[Congressional Record Volume 154, Number 93 (Friday, June 6, 2008)]
[Senate]
[Pages S5355-S5357]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        OFFICE OF LEGAL COUNSEL

  Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer for 
coming to the chair a little early in order to allow me a chance to 
make a statement. It was a considerable courtesy and one that is much 
appreciated.
  I will open my remarks by saying: Well, here we go again. I have come 
to the floor several times already to warn of what appears to be a loss 
of integrity and legal scholarship at the once proud Office of Legal 
Counsel at the Department of Justice.
  First, back in December, I pointed out the, shall we say, 
``eccentric'' theories that arose out of the OLC's analysis that 
greenlighted President Bush's program for warrantless wiretapping of 
Americans. Those opinions had been secret. These theories came to light 
after I plowed through a fat stack of classified opinions held in 
secret over at the White House and pressed to have the particular 
statements declassified.
  My colleagues may recall that these theories included the following:

       An executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     executive order whenever he wishes to depart from the terms 
     of a previous executive order. Rather

[[Page S5356]]

     than violate an executive order, the President has instead 
     modified or waived it.

  As the Presiding Officer well knows, Executive orders have the force 
of law. A theory like this allows the Federal Register, where the 
executive orders are assembled, to become a screen of falsehood behind 
which illegal programs can operate in violation of the very executive 
order that purports to control the executive branch. So that was a fine 
one.
  Here is another:

       The President, exercising his constitutional authority 
     under Article II--

  That is the section of the Constitution that provides for the 
Presidency and the executive branch of Government. Article I 
establishes the Congress; article II establishes the executive branch--

     can determine whether an action is a lawful exercise of the 
     President's authority under Article II.

  I think the expression for that is ``pulling yourself up in the air 
by your own bootstraps,'' and it runs contrary to widely established 
constitutional principle. The seminal case of Marbury v. Madison, which 
every law student knows, says it is emphatically the province and the 
duty of the judiciary to say what the law is. And none other than the 
great Justice Jackson once observed:

       Some arbiter is almost indispensable when power . . . is . 
     . . balanced between different branches, as the legislature 
     and the executive. . . . Each unit cannot be left to judge 
     the limits of its own power.

  Yet this was the opinion of the Office of Legal Counsel.
  Here is the one I found perhaps most personally nauseating:

       The Department of Justice is bound by the President's legal 
     [opinions.].

  A particularly handy little doctrine for the White House, when it is 
the legality of White House conduct that is at issue. Wouldn't it be 
nice if you could come into the courts of America or face the laws of 
America with a principle that the law-determining body has to follow 
your instruction? If criminals had that, no one would ever go to jail. 
It is inappropriate in our system of justice.
  So I found these theories pretty appalling. I found them to be, 
frankly, fringe theories from the outer limits of legal ideology. They 
started me worrying about what is going on at the Office of Legal 
Counsel.
  Then we came to the OLC opinions the Bush administration used to 
authorize waterboarding of detainees. Then, again, I came to the floor 
because I was flabbergasted, horrified to discover that to reach its 
conclusions, the Office of Legal Counsel totally overlooked two highly 
relevant legal determinations and then went and drew language out of 
health care reimbursement law--health care reimbursement law--in order 
to justify allowing the administration to torture and waterboard 
prisoners.
  What were the highly relevant legal determinations the Office of 
Legal Counsel overlooked? Well, one was that it was American 
prosecutors and American judges who in military tribunals after World 
War II prosecuted Japanese soldiers for war crimes, for torture, on 
evidence of their waterboarding American prisoners of war. Missed it.
  The other major thing the OLC overlooked was that the Department of 
Justice itself prosecuted a Texas sheriff as a criminal for 
waterboarding prisoners in 1984. The sheriff's conviction went up on 
appeal to the U.S. Court of Appeals for the Fifth Circuit, one row 
under the U.S. Supreme Court, and the appeals court, in a public 
opinion, described the technique as ``water torture.'' The opinion used 
the term ``torture'' over and over again. All a legal researcher has to 
do is type the words ``water torture'' into the legal search engines, 
Lexus or Westlaw, and this case comes up: United States v. Lee, 744 F2d 
1124.
  How did the wide-ranging legal analysis that ranged as far afield as 
health care reimbursement law for guidance miss a case that is bang on 
point, that was prosecuted by the Department of Justice itself, that is 
reported in a decision of the U.S. Court of Appeals, that describes 
this exact technique as ``water torture''? How, indeed.
  After this, I began to refer to whatever it is that the Office of 
Legal Counsel has now become as George Bush's ``Little Shop of Legal 
Horrors.''
  Now we have this. The FISA statute contains what is called an 
exclusivity provision. The FISA statute of the Foreign Intelligence 
Surveillance Act is the law that governs our surveillance authority on 
foreign intelligence matters. It is an active issue before this body 
right now, and the exclusivity provision is actively being discussed. 
Here is how it reads:

       [FISA] shall be the exclusive means by which electronic 
     surveillance . . . and the interception of domestic wire, 
     oral, and electronic communications may be conducted.

  ``Exclusive means.'' It seems pretty clear. And exclusivity 
provisions such as this in statutes are not uncommon. More on that 
later.
  But let's look at what the Office of Legal Counsel said about that 
language. This is language Senator Feinstein and I have had 
declassified. Similar to the others, it was buried in a classified 
opinion:

       Unless Congress made a clear statement in the Foreign 
     Intelligence Surveillance Act that it sought to restrict 
     presidential authority to conduct wireless searches in the 
     national security area--which it has not--

  ``Which it has not''--

       then the statute must be construed to avoid such a reading.

  Well, this is particularly devilish because we have had a long 
argument through the FISA debate with the administration over the 
exclusivity provision. Senator Feinstein has led the charge on this, 
with strong bipartisan support from Senators Hagel and Snowe, and never 
once, in all these discussions, have I heard the administration say: 
Oh, there is a problem with the exclusivity language in the FISA bill. 
There is a loophole in it. It is not as strong as it could be. There is 
something Congress did in the exclusivity clause that would open a way 
for the President to wiretap Americans without a warrant.
  Never once been said. But behind the scenes, in secret opinions, they 
proclaimed that some loophole exists. I do not see the loophole: FISA 
``shall be the exclusive means . . . .'' Where are you going to 
challenge it? Are you going to say: Well, maybe the hole is that they 
referenced the national security area? But the national security area 
is where our foreign intelligence surveillance exists. Well, maybe it 
has to do with wireless searches? No, wireless searches are precisely 
what the FISA act is all about. Maybe it has to do with Presidential 
authority? Well, who else wiretaps? We do not in Congress. The judges 
do not. Of course, it is the executive branch.
  So maybe it is that they do not think it was a clear enough 
statement? Well, let's take a look at that and start with a case from 
the U.S. Supreme Court. The Supreme Court was discussing a statute that 
gave the Court ``exclusive'' jurisdiction. Chief Justice Rehnquist 
wrote for the Supreme Court that this was ``uncompromising language.''
  He continued:

       [T]he description of our jurisdiction as ``exclusive'' 
     necessarily denies jurisdiction of such cases to any other 
     federal court.

  Chief Justice Rehnquist said:

       This follows from the plain meaning of ``exclusive.''

  The Chief Justice then cited to Webster's New International 
Dictionary for that plain meaning. My Webster's defines ``exclusive'' 
as ``single, sole,'' ``excluding others from participation.'' That 
sounds clear to me. The ``single'' means, the ``sole'' means, the means 
that excludes others from participation.
  Lower courts have discussed the FISA statute's own exclusivity 
provision directly. Chief Justice Rehnquist was talking about a 
different exclusivity provision. The FISA exclusivity provision was the 
subject of a case called United States v. Andonian, cited 735 F. Supp. 
1469. The court said this. Let me read three sentences talking about 
the exclusivity language in FISA.

       [This language] reveals that Congress intended to sew up 
     the perceived loopholes through which the President had been 
     able to avoid the warrant requirement. The exclusivity clause 
     makes it impossible for the President to ``opt-out'' of the 
     legislative scheme by retreating to his ``inherent'' 
     Executive sovereignty over foreign affairs . . . . The 
     exclusivity clause . . . assures that the President cannot 
     avoid Congress' limitations by resorting to ``inherent'' 
     powers as had President Truman at the time of the ``Steel 
     Seizure Case.''

  By using this exclusivity clause, the court concluded:

       Congress denied the President his inherent powers outright. 
     Tethering Executive reign,

[[Page S5357]]

     Congress deemed that the provisions for gathering 
     intelligence in FISA and Title III were ``exclusive.''

  Now, there still may be a constitutional question about whether the 
President's Article II powers exist, no matter whether Congress has 
passed a particular statute. But there can be no real question about 
the intention or the effect of FISA's exclusivity provision.
  I have sat and stared at FISA's exclusivity provision and the OLC 
language side by side, and I cannot make sense of how they came to that 
conclusion. Congress says, plain as day, FISA is the exclusive means, 
and OLC says Congress did not say that.
  So I wonder, maybe there is some strange legal use of the term 
``exclusive'' that I missed in my 25 years of lawyering. Then I find 
this Court decision that says this very language in the FISA statute 
means Congress ``intended to sew up the perceived loopholes,'' that 
this language ``makes it impossible for the President to `opt-out' '' 
of the FISA requirements; that it ``assures that the President cannot 
avoid Congress's limitations,'' and that by this language ``Congress 
denied the President his inherent powers outright.''
  Then I thought, maybe that is just a district court decision. That is 
a lower court. But here is the Supreme Court of the United States 
looking at an exclusivity clause in another statute and calling it 
``uncompromising language,'' taking that word ``exclusive'' at its 
plain dictionary meaning. There is literally no way I can see to 
reconcile OLC's statement with the clear, plain language of Congress.
  I have, in the past, expressed the fear that the Office of Legal 
Counsel, under veils of secrecy, immune from either public scrutiny or 
peer review, became a hothouse of ideology, in which the professional 
standards expected of lawyers were thrown to the winds, all in order to 
produce the right answers for the bosses over at the White House.
  Well, as I said at the beginning, here we go again. Oh, one more 
thing. When the Department of Justice sent me the letter acknowledging 
that there was nothing that needed to be classified about this phrase, 
they also said this phrase was now disclaimed--their opinion was now 
disclaimed; not just declassified but disclaimed--by the Department of 
Justice.
  The letter reads:

       [A]s you are aware from a review of the Department's 
     relevant legal opinions concerning the NSA's warrantless 
     surveillance activities, the 2001 statement addressing FISA 
     does not reflect the current analysis of the Department.

  But that does not answer this: What went wrong at the OLC? What led 
to this disclaimed opinion in the first place, and other opinions I 
have had to come to the floor about? Has it been put right? This is an 
important question because this is an important institution of our 
Government, and we need to be assured it is working for the American 
people, that it is of integrity and that it is back to the standards of 
legal scholarship that long characterized the once-proud reputation of 
that office.
  We do not have that assurance. There is a continuing drumbeat of what 
appears to be incompetence, and we need the reassurance. We are 
entitled to the reassurance. Something has to be done.
  Mr. President, I ask unanimous consent that the Department's letter 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                     Washington, DC, May 13, 2008.
     Hon. Dianne Feinstein,
     Hon. Sheldon Whitehouse,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein and Senator Whitehouse: This 
     responds to your letter, dated April 29, 2008, which asked 
     about a particular statement contained in a classified 
     November 2001 opinion of the Department's Office of Legal 
     Counsel addressing the Foreign Intelligence Surveillance Act. 
     The statement in question asserted that unless Congress had 
     made clear in FlSA that it sought to restrict presidential 
     authority to conduct warrantless surveillance activities in 
     the national security area, FlSA must be construed to avoid 
     such a reading. The statement also asserted the view in 2001 
     that Congress had not included such a clear statement in 
     FlSA. As you know, and as is set forth in the Department of 
     Justice's January 2006 white paper concerning the legal basis 
     for the Terrorist Surveillance Program, the Department's more 
     recent analysis is different: Congress, through the 
     Authorization for Use of Military Force of September 18, 
     2001, confirmed and supplemented the President's Article II 
     authority to conduct warrantless surveillance to prevent 
     catastrophic attacks on the United States, and such authority 
     confirmed by the AUMF can and must be read consistently with 
     FlSA, which explicitly contemplates that Congress may 
     authorize electronic surveillance by a statute other than 
     FlSA.
       We understand you have been advised by the Director of 
     National Intelligence that the statement in question, 
     standing alone, may appropriately be treated as unclassified. 
     We also would like to address separately the substance of the 
     statement and provide the Department's views concerning 
     public discussion of the statement.
       The general proposition (of which the November 2001 
     statement is a particular example) that statutes will be 
     interpreted whenever reasonably possible not to conflict with 
     the President's constitutional authorities is unremarkable 
     and fully consistent with the longstanding precedents of OLC, 
     issued under Administrations of both parties. See, e.g., 
     Memorandum for Alan Kreczko, Legal Adviser to the National 
     Security Council, from Walter Dellinger, Assistant Attorney 
     General, Office of Legal Counsel, Re: Applicability of 47 
     U.S.C. section 502 to Certain Broadcast Activities at 3 (Oct. 
     15, 1993) (``The President's authority in these areas is very 
     broad indeed, in accordance with his paramount constitutional 
     responsibilities for foreign relations and national security. 
     Nothing in the text or context of [the statute] suggests that 
     it was Congress's intent to circumscribe this authority. In 
     the absence of a clear statement of such intent, we do not 
     believe that a statutory provision of this generality should 
     be interpreted so to restrict the President constitutional 
     powers.''). The courts apply the same canon of statutory 
     interpretation. See, e.g., Department of Navy v. Egan, 484 
     U.S. 518,530 (1988) (``[U]nless Congress has specifically 
     provided otherwise, courts traditionally have been reluctant 
     to intrude upon the authority of the Executive in military 
     and national security affairs.'').
       However, as you are aware from a review of the Department's 
     relevant legal opinions concerning the NSA's warrantless 
     surveillance activities, the 2001 statement addressing FISA 
     does not reflect the current analysis of the Department. 
     Rather, the Department's more recent analysis of the relation 
     between FISA and the NSA's surveillance activities 
     acknowledged by the President was summarized in the 
     Department's January 19, 2006 white paper (published before 
     those activities became the subject of FISA orders and before 
     enactment of the Protect America Act of 2007). As that paper 
     pointed out, ``In the specific context of the current armed 
     conflict with al Qaeda and related terrorist organizations, 
     Congress by statute [in the AUMF] had confirmed and 
     supplemented the President's recognized authority under 
     Article II of the Constitution to conduct such surveillance 
     to prevent further catastrophic attacks on the homeland.'' 
     Legal Authorities Supporting the Activities of the National 
     Security Agency Described by the President at 2 (Jan. 19, 
     2006). The Department's white paper further explained the 
     particular relevance of the canon of constitutional avoidance 
     to the NSA activities: ``Even if there were ambiguity about 
     whether FlSA, read together with the AUMF, permits the 
     President to authorize the NSA activities, the canon of 
     constitutional avoidance requires reading these statutes to 
     overcome any restrictions in FISA and Title III, at least as 
     they might otherwise apply to the congressionally authorized 
     armed conflict with al Qaeda.'' Id. at 3.
       Accordingly, we respectfully request that if you wish to 
     make use of the 2001 statement in public debate, you also 
     point out that the Department's more recent analysis of the 
     question is reflected in the passages quoted above from the 
     2006 white paper.
       We hope that this information is helpful. If we can be of 
     further assistance regarding this or any other matter, please 
     do not hesitate to contact this office.
       Sincerely,
                                             Brian A. Benczkowski,
                      Principal Deputy Assistant Attorney General.

  Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer again 
for his courtesy and yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Jersey, Mr. Lautenberg.
  Mr. LAUTENBERG. Mr. President, I thank you. I will not take long.

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