation 
into the leak--including how Karl Rove learned of Ms. Wilson's 
covert CIA identity--let alone a prompt investigation as 
required by the executive order. (The only executive-branch 
investigation was special counsel Patrick Fitzgerald's criminal 
investigation, and that did not begin until months after the 
public disclosure of Ms. Plame's identity.) Neither the 
President nor the Vice President or any White House official 
even broached the subject of an investigation. And third, no 
White House official was disciplined for failing to report the 
leak of Ms. Wilson's classified CIA identity or for actually 
leaking her identity--even following the Libby trial, which 
conclusively proved the leak of the information. None even had 
his security clearance rescinded or restricted.\1212\
    A year after the Oversight Committee hearing, the Judiciary 
Committee held a hearing during which it heard from former 
White House Press Secretary Scott McClellan about his September 
and October 2003 statements to the press that neither Karl Rove 
nor Scooter Libby played any role in leaking Ms. Wilson's 
covert CIA identity. Most revealing was Mr. McClellan's 
testimony that, after he made an unequivocal public statement 
exonerating Mr. Rove, Mr. Libby asked Mr. McClellan to issue an 
exonerating statement for him too. Mr. McClellan initially 
refused. Several days later, after a successful lobbying 
campaign by Mr. Libby, White House Chief of Staff Andrew Card 
directed Mr. McClellan to issue a statement exonerating Mr. 
Libby. (That Mr. Libby lobbied the Vice President for such a 
statement is confirmed by a set of proposed talking points he 
prepared for the Vice President and Mr. Libby's own grand jury 
testimony.\1213\ Mr. Libby's own testimony also confirms that 
he did not disclose to Mr. McClellan the numerous conversation 
he had with reporters during which Ms. Wilson's identity was 
discussed.\1214\) Mr. McClellan told the Committee that Mr. 
Card admitted that he was acting at the direction of the 
President and Vice President.\1215\ (A handwritten note from 
Vice President Cheney to himself introduced during the Libby 
trial and referenced at this hearing confirms Mr. McClellan's 
testimony. It says that the press office ``has to . . . call 
out to key press saying same thing about Scooter as Karl.'' 
\1216\) Though reluctant to issue a statement exonerating Mr. 
Libby given that the criminal investigation was then underway, 
Mr. McClellan called Mr. Libby and asked him if had been 
involved in the leak. Mr. Libby ``assured'' him in 
``unequivocal terms that he was not.'' Mr. McClellan then 
contacted reporters and issued a statement exonerating Mr. 
Libby.\1217\

The President's Grant of Clemency

    On July 17, 2008, the Judiciary Committee held a hearing on 
the Libby commutation to address why the President commuted Mr. 
Libby's prison sentence and whether the President misused his 
clemency power.\1218\ Several weeks before the hearing, the 
Committee asked the President to provide relevant documents and 
allow White House officials involved in the commutation 
decision to testify. (The press had reported that the President 
had given the Libby situation an unusually high degree of his 
personal attention.\1219\) The Committee asked the President to 
follow the example of President Ford, who testified about his 
pardon of President Nixon, and later President Clinton, who 
allowed his aides to testify about several of his controversial 
end-of-term pardons by declining to invoke executive privilege 
and honoring the Committee's request for information.\1220\ 
President Bush refused to do so. In a letter from White House 
Counsel Fred Fielding to the Committee, the President even 
questioned the Committee's authority to hold an oversight 
hearing.\1221\
    Without access to the relevant documentation or the 
testimony of the President's key aides, the Committee was 
unable to learn why the President commuted Mr. Libby's prison 
sentence.\1222\ But the evidence the Committee did receive at 
least raised question as to whether the cited reason--i.e., the 
``excessiveness'' of the Mr. Libby's sentence--was the real 
reason that underlay the President's decision. As one expert 
witness testified, the ``President's stated reasons for 
commuting all of Mr. Libby's prison [term] are hard to 
understand and even harder to justify.'' \1223\
    Expert testimony offered at the hearing established that, 
by any objective measure, Mr. Libby's 30-month prison sentence 
was not excessive and, as one expert testified, may even have 
been ``merciful.'' \1224\ The statue under which Mr. Libby was 
properly sentenced allowed the district court judge,\1225\ in 
the exercise of his discretion, to impose a prison term as long 
as 25 years, and required the judge to consider the sentencing 
range set forth in the federal guidelines established by the 
U.S. Sentencing Commission. Those guidelines provided for a 
sentencing range of 30 to 37 months in Mr. Libby's case.\1226\ 
The 30-month prison term to which the judge sentenced Mr. Libby 
was thus at the very ``bottom of the sentencing range suggested 
by'' the guidelines.\1227\ A sentence even at the top of the 
range would have been considered ``presumptively reasonable'' 
under the Supreme Court's decision in Rita v. United 
States,\1228\ which was handed down just days before the 
President announced the Libby clemency decision.\1229\ In fact, 
one expert informed the Committee that, despite ``thousands'' 
of appeals, ``no federal appellate court has declared a single 
within-guideline sentence to be unreasonably long.'' He added 
that, ``[a]gainst this legal backdrop, the President's 
conclusion that Mr. Libby's prison term was `excessive' is 
curious, to say the least.'' \1230\
    As for Mr. Libby's government service, which President Bush 
suggested might be a mitigating factor justifying a prison term 
shorter than 30 months, the expert witnesses from whom the 
Committee heard testified that it provided no grounds for 
downward departure from the sentencing guidelines. They pointed 
to the Supreme Court's holding in Rita that a within-guidelines 
sentence is presumptively reasonable no matter the defendant's 
record of public service. In Rita, the Court affirmed a lower 
court's ruling that no downward departure was warranted for 
white-collar defendant convicted of perjury despite his 25 
years of decorated military service (and, on top of that, his 
ailing health).\1231\ The Bush Administration of course argued 
in favor of the reasonableness of the sentence in Rita.\1232\
    A still more compelling reason to question Mr. Bush's cited 
reason for his grant of clemency, though, is that he commuted 
Mr. Libby's sentence altogether rather than reducing it (as he 
was certainly authorized to in the exercise of his 
constitutional clemency power). As one expert witness testified 
at the hearing, ``Even if one accepts the President's assertion 
that a 30-month prison term for Mr. Libby was excessive, it is 
hard to justify or understand the President's decision to 
commute Mr. Libby's prison sentence in its entirety.'' \1233\
    Witnesses at the hearing pointed to several other reasons 
to question President Bush's explanation. They included:
     President Bush did not follow the usual procedures 
governing the exercise of presidential clemency power. He did 
not, in particular, consult with the U.S. Pardon Attorney. 
Nearly all clemency requests are first considered by that 
office, which reviews them in accordance with Department of 
Justice regulations and guidelines.\1234\
     The exercise of the clemency power in Mr. Libby's 
case was unusual to say the least. As the Pardon Attorney 
testified, ``a commutation of sentence is an extraordinary form 
of clemency that is rarely granted.'' None of the factors that 
might justify a sentence commutation under the Justice 
Department's own internal pardon manual--including a physical 
disability or ``unrewarded cooperation with the government''--
was present in Mr. Libby's case.\1235\
     Sentence commutations are usually only granted 
after a convicted defendant has served a substantial period of 
time in prison. Inmates are not even eligible to apply for a 
commutation under the Justice Department guidelines until they 
have first reported to prison.\1236\ Mr. Libby had served no 
time in prison when the President commuted his sentence.
     President Bush himself stated that the crimes of 
which Mr. Libby were convicted were serious felonies for which 
Mr. Libby had to be held accountable.\1237\ The decision to 
spare Mr. Libby even a single day in prison runs counter to the 
President's statement.
     President Bush has granted fewer pardons than any 
president in recent history (just as he granted comparatively 
few pardons while serving as Governor of Texas).\1238\ One 
reporter has characterized the President as being ``stingy'' 
when it comes to pardons.\1239\ He has been stingier still with 
respect to sentence commutations. At the time of the hearing, 
the President had granted only three commutations during his 
entire presidency.\1240\ The President's commutation of Mr. 
Libby's prison sentence, before Mr. Libby had served even a 
single day of his 30-month prison sentence, ran counter to the 
President's past practice.
     The Bush Administration has consistently argued 
that white collar offenders should receive no sentencing 
leniency and urged courts to sentence white collar offenders 
within federal sentencing guidelines.\1241\ President Bush's 
grant of clemency to Mr. Libby was inconsistent with his own 
Administration's position.
    If the President did not commute Mr. Libby's prison 
sentence because he believed it to be excessive, then why did 
he do so? The President's refusal to honor the Committee's 
request for documents and testimony prevented the Committee 
from answering that question.
    There are, however, a number of possible answers. One 
possibility, of course, is that the President's commutation 
decision was a simple act of loyalty as a reward for Mr. 
Libby's service. But at least three more unsettling 
possibilities surfaced at the hearing:
    First, the President may have delivered on an agreement to 
spare Mr. Libby jail time if, at trial, he declined to 
implicate Vice President Cheney and White House officials in 
the leak of Ms. Wilson's identity. That possibility is 
suggested by, among other things, Mr. Libby's refusal to 
testify at his trial despite his lawyer's emphatic statement to 
the jury at the outset of the trial that Mr. Libby would 
testify and claim that Mr. Libby had been scapegoated to 
protect Mr. Rove.\1242\ Was Mr. Libby reminding the President 
that his silence came at a price? One witness suggested that 
the promise of testimony was a ``shot across the bow.'' \1243\
    Second, the President may have sought to prevent Mr. Libby 
from cooperating with investigators following his conviction. 
The commutation of Mr. Libby's prison sentence deprived 
investigators of the ability to offer Mr. Libby a meaningful 
incentive--namely, a reduced prison term--in exchange for 
cooperating with the investigation.\1244\
    And third, the President may have sought to prevent 
Congress from uncovering the facts underlying the Plame Wilson 
leak. At the time the President granted clemency to Mr. Libby, 
the House Committee on Oversight and Government Reform was 
investigating the leak of Ms. Plame's identity. The decision to 
commute Mr. Libby's prison sentence rather than pardon him 
outright while Mr. Libby's appeal was pending left Mr. Libby 
free to invoke the Fifth Amendment in response to a 
congressional inquiry.\1245\

          II. Retaliation Against Other Administration Critics

    The leak of Valerie Plame Wilson's covert identity was the 
most notable, serious, and troubling act of retribution 
undertaken by the Bush Administration against its critics, but 
it was by no means the only one. Journalists, congressional 
committees, and inspectors general have compiled a long list of 
others who suffered much the same fate at the hands of the Bush 
Administration. In The Constitution in Crisis, Chairman Conyers 
and the Democratic staff of the House Judiciary Committee 
provided numerous examples of retribution against 
critics.\1246\ The following examples highlighted in The 
Constitution in Crisis remain of particular concern:

Military Officers--Including Former General Eric Shinseki

    Former General Eric Shinseki, Chief of Staff of the United 
States Army, was punished and undermined for contradicting 
Donald Rumsfeld's pre-war assessment of troop needs in Iraq. In 
February 2003, General Shinseki presciently testified before 
the Senate Armed Services Committee that the Defense 
Department's troop estimate for occupying Iraq was too low and 
that ``something on the order of several hundred thousand 
soldiers'' would be needed. He further stated, ``We're talking 
about post-hostilities control over a piece of geography that's 
fairly significant, with the kinds of ethnic tensions that 
could lead to other problems.'' \1247\ He continued: ``It takes 
a significant ground force presence to maintain a safe and 
secure environment, to ensure that people are fed, that water 
is distributed, all the normal responsibilities that go along 
with administering a situation like this.'' \1248\
    This, however, was very different from what the Defense 
Department had been telling Congress and the American public, 
as it had put the figure for occupation troop needs closer to 
100,000 troops. Deputy Defense Secretary Paul Wolfowitz called 
General Shinseki's estimate ``wildly off the mark'' and Defense 
Secretary Rumsfeld, similarly stated that ``[t]he idea that it 
would take several hundred thousand U.S. forces I think is far 
off the mark.'' \1249\ It was also reported that in a semi-
private meeting, the Pentagon's civilian leadership told the 
Village Voice newspaper that General Shinseki's remark was 
``bullshit from a Clintonite enamored of using the army for 
peacekeeping and not winning wars.'' \1250\
    General Shinseki refused to back down from his honest--and, 
ultimately correct--estimate. A spokesman for the General, Col. 
Joe Curtin, stated, ``He was asked a question and he responded 
with his best military judgment.'' \1251\ And, in another 
congressional hearing, General Shinseki stated that the number 
``could be as high as several hundred thousand. . . . We all 
hope it is something less.'' \1252\
    In the aftermath of these comments, Defense Department 
officials leaked the name of Shinseki's replacement 14 months 
before his retirement, rendering him a lame duck commander and 
``embarrassing and neutralizing the Army's top officer.'' 
\1253\ As one person who engaged in high-level planning for 
both wars said, ``There was absolutely no debate in the normal 
sense. There are only six or eight of them who make the 
decisions, and they only talk to each other. And if you 
disagree with them in public, they'll come after you, the way 
they did with Shinseki.'' \1254\ General Shinseki ``dared to 
say publicly that several hundred thousand troops would be 
needed to occupy Iraq [and] was ridiculed by the administration 
and his career was brought to a close.'' \1255\

Former Treasury Secretary Paul O'Neill and Economic Advisor Lawrence 
        Lindsey

    Former Secretary of Treasury Paul O'Neill was punished 
twice by the Administration, once for opposing President Bush's 
tax policy, for which he was forced to resign in January 
2003,\1256\ and later for providing a first hand account of the 
Administration's decision-making process in the lead up to the 
Iraq War. In ``The Price of Loyalty,'' written by former Wall 
Street Journal reporter Ron Suskind, Mr. O'Neill recounts how 
the Administration was discussing plans for going to war in 
Iraq well before the September 11 attacks. He stated that Iraq 
was discussed at the first National Security Council meeting 
after President Bush was inaugurated in January 2001. ``From 
the very beginning, there was a conviction that Saddam Hussein 
was a bad person and that he needed to go,'' Mr. O'Neill told 
60 Minutes.\1257\ The only task was ``finding a way to do it.'' 
\1258\ He also stated that he never saw any credible 
intelligence indicating that Saddam Hussein had weapons of mass 
destruction.\1259\
    Before the book was published, Donald Rumsfeld called 
Secretary O'Neill and tried to persuade his longtime friend not 
to go through with the project. Rumsfeld labeled it a ``sour 
grapes'' book.\1260\ But when Mr. O'Neill went through with the 
book, the Administration sought to discredit him by launching 
an investigation into his use of classified documents and 
whether he shared them with 60 Minutes in his interviews.\1261\ 
As Paul Krugman of the New York Times pointed out, the 
Administration ``opened an investigation into how a picture of 
a possibly classified document appeared during Mr. O'Neill's TV 
interview. This alacrity stands in sharp contrast with their 
evident lack of concern when a senior Administration official, 
still unknown, blew the cover of a CIA operative because her 
husband had revealed some politically inconvenient facts.'' 
\1262\
    The investigation did not uncover any improprieties.\1263\ 
The Treasury Department's inspector general reported that 
although Mr. O'Neill received the classified material after his 
resignation, the lapse was the fault of the Department, not Mr. 
O'Neill.\1264\
    The Administration also sought to minimize Mr. O'Neill's 
role as a high-level official and painted him to be completely 
out of step with reality. As one writer observed, ``O'Neill's 
revelations have not been met by any factual rebuttal. Instead, 
they have been greeted with anonymous character assassination 
from a `senior official': `Nobody listened to him when he was 
in office. Why should anybody now?' '' \1265\
    The Administration also went after former senior White 
House economic adviser Larry Lindsey. Mr. Lindsey angered the 
White House in September 2002 when he made a prescient 
prediction that a war with Iraq would cost between $100 billion 
and $200 billion, an estimate Administration officials at the 
time insisted was too high. In December 2002, the White House 
requested Mr. Lindsey resign from his post.\1266\ Mr. Lindsey's 
estimate, of course, has proved to be on the far low side. As 
Frank Rich wrote, ``Lawrence Lindsey, the President's chief 
economic adviser, was pushed out after he accurately projected 
the cost of the Iraq War.'' \1267\

Counter-terrorism Czar Richard Clarke

    The Administration personally attacked Richard Clarke, the 
former counter-terrorism czar, for publishing a book in which 
he recounted how the Bush Administration was fixated on 
invading Iraq. Mr. Clarke's book, Against All Enemies: Inside 
the White House's War on Terror--What Really Happened, was 
published in March of 2004. Mr. Clarke, who worked for both 
Democratic and Republican administrations and helped shape U.S. 
policy on terrorism under President Reagan, the first President 
Bush, and President Clinton, suggests in his book that 
President George W. Bush was overly fixated on Saddam Hussein 
and Iraq. Mr. Clarke stated that President Bush's top aides 
wanted to use the terrorist attacks of 9/11 as an excuse to 
remove Saddam from power.\1268\ In an interview with CBS, Mr. 
Clarke recalled: ``Rumsfeld was saying we needed to bomb Iraq . 
. . We all said, `but no, no, al-Qaeda is in Afghanistan.' '' 
\1269\ Mr. Rumsfeld responded: ``There aren't any good targets 
in Afghanistan. And there are lots of good targets in Iraq.'' 
\1270\
    Mr. Clarke also stated that his team substantively examined 
whether there was a connection between Iraq and the 9/11 
attacks. ``We got together all the FBI experts, all the CIA 
experts. We wrote the report. We sent the report out to CIA and 
found FBI and said, `Will you sign this report?' They all 
cleared the report. And we sent it up to the President and it 
got bounced by the National Security Advisory or Deputy. It got 
bounced and sent back saying, `Wrong answer . . . Do it again.' 
'' \1271\
    The Bush Administration went into attack mode in an attempt 
to discredit and smear Mr. Clarke. Dan Bartlett, White House 
communications director, dismissed Mr. Clarke's accounts as 
``politically motivated,'' ``reckless,'' and ``baseless.'' 
\1272\ Scott McClellan, President Bush's spokesman, portrayed 
Mr. Clarke as a disgruntled former employee: ``Mr. Clarke has 
been out there talking about what title he had . . . He wanted 
to be the deputy secretary of the Homeland Security Department 
after it was created. The fact of the matter is, just a few 
months after that, he left the Administration. He did not get 
that position. Someone else was appointed.'' \1273\ Even 
Republican Majority Leader Bill Frist went after Mr. Clarke, 
saying ``In his appearance before the 9/11 commission, Mr. 
Clarke's theatrical apology on behalf of the nation was not his 
right, his privilege or his responsibility. In my view it was 
not an act of humility, but an act of supreme arrogance and 
manipulation.'' \1274\
    The Bush Administration's smear campaign against Mr. Clarke 
was widely discussed. As Joe Conason, a political commentator 
and journalist, stated, ``[A]dministration officials have been 
bombarding him with personal calumny and abuse. They have 
called him an embittered job-seeker, a publicity-seeking 
author, a fabricator, a Democratic partisan and, perhaps worst 
of all, a friend of a friend of John Kerry. The 
Administration's attacks were seriously questioned by those who 
were aware of Mr. Clarke's qualifications. One journalist 
described the White House's attacks as ``desperate'' because 
``for the first time since the September 11 attacks, 
[President] Bush's greatest accomplishments have been credibly 
recast as his greatest failures.'' \1275\

Army Corps of Engineers Chief Contracting Office Bunnatine Greenhouse

    Bunnatine Greenhouse was the chief contracting officer at 
the Army Corps of Engineers, the agency that has managed much 
of the reconstruction work in Iraq. In October 2004, Ms. 
Greenhouse came forward and revealed that top Pentagon 
officials showed improper favoritism to Haliburton when 
awarding military contracts to Haliburton subsidiary Kellogg 
Brown & Root (KBR).\1276\ Mr. Greenhouse stated that when the 
Pentagon awarded Haliburton a five-year $7 billion contract, it 
pressured her to withdraw her objections, actions which she 
claimed were unprecedented in her experience.\1277\
    In June 27, 2005, Ms. Greenhouse testified before Congress, 
detailing that the contract award process was compromised by 
improper influence by political appointees, participation by 
Haliburton officials in meetings where bidding requirements 
were discussed, and a lack of competition.\1278\ She stated 
that the Haliburton contracts represented the ``most blatant 
and improper contract abuse I have witnessed during the course 
of my professional career.'' \1279\ Days before the hearing, 
the acting general counsel of the Army Corps of Engineers had 
reportedly let Ms. Greenhouse know that it would not be in her 
best interest to appear voluntarily.\1280\
    On August 27, 2005, the Bush Administration demoted Ms. 
Greenhouse, removing her from the elite Senior Executive 
Service and transferring her to a lesser job in the corps' 
civil works division. As Frank Rich of the New York Times 
described the situation, ``[h]er crime was not obstructing 
justice but pursuing it by vehemently questioning 
irregularities in the awarding of some $7 billion worth of no-
bid contracts in Iraq to the Haliburton subsidiary Kellogg 
Brown & Root. ``They went after her to destroy her.'' \1281\

                             III. Findings


The Leak of Valerie Plame Wilson's Covert CIA Identity

    1. In June and July of 2003, White House officials, likely 
acting in concert, leaked Valerie Plame Wilson's classified 
covert CIA identity, thereby ruining Ms. Wilson's CIA career, 
endangering the lives of covert agents working overseas, and 
setting back intelligence efforts involving the proliferation 
of weapons of mass destruction.
     As of July 14, 2003, Valerie Plame Wilson was a 
covert agent of the CIA whose identity was classified under 
Executive Order 12958.\1282\ Ms. Wilson was also a ``covert 
agent'' under the Intelligence Identities Protection Act.\1283\
     At least three White House officials--the Vice 
President's Chief of Staff Scooter Libby, the White House Press 
Secretary Ari Fleischer, and presidential adviser (and later 
Deputy White House Chief of Staff) Karl Rove--leaked Ms. 
Wilson's identity to at least seven different journalists: 
Walter Pincus of The Washington Post, David Gregory of NBC 
News, John Dickerson of Time Magazine, Judith Miller of The New 
York Times, Matt Cooper of Time Magazine, Robert Novak of The 
Chicago Sun Times, and Bob Woodward of The Washington Post) 
during 2003.\1284\
     Another administration official, Deputy Secretary 
of State Richard Armitage, leaked Ms. Wilson's identity to Bob 
Woodward of The Washington Post and Robert Novak of The Chicago 
Sun Times.\1285\
     The disclosures may well have been coordinated 
among White House officials.\1286\
     Soon after the leaks, Ms. Wilson's name and CIA 
affiliation appeared in the press. Her CIA cover was blown and 
her CIA career over. The disclosure likely hindered U.S. 
intelligence efforts and endangered the lives of covert CIA 
agents working overseas.\1287\
    2. Vice President Cheney himself may have directed or 
participated in the leak. Several undisputed facts at least 
raise a strong inference that the Vice President did so.
     Well before Ms. Wilson's identity was leaked, the 
Vice President informed Mr. Libby that Ambassador ``Wilson's 
wife'' worked for the CIA.\1288\
     That June 12, 2003, disclosure occurred in the 
context of discussions with Mr. Libby about how to respond to 
press inquiries about Ambassador Wilson.\1289\
     The Vice President specifically directed Mr. Libby 
to meet with reporter Judith Miller on July 8, 2003, to rebut 
the allegations set forth in Ambassador Wilson's op-ed in The 
New York Times. It was during this meeting that Mr. Libby 
disclosed that Ms. Wilson worked at the CIA.\1290\
     A redacted report of the FBI's interview with Mr. 
Libby reflects that Mr. Libby told the FBI that ``it was 
`possible' that Vice President Cheney instructed him to 
disseminate information about Ambassador Wilson's wife to the 
press.'' \1291\ And a journalist has recently reported that the 
confidential report of the FBI's interview with Vice President 
Cheney suggests that the Vice President in fact did so.\1292\
     A handwritten note by the Vice President 
introduced into evidence includes a notation that Mr. Libby had 
been sent ``into the meat grinder'' \1293\ to repair the damage 
from the Niger story.
    3. The leak of Ms. Wilson's covert identity was 
impermissibly motivated, contravened executive-branch rules 
governing classified information, and may even have violated 
criminal laws governing classified information.
     Karl Rove, Scooter Libby, and Ari Fleischer appear 
to have leaked Ms. Wilson's identity for the purpose of 
discrediting Ambassador Wilson following his July 6, 2003, op-
ed criticizing the Administration's handling of intelligence 
during the runup to the 2003 invasion of Iraq. They may also 
have been motivated by animus toward Ambassador Wilson for 
criticizing the executive privilege.\1294\
     The Administration officials who leaked Ms. 
Wilson's covert CIA identity appear to have violated both 
Executive Order 12958 and the companion terms of the 
``Classified Non-Disclosure Agreement'' that each of them 
signed.\1295\ Executive Order 12958 prohibits any ``knowing, 
willful, or negligent action that could reasonably be expected 
to result in an unauthorized disclosure of classified 
information.'' \1296\ The publicly available evidence creates a 
strong inference that Karl Rove and Scooter Libby actually knew 
that Ms. Wilson's identity was classified.\1297\ If they did 
not know, they should have inquired about Ms. Wilson's status 
before leaking her identity.\1298\ After all, they knew Ms. 
Wilson to be a CIA employee who worked in the 
Counterproliferation Division.
     These White House officials may also have violated 
criminal laws governing the disclosure of classified 
information. Chief among them is the Intelligence Identities 
Protection Act, which prohibits the intentional disclosure of 
classified information that identifies a ``covert agent,'' if 
the disclosing party knows ``that the information disclosed so 
identifies such covert agent . . .'' and ``that the United 
States is taking measures to conceal such covert agent's'' 
status.\1299\ Whether they violated the Act turns principally 
on whether, at the time of the leaks, they knew that Ms. Wilson 
was a covert agent within the meaning of this statutory 
language, what they intended when they disclosed her identity, 
and whether they acted in concert.\1300\ The public record does 
not permit a any definitive findings with respect to those 
questions.\1301\
    4. Numerous improper actions by the President, the Vice 
President and senior White House officials prevented the public 
from learning the full truth about the leak of Ms. Wilson's 
covert identity.
     White House and senior administration officials 
failed to conduct any investigation into the circumstances of 
the leak, as required by Executive Order 12958, delayed the 
appointment of a special counsel, and failed to cooperate 
adequately with the special counsel's investigation.\1302\
     The President stymied the investigation of both 
the House Judiciary Committee and the House Oversight Committee 
by refusing to turn over unredacted versions of copies of FBI 
reports of interviews with the senior Administration officials, 
and refused altogether the committees' requests for the 
interviews of the President and Vice President.\1303\
     The Vice President's Chief of Staff, Scooter 
Libby, obstructed the Justice Department's investigation into 
the leak of Ms. Wilson's identity. One juror reported that he 
and his fellow jurors believed Mr. Libby did so to protect the 
Vice President.\1304\ Whatever Mr. Libby's motivation, his 
obstruction prevented Special Counsel Fitzgerald from making a 
``confident determination of what in fact occurred'' \1305\--in 
particular, whether any White House official or the Vice 
President violated any criminal laws, including the above-cited 
Intelligence Identities Protection Act.\1306\ Special Counsel 
Patrick Fitzgerald has likened himself to an umpire who has 
sand thrown in his eyes.\1307\
     Several White House officials made false and 
misleading statements to the public about their role in leaking 
Ms. Wilson's identity. Among them was Karl Rove, who stated 
that he was not involved in the leak. Conclusive evidence 
establishes that Karl Rove leaked Ms. Wilson's identity to 
Robert Novak.\1308\
     Andrew Card, acting at the behest of both the 
President and Vice President, directed White House Press 
Secretary Scott McClellan to issue a public statement 
exonerating Scooter Libby (as he had earlier done for Mr. 
Rove), despite his reluctance to do so given the pendency of 
the Justice Department's criminal investigation.\1309\ 
Questions have been raised whether, in so directing Mr. 
McClellan, Mr. Card, the President, and the Vice President 
obstructed justice.\1310\
     The grant of clemency to Mr. Libby may have 
deprived him of any incentive to cooperate with 
investigators.\1311\
    5. The President's failure to honor his promise to fire any 
leakers, his grant of clemency to Mr. Libby, and his statements 
about the reasons for the grant of clemency raise serious 
questions about the propriety of the President's own conduct 
during the aftermath of the leak.
     President Bush broke his promise to fire anyone in 
his administration who leaked Ms. Wilson's covert CIA identity. 
The public record shows the President twice promised in non 
uncertain terms to fire any leakers.\1312\ But on July 18, 
2005, when it became clear that Karl Rove and other officials 
were involved in the leak, the President changed course and 
raised the accountability bar by declaring that he would fire 
only leakers found to have violated criminal laws. None of the 
leakers was ever fired; none was ever disciplined; and none had 
his security clearance rescinded. Contrary to Executive Order 
12958, the President failed even to direct an investigation 
into the leak.\1313\
     President Bush commuted Mr. Libby's prison 
sentence even though Mr. Libby criminally obstructed justice 
during the special counsel's investigation into the leak, 
thereby preventing the grand jury from determining whether a 
crime had been committed. President Bush's grant of clemency 
remains subject to the widely leveled criticism that it flouted 
the rule of law and reflected the President's unwillingness to 
hold Administration officials accountable for violating the 
law, even with respect to a matter as important as national 
security and the safety of U.S. intelligence agents.\1314\
     President Bush may have misled the public when he 
cited as the reason for the grant of clemency to Mr. Libby the 
``excessiveness'' of Mr. Libby's sentence. Mr. Libby's sentence 
was not excessive under the Federal Sentencing Guidelines that 
governed the sentence; even if the President believed it to be 
excessive, he would presumably have reduced rather than 
eliminated it.\1315\ The Judiciary Committee was unable to 
determine President's Bush's actual motivation for commuting 
Mr. Libby's sentence, because the President stonewalled the 
Committee's request for information.\1316\
Section 5--Government in the Shadows: Executive Privilege, Secrecy, and 
                    the Manipulation of Intelligence

    Executive secrecy is one of the monarchical customs . . . 
certainly fatal to republican government.\1317\--John Taylor, 
An Inquiry Into the Principles and Policy of the Government of 
the United States (1814)

    The Bush Administration's cloak of secrecy has been 
interwoven with many of the abuses of executive power recounted 
in other sections of this Report. This section of the Report 
considers the Bush Administration's claims of executive 
privilege; withholding of necessary documents and testimony 
from Congress without formal executive privilege assertions; 
use of the state secrets privilege, the president's 
classification authority, and narrow construction of the 
Freedom of Information Act. By any measure, this Administration 
has been extraordinarily secretive. In his first year of office 
alone, President Bush ``delayed the release of presidential 
papers from the Reagan White House, imposed limits on public 
access to government documents, refused to share revised data 
from the 2000 Census, and shielded decades-old FBI records from 
scrutiny. Advisers even declined to disclose the brand of 
pretzel that Bush choked on.'' \1318\
    Criticism of the Bush Administration's secrecy has come 
from across the political spectrum, including would-be allies 
in Congress and conservative advocacy groups like Judicial 
Watch. Larry Klayman, former chairman of Judicial Watch, has 
compared the current Administration to an ``Old-World style of 
government, where the sovereign is considered to be elite and 
the people are considered to be the rabble, and they have 
little to no right to know what the government is doing.'' 
\1319\
    A simple change in administration does not rectify all past 
harms when some of these expansions of Executive Branch secrecy 
have been institutionalized. Steven Aftergood, Director of the 
Project on Government Secrecy at the Federation of American 
Scientists, points out that, ``[o]nce a precedent is set and an 
administration not sufficiently rebuked, this kind of secrecy 
becomes a permanent option.'' \1320\
    In examining the Bush Administration's penchant for 
secrecy, the Iraq War merits particular attention. Beginning 
shortly after the terrorist attacks on September 11, 2001, the 
Bush Administration built a case before Congress and the 
American public for pre-emptive war against Iraq. 
Investigations by the Judiciary Committee's Democratic Staff, 
the Senate Intelligence Committee, the House Oversight and 
Government Reform Committee, and various news agencies 
subsequently revealed that the Administration had taken the 
use, misuse, and tailoring of intelligence information to 
unprecedented lengths in order to bolster support for the war. 
The Administration also tried to silence its critics through 
selective declassification of intelligence assessments and 
reports by congressional committees.\1321\ As Senator Bob 
Graham wrote in 2003, ``[t]he recent scandal over the Bush 
Administration's manipulation of intelligence data leading up 
to the war in Iraq is a glaring example of why our government 
should be open and honest with the American people.'' \1322\

                         I. Executive Privilege

            A. Formal Assertions of Executive Privilege
    ``Executive privilege'' is an assertion made by the 
president of the United States as grounds for refusing to 
produce information or documents, or for witnesses refusing to 
answer questions, in response to a request or subpoena. The 
concept of ``executive privilege'' is not mentioned in the 
Constitution, but is grounded in the separation of powers 
doctrine. Past presidents have argued that executive privilege 
is necessary to ensure frank and candid information exchange in 
the Executive Branch, and have generally used it to protect 
conversations and information provided to or from the president 
or, in some very limited circumstances, top presidential 
advisers.

Pushing the Boundaries Early On

    Signs of President Bush's broad interpretation of executive 
privilege appeared shortly after he first took office, 
beginning with two assertions of executive privilege blocking 
requests for Clinton-era documents. The first came in early 
2001, when the conservative non-profit Judicial Watch submitted 
Freedom of Information Act (FOIA) requests to the Department of 
Justice for documents related to pardon applications considered 
by President Clinton. The Justice Department withheld 
approximately 4,300 pages of responsive documents, claiming 
that they were exempt from production under the presidential 
communications and deliberative process privileges.\1323\ 
Judicial Watch filed a lawsuit to obtain the documents and, on 
appeal, the court rebuked the Bush Administration's attempt to 
expand the presidential communications privilege to documents 
that were not ``solicited and received'' by the 
president.\1324\
    Shortly after the Judicial Watch case began, then-Chairman 
of the House Committee on Government Reform Dan Burton issued a 
subpoena to the Justice Department for memoranda relating to 
the Committee's investigation of corruption allegations at the 
FBI's Boston field office. The Administration resisted the 
subpoena, and, as characterized by Chairman Burton, ``explained 
to the Chairman and Committee staff that the Administration 
wished to establish an inflexible policy to withhold from 
Congress all deliberative prosecutorial documents.'' \1325\ In 
December 2001, President Bush invoked executive privilege and 
directed Attorney General John Ashcroft not to produce the 
subpoenaed documents. Although the dispute was eventually 
resolved and the documents handed over to the Committee, the 
Committee report on the matter records that ``it was clear that 
the Administration sought to establish a new restrictive policy 
regarding prosecutorial documents and that no demonstration of 
need by the Committee would be sufficient for the Justice 
Department to produce the documents.'' \1326\

FBI's Valerie Plame Leak Investigation

    In early 2007, the House Oversight and Government Reform 
Committee opened an investigation into the leak of covert CIA 
agent Valerie Plame Wilson's identity by White House 
officials.\1327\ The Committee began with a hearing on March 
16, 2007, at which it heard testimony from Ms. Wilson and White 
House Security Office Director James Knodell. Mr. Knodell 
testified that his office never conducted an investigation into 
the leak of Ms. Wilson's identity, due to the ongoing criminal 
investigation; that senior White House officials had failed to 
report their knowledge of the leak, as required by Executive 
Order 12958; and that there were no administrative sanctions 
for White House officials as a result of the leak.\1328\ On 
July 16, 2007, Chairman Henry Waxman wrote to Special Counsel 
Patrick Fitzgerald and requested documents from his 
investigation into the leak, including reports from FBI 
interviews of the President and Vice President.\1329\ Mr. 
Fitzgerald produced many of the requested documents but, at the 
request of the White House, withheld records of interviews of 
White House officials.\1330\ Chairman Waxman appealed to the 
Attorney General for an ``independent judgment'' to produce the 
documents and, following months of negotiations, the request 
was fulfilled in part.\1331\
    Despite negotiations and repeated requests by Chairman 
Waxman, however, the Justice Department continued its refusal 
to produce the interview reports of the President and Vice 
President. On June 16, 2008, the Oversight Committee issued a 
subpoena to Attorney General Mukasey for those interview 
records. The return date was set for June 23, 2008.\1332\ In 
response, the Justice Department wrote to the Committee on June 
24, 2008, that it would not provide the subpoenaed documents 
and mentioned the possible executive privilege implications in 
the matter.\1333\ Chairman Waxman wrote to the Attorney General 
on July 8, 2008, informing him that the Committee would refrain 
from seeking the records of the President's interview for the 
time, but reiterating the request for the Vice President's 
interview report and informing him that the Committee would 
meet on July 16 to consider citing the Attorney General with 
contempt unless the documents were produced or a valid 
assertion of privilege was made.\1334\
    On July 16, 2008, the Department of Justice informed the 
House Oversight and Government Reform Committee that, at the 
Attorney General's request, the President had asserted 
executive privilege in response to that Committee's subpoena 
for documents related to the FBI's investigation of the 
leak.\1335\ Enclosed with the letter was a legal opinion 
written by Attorney General Mukasey for the President, arguing 
that the content of the subpoenaed documents fell ``squarely 
within the presidential communications and deliberative process 
components of executive privilege,'' and further contending 
that because the documents sought were from law enforcement 
files, the ``law enforcement component of executive privilege'' 
also applied.\1336\ Chairman Waxman's request for a privilege 
log describing the withheld documents was also refused.\1337\
    In report approved by Oversight and Government Reform 
Committee Chairman Waxman and former Ranking Member Tom Davis 
``agreed that the President's assertion of executive privilege 
over [the report of the FBI interview with the Vice President] 
was legally unprecedented and an inappropriate use of executive 
privilege.'' \1338\ The Chairman and Ranking Member explained 
that the ``Vice President had no reasonable expectation of 
confidentiality regarding the statements he made to Mr. 
Fitzgerald and the FBI agents,'' \1339\ and that the 
presidential communications privilege that has been carved out 
by the courts does not cover summaries of conversations 
provided to third parties.\1340\ They further rejected the 
President's privilege claims on the basis that there is ``no 
precedent in which executive privilege has been asserted over 
communications between a vice president and his staff about 
vice presidential decision-making,'' \1341\ pointing out the 
apparent inconsistency between the privilege claim at hand and 
the argument of David Addington, the Vice President's Chief of 
Staff, that ``the Vice President belongs neither to the 
executive nor the legislative branch.'' \1342\
    The Bush Administration's invocation of the presidential 
communications component of executive privilege was far from 
surprising given the consistency with which it has defended the 
broad application of the privilege. However, it was Attorney 
General Mukasey's argument for the application of a ``law 
enforcement component of executive privilege'' that took legal 
scholars by surprise. Peter Shane, an expert on executive 
privilege at Ohio State University Moritz College of Law, 
called the claim ``utterly unprecedented,'' and one that he had 
never heard of before.\1343\ Mark Rozell, executive privilege 
expert at George Mason University, called the Administration's 
claim ``an argument to protect the White House's own political 
interests and save it from embarrassment.'' \1344\ The 
Committee's bipartisan report refuted the notion of a law 
enforcement executive privilege claim, noting that the Attorney 
General did not cite any judicial decision recognizing it, and 
that the Department's opinion memoranda that he cited applied 
only to open investigations, not the Special Counsel's closed 
case.\1345\

EPA Investigation

    In 2005, California requested that the Environmental 
Protection Agency (EPA) waive federal standards for greenhouse 
gas emission standards for cars on the grounds that its own 
state standards were more stringent.\1346\ Section 209(b) of 
the Clean Air Act requires the EPA to waive federal preemption 
of California motor vehicle emissions standards if California's 
standards are, in aggregate, as protective of public health and 
welfare as federal standards.\1347\ After a nearly two-year 
delay, the EPA rejected the request. The House Oversight and 
Government Reform Committee began investigating allegations of 
political interference in the waiver decision in late 2007 and, 
through interviews with EPA staff and Associate Deputy 
Administrator Jason Burnett, learned that EPA career staff had 
unanimously communicated to the Administrator on multiple 
occasions that the waiver should be granted.\1348\ The 
Committee also learned that EPA Administrator Stephen Johnson 
was interested in granting the waiver until he communicated 
with the White House regarding the decision.\1349\
    In early 2008, the Bush Administration was separately 
accused of improperly pressuring the Environmental Protection 
Agency to weaken certain proposed regulations affecting smog 
and greenhouse gas levels. The Clean Air Act established a 
Clean Air Scientific Advisory Committee to advise the EPA 
Administrator on setting national ambient air quality standards 
(measured by levels of ozone in the atmosphere). The Advisory 
Committee and EPA career staff recommended amending the 
standards to more stringent levels, a recommendation echoed in 
the draft final rule submitted by EPA Administrator Johnson to 
the White House Office of Management and Budget (OMB) on 
February 22, 2008.\1350\ On March 11, 2008, just hours before 
the final rule was to be released, EPA staff learned that the 
rule was to be rewritten to implement a less stringent 
standard.\1351\ The next day, Susan Dudley, Administrator of 
the Office of Information and Regulatory Affairs at OMB, 
explained in a letter to EPA Administrator Johnson that the 
President had reviewed the proposed standards and concluded 
that the less stringent standard should be adopted.\1352\
    On March 14, 2008, Chairman Waxman of the House Oversight 
and Government Reform Committee wrote to Administrators Johnson 
and Dudley to request documents relating to the ozone standards 
decision.\1353\ Although some documents were produced, the EPA 
and OMB withheld many of the documents responsive to Chairman 
Waxman's requests. On April 9 and May 5, 2008, Chairman Waxman 
issued subpoenas to EPA Administrator Johnson for the 
outstanding documents related to EPA communications with the 
White House in both cases.\1354\ Chairman Waxman also issued a 
subpoena to Susan Dudley for OMB documents related to the ozone 
standards regulation decision.\1355\ Because the EPA and OMB 
continued to withhold the majority of documents responsive to 
the subpoenas, the Oversight and Government Reform Committee 
scheduled a vote to hold Administrators Dudley and Johnson in 
contempt of Congress for June 20, 2008. The day of the 
scheduled vote, Chairman Waxman received letters from the EPA 
and OMB informing him that President Bush had asserted 
executive privilege over the disputed documents and the vote 
was cancelled so the Committee could review the privilege 
claims.\1356\
    The June 20 letters asserting privilege both included a 
June 19, 2008, letter from Attorney General Michael Mukasey to 
the President regarding the basis for asserting executive 
privilege with respect to the Committee's investigations, 
arguing that the documents ``implicate both the presidential 
communications and deliberative process components of executive 
privilege.'' \1357\ Upon review of the Attorney General's 
analysis, the Committee rejected the privilege claims:

          The President's assertion of executive privilege . . 
        . is expansive. It covers any communications that 
        occurred within the White House, no matter how 
        attenuated the connection between the staff authoring 
        the communications and the presidential decisionmaking 
        process. At the same time, the Administration has 
        barred a key EPA official from responding to Committee 
        questions about these communications and has refused to 
        provide the Committee basic information about the 
        authorship and distribution of the documents that would 
        enable the Committee to assess the merits of the 
        privilege claim and whether further accommodations 
        could be achieved. The assertion of executive privilege 
        under these circumstances has stymied the Committee's 
        investigation of the waiver and ozone decisions.
          For these reasons, the Committee finds that the 
        President's assertion of executive privilege is wrong 
        and an abuse of the privilege.\1358\

On October 23, 2008, the House Oversight and Government Reform 
approved by voice vote a report rejecting the President's 
privilege claims. No additional documents were produced by 
either the EPA or OMB in response to the subpoenas.

Investigation Into the U.S. Attorney Firings by the House and Senate 
        Judiciary Committees

    The most arguably protracted fight over executive privilege 
during the Bush Administration has stemmed from the House and 
Senate Judiciary Committees' struggle to enforce subpoenas 
issued in the course of investigations into the U.S. Attorneys 
firings controversy that began in early 2007.\1359\
    Before the Committees had even issued subpoenas, the 
President and other Administration officials made statements 
suggesting that executive privilege would be invoked in 
response to congressional requests for documents or 
testimony.\1360\ In response, the House Judiciary Committee's 
Commercial and Administrative Law Subcommittee held a hearing 
on March 29, 2007, titled ``Ensuring Executive Branch 
Accountability.'' The Subcommittee examined executive privilege 
claims in the context of the U.S. Attorneys firings controversy 
and related issues. The discussion among the Subcommittee 
members and witnesses explored the contours of executive 
privilege and its potential use to block congressional inquiry, 
specifically as related to the appearance of presidential 
advisors for testimony before Congress.
    During the hearing, Representative Hank Johnson (D-GA) 
asked what factors should be taken into account in balancing 
executive privilege against congressional oversight functions. 
Panelist Beth Nolan, former White House Counsel to President 
Clinton, responded as follows:

          First of all, I would like to say that no court has 
        ever addressed this claim that former presidents have 
        made, and this president seems to be making, that White 
        House advisors are immune from being called to testify. 
        There is no judicial decision on that. The judicial 
        decisions we do have say that executive privilege 
        involves balancing. . . . We have seen that courts may 
        look, for instance, in a case such as this where I 
        think there is no question that Congress has oversight 
        authority with respect to these matters, then is 
        Congress able to obtain the information in another way. 
        That would be one question that you might look 
        to.\1361\

Subcommittee Chair Sanchez asked the panelists if Congress 
needed to establish a likelihood of wrongdoing in the case of 
the U.S. Attorney firings in order to overcome an assertion of 
the presidential communications privilege, or if ``an 
indication of inefficiency or maladministration'' would be 
sufficient.\1362\ Panelist Beth Nolan responded as follows:

          I certainly think so. If you have something that 
        looks like obstruction of justice, an attempt to 
        interfere with individual cases for reasons that really 
        should be outside the authority of officials to do, 
        then I think that is exactly the kind of thing. You are 
        talking then about issues, whether they are criminal 
        obstruction of justice or whether it is simply 
        questions about the administration of justice, 
        impartial execution of prosecutorial discretion, 
        questions that really go to the heart of the rule of 
        law and our criminal justice system, then I would say 
        that not only does Congress have the right to receive 
        information relevant to that, but it has a 
        responsibility. That is what the American people look 
        to Congress to do.'' \1363\

    As previously stated, despite numerous attempts to reach a 
compromise with the Administration and secure the voluntary 
production of the needed documents and testimony, the Committee 
was forced to issue subpoenas to former White House Counsel 
Harriet Miers and White House Chief of Staff and custodian of 
records Josh Bolten on June 13, 2007. On the same day, the 
Senate Judiciary Committee also issued subpoenas for the White 
House documents as well as documents and testimony from Sara 
Taylor, former Deputy Assistant to the President and Director 
of Political Affairs. On June 28, 2007, White House Counsel 
Fred Fielding wrote to Chairmen Conyers and Leahy, informing 
them that the President had decided to exert executive 
privilege with respect to the subpoenaed White House documents 
and had likewise directed Ms. Miers and Ms. Taylor not to 
produce any documents.\1364\ The Committee later learned that 
the White House also directed Ms. Miers not to appear or 
testify before the House Judiciary Committee.
    In the face of intransigence on the part of Administration 
officials to comply with the subpoenas as noted in Section 1, 
the full House passed the Judiciary Committee's resolution to 
hold Harriet Miers and Josh Bolten in contempt of Congress on 
February 14, 2008, as well as a resolution authorizing the 
Judiciary Committee to file a lawsuit to obtain the subpoenaed 
documents and testimony. As the Committee explained in its 
report on the Miers-Bolten contempt resolution, the 
Administration's expansive claims of executive privilege were 
rejected on four grounds:
    (i) The privilege was not properly asserted because, 
despite requests from Chairman Conyers, there was never a 
directive personally signed by the President asserting 
executive privilege. In past privilege cases, the courts have 
stated that a personal assertion by the president is legally 
required and this principle has been recognized in previous 
House contempt proceedings.\1365\
    (ii) The courts had previously held that a party asserting 
executive privilege in response to a subpoena for documents 
must produce a privilege log describing each document being 
withheld. Despite requests by Chairman Conyers that the White 
House produce a privilege log in an effort to reach a 
compromise in the matter, no such log was ever produced.\1366\
    (iii) The presidential communications privilege--the 
specific form of executive privilege that covers communications 
by the president or his immediate advisors--did not apply to 
the information requested by the Committee. Although one court 
of appeals has extended executive privilege with respect to 
communications to or from some White House staff ``in the 
course of preparing advice for the president'' for a decision 
to be made by the president,\1367\ the White House itself has 
maintained that President Bush never received any advice on, 
and was not himself involved in, the U.S. Attorney 
firings.\1368\
    (iv) The compelling need of the House of Representatives to 
obtain the subpoenaed documents and testimony greatly 
outweighed the claims of executive privilege.
    The White House's claims of executive privilege and 
immunity from subpoena were met with similar disagreement from 
legal scholars and editorial boards. Constitutional lawyer and 
former Reagan Justice Department appointee Bruce Fein wrote, 
``President Bush's assertion of executive privilege to stymie 
the committee's well-founded investigations is wildly 
misplaced.'' \1369\ Another expert on constitutional law, 
Professor Erwin Chemerinsky of Duke University School of Law, 
wrote to Chairman Conyers:

          From a constitutional perspective, the claims of 
        executive privilege are not sufficient to overcome 
        Congress's constitutional responsibility to conduct 
        meaningful oversight and to consider possible federal 
        legislation. Simply put, this is a situation where the 
        claim of executive privilege is weak and the need for 
        congressional access to the information is 
        strong.\1370\

In an editorial published on November 16, 2007, after the 
Committee had filed its report recommending that Harriet Miers 
and Josh Bolten be held in contempt but before the full House 
voted on the contempt resolutions, The New York Times 
cautioned:

          The Bush Administration's days are numbered. But the 
        damage it has done to the balance of powers could be 
        long-lasting. If Congress wants to maintain its 
        Constitutional role, it needs to stand up for itself. A 
        good place to start is by making clear that its 
        legitimate investigative authority cannot be defied, 
        and any who choose to do so will pay a heavy 
        price.\1371\

    Following the House's passage of the contempt resolutions, 
Speaker of the House Nancy Pelosi referred the citations to the 
U.S. Attorney for the District of Columbia, ``whose duty,'' 
according to the statute that provides for the prosecution of 
contempt of Congress citations, ``it shall be to bring the 
matter before the grand jury for its action.'' \1372\ On 
February 29, 2008, Attorney General Michael Mukasey responded 
to Speaker Pelosi that, ``the Department has concluded that the 
non-compliance by Mr. Bolten and Ms. Miers with the Judiciary 
Committee subpoenas did not constitute a crime, and therefore 
the Department will not bring the congressional contempt 
citations before a grand jury or take any other action to 
prosecute Mr. Bolten or Ms. Miers.'' \1373\
    In response to the Justice Department's refusal to enforce 
the contempt citations, the Committee filed a civil action in 
the District of Columbia federal district court seeking a 
ruling that the Administration's theories of executive 
privilege were legally unsound and the enforcement of the 
Committee's subpoenas. As stated in Section 1, Judge John Bates 
granted the Committee's motion for partial summary judgement, 
ruling that the White House's claims that Harriet Miers was 
immune from the congressional subpoena were invalid, and that 
the Administration owed the Committee a detailed listing of the 
documents being withheld.\1374\ Although Judge Bates was not 
asked to rule on the White House's executive privilege claims, 
he did order the Administration to produce a detailed listing 
of the documents being withheld.\1375\ The Administration 
appealed the ruling, however, and the matter is now pending 
before the U.S. Court of Appeals for the District of Columbia. 
The Administration also successfully petitioned the appellate 
court for a stay of Judge Bates' ruling pending the appeal, and 
as of the date of this Report, the White House has still not 
produced any documents in response to the Committee's subpoena 
and Harriet Miers has not testified.\1376\
    In its final days in office, after the Committee issued 
renewed subpoenas regarding the U.S. Attorney matter, the 
Administration carried its extreme notions of privilege even 
further, sending letters to both Karl Rove and Harriet Miers 
once again purporting to direct them not to appear or testify 
on the U.S. Attorney matter.\1377\ Apparently, President Bush 
hoped to control the matter even after he had left office, and 
without any consideration of the views of the new President 
regarding the privilege and testimonial immunity questions, 
prompting one legal scholar to call the President's actions 
``unprecedented'' and ``an attempt to give [Mr. Rove] a `get-
out-of-contempt-free card.' '' \1378\
    As discussed in Section 1 of this Report, the Judiciary 
Committee's investigation into the U.S. Attorney firings led to 
an investigation of allegations of politically selective 
prosecutions.\1379\ On May 22, 2008, the Committee subpoenaed 
former White House adviser Karl Rove to question him about 
allegations that he pressured the Justice Department to 
prosecute former Alabama Governor Don Siegelman and the broader 
U.S. Attorneys controversy. On July 9, 2008, the day before Mr. 
Rove was scheduled to appear before the Commercial and 
Administrative Law Subcommittee, his attorney Robert Luskin 
informed Chairman Conyers that Mr. Rove would not comply with 
the subpoena, pursuant to a direction from the President.\1380\ 
In a letter to Mr. Luskin, also sent on July 9, White House 
Counsel Fred Fielding wrote that the White House had ``been 
advised by the Department of Justice . . . that a present or 
former immediate adviser to the President is constitutionally 
immune from compelled congressional testimony about matters 
that arose during his or her tenure as a presidential aide and 
relate to his or her official duties.'' \1381\ The White House 
argued that forcing the President to testify before Congress 
would violate the Executive Branch's status as co-equal to 
Congress and the separation of powers--essentially that the 
President's executive privilege protects him from any 
congressional subpoena. The White House further claimed that a 
president's advisers are an extension of the president 
himself--his ``alter ego''--and that therefore forcing a close 
presidential adviser to testify would also violate separation 
of powers principles.\1382\
    The Subcommittee on Commercial and Administrative Law met 
on July 10, 2008, and considered Karl Rove's claim of executive 
privilege-related immunity. Subcommittee Chair Sanchez ruled 
that the claims were invalid because they were not properly 
asserted; because no court has ever held that presidential 
advisers are immune from compulsory process in any setting; 
because the claims contradicted the practice of the Bush 
Administration and other administrations of allowing 
presidential advisers to testify before Congress; because Mr. 
Rove had spoken publicly about the matters the Committee wished 
to discuss with him; and because the White House had previously 
stated that the President had no personal involvement in the 
matter, a critical element in a valid assertion of executive 
privilege.\1383\ The Subcommittee upheld the ruling by a vote 
of 7-1. On July 30, 2008, the Committee voted 20-14 to approve 
a report recommending that Karl Rove be cited for contempt of 
Congress by the full House of Representatives. The Committee 
filed its report on September 15, 2008.
            B.  Withholding Documents or Testimony Without Formally 
                    Asserting Executive Privilege
    Throughout the two terms of President George W. Bush, the 
Administration has on numerous occasions used threats of 
executive privilege or made public statements implying that 
some facet of executive privilege might apply, in order to 
stifle requests for information.
    One of the Bush Administration's earliest applications of 
the principles underlying executive privilege without a formal 
privilege assertion can be found in Vice President Cheney's 
refusal to comply with a request by the General Accounting 
Office (GAO) for information related to the National Energy 
Policy Development Group (NEPDG), consisting of high-level 
federal officials led by Vice President Cheney, which was 
charged with recommending a proposal for a national energy 
policy.\1384\ Democrats in Congress were critical of the policy 
the group developed--worried that it simply called for 
increased drilling for oil and coal while ignoring the need for 
renewable energy sources--and also of the secrecy surrounding 
the NEPDG's deliberative process.\1385\ On April 19, 2001, 
Reps. John Dingell and Henry Waxman, then-Ranking Members of 
the House Energy and Commerce and Government Reform Committees, 
respectively, asked the GAO to study the NEPDG; specifically, 
they wanted to know the extent to which the group consulted 
with representatives of energy corporations.\1386\
    The Vice President's office repeatedly denied attempts by 
GAO to access information related to the NEPDG, despite 
numerous attempts at accommodation by the GAO General Counsel 
and Comptroller General.\1387\ On February 22, 2002, the GAO 
``reluctantly'' filed suit against Vice President Cheney, 
noting that it was ``the first time that GAO [had] filed suit 
against a federal official in connection with a records access 
issue.'' \1388\ The district court dismissed the case on 
procedural grounds on December 9, 2002.\1389\
    Although the GAO did not appeal the District Court's 
dismissal, the non-profit groups Sierra Club, Inc. and Judicial 
Watch filed suit against Vice President Cheney to obtain 
information related to the NEPDG meetings. The case eventually 
made its way to the Supreme Court as Cheney v. U.S. District 
Court. As former Massachusetts Special Assistant Attorney 
General Joan Lukey wrote in The Washington Post:

          Throughout the Cheney litigation, the Administration 
        took the novel position that it would not assert 
        ``executive privilege'' as grounds for withholding the 
        information . . . Instead, the White House insisted on 
        relying on the somewhat amorphous (some might even say 
        squishy) notion that the task force documents were 
        protected because the vice president was operating 
        pursuant to his ``executive powers.'' The 
        Administration therefore took the position that if it 
        did not assert executive privilege and the vice 
        president was carrying out the duties conferred on the 
        executive by the Constitution, the documents relating 
        to those duties did not have to be turned over--and the 
        courts did not have the right to review that 
        decision.\1390\

    After sending the case back to the appellate court, the 
Supreme Court advised the lower court to be ``mindful of the 
burdens imposed on the executive branch in any future 
proceedings,'' thereby implicitly rejecting the Bush 
Administration's contention that the Vice President's 
activities should not be subject to pretrial discovery at 
all.\1391\ Eventually, the appellate court concluded that 
because sub-groups of the NEPDG were not advisory committees 
subject to the Federal Advisory Committee Act, the Vice 
President did not have to disclose information concerning the 
identities of the energy lobbyists who participated in NEPDG 
meetings and the extent to which their views shaped the NEPDG's 
policy recommendations.\1392\
    At the same time, another battle raged over the 
Administration's willingness to allow the testimony of top-
level officials at the hearings held by the National Commission 
on Terrorist Attacks Upon the United States, commonly known as 
the 9/11 Commission. This dispute came to a head when, in early 
2004, then-National Security Adviser Condoleezza Rice refused 
to testify publicly before the Commission. According to her 
spokeswoman, Bush Administration attorneys requested that Dr. 
Rice's testimony before the Commission, a body created by 
congressional mandate and therefore legislative in the eyes of 
the White House, would set a precedent for legislative branch 
oversight over executive branch staff.\1393\ Although the 
Administration did not directly assert executive privilege over 
the testimony, press reports and public statements by 
Commission and congressional officials indicated that similar 
concerns underlay the Administration's resistance.\1394\
    The White House's argument in favor of keeping Dr. Rice's 
conversations with the Commission behind closed doors was no 
doubt undercut by her frequent appearance in the media 
discussing subjects that would be covered in her 
testimony.\1395\ The Administration eventually reversed course 
and allowed Dr. Rice to testify, but in his letter explaining 
the reversal, White House Counsel Alberto Gonzales insisted, 
``Dr. Rice's public testimony . . . does not set, and should 
not be cited as, a precedent for future requests for a National 
Security Adviser or any other White House Official to testify 
before a legislative body.'' \1396\
    On the same day as the reversal, the Administration refused 
to allow Doug Badger, Special Assistant to the President for 
Health Policy, to testify before the House Ways and Means 
Committee in a hearing focusing on the cost of Medicare's 
prescription drug program.\1397\ Echoing his earlier letters 
concerning Dr. Rice's testimony before the 9/11 Commission, 
then-White House Counsel Alberto Gonzales wrote to Committee 
Chairman Bill Thomas, ``[i]t is longstanding White House 
policy, applied during administrations of both parties, that 
members of the White House staff should decline invitations to 
testify at congressional hearings.'' \1398\ As then-Ranking 
Member Charles Rangel pointed out, however, White House 
officials from both the Bush and Clinton Administrations had in 
fact testified before congressional Committees.\1399\ Similar 
to the White House's initial refusal to allow Dr. Rice's 
testimony, President Bush made no formal assertion of executive 
privilege, but the argument by Mr. Gonzales was that public 
testimony by White House staff would have a chilling effect on 
a president's ability to receive candid advice from his or her 
staff. Ways and Means Ranking Member Rangel disagreed with the 
White House:

          Executive privilege only applies when an official has 
        had conversations directly with the President. In 
        invoking executive privilege, we must assume that the 
        topic of withholding these estimates was a topic of 
        conversation between Mr. Badger and the President 
        himself. In any event, accounts of conversations or 
        exchanges between White House officials and the drug 
        industry or members of Congress [as was the case with 
        the testimony sought by the Committee from Mr. Badger] 
        are clearly not a place where separation of powers 
        applies.\1400\

In response to the White House's refusal to allow the 
testimony, Democrats on the Ways and Means Committee attempted 
to have the Committee subpoena Doug Badger and another witness 
who was unavailable to testify at the requested time. The 
Committee vote failed 23 to 16 along party lines and, under 
Republican leadership, the matter ended there.\1401\
    The House Judiciary Committee has also had difficulty 
obtaining testimony from White House officials in matters over 
which the President has not formally asserted executive 
privilege. As noted in Section 4 of this Report, Chairman 
Conyers wrote to President Bush in advance of a July 12, 2007, 
Judiciary Committee hearing on the President's July 2 decision 
to commute former Vice Presidential Chief of Staff Scooter 
Libby's prison sentence. He informed the President of the 
upcoming hearing and requested that President Bush decline to 
assert executive privilege and allow White House officials to 
testify before the Committee on the Libby clemency. Chairman 
Conyers cited President Clinton's decision to allow top-level 
staff to testify before the House Government Reform Committee 
concerning the pardon of Marc Rich as well as President Ford's 
testimony before the Judiciary Committee in 1974 about his 
decision to pardon President Nixon.\1402\
    White House Counsel Fred Fielding declined Chairman 
Conyers's request.\1403\ Although Mr. Fielding did not indicate 
that the President had asserted executive privilege, his letter 
discussed and cited an opinion memorandum written by Attorney 
General Janet Reno to advise President Clinton on the legal 
basis for a decision to exert executive privilege in response 
to a congressional inquiry on a pardon decision.\1404\

        II. Improper Use of State Secrets and Other Authorities

            A. Abuse of State Secrets
    The state secrets privilege allows the Executive Branch to 
prevent the release of documents and information in litigation 
if disclosure would compromise national security. The privilege 
was first recognized by the Supreme Court in U.S. v. 
Reynolds,\1405\ and was derived from the president's 
constitutional authority to protect the Nation. In the years 
following Reynolds, the state secrets privilege was used 
sparingly. Courts in turn were respectful of the Executive's 
judgment in these areas, and in the few state secrets cases 
that arose, rarely compelled disclosure over the government's 
objection.
    During the Bush Administration, however, invocation of the 
privilege has exploded. In its first six years, the 
Administration raised the privilege in almost 30 percent more 
cases per year than the prior administrations (and there is no 
reason to believe that the rate of invocation has 
slowed).\1406\ According to one report, ``[t]he government 
invoked the privilege in only four cases between 1953 and 1976, 
but it has been invoked more than 20 times since the September 
11 terrorist attacks and at least five times'' in 2006 alone.'' 
\1407\ And beyond the simple increase in assertions, the Bush 
Administration has expanded the purposes for which it invokes 
the privilege. Prior to the Bush Administration, the privilege 
was used to justify the government's refusal to disclose 
information or to bar certain evidence from trial.\1408\ Under 
President Bush, however, the Administration has urged that the 
privilege requires outright dismissal of sensitive lawsuit. 
Indeed, the Administration has argued for this sort of total 
dismissal in over 90 percent more cases than previous 
administrations.\1409\
    Under the Bush Administration, state secrets doctrine has 
been invoked in seeking dismissal of lawsuits in cases 
involving: (i) extraordinary rendition; (ii) the warrantless 
wiretapping program; (iii) post-9/11 detention of American 
citizens; and (iv) lawsuits brought by former federal employees 
alleging racial discrimination and retaliation, as discussed 
below.

Extraordinary rendition

    As noted in Section 2, the state secrets doctrine has been 
invoked in two cases involving extraordinary rendition of 
terrorism suspects. In the first case, a German national named 
Khalid El-Masri sought compensation after having been 
reportedly abducted by a European police force, transferred to 
the Central Intelligence Agency, and then taken to Afghanistan 
and tortured.\1410\ Mr. El-Masri was eventually released when 
it became clear that he was an innocent man and this was a case 
of mistaken identity. A federal judge granted the 
Administration's request to dismiss Mr. El-Masri's case on 
state secrets grounds, accepting its assertion that allowing 
the litigation to proceed would compromise national security. 
In October 2007, the Supreme Court declined to hear the matter 
on appeal.\1411\ Mr. El-Masri wrote of his experience attending 
the appellate court's argument in his case:

          Although I did not understand all of the arguments 
        made by the lawyers, I was impressed by the dignity of 
        the proceedings and by the respect for the rule of law 
        that I have always associated with America. I'm deeply 
        disappointed to find that this same legal system denies 
        me the chance to fully present my case . . .
          During my visit in November, many Americans offered 
        me their personal apologies for the brutality that had 
        been perpetrated against me in their name. I saw in 
        their faces the true America, an America that is not 
        held captive by fear of unknown enemies and that 
        understands the strength and power of justice. That is 
        the America that, I hope, one day will see me as a 
        human being--not a state secret.\1412\

    The state secrets doctrine also formed the basis of the 
dismissal of a lawsuit brought by Canadian Maher Arar, whose 
case is also discussed in Section 2.\1413\ Mr. Arar's request 
for civil compensation based on his rendition to Syria, where 
he was tortured, was dismissed by a New York-based federal 
court, although the matter has recently been re-argued.\1414\
    In comments following the dismissal of his suit, Mr. Arar 
said, ``[i]f the courts will not stop this evil act, who is 
going to stop this administration? . . . The court system is 
what distinguishes the West from the Third World. When a court 
will not act because of `national security,' there is no longer 
any difference between the West and the Third World.'' \1415\

Warrantless Wiretapping Program

    As noted in Section 2, the Bush Administration has used the 
state secrets doctrine to urge that cases challenging its 
domestic warrantless surveillance programs be dismissed.\1416\
    In the Al-Haramain case,\1417\ the Muslim charity Al-
Haramain Islamic Foundation argued that it was the subject of 
illegal warrantless surveillance by the government. The basis 
for this claim, in part, was a document accidentally produced 
to the Foundation's lawyers indicating that their conversations 
with Foundation officials had been monitored by the 
government.\1418\ Because of the accidental production, the FBI 
later repossessed this document. Then the Administration argued 
that the Foundation's case should be dismissed because it could 
not prove that it had been monitored. When the Foundation 
argued that the repossessed document proved it had been 
monitored, the Administration then argued that the state 
secrets privilege barred any mention of the document and 
refused to release it or confirm its contents.\1419\ The 
Appeals Court hearing the case ultimately dismissed the 
Foundation's request for the critical document.\1420\

Employee lawsuits

    The state secrets doctrine was also relied on by the Bush 
Administration to prevent whistleblower Sibel Edmonds from 
challenging her dismissal from the FBI's translation division. 
Ms. Edmonds, hired for her proficiency in Middle Eastern 
languages, was fired less than a year after she reported 
numerous deficiencies in the translation process to her 
supervisors, including poorly translated documents from before 
September 11, 2001, that had been relevant to the impending 
attacks. After raising concerns about these and other issues, 
Ms. Edmonds was fired. When she sued to recover her job or 
compensation for what she was alleged was her improper 
dismissal, the Administration successfully argued that the 
state secrets privilege barred the suit.\1421\ She was also 
prevented from testifying in a civil suit brought by families 
of 9/11 victims.\1422\ The state secrets doctrine was also 
invoked to obtain a dismissal of a racial discrimination case 
brought by former CIA agent Jeffrey Sterling against George 
Tenet and other CIA officials.\1423\
    The Constitution Subcommittee held a hearing on January 29, 
2008, concerning the issue of the misuse of the state secrets 
doctrine. Testimony was received from H. Thomas Wells, Jr., 
President-Elect, American Bar Association; Judith Loether, 
daughter of one of the victims of the plane crash at issue in 
U.S. v. Reynolds; the Honorable Patricia Wald, retired Chief 
Judge for the U.S. Court of Appeals for the D.C. Circuit; 
Patrick Philbin, partner at Kirkland & Ellis; and Kevin 
Bankston, Senior Attorney, Electronic Frontier Foundation.
    Ms. Loether testified about the death of her father, an RCA 
engineer working under Air Force contract, when she was just 
seven years old. She testified that she had not known much 
about the accident or the lawsuit involving her family's quest 
for compensation that had ended in the United States Supreme 
Court. And she explained how, years later, doing a random 
internet search for information on her father's death, she had 
come across the supposedly secret report that the Supreme Court 
had allowed the government to conceal, which actually contained 
no national security information at all. Ms. Loether explained:

          The more I understood what had happened to my mother 
        and why, the more betrayed I felt. It seemed that the 
        case that allows the Executive to keep its secrets was, 
        at its very foundation, a gross overstatement by the 
        government to forward its own purposes; to get 
        themselves a privilege. At what cost? The cost was 
        truth and justice and faith in this government.\1424\

    Most of the witnesses agreed that, given the increased use 
of the state secrets privilege to seek dismissal of cases, it 
was necessary to craft solutions that would allow for greater 
judicial review of privilege claims and the requisite 
flexibility to fashion appropriate orders.\1425\ In the words 
of Dr. Louis Fisher, Specialist in Constitutional Law with the 
Law Library of the Library of Congress:

          Assertions are assertions, nothing more. Judges need 
        to look at disputed documents and not rely on how the 
        executive branch characterizes them. Affidavits and 
        declarations signed by executive officials, even when 
        classified, are not sufficient. . . . What is at stake 
        is more than the claim or assertion by the executive 
        branch regarding state secrets. Congress needs to 
        protect the vitality of a political system that is 
        based on separation of powers, checks and balances, and 
        safeguards to individual rights.\1426\
            B. Abuse of Other Authorities
    Above and beyond the misuse of the executive and state 
secrets privileges, the Bush Administration has used a variety 
of other authorities to prevent Congress and the American 
public from obtaining access to information regarding its 
conduct. Although the Judiciary Committee was not able to 
conduct a comprehensive review of all of these matters through 
oversight hearings, it is useful to briefly inventory some of 
the more salient concerns that have come to light with respect 
to classification authorities, the Freedom of Information Act, 
the Presidential Records Act, and the Vice President's Office.

Classification

    Since 1940, Executive Orders have governed federal policy 
on the classification of documents pertaining to national 
security. There are generally three levels of classification--
``top secret,'' ``secret,'' and ``confidential,'' in order of 
exclusivity. In addition, certain federal agencies have been 
allowed to create their own internal classification 
procedures.\1427\ The Clinton Administration, under Attorney 
General Janet Reno, favored a policy of transparency. President 
Clinton's Executive Order 12958 promoted disclosure by, among 
other things,
           limiting the duration of classification in 
        most cases to 10 years;
           creating a system for automatically 
        declassifying historical documents of significance 25 
        years or older;
           establishing a system for challenging 
        classification designations, as well as an appeals 
        process for those decisions;
           instilling a presumption towards lower 
        classification or non-classification in situations 
        where there was doubt as to the proper level of 
        classification.
As a result, under the Clinton Administration, the Executive 
Branch declassified nearly ten times as many documents as the 
historical average.\1428\
    On March 25, 2003, President Bush issued Executive Order 
13292, revising the Clinton order and reversing many of its key 
policies in ways that encouraged excessive classification and 
discouraged appropriate declassification.\1429\ Some of the key 
differences between the two orders include:
     The Bush order deleted the sections in the Clinton 
order resolving doubtful classifications in favor of lower or 
non-classification, allowing federal officials to classify 
documents with a dubious need for secrecy.
     Where the Clinton order used 10 years as a default 
duration for most documents, the Bush Administration allowed 
for an initial classification period of 25 years. While the 
Clinton order limited extensions to ten-year periods, the Bush 
order has no limit on extensions.\1430\
     Under the Clinton order, documents 25 years old or 
more deemed by the Archivist of the United States to be of 
historic value were automatically declassified, unless the 
controlling agency head determined that their release 
``should'' result in one of several specific harms. The Bush 
order changed the operative standard from ``should'' to 
``could,'' thus dramatically weakening the standard.\1431\
     The Bush order strengthened other standards in 
favor of withholding. Portions of the Clinton order which had 
stated that information in specified substantive categories 
``may'' be classified were revised to read that such 
information ``shall be'' classified.
    In addition to developing general rules favoring 
classification, the Bush Administration has used its 
classification authority in numerous instances to protect 
against disclosure of potentially unlawful or inappropriate 
activities. For example, the White House attempted to 
retroactively classify parts of the Joint Congressional 
Intelligence Committee's report on its inquiry into the 9/11 
attacks that had already been made public, including excerpts 
from the FBI's July 2001 Phoenix flight-school memo previously 
published elsewhere, the names of senior Administration 
officials, and information on anti-terror intelligence 
previously disclosed in public testimony.\1432\ The Bush 
Administration also sought to block the release of the Joint 
Congressional Intelligence Committee's report.\1433\ Senator 
Bob Graham, Chairman of the Senate Intelligence Committee at 
the time of the report's release, also alleged that the Bush 
Administration made politically-motivated classification 
decisions when it shielded portions of the Joint Committee's 
report that raised suspicions of possible support for some of 
the 9/11 hijackers by officials in Saudi Arabia.\1434\
    The Bush Administration also attempted to limit the access 
Members of Congress had to classified information needed to 
carry out their oversight and legislative duties. On October 5, 
2001, President Bush issued a memorandum to the heads of the 
State, Treasury, Defense and Justice Departments, as well as 
the Directors of the FBI and CIA, instructing that the only 
Members who could receive briefings regarding classified or 
sensitive law enforcement information were the Speaker of the 
House, the House Minority Leader, the Senate Majority and 
Minority Leaders, and the Chairs and Ranking Members of the two 
Intelligence Committees--a group that is commonly known as the 
``gang of eight.'' \1435\ Members of both parties in both 
houses of Congress decried the new policy as too restrictive 
and the House Defense Appropriations Subcommittee postponed a 
scheduled markup of a $318 billion defense spending bill until 
the new directive was reversed.\1436\ Although the President 
responded to the outcry by easing the restrictions and allowing 
additional members to receive classified briefings, disputes 
between Congress and the Executive Branch over the release of 
classified information continued.\1437\
    The same pattern followed with other classified information 
needed for effective congressional oversight of the 
Administration's national security operations. Key legal 
memoranda and other documents were withheld from Members and 
cleared staff regarding the domestic warrantless surveillance 
program, even while Members were being pressed by the 
Administration to review and revise that program.\1438\ As 
noted in Section 2 of this Report, these materials were 
eventually provided, but only when it became clear that 
Congress would not provide the Administration with desired 
legislation without gaining this access.\1439\ Similarly, 
numerous Office of Legal Counsel legal opinions and memoranda 
dealing with issues of presidential power, including those 
regarding the Administration's interrogation programs and its 
legal views on the hostilities in Iraq were withheld despite 
requests and subpoenas from both House and Senate Committees, 
even where the memoranda were not classified and even were they 
had been superceded or revoked. Eventually, some access was 
gained to these materials, but only after burdensome 
negotiations and the scheduling of possible contempt votes in 
the House Judiciary Committee and the issuance of a subpoena 
for Attorney General Mukasey's personal testimony on the 
withholding before the Senate Judiciary Committee.\1440\
    In addition, on May 9, 2008, the White House issued a 
``Memorandum for the Heads of Executive Departments and 
Agencies on the Sharing of Controlled Unclassified 
Information.'' This memorandum introduced ``Controlled 
Unclassified Information'' as a new government category that 
replaced ``Sensitive but Unclassified.'' Although the 
memorandum explicitly states that the use of the ``controlled 
unclassified information'' label ``may inform but [does] not 
control'' the decision to disclose under FOIA, lower-level 
staff, seeing the label on responsive documents, may 
instinctively treat it as protected and withhold it from 
disclosure.\1441\
    The Bush Administration also used classification to hide 
the facts of potentially illegal activities in its terrorist 
detention and interrogation programs. The Executive has 
apparently classified all statements made by terrorism suspects 
in detention, however innocuous. Thus, conversations between 
prisoners and their attorneys were presumptively classified, 
even if the information would assist in preparing the client's 
defense.\1442\ The Defense Department has also classified a 
variety of innocuous information from conversation and 
correspondence with prisoners, including poetry.\1443\
    Classification procedures have also been used to withhold 
critical information from defense counsel in cases involving 
suspected terrorists. In military commission proceedings 
against Omar Khadr, the commission reportedly issued secret 
orders preventing Mr. Khadr's counsel from learning the names 
of the witnesses against him, thereby limiting his counsel's 
ability to provide a full and vigorous defense.\1444\ In a 
terrorism prosecution case against Dr. Ali al-Tamimi, a D.C.-
area professor convicted of inciting terrorism as part of the 
Virginia Jihad Network, federal intelligence agencies have made 
a series of filings secret from both prosecution and defense, 
prompting the judge in the case, Leonie M. Brinkema, to state, 
``I am no longer willing to work under circumstances where both 
the prosecuting team and defense counsel are not getting any 
kind of access to these materials.'' \1445\
    In addition, The Washington Post obtained an order issued 
by Judge Stephen R. Henley, the Army colonel tasked with 
overseeing the proceedings against five men accused of 
orchestrating the terrorist attacks of September 11, 2001, that 
imposed broad classification rules on information related to 
the 9/11 trials. In a story published January 7, 2009, the 
newspaper reported that the order, which remains unavailable to 
the public, in part states:

          . . . any document or information including but not 
        limited to any subject referring to the Central 
        Intelligence Agency, National Security Agency, Defense 
        Intelligence Agency, Department of State, National 
        Security Council, Federal Bureau of Investigation, or 
        intelligence agencies of any foreign government, or 
        similar entity, or information in the possession of 
        such agency, shall be presumed to fall within the 
        meaning of `classified national security information or 
        document' unless and until the [senior security 
        adviser] or Prosecution advises otherwise in 
        writing.\1446\

    The order also presumptively classifies ``any statements 
made by the accused'' and allows the court to classify 
information that is already publicly available, such as 
testimony regarding the CIA's acknowledged waterboarding of 
Khalid Sheik Mohammed, one of the defendants in the case.\1447\ 
Jennifer Daskal, senior counter-terrorism counsel at Human 
Rights Watch, called the rules, ``little more than a thinly 
disguised attempt to classify evidence simply because it might 
be embarrassing or unlawful,'' and warned, ``[i]f these rules 
applied in all cases, there would be no such thing as an open 
trial in America.'' \1448\

FOIA Requests

    The Freedom of Information Act (FOIA) was enacted on the 
premise that every citizen has the right to access federal 
agency records or information.\1449\ The Bush Administration 
has sought to limit its exposure under FOIA in several 
respects:
     An October 12, 2001, directive from then-Attorney 
General Ashcroft issued new guidelines for responding to FOIA 
requests.\1450\ It was a reversal of the Clinton 
Administration's policy, which instructed agencies to take a 
broad view of their obligations under FOIA--to favor release of 
information unless harm would result from disclosure. In 
contrast, the Ashcroft directive instructed heads of federal 
agencies to identify reasons to deny access to information by 
invoking one of the Act's exemptions, even if no harm would 
result from disclosure.
     On March 19, 2002, Andrew Card, then-White House 
Chief of Staff, issued a memorandum advising executive 
departments and agencies to use FOIA exemptions to withhold 
``sensitive but non-classified'' information.\1451\ The memo 
also encouraged its recipients to re-classify certain types of 
unclassified or previously declassified information.
     In contravention of the OPEN Government Act of 
2007, President Bush, in his proposed 2009 budget, transferred 
the office of the FOIA Ombudsman from the National Archives, an 
independent federal entity, to the Department of Justice, which 
is part of the Executive Branch and ultimately supervised by 
the Attorney General, a presidential appointee. Congress had 
created the position in response to the Administration policies 
designed to limit the volume of documents produced in response 
to FOIA requests. The transfer was initiated by the Vice 
President's office after it had engaged in an escalating series 
of confrontations with the National Archives over the Vice 
President's obligations to report his possession of classified 
information.\1452\

Presidential Records Act

    The Bush Administration has moved to curtail its exposure 
under the Presidential Records Act, which changed the legal 
ownership of presidential records from private to public and 
established a new statutory framework under which presidents 
must manage their records:\1453\
     On March 23, 2001, then-White House Counsel 
Alberto Gonzales directed the National Archives not to release 
to the public 68,000 pages of records from the Reagan 
Administration that academic scholars had requested and that 
archivists had determined posed no threat to national security 
or personal privacy. The Presidential Records Act required 
those documents to become available January 20, 2001--twelve 
years after President Reagan left office.
     When historians objected to the Gonzales 
directive, stating that it undermined the Presidential Records 
Act, President Bush issued Executive Order 13233.\1454\ This 
order allows former presidents and vice presidents, or their 
representatives, to bar release of documents by claiming one of 
numerous privileges. Contrary to prior law, the order prohibits 
the Archivist of the United States from rejecting a former 
president's claim of privilege. The order also allows the 
current president to attempt to block release of a former 
president's records even if such action subverts the former 
president's wishes.\1455\

Vice President's Office

    The Vice President's office has sought to limit its 
obligations to accountability and transparency: \1456\
     After declining to provide reports on his office's 
possession of classified data to the National Archives and 
Record Administration in compliance with President Bush's 2003 
executive order,\1457\ Vice President Cheney had his staff 
block an attempt by the Archives' Information Security 
Oversight Office to perform an on-site audit. Vice President 
Cheney then attempted to have the executive order amended and 
have the investigating office at the National Archives 
eliminated.\1458\
     Vice President also took the position that, given 
his duties as tiebreaker in the Senate, the Office of the Vice 
President is actually part of the legislative branch, and not 
subject to executive orders.\1459\
     In response to a Senate Judiciary subpoena for 
documents relating to the warrantless wiretapping program, the 
Office of the Vice President again drew a distinction between 
it and the Executive, responding that the ``Committee 
authorized the chairman to issue subpoenas to the Executive 
Office of the President and the Department of Justice, but did 
not authorize issuance of a subpoena to the Office of the Vice 
President.'' \1460\
     In a December 8, 2008, filing as part of a lawsuit 
over enforcement of the Presidential Records Act requirements, 
Vice President Cheney asserted that he ``alone may determine 
what constitutes vice presidential records or personal records, 
how his records will be created, maintained, managed and 
disposed, and are all actions that are committed to his 
discretion by law.'' \1461\

              III. Manipulation and Misuse of Intelligence

    Considerable evidence exists in the public record 
indicating that President Bush and senior members of his 
Administration sought to manipulate and misuse intelligence in 
the lead-up to the Iraq War. Much of this information is 
included in the previous report prepared for Mr. Conyers, The 
Constitution in Crisis. As a threshold matter, as noted in that 
report, the 2000 presidential election focused on many issues 
relating to domestic and foreign policy.\1462\ However, the 
topic of Iraq was virtually unmentioned in the campaign. In a 
presidential debate with then-Vice President Al Gore, then-
presidential candidate George W. Bush emphasized that he would 
be careful about using troops for ``nation-building'' purposes 
and that he would not launch a pre-emptive war because he 
believed the role of the military was to ``prevent war from 
happening in the first place.'' \1463\ At the same time, some 
future members of the Bush Administration, including high-
ranking officials such as Vice President Richard Cheney, 
Defense Policy Board Advisory Committee Chairman Richard Perle 
and Deputy Defense Secretary Paul Wolfowitz were part of this 
group, were waiting for war with Iraq.\1464\
    Immediately after the September 11 attacks, President Bush 
and members of his Administration displayed an immediate 
inclination to blame Iraq--the President asked counter-
terrorism adviser Richard Clarke to determine if Saddam Hussein 
is ``linked in any way;'' \1465\ White House officials 
instructed General Wesley Clark to state that the attack was 
``connected to Saddam Hussein;'' \1466\ and Undersecretary of 
Defense Douglas Feith proposed that the U.S. select a ``non al-
Qaeda target like Iraq.'' \1467\ Just a few months after the 
attacks and over a year prior to the U.S. invasion of Iraq, the 
Vice President appeared on Meet the Press on December 9, 2001, 
and made a connection to the American public: ``Well, what we 
now have that's developed since you and I last talked, Tim 
[Russert], of course, was that report that's been pretty well 
confirmed, that [Mohammed Atta, one of the hijackers] . . . did 
go to Prague and he did meet with a senior official of the 
Iraqi intelligence service in Czechoslovakia last April, 
several months before the attack.'' \1468\
    In his January 29, 2002, State of the Union Address, the 
President remarked that countries like Iraq, Iran and North 
Korea ``constitute an axis of evil'' and ``pose a grave and 
growing danger.'' \1469\ The President continued, ``I will not 
wait on events, while dangers gather.\1470\ On June 1, 2002, 
during a speech at West Point, President Bush formally 
enunciated a doctrine of preemptive military action that would 
soon be used against Iraq.\1471\
    It was also around this time that Vice President Cheney and 
his then-Chief of Staff Scooter Libby began making a series of 
unusual trips to the Central Intelligence Agency (CIA) to 
discuss Iraq intelligence.\1472\ As early as October 2002, 
various U.S. military officials, intelligence employees, and 
diplomats charged that the Bush Administration put intelligence 
analysts under intense pressure to produce reports supporting 
the White House's argument that Saddam Hussein posed an 
immediate threat and that preemptive military action was 
necessary. One anonymous official stated at the time, 
``[a]nalysts at the working level in the intelligence community 
are feeling very strong pressure from the Pentagon to cook the 
intelligence books.'' \1473\
    At the same time, the President's public statements 
asserted a reluctance to use military force in Iraq. He assured 
the public that he had not made up his mind to go to war with 
Iraq and that war was a last resort.\1474\ However, contrary to 
these public statements, the Bush Administration formed the 
White House Iraq Group (WHIG) in August 2002 in an apparent 
effort to bolster public support for war with Iraq.\1475\ Then, 
in an August 26, 2002 speech to the Veterans of Foreign Wars 
National Convention, Vice President Cheney began to make the 
case for war against Iraq when he declared, ``[t]he Iraqi 
regime has in fact been very busy enhancing its capabilities in 
the field of chemical and biological agents. And they continue 
to pursue the nuclear program they began so many years ago.'' 
In this speech Vice President Cheney went on to say ``we know 
Saddam has resumed his efforts to acquire nuclear weapons.'' 
\1476\
    The Bush Administration buttressed their claim that Iraq 
had a vigorous nuclear weapons program based on statements that 
Saddam Hussein had sought to acquire aluminum tubes for use as 
centrifuges to enrich uranium. On September 8, 2002,--after 
leaked, classified, and misleading information about the 
aluminum tubing had been reported in the media--Vice President 
Cheney and National Security Advisor Condoleezza Rice both 
appeared on television to argue and confirm that the tubes were 
part of Iraq's aggressive nuclear weapons program.\1477\ The 
claims concerning the tubes appear to have been based on the 
views of a single CIA analyst known in press accounts as 
``Joe.'' As The New York Times reported, ``[s]uddenly, Joe's 
work was ending up in classified intelligence reports being 
read in the White House. Indeed, his analysis was the primary 
basis for one of the agency's first reports on the tubes, which 
went to senior members of the Bush Administration on April 10, 
2001.'' \1478\
    Shortly thereafter, the Administration made further 
alarming and sensational claims about the danger posed to the 
United States by Iraq, including in a September 12, 2002, 
address by President Bush to the United Nations, and began to 
press forward publicly with preparations for war, calling Iraq 
a ``grave and gathering danger.'' \1479\ President Bush implied 
that the Iraqi government would supply WMDs to terrorists when 
he said, ``[a]nd our greatest fear is that terrorist will find 
a shortcut to their mad ambitions when an outlaw regime 
supplies them with the technologies to kill on a massive scale. 
In one place--in one regime--we find all these dangers.'' 
\1480\ The President reiterated Vice President Cheney's 
declarations that Iraq had an ongoing nuclear weapons program 
as well as statements about the countries capacity to produce 
chemical weapons.\1481\ In the days following the President's 
speech to the United Nations, Iraq delivered a letter to U.N. 
Secretary-General Kofi Annan stating that it would allow the 
return of U.N. weapons inspectors without conditions.\1482\ But 
on September 18, President Bush discounted Hussein's offer to 
let U.N. inspectors back into Iraq as a ploy.\1483\ President 
Bush commented on September 25, 2002, ``[y]ou can't distinguish 
between al Qaeda and Saddam when you talk about the War on 
Terror.'' \1484\ On September 27, 2002, Defense Secretary 
Rumsfeld claimed that he had ``bulletproof'' evidence of ties 
between Saddam and al Qaeda.\1485\
    Shortly before the congressional vote on authorization for 
the war in Iraq in October, 2002, Members of Congress sought 
and obtained a National Intelligence Estimate (NIE), the 
coordinated assessment of the Intelligence Community on Iraq. 
The NIE was made available to Members of Congress, but not 
released to the public until July 18, 2003, and then only in 
part.\1486\ Regarding the NIE, Senator Richard Durbin of 
Illinois subsequently stated the classified information he had 
seen did not support the Bush Administration's portrayal of the 
Iraqi threat. ``It's troubling to have classified information 
that contradicts statements made by the Administration,'' 
Durbin said. ``[t]here's more they should share with the 
public.'' \1487\
    In an October 7, 2002, speech in Cincinnati, shortly before 
the congressional vote to authorize military action, the 
President stated: ``We've learned that Iraq has trained al 
Qaeda members in bomb-making and poisons and deadly gases . . . 
We know that Iraq and al Qaeda have had high-level contacts 
that go back a decade.'' \1488\ On October 11, 2002, Congress 
approved a joint resolution for the use of force in Iraq.\1489\ 
Based on the intelligence findings in the National Intelligence 
Estimate provided to Congress by the Administration, the 
resolution stated that Iraq posed a continuing threat to the 
United States by, among other things, actively seeking a 
nuclear weapons capability.\1490\
    The President's focus then moved on to the United Nations 
in an effort to persuade the U.N. to approve renewed weapons 
inspections in Iraq and sanctions for noncompliance. Once 
again, the President asserted his reluctance to take military 
action. Upon signing the resolution, the President stated, ``I 
have not ordered the use of force. I hope the use of force will 
not become necessary.'' \1491\ On November 8, 2002, the United 
Nations Security Council adopted U.N. Resolution 1441, which 
stipulated that Iraq was required to readmit U.N. weapons 
inspectors under more stringent terms than required by previous 
U.N. Resolutions.\1492\
    On January 27, 2003, the International Atomic Energy Agency 
(IAEA) indicated that the Bush Administration's claim that 
aluminum tubes being delivered to Iraq were part of an Iraqi 
nuclear weapons program was likely false.\1493\ In the wake of 
this claim being discredited, President Bush informed the 
country in his State of the Union address on January 28, 2003, 
``[t]he British government has learned that Saddam Hussein 
recently sought significant quantities of uranium from 
Africa.'' \1494\
    On February 5, 2003, Secretary of State Colin Powell took 
the Bush Administration's case to the United Nations Security 
Council. In a presentation to the United Nations, Secretary 
Powell charged, among other things, that Iraq had mobile 
production facilities for biological weapons.\1495\ Secretary 
of State Powell stated: ``I can trace the story of a senior 
terrorist operative telling how Iraq provided training in these 
weapons to al Qaeda.'' \1496\ Secretary Powell also said that, 
``[w]e are not surprised that Iraq is harboring Zarqawi and his 
subordinates. This understanding builds on decades-long 
experience with respect to ties between Iraq and al Qaeda.'' 
\1497\ Following the visit to the United Nations, the 
Administration indicated its readiness and enthusiasm for going 
to war. Vice President Cheney made an appearance on Meet the 
Press and stated that the war would not be long, costly or 
bloody because the U.S. would ``be greeted as liberators.'' 
\1498\
    On March 18, 2003, the President submitted a letter to the 
Speaker of the House of Representatives and the President Pro 
Tempore of the Senate informing the Congress of his 
determination that diplomatic and peaceful means alone would 
not protect the Nation or lead to Iraqi compliance with United 
Nations demands.\1499\ Two days later, the President launched 
the preemptive invasion.
    A little more than a month into the invasion, President 
Bush landed aboard the USS Abraham Lincoln and, standing 
beneath a massive banner reading ``Mission Accomplished,'' he 
stated that major combat operations in Iraq had ended. However, 
it became immediately evident that this declaration of victory 
was premature.
    On January 28, 2004, head of the Iraq Survey Group David 
Kay testified before the Senate Armed Services Committee that 
there was no evidence of participation by either Saddam Hussein 
or his principal henchmen in the WMD-sharing with al Qaeda or 
any other terrorist organizations.\1500\ Dr. Kay also reported 
the Iraq Survey Group did not find evidence that the aluminum 
tubes were intended for nuclear use and that ``based on the 
evidence that was collected . . . it's more probable that those 
tubes were intended for use in a conventional missile program, 
rather than in a centrifuge program.'' \1501\
    Amid growing evidence that the case for war was faulty, the 
Administration sought to pre-empt inquiries into the 
manipulation of intelligence by launching limited internal 
investigations. On February 6, 2004, President Bush created the 
Robb-Silberman Commission, which later found that the 
intelligence community was wrong in almost all of its pre-war 
judgments about Iraq's weapons of mass destruction.\1502\ 
However, this Commission was specifically prohibited from 
examining the use or manipulation of intelligence by 
policymakers.\1503\
    On March 16, 2004, the Democratic staff of the U.S. House 
Committee on Government Reform submitted a report to Ranking 
Member Henry A. Waxman. This report, titled ``Iraq on the 
Record: the Bush Administration's Public Statements on Iraq,'' 
details public statements made by senior Bush Administration 
officials regarding policy toward Iraq. The report indicates 
that ``five officials made misleading statements about the 
threat posed by Iraq in 125 public appearances. The report and 
an accompanying database identify 237 specific misleading 
statements by the five officials.'' \1504\
    In May 2004, Bryan Burrough wrote in ``The Path to War,'' 
an article published in Vanity Fair magazine, that Bush 
Administration officials used repeated questioning of analysts' 
work and re-tasking of the same assignments to obtain 
intelligence assessments that would fit the Administration's 
policy goals.\1505\ This dynamic was corroborated by Richard 
Kerr, a former high-level CIA analyst who was brought out of 
retirement to conduct the agency's classified internal review 
of pre-war intelligence on Iraq and how it was used by the 
White House. Mr. Kerr reported, ``There were people who felt 
there was too much pressure. Not that they were being asked to 
change their judgments, but they were being asked again and 
again to re-state their judgments--do another paper on this, 
repetitive pressures. Do it again.'' \1506\ Eventually the CIA 
Ombudsman reported that several analysts he spoke with in the 
preparation of a June 2002 report on the CIA's analysis of 
connections between Iraq and al Qaeda ``mentioned pressure and 
gave the sense that they felt the constant questions and 
pressure to reexamine issues were unreasonable.'' \1507\
    On June 16, 2004, the National Commission on Terrorist 
Attacks Upon the United States (9-11 Commission) held the first 
session of it its twelfth and final hearing, focusing on the 
September 11th plot. At that hearing, Commission staff reported 
on its investigation into the Vice President's allegations of 
meetings between Mohammed Atta and an Iraqi intelligence 
official in Prague, concluding, ``we do not believe that such a 
meeting occurred.'' \1508\ The Commission cited FBI 
photographic and telephone evidence; Czech and U.S. 
investigations; and reports from detainees, including the Iraqi 
official with whom Atta was alleged to have met.\1509\ Douglas 
MacEachin, a member of the 9/11 Commission staff and former 
Deputy Director of Intelligence at the CIA, also testified that 
contacts between Iraq and al Qaeda did not constitute a 
``collaborative relationship,'' and that the staff had ``found 
no credible evidence that Iraq and al Qaeda cooperated on 
attacks against the United States.'' \1510\ These findings were 
repeated in the final report of the 9/11 Commission, published 
on July 22, 2004.\1511\
    On July 7, 2004, the Senate Select Committee on 
Intelligence released its first report in a series on 
intelligence in the lead-up to the Iraq War. The Committee's 
investigation reviewed over 30,000 pages of intelligence 
assessments and source data as well interviews with over 200 
officials in the Intelligence Community (IC).\1512\ Among other 
things, the Senate Select Committee's 2004 Report on Pre-War 
Intelligence confirmed CIA assessments that ``there was no 
evidence proving Iraqi complicity or assistance in an [al 
Qaeda] attack'' and that contacts between the two ``did not add 
up to an established formal relationship.'' \1513\ This report, 
along with other available information, largely rebutted Bush 
Administration claims that Iraq had acquired aluminum tubes for 
use in developing nuclear weapons. The Senate Intelligence 
report revealed that ``the information available to the 
intelligence community indicated that these [aluminum] tubes 
were intended to be used for an Iraqi conventional rocket 
program and not a nuclear program.'' \1514\ The report found 
that the Energy Department's contradictory conclusions to the 
CIA were published on May 9, 2001, in the Energy Department's 
Daily Intelligence Highlight on Intelink, a website used by the 
American intelligence community and the White House.\1515\ 
Senate Intelligence further found that Defense Department 
experts also relayed their findings that the aluminum tubes 
corresponded to the tubes required for rocket use and not 
nuclear weapon production prior to the Administration's 
September 2002 public statements.\1516\
    As the war continued into 2005, with U.S. casualties 
approaching 1,500, Iraq held elections on January 30. The 
Administration heralded the elections as a symbol of freedom 
and as an event which validated the initial invasion. By that 
point, however, the reason for attacking Iraq had shifted from 
an imminent threat of weapons of mass destruction; to combating 
terrorism after the September 11, attacks; to regime change; 
and eventually to promoting democracy.
    While evidence and accounts of Administration insiders 
strongly suggested a predetermination to go to war and the 
manipulation of intelligence to justify it, that evidence and 
those accounts were attacked by Administration officials as 
inaccurate or biased. Then, on May 1, 2005, the Sunday London 
Times published the first in a series of important documents 
known as the ``Downing Street Minutes.'' The Downing Street 
Minutes (DSM) are a collection of classified documents, written 
by senior British officials during the spring and summer of 
2002, which recounted meetings and discussions of such 
officials with their American counterparts focusing on the U.S. 
plan to invade Iraq. The Downing Street Minutes provide 
documentary evidence that in the spring and summer of 2002, it 
was understood by the Blair government that the Bush 
Administration had irrevocably decided to invade Iraq. These 
documents indicate that President Bush had told Prime Minister 
Blair, ``when we have dealt with Afghanistan, we must come back 
to Iraq'' (Fall, 2001) \1517\; that ``Condi's enthusiasm for 
regime change is undimmed'' (March 14, 2002) \1518\; that the 
U.S. has ``assumed regime change as a means of eliminating 
Iraq's WMD threat'' (March 25, 2002) \1519\; that ``Bush wanted 
to remove Saddam through military action, justified by the 
conjunction of terrorism and WMD'' and that ``the intelligence 
and facts were being fixed around the policy'' (July 23, 
2002).\1520\
    The Downing Street Minutes generated significant media 
coverage in Great Britain in the lead up to the British 
elections, but initially received very little media attention 
in the United States. This circumstance began to change when, 
on May 5, 2005, Congressman Conyers--then the Ranking Member of 
the House Judiciary Committee--along with 87 other Members of 
Congress (eventually 121), wrote to the President demanding 
answers to the allegations presented in the DSM. In his letter, 
Representative Conyers questioned the President on whether 
there ``was there a coordinated effort with the U.S. 
intelligence community and/or British officials to `fix' the 
intelligence and facts around the policy.'' On June 16, 2005, 
Rep. Conyers convened the first proceeding in the United States 
Congress to address the serious charges raised in the Minutes. 
When the Republican leadership of the House refused to allow a 
formal hearing room for this proceeding, the meeting was held 
in the Capitol basement.
    Four witnesses appeared at this proceeding: Ambassador 
Joseph C. Wilson, activist Cindy Sheehan, who lost her son 
Casey in the Iraq War and founded the Gold Star Families for 
Peace, former CIA analyst Ray McGovern, and attorney John 
Bonifaz. Ambassador Wilson explained the importance of the 
matter:

          [T]he most solemn decision a government in our 
        democracy ever has to make is that decision to send our 
        soldiers to die and to kill in the name of our country. 
        In making that decision, we deserve a debate based on 
        facts, not on information that is thrown into the 
        debate, not because it is true, but because it supports 
        a political decision that has already been made.\1521\

    After this hearing, Mr. Conyers and other Judiciary 
Committee Members personally delivered to the White House a 
letter asking President Bush when he decided to attack Iraq and 
a petition signed by over 500,000 Americans.\1522\ The 
President's refusal to answer the Members' questions prompted 
the Judiciary Committee Democratic staff's investigation, 
culminating in the publication of The Constitution in Crisis in 
August, 2006.
    The following Congress, on June 5, 2008, the Senate Select 
Committee on Intelligence (SCCI) completed the second phase of 
its investigation into the manipulation of intelligence in the 
lead-up to the March 2003 invasion of Iraq. That day, the 
Committee released its report detailing prewar statements by 
Bush Administration officials misrepresenting intelligence on 
Iraq and the threat it represented to the U.S. on numerous 
occasions.\1523\
    The Senate Intelligence Committee concentrated its analysis 
on ``statements that were central to the nation's decision to 
go to war.'' \1524\ The report examined five important speeches 
by President George W. Bush and top Administration officials 
\1525\ and selected elements that fall into the following 
categories: nuclear weapons, biological weapons, chemical 
weapons, weapons of mass destruction, methods of delivery, 
links to terrorism, regime intent, and assessments about 
consequences of U.S. invasion on Iraq post-war. Also, to 
support its analysis, the Committee gathered information from 
intelligence reports that were produced prior to March 19, 
2003, to better ``understand the state of intelligence analysis 
at the time of various speeches and statements.'' \1526\ By 
concentrating on inter-agency intelligence reports, the 
Committee highlighted some of the ``disagreements with the 
intelligence community and where different reporting could 
substantiate different interpretations.'' In addition, the 
report focuses on the selective use of intelligence information 
and the ability of the Administration to declassify and divulge 
intelligence information.\1527\
    The Committee report concluded that a number of public 
statements made by high-ranking members of the Bush 
Administration in the lead-up to the Iraq War were not 
supported by the available intelligence, including:

     Statements and implications by the President and 
Secretary of State suggesting that Iraq and al Qaeda had a 
partnership, or that Iraq had provided al Qaeda with weapons 
training were not substantiated by the intelligence.\1528\ In 
particular, the Intelligence Committee noted that on several 
occasions, the CIA and the DIA expressed doubts that there was 
any collusion between Hussein and bin Ladin because ``Saddam 
views bin Ladin's brand of Islam as a threat to his regime and 
bin Ladin is opposed to those Muslim states that do not follow 
his version of Islam.'' \1529\ With regarding to weapons 
training, by February 2002, the Intelligence Committee had 
questioned the credibility of al-Libi, the former bin Laden 
aide who had sought to link Iraq with al Qaeda and weapons 
trainings.\1530\
     Statements by the President Bush and Vice 
President Cheney indicating that Saddam Hussein was prepared to 
give weapons of mass destruction to terrorist groups for 
attacks against the U.S. were contradicted by available 
intelligence information.\1531\ In particular, the Committee 
found intelligence assessments before and after the President's 
September 2002 address consistently expressed the difficulty of 
trying to gauge Saddam's intentions with accuracy, and 
ultimately concluded that Saddam Hussein would not likely want 
to risk his regime's survival by using WMDs against the United 
States.\1532\
     Statements by President Bush and Vice President 
Cheney regarding the postwar situation in Iraq, in terms of the 
political, security and economic, did not reflect the concerns 
and uncertainties expressed in the intelligence products.\1533\
     Statements by the President and Vice President 
prior to the October 2002 NIE regarding Iraq's production of 
chemical weapons omitted uncertainties as to whether such 
production was ongoing.\1534\ In particular the Senate 
Intelligence Committee found Bush Administration officials 
ignored disagreements within the IC with regard to assessments 
of Iraq's capabilities to use unarmed aerial vehicles (UAVs) as 
delivery systems for chemical and biological weapons. Although 
the October 2002 NIE indicated that Iraq intended to outfit 
UAVs for such purposes, the Air Force intelligence agency 
dissented.\1535\ Statements by Bush Administration officials 
prior to the release of the 2002 NIE also omitted IC 
uncertainties with regard to Iraq's chemical weapons 
capabilities,\1536\ and could not confirm ongoing production of 
chemical weapons.\1537\
     The statement by Defense Secretary Donald Rumsfeld 
in testimony before Congress that the Iraqi government operated 
WMD facilities that were not vulnerable to conventional 
airstrikes because they were buried deeply underground was not 
substantiated by available intelligence information.\1538\
     The Vice President's repeated claims that Muhammad 
Atta met an Iraqi intelligence officer in Prague in 2001 were 
not confirmed by the Intelligence Community.\1539\ The 
Committee found that by May 2002, the CIA found that there was 
contradictory reporting on this trip and that it was again 
unable to verify Atta's reported trip through other channels; 
the CIA also found ``no conclusive indication of Iraqi 
complicity or foreknowledge'' of the September 11th attacks; 
\1540\ and that in July 2002, the Defense Intelligence Agency 
(DIA) indicated that there were ``significant information gaps 
in this reporting [regarding a April 2001 Atta meeting in 
Prague] that render the issue impossible to prove or 
disprove.'' \1541\
     With regard to President Bush's 2003 State of the 
Union remarks indicating Saddam Hussein had sought uranium from 
Africa, the Senate Intelligence Committee identified three 
important warnings that President Bush omitted. The CIA had 
warned him not to use that claim because of uncertainty as to 
its validity \1542\; the National Intelligence Estimate of 
October 2002 (NIE) did not include this claim in its ``Key 
Judgements'' summary of important points on which its 
conclusion of a current nuclear weapons program was based 
\1543\; and the State Department found the claim ``highly 
dubious.'' \1544\
    On July 25, 2008, Chairman Conyers convened a formal 
Judiciary Committee hearing, titled ``Executive Power and Its 
Constitutional Limitations.'' The purpose of the hearing was to 
further explore the Bush Administration's abuse of executive 
authority, including allegations of manipulating pre-war 
intelligence. The testimony from many of the witnesses, 
including Representative Dennis Kucinich of Ohio and former Los 
Angeles county prosecutor Vincent Bugliosi, centered around the 
Bush Administration's use of intelligence in making the case 
for war. Representative Kucinich's testimony focused on the 
role that fabricated intelligence played in justifying the war 
to Members of Congress and the American public at large, 
arguing that the President and Vice President knowingly misled 
Members of Congress in order to convince them to authorize the 
2003 invasion of Iraq.\1545\
    Mr. Bugliosi discussed the incomplete state of a 
declassified intelligence assessment in October 2002, which 
became known as the ``White Paper.'' The White Paper portrayed 
Hussein's Iraq as an imminent threat to the United States, but, 
as Mr. Bugliosi testified, ``the conclusion of U.S. 
Intelligence that Hussein would only be likely to attack us if 
he feared we were about to attack him was completely deleted.'' 
\1546\ The omission made Prime Minister Hussein appear much 
more dangerous. Former Judiciary Committee member Elizabeth 
Holtzman also testified, and described her conclusion that 
``[t]he deceptions, exaggerations and misstatements made by 
high level Administration officials to drive the country into 
the tragically mistaken Iraq War subvert the constitution.'' 
\1547\
    In his book released August 5, 2008, The Way of the World: 
A Story of Truth and Hope in an Age of Extremism, author Ron 
Suskind reported that White House officials had directed the 
fabrication of a letter in the name of Saddam Hussein's former 
Intelligence Chief Tahir Habbush that suggested a link between 
Iraq and Mohammed Atta.\1548\ On August 20, 2008, Chairman 
Conyers wrote the key Administration insiders alleged to be 
involved in the matter: George Tenet, former Director of the 
CIA; Rob Richer, former CIA Deputy Director of Clandestine 
Operations and Chief of the Near East Division; John Maguire, 
one of the heads of the CIA's Iraq Operations Group in the Near 
East Division; A.B. ``Buzzy'' Krongard, former Executive 
Director of the CIA; John Hannah, Assistant to the Vice 
President for National Security Affairs; and Lewis I. 
``Scooter'' Libby, former Chief of Staff to the Vice 
President.\1549\ No information was obtained in response to 
these letters that confirmed the recipients' knowledge of the 
forgeries.\1550\ Accordingly, the Administration figures who 
ordered and authored the apparent forgery--and their 
involvement in leaking it through foreign intelligence 
channels--remain unidentified.
    In December 2008, Representative Henry A. Waxman, Chairman 
of the Committee on Oversight and Government Reform, released a 
memorandum revealing that, in apparent contrast to assurances 
given by Attorney General Alberto Gonzales to the Senate Select 
Committee on Intelligence in a 2004 letter, the CIA had in fact 
objected to the statement by President Bush in his 2003 State 
of the Union speech regarding Saddam Hussein seeking uranium 
from Africa.\1551\ John Gibson former Director of Speechwriting 
for Foreign Policy at the National Security Council (NSC) 
indicated that he attempted to insert the claim about African 
uranium in a September 12, 2002, speech being written for 
President Bush to give to the United Nations.\1552\ Mr. Gibson 
stated that he was never able to clear the language with the 
CIA because the agency was concerned about the information's 
reliability. Similarly, a few weeks later, a high level CIA 
official had contacted then-National Security Advisor 
Condoleezza Rice personally to express the CIA's position that 
the statement was not credible and should be taken out of a 
speech that President Bush was preparing to deliver on 
September 26, 2002.\1553\
    In the final weeks of 2008 and of their second term, 
President Bush and Vice President Cheney gave a series of 
interviews in which they have discussed the lead-up to and 
execution of the war in Iraq. Speaking with Jonathan Karl of 
ABC News, Vice President Cheney disagreed with the assessment 
of Karl Rove that had the pre-war intelligence been correct, 
the U.S. would not have invaded Iraq. Vice President Cheney 
insisted that ``what they got wrong was that there weren't any 
stockpiles.'' \1554\ In an interview with Martha Raddatz of ABC 
News, President Bush spoke of the relationship between al Qaeda 
and Iraq:
    Mr. Bush: Clearly, one of the most important parts of my 
job because of 9/11 was to defend the security of the American 
people. There have been no attacks since I have been president, 
since 9/11. One of the major theaters against al Qaeda turns 
out to have been Iraq. This is where al Qaeda said they were 
going to take their stand. This is where al Qaeda was hoping to 
take . . .
    Ms. Raddatz: But not until after the U.S. invaded.
    Mr. Bush: Yeah, that's right. So what? \1555\
President Bush went on to insist that he ``did not have the 
luxury of knowing [Saddam Hussein] did not have [weapons of 
mass destruction], neither did the rest of the world until 
after we had come and removed him.'' \1556\

                              IV. Findings


Expansion of Executive Privilege

    1. On numerous occasions, the Bush Administration has 
significantly delayed or entirely refused the production of 
documents or congressional testimony by Executive Branch 
officials by claiming that such productions would infringe upon 
executive privilege. President Bush has not only vastly 
expanded the notion of executive privilege and its 
applications, but also has used executive privilege claims as a 
means of stonewalling congressional investigations. Subpoenas 
not complied with include:
           An April 25, 2007, House Oversight and 
        Government Reform Committee subpoena for the testimony 
        of the Secretary of State regarding alleged Niger 
        document forgeries;\1557\
           A June 13, 2007, House Judiciary Committee 
        subpoena for the testimony of former White House 
        Counsel Harriet Miers and documents concerning the U.S. 
        Attorneys firings investigation;\1558\
           A June 13, 2007, Senate Judiciary Committee 
        subpoena for the testimony of White House Chief of 
        Staff Joshua Bolten and documents concerning the U.S. 
        Attorneys firings investigation;\1559\
           A June 13, 2007, House Judiciary Committee 
        subpoena to Robert Duncan, RNC Chairman, as custodian 
        of record, for documents;
           A June 26, 2007, Senate Judiciary Committee 
        subpoena for documents and testimony of White House 
        Deputy Chief of Staff Karl Rove concerning the U.S. 
        Attorneys firings investigation;\1560\
           A March 13, 2008, House Oversight and 
        Government Reform Committee subpoena for unredacted 
        copies of documents in the possession of the 
        Environmental Protection Agency;\1561\
           An April 16, 2008, House Oversight and 
        Government Reform to Susan Dudley, Administrator, 
        Office of Information and Regulatory Affairs in the 
        White House Office of Management and Budget (OMB) for 
        documents concerning the EPA's denial of California's 
        request for a waiver to impose stricter greenhouse gas 
        emission standards;\1562\
           The April 9, 2008, and May 5, 2008, House 
        Oversight and Government Reform Committee subpoenas for 
        the testimony of EPA Administrator Stephen L. Johnson 
        regarding the EPA's denial of California's request for 
        a waiver to impose stricter greenhouse gas 
        emissions;\1563\
           A May 22, 2008, House Judiciary Committee 
        subpoena for the testimony of White House Deputy Chief 
        of Staff Karl Rove concerning the U.S. Attorneys 
        firings investigation;\1564\
           A June 16, 2008, House Oversight and 
        Government Reform Committee subpoena to Attorney 
        General Mukasey concerning FBI interview reports with 
        President Bush and Vice President Cheney regarding the 
        outing of CIA agent Valerie Plame;\1565\
           A June 27, 2008, House Judiciary Committee 
        subpoena to Attorney General Mukasey for documents 
        previously requested from the Department of Justice 
        concerning withheld OLC opinions, FBI interviews of 
        President Bush and Vice President Cheney regarding the 
        outing of Valerie Plame, and internal Justice 
        Department documents concerning the Siegelman and Wecht 
        prosecutions;\1566\
           An October 21, 2008, Senate Judiciary 
        Committee subpoena to Attorney General Mukasey for 
        documents pertaining to legal analysis and advice 
        provided by the Department of Justice's Office of Legal 
        Counsel regarding the Bush Administration's terrorism 
        policies, including detention and interrogation polices 
        and practices.\1567\

State Secrets Privilege

    2. In contrast to assertions of state secrets privilege 
under previous administrations, the Bush Administration invoked 
the privilege to dismiss cases challenging specific ongoing 
government programs and prevented disclosure of potentially 
unlawful conduct by the Administration itself.\1568\ These 
assertions have prevented disclosure of potentially unlawful 
conduct by members of the Bush Administration, including:
     Invocation of the state secrets privilege resulted 
in the dismissal of a wrongful termination lawsuit brought by 
former FBI agent and whistleblower Sibel Edmonds. In an 
investigation taking place at the same time, the FBI's 
Inspector General determined that Sibel Edmonds had been 
improperly dismissed and that her charges had never been 
properly investigated.\1569\
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by Khalid el-Masri, 
preventing judicial review of the legality of the 
Administration's rendition programming.\1570\
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by Maher Arar, preventing 
judicial review of the legality of the Administration's 
rendition programming.\1571\
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by the Al-Haramain 
Islamic Foundation, preventing judicial review of the legality 
of the Administration's warrantless wiretapping program.\1572\
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by the ACLU, preventing 
judicial review of the legality of the Administration's 
warrantless wiretapping program.
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by the Electronic 
Frontier Foundation, preventing judicial review of the legality 
of the Administration's warrantless wiretapping program.
     Invocation of the state secrets privilege resulted 
in the dismissal of a lawsuit brought by the Center for 
Constitutional Rights, preventing judicial review of the 
legality of the Administration's warrantless wiretapping 
program.

Abuse of Classification and Other Authorities

    3. The Bush Administration has misused authority with 
regard to the classification of documents under the Freedom of 
Information Act, the Presidential Records Act, and the Vice 
President's Office to deny or delay the release of information 
to Congress and the public, potentially covering up misconduct 
by the Bush Administration.
     Executive Order 13292 issued by President Bush 
reversed many key policies mitigating in favor of 
declassification, including providing for longer periods of 
time for declassification and weakening the standards for 
declassification.\1573\
     FOIA was significantly weakened under the Bush 
Administration as a result of (i) a 2001 directive by then-
Attorney General Ashcroft encouraging agency heads to deny FOIA 
requests even if no harm would result from disclosure; (ii) 
2002 and 2008 White House memoranda which encouraged denying 
FOIA claims for ``sensitive but unclassified information'' and 
using the newly-created ``controlled unclassified information'' 
designation to ``inform'' (but not control) the decision 
whether to release information to the public; and (iii) the 
transfer in the Administration's proposed fiscal year 2009 
budget of the newly-created FOIA Ombudsman position from the 
independent National Archives to the Department of Justice, 
which is part of the Executive Branch.\1574\
     Executive Order 13233 issued by President Bush 
weakens the Presidential Records Act by allowing former 
presidents and vice presidents to bar release of documents by 
claiming one of numerous privileges.\1575\
     The Vice President's Office sought to treat itself 
as an entity not subject to Executive Branch disclosure 
obligations, and denied information to the Archivist and tried 
to have the Archivist's investigating office eliminated.\1576\

Manipulation and Misuse of Intelligence

    4. A decision had been made to invade Iraq while President 
Bush and senior members of his Administration continued to make 
statements that a decision had not been made to invade.
     President Bush and senior members of his 
Administration made numerous statements to the effect that no 
decision had been made to go to war with Iraq. For example, as 
early as September 8, 2002, Vice President Cheney insisted that 
``no decision's been made yet to launch a military operation,'' 
\1577\ and as late as March 6, 2003, President Bush declared 
``I've not made up our mind about military action.'' \1578\
     The Downing Street Minutes provided unrebutted 
documentary evidence that by the spring and summer of 2002, the 
Blair government had reason to believe that the Bush 
Administration had made an irrevocable decision to invade Iraq. 
Among other things, the leaked documents revealed that 
President Bush had told Prime Minister Blair ``when we have 
dealt with Afghanistan, we must come back to Iraq'' (Fall, 
2001) \1579\; ``Condi's enthusiasm for regime change is 
undimmed'' (March 14, 2002) \1580\; the U.S. has ``assumed 
regime change as a means of eliminating Iraq's WMD threat'' 
(March 25, 2002) \1581\; and ``Bush wanted to remove Saddam 
through military action, justified by the conjunction of 
terrorism and WMD'' and ``the intelligence and facts were being 
fixed around the policy'' (July 23, 2002).\1582\
    5. President Bush and senior members of his Administration 
made unsubstantiated, if not false, claims linking Saddam 
Hussein and al Qaeda.
     Members of the Bush Administration, including the 
President, made a number of statements linking Saddam Hussein 
to the events of September 11 and to al Qaeda. For example, 
President Bush commented on September 25, 2002, ``You can't 
distinguish between al Qaeda and Saddam when you talk about the 
War on Terror;'' \1583\ and on September 27, 2002, Secretary 
Rumsfeld claimed that he had ``bulletproof'' evidence of ties 
between Saddam and al Qaeda.\1584\ However, the 2008 Senate 
Intelligence Committee Report found that on several occasions, 
the CIA and the DIA expressed doubts that there was any 
collusion between Hussein and bin Ladin because ``Saddam views 
bin Ladin's brand of Islam as a threat to his regime and bin 
Ladin is opposed to those Muslim states that do not follow his 
version of Islam.'' \1585\ Moreover, the 9-11 Commission 
concluded that it had found no ``collaborative'' relationship 
between Iraq and al Qaeda and that ``[w]e have no credible 
evidence that Iraq and al Qaeda cooperated on attacks against 
the United States.'' \1586\
     Vice President Cheney made unsubstantiated, if not 
false, claims specifically linking Iraq with the September 11 
hijacker Muhammad Atta. Vice President Cheney appeared on Meet 
the Press on December 9, 2001, and stated: ``Well, what we now 
have that's developed since you and I last talked, Tim 
[Russert], of course, was that report that's been pretty well 
confirmed, that [Mohammed Atta, one of the hijackers] . . . did 
go to Prague and he did meet with a senior official of the 
Iraqi intelligence service in Czechoslovakia last April, 
several months before the attack.'' \1587\ Subsequently, the 9-
11 Commission addressed the Vice President's allegations of 
meetings between Atta and Iraqi intelligence, concluding, ``We 
do not believe that such a meeting occurred.'' \1588\
     Both President Bush and Secretary of State Powell 
made unsubstantiated, if not false, claims that Iraq had 
trained al Qaeda members to use chemical and biological 
weapons. In his October 7, 2002, speech in Cincinnati, the 
President stated: ``We've learned that Iraq has trained al 
Qaeda members in bomb-making and poisons and deadly gases,'' 
\1589\ and in his February 5, 2003, speech before the UN, 
Secretary of State Powell stated: ``I can trace the story of a 
senior terrorist operative telling how Iraq provided these 
weapons to al Qaeda.'' \1590\ These allegations were based on 
disclosures by Ibu al-Shaykh al-Libi, an aide to bin Laden in 
U.S. custody. However, the 2008 Senate Intelligence Committee 
reported noted that by February of 2002, intelligence sources 
began to question al-Libi's credibility, with a DIA defense 
intelligence report finding, ``It is possible [al-Libi] does 
not know any further details; it is more likely this individual 
is intentionally misleading debriefers.'' \1591\
     President Bush made unsubstantiated, if not false, 
claims that Iraq would supply weapons to terrorist groups. 
During his September 12, 2002, speech to the United Nations 
General Assembly, President Bush indicated that the Iraqi 
government would supply WMDs to terrorist when he said ``our 
greatest fear is that terrorist will find a shortcut to their 
mad ambitions when an outlaw regime supplies them with the 
technologies to kill on a massive scale. In one place--in one 
regime--we find all these dangers . . .'' \1592\ However, 
according to the 2008 Senate Intelligence report, intelligence 
assessments before and after the President's September 2002 
address consistently expressed the difficulty of trying to 
gauge Saddam's intentions with accuracy.\1593\
    6. President Bush and senior members of his Administration 
made unsubstantiated, if not false, claims concerning Iraq's 
alleged nuclear weapons program.
     President Bush and other senior members of his 
Administration made unsubstantiated, if not false, claims that 
Iraq had acquired uranium from Africa. In his 2003 State of the 
Union Address, President Bush told the country, ``the British 
Government has learned that Saddam Hussein recently discussed 
significant acquisition of uranium from Africa.'' \1594\ 
However, in their 2008 report, the Senate Intelligence 
Committee disclosed that the CIA had warned the President not 
to use that claim because of uncertainty as to its 
validity,\1595\ and the State Department found the claim 
``highly dubious.'' \1596\ In addition, in December of 2008, 
the Oversight and Government Reform Committee disclosed a 
memorandum indicating that the President's statement regarding 
uranium had not been cleared by the CIA.\1597\
     President Bush and senior members of his 
Administration made unsubstantiated, if not false, claims that 
Iraq was using aluminum tubes to assist in making nuclear 
weapons. On September 8, 2002, Vice President Cheney and 
National Security Advisor Condoleezza Rice both appeared on 
television to argue and confirm that the tubes were part of 
Iraq's aggressive nuclear weapons program.\1598\ President Bush 
would later state in his 2003 State of the Union Address that 
Saddam Hussein was trying to buy tubes ``suitable for nuclear 
weapons production.'' \1599\ However, the July 2004 report by 
the Senate Intelligence Committee revealed that, at the time, 
``the information available to the intelligence community 
indicated that these [aluminum] tubes were intended to be used 
for an Iraqi conventional rocket program and not a nuclear 
program.'' \1600\
    7. Senior members of the Bush Administration placed undue 
pressure on intelligence officials in order to obtain 
intelligence assessments that aided their efforts to make the 
case for invading Iraq.
     As early as October 2002, an anonymous 
intelligence official stated, ``Analysts at the working level 
in the intelligence community are feeling very strong pressure 
from the Pentagon to cook the intelligence books.'' \1601\ 
Richard Kerr, a former high-level CIA analyst who conducted the 
agency's classified internal review of pre-war intelligence on 
Iraq and how it was used by the White House, reported, ``There 
were people who felt there was too much pressure. Not that they 
were being asked to change their judgments, but they were being 
asked again and again to re-state their judgments--do another 
paper on this, repetitive pressures. Do it again.'' \1602\
                   Section 6--Policy Recommendations

    Discussed below is a comprehensive set of 50 
recommendations designed to respond to the abuses and excesses 
of the Bush Imperial Presidency. They correspond to the topics 
discussed in more detail in sections one through five of this 
report, although a short explanation of the reasons for each 
recommendation is included below. Some of these recommendations 
will require congressional action, while others can and should 
be implemented promptly by executive action by the incoming 
Obama Administration.
General
    1. The Congress and the Judiciary Committee should pursue 
document and witness requests pending at the end of the 110th 
Congress, including subpoenas, and the incoming Administration 
should cooperate with those requests. The Committee's 
outstanding requests include: (i) subpoenas to Harriet Miers 
and Josh Bolten for testimony and documents relating to the 
politicization of the Department of Justice and the U.S. 
Attorney firings; (iii) a subpoena to Karl Rove for testimony 
relating to the politicization of the Department of Justice and 
the U.S. Attorney firings; (iii) a subpoena to the Republican 
National Committee for documents relating to the politicization 
of the Department of Justice and the U.S. Attorneys firings; 
(iv) a subpoena to Attorney General Mukasey for documents 
regarding selective prosecution, undisclosed OLC memoranda 
concerning national security and related issues, and unredacted 
FBI reports of interviews with President Bush, Vice President 
Cheney, and other White House officials concerning the 
unauthorized disclosure of Valerie Plame Wilson's identity; (v) 
the unredacted notes of FBI Director Mueller relating to the 
2004 hospital visit at Attorney General Ashcroft's bedside and 
the Terrorist Surveillance Program; (vi) information regarding 
the Justice Department's arrangements to pay for former 
Attorney General Gonzales' legal fees stemming from the pending 
class action lawsuit relating to allegations of politicized 
hiring; and (vii) e-mails and documents pertaining to the FBI 
whistleblower claims of Bassem Youssef and Michael 
German.\1603\
    Reason: The Bush Administration has relied on excessively 
broad claims of executive privilege and immunity from subpoena 
to obstruct congressional oversight of the Administration's 
operations and activities. While a new Administration is soon 
to take office, critical questions about the matters under 
investigation remain unanswered. No president should be allowed 
to run out the clock on important congressional oversight in 
this fashion. While executive confidentiality may be necessary 
in limited circumstances to protect the content and candor of 
counsel to the president, the principle has been abused. Left 
unresolved, this dispute involving the Judiciary Committee and 
the Congress could set a dangerous precedent whereby future 
administrations could avoid congressional inquiry simply by 
refusing to provide documents and waiting out the end of the 
presidential term. The executive would then effectively be able 
to erase one of the checks held over it by the legislative 
branch.\1604\
    2. Congress should establish a Blue Ribbon Commission or 
similar panel to investigate the broad range of policies of the 
Bush Administration that were undertaken under claims of 
unreviewable war powers, including detention, enhanced 
interrogation, ghosting and black sites, extraordinary 
rendition, and warrantless domestic surveillance. This 
Commission should have subpoena power, the power to take 
depositions, and the right to compel testimony or seek access 
to the courts to enforce subpoenas for hearing or deposition 
testimony or for documents. The president should order full 
cooperation by all present and past federal employees with 
requests for information from this Commission, and, to the 
extent possible, waive privileges, including privileges that 
may be asserted by prior Administration officials, that would 
otherwise impede the fact-finding process.\1605\ Chairman 
Conyers introduced H.R. 104 on the first day of the 111th 
Congress, January 6, 2009, to provide for such a commission.
    Reason: At present, information concerning the Bush 
Administration's policies that have impacted civil liberties--
such as its detention, interrogation, ghosting, rendition, and 
warrantless domestic surveillance policies--has emerged in 
somewhat limited internal investigations, a few press articles 
and some self-serving public statements or publications, and 
the disclosure of a limited set of documents. While there have 
been some important Committee investigations on particular 
matters of controversy, there has been no systematic effort to 
ascertain the pertinent facts as to the formulation and 
implementation of these policies. The American people and 
Congress must have a more comprehensive understanding of the 
facts and circumstances that resulted in the policies and 
practices of the Bush Administration by which it asserted that 
the president could exercise uncheckable and unreviewable 
powers as Commander in Chief in spheres of action that directly 
impacted the Constitutional rights of United States citizens.
    Previous blue-ribbon panels, such as the ``National 
Commission on Terrorist Attacks Upon the United States'' (the 
``9/11 Commission'') have helped inform and educate the public 
and the Congress, as have congressional ``select committees'' 
such as the Select Committee to Study Government Intelligence 
Activities (the ``Church Committee''), the respective ``House 
Select Committee to Investigate Covert Arms Transactions with 
Iran'' and the ``Senate Select Committee on Secret Military 
Assistance to Iran and the Nicaraguan Opposition'' (the 
congressional ``Iran/Contra Committees''), and the Senate 
Select Committee on Presidential Campaign Activities (the 
Senate ``Watergate'' Committee, chaired by Senator Sam Ervin).
    3. The Attorney General should appoint a Special Counsel, 
or expand the scope of the present investigation into CIA tape 
destruction, to determine whether there were criminal 
violations committed pursuant to Bush Administration policies 
that were undertaken under unreviewable war powers, including 
enhanced interrogation, extraordinary rendition, and 
warrantless domestic surveillance. This criminal investigation 
should, for the first time, ascertain and critically examine 
the facts to determine whether federal criminal laws were 
violated. It may be appropriate for certain aspects of the 
factual investigation by the prosecutor to await pertinent 
reports by the Inspectors General or information developed by 
any Blue Ribbon Commission or Select Committee. As part of this 
process, the incoming Administration should provide all 
relevant information and all necessary resources to outstanding 
Justice Department investigations, including with respect to 
the U.S. Attorney removals, the politicization of the Civil 
Rights Division, and allegations of selective prosecution. 
Congress should also consider extending the statute of 
limitations for potential violations of the torture statute, 
war crimes statute, laws prohibiting warrantless domestic 
surveillance, or for crimes committed against persons in United 
States military custody or CIA custody to ten years.
    Reason: Among other things, documented incidents of grave 
abuse of detainees at various detention facilities including 
Abu Ghraib and Guantanamo Bay and the extraordinary rendition 
of terror suspects to countries where they have been tortured, 
and the implementation of warrantless surveillance inside the 
United States, raise credible concerns that criminal laws may 
have been violated.\1606\ Attorney General Mukasey agreed only 
to appoint a special U.S. Attorney to determine whether the 
destruction of videotapes depicting the waterboarding of a 
detainee constituted violations of federal law.\1607\ Despite 
requests from Congress, that prosecutor was not asked to 
investigate whether the underlying conduct being depicted--the 
waterboarding itself or other harsh interrogation techniques 
used by the military or the CIA--violated the law.\1608\ In 
this regard, Attorney General Eric Holder, in his confirmation, 
was unequivocal in stating, in response to a question by 
Senator Leahy: ``I agree with you, Mr. Chairman, water boarding 
is torture.'' \1609\ The Bush Administration's Attorney 
Generals refused to appoint a special counsel to investigate 
whether the practice of extraordinary rendition and, in 
particular whether the extraordinary rendition of Canadian 
citizen Maher Arar, violated the law. Similarly, there remains 
a serious question as to whether the warrantless domestic 
surveillance engaged in as part of the so-called ``Terrorist 
Surveillance Program'' prior to January 2007, violated the 
law.\1610\
    Finally, the United Nations Convention Against Torture and 
Cruel, Inhuman and Degrading Treatment (Torture Convention), 
ratified by the United States in 1994, appears to require the 
United States to investigate possible torture committed within 
its jurisdiction. Article 12 of the Convention requires: ``Each 
State Party shall ensure that its competent authorities proceed 
to a prompt and impartial investigation, wherever there is 
reasonable ground to believe that an act of torture has been 
committed in any territory under its jurisdiction.'' \1611\ 
Under the Supreme Court's decisions providing the Guantanamo 
detainees access to the United States courts to pursue habeas 
claims, there is little question that Guantanamo would be 
considered a ``territory under [the United States'] 
jurisdiction.'' Moreover, the statement of Susan J. Crawford, 
the convening authority for military commissions, that: ``We 
tortured [Mohammed al-Qahtani],'' along with other public 
materials that describe aspects of that interrogation, provide 
``reasonable grounds'' to believe that torture was committed 
there.\1612\
    It would seem that all or part of the above-described 
conduct meets the relevant requirements under federal 
regulations for the appointment of a special counsel (28 CFR 
600.1), in that (i) a criminal investigation is warranted 
(e.g., waterboarding and warrantless domestic surveillance 
appear to violate criminal laws); (ii) the investigation would 
present a conflict of interest for the Justice Department 
(e.g., some of the potentially culpable parties have worked for 
or with the Department); and (iii) appointment of a special 
counsel would be in the public interest (e.g., it would help 
dispel a cloud of doubt over our law enforcement system).

Politicization of the Department of Justice

    4. The incoming Administration should review and consider 
strengthening the policy limiting contacts concerning 
prosecution and enforcement matters. The incoming 
Administration should review and strengthen as appropriate the 
current policy limiting contacts between the White House, the 
Department of Justice, and Members of Congress regarding 
prosecution and civil enforcement matters.
    Reason: Attorney General Mukasey deserves credit for 
revising the Ashcroft/Gonzales policy under which a broad range 
of individuals within the White House were authorized to 
communicate with Department personnel about criminal 
prosecution or civil enforcement matters. Further review is 
warranted, however, to assess whether the current policy has 
appropriately limited these channels of communication. In 
addition, this policy appears to be contained solely in a 
memorandum from Attorney General Mukasey to Department of 
Justice officials, including United States Attorneys.\1613\ In 
past administrations, however, Department policy regarding 
contacts with the White House or members of Congress on 
prosecution and civil enforcement has additionally been stated 
in formal communications to congressional Committee Chairs and 
the White House Counsel,\1614\ and the incoming Administration 
should consider whether such additional steps are warranted.
    5. The incoming Administration should continue the 
customary practice of replacing U.S. Attorneys at the outset of 
the Administration. The Administration should accept the 
resignation of current U.S. Attorneys, as has been customary 
for incoming administrations when a change of party occurs, and 
should promptly appoint new U.S. Attorneys to all positions 
nationwide except where traditional recommenders urge that 
retaining current U.S. Attorneys would be in the public 
interest.
    Reason: The Bush Administration's politicization of the 
United States Attorney corps has shaken the public's faith in 
the fairness of our federal criminal justice system. The 
Administration's refusal to provide a full public accounting of 
these issues to Congress or to the public has exacerbated the 
problem and cast an unfortunate cloud over the entire U.S. 
Attorney corps. In these circumstances, it is imperative to 
have a clean break and appoint a new slate of respected federal 
prosecutors through an appropriately thorough and professional 
process. In particular cases where traditional recommenders 
urge that current U.S. Attorneys be retained and the president 
concludes that doing so would be in the public interest, 
exceptions to this process may be appropriate. The Bush 
Administration, it should be noted, has already facilitated 
this process by requesting all political appointees to submit 
such letters of resignation ``consistent with past practice.'' 
\1615\
    6. Congress should expand Justice Department Inspector 
General jurisdiction. Congress should consider legislation that 
would clarify and expand the jurisdiction of the Department of 
Justice's Office of the Inspector General to allow 
investigation of misconduct by senior Justice Department 
officials and United States Attorneys, such as the Amendment to 
H.R. 928 on this subject offered by Chairman Conyers and passed 
by the House during the 110th Congress.\1616\
    Reason: Under current law, charges of political 
interference with prosecution decisions fall within the 
jurisdiction of the Department's Office of Professional 
Responsibility (OPR) and may not be investigated by the 
Department's Inspector General. Thus, the highly controversial 
Siegelman case and other matters raising concerns about 
political interference with prosecutorial decision-making are 
being investigated solely by OPR. Because OPR is answerable to 
the Attorney General, while the Inspector General has statutory 
independence, such matters are often better investigated by 
OIG. Accordingly, the next Administration and the Congress 
should support legislation allowing OIG to investigate 
allegations of misconduct by senior Department officials and 
United States Attorneys. This would strengthen the Department's 
ability to address such matters internally and enhance the 
credibility of Department investigations of these sensitive 
issues.
    7. Congress should pass legislation providing Inspectors 
General the power to subpoena former agency employees and 
contract employees for testimony related to matters that 
occurred in connection with their employment or contract. This 
legislation would amend the Inspector General Act to permit an 
Inspector General to issue a subpoena to take testimony of an 
employee who resigns (or is no longer with the agency) and 
declines to consent to an interview by the Inspector General, 
subject to the reasonable limitations that testimony relate to 
matters occurring in connection with the individual's 
employment with the agency. As with other Inspector General 
subpoenas, such a subpoena for testimony would be enforceable 
by a district court.
    Reason: The ability of the various Inspectors General to 
ferret out waste, fraud, and abuse can be easily frustrated 
when critical witnesses who were employees at the agency and 
have pertinent information resign rather than submit to 
interviews. The experiences of Department of Justice Inspector 
General Glenn Fine provide numerous examples of this problem. 
For example, in connection with his investigation of 
politicized hiring practices by Monica Goodling, Inspector 
General Fine noted in his report: ``Monica Goodling declined 
our request to be interviewed. Because she is not currently 
employed by the Department, we could not compel her to 
cooperate.'' \1617\
    Another example that typifies this problem occurred in 
connection with the Justice Department Inspector General's 
investigation of political hiring in the Department's Honors 
Program. Inspector General Fine described his Office's attempts 
to secure an interview with Ester Slater McDonald, Counsel to 
the Acting Associate Attorney General as follows:

          McDonald declined to be interviewed during our 
        investigation. When we first contacted her in September 
        2007 for an interview, she was a Counsel to the 
        Associate Attorney General. She initially agreed to a 
        tentative date for her interview, but she later asked 
        us to postpone the interview while she retained 
        counsel. We agreed. After McDonald retained an 
        attorney, and after allowing time for the attorney to 
        familiarize himself with the matter, a new date for the 
        interview was set, October 25, 2007. However, at 5:15 
        p.m. on October 24, McDonald's attorney e-mailed our 
        investigators to advise them that his client was 
        canceling the interview. The attorney added that 
        McDonald was no longer employed by the Department.
          We learned that McDonald had resigned from the 
        Department, effective October 24. On the evening of 
        October 23, she had told her supervisor, Acting 
        Associate Attorney General Katsas, that the next day 
        would be her last day at the Department. Katsas said 
        that her resignation came as a surprise to him.\1618\

As Inspector General Fine explicitly noted, her resignation and 
refusal to be interviewed frustrated his ability to identify 
the person or persons who gave Ms. McDonald instructions to 
implement the improper applicant review procedures.\1619\ This 
problem of the departed employee has emerged and been 
documented in other circumstances as well.\1620\
    The ability of an Inspector General to uncover wrong-doing 
should not be so easily frustrated by the departure of 
necessary witnesses from an agency. At present, the Inspectors 
General possess the authority to issues subpoenas for certain 
documents.\1621\ This legislation would extend that subpoena 
authority to testimony in the special circumstance of a 
departed employee.\1622\
    8. The incoming Administration should improve the Executive 
Office of Immigration Review (EOIR) and the functioning of the 
immigration courts. The next Administration should ensure the 
professionalism and quality of the immigration courts, 
including the review process, by: increasing the number of 
immigration judges and law clerks; filling judicial vacancies 
promptly; providing meaningful and ongoing education and 
training for judges; addressing technology issues; and engaging 
in a review of Board of Immigration Appeals practices, such as 
affirmances without opinion and the implementation of the 2002 
``streamlining'' regulations.\1623\ An expert roundtable to 
consider further administrative and legislative improvements 
should be convened.
    Reason: A Joint Report by the Department's Inspector 
General and Office of Professional Responsibility found 
substantial and ``systematic'' politicization in the selection 
of immigration judges, in violation of the law.\1624\ The 
recommended improvements would minimize the substantive impact 
of this improper politicization and enhance the performance of 
EOIR and the immigration courts.\1625\
    9. The Department of Justice should rescind the policy 
prohibiting career voting section employees from making 
recommendations as to whether the Department should object to 
proposed voting changes. The Attorney General should reinstate 
the policy followed prior to 2005 and allow recommendations 
from career staff as to whether the Department should object to 
proposed voting changes from state and local jurisdictions 
under Section 5 of the Voting Rights Act. It should also be 
made clear that career staff need not artificially limit their 
written analysis to the facts surrounding specific Section 5 
submissions.
    Reason: Under Section 5 of the Voting Rights Act, the 
Department of Justice reviews proposed changes to voting 
practices and procedures in jurisdictions with a history of 
voting discrimination, and can object to and make difficult to 
enact changes that have the purpose or effect of harming 
minority voting rights. As discussed in Section 1, in response 
to significant controversy concerning the Department's decision 
not to object to a Georgia law requiring photo identification 
to vote, a decision that some charged had involved political 
considerations, it was reported that the Department's political 
leadership instituted a new policy in 2005 requiring that staff 
members who review Section 5 submissions limit their written 
analysis to the facts of specific cases and refrain from making 
any recommendations as to whether the Department should object 
to the change.\1626\ Informal reports indicate that this policy 
remains in effect. In addition to the concern about 
politicization of Justice Department decisions, such a policy 
impairs the ability of the Justice Department to effectively 
analyze proposed voting changes and protect minority voting 
rights and should therefore be eliminated.
    10. The Attorney General should conduct an independent 
review as to whether Bradley Schlozman violated criminal laws 
in his testimony before Congress. As promised during his 
confirmation hearing,\1627\ Attorney General Holder should 
order an independent review of the U.S. Attorney's Office of 
the District of Columbia's decision not to pursue criminal 
prosecution of Mr. Schlozman for providing false statements to 
Congress.
    Reason: On June 5, 2007, Schlozman testified under oath 
before the Senate Judiciary Committee in connection with its 
investigation into the use of political considerations in 
hiring and firing of career attorneys at the Department of 
Justice. After evaluating Mr. Schlozman's testimony, the 
Justice Department's Office of the Inspector General (OIG) and 
Office of Professional Responsibility (OPR) concluded that Mr. 
Schlozman provided false statements to Congress and referred 
the matter to federal prosecutors. The OIG and OPR provided to 
the U.S. Attorney Office for the District of Columbia 
substantial evidence gathered during the course of its 
investigation, including transcripts of interviews, relevant 
documents, and e-mails which contradicted the sworn testimony 
of Mr. Schlozman. Providing false statements to Congress is a 
criminal offense and those who engage in such behavior should 
be federally prosecuted.
    11. The Department of Justice should revise the Federal 
Prosecution of Election Offenses Manual. The Attorney General 
should reinstate language contained in the ``Policy and 
Procedural Considerations'' section of the January 1995 manual 
designed to prevent partisan abuse of election law enforcement 
by the Department. The Department should restore language 
warning against investigating allegations of voter fraud 
shortly before an election, reinstate the earlier cautionary 
policy against pursuing isolated instances of individual voter 
fraud (as compared to large scale cases of voter suppression), 
and reinstate the list of pre-election investigatory 
precautions (including those with respect to voter fraud) to be 
followed by prosecutors.
    Reason: A federal criminal investigation initiated close to 
an election runs the risks of chilling legitimate voting 
participation and campaign activities, particularly in 
jurisdictions where there is a history of disfranchisement 
efforts targeting racial and ethnic minorities. As discussed in 
Section 1, moreover, actual and attempted politicization of 
voter fraud cases during the Bush Administration, such as the 
cases brought in 2006 by acting U.S. Attorney Brad Schlozman in 
Missouri, clearly warrant the reinstatement of language 
designed to help prevent partisan abuse of election law 
enforcement by federal prosecutors. In addition, federal 
election fraud prosecutions should involve a systemic and 
organized pattern of abuse, since individual cases typically 
have a minimal impact on the integrity of the voting process 
and generally represent an unwise use of Departmental 
resources.
    12. Congress should enact comprehensive election reform 
legislation. Among other things, the legislation should: (i) 
prohibit deceptive practices and voter intimidation; \1628\ 
(ii) prohibit the practice of voter caging (including caging 
based on mortgage foreclosure lists) and establish 
circumstances under which voters can properly be challenged at 
the polls; \1629\ (iii) establish a uniform system for counting 
provisional ballots; (iv) clarify that non-matches between a 
registration list and drivers license or Social Security 
information under HAVA is not an automatic trigger for removing 
voters from voter registration rolls; (v) make clear that 
voters without photo identification can vote if they sign an 
affidavit confirming their identity; (vi) eliminate disparities 
in the allocation of voting machines and poll workers among a 
state's precincts; (vii) mandate early voting and election day 
registration procedures; (viii) provide uniform standards for 
vote recounts; and (ix) prohibit voting machine companies that 
manufacture or sell voting equipment to state and local 
governments from engaging in political activities.\1630\ 
Chairman Conyers introduced a comprehensive election reform 
bill, H.R. 105, the Voter Opportunity and Technology 
Enhancement Rights (VOTER) Act of 2009 on the first day of the 
111th Congress, January 6, 2009.
    Reason: Voting irregularities and improprieties were 
reported throughout the country during the 2000 and subsequent 
presidential elections. As discussed in Section 1, actions of 
the Justice Department since then have weakened voting rights. 
Many barriers prevented thousands of people from voting. Voter 
registration was made more difficult. Officials misconstrued, 
misapplied and abused identification and provisional-ballot 
rules. In some areas, there were few voting machines in heavily 
populated minority areas, leading to unacceptable wait times, 
and there were suspicious voting-machine ``errors.'' There were 
also numerous allegations of voter intimidation, voter 
deception, and vote suppression. Attempts were made to 
improperly challenge voters based on mass mailing or ``caging'' 
tactics, and to disqualify voters because of non-matches 
between information on registration lists and other data bases, 
contrary to the law.\1631\ On the positive side, experience 
with early voting and same day registration has demonstrated 
that these methods can help prevent a number of these voting 
difficulties. Numerous reports have documented these problems 
and potential solutions.\1632\ Comprehensive federal 
legislation including the specific reforms listed above, most 
of which have been included in previous federal election reform 
proposals, would promote uniformity of procedures and help 
ensure that all voters who are eligible to vote are able to 
vote, and have their vote properly counted in Federal 
elections.

Assault on Individual Liberty: Detention, Enhanced Interrogation, 
        Ghosting and Black Sites, Extraordinary Rendition, Warrantless 
        Domestic Surveillance, and National Security and Exigent 
        Letters

    13. The Department of Justice should reform its Office of 
Legal Counsel. The Attorney General should adopt rules to 
ensure that the Office of Legal Counsel provides the high 
quality, professional and independent legal advice that has 
long been its hallmark. Accordingly, the incoming 
Administration should formally adopt the well-stated 
``Principles to Guide the Office of Legal Counsel,'' proposed 
on December 21, 2004, by 19 former OLC attorneys.\1633\ These 
principles address matters such as the appropriate standards of 
professionalism and independence that should guide OLC 
attorneys, the importance of considering and addressing 
alternative legal arguments, the importance of conducting an 
effective interagency review of sensitive policy opinions, and 
related matters. They require public disclosure of opinions 
that conclude that the executive branch may disregard a federal 
statutory requirement, and call for timely disclosure of most 
OLC opinions. Furthermore, all current legal opinions should be 
reviewed, flawed opinions should be withdrawn, and non-
classified opinions should be publically disclosed as 
appropriate.\1634\ In the future, classified opinions should be 
made available to the House and Senate Judiciary Committees, to 
ensure effective oversight of the Department of Justice.\1635\ 
Finally, if necessary, Congress should consider legislation 
such as H.R. 6929, the ``Office of Legal Counsel Reporting Act 
of 2008,'' introduced by Representative Brad Miller in the 
110th Congress, which would specifically require that OLC 
opinions be disclosed to Congress and that the Comptroller 
General review OLC practices.
    Reason: The Department of Justice's Office of Legal Counsel 
has been at the center of providing the legal rationale for 
unreviewable Commander in Chief powers to justify the Bush 
Administration's policies regarding torture and interrogation 
(among other areas), and other executive usurpations of power. 
Traditional lines of communication between the White House and 
OLC broke down during the Bush Administration, so that White 
House aides worked too closely with lower tier OLC officials 
such as John Yoo to craft legal opinions that were politically 
or operationally useful to the Administration but which were 
not legally sound. These actions undermined OLC in a way that 
has harmed the nation, and in particular has damaged our 
intelligence services, which received erratic and unreliable 
guidance on the most sensitive of matters.
    It is antithetical to the principles of our Constitution 
that the president should claim secret powers supported by 
secret interpretations of the Constitution. In fact, it is not 
fully known what body of ``secret law'' sits on the secret 
books of the Department of Justice and other Executive Branch 
offices. Documents such as those advising interpretations of 
the law that have been found unconstitutional by courts--such 
as the memoranda which concluded that the Geneva Conventions 
did not apply to the detainees--should be explicitly revoked.
    14. The incoming Administration should close the U.S. 
prison at Guantanamo Bay. The President by executive order 
should close the Guantanamo Bay detention facility and 
dismantle the existing military commission system. The al Qaeda 
detainees accused of hostile conduct should, as a general 
matter, be charged with federal offenses and tried in the 
United States courts. Every effort should be made to find 
foreign countries to which other detainees who cannot be tried 
(either for lack of usable evidence or for other reasons), 
should be sent.\1636\ In rare circumstances and as a last 
resort, detainees--such as the Chinese Uighurs \1637\--may be 
released into the United States.\1638\ The statute of 
limitations for terrorism related offenses should be increased 
from 8 to 10 years to minimize the prospect that the fact that 
the individuals have been held in Guantanamo (or elsewhere in 
military custody) would impede the ability to prosecute. 
Finally, Congress should conduct oversight and consider 
repealing the Military Commissions Act if necessary.
    Reason: The actions of the United States in taking into 
military custody persons from around the world and sending them 
blind-folded and shackled to a remote island prison, where they 
have been subjected to harsh interrogation, has brought world-
wide condemnation, especially where the processes for 
determining whether they should be so detained lacked 
procedural fairness. Indeed, the Bush Administration chose to 
hold the detainees at Guantanamo Bay on the assumption that 
there would be no institutions (such as the courts) to second-
guess decisions as to who should be detained, for how long, and 
under what conditions. Even though the Supreme Court has 
required the Administration to use procedures that permit 
judicial review of the detention determinations and has 
permitted the detainees access to federal courts to pursue 
habeas corpus claims, approximately 250 prisoners are still 
held at Guantanamo.
    The prisoners at Guantanamo cannot be neatly categorized. 
Some are al Qaeda fighters who can and should be prosecuted and 
tried for criminal terrorist acts, including their involvement 
in terrorist conspiracies. Others, like the Chinese Uighurs, do 
not pose a threat to the United States. The majority are 
alleged to have fought against the United States in 
Afghanistan, and of this group, many appear to have been low-
level fighters--and may not have committed prosecutable war 
crimes. Some were turned over to the United States by bounty 
hunters or others seeking rewards. David Hicks and Salim Hamdan 
have already been returned to Australia and Yemen respectively, 
and hundreds of others have been freed. Every diplomatic effort 
should be made to repatriate or find countries willing to 
accept prisoners who cannot be tried. In rare circumstances, 
the United States should be willing to accept some of the 
Guantanamo detainees. This is a small but necessary step as 
part of a process of convincing other allies to accept some of 
them as well.\1639\
    The costs of shutting down Guantanamo include the intense 
diplomatic efforts necessary to find countries willing to 
accept the prisoners upon their release and the devotion of 
judicial resources to try the al Qaeda prisoners or others for 
whom criminal prosecution is appropriate. However, the costs of 
maintaining Guantanamo are profound, and include the fact that 
its very existence serves as a recruiting motivation for future 
terrorists. Thus, notwithstanding the difficulties involved in 
closing Guantanamo, and recognizing that there are risks 
inherent in that process, the incoming Administration should do 
what is necessary to close Guantanamo.
    15. The incoming Administration should require that all 
persons arrested in the United States be subject to civilian 
law enforcement procedures with requisite due process 
guarantees. This should include immediately taking steps to 
effectuate the transfer of Ali Saleh Kahlah al-Marri from 
military to civilian custody in order to charge him with 
federal terrorism-related offenses.\1640\ If Mr. al-Marri were 
to object to that transfer--for such act would moot out Supreme 
Court review--the Government should seek approval from the 
Supreme Court to move him, or seek a remand from the Supreme 
Court to the Fourth Circuit so that the Fourth Circuit can rule 
on its request to move him.\1641\ At the same time, the Justice 
Department should request that the Fourth Circuit vacate its 
July 2008 opinion, in light of the fact that the litigation has 
been mooted by events, and, in particular, so that the Fourth 
Circuit opinion that upheld Mr. al-Marri's military detention 
does not remain ``good law'' on this issue.\1642\
    Reason: The detentions of Jose Padilla (an American 
citizen) and Ali Saleh Kahlah al-Marri (a lawfully admitted 
alien), each of whom was arrested in the United States and 
turned over to military custody upon the order of the 
President, constitute among the most extreme assertions of 
presidential power undertaken by the Bush Administration, and 
involve the Administration's claim that the United States 
itself is a ``battlefield'' on which the president can exercise 
full military power. As a practical matter, this means the 
incoming President, through the Department of Justice, should 
take a dramatically different legal position on the issues 
associated with the on-going detention of Mr. al-Marri. That 
case is presently before the Supreme Court, where the Bush 
Justice Department has maintained that the president, either 
under powers granted him directly by the Constitution as 
Commander in Chief or granted by Congress under the AUMF, may 
order the indefinite military detention of Mr. al-Marri.\1643\ 
Mr. Al-Marri, with support of numerous amici, has challenged 
his detention in federal court, and maintained that the 
president has no such power under either authority.
    16. The incoming Administration should end torture and 
abuse. The President should issue an executive order that ends 
the use of torture or cruel, inhuman or degrading treatment of 
persons in U.S. custody or control and prohibits the use--by 
any agency, including the Central Intelligence Agency--of any 
practice not authorized by the Army Field Manual on 
Intelligence Interrogations, including but not limited to 
waterboarding. One concrete step that the President should take 
toward that end is to formally rescind President Bush's 
Memorandum of February 7, 2002, in which he concluded that as 
Common Article 3 of the Geneva Conventions does not apply to 
either al Qaeda or Taliban detainees.\1644\ If necessary, 
Congress should consider enactment of a bill that embodies the 
principles of H.R. 4114, the ``American Anti-Torture Act of 
2007,'' introduced by Rep. Jerrold Nadler in the 110th 
Congress, which provided, among other provisions: ``No person 
in the custody or under the effective control of the United 
States shall be subject to any treatment or technique of 
interrogation not authorized by and listed in the United States 
Army Field Manual on Intelligence Interrogation.'' \1645\
    Reason: Among the actions taken by President Bush that has 
most damaged the United States standing and credibility as a 
moral leader in the world, his decisions--through Vice 
President Cheney, David Addington, and others--to permit 
waterboarding of detainees and to subject them to cruel, 
inhuman and degrading treatment stands at or near the top. 
Former Secretary of State Powell has stated that ``The world is 
beginning to doubt the moral basis of our fight against 
terrorism.'' \1646\
    To be clear, torture is currently banned under United 
States laws (under the anti-torture statute, the War Crimes 
Act, the Geneva Conventions, and the Detainee Treatment Act). 
It is an unfortunate state of affairs that these prohibitions 
have been called into doubt by the Bush Administration and its 
insistence that it may avoid these laws simply by redefining 
the term ``torture.'' For the incoming President to reassert 
America's commitment to recognizing the prohibitions against 
torture and cruel, inhuman and degrading treatment should not 
suggest that there is any ambiguity in those prohibitions. 
Nonetheless, actions by the United States to again foreswear 
its intent to use torture or cruel, inhuman or degrading 
treatment will constitute an important first step to permit the 
United States to regain its international standing as a leader 
in the advocacy for human rights.
    17. The incoming Administration should end the CIA program 
of secret detention and abusive interrogation. The incoming 
President should revoke Executive Order 13440 (issued July 20, 
2007) and bring an immediate end to the CIA's secret detention 
and interrogation program. Consistent with military guidelines 
and international law, the President should restore accurate 
accounting and reporting of all detainees, ensure that the 
International Committee of the Red Cross (ICRC) be notified of 
and granted access to all detainees,\1647\ publicly disclose 
the identities, fate, and whereabouts of all detainees 
currently or previously held in secret, and ensure that 
detainees are afforded the baseline substantive right to be 
free from torture or cruel, inhuman, and degrading treatment. 
Finally, Congress should conduct oversight and consider 
legislation if necessary.
    Reason: In September 2006, five years after he first 
secretly authorized it, President Bush admitted the existence 
of a secret CIA detention and interrogation program. Under this 
program, detainees were held incommunicado at secret prison 
sites--so-called ``black sites''--and subject to aggressive 
interrogation, including waterboarding. In addition to holding 
detainees at secret facilities, the CIA also reportedly 
``ghosted'' detainees within or among prison facilities in 
Iraq. Ghost detainees were not registered or processed as 
prisoners, allowing the CIA to avoid accountability for and 
documentation of their identity, whereabouts, and treatment. To 
date, the number of individuals held secretly remains unknown, 
but it is estimated that at least 100 individuals were held 
secretly by the CIA and that the whereabouts of two to three 
dozen remain unknown. While this program was suspended by 
President Bush in September 2006, a subsequent July 20, 2007, 
executive order appears to have revived it.\1648\ Holding 
prisoners in secret allows for torture and abusive detention 
and interrogation practices. It also undermines future efforts 
by the U.S. to demand ICRC access to U.S. personnel being held 
abroad and further undermines our moral standing in the world.
    18. The incoming Administration should end the Bush 
Administration's practice of the extraordinary rendition of 
terror suspects. The President should halt the rendition of 
terror suspects in circumstances where torture is likely and 
should direct a comprehensive, interagency review of U.S. 
rendition practices, including the use of assurances from 
receiving countries that a detainee will not be tortured. This 
should include ensuring that relevant agencies promulgate 
regulations to implement the legal obligation that the U.S. not 
transfer persons to countries where it is more likely than not 
that they will be tortured. Congress should conduct oversight 
hearings on the policy and consider legislation to limit the 
transfer of suspects from U.S. custody based in part on aspects 
or principles of H.R. 1352, the ``Torture Outsourcing 
Prevention Act,'' introduced by Rep. Edward Markey in the 110th 
Congress, which would make it illegal for the government to 
transfer detainees to countries that the State Department has 
substantial grounds to believe engage in torture or other cruel 
or degrading treatment, and S. 1876, the ``National Security 
with Justice Act of 2007,'' introduced by Sen. Joe Biden in the 
110th Congress, which prohibits extraterritorial detention and 
rendition except in limited circumstances.
    Reason: Following the September 11th terrorist attacks, the 
Bush Administration rendered individuals to countries--
including Syria, Egypt, Jordan, and Morocco--where torture of 
persons identified as having ties to al Qaeda or terrorism was 
likely. These ``extraordinary renditions''--the covert transfer 
of individuals to foreign states in circumstances where torture 
is likely--violate U.S. and international law.\1649\ While the 
exact number of individuals subjected to the Administration's 
extraordinary rendition program remains unknown, the cases that 
have come to light have generated concern that the 
Administration has used the practice frequently,\1650\ and as a 
tool to avoid legal limits on--or criminal liability for--harsh 
interrogation.\1651\
    The Bush Administration's extraordinary rendition program 
has been condemned by some of the U.S.'s strongest allies, and 
U.S. agents have been indicted in Italy and Germany for their 
involvement in renditions from those countries.\1652\ The 
Administration asserts that it has met any obligation to 
prevent transfers in circumstances where torture is foreseeable 
because it has gotten assurances from foreign governments that 
individuals will not be tortured.\1653\ But press reports, 
congressional testimony, and the experience of individuals 
rendered to foreign countries indicate that such assurances are 
insufficient protection against torture and also raise 
troubling questions about whether these assurances have been 
obtained and relied upon in good faith by U.S. officials.\1654\ 
Any such assurances should comply with applicable legal and 
human rights standards, and appropriate federal agencies should 
carry out their obligations under the Foreign Affairs Reform 
and Restructuring Act of 1998 to adopt regulations that 
individuals should not be transferred to countries where it is 
more likely than not that they will be tortured.\1655\
    19. The President, the Director of National Intelligence, 
the Director of the Central Intelligence Agency, and the 
Director of the National Security Agency should implement 
policies to ensure that there is no ``reverse targeting'' used 
under authorities created by the FISA Amendments Act of 2008. 
Such policies, whether resulting from legislation, amendments 
to Executive Order 12333 or internal guidelines and procedures, 
should make it clear that it is impermissible to acquire the 
communications of a U.S. person (who is protected by FISA) by 
targeting their acquaintances overseas (for whom a FISA warrant 
is not necessary). Such guidelines should prohibit reverse 
targeting when a significant purpose of the interception is to 
acquire an American's communications. Moreover, the guidelines 
should require a warrant from the Foreign Intelligence 
Surveillance Court if the intercepted communications of a known 
U.S. person are disseminated outside of the collecting agency 
repeatedly, as this is an indication that the U.S. person may 
in fact be the target. Congress should conduct oversight and 
consider legislation if necessary.
    Reason: The 110th Congress enacted the FISA Amendments Act 
of 2008 (FAA). This Act, while an improvement on the Protect 
America Act which had been enacted to update FISA in 2007, 
still lacks certain key protections against ``reverse 
targeting'' by members of the intelligence community (the 
intelligence components of the Director of National 
Intelligence, Central Intelligence Agency, National Security 
Agency, Department of Homeland Security, Department of Defense, 
Department of State, and Department of Justice). When Congress 
allowed the Executive Branch the ability to go to the FISC to 
obtain broad authorizations for overseas communications, 
concerns were raised that such broad powers could be used to 
engage in reverse targeting. Although the Administration had 
claimed that it would not engage in such practices, and 
recognized that reverse targeting would be illegal if it 
occurred,\1656\ guidelines and training programs are necessary 
to ensure that reverse targeting does not happen.
    20. The President, the Director of National Intelligence, 
the Director of the Central Intelligence Agency, and the 
Director of the National Security Agency should implement 
policies to ensure that foreign intelligence surveillance is 
limited to targeted collection. The President should promulgate 
regulations and Executive Orders to dispel any concern that the 
FISA Amendment Act or other surveillance activities would allow 
bulk collection--the indiscriminate collection of all 
international communications into and out of the United States. 
Congress should conduct oversight and consider legislation if 
necessary.
    Reason: It has been reported that the Bush Administration's 
secret wiretapping program involved not just the interception 
of foreign communications within the United States, but also 
the seizure and storage of masses of e-mail and other 
electronic traffic for future analysis.\1657\ During the 
debates on the FAA, Director of National Intelligence Mike 
McConnell denied that the United States had the capacity--let 
alone the desire--to engage in bulk collection, but he would 
not rule out bulk collection should technology develop to make 
such a dramatic seizure feasible.\1658\ Limitation of 
acquisitions--to circumstances in which a significant purpose 
of the acquisition of the communication is to obtain foreign 
intelligence information and in which at least one party is a 
specific individual target who is reasonably believed to be 
located outside of the United States--should serve to prevent 
such wholesale collection while preserving the ability to 
target persons overseas under the flexible authorities of the 
FAA. The method of the collection should not be broader than 
the parameters under which the interception is authorized. That 
is, if the intelligence community is only authorized to acquire 
communications of ``a specific individual target,'' it is 
unreasonable to undertake such an acquisition through the 
wholesale seizure of communications traffic.
    21. The incoming Administration should ensure full 
implementation of Inspector General recommendations concerning 
the FBI's use of NSLs. The FBI Director should complete 
implementation of the Inspector General's 2007 recommendations, 
including adequately accounting for information acquired from 
NSLs; training agents in all 56 field offices; ensuring that 
agents continue to abide by Attorney General Guidelines to use 
the least intrusive techniques during their investigations; and 
fully addressing the problems pertaining to the hierarchical 
issues in the field offices between Special Agents in Charge 
(SACs) and Chief Division Counsel.\1659\ Congress should 
conduct careful oversight in this area and, if necessary, 
consider legislation addressing the current problems with NSL 
usage, incorporating at minimum the pre-PATRIOT Act NSL 
issuance standard requiring ``specific and articulable facts 
giving reason to believe that the information or records sought 
. . . pertain to a foreign power or agent of a foreign power;'' 
providing the recipient of an NSL the right to challenge the 
NSL and its nondisclosure requirement; providing a cause of 
action to any person aggrieved by the illegal provision of 
records pertaining to that person as a result of an NSL issued 
contrary to law, placing a time limit on an NSL gag order and 
allowing for a court approved extension; and providing for 
minimization procedures to ensure that information obtained 
pursuant to an NSL regarding persons who are no longer of 
interest in an authorized investigation is destroyed, along the 
lines of H.R. 3189, the ``National Security Letters Reform 
Act,'' introduced by Rep. Jerrold Nadler in the 110th Congress.
    Reason: In 2007 and 2008, reports from the Justice 
Department's Inspector General documented problems and abuses 
with the FBI's use of national security letters, including: the 
use of exigent letters,\1660\ inaccurate and incomplete 
congressional reporting regarding the use of NSLs,\1661\ 
inaccurate reporting of possible Intelligence Oversight Board 
violations,\1662\ circumventing NSL statutes by issuing NSLs in 
impermissible contexts,\1663\ and indefinitely retaining 
personal information on individuals even if they were 
irrelevant to terrorism investigations.\1664\ In its 2008 
report, the IG found that the FBI had made some progress in 
implementing its recommendations from the 2007 report, but that 
several recommendations were not yet implemented.\1665\ The 
incoming Justice Department and the Inspector General should 
ensure that the FBI adequately and fully implements the 
remaining recommendations and does not backtrack on any 
progress to date.\1666\
    Legislation restoring the pre-PATRIOT Act NSL issuance 
standard would help eliminate the problems highlighted in the 
Inspector General's reports pertaining to the acquisition and 
indefinite retention of information on American citizens who 
are not reasonably suspected of being involved in terrorism. 
Legislation could also help address concerns identified under 
Patriot Act provisions authorizing the FBI to impose blanket, 
indefinite, prior restraints on speech, strictly confining an 
NSL recipient's ability to challenge the gag in court, and 
limiting judicial review of a gag order (making it difficult to 
determine whether the order violates NSL statutes, the 
Constitution, or other legal rights and privileges).\1667\ 
Statutory changes regarding minimization rules may also be 
needed to reduce the potential for the misuse of information 
acquired through NSLs and to ensure that NSLs capture 
information only on individuals who actually are the subjects 
of terrorism investigations.
    22. The incoming Administration should withdraw the 
proposed Justice Department rule on criminal intelligence 
system operating policies and carefully review and revise as 
needed the Attorney General's guidelines for FBI operations. 
The proposed Criminal Intelligence Systems Operating Policies 
rule, published in the summer of 2008, should be withdrawn and 
the process started from scratch because of serious concerns 
about its potential to improperly invade Americans' privacy and 
other rights. Similar concerns warrant a careful re-examination 
of the Attorney General FBI guidelines to ensure that they 
strike the appropriate balance between effective law 
enforcement and the respect for civil liberties and individual 
rights.
    Reason: The Department of Justice's proposed rule on 
Criminal Intelligence Systems Operating Policies has generated 
significant controversy.\1668\ This rule appears to permit the 
collection of information by state and local law enforcement 
agencies regarding non-criminal (and constitutionally 
protected) activities and sharing that information with non-law 
enforcement agencies. The rule would also allow for the 
collection of information about organizations and individuals, 
resulting in potential violations of individuals' First 
Amendment rights and the creation of McCarthy era-type 
``blacklists.'' Additionally, the regulation would extend the 
retention period for information in criminal intelligence 
systems from five years to ten years and would allow for the 
tolling of the retention period during a person's 
incarceration. This could lead to the retention of inaccurate, 
obsolete, and otherwise unreliable information in the systems 
that could be used to wrongly accuse someone of a crime. The 
incoming Administration should withdraw the proposed rule and 
restart the rulemaking process so that a final rule in this 
area does not have these defects.
    In late 2008, the Bush Administration also issued FBI 
Domestic Investigation and Operations Guidance regarding the 
Attorney General Guidelines for Domestic FBI Operations, issued 
September 29, 2008. These Guidelines have generated significant 
concern, both as to their timing just before the end of the 
Bush Administration and their authorization of potentially 
intrusive techniques against Americans. For example, critics 
have raised significant questions about provisions that could 
give FBI field agents the authority to conduct some forms of 
physical surveillance and interviews without getting approval 
from or filing specific reports with their supervisors.\1669\ 
The FBI has indicated that the guidelines are to be reviewed in 
the fall of 2009. As part of that review, the incoming 
Administration should consider modifying the guidelines and the 
accompanying guidance as appropriate to ensure that they 
protect civil rights and civil liberties as well as promoting 
effective law enforcement.
    23. The President should nominate and bring into operation 
the Privacy and Civil Liberties Oversight Board. The incoming 
President should appoint all members to the Privacy and Civil 
Liberties Oversight Board created by Congress and urge the 
Senate to hold prompt confirmation hearings for the candidates. 
Further, the President's first budget proposal should contain 
sufficient funds to actually bring the board into existence as 
an effective entity.
    Reason: This Board was created by the Intelligence Reform 
and Terrorism Prevention Act of 2004.\1670\ It was originally 
part of the White House but was made an independent agency in 
the Executive Branch pursuant to the Implementing 
Recommendations of the 9/11 Commission Act of 2007.\1671\ The 
Board's mandate is to monitor the impact of U.S. government 
actions on civil liberties and privacy interests, and to advise 
Executive Branch officials to help ensure that such interests 
are appropriately considered in executive actions undertaken to 
protect against terrorism. It has five members who are 
appointed by the president and subject to confirmation by the 
Senate. The terms of its original members expired in January 
2008. However, President Bush failed to nominate candidates for 
all seats on the board, and none have been confirmed by the 
Senate. As a result, the revised Board has never gone into 
operation.
    24. The President should renew efforts to implement U.S. 
obligations under human rights treaties. The incoming President 
should reactivate the Interagency Working Group on Human Rights 
Treaties (replaced under the Bush Administration by the Policy 
Coordinating Committee on Democracy, Human Rights, and 
International Operations), which would create an open and 
transparent process for treaty reporting and consider compiling 
a comprehensive human rights compliance report on the U.S., 
similar to that compiled by the State Department on other 
countries.
    Reason: The incoming Administration needs to reassert its 
commitment to the rule of law as well as send a clear message 
to the world that the United States will take a leadership role 
in promoting human rights at home and abroad. Since 1992, the 
United States has ratified only three major human rights 
treaties.\1672\ However, little oversight and few legislative 
initiatives have focused on codifying the rights and 
obligations under these treaties. Official U.S. action has been 
primarily limited to periodic reporting and review process 
activities by Geneva-based committees who monitor treaty 
compliance.
    25. The incoming Administration should review and consider 
modifications to Bureau of Prisons use of authority under 
Special Administrative Measures. The incoming Administration 
should review how the Special Administrative Measures (SAM) 
authority has been used, including mental health screening of 
prisoners subjected to extreme isolation under the SAM rules, 
and consider appropriate modifications, which may include 
modifying SAM rules. The review should additionally ensure 
attorney-client privileges to prisoners in federal custody.
    Reason: Under the Bush Administration, an interim rule 
drastically expanded the Bureau of Prisons (BOP) authority 
under the Special Administrative Measures (SAMs).\1673\ The 
regulation became effective immediately without the usual 
opportunity for prior public comment. The rules now give the 
Attorney General virtually unlimited and unreviewable 
discretion to strip any person in federal custody of the right 
to communicate with counsel confidentially.

Misuse of Executive Branch Authority

    26. The President should end abuse of presidential signing 
statements. President Obama should fulfill his pledge that he 
will ``not use signing statements to nullify or undermine 
congressional instructions as enacted into law'' \1674\ as has 
occurred under the Bush Administration. He should also make 
clear that, despite his predecessor's signing statements, he 
intends to fully execute existing laws.
    Reason: A presidential signing statement is not part of the 
enactment process.\1675\ Yet President Bush has issued signing 
statements unilaterally claiming the power to refuse to 
implement parts of laws enacted by Congress, and has in fact 
done so in a number of instances. As recognized on a bipartisan 
basis, the pattern and practice of signing statements by the 
Bush Administration has represented a major abuse of power, 
undermining the authority of the Congress and the intent of the 
Framers of the Constitution. By executive action fulfilling his 
pre-election pledge, and by making clear that he will fully 
execute laws as to which President Bush issued signing 
statements, President Obama can end this abuse, as some of the 
most severe critics of the Bush Administration's use of signing 
statements have recognized.\1676\ If necessary, Congress should 
consider possible legislation, such as some of the proposals in 
the 110th Congress, to prevent future misuse of signing 
statements.\1677\
    27. The incoming Administration should restore rulemaking 
from the White House to traditional agency authority consistent 
with congressional intent and the public interest. As a 
threshold matter, the President should take two initial steps 
to restore this traditional authority to the relevant agency: 
(i) clarify that the role of the Office of Information and 
Regulatory Affairs (OIRA) within the Office of Management and 
Budget (OMB) is to facilitate the rulemaking process rather 
than to serve as a gatekeeper on rulemaking; and (ii) rescind 
Executive Order 13422, which by substantially enhancing the 
Executive Branch's control over agency rulemaking, has 
undermined congressional intent.
    Reason: Under President Bush's leadership, OIRA's role has 
changed from serving as a counselor for agencies to a self-
described ``gatekeeper'' of agency rulemaking. OIRA's current 
gatekeeping role conflicts with the fact that Congress 
delegates rulemaking authority to the agencies, not to 
OMB.\1678\ Issued without any prior consultation in January 
2007, Executive Order 13422 undermines congressional intent in 
several respects. For example, the Order's requirement that an 
agency identify a specific ``market failure'' establishes 
standards for regulatory initiation that are not consistent 
with statutory requirements and that can be used to deter 
congressionally-intended regulatory actions.\1679\ A diverse 
group of 17 regulatory experts supports this 
recommendation.\1680\
    28. The incoming Administration should make rulemaking more 
transparent, understandable, and informative, thereby 
permitting greater accountability to Congress and the public. 
The President should: (i) amend Executive Order 12866 to 
mandate that the rulemaking process be transparent and subject 
to greater accountability consistent with recommendations made 
by GAO;\1681\ and (ii) require agencies to use electronic 
rulemaking.\1682\ In addition, Congress should: (i) fund the 
Administrative Conference of the United States (ACUS); and (ii) 
enact legislation to clarify the applicability of the 
Congressional Review Act with respect to what constitutes a 
``rule'' within the meaning of the Act.
    Reason: The Administration's influence on agency rulemaking 
is difficult to discern even after the proposed or final rule 
is published because key parts of the OIRA review process and 
other Administration initiatives are not transparent. The only 
transparency required by OMB is during the formal review 
process. Accordingly, it is unclear whether outside entities 
have exercised undue influence and whether the Administration 
has directly or indirectly intervened in the rulemaking process 
to weaken or delay rules contrary to the public interest.\1683\ 
In addition, OIRA discloses neither how many ``significant'' 
guidance documents it has reviewed since the issuance of 
Executive Order 13422 nor whether any changes were made to 
those documents as a result of those reviews. Further, agency 
regulatory policy officers do not disclose how many rules they 
changed or completely prevented from being published in the 
Federal Register.\1684\ The need for greater transparency was 
also cited by a diverse group of 17 regulatory experts.\1685\
    Other ways to promote greater transparency include 
implementing an effective electronic rulemaking process, as the 
current system makes it very difficult to track 
rulemaking.\1686\ This recommendation is supported by various 
regulatory experts.\1687\ In addition, ACUS could conduct 
empirical analyses with the cooperation of all three branches 
of government and make recommendations to the Administration 
and Congress on how the rulemaking process can be 
improved.\1688\ Further, the Congressional Review Act should be 
clarified with respect to what constitutes a ``rule'' within 
the meaning of the Act in light of the fact that the Bush 
Administration has sought to circumvent the requirements of the 
Congressional Review Act, which mandates that agencies submit 
rules to Congress before they become effective.\1689\
    29. The incoming Administration should rein in ``Midnight'' 
rulemaking, which implements the priorities of a lame-duck 
administration even though a new President has been elected. 
The President should: (i) impose a 60-day moratorium on 
regulations not yet finalized or in effect; and (ii) prohibit 
Executive Branch agencies from unilaterally issuing ``midnight 
regulations''--regulations issued during the last several 
months of an outgoing president's term of office--except in 
compelling or exigent circumstances. If necessary, Congress 
should consider legislative restrictions on the practice, such 
as H.R. 34, the ``Midnight Rule Act,'' introduced by Rep. 
Nadler at the beginning of the 111th Congress.
    Reason: While many outgoing administrations attempt to 
expedite the rulemaking process to ensure their priorities are 
addressed, such an expedited process may shortcut meaningful 
agency review and public participation processes. A recent 
spate of controversial midnight regulations issued by the Bush 
Administration relating to the environment, civil liberties, 
the preemption of state consumer safety laws, and other 
important matters of public policy, present serious concerns 
about midnight regulations. Such rules can be particularly 
problematic if they have been rushed through the review and 
comment process.\1690\ As recommended by a diverse group of 
regulatory experts, a moratorium would allow time for the 
incoming Administration to review problematic regulations not 
yet finalized or in effect.\1691\ Regulations required by court 
order, statute, or necessity to meet regulatory emergencies 
could be exempt from the moratorium.\1692\

Other Incursions by the Executive Branch

    In addition to the above recommendations concerning the 
misuse of signing statements and regulatory authority, over the 
last eight years we have witnessed a number of additional 
instances of misuse of Executive Branch authority or 
unaccountable abuses of power which warrant a Legislative or 
Executive Branch response. Several of these additional 
recommendations were worked on by the Committee over the last 
two years and are set forth below.
    30. The incoming Administration and Congress should restore 
the full protection of the attorney-client privilege. The Obama 
Administration should issue an executive order or memorandum 
requiring application to all agencies of the August 28, 2008, 
Justice Department guidelines on corporate prosecutions, which 
recognized the importance of the attorney-client privilege and 
work-product doctrine. Congress should also consider 
legislation to prohibit federal prosecutors from considering a 
corporation's willingness to ``waive'' its attorney-client 
privilege and work-product protections in making charging and 
leniency decisions. H.R. 3013, the ``Attorney-Client Privilege 
Protection Act of 2007,'' which passed the House on November 
13, 2007, by voice vote, would restore judicial oversight to 
these protections, while preserving prosecutorial discretion 
necessary to fight corporate crime.
    Reason: The centuries-old common law and constitutional 
protections of the attorney-client privilege and attorney work-
product doctrine are fundamental to our nation's system of 
justice. Unfortunately, past governmental policies gave rise to 
a ``culture of waiver'' that placed the continuing vitality of 
these crucial protections in serious jeopardy. Specifically, 
the Department of Justice had previously adopted policies that 
placed defendants at greater risk of prosecution if they 
claimed any of the fundamental protections embodied in the 
attorney-client privilege or work-product doctrine. The genesis 
of these policies was a series of Justice Department memoranda, 
which include a 2006 memorandum from then-Deputy Attorney 
General Paul McNulty, permitting prosecutors to demand a 
privilege waiver after receiving Department approval, and 
granting corporate defendants credit from criminal charges for 
``voluntarily'' waiving without being formally asked. In a 
laudatory change of direction, the Department, on August 28, 
2008, issued new guidelines on corporate prosecutions, 
specifically recognizing the importance of the attorney-client 
privilege and work-product doctrine.\1693\ Because the 
guidelines follow the spirit of H.R. 3013, the Obama 
Administration should take immediate steps to replicate the 
Justice Department guidelines by executive order for all 
agencies. Legislation may also be necessary if certain 
independent regulatory agencies (such as the Securities and 
Exchange Commission) fail to follow the President's lead and to 
ensure that these standards apply under future administrations.
    31. Congress should enact press shield legislation. 
Congress should pass legislation that provides a qualified 
privilege that prevents a reporter's source material from being 
revealed except under certain narrow circumstances, such as 
where it is necessary to prevent an act of terrorism or other 
significant and specified harm to national security or imminent 
death or significant bodily harm. H.R. 2102, the ``Free Flow of 
Information Act,'' which passed the House on October 16, 2007, 
by a vote of 398-21, will restore the independence of the press 
while balancing the legitimate and important interests that 
society has in maintaining public safety.
    Reason: One of the most fundamental principles enshrined by 
the Founding Fathers in the First Amendment of the Constitution 
is freedom of the press. This freedom is one of the 
cornerstones of our democracy; without it, we cannot have a 
well-informed electorate and a government that truly represents 
the will of the people. The Bush Administration has repeatedly 
assaulted the press by imprisoning or threatening imprisonment 
of reporters. As noted by the Washington Post, ``40 reporters 
have been hauled into federal court and questioned about their 
sources, notes and reports in civil and criminal cases.'' 
\1694\
    Many stories would not have been published without a 
promise of confidentiality to sources, such as Watergate, the 
Pentagon Papers, and Iran-Contra. More recent news stories 
brought to light based on confidential sources include the 
conditions at the Walter Reed Army Medical Center, the Abu 
Ghraib prison scandal, and the abuse of steroids by baseball 
players. At present, 49 States and the District of Columbia 
have some form of a shield law. The lack of a corresponding 
federal reporter's privilege undercuts these state laws. 
Because the privilege is not absolute, a federal law will 
prevent law enforcement officials from using journalists and 
the results of their fact-gathering as a shortcut to a proper 
investigation but will not obstruct truly appropriate and 
necessary inquiries. With the reporter shield law, law 
enforcement will be forced to pursue other sources of 
information before being able to turn to journalists for their 
notes.
    32. The incoming Administration should limit the ability of 
Executive Branch officials to prevent victims of terrorism from 
recovering for their losses. The President should seek to 
resolve a dispute between victims of torture and the government 
of Iraq committed during the Gulf War. If not, Congress should 
consider enacting legislation, such as H.R. 5167, the ``Justice 
for Victims of Torture and Terrorism Act,'' which passed the 
House on September 15, 2008, by voice vote. This legislation 
will enable American POWs and civilians to hold the Government 
of Iraq liable for the physical and emotional injuries they 
sustained while held captive by Iraqi officials during the Gulf 
War.\1695\
    Reason: In 1998, Congress passed the ``Flatow Amendment'' 
to specify that a cause of action existed against the 
officials, employees, and agents of foreign states who commit a 
terrorist act ``while acting within the scope of'' their 
employment if a U.S. government official would be liable for 
similar actions.\1696\ Unfortunately, in conjunction with the 
2003 Iraq War, President Bush took a series of actions that, in 
combination, had the effect of making Iraq's assets in the U.S. 
unavailable to terrorism victims who, after March 20, 2003, 
obtained terrorism-related judgments against Iraq.\1697\ In 
2008, Congress sought to amend the Foreign Sovereign Immunities 
Act (FSIA) of 1978 to enable victims whose claims were 
dismissed for lack of a federal cause of action to re-file 
their claims under new 28 U.S.C. Sec. 1605A--a new FSIA 
terrorism exception and explicit cause of action against 
terrorist states--and enforce judgments by attaching a 
defendant state's assets.\1698\ However, President Bush vetoed 
the FY08 National Defense Authorization Act, solely on the 
basis of this provision.\1699\
    33. Congress should pass legislation holding 
Administration-designated contractors in Iraq and elsewhere 
responsible for their criminal misconduct. Congress should pass 
legislation to explicitly address the inadequacies of our 
criminal law in war zones. H.R. 2740, the ``MEJA Expansion and 
Enforcement Act of 2007,'' which passed the House on October 4, 
2007, by a vote of 389-30, would make contractors and contract 
personnel under Federal contracts criminally liable for crimes 
committed overseas. It would amend the Military 
Extraterritorial Jurisdiction Act (``MEJA''),\1700\ which 
criminalizes offenses committed outside the United States by 
members of the Armed Forces and certain Defense Department 
contractors, but does not cover all contractors providing 
services in an overseas military operation.\1701\
    Reason: An estimated 180,000 contractors are currently 
working in Iraq, and thousands more are working in Afghanistan 
and elsewhere.\1702\ Unfortunately, the current law does not 
clearly specify that these contractors are accountable for 
their criminal conduct.\1703\ For example, contractors hired 
through the Defense Department are subject to both the Uniform 
Code of Military Justice and MEJA, while contractors who commit 
crimes on Federal property may be prosecuted under the USA 
PATRIOT Act. The vast majority of armed contractors performing 
security functions overseas, however, may not be subject to any 
of these laws. Thus, although the Justice Department has 
recently brought five indictments against contractors involved 
in the Iraq Nisour square shooting where at least 17 Iraqis 
were killed, lawyers for the defendants have already stated 
that they will contest whether the Justice Department has 
jurisdiction under MEJA to bring the case.\1704\
    In another example, Jamie Leigh Jones, a young woman 
working for Halliburton/KBR in Iraq, testified before the 
Judiciary Committee that she was drugged and raped by fellow 
employees in 2005.\1705\ Almost four years later, we have yet 
to hear of the status of the investigation or prosecution.
    34. The Department of Justice should issue guidelines to 
require transparency and uniformity of corporate deferred and 
non-prosecution agreements. The Attorney General should revise 
guidelines regarding the Justice Department's use of deferred 
prosecution agreements (DPAs) and non-prosecution agreements 
(NPAs) in order to provide greater transparency and consistency 
in their use and in the selection and compensation of 
independent corporate monitors. DPAs and NPAs are agreements 
between the federal government and individual corporations in 
which the government agrees to not prosecute or defer criminal 
prosecution in exchange for the corporation agreeing to 
specific actions such as changes in corporate policies and 
payment of monetary penalties. If necessary, Congress should 
consider enacting legislation such as H.R. 6492, the 
``Accountability in Deferred Prosecution Act of 2008,'' which 
would require the Attorney General to take steps to ensure that 
the process is fair for all parties to the agreement and that 
prosecutors award contracts to corporate monitors pursuant to a 
process that is open, public and competitive.\1706\
    Reason: DPAs and NPAs often impose significant obligations 
on corporations, including the payment of substantial monetary 
penalties, the implementation of stringent corporate governance 
and compliance measures, mandatory cooperation with the 
government's ongoing investigation (often requiring waiver of 
the corporation's attorney-client and work-product privileges), 
waiver of speedy trial rights and statute of limitations 
defenses, and agreement to external oversight by an independent 
corporate monitor approved by the government.\1707\ The Justice 
Department, however, has provided minimal guidance to United 
States Attorneys with respect to how these agreements should be 
structured, how independent monitors should be selected, and 
what are appropriate duties for these monitors.\1708\ The 
absence of meaningful guidance has led to inconsistent use of 
these agreements among the jurisdictions, unequal treatment of 
corporations that choose to enter into such agreements, and 
abuse in the appointment of independent corporate 
monitors.\1709\

Retribution Against Critics

    35. Congress should consider legislation concerning the 
exercise of clemency involving government officials. Congress 
should consider legislation that would require the president, 
upon granting clemency to a current or former Executive Branch 
official, to report to Congress (1) whether the official was 
involved in any ongoing or contemplated criminal or civil 
investigation; (2) whether the president sought the 
recommendation of the federal official responsible for the 
investigation as to the implication of the clemency grant on 
the investigation and, if so, the nature of the official's 
recommendation; and (3) whether the responsible official 
communicated to the president his or her belief that the grant 
of clemency would interfere with any ongoing or contemplated 
investigation into possible misconduct by the president, vice 
president, or administration officials. Those and similar 
procedural requirements appear in H.R. 5961, the ``Integrity 
and Accountability in Administration Pardons Act of 2006,'' 
which then-Ranking Member John Conyers, Jr. introduced in the 
House during the 109th Congress. Congress should also consider 
legislation that would require lobbyists to disclose pardon-
relating lobbying activities directed at the Executive 
Branch.\1710\
    Reason: The president's clemency power can too easily be 
used to interfere with or hinder a civil or criminal 
investigation into malfeasance by the president, vice 
president, and Executive Branch officials. A pardon can even 
shut down an investigation altogether by immunizing the 
subjects of the investigation from prosecution. That concern 
arose most notably at the end of George H. W. Bush's 
Administration, when the President pardoned former Defense 
Secretary Casper Weinberger and Assistant Secretary of State 
Elliott Abrams with respect to their actions during the Iran-
Contra scandal of the mid-1980s. The prosecution of Secretary 
Weinberger and Assistant Secretary Abrams might well have 
brought the President's own actions under public 
scrutiny.\1711\ President George W. Bush's 2007 grant of 
clemency to Vice President Cheney's chief of staff, Scooter 
Libby, raised similar concerns, as did President's Clinton's 
end-of-term pardons of his brother, Roger Clinton, and Clinton 
friend and partner in the Whitewater real-estate venture, Susan 
McDougal. Legislation along the lines of H.R. 5961 would render 
the president more publicly accountable when granting clemency 
to Executive Branch officials,\1712\ while leaving the 
President's constitutional clemency authority 
undisturbed.\1713\ As for lobbying-disclosure legislation, it 
may be needed to expose pardon-lobbying by wealthy and 
influential pardon applicants of the sort the public witnessed 
during the final days of the Clinton Administration.\1714\
    36. Congress should enhance and strengthen protection for 
Executive-Branch whistleblowers. Congress should pass 
legislation to enhance and strengthen existing legal protection 
for whistleblowers. Needed changes of particular importance 
include according protection to federal employees who report 
high-level misconduct directly to Congress (rather than 
requiring them to ``report up the chain of command''), 
reversing court decisions that have largely gutted existing 
legal protections against retaliation, and enhancing legal 
remedies for successful claimants. Congress should also extend 
whistleblower protections to CIA, FBI, and other employees who 
work on national security matters. Most are currently 
unprotected under existing federal laws. Legislation introduced 
during the 110th Congress that passed the House but failed to 
become law (including H.R. 985, the ``Whistleblower Protection 
Enhancement Act of 2007,'' and S. 274, the ``Federal Employee 
Protection Disclosure Act'') offers a starting point for future 
legislation.\1715\
    Reason: A key component to government accountability is 
protecting the employees who are on the inside and decide to 
report wrongdoing. Federal employees are often the first, and 
perhaps the only, people to see signs of corruption, government 
misinformation, and political manipulation. They are in a 
distinct position to alert Congress or other authorities when 
officials put political agendas ahead of facts or sound policy. 
Unfortunately, as seen in cases involving the Bush 
Administration, whistleblowers often are the victims of 
retaliation by their superiors. The threat of such retaliation 
can have a chilling effect on federal employees' willingness to 
blow the whistle. Enhanced legal protections would help 
insulate whistleblowers from the threat of retaliation. 
National security officials particularly deserve whistleblower 
protections. They are federal government employees who have 
undergone extensive background investigations, obtained 
security clearances, and handled classified documents. They are 
in the unique position of handling the most sensitive law 
enforcement and intelligence projects, but they currently 
receive no protection when they come forward to identify abuses 
that are undermining our national security.

Government in the Shadows: Executive Privilege, Secrecy, and the 
        Manipulation of Intelligence

    37. Congress should enact changes in statutes and rules to 
strengthen Congress' contempt power. Congress should pass 
legislation that would establish a clear and expeditious 
mechanism to enforce congressional subpoenas civilly against 
current and former Executive Branch officials. Congress should 
also adopt legislation creating a process for the appointment 
of a special counsel to prosecute current or former Executive 
Branch employees held in contempt of Congress for refusing to 
testify or produce documents in response to a congressional 
subpoena, such as Representative Miller's H.R. 6508, the 
``Special Criminal Contempt Procedures Act.'' In addition, the 
House should consider adopting a rule providing for procedures 
to go forward with inherent contempt as necessary.
    Reason: While the Committee's lawsuit to enforce subpoenas 
against Harriet Miers and Josh Bolten has established that 
Congress may enforce its subpoenas in federal court under the 
Declaratory Judgment Act, the procedures required can be 
burdensome and time consuming. The established remedy of 
statutory criminal contempt has proven ineffective because the 
Justice Department has refused to prosecute despite the House's 
finding of contempt. Any use of Congress' recognized power of 
inherent contempt has been frustrated by the absence of 
specific procedures in the House. A law specifically 
authorizing civil contempt proceedings to enforce subpoenas 
would avoid problems of delay and create an orderly, 
streamlined, non-criminal mechanism to resolve these disputes. 
Legislation should also make clear that when Congress 
determines that a present or former Executive Branch official 
is in contempt for refusing to comply with a subpoena, 
enforcement cannot simply be stopped by the Administration's 
refusal to go forward (as occurred in the Miers-Bolten case), 
but would be turned over to a special counsel because of the 
obvious conflict of interest. The Miers-Bolten situation also 
highlighted the need for clarification of the process for 
exercising Congress' inherent contempt power to penalize an 
individual who defies a subpoena, and specific rules to address 
questions such as how inherent contempt proceedings would be 
initiated, what House entities would prosecute and initially 
rule on such charges, and what and how penalties can be 
imposed.
    38. The incoming Administration should establish procedures 
for asserting Executive Privilege. The President should issue 
an executive order establishing procedures for asserting 
executive privilege, including a commitment to personally 
invoke the privilege and to provide adequate descriptive 
information to Congress if documents are withheld. Congress 
should engage in oversight concerning the efficacy of any 
proposed procedures and determine whether additional action in 
the form of legislation is necessary.
    Reason: During the 110th Congress, the Administration 
withheld subpoenaed documents from Congress on the basis of 
executive privilege on multiple occasions.\1716\ However, some 
of these invocations of privilege were stated in communications 
from the White House Counsel; no personal assertion of the 
privilege by President Bush, as caselaw and prior executive 
practice require, was ever presented.\1717\ Accordingly, the 
incoming Administration should establish clear guidelines for 
the assertion of privilege that include provision of an 
unambiguous personal claim of privilege by the president.
    In addition, the interbranch accommodation process under 
the Bush Administration suffered because of a consistent 
refusal of the White House to provide adequate information 
about documents being withheld, which would have allowed 
Congress to consider possible compromises in an informed 
manner. As Judge Bates recognized in the Judiciary Committee's 
lawsuit against Harriet Miers and Josh Bolten, ``a more 
detailed description of the documents withheld and the 
privileges asserted would be a tremendous aid during the 
negotiation and accommodation process.'' \1718\
    39. The incoming Administration and Congress should prevent 
abusive assertion of the state secrets privilege. The President 
should issue an Executive Order specifying that (i) the state 
secrets privilege should be invoked narrowly to challenge the 
admissibility of particular pieces of evidence, not to dismiss 
entire cases, and (ii) when invoked, the government should make 
a reasonable attempt to provide a non-privileged substitute--
such as a redacted version or a summary--instead. The next 
Congress should also pass legislation that sets out the 
substantive standards and procedural framework for meaningful 
judicial review of state secret claims, and requires judges to 
review the information that the government seeks to withhold 
and determine whether its disclosure would be harmful to 
national security using procedures that safeguard classified 
and other potentially sensitive information. These provisions 
were included in H.R. 5607, the ``State Secret Protection 
Act,'' introduced by Reps. Nadler and Conyers in the 110th 
Congress.
    Reason: Although there are valid reasons for recognizing a 
state secrets privilege, preventing the sort of broad abuses of 
the privilege perpetrated by the Bush Administration requires 
action in both the Legislative and Executive Branches. The 
state secrets privilege was used by the Bush Administration to 
broadly escape judicial review of a number of potentially 
illegal actions, including rendition, warrantless domestic 
surveillance, and post-9/11 detention of American citizens, and 
in discrimination and retaliation claims brought by former 
federal employees. Corrective measures are needed from the 
Executive to limit the circumstances and manner in which state 
secrets privilege is asserted. Corrective measures are needed 
from the Legislative branch to standardize the process and 
provide uniform substantive standards by which courts may 
fairly evaluate whether the state secrets privilege, when 
challenged, was properly invoked.
    40. The incoming Administration and Congress should improve 
the system for classification and declassification. The 
President should issue an Executive Order that (i) rescinds 
Executive Order 13292, thereby restoring the previous 
presumptions for declassification, (ii) requires each Executive 
Branch agency that classified information during the Bush 
administration to perform a detailed review of its 
classification guides in order to eliminate obsolete 
requirements and to reduce the total amount of classification 
to a minimum, (iii) modifies military and intelligence 
classification rules to reduce unnecessary classification, (iv) 
adds a balancing test that requires that the public value of 
the information be considered when determining if it is to be 
declassified, and (v) ends the practice of reclassifying 
declassified documents. Congress should also consider 
legislation to prohibit political manipulation of the 
classification/declassification process in the future. The 
legislation should incorporate the recommendations of the 
Moynihan Commission,\1719\ among them, (i) the establishment of 
a national declassification center to declassify material (with 
guidance from the originating agencies) and make it available 
to the public, (ii) establishing a single, independent 
Executive Branch office for coordinating classification and 
declassification practice, (iii) requiring classification 
officials to weigh a variety of factors, including costs and 
benefits of secrecy, in arriving at their initial 
classification decision, and (iv) having the Director of 
National Intelligence issue a directive outlining the 
appropriate scope of protection for methods and sources as a 
rationale for classification.
    Reason: As a general matter, government documents should be 
declassified in all but the most necessary of circumstances, in 
order to promote the widest distribution of government 
information. The Bush Administration has largely operated under 
a veil of secrecy, not only seeking to keep existing classified 
information out of the public domain, but also attempting to 
re-classify documents that have already been declassified and 
released to the public. The consequences of using 
classification to keep potentially damaging revelations out of 
the public eye can be grave. For example, the Bush 
Administration used classification in order to embellish the 
2002 National Intelligence Estimate on Iraq's weapons of mass 
destruction capabilities and its ties to al Qaeda.\1720\ The 
public version omitted major caveats, uncertainties, and 
dissents contained in the classified version, thus leading the 
public to believe that the threat posed by Iraq was far more 
certain and immediate than the intelligence agencies actually 
believed.
    41. Congress should consider legislation requiring the 
President to publicly announce the declassification of 
classified materials. Congress should consider legislation 
whereby the Executive Office of the President is required to 
provide public notice whenever it declassifies documents, with 
the notices to be published on the White House website and 
other selected locations. The legislation should require the 
president to inform the congressional intelligence committees 
within a reasonable time frame whenever intelligence has been 
declassified, as provided in S. 2660, introduced by Sen. Diane 
Feinstein in the 109th Congress. Her legislation provided a 15-
day time period in which to give congressional intelligence 
committees notice of declassification.
    Reason: The Administration appears to have selectively 
leaked numerous items of classified information to buttress 
their case for war. The President himself appears to have 
secretly authorized the declassification of information without 
notice in an effort to neutralize Ambassador Wilson's op-ed 
concerning the Administration's uranium claims. The public 
would have better access to information were the White House to 
issue public notices upon declassification.
    42. The Department of Justice should restore the 
presumption of disclosure under FOIA. The Attorney General 
should rescind the October 2001 Ashcroft directive that 
reversed the presumption of disclosure under FOIA and restore 
the principle that information should be released unless it is 
both exempt from disclosure and it would be harmful to release 
it.\1721\
    Reason: The October 2001 directive issued by then-Attorney 
General Ashcroft reversed the presumption of disclosure under 
FOIA. Explicitly superseding the Department of Justice's FOIA 
Memorandum of October 4, 1993, the directive imposed a high 
threshold for disclosure, permitting the heads of all federal 
departments and agencies to make discretionary decisions to 
disclose information protected under the FOIA ``only after full 
and deliberate consideration of the institutional, commercial, 
and personal privacy interests that could be implicated.'' 
Adopted as Administration policy, the directive has resulted in 
a lack of transparency by the federal government. Indeed, 2007 
witnessed the lowest percentage of FOIA requests granted in 
full, 35.6%, since data collection started in 1998.\1722\ The 
previous presumption in favor of disclosure should be restored. 
Conflicts in balancing the public interest in information about 
its government with legitimate needs for secrecy should be 
decided in favor of disclosure.
    43. The President should rescind Bush White House memoranda 
that significantly restrict the use and disclosure of non-
classified information. In particular, the memoranda that 
should be revoked include White House Chief of Staff Andrew 
Card's Memorandum for the Heads of Executive Departments and 
Agencies on ``Action to Safeguard Information Regarding Weapons 
of Mass Destruction and Other Sensitive Documents Related to 
Homeland Security,'' (March 19, 2002) and President Bush's 
Memorandum for the Heads of Executive Departments and Agencies 
on the Sharing of Controlled Unclassified Information'' (May 9, 
2008).
    Reason: While national security concerns may legitimately 
require preventing the disclosure of certain classified 
information, those arguments fall away when that information is 
already declassified and in the public domain. The 2002 memo 
staked out broad Executive authority and encouraged agencies to 
reclassify information that was no longer classified and, 
similar to the Ashcroft memo on the Freedom of Information Act, 
encouraged the use of various FOIA exemptions to withhold 
disclosure of sensitive but unclassified information, which was 
not defined. The 2008 memo introduced ``Controlled Unclassified 
Information'' as a new government category that replaced 
``Sensitive but Unclassified.'' Rescinding the memos would 
promote greater transparency of government records by reducing 
the avenues by which documents could be withheld from the 
public for classification reasons.
    Similarly, while the Bush Administration claims that the 
purpose of the 2008 memo is to standardize practices and 
improve information sharing, it effectively continues an 
expansion of secrecy in government by adding an unnecessary 
level of uncertainty for government employees deciding which 
documents may be released in response to public inquiry. 
Although the Memorandum explicitly states that the use of the 
``controlled unclassified information'' label ``may inform but 
[does] not control'' the decision to disclose under FOIA, 
lower-level staff, seeing the label on responsive documents, 
may instinctively treat it as protected and withhold it from 
disclosure.\1723\ Poorly-trained or ill-informed junior staff, 
unfamiliar with these new designations, may be overly cautious 
in withholding documents, which is currently the norm in cases 
of uncertainty as a result of the memos described above. 
Because of the threat of under-disclosure, the incoming 
Administration should reduce potential room for error by 
minimizing the number of classification designations (in 
addition to mandating a presumption of disclosure, as described 
above).
    44. The President should place the Office of FOIA 
Ombudsperson in the National Archives. The President should 
resolve the impasse created by the Bush Administration and 
place the office of FOIA ombudsperson in the National Archives 
and Records Administration rather than in the Department of 
Justice, in compliance with the OPEN Government Act of 
2007.\1724\ This would situate the entity in a neutral forum to 
aid requesters with their FOIA requests without potential 
interference from a party in possession of requested documents, 
and provide impartial oversight over compliance.
    Reason: In enacting the OPEN Government Act of 2007, 
Congress created an ombudsperson responsible for FOIA requests. 
The position was created in response to Bush Administration 
policies designed to limit the volume of documents produced in 
response to FOIA requests. The position was created in the 
National Archives, and was designed to both assist requesters 
by providing informal guidance and reviewing agency compliance. 
In contravention of the enacting law, in 2008, the Bush 
Administration administratively transferred the office of FOIA 
ombudsperson from the National Archives, an independent federal 
entity, to the Department of Justice, which is part of the 
Executive Branch and ultimately supervised by the Attorney 
General, a presidential appointee. This change occurred before 
the office even began functioning. The transfer was initiated 
by the Vice President's office after it had engaged in an 
escalating series of confrontations with the National Archives 
over the Vice President's obligations to report his possession 
of classified information. As the ombudsperson's superior, the 
Attorney General could directly and indirectly influence the 
ombudsperson's actions and limit the guidance provide and 
disclosures authorized.
    45. The incoming Administration should restore the 
accessibility of presidential records. The President should 
issue an Executive Order rescinding Executive Order 13233 and 
restoring the requirements of Executive Order 12667. Such an 
order should have the effect of making presidential records 
generally available to the public twelve years after the 
president has left office, and preventing former presidents and 
vice presidents from indefinitely claiming privilege over such 
documents.\1725\
    Reason: President Bush issued Executive Order 13233, 
concerning the Presidential Records Act, which superseded 
Executive Order 12667. Under the old Executive Order, 
presidential documents were made public 12 years after the 
custodial president left office. Under President Bush's Order, 
former presidents and vice presidents and their representatives 
may seek to bar the release of such documents by claiming one 
of numerous privileges, allowing the president and vice 
president to enshroud numerous historical documents in a 
permanent secrecy.
    46. Congress should modernize the Presidential Records Act. 
Congress should consider legislation that would modernize the 
Presidential Records Act and clarify its application to a 
modern White House using multiple and overlapping 
communications systems, such as blackberries and personal 
digital assistants. The legislation should enact criminal 
penalties for intentional destruction of presidential records 
or deliberate circumvention of official record-keeping 
mechanisms when conducting presidential business.
    Reason: The Bush Administration's widespread use of 
political communications equipment to conduct official business 
has led to a number of challenges in investigating allegations 
of official misconduct such as the U.S. Attorney removals. 
Other investigations have been hampered by the loss of e-mail 
communications and inconsistency within backup and archiving 
mechanisms. Investigation by the Oversight and Government 
Reform Committee revealed that, in some instances, personnel 
intentionally and knowingly diverted official business to 
outside communication systems to avoid White House 
recordkeeping systems.\1726\
    47. The incoming Administration should clarify the 
applicability of rules of access to the Office of the Vice 
President. The President should issue an Executive Order 
clarifying that the rules of secrecy applicable to the 
Executive Branch apply equally to the Office of the Vice 
President and that the Office of the Vice President is subject 
to the same document preservation requirements as the 
president.
    Reason: Vice President Cheney has consistently refused to 
comply with information disclosure mandates applicable to the 
entire Executive Branch.\1727\ He has justified his 
noncompliance on the grounds that the secrecy rules which bind 
the Executive are not applicable to the Office of the Vice 
President. The Office of the Vice President cited this alleged 
ambiguity in declining to comply with the National Archives' 
request for the preservation of documents, a request with which 
even the Office of the President has complied. The dispute led 
to unnecessary litigation between the two offices. The 
political nature of the Vice President's position became 
evident when his chief of staff David Addington attempted to 
have the Archivist's office eliminated. There is no proper 
policy or constitutional basis for excluding the Vice 
President's office from general rules of access.
    48. The incoming Administration should eliminate overly 
restrictive ``Gang of 8'' briefings in favor of more effective 
mechanisms. To the extent possible, the President should avoid 
using ``Gang of 8'' briefings, as the system leads to abuses. 
If necessary, Congress should consider amending the National 
Security Act to (i) expand 50 U.S.C. Sec. 413b(c)(2) to permit 
staff members of the Gang of 8 with suitable security 
clearances to participate, (ii) make clear that the Gang of 8 
can discuss the contents of these briefings with their 
congressional colleagues under suitable protections, and (iii) 
clarify the meaning of the word ``covert'' within the statute.
    Reason: The National Security Act of 1947 requires the 
president to keep all members of the congressional intelligence 
committees fully and currently informed of all of the 
intelligence activities of the United States.\1728\ However, 
where covert actions are involved, the president is statutorily 
permitted to limit notification to the so-called ``Gang of 8,'' 
the leaders of the House and Senate and the chairs of the House 
and Senate intelligence committees.\1729\ ``Gang of 8'' 
briefings exclude staff, regardless of their levels of security 
clearance; moreover, the debriefed members are forbidden from 
taking notes or discussing the substance of these briefings 
with their colleagues. Despite the express limitation spelled 
out in the statute, the Bush Administration has used ``Gang of 
8'' briefings to brief a limited number of Members on a wider 
variety of issues not provided for within the law, such as 
warrantless domestic surveillance; the Congressional Research 
Service specifically found that the program ``would appear to 
fall more closely under the definition of an intelligence 
collection program, rather than qualify as a covert action 
program as defined by statute.'' \1730\ On one occasion in 
October 2001, the Bush White House went so far as to say that 
any congressional briefing involving classified information 
should be limited to the ``Gang of 8'' and no one else in 
Congress. This undermines the express purpose of the National 
Security Act, which was to keep the intelligence committees 
fully informed of the federal government's intelligence 
activities. In addition, no legislation should be able to limit 
the ability of any Members of Congress to share information 
with other Members when necessary to carry out their 
constitutional responsibilities, and amendments to the rules of 
both Houses would be appropriate to make this clear.
    49. The incoming Administration mandate steps to avoid 
manipulation and misuse of intelligence. The President should 
issue an Executive Order that ensures that (i) versions of 
National Intelligence Estimates (``NIEs'') and other documents 
made public adequately indicate dissents or caveats, (ii) only 
official components of the intelligence community can produce 
intelligence assessments, and (iii) senior officials not make 
public assertions inadequately supported by intelligence, and 
there be procedures for corrective action should that occur. In 
addition, by executive action or by statutory mandate if 
necessary, an unclassified version of National Intelligence 
Estimates and comparable assessments, including important 
caveats and dissents, should be publicly released.
    Reason: The ``hands-on'' approach of the Bush 
Administration in directly reviewing raw intelligence data that 
had not been vetted through appropriate channels led to 
improper assumptions, incorrect assessments, and a diminution 
in independent recommendations, all of which led to misguided 
policies with devastating long-term consequences.
    Senior Defense Department executives established the Office 
of Special Plans (OSP), which purported to produce intelligence 
reports and assessments about alleged Iraqi WMDs and links to 
al Qaeda. Working with the Office of the Vice President, OSP 
sent its products directly to the White House, without their 
being subject to review and comment by the intelligence 
community. At the same time, the Vice President, his staff and 
other senior Executive officials made repeated trips to the CIA 
to press analysts to conform their evaluations on Iraq to 
predetermined positions.
    Rather than provide unbiased independent assessments to the 
White House, the intelligence community effectively came under 
the Office of the Vice President, which then filtered the 
intelligence to comport with the policy positions of the 
Executive. For example, the Bush Administration cited an 
intelligence community estimate that aluminum tubes imported by 
Iraq were intended for centrifuges to enrich uranium to weapons 
grade. Department of Energy (DOE) scientists, who were the 
Americans most expert on uranium enrichment, were confident 
that the tubes were not intended for use as centrifuge. They 
had vehemently dissented from the majority Community view that 
the tubes were intended for centrifuges. Moreover the State 
Department intelligence experts on nuclear proliferation agreed 
with the DOE experts.
    Although NIEs, which are authoritative assessments by the 
intelligence community on intelligence related to specific 
national security issues, are under the possession and control 
of the president, the misuse of NIEs by the President in the 
Iraq War illuminates why publishing declassified versions is so 
important. The Bush Administration made public a declassified 
version of the 2002 National Intelligence Estimate about the 
WMD threats posed by Iraq. However, the published version 
omitted major caveats, acknowledgment of poor information, 
expressions of low probability, and dissenting views. It also 
omitted the Intelligence Community consensus that there was 
little likelihood that Saddam would give whatever WMD he might 
have had to terrorists, as President Bush had suggested. It is 
crucial to ensure that Congress and the public can consider the 
facts and assumptions relied upon in fashioning some of the 
Executive's most grave policy decisions.
    50. The incoming Administration should conduct an internal 
review to determine what involvement, if any, the CIA or any 
other intelligence agency played in the preparation or 
dissemination of the forged ``Habbush'' memorandum, leaked in 
December 2003, that: 1) purported to establish a link between 
Saddam Hussein and al Qaeda prior to the 
9/11 attacks, and 2) purported to establish that Iraq did, in 
fact, purchase uranium from Niger as suggested in President 
Bush's 2003 State of the Union address.\1731\ The Director of 
National Intelligence, the Director of Central Intelligence, 
and the Secretary of Defense should each direct a complete and 
necessary investigation--either by way of the appropriate 
Inspector General or otherwise--to fully account for all acts 
associated with the apparently forged memorandum.
    Reason: There is substantial reason to believe that the 
``Habbush Memorandum'' was created within the Executive Branch 
of the United States, or, even if physically created elsewhere, 
that its dissemination by the Iraqi intelligence service to the 
Telegraph was furthered or otherwise encouraged by the 
Executive Branch. These actions could constitute a violation of 
the United States law that prohibits the intelligence community 
from conducting covert actions intended to influence United 
States political processes, public opinion, policies, or 
media.\1732\ The evidence suggesting intelligence community 
complicity in this event includes:
     Ron Suskind, in his book The Way of the World, 
states that a source in the CIA told him that Vice President 
Cheney ordered the CIA to prepare the Habbush Memorandum.\1733\
     Mr. Suskind posted on his web site his interview 
with that CIA source in which the source acknowledged 
directions from the White House/Vice President to prepare the 
document.\1734\
     Former CIA officer Philip Giraldi, writing in The 
American Conservative, reported that the document was prepared 
within the Office of Special Plans at the Defense Department at 
the direction of Vice President Cheney.\1735\
     Ayad Allawi, identified by a Telegraph reporter as 
having been the source of the document, was known to be a CIA 
asset. Indeed, Allawi was reported by The Washington Post as 
having met with the CIA the very week prior to the Telegraph 
article.\1736\
     The story was leaked to a British newspaper, 
potentially to avoid the reach of the law by avoiding direct 
disclosure to United States media.
    Furthermore, the motive for the creation of the document 
points to Vice President Cheney's office, and is thus 
consistent with the above press accounts:
     This memorandum was written and leaked after no 
weapons of mass destruction were found in Iraq and questions 
were being raised about why the United States had invaded Iraq. 
This letter bolstered the case for the existence of Iraq's 
atomic weapons program.
     Vice President Cheney was known to have persisted 
in the claim that there were connections between Saddam and al 
Qaeda long after these connections were disproved. This 
document bolstered the case for the invasion as having been 
justified as a response to the 9/11 attacks.
     More important, as reported in the Suskind book, 
this forgery was created starting in September of 2003--shortly 
after the Department of Justice commenced investigating the 
leak of Valerie Plame's identity. The forgery would have 
undermined Joseph Wilson (by supporting the truthfulness of the 
purported uranium purchase) and, to some extent, undermined the 
merits of the federal leak investigation.
     The leak of this document as part of a strategy to 
defend the Iraq Was is consistent with the leak of the identity 
of Valerie Plame's identity (through Scooter Libby), an act 
conducted through Vice President Cheney's Office.
    Though certain officials in the Bush Administration have 
denied creating this document, it is vital to this Nation's 
understanding of the events leading us into the Iraq War that 
there be a complete accounting for the facts and circumstances 
associated with the implementation of the Bush Administration's 
Iraq policies, and as part of that accounting, that the truth 
about the government's involvement in the creation and 
distribution of this document--if any--be fully disclosed.

                                Appendix

 Materials Concerning Allegations of Excesses and Abuses of Executive 
              Branch Powers Under President George W. Bush

I. Books, Reports, and Articles
    1. Ackerman and Judis, ``The First Casualty: The Selling of 
the Iraq War,'' New Republic, June 19, 2003.
    2. American Bar Association, Achieving the Potential--The 
Future of Federal E-Rulemaking, A Report to Congress and the 
President from the Committee on the Status and Future of 
Federal E-Rulemaking (2008).
    3. American Bar Association, Task Force on Presidential 
Signing Statements and the Separation of Powers Doctrine (July 
24, 2006), available at http://www.abanet.org/op/
signingstatements.
    4. American Civil Liberties Union, Actions for Restoring 
America: How to Begin Repairing the Damage to Freedom in 
America After Bush (2008), available at http://www.aclu.org/
images/asset_upload_file96_37256.pdf.
    5. American Civil Liberties Union, Race & Ethnicity In 
America: Turning A Blind Eye to Injustice (2007), available at 
http://www.aclu.org/pdfs/humanrights/cerd--full--report.pdf.
    6. Barron and Lederman, ``The Commander in Chief at the 
Lowest Ebb--A Constitutional History,'' 121 Harv. L. Rev. 941 
(2008).
    7. Barron and Lederman, ``The Commander in Chief at the 
Lowest Ebb--Framing the Problem, Doctrine, and Original 
Understanding,'' 121 Harv. L. Rev. 689 (2008).
    8. Bass et al., Advancing the Public Interest Through 
Regulatory Reform--Recommendations for President-Elect Obama 
and the 111th Congress (Nov. 2008).
    9. Beatty, ``Crimes and Misdemeanors,'' The Atlantic (Mar. 
23, 2006), available at http://www.theatlantic.com/doc/200603u/
guantanamo.
    10. Beatty, ``Fighting Terrorism with Torture,'' The 
Atlantic (May 27, 2005), available at http://
www.theatlantic.com/doc/200505u/pp2005-05-27.
    11. Beatty, ``The Right Thing,'' The Atlantic (Sept. 1, 
2004), available at http://www.theatlantic.com/doc/200409u/
cd2004-09-01.
    12. Brito and de Rugy, Midnight Regulations and Regulatory 
Review, Mercatus Center Working Paper No. 08-34, 2008.
    13. Burrough, Peretz, Rose, and Wise, ``The Path to War,'' 
Vanity Fair (May 1, 2004).
    14. Campbell, Deliver the Vote: A History of Election 
Fraud, an American Political Tradition (Carroll & Graf 2005).
    15. Center for Constitutional Rights, Report on Torture and 
Cruel, Inhuman, and Degrading Treatment of Prisoners at 
Guantanamo Bay, Cuba (2006), available at http://
ccrjustice.org/files/Report_ReportOnTorture.pdf.
    16. Chandrasekaran, Imperial Life in the Emerald City: 
Inside Iraq's Green Zone (Alfred A. Knopf 2006).
    17. Citizens' Commission on Civil Rights, The Erosion of 
Rights: Declining Civil Rights Enforcement Under the Bush 
Administration (2007), available at http://
www.americanprogress.org/issues/2007/03/pdf/
civil_rights_report.pdf.
    18. Clarke, Against All Enemies: Inside America's War on 
Terror (Free Press 2004).
    19. Cohn, Cowboy Republic: Six Ways the Bush Gang Has 
Defied the Law (PoliPointPress 2007).
    20. Cole, ``Accounting for Torture,'' The Nation (Mar. 3, 
2005), available at http://www.thenation.com/doc/20050321/cole.
    21. Cole, Justice at War: The Men and Ideas that Shaped 
America's War on Terror (New York Review Books 2008).
    22. Cole, No Equal Justice: Race and Class in the American 
Criminal Justice System (W.W. Norton 1999).
    23. Cole & Dempsey, Terrorism and the Constitution: 
Sacrificing Civil Liberties in the Name of National Security 
(New Press 2006).
    24. Coll, ``Deluded,'' The New Yorker (Apr. 3, 2006), 
available at http://www.newyorker.com/archive/2006/04/03/
060403ta_talk_coll.
    25. Commission of Inquiry into the Actions of Canadian 
Officials in Relation to Maher Arar, Report of the Events 
Relating to Maher Arar, Factual Background, Vol. I, II and 
Analysis and Recommendations (2006), available at http://
www.ararcommission.ca/eng/2007-08-08-addendum.pdf.
    26. Committee on International Human Rights of the New York 
Bar Association and Center for Human Rights and Global Justice, 
New York University School of Law, Torture by Proxy: 
International and Domestic Law Applicable to ``Extraordinary 
Renditions,'' (June 2006), available at http://www.chrgj.org/
docs/TortureByProxy.pdf.
    27. Cooper, ``George W. Bush, Edgar Allen Poe, and the Use 
and Abuse of Presidential Signing Statements,'' 35 Presidential 
Studies Quarterly 515 (2005).
    28. Danner, Torture and Truth: America, Abu Ghraib, and the 
War on Terror (New York Review of Books 2004).
    29. Danner, ``US Torture: Voices from the Black Sites,'' 
N.Y. Rev. of Books (Apr. 9, 2009), available at http://
www.nybooks.com/articles/22530.
    30. Dean, Broken Government: How Republican Rule Destroyed 
the Legislative, Executive, and Judicial Branches (Viking 
2007).
    31. Dean, Worse than Watergate: The Secret Presidency of 
George W. Bush (Warner Books 2005).
    32. Draper, Dead Certain: The Presidency of George W. Bush 
(Free Press 2007).
    33. Drew, ``Power Grab,'' N.Y. Rev. of Books (June 22, 
2006), available at http://www.nybooks.com/articles/19092.
    34. Drogin, Curveball: Spies, Lies, and the Con Man Who 
Caused a War (Random House 2007).
    35. Epps, ``The Founder's Great Mistake,'' The Atlantic 
(Jan. 2009), available at http://www.theatlantic.com/doc/
200901/founders-mistake.
    36. Fallows, ``Blind Into Baghdad,'' The Atlantic (Feb. 
2004), available at http://www.theatlantic.com/doc/200401/
fallows.
    37. Fallows, ``Bush's Lost Year,'' The Atlantic (Oct. 
2004), available at http://www.theatlantic.com/doc/200410/
fallows.
    38. Fisher, Constitutional Conflicts Between Congress and 
the President (University Press of Kansas 2007).
    39. Fisher, ``Lost Constitutional Moorings: Recovering the 
War Power,'' 81 Ind. L.J. 1199 (2005).
    40. Freeman, Was the 2004 Presidential Election Stolen?: 
Exit Polls, Election Fraud, and the Official Count (Seven 
Stories Press 2006).
    41. Fund, Stealing Elections: How Voter Fraud Threatens Our 
Democracy (Encounter Books 2004).
    42. Gellman, Angler: The Cheney Vice Presidency (Penguin 
2008).
    43. Goldsmith, The Terror Presidency: Law and Judgment 
Inside the Bush Administration (W.W. Norton & Co. 2007).
    44. Goodman and Goodman, Static: Government Liars, Media 
Cheerleaders, and the People Who Fight Back (Hyperion 2006).
    45. Goodman and Goodman, The Exception to the Rulers: 
Exposing Oily Politicians, War Profiteers, and the Media that 
Love Them (Hyperion 2004).
    46. Gordon and Trainor, Cobra II: The Inside Story of the 
Invasion and Occupation of Iraq (Atlantic Books 2006).
    47. Greenberg, The Torture Debate in America (Cambridge 
University Press 2006).
    48. Greenberg and Dratel, The Torture Papers: The Road to 
Abu Ghraib (Cambridge University Press 2005).
    49. Greenwald, A Tragic Legacy: How a Good vs. Evil 
Mentality Destroyed the Bush Presidency (Crown Publishers 
2007).
    50. Hamburger and Wallsten, One Party Country: The 
Republican Plan for Dominance in the 21st Century (John Wiley & 
Sons 2006).
    51. Hayes, The Untold Story of America's Most Powerful and 
Controversial Vice President (HarperCollins 2007).
    52. Hentoff, ``Architect of Torture,'' The Village Voice 
(July 10, 2007), available at http://www.villagevoice.com/news/
0728,hentoff,77169,6.html.
    53. Hersh, ``Listening In,'' The New Yorker (May 29, 2006).
    54. Hertzberg, ``Snake Eyes,'' The New Yorker (Aug. 21, 
2006), available at http://www.newyorker.com/archive/2006/08/
21/060821ta_talk_hertzberg.
    55. Holmes, ``John Yoo's Tortured Logic,'' The Nation (May 
1, 2006), available at http://www.thenation.com/doc/20060501/
holmes/2.
    56. Horton, ``A Primer In Political Persecution,'' Harper's 
Mag. (Oct. 24, 2007), available at http://www.harpers.org/
archive/2007/10/hbc-90001500.
    57. Horton, ``How Many Americans Died Because of Bush's 
Torture Program?,'' Harper's Mag. (Dec. 2, 2008), available at 
http://www.harpers.org/archive/2008/12/hbc-90003947.
    58. Horton, ``The Torture Presidency,'' Harper's Mag. (Oct. 
15, 2008), available at http://www.harpers.org/archive/2008/10/
hbc-90003686.
    59. Human Rights Center, et al, Guantanamo and its 
Aftermath: U.S. Detention and Interrogation Practices and their 
Impact on Former Detainees (Univ. of Calif., Berkeley 2008), 
available at http://hrc.berkeley.edu/pdfs/Gtmo-Aftermath.pdf.
    60. Human Rights First, How to End Torture and Cruel 
Treatment: Blueprint for the Next Administration (2008), 
available at http://www.humanrightsfirst.org/pdf/etn-end-
torture-blueprint.pdf.
    61. Human Rights Watch, Fighting Terrorism Fairly and 
Effectively: Recommendations for President-Elect Barack Obama 
(2008), available at http://www.hrw.org/en/reports/2008/11/16/
fighting-terrorism-fairly-and-effectively-0.
    62. Huq, Twelve Steps to Restore Checks and Balances: 
Report by the Brennan Center for Justice at New York University 
School of Law (2008).
    63. Irons, War Powers: How The Imperial Presidency Hijacked 
the Constitution (Metropolitan Books 2005).
    64. Isikoff and Corn, Hubris: The Inside Story of Spin, 
Scandal, and the Selling of the Iraq War (Crown Publishers 
2006).
    65. Jamail, Beyond the Green Zone: Dispatches from an 
Unembedded Journalist in Occupied Iraq (Haymarket Books 2007).
    66. Krugman, The Conscience of a Liberal (W.W. Norton 
2007).
    67. Lawyers' Comm. For Civil Rights, Election Protection 
2008 Primary Report: Looking Ahead to November (July 2008).
    68. Lane and Oreskes, The Genius of America: How the 
Constitution Saved Our Country--and Why It Can Again 
(Bloomsbury 2007).
    69. Leadership Conference on Civil Rights Education Fund, 
The Bush Administration Takes Aim: Civil Rights Under Attack 
(Apr. 2003), available at http://www.civilrights.org/
publications/reports/taking_aim/bush_takes--aim.pdf.
    70. Lewis, ``The Torture Administration,'' The Nation (Dec. 
7, 2005), available at http://www.thenation.com/doc/20051226/
lewis.
    71. Lichtblau, Bush's Law: The Remaking of American Justice 
(Pantheon 2008).
    72. Loo and Phillips, Impeach the President: The Case 
Against Bush and Cheney (Seven Stories Press 2006).
    73. Mahler, ``After the Imperial Presidency,'' N.Y. Times 
Mag. (Nov. 7, 2008), available at http://www.nytimes.com/2008/
11/09/magazine/09power-t.html?_r=2&hp&oref=slogin&oref=slogin.
    74. Mayer, ``Outsourcing Torture, the Secret History of 
America's `Extraordinary Rendition' Program,'' The New Yorker 
(Feb. 14, 2005), available at http://www.newyorker.com/archive/
2005/02/14/050214fa_fact6.
    75. Mayer, The Dark Side: The Inside Story of How the War 
on Terror Turned Into A War on American Ideals (Doubleday 
2008).
    76. Mayer, ``The Hidden Power,'' The New Yorker (July 3, 
2006), available at http://www.newyorker.com/archive/2006/07/
03/060703fa_fact1?currentPage=6.
    77. Margulies, Guantanamo and the Abuse of Presidential 
Powers (Simon & Schuster 2006).
    78. McClellan, What Happened: Inside the Bush White House 
and Washington's Culture of Deception (Public Affairs 2008).
    79. Meiklejohn Civil Liberties Institute, Undoing The Bush-
Cheney Legacy: A Tool Kit for Congress and Activists 
(Meiklejohn Civil Liberties Institute 2008).
    80. Miles, Oath Betrayed: America's Torture Doctors 
(University of California Press 2009).
    81. Miller, Fooled Again: How the Right Stole the 2004 
Election and Why They'll Steal the Next One Too (Unless We Stop 
Them) (Basic Books 2005).
    82. Overton, Stealing Democracy: The New Politics of Voter 
Suppression (Norton 2006).
    83. Percy, ``Torture and Terrorism,'' The Atlantic (Oct. 4, 
2007), available at http://www.theatlantic.com/doc/200612u/
torture.
    84. Perez, Voter Purges (Brennan Center for Justice 2008).
    85. Ricks, Fiasco: The American Military Adventure in Iraq 
(Penguin Press 2006).
    86. Right to Know Community, Moving Toward a 21st Century 
Right-to-Know Agenda: Recommendations to President-Elect Barack 
Obama and Congress (2008), available at http://otrans.3cdn.net/
f1abd87eba398af71a_sjm6bdwv8.pdf.
    87. Risen, State of War: The Secret History of the CIA and 
the Bush Administration (Free Press 2006).
    88. Rose, Guantanamo: The War on Human Rights (New Press 
2004).
    89. Rubin, Brave New Ballot: The Battle to Safeguard 
Democracy in the Age of Electronic Voting (Morgan Road 2006).
    90. Rudalevige, ``Civil Rights, Uncivil Wrongs: The War on 
Terrorism's Toll on the U.S. Constitution,'' Foreign Affairs 
(Jan. 2007), available at http://www.foreignaffairs.org/
20070101fareviewessay86112a/andrew-rudalevige/civil-rights-
uncivil-wrongs-the-war-on-terrorism-s-toll-on-the-u-s-
constitution.html.
    91. Rudalevige, The New Imperial Presidency: Renewing 
Presidential Power After Watergate (University of Michigan 
Press 2005).
    92. Sands, Lawless World: Making and Breaking Global Rules 
(Penguin 2006).
    93. Sands, Torture Team: Rumsfeld's Memo and the Betrayal 
of American Values (Palgrave Macmillan 2008).
    94. Satterthwaite and Fisher, Beyond Guantanamo: Transfers 
to Torture One Year After Rasul v. Bush (Center For Human 
Rights & Global Justice, New York University School of Law 
2005), available at http://www.chrgj.org/docs/
Beyond%20Guantanamo%20Report%20FINAL.pdf.
    95. Savage, Takeover: The Return of the Imperial Presidency 
and the Subversion of American Democracy (Little, Brown 2007).
    96. Scheer, ``Human Rights, Rendered Meaningless,'' The 
Nation (Dec. 14, 2005), available at http://www.thenation.com/
doc/20051226/scheer1214.
    97. Schlesinger, The Imperial Presidency (Houghton Mifflin 
2004 ed.).
    98. Schwarz, Unchecked and Unbalanced: Presidential Power 
in a Time of Terror (New Press 2007).
    99. Shattuck, ``A Lawless State,'' The American Prospect 
(Sep. 19, 2004), available at http://www.prospect.org/cs/
articles?article=a_lawless_state.
    100. Sullivan, The Conservative Soul: How We Lost It, How 
To Get It Back (HarperCollins 2006).
    101. Suskind, The One Percent Doctrine: Deep Inside 
America's Pursuit of its Enemies Since 9/11 (Simon & Schuster 
2006).
    102. Suskind, The Price of Loyalty: George W. Bush, the 
White House, and the Education of Paul O'Neill (Simon & 
Schuster 2004).
    103. Suskind, The Way of the World: A Story of Truth and 
Hope in an Age of Extremism (HarperCollins 2008).
    104. Trillin, ``George W. Bush Explains the `Signing 
Statement,' '' The Nation (Jan 19, 2006), available at http://
www.thenation.com/doc/20060206/trillin.
    105. Unger, The Fall of the House of Bush: The Untold Story 
of How a Band of True Believers Seized the Executive Branch, 
Started the Iraq War, and Still Imperils America's Future 
(Scribner 2007).
    106. Vanden Heuvel and Borosage, Taking Back America and 
Taking Down the Radical Right (Nation Books 2004).
    107. Vanden Heuvel and Schell, A Just Response: The Nation 
on Terrorism, Democracy, and September 11, 2001 (Thunder's 
Mouth Press/Nation Books 2002).
    108. Walt, ``Taming American Power,'' Foreign Affairs (Sep. 
2005), available at http://www.foreignaffairs.org/
20050901faessay84509/stephen-m-walt/taming-american-power.html.
    109. Wilson, Fair Game (Simon & Schuster 2007).
    110. Wolff, ``Survivor: The White House Edition,'' Vanity 
Fair (Dec. 2006), available at http://www.newyorker.com/
archive/2006/04/03/060403ta_talk_coll.
    111. Woodward, Bush at War (Simon & Schuster 2002).
    112. Woodward, Plan of Attack (Simon & Schuster 2004).
    113. Woodward, State of Denial (Simon & Schuster 2007).

II. Hearings of the House Committee on the Judiciary During the 110th 
        Congress

    1. Presidential Signing Statements under the Bush 
Administration: Hearing Before the H. Comm. on the Judiciary, 
110th Cong., Jan. 31, 2007, available at http://
judiciary.house.gov/hearings/hear_013107.html. (The Committee 
heard testimony from the Hon. Mickey Edwards, Former Member of 
Congress, Aspen Institute; John Elwood, Deputy Assistant 
Attorney General, U.S. Department of Justice; Karen J. Mathis, 
President, American Bar Association; Professor Charles 
Ogletree, Jesse Climenko, Professor of Law, Harvard Law School; 
Professor Nicholas Quinn Rosenkranz, Associate Professor of 
Law, Georgetown University Law Center.)
    2. Amending Executive Order 12866: Good Governance or 
Regulatory Usurpation?: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., Feb. 13, 2007, available at http://
judiciary.house.gov/hearings/February2007/hear_021307.html. 
(The Subcommittee heard testimony from Steven D. Aitken, Acting 
Administrator, Office of Information and Regulatory Affairs, 
Office of Management and Budget; Curtis W. Copeland Ph.D., 
Specialist in American National Government, Congressional 
Research Service; Sally Katzen, Professor, Visiting Professor, 
George Mason School of Law; Paul R. Noe, Partner, C&M 
Capitolink LLC and Counsel, Crowell & Moring Environment & 
Natural Resources Group; Peter L. Strauss, Professor, Columbia 
University School of Law.)
    3. H.R. 580, Restoring Checks and Balances in the 
Confirmation Process of U.S. Attorneys: Hearing Before the 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, 110th Cong., Mar. 6, 2007, available at 
http://judiciary.house.gov/hearings/March2007/hear_030607.html. 
(The Subcommittee heard testimony from William E. Moschella, 
Principal Associate Deputy Attorney General, United States 
Department of Justice; Carol C. Lam, Former United States 
Attorney for the Southern District of California; David C. 
Iglesias, Former United States Attorney for the District of New 
Mexico; Daniel Bogden, Former United States Attorney for the 
District of Nevada; Paul K. Charlton, Former United States 
Attorney for the District of Arizona; H.E. Cummins III, Former 
United States Attorney for the Eastern District of Arkansas; 
John McKay, Former United States Attorney for the Western 
District of Washington; The Honorable Darrell E. Issa, U.S. 
House of Representatives; The Honorable Asa Hutchinson, Former 
Member United States House of Representatives; John A. 
Smietanka, President Former United States Attorney for the 
Western District of Michigan; Altee W. Wampler III, President 
National Association of Former United States Attorneys; George 
J. Terwilliger III, Former Deputy Attorney General of the 
United States; T.J. Halstead, Legislative Attorney American Law 
Division, Congressional Research Service.)
    4. Protecting the Right to Vote: Election Deception and 
Irregularities in Recent Federal Elections: Hearing Before the 
H. Comm. on the Judiciary, 110th Cong., Mar. 7, 2007, available 
at http://judiciary.house.gov/hearings/March2007/
hear_030707.html. (The Committee heard testimony from Hon. 
Barack Obama, United States Senate; Hon. Loretta Sanchez, U.S. 
House of Representatives; Hon. Steve King, U.S. House of 
Representatives; Hon. Benjamin Cardin, United States Senate; 
Hon. Brian Bilbray, U.S. House of Representatives; Hon. Rahm 
Emanuel, U.S. House of Representatives; Donna L. Brazile, Chair 
Democratic National Committee's Voting Rights Institute and 
Adjunct Professor Georgetown University; John Fund, Columnist 
The Wall Street Journal; Eve Sandberg, Associate Professor of 
Politics Oberlin College; Ralph G. Neas, President and CEO 
People for the American Way.)
    5. The Inspector General's Independent Report on the 
F.B.I.'s Use of National Security Letters: Hearing Before the 
H. Comm. on the Judiciary, 110th Cong., Mar. 20, 2007, 
available at http://judiciary.house.gov/hearings/March2007/
hear_032007_2.html. (The Committee heard testimony from Valerie 
Caproni, General Counsel, Office of the General Counsel, 
Federal Bureau of Investigation; Glenn A. Fine, Inspector 
General, Office of the Inspector General, U.S. Department of 
Justice.)
    6. Oversight Hearing on the Civil Rights Division of the 
Department of Justice: Hearing Before the Subcomm. on Const., 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary, 110th Cong., Mar. 22, 2007, available at http://
judiciary.house.gov/hearings/March2007/hear_032207_1.html. (The 
Subcommittee heard testimony from Wan J. Kim, Assistant 
Attorney General Civil Rights Division; William L. Taylor, 
Chair, Citizens' Commission on Civil Rights; Joseph D. Rich, 
Director of the Fair Housing Community Development Project 
Lawyers' Committee for Civil Rights Under Law; Roger Clegg, 
President and General Counsel Center for Equal Opportunity; 
Wade Henderson, President and CEO, Leadership Conference on 
Civil Rights.)
    7. Ensuring Executive Branch Accountability: Hearing Before 
the Subcomm. on Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 110th Cong., Mar. 29, 2007, available 
at http://judiciary.house.gov/hearings/March2007/
hear_032907.html. (The Subcommittee heard testimony from Noel 
J. Francisco, Former Associate Counsel to President George W. 
Bush, Partner, Jones Day; Beth Nolan, Former White House 
Counsel to President Bill Clinton, Partner, Crowell & Moring; 
John Podesta, Former White House Chief of Staff to President 
Bill Clinton President and Chief Executive Officer, Center for 
American Progress; Frederick A.O. Schwarz, Jr., Senior Counsel 
Brennan Center for Justice at NYU School of Law.)
    8. The Continuing Investigation into the U.S. Attorneys 
Controversy: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong., May 3, 2007, available at http://judiciary.house.gov/
hearings/May2007/hear_050307_3.html. (The Subcommittee heard 
testimony from James B. Comey, Former Deputy Attorney General 
Department of Justice.)
    9. Oversight Hearing on the United States Department of 
Justice: Hearing Before the H. Comm. on the Judiciary, 110th 
Cong., May 10, 2007, available at http://judiciary.house.gov/
hearings/May2007/hear_051007.html. (The Committee heard 
testimony from The Honorable Alberto Gonzales, Attorney General 
U.S. Department of Justice.)
    10. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong., May 23, 2007, available at http://
judiciary.house.gov/hearings/May2007/hear_052307_1.html. (The 
Committee heard testimony from Monica Goodling, Former Justice 
Department White House Liaison.)
    11. Oversight Hearing on the Constitutional Limitations on 
Domestic Surveillance: Hearing Before the Subcomm. on Const., 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary, 110th Cong., June 7, 2007, available at http://
judiciary.house.gov/hearings/June2007/hear_060707.html. (The 
Subcommittee heard testimony from Steven G. Bradbury, Principal 
Deputy Assistant Attorney General, Office of Legal Counsel, 
U.S. Department of Justice; Lee A. Casey, Partner, Baker 
Hostetler; Bruce Fein, The Lichfield Group, Inc.; Louis Fisher, 
American Law Division, Library of Congress; Jameel Jaffer, 
Director, National Security Project, American Civil Liberties 
Union.)
    12. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., June 21, 2007, available at http://
judiciary.house.gov/hearings/June2007/hear_062107.html. (The 
Subcommittee heard testimony from Paul J. McNulty, Deputy 
Attorney General United States Department of Justice.)
    13. The U.S. Environmental Protection Agency's Response to 
Air Quality Issues Arising from the Terrorist Attacks of 
September 11, 2001: Were There Substantive Due Process 
Violations?: Hearing Before the Subcomm. on Const., Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong., June 25, 2007, available at http://
judiciary.house.gov/hearings/June2007/hear_062507.html. (The 
Subcommittee heard testimony from The Honorable Christine Todd 
Whitman, Whitman Strategy Group; John L. Henshaw, Henshaw & 
Associates, Inc.; Samuel Thernstrom, American Enterprise 
Institute; Tina Kreisher, Communications Director U.S. 
Department of the Interior; David Newman, New York Committee of 
Occupational Safety and Health; Eileen McGinnis, Senior Vice 
President Whitman Strategy Group; Marianne L. Horinko, 
Executive Vice President Global Environment & Technology 
Foundation; Suzanne Y. Mattei, Former New York City Executive 
of the Sierra Club.)
    14. Habeas Corpus and Detentions at Guantanamo Bay: Hearing 
Before the Subcomm. on Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Congress, 
June 26, 2007, available at http://judiciary.house.gov/
hearings/June2007/hear_062607.html. (The Subcommittee heard 
testimony from Gregory Katsas, Principal Deputy Associate 
Attorney General, Office of the Associate Attorney General, 
U.S. Department of Justice; Lt. Commander Charlie Swift, Judge 
Advocate General Corps, U. S. Navy Office of Military 
Commissions; William Taft, of Counsel Fried, Frank, Harris, 
Shriver, Jacobsen, LLP; Bradford Berenson, Partner, Sidley 
Austin LLP; Jonathan Hafetz, Litigation Director of the Liberty 
and National Security Project at the Brennan Center for Justice 
New York University School of Law.)
    15. The Use and Misuse of Presidential Clemency Power for 
Executive Branch Officials: Hearing Before the H. Comm. on the 
Judiciary, 110th Cong., July 11, 2007, available at http://
judiciary.house.gov/hearings/July2007/hear_071107.html. (The 
Committee heard testimony from The Honorable Joseph C. Wilson 
IV, Former Ambassador; Roger C. Adams, Office of the Pardon 
Attorney, U.S. Department of Justice; David B. Rivkin, Jr., 
Partner, Baker & Hostetler, LLP; Professor Douglas A. Berman, 
Moritz College of Law The Ohio State University; Tom Cochran, 
Assistant Federal Public Defender, Middle District of North 
Carolina.)
    16. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., July 12, 2007, available at http://
judiciary.house.gov/hearings/July2007/hear_071207_3.html. (The 
Subcommittee heard testimony from Absent: Harriet Miers, Former 
White House Counsel Member at Locke, Liddell, & Sapp PLLC.)
    17. Oversight Hearing on the Federal Bureau of 
Investigation: Hearing Before the H. Comm on the Judiciary, 
110th Cong., July 26, 2007, available at http://
judiciary.house.gov/hearings/July2007/hear_072607.html. (The 
Committee heard testimony from The Honorable Robert S. Mueller, 
Director, Federal Bureau of Investigation.)
    18. Warrantless Surveillance and the Foreign Intelligence 
Surveillance Act: The Role of Checks and Balances in Protecting 
Americans' Privacy Rights: Hearing Before the H. Comm. on the 
Judiciary, 110th Cong., Sept. 5, 2007, available at http://
judiciary.house.gov/hearings/September2007/hear_090507.html. 
(The Committee heard testimony from The Honorable Bob Barr, 
Former Member of Congress; Suzanne Spaulding, Principal, 
Bingham Consulting Group; Professor Robert F. Turner, 
University of Virginia School of Law; Morton H. Halperin, 
Director of U.S. Advocacy Open Society Institute.)
    19. Warrantless Surveillance and the Foreign Intelligence 
Surveillance Act: The Role of Checks and Balances in Protecting 
Americans' Privacy Rights (Part II): Hearing Before the H. 
Comm. on the Judiciary, 110th Cong., Sept. 18, 2007, available 
at http://judiciary.house.gov/hearings/September2007/
hear_091807.html. (The Committee heard testimony from The 
Honorable Mike McConnell, Director of National Intelligence; 
The Honorable Kenneth Wainstein, Assistant Attorney General for 
National Security, United States Department of Justice.)
    20. Rendition to Torture: The Case of Maher Arar: Hearing 
Before the Subcomm. on Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong., Oct. 
18, 2007, available at http://judiciary.house.gov/hearings/
hear_101807.html. (The Subcommittee heard testimony from Maher 
Arar; Kent Roach Esq., Prichard-Wilson Chair Faculty of Law, 
University of Toronto; Daniel Benjamin, Director, Center on the 
United States and Europe, Senior Fellow, Foreign Policy 
Studies, The Brookings Institution; David D. Cole, Professor of 
Law, Georgetown University Law Center; Frederick P. Hitz, 
Lecturer and Senior Fellow, Center for National Security Law, 
University of Virginia School of Law.)
    21. Allegations of Selective Prosecution: The Erosion of 
Public Confidence in Our Federal Justice System: Joint Hearing 
Before the Subcomm. of Crime, Terrorism, and Homeland Security 
and Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., Oct. 23, 2008, available at http://
judiciary.house.gov/hearings/hear_102307_2.html. (The 
Subcommittees heard testimony from the Honorable Richard 
Thornburgh, Kirkpatrick & Lockhart Preston Gates Ellis LLP; 
Donald C. Shields, Ph.D., University of Missouri; G. Douglas 
Jones, Whatley, Drake, and Kallas.)
    22. The Voting Section of the Civil Rights Division of the 
U.S. Department of Justice: Hearing Before Subcomm. on Const., 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary, 110th Cong., Oct. 30, 2007, available at http://
judiciary.house.gov/hearings/hear_103007_3.html. (The 
Subcommittee heard testimony from John K. Tanner, Chief, Voting 
Right Section, U.S. Department of Justice; Toby Moore, Former 
Geographer/Social Science analyst, CRT Voting Section; Laughlin 
McDonald, Director, ACLU Voting Rights Project, ACLU Southern 
Regional Office; Robert N. Driscoll, Alston and Bird; Julie 
Fernandes, Senior Policy Analyst & Special Counsel Leadership 
Conference for Civil Rights.)
    23. Torture and the Cruel, Inhuman, and Degrading Treatment 
of Detainees: The Effectiveness and Consequences of 
``Enhanced'' Interrogation: Hearing Before the Subcomm. on 
Const., Civil Rights and Civil Liberties of the H. Comm. on the 
Judiciary, 110th Cong., Nov. 8, 2007, available at http://
judiciary.house.gov/hearings/hear_110807_3.html. (The 
Subcommittee heard testimony from Malcolm W. Nance, Anti-
terrorism/Counter-terrorism Intelligence Specialist, Former 
SERE Instructor; Steven Kleinman, Colonel, USAFR Intelligence & 
National Security Specialist, Senior Intelligence Officer/
Military Interrogator; Amrit Singh, Staff Attorney at the 
ACLU.)
    24. Applicability of Federal Criminal Laws to the 
Interrogation of Detainees: Hearing Before the H. Comm. on the 
Judiciary, 110th Cong., Dec. 20, 2007, available at http://
judiciary.house.gov/hearings/hear_122007.html. (The Committee 
heard testimony from Stephen Saltzburg, The George Washington 
University Law School; John Radsan, William Mitchell College of 
Law; David B. Rivkin, Jr., Partner, Baker & Hostetler, LLP; 
Elisa Massimino, Washington Director, Human Rights First.)
    25. Reform of the State Secrets Privilege: Hearing Before 
the Subcomm. on Const., Civil Rights, and Civil Liberties of 
the H. Comm. on the Judiciary, 110th Cong., Jan. 29, 2008, 
available at http://judiciary.house.gov/hearings/
hear_012908_3.html. (The Subcommittee heard testimony from H. 
Thomas Wells, Jr., President-Elect, American Bar Association; 
Judith Loether, Daughter of Victim in U.S. v. Reynolds; Hon. 
Patricia Wald, Retired Chief Judge, U.S. Court of Appeals for 
the D.C. Circuit; Patrick Philbin, Partner, Kirkland & Ellis; 
Kevin Bankston, Senior Attorney, Electronic Frontier 
Foundation.)
    26. Oversight Hearing of the Department of Justice: Hearing 
Before the H. Comm. on the Judiciary, 110th Cong., Feb. 7, 
2008, available at http://judiciary.house.gov/hearings/
hear_020708.html. (The Committee heard testimony from Hon. 
Michael Mukasey, Attorney General, U.S. Department of Justice.)
    27. Oversight Hearing on the Justice Department's Office of 
Legal Counsel: Hearing Before the Subcomm. on Const., Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong., Feb. 14, 2008, available at http://
judiciary.house.gov/hearings/hear_021408.html. (The 
Subcommittee heard testimony from Steven G. Bradbury, Principal 
Deputy Assistant Attorney General, Office of Legal Counsel, 
U.S. Department of Justice.)
    28. Voter Suppression: Hearing Before the Subcomm. on 
Const., Civil Rights, and Civil Liberties of the H. Comm. on 
the Judiciary, 110th Cong., Feb. 26, 2008, available at http://
judiciary.house.gov/hearings/hear_022608_3.html. (The 
Subcommittee heard testimony from Asheesh Agarwal, Deputy 
Assistant Attorney General, U.S. Department of Justice Civil 
Rights Division; J. Gerald Hebert, Executive Director & 
Director of Litigation, The Campaign Legal Center; Hilary O. 
Shelton, Director, Washington Bureau of the NAACP; Hon. Tom 
Emmer, Deputy Minority Leader, Minnesota State House of 
Representatives; Lorraine C. Minnite, Ph.D., Assistant 
Professor, Barnard College.)
    29. Implementation of the U.S. Department of Justice's 
Special Counsel Regulations: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., Feb. 26, 2008, available at http://
judiciary.house.gov/hearings/hear_022608_2.html. (The 
Subcommittee heard testimony from Hon. Patrick J. Fitzgerald; 
U.S. Attorney for Northern District of Illinois, U.S. 
Department of Justice; Professor Neal Katyal, Georgetown 
University Law Center; Lee A. Casey, Partner Baker Hostetler; 
Carol Elder Bruce, Venable, LLP; Barry Coburn, Coburn & 
Coffman, PLLC.)
    30. Oversight Hearing on the Department of Homeland 
Security: Hearing Before the H. Comm. on the Judiciary, 110th 
Cong., Mar. 5, 2008, available at http://judiciary.house.gov/
hearings/hear_030508_2.html. (The Committee heard testimony 
from Hon. Michael Chertoff, Secretary, U.S. Department of 
Homeland Security.)
    31. Deferred Prosecution: Should Corporate Settlement 
Agreements Be Without Guidelines?: Hearing Before the Subcomm. 
on Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong., Mar. 11, 2008, available at http://
judiciary.house.gov/hearings/hear_031108_2.html. (The 
Subcommittee heard testimony from Hon. David E. Nahmais, The 
U.S. Attorney's Office, Northern District of Georgia; Timothy 
L. Dickinson, Paul, Hastings, Janofsky & Walker, LLP; Hon. John 
D. Ashcroft, The Ashcroft Group, LLC; George J. Terwilliger, 
III, White & Case, LLP; Brandon Garrett, University of Virginia 
School of Law; Hon. Frank Pallone Jr., Representative in 
Congress from New Jersey; Hon. William J. Pascrell, Jr., 
Representative in Congress from New Jersey.)
    32. The Department of Homeland Security Law Enforcement 
Operations: Hearing Before the Subcomm. on Crime, Terrorism, 
and Homeland Security of the H. Comm. on the Judiciary, 110th 
Cong., Mar. 11, 2008, available at http://judiciary.house.gov/
hearings/hear_031108_3.html. (The Subcommittee heard testimony 
from Dana A. Brown, Director, Federal Air Marshal Service; 
Jeffrey D. Self, Chief, Southwest Border Division, Office of 
Border Patrol; Raymond R. Parmer, Deputy Director for 
Investigations, U.S. Immigration and Customs Enforcement; 
Michael Stenger, Assistant Director, Office of Investigations, 
United States Secret Service; Rear Admiral Wayne Justice, 
Assistant Commandant for Capability and Director of Response 
Policy, U.S. Coast Guard.)
    33. H.R. 3189, the ``National Security Letters Reform Act 
of 2007'': Hearing Before the Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong., Apr. 15, 2008, available at http://judiciary.house.gov/
hearings/hear_041508.html. (The Subcommittee heard testimony 
from Glenn A. Fine, Inspector General, U.S. Department of 
Justice; Valerie Caproni, General Counsel, Federal Bureau of 
Investigation; Jameel Jaffer, Director, National Security 
Project, American Civil Liberties Union; Bruce Fein, The 
Lichfield Group, Inc.; Michael J. Woods, Former Chief, FBI 
National Security Law Unit; David Kris, Former Associate Deputy 
Attorney General, U.S. Department of Justice.)
    34. Oversight Hearing on the Federal Bureau of 
Investigation: Hearing Before the H. Comm. on the Judiciary, 
110th Cong., Apr. 23, 2008, available at http://
judiciary.house.gov/hearings/hear_042308.html?ID=433. (The 
Committee heard testimony from The Honorable Robert S. Mueller, 
Director, Federal Bureau of Investigation.)
    35. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part I: Hearing Before the Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong., May 6, 2008, available at http://judiciary.house.gov/
hearings/hear_050608_3.html. (The Subcommittee heard testimony 
from Philippe Sands, QC, Professor of Law, University College 
London, Barrister, Matrix Chambers; Marjorie Cohn, Professor of 
Law, Thomas Jefferson School of Law, President, National 
Lawyers Guild; David B. Rivkin, Jr., Partner, Baker & 
Hostetler, LLP; David J. Luban, Professor of Law, Georgetown 
University Law Center.)
    36. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong., May 6, 2008, available at http://judiciary.house.gov/
hearings/hear_050608_1.html. (The Subcommittee heard testimony 
from Susan E. Dudley, Administrator, Office of Information and 
Regulatory Affairs, Office of Management and Budget; Curtis 
Copeland, Ph.D., Specialist in American National Government, 
Congressional Research Service; James L. Gattuso, Senior Fellow 
in Regulatory Policy, Roe Institute for Economic Policy 
Studies, The Heritage Foundation; Peter L. Strauss, Professor, 
Columbia University School of Law; Rick Melberth, Ph.D., 
Director of Regulatory Policy, OMB Watch.)
    37. Joint Hearing on Allegations of Selective Prosecution 
Part II: The Erosion of Public Confidence in Our Federal 
Justice System: Joint Hearing Before the Subcomm. on Commercial 
and Administrative Law and the Subcomm. on Crime, Terrorism, 
and Homeland Security of the H. Comm. on the Judiciary, 110th 
Cong., May 14, 2008, available at http://judiciary.house.gov/
hearings/hear_051408.html. (The Subcommittees heard testimony 
from Hon. Paul W. Hodes, Representative in Congress from New 
Hampshire; Allen Raymond; Paul Twomey, Twomey Law Office; Mark 
C. Miller, New York University.)
    38. The FBI Whistleblowers: Hearing Before the Subcomm. on 
Crime, Terrorism, and Homeland Security of the H. Comm. on the 
Judiciary, 110th Cong., May 21, 2008, available at http://
judiciary.house.gov/hearings/hear_052108_4.html. (The 
Subcommittee heard testimony from The Honorable Charles E. 
Grassley, U.S. Senate; Mike German, Policy Counsel, American 
Civil Liberties Union; Bassem Youssef, Unit Chief, 
Communications Analyst Division, Counterterrorism Division, 
Federal Bureau of Investigation.)
    39. The U.S. Department of Homeland Security Inspector 
General Report OIG-08-18, The Removal of a Canadian Citizen to 
Syria: Hearing Before the Subcomm. on Const., Civil Rights, and 
Civil Liberties of the H. Comm. on the Judiciary, 110th Cong., 
June 5, 2008, available at http://judiciary.house.gov/hearings/
hear_060508.html. (The Subcommittee heard testimony from Hon. 
Richard L. Skinner, Inspector General, Office of the Inspector 
General, U.S. Department of Homeland Security; Clark Ervin, 
Director, Homeland Security Program, The Aspen Institute; Scott 
Horton, Distinguished Visiting Professor, Hofstra Law School.)
    40. Enforcement of the Fair Housing Act of 1968: Hearing 
Before the Subcomm. on Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong., June 
12, 2008, available at http://judiciary.house.gov/hearings/
hear_061208_2.html. (The Subcommittee heard testimony from 
Jessie Liu, Deputy Assistant Attorney General, Civil Rights 
Division, DOJ; Kim Kendrick, Assistant Secretary, Office of 
Fair Housing and Equal Opportunity, HUD; James H. Carr, Chief 
Operating Officer, National Community Reinvestment Corporation; 
Shanna L. Smith, President & CEO National Fair Housing 
Alliance; Suzanne Sangree, Chief Solicitor, City of Baltimore 
Law Department; Stan Liebowitz, Asbel Smith Professor of 
Managerial Economics, University of Texas at Dallas; Audrey 
Wiggins, Director, Fair Housing & Environmental Justice 
Project, Lawyers' Committee for Civil Rights Under Law.)
    41. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part II: Hearing Before the Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong., June 18, 2008, available at http://judiciary.house.gov/
hearings/hear_061808.html. (The Subcommittee heard testimony 
from Douglas Feith, Georgetown University; Daniel Levin, White 
& Case, LLP; David B. Rivkin, Jr., Partner, Baker Hostetler, 
LLP; Lawrence Wilkerson, Professor, College of William and 
Mary.)
    42. Revelations by Former White House Press Secretary Scott 
McClellan: Hearing Before the H. Comm. on the Judiciary, 110th 
Cong., June 20, 2008, available at http://judiciary.house.gov/
hearings/hear_062008.html. (The Committee heard testimony from 
Scott McClellan, Former White House Press Secretary.)
    43. The Executive Office for United States Attorneys: 
Hearing Before the Subcomm. on Commercial and Administrative 
Law of the H. Comm. on the Judiciary, 110th Cong., June 25, 
2008, available at http://judiciary.house.gov/hearings/
hear_062508.html. (The Subcommittee heard testimony from 
Kenneth E. Melson, Director, Executive Office for U.S. 
Attorneys, United States Department of Justice; Heather 
Williams, Federal Public Defender, District of Arizona; Richard 
L. Delonis, National Association of Assistant United States 
Attorneys; Jonathan Turley, The J.B. and Maurice C. Shapiro 
Professor of Public Interest Law, George Washington University 
Law School.)
    44. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part III: Hearing Before the Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong., June 26, 2008, available at http://judiciary.house.gov/
hearings/hear_062608_3.html. (The Subcommittee heard testimony 
from David Addington, Chief of Staff, Vice President of the 
United States; Christopher Schroeder, Charles S. Murphy 
Professor of Law and Public Policy Studies at Duke University; 
John Yoo, Professor Boalt Hall School of Law, University of 
California at Berkeley.)
    45. The Politicization of the Justice Department and 
Allegations of Selective Prosecution: Hearing Before the 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, 110th Cong., July 10, 2008, available at 
http://judiciary.house.gov/hearings/hear_071008.html. (The 
Subcommittee heard testimony from Absent: Karl Rove, Former 
White House Deputy Chief of Staff.)
    46. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part IV: Hearing Before the Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong., July 15, 2008, available at http://judiciary.house.gov/
hearings/hear_071508.html. (The Subcommittee heard testimony 
from Douglas Feith, Georgetown University; Philippe Sands QC, 
Professor of Law, University College London, Barrister, Matrix 
Chambers; Deborah Pearlstein, Visiting Scholar, Princeton 
University.)
    47. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part V: Hearing Before the H. Comm. on the Judiciary, 110th 
Cong., July 17, 2008, available at http://judiciary.house.gov/
hearings/hear_071708.html. (The Committee heard testimony from 
The Honorable John D. Ashcroft, Former Attorney General, U.S. 
Department of Justice; Benjamin Wittes, Fellow and Research 
Director in Public Law, Brookings Institution; Walter 
Dellinger, Former Assistant Attorney General, Office of Legal 
Counsel, U.S. Department of Justice.)
    48. Oversight Hearing of the Department of Justice: Hearing 
Before the H. Comm. on the Judiciary, 110th Cong., July 23, 
2008, available at http://judiciary.house.gov/hearings/
hear_072308.html. (The Committee heard testimony from Hon. 
Michael Mukasey, Attorney General, U.S. Department of Justice.)
    49. Lessons Learned from the 2004 Presidential Election: 
Hearing Before the Subcomm. on Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong., July 
24, 2008, available at http://judiciary.house.gov/hearings/
hear_072408_1.html. (The Subcommittee heard testimony from J. 
Kenneth Blackwell, Ronald Reagan Distinguished Fellow, The 
Buckeye Institute for Public Policy Solutions; Dan Tokaji, 
Associate Professor of Law & Associate Director, Election Law, 
The Ohio State University; Michael E. Moritz College of Law; 
Cleta Mitchell, Partner, Foley & Lardner LLP; Gilda Daniels, 
Assistant Professor of Law, University of Baltimore School of 
Law; Hans Von Spakovsky, Visiting Scholar, The Heritage 
Foundation; J. Gerald Hebert, Executive Director & Director of 
Litigation, The Campaign Legal Center.)
    50. Executive Power and its Constitutional Limitations: 
Hearing Before the H. Comm. on the Judiciary, 110th, Cong., 
July 25, 2008, available at http://judiciary.house.gov/
hearings/hear_072508.html. (The Committee heard testimony from 
the Hon. Dennis Kucinich, U.S. House of Representatives; the 
Hon. Maurice Hinchey, U.S. House of Representatives; the Hon. 
Walter Jones, U.S. House of Representatives; the Hon. Brad 
Miller, U.S. House of Representatives; the Hon. Elizabeth 
Holtzman, former Member of Congress; the Hon. Bob Barr, former 
Member of Congress; the Hon. Ross C. ``Rocky'' Anderson, 
Founder and President, High Roads for Human Rights; Stephen 
Presser, Raoul Berer Professor of Legal History, Northwestern 
University School of Law; Bruce Fein, Associate Deputy Attorney 
General, 1981-82, Chairman, American Freedom Agenda; Vincent 
Bugliosi, Author and Former Los Angeles County Prosecutor; 
Jeremy A. Rabkin, Professor of Law, George Mason University 
School of Law; Elliott Adams, President of the Board, Veterans 
for Peace; Frederick A. O. Schwarz, Jr., Senior Counsel, 
Brennan Center for Justice at NYU School of Law.)
    51. H.R. 5607, ``The State Secrets Protection Act of 
2008'': Hearing Before the Subcomm. on the Const., Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong., July 31, 2008, available at http://
judiciary.house.gov/hearings/hear_073108_2.html. (The 
Subcommittee heard testimony from Meredith Fuchs, General 
Counsel, National Security Archives; Steven Shapiro, American 
Civil Liberties Union; Michel A. Vatis, Partner, Steptoe & 
Johnson, LLP; Bruce Fein, Chairman, The American Freedom 
Agenda.)
    52. Oversight Hearing of the Federal Bureau of 
Investigation: Hearing Before the H. Comm. on the Judiciary, 
110th Cong., Sept. 16, 2008, available at http://
judiciary.house.gov/hearings/hear_080916.html. (The Committee 
heard testimony from the Hon. Robert Mueller, Director, Federal 
Bureau of Investigation.)
    53. The Executive Office for Immigration Review: Hearing 
Before Subcomm. on Immigration, Citizenship, Refugees, Border 
Security, and International Law of the H. Comm. on the 
Judiciary, 110th Cong., Sept. 23, 2008, available at http://
judiciary.house.gov/hearings/hear_080923.html. (The 
Subcommittee heard testimony from Lee Lofthus, Assistant 
Attorney General for Administration; Kevin Ohlson, Director, 
Executive Office for Immigration Review, Department of Justice; 
Susan B. Long, Co-Director, Transactional Records Access 
Clearinghouse [TRAC]; Stephen H. Legomsky, John S. Lehmann 
University Professor, Washington University School of Law.)
    54. Federal, State, and Local Efforts to Prepare for the 
2008 Election: Hearing Before the Subcomm. on the Const., Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong., Sept. 24, 2008, available at http://
judiciary.house.gov/hearings/hear_080924.html. (The 
Subcommittee heard testimony from Pedro Cortes, Secretary of 
the Commonwealth of Pennsylvania and President of the National 
Association of Secretaries of State [NASS]; David M. Farrell, 
Deputy Assistant Secretary of State and Director of Elections, 
Office of the Ohio Secretary of State; Rokey W. Suleman, 
General Registrar, Fairfax County Office of Elections, 
Virginia; Doug Lewis, Director, National Association of 
Election Officials; Grace Chung Becker, Acting Assistant 
Attorney General, Civil Rights Division, Department of Justice; 
Paul F. Hancock, Partner, Kirkpatrick & Lockhart Preston Gates 
Ellis, LLP; Karen K. Narasaki, Executive Director, Asian 
American Justice Center; Bryan P. O'Leary, Public Policy 
Consultant, Crowel Moring; James Terry, Chief Public Advocate, 
Consumer Rights League; Jocelyn Benson, Assistant Professor, 
Wayne State University Law School; Kristen Clarke Avery, Co-
Director, Political Participation Group, NAACP Legal Defense 
Fund.)
    55. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong., Oct. 3, 2008, available at http://
judiciary.house.gov/hearings/hear_081003.html. (The Committee 
heard testimony from the Hon. Glenn A. Fine, Inspector General, 
Department of Justice.)

III. Select Bush Administration Materials

White House Memoranda

    1. Memorandum from Andrew Card, White House Chief of Staff, 
to Heads and Acting Heads of Executive Departments and 
Agencies, Subject: Regulatory Review Plan (Jan. 20, 2001), 
available at http://www.whitehouse.gov/omb/inforeg/
regreview_plan.pdf.
    2. Memorandum from President George W. Bush for the 
Secretary of State, the Secretary of the Treasury, the 
Secretary of Defense, the Attorney General, the Director of 
Central Intelligence, and the Director of the Federal Bureau of 
Investigation, Subject: Disclosures to the Congress (Oct. 5, 
2001) available at http://www.fas.org/sgp/news/2001/10/
gwb100501.pdf.
    3. Memorandum from Alberto Gonzales, White House Counsel, 
to President George W. Bush, Application of the Geneva 
Convention on Prisoners of War to the Conflict with Al Qaeda 
and the Taliban, (Jan. 25, 2002), available at http://
www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf/.
    4. Memorandum from President George W. Bush, Humane 
Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), 
available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/
02.02.07.pdf.
    5. Memorandum from Andrew H. Card, Jr., Assistant to the 
President and Chief of Staff, for Heads of Executive 
Departments and Agencies, Action to Safeguard Information 
Regarding Weapons of Mass Destruction and Other Sensitive 
Documents Related to Homeland Security (Mar. 19, 2002), 
available at http://www.usdoj.gov/oip/foiapost/
2002foiapost10.htm.

Department of Justice Memoranda

    6. Memorandum from John C. Yoo, Deputy Assistant Att'y Gen. 
of the United States, for the Deputy Counsel to the President, 
The President's Constitutional Authority to Conduct Military 
Operations Against Terrorists and Nations Supporting Them 
(Sept. 25, 2001), available at http://www.usdoj.gov/olc/
warpowers925.htm.
    7. Memorandum from John C. Yoo, Deputy Assistant Att'y 
Gen., for David S. Kris, Associated Deputy Att'y Gen., 
Constitutionality of Amending Foreign Intelligence Surveillance 
Act to Change the ``Purpose'' Standard for Searches (Sep. 25, 
2001), available at http://www.usdoj.gov/opa/documents/
memoforeignsurveillanceact09252001.pdf.
    8. Memorandum from John Ashcroft, Att'y Gen. of the United 
States, for Heads of all Federal Departments and Agencies, The 
Freedom of Information Act (Oct. 12, 2001), available at http:/
/www.usdoj.gov/oip/foiapost/2001foiapost19.htm.
    9. Memorandum from John C. Yoo, Deputy Assistant Att'y 
General, and Robert J. Delahunty, Special Counsel, Office of 
Legal Counsel, for Alberto R. Gonzales, Counsel to the 
President, and William J. Haynes, II, General Counsel, 
Department of Defense, Authority for Use of Military Force to 
Combat Terrorist Activities Within the United States (Oct. 23, 
2001), available at http://www.usdoj.gov/opa/documents/
memomilitaryforcecombatus10232001.pdf.
    10. Memorandum from Patrick F. Philbin, Deputy Assistant 
Att'y Gen. of the United States, for Alberto R. Gonzales, 
Counsel to the President, Legality of the Use of Military 
Commissions to Try Terrorists (Nov. 6, 2001).
    11. Memorandum from John C. Yoo, Deputy Assistant Att'y 
Gen., and Robert J. Delahunty, Special Counsel, Office of Legal 
Counsel, for John Bellinger, III, Senior Associate Counsel to 
the President, and Legal Advisor to the National Security 
Council, Authority of the President to Suspend Certain 
Provisions of the ABM Treaty (Nov. 15, 2001), available at 
http://www.usdoj.gov/opa/documents/memoabmtreaty11152001.pdf.
    12. Memorandum from John Yoo, Deputy Assistant Att'y Gen. 
of the United States, and Patrick F. Philbin, Deputy Assistant 
Att'y Gen. of the United States, Possible Habeas Jurisdiction 
Over Aliens Held in Guantanamo Bay, to William J. Haynes, 
General Counsel, Department of Defense (Dec. 28, 2001).
    13. Memorandum from John Yoo, Deputy Assistant Att'y Gen. 
of the United States, and Robert J. Delahunty, Special Counsel, 
Office of Legal Counsel, for William J. Haynes, General 
Counsel, Department of Defense, Re: Application of Treaties and 
Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002).
    14. Memorandum from Jay S. Bybee, Assistant Att'y Gen., 
Office of Legal Counsel, for William J. Haynes, II, General 
Counsel, Department of Defense, The President's Power as 
Commander in Chief to Transfer Captured Terrorists to the 
Control and Custody of Foreign Nations (Mar. 13, 2002), 
available at http://www.usdoj.gov/opa/documents/
memorandumpresidentpower03132002.pdf.
    15. Memorandum from Patrick Philbin, Deputy Assistant Att'y 
Gen., for Daniel J. Bryant, Assistant Att'y Gen., Office of 
Legislative Affairs, Swift Justice Authorization Act (Apr. 8, 
2002), available at http://www.usdoj.gov/opa/documents/
memojusticeauthorizationact0482002.pdf.
    16. Memorandum from Jay S. Bybee, Assistant Att'y Gen., 
Office of Legal Counsel, for Alberto R. Gonzales, Att'y Gen. of 
the United States, Determination of Enemy Belligerency and 
Military Detention (June 8, 2002), available at http://
www.usdoj.gov/opa/documents/memomilitarydetention06082002.pdf.
    17. Memorandum from John C. Yoo, Deputy Assistant Att'y 
Gen., for Daniel J. Bryant, Assistant Att'y Gen., Office of 
Legislative Affairs, Re: Applicability of 18 U.S.C. 
Sec. 4001(a) to Military Detention of United States Citizens 
(June 27, 2002), available at http://www.usdoj.gov/opa/
documents/memodetentionuscitizens06272002.pdf.
    18. Memorandum by Jay S. Bybee, Assistant Att'y Gen. of the 
United States, for Alberto R. Gonzales, Counsel to the 
President, Re: Standards of Conduct for Interrogation under 18 
U.S.C. Sec. Sec. 2340-2340A, (Aug. 1, 2002).
    19. Memorandum from John C. Yoo, Deputy Assistant Att'y 
Gen., for William J. Haynes, II, General Counsel, Department of 
Defense, Re: Military Interrogation of Alien Unlawful 
Combatants Held Outside the United States (Mar. 14, 2003), 
available at http://fl1.findlaw.com/news.findlaw.com/hdocs/
docs/doj/johnyooolc2003interrogationmemo.pdf.
    20. Memorandum Opinion by Daniel Levin, Acting Assistant 
Att'y Gen. of the United States, for the Deputy Att'y Gen., 
Legal Standards Applicable Under U.S.C. Sec. Sec. 2340-2340A, 
(Dec. 30, 2004), available at http://www.justice.gov/olc/
18usc23402340a2.htm.
    21. U.S. Department of Justice White Paper, ``Legal 
Authorities Supporting the Activities of the National Security 
Agency Described by the President'' (Jan. 19, 2006), available 
at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
    22. Department of Justice, Principles of Federal 
Prosecution of Business Organizations (Aug. 28, 2008), 
available at http://www.usdoj.gov/opa/documents/corp-charging-
guidelines.pdf.
    23. Memorandum from Steven G. Bradbury, Principal Deputy 
Assistant Att'y Gen., for the Office of Legal Counsel, U.S. 
Department of Justice, October 23, 2001 OLC Opinion Addressing 
the Domestic Use of Military Force to Combat Terrorist 
Activities (Oct. 6, 2008), available at http://www.usdoj.gov/
opa/documents/
memoolcopiniondomesticusemilitaryforce10062008.pdf.
    24. Memorandum from Steven G. Bradbury, Principal Deputy 
Assistant Att'y Gen., for the Office of Legal Counsel, U.S. 
Department of Justice, Re: Status of Certain OLC Opinions 
Issued in the Aftermath of the Terrorist Attacks of September 
11, 2001 (Jan. 15, 2009), available at http://www.usdoj.gov/
opa/documents/memostatusolcopinions01152009.pdf.

Department of Defense Memoranda

    25. Memorandum from W. J. Haynes II, General Counsel, 
Department of Defense, for the Secretary of Defense [Donald 
Rumsfeld], Counter-Resistance Techniques(Nov. 27, 2002), 
available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/
02.12.02.pdf.
    26. Memorandum from Pentagon Working Group to Donald 
Rumsfeld, Secretary of Defense, Detainee Interrogations in the 
Global War on Terrorism: Assessment of Legal, Historical, 
Policy, and Operational Considerations, (Mar. 6, 2003), 
excerpts available at http://news.findlaw.com/hdocs/docs/
torture/30603wgrpt.html.

Presidential Determinations, Executive Orders, Signing Statements, and 
        Military Orders

    27. Military Order--Detention, Treatment and Trial of 
Certain Non-Citizens in the War Against Terrorism, Military 
Order dated November 13, 2001, 66 Fed. Reg. 57833 (Nov. 16, 
2001), available at http://www.fas.org/irp/offdocs/eo/mo-
111301.htm.
    28. Classified National Security Information, Exec. Order 
No. 12,958 Sec. 5.1, 68 Fed. Reg. 15,315 (Mar. 28, 2003), 
available at http://www.fas.org/sgp/clinton/eo12958.html.
    29. Suspending the Iraq Sanctions Act, Making Inapplicable 
Certain Statutory Provisions Related to Iraq, and Delegating 
Authorities, under the Emergency Wartime and Supplemental 
Appropriations Act, 2003: Memorandum for the Secretary of State 
[and] Secretary of Commerce, Presidential Determination No. 
2003-23, 68 Fed. Reg. 26459 (May 7, 2003), available at http://
frwebgate.access.gpo.gov/cgi-bin/getpage.cgi.
    30. Statement on Signing the Intelligence Reform and 
Terrorism Prevention Act of 2004, 40 Weekly Compilation of 
Presidential Documents 2993 (Dec. 27, 2004), available at 
http://fdsys.gpo.gov/fdsys/pkg/WCPD-2004-12-27/html/WCPD-2004-
12-27-Pg2993.htm.
    31. Statement on Signing of H.R. 2863, the ``Department of 
Defense, Emergency Supplemental Appropriations to Address 
Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 
2006,'' 41 Weekly Compilation of Presidential Documents 1918 
(Dec. 30, 2005), available at http://georgewbush-
whitehouse.archives.gov/news/releases/2005/12/20051230-8.html.
    32. Statement on Signing of H.R. 3199, the ``USA PATRIOT 
Improvement and Reauthorization Act of 2005,'' 42 Weekly 
Compilation of Presidential Documents 425 (Mar. 9, 2006), 
available at http://georgewbush-whitehouse.archives.gov/news/
releases/2006/03/20060309-8.html.
    33. Interpretation of the Geneva Conventions Common Article 
3 as Applied to a Program of Detention and Interrogation 
Operated by the Central Intelligence Agency, Exec. Order No. 
13,440, 72 Fed. Reg. 40,707 (July 20, 2007), available at 
http://www.fas.org/irp/offdocs/eo/eo-13440.htm.
    34. Further Amendment to Executive Order 12866 on 
Regulatory Planning and Review, Exec. Order No. 13,422, 72 Fed. 
Reg. 2,763 (Jan. 23, 2007), available at http://
edocket.access.gpo.gov/2007/pdf/07-293.pdf.
    35. Waiver of Section 1083 of the National Defense 
Authorization Act for Fiscal Year 2008: Memorandum for the 
Secretary of State, Presidential Determination No. 2008-9 (Jan. 
28, 2008), 73 Fed. Reg. 6,571 (Feb. 5, 2008), available at 
http://fdsys.gpo.gov/fdsys/pkg/WCPD-2008-02-04/pdf/WCPD-2008-
02-04-Pg116.pdf.

Department of State Memoranda

    36. Memorandum from William H. Taft IV, State Department 
Legal Advisor, to Alberto Gonzales, White House Counsel, 
Comments on Your Paper on the Geneva Convention, (Feb. 2, 
2002), available at http://www.nytimes.com/packages/html/
politics/20040608_DOC.pdf.
    37. Memorandum from Donald Rumsfeld, Secretary of the 
Defense, to Commander, US Southern Command, Counter-Resistance 
Techniques (Jan. 15, 2003), available at http://www.gwu.edu/
nsarchiv/NSAEBB/NSAEBB127/03.01.15.pdf.
    38. Memorandum from the Pentagon Working Group to Secretary 
of Defense Donald Rumsfeld, Detainee Interrogations in the 
Global War on Terrorism: Assessment of Legal, Historical, 
Policy, and Operational Considerations (Mar. 6, 2003), excerpts 
available at http://news.findlaw.com/hdocs/docs/torture/
30603wgrpt.html.
    39. Memorandum from Donald Rumsfeld, Secretary of Defense, 
to Commander, U.S. Southern Command, Counter-Resistance 
Techniques in the War on Terrorism (Apr. 16, 2003), available 
at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/03.04.16.pdf.
    40. Memorandum from Carl W. Ford, Jr., Assistant Secretary 
of State, Bureau of Intelligence and Research, to Marc 
Grossman, Under Secretary of State, Niger/Iraq Uranium Story 
and Joe Wilson (June 10, 2003).

IV. Select Government Studies and Reports

The 9/11 Commission

    1. The National Commission on Terrorist Attacks Upon the 
United States, The 9/11 Commission Report, available at http://
www.gpoaccess.gov/911/pdf/fullreport.pdf.

Government Accountability Office (GAO)

    2. Chronology of GAO's Efforts to Obtain NEPDG Documents 
from the Office of the Vice President, Apr. 19, 2001 to Aug. 
25, 2003, available at http://www.gao.gov/nepdgchron.pdf.
    3. Rulemaking--OMB's Role in Reviews of Agencies' Draft 
Rules and the Transparency of Those Reviews, GAO-03-929 (Sept. 
2003), available at http://www.gao.gov/new.items/d03929.pdf.
    4. Presidential Signing Statements Accompanying the Fiscal 
Year 2006 Appropriations Acts, GAO Informal Opinion B-308603 
(June 18, 2007), available at http://www.gao.gov/decisions/
appro/308603.pdf.
    5. Presidential Signing Statements--Agency Implementation 
of Ten Provisions of Law, GAO Informal Opinion B-309928 (Dec. 
20, 2007), available at http://www.gao.gov/decisions/appro/
309928.pdf.

Department of Justice

    6. Office of the Inspector General, A Review of the Federal 
Bureau of Investigation's Use of National Security Letters 
(March 2007), unclassified version available at http://
www.usdoj.gov/oig/special/s0703b/final.pdf.
    7. Office of the Inspector General, A Review of the Federal 
Bureau of Investigation's Use of Section 215 Orders for 
Business Records (March 2007), unclassified version available 
at http://www.usdoj.gov/oig/special/s0703a/final.pdf.
    8. Office of the Inspector General, A Review of the FBI's 
Use of National Security Letters: Assessment of Corrective 
Actions and Examination of NSL Usage in 2006 (March 2008), 
unclassified version available at http://www.usdoj.gov/oig/
special/s0803b/final.pdf.
    9. Office of the Inspector General, A Review of the FBI's 
Involvement in and Observations of Detainee Interrogations in 
Guantanamo Bay, Afghanistan, and Iraq (May 2008), unclassified 
version available at http://www.usdoj.gov/oig/special/s0805/
final.pdf.
    10. Joint Report of the Office of Professional 
Responsibility and Office of the Inspector General, An 
Investigation of Allegations of Politicized Hiring in the 
Department of Justice Honors Program and the Summer Law Intern 
Program (June 2008). Available at http://www.usdoj.gov/oig/
special/s0806/final.pdf.
    11. Joint Report of the Office of Professional 
Responsibility and Office of the Inspector General, An 
Investigation of Allegations of Politicized Hiring by Monica 
Goodling and Other Staff in the Office of the Attorney General 
(July 2008). Available at http://www.usdoj.gov/oig/special/
s0807/final.pdf.
    12. Joint Report of the Office of the Inspector General and 
Office of the Professional Responsibility, An Investigation 
into the Removal of Nine U.S. Attorneys in 2006 (Sept. 2008). 
Available at http://www.usdoj.gov/oig/special/s0809a/final.pdf.
    13. Office of the Inspector General, Report of 
Investigation Regarding Allegations of Mishandling of 
Classified Documents by Attorney General Alberto Gonzales 
(Sept. 2008), available at http://www.usdoj.gov/oig/special/
s0809/final.pdf.
    14. Joint Report of the Office of the Inspector General and 
Office of Professional Responsibility, An Investigation of 
Allegations of Politicized Hiring and Other Improper Personnel 
Actions in the Civil Rights Division (released publically Jan. 
13, 2009). Available at http://www.usdoj.gov/oig/special/s0901/
final.pdf.

Department of Homeland Security

    15. Office of Inspector General, OIG-08-18, The Removal of 
a Canadian Citizen to Syria, (March 2008). Unclassified summary 
available at http://www.dhs.gov/_oig/assets/mgmtrpts/OIG_08-
18_Mar08.pdf.

Congressional Research Service

    16. The Federal Rulemaking Process: An Overview, RL 32240, 
Curtis W. Copeland (Feb. 7, 2005).
    17. Changes to the OMB Regulatory Review Process by 
Executive Order 13422, RL 33862, Curtis W. Copeland (Feb. 5, 
2007).
    18. Presidential Signing Statements: Constitutional and 
Institutional Implications, RL 33667, T.J. Halstead (Sept. 17, 
2007).
    19. The U.N. Convention Against Torture: Overview of U.S. 
Implementation Policy Concerning the Removal of Aliens, RL 
32276, Michael John Garcia (Jan. 21, 2009).
    20. Renditions: Constraints Imposed by Laws on Torture, RL 
32890, Michael John Garcia (Jan. 22, 2009).

House Committee on the Judiciary

    21. Democratic Staff Status Report, Preserving Democracy: 
What Went Wrong in Ohio (Jan. 5, 2005).
    22. Democratic Staff Final Investigative Report Prepared at 
the Direction of Rep. John Conyers, Jr., The Constitution in 
Crisis: The Downing Street Minutes and Deception, Manipulation, 
Torture, Retribution, Coverups in the Iraq War, and Illegal 
Domestic Surveillance (Aug. 2006), available at http://
old.judiciary.house.gov/Media/PDFS/DowningReport060804.pdf.
    23. H. Rep. No. 110-423, Resolution Recommending that the 
House of Representatives Find Harriet Miers and Joshua Bolten, 
Chief of Staff, White House, in Contempt of Congress for 
Refusal to Comply with Subpoenas Duly Issued by the Committee 
on the Judiciary, 110th Cong. (Nov. 5, 2007), available at 
http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_cong_reports&docid=f:hr423.110.pdf.
    24. Majority Staff Report Prepared for Chairman John 
Conyers, Jr., Allegations of Selective Prosecution in Our 
Federal Criminal Justice System, 110th Cong. (Apr. 17, 2008), 
available at http://judiciary.house.gov/hearings/pdf/
SelProsReport080417.pdf.
    25. H. Rep. No. 110-847, Resolution Recommending that the 
House of Representatives Find Karl Rove in Contempt of Congress 
for Refusal to Comply with a Subpoena Duly Issued by the 
Committee on the Judiciary, 110th Cong. (Sep. 15, 2008), 
available at http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_cong_reports&docid=f:hr847.110.pdf.

House Committee on Oversight and Government Reform

    26. Disclosure of Valerie Plame Wilson's Classified CIA 
Employment (Mar. 16, 2007), available at http://
oversight.house.gov/documents/20070316173308-19288.pdf.
    27. Interim Report, Investigation of Possible Presidential 
Records Act Violations (June 2007) available at http://
oversight.house.gov/documents/20070618105243.pdf.
    28. Draft Report, The Activities of the White House Office 
of Political Affairs (Oct. 2008), available at http://
oversight.house.gov/documents/20081015105434.pdf.
    29. Majority Staff Report, FDA Career Staff Objected to 
Agency Preemption Policies (Oct. 2008), at http://
oversight.house.gov/documents/20081029102934.pdf.
    30. Draft Report, Regarding The Bush Administration's Abuse 
of Power in Asserting Executive Privilege in Response to 
Committee Subpoenas to Stephen Johnson, Administrator, 
Environmental Protection Agency, and Susan Dudley, 
Administrator, White House Office of Management and Budget 
(Oct. 2008) available at http://oversight.house.gov/documents/
20081014104748.pdf.
    31. Draft Report, Regarding President Bush's Assertion of 
Executive Privilege in Response to the Committee Subpoena to 
Attorney General Michael B. Mukasey (Dec. 5, 2008), available 
at http://oversight.house.gov/story.asp?ID=2282.
    32. Memorandum from Henry A. Waxman, Chairman, The 
President's Claim that lraq Sought Uranium from Niger (Dec. 18, 
2008), available at http://oversight.house.gov/documents/
20081218120632.pdf.

Senate Select Committee on Intelligence

    33. S. Rep. No. 108-301, Report on the U.S. Intelligence 
Community's Prewar Intelligence Assessments on Iraq (July 9, 
2004), available at http://intelligence.senate.gov/108301.pdf.
    34. S. Rep. No. 109-331, Report on Postwar Findings about 
Iraq's WMD Programs and Links to Terrorism and How they Compare 
with Prewar Assessments (Sep. 8, 2006), available at http://
intelligence.senate.gov/phaseiiaccuracy.pdf.
    35. S. Rep. No. 110-76, Report on Prewar Intelligence 
Assessments About Postwar Iraq (May 31, 2007), available at 
http://intelligence.senate.gov/11076.pdf.
    36. S. Rep. No. 110-345, Report on Whether Public 
Statements Regarding Iraq by U.S. Government Officials Were 
Substantiated by Intelligence Information (June 5, 2008), 
available at http://intelligence.senate.gov/pdfs/110345.pdf.

House Committees on Homeland Security and Foreign Affairs

    37. Report Prepared by the Majority Staffs of the Committee 
on Homeland Security and Committee on Foreign Affairs, Wasted 
Lessons of 9/11: How the Bush Administration Has Ignored the 
Law and Squandered Its Opportunities to Make Our Country Safer 
(Sep. 2008), available at http://homeland.house.gov/
SiteDocuments/20080909151532-76784.pdf.

Senate Committee on Armed Services

    38. Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody (Dec. 2008), available 
at http://armed-services.senate.gov/Publications/
EXEC%20SUMMARY-CONCLUSIONS_For%20Release_12%20December%202008.pd
f.

V. Select House Judiciary Committee Correspondence, January 2007-
        February 2009

    1. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and the Hon. Howard Berman, U.S. 
Representative, to the Hon. Alberto Gonzales, Att'y Gen. of the 
United States (Jan. 17, 2007), available at http://
www.house.gov/list/press/ca28_berman/carollam.shtml (Chairman 
Conyers and Rep. Berman wrote Attorney General Gonzales 
regarding their concern over the resignation of U.S. Attorney 
Carol Lam)
    2. Subpoenas issued by the Hon. John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary, to David Iglesias, Carol 
Lam, Bud Cummins, and John McKay (March 1, 2007) (four of the 
affected U.S. Attorneys in the politicized firings).
    3. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and the Hon. Linda Sanchez, Chairwoman, 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, to the Hon. Alberto Gonzales, Att'y Gen. of 
the United States, Mar. 8, 2007, available at http://
judiciary.house.gov/hearings/pdf/Conyers-Sanchez070308.pdf 
(Chairs Conyers and Sanchez requested interviews and documents 
relating to the U.S. Attorney firings, including interviews 
with: the Justice Department's White House Liaison, Monica 
Goodling; Deputy Attorney General Paul McNulty; and the 
Attorney General's Chief of Staff, D. Kyle Sampson).
    4. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and the Hon. Linda Sanchez, Chairwoman, 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, to Fred Fielding, Counsel to the President 
(Mar. 9, 2007), available at http://judiciary.house.gov/
hearings/pdf/Conyers-Sanchez070309.pdf (Chairs Conyers and 
Sanchez wrote to the White House Counsel, Fred Fielding, 
requesting documents relating to the U.S. Attorney firings and 
an interview with William Kelly, the Deputy Counsel).
    5. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to Attorney General Alberto Gonzales (Apr. 10, 
2007).
    6. Subpoenas issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to former White House Counsel Harriet Miers and 
White House Chief of Staff Joshua Bolten (June 13, 2007).
    7. Letter from John Conyers, Jr., Chairman, H. Comm. on the 
Judiciary, to George W. Bush, President of the United States 
(July 6, 2007), available at http://judiciary.house.gov/
hearings/pdf/Conyers070706.pdf (Chairman Conyers called on 
President Bush to waive Executive Privilege and allow his aides 
to provide the relevant documents and testimony to the 
Committee and the public regarding the President's decision to 
commute Scooter Libby's prison sentence).
    8. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to George W. Bush, President of the 
United States (July 10, 2007), available at http://
judiciary.house.gov/hearings/pdf/Conyers070710.pdf (Chairman 
Conyers clarified the request to President Bush from the July 
6, 2007, letter and requested that the President decline to 
assert Executive Privilege at the outset).
    9. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and other Members of the H. Comm. on 
the Judiciary to the Hon. Alberto Gonzales, Att'y Gen. of the 
United States (July 17, 2007), available at http://
judiciary.house.gov/hearings/pdf/Members071023.pdf (The 
Chairman and Judiciary Members Linda Sanchez, Artur Davis, and 
Tammy Baldwin requested the Attorney General to provide 
documents and information about several prominent prosecutions 
and convictions of Democratic officials, including the case of 
former Alabama Democratic Governor Don Siegelman).
    10. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and other Members of the H. Comm. on 
the Judiciary to the Hon. Alberto Gonzales, Att'y Gen. of the 
United States (Sep. 10, 2007), available at http://
judiciary.house.gov/hearings/pdf/Members071010.pdf (Following 
insufficient cooperation from the Justice Department, Chairman 
Conyers and the authors of a July 17, 2007, letter to Attorney 
General Gonzales continued their efforts to obtain documents 
and information from the Justice Department through voluntary 
channels).
    11. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, and the Hon. Bobby Scott, U.S. Representative, 
to Fred Fielding, Counsel to the President (Sep. 11, 2007), 
available at http://old.judiciary.house.gov/Media/PDFS/Conyers-
Nadler-Scott070911.pdf (Chairman Conyers and Subcommittee 
Chairmen Nadler and Scott wrote to White House Counsel Fred 
Fielding to request the production of documents related to the 
Administration's foreign intelligence surveillance programs).
    12. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, the Hon. Bobby Scott, U.S. Representative, and 
the Hon. Linda Sanchez, U.S. Representative, to the Hon. Peter 
D. Keisler, Acting Att'y Gen. of the United States (Oct. 3, 
2007), available at http://old.judiciary.house.gov/Media/PDFS/
Conyers-Nadler-Scott-Sanchez071003.pdf (Chairman Conyers and 
Subcommittee Chairs Nadler, Scott, and Sanchez wrote to the 
Acting Attorney General concerning allegations of voter 
suppression efforts in New Hampshire in 2002 through phone 
``jamming'' and troubling conduct by the firm Sproul & 
Associates, including declining to register and failing to 
process the applications of Democratic voters).
    13. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Linda Sanchez, U.S. 
Representative, and the Hon. Steve Cohen, U.S. Representative, 
to the Hon. Peter D. Keisler, Acting Att'y Gen. of the United 
States (Oct. 5, 2007), available at http://judiciary.house.gov/
hearings/pdf/Conyers-Sanchez-Cohen071005.pdf (Representatives 
Conyers, Sanchez, and Cohen wrote to the Acting Attorney 
General concerning the policy on who at the Department may 
communicate with the White House about ongoing criminal and 
civil law enforcement investigations).
    14. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States (Dec. 20, 2008), available at http://
judiciary.house.gov/news/pdfs/Conyers071220.pdf (Chairman 
Conyers wrote to Attorney General Mukasey regarding the Justice 
Department's handling of the New Hampshire phone jamming case--
in which Republican operatives ``jammed'' the telephones of the 
New Hampshire Democratic Party and the Manchester Fire Fighters 
Association on Election Day 2002 in an apparent effort to 
disrupt their get-out-the-vote operations).
    15. Letter from the Hon. John Conyers, Jr. Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States (Jan. 31, 2008), available at http://
old.judiciary.house.gov/Media/PDFS/Conyers080131.pdf (In 
anticipation of a hearing scheduled for the following week, 
Chairman Conyers wrote Attorney General Mukasey with questions 
to be answered concerning the politicization of the Department 
of Justice, waterboarding and torture, selective prosecution, 
the destruction of CIA tapes, and voter suppression).
    16. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to Fred Fielding, Counsel to the 
President (Feb. 12, 2008), available at http://
judiciary.house.gov/news/pdfs/Conyers080212.pdf (Chairman 
Conyers continued his requests for documents and information 
relating to the Bush Administration's foreign intelligence 
surveillance programs in the face of continued noncompliance).
    17. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, and the Hon. Bobby Scott, U.S. Representative, 
to the Hon. Michael Mukasey, Att'y Gen. of the United States 
(April 3, 2008), available at http://judiciary.house.gov/news/
pdfs/Conyers-Nadler-Scott080403.pdf (Chairman Conyers and 
Subcommittee Chairmen Nadler and Scott wrote to Attorney 
General Mukasey regarding a provocative statement he made about 
pre-9/11 intelligence and FISA, and reaffirmed their request 
for the release of a secret OLC memo dated to October 23, 2001, 
concerning Presidential powers and the Fourth Amendment).
    18. Letters from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to David S. Addington, Chief of Staff 
to the Vice President, to the Hon. John Ashcroft, former Att'y 
Gen. of the United States, to Douglas J. Feith, former Under 
Secretary of Defense for Policy, to Daniel Levin, former Acting 
United States Assistant Attorney General, and to the Hon. 
George Tenet, former Director of Central Intelligence (Apr. 11, 
2008), available at http://old.judiciary.house.gov/
newscenter.aspx?A=950 (Chairman Conyers began the process of 
securing testimony from several key officials to explore the 
development and legal approval of the Bush Administration's 
torture policies and other potential abuses of executive 
power).
    19. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Linda Sanchez, U.S. 
Representative, the Hon. Artur Davis, U.S. Representative, and 
the Hon. Tammy Baldwin, U.S. Representative, to the Hon. Glenn 
A. Fine, Inspector General, U.S. Department of Justice, and the 
Hon. H. Marshall Jarrett, Counsel for Professional 
Responsibility, U.S. Department of Justice (Apr. 17, 2008), 
available at http://judiciary.house.gov/hearings/pdf/
Committee080417_2.pdf (Representatives Conyers, Sanchez, Davis, 
and Baldwin wrote to the Inspector General and head of the 
Office of Professional Responsibility to request an 
investigation and report on selective, politically-motivated 
prosecution by the Department of Justice).
    20. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Linda Sanchez, U.S. 
Representative, the Hon. Artur Davis, U.S. Representative, and 
the Hon. Tammy Baldwin, U.S. Representative, to the Hon. 
Michael Mukasey, Att'y Gen. of the United States (Apr. 17, 
2008), available at http://judiciary.house.gov/hearings/pdf/
Committee080417_1.pdf (Representatives Conyers, Sanchez, Davis, 
and Baldwin wrote to Attorney General Mukasey concerning 
selective, politically-motivated prosecution).
    21. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Linda Sanchez, U.S. 
Representative, the Hon. Artur Davis, U.S. Representative, and 
the Hon. Tammy Baldwin, U.S. Representative, to Karl Rove (Apr. 
17, 2008), available at http://judiciary.house.gov/hearings/
pdf/Committee080417.pdf (Representatives Conyers, Sanchez, 
Davis, and Baldwin wrote to former White House advisor Karl 
Rove requesting his testimony before the Committee to discuss 
politicization at the Justice Department, including his 
involvement in the prosecution of former Alabama Governor Don 
Siegelman).
    22. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, Chairman, 
Subcommittee on the Constitution, Civil Rights and Civil 
Liberties of the H. Comm. on the Judiciary, to the Hon. Michael 
Mukasey, Att'y Gen. of the United States (April 29, 2008), 
available at http://judiciary.house.gov/news/pdfs/Conyers-
Nadler080429.pdf (Chairmen Conyers and Nadler wrote to Attorney 
General regarding the body of secret legal opinions issued by 
the Department's Office of Legal Counsel and the expanding body 
of secret Executive Branch law promulgated by the Bush 
Administration, including requests for information on the 
opinions and non-classified versions for review).
    23. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr., to Karl Rove, White House Deputy Chief of Staff 
(May 22, 2008), available at http://old.judiciary.house.gov/
newscenter.aspx?A=979.
    24. Letter from the Hon. Jan Schakowsky, U.S. 
Representative, the Hon. John Conyers, Jr., Chairman, H. Comm. 
on the Judiciary, and 54 other U.S. Representatives to the Hon. 
Michael B. Mukasey, Att'y Gen. of the United States (June 8, 
2008) available at http://www.house.gov/schakowsky/
Letter%20to%20Mukasey%20Special%20Counsel.pdf (Representatives 
Schakowsky, Conyers, and 54 House Members requested the 
Attorney General to appoint a special counsel to investigate 
``whether the Bush Administration's policies regarding the 
interrogation of detainees have violated federal criminal 
laws.'' The letter referenced confirmed interrogation 
practices, detainee deaths in custody, and the abuses reported 
at Abu Ghraib.).
    25. Letter and Subpoena from the Hon. John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary, to the Hon. Michael 
Mukasey, Att'y Gen. of the United States (June 27, 2008), 
available at http://judiciary.house.gov/news/pdfs/
Conyers080627.pdf (Chairman Conyers issued a subpoena for 
Justice Department documents relating to: special counsel 
Patrick Fitzgerald's investigation into the Valerie Plame 
Wilson-leak, OLC memoranda, the New Hampshire phone jamming 
investigation, the U.S. Attorney firings, the Civil Rights 
Division, and selective prosecution).
    26. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, and the Hon. William D. Delahunt, U.S. 
Representative, to the Hon. Michael Mukasey, Att'y Gen. of the 
United States (July 10, 2008), available at http://
judiciary.house.gov/News/PDFs/Conyers-Nadler-Delahunt080710.pdf 
(Chairman Conyers, Subcommittee Chairman Nadler, and Foreign 
Affairs Subcommittee Chairman Delahunt called on Attorney 
General Mukasey to appoint a special counsel to conduct an 
investigation into the rendition of a Canadian citizen, Maher 
Arar, to Syria).
    27. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to Mike Duncan, Republican National Committee 
Chair (July 13, 2008), available at http://www.speaker.gov/
blog/?p=584.
    28. Letters from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to George Tenet, Rob Richer, John 
Maguire, A. B. ``Buzzy'' Krongard, John Hanna and I. Lewis 
Libby, (Aug. 20, 2008), available at http://
judiciary.house.gov/news/080820.html (Chairman Conyers authored 
a series of letters to Bush Administration and American 
intelligence officials regarding allegations that senior 
administration officials approved the creation of fabricated 
documents to deceive the American public about the nuclear 
threat posed by Iraq in 2003).
    29. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States (Sept. 10, 2008), available at http://
judiciary.house.gov/News/PDFs/Conyers080910.pdf (Due to 
noncompliance with the subpoena issued on June 27, 2008, to the 
Justice Department for documents and information--relating to, 
among other issues, the U.S. Attorney firings, the Valerie 
Plame Wilson-leak, and secret OLC memoranda--the Chairman 
insisted that the Attorney General produce the documents while 
deferring the Committee's consideration of a contempt of 
Congress resolution scheduled for the day).
    30. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States (Sept. 23, 2008), available at http://
judiciary.house.gov/News/PDFs/Conyers080923.pdf (Chairman 
Conyers wrote to Attorney General Mukasey concerning the 
Justice Department's apparent inaction in response to evidence 
of mismanagement and fraud in the Interior Department's oil and 
gas marketing program and related allegations of politicized 
decision-making at the Justice Department).
    31. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Bobby Scott, U.S. 
Representative, and the Hon. Linda Sanchez, U.S. 
Representative, to the Hon. Michael Mukasey, Att'y Gen. of the 
United States (Oct. 6, 2008), available at http://
judiciary.house.gov/News/PDFs/Conyers-Scott-Sanchez081006.pdf 
(Chairman Conyers and Subcommittee Chairs Scott and Sanchez 
wrote Attorney General Mukasey seeking information about his 
appointment of acting U.S. Attorney Nora Dannehy and the 
safeguards in place to ensure the independence of her 
investigation in the forced resignations of U.S. Attorneys and 
related matters).
    32. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States, and the Hon. Robert Mueller, Director, 
Federal Bureau of Investigation (Oct. 16, 2008), available at 
http://judiciary.house.gov/hearings/pdf/Conyers081016.pdf 
(Chairman Conyers wrote to Attorney General Mukasey and FBI 
Director Mueller regarding media reports on an FBI-leak 
concerning an investigation into alleged voter-fraud and the 
Association for Community Organizations for Reform Now 
[ACORN]).
    33. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, and the Hon. Linda Sanchez, U.S. 
Representative, to the Hon. Michael Mukasey, Att'y Gen. of the 
United States, and the Hon. Robert Mueller, Director, Federal 
Bureau of Investigation (Oct. 20, 2008), available at http://
judiciary.house.gov/News/PDFs/Conyers-Nadler-Sanchez081020.pdf 
(Chairman Conyers and Subcommittee Chairs Nadler and Sanchez 
wrote to Attorney General Mukasey and Director Mueller 
regarding concerns about the 2008 election, including voter 
intimidation and the Department's response).
    34. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. 
of the United States (Oct. 22, 2008), available at http://
judiciary.house.gov/news/PDFs/Conyers081022.pdf (After 
receiving an incomplete and unsatisfactory response to his 
September 23, 2008, letter from the Justice Department, 
Chairman Conyers reiterated the Committee's requests of 
Attorney General Mukasey concerning the oil and gas leasing 
program investigation).
    35. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, the Hon. Jerrold Nadler, U.S. 
Representative, and the Hon. Bobby Scott, U.S. Representative, 
to the Hon. Michael Mukasey, Att'y Gen. of the United States 
(Oct. 29, 2008), available at http://judiciary.house.gov/news/
PDFs/Nadler-Conyers-Scott081030.pdf (Chairman Conyers and 
Subcommittee Chairmen Nadler and Scott wrote to the Attorney 
General regarding reports of voter suppression and intimidation 
activities in Virginia).
    36. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and the Hon. Linda Sanchez, Chairwoman, 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, to the Hon. Michael Mukasey, Att'y Gen. of 
the United States (Nov. 7, 2008), available at http://
judiciary.house.gov/hearings/pdf/Conyers-Sanchez081107.pdf 
(Chairs Conyers and Sanchez wrote to the Attorney General 
concerning information from a whistleblower on reported 
misconduct by Department prosecutors during the prosecution of 
former Alabama Governor Don Siegelman).
    37. Letter from the Hon. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and the Hon. Jerrold Nadler, Chairman, 
Subcomm. on the Constitution, Civil Rights, and Civil Liberties 
of the H. Comm. on the Judiciary, to the Hon. Michael Mukasey, 
Att'y Gen. of the United States (Dec. 10, 2008), available at 
http://judiciary.house.gov/news/PDFs/Conyers-Nadler081204.pdf 
(Chairmen Conyers and Nadler wrote to the Attorney General 
seeking information regarding the basis for Mr. Mukasey's 
assertion that the administration officials who signed off on 
torture and surveillance policies believed that their actions 
were lawful, despite evidence to the contrary).
    38. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to White House Chief of Staff Joshua Bolten (Jan. 
12, 2009), available at http://judiciary.house.gov/hearings/
pdf/BoltenSubpoena090112.pdf.
    39. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to former White House Counsel Harriet Miers (Jan. 
16, 2009), available at http://judiciary.house.gov/hearings/
pdf/MiersSubpoena090116.pdf.
    40. Letter and Subpoena issued by H. Judiciary Comm. 
Chairman John Conyers, Jr. to former White House Deputy Chief 
of Staff Karl Rove (Feb. 13, 2009), available at http://
judiciary.house.gov/issues/issues_rove.html.

VI. Pending Reports and Related Activities from the Departments of 
        Justice and Homeland Security

    1. Justice Department investigation into the destruction of 
CIA interrogation tapes, including possible criminal 
violations, by federal prosecutor John Durham. See Mazzetti and 
Johnston, ``Justice Dept. Sets Criminal Inquiry on C.I.A. 
Tapes,'' N.Y. Times, Jan. 3, 2008, at http://www.nytimes.com/
2008/01/03/washington/03intel.html.
    2. Justice Department investigation into the U.S. Attorney 
removals, including possible criminal violations, by federal 
prosecutor Nora Dannehy. See Lichtblau, ``Prosecutor is Named 
in Dismissal of Attorneys,'' N.Y. Times, Sept. 28, 2008, at 
http://www.nytimes.com/2008/09/30/washington/30usattorney.html.
    3. Justice Department Office of Professional Responsibility 
investigation into the potentially selective, politically-
motivated prosecutions of, among others, former Alabama 
Governor Don Siegelman, Wisconsin procurement official Georgia 
Thompson, Mississippi Supreme Court Justice Oliver Diaz and 
attorney Paul Minor. See Letter from H. Marshall Jarrett, 
Counsel, Office of Professional Responsibility, U.S. Department 
of Justice, to the Hon. John Conyers, Jr., Chairman, House 
Committee on the Judiciary (May 5, 2008), available at http://
judiciary.house.gov/news/pdfs/Jarrett080505.pdf.
    4. Justice Department Office of Professional Responsibility 
investigation into ``the role of Department attorneys in the 
authorization and oversight of warrantless domestic 
surveillance . . . and in complying with the Foreign 
Intelligence Surveillance Act.'' See 50 U.S.C.A. Sec. 1885c 
(2008); Eggan, ``Justice Dept. Reopens Surveillance Probe,'' 
Wash. Post, Nov. 14, 2007, at A04, available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/11/13/
AR2007111301170.html.
    5. Justice Department Office of Professional Responsibility 
investigation into the legal authorization of waterboarding and 
other enhanced interrogation techniques. See Letter from H. 
Marshall Jarrett, Counsel, Office of Professional 
Responsibility, U.S. Department of Justice, to the Hon. Richard 
J. Durbin and the Hon. Sheldon Whitehouse, U.S. Senate (Feb. 
18, 2008), available at http://whitehouse.senate.gov/imo/media/
doc/2-18-08.pdf.
    6. Justice Department Office of the Inspector General 
investigation into the use of exigent letters, including the 
use of ``blanket NSLs [National Security Letters] and other 
improper requests for telephone records.'' See Hearing on H.R. 
3189, the ``National Security Letters Reform Act of 2007'': 
Hearing Before the Subcomm. on the Const., Civil Rights, and 
Civil Liberties of the H. Comm. on the Judiciary, 110th Cong., 
Apr. 15, 2007 (prepared statement of the Hon. Glenn Fine, 
Inspector General, U.S. Department of Justice, at 7), available 
at http://judiciary.house.gov/hearings/pdf/Fine080415.pdf; 
Office of the Inspector General, Semiannual Report to Congress, 
April 1, 2008-September 30, 2008, U.S. Department of Justice, 
available at http://www.usdoj.gov/oig/semiannual/0811/
index.htm.
    7. Justice Department Office of the Inspector General 
investigation into the government's terrorist surveillance 
programs, as part of investigations by multiple Inspectors 
General as mandated by the FISA Amendments Act of 2008 (which 
became Public Law 110-261 on July 10, 2008). See 50 U.S.C.A. 
Sec. 1885c (2008); Office of the Inspector General, Semiannual 
Report to Congress, April 1, 2008-September 30, 2008, U.S. 
Department of Justice, available at http://www.usdoj.gov/oig/
semiannual/0811/index.htm.
    8. Justice Department Office of the Inspector General 
investigation into how the FBI and ATF coordinate their 
explosives investigations. See Office of the Inspector General, 
Semiannual Report to Congress, April 1, 2008-September 30, 
2008, U.S. Department of Justice, available at http://
www.usdoj.gov/oig/semiannual/0811/index.htm.
    9. Evaluation by the Justice Department Office of the 
Inspector General and Office of Professional Responsibility on 
appropriate action in response to the leak of a reported FBI 
investigation into the Association for Community Organizers for 
Reform Now (ACORN) and alleged voter fraud. See Letter from 
Keith B. Nelson, Principal Deputy Assistant Attorney General, 
Office of Legislative Affairs, U.S. Department of Justice, to 
the Hon. John Conyers, Jr., Chairman, House Committee on the 
Judiciary (October 28, 2008), available at http://
judiciary.house.gov/hearings/pdf/Nelson081028.pdf.
    10. Department of Homeland Security Office of the Inspector 
General investigation into the leak of the immigration status 
of the half-aunt of presidential candidate Barack Obama days 
before the November 2008 election. See Letter from Lee C. 
Morris, Assistant Secretary for Legislative Affairs, Department 
of Homeland Security, to the Hon. John Conyers, Jr., Chairman, 
H. Comm. on the Judiciary (Nov. 1, 2008), available at http://
judiciary.house.gov/hearings/pdf/Chertoff081101.pdf.
    11. Secret Service (under the Department of Homeland 
Security) investigation into alleged racial incidents, 
including the display of a noose at a Maryland training 
facility. See Spellman and Meserve, Secret Service Probes 
Alleged Noose Incident, CNN Web site, May 2, 2008, http://
www.cnn.com/2008/POLITICS/05/02/secret.service.noose/.
    12. Homeland Security Department Office of the Inspector 
General supplemental report on the investigation into Maher 
Arar's removal from the United States to Syria. See U.S. 
Department of Homeland Security Inspector General Report OIG-
08-018, The Removal of a Canadian Citizen to Syria: Joint 
Hearing before the Subcomm. on the Constitution, Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary and 
Subcomm. on Int'l Orgs., Human Rights, and Oversight of the H. 
Comm. on Foreign Affairs, H. Judiciary Comm. Serial No. 110-101 
at 18, 22, 110th Cong. (2008) (testimony of the Hon. Richard L. 
Skinner, Inspector General, U.S. Department of Homeland 
Security).

                                Endnotes

    1. United States v. Hamdi, 542 U.S. 507, 568-69 (2004) 
(Scalia, J., dissenting).
    2. The name of David Addington, who was at the time Counsel 
to the Vice President, fails to appear on virtually any 
documents. But he had a pervasive and dominant presence within 
the Administration in forcefully advocating the expansive use 
of power in the Imperial Presidency. A New Yorker profile 
describes what it was like to be in one of these internal 
debates with Mr. Addington:

    Richard Shiffrin, the former Pentagon lawyer, said that 
during a tense White House meeting held in the Situation Room 
just a few days after September 11th ``all of us felt under a 
great deal of pressure to be willing to consider even the most 
extraordinary proposals. The CIA, the N.S.C., the State 
Department, the Pentagon, and the Justice Department all had 
people there. Addington was particularly strident. He'd sit, 
listen, and then say, `No, that's not right.' He was 
particularly doctrinaire and ideological. He didn't recognize 
the wisdom of the other lawyers. He was always right. He didn't 
listen. He knew the answers.'' The details of the discussion 
are classified, Shiffrin said, but he left with the impression 
that Addington ``doesn't believe there should be co-equal 
branches.''

Meyer, ``The Hidden Power,'' The New Yorker, July 3, 2006, 
available at http://www.newyorker.com/archive/2006/07/03/
060703fa_fact1?currentPage=6.
    An article on the formulation of the interrogation policies 
described the September 2002 visit to Guantanamo by Mr. 
Addington, White House Counsel Gonzales, Defense Department 
General Counsel Jim Haynes, and CIA General Counsel John Rizzo 
made it clear that Mr. Addington was perceived as ``definitely 
the guy in charge.'' Sands, ``The Green Light,'' Vanity Fair, 
May 2008, available at http://www.vanityfair.com/politics/
features/2008/05/guantanamo200805?currentPage=1.
    In an interview with PBS, Jack Goldsmith, who succeeded 
John Yoo in the Justice Department's Office of Legal Counsel 
(OLC), described Mr. Addington as ``very sarcastic and 
aggressive against people with whom he disagreed, and 
dismissive oftentimes.''

    Q: What was he like to work with?
    A: He was many things. He had a lot of experience, so he 
could always make arguments from precedent or the way things 
had been done before, which was very powerful in these 
arguments. He was very tough in making his arguments. He was 
very sarcastic and aggressive against people with whom he 
disagreed, and dismissive oftentimes. He was learned. He knew a 
lot about precedents and practices, and he acted with the 
implicit blessing of the Vice President. All of these things 
made him a very, very forceful presence.
    Q: How did you know he had the ``implicit blessing'' of the 
Vice President?
    A: I say implicit because it was never explicit . . . I 
don't ever recall him invoking the Vice President's authority. 
But everyone understood that . . . he and the Vice President 
were on the same page, and everyone understood that the 
arguments that Addington was making in these meetings were the 
arguments that the Vice President was going to be making to the 
President . . .
    Q: What was it like to argue with Addington?
    A: David could be very, very aggressive in his arguments, 
sometimes personal and ad hominem, often mixed with precedents, 
arguments, knowledge, directions from the President. It was a 
bombastic mixture of argumentative strategies . . .
    There were two questions that Addington always asked: ``Do 
you think we have the power on our own to do what we're 
doing?'' And the answer was yes, there were good legal 
arguments for it.
    The second question was: ``Is it possible that if we go to 
Congress the President might not get what he wants, and the 
Congress might place restrictions on the President, and the 
President might conceivably be left in a weaker position, 
thereby making it harder for him to protect Americans?'' And 
the answer to that question was always yes. Those two questions 
usually ended the argument.

Interview with Jack Goldsmith re: David Addington, Frontline: 
Cheney's Law (PBS television broadcast), available at http://
www.pbs.org/wgbh/pages/frontline/cheney/themes/addington.html.
    3. Addington, quoted in Goldsmith, The Terror Presidency 
124 (W. W. Norton & Co. 2007).
    4. Goldsmith, The Terror Presidency 126 (W. W. Norton & Co. 
2007).
    5. Id. at 126.
    6. Const. art. II, Sec. 3. Congress's initial response to 
President Bush's extraordinary assertions and assumptions of 
power is noteworthy. For the first six years of the Bush 
Presidency, when both Houses of Congress were, except for a 
brief period, controlled by the President's own political 
party, Congress was apparently often kept in the dark about 
presidential actions that infringed on Congress's assigned 
constitutional responsibilities. Even when it was made aware of 
such action, all too often it stood silent or, in a few 
instances in the area of national security, largely accepted 
and enacted the President's legislative proposals and in so 
doing ratified actions he had already taken. During these 
years, Congress provided scant oversight, and largely abandoned 
its constitutionally assigned role to make the laws of the 
United States in national security matters. It was, to an 
astonishing extent, compliant, some might even say complicit, 
in the aggrandizement of the president's power.
    A New York Times reporter quoted Senator Lindsey Graham as 
giving the following response to the question why he and his 
fellow senators waited so long to try to reclaim their place in 
the constitutional order: `` `The Congress was intimidated 
after 9/11,' [Graham] answered. `People were afraid to get in 
the way of a strong executive who was talking about suppressing 
a vicious enemy, and we were AWOL for a while, and I'll take 
the blame for that. We should have been more aggressive after 
9/11 in working with the executive to find a collaboration, and 
I think the fact that we weren't probably hurt the country. I 
wish I had spoken out sooner and louder.'' Mahler, ``After the 
Imperial Presidency,'' N.Y. Times Mag., Nov. 7, 2008, available 
at http://www.nytimes.com/2008/11/09/magazine/09power-
t.html?_r=2&hp&oref=slogin&oref=slogin.
    Senator Arlen Specter made similar comments to the 
reporter: ``[I] asked Specter, who was chairman of the 
Judiciary Committee from 2005 to January 2007, how he thought 
Congress had fared vis-a-vis the Executive Branch during the 
Bush Administration. `Decades from now,' he answered, 
`historians will look back on the period from 9/11 to the 
present as an era of unbridled executive power and 
congressional ineffectiveness.' '' Id. 
    7. Const. art. II, Sec. 2.
    8. Other examples from 18th Century Europe include Louis 
XIV of France, whose view of monarchical power was famously 
expressed: ``L'Etat, c'est moi.'' (In English, ``I am the 
State.'')
    9. See discussion in Section 2.
    10. Interview with Jonathan Karl, ABC News, Dec. 15, 2008, 
available at http://a.abcnews.com/Politics/
story?id=6464697&page=1.
    11. The text of the original White House draft joint 
resolution is found at Cong. Rec., 107th Cong., 1st sess. Oct. 
1, 2001, pp. S9949-S9951 (daily ed.). See also, Grimmett, CRS 
Report RS 22357, Authorization for Use of Military Force in 
Response to the 9/11 Attack (P.L. 107-40): Legislative History. 
The resolution proposed by the White House provided: ``That the 
President is authorized to use all necessary and appropriate 
force against those nations, organizations or persons he 
determines planned, authorized, harbored, committed, or aided 
in the planning or commission of the attacks against the United 
States that occurred on September 11, 2001, and to deter and 
pre-empt any future acts of terrorism or aggression against the 
United States.'' Id. at 5-6 (emphasis added).
    12. Holmes, ``John Yoo's Tortured Logic,'' The Nation, May 
1, 2006, available at http://www.thenation.com/doc/20060501/
holmes/2 [hereinafter John Yoo's Tortured Logic].
    13. Daschle, ``Power We Didn't Grant,'' Wash. Post, Dec. 
23, 2005 at A21, available at http://www.washingtonpost.com/wp-
dyn/content/article/2005/12/22/AR2005122201101.html (emphasis 
added). In hindsight, it appears the Administration may also 
have been seeking this additional phrase to cite as 
congressional authorization for conducting warrantless 
surveillance inside the United States, without regard to the 
legal requirements of FISA.
    14. Pub.L. No. 107-40, 115 Stat. 224, 224 (2001). See also 
Grimmett, CRS Report RS 22357, Authorization for Use of 
Military Force in response to the 9/11 Attack (P.L. 107-40): 
Legislative History (emphasis added).
    15. Section 2 of the AUMF provided:

    (b) WAR POWERS RESOLUTION REQUIREMENTS--
    (1) SPECIFIC STATUTORY AUTHORIZATION--Consistent with 
section 8(a)(1) of the War Powers Resolution, the Congress 
declares that this section is intended to constitute specific 
statutory authorization within the meaning of section 5(b) of 
the War Powers Resolution.
    (2) APPLICABILITY OF OTHER REQUIREMENTS--Nothing in this 
resolution supercedes any requirement of the War Powers 
Resolution.

    16. It is unknown who else in addition to Mr. Yoo may have 
worked on the September 25, 2001, Memorandum or reviewed it 
before it was made final. Over the next several months, nearly 
all the legal opinions asserting as Administration policy broad 
and unreviewable presidential war powers came from this then-34 
year old lawyer, toiling in relative obscurity in the Justice 
Department. In certain aspects, Mr. Yoo was a law-maker unto 
himself.
    17. Memorandum, The President's Constitutional Authority to 
Conduct Military Operations Against Terrorists and Nations 
Supporting Them, by Dep. Asst. Att'y. Gen. John C. Yoo, Dept. 
of Justice, OLC, Sept. 25, 2001, available at http://
www.usdoj.gov/olc/warpowers925.htm [hereinafter September 25, 
2001 War Powers Memorandum] (emphasis added).
    18. The evidence on this score is overwhelming. For 
example, Secretary of Defense Rumsfeld made comments at 2:40 on 
the afternoon of September 11 about the possibility of 
retaliating against Iraq. The notes of Rumsfeld's staffer, 
Stephen Cambone, the Principal Deputy Under Secretary of 
Defense for Policy, document Donald Rumsfeld's 2:40 p.m. 
instructions to General Myers to find the ``[b]est info fast . 
. . judge whether good enough [to] hit S.H. [Saddam Hussein] at 
same time--not only UBL [Usama Bin Laden].'' The notes are 
available on-line at http://www.outragedmoderates.org/2006/02/
dod-staffers-notes-from-911-obtained.html. See also Borger, 
``Blogger Bares Rumsfeld's Post 9/11 Orders,'' The Guardian, 
Feb. 24, 2006, available at http://www.guardian.co.uk/world/
2006/feb/24/freedomofinformation.september11.
    Richard Clarke has written and spoken publicly about 
receiving pressure in the days following 9/11 to find a link 
between Saddam Hussein and the terrorists and about Rumsfeld's 
desire to attack Iraq. In his book, Clarke wrote:

    I expected to go back to a round of meetings [after 
September 11] examining what the next attacks could be, what 
our vulnerabilities were, what we could do about them in the 
short term. Instead, I walked into a series of discussions 
about Iraq. At first I was incredulous that we were talking 
about something other than getting al Qaeda. Then I realized 
with almost a sharp physical pain that Rumsfeld and Wolfowitz 
were going to try to take advantage of this national tragedy to 
promote their agenda about Iraq. They were talking about Iraq 
on 9/11. They were talking about it on 9/12.

Clarke, Against All Enemies: Inside America's War on Terror 30, 
(Free Press 2004). Clarke also described his interactions with 
President Bush on this topic on ``60 Minutes.'' ``Clarke's Take 
on Terror,'' CBS News, Mar. 21, 2004, available at http://
www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml.
    In a Meet the Press interview, General Wesley Clark said he 
had been asked to find a link between al Qaeda and Saddam 
Hussein:

    Mr. Clark: There was a concerted effort during the fall of 
2001, starting immediately after 9/11, to pin 9/11 and the 
terrorism problem on Saddam Hussein.
    Mr. Russert: By who? Who did that?
    Mr. Clark: Well, it came from the White House, it came from 
people around the White House. It came from all over. I got a 
call on 9/11. I was on CNN, and I got a call at my home saying, 
``You got to say this is connected. This is state-sponsored 
terrorism. This has to be connected to Saddam Hussein.'' I 
said, ``But--I'm willing to say it, but what's your evidence?'' 
And I never got any evidence.

Interview of Wesley Clark by Tim Russert, Meet the Press, June 
15, 2003, reported in ``Media Silent on Clark's 9/11 
Comments,'' Fairness and Accuracy in Reporting, June 20, 2003, 
available at http://www.fair.org/index.php?page=1842.
    Deputy Secretary of Defense Paul Wolfowitz confirmed in an 
interview with Vanity Fair magazine that in the immediate days 
following the 9/11 attacks there were discussions about 
attacking Iraq. Wolfowitz stated:

    There was a long discussion during [meetings at Camp David 
after the 9/11 attacks] about what place if any Iraq should 
have in a counterterrorist strategy. On the surface of the 
debate it at least appeared to be about not whether but when. 
There seemed to be a kind of agreement that yes it should be, 
but the disagreement was whether it should be in the immediate 
response or whether you should concentrate simply on 
Afghanistan first.

Deputy Secretary Wolfowitz Interview with Sam Tannenhaus, 
Vanity Fair, May 15, 2003, available at http://
www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=2594. On September 20, 2001, a 
group calling itself ``People for a New American Century'' sent 
a letter to President Bush, signed by William Kristol and 
Richard Perle among others, that called for attacking Iraq even 
if Iraq were not implicated in the 9/11 attacks. See Letter 
from William Kristol et al to President Bush, September 20, 
2001, available at http://zfacts.com/p/165.html.
    19. The National Commission on Terrorist Attacks Upon the 
United States, The 9/11 Commission Report, W.H. Norton, 
authorized ed. (2004), pp. 334-36 (footnotes omitted). The 
Report also noted:

    Within the Pentagon, Deputy Secretary Wolfowitz continued 
to press the case for dealing with Iraq. Writing to Rumsfeld on 
September 17 in a memo headlined ``Preventing More Events,'' he 
argued that if there was even a 10 percent chance that Saddam 
Hussein was behind the 9/11 attack, maximum priority should be 
placed on eliminating that threat. Wolfowitz contended that the 
odds were ``far more'' than 1 in 10, citing Saddam's praise for 
the attack, his long record of involvement in terrorism, and 
theories that Ramzi Yousef was an Iraqi agent and Iraq was 
behind the 1993 attack on the World Trade Center.

Id.
    20. September 25, 2001 War Powers Memorandum.
    21. Although Mr. Yoo, as a lawyer, may have believed that 
Congress had no constitutional role in authorizing the use of 
military force, or that the War Powers Act was 
unconstitutional, he certainly knew that the AUMF as enacted 
did not ``demonstrate Congress's acceptance'' of his assertions 
as to the nature of the president's ``unilateral war powers.'' 
As Mr. Yoo was well aware, in enacting the AUMF, Congress had 
rejected the pre-emption language sought by the President, had 
included provisions citing to the War Powers Act, and had 
narrowed the scope of the AUMF from that requested by the 
President insofar as he had sought authorization to use 
military power inside the United States. By no fair 
interpretation of events did the AUMF--in which Congress 
insisted on basing its authorization on the War Powers Act--
reflect Congress's ``acceptance of the President's unilateral 
war powers.''
    22. September 25, 2001 War Powers Memorandum (emphasis 
added).
    23. September 25, 2001 War Powers Memorandum (emphasis 
added). The sentence is susceptible to a less controversial 
interpretation--that the president could lawfully use military 
power against targets around the world to protect Americans 
citizens at home or abroad. The more natural reading, however, 
is that the ``battlefield'' where military force could be used 
included locations in the United States. In light of the 
Administration's subsequent reliance on the president's 
Commander-in-Chief power as justification for actions such as 
the seizure of Jose Padilla in Chicago and the warrantless 
surveillance inside the United States, it is fairly clear that 
the latter interpretation was intended.
    Indeed, that interpretation is consistent with later 
assertions by the Administration. In a November 7, 2001, 
memorandum regarding the president's power to use military 
commissions to try terrorists, the Office of Legal Counsel 
specifically included using such commissions ``to try U.S. 
citizens seized in the United States.'' In defending a court 
challenge to the military detention of a U.S. citizen, the 
Government characterized the United States as a 
``battlefield.'' Jackman, ``U.S. a Battlefield, Solicitor 
General Tells Judges,'' Wash. Post, July 20, 2005, p. A09, 
available at http://www.washingtonpost.com/wp-dyn/content/
article/2005/07/19/AR2005071901023.html. And in a December 17, 
2005 radio address, President Bush described fighting the war 
on terror on the ``home front'': ``We're fighting these enemies 
across the world. Yet in this first war of the 21st century, 
one of the most critical battlefronts is the home front. And 
since September the 11th, we've been on the offensive against 
the terrorists plotting within our borders.'' President Bush's 
Radio Address, Dec. 17, 2005, available at http://
www.whitehouse.gov/news/releases/2005/12/20051217.html.
    24. ``Interview with John Yoo,'' Frontline, July 19, 2005, 
available at http://www.pbs.org/wgbh/pages/frontline/torture/
interviews/yoo.html (emphasis added).
    25. In one of the Government's briefs in the Padilla case, 
for example, the Government specifically argued that ``[t]he 
President's exercise of his Commander in Chief powers [to seize 
Padilla, a U.S. citizen, in the United States] comes with `full 
statutory authorization from Congress,' and his constitutional 
authority therefore is at its broadest.'' Padilla v. Bush, et 
al, 02 Civ. 4445 (MEM) (S.D.N.Y), Respondents' Reply In Support 
of Motion to Dismiss the Amended Petition for a Writ of Habeas 
Corpus (Oct. 11, 2002) at 13. Mr. Yoo would similarly argue 
that ``Congress also implicitly authorized the President to 
carry out electronic surveillance to prevent further attacks on 
the United States in the [AUMF] passed on September 18, 2001.'' 
Yoo, War by Other Means, An Insider's Account of the War on 
Terror 115 (New York, 2006). And similarly, as to military 
commissions: ``Congress's AUMF implicitly included the power to 
detain enemy combatants.'' Id. at 149.
    26. President's Letter to Congress on American Response to 
Terrorism, Oct. 9, 2001, available at http://
www.whitehouse.gov/news/releases/2001/10/20011009-6.html 
(emphasis added). The President's speech to the Nation 
announcing the initiation of hostilities made no reference to 
the AUMF: ``On my orders, the United States military has begun 
strikes against al Qaeda terrorist training camps and military 
installations of the Taliban regime in Afghanistan.'' 
Presidential Address to the Nation, Oct. 7, 2001, available at 
http://www.whitehouse.gov/news/releases/2001/10/20011007-
8.html.
    27. Memorandum for Alberto R. Gonzales, Counsel to the 
President, Legality of the Use of Military Commissions to Try 
Terrorists, from Patrick F. Philbin, Deputy Assistant Attorney 
General (Nov. 6, 2001), at 1, 5 (emphasis added).
    28. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, from John Yoo, Dep. Asst Att'y Gen., and 
Robert J. Delahunty, Special Counsel, Re: Application of 
Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 
2002) at 11 (emphasis added; footnote omitted).
    29. Memorandum for Alberto R. Gonzales, Counsel to the 
President, from Jay S. Bybee, Asst Att'y Gen., Re: Standards of 
Conduct for Interrogation under 18 U.S.C. Sec. Sec. 2340-2340A 
(Aug. 1, 2002) at 31 (emphasis added).
    30. Memorandum for William J. Haynes, II, General Counsel, 
Department of Defense, from Department of Justice, OLC, Re: 
Military Interrogation of Alien Unlawful Combatants Held 
Outside the United States (Mar. 14, 2003) (emphasis added). The 
pertinent memoranda authorizing the non-FISA warrantless 
surveillance have not been released. Presumably, they set forth 
similar justifications. As Mr. Yoo stated in an interview: ``If 
it's part of the president's power as a constitutional matter 
to gather intelligence, including intercepting communications, 
then that's a power that's included and Congress can't seize it 
just because it wants to.'' Frontline: Cheney's Law (PBS 
television broadcast), available at http://www.pbs.org/wgbh/
pages/frontline/cheney/view/main.html (transcript available at 
http://www.pbs.org/wgbh/pages/frontline/cheney/etc/
script.html).
    31. ``Congress, [the Administration's critics] say, should 
pass a law on every aspect of the use of force, not in the 
AUMF's general terms, but only in declared specifics . . .'' 
Mr. Yoo, War by Other Means, An Insider's Account of the War on 
Terror 149 (New York, 2006).
    32. ``Padilla's complaints mirror the left's campaign 
against the war. To them, the 9/11 attacks did not start a war, 
but instead were simply a catastrophe, like a crime or even a 
natural disaster. They would limit the U.S. response only to 
criminal law enforcement managed by courts, not the military. 
Every terrorist captured away from the Afghanistan battlefield 
would have the right to counsel, Miranda warnings, and a 
criminal trial that could force the government to reveal its 
vital intelligence secrets.'' Mr. Yoo, ``Terrorist Tort 
Travesty,'' Wall St. J., Jan. 19, 2008, available at http://
online.wsj.com/article/SB120070333580301911.html. Mr. Yoo does 
not indicate which critics from ``the left'' advance this 
position.
    33. As New York University Law Professor Stephen Holmes 
explains in a review of one of Mr. Yoo's books on the 
president's war powers:

    To make his contrarian claim ring true, Yoo whites out 
contrary evidence and draws dubious conclusions on the basis of 
fragmentary and carefully selected facts. He disregards the 
main thrust of the historical record and misrepresents the 
parts he acknowledges. He ferrets out (and exaggerates the 
importance of) scattered shreds of evidence that, at first 
glance, seem to back up his predetermined narrative . . .

John Yoo's Tortured Logic.
    34. September 25, 2001 War Powers Memorandum (emphasis 
added).
    35. Notably, the Declaration of Independence lists, among 
the grievances against King George III:

    He has kept among us, in times of peace, Standing Armies 
without the Consent of our legislatures.
    He has affected to render the Military independent of and 
superior to the Civil Power.

    36. John Jay wrote in a slightly different context about 
the ``human nature'' that moves monarchs to war:

    It is too true, however disgraceful it may be to human 
nature, that nations in general will make war whenever they 
have a prospect of getting anything by it; nay, absolute 
monarchs will often make war when their nations are to get 
nothing by it, but for the purposes and objects merely 
personal, such as thirst for military glory, revenge for 
personal affronts, ambition, or private compacts to aggrandize 
or support their particular families or partisans. These and a 
variety of other motives, which affect only the mind of the 
sovereign, often lead him to engage in wars not sanctified by 
justice or the voice and interests of his people . . .

The Federalist No. 4, ``Concerning Dangers From Foreign Force 
and Influence (continued),'' Nov. 7, 1787 (John Jay).
    37. The Federalist No. 69, at 470 (J. Cooke ed., Wesleyan 
University Press 1961).
    38. Const. art. I, 8. Professor Holmes stresses this point 
in his book review:

    Yoo repeatedly asserts that the Framers gave Congress only 
two checks on the executive's foreign-policy powers: namely, 
the power to impeach and the power to cut off supplies. This is 
prima facie implausible, given the impressive arsenal of 
foreign-policy powers assigned to Congress by the Constitution, 
including the powers to define violations of the law of 
nations, to issue letters of marque and reprisal, to make rules 
concerning captures on land and water, to raise and support an 
army and navy, to make rules for their governance and to 
regulate international commerce--not to mention the Senate's 
powers to accept or reject ambassadorial appointments and to 
approve or reject treaties, and, of course, Congress's power to 
declare war.

John Yoo's Tortured Logic.
    39. Const. art. II, Sec. 2.
    40. United States v. Hamdi, 542 U.S. 507, 568-69 (2004) 
(Scalia, J., dissenting) (emphasis added).
    41. ``Thus, a declaration of war served the purpose of 
notifying the enemy, allies, neutrals, and one's own citizens 
of a change in the state of relations between one nation and 
another.'' Yoo, ``The Continuation of Politics by Other Means: 
The Original Understanding of War Powers,'' 84 Cal. L. Rev. 
167, 207 (1996).
    42. Madison, ``Helvidius No. 1,'' Philadelphia Gazette, 
Aug. 31, 1793, reprinted in The Mind of the Founder, rev. ed., 
ed. Marvin Meyers (Indianapolis: Bobbs-Merrill Co., 1981), 206-
207, quoted in Savage, Takeover, The Return of the Imperial 
Presidency and the Subversion of American Democracy 19 (Little 
Brown & Co., 2007) (emphasis in original).
    43. Madison, The Writings of James Madison 132 (Gaillard 
Hunt ed., 1906), quoted in Fisher, ``Lost Constitutional 
Moorings: Recovering the War Power,'' 81 Ind. L.J. at 1205. See 
also Cole, ``What Bush Wants to Hear,'' N.Y. Review of Books, 
Nov. 17, 2005, available at http://www.nybooks.com/articles/
18431:

    Many of the Framers passionately defended the decision to 
deny the President the power to involve the nation in war. When 
Pierce Butler, a member of the Constitutional Convention, 
proposed giving the President the power to make war, his 
proposal was roundly rejected. George Mason said the President 
was ``not to be trusted'' with the power of war, and that it 
should be left with Congress as a way of ``clogging rather than 
facilitating war.'' James Wilson, another member, argued that 
giving Congress the authority to declare war ``will not hurry 
us into war; it is calculated to guard against it. It will not 
be in the power of a single man, or a single body of men, to 
involve us in such distress; for the important power of 
declaring war is vested in the legislature at large.'' Even 
Alexander Hamilton, one of the founders most in favor of strong 
executive power, said that ``the Legislature alone can 
interrupt [the blessings of peace] by placing the nation in a 
state of war.'' As John Hart Ely, former dean of Stanford Law 
School, has commented, while the original intention of the 
Founders on many matters is often ``obscure to the point of 
inscrutability,'' when it comes to war powers ``it isn't.''

    44. John Yoo's Tortured Logic at 3.
    45. Delahunty and Yoo, ``The President's Constitutional 
Authority to Conduct Military Operations Against Terrorist 
Organizations and the Nations That Harbor or Support Them,'' 25 
Harv. J. of Law and Pub. Pol. 487, 494 (Spring 2002) (footnote 
omitted). Mr. Yoo makes a similar assertion in a March 2003 OLC 
memorandum: ``That sweeping grant [in Article II] vests in the 
President the `executive power' and contrasts with the 
enumeration of the powers--those `herein'--granted to Congress 
in Article I.'' Memorandum for William J. Haynes, II, General 
Counsel, Department of Defense, from Department of Justice, 
OLC, Re: Military Interrogation of Alien Unlawful Combatants 
Held Outside the United States (Mar. 14, 2003), at 5.
    46. September 25, 2001 War Powers Memorandum.
    47. Const. art. I, Sec. 8.
    48. Yoo, ``The Continuation of Politics by Other Means: The 
Original Understanding of War Powers,'' 84 Cal. L. Rev. at 290-
94.
    49. Fisher, ``Lost Constitutional Moorings: Recovering the 
War Power,'' 81 Ind. L.J. 1199, 1235-36 (2005).
    50. Id. at 1237-38. As Fisher wryly notes, ``There was room 
[in Mr. Yoo's law review article] for 625 footnotes but not for 
that one.'' Id. at 1238. Another early court decision Fisher 
discusses is United States v. Smith, 27 F. Cas. 1192, 1230 
(C.C.N.Y. 1806) (No. 16,342), where the court addressed, and 
rejected, the argument that the president could ignore and 
countermand the Neutrality Act of 1794: ``The [P]resident 
cannot control the statute, nor dispense with its execution, 
and still less can he authorize a person to do what the law 
forbids.'' The court noted there was a ``manifest distinction 
between our going to war with a nation at peace, and a war 
being made against us by an actual invasion, or a formal 
declaration. In the former case, it is the exclusive province 
of [C]ongress to change a state of peace into a state of war.'' 
Id.
    51. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 
640 (1952).
    52. In Dames & Moore v. Regan, 453 U.S. 654, 661(1981), the 
entire Supreme Court embraced Justice Jackson's view as 
``bringing together as much combination of analysis and common 
sense as there is in this area.''
    53. Executive Nomination: Hearing before the S. Judiciary 
Comm., 109th Cong. (Jan. 6, 2006) (statement of Alberto 
Gonzales on his nomination to serve as Attorney General).
    54. Bowermaster, ``Charges may result from firings, say two 
former U.S. Attorneys,'' Seattle Times, May 9, 2007, http://
seattletimes.nwsource.com/html/localnews/
2003699882_webmckayforum09m.html (reported remarks to assembled 
United States Attorneys at Scottsdale, Arizona.).
    55. ``Ex-Aide Insists White House Puts Politics Ahead of 
Policy,'' N.Y. Times, Dec. 2, 2002, http://query.nytimes.com/
gst/fullpage.html?res=9A03E2DA1E38F931A35751C1A9649C8B63.
    56. Fonda & Healy, ``How Reliable Is Brown's Resume?,'' 
Time Magazine, Sept. 8, 2005, http://www.time.com/time/nation/
article/0,8599,1103003,00.html.
    57. Eilperin & Leonning, ``Top scientist rails against 
hirings,'' Wash. Post, Nov. 22, 2008, at A3.
    58. See, e.g.: Draft Committee Report, ``The Activities of 
the White House Office of Political Affairs,'' H. Comm. on 
Oversight and Govt. Reform, 110th Cong., Oct. 2008, http://
oversight.house.gov/documents/20081015105434.pdf; Majority 
Staff Report prepared for Chairman Henry A. Waxman, ``FDA 
Career Staff Objected to Agency Preemption Policies,'' H. Comm. 
on Oversight and Govt. Reform, 110th Cong, Oct. 2008, at http:/
/oversight.house.gov/documents/20081029102934.pdf; Memorandum 
to Oversight and Government Reform Committee Members from the 
Majority Staff, ``EPA's Denial of the California Waiver,'' H. 
Comm. on Oversight and Govt. Reform, 110th Cong, May 19, 2008, 
http://oversight.house.gov/documents/20080519131253.pdf; 
Memorandum to Oversight and Government Reform Committee Members 
from the Majority Staff, ``Supplemental Information on the 
Ozone NAAQS,'' H. Comm. on Oversight and Govt. Reform, 110th 
Cong, May 20, 2008, http://oversight.house.gov/documents/
20080520094002.pdf.
    59. See, e.g., Thornton & Soto, ``Lam Asked to Step Down,'' 
San Diego Union Tribune, Jan. 12, 2007, http://
www.signonsandiego.com/news/metro/20070112-9999-1n12lam.html.
    60. See, e.g., Rood, ``White House Pushes Out Another 
Prosecutor,'' TPMMuckracker.com, Jan. 15, 2007, http://
tpmmuckraker.talkingpointsmemo.com/archives/002340.php. As 
Rood's opening sentences reads, ``Strange days? Less than a 
week after news broke that the Bush Administration has forced 
the resignation of San Diego U.S. Attorney Carol Lam, we learn 
that it has done the same to Daniel Bogden, U.S. Attorney for 
Nevada.''
    61. H. Rep. No. 110-423, at 24 (2007). Available at http://
frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname= 
110_cong_reports&docid=f:hr423.110.pdf.
    62. Id. at 44-47 (2007).
    63. E-mail from Kyle Sampson, Chief of Staff to Att'y Gen. 
Alberto Gonzales, to David Leitch, Deputy White House Counsel 
(Jan. 9, 2005, 7:34 PM EST) (OAG 180); Krugman, ``Department of 
Injustice,'' N.Y. Times, March 9, 2007, http://
select.nytimes.com/2007/03/09/opinion/
09krugman.html?_r=1&scp=1&sq=Department%20of%20 
INjustice&st=cse.
    64. Id. Updated data based on a larger sample that was 
presented at a joint hearing of two Judiciary Subcommittees in 
October 2007 indicated that Democrats were five times as likely 
to be investigated as Republicans. See H. Rep. No. 110-423, at 
35 (2007).
    65. H. Rep. No. 110-423, at 30-31 (2007). In its written 
opinion, the three judge appeals court labeled the 
prosecution's theory of the case ``preposterous.'' United 
States v. Thompson, 484 F.3d 877 (7th Cir. 2007).
    66. H. Rep. No. 110-423, at 30-31 (2007).
    67. Id. at 35.
    68. Rosenbaum, ``Justice Department Accused of Politics in 
Redistricting,'' N.Y. Times, May 31, 2002, at A14.
    69. McCaffrey, ``U.S. Backs off Discrimination Cases,'' 
Detroit Free Press, Dec. 11, 2003, at 15A.
    70. Savage, ``Civil Rights Hiring Shifted in Bush Era: 
Conservative Leaning Stressed,'' Boston Globe, July 23, 2006, 
at A1.
    71. Oversight Hearing on the Employment Section of the 
Civil Rights Division of the U.S. Department of Justice: 
Hearing Before Subcomm. on the Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong. (2007) 
(statement of Richard Ugelow, Practitioner in Residence, 
Washington College of Law, American University).
    72. Eggen, ``Civil Rights Focus Shift Roils Staff At 
Justice; Veterans Exit Division as Traditional Cases Decline,'' 
The Washington Post, Nov. 13, 2005, at A1.
    73. Id.
    74. Savage, ``Civil Rights Hiring Shifted in Bush Era: 
Conservative Leaning Stressed,'' Boston Globe, July 23, 2006, 
at A1.
    75. Id.
    76. Id.
    77. Subpoenas issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to David Iglesias, Carol Lam, Bud Cummins, and 
John McKay (March 1, 2007).
    78. Alexander, Machiavelli's Shadow (St. Martin's Press) 
(June 1998).
    79. See, e.g., Thornton & Soto, ``Lam Asked to Step Down,'' 
San Diego Union Tribune, Jan. 12, 2007, http://
www.signonsandiego.com/news/metro/20070112-9999-1n12lam.html.
    80. Letter from H. Judiciary Comm. Chairman John Conyers, 
Jr. and Rep. Howard Berman to Attorney General Alberto Gonzales 
(Jan. 17, 2007).
    81. Dept. of Justice Oversight: Hearing Before the S. Comm. 
on Judiciary, 110th Cong. 22 (2007) (statement of Alberto 
Gonzales, Att'y Gen. Of the United States).
    82. H.R. 580, Restoring Checks and Balances in the 
Confirmation Process of U.S. Attorneys: Hearing before the 
Subcomm. on Commercial and Administrative Law of the H. Comm. 
on the Judiciary, 110th Cong. passim (2007) (statement of 
William E. Moschella, Principal Associate Deputy Attorney 
General). A transcript of the hearing is available at http://
judiciary.house.gov/hearings/printers/110th/33809.PDF.
    83. Id. at 13-14 (statement of William E. Moschella, 
Principal Assoc. Dep. Att'y Gen.).
    84. Id. (statements of former United States Att'ys Carol 
Lam, David Iglesias, Daniel Bogden, John McKay and Bud Cummins.
    85. Id. at 10 (statement David Iglesias, former United 
States Att'y).
    86. Id. at 10 (statement David Iglesias, former United 
States Att'y).
    87. Id. at 24 (statement John McKay, former United States 
Att'y).
    88. Id. at 258-261 (responses to Questions for the Record 
submitted by Bud Cummins, former United States Att'y).
    89. Id. at 268, 276-277 (responses to Questions for the 
Record Submitted by former U.S. Att'ys Paul Charlton and John 
McKay).
    90. Letter from House Judiciary Committee Chairman John 
Conyers, Jr. and Subcommittee Chair Linda Sanchez to Alberto 
Gonzales, Att'y Gen. of the United States, Mar. 8, 2007 
(available at http://judiciary.house.gov/hearings/pdf/Conyers-
Sanchez070308.pdf); Letter from House Judiciary Committee 
Chairman John Conyers, Jr. and Subcommittee Chair Linda Sanchez 
to Fred Fielding, White House Counsel, Mar. 9, 2007 (available 
at http://judiciary.house.gov/hearings/pdf/Conyers-
Sanchez070309.pdf).
    91. Subcommittee Meeting to Consider Subpoena Authorization 
Concerning the Recent Termination of United States Attorneys 
and Related Subjects: Meeting of the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2007).
    92. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to Attorney General Alberto Gonzales (Apr. 10, 
2007).
    93. E-mail from Kyle Sampson, Chief of Staff to Att'y Gen. 
Alberto Gonzales, to Harriet Miers, White House Counsel (Jan. 
9, 2006, 10:09 AM EST) (OAG 20-21); E-mail from Harriet Miers, 
White House Counsel, to Kyle Sampson, Chief of Staff to Att'y 
Gen. Alberto Gonzales (Sept. 17, 2006, 3:15 PM) (OAG 34-35); E-
mail Kyle Sampson, Chief of Staff to Att'y Gen. Alberto 
Gonzales, to Harriet Miers, White House Counsel, and William 
Kelley, Deputy White House Counsel (Nov. 15, 2008 12:08 PM) 
(DAG 14-17); E-mail from Kyle Sampson, Chief of Staff to Att'y 
Gen. Alberto Gonzales, to William Kelley, Deputy White House 
Counsel (Dec. 4, 2006, 6:26 PM EST) (OAG 45-48).
    94. E-mail from Kyle Samson, Chief of Staff to Att'y Gen. 
Alberto Gonzales, to William Kelley, Deputy White House Counsel 
(May 11, 2006, 11:36 AM EST) (OAG 22).
    95. H. Rep. No. 110-423, at 33 (2007).
    96. E-mail from Kyle Sampson, Chief of Staff to Att'y Gen. 
Alberto Gonzales, to David Leitch, Deputy White House Counsel 
(Jan. 9, 2005, 7:34 PM EST) (OAG 180).
    97. H. Rep. No. 110-423, at 43-51 (2007).
    98. Hearing on the Continuing Investigation into the U.S. 
Attorneys Controversy: Hearing before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong. passim (2007) (statement of James Comey, 
former Deputy Att'y Gen. of the United States).
    99. H. Rep. No. 110-423, at 43-51 (2007).
    100. Id. at 29, 48-49 (2007).
    101. Id. at 36, 49-50 (2007).
    102. Id. at 36-37 (2007).
    103. Id. at 24-28 (2007).
    104. Id. at 29-35 (2007).
    105. Interview with Kyle Sampson at 95-96 (July 10, 2007), 
http://judiciary.house.gov/hearings/pdf/Interview071107.pdf
    106. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong. 7 (2008) (statement of Glenn Fine, 
Dept. of Justice Inspector Gen.).
    107. Oversight Hearing on the United States Department of 
Justice: Hearing Before the H. Comm. on the Judiciary, 110th 
Cong. (2007) (statement of Alberto Gonzales, Att'y Gen. of the 
United States); Department of Justice Oversight: Hearing Before 
the S. Comm. on the Judiciary, 110th Cong. (2007) (statement of 
Alberto Gonzales, Att'y Gen. of the United States).
    108. H. Rep. No. 110-423, at 36-38 (2007).
    109. Id. at 37 (2007).
    110. Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong. (2007) (statement of Monica 
Goodling, former Senior Counsel to Att'y Gen. Alberto Gonzales 
and White House Liaison, U.S. Dept. of Justice).
    111. Id. at 34, 81.
    112. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring in the Department of Justice Honors Program and the 
Summer Law Intern Program'' (June 2008). Available at http://
www.usdoj.gov/oig/special/s0806/final.pdf; Joint Report of the 
U.S. Dep. of Justice Office of Professional Responsibility and 
Office of the Inspector General, ``An Investigation of 
Allegations of Politicized Hiring by Monica Goodling and Other 
Staff in the Office of the Attorney General'' (July 2008). 
Available at http://www.usdoj.gov/oig/special/s0807/final.pdf.
    113. The Continuing Investigation into the U.S. Attorneys 
Controversy: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. 43 (2007) (statement of James Comey, former Dep. Att'y 
Gen. of the United States).
    114. The Continuing Investigation into the U.S. Attorneys 
Controversy and Related Matters: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong. 106-110 (statement of Monica 
Goodling, former Senior Counsel to Att'y Gen. Alberto Gonzales 
and White House Liaison, U.S. Dept. of Justice).
    115. Id. at 106-110.
    116. Id. (Prepared Statement of Monica Goodling at 3).
    117. Statement of John Conyers, Jr., Chairman of the H. 
Comm. on the Judiciary, as quoted in ``Judiciary Chairman 
Conyers, Leahy Issues Subpoenas for White House Officials, 
Documents,'' Press Release of the H. Comm. on the Judiciary 
(June 13, 2007), available at http://www.speaker.gov/blog/
?p=482.
    118. Subpoenas issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to former White House Counsel Harriet Miers and 
White House Chief of Staff Joshua Bolten (June 13, 2007).
    119. Subpoena issued by H. Judiciary Comm. Chairman John 
Conyers, Jr. to Mike Duncan, Republican National Committee 
Chair (July 13, 2008).
    120. Letter from George T. Manning to H. Judiciary Comm. 
Chairman John Conyers, Jr. (July 10, 2007).
    121. Letter from Fred Fielding, White House Counsel, to 
Chairman John Conyers, Jr., H. Comm. on the Judiciary, and 
Chairman Patrick J. Leahy, S. Comm. on the Judiciary (June 28, 
2007).
    122. Letter from Robert Kelner to H. Judiciary Comm. 
Chairman John Conyers, Jr. (July 31, 2007).
    123. Meeting to Consider: a Resolution and Report 
Recommending to the House of Representatives that Former White 
House Counsel Harriet Miers and White House Chief of Staff 
Joshua Bolten be Cited for Contempt of Congress: Meeting of the 
H. Comm. on the Judiciary, 110th Cong. (2007).
    124. Roll Call Vote No. 60, H. Res. 982, U.S. House of 
Representatives, Feb. 14, 2008, available at http://
clerk.house.gov/evs/2008/roll060.xml.
    125. Letter from Attorney General Michael Mukasey to 
Speaker of the House Nancy Pelosi (Feb. 29, 2008).
    126. Committee on the Judiciary v. Miers, Civil Action No. 
08-0409 (JDB) (United States District Court for the District of 
Columbia, July 31, 2008).
    127. Memorandum Opinion and Order, Committee on the 
Judiciary v. Miers, Civil Action No. 08-0409 (JDB) (United 
States District Court for the District of Columbia, July 31, 
2008).
    128. Id. at 78.
    129. Id.
    130. Opinion and Order Granting Motion for Stay Pending 
Appeal, Committee on the Judiciary v. Miers, Appeal No. 08-
5357, United States Court of Appeals for the District of 
Columbia Circuit (October 6, 2008).
    131. Joint Report of the Department's Offices of the 
Inspector General and Professional Responsibility, An 
Investigation Into the Removal of Nine US Attorneys, September 
2008.
    132. Joint Report of the Department's Offices of the 
Inspector General and Professional Responsibility, An 
Investigation Into the Removal of Nine US Attorneys, September 
2008, at 325-26.
    133. Id. at 357-58.
    134. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 338 (Sept. 2008). 
Available at http://www.usdoj.gov/oig/special/s0809a/final.pdf.
    135. Id. at 358.
    136. ``Statement by Attorney General Michael B. Mukasey on 
the Report of an Investigation into the Removal of Nine U.S. 
Attorneys in 2006,'' U.S. Dept. of Justice Office of Public 
Affairs, Sept. 29, 2008, available at http://www.usdoj.gov/opa/
pr/2008/September/08-opa-859.html.
    137. E-mail from Kyle Sampson to David Leitch, Deputy White 
House Counsel, responding to a ``Question from Karl Rove,'' 
(Jan. 9, 2005). See also Krugman, ``Department of Injustice,'' 
N.Y. Times, Mar. 7, 2007 (``The bigger scandal, however, almost 
surely involves prosecutors still in office. The Gonzales Eight 
were fired because they wouldn't go along with the Bush 
Administration's politicization of justice. But statistical 
evidence suggests that many other prosecutors decided to 
protect their jobs or further their careers by doing what the 
Administration wanted them to do: harass Democrats while 
turning a blind eye to Republican malfeasance.'').
    138. Shields & Cragan, The Political Profiling of Elected 
Democratic Officials: When Rhetorical Vision Participation Runs 
Amok, EpluribusMedia.org (Feb. 18, 2007), http://
www.epluribusmedia.org/columns/2007/
20070212_political_profiling.html.
    139. Joint Hearing on Allegations of Selective Prosecution: 
The Erosion of Public Confidence in Our Federal Justice System: 
Joint Hearing Before the Subcomm. on Commercial and 
Administrative Law and the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 
16 (2007) (statement of Donald C. Shields, Ph.D.).
    140. Id. at 16.
    141. See Editorial, ``Time to Vote Contempt,'' N.Y. Times, 
Feb. 14, 2008, http://www.nytimes.com/2008/02/14/opinion/
14thu1.html?scp=1&sq=TimetoVoteContempt&st=cse (``There are 
people in jail today, including a former governor of Alabama, 
who have raised credible charges that they were put there for 
political reasons.''); Horton, ``A Primer In Political 
Persecution,'' Harper's Magazine, Oct. 24, 2007, http://
www.harpers.org/archive/2007/10/hbc-90001500; Kalson, ``The 
Wecht Indictment: Given the Bushies'' record, you have to 
wonder if it's all about politics,'' Pittsburgh Post-Gazette, 
July 22, 2007, http://www.post-gazette.com/pg/07203/803200-
149.stm; Cohen, ``The United States Attorneys Scandal Comes to 
Mississippi,'' N.Y. Times, Oct. 11, 2007, http://
www.nytimes.com/2007/10/11/opinion/11thu3.html; Letter from 44 
Former State Attorneys General to Chairman John Conyers, Jr., 
H. Comm. on the Judiciary, and Chairman Patrick Leahy, S. Comm. 
on the Judiciary (July 13, 2007) (The Attorneys General letter 
specifically addressed the prosecution of former Alabama 
Governor Don Siegelman).
    142. Joint Hearing on Allegations of Selective Prosecution: 
The Erosion of Public Confidence in Our Federal Justice System: 
Joint Hearing Before the Subcomm. on Commercial and 
Administrative Law and the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 
(2007) (statement of Richard Thornburgh, former Att'y Gen. of 
the United States).
    143. Majority Staff Report Prepared for Chairman John 
Conyers, Jr., ``Allegations of Selective Prosecution in Our 
Federal Criminal Justice System,'' H. Comm. on the Judiciary, 
110th Cong. (Apr. 2008), available at http://
judiciary.house.gov/hearings/pdf/SelPros/Report080417.pdf.
    144. Letters from Chairman John Conyers, Jr., H. Comm. on 
the Judiciary, to Michael Mukasey, Att'y Gen. of the United 
States (Sept. 23, 2008, and Oct. 22, 2008).
    145. Id.
    146. Interview with Mary Beth Buchanan at 149-51 (June 15, 
2007), available at http://judiciary.house.gov/hearings/pdf/
Interview071107.pdf.
    147. Joint Hearing on Allegations of Selective Prosecution: 
The Erosion of Public Confidence in Our Federal Justice System: 
Joint Hearing Before the Subcomm. on Commercial and 
Administrative Law and the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 
(2007).
    148. Id. (statement of G. Douglas Jones, former United 
States Att'y).
    149. Id. (statement of G. Douglas Jones, former United 
States Att'y).
    150. Letter from Chairman John Conyers, Jr. and other 
Members of the H. Comm. on the Judiciary to Alberto Gonzales, 
Att'y Gen. of the United States (July 17, 2007).
    151. Letter from Brian A. Benczkowski, Principal Deputy 
Assistant. Att'y Gen. of the United States, to Chairman John 
Conyers, Jr., H. Comm. on the Judiciary (Sept. 4, 2007).
    152. Id.
    153. Id.
    154. Letter from Chairman John Conyers, Jr. and other 
Members of the H. Comm. on the Judiciary to Alberto Gonzales, 
Att'y Gen. of the United States (Sept. 10, 2007).
    155. See Rosenberg, ``Statement Concerning the History of 
and Basis for Congressional Access to Deliberative Justice 
Department Documents,'' Statement Before the H. Comm. on Govt. 
Reform, 107th Cong. (Feb. 6, 2002) (Rosenberg's statement 
contains a detailed Appendix listing ``18 significant 
congressional investigations of the Department of Justice which 
involved either open or closed investigations in which the 
Department agreed to supply documents pertaining to those 
investigations, including prosecutorial decision-making 
memoranda and correspondence, and to provide line attorneys and 
investigative personnel for staff interviews and for testimony 
before committees'').
    156.Those documents, which dealt with prosecution decisions 
in murder cases and related issues, and which the Department 
claimed were related to ongoing litigation, were produced to 
Congress despite being subject to a formal claim of executive 
privilege by President Bush, on terms negotiated by then-
Assistant Attorney General Michael Chertoff and the staff of 
the then-Government Reform Committee. See H. Rep. 108-414, at 
132-33 (2004) (Everything Secret Degenerates: The FBI's Use of 
Murderers As Informants, Third Report of the Committee on 
Government Reform).
    157. Letter from Keith Nelson, Principal Deputy Assistant 
Att'y Gen., to Chairman John Conyers, Jr., H. Comm. on the 
Judiciary (Nov. 14, 2008).
    158. Letter from Chairman John Conyers, Jr., H. Comm. on 
the Judiciary, to Michael Mukasey, Att'y Gen. of the United 
States (Dec. 10, 2008).
    159. United States v. Siegelman, et al, Appeal No. 07-
13163-B, (11th Cir. Mar. 27, 2008).
    160. Letter from Chairman John Conyers, Jr., H. Comm. on 
the Judiciary, to Michael Mukasey, Att'y Gen. of the United 
States (Nov. 7, 2008).
    161. Chander, ``House Judiciary Chairman Conyers says 
Siegelman Case E-mails Raise Questions,'' Birmingham News, Nov. 
14, 2008, available at http://www.al.com/news/birminghamnews/
statebriefs.ssf?/base/news/1226740555295690.xml&coll=2.
    162. Silver, ``Many questions surround Wecht retrial, set 
for May,'' Pittsburgh Post-Gazette, Apr. 9, 2008, available at 
http://www.post-gazette.com/pg/08100/871605-85.stm.
    163. Editorial, ``It's Over: There is no need for a second 
Wecht Trial,'' Pittsburgh Post-Gazette, Apr. 9, 2008, http://
www.post-gazette.com/pg/08100/871522-35.stm; Cato, ``Majority 
Thought Wecht was Innocent, Juror Says,'' Pittsburgh Tribune 
Review, Apr. 9, 2008, available at http://http://
www.pittsburghlive.com/x/pittsburghtrib/s_561365.html.
    164. Silver, ``Some Jurors Skeptical of Case Against 
Wecht,'' Pittsburgh Post Gazette, Apr. 10, 2008, available at 
http://www.post-gazette.com/pg/08101/872086_85.stm.
    165. Prine & Cato, ``FBI's Calls Upset Jurors in Wecht 
Trial,'' Pittsburgh Tribune Review, Apr. 11, 2008, available at 
http://www.pittsburghlive.com/x/pittsburghtrib/s_561792.html.
    166. Id.
    167. Letter from Citizens of the Western District of 
Pennsylvania to Michael Mukasey, Att'y Gen. of the United 
States, and Mary Beth Buchanan, U.S. Att'y for the Western 
Dist. of Pennsylvania (Apr. 16, 2008).
    168. Letter from H. Marshall Jarrett to Chairman John 
Conyers, Jr., H. Comm. on the Judiciary (May 5, 2008).
    169. The Division now enforces the Civil Rights Acts of 
1957, 1960, 1964, and 1968; the Voting Rights Act of 1965, as 
amended through 2006; the Equal Credit Opportunity Act; the 
Americans with Disabilities Act; the National Voter 
Registration Act; the Uniformed and Overseas Citizens Absentee 
Voting Act; the Voting Accessibility for the Elderly and 
Handicapped Act; and additional civil rights provisions 
contained in other laws and regulations. These laws prohibit 
discrimination in education, employment, credit, housing, 
public accommodations and facilities, voting, and certain 
federally funded and conducted programs. In addition, the 
Division enforces the Civil Rights of Institutionalized Persons 
Act of 1980, which authorizes the Attorney General to seek 
relief for persons confined in public institutions where 
conditions exist that deprive residents of their constitutional 
rights; the Freedom of Access to Clinic Entrances Act, the 
Police Misconduct Provision of the Violent Crime Control and 
Law Enforcement Act of 1994; and Section 102 of the Immigration 
Reform and Control Act of 1986 (IRCA), as amended, which 
prohibits discrimination on the basis of national origin and 
citizenship status as well as document abuse and retaliation 
under the Immigration and Nationality Act. The Division 
prosecutes actions under several criminal civil rights statutes 
which were designed to preserve personal liberties and safety. 
The Division is also responsible for coordinating the civil 
rights enforcement efforts of federal agencies whose programs 
are covered by Title VI of the Civil Rights Act of 1964, Title 
IX of the Education Amendments of 1972, and Section 504 of the 
Rehabilitation Act of 1973, as amended, and assists federal 
agencies in identifying and removing discriminatory provision 
in their policies and programs.
    170. See e.g., Rosenbaum, ``Justice Department Accused of 
Politics in Redistricting,'' N.Y. Times, May 31, 2002 at A14; 
McCaffrey, ``U.S. Backs Off Discrimination Cases; Justice 
Department Files Fewer Job, Housing Suits,'' Detroit Free 
Press, Dec, 11, 2003 at A15; Eggen, ``Civil Rights Focus Shift 
Roils Staff at Justice; Veterans Exit Division as Traditional 
Cases Decline,'' Wash. Post, Nov. 13, 2005, at A1.
    171. See American Civil Liberties Union, Race & Ethnicity 
In America: Turning A Blind Eye to Injustice 15, 22 (2007), 
available at http://www.aclu.org/pdfs/humanrights/
cerd_full_report.pdf.
    172. Id. at 22.
    173. Kengle, ``Why I Left the Civil Rights Division'', 
TPMMuckraker.com, Apr. 30, 2007, http://
tpmmuckraker.talkingpointsmemo.com/archives/003120.php.
    174. Joint Report of the U.S. Dep. of Justice Office of the 
Inspector General and Office of Professional Responsibility, 
``An Investigation of Allegations of Politicized Hiring and 
Other Improper Personnel Actions in the Civil Rights Division'' 
(released publically Jan. 13, 2009). Available at http://
www.usdoj.gov/oig/special/s0901/final.pdf.
    175. Id. at 45, 48.
    176. Id. at 47.
    177. Id. at 22.
    178. Id. at 24.
    179. Id. at 26.
    180. Id. at 65.
    181. Id. at 21.
    182. Id. at 50.
    183. Id.
    184. Eggen, ``Civil Rights Focus Shift Roils Staff At 
Justice; Veterans Exit Division as Traditional Cases Decline,'' 
Wash. Post, Nov. 13, 2005, at A1.
    185. Eggen, ``Staff Opinions Banned In Voting Rights Cases: 
Criticism of Justice Dept.'s Rights Division Grows,'' Wash. 
Post, Dec. 10, 2005, at A3.
    186. 42 U.S.C. 1973 (2008).
    187. Citizens' Commission on Civil Rights, ``The Erosion of 
Rights: Declining Civil Rights Enforcement Under the Bush 
Administration'' 32 (2007) (hereinafter ``Commission Report''). 
Available at http://www.americanprogress.org/issues/2007/03/
pdf/civil_rights_report.pdf.
    188. Protecting the Right to Vote: Election Deception and 
Irregularities in Recent Federal Elections: Hearing Before the 
H. Comm. on the Judiciary, 110th Cong. (2007) (statement of 
Ralph G. Neas, president and CEO, People For the American Way).
    189. Editorial, ``Honesty in Elections,'' N.Y. Times, Jan. 
31, 2007, http://www.nytimes.com/2007/01/31/opinion/
31wed1.html.
    190. Id.
    191. Protecting the Right to Vote: Election Deception and 
Irregularities in Recent Federal Elections: Hearing Before the 
H. Comm. on the Judiciary, 110th Cong. (2007) (statement of 
Sen. Barack Obama).
    192. Id. (statement of Sen. Barack Obama).
    193. Commission Report.
    194. Commission Report, Chapter 2.
    195. In 2005, the Justice Department precleared a Georgia 
law requiring voters to present government-issued picture 
identification in order to vote at the polls on Election Day. 
According to the Commission's report, the enactment represented 
one of the leading examples of legislation advocated by some 
political officials across the country to address alleged 
problems of fraudulent voting at the polls, but which would 
erect barriers to voting that particularly would harm minority 
voters. The Voting Section staff prepared a detailed memorandum 
recommending an objection. Included in the memo was a reference 
to an explicitly racial statement by a state legislator who was 
the sponsor of the legislation who ``said that if there are 
fewer black voters because of this bill, it will only be 
because there is less opportunity for fraud'' and added that 
``when black voters in her black precincts are not paid to 
vote, they do not go to the polls.'' Contrary to the standard 
operating procedures within the Department that existed for 
decades, the staff memorandum recommending an objection was not 
forwarded to the Assistant Attorney General for Civil Rights 
for consideration prior to him making the final preclearance 
decision. See Commission Report, 37.
    196. Under state law, the Mississippi legislature was 
responsible for enacting a new congressional redistricting 
plan, but failed to do so. A Mississippi state court then 
ordered a plan into effect that was favored by the state 
Democratic Party. In December 2001, the state of Mississippi 
submitted this plan to the Justice Department for review. In 
response to the state court drawn plan, the Republican Party 
brought a lawsuit in federal district court. The federal court 
held that it would order into effect its plan, drawn by the 
state Republican Party, if the state court plan was not 
precleared by the Department of Justice by February 27, 2002. 
The Voting Section staff attorneys quickly reviewed the state 
court plan within the 60 day period allotted by statute for 
review of Section 5 submissions. The staff attorneys concluded 
that the plan did not adversely affect minority voters and 
recommended that the Department grant preclearance. Political 
appointees in the Assistant Attorney General's office rejected 
the preclearance recommendation and extended the review period 
beyond the February 27 deadline by asking the State to provide 
additional information. As a result of this ``more 
information'' letter, the February 27th deadline passed without 
a final preclearance decision by the Justice Department on the 
state plan, and the federal court ordered its plan into effect. 
See Commission Report, 36.
    197. In 2003, the Justice Department precleared a 
controversial mid-decade congressional redistricting plan 
enacted by the State of Texas. The plan was drawn in 2003 after 
an initial post-2000 plan had been implemented by a federal 
district court in 2001 (following the Texas legislature's 
failure to adopt a new plan). The 2003 plan resulted in a gain 
of five congressional districts for Republicans. In order to 
accomplish this increase, the plan targeted several areas of 
minority voting strength, which had the effect of both limiting 
the opportunity of minority voters to elect candidates of their 
choice to Congress and their opportunity to exert a substantial 
influence in congressional elections. As a result, the career 
professional staff of the Voting Section concluded in a 
detailed, lengthy memorandum that the plan violated Section 5 
because it resulted in a retrogression of minority electoral 
opportunity. Nonetheless, the Department's political appointees 
precleared the plan. See Commission Report, 37.
    198. Eggen, ``Politics Alleged In Voting Cases Justice 
Officials Are Accused of Influence,'' Wash. Post, Jan. 23, 
2006, at A1.
    199. Id. at 36-37.
    200. Oversight Hearing on the Civil Rights Division of the 
Department of Justice: Hearing Before the H. Comm. on the 
Judiciary, 110th Cong. (2007) (statement of Joseph Rich, 
Director of the Fair Housing Community Development, Project 
Lawyers' Committee for Civil Rights Under Law).
    201. See Leadership Conference on Civil Rights Education 
Fund, The Bush Administration Takes Aim: Civil Rights Under 
Attack 4 (Apr. 2003), available at http://www.civilrights.org/
publications/reports/taking_aim/bush_takes_aim.pdf.
    202. Eggen, ``Criticism of Voting Law Was Overruled: 
Justice Dept. Backed Georgia Measure Despite Fears of 
Discrimination.'' Wash. Post, Nov. 17, 2005, at A1; Eggen, 
``Justice Staff Saw Texas Districting As Illegal: Voting Rights 
Finding On Map Pushed by DeLay Was Overruled,'' Wash. Post, 
Dec. 2, 2005, at A1.
    203. Protecting the Right to Vote: Election Deception and 
Irregularities in Recent Federal Elections: Hearing Before the 
H. Comm. on the Judiciary, 110th Cong. (2007) (statement of 
Wade Henderson, Leadership Conference on Civil Rights).
    204. Kiel, ``DoJ Vote Chief Argues Voter ID Laws 
Discriminate Against Whites,'' TPMMuckraker.com, Oct. 9, 2007, 
http://tpmmuckraker.talkingpointsmemo.com/archives/004414.php.
    205. Oversight Hearing on the Voting Section of the Civil 
Rights Division of the U.S. Department of Justice: Hearing 
Before the Subcomm. on the Const., Civil Rights, and Civil 
Liberties, 110th Cong. (2007) (statement of Rep. Artur Davis).
    206. Id. (statement of Toby Moore, Former Geographer/Social 
Science analyst, CRT Voting Section).
    207. Id. (statement of Laughlin McDonald, Director, 
American Civil Liberties Voting Rights Project). Because of 
Georgia's history of voting discrimination, the state is 
covered by Section 5 of the 1965 Voting Rights Act and was 
therefore required to get federal approval before implementing 
a photo identification requirement for voting. The ACLU's 
Voting Rights Project and several other voting rights advocates 
filed a lawsuit after the U.S. Department of Justice granted 
preclearance to the Georgia measure on August 26, 2005. In 
addition to its constitutional and legal claims, the lawsuit 
claimed that the ``stated purpose of Georgia's photo ID 
requirement--to deter voter fraud--was a pretext intended to 
conceal the true purpose of the amendment, which was, and is to 
suppress voting by the poor, the elderly, the infirm, African-
American, Hispanic and other minority voters by increasing the 
difficulty of voting. See American Civil Liberties, ``Voting 
Rights Advocates Challenge Georgia Photo ID Law in Federal 
Court,'' Sept. 19, 2005, available at http://www.aclu.org/
votingrights/gen/21247prs20050919.html.
    In ruling on the case, the U.S. District Court disagreed 
with the Department and sided with the ACLU and blocked the 
controversial new law. The District Court concluded that the 
plaintiffs would have a substantial likelihood of succeeding on 
their claims that the Photo ID requirement unduly burdened the 
right to vote and was tantamount to a poll tax. Further the 
Court found that the plaintiffs and their constituents would 
``suffer irreparable harm `` if the Court did not grant a 
preliminary injunction in the case. See Common Cause/Georgia v. 
Billups, 504 F. Supp. 2d (N.D. Ga. 2007).
    208. United States v. Ike Brown and Noxubee County, Not 
Reported in F. Supp. 2d, 2006 WL 3360746 (S.D. Miss.). The case 
Ms. Fernandes cites where the Department filed a lawsuit on 
behalf of white voters was United States v. Brown (2006). 
Interestingly, the court in Noxubee noted in its judgment that 
``the court does not doubt that similar discrimination against 
blacks continues to occur throughout this state, perhaps 
routinely. And it may be true, though the court makes no 
judgment about this, that the Justice Department has not been 
responsive, or fully responsive, to complaints by black voters. 
But, the politics of the decision to prosecute this case, while 
foregoing intervention in other cases cannot be a factor in the 
court's decision.''
    209. Letter from Sheldon T. Bradshaw, Principal Deputy 
Assistant Att'y Gen. of the United States, Civil Rights 
Division, to Janice K. Brewer, Arizona Sec'y of State (Apr. 15, 
2005).
    210. Letter from Joseph D. Rich, Former Voting Section 
Chief, Civil Rights Division, U.S. Department of Justice, to 
the Chairwoman Dianne Feinstein, S. Comm. on Rules and 
Administration (June. 18, 2007).
    211. Letter from R. Alexander Acosta, Assistant Att'y Gen., 
Civil Rights Division, U.S. Department of Justice, to Susan J. 
Dlott, Judge of the United States District Court for the 
Southern District of Ohio (Oct. 29, 2004).
    212. 42 U.S.C. 1973(a) (2008).
    213. DNC v RNC, C.A. No. 86-3972, U.S. District Court for 
the District of New Jersey (July 29, 1987). Four days before 
the 2004 election, the Justice Department's Civil Rights 
Division Chief sent an unusual letter to U.S. District Judge 
Susan Dlott of Cincinnati who was weighing whether to let 
Republicans challenge the credentials of 23,000 mostly African-
American voters. It is unusual for the Department of Justice to 
participate in pre-election eve lawsuits, particularly when it 
has not been invited to do so. The Ohio case was triggered by 
allegations that Republicans had sent a mass mailing to mostly 
Democratic-leaning minorities and used undeliverable letters to 
compile a list of voters potentially vulnerable to eligibility 
challenges. In his letter to Judge Dlott, Assistant Attorney 
General Alex Acosta argued that it would ``undermine'' the 
enforcement of state and federal election laws if citizens 
could not challenge voters' credentials.
    214. Oversight Hearing on Voter Suppression: Hearing Before 
the Subcomm. on the Const., Civil Rights, and Civil Liberties 
of the H. Comm. on the Judiciary, 110th Cong. (2008) (statement 
of Hilary Shelton, Director, Washington Bureau of the NAACP).
    215. Id. (statement of Lorraine C. Minnite, Barnard 
College).
    216. Id. (statement of Lorraine C. Minnite, Barnard 
College).
    217. Id. (statement of Lorraine C. Minnite, Barnard 
College).
    218. Letter from J. Gerald Hebert, The Campaign Legal 
Center, to Alice S. Fisher, Assistant Att'y Gen. of the United 
States (Aug. 23, 2007) (available at http://
www.campaignlegalcenter.org/press_2849.html).
    219. Letter from Chairman John Conyers, Jr., H. Comm. on 
the Judiciary, to Brian A. Benczkowski, Principal Deputy 
Assistant Att'y Gen. of the United States (May 7, 2008).
    220. Opinion No. 2008 DNH 042, United States v. Tobin, Crim 
No. 04-cr-216-1-SM (Feb. 21, 2008). The defendant's convictions 
on the telephone harassment charges were reversed on appeal due 
to erroneous jury instructions. See United States v. Tobin, 480 
F. 3d 53 (1st Cir. 2007).
    221. Joint Hearing on Allegations of Selective Prosecution 
Part II: The Erosion of Public Confidence in Our Federal 
Justice System: Hearing Before the SubComm. on Commercial and 
Administrative Law and the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 
(2008) (statement of Paul Twomey).
    222. Id. (statement of Paul Twomey).
    223. Id. (statement of Paul Twomey).
    224. Id. (statement of Allen Raymond).
    225. See Manjoo, ``Sproul Play,'' Salon, Oct. 21, 2004, 
http://dir.salon.com/story/news/feature/2004/10/21/sproul/.
    226. Knapp, ``Investigation Into Trashed Voter 
Registrations,'' KLAS TV News, Oct. 13, 2004, http://www.klas-
tv.com/global/story.asp?s=2421595; Ritter, ``Nevada Judge 
Declines to Reopen Voter Registration in Vegas Area,'' Las 
Vegas Sun, Oct. 15, 2004, http://www.lasvegassun.com/sunbin/
stories/text/2004/oct/15/10150497.html.
    227. Knapp, ``Investigation Into Trashed Voter 
Registrations,'' KLAS TV News, Oct. 13, 2004, http://www.klas-
tv.com/global/story.asp?s=2421595.
    228. Letter from Holly McCullough, Carnegie Library of 
Pittsburgh, to Sam Sokol, Oversight Counsel, H. Comm. on the 
Judiciary (Apr. 29, 2008).
    229. Id.; Despite this serious evidence of potentially 
criminal violations of federal election laws, no charges were 
ever brought against any Sproul employee or entity. In fact, 
the firm head Mr. Nathan Sproul continues as a Republican 
political operative in good standing and was most recently 
employed by the McCain-Palin 2008 presidential campaign; Stein, 
``McCain Employing GOP Operative Accused Of Voter Registration 
Fraud,'' Huffington Post, Oct. 20, 2008, available at http://
www.huffingtonpost.com/2008/10/20/mccain-employing-gop-
oper_n_136254.html?page=39.
    230. On February 26, 2008, the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties met for the 
purpose of considering whether to authorize the Chairman of the 
Committee to issue a subpoena to for Ohio Secretary of State J. 
Kenneth Blackwell.
    231. ``Ken Blackwell,'' Wikipedia, Jan. 5, 2008, http://
en.wikipedia.org/wiki/Ken_Blackwell.
    232. Status Report of the House Committee on the Judiciary 
Democratic Staff, ``Preserving Democracy: What Went Wrong in 
Ohio?,'' H. Comm. on the Judiciary, 109th Cong. (Jan. 2005). 
Available at http://www.openelections.org/lib/downloads/
references/house_judiciary/final_status_report.pdf.
    233. Lessons Learned from the 2004 Presidential Election: 
Hearing Before the H. Comm. on the Judiciary, 110th Cong. 
(2008) (statement of Rep. Debbie Wasserman Schultz).
    234. Id. (statement of Gilda Daniels, University of 
Baltimore Law School).
    235. Id. (statement of J. Gerald Hebert, The Campaign Legal 
Center).
    236. Federal, State and Local Efforts to Prepare for the 
2008 Election: Joint Hearing Before Subcomm. on the Const., 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary and the Subcomm. on Elections of the H. Committee on 
House Administration, 110th Cong. (2008) (statement of Paul 
Hancock).
    237. See H. Rep. No. 110-423, at 27-27 (2007).
    238. Id. 31-32. Mr. Scholzman later provided apparently 
misleading testimony about these ACORN indictments before the 
Senate Judiciary Committee, which he was later compelled to 
formally ``clarify'' in correspondence with that Committee. Id. 
at 32.
    239. Letter from Chairman John Conyers, Jr., H. Comm. on 
the Judiciary, to the Michael Mukasey, Att'y Gen. of the United 
States, and Robert Mueller, Director of the Federal Bureau of 
Investigation (Oct. 16, 2008).
    240. Letter from Chairman John Conyers, Jr., Rep. Jerrold 
Nadler, and Rep. Linda Sanchez of the H. Comm. on the Judiciary 
to the Michael Mukasey, Att'y Gen. of the United States, and 
Robert Mueller, Director of the Federal Bureau of Investigation 
(Oct. 20, 2008).
    241. Letter from Keith Nelson, Principle Deputy Assistant 
Att'y Gen. of the United States, to Chairman John Conyers, Jr., 
H. Comm. on the Judiciary (Oct. 28, 2008).
    242. Mezler, ``Lose Your House, Lose Your Vote,'' Michigan 
Messenger, Sept. 10, 2008.
    243. Letter from Chairman John Conyers, Jr., Rep. Jerrold 
Nadler, and Rep. Bobby Scott of the H. Comm. on the Judiciary 
to Michael Mukasey, Att'y Gen. of the United States (Oct. 29, 
2008).
    244. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 332 (Sept. 2008); 
H. Rep. No. 110-423, at 24-28 (2007).
    245. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 331-32 (Sept. 
2008).
    246. H. Rep. No. 110-423, at 31-32 (2007).
    247. Id. at 29.
    248. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 332 (Sept. 2008); 
H. Rep. No. 110-423, at 36-37 (2007).
    249. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 2-4, 153-54 (Sept. 
2008); H. Rep. No. 110-423, at 43-54 (2007).
    250. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 3, 154 (Sept. 
2008).
    251. Letter from Robert Kelner to Chairman John Conyers, 
Jr, H. Comm. on the Judiciary (July 31, 2007).
    252. Letter from Keith Nelson, Principal Deputy Assistant 
Att'y Gen., to Chairman John Conyers, Jr, H. Comm. on the 
Judiciary (Nov. 14, 2008).
    253. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 199-200 (Sept. 
2008).
    254. H. Rep. No. 110-423, at 26-32 (2007).
    255. Id. at 26-32.
    256. Id. at 36; Joint Report of the U.S. Dept. of Justice 
Office of the Inspector General and U.S. Dept. of Justice 
Office of the Professional Responsibility, ``An Investigation 
into the Removal of Nine U.S. Attorneys in 2006,'' at 341-42 
(Sept. 2008). at 341-42.
    257. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 48-49 (Sept. 
2008).
    258. H. Rep. No. 110-423, at 36 (2007).
    259. Id. at 36.
    260. Id. at 36-37. One of the fired U.S. Attorneys, John 
McKay of Washington, wrote this after watching then-Attorney 
General Gonzales' testimony before the Senate Judiciary 
Committee: In my case, I believe that silence in the face of a 
lie is a form of complicity; despite my initial belief that it 
was my duty to leave office quietly, I could not be a part of 
Alberto Gonzales' false and misleading testimony to the 
Senate.'' See McKay, ``Trainwreck at the Justice Department: An 
Eyewitness Account,'' Seattle U. L. Rev., 265, 271 (2008), 
available at http://ssrn.com/abstract=1028545.
    261. H. Rep. No. 110-423, at 37 (2007).
    262. Id. at 37; Joint Report of the U.S. Dept. of Justice 
Office of the Inspector General and U.S. Dept. of Justice 
Office of the Professional Responsibility, ``An Investigation 
into the Removal of Nine U.S. Attorneys in 2006,'' at 342-44 
(Sept. 2008).
    263. Compare Joint Report of the U.S. Dep. of Justice 
Office of Professional Responsibility and Office of the 
Inspector General, ``An Investigation of Allegations of 
Politicized Hiring by Monica Goodling and Other Staff in the 
Office of the Attorney General'' (July 2008) with the Testimony 
by Attorney General Alberto Gonzales during Oversight Hearing 
on the Department of Justice: Hearing Before the H. Comm. on 
the Judiciary, 110th Cong. 61 n.43 (2007) (statement by Alberto 
Gonzales, Att'y Gen. of the United States).
    264. H. Rep. No. 110-423, at 38 (2007); Joint Report of the 
U.S. Dept. of Justice Office of the Inspector General and U.S. 
Dept. of Justice Office of the Professional Responsibility, 
``An Investigation into the Removal of Nine U.S. Attorneys in 
2006,'' at 345-46 (Sept. 2008).
    265. H. Rep. No. 110-423, at 52-53 (2007); Letter of Paul 
Clement, Acting Att'y Gen. of the United States, to the 
President, at 2 (June 27, 2007).
    266. H. Rep. No. 110-423, at 38 (2007); Joint Report of the 
U.S. Dept. of Justice Office of the Inspector General and U.S. 
Dept. of Justice Office of the Professional Responsibility, 
``An Investigation into the Removal of Nine U.S. Attorneys in 
2006,'' at 34-35 (Sept. 2008).
    267. H. Rep. No. 110-423, at 39 (2007).
    268. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 1 (Sept. 2008).
    269. H. Rep. No. 110-423, at 39-40 (2007); Joint Report of 
the U.S. Dept. of Justice Office of the Inspector General and 
U.S. Dept. of Justice Office of the Professional 
Responsibility, ``An Investigation into the Removal of Nine 
U.S. Attorneys in 2006,'' at 325, 346-50 (Sept. 2008).
    270. H. Rep. No. 110-423, at 43-51 (2007).
    271. Id. at 25 n.8; Joint Report of the U.S. Dept. of 
Justice Office of the Inspector General and U.S. Dept. of 
Justice Office of the Professional Responsibility, ``An 
Investigation into the Removal of Nine U.S. Attorneys in 
2006,'' at 198 (Sept. 2008).
    272. H. Rep. No. 110-423, at 39, 349 (2007).
    273. Id. at 347.
    274. Id. at 40-41.
    275. Id. at 40-41.
    276. Johnson, ``Federal Prosecutor Is Making Inquiries in 
the Investigation of the Dismissal of U.S. Attorneys,'' Wash. 
Post, Dec. 3, 2008, at A15; Jordan, ``Ex-Justice Official May 
Face Grand Jury,'' Associated Press, June 17, 2008, available 
at http://findarticles.com/p/articles/mi_qn4188/is_20080617/
ai_n26688038.
    277. H. Rep. No. 110-423, at 52-54 (2007).
    278. Id. at 52-54.
    279. Id. at 52-54.
    280. Id. at 52-54.
    281. Id. at 52-54.
    282. Joint Report of the U.S. Dept. of Justice Office of 
the Inspector General and U.S. Dept. of Justice Office of the 
Professional Responsibility, ``An Investigation into the 
Removal of Nine U.S. Attorneys in 2006,'' at 2-4, 153-54 (Sept. 
2008); H. Rep. No. 110-423, at 43-54 (2007).
    283. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring in the Department of Justice Honors Program and the 
Summer Law Intern Program'' (June 2008).
    284. Id. at 98.
    285. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring by Monica Goodling and Other Staff in the Office of the 
Attorney General'' (July 2008).
    286. Id. at 135.
    287. Id. at 136.
    288. Id. at 137.
    289. The Department did make United States Attorney 
Biskupic and certain documents available regarding the Georgia 
Thompson matter, and this information dispelled many, although 
not all, concerns about the case. See Majority Staff Report 
Prepared for Chairman John Conyers, Jr., ``Allegations of 
Selective Prosecution in Our Federal Criminal Justice System,'' 
H. Comm. on the Judiciary, 110th Cong. (Apr. 2008), available 
at http://judiciary.house.gov/hearings/pdf/SelPros/
Report080417.pdf.
    290. The Voting Section chief at the time, John Tanner, was 
not a political appointee, but he played a pivotal role in the 
Department's decision to approve the Georgia voter ID, 
overruling his own staff. Tanner has since been replaced.
    291. See ``II. Politicization of the Civil Rights 
Division's Voting Section'' within this section.
    292. Commission Report, 36-37.
    293. Kiel, ``DoJ Vote Chief Argues Voter ID Laws 
Discriminate Against Whites,'' TPMMuckraker.com, Oct. 9, 2007, 
http://tpmmuckraker.talkingpointsmemo.com/archives/004414.php.
    294. Eggen, ``Staff Opinions Banned In Voting Rights Cases: 
Criticism of Justice Dept.'s Rights Division Grows,'' Wash. 
Post, Dec. 10, 2005, at A3.
    295. Oversight Hearing on the Voting Section of the Civil 
Rights Division of the U.S. Department of Justice: Hearing 
Before the Subcomm. on the Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong. (2007) 
(statement of Julie Fernandes, Leadership Conference for Civil 
Rights). Available at http://judiciary.house.gov/hearings/pdf/
Fernandes071030.pdf.
    296. See ``II. Politicization of the Civil Rights 
Division's Voting Section'' within this section.
    297. See ``II. Politicization of the Civil Rights 
Division's Voting Section'' within this section.
    298. Oversight Hearing on the Civil Rights Division of the 
Department of Justice: Hearing Before the Subcomm. on the 
Const., Civil Rights, and Civil Liberties of the H. Comm. on 
the Judiciary, 110th Cong. 59 (statement of Joseph D. Rich, 
Director, Fair Housing Community Development Project, Lawyers' 
Committee for Civil Rights Under Law).
    299. Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004).
    300. Interview by Tim Russert, NBC News, with Vice 
President Cheney at Camp David, Md, (NBC television broadcast 
Sept. 16, 2001), available at http://www.whitehouse.gov/
vicepresident/news-speeches/speeches/vp20010916.html (emphasis 
added).
    301. This unclassified memorandum has never been publicly 
released, despite repeated requests by Congress, although 
Committee staff have been given limited access to the 
memorandum at Department premises with no ability to make 
copies or to take detailed notes. From that limited review, it 
is clear that this is a very troubling memorandum which should 
immediately be released.
    302. See extended discussion of this issue in the Preface.
    303. This ``October 2001 Domestic War Power Memorandum'' is 
referenced in Yoo's March 14, 2003 Torture Memorandum in the 
following context: ``[O]ur Office [the Office of Legal Counsel] 
recently concluded that the Fourth Amendment had no application 
to domestic military operations. See Memorandum for Alberto R. 
Gonzales, Counsel to the President, and William J. Haynes, II, 
General Counsel, Department of Defense, from John C. Yoo, 
Deputy Assistant Attorney General, and Robert J. Delahunty, 
Special Counsel, Re: Authority for Use of Military Force to 
Combat Terrorist Activities Within the United States at 25 (Oct 
23, 2001),'' cited in Memorandum for William J. Haynes, II, 
General Counsel, Department of Defense, from Department of 
Justice, OLC, Re: Military Interrogation of Alien Unlawful 
Combatants Held Outside the United States, Mar. 14, 2003.
    304. Frontline: Cheney's Law (PBS television broadcast), 
available at http://www.pbs.org/wgbh/pages/frontline/cheney/
view/main.html (transcript available at http://www.pbs.org/
wgbh/pages/frontline/cheney/etc/script.html) (emphasis added).
    305. Memorandum for Alberto R. Gonzales, Counsel to the 
President, Legality of the Use of Military Commissions to Try 
Terrorists, from Patrick F. Philbin, Deputy Assistant Attorney 
General (Nov. 6, 2001) (hereinafter referred to as the 
``November 6, 2001 Military Commissions Memorandum''), at 1.
    10 U.S.C. Sec. 821 at that time provided:

    Sec. 821. Art. 21. Jurisdiction of courts-martial not 
exclusive

    The provisions of this chapter conferring jurisdiction upon 
courts-martial do not deprive military commissions, provost 
courts, or other military tribunals of concurrent jurisdiction 
with respect to offenders or offenses that by statute or by the 
law of war may be tried by military commissions, provost 
courts, or other military tribunals.

The Military Commissions Act of 2006, Pub. L. No. 109-366, 
revised section 821 to exempt any military commissions created 
under that Act.
    306. November 6, 2001 Military Commissions Memorandum at 3.
    307. Id. at 6.
    308. Id. at 5.
    309. Id. at 15.
    310. Id. at 16-19.
    311. ``Military Order--Detention, Treatment and Trial of 
Certain Non-Citizens in the War Against Terrorism.'' Executive 
Order dated November 13, 2001, 66 Fed. Reg. 57833 (Nov. 16, 
2001). A copy of this Order may also be found at http://
www.whitehouse.gov/news/releases/2001/11/20011113-27.html.
    312. See, e.g., Savage, Takeover, The Return of the 
Imperial Presidency and the Subversion of American Democracy 
134 et seq. (Little Brown & Co., 2007); Frontline: Cheney's Law 
(PBS television broadcast), available at http://www.pbs.org/
wgbh/pages/frontline/cheney/view/main.html (transcript 
available at http://www.pbs.org/wgbh/pages/frontline/cheney/
etc/script.html).
    313. Gellman and Becker, ``Angler--The Cheney Vice 
Presidency,'' Washington Post, June 24, 2007, at A1, available 
at
http://blog.washingtonpost.com/cheney/chapters/chapter_1/ 
(emphasis added).
    314. According to the Frontline piece:

    Barton Gellman [Washington Post reporter]: The news breaks 
on cable television. Colin Powell happens to be watching. He's 
astonished by what he's just seen. He picks up the phone to 
Prosper and he says, ``What the hell just happened?''
    Amb. Pierre-Richard Prosper: We did have a conversation, 
and I let him know I was in the dark.

Frontline: Cheney's Law (PBS television broadcast), available 
at http://www.pbs.org/wgbh/pages/frontline/cheney/view/
main.html (transcript available at http://www.pbs.org/wgbh/
pages/frontline/cheney/etc/script.html).
    315. Gellman and Becker, ``Angler--The Cheney Vice 
Presidency,'' Washington Post, June 24, 2007, at A1, available 
at http://blog.washingtonpost.com/cheney/chapters/chapter_1/ 
(emphasis added).
    316. ``Human Rights Watch, ``Fact Sheet: Past U.S. 
Criticism of Military Tribunals'' (2001), available at http://
www.hrw.org/press/2001/11/tribunals1128.htm (emphasis added).
    317. Safire, ``Seizing Dictatorial Power,'' N.Y. Times, 
Nov. 15, 2001, available at http://query.nytimes.com/gst/
fullpage.html?res=9802E6DF163BF936A25752C1A9679C8B63 (emphasis 
added).
    318. Department of Defense News Briefing, Secretary of 
Defense Donald Rumsfeld and Gen. Richard Myers, Chairman, Joint 
Chiefs of Staff, Dec. 27, 2001, at http://
www.globalsecurity.org/military/library/news/2001/12/mil-
011227-dod01.htm.
    319. Memorandum from John Yoo, Deputy Assistant Attorney 
General, and Patrick F. Philbin, Deputy Assistant Attorney 
General, Possible Habeas Jurisdiction Over Aliens Held in 
Guantanamo Bay, to William J. Haynes, General Counsel, 
Department of Defense (Dec.28, 2001), at 9.
    320. President Bush stated:

    And yesterday, the Secretary of Defense went down to 
Guantanamo Bay with United States senators from both political 
parties. The senators got to see the circumstances in which 
these detainees were being held. They--I don't want to put 
words in their mouth, but according to the Secretary of 
Defense--I'll let him puts words in their mouth--they felt 
like, one, that our troops were really valiant in their efforts 
to make sure that these killers--these are killers--were held 
in such a way that they were safe. I noticed one of our troops 
last night was commenting that they are receiving very good 
medical care. But I'll make my decision about--on how to 
legally interpret the situation here pretty soon.

           *       *       *       *       *       *       *

    These are killers. These are terrorists. They know no 
countries. The only thing they know about countries is when 
they find a country that's been weakened and they want to 
occupy it like a parasite.

President George W. Bush, President Meets With Afghan Interim 
Authority Chairman, Remarks by the President and Chairman of 
the Afghan Interim Authority Hamid Karzai, Jan. 28, 2002, 
available at http://www.whitehouse.gov/news/releases/2002/01/
20020128-13.html (emphasis added). In that same set of remarks, 
President Bush went so far as to state that the detainees would 
be ``well-treated.'' In his State of the Union Address a few 
days prior to the cited statements, President Bush stated: 
``Terrorists who once occupied Afghanistan now occupy cells at 
Guantanamo Bay.'' President George W. Bush, State of the Union 
Address, Jan. 29, 2002, transcript available at http://
www.whitehouse.gov/news/releases/2002/01/20020129-11.html.
    321. Interview by Brit Hume with Vice President Cheney in 
Washington, DC, (Fox News television broadcast Jan. 27, 2002), 
available at http://www.foxnews.com/story/0,2933,44082,00.html 
(emphasis added).
    322. Bush Meets Karzai on U.S. Soil, Lateline Broadcast, 
(Australian Broadcasting Corporation television broadcast Jan. 
29, 2002) available at http://www.abc.net.au/lateline/stories/
s469211.htm (emphasis added).
    323. Smith, ``Rumsfeld Visits, Thanks U.S. Troops at Camp 
X-Ray in Cuba,'' American Forces Press Service News Articles, 
Jan. 27, 2002, available at http://www.defenselink.mil/news/
newsarticle.aspx?id=43817 (emphasis added). Rumsfeld voiced 
similar words in 2005: ``If you think of the people down there, 
these are people all of whom were captured on a battlefield. 
They're terrorists, trainers, bomb makers, recruiters, 
financiers, UBL's body guards, would-be suicide bombers, 
probably the 20th hijacker, 9/11 hijacker.'' Interview by Jerry 
Agar KMBZ News Radio, with Secretary Rumsfeld, (KMBZ radio 
broadcast June 27, 2005), available at http://
www.defenselink.mil/transcripts/transcript.aspx?
transcriptid=3246.
    324. Secretary Rumsfeld Briefs Reporters (CNN television 
broadcast Jan. 11, 2002), available at http://
transcripts.cnn.com/TRANSCRIPTS/0201/11/se.02.html. There are 
other examples as well. In November 2004, Press Secretary Scott 
McClellan stated: ``You know, these are enemy combatants that 
were picked up on the battlefield who are being detained at 
Guantanamo Bay. They are enemy combatants who were seeking to 
do harm to America, or plotting to carry out attacks against 
Americans.'' Press Gaggle by Scott McClellan, Nov. 30, 2004, 
available at http://www.whitehouse.gov/news/releases/2004/11/
20041130-1.html. In December of 2004, McClellan similarly 
stated: ``The President designated individuals again Guantanamo 
as unlawful enemy combatants who do not share--they are people 
who do not share our values, who do not respect the rule of 
law, and who have no regard for innocent--[Interruption]. . . * 
* * But these are people who have no regard for innocent 
civilian life[.]'' Press Briefing by Scott McClellan,'' Dec. 
10, 2004, available at http://www.whitehouse.gov/news/releases/
2004/12/20041210-9.html.
    325. ``List of Individuals Detained by the Department of 
Defense at Guantanamo Bay, Cuba from January 2002 through May 
15, 2006,'' (May 15, 2006), available at http://www.dod.mil/
pubs/foi/detainees/detaineesFOIArelease15May2006.pdf.
    326. These numbers are also consistent with those reported 
in The Economist, which reported in February of 2008: ``Of the 
778 prisoners kept in Guantanamo, fewer than 300 now remain: 
most of the rest have been repatriated, after long detention, 
without facing charges.'' ``Seeking the Death Penalty,'' The 
Economist, Feb. 12, 2008, available at http://
www.economist.com/displayStory.cfm?
story_id=10677748&fsrc=RSS.
    327.See ``Guantanamo Bay Detainees,'' available at http://
www.globalsecurity.org/military/facility/guantanamo-
bay_detainees.
htm.
    In a December 2007 press release announcing the transfer of 
ten detainees to Saudi Arabia, the Department of Defense 
stated: ``Since 2002, approximately 500 detainees have departed 
Guantanamo for other countries including Albania, Afghanistan, 
Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, 
France, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, 
Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Spain, 
Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom and 
Yemen.'' Press Release, Dept. of Defense, Detainee Transfer 
Announced, (Dec. 28, 2007), available at http://
www.defenselink.mil/Releases/Release.
aspx?ReleaseID=11591. Similarly, in its October 2007 brief in 
the Boumediene case, the Government represented:

    In addition to the CSRT review process, the Department of 
Defense also conducts an annual administrative examination of 
whether it is appropriate to release or repatriate an enemy 
combatant. The 328 administrative reviews conducted in 2006 
resulted in determinations that 55 detainees (roughly 17%) 
should no longer be detained at Guantanamo Bay. (citation 
omitted). Since 2002, about 390 detainees have been transferred 
or released through this or other processes. See ibid. Today, 
approximately 340 detainees remain at Guantanamo Bay.

``Brief for Respondents [United States],'' Boumediene v. United 
States, Sup. Ct., Nos. 06-1195 and 06-1196 (Oct. 2007) at 4, 
available at http://www.abanet.org/publiced/preview/briefs/
pdfs/070-08/06-1195_Respondent.pdf.
    328. Selsky, `` `Vicious Killers' From Guantanamo Routinely 
Freed Elsewhere,'' Associated Press, Dec. 15, 2006, available 
at http://www.usatoday.com/news/world/2006_12_15_gitmo-
freed_x.htm.
    329. Id.
    330. Interview of the Vice President by Wolf Blitzer, (CNN 
television broadcast June 23, 2005), available at http://
www.whitehouse.gov/news/releases/2005/06/20050623_8.html.
    331. See, e.g., Center for Constitutional Rights, ``Report 
on Torture and Cruel, Inhuman, and Degrading Treatment of 
Prisoners at Guantanamo Bay, Cuba'' (2006), available at http:/
/ccrjustice.org/files/Report_ReportOnTorture.pdf.
    332. Interview by Bill Bennett with Vice President Cheney, 
``Morning in America,'' ABC television broadcast, Jan. 13, 
2009, http://www6.lexisnexis.com/publisher/EndUser? Action=User
DisplayFullDocument&orgId=574&topicId=25188&docId=l: 
910896504&start=5.
    333. El Gharani v. Bush, Civ. Case No. 05-429 (RJL) Mem. 
Op. at 6-7 (D.C. D.C. Jan 14, 2009) (emphasis in original).
    334. Glaberson, ``Rulings of Improper Detentions as the 
Bush Era Closes,'' N.Y. Times, Jan. 19, 2009, http://
www.nytimes.com/2009/01/19/washington/
19gitmo.html?partner=rss&emc=rss&pagewanted=all.
    335. Hamdi v. Rumsfeld, 296 F.3d 278, 282 (4th Cir. 2002).
    336. Id. (emphasis added).
    337. ``Declaration of Michael H. Mobbs, Special Advisor to 
the Under Secretary of Defense for Policy,'' filed in Hamdi v. 
Rumsfeld, No. 2:02CV439 (E.D. Va), reprinted at http://
www.pbs.org/wgbh/pages/frontline/shows/sleeper/tools/
mobbshamdi.html.
    338. Hamdi v. Rumsfeld, 243 F.Supp. 2d 527 (E.D. Va. 2002).
    339. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
    340. Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003) 
(denying rehearing en banc).
    341. See Brief for Petitioner [Hamdi], Hamdi v. Rumsfeld, 
Sup. Ct., No. 03-6696 (Feb. 23, 2004), reported at 2004 WL 
378715 at *4 at fn. 2 (``Hamdi has been forbidden any contact 
with fellow prisoners and the outside world, with the exception 
of a visit by a representative of the International Red Cross 
and the infrequent exchange of censored letters with his 
family. On February 3, 2004, Hamdi was allowed to meet counsel 
for the first time. Restrictions imposed by the military on the 
conditions under which this meeting was permitted did not allow 
confidential communications.''). See also Hamdi v. Rumsfeld, 
542 U.S. 507, 539 (2004) (``Hamdi asks us to hold that the 
Fourth Circuit also erred by denying him immediate access to 
counsel upon his detention and by disposing of the case without 
permitting him to meet with an attorney. Brief for Petitioners 
19. Since our grant of certiorari in this case, Hamdi has been 
appointed counsel, with whom he has met for consultation 
purposes on several occasions, and with whom he is now being 
granted unmonitored meetings. He unquestionably has the right 
to access to counsel in connection with the proceedings on 
remand. No further consideration of this issue is necessary at 
this stage of the case.'').
    342. Addressing the Government's arguments as to the 
president's unreviewable powers, Justice O'Connor wrote: ``The 
Government maintains that no explicit congressional 
authorization is required, because the Executive possesses 
plenary authority to detain pursuant to Article II of the 
Constitution. We do not reach the question whether Article II 
provides such authority, however, because we agree with the 
Government's alternative position, that Congress has in fact 
authorized Hamdi's detention, through the AUMF.'' Id. at 516-
17.
    343. The significance of the fact that Mr. Hamdi was seized 
in Afghanistan was underscored by Justice O'Connor's response 
to Justice Scalia's dissent. Justice Scalia stated that Mr. 
Hamdi's petition for habeas corpus should have been granted, in 
response to which Justice O'Connor stressed that Mr. Hamdi was 
seized in a fighting zone:

    Further, Justice Scalia largely ignores the context of this 
case: a United States citizen captured in a foreign combat 
zone. Justice Scalia refers to only one case involving this 
factual scenario--a case in which a United States citizen-
prisoner of war (a member of the Italian army) from World War 
II was seized on the battlefield in Sicily and then held in the 
United States. The court in that case held that the military 
detention of that United States citizen was lawful .  .  .
    [J]ustice Scalia can point to no case or other authority 
for the proposition that those captured on a foreign 
battlefield (whether detained there or in U.S. territory) 
cannot be detained outside the criminal process.

Id. at 523-24. There is at least some irony in the fact that 
the AUMF, which the Administration had to a great extent 
treated either as irrelevant or as a potential limitation on 
the president's authority, was relied upon by the plurality as 
the source of the President's power to designate an American 
citizen as an enemy combatant.
    344. Id. at 521 (emphasis added).
    345. The four-Justice plurality (Justice O'Connor, writing 
for herself, Chief Justice Rehnquist, and Justices Breyer and 
Kennedy) was joined by Justices Souter and Ginsburg, for the 
part of the decision requiring that Mr. Hamdi be given a 
meaningful opportunity to challenge his detention.
    346. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004). The 
plurality opinion was authored by Justice O'Connor, and joined 
by Chief Justice Rehnquist, and Justices Kennedy and Breyer.
    347. Id. at 535 (citations omitted).
    348. Id. at 535-37.
    349. Id. at 573 (Scalia, J., dissenting) (``It follows from 
what I have said that Hamdi is entitled to a habeas decree 
requiring his release unless (1) criminal proceedings are 
promptly brought, or (2) Congress has suspended the writ of 
habeas corpus. A suspension of the writ could, of course, lay 
down conditions for continued detention, similar to those that 
today's opinion prescribes under the Due Process Clause. Cf. 
Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of 
difference between the people's representatives' determining 
the need for that suspension (and prescribing the conditions 
for it), and this Court's doing so.'')
    350. Id. at 573 (Scalia, J., dissenting).
    351. Id. at 539 (Ginsburg, J., and Souter, J., concurring).
    352. Hamdi v. Rumsfeld, ``Agreement,'' Sept. 17, 2004, 
available at http://news.findlaw.com/wp/docs/hamdi/
91704stlagrmnt.html.
    353. Id. at p. 2, para. 3.
    354. The second paragraph of the agreement committed the 
Government to agreeing to transport Mr. Hamdi ``unhooded and in 
civilian clothes.'' Id. at 2, para. 2.
    355. It is difficult to imagine that Mr. Hamdi would not 
have accepted these precise terms (involving his release to 
Saudi Arabia conditioned on his promise not to commit new 
terrorist acts) years earlier, so it is difficult to conceive 
of any reason for the Government's accession to these terms in 
September 2004 other than as a means of avoiding the need to 
comply with the decision of the Supreme Court and provide 
evidence to support his detention. An even more disturbing 
possibility is that the Administration had been so determined 
to see its legal position vindicated in the courts, and so 
concerned about ``precedent'' or appearing to yield in the face 
of litigation, that it had fought for its right to detain Mr. 
Hamdi--a United States citizen--even when the Government had 
reason to conclude that he posed no significant danger.
    356. A November 13, 2001, Presidential Order announced that 
certain individuals seized as part of the war on terror would 
be detained by the military and be subject to trial by military 
commissions. ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' 66 Fed. Reg. 57833 
(hereinafter ``November 13, 2001 Detention Order'').
    357. The procedural background is set forth in Hamdan v. 
Rumsfeld, 344 F.Supp. 2d 152, 155-56 (D.D.C. 2004). Mr. Hamdan 
was charged with conspiracy to commit the following offenses: 
``attacking civilians; attacking civilian objects; murder by an 
unprivileged belligerent; destruction of property by an 
unprivileged belligerent; and terrorism.'' Dept. of Defense, 
Military Commission List of Charges for Salim Ahmed Hamdan, 
available at http://www.defenselink.mil/news/Jul2004/
d20040714hcc.pdf.
    358. Hamdan v. Rumsfeld, 344 F.Supp. 2d 152 (D.D.C. 2004).
    359. Id. at 158. The trial judge also quoted from 
Application of Yamashita, 327 U.S. 1 (1946):

    Congress, in the exercise of its constitutional power to 
define and punish offenses against the law of nations, of which 
the law of war is a part, has recognized the `military 
commission' appointed by military command * * * as an 
appropriate tribunal for the trial and punishment of offenses 
against the law of war.

Id. at 16 (emphasis added by trial court).
    360. Id. at 158 (emphasis added; citation omitted).
    361. Id. at 168. In addition, if Mr. Hamdan were a prisoner 
of war, he could not be tried by a military commission except 
for violations of the laws of war. The trial court found that 
there needed to be procedures for determining the status of Mr. 
Hamdan.
    362. See ``Reply Brief for Appellants [The United 
States],'' Hamdan v. Rumsfeld, Ct. App., D.C. Cir., No. 04-5393 
(Jan. 10, 2005), reported at 2005 WL 189857 at ** 1-10.
    363. See ``Reply Brief for Appellants [The United 
States],'' Hamdan v. Rumsfeld, Ct. App., D.C. Cir., No. 04-5393 
(Jan. 10, 2005), reported at 2005 WL 189857 at *29.
    364. Hamdan v. Rumsfeld, 415 F.3d 33, 37-38 (D.C. Cir. 
2005). Further, the court of appeals rejected the 
Administration's claims that the circumstances associated with 
the detention of Mr. Hamdan were unreviewable or that the 
courts should abstain. Id. at 36-37.
    365. See Brief for Respondents [The United States], Hamdan 
v. Rumsfeld, No. 05-0184 (Feb. 23, 2006), 2006 WL 460875, at 21 
(citing Johnson v. Eisentrager, 339 U.S. 763, 788 (1950)). The 
United States also relied on the claim that Congress, by 
operation of the AUMF, had granted the president the power to 
implement military commissions.
    366. Hamdan v. Rumsfeld, 548 U.S. 557, 591-92 (2006) 
(footnote omitted) (citing Ex Parte Milligan, 4 Wall. 2, 139-40 
(1866)) (emphasis added).
    367. The Military Commissions Act of 2006 (MCA), Pub. L. 
No. 109-366, 120 Stat. 2600. See discussion in Section 2.B.
    368. Glaberson, ``Bin Laden's Former Driver Is Convicted in 
Split Verdict,'' N.Y. Times, Aug. 6, 2008, http://
www.nytimes.com/2008/08/06/washington/07gitmo.html?hp.
    369. Glaberson, ``Bin Laden Driver Sentenced to a Short 
Term,'' N.Y. Times, Aug. 7, 2008, available at http://
www.nytimes.com/2008/08/08/washington/
08gitmo.html?ref=nationalspecial3.
    370. R. Worth, ``Bin Laden Driver to Be Sent to Yemen,'' 
N.Y. Times, Nov. 26, 2008, available at http://www.nytimes.com/
2008/11/26/washington/26gitmo.html?fta=y.
    371. Rasul v. Bush, 542 U.S. 466 (2004).
    372. Rasul v. Bush, 542 U.S. 466, 475 (2004), referring to 
28 U.S.C. Sec. 2241, which at the time provided, in pertinent 
part:

    Sec. 2241. Power to grant writ
    (a) Writs of habeas corpus may be granted by the Supreme 
Court, any justice thereof, the district courts and any circuit 
judge within their respective jurisdictions. The order of a 
circuit judge shall be entered in the records of the district 
court of the district wherein the restraint complained of is 
had.

           *       *       *       *       *       *       *

    (c) The writ of habeas corpus shall not extend to a 
prisoner unless--

           *       *       *       *       *       *       *

    (3) He is in custody in violation of the Constitution or 
laws or treaties of the United States[.]

    373. Id. at 480.
    374. Id. at 484.
    375. Boumediene v. Bush, __ U.S. __, 128 S.Ct. 2229 (2008).
    376. Boumediene v. Bush, __ U.S. __, 128 S.Ct. 2229 (2008). 
Section 7(a) of the MCA, 120 Stat. 2635, amends 28 U.S.C. 
2241(e) to provide that ``[n]o court, justice, or judge shall 
have jurisdiction to hear or consider an application for a writ 
of habeas corpus filed by or on behalf of an alien detained by 
the United States who has been determined by the United States 
to have been properly detained as an enemy combatant or is 
awaiting such determination.''
    377. Boumediene v. Bush, 128 S.Ct. 2229, 2242 (2008).
    378. The ``Suspension Clause'' of the Constitution, Art. I, 
sec. 9, cl. 3., provides: ``The privilege of the writ of habeas 
corpus shall not be suspended, unless when in cases of 
rebellion or invasion the public safety may require it.''
    379. Boumediene v. Bush, __ U.S. __, 128 S.Ct. 2229, 2274 
(2008).
    380. Id. at 2246.
    381. Id. at 2261 (emphasis added).
    382. Transcript of Remarks by Attorney General Michael B. 
Mukasey at the American Enterprise Institute for Public Policy 
Research, Jul. 21, 2008, available at http://www.usdoj.gov/opa/
pr/2008/July/08_opa_633.html
    383. Whatever other purposes this fourth principle was 
intended to accomplish, it would have bolstered the 
Administration's litigation posture in the al-Marri case, 
discussed in the text, and pending at the time the Attorney 
General made his comments; it would have provided after-the-
fact vindication for the Padilla detention; and it would have 
helped the Administration in other contexts where it was 
relying on the AUMF to support its contentions as to the 
lawfulness of presidential acts claimed to be undertaken as 
Commander in Chief. It also would have had Congress on record 
supporting detention ``for the duration of the conflict''--thus 
addressing the concerns articulated by the Supreme Court with 
the Administration's potentially ``indefinite'' detentions.
    384. The Order, as reported by the Second Circuit, stated:

    TO THE SECRETARY OF DEFENSE:
    Based on the information available to me from all sources,
    REDACTED
    In accordance with the Constitution and consistent with the 
laws of the United States, including the Authorization for Use 
of Military Force Joint Resolution (Public Law 107-40);
    I, GEORGE W. BUSH, as President of the United States and 
Commander in Chief of the U.S. armed forces, hereby DETERMINE 
for the United States of America that:
    (1) Jose Padilla, who is under the control of the 
Department of Justice and who is a U.S. citizen, is, and at the 
time he entered the United States in May 2002 was, an enemy 
combatant;
    (2) Mr. Padilla is closely associated with al Qaeda, an 
international terrorist organization with which the United 
States is at war;
    (3) Mr. Padilla engaged in conduct that constituted hostile 
and war-like acts, including conduct in preparation for acts of 
international terrorism that had the aim to cause injury to or 
adverse effects on the United States;
    (4) Mr. Padilla possesses intelligence, including 
intelligence about personnel and activities of al Qaeda, that, 
if communicated to the U.S., would aid U.S. efforts to prevent 
attacks by al Qaeda on the United States or its armed forces, 
other governmental personnel, or citizens;
    (5) Mr. Padilla represents a continuing, present and grave 
danger to the national security of the United States, and 
detention of Mr. Padilla is necessary to prevent him from 
aiding al Qaeda in its efforts to attack the United States or 
its armed forces, other governmental personnel, or citizens;
    (6) it is in the interest of the United States that the 
Secretary of Defense detain Mr. Padilla as an enemy combatant; 
and
    (7) it is REDACTED consistent with U.S. law and the laws of 
war for the Secretary of Defense to detain Mr. Padilla as an 
enemy combatant.
    Accordingly, you are directed to receive Mr. Padilla from 
the Department of Justice and to detain him as an enemy 
combatant.

Reprinted in Padilla v. Rumsfeld, 353 F.3d 695, 724-725 (2d 
Cir. 2004).
    385. It is not known why he was moved to South Carolina or 
if that decision was made with a view to bringing all 
litigation to the Fourth Circuit--broadly considered a more 
favorable venue for the Government.
    386. Id. at 9 (citations omitted). Note the choice of 
words: The Administration did not say that it was 
``authorized'' by Congress--the actual term used in the 
``Authorization for the Use of Military Force''--only that 
Congress ``supported'' the use of force.
    387. Id. at 18. The Government misleadingly represented 
that the enemy combatants in detention ``receive protection 
from harm, medical care, and humane treatment.'' Id. at 18-19.
    388. Padilla v. Bush, 02 Civ. 4445 (MEM) (S.D.N.Y.), 
Respondents' [the United States'] Response to, and Motion to 
Dismiss, the Amended Petition for a Writ of Habeas Corpus, at 
20.
    389. Id. at 19 (citations omitted).
    390. Padilla ex rel. Newman v. Bush, 232 F. Supp. 2d 564, 
610 (S.D.N.Y. 2002).
    391. Id.
    392. Mukasey rejected the Government's claim that providing 
Mr. Padilla access to counsel would impermissibly interfere 
with the questioning of him or otherwise constitute a security 
risk: ``Padilla's statutorily granted right to present facts to 
the court in connection with this petition will be destroyed 
utterly if he is not allowed to consult with counsel.'' Id. at 
604.
    393. Respondents' Motion for Reconsideration in Part, 
Padilla v. Rumsfeld, 02 Civ. 4445 (MEM) (S.D.N.Y Jan. 9, 2003), 
available at http://www.pegc.us/archive/Padilla_vs_Rumsfeld/
Jacoby_Gov_mot_reconsider.doc.
    394. The Government may have also believed that if an 
attorney had access to Mr. Padilla, and learned of the nature 
of the interrogation techniques being used on him and publicly 
disclosed those facts, they would be offensive to the Court and 
to the public.
    395. Padilla ex rel. Newman v. Rumsfeld, 243 F.Supp. 2d 42, 
49 (S.D.N.Y. 2003) (quoting Declaration of Vice Admiral Lowell 
E. Jacoby, Director, Defense Intelligence Agency). In addition, 
the Government argued that in light of the relaxed and 
deferential standard of review that will be required of the 
President's determination of Mr. Padilla's status, the 
appointment of counsel was unnecessary.
    396. Padilla v. Bush, 02 Civ. 4445 (Mem.) (S.D.N.Y.) 
(Transcript of Conference, Jan. 15, 2003).
    397. Id.
    398. Padilla ex rel. Newman v. Rumsfeld, 243 F.Supp. 2d 42 
(S.D.N.Y 2003).
    399. To give a sense of the interrelated legal issues, 
Judge Mukasey certified the following questions for the Second 
Circuit Court of Appeals:

    1. Is the Secretary of Defense, Donald Rumsfeld, a proper 
respondent in this case?
    2. Does this court have personal jurisdiction over 
Secretary Rumsfeld?
    3. Does the President have the authority to designate as an 
enemy combatant an American citizen captured within the United 
States, and, through the Secretary of Defense, to detain him 
for the duration of armed conflict with al Qaeda?
    4. What burden must the government meet to detain 
petitioner as an enemy combatant?
    5. Does petitioner have the right to present facts in 
support of his habeas corpus petition?
    6. Was it a proper exercise of this court's discretion and 
its authority under the All Writs Act to direct that petitioner 
be afforded access to counsel for the purpose of presenting 
facts in support of his petition?

    Padilla ex rel. Newman v. Rumsfeld, 256 F. Supp.2d 218, 223 
(S.D.N.Y. 2003) (footnote omitted). The first two questions 
involve jurisdiction. The next three go to the core issue: the 
power of the president to order a U.S. citizen held in military 
custody and the power of the court to review that decision (and 
the procedures for such a review). The final relates to whether 
the court could order that Mr. Padilla receive assistance of 
counsel.
    400. Padilla v. Rumsfeld, 352 F.3d 695, 713 (2d Cir. 2003) 
(citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 
(1952) (Jackson, J., concurring) and United States v. Curtiss-
Wright Export Corp., 299 U.S. 304 (1936)).
    401. Padilla v. Rumsfeld, 352 F.3d at 715.
    402. Id., 352 F.3d and 624.
    403. See ``Brief for Petitioner,'' Rumsfeld v. Padilla, 
Sup. Ct., No. 03-1027 (Mar. 17, 2004), reported at 2004 WL 
378715 at *27.
    404. Mr. Padilla, in connection with his criminal case, 
represented that he first was able to consult with counsel 
March 2, 2004. See ``[Defendant Padilla's] Motion to Dismiss 
for Outrageous Government Conduct,'' United States v. Padilla, 
Case No. 04-60001-Cr-COOKE/BROWN (S.D. Fl., Oct. 4, 2006) at 5, 
available at http://www.discourse.net/archives/docs/
Padilla_Outrageous_Government_Conduct.pdf.
    405. Justice Stevens, in dissent, expressed his concern 
with the detention policy the Government was defending:

    At stake in this case is nothing less than the essence of a 
free society. Even more important than the method of selecting 
the people's rulers and their successors is the character of 
the constraints imposed on the Executive by the rule of law. 
Unconstrained executive detention for the purpose of 
investigating and preventing subversive activity is the 
hallmark of the Star Chamber. . . . Access to counsel for the 
purpose of protecting the citizen from official mistakes and 
mistreatment is the hallmark of due process.
    Executive detention of subversive citizens, like detention 
of enemy soldiers to keep them off the battlefield, may 
sometimes be justified to prevent persons from launching or 
becoming missiles of destruction. It may not, however, be 
justified by the naked interest in using unlawful procedures to 
extract information. Incommunicado detention for months on end 
is such a procedure. Whether the information so procured is 
more or less reliable than that acquired by more extreme forms 
of torture is of no consequence. For if this Nation is to 
remain true to the ideals symbolized by its flag, it must not 
wield the tools of tyrants even to resist an assault by the 
forces of tyranny.

Rumsfeld v. Padilla, 542 U.S. 426, 465 (2004) (Stevens, J., 
dissenting) (footnote omitted).
    406. Clement's concession, on Judge Luttig's insistent 
prompting, that the Government's position was that the American 
homeland was now a battlefield on which the President had the 
authority to exercise military power, was apparently the first 
time any Administration official had ever publicly stated this 
profound legal proposition, although it was a linchpin of the 
expansive view of the president's Commander-in-Chief powers on 
which the Administration had been operating for three-and-a-
half years, secretly, and in disregard of Congress's pointed 
refusal in the AUMF to authorize use of war powers within the 
United States.
    407. Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005).
    408. Id. 386, 395.
    409. Id. 582, 587 (4th Cir. 2005) (emphasis added).
    410. Hanft v. Padilla, 546 U.S. 1084 (Jan. 4, 2006).
    411. Padilla v. Hanft, 547 U.S. 1062 (April 3, 2006).
    412. See ``Brief for Respondent [United States],'' Padilla 
v. Hanft, Sup. Ct., No. 05-533 (Dec. 16, 2005), reported at 
2005 WL 3514331 at *3 (``The fact that the case is now moot 
itself calls for denial of certiorari.''), * 13 (``Because 
petitioner has been charged with criminal offenses and ordered 
released from that military detention, the case is moot and 
further review would be inconsistent with the jurisdictional 
requirements of Article III. Indeed, the mootness of this case 
may be further underscored if the court of appeals vacates its 
September 9, 2005, opinion.'').
    413. The Government, in a brief to the Fourth Circuit, 
suggested that the court might vacate its opinion in light of 
the fact that Supreme Court review was no longer possible: 
``Because the mooting events are not attributable to 
petitioner, the Executive has no objection to this Court's 
vacatur of its opinion . . . .'' See ``Supplemental Brief for 
the Appellant [United States],'' Padilla v. Hanft, Fourth Cir. 
No. 05-6396 (Dec. 9, 2005) at 14, available at http://
www.wiggin.com/db30/cgi-bin/pubs/
Government%20Supplemental%20Brief%2012%2012%202005.pdf.
    Yoo, in describing the Padilla litigation, writes:

    Eventually, a court of appeals unanimously found in late 
2005 that ``[u]nder the facts presented here, Padilla 
unquestionably qualifies as an `enemy combatant' '' . . . even 
though he had been detained in the United States, not in 
Afghanistan. While Padilla's case was on appeal to the Supreme 
Court, the Justice Department concluded it had enough evidence 
to prosecuted Padilla for crimes. . . . The Supreme Court 
dismissed the appeal as moot since he was now in criminal 
court.

Yoo, War By Other Means: An Insider's Account of the War on 
Terror 158 (2006). Mr. Yoo is simply not correct that the 
Supreme Court dismissed the case on mootness grounds; and his 
selective description of the opinion and surrounding events 
makes not even passing reference to these factors that 
undermine the decision's it precedential value.
    414. ``[Defendant Padilla's] Motion to Dismiss for 
Outrageous Government Conduct,'' United States v. Padilla, Case 
No. 04_60001_Cr-COOKE/BROWN (S.D. Fl., Oct. 4, 2006) at 1-5, 
available at http://www.discourse.net/archives/docs/
Padilla_Outrageous_Government_Conduct.pdf.
    The Government did not deny these allegations. As noted in 
Mr. Padilla's reply brief:

    In his motion to dismiss for outrageous government conduct, 
Mr. Padilla made specific and detailed allegations of the 
conditions of his confinement and the torture he endured. These 
allegations include isolation; sleep and sensory depravation; 
hoodings; stress positions; exposure to noxious fumes; exposure 
to temperature extremes; threats of imminent execution; 
assaults; the forced administration of mind-altering 
substances; denial of religious practices; manipulation of 
diet; and other forms of mistreatment. Despite these specific 
allegations, the government does not make any effort to deny or 
confirm that Mr. Padilla was subjected to the conditions he has 
alleged. If Mr. Padilla's allegations were false it would be a 
simple matter for the government to deny that Mr. Padilla was 
ever deprived of sleep or sensory stimuli, or assert that he 
was never assaulted or administered mind-altering substances 
against his will. The government's silence on these issues 
speaks volumes of Mr. Padilla's allegations of torture. Mr. 
Padilla asserts that he was not treated humanely, but instead 
was tortured and that the government's conduct was outrageous.

``Mr. Padilla's Reply to the Government's Response to the 
Motion to Dismiss for Outrageous Government Conduct,'' United 
States v. Padilla, Case No. 04-60001_Cr_COOKE/BROWN (S.D. Fl., 
Oct. 4, 2006) at 6, available at http://i.a.cnn.net/cnn/2006/
images/12/04/padilla.695.pdf.
    415. Whoriskey and Eggen, ``Judge Sentences Padilla to 17 
Years, Cites His Detention,'' Wash. Post, Jan. 23, 2008, at A3, 
available at http://www.washingtonpost.com/wp-dyn/content/
article/2008/01/22/AR2008012200565.html.
    416. The Padilla litigation raises numerous troubling 
questions. Is it true, as U.S. citizen Jose Padilla alleged, 
that he was subjected to harsh interrogation techniques, 
including sleep deprivation and mind-altering drugs, while in 
military custody? If so, who approved that he be treated in 
this fashion, and who--the military, or the intelligence 
community--conducted the interrogation? When Justice Department 
attorney (and future Solicitor General) Paul Clement argued in 
front of then-Chief Judge Mukasey that Mr. Padilla should not 
be permitted an attorney, did Clement or others in the 
Department of Justice know the nature of the interrogation 
techniques to which Mr. Padilla was then being subjected or was 
intended to be subjected? Was the Government's opposition to 
Mr. Padilla having access to an attorney designed to keep Chief 
Judge Mukasey and the public from knowing how Mr. Padilla was 
being treated--for fear that those facts would have aroused 
public reaction and influenced the court's interpretation of 
the law? Who made the decision to transfer Mr. Padilla from the 
brig in South Carolina to Florida to face federal terrorism 
charges? Was that decision made to moot out Supreme Court 
review, so that the Fourth Circuit opinion would remain the law 
in this case, thus purporting to vindicate the Administration's 
detention policies?
    417. ``Petition for Writ of Certiorari,'' Al-Marri v. 
Pucciarelli (Sep. 19, 2008) at 4-5. As Rep. Melvin Watt said at 
a 2007 hearing on habeas corpus issues at which Mr. al-Marri's 
lawyer, Jonathan Hafetz, was a witness:

    And I guess the most difficult question--even if your 
client, Mr. Hafetz, turns out to be an enemy combatant--is how 
one could be basically in a courtroom on a credit card matter 
in 2003 and then all of a sudden be in a military brig simply 
because the President of the United States said, `You are not a 
credit card common thief; you are an enemy combatant,' and then 
to have your client charged--really no charge brought against 
your client and he be held for 4 years without a charge against 
him and without any indication of when the detention would end, 
including 16 months when he was held incommunicado.

    Habeas Corpus and Detentions at Guantanamo Bay: Hearing 
Before the Subcomm. on the Constitution, Civil Rights, and 
Civil Liberties, H. Comm. on the Judiciary, 110th Cong. (2007) 
(statement of Rep. Melvin Watt).
    418. Al-Marri v. Bush, 274 F. Supp. 2d 1003 (C.D. Ill. 
2003).
    419. Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006).
    420. Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
    421. There was no consensus as to what was meant by the 
term ``enemy combatant.''
    422. Editorial, ``Tortured Justice,'' N.Y. Times, Dec. 8, 
2008, available at http://www.nytimes.com/2008/12/08/opinion/
08mon1.html?_r=1.
    423. Al-Marri v. Pucciarelli, 534 F.3d 213, 217-18 (4th 
Cir. 2008) (Motz, J., conc.) (quoting Boumediene v. Bush, __ 
U.S. __ -, 128 S.Ct. 2229, 2278 (2008)) (emphasis added).
    424. Petition for Writ of Certiorari, Al-Marri v. 
Pucciarelli, 08-268 (Sep. 19, 2008) at 14.
    425. Brief for the Respondent in Opposition [to al-Marri's 
Petition for Writ of Certiorari], Al-Marri v. Pucciarelli, 08-
268 (Oct. 2008) at 14.
    426. Brief for the Respondent [United States] in Opposition 
[to al-Marri's Petition for Writ of Certiorari], Al-Marri v. 
Pucciarelli, 08-268 (Oct. 2008) at 17-29.
    427. Al-Marri v. Pucciarelli, __ S.Ct.__, 2008 WL 4326485 
(Mem) (Dec. 5, 2008) (granting certiorari).
    428. Hamdi v. Rumsfeld, 542 U.S. 507, 554-55 (2004) 
(Scalia, J., dissenting). Scalia also quoted from Blackstone's 
admonition that it would constitute a ``notorious act of 
despotism, as must at once convey the alarm of tyranny'' were 
the Executive to have the power to ``imprison arbitrarily'':

    Of great importance to the public is the preservation of 
this personal liberty: for if once it were left in the power of 
any, the highest, magistrate to imprison arbitrarily whomever 
he or his officers thought proper. . . . there would soon be an 
end of all other rights and immunities . . . To bereave a man 
of life, or by violence to confiscate his estate, without 
accusation or trial, would be so gross and notorious an act of 
despotism, as must at once convey the alarm of tyranny 
throughout the whole kingdom. But confinement of the person, by 
secretly hurrying him to gaol, where his sufferings are unknown 
or forgotten; is a less public, a less striking, and therefore 
a more dangerous engine of arbitrary government . . .
    To make imprisonment lawful, it must either be, by process 
from the courts of judicature, or by warrant from some legal 
officer, having authority to commit to prison; which warrant 
must be in writing, under the hand and seal of the magistrate, 
and express the causes of the commitment, in order to be 
examined into (if necessary) upon a habeas corpus. If there be 
no cause expressed, the gaoler is not bound to detain the 
prisoner. For the law judges in this respect, .  .  . that it 
is unreasonable to send a prisoner, and not to signify withal 
the crimes alleged against him.

1 W. Blackstone, Commentaries on the Laws of England 131-133 
(1765).
Id.
    429. The Military Commissions Act of 2006 (MCA), Pub. L. 
No. 109-366, 120 Stat. 2600.
    430. Habeas Corpus and Detentions at Guantanamo Bay: 
Hearing before the Subcomm. on the Constitution, Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong. 4-5 (June 26, 2007) (statement of Rep. Jerrold Nadler).
    431. Id. at 43 (statement of Jonathan Hafetz).
    432. Id. at 58 (statement of Jonathan Hafetz).
    433. Id. at 46-49 (testimony of former Associate White 
House Counsel Bradford Berenson.)
    434. Id. at 30 (testimony of former State Department Legal 
Advisor William H. Taft IV).
    435. Id. at 31.
    436. Id. at 44 (statement of Jonathan Hafetz).
    437. The following colloquy between Rep. Debbie Wasserman 
Schultz and Lt. Commander Charles Swift, the Judge Advocate 
General's Corps attorney who represented Mr. Hamdan, is 
representative of this point:

    Ms. Wasserman Schultz: . . . Do you think that the 
continued detention of hundreds of men without charge and 
without habeas rights at Guantanamo makes us hypocrites?

           *       *       *       *       *       *       *

    Do you think that this undermines U.S. efforts to win 
hearts and minds, an essential component of any successful 
counterinsurgency strategy?
    And do you not also believe that this puts U.S. troops at 
risk, making it harder to credibly object if our own soldiers 
are taken into custody and held indefinitely without charge and 
without the ability to contest the basis of their detention?
    Mr. Swift: To me, Guantanamo Bay, as a recruiting magnet 
and as a cloak for those who would abuse human rights the world 
over, does far more damage than any one person who might be let 
go by following the rule of law.

Id. at 86-88.
    438. In February 2008, Chairman Conyers sent two letters to 
the White House seeking production of that document, and again, 
in a letter co-signed by Reps. Jerrold Nadler and Robert C. 
``Bobby'' Scott requested its release in an April 2003 letter 
to Attorney General Mukasey. In that letter, Chairman Conyers 
and Reps. Nadler and Scott wrote:

    Based on the title of the October 23, 2001 memorandum, and 
based on what has been disclosed and the contents of similar 
memoranda issued at roughly the same time, it is clear that a 
substantial portion of this memorandum provides a legal 
analysis and conclusions as to the nature and scope of the 
Presidential Commander in Chief power to accomplish specific 
acts within the United States. The people of the United States 
are entitled to know the Justice Department's interpretation of 
the President's constitutional powers to wage war in the United 
States. There can be no actual basis in national security for 
keeping secret the remainder of a legal memorandum that 
addresses this issue of Constitutional interpretation. The 
notion that the President can claim to operate under ``secret'' 
powers known only to the President and a select few 
subordinates is antithetical to the core principles of this 
democracy.

Letter from John Conyers, Chairman, H. Comm. on the Judiciary, 
Rep. Jerrold Nadler, and Rep. Robert Scott to Michael Mukasey, 
Attorney General (April 3, 2008), available at http://
judiciary.house.gov/news/pdfs/Conyers-Nadler-Scott080403.pdf 
(emphasis in original).
    In April 2008, Mukasey was questioned about this document 
by Senator Diana Feinstein in a Senate Appropriations Committee 
Hearing. The questioning was described in press reports as 
follows:

    ``Is the October 2001 OLC opinion still considered binding 
by the Department of Justice?'' Feinstein asked.
    Mukasey at first struggled to answer to Feinstein's 
satisfaction:
    ``I can't speak to the October 2001 memo,'' he said. ``We 
are aware of Congress' oversight interests in this matter . . . 
We're trying to work with Congress to meet your legitimate 
oversight.''
    ``This isn't a question of oversight,'' Feinstein shot 
back. ``I'm just asking you whether this memo is in force.''
    ``The principle that the Fourth Amendment does not apply in 
wartime is not in force,'' Mukasey continued.
    ``That's not the principle I asked you about,'' Feinstein 
countered. ``Does it apply to domestic military operations? Is 
the Fourth Amendment . . . I'm asking you a question. That's 
not the answer.''
    ``I'm unaware of any domestic military operations being 
carried out today,'' he said.
    Feinstein tried again: ``You're not answering my question. 
. . . Is this memo binding?''
    Mukasey finally replied: ``The Fourth Amendment applies 
across the board regardless of whether it's peace or war 
time.''

``Senators Grill Michael Mukasey at Budget Hearing,'' The BLT: 
Blog of the Legal Times, Apr. 10, 2008, available at http://
legaltimes.typepad.com/blt/2008/04/senators-grill.html.
    Finally, on June 27, 2008, the House Judiciary Committee 
issued a subpoena that specifically demanded production of that 
Memorandum. Letter and Subpoena from John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary to Michael Mukasey, 
Attorney General (June 27, 2008), available at http://
judiciary.house.gov/news/pdfs/Conyers080627.pdf. To date, the 
Administration has refused to release it.
    439. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, Re: Possible habeas jurisdiction over 
aliens held in Guantanamo Bay, from John Yoo, Deputy Assistant 
Attorney General, and Patrick F. Philbin, Deputy Assistant 
Attorney General, at 9 (Dec. 28, 2001).
    440. See ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' pp. xii--xv, 
available at http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf.
    441. ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' p. xiii, available at 
http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf. See also Justice Department's Office of 
Legal Counsel, Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary, 110th Cong., at 17-18 (Feb. 14, 2008) (statement of 
Steven Bradbury, Principal Deputy Assistant Attorney General, 
Department of Justice) (describing CIA's use of waterboarding 
as having been ``adapted from the SERE training program'').
    442. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, Re: Application of Treaties and Laws to 
al Qaeda and Taliban Detainees, from John Yoo, Deputy Assistant 
Attorney General, and Robert J. Delahunty, Special Counsel 
(Jan. 9, 2002).
    Within each of Geneva's four Conventions, an identical 
provision appears in the third section, or article--hence the 
provision's moniker, ``Common Article 3.'' Article 3 sets forth 
the fundamental, indissoluble standard to which each signatory 
nation must adhere: Persons taking ``no active part in 
hostilities'' (including those in detention) must be protected 
from violence to ``life and person.'' Article 3 protects 
individuals from: murder, mutilation, cruel treatment, and 
torture; hostage-taking; and outrages against personal dignity, 
particularly humiliating and degrading treatment. 6 U.S.T. 
Sec. 3114; 6 U.S.T. Sec. 3217; 6 U.S.T. Sec. 3316; 6 U.S.T. 
Sec. 3516. The Third Geneva Convention specifically addresses 
prisoners of war, and guaranteed that these prisoners receive 
humane treatment at all times, including protection from acts 
of violence, intimidation, insults, and acts of public 
curiosity (Article 13). As the Convention entitles every 
prisoner to respect for their persons and honor in all 
circumstances (Article 14), it simultaneously expressly forbids 
any form of torture or cruelty (Article 88).
    443. The War Crimes Act of 1996, 18 U.S.C. 2441 (West 2001 
ed.) as in place in 2002 provided, in pertinent part:

    Sec. 2441. War crimes
    (a) Offense.--Whoever, whether inside or outside the United 
States, commits a war crime, in any of the circumstances 
described in subsection (b), shall be fined under this title or 
imprisoned for life or any term of years, or both, and if death 
results to the victim, shall also be subject to the penalty of 
death.
    (b) Circumstances.--The circumstances referred to in 
subsection (a) are that the person committing such war crime or 
the victim of such war crime is a member of the Armed Forces of 
the United States or a national of the United States (as 
defined in section 101 of the Immigration and Nationality Act).
    (c) Definition.--As used in this section the term `war 
crime' means any conduct--
          (1) defined as a grave breach in any of the 
        international conventions signed at Geneva 12 August 
        1949, or any protocol to such convention to which the 
        United States is a party;
          (2) [not applicable]

           *       *       *       *       *       *       *

          (3) which constitutes a violation of common Article 3 
        of the international conventions signed at Geneva, 12 
        August 1949, or any protocol to such convention to 
        which the United States is a party and which deals with 
        non-international armed conflict; or
          (4) [not applicable].

(emphasis added).
    444. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, Re: Application of Treaties and Laws to 
al Qaeda and Taliban Detainees, from John Yoo, Deputy Assistant 
Attorney General, and Robert J. Delahunty, Special Counsel, at 
11-12 (Jan. 9, 2002).
    445. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, Re: Application of Treaties and Laws to 
al Qaeda and Taliban Detainees, from John Yoo, Deputy Assistant 
Attorney General, and Robert J. Delahunty, Special Counsel, at 
14, 23 (Jan. 9, 2002).
    446. Memorandum to President Bush, Application of the 
Geneva Convention on Prisoners of War to the Conflict with Al 
Qaeda and the Taliban, from Alberto Gonzales, White House 
Counsel, (Jan. 25, 2002), available at http://www.gwu.edu/
nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf/.
    447. Memorandum to Alberto Gonzales, White House Counsel, 
Comments on Your Paper on the Geneva Convention, from William 
H. Taft IV, State Department Legal Advisor (Feb. 2, 2002), 
available at http://www.nytimes.com/packages/html/politics/
20040608_DOC.pdf.
    448. Memorandum from President Bush, Humane Treatment of al 
Qaeda and Taliban Detainees (Feb. 7, 2002), available at http:/
/www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf. The 
President concluded:

    [O]ur values as a Nation, values that we share with many 
nations in the world, call for us to treat detainees humanely, 
including those who are not legally entitled to such treatment 
. . . As a matter of policy, the United States Armed Forces 
shall continue to treat detainees humanely and, to the extent 
appropriate and consistent with military necessity, in a manner 
consistent with the principles of Geneva.

Thus, this Memorandum was limited in two significant ways. 
First it only applied to the Armed Forces, not the CIA or other 
intelligence agencies. And second, it applied only so far as 
consistent with ``military necessity.'' Subsequently, Attorney 
General Gonzales would be asked what was meant by ``humanely,'' 
to which he replied: ``As you know, the term `humanely' has no 
precise legal definition. As a policy matter, I would define 
humane treatment as a basic level of decent treatment that 
includes such things as food, shelter, clothing, and medical 
care.'' Written response of Alberto R. Gonzales, Nominee to Be 
Attorney General, to questions posed by Senator Edward M. 
Kennedy, question #15, January 2005.
    449. 18 U.S.C. Sec. 2340A provides:

    (a) Offense.--whoever outside the United States commits or 
attempts to commit torture shall be fined under this title or 
imprisoned not more than 20 years, or both, and if death 
results to any person from conduct prohibited by this 
subsection, shall be punished by death or imprisoned for any 
term of years or for life.
    (b) Jurisdiction.--There is jurisdiction over the activity 
prohibited in subsection (a) if--
          (1) the alleged offender is a national of the United 
        States; or
          (2) the alleged offender is present in the United 
        States, irrespective of the nationality of the victim 
        or alleged offender.
    (c) Conspiracy.--A person who conspires to commit an 
offense under this section shall be subject to the same 
penalties (other than the penalty of death) as the penalties 
prescribed for the offense, the commission of which was the 
object of the conspiracy.

    ``Torture'' is defined in 18 U.S.C. Sec. 2340, as follows:

    As used in this chapter--
          (1) ``torture'' means an act committed by a person 
        acting under the color of law specifically intended to 
        inflict severe physical or mental pain or suffering 
        (other than pain or suffering incidental to lawful 
        sanctions) upon another person within his custody or 
        physical control;
          (2) ``severe mental pain or suffering'' means the 
        prolonged mental harm caused by or resulting from--
                  (A) the intentional infliction or threatened 
                infliction of severe physical pain or 
                suffering;
                  (B) the administration or application, or 
                threatened administration or application, of 
                mind-altering substances or other procedures 
                calculated to disrupt profoundly the senses or 
                the personality;
                  (C) the threat of imminent death; or
                  (D) the threat that another person will 
                imminently be subjected to death, severe 
                physical pain or suffering, or the 
                administration or application of mind-altering 
                substances or other procedures calculated to 
                disrupt profoundly the senses or personality; 
                and
          (3) ``United States'' means the several States of the 
        United States, the District of Columbia, and the 
        commonwealths, territories, and possessions of the 
        United States.

    450. Memorandum for Alberto R. Gonzales, Counsel to the 
President, Re: Standards of Conduct for Interrogation under 18 
U.S.C. Sec. Sec. 2340-2340A, by Jay S. Bybee, Assistant 
Attorney General, Dept. of Justice, Aug. 1, 2002.
    This document, by its terms, addresses the applicability of 
the federal criminal statute prohibiting torture. It has become 
widely referred to as the ``torture memorandum,'' or ``torture 
memo.'' See, e.g., Gellman and Becker, ``Pushing the Envelope 
on Presidential Power,'' Wash. Post, June 25, 2007, available 
at http://voices.washingtonpost.com/cheney/chapters/
pushing_the_envelope_on_presi/ (``But the ``torture memo,'' as 
it has become widely known, was not Yoo's work alone.''). 
Consistent with this widespread characterization, this Report 
refers to this memorandum, which addresses interrogation 
practices by the CIA, as the ``August 1, 2002 Torture 
Memorandum,'' and refers to the similar memorandum, addressing 
interrogation practices by Defense Department personnel, as the 
``March 14, 2003 Torture Memorandum.''
    Although the memorandum was signed by Assistant Attorney 
General Jay Bybee, Mr. Yoo was undoubtedly the prime drafter, 
receiving input from others. In Mr. Yoo's book, War by Other 
Means, he noted that the Department of Justice prohibited 
specific discussion of the process that produced the memo. Mr. 
Yoo nonetheless described the preparation of the August 1, 
2002, torture memo in terms that reflected his first-hand 
knowledge of the circumstances associated with its preparation, 
supporting the conclusion that he was involved:

    Aside from the restricted circle of personnel who could 
work on it, the opinion went through the normal process of 
review. No one urged us to make any significant changes in the 
opinion, and I do not recall anyone disagreeing with the basic 
conclusions of the opinion. That is not to say that anyone 
thought it was an easy question to answer; everyone understood 
that the opinion addressed difficult questions fraught with 
serious consequences.

Yoo, War by Other Means, An Insider's Account of the War on 
Terror 170. The Washington Post reported that Yoo stated 
Addington had also contributed: ``In an interview, Yoo said 
that Addington, as well as Gonzales and deputy White House 
counsel Timothy E. Flanigan, contributed to the analysis.'' 
Gellman and Becker, ``Pushing the Envelope on Presidential 
Power,'' Wash. Post, June 25, 2007, available at http://
blog.washingtonpost.com/cheney/chapters/
pushing_the_envelope_on_presi/.
    451. In fact, in its first sentence, the memorandum seems 
to contemplate that it would apply to Guantanamo: ``As we 
understand it, this question has arisen in the context of 
interrogations outside of the United States.'' August 1, 2002 
Torture Memorandum at 1. John Yoo, who was one of the preparers 
of this document, would later explain that it was written for 
the CIA, not for the Defense Department. See, e.g., Department 
of Justice to Guantanamo Bay: Administration Lawyers and 
Administration Interrogation Rules (Part III): Hearing before 
the Subcomm. on the Constitution, Civil Rights, and Civil 
Liberties, H. Comm. on the Judiciary, 110th Cong. (June 26, 
2008) (written testimony of John Yoo). The same principles set 
forth in this memorandum would be repeated in a March 2003 
memorandum written specifically to respond to a request by the 
Department of Defense.
    452. Memorandum for Alberto R. Gonzales, Counsel to the 
President, Re: Standards of Conduct for Interrogation under 18 
U.S.C. Sec. Sec. 2340-2340A, by Jay S. Bybee, Assistant Att'y 
Gen., Dept. of Justice, Aug. 1, 2002, at 6.
    453. ``Waterboarding'' was described in The Washington Post 
as follows:

    The more accurate definition would be ``drowning.'' That 
term is used to describe several interrogation techniques. The 
victim may be immersed in water, have water forced into the 
nose and mouth, or have water poured onto material placed over 
the face so that the liquid is inhaled or swallowed. The media 
usually characterize the practice as ``simulated drowning.'' 
That's incorrect. To be effective, waterboarding is usually 
real drowning that simulates death. That is, the victim 
experiences the sensations of drowning: struggle, panic, 
breath-holding, swallowing, vomiting, taking water into the 
lungs and, eventually, the same feeling of not being able to 
breathe that one experiences after being punched in the gut. 
The main difference is that the drowning process is halted. 
According to those who have studied waterboarding's effects, it 
can cause severe psychological trauma, such as panic attacks, 
for years.

Wallach, ``Waterboarding Used to Be a Crime,'' Wash. Post, Nov. 
4, 2007, at B1.
    454. Luban, Legal Ethics and Human Dignity, excerpt found 
in From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part I: Hearing before the Subcommittee on the Constitution, 
Civil Rights, and Civil Liberties, House Committee on the 
Judiciary, 110th Cong. 35-36 (May 6, 2008). In the accompanying 
footnote, Luban wrote:

    The commentator is Michael S. Moore, Torture and the 
Balance of Evils, 23 Israel L. Rev. 280, 323 (1989). Here is 
what OLC says: ``Leading scholarly commentators believe that 
interrogation of such individuals that might violate [the anti-
torture statute] would be justified under the doctrine of self-
defense.'' [citation to Moore.] And here is what Moore actually 
says on the page OLC cites: ``The literal law of self-defense 
is not available to justify their torture. But the principle 
uncovered as the moral basis of the defense may be applicable. 
. . .'' [emphasis added by Luban]. OLC states that ``the 
doctrine of self-defense'' would justify torture, where Moore 
says, quite literally, the opposite. Note also the differences 
between OLC's assertive ``would be justified'' and Moore's 
cautious ``may be applicable.''

Id. at 35 (first brackets in text, second and third brackets 
added). Similarly, the Torture Memo claimed that the 
``necessity defense'' could be a defense to a torture 
prosecution, that is, that otherwise criminal conduct (torture) 
could be justified where undertaken to prevent a greater harm. 
Professor Luban pointed out the result-oriented and politically 
self-serving quality to that conclusion by noting that the 
authors of the Torture Memorandum carefully included language 
to assure that the ``necessity'' principles could not be used 
to justify abortions--hardly the issue.

    [T]he Bybee Memo's authors were not content to argue for 
the possibility of the necessity defense. They also threw in an 
argument that even though the necessity defense is available to 
torturer, it would not necessarily be available in cases of 
abortion to save a woman's life. [footnote omitted]. At this 
point, the partisan political nature of the document becomes 
too obvious to ignore. It is the moment when the clock strikes 
thirteen. Opposition to abortion was an article of faith in the 
Ashcroft Justice Department, and apparently the OLC lawyers 
decided to try for a ``two-fer''--not only providing a 
necessity defense for torture, but throwing in a clever hip-
check to forestall any possibility that their handiwork might 
be commandeered to justify life-saving abortions if a 
legislature ever voted to outlaw them. Even abortion opponents 
are likely to balk at the thought that torture might be a 
lesser evil than abortion to save a mother's life. But this was 
the conclusion that the OLC aimed to preserve.

Id. at 38 (emphasis added).
    455. August 1, 2002 Torture Memorandum at 34-35. This 
particular principle was directly attributed to Addington. The 
Washington Post reported:

    The vice president's lawyer advocated what was considered 
the memo's most radical claim: that the president may authorize 
any interrogation method, even if it crosses the line into 
torture. U.S. and treaty laws forbidding any person to ``commit 
torture,'' that passage stated, ``do not apply'' to the 
commander in chief, because Congress ``may no more regulate the 
President's ability to detain and interrogate enemy combatants 
than it may regulate his ability to direct troop movements on 
the battlefield.''

Gellman and Becker, ``Pushing the Envelope on Presidential 
Power,'' Wash. Post, June 25, 2007, available at http://
blog.washingtonpost.com/cheney/chapters/
pushing_the_envelope_on_presi/.
    456. This exchange has been widely reported. See, e.g., 
Hentoff, ``Architect of Torture,'' The Village Voice, July 10, 
2007, available at http://www.villagevoice.com/news/
0728,hentoff,77169,6.html, where Hentoff stated that he had 
discussed the matter with Professor Cassel, who had confirmed 
the exchange occurred.
    There appears to be no limiting principle to Mr. Yoo's view 
as to the reach of the president's Commander-in-Chief power. If 
he cannot be constrained by law or treaty from ordering the 
crushing of a child's testicles, then what limit does exist? 
What is the principled line that Yoo can possibly draw between 
crushing a child's testicles and ordering summary executions, 
or the execution of family members, or the execution of U.S. 
citizens who may be family members, if the president deems it 
to be part of his Commander-in-Chief powers and necessary as a 
component of an interrogation program? Could the president 
suspend the Constitutional amendments that limit him to two 
terms if he deemed that it was necessary to do so in order to 
effectively wage a war? Could the president declare a political 
opponent an ``enemy combatant'' because that person undermined 
his ability to wage war--for example, by voting against a 
weapons program--and order his or her incarceration? If so, 
what would be the grounds available for the detainee to contest 
his or her incarceration?
    Yale Law School Dean Harold Koh expressed the same concern 
in his testimony at Alberto Gonzales's confirmation hearing for 
Attorney General:

    But if the President has the sole constitutional authority 
to sanction torture, and Congress has no power to interfere, it 
is unclear why the President should not also have unfettered 
authority to license genocide or other violations of 
fundamental human rights. In a stunning failure of lawyerly 
craft, the August 1, 2002 OLC Memorandum nowhere mentions the 
landmark Supreme Court decision in Youngstown Steel & Tube Co. 
v. Sawyer, where Justice Jackson's concurrence spelled out 
clear limits on the President's constitutional powers.

Confirmation Hearing on the Nomination Of Alberto R. Gonzales 
to Be Attorney General of the United States: Hearing Before the 
S. Comm. on the Judiciary, 109th Cong. (2005) (Statement of 
Harold Hongju Koh, Dean, Yale Law School), available at http://
www.law.yale.edu/documents/pdf/KohTestimony.pdf. In a footnote, 
Koh notes that under the reasoning of the August 1, 2002 
Torture Memorandum, ``it is hard to explain why Saddam Hussein 
could not similarly authorize torture under his parallel 
Commander in Chief power.'' Youngstown Steel is discussed 
further in the Preface to this Report.
    457. Memorandum Opinion for the Deputy Attorney General, 
Legal Standards Applicable Under U.S.C. Sec. Sec. 2340-2340A, 
by Daniel Levin, Acting Assistant Att'y Gen., (Dec. 30, 2004), 
available at http://www.justice.gov/olc/18usc23402340a2.htm.
    458. See ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' p. xvi, available at 
http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf.
    459. Memorandum for [Redacted], Interrogation of 
[Redacted], From Jay S. Bybee, Assistant Att'y Gen., Dept. of 
Justice (Aug. 1, 2002), available at http://www.aclu.org/pdfs/
safefree/cia_3686_001.pdf.
    460. Document Titled ``TOP SECRET//[Redacted],'' Aug. 4, 
2004, available at http://www.aclu.org/pdfs/safefree/
cia_3685_001.pdf.
    461. Zubaydah was waterboarded at a secret location, not 
Guantanamo.
    462. As discussed throughout this report, the 
Administration had different detention and interrogation rules 
or ``programs'' for the CIA and the military, as well as 
different rules for the military in Guantanamo and in Iraq and 
Afghanistan. The fact that the CIA operated differently was 
explicitly acknowledged by the Administration:

    Fewer than 100 terrorists have been detained by the CIA as 
part of this program. . . . This program has involved the 
limited use of alternative interrogation methods judged to be 
necessary in certain cases because hardened al Qaeda operatives 
are trained to resist the types of methods approved in the Army 
Field Manual which governs military interrogations. . . .
    These alternative interrogation methods have been used with 
fewer than one-third of the terrorists who have ever been 
detained in the program. Certain of the methods have been used 
on far fewer still. In particular, as General Hayden has now 
disclosed, the procedure known as waterboarding was used on 
only three individuals and was never used after March 2003.

Oversight Hearing on the Justice Department's Office of Legal 
Counsel before the Subcomm. on the Constitution, Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong. 6, (Feb. 14, 2008) (statement of Steven G. Bradbury, 
Principal Deputy Assistant Att'y Gen., Office of Legal Counsel, 
U.S. Dept. of Justice). This difference was also acknowledged 
in President Bush's Order February 7, 2002, which directed only 
that the ``Armed Forces [i.e., not the CIA]. . . treat the 
detainees humanely,'' and in the Administration's 
interpretation of the Military Commissions Act that, even if 
understood as constraining the Armed Forces in the use of 
certain interrogation techniques, was interpreted as not 
constraining the CIA.
    463. On March 16, 2009, The New York Review of Books 
released its April 9, 2009, issue, which excerpts a secret 
report by the International Committee of the Red Cross (ICRC) 
detailing the interrogations methods and conditions within 
several of the secret prisons used by the CIA. According to the 
ICRC investigators, ``the ill-treatment to which they [the 
detainees] were subjected while held in the CIA program . . . 
constituted torture.'' The ICRC report includes several first-
hand accounts from fourteen ``high-value detainees''--including 
Abu Zabaydah, Khalid Shaik Mohammed, and Walid bin Attash--at 
secret prisons in several nations, including Poland, Thailand, 
and Afghanistan. See, e.g., Danner, ``US Torture: Voices from 
the Black Sites,'' N.Y. Rev. of Books, Apr. 9, 2009 (released 
online Mar. 16, 2009), available at http://www.nybooks.com/
articles/22530.
    464. Interview of Vice President Dick Cheney by John Karl 
(ABC News television broadcast Dec. 16, 2008) available at 
http://abcnews.go.com/Politics/story?id=6464697&page=1 
(emphasis added).
    465. The Senate Armed Services Committee reported that the 
Guantanamo trip occurred a week after a group of Guantanamo 
interrogators attended training at Fort Bragg, North Carolina 
conducted by instructors from JPRA's SERE school. ``Senate 
Armed Services Committee Inquiry into the Treatment of 
Detainees in U.S. Custody,'' at xvi, available at http://
levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf.
    466. Sands, ``The Green Light,'' Vanity Fair, May 2008, 
available at http://www.vanityfair.com/politics/features/2008/
05/guantanamo200805?currentPage=1.
    467. Memorandum for Commander, United States Southern 
Command, Counter-Resistance Strategies, From Maj. Gen. Michael 
Dunlavey (Oct. 11, 2002), available at http://
www.torturingdemocracy.org/documents/20021011.pdf.
    468. ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' at xviii-xix, 
available at http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf.
    469. Memorandum for Commander, Joint Chiefs of Staff, 
Counter-Resistance Techniques, From Gen. James T. Hill (Oct. 
25, 2002).
    470. ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' at xvii-xix, 
available at http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf.
    471. Memorandum for the Secretary of Defense [Donald 
Rumsfeld], Counter-Resistance Techniques, From W. J. Haynes II, 
General Counsel, Department of Defense (Nov. 27, 2002), 
available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/
02.12.02.pdf and http://www.torturingdemocracy.org/documents/
20021127-1.pdf.
    472. Id. (emphasis added)
    473. ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' at xx, available at 
http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf (emphasis added).
    474. Memorandum for Commander, US SOUTHCOM, Counter-
Resistance Techniques, From Donald Rumsfeld, Secretary of the 
Defense (Jan. 15, 2003), available at http://www.gwu.edu/
nsarchiv/NSAEBB/NSAEBB127/03.01.15.pdf.
    475. Memorandum to Secretary of Defense Donald Rumsfeld, 
Detainee Interrogations in the Global War on Terrorism: 
Assessment of Legal, Historical, Policy, and Operational 
Considerations, From Pentagon Working Group (Mar. 6, 2003), 
excerpts available at http://news.findlaw.com/hdocs/docs/
torture/30603wgrpt.html>; see also Bravin, ``Pentagon Report 
Set Framework for Use of Torture,'' Wall St. J., June 7, 2004, 
at A1.
    476. Memorandum for William J. Haynes, II, General Counsel, 
Department of Defense, Re: Military Interrogation of Alien 
Unlawful Combatants Held Outside the United States, from John 
C. Yoo, Deputy Assistant Att'y Gen., Dept. of Justice (Mar. 14, 
2003) [hereinafter ``March 14, 2003 Torture Memorandum''].
    477. As to the reach of the AUMF, Yoo noted: ``[Congress] 
has recognized the President's constitutional power to use 
force to prevent and deter future attacks both within and 
outside the United States.'' March 14, 2003 Torture Memorandum 
at 3. As noted, the AUMF was limited to authorizing force 
against the perpetrators of the 9/11 attacks, and was certainly 
not an open-ended authorization to use force anywhere for any 
purpose, including that of ``pre-empting'' other terrorist 
attacks ``within and outside the United States.'' Mr. Yoo 
himself, in his September 25, 2001 War Powers Memorandum 
specifically described the limitations of the AUMF.
    478. March 14, 2003 Torture Memorandum at 3 (emphasis 
added). One reason that Mr. Yoo may have drafted this 
particular memo to encompass the president's ability to 
exercise war powers (including torture) inside the United 
States was his knowledge that U.S. citizen Jose Padilla had 
been arrested in Chicago, placed into military custody, and 
subject to such harsh interrogation.
    479. March 14, 2003 Torture Memorandum at 4 (emphasis 
added).
    480. National security scholar Deborah Pearlstein of the 
Woodrow Wilson School of Public Affairs commented on a similar 
passage in the March 14, 2003 Torture Memorandum:

    Of all the passages in the [March 14, 2003 Torture 
Memorandum] worthy of dissection, I still can't get past the 
following:
    Because of the secret nature of al Qaeda's operations, 
obtaining advance information about the identity of al Qaeda 
operatives and their plans may prove to be the only way to 
prevent direct attacks on the United States. Interrogation of 
captured al Qaeda operatives could provide that information; 
indeed, in many cases interrogation may be the only method to 
obtain it. [citing March 14, 2003 Torture Memorandum at 4] 
(emphasis added by Pearlstein)
    No citation to authority. No offer of any logical or 
factual support for the claim. No reference to administration 
policy documents, security analyses, military or intelligence 
risk assessments, or any particularly evident basis for the 
statements of any kind. Just Yoo.
    Hard to say what bothers me most here. One possibility is 
just the painful internal contradiction. John Yoo (among 
others) has devoted so much time to trumpeting the importance 
of judicial deference to executive expertise. Too bad it turns 
out that the only ``executive'' expertise evident here is Yoo's 
own take on what might be effective in preventing future 
attacks. Can't particularly think of anything other than 
torturing captured detainees. So that must be the only way.
    Maybe it's that the passage appears not in some foreign 
policy article or popular op-ed, in which citation to any 
supporting basis for such assertions wouldn't be expected--but 
rather in a legal memo, as part of a legal analysis of the 
president's powers as commander in chief--to which any first-
year law firm associate would respond by just hitting the Alt-
F8 macro demanding the author ``state the basis'' of the claim. 
Or maybe it's the entirely illusory nature of the proposition. 
We ``may be'' all about to explode. Or not. Just wanted to 
throw that out there as a possibility as the reader 
contemplates whether to buy into the otherwise, uh, unusual, 
legal analysis that follows.

Pearlstein, Stuck on Yoo, Slate.com, Apr. 3, 2008, available at 
http://www.slate.com/blogs/blogs/convictions/archive/2008/04/
03/stuck-on-yoo.aspx.
    481. March 14, 2003 Torture Memorandum at 6.
    482. Id. at 8 n. 10. Mr. Yoo cited to an October 23, 2001, 
memorandum for this remarkable proposition. This is typical of 
the secret law developed within the Department of Justice, 
where certain legal propositions acquire internal legitimacy by 
sheer repetition.
    483. Id. at 11.
    484. Id. at 14.
    485. Id. at 16.
    486. Id. at 16.
    487. The torture laws, 18 U.S.C. Sec. Sec. 2340, 2340A, and 
2340B, were enacted as section 506 of ``Foreign Relations 
Authorization Act, fiscal Years 1994 and 1995,'' Pub. L. 103-
236, 108 Stat. 382, Apr. 30, 1994, titled ``Torture Convention 
Implementation.''
    488. Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Art. 3, S. 
Treaty Doc. No. 20, 100th Cong., 2d Sess., (1988) (emphasis 
added), available at http://www.hrweb.org/legal/cat.html.
    489. Id.
    490. 18 U.S.C. Sec. 2340A(a).
    491. It is one thing for John Yoo to say that the issue as 
to whether it applies to the military is ``open to question'' 
or ``debatable'' or some other euphemism to suggest that in his 
view there may be doubt, but the assertion that Congress 
displayed no intent to apply the statute to military personnel 
flies against every reasonable review of the historical record.
    492. March 14, 2003 Torture Memorandum at 18-20.
    493. Memorandum to Commander, U.S. Southern Command, 
Counter-Resistance Techniques in the War on Terrorism, from 
Donald Rumsfeld, Secretary of the Defense, (Apr. 16, 2003), 
available at http://www.gwu.edu/nsarchiv/NSAEBB/NSAEBB127/
03.04.16.pdf.
    494. Memorandum Opinion for the Deputy Attorney General, 
Legal Standards Applicable Under U.S.C. Sec. Sec. 2340-2340A, 
By Daniel Levin, Acting Assistant Attorney General, (Dec. 30, 
2004), available at http://www.justice.gov/olc/
18usc23402340a2.htm. Footnote 8 of that memorandum reads as 
follows:

    While we have identified various disagreements with the 
August 2002 Memorandum, we have reviewed this Office's prior 
opinions addressing issues involving treatment of detainees and 
do not believe that any of their conclusions would be different 
under the standards set forth in this memorandum.

    495. The Role of the FBI at Guantanamo Bay: Hearing Before 
the Subcomm. on International Organizations, Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs, 110th Cong. 6 
(June 4, 2008) (statement of Glenn A. Fine, Inspector General, 
Department of Justice), available at http://www.usdoj.gov/oig/
testimony/t0806/final.pdf. See also Interrogation Log, Detainee 
063, reprinted by Time Magazine, at http://www.time.com/time/
2006/log/log.pdf. The Senate Armed Services Committee also 
described aspects of the al-Khatani interrogation in the 
context of the issues associated with the adoption of harsh 
interrogation techniques as follows:

    At about the same time [approximately December 2002], a 
dispute over the use of aggressive techniques was raging at 
GTMO over the interrogation of Mohammed al-Khatani, a high 
value detainee. Personnel from CITF and the Federal Bureau of 
Investigation (FB) had registered strong opposition, [sic] to 
interrogation techniques proposed for use on Khatani and made 
those concerns known to the DoD General Counsel's office. 
Despite those objections, an interrogation plan that included 
aggressive techniques was approved. The interrogation itself, 
which actually began on November 23, 2002, a week before the 
Secretary's December 2, 2002 grant of blanket authority for the 
use of aggressive techniques, continued through December and 
into mid-January 2003.

``Senate Armed Services Committee Inquiry into the Treatment of 
Detainees in U.S. Custody,'' at xx, available at http://
levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf. 
The interrogation was described as follows: ``While key 
documents relating to the interrogation remain classified, 
published accounts indicate that military working dogs had been 
used against Khatani. He had also been deprived of adequate 
sleep for weeks on end, stripped naked, subjected to loud 
music, and made to wear a leash and perform dog tricks.'' Id. 
at xxi.
    496. Woodward, ``Detainee Tortured Says, U.S. Official,'' 
Wash. Post, Jan. 14, 2009, at A01, available at http://
www.washingtonpost.com/wp-dyn/content/article/2009/01/13/
AR2009011303372_--pf.html.
    497. Id.
    498. The Role of the FBI at Guantanamo Bay: Hearing Before 
the House Committee on Foreign Affairs Subcommittee on 
International Organizations, Human Rights, and Oversight, 110th 
Cong. 8 (June 4, 2008) (statement of Glenn A. Fine, Inspector 
General, Department of Justice), available at http://
www.usdoj.gov/oig/testimony/t0806/final.pdf.
    499. See, e.g., Center for Constitutional Rights, ``Report 
on Torture and Cruel, Inhuman, and Degrading Treatment of 
Prisoners at Guantanamo Bay, Cuba'' (July 2006), available at 
http://ccrjustice.org/files/Report_ReportOnTorture.pdf.
    500. ``CJTF-7'' stands for the ``Combined Joint Task Force 
7,'' referring to the United States Army in Iraq.
    501. Final Report of the Independent Panel to Review 
Department of Defense Operations, Hon. James R. Schlesinger, 
Chairman, 37 (Aug. 24 2004) (emphasis added), available at 
http://www.defenselink.mil/news/Aug2004/
d20040824finalreport.pdf.
    502. Hess, ``Iraqi Detainee Interrogations Detailed,'' 
Boston.Globe, Sep. 26, 2008, available at http://
www.boston.com/news/nation/washington/articles/2008/09/26/
iraqi_detainee_interrogations_detailed/.
    503. Treatment of Detainees in U.S. Custody: Hearing Before 
the S. Comm. on Armed Services, 110th Cong. 3, 5 (2008) 
(statement of Steven M. Kleinman, Colonel, USAFR), available at 
http://media.washingtonpost.com/wp-srv/nation/documents/
Kleinman-092508.pdf.
    504. Interview with Deputy Secretary of Defense Paul 
Wolfowitz (Pentagon Channel television broadcast May 4, 2004), 
transcript available at http://www.defenselink.mil/transcripts/
transcript.aspx?transcriptid=2970. Wolfowitz was asked about 
the Abu Ghraib scandal:

    Q: Is this going to effect what we're doing over there?
    Mr. Wolfowitz: Of course, it has a negative effect. That's 
why it's such a disservice to everyone else, that a few bad 
apples can create some large problems for everybody.

    505. ``Senate Armed Services Committee Inquiry into the 
Treatment of Detainees in U.S. Custody,'' at xx, xxi, available 
at http://levin.senate.gov/newsroom/supporting/2008/
Detainees.121108.pdf.
    506. See, e.g., Crawford, ``Sources: Top Bush Advisors 
Approved `Enhanced Interrogation' Detailed Discussions Were 
Held About Techniques to Use on al Qaeda Suspects,'' 
ABCNews.com, Apr. 9, 2008, available at http://abcnews.go.com/
TheLaw/LawPolitics/story?id=4583256.
    507. Id. Ashcroft declined to be interviewed by Justice 
Department Inspector General Glenn Fine as to issues associated 
with the FBI's role in interrogation policy.
    508. Priest, ``Justice Dept. Memo Says Torture `May Be 
Justified,' '' Wash. Post, June 13, 2004, available at http://
www.washingtonpost.com/wp-dyn/articles/A38894-2004Jun13.html.
    509. The Detainee Treatment Act of 2005 was made part of 
the Defense Department Authorization Act, Title X, Pub. L. 109-
148, 119 Stat. 2739.
    510. The phrase ``cruel, inhuman or degrading treatment'' 
was defined in subsection (d) as ``cruel, unusual, and inhumane 
treatment or punishment prohibited by the Fifth, Eighth, and 
Fourteenth Amendments to the Constitution of the United States, 
as defined in the United States Reservations Declarations and 
Understandings to the United Nations Convention Against Torture 
and Other Forms of Cruel, Inhuman or Degrading Treatment or 
Punishment done at New York, December 10, 1984.
    511. As discussed in connection with the discussion of 
detention policies, the DTA also provided various ``combatant 
status review'' procedures to be used with the Guantanamo 
detainees, and expressly sought to limit the Guantanamo 
detainees' rights to seek habeas corpus in the federal courts. 
DTA, Sec. Sec. 1005(a) and (b) (combatant status review 
procedures), and 1006(d) (relating to habeas).
    512. ``President's Statement on Signing of H.R. 2863, the 
``Department of Defense, Emergency Supplemental Appropriations 
to Address Hurricanes in the Gulf of Mexico, and Pandemic 
Influenza Act, 2006,'' Dec. 30, 2005, available at http://
www.whitehouse.gov/news/releases/2005/12/20051230-8.html
    513. The Military Commissions Act of 2006 (MCA), Pub. L. 
No. 109-366, 120 Stat. 2600.
    514. See MCA, Sec. 3, creating new Title 47, sec. 948r, 
which provides, in pertinent part:



           *       *       *       *       *       *       *
    (c) Statements Obtained Before Enactment of Detainee 
Treatment Act of 2005--A statement obtained before December 30, 
2005 (the date of the enactment of the Defense Treatment Act of 
2005) in which the degree of coercion is disputed may be 
admitted only if the military judge finds that--
          (1) the totality of the circumstances renders the 
        statement reliable and possessing sufficient probative 
        value; and
          (2) the interests of justice would best be served by 
        admission of the statement into evidence.
    (d) Statements Obtained After Enactment of Detainee 
Treatment Act of 2005--A statement obtained on or after 
December 30, 2005 (the date of the enactment of the Defense 
Treatment Act of 2005) in which the degree of coercion is 
disputed may be admitted only if the military judge finds 
that--
          (1) the totality of the circumstances renders the 
        statement reliable and possessing sufficient probative 
        value;
          (2) the interests of justice would best be served by 
        admission of the statement into evidence; and
          (3) the interrogation methods used to obtain the 
        statement do not amount to cruel, inhuman, or degrading 
        treatment prohibited by section 1003 of the Detainee 
        Treatment Act of 2005.

    515. The effort to strip habeas corpus protections from 
Guantanamo detainees is discussed in the Detention section of 
this report.
    516. 152 Cong. Rec. S10246 (daily ed. Sept. 27, 2006) 
(statement of Sen. Warner).
    517. 152 Cong. Rec. S10254 (daily ed. Sept. 27, 2006) 
(statement of Sen. Leahy) (emphasis added).
    518. Press Release, ``Senators McCain and Graham Offer 
Support for Attorney General Nominee [Judge Mukasey],'' Nov. 1, 
2007, available at http://mccain.senate.gov/public/index.cfm? 
FuseAction=PressOffice.PressReleases 
&ContentRecord_id=fca2e817-7e9c-9af9-7d5b-55ef66eeb 
23f&Region_id=&Issue_id.
    519. ``President Thanks Senate for Passage of Military 
Commissions Act of 2006,'' available at http://
www.whitehouse.gov/news/releases/2006/09/20060928-15.html .
    520. ``Intelligence Authorization Act for Fiscal Year 
2008,'' Enrolled as Agreed to or Passed by Both House and 
Senate, H.R. 2082, 110th Cong. The Act passed the House by a 
222-199 vote on December 13, 2007, passed the Senate by a 51-45 
vote on February 13, 2007. The House failed to override the 
veto, 2/3 being required, by a vote of 225-188 on March 11, 
2008.
    521. ``[President George W. Bush's] Message to the House of 
Representatives,'' Mar. 8, 2008, available at http://
www.whitehouse.gov/news/releases/2008/03/20080308-1.html.
    522. See, e.g., Mazzetti, ``CIA Destroyed Tapes of 
Interrogations,'' N.Y. Times, December 6, 2007, available at 
http://www.nytimes.com/2007/12/06/washington/06cnd-intel.html.
    523. In a letter filed on March 2, 2009, by federal 
prosecutors investigating the destroyed tapes, the government 
revealed that CIA officers had destroyed ninety-two video 
tapes, representing hundreds of hours of footage, in 2005 
documenting the interrogation of two al Qaeda detainees. The 
letter's filing came as part of a Freedom of Information Act 
lawsuit brought by the American Civil Liberties Union.
     See, e.g., Manzetti, ``U.S. Says C.I.A. Destroyed 92 Tapes 
of Interrogations,'' N.Y. Times, Mar. 3, 2009, available at 
http://www.nytimes.com/2009/03/03/washington/03web-
intel.html?scp=2&sq=CIA&st=cse; and for a copy of the letter, 
http://news.findlaw.com/nytimes/docs/cia/destruction-92-video-
tapes.html.
    524. Id.
    525. Id.
    526. Id.
    527. Mazzetti, ``C.I.A. Was Urged to Keep Interrogation 
Videotapes,'' N.Y. Times, Dec. 8, 2007, available at http://
www.nytimes.com/2007/12/08/washington/08intel.html.
    528. See, e.g., Mazzetti, ``CIA Destroyed Tapes of 
Interrogations,'' N.Y. Times, Dec. 6, 2007, available at http:/
/www.nytimes.com/2007/12/06/washington/06cnd-intel.html.
    529. Id.
    530. Johnston, ``Bush Lawyers Discussed Fate of C.I.A. 
Tapes,'' N.Y. Times, Dec.19, 2007, available at http://
www.nytimes.com/2007/12/19/washington/19intel.html .
    531. Id.
    532. Torture and the Cruel, Inhuman and Degrading Treatment 
of Detainees: the Effectiveness and Consequences of `Enhanced' 
Interrogation, Hearing before Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong. 2 (2007).
    533. Torture and the Cruel, Inhuman and Degrading Treatment 
of Detainees: the Effectiveness and Consequences of 'Enhanced' 
Interrogation, Hearing before Subcomm. on Const., Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong. 22 (2007) (statement of former SERE instructor Malcolm 
Nance) (emphasis added).
    534. Id. at 29 (statement of Col. Steven Kleinman, U.S. Air 
Force).
    535. Id. at 30 (statement of Col. Steven Kleinman, U.S. Air 
Force).
    536. Id. at 36 (statement of Amrit Singh, Esq., American 
Civil Liberties Union).
    537. Id. at 37.
    538. Id. at 51-52 (testimony of Col. Steven Kleinman, U.S. 
Air Force).
    539. Id. at 67 (statement of former SERE instructor Malcolm 
Nance).
    540. Hearing on the Applicability of Federal Criminal Laws 
to the Interrogation of Detainees Before the H.Comm. on the 
Judiciary, 110th Cong. (Dec. 20, 2007) (unpublished transcript 
at 110) (testimony of David Addington, Chief of Staff to Vice 
President).
    541. Id. unpublished transcript at 20 (statement of Prof. 
Steve Saltzburg, G.W. University).
    542. Id. unpublished transcript at 41 (statement of Dir. 
Elisa Massimino, Human Rights Watch).
    543. Id. unpublished transcript at 57-59 (statement of 
Prof. Steve Saltzburg, G.W. University).
    544. Id. unpublished transcript at 41 (statement of Dir. 
Elisa Massimino, Human Rights Watch).
    545. In a statement issued January 2008, Chairman Conyers 
stated:

    While I certainly agree that these matters warrant an 
immediate criminal investigation, it is disappointing that the 
Attorney General has stepped outside the Justice Department's 
own regulations and declined to appoint a more independent 
special counsel in this matter. Because of this action, the 
Congress and the American people will be denied--as they were 
in the Valerie Plame matter--any final report on the 
investigation.
    Equally disappointing is the limited scope of this 
investigation, which appears limited to the destruction of two 
tapes. The government needs to scrutinize what other evidence 
may have been destroyed beyond the two tapes, as well as the 
underlying allegations of misconduct associated with the 
interrogations.
    The Justice Department's record over the past seven years 
of sweeping the Administration's misconduct under the rug has 
left the American public with little confidence in the 
Administration's ability to investigate itself. Nothing less 
than a special counsel with a full investigative mandate will 
meet the tests of independence, transparency and completeness. 
Appointment of a special counsel will allow our nation to begin 
to restore our credibility and moral standing on these issues.

Press Release, H. Comm. on the Judiciary, ``Conyers Demands 
that DOJ Appoint Real Special Counsel,'' Jan. 2, 2008, 
available at http://judiciary.house.gov/news/010208.html.
    546. General Michael Hayden, Director of the CIA, had 
testified as follows:

    [I]n the life of the CIA detention program we've detained 
fewer than a hundred people. Of the people detained, fewer than 
a third have had any of what we call the enhanced interrogation 
techniques used against them. Let me make it very clear and to 
state so officially in front of this committee that 
waterboarding has been used on only three detainees. It was 
used on Khalid Sheikh Mohammed, it was used on Abu Zubaydah, 
and it was used on [Abd al-Rahim al-Nashiri]. The CIA has not 
used waterboarding for almost five years. We used it against 
these three high value detainees because of the circumstances 
of the time.

Annual Worldwide Threat Assessment: Hearing Before the S. 
Select Intelligence Comm., 110th Cong. 24-25 (2008) (statement 
of Gen. Michael Hayden, Director of National Intelligence), 
available at http://www.dni.gov/testimonies/
20080205_transcript.pdf.
    547. Hearing on Oversight of the Department of Justice: 
Hearing Before the House Comm. on the Judiciary, 110th Cong. 
(Feb. 7, 2008) (statement of Attorney General Michael Mukasey) 
(unrevised transcript at 17-18) (emphasis added).
    548. Rep. Jan Schakowsky, Rep. Conyers, and 54 other 
Members of the House subsequently sent a letter to Attorney 
General Mukasey on June 6, 2008, asking that he ``appoint a 
special counsel to investigate whether the Bush 
Administration's policies regarding the interrogation of 
detainees have violated federal criminal laws.'' That letter 
referenced confirmed interrogation practices, detainee deaths 
in custody, and the abuses reported at Abu Ghraib. Letter from 
Rep. Jan Schakowksy, et al., to Michael Mukasey, Attorney 
General (June 6, 2008) available at http://www.house.gov/
schakowsky/Letter%20to%20Mukasey%20Special%20Counsel.pdf.
    549. Hearing on Oversight of the Federal Bureau of 
Investigation: Hearing before the H. Comm. on the Judiciary, 
110th Cong. (Apr. 23, 2008) (testimony of Dir. Robert S. 
Mueller) (unrevised transcript at 69).
    550. Id. (testimony of Dir. Robert S. Mueller) (unrevised 
transcript at 69).
    551. Id. (testimony of Dir. Robert S. Mueller) (unrevised 
transcript at 77).
    552. Id. (testimony of Dir. Robert S. Mueller) (unrevised 
transcript at 82).
    553. Id. (testimony of Dir. Robert S. Mueller) (unrevised 
transcript at 95-97).
    554. See, e.g., Statement by the Press Secretary (Ari 
Fleischer), April 2, 2002, available at http://
www.whitehouse.gov/news/releases/2002/04/20020402-2.html. The 
other two men were captured subsequent to the August 1, 2002 
memoranda authorizing waterboarding. Al-Nashiri was captured in 
the United Arab Emirates in November 2002, and Khalid Sheikh 
Mohammed was captured in Rawalpindi, Pakistan on March 1, 2003. 
See, e.g., President George W. Bush, Remarks at signing of 
National Defense Authorization Act, (Dec. 2, 2002), available 
at http://www.whitehouse.gov/news/releases/2002/12/20021202-
8.html (discussing capture of al-Nashiri), and Press Briefing 
by Ari Fleischer, (Mar. 3, 2003), available at http://
www.whitehouse.gov/news/releases/2003/03/20030303-3.html 
(discussing capture of Khalid Sheik Mohammed).
    555. From the Department of Justice to Guantanamo Bay: 
Administration lawyers and Administration Interrogation Rules, 
Part V: Hearing before the H. Comm. on the Judiciary, 110th 
Cong. (July 17, 2008) (testimony of former Attorney General 
John Ashcroft) (unrevised transcript at 15-16).
    556. Hearing on Oversight of the Department of Justice: 
Hearing before the H. Comm. on the Judiciary, 110th Cong. (July 
23, 2008) (testimony of Att. Gen. Michael Mukasey) (unrevised 
transcript at 33-34).
    557. Justice Department's Office of Legal Counsel: Hearing 
before the Subcomm. on the Constitution, Civil Rights, and 
Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 
(2008).
    558. Id. at 17-18 (2008) (testimony of Steven Bradbury, 
Principal Deputy Assistant Attorney General, Department of 
Justice).
    559. Shane, Johnston, and Risen, ``Secret U.S. Endorsement 
of Severe Interrogations,'' N. Y. Times, Oct. 3, 2007. As to 
the efforts by the Judiciary Committee to obtain access to the 
documents setting forth the interrogation rules, the following 
colloquy is instructive:

    Mr. Nadler: We're not talking about public disclosure, 
we're talking about disclosure to this Committee.
    Mr. Bradbury: I understand that. And my point today is we 
recognize your interest, we recognize the unique nature of this 
issue, the controversial nature of this issue. We do recognize 
the extraordinary----
    Mr. Nadler: But what is--you keep not answering my 
question. What is the legal basis for your assertion for your 
ability to have discretion about whether to give those document 
to us?
    Mr. Bradbury: Mr. Chairman, I'm not asserting any legal 
basis.
    Mr. Nadler: If there is not legal basis, then you must give 
them to us.
    Mr. Bradbury: It's not a decision for me, but I am saying--
I am saying that the Attorney General, in close consultation 
with the President, are giving careful consideration----
    Mr. Nadler: Are you head of the Office of Legal Counsel?
    Mr. Bradbury: Yes

           *       *       *       *       *       *       *

    Mr. Nadler: So you have advised the Attorney General that 
they have the legal right to withhold these documents from this 
Committee?
    Mr. Bradbury: I don't----
    Mr. Nadler: Or that they don't have the legal right?
    Mr. Bradbury: Mr. Chairman, the Executive Branch does have 
the legal right to protect the confidentiality of deliberations 
of the Executive Branch and sensitive documents----
    Mr. Nadler: The Executive Branch, you're saying, has the 
unlimited right, in its own discretion, to withhold any 
document because of confidentiality?
    Mr. Bradbury: I'm absolutely not saying that . . .
Justice Department's Office of Legal Counsel: Hearing before 
the Subcomm. on the Constitution, Civil Rights, and Civil 
Liberties of the H.Comm. on the Judiciary, 110th Cong., at 16 
(2008) (testimony of Steven Bradbury, Principal Deputy 
Assistant Attorney General, Department of Justice).
    560. Letter from Rep. John Conyers, Jr., Chairman, H. Comm. 
on the Judiciary, and Rep. Jerrold Nadler, Chairman, 
Subcommittee on the Constitution, Civil Rights and Civil 
Liberties, to Michael Mukasey, Attorney General (April 29, 
2008), available at http://judiciary.house.gov/news/pdfs/
Conyers-Nadler080429.pdf.
    561. Letter and Subpoena from John Conyers, Jr., Chairman, 
H. Comm. on the Judiciary to Michael Mukasey, Attorney General 
(June 27, 2008), available at http://judiciary.house.gov/news/
pdfs/Conyers080627.pdf.
    562. Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part I): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong. (2008).
    563. See, e.g., Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part I): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong., at 103-04 (2008) (testimony of Prof. 
David Luban, Georgetown University Law Center).
    564. Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part I): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong., at 120 (2008) (testimony of Prof. David 
Luban, Georgetown University Law Center).
    565. Id.
    566. Id. at 22 (2008) (testimony of Dan Levin, former 
Acting Assistant Att'y Gen, Dept. of Justice, Office of Legal 
Counsel).
    567. Id. at 34-35 (2008) (testimony of Dan Levin, former 
Acting Assistant Att'y. Gen. Dept. of Justice, Office of Legal 
Counsel).
    568. See generally, Department of Justice to Guantanamo 
Bay: Administration Lawyers and Administration Interrogation 
Rules (Part II): Hearing before the Subcomm. on the 
Constitution, Civil Rights, and Civil Liberties of the H.Comm. 
on the Judiciary, 110th Cong., at 34-35 (2008) (testimony of 
Col. Lawrence Wilkinson, former Chief of Staff to Secretary of 
State Colin Powell) at 46-48.
    569. Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part III): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong. (2008).
    570. Id. at 62 (2008) (testimony of Prof. John Yoo, former 
Deputy Assistant Attorney General, Dept. of Justice, Office of 
Legal Counsel).
    571. Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part III): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong., at 47 (2008) (testimony of Prof. John 
Yoo, former Deputy Assistant Attorney General, Dept. of 
Justice, Office of Legal Counsel).
    572. Id. at 143-144 (2008) (testimony of Prof. John Yoo, 
former Deputy Assistant Attorney General, Dept. of Justice 
Office of Legal Counsel).
    573. Id. at 31-32 (testimony of David Addington, Chief of 
Staff to Vice President).
    574. Id. at 110 (testimony of David Addington, Chief of 
Staff to Vice President).
    575. See generally From the Department of Justice to 
Guantanamo Bay: Administration Lawyers and Administration 
Interrogation Rules (Part IV), Hearing before the Subcomm. on 
the Constitution, Civil Rights, and Civil Liberties of the 
H.Comm. on the Judiciary, 110th Cong. (July 15, 2008) at 29-31 
(testimony of Douglas Feith) (describing himself as ``receptive 
to the view that Common Article 3 should bee used'').
    576. Id. at 52-54 (testimony of Douglas Feith).
    577. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules 
(Part V): Hearing before the Subcomm. on the Constitution, 
Civil Rights, and Civil Liberties of the H.Comm. on the 
Judiciary, 110th Cong. (July 17, 2008) (unrevised transcript at 
127) (testimony of former Attorney General John Ashcroft).
    578. Id. (emphasis added).
    579. See, e.g., Mayer, ``Outsourcing Torture, the Secret 
History of America's ``Extraordinary Rendition'' program,'' The 
New Yorker, Feb. 14, 2005, available at http://
www.newyorker.com/archive/2005/02/14/050214fa_fact6.
    580. Condoleezza Rice, Secretary of State, Speech at 
Andrews Air Force Base, December 5, 2005, available at http://
usinfo.state.gov/is/Archive/2005/Dec/05-978451.html.
    581. Campbell, ``September 11: Six Months on: U.S. Sends 
Suspects to Face Torture,'' The Guardian, Mar. 12, 2002, at 4 
(quoting an unnamed U.S. diplomat as acknowledging ``[a]fter 
September 11, [renditions] have been occurring all the time. . 
. . It allows us to get information from terrorists in a way we 
can't do on U.S. soil.'').
    582. Jehl and Johnston, ``Rule Change Lets C.I.A Freely 
Send Suspects Abroad to Jails,'' N.Y. Times, Mar. 6, 2005, at 
A1 (``former government officials say that since the Sept. 11 
attacks, the CIA has flown 100 to 150 suspected terrorists from 
one foreign country to another, including to Egypt, Syria, 
Saudi Arabia, Jordan and Pakistan''); Satterthwaite & Fisher, 
Beyond Guantanamo: Transfers to Torture One Year After Rasul v. 
Bush (2005), Ctr. For Human Rights & Global Justice, N.Y. Univ. 
Sch. of Law, available at http://www.chrgj.org/docs/
Beyond%20Guantanamo%20Report%20FINAL.pdf (quoting Jane Mayer: 
``one source knowledgeable about the rendition program 
suggested that the number of renditions since September may 
have reached as high as several thousand).
    583. Whitlock, ``Europeans Investigate CIA Role in 
Abductions,'' Wash. Post, Mar. 13, 2005, at A1.
    584. Priest and Gellman, ``U.S. Decries Abuse but Defends 
Interrogations,'' Wash. Post, Dec. 26, 2002, at A1.
    585. See Garcia, ``Renditions: Constraints Imposed by Laws 
on Torture, No. RL32890'' Congressional Research Service 
Reports to Congress, at 3 (Jan. 25, 2008); Mayer, ``Outsourcing 
Torture,'' New Yorker, Feb. 14, 2005, http://www.newyorker.com/
archive/2005/02/14/050214fa_fact6.
    586. See Comm. on Int'l Human Rights of the NY Bar Ass'n 
and Ctr. For Human Rights and Global Justice, NYU School of 
Law, Torture by Proxy: International and Domestic Law 
Applicable to ``Extraordinary Renditions,'' at 15-16 (June 
2006), available at http://www.chrgj.org/docs/
TortureByProxy.pdf (providing examples of statements from FBI 
and CIA Directors Louis J. Freeh and George Tenet describing 
renditions to ``justice'' and their agencies role in this 
practice).
    587. See, e.g., Commission of Inquiry into the Actions of 
Canadian Officials in Relation to Maher Arar, Report of the 
Events Relating to Maher Arar, Factual Background, Vol. I, II 
and Analysis and Recommendations, Addendum, at 245 (2006), 
available at http://www.ararcommission.ca/eng/2007-08-08-
addendum.pdf (Canadian officials in Washington ``spoke of a 
trend they had noted lately that when the CIA or FBI cannot 
legally hold a terrorist subject, or with a target questioned 
in a firm manner, they have them rendered to countries willing 
to fulfill that role. He said Mr. Arar was a case in point.''); 
Mayer, ``Outsourcing Torture,'' New Yorker, Feb. 14, 2005, 
available at http://www.newyorker.com/archive/2005/02/14/
050214fa_fact6.
    588. For an analysis of the full range of legal constraints 
on extraordinary rendition, see Comm. On Int'l Human Rights of 
the NY Bar Ass'n and Ctr. For Human Rights and Global Justice, 
NYU School of Law, Torture by Proxy: International and Domestic 
Law Applicable to ``Extraordinary Renditions,'' at 55-83 (as 
modified June 2006), http://www.chrgj.org/docs/
TortureByProxy.pdf; Margaret L. Satterthwaite, Rendered 
Meaningless: Extraordinary Rendition and the Rule of Law, 75 
Geo. Wash. L. Rev. 1333 (2007); Rendition to Torture: the Case 
of Maher Arar: Joint Hearing before the Subcomm. on Int'l 
Orgs., Human Rights, and Oversight of the H. Comm. on Foreign 
Affairs and Subcomm. on Const., Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, 110th Cong., Serial 
No. 110-52, at 93-102 (Oct. 18, 2007) (testimony of Professor 
David Cole); Michael John Garcia, Renditions: Constraints 
Imposed by Laws on Torture, Congressional Research Service 
Reports to Congress, No. RL32890, at 3 (Jan. 25, 2008).
    589. U.N. Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment, opened for 
signature December 10, 1984, G.A. Res. 39/46, 39 UN GAOR Supp. 
No. 51, at 197, UN Doc. A/RES/39/708 (1984), entered into force 
June 26, 1987, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as 
modified, 24 I.L.M. 535. Congress implemented U.S. obligations 
under Art. 3 through the Foreign Affairs Reform and 
Restructuring Act of 1998 (FARRA). Pub. L. No. 105-277, div. G, 
Title XXII, Sec. 2242. In FARRA, Congress confirmed the non-
refoulement obligation ``not to expel, extradite, or otherwise 
effect the involuntary return of any person to a country in 
which there are substantial grounds for believing the person 
would be in danger of being subjected to torture, regardless of 
whether the person is physically present in the United States'' 
(emphasis added).
    590. 18 U.S.C. Sec. Sec. 2340A, B. 18 U.S.C. 2340A 
criminalizes torture committed outside the United States when 
the alleged offender is a U.S. national or is present in the 
United States. Congress did not enact legislation expressly 
prohibiting torture inside the United States, as it presumed 
that existing federal and State criminal law (e.g., laws 
prohibiting assault, manslaughter, and murder) would adequately 
cover acts within the United States.
    591. See Michael John Garcia, Renditions: Constraints 
Imposed by Laws on Torture, Congressional Research Service 
Reports to Congress, No. RL32890, at 12, 19 (Jan. 25, 2008).
    592. U.S. officials have taken the position that the 
Torture Convention's prohibition on transfers to countries 
where torture is likely does not apply extraterritorially 
(i.e., does not apply to transfers of individuals from one 
foreign country to another) as a matter of law though 
reiterating that, as a matter of policy, the United States does 
not torture, or send individuals to countries that torture. 
See, e.g., Letter from Richard A. Hertling, Acting Assistant 
Attorney General, U.S. Dept. Of Justice, to Rep. Jerrold 
Nadler, Chairman, Subcomm. on the Constitution, Civil Rights, 
and Civil Liberties, H. Comm. on the Judiciary (Feb. 26, 2007), 
at 4. Legal commentators have disagreed with the conclusion 
regarding the limited, territorial reach of the Torture 
Convention. See, e.g., Comm. On Int'l Human Rights of the NY 
Bar Ass'n and Ctr. For Human Rights and Global Justice, NYU 
School of Law, Torture by Proxy: International and Domestic Law 
Applicable to ``Extraordinary Renditions,'' at 50-54 (as 
modified June 2006) (concluding that ``there appears to be a 
gap in the implementation of FARRA's policy directive to apply 
the principle of non-refoulement regardless of whether the 
person is physically present in the United States'').
    593. See Letter from Richard A. Hertling, Acting Assistant 
Attorney General, U.S. Dept. Of Justice, to Rep. Jerrold 
Nadler, Chairman, Subcomm. on the Constitution, Civil Rights, 
and Civil Liberties, H. Comm. on the Judiciary (Feb. 26, 2007), 
at 4. The Convention Against Torture is silent regarding the 
use of assurances as a valid means of fulfilling its 
obligations, but the Committee Against Torture, an independent 
body that monitors implementation of the Torture Convention, 
has expressed concern over the United States's use of such 
assurances and has recommended that the United States accept 
assurances only from countries who do not practice torture, and 
only if adequate monitoring can be assured. John Garcia, 
``Renditions: Constraints Imposed by Laws on Torture, No. 
RL32890,'' Congressional Research Service Reports to Congress, 
at 11, n.29 (Jan. 25, 2008).
    594. Priest, ``CIA's Assurances on Transferred Suspects 
Doubted,'' Wash. Post, Mar. 17, 2005, at A1.
    595. Id. It also appears that the CIA is not required to 
obtain case-by-case approval from the White House or the State 
or Justice Departments before rendering a suspect to a foreign 
country. Jehl & Johnston, ``Rule Change Lets C.I.A Freely Send 
Suspects Abroad to Jails,'' N.Y. Times, Mar. 6, 2005, at A1. 
This would mean that the ``verbal'' assurance received by a CIA 
station chief would not be reviewed and validated by the 
agencies with expertise and responsibility for monitoring and 
enforcing human rights laws.
    596. Johnson, ``At a Secret Interrogation, Dispute Flared 
Over Tactics,'' N.Y. Times, Sept. 10, 2006, available at http:/
/www.nytimes.com/2006/09/10/washington/
10detain.html?pagewanted=all
    597. Office of the Inspector General, Department of 
Justice, ``A Review of the FBI's Involvement in and 
Observations of Detainee Interrogations in Guantanamo Bay, 
Afghanistan, and Iraq,'' 257 (2008) (referencing Vice Adm. 
Church's investigation into the abuse at Abu Ghraib prison and 
discovery that, through unwritten agreement, the Coalition 
Joint Task Force in Iraq provided a number of cells at Abu 
Ghraib for the CIA's exclusive use in holding ghost detainees).
    598. ``AR 15-6 Investigation of the Abu Ghraib Prison and 
205th Military Intelligence Brigade,'' by LTG Anthony R. Jones, 
at 23, available at http://fl1.findlaw.com/news.findlaw.com/
hdocs/docs/dod/fay82504rpt.pdf. See also Press Release, Human 
Rights First, Latest Army Report: More Involved in Abuse Than 
Previously Reported (August 25, 2004), available at http://
www.humanrightsfirst.org/media/2004_alerts/0825_b.htm.
    599. See, e.g., Amnesty International et al., ``Off the 
Record: U.S. Responsibility for Enforced Disappearances in the 
`War on Terror,' '' 4 (June 2007), available at http://
www.hrw.org/backgrounder/usa/ct0607/ct0607web.pdf.
    600. See, e.g., Human Rights Watch, ``Fighting Terrorism 
Fairly and Effectively, Recommendations for President-Elect 
Barack Obama,'' 14 (November 2008) available at http://
www.hrw.org/en/reports/2008/11/16/fighting-terrorism-fairly-
and-effectively; Amnesty International et al., ``Off the 
Record, U.S. Responsibility for Enforced Disappearances in the 
`War on Terror,' '' 2 (June 2007) available at http://
www.hrw.org/backgrounder/usa/ct0607/ct0607web.pdf.
    601. President George W. Bush, President Discusses Creation 
of Military Commissions to Try Suspected Terrorists, Sept. 6, 
2006, available at www.whitehouse.gov/news/releases/2006/09/
20060906-3.html.
    602. President George W. Bush, President Bush signs 
Military Commissions Act of 2006, Oct. 17, 2006, available at 
http://www.whitehouse.gov/news/releases/2006/10/print/20061017-
1.html.
    603. Exec. Order No. 13,440, 72 Fed. Reg. 40,707 (July 24, 
2007), available at http://www.fas.org/irp/offdocs/eo/eo-
13440.htm.
    604. Shane, Johnston, & Risen, ``Secret U.S. Endorsement of 
Severe Interrogations,'' N.Y. Times, Oct. 4, 2007, available at 
www.nytimes.com/2007/10/04/washington/
04interrogate.html?_r=1&oref=slogin.
    605. See, e.g., Esposito and Ryan, ``CIA Chief: We 
Waterboarded,'' ABC News, Feb. 5, 2008, available at http://
abcnews.go.com/Blotter/TheLaw/story?id=4244423&page=1.
    606. See, e.g., Amnesty International et al., ``Off the 
Record, U.S. Responsibility for Enforced Disappearances in the 
`War on Terror,' '' 14, 15 (June 2007) available at http://
www.hrw.org/backgrounder/usa/ct0607/ct0607web.pdf.
    607. Johnson, ``At a Secret Interrogation, Dispute Flared 
Over Tactics,'' N.Y. Times, Sept. 10, 2006, available at http:/
/www.nytimes.com/2006/09/10/washington/
10detain.html?pagewanted=all .
    608. Office of the Inspector General, Department of 
Justice, ``A Review of the FBI's Involvement in and 
Observations of Detainee Interrogations in Guantanamo Bay, 
Afghanistan, and Iraq'' 257 (2008) (referencing Vice Adm. 
Church's investigation into the abuse at Abu Ghraib prison and 
his discovery that, through unwritten agreement, the Coalition 
Joint Task Force in Iraq had provided a number of cells at Abu 
Ghraib for the CIA's exclusive use in holding ghost detainees).
    609. El-Masri v. U.S., 479 F.3d 296 (4th Cir.) (granting 
defendants' motion to dismiss based on state secret privilege), 
cert. denied, 128 S.Ct. 373 (2007).
    610. Rose, ``MI6 and CIA Sent Student to Morocco to be 
Tortured,'' The Observer, Dec. 11, 2005.
    611. Id.
    612. Mayer, ``Outsourcing Torture, the Secret History of 
America's `Extraordinary Rendition' Program,'' The New Yorker, 
Feb. 14, 2005, available at http://www.newyorker.com/archive/
2005/02/14/050214fa_fact6 (hereinafter ``Outsourcing 
Torture'').
    613. Bonner, ``Detainee Says He Was Tortured While in U.S. 
Custody,'' N.Y. Times, Feb. 13, 2005.
    614. Rose, ``A Secret agent's story: `I helped MI5. My 
Reward: Brutality and Prison,' '' The Observer, July 29, 2007.
    615. BBC News, ``UK man released from Guantanamo,'' Apr. 1, 
2007.
    616. Garcia, ``Renditions: Constraints Imposed by Laws on 
Torture, No. RL32890,'' Congressional Research Service Reports 
to Congress, at 2-3 & n. 6-7 (Jan. 25, 2008).
    617. Mariner, ``The Trials of Abu Omar,'' FindLaw, Mar. 12, 
2008.
    618. Perlez et al., ``Ex-Detainee of U.S. Describes a 6-
Year Ordeal,'' N.Y. Times, Jan. 6, 2009.
    619. See, e.g., European Parliament, Report on the Alleged 
Use of European Countries by the CIA for the Transportation and 
Illegal Detention of Prisoners, Jan. 30, 2007, available at 
http://www.europarl.europa.eu/comparl/tempcom/tdip/
final_report_en.pdf.
    620. Burns, ``CIA confirms British territory used in 
rendition flights,'' Int'l Herald Tribune, Feb. 22, 2008.
    621. Brinkley, ``Rice is Challenged in Europe Over Secret 
Prisons,'' N.Y. Times, Dec. 7, 2005.
    622. Garcia, ``Renditions: Constraints Imposed by Laws on 
Torture, No. RL32890,'' Congressional Research Service Reports 
to Congress, at 2-3 & n. 6-7 (Jan. 25, 2008).
    623. Verhaik, ``CIA officers could face trial in Britain 
over torture allegations,'' The Independent, Oct. 31, 2008.
    624. Rendition to Torture: the Case of Maher Arar, Joint 
Hearing before the Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs and Subcomm. on 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
on the Judiciary, 110th Cong., 80 (2007) (testimony of 
Frederick P. Hitz) (emphasis added).
    625. Id. at 35.
    626. Id. at 36.
    627. Id. at 42.
    628. See, e.g., Rendition to Torture: the Case of Maher 
Arar, Joint Hearing before the Subcomm. on Int'l Orgs., Human 
Rights, and Oversight of the H. Comm. on Foreign Affairs and 
Subcomm on Constitution, Civil Rights, and Civil Liberties of 
the H. Comm. on the Judiciary, 110th Cong. 42 (2007); 
Commission of Inquiry into the Actions of Canadian Officials in 
Relation to Maher Arar, Report of the Events Relating to Maher 
Arar: Analysis and Recommendations, at 13, 59 (Can.) (2006).
    629. CBC News, ``RCMP Chief Apologizes to Arar for 
`Terrible Injustices','' September 28, 2006, available at 
http://www.cbc.ca/canada/story/2006/09/28/zaccardelli-
appearance.html; CBC News, ``RCMP Embattled Chief Quits Over 
Arar Testimony,'' December 6, 2006, available at http://
www.cbc.ca/canada/story/2006/12/06/zaccardelli.html?ref=rss.
    630. Rendition to Torture: the Case of Maher Arar, Joint 
Hearing before the Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs and Subcomm. on 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
on the Judiciary, 110th Cong. 96 (2007).
    631. Rendition to Torture: the Case of Maher Arar, Joint 
Hearing before the Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs and Subcomm. on 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
on the Judiciary, 110th Cong. 80 (2007) (testimony of Frederick 
P. Hitz, Center for National Security Law, University of 
Virginia Law School).
    632. Id. at 80 (testimony of Frederick P. Hitz, Center for 
National Security Law, University of Virginia Law School).
    633. Id. at 89-90 (statement of John Garcia, Esq., 
Congressional Research Service).
    634. 18 U.S.C. Sec. 2340A-B.
    635. 28 U.S.C. Sec. 1350, note.
    636. Pub. L. No. 105-277, div. G, Title XXII, Sec. 2242(a).
    637. U.N. Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment, opened for 
signature December 10, 1984, G.A. Res. 39/46, 39 UN GAOR Supp. 
No. 51, at 197, UN Doc. A/RES/39/708 (1984), entered into force 
June 26, 1987, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), as 
modified, 24 I.L.M. 535.
    638. International Covenant on Civil and Political Rights 
(ICCPR), G.A. Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 
16, at 52, UN Doc. A/6316 Dec. 16, 1966, entered into force 23 
March 1976, 999 U.N.T.S. 171.
    639. Rendition to Torture: the Case of Maher Arar, Joint 
Hearing before the Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs and Subcomm. on 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
on the Judiciary, 110th Cong. 95 (2007) (testimony of Prof. 
David D. Cole, Esq., Georgetown University Law Center).
    640. Rendition to Torture: the Case of Maher Arar, Joint 
Hearing before the Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs and Subcomm. on 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
on the Judiciary, 110th Cong. 20 (2007); see also, id. at 3 
(IOHRO Chairman Bill Delahunt (D-MA); id. at 4 (IOHRO Ranking 
Member Dana Rohrabacher (R-CA) (``today we are making sure that 
we go on the record so that our executive branch is on notice 
that, yes, we believe that a mistake was made here and that an 
official apology, as well as perhaps some compensation, is 
justified''); id. at 21 (Constitution Ranking Member Trent 
Franks (R-AZ)).
    641. Letter from John Conyers, Jr., Ranking Member, H. 
Comm. on the Judiciary, to Clark Kent Ervin, Inspector General, 
Dept. Of Homeland Security, and John D. Ashcroft, Att'y General 
(December 16, 2003).
    642. Letter from John J. Conyers, Jr., Chairman, H. Comm. 
on the Judiciary, to Hon. Michael Chertoff, Secretary, Dep't of 
Homeland Security, (Jan. 10, 2008).
    643. Department of Homeland Security, Office of Inspector 
General, OIG-08-18, The Removal of a Canadian Citizen to Syria, 
at 22 (March 2008).
    644. Id. at 5 (March 2008).
    645. Id. at 22 (March 2008).
    646. Id. at 30-31 (March 2008) (emphasis added).
    647. Id. at 30 (March 2008).
    648. U.S. Department of Homeland Security Inspector General 
Report OIG-08-018, The Removal of a Canadian Citizen to Syria, 
Joint Hearing before Subcomm. on Int'l Orgs., Human Rights, and 
Oversight of the H. Comm. on Foreign Affairs the Subcomm. on 
the Constitution, Civil Rights, and Civil Liberties of the H. 
Comm. on the Judiciary, 110th Cong. 74 (2008).
    649. Id.
    650. Id.
    651. Letter from Rep. John Conyers, Jr., Chairman, H. Comm. 
on the Judiciary, Rep. Jerrold Nadler, and Rep. William D. 
Delahunt to Michael Mukasey, Attorney General (July 10, 2008).
    652. Letter from Keith B. Nelson, Assistant Att'y Gen. to 
Rep. John Conyers, Jr., Chairman, H. Comm. on the Judiciary 
(July 22, 2008) (relying, once again, on the alleged 
``assurances from Syria that Mr. Arar would be treated in a 
manner consistent with the CAT'' but failing to address the 
Inspector General's conclusion that these assurances were 
ambiguous and that their ``validity'' was not tested.).
    653. The Office of Vice President, in a letter to Sen. 
Patrick Leahy dated Aug. 20, 2007, lists various ``Top Secret/
Codeword Presidential Authorization[s]'' that would be 
responsive to an outstanding Senate Judiciary Committee 
subpoena. The first of these ``Authorizations'' was dated 
October 4, 2001, and subsequent authorizations were issued 
approximately every 6 weeks or so thereafter.
    The Foreign Intelligence Surveillance Act of 1978, Pub. L. 
95-511 (``FISA''), governs electronic surveillance of foreign 
powers or agents of foreign powers in national security 
investigations. The text makes clear that FISA was to be the 
``exclusive means by which electronic surveillance . . . and 
the interception of wire and oral communication may be 
conducted.''
    FISA specifically made it a crime to conduct any foreign 
intelligence electronic surveillance that was not authorized by 
statute. Furthermore, to ensure against unauthorized electronic 
surveillance by the telecommunications service providers (and 
to provide incentive to the carriers to strictly follow the 
law), FISA provided that telecommunications service providers 
were entitled to immunity from civil liability for ``illegal 
wiretapping'' only where they receive a specific request for 
assistance from certain officials. The form and purpose of such 
requests for assistance, and who can issue them, are enumerated 
in federal law. See, e.g., 18 U.S.C. Sec. 2511.
    654. Once the existence of the surveillance program became 
known, the Administration took to referring to it as the 
``Terrorist Surveillance Program''--or ``TSP.'' This term was 
used by then-Attorney General Gonzales in February 2006. See 
Prepared Statement of Hon. Alberto R. Gonzales, Attorney 
General of the United States, available at http://
www.usdoj.gov/ag/speeches/2006/ ag_speech_060206.html. Attorney 
General Gonzales later explained that ``before December 2005, 
the term `Terrorist Surveillance Program' was not used to refer 
to these activities, collectively or otherwise. It was only in 
early 2006, as part of the public debate that followed the 
unauthorized disclosure and the President's acknowledgment of 
one aspect of the NSA activities, that the term Terrorist 
Surveillance Program was first used.'' Letter from Alberto 
Gonzales, Attorney General, to Sen. Patrick J. Leahy, Chairman, 
S. Comm. on the Judiciary, August 1, 2007.
    655. Prepared Statement of Alberto R. Gonzales, Attorney 
General of the United States, available at http://
www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html. See also 
Letter from Office of Vice President to Sen. Patrick Leahy, 
Chairman, S. Comm. on the Judiciary, August 20, 2007.
    656. Letter from J. Michael McConnell, Director of National 
Intelligence, to Sen. Arlen Specter, Ranking Member, S. Comm. 
on the Judiciary, July 31, 2007.
    657. Klaidman, ``Now We Know What the Battle Was About,'' 
Newsweek, Dec. 13, 2008.
    658. Cauley, ``NSA Has Massive Database of Americans' Phone 
Calls,'' USA Today, May 11, 2006, at A1.
    659. Slavin, ``Scholar Stands by Post-9/11 Writings On 
Torture, Domestic Eavesdropping, Former Justice Official Says 
He Was Interpreting Law, Not Making Policy,'' Wash. Post., Dec. 
26, 2005, p A03, available at http://www.washingtonpost.com/wp-
dyn/content/article/2005/12/25/AR2005122500570.html.
    While any such memorandum remains secret, and Yoo has not 
confirmed his role, he intimated his involvement in providing 
legal support for warrantless wiretapping, in his 2006 book 
about his time in the Bush Administration, War by Other Means, 
An Insider's Account of the War on Terror (New York 2006), at 
99-100, where, alluding to press reports that he was 
responsible for the legal opinions, he said he could neither 
confirm or deny them, then went on to defend the policies.
    And in a 2007 PBS ``Frontline'' interview, he articulated 
this expansive view of the President's power: ``If it's part of 
the president's power as a constitutional matter to gather 
intelligence, including intercepting communications, then 
that's a power that's included and Congress can't seize it just 
because it wants to.'' Frontline: Cheney's Law (PBS television 
broadcast, Oct. 16, 2007), available at http://www.pbs.org/
wgbh/pages/frontline/cheney/etc/script.html.
    660. Gellman, ``Conflict Over Spying Led White House to 
Brink,'' Wash. Post, Sept. 14, 2008.
    661. Goldsmith, The Terror Presidency, New York, 2007 at 
181.
    662. Id. (brackets in text).
    663. Risen & Lichtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts,'' N.Y. Times, Dec. 16, 2005, available at 
http://www.nytimes.com/2005/12/16/politics/16program.html.
    664. Gellman & Becker, ``A Different Understanding With the 
President,'' Wash. Post, June 24, 2007, at A1. The continued 
role played by the Office of the Vice President is confirmed by 
its response to a later Senate Judiciary Committee subpoena for 
documents about the surveillance program, in which the Vice 
President's counsel confirmed that they possessed responsive 
documents but declined to produce them. Letter from Shannen W. 
Coffin, Counsel to the Vice President, to Sen. Patrick J. 
Leahy, Chairman, S. Comm. on the Judiciary (Aug. 20, 2007), 
available at http://leahy.senate.gov/press/200708/07-08-
20%20vp%20letter.pdf.
    665. Letter from Sen. John D. Rockefeller IV, Vice 
Chairman, S. Select Comm. on Intelligence, to Richard Cheney, 
Vice President (July 17, 2003) available at http://www.fas.org/
irp/news/2005/12/rock121905.pdf.
    666. Gellman, ``Conflict Over Spying Led White House to 
Brink,'' Wash. Post, Sept. 14, 2008, at A1.
    667. Leonnig, ``Surveillance Court is Seeking Answers,'' 
Wash. Post, Jan. 5, 2006, available at http://
www.washingtonpost.com/wp-dyn/content/article/2006/01/04/
AR2006010401864.html.
    668. Leonnig, ``Secret Court's Judges Were Warned About NSA 
Spy Data,'' Wash. Post, Feb. 9, 2006, available at http://
www.washingtonpost.com/wp-dyn/content/article/2006/02/08/ 
AR2006020802511.html.
    669. Id.
    670. Hosenball, ``Spying: Giving Out U.S. Names,'' Newsweek 
(May 2, 2006).
    671. Leonnig, ``Secret Court's Judges Were Warned About NSA 
Spy Data,'' Wash. Post, Feb. 9, 2006.
    672. Id.
    673. Id.
    674. Isikoff, ``The Whistleblower Who Exposed Warrantless 
Wiretaps,'' Newsweek, Dec. 13, 2008.
    675. To date, Thomas Tamm has not been prosecuted for 
whistleblowing, despite the President's use of the language of 
treason to characterize the leaks: ``There is a process that 
goes on inside the Justice Department about leaks, and I 
presume that process is moving forward. My personal opinion is 
it was a shameful act for someone to disclose this very 
important program in a time of war. The fact that we're 
discussing this program is helping the enemy.'' President 
George W. Bush, White House Press Conference, December 19, 
2005, available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-2.html
    676. Calame, ``Eavesdropping and the Election: An Answer on 
the Question of Timing,'' N.Y. Times, Aug. 13, 2006 available 
at  http://www.nytimes.com/2006/08/13/opinion/
13pubed.html?ex=1313121600&en 
=804bfc4623ab003c&ei=5090&partner=rssuserland&emc=rss.
    677. Alter, ``Bush's Snoopgate,'' Newsweek, Dec. 19, 2005.
    678. Risen and Lichtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts,'' N.Y. Times, Dec. 16, 2005, available at 
http://www.nytimes.com/2005/12/16/politics/16program.html.
    679. Lichtblau, ``Debate and Protest at Spy Program's 
Inception,'' N.Y. Times, Mar. 30, 2008, available at  http://
www.nytimes.com/2008/03/30/washington/
30nsa.html?_r=3&ref=us&oref= slogin&oref=slogin&oref=slogin. 
The article reported: ``Deputy Attorney General Larry Thompson 
refused to sign off on any of the secret wiretapping requests 
that grew out of the program because of the secrecy and legal 
uncertainties surrounding it.'' Id. As noted, the need for more 
formal legal authorization referenced in the article may have 
precipitated the October 2001 Domestic War Power Memorandum.
    680. This has been attributed by some to a conflict over 
searching the information within government databases, such as 
were contemplated by the Pentagon's Total Information Awareness 
program. See Shane and Johnston, ``Mining of Data Prompted 
Fight Over U.S. Spying,'' N.Y. Times, July 29, 2007, available 
at http://
www.nytimes.com/2007/07/29/washington/29nsa.html?ex= 
1343361600&en=6944d332c9208b3f&ei=5088&partner=rssnyt. ``It is 
not known precisely why searching the databases, or data 
mining, raised such a furious legal debate. But such databases 
contain record of the phone calls and e-mail messages of 
millions of Americans, and their examination by the government 
would raise privacy issues.'' Id. The particulars of the 
disagreement have not been confirmed publicly.
    681. Gellman, ``Conflict Over Spying Led White House to 
Brink,'' Wash. Post, Sept. 14, 2008, at A1.
    682. According to notes written that night by FBI Director 
Mueller, and a press interview with DAG Comey, Attorney General 
Ashcroft told Gonzales and Card of his frustration with the 
extreme compartmentalization surrounding the program, and that 
having finally been able to get information and legal advice, 
he felt that ``he never should have certified the program in 
the first place.'' Gellman, ``Cheney Shielded Bush From 
Crisis,'' Wash. Post, Sept. 15, 2008 at A1
    683. Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part IV, Hearing Before the S. Comm. on the 
Judiciary, May 15, 2007 (testimony of former Deputy Attorney 
General James B. Comey).
    684. Eggen and Kane, ``Gonzales Hospital Episode Detailed: 
Ailing Ashcroft Pressured on Spy Program, Former Deputy Says,'' 
Wash. Post, May 16, 2007, at A1.
    685. Letter from Richard Power, Assistant Director, Federal 
Bureau of Investigation to Rep. John Conyers, Jr., Chairman, H. 
Comm. on Judiciary (August 14, 2007) (forwarding notes kept by 
FBI Director Robert Mueller concerning the hospital incident of 
March 10, 2004), available at http://old.judiciary.house.gov/
Media/PDFS/Powers070814.pdf.
    686. Gellman, ``Cheney Shielded Bush From Crisis,'' Wash. 
Post, Sept. 15, 2008, at A1
    687. Eggen and Kane, ``Gonzales Hospital Episode Detailed: 
Ailing Ashcroft Pressured on Spy Program, Former Deputy Says,'' 
Wash. Post, May 16, 2007, at A1.
    688. Thomas and Klaidman, ``Full Speed Ahead,'' Newsweek, 
Jan. 9, 2006. (Indeed, despite the extensive public discussion 
of this matter, numerous details about the exchange remain 
hidden from Congress and the public, including for example the 
complete contents of FBI Director Mueller's notes regarding the 
confrontation and subsequent events which the Administration 
has unjustifiably withheld from the House Judiciary Committee.)
    689. ``President Bush Calls for Renewing the USA PATRIOT 
Act,'' Remarks by the President on the USA PATRIOT Act, Hershey 
Lodge and Convention Center, Hershey, Pennsylvania (Apr. 19, 
2004), available at http://www.whitehouse.gov.news/releases/
2004/04/print/20040419-4.htm (emphasis added).
    690. The President's sought to reassure his audiences that 
the PATRIOT Act and his surveillance activities were well 
supervised by the Judiciary:

    So the first thing I want you to think about is, when you 
hear Patriot Act, is that we changed the law and the 
bureaucratic mind-set to allow for the sharing of information. 
It's vital. And others will describe what that means.
    Secondly, there are such things as roving wiretaps. When 
we're talking about chasing down terrorists, we're talking 
about getting a court order before we do so. It's important for 
our fellow citizens to understand, when you think Patriot Act, 
constitutional guarantees are in place when it comes to doing 
what is necessary to protect our homeland, because we value the 
Constitution.

``President Bush: Information Sharing, Patriot Act Vital to 
Homeland Security,'' Remarks by the President in a Conversation 
on the USA Patriot Act, Kleinshans Music Hall, Buffalo, New 
York (Apr. 20, 2004), available at http://
www.whitehouse.gov.news/releases/2004/04/print/20040420-2.html 
(emphasis added).
    691. President George W. Bush, Remarks at Ohio State 
Highway Patrol Academy, June 9, 2005, available at http://
www.whitehouse.gov/news/releases/2005/06/20050609.2.html.
    692. ``President Bush Encourages Renewal of Patriot Act 
Provisions,'' July 20, 2005, available at http://
www.whitehouse.gov/news/releases/2005/07/20040720-4.html.
    693. Risen & Lichtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts,'' N.Y. Times, Dec. 16, 2005 at A1.
    694. Alberto Gonzales, Att'y Gen. of the United States, and 
Michael Hayden, Principal Deputy Director for National 
Intelligence, White House press briefing (Dec. 19, 2005), 
available at http://www.whitehouse.gov/news/releases/2005/12/
20051219-1.html.
    695. Foreign Intelligence Surveillance Act of 1978, Pub. L. 
95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978) codified as 
amended.
    696. Vice President's Remarks on Iraq and the War on Terror 
at the Manhattan Institute for Policy Research, New York, Jan. 
19, 2006, available at http://www.whitehouse.gov/news/releases/
2006/01/20060119-5.html.
    697. House Judiciary Committee Democratic Staff, The 
Constitution in Crisis; The Downing Street Minutes and 
Deception, Manipulation, Torture, Retribution, and Coverups in 
the Iraq War, and Illegal Domestic Surveillance, 135-36 (August 
2006).
    698. Wartime Executive Power and the NSA's Surveillance 
Authority: Hearing before the S. Comm. on the Judiciary, 109th 
Cong. (2006) (statement of Sen. Arlen Specter).
    699. Risen & Lichtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts'', N.Y. Times, Dec. 16, 2005, at A1.
    700. Bamford, ``Where Spying Starts and Stops: Tracking an 
Embattled CIA and a President at War'', N.Y. Times, Jan. 9, 
2006, at E6; Risen and Lichtblau, ``Bush Lets U.S. Spy on 
Callers Without Courts'', N.Y. Times, Dec. 16, 2005, at A1.
    701. Eggen & Pincus, ``Ex-Justice Lawyer Rips Case for 
Spying,'' Wash. Post, Mar. 9, 2006, at A03.
    702. Lichtblau & Shane, ``Basis for Spying in the U.S. is 
Doubted'', N.Y. Times, Jan. 7, 2006, at A1.
    703. Risen & Lichtblau, ``Bush Lets U.S. Spy on Callers 
Without Courts'', N.Y. Times, Dec. 16, 2005, at A1.
    704. Lacayo, ``The Spying Controversy: Has Bush Gone Too 
Far?'', Time, Jan. 9, 2006, at 25.
    705. Letter from William E. Moschella, Assistant Attorney 
General, to the Sen. Pat Roberts, Chairman, S. Select Comm. on 
Intelligence, Sen. John D. Rockefeller, IV, Vice Chairman, S. 
Select Comm. on Intelligence, the Rep. Peter Hoekstra, 
Chairman, H. Permanent Select Comm. on Intelligence, and Rep. 
Jane Harman, Ranking Member, H. Permanent Select Comm. on 
Intelligence (December 22, 2005) (hereinafter ``Moschella 
letter'').
    706. U.S. Department of Justice White Paper, ``Legal 
Authorities Supporting the Activities of the National Security 
Agency Described by the President'' (Jan. 19, 2006), available 
at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
    707. Authorization for the Use of Military Force, Pub. L. 
No. 107-40, 115 Stat. 224 (2001).
    708. Alberto Gonzales, Att'y Gen. of the United States, and 
Michael Hayden, Principal Deputy for National Intelligence, 
White House press briefing, Dec. 19, 2005, available at http://
www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
    709. See Grimmett, ``Authorization for Use of Military 
Force in response to the 9/11 Attack (P.L. 107-40): Legislative 
History,'' CRS Report for Congress RS 22357, available at 
http://www.congress.gov/erp/rs/pdf/RS22357.pdf (emphasis 
added).
    710. Democratic Briefing on the ``Constitution in Crisis: 
Domestic Surveillance and Executive Power,'': Democratic 
Briefing Before the H. Comm. on the Judiciary, 109th Cong. 
(2006) (statement of Prof. Jonathan Turley).
    711. See Grimmett, ``Authorization for Use of Military 
Force in response to the 9/11 Attack (P.L. 107-40): Legislative 
History,'' CRS Report for Congress RS 22357, at 43, available 
at http://www.congress.gov/erp/rs/pdf/RS22357.pdf.
    712. Hersh, ``Listening In,'' The New Yorker, May 29, 2006, 
at 24.
    713. Gellman, Linzer, & Leonnig, ``Surveillance Net Yields 
Few Suspects,'' Wash. Post, Feb. 5, 2006, at A1.
    714. ``Wiretaps Fail to Make Dent in Terror War; al Qaeda 
Used Messengers'', Insight Magazine, Dec. 26, 2005--Jan. 1, 
2006.
    715. Lichtblau and Risen, ``Spy Agency Mined Vast Data 
Trove, Officials Report,'' N..Y. Times, Dec. 24, 2005, at A1.
    716. Meek, ``Taps Found Clues, Not al Qaeda, FBI Chief 
Says,'' N.Y. Daily News, Feb. 3, 2006, at 17.
    717. Gellman, Linzer & Leonnig, ``Surveillance Net Yields 
Few Suspects,'' Wash. Post, Feb. 5, 2006, at A1.
    718. Hosenball & Thomas, ``Hold The Phone,'' Newsweek, May 
22, 2006 at 22.
    719. Gellman, Linzer & Leonnig, ``Surveillance Net Yields 
Few Suspects,'' Wash. Post, Feb. 5, 2006, at A1.
    720. Bergman, Shane, Van Natta, Jr. & Lichtblau, ``Spy 
Agency Data After Sept. 11 Led F.B.I. to Dead Ends,'' N.Y. 
Times, Jan. 17, 2006, at A1.
    721. Worldwide Threats to the United States: Hearing Before 
the S. Select Intelligence Comm., 109th Cong. (2006) (Testimony 
of FBI Director Robert Mueller, III).
    722. ``Interview with Bill Frist by Wolf Blitzer,''(CNN May 
14, 2006), available at http://transcripts.cnn.com/TRANSCRIPTS/
0605/14/le.01.html.
    723. Roberts, ``Debate on the Foreign Intelligence 
Surveillance Act,'' El Paso Times (August 22, 2007).
    724. See Leonnig and Nakashima, ``Ruling Limited Spying 
Efforts: Move to Amend FISA Sparked by Judge's Decision,'' 
Wash. Post, Aug. 3, 2007 at A1 (``[T]wo government officials 
privy to the details confirmed that [Boehner's] remarks 
concerned classified information.'').
    725. See Hearing on Warrantless Surveillance and the 
Foreign Intelligence Surveillance Act: The Role of Checks and 
Balances in Protecting Americans' (Part II): Hearing Before the 
H. Comm. on the Judiciary, 110th Cong. (2007) (Statement by 
Michael, McConnell, Director of National Intelligence on FISA/
Protect America Act withdrawing DNI's claims concerning German 
terror bombing plot), and Eggen, ``Iraq Wiretap Delay Not Quite 
as Presented: Lag Is Attributed to Internal Disputes and Time 
to Reach Gonzales, Not FISA Constraints,'' Wash. Post, Sept. 
29, 2007 at A8 (debunking claims concerning 10th Mountain 
Division case).
    726. In March 2007, the Department represented that: ``[The 
Office of Professional Responsibility] sought assistance in 
obtaining security clearances to the Terrorist Surveillance 
Program to conduct its investigation. This request reached the 
Attorney General. . . . The Attorney General recommend to the 
President that OPR be granted security clearances to the 
Terrorist Surveillance Program. The President made the decision 
not to grant the requested security clearances.'' Letter from 
Richard A. Hertling, Acting Assistant Attorney General, to Rep. 
John Conyers, Jr., Chairman, H. Comm. on the Judiciary (March 
22, 2007).
    727. Shane, ``Bush Gives Clearances for N.S.A. Inquiry,'' 
N.Y. Times, Nov. 14, 2007. See also Letter from H. Marshall 
Jarrett, Office of Professional Responsibility, to Rep. Maurice 
Hinchey (November 13, 2007) (informing Congressman Hinchey that 
clearances had been granted and the investigation re-opened).
    728. In re National Security Agency Telecommunications 
Records Litigation, U.S. District Court for the Northern 
District of California, Case No. 06-cv-01791-VRW.
    729. Markoff, ``Judge Declines to Dismiss Privacy Suit 
Against AT&T,'' N.Y. Times, July 21, 2006. The Administration's 
conscious choice to undertake a surveillance program that was 
not authorized by FISA placed the telecommunications carriers 
who cooperated with government requests for assistance at legal 
risk as they faced lawsuits from a number of parties. Under 
FISA, a carrier--or any other person or entity--is shielded 
from liability for complying with a request for cooperation 
when provided with a document that sets forth the legal basis 
for the request (most often 18 U.S.C. Sec. 2511. It has been 
publicly confirmed that, under the President's surveillance 
program, the carriers were provided certain documents which 
represented that the activities requested had been authorized 
by the President, and had been determined to be lawful by 
either the Attorney General or the Counsel to the President; 
but the documents did not state that the request complied with 
Section 2511 or any other specific law. See S. Rep. No. 110-209 
(2007). The carriers have publicly argued that they had 
sufficient legal justification for complying with requests for 
surveillance assistance even when such requests were not based 
on FISA but instead were based on other legal theories, such as 
the president's inherent authority or common law. See, e.g., 
Letter from Wayne Watts, Senior Executive Vice President of 
AT&T to Rep. John Dingell, Chairman, H. Comm. on Energy and 
Commerce, Rep. Edward Markey, and Rep. Bart Stupak (October 12, 
2007), available at http://markey.house.gov/docs/telecomm/
ATT%20wiretapping%20response_101207.pdf
    730. Order, In re National Security Agency 
Telecommunications Records Litigation, U.S. District Court for 
the Northern District of California, Case No. 06-cv-01791-VRW 
(Jan. 5, 2009), available at http://blog.wired.com/27bstroke6/
files/walkercharityruling.pdf.
    731. Defendants' Notice of Motion and Motion for a Stay 
Pending Appeal and for Certification of an Interlocutory 
Appeal, In re National Security Agency Telecommunications 
Records Litigation, U.S. District Court for the Northern 
District of California, Case No. 06-cv-01791-VRW (Jan. 19, 
2009), available at http://blog.wired.com/27bstroke6/files/
bushstay.pdf.
    732. American Civil Liberties Union et al. v. National 
Security Agency, U.S. District Court for the Eastern District 
of Michigan, Case No. 2:06-cv-10204 (``ACLU v. NSA''), 
available at http://www.aclu.org/pdfs/safefree/
nsacomplaint.011706.pdf.
    733. Memorandum Opinion, ACLU v. NSA, (EDMI, August 17, 
2006), available at http://www.aclu.org/pdfs/safefree/
nsamemo.opinion.judge.taylor.081706.pdf.
    734. Id.
    735. Id.
    736. American Civil Liberties Union v. National Security 
Agency, 493 F.3d 644 (6th Cir. 2007).
    737. Eggen, ``Court Will Oversee Wiretap Program,'' Wash. 
Post, Jan. 17, 2007.
    738. Letter from Alberto Gonzales, Attorney General, to 
Sen. Patrick Leahy, Chairman, S. Comm. on the Judiciary, and 
Sen. Arlen Specter, Ranking Member, S. Comm. on the Judiciary, 
(January 19, 2007), available at http://graphics8.nytimes.com/
packages/pdf/politics/20060117gonzales_Letter.pdf.
    739. See Leonnig and Nakashima, ``Ruling Limited Spying 
Efforts: Move to Amend FISA Sparked by Judge's Decision,'' 
Wash. Post, Aug. 3, 2007 at A1 (concerning revelations of court 
action by Minority Leader John Boehner).
    740. Roberts, ``Debate on the Foreign Intelligence 
Surveillance Act,'' El Paso Times (August 22, 2007).
    741. Constitutional Limitations on Domestic Surveillance: 
Hearing before the H. Subcomm on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong. 8 (2007) (statement of Steven Bradbury, Principal 
Deputy Assistant Attorney General, Office of Legal Counsel, 
U.S. Department of Justice).
    742. Constitutional Limitations on Domestic Surveillance: 
Hearing before the H. Subcomm on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong. 8 (2007) (statement of Steven Bradbury, Principal 
Deputy Assistant Attorney General, Office of Legal Counsel, 
U.S. Department of Justice).
    743. Roberts, ``Debate on the Foreign Intelligence 
Surveillance Act,'' El Paso Times (August 22, 2007), available 
at http://www.elpasotimes.com/news/ci_6685679. See also Leonnig 
and Nakashima, ``Ruling Limited Spying Efforts: Move to Amend 
FISA Sparked by Judge's Decision,'' Wash. Post, Aug. 3, 2007 at 
A1 (concerning apparent revelations of Court action by Minority 
Leader John Boehner).
    744. Pub. L. No. 110-55.
    745. The short-term Protect America Act was upheld by the 
FISA Court of Review (FISCR), which held that the privacy 
safeguards of the Act and Executive Order 12333 were sufficient 
to meet the requirements of the Fourth Amendment when the 
surveillance target was reasonably believed to be outside of 
the country. The Court of Review did not address the legality 
of the TSP or of claims that Article II creates a Presidential 
right to surveil that would trump FISA. In re: Directives 
[redacted] Pursuant to Section 105B of the Foreign Intelligence 
Surveillance Act, FISA Ct. Rev., No. 08-01 (Aug. 22, 2008), 
available at http://www.fas.org/irp/agency/doj/fisa/
fiscr082208.pdf.
    746. Roberts, ``Debate on the Foreign Intelligence 
Surveillance Act,'' El Paso Times (August 22, 2007), available 
at http://www.elpasotimes.com/news/ci_6685679 (emphasis added).
    747. Warrantless Surveillance and the Foreign Intelligence 
Surveillance Act: the Role Of Checks and Balances in Protecting 
Americans' Privacy Rights (Part I), Hearing before the H. Comm. 
on the Judiciary, 110th Cong. 17 (2007) (statement of Suzanne 
Spaulding).
    748. Id. at 23 (statement of Prof. Robert Turner).
    749. See FISA for the Future: Balancing Security and 
Liberty, Hearing before the H. Permanent Select Comm. on 
Intelligence, 110th Cong. (2007); Administration Views of FISA 
Authorities: Hearing before the H. Permanent Select Comm. on 
Intelligence, 110th Cong. (2007).
    750. See, e.g., Letter from Rep. John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary, Rep. Jerrold Nadler, and 
Rep. Bobby Scott to Fred Fielding, White House Counsel 
(September 11, 2007), available at http://
old.judiciary.house.gov/Media/PDFS/Conyers-Nadler-
Scott070911.pdf.
    751. See Press Release, H. Comm. on Judiciary, Conyers 
Responds to WH Granting Committee Access to Wiretapping 
Documents (Jan. 24, 2008), available at http://
judiciary.house.gov/news/012408.html.
    752. Hess, ``Bush Opens Wiretap Documents to House,'' 
Associated Press (Jan. 24, 2008). In pursuit of both its 
oversight and its legislative responsibilities, the Judiciary 
Committee had sought access to the information as to the 
conduct of the carriers and whether they were entitled to the 
sort of immunity urged by the White House. For years, the Bush 
Administration had refused to permit House or Senate Judiciary 
Committee access to the FISA court orders or other details 
about how the program was conducted. Even while the 
Administration withheld information Congress believed necessary 
for legislating responsibly, DNI McConnell selectively revealed 
information about the program in the media in an attempt to 
justify his negotiating tactics around the PAA--information 
that the Administration had argued for years was too sensitive 
for even Members of Congress to review. See Letter from Rep. 
John Conyers, Jr., Chairman, H. Comm. on the Judiciary, Rep. 
Jerrold Nadler, and Rep. Bobby Scott to Michael McConnell, 
Director of National Intelligence (September 11, 2007), 
available at http://old.judiciary.house.gov/Media/PDFS/Conyers-
Scott-Nadler070911.pdf.
    753. See ``Statement of Undersigned Members of the House 
Judiciary Committee Concerning the Administration's Terrorist 
Surveillance Program and the Issue of Retroactive Immunity,'' 
March 12, 2008, available at http://judiciary.house.gov/news/
pdfs/Immunity080312.pdf.
    754. ``Statement of Undersigned Members of the House 
Judiciary Committee Concerning the Administration's Terrorist 
Surveillance Program and the Issue of Retroactive Immunity,'' 
March 12, 2008, at 5, available at http://judiciary.house.gov/
news/pdfs/Immunity080312.pdf.
    755. As discussed above, a critical aspect of the TSP was 
the claim of the Administration and its allies that there were 
legal bases for wiretapping other than in FISA, the exclusivity 
provision of the statute notwithstanding. See, e.g., U.S. 
Department of Justice White Paper, ``Legal Authorities 
Supporting the Activities of the National Security Agency 
Described by the President'' (Jan. 19, 2006) available at 
http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf, 
and Letter from Wayne Watts, Senior Executive Vice President of 
AT&T to Rep. John Dingell, Chairman, H. Comm. on Energy and 
Commerce, Rep. Edward, Markey, and Rep. Bart Stupak (Oct. 12, 
2007) available at http://markey.house.gov/docs/telecomm/
ATT%20wiretapping%20response_101207.pdf. While this claim was 
rejected by the district court in ACLU v. NSA, state secrets 
and standing issues have prevented any appellate court from 
resolving the issue.
    756. Dept. of Justice, Office of Inspector General, ``A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters,'' at 1, available at http://www.npr.org/
documents/2007/mar/doj/doj_oig_nsl.pdf. (Hereinafter referred 
to as DOJ OIG NSL Report).
    757. These statutes include: 1) The Right to Financial 
Privacy Act (RFPA), 12 U.S.C. Sec. 3414(a)(5)(A), to obtain 
financial institution customer records; 2) The Electronic 
Communications Privacy Act (ECPA), 18 U.S.C. Sec. 2709(a), to 
obtain certain communication service provider records; 3) The 
Fair Credit Reporting Act (FCRA), 15 U.S.C. Sec. Sec. 1681u, 
1681v, to obtain certain financial information and consumer 
reports, and credit agency consumer records for 
counterterrorism investigations; and 4) The National Security 
Act (NSA), 50 U.S.C. Sec. 436, to obtain financial information, 
records, and consumer reports. Prior to September 11, 2001, and 
the enactment of the PATRIOT Act, the authorizing statutes 
which governed NSLs required the satisfaction of a more 
demanding standard, including certification by a senior FBI 
Headquarters official that the FBI had ``specific and 
articulable facts giving reason to believe that the customer or 
entity whose records are sought is a foreign power or agent of 
a foreign power'' as defined in FISA.
    758. Gellman, ``The FBI's Secret Scrutiny: In Hunt for 
Terrorists, Bureau Examines Records of Ordinary Americans,'' 
Wash. Post, Nov. 6, 2005, at A1.
    759. Anti-Terrorism Intelligence Tools Improvement Act of 
2003: Hearing before the Subcomm. on Crime, Terrorism, and 
Homeland Security of the H. Comm. on the Judiciary, 108th Cong. 
(November 24, 2004) (responses from Justice Department and FBI 
to post-hearing questions for the record).
    760. Letter from the Office of Assistant Attorney General 
to the Honorable F. James Sensenbrenner, Chairman, H. Comm. on 
the Judiciary (Nov. 23, 2005).
    761. Pub. L. No. 109-177, Sec. 119. Congress directed the 
OIG's review to include:

    1) an examination of the use of NSLs by the Justice 
Department during calendar years 2003 through 2006;
    2) a description of any noteworthy facts or circumstances 
relating to such use, including any improper or illegal use of 
such authority;
    3) an examination of the effectiveness of NSLs as an 
investigative tool, including--
    A) the importance of the information acquired by the 
Justice Department to the Intelligence activities of the 
Justice Department or to any other department or agency of the 
federal government;
    B) the manner in which such information is collected, 
retained, analyzed, and disseminated by the Justice Department, 
including any direct access to such information (such as to 
``raw data'') provided to any other department, agency, or 
instrumentality of Federal, State, local, or tribal governments 
or any private sector entity;
    C) whether, and how often, the Justice Department utilized 
such information to produce an analytical intelligence product 
for distribution within the Justice Department, to the 
intelligence community . . . or to Federal, State, local, or 
tribal government departments, agencies or instrumentalities;
    D) whether, and how often, the Justice Department provided 
such information to law enforcement authorities for use in 
criminal proceedings; . . . Id.
    The pre-PATRIOT Act statutes required the FBI to provide 
classified semi-annual reports to Congress disclosing summary 
information about national security letter usage. See I.G. 
Report at 9. The PATRIOT Act itself continued to require 
classified reports to Congress on the FBI's use of its NSL 
authorities. Id.
    762. DOJ OIG NSL Report, at viii, 3
    763. P. L. No. 109-177.
    764. President's Statement on H.R. 3199, the USA PATRIOT 
Improvement and Reauthorization Act of 2005, http://
www.whitehouse.gov/news/releases/2006/03/20060309-4.html (March 
9, 2006).
    765. DOJ OIG NSL Report.
    766. Id. The FBI used exigent letters as a broad law 
enforcement tool that was not conditioned on meeting even the 
requirements for NSLs.
    According to the Inspector Generals' report, the FBI 
General Counsel claimed that, if challenged, the FBI could rely 
on 18 U.S.C. Sec. 2702(c)(4), as authority for obtaining 
information through exigent letters. See DOJ OIG NSL Report at 
95 (emphasis added). During the period reviewed in the 
Inspector General's report, the statute permitted 
telecommunications providers to divulge records to ``a 
governmental entity, if the provider reasonably believes that 
an emergency involving immediate danger of death or serious 
physical injury to any person justifies disclosure of the 
information.'' Note that the statute permits, but does not 
strictly require, the telecommunications provider to divulge 
the information. However, as further discussed in this section, 
the exigent letters were not always issued in emergency 
situations.
    In the USA PATRIOT Improvement and Reauthorization Act of 
2005, Pub. L. 109-177, signed into law in March 2006--in 
section 107(b)(1)(B), a provision titled ``Enhanced Oversight 
of Good-faith Emergency Disclosures under Section 212 of the 
USA Patriot Act''--Congress relaxed the standards in 18 U.S.C. 
Sec. 2702(c)(4). Now the telecommunications provider need only 
believe ``in good faith''--a more forgiving standard--and the 
emergency no longer must be ``immediate.''
    The Electronic Communications Privacy Act (ECPA) allows the 
FBI to compel the production of telephone toll billing records 
or subscriber information pursuant to an NSL. 18 U.S.C. 
Sec. 2709. Thus, while 18 U.S.C. Sec. 2702(c)(4) is a request 
for voluntary emergency disclosure, 18 U.S.C. Sec. 2709 is 
compulsory. To date, though, the FBI has not specifically 
stated under which of these two statutes it was operating to 
justify its use of exigent letters.
    767. Id. at 86. Specifically, the FBI provided copies of 
739 exigent letters addressed to the three telephone carriers 
dated between March 11, 2003, and December 16, 2005, all but 
four of which had been signed. Together, the 739 exigent 
letters requested information on approximately 3,000 different 
telephone numbers. Id. at 89-90.
    768. Id. at 86.
    769. The practice of issuing exigent letters originally 
began in the FBI's New York office after the September 11, 2001 
attacks. When agents from that office transferred to FBI 
Headquarters, they brought this practice with them. DOJ OIG NSL 
Report at 87, 89.
    770. DOJ OIG NSL Report at 88. Although National Security 
Law Branch (NSLB) FBI attorneys told the OIG that they were not 
consulted about the three contracts, FBI Office of General 
Counsel procurement lawyers did in fact participate in 
reviewing the contracts. Id. at 89, n.126.
    771. Id. at 89.
    772. Id. at 123.
    773. Id. at 86.
    774. Id.
    775. Id.
    776. Id. at 92-93.
    777. Id. at 93.
    778. Id. at 93-94.
    779. DOJ OIG NSL Report at 94; Appendix, FBI Director 
Robert Mueller's Letter to Inspector General Glenn Fine, at 6 
(hereinafter, Mueller Letter).
    780. DOJ OIG NSL Report at 97.
    781. Id. at 123.
    782. Id. at 115-16.
    783. Id. at 116.
    784. Id. at 116-17. According to FBI Personnel who issued 
the certificate letters, the letters requested that the Bank 
determine whether it had information, as opposed to requesting 
the records themselves. Id. at 116.
    785. Id. at 68.
    786. Id.
    787. The Inspector General concluded that some of these 
infractions occurred because agents do not always verify 
whether the received records match the original requests prior 
to their input into databases. Id. at 85.
    788. Id. at 72.
    789. Id. at 123.
    790. Id. at 121.
    791. Id.
    792. Id. at 31.
    793. Id.
    794. Id. at 36. The OIG determined that the spike in 
calendar year 2004 was due in large part to the issuance of 9 
NSLs in one investigation that contained requests for 
subscriber information on a total of 11,100 separate telephone 
numbers.
    795. Id. at 33.
    796. Id. at 34.
    797. Id. at 98.
    798. Id.
    799. Id. at 110.
    800. Id. In response to the problems identified in the 
report, OIG offered ten recommendations:

    1. Require all Headquarters and field personnel who are 
authorized to issue national security letter to create a 
control file for the purpose of retaining signed copies of all 
national security letters they issue.
    2. Improve the FBI-OGC NSL tracking database to ensure that 
I captures timely, complete, and accurate data on NSLs and NSL 
requests.
    3. Improve the FBI-OGC NSL database to include data 
reflecting NSL requests for information about individuals who 
are not the investigative subjects but are the targets of NSL 
requests.
    4. Consider issuing additional guidance to field offices 
that will assist in identifying possible IOB violations arising 
from use of national security letter authorities.
    5. Consider seeking legislative amendment to the Electronic 
Communications Privacy Act to define the phrase ``telephone 
toll billing records information.''
    6. Consider measures that would enable FBI agents and 
analysts to (a) label or tag their use of information derived 
from national security letters in analytical intelligence 
products and (b) identify when and how often information 
derived from NSLs is provided to law enforcement authorities 
for use in criminal proceedings.
    7. Take steps to ensure that the FBI does not improperly 
issue exigent letters.
    8. Take steps to ensure that, where appropriate, the FBI 
makes requests for information in accordance with the 
requirements of national security letter authorities.
    9. Implement measures to ensure that FBI-OGC is consulted 
about activities undertaken by FBI Headquarters National 
Security Branch, including its operational support activities, 
that could generate requests for records from third parties 
that the FBI is authorized to obtain exclusively though the use 
of its national security letter authorities.
    10. Ensure that Chief Division Counsel and Assistant 
Division Counsel provide close and independent review of 
requests to issue national security letters.
DOJ OIG NSL Report at 125.
    801. Hearing on ``The Inspector General's Independent 
Report on the FBI's Use of National Security Letters,'' Before 
the H. Comm. on the Judiciary, (hereinafter DOJ OIG NSL Report 
Hearing), 110th Cong. at 1 (2007) (statement of Chairman John 
Conyers, Jr.).
    802. Id. at 228 (statement of Justice Department Inspector 
General Glenn Fine).
    803. Id.
    804. Id. at 236. In light of these and other abuses that 
the Inspector General's office identified in its report, the 
OIG made a variety of recommendations to the FBI concerning the 
improved use of NSLs as investigative tools. See DOJ OIG NSL 
Report.
    805. DOJ OIG NSL Report Hearing at 229 (testimony of FBI 
General Counsel Valerie Caproni).
    806. Id. at. 241.
    807. Id. at 216.
    808. Id. at 249.
    809. Id. at 232 (statement of Rep. Sensenbrenner).
    810. Dept. of Justice, Office of the Inspector General, ``A 
Review of the FBI's Use of National Security Letters: 
Assessment of Corrective Actions and Examination of NSL Usage 
in 2006,'' (hereinafter ``DOJ OIG NSL Corrective Action 
Report'') (2008).
    811. Id. at 7-8.
    812. Id. at 12.
    813. Id. at 8.
    814. Id.
    815. Id.
    816. Id.
    817. Id. at 128-129.
    818. Id. at 9.
    819. DOJ OIG NSL Report at 35; DOJ OIG NSL Corrective 
Action Report at 9-10.
    820. DOJ OIG NSL Corrective Action Report at 8.
    821. Id. at 10-11.
    822. Id. at 11. In addition, on the same day he issued the 
``Corrective Action Report,'' Inspector General Fine issued a 
report concerning his review of the FBI's use of Section 215 
Orders. One aspect of that report implicated the FBI's use of 
NSLs. It noted that, after the FISC had denied a 2006 FBI 
request for a Section 215 business record order seeking 
``tangible things'' as part of a counterterrorism case--citing 
First Amendment concerns--the FBI then circumvented the court's 
oversight and pursued the investigation using three NSLs that 
were predicated on the same information contained in the 
Section 215 application, despite the fact that NSLs contain the 
same First Amendment constraints. Dept. of Justice, Office of 
Inspector General, ``A Review of the FBI's Use of Section 215 
Orders for Business Records in 2006,'' at 68, 72 (2008).
    823. Id.
    824. Id.
    825. Id. at 12. The recommendations included:
          1. Create blank mandatory fields in the database 
        supporting the NSL data system for entering the U.S. 
        person/non-U.S. person status of the target of NSLs and 
        for entering the number of NSL requests in order to 
        prevent inaccuracies that may otherwise result from the 
        current default settings.
          2. Implement measures to verify the accuracy of data 
        entry into the new NSL data system.
          3. Implement measures to verify that data requested 
        in NSLs is checked against serialized source documents 
        to verify that the data extracted from the source 
        document and used in the NSL is accurately recorded on 
        the NSL and the approval EC.
          4. Regularly monitor the preparation of NSL-related 
        documents and the handling of NSL-derived information 
        with periodic reviews and inspections.
          5. Assign NSLB attorneys to participate in pertinent 
        meetings of operational and operational support units 
        in the Counterterrorism and Counterintelligence 
        Divisions.
    6. Consider increasing the staffing level of the OIC so 
that it can develop the sufficient skills, knowledge, and 
independence to lead or directly carry out critical elements of 
the OIC's work.
    7. Reinforce the distinction between the FBI's two NSL 
authorities pursuant to the Fair Credit Reporting Act 
throughout all levels of the FBI's National Security Branch at 
FBI Headquarters.
    8. Add procedures to include reviews of FCRA NSLs in 
counterintelligence investigations in the FBI Inspection 
Division's periodic reviews and in the NSD's national security 
reviews.
    9. Reiterate in its continuing discussions with major 
credit reporting agencies that the agencies should not provide 
consumer full credit reports in response to FCRA NSLs and 
should ensure that they provide only requested information in 
response to FCRA NSLs.
    10. Ensure that guidance and training continue to identify 
the circumstances under which FCRA NSL matters must be reported 
to the FBI OGC as possible intelligence violations.
    11. Issue additional guidance addressing the filing and 
retention of NSL-derived information that will improve the 
ability to locate NSL-derived information.
    12. Include in its routine case file reviews and the NSD's 
national security reviews an analysis of the FBI's compliance 
with requirements governing the filing and retention of NSL-
derived information.
    13. Periodically reissue guidance and training materials 
reminding case agents and supervisors assigned to national 
security investigations that they must carefully examine the 
circumstances surrounding the issuance of each NSL to determine 
whether there is adequate justification for imposing non-
disclosure and confidentiality requirements on the NSL 
recipient.
    14. Periodically reinforce in training and guidance 
provided to case agents and supervisors assigned to national 
security investigations the FBI OGC directive to timely report 
to the FBI OGC possible intelligence violations arising from 
the use of NSL authorities.
    15. Require case agents and supervisors assigned to 
national security investigations to specify in any reports to 
the FBI OGC the precise remedial measures employed to handle 
any unauthorized information they obtain in response to NSLs 
and to address whether the inappropriately provided information 
was used or uploaded into FBI databases.
    16. Periodically provide case agents and supervisors 
assigned to national security investigations with examples of 
common errors in the use of NSLs, such as the examples used in 
the November 20, 2006, FBI OGC guidance memorandum regarding 
possible NSL-related intelligence violations.
    17. The Department of Justice should direct that the NSL 
Working Group, with the FBI's and the NSD's participation, re-
examine measures for (a) addressing the privacy interests 
associated with NSL-derived information, including the benefits 
and feasibility of labeling or tagging NSL-derived information, 
and (b) minimizing the retention and dissemination of such 
information.

DOJ OIG NSL Corrective Action Report at 162-63.

    826. Hearing on H.R. 3189, the ``National Security Letters 
Reform Act [NSLRA] of 2007,'' Before the Subcomm. on the 
Constitution, Civil Rights, and Civil Liberties of the H. Comm. 
On the Judiciary, 110th Cong. (Apr. 15, 2008) (hereinafter 
``NSLRA Hearing'') .
    827. Inspector General Fine acknowledged that since only a 
year had passed since the 2007 report, it may have been too 
early to assess whether the FBI will implement all of the 2007 
report's recommendations. See NSLRA Hearing. at 20.
    828. Id. at 17.
    829. Id. at 18.
    830. Id. at 19.
    831. Id. at 22 (testimony of FBI General Counsel Valerie 
Caproni).
    832. Id. at 23.
    833. Id. at 24 (testimony of FBI General Counsel Valerie 
Caproni).
    834. Id. at 46 (testimony of Jameel Jaffer).
    835. Id.
    836. Id.
    837. Id. at 52 (testimony of Bruce Fein).
    838. Id.
    839. Id. at 58 (testimony of Michael Woods).
    840. Id.
    841. Id. at 60 (testimony of David Kris).
    842. Id.
    843. Memorandum for William J. Haynes, General Counsel, 
Department of Defense, Possible Habeas Jurisdiction Over Aliens 
Held in Guantanamo Bay, from John Yoo, Deputy Assistant 
Attorney General, and Patrick F. Philbin, Deputy Assistant 
Attorney General (Dec. 28, 2001).
    844. Boumediene v. Bush, __ U.S. __ , 128 S.Ct. 2229 
(2008).
    845. See discussion Section II, Part I. On November 6, 
2001, the Justice Department's OLC set forth the legal basis 
for the commissions. Memorandum for Alberto R. Gonzales, 
Counsel to the President, Legality of the Use of Military 
Commissions to Try Terrorists, from Patrick F. Philbin, Deputy 
Assistant Attorney General (Nov. 6, 2001). President Bush 
signed the order establishing a military commission system on 
November 13, 2001. ``Military Order--Detention, Treatment and 
Trial of Certain Non-Citizens in the War Against Terrorism,'' 
Executive Order dated November 13, 2001, 66 Fed. Reg. 57833 
(Nov. 16, 2001). A copy of this order may also be found at 
http://www.whitehouse.gov/news/releases/2001/11/20011113-
27.html. The Supreme Court found the commissions in violation 
of the separation of powers principles of the Constitution, see 
Hamdan v. Rumsfeld, 548 U.S. 557, 591-92 (2006) (footnote 
omitted) (citing Ex Parte Milligan, 4 Wall. 2, 139-40 (1866)) 
(emphasis added), and also in violation of both the Uniform 
Code of Military Justice and the Geneva Conventions. Id. at 
613-625 (violates Uniform Code of Military Justice), 625-635 
(violates the Geneva Conventions).
    846. See discussion Section II (Assault on Individual 
Liberties), Part I (Detention).
    847. See discussion Section II (Assault on Individual 
Liberties), Part II (Interrogation).
    848. See discussion Section II (Assault on Individual 
Liberties), Part II (Interrogation).
    849. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
    850. See discussion Section II (Assault on Individual 
Liberties), Part II (Interrogation).
    851. The use of these techniques, which went beyond the 
treatment allowed under the Army Field Manual, has been 
confirmed by, among other things, ``interrogation logs'' that 
have been disclosed, and the report of Department of Justice 
Inspector General Glenn Fine, which discussed the interrogation 
tactics used by the Department of Defense against Muhammad al-
Khatani at Guantanamo. Statement of Glenn A. Fine Inspector 
General, U.S. Department of Justice before the House Committee 
on Foreign Affairs Subcommittee on International Organizations, 
Human Rights, and Oversight concerning The Role of the FBI at 
Guantanamo Bay, at 5-9 (June 4, 2008) available at http://
www.usdoj.gov/oig/testimony/t0806/final.pdf. See also 
``Interrogation Log, Detainee 063,'' reprinted in Time, 
available at http://www.time.com/time/2006/log/log.pdf.
    852. See discussion Section II (Assault on Individual 
Liberties), Part II (Interrogation).
    853. As but one example, The Washington Post reported: 
``[S]taff sergeant, James Vincent Lucas, told Army 
investigators that he traveled from Cuba to Iraq from October 
to December 2003 as part of a six-person team to bring his 
`lessons learned' and to `provide guidelines' to interrogators 
at Abu Ghraib who were setting up their operation, according to 
investigative documents obtained by The Washington Post.'' 
White, ``Abu Ghraib Dog Tactics Came From Guantanamo,'' Wash. 
Post, July 27, 2005, at A14, available at http://
www.washingtonpost.com/wp-dyn/content/article/2005/07/26/
AR2005072601792.html. Similarly, an internal Department of 
Defense report stated:

    In August 2003, [Major General] Geoffrey Miller [who was 
then the Commander of Guantanamo] arrived [in Iraq] to conduct 
an assessment of DoD counterterrorism interrogation and 
detention operations in Iraq . . . . He brought to Iraq the 
Secretary of Defense's April 16, 2003 policy guidelines for 
Guantanamo--which he reportedly gave to CJTF-7 [the Combined 
Joint Task Force 7--the U.S. Army in Iraq] as a potential 
model--recommending a command-wide policy be established. He 
noted, however, the Geneva Conventions did apply to Iraq . . . 
. [T]here was also a store of common lore and practice within 
the interrogator community circulating through Guantanamo, 
Afghanistan and elsewhere.

``Final Report of the Independent Panel to Review DoD 
Interrogation Operations,'' (Hon. J. Schlesinger, Chairman), 
Aug. 2004 at 37, available at http://www.defenselink.mil/news/
Aug2004/d20040824finalreport.pdf.
    854. See discussion Section II (Assault on Individual 
Liberties), Part II (Interrogation).
    855. Id.
    856. See, e.g., Mayer, ``Outsourcing Torture, the Secret 
History of America's ``Extraordinary Rendition'' program,'' The 
New Yorker, Feb. 14, 2005, available at http://
www.newyorker.com/archive/2005/02/14/050214fa_fact6; Campbell, 
``September 11: Six Months on: U.S. Sends Suspects to Face 
Torture,'' The Guardian, Mar. 12, 2002, at 4 (quoting an 
unnamed U.S. diplomat as acknowledging ``[a]fter September 11, 
[renditions] have been occurring all the time.  . . . It allows 
us to get information from terrorists in a way we can't do on 
U.S. soil.''); Jehl and Johnston, ``Rule Change Lets C.I.A 
Freely Send Suspects Abroad to Jails,'' N.Y. Times, Mar. 6, 
2005, at A1 (``former government officials say that since the 
Sept. 11 attacks, the CIA has flown 100 to 150 suspected 
terrorists from one foreign country to another, including to 
Egypt, Syria, Saudi Arabia, Jordan and Pakistan''); 
Satterthwaite & Fisher, Beyond Guantanamo: Transfers to Torture 
One Year After Rasul v. Bush (2005), Ctr. For Human Rights & 
Global Justice, N.Y. Univ. Sch. of Law, available at http://
www.chrgj.org/docs/Beyond%20Guantanamo%20Report%20FINAL.pdf.
    857. See, e.g,. President George W. Bush, President 
Discusses Creation of Military Commissions to Try Suspected 
Terrorists, Sept. 6, 2006, available at www.whitehouse.gov/
news/releases/2006/09/20060906-3.html.
    858. See generally discussion, Section 2 (Extraordinary 
Rendition, Ghosting and Black Sites), Part III.
    859. See generally discussion, Section 2 (Extraordinary 
Rendition, Ghosting and Black Sites), Part III.
    860. See generally discussion, Section 2 (Extraordinary 
Rendition, Ghosting and Black Sites), Part III.
    861. See generally discussion, Section 2 (Extraordinary 
Rendition, Ghosting and Black Sites), Part III.
    862. Department of Homeland Security, Office of Inspector 
General, OIG-08-18, The Removal of a Canadian Citizen to Syria, 
at 22 (March 2008).
    863. Letter from Clark Kent Ervin, Inspector General, Dept. 
Of Homeland Security, to Rep. John Conyers, Jr., Ranking 
Member, H. Comm. on the Judiciary, (July 14, 2004) (apologizing 
that ``our work has been delayed and may not be completed in a 
timely matter'' because access to information had been blocked 
based on claims of classification and legal privilege). Several 
other members of Congress, including Constitution Subcommittee 
Chairman Nadler, have also pressed the Administration for 
information regarding rendition of terror suspects. Many of 
those requests remain unanswered. See, e.g., Letters from Hon. 
Jerrold Nadler and William D. Delahunt to Hon. Michael Mukasey, 
General Michael Hayden, Hon. Condoleezza Rice, and Hon. Michael 
Chertoff (July 10, 2008).
    864. See, e.g., El-Masri v. U.S., 479 F.3rd 296 (4th Cir.) 
(dismissing lawsuit based on state secret privilege), cert. 
denied, 128 S.Ct. 373 (2007).
    865. See, e.g., Mayer, ``Outsourcing Torture, the Secret 
History of America's ``Extraordinary Rendition'' program,'' The 
New Yorker, Feb. 14, 2005, available at http://
www.newyorker.com/archive/2005/02/14/050214fa_fact6; Johnson, 
``At a Secret Interrogation, Dispute Flared Over Tactics,'' 
N.Y. Times, Sept. 10, 2006, available at http://
www.nytimes.com/2006/09/10/washington/
10detain.html?pagewanted=all.
    866. See, e.g., Office of the Inspector General, Department 
of Justice, ``A Review of the FBI's Involvement in and 
Observations of Detainee Interrogations in Guantanamo Bay, 
Afghanistan, and Iraq,'' 257 (2008) (referencing Vice Adm. 
Church's investigation into the abuse at Abu Ghraib prison and 
discovery that, through unwritten agreement, the Coalition 
Joint Task Force in Iraq provided a number of cells at Abu 
Ghraib for the CIA's exclusive use in holding ghost detainees); 
``AR 15-6 Investigation of the Abu Ghraib Prison and 205th 
Military Intelligence Brigade,'' by LTG Anthony R. Jones, at 
23, available at http://fl1.findlaw.com/news.findlaw.com/hdocs/
docs/dod/fay82504rpt.pdf. See also Press Release, Human Rights 
First, Latest Army Report: More Involved in Abuse Than 
Previously Reported (August 25, 2004), available at http://
www.humanrightsfirst.org/media/2004_alerts/0825_b.htm; Amnesty 
International et al., ``Off the Record: U.S. Responsibility for 
Enforced Disappearances in the `War on Terror,' '' 4 (June 
2007), available at http://www.hrw.org/backgrounder/usa/ct0607/
ct0607web.pdf.
    867. See generally discussion, Section 2 (Extraordinary 
Rendition, Ghosting and Black Sites), Part III.
    868. 50 U.S.C. Sec. 1809.
    869. U.S. Department of Justice White Paper, ``Legal 
Authorities Supporting the Activities of the National Security 
Agency Described by the President'' (Jan. 19, 2006), available 
at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
    870. The House version of [FISA] would have authorized the 
president to engage in warrantless electronic surveillance for 
the first year of a war, but the Conference Committee rejected 
so long a period of judicially unchecked eavesdropping as 
unnecessary inasmuch as the 15-day period would ``allow time 
for consideration of any amendment to this act that may be 
appropriate during a wartime emergency.'' Letter from Professor 
Laurence H. Tribe, Harvard Law School, to Rep. John Conyers, 
Jr, Ranking Member, H. Comm. on the Judiciary (January 10, 
2006).
    871. U.S. Department of Justice White Paper, ``Legal 
Authorities Supporting the Activities of the National Security 
Agency Described by the President'' (Jan. 19, 2006), available 
at http://www.usdoj.gov/opa/
whitepaperonnsalegalauthorities.pdf.
    872. H.R. Conf. Rep. No. 95-1720, at 34 (1978).
    873. Memorandum Opinion, ACLU v. NSA, (EDMI, August 17, 
2006), available at http://www.aclu.org/pdfs/safefree/
nsamemo.opinion.judge.taylor.081706.pdf. The Sixth Circuit 
Court of Appeals overturned the decision not on the merits, but 
on the grounds that the plaintiffs lacked standing because they 
had not ``--and because of the State Secrets Doctrine [could] 
not''--produce any evidence that any of their own 
communications have ever been intercepted [without a 
warrant].'' American Civil Liberties Union v. National Sec. 
Agency, 493 F.3d 644, 653 (6th Cir. 2007).
    874. Press Briefing by Attorney General Alberto Gonzales 
and General Michael Hayden, Principal Deputy Director for 
National Intelligence, available at http://www.whitehouse.gov/
news/releases/2005/12/20051219-1.html (December 19, 2005).
    875. Klaidman, ``Now We Know What the Battle Was About,'' 
Newsweek, December 13, 2008.
    876. Lichtblau, ``Debate and Protest at Spy Program's 
Inception,'' N.Y. Times, Mar. 30, 2008, available at  http://
www.nytimes.com/2008/03/30/washington/
30nsa.html?_r=3&ref=us&oref=slogin&oref=slogin&oref=slogin.
    877. Gellman, ``Cheney Shielded Bush From Crisis,'' Wash. 
Post, September 15, 2008 (`` `I decide what the law is for the 
executive branch,' [Bush] said'').
    878. Statement of Undersigned Members of the House 
Judiciary Committee Concerning the Administration's Terrorist 
Surveillance Program and the Issue of Retroactive Immunity,'' 
March 12, 2008, available at http://judiciary.house.gov/Media/
PDFS/Immunity080312.pdf.
    879. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
    880. ``President Bush Calls for Renewing the USA PATRIOT 
Act,'' Remarks by the President on the USA PATRIOT Act, Hershey 
Lodge and Convention Center, Hershey, Pennsylvania (Apr. 19, 
2004), available at http://www.whitehouse.gov.news/releases/
2004/04/print/20040419-4.htm (emphasis added).
    881. DOJ OIG NSL Report at 97.
    882. DOJ OIG NSL Report at 110.
    883. DOJ OIG NSL Report Hearing at 228 (testimony of 
Inspector General Glenn Fine); DOJ OIG NSL Report at 82.
    884. DOJ OIG NSL Report Hearing at 228 (testimony of 
Inspector General Glenn Fine).
    885. Dept. of Justice, Office of Inspector General, ``A 
Review of the FBI's Use of Section 215 Orders for Business 
Records in 2006,'' at 68, 72 (2008).
    886. DOJ OIG NSL Report at 115-16.
    887. Id. at 116.
    888. Id. at 121; Gellman, ``The FBI's Secret Scrutiny: In 
Hunt for Terrorists, Bureau Examines Records of Ordinary 
Americans,'' Wash. Post, Nov. 6, 2005, at A1.
    889. NSLRA Report Hearing at 19 (testimony of Inspector 
General Glenn Fine).
    890. Id. at 9.
    891. Id.
    892. The OIG determined that the spike in calendar year 
2004 was due in large part to the issuance of 9 NSLs in one 
investigation that contained requests for subscriber 
information on a total of 11,100 separate telephone numbers. 
Id. at 36.
    893. DOJ OIG NSL Report at 33.
    894. Id. at 34.
    895. DOJ OIG NSL Report Hearing at 216 (testimony of FBI 
General Counsel Valerie Caproni).
    896. Id. at 9 (testimony of Inspector General Glenn Fine).
    897. Id.
    898. Id.
    899. NSLRA Hearing at 9 (testimony of Inspector General 
Glenn Fine).
    900. DOJ OIG NSL Report, at 86.
    901. Id. at 93
    902. Id.
    903. DOJ OIG NSL Corrective Action Report, at 127.
    904. Amending Executive Order 12866: Good Governance or 
Regulatory Usurpation: Hearing Before the Subcommittee on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong. (2007) (prepared statement of Professor 
Peter L. Strauss, Columbia Law School).
    905. Public Citizen, ``New Executive Order is Latest White 
House Power Grab,'' Jan. 18, 2007, available at http://
www.citizen.org/pressroom/release.cfm?ID=2361. See also Kriz, 
``Thumbing His Nose,'' Nat'l J., July 28, 2007, at 32-34.
    906. Presidential Signing Statements under the Bush 
Administration: A Threat to Checks and Balances and the Rule of 
Law?: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 
(2007).
    907. Presidential Signing Statements: Hearing Before the S. 
Comm. on the Judiciary, 109th Cong. (2006).
    908. American Bar Association, Report of Task Force on 
Presidential Signing Statements and the Separation of Powers 
Doctrine (July 24, 2006).
    909. Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 2 (2006).
    910. Id. at 2 (2006). A House report criticized Jackson's 
signing statement, declaring that a congressionally authorized 
road should not extend beyond Michigan, as tantamount to a 
line-item veto. Another House report called Tyler's signing 
statement regarding the constitutionality of an apportionment 
bill to be ``a defacement of the public records and archives.'' 
Id.
    911. Id. at 2.
    912. Id. at 2.
    913. Id. at 2.
    914. Memorandum of Samuel A. Alito, Jr., U.S. Department of 
Justice, Office of Legal Counsel, Using Presidential Signing 
Statements to Make Fuller Use of the President's 
Constitutionally Assigned Role in the Process of Enacting Law 
(Feb. 5, 1986), available at http://www.archives.gov/news/
samuel-alito/accession-060-89-269/Acc060-89-269-box6-SG-LSWG-
AlitotoLSWG-Feb1986.pdf.
    915. Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 3-4 (2006); See, e.g., Bowsher v. Synar, 
478 U.S. 714 (1986); INS v. Chadha, 462 U.S. 919 (1983).
    916. Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 4 (2006).
    917. Id.
    918. Id. at 5-6.
    919. Department of Justice, Office of Legal Counsel, The 
Legal Significance of Presidential Signing Statements, 17 U.S. 
Op. Off. Legal Counsel 131 (1993).
    920. Department of Justice, Office of Legal Counsel, 
Presidential Authority to Decline to Execute Unconstitutional 
Statutes, 18 U.S. Op. Office of Legal Counsel 199 (1994).
    921. Special White House Briefing on Provision in the 
FY1996 Defense Authorization Bill Relating to HIV positive 
Armed Services Members, Feb. 9, 1996, Federal News Service, 
available on Lexis Nexis; see also Alison Mitchell, ``President 
Finds a Way to Fight Mandate to Oust H.I.V. Troops,'' N. Y. 
Times, Feb. 10, 1996 (Clinton, ``once signing the overall 
legislation, would have no choice but to enforce the law, in 
the absence of a court ruling against it'').
    922. Presidential Signing Statements under the Bush 
Administration: A Threat to Checks and Balances and the Rule of 
Law?: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 
(2007).
    923. Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 9 (2006).
    924. American Bar Association, ``Task Force on Presidential 
Signing Statements and the Separation of Powers Doctrine,'' 
(July 24, 2006) available at http://www.abanet.org/op/
signingstatements, which concluded that signing statements 
undermine separation of powers.
    925. Christopher S. Kelley, Home Page, available at http://
www.users.muohio.edu/kelleycs/.
    926. Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 9 (2006).
    927. Id. at 9-11.
    928. Id. at 11.
    929. S. Amdt. 1977, 109th Cong. (2006).
    930. Savage, ``Bush Could Bypass New Torture Ban,'' Boston 
Globe, Jan. 4, 2006, at A1.
    931. The White House, President's Statement on Signing of 
H.R. 2863, the ``Department of Defense, Emergency Supplemental 
Appropriations to Address Hurricanes in the Gulf of Mexico, and 
Pandemic Influenza Act, 2006,'' Dec. 30, 2005, available at 
http://www.whitehouse.gov/news/releases/2005/12/20051230-
8.html.
    932. Savage, ``Bush Could Bypass New Torture Ban,'' Boston 
Globe, Jan. 4, 2006, at A1.
    933. The White House, President's Statement on H.R. 199, 
the ``USA PATRIOT Improvement and Reauthorization Act of 
2005,'' Mar. 9, 2006, available at http://www.whitehouse.gov/
news/releases/2006/03/20060309-8.html; Drew, ``Power Grab,'' 
N.Y. Review of Books, June 22, 2006; Savage, ``Bush Could 
Bypass New Torture Ban,'' Boston Globe, Jan. 4, 2006, at A1.
    934. Drew, ``Power Grab,'' N.Y. Review of Books, June 22, 
2006.
    935. The White House, President's Statement on H.R. 5441, 
Oct. 4, 2006; see Savage, ``Bush Challenges Hundreds of Laws,'' 
Boston Globe, Apr. 30, 2006.
    936. The White House, President's Statement on H.R. 5441, 
Oct. 4, 2006; see Savage, ``Bush Challenges Hundreds of Laws,'' 
Boston Globe, Apr. 30, 2006.
    937. See Pub. L. No. 108-458, Sec. 1011(a), Sec. 
102A(f)(1)(B)(3)(A)(iv), at 118 Stat. 3649 (2004).
    938. 539 U.S. 306 (2003).
    939. Presidential Signing Statements: Hearing Before the S. 
Comm. on the Judiciary, 109th Cong. (2006) (statement of Sen. 
Patrick Leahy), available at http://leahy.senate.gov/press/
200606/062706.html.
    940. Id.
    941. Savage, ``Bush Challenges Hundreds of Laws,'' Boston 
Globe, Apr. 30, 2006.
    942. GAO Informal Opinion B-308603, at 3, 11-12 (June 18, 
2007).
    943. See GAO Informal Opinion B-308603 (June 18, 2007); GAO 
Informal Opinion B-309928 (Dec. 20, 2007).
    944. GAO Informal Opinion B-308603 (June 18, 2007); GAO 
Informal Opinion B-309928 (Dec. 20, 2007). With respect to 
whistleblower protections, the GAO found that, contrary to law, 
the Department of Energy had not notified its employees that 
they are covered by specified whistleblower protections and 
``did not state when it plans to'' do so, and that the Nuclear 
Regulatory Commission had so notified its employees, but had 
done so some two years late. GAO Informal Opinion B-309928, at 
12 (Dec. 20, 2007).
    945. See Press Release, H. Comm. on the Judiciary, Conyers-
Byrd GAO Report Shows Presidential Power Grab in Use of Signing 
Statements (Dec. 21, 2007).
    946. See Impact of Presidential Signing Statements on 
Implementation of the National Defense Authorization Act for FY 
2008: Hearing Before the Subcomm. On Oversight and 
Investigations of the H. Comm. On Armed Services, 110th Cong. 
(2008) (Statement of Subcommittee Chairman Vic Snyder).
    947. Savage, ``Bush Declares Exceptions to Sections of Two 
Bills He Signed into Law,'' N.Y. Times, Oct. 15, 2008, (quoting 
Rep. Jim Cooper).
    948. See Risen, ``The Executive Power Awaiting the Next 
President,'' N. Y. Times, June 22, 2008.
    949. See Savage, ``Barack Obama's Q&A,'' Boston Globe, Dec. 
20, 2007.
    950. Copeland, ``The Federal Rulemaking Process: An 
Overview,'' CRS Report for Congress, RL 32240, at 1 (Feb. 7, 
2005).
    951. The terms ``regulation'' and ``rule'' are generally 
used ``interchangeably in discussions of the federal regulatory 
process.'' Copeland, ``The Federal Rulemaking Process: An 
Overview,'' CRS Report for Congress, RL 32240, at 1 (2005). In 
turn, ``rulemaking'' refers to ``[t]he process by which federal 
agencies develop, amend, or repeal rules.'' Id.
    952. Regulatory Reform: Are Regulations Hindering Our 
Competitiveness?: Hearing Before the Subcomm. on Regulatory 
Affairs of the H. Comm. on Government Reform, 109th Cong. 56 
(2005) (testimony of J. Christopher Mihm, Managing Director--
Strategic Issues, U.S. Government Accountability Office).
    953. 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 
5372, 7521 (2008).
    954. Edles, ``Lessons from the Administrative Conference of 
the United States,'' 2 Eur. Pub. L. 571, 572 (1996).
    955. Copeland, ``The Federal Rulemaking Process: An 
Overview,'' CRS Report for Congress, RL 32240, at 1 (2005).
    956. Exec. Order No. 10,934, 26 Fed. Reg. 3,233 (Apr. 13, 
1961).
    957. OMB Management Watch List: $65 Billion Reasons to 
Ensure The Federal Government is Effectively Managing 
Information Technology Investments: Hearing Before the H. Comm. 
On Government Reform, 109th Cong. (2005) (Testimony of David A. 
Powner, Director, Information Technology Management Issues, 
U.S. Government Accountability Office).
    958. Committee Print: ``Office of Management and Budget: 
Evolving Roles and Future Issues,'' CRS Report, S. Comm. on 
Governmental Affairs, 99th Cong. 185 (1986).
    959. OIRA was established in 1980. Paperwork Reduction Act 
of 1980 Sec. 3503, 44 U.S.C. ch. 35 (2008).
    960. Interim Report on the Administrative Law, Process and 
Procedure Project for the 21st Century, Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 109th 
Cong. 39 (2006) available at http://judiciary.house.gov/Media/
PDFS/Printers/109th/31505.pdf.
    961. The Project was approved on January 26, 2005 by the 
House Judiciary Committee as part of its Oversight Plan for the 
109th Congress and its continuation was approved as part of the 
Committee's Oversight Plan for the 110th Congress. The 
objective of the Project was to conduct a nonpartisan, 
academically credible analysis with the assistance of CRS. The 
Project culminated with the preparation of a detailed report 
with recommendations for immediate legislative reforms as well 
as suggested areas for further research and analysis to be 
conducted by the Administrative Conference of the United 
States, which was most recently reauthorized in the 110th 
Congress.
    962. Interim Report on the Administrative Law, Process and 
Procedure Project for the 21st Century, Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 109th 
Cong. 39 (2006) available at http://judiciary.house.gov/Media/
PDFS/Printers/109th/31505.pdf.
    963. Vladeck, ``Unreasonable Intervention: The Battle to 
Force Regulation of Ethylene Oxide,'' Administrative Law 
Stories 192, at 222 (2006).
    964. Vladeck, ``Unreasonable Intervention: The Battle to 
Force Regulation of Ethylene Oxide,'' Administrative Law 
Stories 192, at 222 (2006). Others defend OBM's role as an 
enforcer of the Administration's priorities and forum for 
centralized review. They cite, for example, how OMB can be a 
``brake on overly zealous, pro-regulatory bureaucrats and as a 
way for an Administration to manager and rationalize its 
regulatory policy.'' Id. at 225. Centralized review, they 
argue, allows a president to consolidate power.
    The ramifications of this debate are significant as 
explained in the following:

    [T]he stakes are enormous, implicating the most basic 
principles of separation of powers. At bottom, the real 
question is whether the White House or agencies will make the 
policy decisions that Congress entrusted to the agencies, not 
to the President. These decisions may seem mundane in the 
abstract, but in fact they are breathtaking in their scope and 
importance: affecting, among other things, the purity of the 
air we breathe, the food we eat, and the water we drink, the 
safety of our drugs, medical devices, cars, airplanes, trains, 
and ships, and the security of our nation's airports, 
refineries, nuclear power plants, chemical plants, and even our 
nation's border.

Id. at 226.
    965. Lisa Heinzerling, Deregulatory Review, Georgetown Law 
Faculty Blog, available at http://gulcfac.typepad.com/
georgetown_university_law/2007/01/deregulatory_re.html (visited 
Jan. 24, 2007). A commentator similarly noted, ``On Jan. 18, 
while the headlines in the U.S. focused on the war in Iraq, the 
new Democratic Congress, and actress Lindsay Lohan's alcohol 
problem, the Bush Administration rewrote the book on federal 
regulation.'' Skrzycki, ``Bush Gains Power on Rules After 
Losing Congress,'' Bloomberg.com, available at http://
bloomberg.com/apps/news?pid=206700001&refer=columnist.
    966. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007).
    967. Exec. Ord. No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 
1993).
    968. Pear, ``Bush Directive Increases Sway on Regulation,'' 
N. Y. Times, Jan. 30, 2007, at A1.
    969. See, e.g., Press Release, Public Citizen, New 
Executive Order Is Latest White House Power Grab (Jan. 18, 
2007), available at http://www.citizen.org/pressroom/
release.cfm?ID=2361; Epps, ``The Power of King George,'' 
Salon.com, (Feb. 1, 2007) (describing Executive Order 13422 as 
a ``power grab'' by the Bush Administration), available at 
http://www.salon.com/opinion/feature/2007/02/01/
presidential_power/.
    970. Krugman, Op-Ed., ``The Green-Zoning of America,'' N. 
Y. Times, Feb. 5, 2007, at A25.
    The Administration, on the other hand, claimed the Order 
was simply an exercise of ``good government.'' For example, OMB 
General Counsel Jeffrey Rosen explained, ``Simply put: what we 
are doing here is `good government.' We are building upon a 
process that has been used by presidents of both parties to try 
to institutionalize best practices.'' Skrzycki, ``Bush Gains 
Power on Rules After Losing Congress,'' Bloomberg.com (Jan. 30, 
2007), at http://bloomberg.com/apps/
news?pid=206700001&refer=columnist. In another statement to the 
press, Mr. Rosen noted, ``This is a class good-government 
measure that will make federal agencies more open and 
accountable.'' Pear, ``Bush Directive Increases Sway on 
Regulation,'' N. Y. Times, Jan. 30, 2007, at A1. Paul Noe, a 
former OIRA advisor, similarly noted, ``The executive order 
promotes better-informed and more accountable regulatory 
decisions.'' Skrzycki, ``Bush Gains Power on Rules After Losing 
Congress,'' Bloomberg.com (Jan. 30, 2007), at http://
bloomberg.com/apps/news?pid=206700001&refer=columnist. Other 
proponents of Executive Order 13422 argued that it represents 
``long overdue action to constrain the growing burden of 
federal regulation on the economy.'' Bartlett, ``Regulatory 
Respite,'' The Washington Times, Feb. 7, 2007.
    971. Executive Order 13422: Good Governance or Regulatory 
Usurpation?: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2007).
    972. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007), at Sec. 1(a).
    973. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 4 (2007).
    974. Skrzycki, ``Bush Gains Power on Rules After Losing 
Congress,'' Bloomberg.com (Jan. 30, 2007), at http://
bloomberg.com/apps/news?pid+206700001&refer=columnist (quoting 
Professor Sally Katzen as stating, ``'It's another thumb on the 
scale. . . . There will be more boxes to check, more I's to 
dot, more T's to cross, and more analysis.''').
    975. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 5 (2007) (summarizing observations by certain outside 
groups).
    976. Hearing on the Rulemaking Process and the Unitary 
Executive Theory Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary).
    977. Skrzycki, ``Bush Gains Power on Rules After Losing 
Congress,'' Bloomberg.com, (Jan. 30, 2007) available at http://
bloomberg.com/apps/news?pid=206700001&refer=columnist
    978. On the same day that Executive Order 13422 was issued, 
OMB issued a bulletin establishing ``policies and procedures 
for the development, issuance, and use of significant guidance 
documents by Executive Branch departments and agencies.'' 
Office of Management and Budget, Final Bulletin for Agency Good 
Guidance Practices, 72 Fed. Reg. 3,432 (Jan. 18, 2007).
    979. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007), at Sec. 3(g). According to the OMB Bulletin interpreting 
this provision, the definition ``is not limited only to written 
guidance materials and should not be so construed.'' Office of 
Management and Budget, Final Bulletin for Agency Good Guidance 
Practices, 72 Fed. Reg. 3,432, 3,434 (Jan. 18, 2007). The 
Bulletin explains that the term ``encompasses all guidance 
materials, regardless of format,'' including ``video or audio 
tapes, or interactive web-based software. Id.
    980. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007), at Sec. 3(h). In pertinent part, the definition provides 
that a ``significant guidance document'':

    (1) Means a guidance document disseminated to regulated 
entities or the general public that, for purposes of this 
order, may reasonably be anticipated to:
          (A) Lead to an annual effect of $100 million or more 
        or adversely affect in a material way the economy, a 
        sector of the economy, productivity, competition, jobs, 
        the environment, public health or safety, or State, 
        local, or tribal governments or communities;
          (B) Create a serious inconsistency or otherwise 
        interfere with an action taken or planned by another 
        agency;
          (C) Materially alter the budgetary impact of 
        entitlements, grants, user fees, or loan programs or 
        the rights or obligations of recipients thereof; or
          (D) Raise novel legal or policy issues arising out of 
        legal mandates, the President's priorities, or the 
        principles set forth in this Executive Order[.]

Id.
    981. Pursuant to these requirements, the agency must:

    1. base its decision regarding the need for and 
consequences of each new guidance document on the best 
reasonably obtainable scientific, technical, economic or other 
information;
    2. avoid issuing guidance documents that are inconsistent, 
incompatible or duplicative with other regulations or guidance 
documents;
    3. tailor the guidance to impose the least burden on 
society, consistent with the regulatory objective, taking into 
account, inter alia, the costs of cumulative regulations, to 
the extent practicable;
    4. draft the guidance document so that it is simple and 
easy to understand; and
    5. ensure that the guidance document is consistent with 
applicable law, the President's priorities, and EO 12866, as 
amended.

Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 2007), at 
Sec. Sec. 1-2.
    Executive Order 13422 also requires OMB to ensure that the 
guidance document is consistent with applicable law, the 
President's priorities, and Executive Order 12866, as amended. 
Id. at Sec. 2(b). A further new requirement for significant 
guidance documents specifies that each agency must give OIRA 
advance notice of any such documents and, upon request of the 
OIRA Administrator, provide OIRA with the content of the draft 
guidance document together with a brief explanation of its need 
and how it will meet that need. The OIRA Administrator must 
notify the agency if additional consultation is required before 
the document may be issued. Id. at Sec. 7.
    982. Press Release, Public Citizen, New Executive Order Is 
Latest White House Power Grab (Jan. 18, 2007), available at 
http://www.citizen.org/pressroom/release.cfm?ID=2361. A 
representative of Public Citizen made the following additional 
observation, `` `By requiring White House approval of important 
guidance, the White House will insert its political agenda and 
pro-business bias into every level of agency policy, so that 
our federal government will handcuff itself instead of the 
companies that violate the law and put the public in danger.' 
'' Id. (quoting Robert Shull, Deputy Director for Auto Safety 
and Regulatory Policy, Public Citizen).
    983. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 10 (2007).
    984. Id. at 10-11.
    985. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007), at Sec. 4(c).
    986. Amending Executive Order 12866: Good Governance or 
Regulatory Usurpation?: Hearing Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 110th Cong. 55 (2007).
    987. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 9 (2007).
    988. Exec. Ord. No. 13,422, 72 Fed. Reg. 2,763 (Jan. 23, 
2007), at Sec. 5(b).
    989. Id. at Sec. 4(b).
    990. Pear, ``Bush Directive Increases Sway on Regulation'', 
N.Y. Times, Jan. 30, 2007, at A1.
    991. Hearing on the Rulemaking Process and the Unitary 
Executive Theory Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service).
    992. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 6 (2007).
    993. Id. at 7.
    994. Id. at 6.
    995. Hearing on the Rulemaking Process and the Unitary 
Executive Theory Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of John Conyers, Jr., 
Chairman, House Committee on the Judiciary).
    996. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, at 56 (2007) (quoting Office of Management and Budget, 
Stimulating Smarter Regulation: 2002 Report to Congress on the 
Costs and Benefits of Federal Regulations and Unfunded Mandates 
on State, Local, and Tribal Entities, Dec. 2002).
    997. John Graham, Administrator, OIRA, Remarks to the Board 
of Trustees, The Keystone Center, at Washington, DC (June 18, 
2002), available at http://www.whitehouse.gov/omb/inforeg/
keystone_speech061802.html.
    998. Administrative Law, Process, and Procedure Project for 
the 21st Century: Interim Report, Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, Comm. 
Print No. 10, 109th Cong. 56 (2006).
    999. Heinzerling, ``Statutory Interpretation in the Era of 
OIRA,'' 33 Ford. Urb. L. Rev. 1097, 1117 (2006).
    1000. U.S. General Accounting Office, Rulemaking: OMB's 
Role in Reviews of Agencies' Draft Rules and the Transparency 
of Those Reviews, GAO-03-929, Sept. 22, 2003.
    1001. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service) (footnotes omitted). Additional instances of 
this heightened role include the following:

     the increased use of ``informal'' OIRA reviews in 
which agencies share preliminary drafts of rules and analyses 
before final decisionmaking at the agencies--a period when OIRA 
says it can have its greatest impact on the rules, but when 
OIRA says that some of the transparency requirements in 
Executive Order 12866 do not apply;
     extensions of OIRA review for certain rules for 
months or years beyond the 90-day time limit delineated in the 
executive order;
     using a general statutory requirement that OIRA 
provide Congress with ``recommendations for reform'' to request 
the public to identify rules that it believes should be 
eliminated or reformed;
     a leadership role for OIRA in the development of 
electronic rulemaking, which has led to the development of a 
centralized rulemaking docket, but which some observers believe 
can lead to increased presidential influence over the agencies;
     the development of an OMB bulletin on peer review 
that, in its original form, some believed could have led to a 
centralized system within OMB that could be vulnerable to 
political manipulation or control;
     the development of a proposed bulletin 
standardizing agency risk assessment procedures that the 
National Academy of Sciences concluded was ``fundamentally 
flawed,'' and that OIRA later withdrew; and
     the development of a ``good guidance practices'' 
bulletin that standardizes certain agency guidance practices.

Id.
    1002. However, OIRA returned only two rules in 2003, one 
rule in 2004, one rule in 2005, no rules in 2006, and one rule 
in 2007. OIRA officials indicated that the pace of return 
letters declined after 2002 because agencies had gotten the 
message about the seriousness of OIRA reviews.
    1003. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service).
    1004. Eilperin, ``Ozone Rules Weakened at Bush's Behest,'' 
Wash. Post, Mar. 14, 2008, at A1.
    1005. Id. (quoting OIRA Administrator Susan Dudley).
    1006. Skrzycki, ``It's Not a Backroom Deal If the Call Is 
Made in the Oval Office,'' Wash. Post, Apr. 8, 2008, at D2.
    1007. Hearing on the Rulemaking Process and the Unitary 
Executive Theory Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary).
    1008. Exec. Ord. No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 
1993).
    1009. See, e.g., Final Rule: Amendment of the Standards for 
Radioactive Waste Disposal in Yucca Mountain, Nevada (under 
review since Dec. 15, 2006); Final Rule: Concentrated Animal 
Feeding Operation Rule (under review since Aug. 13, 2007); 
Proposed Rule: Air Quality Index Reporting and Significant Harm 
Level for PM2.5 (under review since Sept. 19, 2007); Proposed 
Rule: Protection of Stratospheric Ozone: Ban on the Sale or 
Distribution of Pre-Charged Products (under review since Nov. 
9, 2007). General Services Administration, RegInfo.gov, 
available at 
http://www.reginfo.gov/public/do/eAgendaViewRule?ruleID=273113
    One of these long-delayed rules concerned North American 
right whales, which are among the most critically endangered 
species in the world. Endangered and Threatened Species; 
Petition to Initiate Emergency Rulemaking to Prevent the 
Extinction of the North American Right Whale; Final 
Determination, 70 Fed. Reg. 56,884 (Sept. 29, 2005). More than 
four years ago, the National Oceanic and Atmospheric 
Administration initiated a rulemaking to protect the North 
American right whale from ship collisions. Advanced Notice of 
Proposed Rulemaking for Right Whale Ship Strike Reduction, 69 
Fed. Reg. 30,857 (June 1, 2004). After an exhaustive rulemaking 
process, a final rule was submitted to OMB on February 20, 2007 
for review. More than 18 months later, the rule was still under 
review. General Services Administration, RegInfo.gov, available 
at http://www.reginfo.gov/public/do/
eAgendaViewRule?ruleID=273113 (last visited Aug. 12, 2008). 
This delay is due to objections raised by White House 
officials, including officials in the Office of the Vice 
President. See Letter from Henry Waxman, Chairman, H. Comm. on 
Oversight and Gov't Reform, to Susan Dudley, Administrator, 
Office of Regulatory and Information Administration (Apr. 30, 
2008); Hebert, ``Delay in Ruling on Endangered Right Whales 
Criticized,'' Wash. Post, Apr. 30, 2008; Nat'l Oceanic and 
Atmospheric Admin. Fisheries Serv., Ship Strike Rulemaking 
(Oct. 2007). Critics of this delay, such as Rep. Henry Waxman, 
claim that the Administration is raising `` `baseless 
objections' to findings by government scientists who for years 
had been studying the dangers posed to the whale by commercial 
shipping.'' Hebert, ``Delay in Ruling on Endangered Right 
Whales Criticized,'' Wash. Post, Apr. 30, 2008.
    1010. Pub. L. No. 104-121, Sec. 251, 110 Stat. 847, 868-74 
(1996) (codified at 5 U.S.C. Sec. Sec. 801-08).
    1011. Letter from Gary Kepplinger, General Counsel, U.S. 
Gov't Accountability Office, to Sen. John D. Rockefeller, IV 
(D-WV) (Apr. 17, 2008).
    1012. 5 U.S.C. Sec. 801(a) (2008).
    1013. 5 U.S.C. Sec. 801(a)(3)(A) (2008).
    1014. Letter from Dennis G. Smith, Director, Center for 
Medicaid and State Operations, Dept. of Health & Human Servs. 
Centers for Medicare & Medicaid Servs. (Aug. 17, 2007), 
available at http://www.cms.hhs.gov/smdl/downloads/
SHO081707.pdf
    1015. Letter from Dennis G. Smith, Director, Center for 
Medicaid and State Operations, Dept. of Health & Human Servs. 
Centers for Medicare & Medicaid Servs. (Aug. 17, 2007), 
available at http://www.cms.hhs.gov/smdl/downloads/
SHO081707.pdf. This directive has been widely criticized. For 
example, Senator John Rockefeller (D-WV) said, ``The directive 
is a bold-faced attempt to subvert the law and prevent states 
from implementing their plans to provide health insurance 
coverage to millions of uninsured children nationwide.'' Teske, 
``Health Care: Lawmakers Cite GAO, CRS Findings in Faulting 
CMS's 2007 Enrollment Directive,'' BNA, Inc. Daily Rep. for 
Executives, at A-17 (Apr. 21, 2008) (quoting Sen. John D. 
Rockefeller (D-WV)). Similarly, Senator Olympia Snowe (R-ME) 
complained, ``Rather than working with Congress and the 
Governors in an open, cooperative and transparent manner, CMS 
chose to circumvent the rules and go their own way.'' Id. 
(quoting Sen. Olympia Snowe (R-ME)).
    1016. Memorandum from Morton Rosenberg, Specialist in 
American Public Law, American Law Division, CRS, to Sen. John 
D. Rockefeller, IV (D-WV) (Jan. 10, 2008); Letter from Gary 
Kepplinger, General Counsel, U.S. Gov't Accountability Office, 
to Sen. John D. Rockefeller, IV (D-WV) (Apr. 17, 2008).
    1017. Teske, ``Health Care: Lawmakers Cite GAO, CRS 
Findings in Faulting CMS's 2007 Enrollment Directive,'' BNA, 
Inc. Daily Report for Executives, at A-17 (Apr. 21, 2008) 
(quoting CMS spokesman Jeff Nelligan).
    1018. See, e.g., Brito & de Rugy, Midnight Regulations and 
Regulatory Review (Mercatus Center Working Paper No. 08-34, 
2008), at 1. Rulemaking can take any number of forms. See 
generally Stephen G. Breyer et al., Administrative Law and 
Regulatory Policy 479-692 (6th ed. 2006). Most of the 
regulatory activity addressed here falls into the category of 
notice-and-comment rulemaking. This form of rulemaking is 
usually ``informal,'' which means that the agency need not 
conduct a trial-like evidentiary hearing. Formal rulemaking is 
seldom used, and only a few federal statutes require it. 
Notice-and-comment rulemaking, which is governed by section 
553(b)-(d) of the Administrative Procedure Act, 5 U.S.C. 
Sec. 553(b)-(d), begins with the publication of a proposed rule 
in the Federal Register. Subject to limited exceptions, the 
agency must give interested persons sufficient time to provide 
written comments on the rule. The agency must consider any 
comments it receives and then decide whether to withdraw the 
rule or promulgate a final rule. Any final rule must be 
published at least 30 days before its effective date. See id.
    1019. See, e.g., Brito & de Rugy, ``Midnight Regulations 
and Regulatory Review,'' Mercatus Center Working Paper No. 08-
34 (2008), at 3-6.
    1020. See, e.g., id. at 7; Morris et al., ``Between a Rock 
and a Hard Place: Politics, Midnight Regulations and Mining,'' 
55 Admin. L. Rev. 557 (2003).
    1021. See Beermann, ``Presidential Power in Transition,'' 
83 B.U. L. Rev. 947, 957-58 (2002).
    1022. See, e.g., Dudley, ``Reversing Midnight 
Regulations,'' Regulation, Spring 2001, at 9.
    1023. See Loring & Roth, ``After Midnight: The Durability 
of the ``Midnight'' Regulations Passed by the Two Previous 
Administrations,'' 40 Wake Forest L. Rev. 1441, 1456 (2005).
    1024. See, e.g., Howell & Mayer, ``The Last One Hundred 
Days,'' 35 Presidential Stud. Q. 533, 544 (2005); Brito & de 
Rugy, ``Midnight Regulations and Regulatory Review,'' Mercatus 
Center Working Paper No. 08-34 (2008), at 2.
    1025. ``Memorandum for the Heads of Executive Departments 
and Agencies, The Administrator of the Office of Information 
and Regulatory Affairs, From Joshua Bolten, Chief of Staff, 
Subject: Issuance of Agency Regulations at the End of the 
Administration,'' May 9, 2008, available on The New York Times 
web site at http://graphics8.nytimes.com/packages/pdf/
washington/COS%20Memo%205.9.08.pdf.
    1026. Interagency Cooperation Under the Endangered Species 
Act, 73 Fed. Reg. 47868 (proposed Aug. 15, 2008).
    1027. Ensuring that Department of Health and Human Services 
Funds Do Not Support Coercive or Discriminatory Policies or 
Practices in Violation of Federal Law, 73 Fed. Reg. 50274 
(proposed Aug. 26, 2008).
    1028. Requirements for DOL Agencies' Assessment of 
Occupational Health Risks, 73 Fed. Reg. 50908 (proposed Aug. 
29, 2008).
    1029. See, e.g., OMB Watch, Midnight Regulations at the 
White House: Bush Using Rules to Cement Legacy, Nov. 4, 2008, 
http://www.ombwatch.org.
    1030. See Memorandum from Andrew Card, White House Chief of 
Staff, to Heads and Acting Heads of Executive Departments and 
Agencies (Jan. 20, 2001), available at http://
www.whitehouse.gov/omb/inforeg/regreview_plan.pdf.
    1031. See, e.g., Reece Rushing, et al., OMB Watch, After 
Midnight: The Bush legacy of deregulation and what Obama can do 
3-5 (2009); Letter from Richard L. Revesz, Dean, New York 
University School of Law & Michael A. Livermore, Executive 
Director, Institute for the Study of Regulation, to Jim Nussle, 
Director, Office of Management and Budget (Sept. 5, 2008), 
available at http://www.defendingscience.org/upload/IPI-ltr-to-
OMB-OIRA.pdf; Kolbert, ``Midnight Hour,'' New Yorker, Nov. 24, 
2008; Editorial, ``So Little Time, So Much Damage,'' N.Y. 
Times, Nov. 3, 2008.
    1032. For a more comprehensive list, see, e.g., id.; see 
also Editorial, ``Undoing the Damage Done,'' N.Y. Times, Jan. 
25, 2009.
    1033. Excess Spoil, Coal Mine Waste, and Buffers for 
Perennial and Intermittent Streams, 73 Fed. Reg. 75814 (Dec. 5, 
2008).
    1034. CERCLA/EPCRA Administrative Reporting Exemption for 
Air Releases of Hazardous Substances from Animal Waste at 
Farms, 73 Fed. Reg. 76948 (Dec. 18, 2008).
    1035. Oil Shale Management, 73 Fed. Reg. 69414 (Nov. 8, 
2008).
    1036. General Regulations for Areas Administered by the 
National Park Service and the Fish and Wildlife Service, 73 
Fed. Reg. 74966 (Dec. 12, 2008).
    1037. Hours of Service of Drivers, 73 Fed. Reg. 69567 (Nov. 
19, 2008).
    1038. Medicaid Program: Clarification of Outpatient 
Hospital Facility (Including Outpatient Hospital Clinic) 
Services Definition, 73 Fed. Reg. 67934 (Nov. 17, 2008).
    1039. Ensuring Department of Health and Human Services 
Funds Do Not Support Coercive or Discriminatory Policies or 
Practices in Violation of Federal Law, 73 Fed. Reg. 78072 (Dec. 
19, 2008).
    1040. Labor Certification Process and Enforcement for 
Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers), and 
Other Technical Changes, 73 Fed. Reg. 78020 (Dec. 19, 2008); 
Temporary Agricultural Employment of H-2A Aliens in the United 
States; Modernizing the Labor Certification Process and 
Enforcement, 73 Fed. Reg. 77110 (Dec. 18, 2008).
    1041. The Family and Medical Leave Act of 1993, 73 Fed. 
Reg. 67934 (Nov. 17, 2008).
    1042. Henry, Patrick Henry: Life, Correspondence and 
Speeches, at 496 (1891).
    1043. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service) (footnotes omitted).
    1044. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008). Other witnesses at the hearing included: Susan E. 
Dudley, Administrator, Office of Information and Regulatory 
Affairs, Office of Management and Budget; James L. Gattuso, 
Senior Fellow in Regulatory Policy Roe Institute for Economic 
Policy Studies at The Heritage Foundation; Professor Peter L. 
Strauss, Columbia University School of Law; and Dr. Rick 
Melberth, Director of Regulatory Policy, OMB Watch.
    1045. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (testimony of Curtis W. Copeland, Specialist in 
American National Government, Congressional Research Service).
    1046. Id.
    1047. Id.
    1048. U.S. General Accounting Office, Rulemaking: OMB's 
Role in Review of Agencies' Draft Rules and the Transparency of 
Those Reviews, GAO-03-929, Sept. 22, 2003.
    1049. American Bar Association, Achieving the Potential--
The Future of Federal E-Rulemaking, A Report to Congress and 
the President from the Committee on the Status and Future of 
Federal E-Rulemaking, at 3 (2008).
    1050. Id. at 3.
    1051. Id. at 4.
    1052. Oversight Plan for the 109th Congress, Committee on 
the Judiciary, at 5 (Jan. 26, 2005) available at http://
judiciary.house.gov/media/pdfs/printers/109th/
109th%20Oversight%20Plan.pdf.
    1053. House Judiciary Committee Oversight Plan 110th 
Congress, available at http://www.judiciary.house.gov/media/
pdfs/110-Oversight.pdf
    1054. Administrative Law, Process, and Procedure Project 
for the 21st Century: Interim Report, Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, Comm. 
Print No. 10, 109th Cong. (2006). The report made 
recommendations for legislative proposals and suggested areas 
for further research and analysis to be considered by ACUS was 
issued in December 2006. The report addressed the: (1) agency 
adjudicatory process; (2) public participation in the 
rulemaking process; (3) the role of science in the regulatory 
process; (4) the utility of regulatory analysis and 
accountability requirements; and (5) congressional, 
presidential and judicial review of agency rulemaking.
    1055. With respect to symposia, the Committee's 
Subcommittee on Commercial and Administrative sponsored three. 
On December 5, 2005, the Subcommittee convened a symposium on 
e-rulemaking. Representatives from the Legislative and 
Executive Branches as well as from academia and the private 
sector discussed whether e-rulemaking improves the regulatory 
process and encourages public participation. It also examined 
how advances in information technology may impact 
administrative rulemaking. On May 9, 2006, the Subcommittee 
sponsored a symposium that focused on the role that science 
plays in the rulemaking process. This program, which was held 
at American University, involved representatives from the 
public and private sectors who debated what the appropriate 
role of science should be. The third symposium, held on 
September 11, 2006, considered congressional, presidential and 
judiciary review of agency rulemaking. This program, hosted by 
CRS, also examined conflicting claims of legal authority over 
rulemaking by the Legislative and Executive Branches.
    1056. The studies addressed the development of proposed 
rules before they are published, judicial review of rulemaking, 
and the role of advisory committees.
    1057. Reauthorization of the Administrative Conference of 
the United States: Hearing Before the Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2007) (testimony of Morton Rosenberg, Specialist in 
American Public Law, Congressional Research Service).
    1058. Reauthorization of the Administrative Conference of 
the United States: Hearing Before the Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2007) (testimony of Morton Rosenberg, Specialist in 
American Public Law, Congressional Research Service).
    1059. Administrative Conference Act of 1964, Pub. L. No. 
88-499, 5 U.S.C.A. Sec. Sec. 591-96 (2002). Temporary 
conferences were established in 1953 by President Eisenhower, 
Memorandum Convening the President's Commission on 
Administrative Procedure, Pub. Papers 219-22 (Apr. 28, 1953), 
and in 1961 by President Kennedy. Exec. Order No. 10,934, 26 
Fed. Reg. 3233 (Apr. 13, 1961).
    The Conference's jurisdiction over administrative procedure 
was intentionally broad. It was authorized to study ``the 
efficiency, adequacy, and fairness of the administrative 
procedure used by administrative agencies in carrying out 
administrative programs, and make recommendations to 
administrative agencies, collectively or individually, and to 
the president, Congress, or the Judicial Conference of the 
United States[.]'' In addition, it facilitated the interchange 
among administrative agencies of information potentially useful 
in improving administrative procedure. The Conference also 
collected information and statistics from administrative 
agencies and published reports evaluating and improving 
administrative procedure. 5 U.S.C. Sec. 594 (2008).
    1060. Section 592 of title 5, for example, provided that 
the term ``administrative procedure,'' was ``to be broadly 
construed to include any aspect of agency organization, 
procedure, or management which may affect the equitable 
consideration of public and private interests, the fairness of 
agency decisions, the speed of agency action, and the 
relationship of operating methods to later judicial review . . 
. .'' 5 U.S.C. Sec. 592(3) (2008).
    1061. Reauthorization of the Administrative Conference of 
the United States Before the Subcomm. on Commercial and 
Administrative Law of the House Comm. on the Judiciary, 104th 
Cong. 31 (1996) (statement of C. Boyden Gray).
    1062. Over time, Congress assigned ACUS various 
responsibilities. For example, agencies seeking to implement 
the Government in the Sunshine Act, 5 U.S.C. Sec. 552b(g) 
(2008), and the Equal Access to Justice Act, 5 U.S.C. 
Sec. 504(c)(1) (2008), were required to consult with ACUS 
before promulgating rules to ensure uniformity. ACUS served as 
the key implementing agency for the Administrative Dispute 
Resolution Act, 5 U.S.C. Sec. Sec. 571-583 (2008), the 
Negotiated Rulemaking Act, 5 U.S.C. Sec. Sec. 561-570 (2008), 
the Equal Access to Justice Act, 5 U.S.C. Sec. 504(c)(1), (e) 
(2008), the Congressional Accountability Act, Pub. L. No. 104-
1, Sec. 230, 109 Stat. 3 (1995), and the Magnusson-Moss 
Warranty-Federal Trade Commission Improvement Act, Pub. L. No. 
93-637, Sec. 202(d), 88 Stat. 2183, 2198 (1974). ACUS also 
played a key role in the Clinton Administration's National 
Performance Review with respect to improving regulatory 
systems. See, e.g., Letter from Elaine Kamarck, Senior Policy 
Advisor to the Vice President, to Rep. Steny H. Hoyer, Chair, 
Subcomm. on Treasury, Post Service, and General Government of 
the House Appropriations Comm. (Mar. 7, 1994) (citing the 
Conference's ``valuable assistance'' to the National 
Performance Review). Further, ACUS served as a resource for 
Members of Congress, Congressional Committees, the Internal 
Revenue Service, Department of Transportation, and the Federal 
Trade Commission, See Breger, ``The Administrative Conference 
of the United States: A Quarter Century Perspective,'' 53 U. 
Pitt. L. Rev. 835-37, 847 (1992); Toni Fine, ``A Legislative 
Analysis of the Demise of the Administrative Conference of the 
United States,'' 30 Arizona St. L. J. 19, at 46 (1998). Even 
after its demise in 1995, Congress continued to assign ACUS 
various responsibilities apparently unaware of the Conference's 
termination. See, e.g., S. 1370, 107th Cong., Sec. 12(b) (2001) 
(requiring the Attorney General and the Secretary of Health and 
Human Services to consult with the Conference with respect to 
developing guidelines for alternative dispute resolution 
mechanisms); S. 1613, 105th Cong., Sec. 1(g) (1998) (requiring 
the Conference to report to Congress on the frequency of fee 
awards paid by certain federal agencies); S. 886, 105th Cong., 
Sec. 111 (1997) (requiring the Attorney General and the 
Secretary of Health and Human Services to consult with the 
Conference with respect to developing guidelines for 
alternative dispute resolution mechanisms).
    1063. H.R. Rep. No. 104-291, at 6 (1995).
    1064. Pub. L. No. 110-290 (2008).
    1065. See Pub. L. No. 109-148, Title X, Sec. 1003 (2005).
    1066. See President's Statement on Signing of H.R. 2863, 41 
WCPD 1918 (Jan. 2, 2006).
    1067. See Savage, ``Bush Challenges Hundreds of Laws,'' 
Boston Globe, Apr. 30, 2006, at A1; Presidential Signing 
Statements under the Bush Administration: A Threat to Checks 
and Balances and the Rule of Law?: Hearing Before the H. Comm. 
on the Judiciary, 110th Cong. (2007) (Testimony of Prof. 
Charles J. Ogletree, Jr.).
    1068. See Savage, ``Bush Challenges Hundreds of Laws,'' 
Boston Globe, Apr. 30, 2006, at A1.
    1069. See Energy Policy Act of 2005, Pub. L. No. 109-58 
(2005).
    1070. See President's Statement on Energy Policy Act of 
2005, 41 WCPD 1267 (Aug. 15, 2005); Savage, ``Bush Challenges 
Hundreds of Laws'', Boston Globe, Apr. 30, 2006, at A1.
    1071. See Pub. L. No. 108-458, Sec. 1011(a), Sec. 
102A(f)(1)(B)(3)(A)(iv), at 118 Stat. 3649 (2004).
    1072. See Statement on Signing the Intelligence Reform and 
Terrorism Prevention Act of 2004, 40 WCPD 2993 (Dec. 27, 2004); 
Savage, ``Bush Challenges Hundreds of Laws,'' Boston Globe, 
Apr. 30, 2006, at A1.
    1073. See GAO Informal Opinion B-308603, at 24 (June 18, 
2007). The GAO noted that the Defense Department did submit the 
required data for operations in the Balkans and Guantanamo Bay 
but failed to do so with respect to operations in Iraq.
    1074. See GAO Informal Opinion B-309928, at 12-13 (Dec. 20, 
2007). The GAO concluded that the NRC implemented its 
obligations under the law approximately two years late.
    1075. See Halstead, ``Presidential Signing Statements: 
Constitutional and Institutional Implications,'' CRS Report for 
Congress, RL33667, at 9-11 (2006).
    1076. See Clinton v. New York, 524 U.S. 417 (1998) 
(invalidating line-item veto under Article I, section 7); 
Philip J. Cooper, George W. Bush, Edgar Allen Poe, and the Use 
and Abuse of Presidential Signing Statements, 35 Presidential 
Studies Quarterly 515, 518 (2005).
    1077. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service) (footnotes omitted).
    1078. Specific concerns about the Order are its 
requirements that agencies:

          1. identify a specific ``market failure'' before 
        initiating a rule. Doing so bypasses Congress by 
        establishing standards for regulatory initiation that 
        are not consistent with statutory requirements, and 
        deters congressionally intended regulatory actions;
          2. provide OIRA with advance notification of 
        significant guidance documents. Doing so represents a 
        major expansion of the office's (and therefore the 
        president's) influence, particularly when coupled with 
        the ability of OIRA to determine which guidance 
        documents are ``significant'' and the ability of OIRA 
        to conclude that ``additional consultation will be 
        required'' before a document is issued; and
          3. designate a presidential appointee to be a 
        regulatory policy officer who must approve every 
        proposed regulation before an agency may commence the 
        rulemaking process and before such regulation may be 
        included in the agency's regulatory plan. 
        Representative Henry A. Waxman (D-CA), Chair of the 
        Committee on Oversight and Government Reform, observed, 
        ``The executive order allows the political staff at the 
        White House to dictate decisions on health and safety 
        issues, even if the government's own impartial experts 
        disagree. This is a terrible way to govern, but great 
        news for special interests.'' Pear, ``Bush Directive 
        Increases Sway on Regulation,'' N.Y. Times, Jan. 30, 
        2007, at A1. These appointees are problematic because 
        they are accountable only to the Administration, yet 
        they can effectively substitute their political 
        judgment for agency decision-making. Also, very little 
        is known about how these appointees operate, how often 
        they override proposed rules, and the extent to which 
        they substitute their political judgment for the 
        substantive expertise of the agencies.

    1079. Examples include the following:

     the development of a detailed economic analysis 
circular and what agency officials described as a perceptible 
``stepping up the bar'' in the amount of support required from 
agencies for their rules, with OIRA reportedly more often 
looking for regulatory benefits to be quantified and a cost-
benefit analysis for every regulatory option that the agency 
considered, not just the option selected;
     the issuance of 21 letters returning rules to the 
agencies between July 2001 and March 2002--three times the 
number of return letters issued during the last six years of 
the Clinton Administration. However, OIRA returned only two 
rules in 2003, one rule in 2004, one rule in 2005, no rules in 
2006, and one rule in 2007. OIRA officials indicated that the 
pace of return letters declined after 2002 because agencies had 
gotten the message about the seriousness of OIRA reviews;
     the issuance of 13 ``prompt letters'' between 
September 2001 and December 2003 suggesting that agencies 
develop regulations in a particular area or encouraging ongoing 
efforts. However, OIRA issued two prompt letters in 2004, none 
in 2005, one in 2006, and none in 2007.;
     the increased use of ``informal'' OIRA reviews in 
which agencies share preliminary drafts of rules and analyses 
before final decisionmaking at the agencies--a period when OIRA 
says it can have its greatest impact on the rules, but when 
OIRA says that some of the transparency requirements in 
Executive Order 12866 do not apply;
     extensions of OIRA review for certain rules for 
months or years beyond the 90-day time limit delineated in the 
executive order;
     using a general statutory requirement that OIRA 
provide Congress with ``recommendations for reform'' to request 
the public to identify rules that it believes should be 
eliminated or reformed;
     a leadership role for OIRA in the development of 
electronic rulemaking, which has led to the development of a 
centralized rulemaking docket, but which some observers believe 
can lead to increased presidential influence over the agencies;
     the development of an OMB bulletin on peer review 
that, in its original form, some believed could have led to a 
centralized system within OMB that could be vulnerable to 
political manipulation or control;
     the development of a proposed bulletin 
standardizing agency risk assessment procedures that the 
National Academy of Sciences concluded was ``fundamentally 
flawed,'' and that OIRA later withdrew; and
     the development of a ``good guidance practices'' 
bulletin that standardizes certain agency guidance practices.

The Rulemaking Process and the Unitary Executive Theory: 
Hearing Before the Subcomm. on Commercial and Administrative 
Law of the H. Comm. on the Judiciary, 110th Cong. (2008) 
(prepared statement of Curtis W. Copeland, Specialist in 
American National Government, Congressional Research Service) 
(footnotes omitted).
    1080. Skrzycki, ``It's Not a Backroom Deal If the Call Is 
Made in the Oval Office,'' Wash. Post, Apr. 8, 2008, at D2; 
Eilperin, ``Ozone Rules Weakened at Bush's Behest,'' Wash. 
Post, Mar. 14, 2008, at A1.
    1081. More than four years ago, the National Oceanic and 
Atmospheric Administration initiated a rulemaking to protect 
the North American right whale from ship collisions. Advanced 
Notice of Proposed Rulemaking for Right Whale Ship Strike 
Reduction, 69 Fed. Reg. 30,857 (June 1, 2004). After an 
exhaustive rulemaking process, a final rule was submitted to 
OMB on February 20, 2007 for review. More than 18 months later, 
the rule was still under review. General Serv. Admin., 
RegInfo.gov, at http://www.reginfo.gov/public/do/
eAgendaViewRule?ruleID=273113 (last visited Aug. 12, 2008). 
This delay is due to objections raised by White House 
officials, including officials in the Office of the Vice 
President. See Letter from Henry Waxman, Chairman, H. Comm. on 
Oversight and Gov't Reform, to Susan Dudley, Administrator, 
Office of Regulatory and Information Admin. (Apr. 30, 2008); 
Hebert, ``Delay in Ruling on Endangered Right Whales 
Criticized,'' Wash. Post, Apr. 30, 2008; Nat'l Oceanic and 
Atmospheric Admin. Fisheries Serv., Ship Strike Rulemaking 
(Oct. 2007). Critics of this delay, such as Rep. Henry Waxman, 
claim that the Administration is raising `` `baseless 
objections' to findings by government scientists who for years 
had been studying the dangers posed to the whale by commercial 
shipping.'' Hebert, ``Delay in Ruling on Endangered Right 
Whales Criticized,'' Wash. Post, Apr. 30, 2008.
    1082. Press Release, U.S. Senator Jay Rockefeller (D-WV) & 
U.S. Senator Olympia Snowe (R-ME), With Law on Their Side, 
Senators Call on Bush Administration To Voluntarily Rescind 
August 17 Chip Directive (Apr. 18, 2008), at http://
rockefeller.senate.gov/press/record.cfm?id=296411.
    1083. Smith, ``A Last Push to Deregulate; White House to 
Ease Many Rules,'' Wash Post, Oct. 31, 2008, at A1
    1084. See, e.g., Froomkin, ``Approaching the Midnight 
Hour,'' Wash. Post, Nov. 20, 2008; OMB Watch, ``Midnight at the 
White House: Bush Using Rules to Cement Legacy'' (Nov. 4, 
2008), 
http://www.ombwatch.org/article/articleview/4400/1; Letter from 
Richard L. Revesz, Dean, New York University School of Law, & 
Michael A. Livermore, Executive Director, Institute for the 
Study of Regulation, to Jim Nussle, Director, Office of 
Management and Budget (Sept. 5, 2008).
    1085. See Froomkin, ``Approaching the Midnight Hour,'' 
Wash. Post, Nov. 20, 2008.
    1086. OMB Watch, ``Midnight at the White House: Bush Using 
Rules to Cement Legacy'' (Nov. 4, 2008), http://
www.ombwatch.org/article/articleview/4400/1.
    1087. For example:

    1. OIRA increasingly requires agencies to submit rules for 
``l'' review before the agency heads have formally approved the 
rules, and OIRA has said it has its greatest influence on the 
rules during this period. However, OIRA has also said that the 
requirement in Executive Order 12866 that agencies disclose the 
changes made at the suggestion or recommendation of OIRA does 
not include informal reviews;
    2. OIRA discloses its meetings with outside parties, but 
those disclosures often do not clearly indicate what rules were 
discussed or who those parties represent;
    3. OIRA does not disclose how many ``significant'' guidance 
documents it has reviewed since the issuance of Executive Order 
13422, or what changes were made to those documents as a result 
of those reviews; and
    4. agency regulatory policy officers do not disclose how 
many rules they changed or completely prevented from being 
published in the Federal Register.

The Rulemaking Process and the Unitary Executive Theory: 
Hearing Before the Subcomm. on Commercial and Administrative 
Law of the H. Comm. on the Judiciary, 110th Cong. (2008) 
(prepared statement of Curtis W. Copeland, Specialist in 
American National Government, Congressional Research Service) 
(footnotes omitted).
    1088. See, e.g., The Rulemaking Process and the Unitary 
Executive Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (prepared statement of Curtis W. Copeland, 
Specialist in American National Government, Congressional 
Research Service) (noting that it is currently unclear whether 
agency regulatory policy officers ``have stopped any agency 
regulatory initiatives before they became draft rules, or, if 
so, whether there has there [sic] been an increase in such 
stoppages'' since their authority was enhanced under Executive 
Order 13422).
    1089. Reauthorization of the Administrative Conference of 
the United States: Hearing Before the Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong. (testimony of Morton Rosenberg, Specialist in American 
Public Law, Congressional Research Service).
    1090. Transcript of Record (Feb. 20, 2007), United States 
v. Libby, C.R. No. 05-394 (D.D.C.) (hereinafter Libby).
    1091. Kristoff, ``Missing in Action: Truth,'' N.Y. Times, 
May 6, 2003; see also Pincus, ``CIA Did Not Share Doubt on Iraq 
Date; Bush Used Report of Uranium Bid,'' Wash. Post, June 12, 
2003, at A-1.
    1092. Id.
    1093. Pincus, ``CIA Did Not Share Doubt on Iraq Date; Bush 
Used Report of Uranium Bid,'' Wash. Post, June 12, 2003, at A-
1.
    1094. Ackerman & Judis, ``The First Casualty: The Selling 
of the Iraq War,'' New Republic, June 19, 2003.
    1095. Id.
    1096. Wilson, ``What I Didn't Find in Africa,'' N.Y. Times, 
July 6, 2003. The op-ed attracted considerable media attention. 
See, e.g., Leiby & Pincus, ``Retired Envoy: Nuclear Reports 
Ignored; Bush Cited Alleged Iraq Purchases,'' Wash. Post, July 
6, 2003.
    1097. See Transcript, NBC Nightly News, July 8, 2003, 
appears as Gov't Ex. 1A, Libby.
    1098. See Wilson, ``What I Didn't Find in Africa,'' N.Y. 
Times, July 6, 2003.
    1099. See, e.g., Leiby and Pincus, ``Retired Envoy: Nuclear 
Report Ignored; Bush Cited Alleged Iraqi Purchases,'' Wash. 
Post, July 6, 2003.
    1100. See Novak, ``Mission to Niger,'' Chicago Sun-Times, 
July 14, 2003, at 3. See generally Phelps & Royce, ``Columnist 
Blows CIA Agent's Cover,'' Newsday, July 22, 2003.
    1101. See, e.g., Cooper, Calabresi, & Dickerson, ``A War on 
Wilson?,'' Time, July 17, 2003.
    1102. See, e.g., Transcript, CNN, Wolf Blitzer Reports, 
July 14, 2005, http://www.transcripts.cnn.com/transcripts/0507/
14/wbr.01.html.
    1103. Exec. Order No. 12,958, 68 Fed. Reg. 19,829 (Apr. 17, 
1995).
    1104. See, e.g., Disclosure of CIA Agent Valerie Plame 
Wilson's Identity and White House Procedures for Safeguarding 
Classified Information, Hearing Before the H. Comm. On 
Oversight and Gov't Reform, 110th Cong. (2007) (hereinafter 
Disclosure Hearing, Before H. Comm. On Oversight and Gov't 
Reform), Preliminary Transcript at 4-5, available at http://
oversight.house.gov/documents/20071114150609.pdf (statement of 
Henry A. Waxman, Chairman, H. Comm. on Oversight and Gov't 
Reform); see also id. at 15 (statement of Valerie Plame Wilson) 
(``In the run-up to the war with Iraq, I worked in the 
Counterproliferation Division of the CIA, still as a covert 
officer whose affiliation with the CIA was classified. . . . 
While I helped to manage and run secret worldwide operation 
against this WMD target from CIA headquarters in Washington, I 
also traveled to foreign countries on secret missions to find 
vital intelligence.''); id. at 20 (statement of Valerie Plame 
Wilson) (testifying that on the day Mr. Novak's column 
appeared, she was a ``covert officer''); id. at 34-35, 38 
(statement of Valerie Plame Wilson) (testifying as to covert 
and classified status). The above-cited statement of Chairman 
Waxman was reviewed and approved by CIA Director Michael V. 
Hayden. See Disclosure Hearing, Before H. Comm. On Oversight 
and Gov't Reform at 4. Special counsel Patrick Fitzgerald, 
appointed by the Justice Department to investigate the leak of 
Ms. Wilson's identity, has confirmed that Ms. Wilson was a 
covert agent whose status was classified. See, e.g., Indictment 
at 3, Libby; Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), http://
washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340; Statement, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice, White House Official I. Lewis 
Libby Indicated on Obstruction of Justice False Statement and 
Perjury Charges Related to Leak of Classified Information 
Revealing CIA Officer's Identity (Oct. 28, 2005), http://
www.usdoj/usao/iln/os; Gov't Sentencing Mem. at 12, Libby. 
Journalistic accounts establish, based on interviews with 
confidential CIA sources, that Ms. Wilson was what is known as 
a ```non-official cover officer (NOC).' NOC's are the most 
clandestine of the CIA's frontline officers.'' Corn, ``What 
Valerie Plame Really Did at the CIA,'' The Nation, Sept. 6, 
2006; see also Corn and Isikoff, Hubris: The Inside Story of 
Spin, Scandal, and the Selling of the Iraq War (2006); Pincus & 
Allen, ``Leak of Agent's Name Causes Exposure of CIA Front 
Firm,'' Wash. Post, Oct. 4, 2003, at A-3. This distinguishes 
them from ``official cover'' operatives who pretend to work for 
another government agency. See, e.g., Corn, ``What Valerie 
Plame Really Did at the CIA,'' Nation, Sept. 6, 2006. In Ms. 
Wilson's case, she pretended to work for an energy consulting 
firm (Brewster Jennings & Associates). Her actual job was 
overseeing the operations of the CIA's Joint Task Force an 
Iraq--part of the Counterproliferation Division of the CIA's 
Directorate of Operations. The Joint Task Force's mission was 
to find evidence to back the Bush Administration's claim that 
Iraq had or sought to acquire weapons of mass destruction. See, 
e.g., id. Her ``main mission'' with the Joint Task Force was to 
``gather agents for the CIA.'' Id.
    1105. See Disclosure Hearing, Before H. Comm. On Oversight 
and Gov't Reform at 17 (statement of Valerie Plame Wilson); id. 
at 4-5 (statement of Henry A. Waxamn).
    1106. See, e.g., id. at 6-7; Transcript of Record (Jan. 24, 
2007), Libby (statement of Craig Schmall, Mr. Libby's regular 
daily intelligence briefer); Indictment at 2, Libby.
    1107. See Disclosure Hearing, Before H. Comm. On Oversight 
and Gov't Reform at 22 (statement of Valerie Plame Wilson).
    1108. Letter from Stanley M. Moskowitz, Director, 
Congressional Affairs, CIA, to John Conyers, Jr., Ranking 
Member, H. Comm. on the Judiciary (Jan. 30, 2004).
    1109. On the background of the investigation, see, e.g., 
United States v. Libby, 429 F.Supp. 2d 27, 28 (D.D.C.).
    1110. Editorial, ``Investigating Leaks,'' N.Y. Times, Oct. 
2, 2003, at A30.
    1111. See, e.g., White House Press Secretary Scott 
McClellan, Press Briefing (Oct. 7, 2003), available at http://
www.whitehouse.gov/news/releases/2003/10/20031007-4.html#2; 
Stevenson & Eric Lichtblau, ``Leaker May Remain Elusive, Bush 
Suggests,'' N.Y. Times, Oct. 8, 2003, at A28.
    1112. On October 21, 2003, the Assistant Attorney General 
for the Criminal Division, Christopher Wray, informed the 
Senate Committee on the Judiciary that he was keeping Attorney 
General Ashcroft up-to-date on the investigation. See, e.g., 
Waas, ``What Now, Karl? Rove and Ashcroft Face new Allegations 
in the Valerie Plame Affair,'' Village Voice, Aug. 13, 2005; 
Waas, ``Ashcroft's Interest,'' American Prospect, July 8, 2004, 
available at http://www.prospect.org/cs/
articles?article=ashcrofts_interest.
    1113. Michael Duffy, ``Leaking With a Vengeance,'' Time, 
Oct. 13, 2003, at 28.
    1114. Press Statement, U.S. Dept. of Justice, Deputy Att'y 
Gen. James Comey, Appointment of Special Prosecutor to Oversee 
Investigation Into Alleged Leak of CIA Agent Identity and 
Recusal of Attorney General Ashchroft from the Investigation 
(Dec. 30, 2003); see also, e.g., United States v. Libby, 498 
F.Supp. 2d 1, 6-8 (D.D.C. 2007); United States v. Libby, 429 
F.Supp. 2d 27, 28 (D.D.C. 2006) (same). The manner in which the 
Department appointed Fitrzgerald, however, led Fitzgerald to 
believe he was not granted the authority to issue a report at 
the conclusion of his investigation. See Letter from Patrick 
Fitzgerald, Special Counsel, U.S. Dept. of Justice, to John 
Conyers, Jr., Chairman, H. Comm. on the Judiciary, et al. (Oct. 
28, 2005). If the Department instead had used their express 
regulatory authority to appoint Mr. Fitzgerald as special 
prosecutor, such a report would have been required. See 28 
C.F.R. Sec. 600.8-.9.
    1115. See, e.g., Leonnig & VandeHei, ``Libby May Have Tried 
to Mask Cheney's Role,'' Wash. Post, Nov. 13, 2005, at A6.
    1116. Much of the focus centered on Scooter Libby's refusal 
to sign a waiver. See In re: Special Counsel Investigation, 374 
F.Supp. 2d 238 (D.D.C. 2005). In an effort to prompt Mr. Libby 
to cooperate, Chairman Conyers and other Members of Congress 
wrote to Mr. Libby seeking his personal waiver for Ms. Miller. 
See Letter from John Conyers, Jr., Ranking Member, H. Comm. on 
the Judiciary, et al., to I. Lewis Libby, Chief of Staff, 
Office of the Vice President (Aug. 8, 2005) (``Your failure to 
grant such a waiver to Ms. Miller has apparently lead her to 
refuse to testify about her conversation(s) with you and, in 
turn, led to her recent incarceration for civil contempt for 
days.''). While Mr. Libby claimed to have provided Ms. Miller 
with a personal waiver, Ms. Miller denied that he had done so. 
See Letter from I. Lewis Libby, Chief of Staff, Office of the 
Vice President, to Judith Miller, The New York Times (Sept. 15, 
2005); see also Miller, ``Judith Miller's Farewell,'' The New 
York Times, Nov. 10, 2005 (letter to the editor) (``After 85 
days, more than twice as long as any other American journalist 
has ever spent in jail for this cause, I agreed to testify 
before the special prosecutor Patrick J. Fitzgerald's grand 
jury about my conversations with my source, I. Lewis Libby Jr. 
I did so only after my two conditions were met: first, that Mr. 
Libby voluntarily relieve me in writing and by phone of my 
promise to protect our conversations; and second, that the 
special prosecutor limit his questions only to those germane to 
the Valerie Plame Wilson case. Contrary to inaccurate reports, 
these two agreements could not have been reached before I went 
to jail.''). On September 12, 2005, Mr. Fitzgerald stated that 
he would welcome such a communication reaffirming Mr. Libby's 
waiver. See Letter from Patrick Fitzgerald, Special Counsel, 
Dept. of Justice, to Joseph A. Tate, Dechert LLP (Sept. 12, 
2005).
    1117. Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), available at 
http://washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340. It has not gone unnoticed that the 
administration effectively delayed any indictment until after 
President Bush was reelected. See, e.g., Dionne, ``What the 
`Shield' Covered Up,'' Wash. Post, Nov. 1, 2005, at A25 (``Has 
anyone noticed that the coverup worked? . . . Note the 
significance of the two dates: October 2004, before President 
Bush was reelected, and October 2005, after the president was 
reelected. Those dates make clear why Libby threw sand in the 
eyes of prosecutors, in the special counsel's apt metaphor, and 
helped drag out the investigation. . . . As long as he was 
claiming that journalists were responsible for spreading around 
the name and past CIA employment of Wilson's wife, Valerie 
Plame, Libby knew that at least some news organizations would 
resist having reporters testify. The journalistic `shield' was 
converted into a shield for the Bush administration's 
coverup.'').
    1118. See Press Briefing, White House Press Secretary Scott 
McClellan (Sept. 29, 2003), available at http://
www.whitehouse.gov/news/releases/2003/09/print/20030929-7.html.
    1119. Revelations by Former White House Press Secretary 
Scott McClellan: Hearings Before the H. Comm. on the Judiciary, 
110th Cong. (2007) (statement of Scott McClellan).
    1120. Press Briefing, White House Press Secretary Scott 
McClellan (Oct. 7, 2003), available at http://
www.whitehouse.gov/news/releases/2003/10/20031007-4.html#2.
    1121. NBC, The Today Show (May 28, 2008).
    1122. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (statement of Scott McClellan).
    1123. Press Briefing, White House Press Secretary Scott 
McClellan (Oct. 7, 2003), available at http://
www.whitehouse.gov/news/releases/2003/10/20031007-4.html#2; see 
also Press Briefing, White House Press Secretary Scott 
McClellan (Sept. 29, 2003), available at http://
www.whitehouse.gov/news/releases/2003/09/print/20030929-7.html. 
(``If anyone in this administration was involved . . . [in the 
leak], they would no longer be in this administration.'') 
(stating that anyone within the White House found to have 
leaked classified information would, ``[a]t a minimum. . .lose 
their job'').
    1124. Press Briefing, White House Press Secretary Scott 
McClellan (Oct. 10, 2003), available at http://
www.whitehouse.gov/news/releases/2003/102003/1010-6.html.
    1125. ABC News, The Note (Sept. 29, 2003), available at 
http://www.abcnews.go.com/sections/politics/TheNote/TheNote--
Sep29.html.
    1126. Press Conference, George W. Bush (Oct. 28, 2003), 
available at http://www.whitehouse.gov/news/releases/2003/10/
20031028-2.html.
    1127. Compare President Bush's statement, just before the 
2000 presidential election, about the need for integrity in the 
White House: ``Americans are tired of investigations and 
scandal, and the best way to get rid of them is to elect a new 
president who will bring a new administration, who will restore 
honor and dignity to the White House.'' CNN Today, Sept. 14, 
2000.
    1128. Press Conference, President George W. Bush (July 18, 
2005), available at http://www.whitehouse.gov/news/releases/
2005/7/20050718-1.html.
    1129. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (statement of Scott McClellan).
    1130. See Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), available at 
http://washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340; see also Statement, Patrick Fitzgerald, 
Special Counsel, U.S. Dept. of Justice, White House Official I. 
Lewis Libby Indicted on Obstruction of Justice, False 
Statement, and Perjury Charges Relating to Leak of Classified 
Information Revealing CIA Officer's Identity (Oct. 28, 2005), 
available at http://www.usdoj.gov/usao/iln/osc.
    1131. See, e.g., United States v. Libby, 429 F. Supp. 2d 1, 
4 (D.D.C. 2006). The indictment included five felony counts. 
The ``over-arching obstruction of justice'' count was the 
principle one. Statement, Patrick Fitzgerald, Special Counsel, 
U.S. Dept. of Justice, White House Official I. Lewis Libby 
Indicated on Obstruction of Justice, False Statement, and 
Perjury Charges Relating to Leak of Classified Information 
Revealing CIA Officer's Identity, available at http://
www.usdoj.gov/usao/iln/osc.
    1132. See, e.g., Lewis, ``Libby Guilty of Lying in C.I.A. 
Leak Case,'' N.Y. Times, Mar. 6, 2007.
    1133. For a reliable summary of many of the key facts 
narrated below, see Transcript of Record (Feb. 20, 2007), Libby 
(government's closing argument). For a reliable journalist 
account of the facts, see, e.g., Corn & Isikoff, Hubris: The 
Inside Store of Spin, Scandal, and the Selling of the Iraq War 
(2006).
    1134. The key facts cited below are summarized in the 
closing statement of the prosecutor in the Libby trial, 
Transcript of Record (Feb. 27, 2003), Libby, and on a chart 
prepared by the House Committee on Gov't Oversight and Reform, 
Disclosure of Valerie Plame Wilson's Classified CIA Employment 
(Mar. 16, 2007), available at http://oversight.house.gov/
documents/20070316173308-19288.pdf.
    1135. Transcript of Record (Jan. 23, 2007), Libby 
(testimony of Marc Grossman).
    1136. See, e.g., Gov't Ex. 1 (Libby grand jury testimony, 
Mar. 5, 2004, at 29-34, 57-58, 67-68), Libby; Gov't Ex. 2 
(Libby grand jury testimony, Mar. 24, 2004, at 27-28), Libby; 
Gov't Ex.104, Libby.
    1137. Disclosure Hearing, Before H. Comm. On Oversight and 
Gov't Reform at 25 (statement of Rep. Hodes).
    1138. See, e.g., Waas, ``Exclusive: Cheney's Admissions to 
the CIA Leak Prosecutor and FBI,'' Crooks and Liars, Dec. 23, 
2008, available at http://www/murraywass.crooksandliars.com/
2008/12/23/exclusive-cheneys-admissions-to-the-cia-leak-
prosecutors-and-fbi; Transcript of Record (Feb. 20, 2007), 
Libby (government's closing argument) Hamburger & Wallsten, 
``Cheney Said to Have Told Aide of Plame,'' L.A. Times, Oct. 
25, 2003, at A13; see also Transcript of Record (Jan. 24, 
2007), Libby (testimony of Robert Grenier) (suggestion by 
defense counsel that Mr. Grenier or another CIA employee was 
asked to look into circumstances of Ambassador Wilson's trip, 
perhaps by Vice President Cheney, before Mr. Libby and Mr. 
Grenier discussed the matter).
    1139. See, e.g., Gov't Ex. 1 (Libby grand jury testimony, 
Mar. 5, 2004, at 61-63, 156), Libby; Gov't Ex. 2 (Libby grand 
jury testimony, Mar. 24, 2004, at 172), Libby.
    1140. Transcript of Record (Feb. 20, 2007), Libby 
(government's closing argument).
    1141. Transcript of Record (Jan. 24, 2003), Libby 
(testimony of Robert Grenier).
    1142. Transcript of Record (Jan. 25, 2007), Libby 
(testimony of Robert Grenier); Transcript of Record (Jan. 25, 
2007), Libby (testimony of Cathie Martin); Defendant's Ex. 104, 
Libby.
    1143. Transcript of Record (Jan. 23, 2007), Libby, 
(testimony of Marc Grossman). It has been widely reported that 
on June 12, 2003, the State Department sent Secretary Powell a 
classified memorandum written a month earlier identifying 
Wilson's wife as a CIA employee and saying it was believed she 
recommended Wilson for the Niger mission. Secretary Powell was 
traveling with Bush to Africa, and sources said the memorandum 
was widely circulated among officials with appropriate 
clearances aboard Air Force One. See Gellman, ``A Leak, Then a 
Deluge,'' Wash. Post, Oct. 30, 2005, at A-1.
    1144. See Transcript of Record (Jan. 24, 2007) (testimony 
of Craig Schmall).
    1145. See, e.g., Gov't Ex. 205, Libby.
    1146. Transcript of Record (Jan. 30, 2003), Libby 
(testimony of Judith Miller).
    1147. Transcript of Record (Feb. 20, 2003), Libby 
(government's closing argument); see also, e.g., Gov't Ex. 2 
(Libby grand jury testimony, Mar. 5, 2004, at 76, 78-80), 
Libby; Transcript of Record (Jan. 25, 2007), Libby (testimony 
of Cathie Martin). See generally Wallsten & Hamburger, ``Bush 
Critic Became Target of Libby, Former Aides Say,'' L.A. Times, 
Oct. 21, 2005.
    1148. Gov't Ex. 1 (Libby grand jury testimony, Mar. 5, 
2004, at 79-80, 82), Libby; see also Gov't Sentencing Mem. at 
10, Libby (``The evidence showed that Mr. Libby was aggravated 
about Ambassador Wilson and paid exceptionally close attention 
in June and July 2003 to media stories about Mr. Wilson. . . . 
Following Ambassador Wilson's Op Ed in the New York Times . . 
., Mr. Libby inserted himself even more in the press response 
to Mr. Wilson.'').
    1149. Gov't Ex. 402, Libby; see also Gov't Ex. 2 (Libby 
grand jury testimony, Mar. 24, 2004, at 87-91), Libby.
    1150. Gov't Ex. 403, Libby.
    1151. Transcript of Record (Jan. 29, 2007), Libby 
(testimony of Ari Fleischer); Transcript of Record (Feb. 20, 
2007), Libby (government's closing argument).
    1152. Press Conference, Ari Flesicher, White House Press 
Secretary (July 7, 2003), http://www.whitehouse.gov/news/
releases/2003/07/20030707-5.html; Gov't Ex. 540, Libby; 
Transcript of Record (Jan. 25, 2007), Libby (testimony of 
Cathie Martin).
    1153. Transcript of Record (Jan. 25, 2007), Libby 
(testimony of Cathie Martin).
    1154. Gov't Ex. 524, Libby.
    1155. Waas, ``Exclusive: Cheney's Admissions to the CIA 
Leak Prosecutor and FBI,'' Crooks and Liars, Dec. 23, 2008, 
available at http://www/murraywass.crooksandliars.com/2008/12/
23/exclusive-cheneys-admissions-to-the-cia-leak-prosecutors-
and-fbi.
    1156. Id.
    1157. See Transcript of Record (Jan. 29, 2007) (testimony 
of Ari Fleischer), Libby.
    1158. Id.
    1159. Transcript of Record (Feb. 12, 2007), Libby 
(testimony of Walter Pincus); see also Pincus, ``Anonymous 
Sources: Their Use in a Time of Prosecutorial Interest,'' 
Neiman Reports, Summer 2007, at 25.
    1160. Transcript of Record (Feb. 12, 2007), Libby 
(testimony of Walter Pincus); see also Pincus & Allen, ``Probe 
Focuses on Month Before Leak to Reporters,'' Wash. Post, Oct. 
12, 2003, at A-1.
    1161. See, e.g., Transcript of Record (Jan. 25, 2007), 
Libby (testimony of Cathie Martin).
    1162. A day or so before this meeting, Mr. Libby had 
conferred with the Vice President's counsel (and later Chief of 
Staff) about the President's authority to declassify 
information. During this conversation, Mr. Libby brought up the 
subject of Ambassador Wilson and his wife's role in arranging 
his trip to Niger. He asked, in particular, what paperwork 
would exist if a CIA employee arranged to send her spouse on an 
oversees trip. See, e.g., Transcript of Record (Jan. 29, 2007), 
Libby (testimony of David Addington).
    1163. See Gov't Ex. 1 (Libby grand jury testimony, Mar. 5, 
2004, at 114-20, 124-25, 140-42, 156; Mar. 23, 2004, at 29-37, 
40-56, 61-65), Libby; Gov't Ex. 528B, Libby; Gov't Ex. 207, 
Libby.
    1164. Transcript of Record (Jan. 30, 2007), Libby 
(testimony of Judith Miller).
    1165. Gov't Ex. 352, Libby.
    1166. Gov't Ex. 1 (Libby grand jury testimony, Mar. 5, 
2004, at 173-84), Libby; Gov't Ex. 528B, Libby; Transcript of 
Record (Jan. 25, 2007), Libby (testimony of Cathie Martin).
    1167. See Gov't Ex. 2 (Libby grand jury testimony, Mar. 24, 
2004, at 70), Libby; Gov't Sentencing Mem. at 12, Libby; see 
also Govt' Ex. 2 (Libby grand jury testimony, Mar. 24, 2004, at 
85, 169), Libby. See generally Waas, ``Exclusive: Cheney's 
Admissions to the CIA Leak Prosecutor and FBI,'' Crooks and 
Liars, Dec. 23, 2008, available at http://www/
murraywass.crooksandliars.com/2008/12/23/exclusive-cheneys-
admissions-to-the-cia-leak-prosecutors-and-fbi.
    1168. Transcript of Record (Jan. 31, 2007), Libby 
(testimony of Matt Cooper).
    1169. Gov't Ex. 1 (Libby grand jury testimony, Mar. 5, 
2004, at 187), Libby.
    1170. See, e.g., Disclosure Hearing, Before H. Comm. On 
Oversight and Gov't Reform at 25 (statement of Rep. Hodes).
    1171. Transcript of Record (Jan. 31, 2007) (testimony of 
Matt Cooper), Libby); see also Johnston & Stevenson, 
``Prosecutor Narrows Focus in Leak Case,'' N.Y. Times, Nov. 4, 
2005, at A-1.
    1172. According to the Libby indictment, ``On or about July 
10 or July 11, 2003, Libby spoke to a senior official in the 
White House (`Official A') who advised Libby of a conversation 
Official A had earlier that week with columnist Robert Novak in 
which Wilson's wife was discussed as a CIA employee involved in 
Wilson's trip. Libby was advised by Official A that Novak would 
be writing a story about Wilson's wife.'' Indictment at 8, 
Libby. ``Official A'' is Karl Rove. See Yost, ``Mysterious 
`Official A' is Karl Rove,'' Editor & Publisher, Oct. 28, 2005. 
Mr. Libby told FBI investigators and later testified before the 
grand jury that, in a private meeting in Mr. Rove's office, Mr. 
Rove told him that Mr. Novak had informed Mr. Rove of Ms. 
Wilson's identity. Gov't Ex. 1 (Libby grand jury testimony, 
Mar. 5, 2003, at 163-65, 169-70), Libby; Gov't Exhibit 2 (Libby 
grand jury testimony, Mar. 24, 2004, at 113-15), Libby; 
Transcript of Record (Feb. 1, 2007) (testimony of Deborah 
Bond). As explained below, Mr. Novak disputes that account. See 
Transcript of Record (Feb. 12, 2007), Libby (testimony of 
Robert Novak).
    1173. Transcript of Record (Feb. 12, 2003), Libby 
(testimony of Robert Novak); see also Gov't Sentencing Mem. at 
11, Libby. Secretary Armitage also passed the information along 
to Washington Post reporter Bob Woodward during an interview 
that Woodward was writing about the Bush Presidency. See 
Transcript of Record (Feb. 12, 2007), Libby (testimony of Bob 
Woodward); VandeHei & Leonning, ``Woodward Was Told of Plame 
More Than Two Years Ago,'' Wash. Post, Nov. 16, 2005, at A-1. 
According to Mr. Woodward, Secretary Armitage believed that Ms. 
Wilson was a non-covert analyst whose status was not 
classified. Transcript of Record (Feb. 12, 2007) (testimony of 
Bob Woodward), Libby. Secretary Armitage would later tell a 
State Department colleague that revealing Ms. Wilson's CIA 
employment was the ``dumbest thing'' he had done in his life.'' 
Transcript of Record (Jan. 23, 2007), Libby (testimony of Marc 
Grossman) (recounting conversation with Secretary Armitage just 
prior to Mr. Grossman's interview by FBI during fall of 2003). 
He is apparently the only leaker to have expressed any regret 
over his role in the leak.
    1174. Phelps & Royce, ``Columnist Blows CIA Agent's 
Cover,'' Newsday, July 22, 2003.
    1175. Gov't Sentencing Memorandum at 5, Libby.
    1176. For a summaries of the key facts, see, e.g., id. at 
9-12, Libby; Transcript of Record (Feb. 20, 2007) (government's 
closing argument), Libby; Indictment, Libby.
    1177. See Transcript of Record (Feb. 1, 2007), Libby 
(testimony of Deborah Bond, an FBI agent present at Mr. Libby's 
two interviews with the FBI); see also Indictment at 8-9. See 
generally Phelps & Royce, ``Columnist Blows CIA Agent's 
Cover,'' Newsday, July 22, 2003 at 9.
    1178. See Gov't Ex. 1 (Libby grand jury testimony of Mar. 
5, 2004), Libby; Gov't Ex. 2 (Libby grand jury testimony of 
Mar. 24, 2004), Libby; see also Indictment at 9-14, Libby.
    1179. See discussion Section 4(I)(B).
    1180. Transcript of Record (Feb. 7, 2007), Libby (testimony 
of Tim Russert).
    1181. 18 U.S.C. Sec. 3143(b)(1).
    1182. See United States v. Libby, 498 F. Supp.2d 1 (D.D.C. 
2007).
    1183. Press Conference, George W. Bush, Executive Clemency 
for Lewis Libby (July 2, 2007), available at http://
whitehouse.gov/news/releases/2007/07/20070702-3.html.
    1184. Snow, Op Ed, USA Today, July 5, 2007.
    1185. Press Conference, Tony Snow, White House Press 
Secretary (July 3, 2007), available at http://
www.whitehouse.gov/news/releases/2007/07/20070703-6.html. Mr. 
Snow also noted during the press conference that the district 
court had rejected a report by the ``Parole Commission'' 
calling for a sentence less than 30 months. See id. That 
mistaken reference to the Probation Department was based on a 
misunderstanding of the nature of the recommendation. The 
Probation Department made a recommendation as to the legal 
interpretation of the Federal Sentencing Guidelines--which the 
judge rejected--not a recommendation as to the appropriateness 
of a given punishment in the absence of the Guidelines (as Mr. 
Snow's comment implied).
    1186. See Press Conference, Tony Snow, White House Press 
Secretary (July 3, 2007), available at http://
www.whitehouse.gov/news/releases/2007/07/20070703-6.html.
    1187. See Use and Misuse of Presidential Clemency Power for 
Executive Branch Officials: Hearing Before the H. Comm. On the 
Judiciary, 110th Cong. 33 (2007) (hereinafter Misuse of 
Clemency Power Hearing) (statement of Roger C. Adams); see U.S. 
Dept. of Justice, Office of the Pardon Attorney, available at 
http://www.usdoj.gov/pardon.
    1188. Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), available at 
http://washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340.
    1189. See Letter from Henry A. Waxman, Chairman, H. Comm. 
on Oversight and Gov't Reform, to Patrick J. Fitzgerald, 
Special Counsel (Mar. 8, 2007), available at http://
oversight.house.gov/documents/20070308134201-02108.pdf; Letter 
from Patrick J. Fitzgerald, Special Counsel (Mar. 14, 2008), 
available at http://oversight.house.gov/documents/
20070314180406-55978.pdf; Transcript of Record (Feb. 20, 2007), 
Libby (government's closing argument).
    1190. The Republican-controlled Congress had ignored 
repeated calls to investigate the leak. See, e.g., Letter from 
Henry A. Waxman, Ranking Member, H. Comm. on Gov't Reform, to 
Tom Davis, Chairman, H. Comm. on Gov't Reform (June 13, 2006).
    1191. See H. Comm. on Gov't Oversight and Reform, Report on 
Recommendation that House of Representatives Find Michael B. 
Mukasey in Contempt of Congress (July 16, 2008), available at 
http://oversight.house.gov/documents/20080716162943.pdf 
(hereinafter H. Gov't Oversight Comm. Report on Resolution); 
Letter from John Conyers, Jr., Chairman, H. Comm. on Judiciary, 
to Michael Mukasey, Attorney General (June 5, 2008).
    1192. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (statement of John Conyers).
    1193. See attached to Appendix to H. Gov't Oversight Comm. 
Report on Resolution, available at http://oversight.house.gov/
documents/20080716163617.pdf.; Subpoena of H. Judiciary Comm. 
to Michael Mukasey, Attorney General (June 27, 2008), attached 
to Appendix to H. Gov't Oversight Comm. Report on Resolution, 
available at http://oversight.house.gov/documents/
20080716163617.pdf.
    1194. See Letter from Henry A. Waxman, Chairman, H. Comm. 
on Oversight and Gov't Reform, to Michael Mukasey, Attorney 
General (July 8, 2008), attached to Appendix to H. Gov't 
Oversight Comm. Report on Resolution, available at http://
oversight.house.gov/documents/20080716163617.pdf.
    1195. See Letter from Keith B. Nelson, Principal Deputy 
Assistant Attorney General, Dept. of Justice, to Henry A. 
Waxman, Chairman, H. Comm. on Oversight and Gov't Reform (July 
16, 2008), attached to Appendix to H. Gov't Oversight Comm. 
Report on Resolution, available at http://oversight.house.gov/
documents/20080716163617.pdf.
    1196. For the specific argument raised by the President and 
an assessment of their validity, see the discussion in Section 
5 of this Report.
    1197. H. Gov't Oversight Comm. Report on Resolution 
Subpoena of H. Judiciary Comm. to Michael Mukasey, Attorney 
General (June 27, 2008).
    1198. Letter from Henry A. Waxman, Chairman, H. Comm. on 
Gov't Oversight and Reform, to Michael A. Mukasey, Attorney 
General of the U.S. (June 3, 2008), attached to Appendix to H. 
Gov't Oversight Comm. Report on Resolution; see also H. Gov't 
Oversight Comm. Report on Resolution; Subpoena of H. Judiciary 
Comm. to Michael Mukasey, Attorney General (June 27, 2008) 
(summarizing publicly available information that raises 
questions about Vice President Cheney's role), attached to 
Appendix to H. Gov't Oversight Comm. Report on Resolution; see 
also H. Gov't Oversight Comm. Report on Resolution.
    1199. Disclosure Hearing, Before H. Comm. On Oversight and 
Gov't Reform at 3 (statement of Hon. Henry A. Waxman, Chairman, 
H. Comm. on Oversight and Gov't Reform).
    1200. Exec. Order No. 12,958, 68 Fed. Reg. 19,829 (Apr. 17, 
1995).
    1201. Id. Sec. 5.5(e)(1) (Apr. 17, 1995) (preamble); see 
also Disclosure Hearing, Before H. Comm. On Oversight and Gov't 
Reform (statement of James Knodell).
    1202. Standard Form 312, Classified Information 
Nondisclosure Agreement (hereinafter ``Form 312''), available 
at http://contacts.gsa.gov/webforms.nsf/0/
03A78F16A522716785256A69004E23F6/$file/SF312.pdf.
    1203. See, e.g., Gov't Ex. 5A, Libby (Libby agreement).
    1204. Disclosure Hearing, Before H. Comm. On Oversight and 
Gov't Reform (testimony of James Knodell and William Leonard); 
Exec. Order No. 12,958, 68 Fed. Reg. 19,829 Sec. 5.5(e)(1) 
(Apr. 17, 1995).
    1205. Exec. Order No. 12,958, 68 Fed. Reg. 19,829 Sec. 5.7 
(Apr. 17, 1995).
    1206. Form 312. For a summary of the agreement's terms, see 
Information Security Office, National Archives and Records 
Administration, Briefing Booklet: Classified Information Non-
Disclosure Agreement (Standard Form 312) 73, available at 
http://www.fas.org/sgp/isoo/sf312.html (hereinafter Form 312 
Booklet).
    1207. Form 312; Form 312 Booklet.
    1208. Disclosure Hearing, Before H. Comm. on Oversight and 
Gov't Reform at 96 (testimony of James Knodell).
    1209. Id.
    1210. Form 312 Booklet.
    1211. Id.
    1212. Disclosure Hearing, Before H. Comm. On Oversight and 
Gov't Reform at 88-93, 101-02, 104-05, 107, 109, 116, 122-23 
(testimony of James Knodell). On the absence of any White House 
investigation into the leak, see Revelations by Former White 
House Press Secretary Scott McClellan: Hearing Before the H. 
Comm. on the Judiciary, 110th Cong. (2007) (testimony of Scott 
McClellan).
    1213. Gov't Ex. 2 (Libby grand jury testimony, Mar. 24, 
2004, at 140-68), Libby.
    1214. Gov't Ex. 2 (Libby grand jury testimony, Mar. 24, 
2004, at 149, 155-56), Libby.
    1215. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (statement of Scott McClellan).
    1216. Gov't Ex. 532, Libby.
    1217. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (testimony of Scott McClellan).
    1218. Id. at 1 (statement of John Conyers).
    1219. Michael Isikoff, ``2007 Pardon,'' Newsweek, July 16, 
2007; see also Lewis, Libby Guilty of Lying in C.I.A. Leak 
Case, N.Y. Times, Mar. 6, 2007.
    1220. See Letter from John Conyers, Jr., Chairman, H. Comm. 
on the Judiciary, to George W. Bush, President of the U.S. 
(July 6, 2007), reprinted in Misuse of Clemency Power Hearing 
at 190; Letter from John Conyers, Jr., Chairman, H. Comm. on 
the Judiciary, to George W. Bush, President of the U.S. (July 
10, 2007), reprinted in Misuse of Clemency Power Hearing at 
192.
    1221. See Letter from Fried F. Fielding, Counsel to the 
President, to John Conyers, Jr., Chairman, H. Comm. on the 
Judiciary (July 11, 2007), reprinted in Misuse of Clemency 
Power Hearing at 193-94. On the legal issues surrounding Mr. 
Fielding's response, see the discussion in Section 5 of this 
Report.
    1222. See Misuse of Clemency Power Hearing at 2 (statement 
of John Conyers, Jr.).
    1223. Id. at 12 (statement of Douglas A. Berman).
    1224. Id. at 15. It also established that the sentence was 
the result of careful consideration. The court imposed the 
sentence after ``reviewing a detailed pre-sentencing report, 
lengthy sentencing memoranda from the parties, and hundreds of 
letters from interested persons. Judge Walton also held a 
sentencing hearing in which he heard arguments from the parties 
and provided Mr. Libby an opportunity to address the court 
directly.'' Id. at 13.
    1225. 18 U.S.C. Sec. 3553(a).
    1226. See Misuse of Clemency Power Hearing at 12-13 
(statement of Douglas A. Berman).
    1227. Id. at 12 (emphasis in original); see also United 
States v. Libby, 495 F. Supp.2d 49, 52 n.1 (D.D.C. 2007) 
(noting that sentence was ``consistent with the bottom end of 
the applicable sentencing range as properly calculated under 
the United States Sentencing Guidelines''). According to one 
witness, the judge's decision to sentence Mr. Libby at the 
bottom of the sentencing guidelines ``suggests that he was 
attentive to the collateral personal consequences that Mr. 
Libby's prosecution and convictions necessarily produce.'' Id. 
at 14 (statement of Douglas A. Berman).
    1228. 127 S.Ct. 2456 (2007).
    1229. See Presidential Clemency Decision, 110th Cong. at 
19-20 (statement of Douglas A. Berman).
    1230. Presidential Clemency Power at 15 (statement of 
Douglas A. Berman) (emphasis in original); see also Statement 
of Special Counsel Patrick Judge Fitzgerald, United States v. 
Libby, Crim. No. 05-394 (RBW) (D.D.C.), quoted in id. at 14 n.2 
(rejecting President's statement that sentence was excessive).
    1231. Misuse of Clemency Power Hearing at 20 (statement of 
Douglas A. Berman); id. at 4-55 (statement of Thomas Cochran); 
see also Gov't Sentencing Mem. at 8-9, Libby (noting that Mr. 
Libby was not entitled to leniency because of his public 
service). One witness testified that the defendant in Rita, 
whose underlying crimes were remarkably similar to Mr. Libby's, 
was required to report for a 33-month prison sentence on the 
same day that President Bush commuted Mr. Libby's sentence. See 
Misuse of Clemency Power Hearing at 47 (statement of Thomas 
Cochran). In a separate concurrence, Justices Scalia and Thomas 
called the defendant's sentence in Rita ``relatively low'' 
given his perjury conviction. 127 S. Ct. at 2474 (Scalia, J., 
joined by Thomas, J., concurring).
    1232. Brief for U.S., Rita v. United States, 127 S. Ct. 
2456 (2007), available at http://www.usdoj.gov/osg/briefs/2006/
3mer/2mer/2006-5754.mer.aa.html.
    1233. See Misuse of Clemency Power Hearing at 9 (testimony 
of Douglas A. Berman).
    1234. See id. at 33, 39 (statement of Roger C. Adams); id. 
at 1-2 (statement of John Conyers, Jr.). The regulations appear 
at 28 C.F.R. Sec. Sec. 1.1-1.11.
    1235. See Misuse of Clemency Power Hearing at 40 (statement 
of Thomas Cochran).
    1236. See id. at 34 (statement of Roger C. Adams).
    1237. See Press Conference, George W. Bush, Executive 
Clemency for Lewis Libby (July 2, 2007), available at http://
whitehouse.gov/news/releases/2007/07/20070702-3.html. (``[O]ur 
entire system of justice relies on people telling the truth. 
And if a person does not tell the truth, particularly if he 
serves in government and holds public trust, he must be held 
accountable.'').
    1238. See Misuse of Clemency Power Hearing at 116-65 (lists 
of pardons and commutations during Clinton and Bush 
administrations prepared by Office of Pardon Attorney).
    1239. Isikoff & Hosenball, ``Requests Come in for Last-
minute Pardons from President Bush,'' Newsweek, Nov. 24, 2008.
    1240. See Misuse of Clemency Power Hearing 127 (list of 
commutations by President Bush prepared by Office of Pardon 
Attorney). The administration had by then received over 4,000 
commutation petitions. See id. at 88 (testimony of Roger C. 
Adams). As governor of Texas, President Bush commuted only one 
death sentence. See Berlow, ``The Texas Clemency Memos,'' 
Atlantic Monthly, July/Aug. 2003.
    1241. See Misuse of Clemency Power Hearing at 16-21 
(statement of Douglas A. Berman).
    1242. Transcript of Record (Feb. 20, 2007), Libby 
(government's closing argument noting promise of testimony by 
Mr. Libby to this end).
    1243. Misuse of Clemency Power Hearing at 77 (testimony of 
Joseph F. Wilson, IV).
    1244. See id. at 6 (testimony of Joseph F. Wilson, IV); see 
also id. at 2 (statement of John Conyers) (raising issue).
    1245. See id. at 89, 106 (testimony of Douglas A. Berman). 
Some conservative commentators have since called on President 
Bush to pardon Mr. Libby. See, e.g., Editorial, ``Bush and 
Scooter Libby,'' Wall Street J., Dec. 22, 2008.
    1246. Other examples have drawn recent media attention. 
See, e.g., Isikoff, ``The Fed Who Blew the Whistle,'' Newsweek, 
Dec. 22, 2008, at 40 (featuring ordeal of Thomas M. Tamm, a 
Justice Department whistleblower who exposed the Department's 
warantless wiretapping program).
    1247. DoD Budget: Hearing on FY2004 Defense Authorization 
Before the Senate Armed Services Comm., 108th Cong. (2003) 
(statement of Eric K. Shinseki).
    1248. Id.
    1249. Schmitt, ``Pentagon Contradicts on Iraq Occupation 
Force's Size,'' N.Y. Times, Feb. 8, 2003, at A1.
    1250. Engel, ``Scorned General's Tactics Proved Right,'' 
Guardian, Mar. 29, 2003, available at http://
www.guardian.co.uk/inter
national/story/0,3604,925140,00.html.
    1251. Schmitt, ``Pentagon Contradicts on Iraq Occupation 
Force's Size,'' N.Y. Times, Feb. 8, 2003, at A1.
    1252. Engel, ``Scorned General's Tactics Proved Right,'' 
Guardian, Mar. 29, 2003, available at http://
www.guardian.co.uk/international/story/0,3604,925140,00.html.
    1253. Kessler & Connolly, ``Plenty of Flaws Among the 
Facts: Candidates Made Questionable Claims,'' Wash. Post, Oct. 
9, 2004, at A20.
    1254. Fallows, ``Bush's Lost Year,'' Atlantic Monthly, Oct. 
1, 2004, at 68.
    1255. Herbert, ``No End in Sight,'' N.Y. Times, Apr. 2, 
2004, at A19.
    1256. See Interview with Secretary Paul O'Neill, 60 Minutes 
(CBS television broadcast, Jan. 11, 2004), available at http://
www.cbsnews.com/stories/2004/01/09/60minutes/main592330.shtml 
(``[N]ine days after that meeting in which O'Neill made it 
clear he could not publicly support another tax cut, the Vice 
President called and asked him to resign'').
    1257. Id.
    1258. Id.
    1259. Id.
    1260. Shanker, ``Rumsfeld Says He Contacted Ex-Official on 
Bush Book,'' N.Y. Times, Jan. 14, 2004, at A13.
    1261. See Malveaux, ``O'Neill Cleared In Use of Classified 
Documents,'' CNN, Feb. 6, 2004, available at http://
www.cnn.com/2004/ALLPOLITICS/02/06/oneill.cleared/.
    1262. Krugman, ``The Awful Truth,'' N.Y. Times, Jan. 13, 
2004, at A25.
    1263. Malveaux, ``O'Neill Cleared In Use of Classified 
Documents,'' CNN, Feb. 6, 2004, available at http://
www.cnn.com/2004/ALLPOLITICS/02/06/oneill.cleared/.
    1264. Id.
    1265. Blumenthal, ``He Cannot Tell a Lie,'' Salon, Jan. 15, 
2004, available at http://archive.salon.com/opinion/blumenthal/
2004/01/15/o_neill/index_np.html?x.
    1266. Andrews, Bush, ``In Shake-Up of Cabinet, Ousts 
Treasury Leader,'' N.Y. Times, Dec. 7, 2002, at A1.
    1267. Rich, ``Bring Back Warren Harding,'' N.Y. Times, Sep. 
25, 2005.
    1268. See Corbett B. Daly, ``Ex-Bush Aide: Iraq War 
Planning Began After 9/11,'' CNN, May 6, 2004, available at 
http://www.cnn.com/2004/US/03/20/clarke.cbs/.
    1269. Interview with Richard Clarke, 60 Minutes (CBS 
television broadcast, Mar. 21, 2004), http://www.cbsnews.com/
stories/2004/03/19/60minutes/main607356.shtml.
    1270. Id.
    1271. Id.
    1272. See Miller, ``Former Terrorism Official Faults White 
House on 9/11,'' N.Y. Times, Mar. 22, 2004, at A18.
    1273. Press Secretary Scott McClellan, White House Press 
Briefing (Mar. 22, 2004), available at http://
www.whitehouse.gov/news/releases/2004/03/200403224.html.
    1274. 150 Cong. Rec. S3209 (daily ed. Mar. 26, 2004) 
(statement of Sen. Frist).
    1275. Lizza, ``Logic Jam,'' New Republic, Mar. 24, 2004.
    1276. Eckholm, ``A Top U.S. Contracting Official for the 
Army Calls for an Inquiry in the Haliburton Case,'' N.Y. Times, 
Oct. 25, 2004, at A13.
    1277. Id.
    1278. Oversight H. on Waste, Fraud, and Abuse in U.S. Gov't 
Contracting in Iraq Before the Senate Democratic Policy Comm., 
109th Cong. (2005) (statement of Bunnatine Greenhouse).
    1279. Id.
    1280. Id.
    1281. Miller, Democrats Demand Probe of Demotion, L.A. 
Times, Aug. 30, 2005, at A8.
    1282. See, e.g., Disclosure Hearing, Before H. Comm. on 
Oversight and Gov't Reform at 4-5 (statement of Henry A. Waxman 
approved by Michael Hayden, Director, CIA); Press Conference, 
Patrick Fitzgerald, Special Counsel, U.S. Dept. of Justice 
(Oct. 28, 2005), available at http://washingtonpost.com/wp-dyn/
content/article/2005/10/28/AR2005102801340.
    1283. 50 U.S.C. Sec. 421. Special Counsel Patrick 
Fitzgerald so found. See, e.g., Gov't Sentencing Mem. at 12, 
Libby (``[I]t was clear from very early in the investigation 
that Ms. Wilson qualified under the relevant statute Title 50, 
United States Code, Section 421, as a covert agent'').
    1284. See, e.g., H. Comm. on Gov't Oversight and Reform, 
Disclosure of Valerie Plame Wilson's Classified CIA Employment 
(Mar. 16, 2007), available at http://oversight.house.gov/
documents/20070316173308-19288.pdf.; see also Gov't Sentencing 
Memorandum at 2, Libby.
    1285. H. Comm. on Gov't Oversight and Reform, Disclosure of 
Valerie Plame Wilson's Classified CIA Employment (Mar. 16, 
2007), available at http://oversight.house.gov/documents/
20070316173308-19288.pdf.
    1286. See discussion Section 4(I)(C); Gov't Sentencing Mem. 
at 14, Libby.
    1287. Disclosure Hearing, Before H. Comm. On Oversight and 
Gov't Reform (testimony of Valerie Plame Wilson).
    1288. See discussion Section 4(I)(C).
    1289. Id.
    1290. Id.
    1291. See H. Gov't Oversight Comm. Report on Resolution at 
9 (July 16, 2008); see also Gov't Sentencing Mem. at 14, Libby 
(noting that ``there was an indication from Mr. Libby himself 
that his disclosures to the press may have been personally 
sanctioned by the Vice President''); discussion Section 
4(I)(C).
    1292. See, e.g., Waas, ``Exclusive: Cheney's Admissions to 
the CIA Leak Prosecutor and FBI,'' Crooks and Liars, Dec. 23, 
2008, available at http://www/murraywass.crooksandliars.com/
2008/12/23/exclusive-cheneys-admissions-to-the-cia-leak-
prosecutors-and-fbi; Transcript of Record (Feb. 20, 2007); 
discussion Section 4(I)(c).
    1293. Gov't Ex. 532, Libby.
    1294. See discussion Section 4(I)(A)-(B).
    1295. See Disclosure Hearing Before H. Comm. On Oversight 
and Gov't Reform at 82, available at http://
oversight.house.gov/documents/20071114150609.pdf (testimony of 
James Knodell).
    1296. Exec. Or. No. 12958 Sec. 5.1, 68 Fed. Reg. 15,315 
(Mar. 28, 2003).
    1297. See, e.g., Transcript of Record (Jan. 31, 2007), 
Libby (testimony of Time Magazine reporter Matt Cooper that, 
after disclosing Ms. Wilson's identity, Mr. Rove said that he 
had ``already said too much''); Transcript of Record (Jan. 24, 
2007) (testimony of Robert Grenier, Associate Deputy Director 
for Operations, CIA, that he briefed Mr. Libby about Ms. 
Wilson).
    1298. Form 312; Form 312 Briefing Booklet; Disclosure 
Hearing Before H. Comm. On Oversight and Gov't Reform 
(statement of James Knodell).
    1299. 50 U.S.C. Sec. 421 (2006). While no defenders of the 
administration have contended that Ms. Wilson's cover status 
was not protected from disclosure under Executive Order 12958, 
at least one defender of the Administration, former Republican 
congressional staffer Victoria Toensing, has contended Ms. 
Wilson was not a ``covert agent'' under the Intelligence 
Identifies Protection Act. See, e.g., Disclosure Hearing, 
Before H. Comm. On Oversight and Gov't Reform (testimony of 
Victoria Toensing); see also Toensing and Sanford, Editorial, 
``The Plame Game: Was This a Crime?'' Wash. Post, Jan. 12, 
2005, at A21. The Act defines a covert agent, in relevant part, 
as a `` a present or retired officer or employee of an 
intelligence agency who is serving outside the United States or 
has within the last five years served outside the United 
States.'' Ms. Toensing contends that Ms. Wilson did not qualify 
as a covert agent because, at the time of the disclosure, she 
``resided'' in Washington. See id. The statute, however, does 
not require that the agent resided outside the United States 
during the five-year period preceding the disclosure--only that 
he or she served outside the United States. It is undisputed 
that Ms. Plame performed covert missions outside the United 
States during the five years preceding the disclosure. See, 
e.g., id. at 164, 173 (testimony of Valerie Plame Wilson). 
Serious questions have been raised as to whether Ms. Toensing 
testified accurately and truthfully before the House Government 
Oversight and Reform Committee when she testified that Ms. 
Wilson was not a ``covert agent'' under the Act. See Disclosure 
Hearing Before H. Comm. On Oversight and Gov't Reform 
(statement of Henry A. Waxman, Chairman, H. Comm. on Gov't 
Reform); Corn, ``Did GOP Lawyer Mislead Congress About Plame 
Case?'' Nation, Mar. 19, 2007, available at http://
www.thenation.com/blogs/capitalgames/177(c).
    1300. See, e.g., Gov't Sentencing Mem. at 12, Libby.
    1301. Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), available at 
http://washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340
    1302. Disclosure Hearing Before H. Comm. on Oversight and 
Gov't Reform at 88-93, 101-02, 104-05, 107, 109, 116, 122-23 
(statement of James Knodell).
    1303. See, e.g., H. Gov't Oversight Comm. Report on 
Resolution; Letter from Keith B. Nelson, Principal Deputy 
Assistant Attorney General, Dept. of Justice, to John Conyers, 
Jr., Chairman, H. Comm. on Judiciary (June 13, 2008).
    1304. See, e.g., ``Juror: Libby is guilty, but he was the 
fall guy,'' CNN.com, Mar. 6, 2007, available at http://
www.cnn.com/2007/POLITICS/03/06/libby.juror/index.html; 
Collins, ``Inside the Jury Room: Huffington Post Exclusive: 
What the Jury Thought, Day by Day, Witness by Witness, at the 
Scooter Libby Trial, Huffington Post, Mar. 7, 2007; Waas, 
``Exclusive: Cheney's Admissions to the CIA Leak Prosecutor and 
FBI,'' Crooks and Liars, Dec. 23, 2008, http://www/
murraywass.crooksandliars.com/2008/12/23/exclusive-cheneys-
admissions-to-the-cia-leak-prosecutors-and-fbi.
    1305. Gov't Sentencing Mem. at 15, Libby.
    1306. Transcript of Record (Feb. 20, 2007), Libby 
(government's closing argument); Gov't Sentencing Mem. at 5, 
Libby; see also Gov't Sentencing Mem. at 16, Libby.
    1307. Press Conference, Patrick Fitzgerald, Special 
Counsel, U.S. Dept. of Justice (Oct. 28, 2005), available at 
http://washingtonpost.com/wp-dyn/content/article/2005/10/28/
AR2005102801340.
    1308. See, e.g., H. Comm. on Gov't Oversight and Reform, 
Disclosure of Valerie Plame Wilson's Classified CIA Employment 
(Mar. 16, 2007), available at http://oversight.house.gov/
documents/20070316173308-19288.pdf.
    1309. Revelations by Former White House Press Secretary 
Scott McClellan: Hearing Before the H. Comm. on the Judiciary, 
110th Cong. (June 20, 2008) (statement of Scott McClellan).
    1310. See id. (statement of John Conyers, Jr.). Mr. Conyers 
read a statement to the Committee from a former federal 
prosecutor (Barry Coburn) that read, in relevant part: ``A 
substantial predicate exists for investigation of whether this 
conduct may constitute the criminal offense of obstruction of 
justice.'' Id.
    1311. See, e.g., Letter from John Conyers, Jr., Chairman, 
H. Comm. on Judiciary, to George W. Bush, President of the 
United States (July 6, 2007), reprinted in Misuse of Clemency 
Power Hearing.
    1312. Press Conference, President George W. Bush (Oct. 28, 
2003), available at http://www.whitehouse.gov/news/releases/
2003/10/20031028-2.html.
    1313. Disclosure Hearing Before H. Comm. On Oversight and 
Gov't Reform at 4-5 (statement of Hon. Henry A. Waxman, 
Chairman, H. Comm. on Gov't Oversight and Reform).
    1314. See, e.g., Revelations by Former White House Press 
Secretary Scott McClellan: Hearing Before the H. Comm. on the 
Judiciary, 110th Cong. (2007) (testimony of Scott McClellan); 
Op-Ed, ``The Libby Affair,'' Wash. Times, July 4, 2007; see 
also Government's Sentencing Mem. at 16-17., Libby (emphasizing 
that Mr. Libby's crimes were an affront to the rule of law).
    1315. See Misuse of Clemency Power Hearing at 33 (2007) 
(testimony of Douglas Berman).
    1316. See Letter from Fred W. Fielding, White House 
Counsel, to John Conyers, Jr., Chairman, H. Comm. on Judiciary 
(July 11, 2007), reprinted in Misuse of Clemency Power Hearing 
at 33 (2007); Letter from John Conyers, Jr., Chairman, H. Comm. 
on Judiciary, to George W. Bush, President of the United States 
(July 6, 2007), reprinted in Misuse of Clemency Power Hearing 
at 33.
    1317. Taylor, An Inquiry Into the Principles and Policy of 
the Government of the United States 194, (The Lawbook Exchange, 
Ltd. 1998) (1814).
    1318. Kornblut, ``Bush's Stance on Secrecy Draws 
Criticism,'' The Boston Globe, Feb. 11, 2002.
    1319. Id.
    1320. Williamson, ``White House Secrecy Starts To Give,'' 
Washington Post, Jan. 13, 2008, at A5.
    1321. Examples include, but are not limited to, the 
Administration's selective declassification of the October 2002 
National Intelligence Estimate on Iraq and its delayed release 
of a heavily-redacted version of the report of the Joint 
Inquiry into Intelligence Community Activities before and after 
the Terrorist Attacks of September 11, 2001 by the House and 
Senate Intelligence Committees.
    1322. Graham, ``Securing a Safe America Requires 
Accountability For 9/11 Mistakes,'' The Forward, Aug. 1, 2003, 
at 1.
    1323. The ``presidential communications privilege'' and 
``deliberative process privilege'' are facets of executive 
privilege. The presidential communications privilege protects 
from disclosure communications by the president directly or by 
his immediate advisers. The deliberative process privilege 
protects the confidentiality of internal government 
deliberations (including discussions, opinions, and 
recommendations) during the process of formulating policy. 
However, even when properly invoked, assertions of executive 
privilege can be overcome by showing a sufficient need for the 
requested information. See Huq, ``Background on Executive 
Privilege,'' The Brennan Center for Justice, Mar. 23, 2007, 
available at http://www.brennancenter.org/content/resource/
background_on_executive_privilege/.
    1324. 365 F.3d 1108.
    1325. H. Rep. No. 108-414, at 129 (2004).
    1326. Id. at 130.
    1327. For a full accounting of the scandal, see Section 4 
of this report. The Judiciary Committee's own investigation 
into the commutation of ``Scooter'' Libby's sentence is 
addressed later in this Section.
    1328. Report of the Comm. on Oversight and Gov't Reform, 
U.S. House of Representatives, Regarding President Bush's 
Assertion of Executive Privilege in Response to the Committee 
Subpoena to Attorney General Michael B. Mukasey 2-3 (2008) 
(hereinafter 2008 Report on Mukasey Executive Privilege).
    1329. Letter from Henry A. Waxman, Chairman, H. Comm. on 
Oversight and Gov't Reform, to Patrick J. Fitzgerald, Special 
Counsel, U.S. Dept. Of Justice (July 16, 2007).
    1330. 2008 Report on Mukasey Executive Privilege at 3.
    1331. 2008 Report on Mukasey Executive Privilege at 4-5.
    1332. H. Comm. on Oversight and Gov't Reform, Subpoena to 
Attorney General Michael B. Mukasey (June 16, 2008).
    1333. Letter from Keith B. Nelson, Principal Deputy 
Assistant Att'y Gen., U.S. Dept. Of Justice, to Henry A. 
Waxman, Chairman, H. Comm. On Oversight and Gov't Reform (June 
24, 2008).
    1334. Letter from Henry A. Waxman, Chairman, H. Comm. On 
Oversight and Gov't Reform to Keith B. Nelson, Principal Deputy 
Assistant Att'y Gen., U.S. Dept. Of Justice (July 8, 2008).
    1335. Letter from Keith B. Nelson, Principal Deputy 
Assistant Att'y Gen., U.S. Dept. Of Justice, to Henry A. 
Waxman, Chairman, H. Comm. On Oversight and Gov't Reform (July 
16, 2008).
    1336. Letter from Michael B. Mukasey, Att'y Gen., to 
President George W. Bush (July 15, 2008).
    1337. 2008 Report on Mukasey Executive Privilege at 6.
    1338. 2008 Report on Mukasey Executive Privilege at 7.
    1339. Id., citing Letter from Patrick J. Fitzgerald, 
Special Counsel, U.S. Dept. of Justice, to Henry A. Waxman, 
Chairman, H. Comm. On Oversight and Gov't Reform (July 3, 
2008).
    1340. 2008 Report on Mukasey Executive Privilege at 7, 
citing In Re Sealed Case and Judicial Watch.
    1341. 2008 Report on Mukasey Executive Privilege at 7.
    1342. From the Department of Justice to Guantanamo Bay: 
Administration Lawyers and Administration Interrogation Rules, 
Part III Before the Subcomm. On the Constitution, Civil Rights 
and Civil Liberties of the H. Comm. on the Judiciary, 110th 
Cong. (2008) (statement of David Addington, Chief of Staff, 
Vice President of the United States).
    1343. Isikoff and Hosenball, ``Closing the Door,'' 
Newsweek, July 16, 2008, available at http://www.newsweek.com/
id/146651.
    1344. Id.
    1345. 2008 Report on Mukasey Executive Privilege at 8.
    1346. Draft Report of the H. Comm. on Oversight and Gov't 
Reform Regarding The Bush Administration's Abuse of Power in 
Asserting Executive Privilege in Response to Committee 
Subpoenas to Stephen Johnson, Administrator, Environmental 
Protection Agency, and Susan Dudley, Administrator, White House 
Office of Management and Budget, 2-3 (2008) available at http:/
/oversight.house.gov/documents/20081014104748.pdf.
    1347. Id. at 2.
    1348. Id. at 5.
    1349. Id. at 5.
    1350. Id. at 7.
    1351. Id. at 8.
    1352. Letter from Susan Dudley, Administrator, Office of 
Information and Regulatory Affairs, Office of Management and 
Budget, to Stephen Johnson, Administrator, Environmental 
Protection Agency (Mar. 12, 2008) available at http://
oversight.house.gov/documents/20080520092019.pdf. The letter is 
misdated as Mar. 13, but was actually transmitted Mar. 12.
    1353. Draft Report of the H. Comm. on Oversight and Gov't 
Reform Regarding The Bush Administration's Abuse of Power in 
Asserting Executive Privilege in Response to Committee 
Subpoenas to Stephen Johnson, Administrator, Environmental 
Protection Agency, and Susan Dudley, Administrator, White House 
Office of Management and Budget, 12, 14 (2008) available at 
http://oversight.house.gov/documents/20081014104748.pdf.
    1354. Id. at 10, 13.
    1355. Id. at 15.
    1356. Id. at 16, 17.
    1357. Letter from Michael B. Mukasey, Att'y Gen., U.S. 
Dept. of Justice, to President George W. Bush (June 19, 2008).
    1358. Draft Report of the H. Comm. on Oversight and Gov't 
Reform Regarding The Bush Administration's Abuse of Power in 
Asserting Executive Privilege in Response to Committee 
Subpoenas to Stephen Johnson, Administrator, Environmental 
Protection Agency, and Susan Dudley, Administrator, White House 
Office of Management and Budget, 1 (2008) available at http://
oversight.house.gov/documents/20081014104748.pdf.
    1359. The discussion that follows focuses on the related 
executive privilege and immunity claims made by the Bush 
Administration during the course of the Committee's 
investigation. For a further discussion of the factual details 
of this investigation, please refer to Section 1 of this 
Report.
    1360. Letter from Fred Fielding, Counsel to the President, 
to Reps. John Conyers, Lamar Smith and Linda Sanchez and Sens. 
Patrick Leahy and Arlen Specter, (Mar. 20, 2007).
    1361. Ensuring Executive Branch Accountability: Hearing 
Before the Subcomm. on Comm. and Admin. Law of the H. Comm. On 
the Judiciary, 110th Cong. 67-68 (2007).
    1362. Id. at 73.
    1363. Id. at 74.
    1364. Letter from Fred Fielding, Counsel to the President, 
to Patrick Leahy, Chairman, S. Comm. on the Judiciary, John 
Conyers, Jr., Chairman, H. Comm. on the Judiciary (June 28, 
2007).
    1365. H.R. Rep. No. 110-423, (2007). See Proceedings 
against John M. Quinn, David Watkins, and Matthew Moore 
(Pursuant to 2 U.S.C. Sec. 192 and 194), H.R. Rep. No. 104-598, 
(1996).
    1366. See, e.g., Smith v. FTC, 403 F. Supp. 1000, 1018 (D. 
Del. 1975); Black v. Sheraton Corp., 371 F. Supp. 97, 101 
(D.D.C. 1974; Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 
2000); In re Sealed Case, 121 F.3d 729, 735 (D.C. Cir. 1997).
    1367. In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 
1997).
    1368. See Press Briefing, White House Press Secretary Dana 
Perino, Mar. 27, 2007, available at http://www.whitehouse.gov/
news/releases/2007/03/20070327-4.html.
    1369. Fein, ``Executive Nonsense,'' Slate, July 11, 2007, 
available at http://www.slate.com/id/2170247/.
    1370. Letter from Prof. Erwin Chemerinsky, Duke University 
School of Law, to John Conyers, Chairman, H. Comm. on the 
Judiciary (Sept. 20, 2007).
    1371. Editorial, ``In Contempt,'' N.Y. Times, Nov. 16, 
2007, available at http://www.nytimes.com/2007/11/16/opinion/
16fri1.html?scp=1&sq=in%20contempt&st=cse.
    1372. 2 U.S.C. Sec. 194.
    1373. Letter from Michael B. Mukasey, Att'y Gen., U.S. 
Dept. Of Justice, to Nancy Pelosi, Speaker of the House, (Feb. 
29, 2008).
    1374. Memorandum Opinion and Order, Committee on the 
Judiciary v. Miers, Civil Action No. 08-0409 (JDB) (United 
States District Court for the District of Columbia, July 31, 
2008).
    1375. Id.
    1376. October 6, 2008, Opinion and Order Granting Motion 
for Stay Pending Appeal, Committee on the Judiciary v. Miers, 
Appeal No. 08-5357, United States Court of Appeals for the 
District of Columbia Circuit.
    1377. Letter from Fred Fielding, White House Counsel, to 
Karl Rove (Jan. 16, 2009); Letter from Fred Fielding, White 
House Counsel, to George T. Manning (Jan. 16, 2009).
    1378. Isikoff, A Long-Lived Privilege, Newsweek, Jan. 29, 
2009, http://www.newsweek.com/id/182240.
    1379. For a full discussion of the Committee's 
investigation into selective prosecution, see Section 1 of this 
report.
    1380. Letter from Robert D. Luskin, Att'y for Karl Rove, to 
Rep. John Conyers, Chairman, H. Comm. On the Judiciary, (July 
9, 2008).
    1381. Letter from Fred Fielding, Counsel to the President, 
to Robert D. Luskin, Att'y for Karl Rove, (July 9, 2008).
    1382. Steven G. Bradbury, Principal Deputy Assistant 
Attorney General, U.S. Dept. Of Justice, Memorandum for the 
Counsel to the President, Re: Immunity of Former Counsel to the 
President from Compelled Congressional Testimony, July 10, 
2007.
    1383. Ruling of Chairwoman Linda T. Sanchez, Subcomm. on 
Commercial and Administrative Law of the H. Comm. On the 
Judiciary, July 10, 2008.
    1384. Halstead, Walker v. Cheney: District Court Decision 
and Related Statutory and Constitutional Issues, CRS Report for 
Congress, RL31713, Mar. 8, 2004, at 2.
    1385. See, e.g. Alvarez and Schmitt, ``Cheney Ever More 
Powerful As Crucial Link to Congress,'' N.Y. Times, May 13, 
2001, at A1; Shenon, ``Sensing a Bush Liability, Democrats Push 
an Energy Plan,'' N.Y. Times, May 16, 2001, at A1; Labaton, 
``Business Leaders Visit Bush at White House,'' N.Y. Times, 
Jun. 21, 2001, at A18.
    1386. Chronology of GAO's Efforts to Obtain NEPDG Documents 
from the Office of the Vice President, Apr. 19, 2001 to Aug. 
25, 2003, available at http://www.gao.gov/nepdgchron.pdf.
    1387. See id.
    1388. GAO Statement Concerning Litigation, Feb. 22, 2002, 
available at http://www.gao.gov/press/gaostatement0222.pdf.
    1389. Walker v. Cheney, 230 F. Supp.2d 51 (D.D.C., 2002).
    1390. Lukey, ``At The Court, Inflating The White House's 
Power,'' Washington Post, Jul. 4, 2004, at B2.
    1391. Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 
U.S. 367, 371 (2004).
    1392. In re Cheney, 406 F.3d 723, 728, 365 U.S. App. D.C. 
387, 392 (D.C. Cir. May 10, 2005).
    1393. Shenon, ``Bush to Limit Testimony Before 9/11 
Panel'', N.Y. Times, Feb. 26, 2004, at A23.
    1394. See, e.g. Miller, ``Panel Presses Rice to Testify,'' 
L.A. Times, Mar 29, 2004, at A1; Washington, ``Democrats Push 
for Rice to Testify,'' Boston Globe, Mar. 24, 2004, at A12; 
Lewis, ``Behind the Privilege That in the End Bowed to 
Politics,'' N.Y. Times, Mar. 31, 2004, at A21.
    1395. Rauber, ``A Privileged Conversation,'' Richmond 
Times, Apr. 3, 2004, at A2.
    1396. Letter from Alberto Gonzales, Counsel to the 
President, to Hon. Thomas Kean and Hon. Lee Hamilton, Co-
Chairs, National Commission on Terrorist Attacks Upon the 
United States, Mar. 31, 2004, available at http://
edition.cnn.com/2004/ALLPOLITICS/03/30/gonzales.letter/
index.html. It should be noted, however, that neither Dr. 
Rice's testimony nor the 9/11 Commission report included 
information about a July 10, 2001, meeting between Rice and CIA 
Director George Tenet at which he claims to have warned her of 
an ``imminent'' al Qaeda attack. (Eggen and Wright, ``Tenet 
Recalled Warning Rice,'' Washington Post, Oct. 3, 2006, at A3.)
    1397. Stolberg, ``Two Decline to Testify on Drug Cost,'' 
N.Y. Times, Apr. 2, 2004, at A17.
    1398. Letter from Alberto Gonzales, Counsel to the 
President, to Rep. Bill Thomas, Chairman, H. Comm. On Ways and 
Means, (Mar. 31, 2004).
    1399. Press Release, Rep. Charles Rangel, Ranking Member, 
H. Comm. On Ways and Means, Apr. 1, 2004, available at http://
www.house.gov/apps/list/press/wm31_democrats/
040401_whitehouse_avoid_medicare_coverup.html.
    1400. Id.
    1401. Stolberg, ``Two Decline to Testify on Drug Cost,'' 
N.Y. Times, Apr. 2, 2004, at A17.
    1402. Letter from Rep. John Conyers, Chairman, H. Comm. On 
the Judiciary, to President George W. Bush, July 6, 2007; 
Letter from Rep. John Conyers, Chairman, H. Comm. On the 
Judiciary, to President George W. Bush, (July 10, 2007).
    1403. Letter from Fred Fielding, Counsel to the President, 
to Rep. John Conyers, Chairman, H. Comm. On the Judiciary, 
(July 11, 2007).
    1404. Id.
    1405. 345 U.S.C. Sec. 1 (1953).
    1406. Frost and Florence, ``Reforming the State Secrets 
Privilege,'' American Constitution Society for Law And Policy, 
4 (Oct. 2008), available at http://www.acslaw.org/files/
Frost%20Florence%20Issue%20Brief.pdf.
    1407. Hibbits, ``Judge dismisses el-Masri CIA rendition 
suit on state secrets grounds,'' Jurist, available at http://
jurist.law.pitt.edu/paperchase/2006/05/judge-dismisses-el-
masri-cia-rendition.php.
    1408. Lanman, ``Secret Guarding,'' Slate, May 22, 2006, 
available at http://www.slate.com/id/2142155/.
    1409. Frost and Florence, ``Reforming the State Secrets 
Privilege,'' American Constitution Society for Law And Policy, 
4 (Oct. 2008), available at http://www.acslaw.org/files/
Frost%20Florence%20Issue%20Brief.pdf.
    1410. Priest, ``Secrecy Privilege Invoked in Fighting Ex-
Detainee's Lawsuit,'' Wash. Post, May 13, 2006, at A3.
    1411. El-Masri v. Tenet, 437 F. SUPP.2d 530 (E.D.Va. May 
12, 2006), aff'd sub nom. El-Masri v. U.S., 479 F.3d 296 (4th 
Cir. 2007), cert. denied 128 S. Ct. 373 (2007).
    1412. El-Masri, ``I Am Not A State Secret,'' L.A. Times, 
Mar. 3, 2007.
    1413. For a further discussion of the facts of the El-Masri 
and Arar renditions, please see Section 3.
    1414. Arar v. Ashcroft, 414 F. SUPP.2d 250 (E.D.N.Y. Feb. 
16, 2006), cert. denied 2006 WL 1875375 (E.D.N.Y. Jul. 05, 
2006), judgment aff'd 532 F.3d 157 (2nd Cir 2008), rehearing en 
banc granted (August 12, 2008).
    1415. Tim Harper, ``U.S. Ruling Dismisses Arar Lawsuit,'' 
Toronto Star, Feb. 17, 2006, available at http://
www.commondreams.org/headlines06/0217-01.htm.
    1416. For a further discussion of the Bush administration's 
warrantless wiretapping program, see Section 3.
    1417. Al-Haramain Islamic Foundation, Inc. v. Bush, 451 
F.Supp.2d 1215 (D.Or. Sep. 7, 2006), reversed and remanded 507 
F.3d 1190 (9th Cir. 2007), on remand sub nom. to In re National 
Security Agency Telecommunications Records Litigation, 564 
F.Supp.2d 1109 (N.D.Cal. Jul. 08, 2008).
    1418. According to public sources, the document summarized 
phone conversations monitored by the government between 
foundation lawyers and directors. Associated Press, ``Court: 
Charity Can't Use Call Log in Wiretap Case,'' USA Today, Dec. 
16, 2007, available at http://www.usatoday.com/news/washington/
2007-11-16-domestic-eavesdropping_N.htm.
    1419. During arguments before the Ninth Circuit, Justice 
Harry Pregerson asked whether the government was arguing that 
the courts could only ``rubber stamp'' the decisions of the 
Executive once state secrets privilege had been invoked. 
Siegel, ``State-secret Overreach,'' L.A. Times, Sept. 16, 2007, 
available at http://www.latimes.com/news/opinion/sunday/
commentary/la-op-siegel16sep16,0,4333818.story.
    1420. However, the Court of Appeals directed the lower 
courts (after a change of venue, the district court for the 
Northern District of California) to decide whether the 1978 
Foreign Intelligence Surveillance Act trumps presidential 
claims of secrecy. See Associated Press, ``Court: Charity Can't 
Use Call Log in Wiretap Case,'' USA Today, Dec. 16, 2007, 
available at http://www.usatoday.com/news/washington/2007-11-
16-domestic-eavesdropping_N.htm. Upon remand to the district 
court of northern California, renamed In re National Security 
Agency Telecommunications Records Litigation, Judge Walker 
ruled that FISA did preempt state secrets privilege, but 
plaintiffs couldn't use the document in question to establish 
themselves as ``aggrieved persons'' under FISA, and since the 
caselaw for the remedial measures in FISA was so poorly 
developed (and since there had been little factual development 
for purposes of litigation in the instant litigation), 
plaintiffs were given leave to file an amended complaint, which 
they did. The government responded with a third motion for 
summary judgment or to dismiss (Sep 30, 2008), and the 
plaintiffs opposed (October 17, 2008). The Court also held that 
``[The] legislative history [of FISA] is evidence of 
Congressional intent that FISA should displace federal common 
law rules such as the state secrets privilege with regards to 
matters within FISA's purview.''). See 564 F.Supp. 2d 1109, 
1120 (N.D.Cal. Jul. 2, 2008).
    1421. ``State secrets privilege upheld in whistleblower 
case,'' available at http://www.rcfp.org/news/2005/0509-foi-
states.html.
    1422. Giraldi, ``What FBI Whistle-blower Sibel Edmonds 
Found in Translation,'' Dallas Morning News, Feb. 17, 2008, 
available at http://www.dallasnews.com/sharedcontent/dws/dn/
opinion/points/stories/DN-
sibeledmonds_17edi.ART.State.Edition1.45b446a.html.
    1423. Holland, ``Supreme Court Rejects CIA Officer's 
Appeal,'' Associated Press, Jan. 9, 2006.
    1424. Oversight Hearing on Reform of the State Secrets 
Privilege, Before the Subcomm. on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong. (2008) (statement of Judith Loether).
    1425. Oversight Hearing on Reform of the State Secrets 
Privilege, Before the Subcomm. on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong. (2008).
    1426. Oversight Hearing on Reform of the State Secrets 
Privilege, Before the Subcomm. on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 
110th Cong. (2008) (statement submitted for the record by Louis 
Fisher, Specialist in Constitutional Law, Law Library of the 
Library of Congress).
    1427. Barone, Secrecy in the Bush Administration 39 (2006).
    1428. Id., at 39.
    1429. The increase in decisions to classify information 
resulting from the Administration's actions is diametrically 
opposed to the September 11 Commission's recommendations, which 
seek to bolster oversight of intelligence agencies.
    1430. Barone, Secrecy in the Bush Administration 40-41 
(2006).
    1431. Id.
    1432. Silverglate and Takei, ``Covering a Multitude of 
Sins,'' The Boston Phoenix, Apr. 30, 2004, available at http://
www.bostonphoenix.com/boston/news--features/top/features/
documents/03789077.asp.
    1433. Id.
    1434. Jacoby, ``Sen Graham: Bush covered up Saudi 
involvement in 9/11,'' Salon.com, Sept. 8, 2004, available at 
http://dir.salon.com/story/news/feature/2004/09/08/graham/
print.html.
    1435. Memorandum for The Secretary of State, The Secretary 
of the Treasury, The Secretary of Defense, The Attorney 
General, The Director of Central Intelligence, and the Director 
of the Federal Bureau of Investigation, Subject: Disclosures to 
the Congress, From President George W. Bush (Oct. 5, 2001) 
available at http://www.fas.org/sgp/news/2001/10/gwb100501.pdf.
    1436. Pierce, Mark and Sorrells, ``Lawmakers Unhappy About 
Bush's Curb on Classified Briefings,'' Congressional Quarterly 
Daily Monitor, Oct. 9, 2001.
    1437. ``Bush Easing Stand on Sharing of Secret Data,'' The 
New York Times, Oct. 13, 2001, available at http://
query.nytimes.com/gst/
fullpage.html?res=9501E4DC133FF930A25753C1A9679C8B63.
    1438. Chairman Conyers and other Members of the House 
Judiciary Committee repeatedly requested, and were denied, 
access for all Committee Members to classified documents 
related to the program in advance of congressional 
reauthorization of the Foreign Intelligence Surveillance Act. 
See, e.g., Letter from Rep. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, and 20 other Democratic Members of the 
H. Comm. on the Judiciary, to Alberto Gonzales, Att'y Gen., 
U.S. Dept. of Justice, (Jan. 19, 2007); and Letter from Rep. 
John Conyers, Jr., Chairman, H. Comm. on the Judiciary, to Fred 
Fielding, Counsel to the President, (Feb. 12, 2008). For 
further discussion of the Judiciary Committee's efforts to 
obtain this information, see Section 2 of this Report.
    1439. Hess, ``Bush opens wiretapping documents to House 
members,'' The Associated Press, Jan. 24, 2008.
    1440. See, e.g., Letter from Rep. John Conyers, Jr., 
Chairman, H. Comm. on the Judiciary, to Michael B. Mukasey, 
Att'y Gen., U.S. Dept. of Justice, (Sept. 10, 2008); Letter 
from Keith B. Nelson, Principal Deputy Assistant Att'y Gen., 
U.S. Dept. of Justice, to Sen. Patrick Leahy, Chairman, S. 
Comm. on the Judiciary, (Nov. 14, 2008).
    1441. Moving Toward a 21st Century Right-to-Know Agenda: 
Recommendations to President-elect Obama and Congress 36, OMB 
Watch (November 2008), available at http://www.ombwatch.org/
21strtkrecs.pdf.
    1442. Leonnig and Rich, ``U.S. Seeks Silence on CIA 
Prisons; Court Is Asked to Bar Detainees From Talking About 
Interrogations,'' Wash. Post, Nov. 4, 2008 at A1.
    1443. Lea, ``Inside the Wire,'' The Guardian, Feb. 26, 
2007, available at http://www.guardian.co.uk/books/2007/feb/26/
poetry.guantanamo.
    1444. ``Secrecy Hinders Progress of Terrorism Cases,'' OMB 
Watch, Vol. 8 No. 24, Dec. 4, 2007, available at http://
www.ombwatch.org/article/articleview/4107/1/1?TopicID=1.
    1445. Id.
    1446. Finn, ``Judge's Order Could Keep Public From Hearing 
Details of 9/11 Trials,'' Wash. Post, Jan. 7, 2009, at A2 
(emphasis added).
    1447. Id.
    1448. Id.
    1449. 5 U.S.C. Sec. 552.
    1450. Memorandum from Attorney General John Ashcroft, For 
Heads of all Federal Departments and Agencies, The Freedom of 
Information Act, Oct. 12, 2001, available at http://
www.usdoj.gov/oip/foiapost/2001foiapost19.htm.
    1451. Memorandum from Andrew H. Card, Jr., Assistant to the 
President and Chief of Staff, For Heads of Executive 
Departments and Agencies, March 19, 2002, available at http://
www.usdoj.gov/oip/foiapost/2002foiapost10.htm.
    1452. See Part II (B) of Section 5 for a further discussion 
of the Office of the Vice President's confrontation with 
National Archives.
    1453. 44 U.S.C. Sec. Sec. 2201-2207.
    1454. Exec. Order No. 13233, Further Implementation of the 
Presidential Records Act, Nov. 1, 2001, available at http://
www.whitehouse.gov/news/releases/2001/11/20011101-12.html.
    1455. Professor Laurent Sacharoff has argued that former 
Presidents may not have the Constitutional authority to assert 
executive privilege after leaving office:

    The Constitution does not mention executive privilege, but 
the Court in United States v. Nixon (citations omitted) found 
that executive privilege derives from Article II of the 
Constitution. But the Term Clause of Article II, Section 1 
limits a President's term to four years, and the Twenty-Second 
Amendment states that a person can be elected President only 
twice. Since these constitutional provisions end a particular 
President's Article II powers, and since executive privilege is 
incident to Article II power, it follows that the President 
loses the right personally to assert executive privilege after 
he leaves office. The privilege itself of course survives the 
tenure of any particular President, but the holder of the 
privilege shifts entirely from the former to the new President. 
Article II, Section 1 vests the executive power in the 
President, not the former President

Sacharoff, ``Former Presidents and Executive Privilege,'' 
(December 2008) (unpublished) at 5.

    1456. The position, that the Office of the Vice President 
exists in some sort of netherworld between the legislative and 
executive branches, was articulated by Vice President Cheney as 
early as 2004. In the 2004 directory of senior government 
officials known as The Plum Book, Vice President Cheney's 
position was articulated as follows: ``The vice presidency is a 
unique office that is neither a part of the executive branch 
nor a part of the legislative branch, but is attached by the 
Constitution to the latter.''
    It is correct that the vice president is mentioned in 
Article II of the Constitution as part of the Executive Branch, 
but is given legislative powers in Art. 1, Sec. 3, which 
establishes the Senate. Historically, however, the office of 
the vice president has always been treated as part of the 
Executive Branch, and subject to the Executive Branch's rules 
and regulations. Vice President Cheney has taken a position 
that his office enjoys the benefits of both branches, while 
being subject to the requirements of neither.
    1457. The order requires any ``entity within the executive 
branch'' that comes into the possession of classified 
information to report annually how much it is keeping secret.
    1458. Baker, ``Cheney Defiant on Classified Material, Wash. 
Post, June 22, 2007, at A1. The expected required transfer of 
the Bush White House's electronic messages and documents to the 
National Archives at the end of his Administration has been 
imperiled by lawsuits, some of which contest the 
Administration's assertion in federal court in December 2008 
that Vice President Cheney alone may determine what constitutes 
vice presidential records or personal records and how his 
records will be created, maintained, managed, and disposed, 
without outside challenge or judicial review. See Smith, ``Bush 
E-mails May Be Secret a Bit Longer: Legal Battles, Technical 
Difficulties Delay Required Transfer to Archives,'' Wash. Post, 
Dec. 21, 2008, A1.
    1459. Silva, ``Cheney Keeps Classification Activity 
Secret,'' The Chicago Tribune, May 27, 2006, at C4; Letter from 
Henry A. Waxman, Chairman, H. Comm. On Oversight and Gov't 
Reform, to Richard B. Cheney, Vice President of the United 
States, (June 21, 2007).
    1460. Letter from Shannen W. Coffin, Counsel to the Vice 
President, to Sen. Patrick Leahy, Chairman, S. Comm. on the 
Judiciary, (Aug. 20, 2007).
    1461. Associated Press, ``Cheney Claims Power to Decide His 
Public Records,'' N.Y. Times, Dec. 18, 2008.
    1462. Texas Governor George W. Bush's campaign focused on 
issues of ``compassionate conservatism,'' his stated view that 
conservative policies could be brought to bear to address 
social ills. Another focus of his campaign was the perceived 
ethical transgressions of the Clinton Administration, and the 
Starr Investigation in particular. Governor Bush promised to 
restore ``honor and dignity to the White House.'' Capital Gang: 
Lieberman Takes the Heat; Bush, McCain Meet in Arizona; Are the 
Democrats Getting Tough on Hollywood?, (CNN television 
broadcast Aug. 13, 2000), available at http://
transcripts.cnn.com/TRANSCRIPTS/0008/13/cg.00.html.
    1463. See Commission on Presidential Debates, Unofficial 
Debate Transcript, Oct. 3, 2000, available at http://
www.debates.org/pages/trans2000a.html. Vice President Cheney 
also stated in an interview, in the midst the 2000 presidential 
campaign, that the U.S. should not act as though ``we were an 
imperialist power, willy-nilly moving into capitals in that 
part of the world, taking down governments.'' Meet the Press: 
Interview with Dick Cheney, (NBC television broadcast Aug. 27, 
2000).
    1464. Burrough, Peretz, Rose & Wise, ``The Path to War,'' 
Vanity Fair, May 1, 2004.
    1465. Clarke, Against All Enemies: Inside America's War on 
Terror 32 (2004).
    1466. Meet the Press: Interview with General Wesley Clark, 
(NBC television broadcast Jun. 15, 2003), available at http://
securingamerica.com/ccn/node/1147.
    1467. The 9-11 Commission Report: Final Report of the 
National Commission on Terrorist Attacks Upon the United States 
559-560 (2004), available at http://www.9-11commission.gov/
report/911Report.pdf.
    1468. Meet the Press, (NBC television broadcast Dec. 9, 
2001). Even after the invasion, on October 10, 2003, the Vice 
President stated that Saddam Hussein ``had an established 
relationship with al Qaeda.'' Fox News: Interview with Vice 
President Dick Cheney, (Fox News television broadcast Jun. 28, 
2004), available at http://www.foxnews.com/story/
0,2933,123794,00.html).
    1469. President George W. Bush, State of the Union Address, 
Jan. 29, 2002, available at http://www.whitehouse.gov/news/
releases/2002/01/20020129-11.html.
    1470. Id.
    1471. President George W. Bush, Graduation Speech at West 
Point, Jun. 1, 2002, available at http://www.whitehouse.gov/
news/releases/2002/06/20020601-3.html. He further noted that 
``[t]he war on terror will not be won on the defensive. We must 
take the battle to the enemy . . . And this nation will act.'' 
Id.
    1472. On multiple occasions, Vice President Cheney and Mr. 
Libby questioned analysts studying alleged Iraq's weapons 
programs and links to al-Qaeda. Pincus, ``Some Iraq Analysts 
Felt Pressure From Cheney,'' Wash. Post, Jun. 5, 2003, at A1.
    1473. Strobel, ``Some in Bush administration have 
misgivings about Iraq policy,'' Knight Ridder Newspapers, Oct. 
7, 2002, available at http://www.mcclatchydc.com/128/story/
8592.html. See also, Suskind, ``Without a Doubt,'' N.Y. Times 
Magazine, Oct. 17, 2004, at 44; Treasury Secretary Paul O'Neill 
recounted, ``If you operate in a certain way--by saying this is 
how I want to justify what I've already decided to do, and I 
don't care how you pull it off--you guarantee that you'll get 
faulty, one-sided information . . . [y]ou don't have to issue 
an edict, or twist arms, or be overt.''; Kessler, ``CIA Leak 
Linked to Dispute over Iraq Policy,'' Wash. Post, Oct. 25, 
2005, at A3, Lawrence Wilkerson, former Chief of Staff to 
Secretary of State Colin Powell stated:

    The case that I saw for four-plus years was a case I have 
never seen in my studies of aberrations, bastardizations, 
perturbations, changes to the national security decision-making 
process, . . . What I saw was a cabal between the vice 
president of the United States, Richard Cheney, and the 
Secretary of Defense, Donald Rumsfeld, on critical issues that 
made decisions that the bureaucracy did not know were being 
made . . . [when a decision was presented to the bureaucracy], 
it was presented in such a disjointed, incredible way that the 
bureaucracy often didn't know what it was doing as it moved to 
carry them out. Id.

    1474. For example, on August 22, 2002, the President stated 
that he was willing to ``look at all options.'' Nagourney & 
Shanker, ``A Patient Bush Says He'll Weigh All Iraq Options,'' 
N.Y. Times, Aug. 22, 2002, at A1. Later that year, he stated, 
``Of course, I haven't made up my mind we're going to war with 
Iraq.'' President George W. Bush, Remarks on Terrorism 
Insurance, Oct. 1, 2002, available at http://
www.whitehouse.gov/news/releases/2002/10/20021001-1.html.
    1475. Rich, ``It's Bush-Cheney, Not Rove-Libby,'' N.Y. 
Times, Oct. 16, 2005, available at http://select.nytimes.com/
2005/10/16/opinion/16rich.html.
    1476. S. Rep. 110-345, at 4 (2008).
    1477. Vice President Cheney stated that ``it is now public 
that, in fact, [Saddam Hussein] has been seeking to acquire, 
and we have been able to intercept and prevent him from 
acquiring through this particular channel, the kinds of 
[aluminum] tubes that are necessary to build a centrifuge . . . 
We do know, with absolute certainty, that [Saddam] is using his 
procurement system to acquire the equipment he needs in order 
to enrich uranium to build a nuclear weapon.'' Meet the Press: 
Interview with Vice President Dick Cheney, (NBC television 
broadcast Sept. 8, 2002).
    . . .National Security Advisor Condoleezza Rice told CNN, 
``We do know that there have been shipments going into . . . 
Iraq, for instance, of aluminum tubes that really are only 
suited to--high quality aluminum tools that are only really 
suited for nuclear weapons programs, centrifuge programs.'' CNN 
Late Edition: Interview with Condoleezza Rice, CNN television 
broadcast Sept. 8, 2002).
    President Bush would later state in his 2003 State of the 
Union Address that Saddam Hussein was trying to buy tubes 
``suitable for nuclear weapons production.'' President George 
W. Bush, State of the Union Address, Jan. 28, 2003, available 
at http://www.whitehouse.gov/news/releases/2003/01/20030128-
19.html.
    1478. Barstow, Broad, & Gerth, ``How the White House 
Embraced Disputed Iraqi Arms Intelligence,'' N.Y. Times, Oct. 
3, 2004, at A1. ``The tubes, the report asserted, `have little 
use other than for a uranium enrichment program.'''
    1479. President George W. Bush, Remarks at the U.N. General 
Assembly, Sept. 12, 2002, available at http://
www.whitehouse.gov/news/releases/2002/09/20020912-1.html. He 
also said that the U.S. would not allow any terrorist or tyrant 
to threaten civilization with weapons of mass murder. President 
George W. Bush, Remarks to the Nation on the Anniversary of 
Terrorist Attacks, Sept. 11, 2002, available at http://
www.whitehouse.gov/news/releases/2002/09/20020911-3.html.
    1480. S. Rep. 110-345, at 75 (2008).
    1481. Id. at 29.
    1482. Letter from Dr. Naji Sabri, Minister of Foreign 
Affairs, Iraq, to Kofi Annan, U.N. Secretary-General, Sept. 16, 
2002, available at http://www.sfgate.com/cgi-bin/
article.cgi?f=/news/archive/2002/09/16/
international1954EDT0706.DTL.
    1483. President George W. Bush, President Discusses Iraq, 
Domestic Agenda with Congressional Leaders, Sept. 18, 2002, 
available at http://www.whitehouse.gov/news/releases/2002/09/
20020918-1.html. The next day, the President stated how 
important it was that Congress pass a resolution authorizing 
the use of force in Iraq. President George W. Bush, President 
Bush to Send Iraq Resolution to Congress Today, Sept. 19, 2002, 
http://www.whitehouse.gov/news/releases/2002/09/20020919-
1.html.
    1484. President George W. Bush, President Bush, Colombia 
President Uribe Discuss Terrorism, Sept. 25, 2002, available at 
http://www.whitehouse.gov/news/releases/2002/09/20020925-
1.html.
    1485. Schmitt, ``Rumsfeld Says U.S. Has `Bulletproof' 
Evidence of Iraq's Links to Al Qaeda,'' N.Y. Times, Sept. 28, 
2002, at A9; In September 19, 2002, testimony before the Senate 
Armed Services Committee, the Defense Secretary claimed ``We 
know that al Qaeda is operating in Iraq today, and that little 
happens in Iraq without the knowledge of the Saddam Hussein 
regime.'' Hearing on U.S. Policy on Iraq: Before the U.S. 
Senate Comm. on Armed Services, 107th Cong. (2002) (statement 
of Donald Rumsfeld, Secretary of Defense). Secretary Powell 
also described a ``potentially . . . sinister nexus between 
Iraq and the al Qaeda terrorist network, a nexus that combines 
classic terrorist organizations and modern methods of murder.'' 
Judis and Ackerman, ``The First Casualty,'' The New Republic, 
June 30, 2003. And on September 25, 2002, Rice insisted, 
``There clearly are contacts between al Qaeda and Iraq . . . 
There clearly is testimony that some of the contacts have been 
important contacts and that there's a relationship there.'' 
Rice: Iraq trained al Qaeda in chemical weapons, CNN.com, Sept. 
26, 2002, available at http://archives.cnn.com/2002/US/09/25/
us.iraq.alqaeda/.
    1486. Stevenson, ``After The War: C.I.A. Uproar; White 
House Tells How Bush Came to Talk of Iraq Uranium,'' N.Y. 
Times, July 19, 2003, at A6. See also Senior Administration 
Official Holds Background Briefing on Weapons of Mass 
Destruction in Iraq, As Released By the White House, July 18, 
2003, available at http://www.fas.org/irp/news/2003/07/
wh071803.html.
    1487. Stroble, ``Some in Bush administration Have 
Misgivings about Iraq Policy,'' Knight Rider Newspapers, Oct. 
7, 2002, available at http://www.mcclatchydc.com/128/story/
8592.html.
    1488. President George W. Bush, Remarks by the President on 
Iraq, Cincinnati, Ohio, Oc. 7, 2002, available at http://
www.whitehouse.gov/news/releases/2002/10/20021007-8.html.
    1489. H.J. Res. 114, 107th Cong. 2d Sess. (2002) (enacted 
as Authorization for Use of Military Force Against Iraq 
Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 
(2002)). Several Members of Congress, including Ranking Member 
Conyers, filed suit in Federal court arguing the resolution was 
Constitutionally deficient. Among other things, the suit 
alleged that the text of the resolution did not explicitly 
invoke the War Powers Act and unconstitutionally delegated the 
congressional power to declare war to the Executive Branch. The 
suit was ultimately unsuccessful. Doe v. Bush, 323 F.3d 133 
(1st Cir. 2003). While substantial questions remain about 
whether this resolution appropriately authorized the use of 
force in Iraq, it has come to be known as a joint resolution 
for the use of force and will be referred to as such in this 
report.
    1490. See id.
    1491. President George W. Bush, Remarks at the Signing of 
the Iraq Resolution, Oct. 16, 2002, available at http://
www.whitehouse.gov/news/releases/2002/10/20021016-1.html.
    1492. S.C. Res 1441, U.N. SCOR, 4644th mtg., S/2002/1198 
(2002), http://www.un.int/usa/sres-iraq.htm. The resolution 
made clear that only the United Nations Security Council had 
the right to take punitive action against Iraq in the event of 
noncompliance.
    1493. Mohamed ElBaradei, Report to the U.N. Security 
Council, Jan. 27, 2003, available at http://www.un.org/News/dh/
iraq/elbaradei27jan03.htm. According to the IAEA, the tubes 
were not suitable for manufacturing centrifuges as the 
Administration had claimed.
    1494. President George W. Bush, State of the Union Address, 
Jan. 28, 2003, available at www.whitehouse.gov/news/releases/
2003/01/20030128-19.html.
    1495. Secretary of State Colin Powell, Remarks to the U.N. 
Security Council, Feb. 5, 2003, available at http://
www.whitehouse.gov/news/releases/2003/02/20030205-1.html. 
During his speech, Secretary Powell assured the world that, 
``every statement I make today is backed up by sources, solid 
sources. These are not assertions. What we're giving you are 
facts and conclusions based on solid intelligence.''
    1496. Id.
    1497. Id.
    1498. Meet the Press: Interview with Vice President Cheney, 
(NBC television broadcast Mar. 16, 2003), available at http://
msnbc.msn.com/id/3080244/s.
    1499. Letter from President George W. Bush to Congress, 
Mar. 18, 2003, available at http://www.whitehouse.gov/news/
releases/2003/03/20030319-1.html. The letter stated, ``Reliance 
by the United States on further diplomatic and other peaceful 
means alone will neither (A) adequately protect the national 
security of the United States against the continuing threat 
posed by Iraq nor (B) likely lead to enforcement of all 
relevant United Nations Security Council resolutions regarding 
Iraq.''
    1500. Hearing to Receive Testimony on Efforts to Determine 
the Status of Iraqi Weapons of Mass Destruction and Related 
Programs Before the S. Comm. On Armed Services, 108th Cong. 57 
(2004) (statement of David Kay) (transcript available at http:/
/www.cnn.com/2004/US/01/28/kay.transcript/).
    1501. Id.
    1502. Letter from Laurence Silberman and Charles Robb, Co-
Chairs, The Commission on the Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction, to George 
W. Bush, President of the United States (Mar. 31, 2005), 
available at http://www.wmd.gov/report/wmd_1report.pdf.
    1503. The Situation Room: Debate Continues Over Iraq 
Withdrawal; Holiday Crunch Hits Home; Hillary vs. Condoleeza in 
2008?, (CNN television broadcast Nov. 23, 2005), available at 
http://transcripts.cnn.com/TRANSCRIPTS/0511/23/sitroom.01.html.
    1504. Minority Staff of H. Comm. on Gov't Reform, 109th 
Cong., Iraq on the Record: The Bush Administration's Public 
Statements on Iraq, H. Comm. on Gov't Reform (2004), available 
at http://oversight.house.gov/IraqOnTheRecord/
pdf_admin_iraq_on_the_ record_rep.pdf.
    1505. Burrough, Peretz, Rose & Wise, ``The Path to War,'' 
Vanity Fair, May 1, 2004; Pincus & Priest, ``Some Iraq Analysts 
Felt Pressure From Cheney Visits,'' Wash. Post, June 5, 2003, 
at A1. The Washington Post described the pressure on 
intelligence officials from a barrage of high-ranking Bush 
Administration officials:

    Former and current intelligence officials said they felt a 
continual drumbeat, not only from Cheney and Libby, but also 
from Deputy Defense Secretary Paul D. Wolfowitz, Feith and less 
so from CIA Director George J. Tenet, to find information or 
write reports in a way that would help the administration make 
the case that going into Iraq was urgent. ``They were the 
browbeaters,'' said a former defense intelligence official who 
attended some of the meetings in which Wolfowitz and others 
pressed for a different approach to the assessments they were 
receiving. ``In interagency meetings,'' he said, ``Wolfowitz 
treated the analysts' work with contempt.''

    1506. Burrough, Peretz, Rose & Wise, ``The Path to War,'' 
Vanity Fair, May 1, 2004.
    1507. Chairman Rockefeller additional views, S. Rep. No. 
110-345, at 455-456 (2008). Chairman Rockefeller's Additional 
Views also reported that, in his interview with SSCI, CIA 
Director Tenet confirmed that some officials at the CIA had 
complained to him about the repetitive tasking. Id.
    1508. Hearing on ``The 9/11 Plot'' Before the National 
Commission on Terrorist Attacks Upon the United States, June 
16, 2004, 70 (statement of Dietrich Snell) available at http://
govinfo.library.unt.edu/911/archive/hearing12/9-11Commission_ 
Hearing_2004-06-16.pdf.
    1509. Id.
    1510. Hearing on ``The 9/11 Plot'' Before the National 
Commission on Terrorist Attacks Upon the United States, June 
16, 2004, 7 (statement of Douglas MacEachin) available at 
http://govinfo.library.unt.edu/911/archive/hearing12/9-
11Commission_ Hearing_2004-06-16.pdf.
    1511. The 9-11 Commission Report: Final Report of the 
National Commission on Terrorist Attacks Upon the United States 
66 (2004), available at http://www.9-11commission.gov/report/
911Report.pdf.
    In a footnote to its conclusions regarding the lack of a 
``collaborative operational relationship'' (Id.) between Iraq 
and al Qaeda, the 9-11 Commission also noted that the ``most 
detailed information alleging such ties came from an al Qaeda 
operative who recanted much of his original information.'' Id. 
at 470 (Footnote no. 76).
    1512. S. Rep. No. 108-301, at 3 (2004).
    1513. Id. at 347.
    1514. Id. at 88.
    1515. Id., at 91-92. The Department concluded that because 
of the tubes' dimensions and mass, the tubes were consistent 
for use with standard rockets but that it would be too arduous, 
time-consuming, and expensive to use them as nuclear 
centrifuges. See also Barstow, Broad, & Gerth, ``How the White 
House Embraced Disputed Iraqi Arms Intelligence,'' N.Y. Times, 
Oct. 3, 2004 available at http://www.nytimes.com/2004/10/03/
international/middleeast/03tube.html.
    1516. Id. at 91-92. Furthermore, in the October 2002 NIE, 
the State Department unequivocally concluded, ``the tubes are 
not intended for use in Iraq's nuclear weapons program'' and 
that it was ``far more likely that the tubes are intended for 
another purpose, most likely the production of artillery 
rockets.'' National Intelligence Council, Iraq's Continuing 
Program for Weapons of Mass Destruction: Key Judgements, (From 
NIE 2002-16HC, declassified July 18, 2003). Even internal CIA 
memoranda from as early as June 2001 contained caveats, 
``divergent views,'' and discussions of disagreements about the 
tubes' intended use. Commission on the Intelligence of the U.S. 
Regarding Weapons of Mass Destruction, Report to the President 
of the United States (2005). In the end, according to the 2008 
Senate Intelligence Committee's review of prewar intelligence, 
the IC never assessed whether Iraq possessed nuclear weapons. 
S. Rep. No. 110-345, at 40-41 (2008).
    1517. Rose, ``Bush and Blair Made Secret Pact for Iraq 
War,'' The Observer, Apr. 4, 2004, at 1.
    1518. Memorandum from David Manning, U.K. Foreign Policy 
Advisor, to the Prime Minister, Mar. 14, 2002, available at 
http://downingstreetmemo.com/docs/manning.pdf. ``Condi'' refers 
to Secretary of State Condoleezza Rice.
    1519. Memorandum from Jack Straw, U.K. Foreign Secretary, 
to the Prime Minister, Mar. 25, 2002, available at http://
downingstreetmemo.com/docs/straw.pdf.
    1520. Memorandum from Cabinet Office, Iraq: Conditions for 
Military Action, July 21, 2002, available at http://
www.timesonline.co.uk/tol/news/world/article531957.ece.
    1521. Testimony of Ambassador Joseph C. Wilson at June 16, 
2005, Proceeding Regarding the Downing Street Memos at 15.
    1522. O'Rourke, ``Downing Street Memo a Growing Problem for 
Bush,'' McClatchy Newspapers, June 17, 2005.
    1523. Press Release of S. Select Comm. On Intelligence, 
June 5, 2008, available at http://intelligence.senate.gov/
press/record.cfm?id=298775. The same day, the Committee also 
released another report of the ``Phase II'' of the 
investigation into prewar intelligence, titled ``Intelligence 
Activities Relating to Iraq Conducted By The Policy 
Counterterrorism Evaluation Group and the Office of Special 
Plans Within the Office of the Under Secretary of Defense for 
Policy.'' That report detailed ``inappropriate, sensitive 
intelligence activities conducted by the DoD's Office of the 
Undersecretary of Defense for Policy, without the knowledge of 
the Intelligence Community or the State Department.'' Id.
    1524. S. Rep. No. 110-345, at 1 (2008).
    1525. These speeches include:
     Vice President Richard Cheney, Speech in Tennessee 
to the Veterans of Foreign Wars National Convention, August 26, 
2006.
     President George W. Bush, Statement before the 
United Nations General Assembly, September 12, 2002.
     President George W. Bush, State of the Union 
address, January 28, 2003.
    1526. S. Rep. No. 110-345, at 2 (2008).
    1527. S. Rep. No. 110-345, at 2-3 (2008).
    1528. Press Release of S. Select Comm. On Intelligence, 
June 5, 2008, available at http://intelligence.senate.gov/
press/record.cfm?id=298775.
    1529. S. Rep. No. 110-345, at 63 (2008), quoting Feb. 6, 
2002, and Feb. 7, 2002 DIA Defense Intelligence Summaries 
(DITSUM) (No. 031-02 and No. 32-012).
    1530. In February of 2002, intelligence sources began to 
question al-Libi's credibility. A DIA defense intelligence 
report noted that al-Libi:

    lacks specific details on the Iraqi involvement, the CBRN 
materials associated with the assistance, and the location 
where the training occurred. It is possible he does not know 
any further details; it is more likely this individual is 
intentionally misleading debriefers . . . Saddam's regime is 
intensely secular and is wary of Islamic revolutionary 
movements. Moreover, Baghdad is unlikely to provide assistance 
to a group it cannot control.

S. Rep. No. 110-345, at 65 (2008), quoting Feb. 22, 2002 DITSUM 
(No. 044-02).
    1531. Press Release of S. Select Comm. On Intelligence, 
June 5, 2008, available at http://intelligence.senate.gov/
press/record.cfm?id=298775 (emphasis added).
    1532. S. Rep. No. 110-345, at 76 (2008), quoting National 
Intelligence Estimates, Iraqi Military Capabilities through 
2003, (1999). In addition, the intelligence community thought 
that Saddam Hussein would decide to use WMDs only when he felt 
his personal survival was at risk and after having exhausted 
political, military, and diplomatic options. S. Rep. No. 110-
345, at 76 (2008), quoting National Intelligence Estimates, 
Iraq's Continuing Programs for Weapons of Mass Destruction 
October 2002.
    1533.Press Release of S. Select Comm. On Intelligence, June 
5, 2008, available at http://intelligence.senate.gov/press/
record.cfm?id=298775.
    1534. Id.
    1535. S. Rep. No. 110-345, at 57 (2008).
    1536. Id. at 31-32, 35.
    1537. Id. at 38.
    1538. Id. at 50.
    1539. Press Release of S. Select Comm. On Intelligence, 
June 5, 2008, available at http://intelligence.senate.gov/
press/record.cfm?id=298775.
    1540. S. Rep. No. 110-345, at 70-71 (2008), quoting CIA 
SPWR dated May 14, 2002 titled, Iraq: Strenthening Its 
Terrorist Capabilities. The CIA also concluded that ``the 
[f]ragmentary intelligence reporting points to indirect ties 
between Baghdad and the 11 September hijackers but offers no 
conclusive indication of Iraqi complicity or foreknowledge. 
Foreign government service sensitive reporting in September 
indicated that Muhammad Atta met with an IIS officer in Prague 
in April of 2001.''
    1541. S. Rep. No. 110-345, at 71 (2008), quoting DIA, July 
31, 2002, Special Analysis, Iraq's Inconclusive Ties to al-
Qaida.
    1542. Pincus and Allen, ``C.I.A. Got Uranium Reference Cut 
in October; Why Bush Cited It In January Is Unclear,'' N.Y. 
Times, July 13, 2008.
    1543. S. Rep. No. 110-345, at 11 (2008).
    1544. Id. at 12. Even after the IAEA Chair formally 
announced that the documents underlying the assertion were 
forgeries, the Vice President and the President continued to 
cite the supposed purchase as evidence of Iraq's unclear 
weapons program. Dozens of interviews with intelligence 
officials and policymakers have proved that the documents, and 
their claims, had been irrefutably forged. (Eisner, ``How a 
Bogus Letter Became a Case for War,'' Washington Post, Apr. 3, 
2007, at A1. Eisner describes that the documents' authenticity 
had been dismissed by as early as February 2002 within the 
intelligence community.) Although the distributor of the 
documents, identified by the Italian government in November 
2005 as Italian spy Rocco Martino has been unclovered, the 
source and rationale for the documents remains unknown. 
(Sciolino & Povoledo, ``Source of Forged Niger-Iraq Uranium 
Documents Identified,'' N.Y. Times, Nov. 4, 2005, available at 
http://www.nytimes.com/2005/11/04/international/europe/
04italy.html?scp=1&sq=niger%20forgery&st=cse).
    1545. Executive Power and its Constitutional Limitations: 
Hearing before the H. Comm. on the Judiciary, 110th Cong. 
(2008) (statement of Rep. Dennis Kucinich).
    1546. Executive Power and its Constitutional Limitations: 
Hearing before the H. Comm. on the Judiciary, 110th Cong (2008) 
(statement of Vincent Bugliosi).
    1547. Executive Power and its Constitutional Limitations: 
Hearing before the H. Comm. on the Judiciary, 110th Cong (2008) 
(statement of Rep. Elizabeth Holtzman).
    1548. Suskind, The Way of the World: A Story of Truth and 
Hope in an Age of Extremism (2008).
    1549. See Letters from Rep. John Conyers, Jr., Chairman, H. 
Comm. on the Judiciary, to George Tenet, Rob Richer, John 
Maguire, A. B. ``Buzzy'' Krongard, John Hanna and I. Lewis 
Libby, Aug. 20, 2008.
    1550. See, e.g., Letter from Rob Richer to Rep. John 
Conyers, Jr., Chairman, H. Comm. on the Judiciary, Sept. 1, 
2008.
    1551. Memorandum regarding the President's Claim that Iraq 
Sought Uranium from Niger, Henry A. Waxman, Chairman, H. Comm. 
on Oversight and Gov't Reform, Dec. 18, 2008.
    1552. Id. at 2.
    1553. Id. at 7-8.
    1554. Karl, ``Exclusive: Cheney Holds Hardline Stance,'' 
ABC News, Dec. 15, 2008, available at http://abcnews.go.com/WN/
story?id=6464919&page=1.
    1555. Raddatz, ``Bush 'Not Insulted' By Thrown Shoes,'' ABC 
News, Dec. 14, 2008, available at http://abcnews.go.com/
print?id=6460837.
    1556. Id.
    1557. H. Comm. on Oversight and Gov't Reform, Subpoena to 
Condoleezza Rice, Secretary of State, (April 25, 2007).
    1558. H. Comm. on the Judiciary, Subpoena to Harriet Miers, 
former Counsel to the President (June 13, 2007).
    1559. H. Comm. on the Judiciary, Subpoena to Joshua Bolten, 
White House Chief of Staff, or appropriate custodian of records 
(June 13, 2007).
    1560. S. Comm. on the Judiciary Subpoena to Karl Rove, 
White House Deputy Chief of Staff (June 26, 2007).
    1561. H. Comm. on Oversight and Gov't Reform Subpoena to 
Stephen L. Johnson, Administrator, U.S. Environmental 
Protection Agency (Mar. 13, 2008).
    1562. H. Comm. on Oversight and Gov't Reform Subpoena to 
Susan Dudley, Administrator, Office of Information and 
Regulatory Affairs, White House Office of Management and Budget 
(Apr. 16, 2008).
    1563. H. Comm. on Oversight and Gov't Reform Subpoena to 
Stephen Johnson, Administrator, Environmental Protection Agency 
(Apr. 9, 2008); H. Comm. on Oversight and Gov't Reform Subpoena 
to Stephen Johnson, Administrator, Environmental Protection 
Agency (May 5, 2008).
    1564. H. Comm. on the Judiciary Subpoena to Karl Rove, 
White House Deputy Chief of Staff (May 22, 2008).
    1565. H. Comm. on Oversight and Gov't Reform Subpoena to 
Michael B. Mukasey, Att'y Gen. of the United States (June 16, 
2008).
    1566. H. Comm. on the Judiciary Subpoena to Michael B. 
Mukasey, Att'y Gen. of the United States (June 27, 2008).
    1567. S. Comm. on the Judiciary Subpoena to Michael B. 
Mukasey, Att'y Gen. of the United States (Oct. 21, 2008).
    1568. Huq, Twelve Steps to Restore Checks and Balances, 
Report by the Brennan Center for Justice at New York University 
School of Law 15 (2008).
    1569. Giraldi, ``What FBI Whistle-blower Sibel Edmonds 
Found in Translation,'' Dallas Morning News, Feb. 17, 2008, 
available at http://www.dallasnews.com/sharedcontent/dws/dn/
opinion/points/stories/DN-
sibeledmonds_117edi.ART.State.Edition1.45b446a.html.
    1570. See El-Masri v. Tenet, 437 F.Supp.2d 530 (E.D.Va. May 
12, 2006), aff'd sub nom. El-Masri v. U.S., 479 F.3d 296 (4th 
Cir. 2002), cert. denied 128 S.Ct. 373 (2007).
    1571. See Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 
Feb. 16, 2006), cert. denied 2006 WL 1875375 (E.D.N.Y. Jul. 05, 
2006), judgment aff'd 532 F.3d 157 (2nd Cir 2008), rehearing en 
banc granted (August 12, 2008).
    1572. See Al-Haramain Islamic Foundation, Inc. v. Bush, 451 
F.Supp.2d 1215 (D.Or. Sep. 7, 2006), reversed and remanded 507 
F.3d 1190 (9th Cir. 2007), on remand sub nom. to In re National 
Security Agency Telecommunications Records Litigation, 564 
F.Supp.2d 1109 (N.D.Cal. Jul. 08, 2008).
    1573. See Part II (B) of Section 5 for a further discussion 
of Executive Order 13292.
    1574. See Part II (B) of Section 5 for a further discussion 
of the weakening of FOIA under the Bush Administration.
    1575. See Part II (B) of Section 5 for a further discussion 
of Executive Order 13233.
    1576. See Part II (B) of Section 5 for a further discussion 
of the Office of the Vice President's refusal to comply with 
disclosure obligations and its fights with the National 
Archives.
    1577. Meet the Press: Interview with the Vice President, 
(NBC television broadcast Sept. 8, 2002).
    1578. President George W. Bush, President George Bush 
Discusses Iraq in National Press Conference, Mar. 6, 2003, 
available at http://www.whitehouse.gov/news/releases/2003/03/
20030306-8.html.
    1579. Rose, ``Bush and Blair Made Secret Pact for Iraq 
War,'' The Observer, Apr. 4, 2004, at 1.
    1580. Memorandum from David Manning, U.K. Foreign Policy 
Advisor, to the Prime Minister, Mar. 14, 2002, available at 
http://downingstreetmemo.com/docs/manning.pdf.
    1581. Memorandum from Jack Straw, U.K. Foreign Secretary, 
to the Prime Minister, Mar. 25, 2002, available at http://
downingstreetmemo.com/docs/straw.pdf.
    1582. Memorandum from Cabinet Office, July 21, 2002, 
available at http://www.timesonline.co.uk/tol/news/world/
article531957.ece.
    1583. Remarks Prior to Discussions With President Alvaro 
Uribe of Colombia and an Exchange With Reporters, 2002 Pub. 
Papers, at 1657 (September 25, 2002).
    1584. Schmitt, ``Rumsfeld Says U.S. Has `Bulletproof' 
Evidence of Iraq's Links to Al Qaeda,'' N.Y. Times, Sept. 28, 
2002, at A9.
    1585. S. Rep. No. 110-345, at 63 (2004), quoting February 
6, 2002, and February 7, 2002, DIA Defense Intelligence 
Summaries (DITSUM) (No. 031-02 and No. 32-012).
    1586. The 9-11 Commission Report: Final Report of the 
National Commission on Terrorist Attacks Upon the United States 
576 (2004), available at http://www.9-11commission.gov/report/
911Report.pdf.
    1587. Meet the Press, (NBC television broadcast Dec. 9, 
2001).
    1588. The 9-11 Commission Report: Final Report of the 
National Commission on Terrorist Attacks Upon the United States 
579 (2004), available at http://www.9-11commission.gov/report/
911Report.pdf.
    1589. President George W. Bush, Remarks by the President on 
Iraq, Cincinnati, Ohio, Oct. 7, 2002, available at http://
www.whitehouse.gov/news/releases/2002/10/20021007-8.html.
    1590. Secretary of State Colin Powell, Remarks to the U.N. 
Security Council, Feb. 5, 2003, available at http://
www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
    1591. S. Rep. No. 110-345, at 65 (2008), quoting DITSUM 
(No. 044-02 of February 22, 2002.
    1592. S. Rep. No. 110-345, at 75 (2008), quoting 
President's Remarks at the United Nations General Assembly, 
Sept. 12, 2002.
    1593. S. Rep. No. 110-345, at 76 (2008), quoting National 
Intelligence Estimates, Iraqi Military Capabilities through 
2003, 1999.
    1594. Vice President Cheney and Condoleezza Rice also 
referred several times to Iraq's alleged effort to purchase 
uranium from Niger in order to convince the American public 
that Iraq's nuclear weapons program was active. (Cheney, Jan. 
29, 2003, ``Saddam Hussein recently found to have sought 
uranium from Africa.'')
    1595. Pincus and Allen, ``C.I.A. Got Uranium Reference Cut 
in October; Why Bush Cited It In January Is Unclear,'' N.Y. 
Times, July 13, 2008.
    1596. Memorandum from Carl W. Ford, Jr., Assistant 
Secretary of State, Bureau of Intelligence and Research, to 
Marc Grossman, Under Secretary of State, Niger/Iraq Uranium 
Story and Joe Wilson, June 10, 2003.
    1597. Memorandum regarding the President's Claim that Iraq 
Sought Uranium from Niger, Henry A. Waxman, Chairman, H. Comm. 
on Oversight and Gov't Reform, Dec. 18, 2008.
    1598. Vice President Cheney stated that ``it is now public 
that, in fact, he [Saddam] has been seeking to acquire, and we 
have been able to intercept and prevent him from acquiring 
through this particular channel, the kinds of [aluminum] tubes 
that are necessary to build a centrifuge . . . We do know, with 
absolute certainty, that [Saddam Hussein] is using his 
procurement system to acquire the equipment he needs in order 
to enrich uranium to build a nuclear weapon.'' Meet the Press: 
Interview with Vice President Dick Cheney (NBC television 
broadcast Sept. 8, 2002).
    National Security Advisor Condoleezza Rice told CNN that 
``We do know that there have been shipments going into . . . 
Iraq, for instance, of aluminum tubes that really are only 
suited to--high quality aluminum tools that are only really 
suited for nuclear weapons programs, centrifuge programs.'' CNN 
Late Edition: Interview with Condoleezza Rice, (CNN television 
broadcast Sept. 8, 2002).
    1599. President George W. Bush, State of the Union Address, 
Jan. 28, 2003, available at http://www.whitehouse.gov/news/
releases/2003/01/20030128-19.html.
    1600. S. Rep. No. 108-301, at 88 (2004).
    1601. Strobel, ``Some in Bush administration have 
misgivings about Iraq policy,'' Knight Ridder Newspapers, Oct. 
7, 2002, available at http://www.mcclatchydc.com/128/story/
8592.html.
    1602. Burrough, Peretz, Rose & Wise, ``The Path to War,'' 
Vanity Fair, May 1, 2004.
    1603. These materials and testimony were requested most 
recently in subpoenas dated June 13, 2007, July 13, 2007, May 
22, 2008, June 27, 2008 and in letters dated July 26, 2007, 
June 6, 2008, and November 24, 2008, all of which are available 
in Judiciary Committee files. These requests overlap with 
requests made by the Senate Judiciary Committee and the House 
Committee on Oversight and Government Reform. The subpoenas to 
Joshua Bolten and Harriet Miers were reissued during the 111th 
Congress on January 7 and 9, 2009, respectively.
    1604. With respect to secret OLC opinions that purport to 
set forth presidential powers, three appear particularly 
significant:
     Memorandum for Alberto R. Gonzales, Counsel to the 
President, and William J. Haynes II, General Counsel, 
Department of Defense (``DOD''), from John C. Yoo, Deputy 
Assistant Attorney General, OLC, Re: Authority for Use of 
Military Force to Combat Terrorist Activities Within the United 
States (Oct. 23, 2001).--Committee staff have reviewed this 
unclassified memorandum, which contains extraordinary 
assertions of executive power and appears deeply flawed in its 
legal analysis. The memo relies on odd precedents, such as a 
1933 decision of the New Mexico supreme court, while unhelpful 
precedents of seemingly greater weight--such as those 
discussing legal principles developed during the Civil War era 
involving non-battlefield actions--are dismissed in footnotes. 
The memo focuses on a startling hypothetical example involving 
a U.S. military commander seizing an apartment building in a 
major American city and detaining and interrogating every 
person found inside. The Department has claimed that this memo 
does not reflect current OLC thinking, but it is not clear if 
it has been formally withdrawn or revised. There is no excuse, 
moreover, for the Administration's refusal to make this 
memorandum public.
     Memorandum for Daniel Bryant, Assistant Attorney 
General, Office of Legislative Affairs, from John Yoo, Deputy 
Assistant Attorney General, OLC, Re: Applicability of 18 U.S.C. 
4001(a) to Military Detention of United States Citizens (June 
27, 2002).--This Memorandum, based on its title and when it was 
prepared, appears to have been written to justify the military 
custody of Jose Padilla, a United States citizen.
     Memorandum for William J. Haynes II, General 
Counsel, DOD, from Jay S. Bybee, Assistant Attorney General, 
OLC, Re: The President's Power as Commander in Chief to 
Transfer Captured Terrorists to the Control and Custody of 
Foreign Nations (March 13, 2002). This Memorandum appears to 
address rendition practices.
In addition to these memoranda, there are a number of more 
recent and classified memoranda containing the legal 
justification for the Administration's current CIA detention 
and interrogation program.
    1605. In testimony before the Senate Judiciary Committee, 
Frederick A.O. Schwartz, Senior Counsel to the Brennan Center 
for Justice, urged that ``a bipartisan independent 
investigatory Commission should be established by the next 
Congress and President, first to determine what has gone wrong 
(and right) with our policies and practices in confronting 
terrorists since September 11, 2001, and then to recommend 
lasting solutions to address past mistakes. . . .'' Restoring 
the Rule of Law, Hearing Before the Senate Judiciary Committee, 
110th Cong. (2008) (testimony of Frederick A. O. Schwartz). 
Schwartz also stressed that the Commission should be 
independent, have subpoena power, and access to secret 
information. The Brennan Center for Justice has called for a 
Church Committee-like approach. See Huq, Twelve Steps to 
Restore Checks and Balances, (Brennan Center for Justice, 2008) 
at 21, available at http://brennan.3cdn.net/543341179e6a856b9b-
9um6batcl.pdf. (``The Church Committee is a model for how 
comprehensive oversight can clarify what has gone wrong and 
provide forward-looking guidance.'')
    1606. See discussion in Section 2. Moreover, the U.N. 
Convention Against Torture and Cruel, Inhuman and Degrading 
Treatment (Torture Convention), ratified by the United States 
in 1994, appears to require the United States to investigate 
possible torture committed within its jurisdiction. Article 12 
of the Convention requires: ``Each State Party shall ensure 
that itscompetent authorities proceed to a prompt and impartial 
investigation, wherever there is reasonable ground to believe that an 
act of torture has been committed in any territory under its 
jurisdiction.'' Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Art. 12, S. Treaty 
Doc. No. 20, 100th Cong., 2d Sess., (1988). Under the Supreme Court's 
decisions that the Guantanamo detainees are entitled to access to the 
United States courts to pursue habeas claims, there is little question 
that Guantanamo would be considered a ``territory under [the United 
States'] jurisdiction.'' Moreover, the statement of Susan J. Crawford, 
the convening authority for military commissions, that: ``We tortured 
[Mohammed al-Qahtani],'' along with other public materials that 
describe aspects of his interrogation, provide ``reasonable grounds'' 
to believe that torture was committed there. See, e.g., Woodward, 
Detainee Tortured Says, U.S. Official, Wash. Post, Jan. 14, 2009, at 
A01, available at http://www.washingtonpost.com/wp-dyn/content/article/
2009/01/13/ AR20090113033724_pf.html.
    1607. See, e.g., Mazzetti & Johnston, Justice Dept. Sets 
Criminal Inquiry on C.I.A. Tapes, N.Y. Times, Jan. 3, 2008, 
available at http://www.nytimes.com/2008/01/03/washington/
03intel.html? _r=1&ref=todayspaper.
    1608. See, e.g., Letter from Rep. Jan Schakowsky, John 
Conyers, Jr., and other Members of Congress to Michael B. 
Mukasey, Att'y Gen. U.S. Dep't of Justice (June 8, 2008) 
available at http://www.house.gov/schakowsky/
Letter%20to%20Mukasey%20 Special%20Counsel.pdf. That letter 
explicitly stated: ``We are writing to request you appoint a 
special counsel to investigate whether the Bush 
Administration's policies regarding the interrogation of 
detainees have violated federal criminal laws. There is 
mounting evidence that the Bush Administration has sanctioned 
enhanced interrogation techniques against detainees under the 
control of the United Stats that warrant an investigation.''
    1609. See ``Transcript, Senate Confirmation Hearings: Eric 
Holder, Day One'', N.Y. Times, Jan. 16, 2006, available at 
http://www.nytimes.com/2009/01/16/us/politics/16text-
holder.html?pagewanted=1. The then-nominee went on to testify 
as follows:

    Mr. Leahy: Do you believe that the president of the United 
States has authority to exercise a commander-in-chief override 
and immunize acts of torture? I ask that because we did not get 
a satisfactory answer from Former Attorney General Gonzales on 
that.
    Mr. Holder: Mr. Chairman, no one is above the law. The 
president has a constitutional obligation to faithfully execute 
the laws of the United States. There are obligations that we 
have as a result of treaties that we have signed--obligations, 
obviously, in the Constitution. Where Congress has passed a 
law, it is the obligation of the president, or the commander-
in-chief, to follow those laws.
    The president acts most forcefully and has his greatest 
power when he acts in a manner that's consistent with the 
congressional intent--consistent with congressional intentions 
and directives.
    If one looks at the various statutes that have been passed, 
it is my belief that the president does not have the power that 
you've indicated.

Id.
    1610. A federal court in Michigan held that the program was 
unlawful before the case was thrown out on appeal due to lack 
of standing. The Michigan case, American Civil Liberties Union 
v. National Security Agency, is discussed specifically in 
Section 2.
    1611. Convention Against Torture and Other Cruel, Inhuman 
or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Art. 
12, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., (1988).
    1612. See, e.g., Woodward, Detainee Tortured Says, U.S. 
Official, Wash. Post, Jan. 14, 2009, at A01, available at 
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/
13/AR2009011303372_pf.html.
    1613. Memorandum from Attorney General Michael Mukasey to 
Heads of Department Components and United States Attorneys 
(Dec. 19, 2007).
    1614. See, e.g., Letter from Janet Reno, Att'y Gen. of the 
United States, to Lloyd Cutler, White House Counsel (Sept. 19, 
1994); Letter from Jamie Gorelick, Deputy Att'y Gen., to 
Chairman Orrin Hatch, S. Comm. on the Judiciary (Mar. 16, 
1995).
    1615. Memorandum from Chief of Staff Josh Bolten to Cabinet 
and Executive Agency Heads (Dec. 1, 2008).
    1616. H. Amdt. 831--On agreeing to the Conyers amendment 
(A001) Agreed to by recorded vote: 217-192 (Roll no. 935), 
110th Cong.
    1617. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring by Monica Goodling and Other Staff in the Office of the 
Attorney General,'' at 3 (July 2008). Available at http://
www.usdoj.gov/oig/special/s0807/final.pdf.
    Ms. Goodling was likewise unavailable to be interviewed in 
connection with the related investigation of the firing of the 
United States Attorneys. Joint Report of the U.S. Dept. of 
Justice Office of the Inspector General and U.S. Dept. of 
Justice Office of the Professional Responsibility, ``An 
Investigation into the Removal of Nine U.S. Attorneys in 
2006,'' at 204 (Sept. 2008), available at http://www.usdoj.gov/
oig/special/s0809a/final.pdf.
    1618. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring in the Department of Justice Honors Program and the 
Summer Law Intern Program,'' at 75 (June 2008). Available at 
http://www.usdoj.gov/oig/special/s0806/final.pdf.
    1619. As the Report notes:

    No one we interviewed (including Elston, Fridman, and 
Mercer) said they gave McDonald any instructions on how to 
conduct her review of Honors Program and SLIP applications. In 
a letter to OPR [Office of Professional Responsibility] and OIG 
investigators in which he reiterated McDonald's unwillingness 
to be interviewed, McDonald's attorney stated that she was 
given no instructions on how to conduct the review, ``except 
for limited high level statements.'' The primary guidance she 
was given, her attorney wrote, was ``to consider whether they 
would faithfully defend and uphold the Constitution and 
zealously execute the laws of the United States and the 
policies of the administration as they may apply to matters 
within the jurisdiction of the Department of Justice.'' 
McDonald's attorney did not name the source of this guidance, 
and he declined to allow McDonald to be questioned about this 
issue. Her attorney also refused our request to provide the 
name of the person or persons providing this guidance. 
Therefore, we were unable to determine what, if any, guidance 
or specific instructions McDonald received and from whom.

Id. at 76 (emphasis supplied; footnote omitted).
    1620. In connection with his investigation of the political 
hiring practices in the Civil Rights Division, Inspector 
General Fine once again noted the limitations imposed upon his 
investigation by the departure of certain witnesses from the 
Department:

    We were unable to interview several former Civil Rights 
Division officials no longer employed at the Department who 
declined our request for interviews. For example, Bradley 
Schlozman, who served as DAAG, Principal Deputy Assistant 
Attorney General, and Acting AAG in the Division, declined our 
interview request through his counsel. In addition, J. Michael 
Wiggins, who also served as a Principal DAAG for the Civil 
Rights Division, and Hans von Spakovsky, former Counsel to the 
AAG, declined our requests to interview them as part of this 
investigation. Jason Torchinsky, former Counsel to the AAG, did 
not respond to our written request for an interview.

Joint Report of the U.S. Dep. of Justice Office of the 
Inspector General and Office of Professional Responsibility, 
``An Investigation of Allegations of Politicized Hiring and 
Other Improper Personnel Actions in the Civil Rights Division'' 
(released publically Jan. 13, 2009). Available at http://
www.usdoj.gov/oig/special/s0901/final.pdf.
    Similarly, the Inspector General for the Department of 
Homeland Security noted the following in connection with his 
attempts to investigate the facts and circumstances associated 
with the transfer of Mohammed Arar to Syria:

    Upon resumption of our work [the investigation], we 
encountered a third impediment. Many of the principal decision-
makers involved in the Arar case have left government service 
and declined our requests for interviews. As they are no longer 
DHS employees, we cannot compel them to speak with us. These 
decision makers included the former INS Commissioner, former 
INS Chief of Staff, and former INS General Counsel. Some of 
these individuals wanted to be interviewed but, because of the 
pending litigation, declined on the advice of their counsels. 
Many of the decisions concerning Arar were made during 
conversations between these individuals.

Dept. of Homeland Security, Office of Inspector General, ``The 
Removal of a Canadian Citizen to Syria,'' OIG-08-018, at 38 
(2008), found in U.S. Department of Homeland Security Inspector 
General Report OIG-08-018, The Removal of a Canadian Citizen to 
Syria: Joint Hearing Before Subcomm. on Int'l Orgs., Human 
Rights, and Oversight of the H. Comm. on Foreign Affairs and 
the Subcomm. on the Constitution, Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, Serial No. 110-101, 
110th Cong.120 (2008).
    1621. Title 5 Appx., Sec. Sec. 6(a)(4) provides that a 
Inspector General is authorized ``to require by subpoena the 
production of all information, documents, reports, answers, 
records, accounts, papers, and other data and documentary 
evidence necessary in the performance of the functions assigned 
by [the Inspector General Act of 1978], which subpoena, in the 
case of contumacy of refusal to obey, shall be enforceable by 
order of any appropriate United States district court[.]''
    1622. This recommendation would not, of course, override 
the ability of a person to assert valid testimonial privileges.
    1623. Board of Immigration Appeals, Procedural Reforms To 
Improve Case Management, Final Rule, 8 C.F.R. Sec. 3 (2002).
    1624. Joint Report of the U.S. Dep. of Justice Office of 
Professional Responsibility and Office of the Inspector 
General, ``An Investigation of Allegations of Politicized 
Hiring by Monica Goodling and Other Staff in the Office of the 
Attorney General'' (July 2008) available at http://
www.usdoj.gov/oig/special/s0807/final.pdf.
    1625. An oversight hearing held on September 23, 2008, by 
the House Judiciary Subcommittee on Immigration, Citizenship, 
Refugees, Border Security, and International Law revealed some 
changes made by the Department and EOIR to improve the 
immigration courts but also showed a number of reform promises 
that were not fulfilled. The Executive Office for Immigration 
Review: Hearing Before the Subcomm. on Immigration, 
Citizenship, Refugees, Border Security, and Int. Law of the H. 
Comm. on the Judiciary, 110th Cong. (2008).
    1626. See Eggen, ``Staff Opinions Banned in Voting Rights 
Cases,'' Wash. Post, Dec. 10, 2005 at A3.
    1627. Executive Nomination: Hearing before the S. Committee 
on the Judiciary, 111th Cong., (2009) (statement by Eric Holder 
during his January 15, 2009 confirmation hearing for the office 
of Attorney General of the United States).
    1628. In the 110th Congress, H.R. 1281, the'' Deceptive 
Practices and Voter Intimidation Prevention Act of 2007,'' was 
reported out of the Committee on Judiciary on April 18, 2007. 
(H.R. Rep. 110-101, 110th Cong. [2007]); and passed the House 
on June 25, 2007, by voice vote. (Senator Barack Obama 
introduced a companion bill in the Senate, S.453).
    1629. This remedy was proposed in H.R. 5038, the ``Caging 
Prohibition Act of 2008.''
    1630. Many of these provisions were contained in the 
``Voting Opportunity and Technology Enhancement Rights (VOTER) 
Act'', H.R. 533, introduced by Chairman Conyers in the 109th 
Congress.
    1631. See, e.g., Van Hollen v. Government Accountability 
Bd., No. O8CV4085, Hearing Tr. 7-16 (Wisc. Dane County Cir. Ct, 
Ovt. 23, 2008).
    1632. See, e.g., House Judiciary Comm. Democratic Staff, 
Preserving Democracy: What Went Wrong in Ohio (Status Report, 
Jan. 5, 2005); Perez, Voter Purges (Brennan Center for Justice, 
2008); Lawyers' Comm. For Civil Rights, Election Protection 
2008 Primary Report: Looking Ahead to November (July, 2008); 
Weiser and Goldman, An Agenda for Reform (Brennan Center for 
Justice, 2007).
    1633. Dellinger and other former OLC Attorneys, Principles 
to Guide the Office of Legal Counsel, (Dec. 21, 2004), 
available at http://www.acslaw.org/files/
2004%20programs_OLC%20principles_white%20paper.pdf.
    1634. A comprehensive list of undisclosed documents that 
should be disclosed can be found at Nguyen and Weaver, ``The 
Missing Memos,'' ProPublica, Jan. 28, 2009, available at http:/
/www.propublica.org/special/missing-memos?s=1.
    1635. On March 2, 2009, the Obama Administration's Justice 
Department released two previously undisclosed OLC memoranda 
and seven previously undisclosed opinions dating to the Bush 
Administration. The Department made the documents available at 
http://www.usdoj.gov/opa/documents/olc-memos.htm, and the 
appendix to this report additionally contains their citations. 
Vast in scope, the memoranda detail the Bush Administration's 
policies on a range of issues, including warrantless domestic 
surveillance and the abrogation of international treaty 
requirements.
    1636. The country of Portugal has recently agreed to accept 
some Guantanamo detainees and has urged other European 
countries to do the same. See Glaberson, ``Move May Help Shut 
Guantanamo Camp,'' N.Y. Times, Dec. 11, 2008.
    1637. See, e.g., In re Guantanamo Bay Detainee Litigation, 
F.Supp.2d, 2008 WL 4539019 (D.D.C., Oct. 9, 2008), app. pending 
(ordering 17 Chinese Uighurs who were held at Guantanamo but 
who were not ``enemy combatants'' to be freed into the United 
States). See also Taylor, ``Judge Orders 17 Guantanamo 
Detainees Released to U.S.,'' McClatchy Newspapers, Oct. 7, 
2008, available at http://www.mcclatchydc.com/homepage/story/
53595.html.
    1638. The closing of Guantanamo can and should be 
accomplished by executive action by the incoming Obama 
Administration; in addition, at the beginning of the 111th 
Congress, Chairman Conyers, Rep. Jane Harman, Rep. Jerrold 
Nadler, and Rep. Anna Eshoo introduced H.R. 374, the Lawful 
Interrogation and Detention Act, which would mandate the 
closing of Guantanamo. H.R. 374 also concerns torture, abuse, 
and ghosting, which are discussed in recommendations 14 and 15 
below.
    1639. See generally, Wilner, ``We Don't Need Guantanamo 
Bay,'' Wall St. Jour., Dec. 22, 2008, available at http://
online.wsj.com/article/SB122990491721225253.html.
    1640. See generally the discussion in Section 2 of this 
Report.
    1641. At the end of February 2009, the Obama Administration 
transferred Mr. al-Marri's case to the jurisdiction of the 
federal courts, charging him with conspiracy and providing 
material support to terrorists. In accord with a motion brought 
by the Obama Administration's Justice Department, on March 6, 
2009, the Supreme Court dismissed Mr. al-Marri's appeal as moot 
and vacated a July 2008 ruling of the Fourth Circuit that the 
president had the right to indefinitely detain legal U.S. 
residents as terrorist suspects (the Court vacated al-Marri v. 
Pucciarelli [534 F.3d 213 (2008)]). See, e.g., Liptak, 
``Justices Erase Ruling that Allowed Detention,'' N.Y. Times, 
Mar. 6, 2009, http://www.nytimes.com/2009/03/07/washington/
07scotus.html?scp=2&sq=marri&st=cse.
    More generally, the Obama Administration has indicated that 
it will transfer the cases of many of the Guantanamo detainees 
to the federal courts with jurisdiction over the locations of 
the September 11 terrorist attacks--New York City and northern 
Virginia, respectively. See, e.g., Finn and Johnson, ``Federal 
Courts in Va., N.Y. May Take Some Guantanamo Cases,'' Wash. 
Post, Mar. 7, 2009, at A5.
    1642. The decision to move Mr. al-Marri must be understood 
as reflecting the Administration's determination that the law 
does not support his continued military detention, not as an 
attempt by the Administration to avoid Supreme Court review of 
that legal contention. Thus, if, for unforeseen reasons, the 
Supreme Court or the Fourth Circuit are unwilling to permit Mr. 
al-Marri to be transferred from military custody, in effect 
forcing the incoming Administration to argue the al-Marri case 
before the Supreme Court, the Government, through the incoming 
Justice Department, should reverse the position of the Bush 
Administration and argue that the military detention of Mr. al-
Marri was not authorized either under the Constitution or under 
the AUMF, and, accordingly, request that the Court order the 
Government to release Mr. al-Marri from military custody and be 
turned over to civilian custody to be charged with and held to 
answer federal terrorism charges. To the same end, if the 
Fourth Circuit refuses to vacate its opinion, the 
Administration should issue a clear statement that it is moving 
al-Marri because the Administration has concluded that it is 
not legally appropriate to keep him in military custody.
    1643. ``This intolerable reading of the law would leave a 
president free to suspend the rights of anyone, including 
American citizens.'' ``Tortured Justice,'' N. Y. Times, Dec. 8, 
2008, available at http://www.nytimes.com/2008/12/08/opinion/
08mon1.html?_r=1.
    1644. See, e.g., ``The Torture Report,'' N.Y.Times, Dec. 
18, 2008,
available at http://www.nytimes.com/2008/12/18/opinion/
18thu1.html? 
pagewanted=2&_r=1&sq=President%20Bush%20February 
%207%202002%20memo%20torture%20&st=cse&scp=1.
    1645. This provision is also contained in H.R. 374, 111th 
Cong. (2009). The Bush Administration has ignored previous 
attempts by Congress to end torture, and has stubbornly 
insisted that the ability to order torture was a presidential 
prerogative as Commander in Chief. In 2005, Congress passed the 
Detainee Treatment Act of 2005 (DTA) which required the 
Department of Defense (but not the CIA) to abide by the Army 
Field Manual, and prohibited all agencies (including the CIA), 
from using ``cruel, inhuman, or degrading treatment or 
punishment'' of persons in U.S. custody or control. Detainee 
Treatment Act of 2005 (DTA), Pub. L. No. 109-148, 
Sec. Sec. 1001-1006 (2005). In signing the DTA into law, 
President Bush issued a signing statement: ``The Executive 
Branch shall construe Title X in Division A of the Act, 
relating to detainees, in a manner consistent with the 
constitutional authority of the President to supervise the 
unitary Executive Branch and as Commander in Chief and 
consistent with the constitutional limitations on the judicial 
power, which will assist in achieving the shared objective of 
the Congress and the President, evidenced in Title X, of 
protecting the American people from further terrorist 
attacks.'' ``President's Statement on Signing of H.R. 2863, the 
`Department of Defense, Emergency Supplemental Appropriations 
to Address Hurricanes in the Gulf of Mexico, and Pandemic 
Influenza Act, 2006,' '' available at http://
www.whitehouse.gov/news/releases/2005/12/20051230-8.html. It 
has been reported that the Justice Department's OLC issued a 
memorandum that interpreted the DTA prohibition on cruel 
treatment to allow (not prohibit) the CIA to use extreme 
techniques like waterboarding. The New York Times reported in 
2007: ``Later that year [2005], as Congress moved toward 
outlawing `cruel, inhuman and degrading' treatment, the Justice 
Department issued another secret opinion, one most lawmakers 
did not know existed, current and former officials said. The 
Justice Department document declared that none of the C.I.A. 
interrogation methods violated that standard.'' Shane, ``Secret 
U.S. Endorsement of Severe Interrogations,'' N.Y. Times, Oct. 
4, 2007, available at http://www.nytimes.com/2007/10/04/
washington/04interrogate.html?_r=2&oref=slogin&oref=slogin.
    Thereafter, provisions akin to those set forth in Rep. 
Nadler's bill (H.R. 2082) were made part of the Intelligence 
Authorization Act of 2008, section 327(a) of which specifically 
provided: ``No individual in the custody or under the effective 
control of an element of the intelligence community or 
instrumentality thereof, regardless of nationality or physical 
location, shall be subject to any treatment or technique of 
interrogation not authorized by the United States Army Field 
Manual on Human Intelligence Collector Operations.'' 
``Intelligence Authorization Act for Fiscal Year 2008,'' H.R. 
2082, 110th Cong., sec. 327(a). President Bush vetoed this 
legislation, and the House of Representatives failed to 
override the veto.
    1646. Sept. 13, 2006, Letter from General Colin Powell 
(Ret.), to Sen. John McCain, available at http://
msnbcmedia.msn.com/i/msnbc/sections/news/060914_Powell.pdf.
    1647. This provision is also contained in H.R. 374, 111th 
Cong. (2009).
    1648. See discussion in Section 2.
    1649. For example, the U.N. Convention Against Torture and 
Cruel, Inhuman and Degrading Treatment prohibits torture and 
the transfer of individuals to countries where it is likely 
that they will be tortured. U.N. Convention Against Torture and 
Other Cruel, Inhuman or Degrading Treatment or Punishment, 
opened for signature December 10, 1984, G.A. Res. 39/46, 39 UN 
GAOR Supp. No. 51, at 197, UN Doc. A/RES/39/708 (1984), entered 
into force June 26, 1987, 1465 U.N.T.S. 85, 23 I.L.M. 1027 
(1984), as modified, 24 I.L.M. 535. The Federal Torture 
Statute, 18 U.S.C. Sec. Sec. 2340A-B, criminalizes torture 
committed outside the U.S. and the conspiracy to commit an act 
of torture outside the U.S. For an analysis of the full range 
of U.S. and international legal constraints on extraordinary 
rendition, see Comm. On Int'l Human Rights of the NY Bar Ass'n 
and Ctr. For Human Rights and Global Justice, NYU School of 
Law, Torture by Proxy: International and Domestic Law 
Applicable to ``Extraordinary Renditions,'' at 55-83 (as 
modified June 2006), available at http://www.chrgj.org/docs/
TortureByProxy.pdf; Satterthwaite, ``Rendered Meaningless: 
Extraordinary Rendition and the Rule of Law,'' 75 Geo. Wash. 
L.Rev. 1333 (2007); Rendition to Torture: the Case of Maher 
Arar: Joint Hearing before the Subcomm. on Int'l Orgs., Human 
Rights, and Oversight of the H. Comm. on Foreign Affairs and 
Subcomm. on Constitution, Civil Rights, and Civil Liberties of 
the H. Comm. on the Judiciary, Serial No. 110-52, at 93-102, 
110th Cong., 1st Sess. (2007) (testimony of Professor David 
Cole); Garcia, ``Renditions: Constraints Imposed by Laws on 
Torture,'' CRS Report for Congress, RL 32890, Jan. 25, 2008, at 
3.
    1650. U.S. officials, usually speaking off the record, have 
provided troubling indications that the practice has been used 
frequently following the 9/11 terrorist attacks. Campbell, 
``September 11: Six Months on: U.S. Sends Suspects to Face 
Torture,'' Guardian (London), Mar. 12, 2002, at 4. (quoting an 
unnamed U.S. diplomat as acknowledging ``[a]fter September 11, 
[renditions] have been occurring all the time. . . . It allows 
us to get information from terrorists in a way we can't do on 
U.S. soil.'') Estimates range anywhere from 100-150 to several 
thousand renditions of terror suspects to countries including 
Egypt, Syria, Saudi Arabia, Jordan and Pakistan. Jehl & 
Johnston, ``Rule Change Lets C.I.A. Freely Send Suspects Abroad 
to Jails,'' N.Y. Times, March 6, 2005 at A1 (``former 
government officials say that since the Sept. 11 attacks, the 
C.I.A. has flown 100 to 150 suspected terrorists from one 
foreign country to another, including to Egypt, Syria, Saudi 
Arabia, Jordan and Pakistan''); Satterthwaite & Fisher, Beyond 
Guantanamo: Transfers to Torture One Year After Rasul v. Bush 
(2005), available at http://www.chrgj.org/docs/
Beyond%20Guantanamo
%20Report%20FINAL.pdf ) (quoting Jane Mayer: ``one source 
knowledgeable about the rendition program suggested that the 
number of renditions since September may have reached as high 
as several thousand'').
    1651. See,, e.g., Rendition to Torture: the Case of Maher 
Arar: Joint Hearing before the Subcomm. on Int'l Orgs., Human 
Rights, and Oversight of the H. Comm. on Foreign Affairs and 
Subcomm on Constitution, Civil Rights, and Civil Liberties of 
the H. Comm. on the Judiciary, Serial No. 110-52, at 80, 110th 
Cong. (2007) (testimony of Frederick P. Hitz) (after the 
September 11th attacks, renditions ``resulted in the use of 
interrogation methods beyond what would have been permitted to 
U.S. authorities,'' which ``is doing indirectly what U.S. 
officials would be prohibited from doing directly and is 
unwise, if not illegal.''); Mayer, ``Outsourcing Torture, the 
Secret History of America's `Extraordinary Rendition' 
Program,'' New Yorker, Feb. 14, 2005, available at http://
www.newyorker.com/archive/2005/02/14/050214fa_fact6; Comm. On 
Int'l Human Rights of the NY Bar Ass'n and Ctr. For Human 
Rights and Global Justice, NYU School of Law, Torture by Proxy: 
International and Domestic Law Applicable to ``Extraordinary 
Renditions'' (June 2006), http://www.chrgj.org/docs/
TortureByProxy.pdf.
    1652. See, e.g., Burns, ``CIA confirms British territory 
used in rendition flights,'' Int'l Herald Tribune, Feb. 22, 
2008; Brinkley, ``Rice is Challenged in Europe Over Secret 
Prisons,'' N.Y. Times, Dec. 7, 2005.; Garcia, ``Renditions: 
Constraints Imposed by Laws on Torture,'' CRS Report to 
Congress, RL32890, at 2-3 & nn.6-7. The United Kingdom 
currently is investigating whether to bring criminal charges 
against the American CIA agents allegedly responsible for the 
rendition and torture of Binyam Mohamed. Verhaik, ``CIA 
officers Could Face Trial in Britain over Torture 
Allegations,'' The Independent, Oct. 31, 2008.
    1653. See, Feb. 26, 2007 Letter from Richard A. Hertling, 
Acting Assistant Attorney General, U.S. Dept. Of Justice, at 4; 
see also Mayer, ``Outsourcing Torture, the Secret History of 
America's ``Extraordinary Rendition'' Program,'' New Yorker. 
Feb. 14, 2005, available at http://www.newyorker.com/archive/
2005/02/14/050214fa_fact6.
    1654. See, e.g., Priest, ``CIA's Assurances on Transferred 
Suspects Doubted,'' Washington Post, March 17, 2005, at A1 
(quoting one unnamed CIA officer involved in renditions as 
describing assurances from other countries as ``a farce,'' 
while another U.S. government official took the position that 
``it's beyond that. It's widely understood that interrogation 
practices that would be illegal in the U.S. are being used.''); 
Rendition to Torture: the Case of Maher Arar, Joint Hearing 
before the Subcomm. on Int'l Orgs., Human Rights, and Oversight 
of the H. Comm. on Foreign Affairs and Subcomm on Constitution, 
Civil Rights, and Civil Liberties of the H. Comm. on the 
Judiciary, Serial No. 110-52, 110th Cong, 1st Sess. at 80 ( 
2007) (testimony of Frederick P. Hitz) (describing assurances 
as ``meaningless as a restraint on the practices of nations 
with poor human rights records''); id. at 95, 101 (testimony of 
David Cole) (explaining that assurances are inherently 
unreliable because (1) countries that torture generally deny 
that they do so; and (2) there is no effective means to monitor 
such assurances once a suspect has been transferred and is out 
of the control of the sending state); Department of Homeland 
Security, Office of Inspector General, OIG-08-18, The Removal 
of a Canadian Citizen to Syria, at 5, 22 (March 2008) (INS 
officials concluded that it was ``more likely than not'' that 
Mr. Arar would be tortured if sent to Syria, but still sent him 
there even though the ``assurances upon which INS based Arar's 
removal were ambiguous regarding the source or authority 
purporting to bind the Syrian government to protect Arar,'' and 
their ``validity'' ``appears not to have been examined.'' U.S. 
Department of Homeland Security Inspector General Report OIG-
08-018, The Removal of a Canadian Citizen to Syria: Joint 
Hearing before the Subcomm. on the Constituion, Civil Rights, 
and Civil Liberties of the H. Comm. on the Judiciary and 
Subcomm. on Int'l Orgs., Human Rights, and Oversight of the H. 
Comm. on Foreign Affairs, Serial No. 110-101, at 74, 110th 
Cong. (2008) (testimony of Clark Ervin and Richard Skinner) 
(further investigation into possible criminal misconduct in Mr. 
Arar's case is warranted).
    1655. Pub. L. No. 105-277, section 2242 (a) and (b) (1998).
    1656. Warrantless Surveillance and the Foreign Intelligence 
Surveillance Act: The Role of Checks and Balances in Protecting 
Americans' Privacy Rights (Part II): Hearing before the H. 
Comm. on the Judiciary, 110th Cong., 1st Sess. (2007) at 46-47 
(Statement of J.M. McConnell, Director of National 
Intelligence.
    1657. Cauley, ``NSA Has Massive Database of Americans' 
Phone Calls,'' USA Today, May 11, 2006, at A1.
    1658. Does the Protect America Act Protect Americans' Civil 
Liberties and Enhance Security?: Hearing before the S. Comm. on 
the Judiciary, 110th Cong. (2007) at 82.
    1659. See, e.g., Dept. of Justice Ofc. of the Inspector 
General, ``A Review of the FBI's Use of National Security 
Letters: Assessment of Corrective Actions and Examination of 
NSL Usage in 2006'' (2008), at 48.
    1660. Office of Inspector General, Dept. of Justice, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters (2007), at 86, available at http://
www.npr.org/documents/2007/mar/doj/doj_oig_nsl.pdf.
    1661. Office of Inspector General, Dept. of Justice, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters (2007), at 33-34, available at http://
www.npr.org/documents/2007/mar/doj/doj_oig_nsl.pdf.
    1662. Office of Inspector General, Dept. of Justice, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters (2007), at 68, available at http://
www.npr.org/documents/2007/mar/doj/doj_oig_nsl.pdf.
    1663. See, e.g., Office of Inspector General, Dept. of 
Justice, A Review of the FBI's Use of National Security 
Letters: Assessment of Corrective Actions and Examination of 
NSL Usage in 2006 (2008), at 128-29; Office of Inspector 
General, Dept. of Justice, A Review of the FBI's Use of Section 
215 Orders for Business Records in 2006 (2008) at 68, 72.
    1664. Office of Inspector General, Dept. of Justice, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters (2007), at 110, available at http://
www.npr.org/documents/2007/mar/doj/doj_oig_nsl.pdf.
    1665. See, e.g., Office of Inspector General, Dept. of 
Justice, A Review of the FBI's Use of National Security 
Letters: Assessment of Corrective Actions and Examination of 
NSL Usage in 2006 (2008) at 48.
    1666. Even though the FBI had attempted to comply with all 
of the Inspector General's 2007 recommendations, the Inspector 
General noted in his 2008 report that some of the 
recommendations need fuller implementation. Thus, despite the 
fact that the FBI may believe it has implemented the 
recommendations, the Inspector General is in a better position 
to assess whether the FBI has fully addressed his 
recommendations from both the 2007 and 2008 reports.
    1667. A recent federal appellate court decision has 
invalidated parts of the statute that wrongly put the burden on 
NSL recipients to initiate court review of gag orders, ruling 
that the government must go to court and justify silencing NSL 
recipients. The ruling also invalidated parts of the statute 
that narrowly limited judicial review of the gag orders by 
requiring the courts to treat the government's claims about the 
need for secrecy as conclusive and to defer entirely to the 
Executive Branch. See Doe v. Mukasey, No. 07-4943-cv (2nd Cir. 
Dec. 15, 2008).
    1668. See 73 Fed. Reg. 44673 (July 31, 2008) (Dept. of 
Justice; Office of Justice Programs).
    1669. See C. Johnson, ``Rule Changes Would Give FBI Agents 
Extensive New Powers,'' Wash. Post, Sept. 12, 2008.
    1670. Pub. L. No. 108-408 (2004).
    1671. Pub. L. No. 110-53, Title VIII, Sec. 801 (2007)
    1672. The United States ratified the International 
Convention on Civil and Political Rights (ICCPR) in 1992, the 
Convention Against Torture in 1994, and the Convention on the 
Elimination of All Forms of Racial Discrimination in 1994. The 
U.S. additionally ratified two international human rights 
protocols in 2003: the Optional Protocol to the Convention on 
the Rights of the Child on the involvement of children in armed 
conflict; and the Optional Protocol to the Convention on the 
Rights of the Child on the sale of children, child 
prostitution, and child pornography.
    1673. National Security; Prevention of Acts of Violence and 
Terrorism, 28 C.F.R. Sec. Sec. 500-501.
    1674. See Savage, ``Barack Obama Q&A,'' Boston Globe, Dec. 
20, 2007.
    1675. Mikva & Lane, Legislative Process 130 (2d ed. 2002).
    1676. See, e.g., Huq, Twelve Steps to Restore Checks and 
Balances, at 7-8 (Brennan Center for Justice, 2008).
    1677. Several House bills seeking to address presidential 
abuse of signing statements have been introduced in the 110th 
Congress by both Republicans and Democrats. H.R. 5993 by Rep. 
Jones provides that the president must promptly transmit to 
Congress and publish in the Federal Register any signing 
statement that ``declares or insinuates'' an intention to 
disregard parts of a signed law and, at the request of any 
member of the House or Senate Judiciary Committee, must make 
available the Attorney General, Deputy Attorney General, or 
White House Counsel to testify to ``explain the meaning and 
justification'' for any such signing statement. See H.R. 5993 
(introduced May 8, 2008), sections 4 and 5. H.R. 3045, by Rep. 
Shea-Porter, states that no court can rely on or defer to any 
signing statement, and that in any lawsuit concerning the 
interpretation of a law as to which a signing statement has 
been issued, the House or Senate can participate as amicus 
curiae and Congress can pass a concurrent resolution concerning 
the law's meaning that will be included in the court record, 
with the court case to be expedited. See H.R. 3045 (introduced 
July 16, 2007), sections 4 and 5. H.R. 264, by Rep. Jackson-
Lee, provides that government agencies cannot take signing 
statements into account in construing or applying laws and that 
no government funds can be used to produce or disseminate 
signing statements that are inconsistent with the intent of 
Congress. See H.R. 264 (introduced January 5, 2007), sections 3 
and 4. And H.R. 3835, introduced by Rep. Paul, seeks to provide 
standing to both the House and the Senate to bring a 
declaratory judgment action in federal court challenging the 
constitutionality of any signing statement declaring an intent 
to disregard a law's provisions. See H.R. 3835 (110th Cong., 
introduced October 15, 2007), Section 6.
    1678. Copeland, ``Changes to the OMB Regulatory Review 
Process by Executive Order 13422,'' CRS Report for Congress, RL 
33862, Feb. 5, 2007, at 56 (quoting Office of Management and 
Budget, Stimulating Smarter Regulation: 2002 Report to Congress 
on the Costs and Benefits of Federal Regulations and Unfunded 
Mandates on State, Local, and Tribal Entities, Dec. 2002).
    1679. Other requirements of the Order likewise undermine 
congressional intent. These include the requirement that OIRA 
receive advance notification of significant guidance documents 
and specifying the appointment of a regulatory policy officer 
who must approve every proposed regulation before an agency may 
commence the rulemaking process and before such regulation may 
be included in the agency's regulatory plan. This mandate 
allows the White House to unduly influence regulatory matters--
including health and safety issues--even if the agencies 
disagree with the outcome.
    1680. Bass., Advancing the Public Interest Through 
Regulatory Reform--Recommendations for President-Elect Obama 
and the 111th Congress, Nov. 2008 (``Regulatory Reform 
Recommendations''), at 3, 17.
    1681. U.S. Government Accountability Office, Rulemaking--
OMB's Role in Reviews of Agencies' Draft Rules and the 
Transparency of Those Reviews, GAO-03-929 (Sept. 2003). These 
recommendations included the following:

     Define the transparency requirements applicable to 
the agencies and OIRA in section 6 of Executive Order 12866 in 
such a way that they include not only the formal review period, 
but also the informal review period when OIRA says it can have 
its most important impact on agencies rules . . .
     Establish procedures whereby either OIRA or the 
agencies disclose the reasons why rules are withdrawn from OIRA 
review . . .
     Instruct agencies to put information about changes 
made in a rule after submission for OIRA's review and those 
made at OIRA's suggestion or recommendation in the agencies' 
public rulemaking dockets, and to do so within a reasonable 
period after the rules have been published[.] Id. at 14-16.

    1682. E-rulemaking ``has transformative potential to 
increase the comprehensibility, transparency and accountability 
of the regulatory process.'' American Bar Association, 
Achieving the Potential--The Future of Federal E-Rulemaking, A 
Report to Congress and the President from the Committee on the 
Status and Future of Federal E-Rulemaking, 2008 (``ABA E-
Rulemaking'') at 3.
    1683. For example, while OIRA discloses its meetings with 
outside parties, those disclosures often do not clearly 
indicate what rules were discussed or who those individuals 
represented.
    1684. The Rulemaking Process and the Unitary Executive 
Theory: Hearing Before the Subcomm. on Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 110th 
Cong, 2d Sess.. (2008) (prepared statement of Curtis W. 
Copeland, Specialist in American National Government, 
Congressional Research Service) (footnotes omitted).
    In developing facilities for electronic rulemaking and the 
associated dockets, agencies should be required to place all 
matters related to a rulemaking (other than those that are 
privileged under FOIA) on their electronic docket, beginning 
with the entry that commences the regulatory plan or places the 
item on the regulatory agenda, including all relevant studies, 
comments, and related materials, whether received 
electronically or in paper form, as recommended by the 
Committee on the Status and Future of e-Rulemaking under the 
auspices of the American Bar Association. Regulatory Reform 
Recommendations at 44-53.
    1685. Regulatory Reform Recommendations at 44-53.
    1686. Although ``[f]ederal regulations are among the most 
important and widely used tools for implementing the laws of 
the land--affecting the food we eat, the air we breathe, the 
safety of consumer products, the quality of the workplace, the 
soundness of our financial institutions, the smooth operation 
of our businesses,'' it is extremely difficult to follow the 
regulatory process, as observed by the American Bar 
Association's Section of Administrative Law and Regulatory 
Practice. ABA E-Rulemaking at 3.
    1687. See, e.g., ABA E-Rulemaking; Regulatory Reform 
Recommendations at 45-50.
    1688. ACUS was created by Congress to develop 
recommendations for improving procedures by which federal 
agencies administer regulatory, benefit, and other government 
programs. It served as a ``private-public think tank'' that 
conducted ``basic research on how to improve the regulatory and 
legal process,'' and many of its recommendations resulted in 
saving millions in taxpayer dollars. See Reauthorization of the 
Administrative Conference of the United States: Hearings Before 
the Subcomm. on Commercial and Administrative Law of the House 
Comm. on the Judiciary, 104th Cong. 31(2005) (statement of C. 
Boyden Gray).
    1689. For example, the Department of Health & Human 
Services issued a ``directive,'' which the GAO and CRS 
determined was a ``rule'' within the meaning of the Act. The 
Centers for Medicare & Medicaid Services (CMS), in an apparent 
effort to avoid the Act's requirements, issued a letter on 
August 17, 2007 to state health officials concerning the State 
Children's Health Insurance Program for the purpose of 
``clarifying'' how CMS intended to apply existing statutory and 
regulatory requirements in its review of requests by states to 
extend eligibility under the Program to children from lower-
income families. Aug. 17, 2007 Letter from Dennis G. Smith, 
Director, Center for Medicaid and State Operations, Dept. of 
Health & Human Servs. Centers for Medicare & Medicaid Servs, 
available at http://www.cms.hhs.gov/smdl/downloads/
SHO081707.pdf. Although both CRS and GAO concluded that this 
letter directive was a ``rule'' within the meaning of the Act 
and must therefore be submitted to Congress before it could 
take effect, Memorandum from Morton Rosenberg, Specialist in 
American Public Law--American Law Division, Congressional 
Research Service, to Sen. John D. Rockefeller, IV (D-WV) (Jan. 
10, 2008); Apr. 17, 2008 Letter from Gary Kepplinger, General 
Counsel, U.S. Gov't Accountability Office, to Sen. John D. 
Rockefeller, IV (D-WV), CMS stated that ``'GAO's opinion does 
not change the department's conclusion that the Aug. 17 letter 
is still in effect.''' Teske, ``Health Care: Lawmakers Cite 
GAO, CRS Findings in Faulting CMS's 2007 Enrollment 
Directive,'' BNA, Daily Rep. for Executives, Apr. 21, 2008, at 
A-17 (quoting CMS spokesman Jeff Nelligan). The agency refused 
to rescind its ``directive'' until just days before states 
would have lost funding for their failure to comply.
    1690. Many of the Administration's most controversial 
midnight regulations appear to have been issued without 
allowing sufficient time for public comment and for the issuing 
agencies to consider public comments and (in appropriate cases) 
hold public hearings. There are also concerns that the Office 
of Management and Budget may not have adequate time to perform 
the substantive regulatory review mandated by executive order. 
These and other departures from well-accepted rulemaking 
procedures can threaten the integrity of the rulemaking process 
and, of still greater concern, may result in regulations 
detrimental to the public interest that the incoming 
administration will often find difficult to amend or repeal.
    1691. See, e.g., Regulatory Reform Recommendations at 3, 
13.
    1692. A starting point for Congressional consideration may 
be the Midnight Rule Act, introduced by Representative Jerrold 
Nadler (D-NY). H.R. 7296, 110th Cong. (2008). The bill would 
amend the Administrative Procedure Act by delaying the 
effective date of a midnight regulation (subject to exceptions) 
until 90 days after the appointment of the responsible agency 
head by the incoming President. It would also authorize the 
incoming agency head to disapprove a midnight regulation.
    1693. See Department of Justice, Principles of Federal 
Prosecution of Business Organizations (Aug. 28, 2008), 
available at http://www.usdoj.gov/opa/documents/corp-charging-
guidelines.pdf
    1694. ``Journalists Need Protection at the Federal Level,'' 
Wash. Post, Aug. 1, 2007.
    1695. Unlike previous legislative proposals to compensate 
these victims, this bill would allow them to recover only a 
portion of the judgments rendered or claims made--the POWs 
would agree to forgo punitive damages and two-thirds of the 
compensatory damages awarded, and the human shields to forgo 
all punitive damages. Iraq would be required to pay 
approximately $415 million.
    1696. Pub. .L. No. 104-208, Title I, 101(c) (1996), 110 
Stat. 3009-172; codified at 28 U.S.C. Sec. 1605 note.
    1697. On March 20, 2003, as the war began, President Bush 
issued an executive order placing those assets--then totaling 
approximately $1.73 billion--which had previously been frozen, 
into a dedicated Development Fund for Iraq, to be used in the 
post-war reconstruction of Iraq. E.O. 13290, 68 Fed. Reg. 
14,305-08 (March 24, 2003). Assets that had previously been 
ordered attached in satisfaction of judgments against Iraq were 
excluded from the Executive Order, as was Iraq's diplomatic and 
consular property. Six weeks later, on May 7, he declared, 
based on general authority Congress had recently granted him to 
exempt Iraq from laws governing terrorist-supporting states, 
that the terrorism exception to FSIA would not apply to Iraq. 
See Emergency Wartime Supplemental Appropriations Act for 
FY2003, P.L. 108-11, 1503 (April 16, 2003). Memorandum for the 
Secretary of State (Presidential Determination No. 2003-23) 
(May 7, 2003), available at http://whitehouse.gov/news/
releases/2003/05/20030507-13.html. Two weeks later, on May 22, 
he issued another executive order, prohibiting attachment of 
any assets in the Development Fund for Iraq. E.O. 13303, 68 
Fed. Reg. 31, 931 (May 28, 2003).
    1698. Pub. L. No. 110-181, Sec. 1083 (2008).
    1699. Asserting that the section as originally drafted 
would jeopardize Iraq's economic development and security, he 
insisted that it be rewritten to give him authority to waive it 
with respect to Iraq, retroactively as to all pending cases, if 
he determined that a waiver would serve the United States' 
national security interest, promote U.S.-Iraq relations, and 
facilitate reconstruction and political development in Iraq, 
and that Iraq continued to be a reliable ally and partner in 
combating terrorism. Congress passed the revised version of the 
FY08 NDAA, and the President signed it into law January 28, 
2008, exercising his waiver authority that very day. See Pub. 
L. No. 110-181, Sec. 1083(d). White House Memorandum of 
Justification for Waiver of Section 1083 of the National 
Defense Authorization Act (January 28, 2008), available at 
http://www.whitehouse.gov/ news/releases/2008/01/20080128-
12.html. The waiver effectively bars any type of recovery for 
terrorism victims. Anticipating the detrimental impact a waiver 
would have on pending suits, Congress inserted a provision in 
Section 1083 urging the President to work with the Iraqi 
government to help the American victims of Iraqi terrorism 
during the Gulf War obtain relief for the emotional and 
physical injuries they sustained. To date, the President has 
not indicated to Congress that any efforts have been made to do 
so.
    1700. 18 U.S.C. Sec. 3261 (2006).
    1701. H.R. 2740 (110th Cong.) also requires the Inspector 
General of the Justice Department to submit a report to 
Congress regarding the identification and prosecution of 
alleged contractor abuses overseas. This requirement is 
intended to address the Justice Department's apparent failure 
to aggressively investigate and prosecute crimes committed by 
contractors over which it currently has jurisdiction. Finally, 
H.R. 2740 requires the Federal Bureau of Investigation to 
establish a Theater Investigative Unit to investigate reports 
of criminal misconduct in regions where contractors are 
working. This is intended to underscore the importance of 
providing resources to enforce the law.
    1702. Miller, ``Private Contractors Outnumber U.S. Troops 
in Iraq'', Los Angeles Times, July 4, 2007.
    1703. The Military Extraterritorial Jurisdiction Act is 
limited jurisdictionally and only covers those contractors 
abroad who are employed by a federal agency supporting the 
mission of the Department of Defense overseas. As originally 
enacted in 2000, the Act authorized Federal courts to have 
jurisdiction over only civilian employees, contractors, and 
subcontractors affiliated with the Defense Department who 
commit crimes overseas. In 2005, the Act was amended to expand 
the court's jurisdiction to include employees of any other 
Federal agency ``supporting the mission of the Department of 
Defense overseas.'' 18 U.S.C. Sec. 3267 (2006).
    1704. See Meyer, ``U.S. Details Case Against Blackwater 
Guards,'' L.A. Times, Dec. 9, 2008. In addition, there are 17 
pending cases of detainee abuse, including abuses that occurred 
at the Abu Ghraib prison in Iraq, with the U.S. Attorney's 
Office in the Eastern District of Virginia. See War 
Profiteering and Other Contractor Crimes Committed Overseas: 
Hearing Before the Subcomm. on Crime, Terrorism, and Homeland 
Security of the H. Comm. on the Judiciary, 110th Cong. (2007) 
(testimony of Erica Razook). In some of these cases, the Army 
has found ``probable cause'' that a crime has been committed, 
and referred the case to the Justice Department for 
prosecution.
    1705. See Ross, ``Victim: Gang-Rape Cover-up by U.S., 
Halliburton/KBR,'' ABC News, Dec. 10, 2007; Enforcement of 
Federal Criminal Law to Protect Americans Working for U.S. 
Contractors in Iraq: Hearing Before the Subcomm. on Crime, 
Terrorism, and Homeland Security of the H. Comm. on the 
Judiciary, 110th Cong. (2007). In addition to the Jones case, 
there are troubling reports of other similar sexual assault 
cases, with no apparent prosecutions. For example, letters to 
the Pentagon and the Justice Department from Sen. Bill Nelson, 
D-Fla., underscore congressional concern about an alleged 
sexual assault, this time of a woman from Florida who 
reportedly worked for a KBR subsidiary in Ramadi, Iraq in 2005. 
See Rood, ``Another KBR Rape Claim Brings Scrutiny,'' ABC News, 
Dec. 13, 2007.
    1706. H.R. 6492 was introduced by Rep. Bill Pascrell (D-
NJ), Rep. Frank Pallone (D-NJ), and Commercial and 
Administrative Law Subcommittee Chairwoman Linda Sanchez (D-CA) 
in the 110th Congress.
    1707. In DPAs and NPAs, a corporation against which the 
government has sufficient evidence to file criminal charges 
enters into an agreement with the government to a period of 
probation, subject to specific conditions. A DPA differs from a 
NPA in that a DPA typically includes a formal charging 
document--an indictment or a complaint--and the agreement is 
normally filed with the court, while in the NPA context, there 
is typically no charging document and the agreement is normally 
maintained by the parties rather than filed with a court.
    1708. The guidance that has been issued by the Justice 
Department did not come until the eve of hearings on the 
subject by the Judiciary Committee's Subcommittee on Commercial 
and Administrative Law in March, 2008.
    1709. For example, New Jersey U.S. Attorney Christopher 
Christie appointed John Ashcroft, under whom Mr. Christie 
served when he was Attorney General, to be an independent 
corporate monitor with neither public notice nor competitive 
bidding. As a result of that appointment, former Attorney 
General Ashcroft stood to collect fees of up to $52 million. 
Shenon, ``Ashcroft Deal Brings Scrutiny in Justice Dept.,'' 
N.Y. Times, Jan. 10, 2008. See Deferred Prosecutions: Should 
Corporate Settlement Agreements Be Without Guidelines?: Hearing 
Before the Subcomm. On Commercial and Admin. Law of the H. 
Comm. On the Judiciary, 110th Cong. (2008).
    An upcoming Government Accountability Office (GAO) study, 
requested on January 16, 2008 by the Chairmen of the House and 
Senate Judiciary Committees, will shed additional light on the 
Justice Department's use of DPAs, NPAs, and independent 
corporate monitors.
    1710. See, e.g., S. 645, 107th Cong. (2001).
    1711. See, e.g. ``Mr. Bush and the Pardon Power,'' N.Y. 
Times, Nov. 29, 2008.
    1712. See generally Lardner, ``A Pardon to Remember,'' N.Y. 
Times, Nov. 22, 2008.
    1713. See, e.g., Peterson, ``Congressional Power Over 
Pardon and Amnesty: Legislative Authority in the Shadow of 
Presidential Prerogative'', 38 Wake Forest L. Rev. 1225, 1258-
59 (2003).
    1714. See, e.g. Lardner, ``A Pardon to Remember,'' N.Y. 
Times, Nov. 22, 2008.
    1715. The January 28, 2009, House-passed version of H.R. 1, 
the American Recovery and Reinvestment Act of 2009 (111th 
Congress), included many of the key provisions necessary for 
protecting whistleblowers.
    1716. Documents were withheld on the basis of executive 
privilege in congressional investigations into interference 
with the EPA's regulatory process; the Valerie Plame leak; and 
the U.S. Attorneys firings. Executive privilege was also 
asserted with respect to documents in the possession of 
National Security Advisor Rice when requested by the bipartisan 
9/11 Commission established by Congress.
    1717. H. Rep. 110-423, 110th Cong. (2007). See H. Rep. 104-
598, 104th Cong. 38 (1996). (``Under [procedures established by 
President Reagan on November 22, 1982, and adopted by President 
Clinton] . . . [i]f the President decides to invoke [executive] 
privilege, the decision is to be communicated to the 
congressional committee requesting the information that the 
claim is made with the specific approval of the President. In 
the past, Presidents in fact have executed and signed claims of 
privilege which have accompanied a detailed justification 
prepared by the subpoenaed official.'')
    1718. Committee on the Judiciary v. Miers, Civil No. 08-
0409 (JDB), slip op. at 92 (D.D.C. July 31, 2008), app. 
pending.
    1719. ``Report of the Commission on Protecting and Reducing 
Government Secrecy,'' S. Doc. No. 105-2 (1997).
    1720. ``Iraq's Weapons of Mass Destruction Programs,'' 
National Intelligence Estimate, prepared by National 
Intelligence Counsel (October 2002).
    1721. See ``Memorandum for Heads of All Federal Departments 
and Agencies,'' from John Ashcroft, Attorney General (October 
12, 2001), available at http://www.usdoj.gov/04foia/011012.htm.
    1722. Right to Know Community, Moving Toward a 21st Century 
Right-to-Know Agenda 14 (Nov. 2008).
    1723. Id. at 3.
    1724. OPEN Government Act of 2007, Pub. L. No. 110-175, 121 
Stat. 2524 (2007).
    1725. On January 7, 2009, the House passed H.R. 35, the 
Presidential Records Act Amendments of 2009 (111th Cong., Roll 
Call Vote No. 5, available at http://clerk.house.gov/evs/2009/
roll005.xml), which, among other things, would repeal Executive 
Order 13233 by statute.
    1726. See House Comm. on Oversight and Government Reform, 
Interim Report, Investigation of Possible Presidential Records 
Act Violations, June 2007.
    1727. See Baker, ``Cheney Defiant on Classified Material.'' 
Wash. Post, June 22, 2007, at A1; Associated Press, ``Cheney 
Claims Power to Decide his Public Records,'' N. Y. Times, Dec. 
18, 2008.
    1728. 50 U.S.C. 413(a)(1).
    1729. 50 U.S.C. 413b(c)(2).
    1730. Cumming, ``Statutory Procedures under which Congress 
is to be Informed of U.S. Intelligence Activities, including 
Covert Actions,'' CRS Memorandum for Congress, Jan. 18, 2006 at 
7.
    1731. The article by Con Coughlin in the Sunday Telegraph 
article reports:

    Headed simply ``Intelligence Items,'' and dated July 1, 
2001, it is addressed: ``To the President of the Ba'ath 
Revolution Party and President of the Republic, may God protect 
you.''
    The first paragraph states that ``Mohammed Atta, an 
Egyptian national, came with Abu Ammer (an Arabic nom-de-
guerre--his real identity is unknown) and we hosted him in Abu 
Nidal's house at al-Dora under our direct supervision.
    ``We arranged a work programme for him for three days with 
a team dedicated to working with him . . . He displayed 
extraordinary effort and showed a firm commitment to lead the 
team which will be responsible for attacking the targets that 
we have agreed to destroy.''
    There is nothing in the document that provides any clue to 
the identity of the ``targets'', although Iraqi officials say 
it is a coded reference to the September 11 attacks.
    The second item contains a report of how Iraqi 
intelligence, helped by ``a small team from the al-Qaeda 
organisation'', arranged for an (unspecified) shipment from 
Niger to reach Baghdad by way of Libya and Syria.
    Iraqi officials believe this is a reference to the 
controversial shipments of uranium ore Iraq acquired from Niger 
to aid Saddam in his efforts to develop an atom bomb, although 
there is no explicit reference in the document to this.
    Habbush writes that the successful completion of the 
shipment was ``the fruit of your excellent secret meeting with 
Bashir al-Asad (the Syrian president) on the Iraqi-Syrian 
border,'' and concludes: ``May God protect you and save you to 
all Arab nations.''

Coughlin, ``Does this Link Saddam to 9/11?,'' Telegraph, Dec. 
13, 2002, available at http://www.telegraph.co.uk/news/
worldnews/middleeast/iraq/1449441/Does-this-link-Saddam-to-
911.html.
    1732. 50 U.S.C. Sec. 413b(f).
    1733. Suskind, The Way of the World: A Story of Truth and 
Hope in an Age of Extremism 371 (2008).
    1734. Interview of Rob Richer by Ron Suskind, The Way of 
the World Web Site, June 2008, available at http://
www.ronsuskind.com/thewayoftheworld/transcripts/.
    1735. P. Giraldi, ``Suskind Revisited,'' The American 
Conservative, Aug. 8, 2008, available at http://
www.amconmag.com/blog/2008/08/07/suskind-revisited/.
    1736. See D. Priest and R. Wright, ``Iraq Spy Service 
Planned by U.S. to Stem Attacks,'' Dec. 11, 2003, reprinted at 
http://www.ladlass.com/intel/archives/006425.html.
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