[Congressional Record Volume 154, Number 153 (Thursday, September 25, 2008)]
[Senate]
[Pages S9456-S9459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       RESTORING THE RULE OF LAW

  Mr. FEINGOLD. Mr. President, last week we celebrated the 221st 
anniversary of the day in 1787 when 39 members of the Constitutional 
Convention signed the Constitution in Philadelphia. It is a sad fact, 
as we consider that anniversary, that for the past 7\1/2\ years, and 
especially since 9/11, the Bush administration has treated the 
Constitution and the rule of law with a disrespect never before seen in 
the history of this country.
  By now, the public can be excused for being almost numb to new 
revelations of Government wrongdoing and overreaching. The catalog is 
really breathtaking, even when immensely complicated and far-reaching 
programs and events are reduced to simple catch phrases: torture, 
Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, 
data mining, destruction of e-mails, U.S. attorney firings, 
stonewalling of congressional oversight, abuse of the state secrets 
doctrine and executive privilege, secret abrogation of Executive 
orders, signing statements.
  This is a shameful legacy that will haunt our country for years to 
come. That is why I believe so strongly that the next President of the 
United States--whoever that may be--must pledge his commitment to 
restoring the rule of law in this country and then take the necessary 
steps to demonstrate that commitment. That is why, also, I held a 
hearing last week in the Constitution Subcommittee of the Senate 
Judiciary Committee asking a range of legal and historical experts 
exactly what the new President and the new Congress must do to repair 
the damage done by the current administration to the rule of law.
  There can be no dispute that the rule of law is central to our 
democracy and our system of government. But what does ``the rule of 
law'' really mean? Well, as Thomas Paine said, in 1776:

       In America, the law is king.

  That, of course, was a truly revolutionary concept at a time when, in 
many places, the kings were the law. But more then 200 years later, we 
still must struggle to fulfill Paine's simply stated vision. It is not 
always easy, nor is it something that, once done, need not be carefully 
maintained.
  Justice Frankfurter wrote that law:

       . . . .is an enveloping and permeating habituation of 
     behavior, reflecting the counsels of reason on the part of 
     those entrusted with power in reconciling the pressures of 
     conflicting interests. Once we conceive ``the rule of law'' 
     as embracing the whole range of presuppositions on which 
     government is conducted . . . , the relevant question is not, 
     has it been achieved, but, is it conscientiously and 
     systematically pursued.

  The post-September 11 period is not, of course, the first time that 
the checks and balances of our system of government have been placed 
under great strain. As Berkeley law professors Daniel Farber and Anne 
Joseph O'Connell wrote in testimony submitted for the hearing on this 
topic:

       The greatest constitutional crisis in our history came with 
     the Civil War, which tested the nature of the Union, the 
     scope of presidential power, and the extent of liberty that 
     can survive in war time.

  But as legal scholar Louis Fisher of the Library of Congress 
described in his testimony, President Lincoln pursued a much different 
approach than our current President when he believed he needed to act 
in an extra-constitutional manner to save the Union. He acted openly, 
and sought Congress's participation and ultimately approval of his 
actions.
  According to Dr. Fisher, Lincoln took actions we are all familiar 
with, including withdrawing funds from the Treasury without an 
appropriation, calling up the troops, placing a blockade on the South, 
and suspending the writ of habeas corpus. In ordering those actions, 
Lincoln never claimed to be acting legally or constitutionally and 
never argued that Article II somehow allowed him to do what he did. 
Instead, Lincoln admitted to exceeding the constitutional boundaries of 
his office and therefore needed the sanction of Congress. . . . He 
recognized that the superior lawmaking body was Congress, not the 
President.
  Now, of course, each era brings its own challenges to the 
conscientious and systematic pursuit of the rule of law. How the 
leaders of our government respond to those challenges at the time they 
occur is, of course, critical. But recognizing that leaders do not 
always perform perfectly, that not every President is an Abraham 
Lincoln, the years that follow a crisis are perhaps even more 
important. As Yale Law School Dean Harold Koh testified at the hearing:

       As difficult as the last 7 years have been, they loom far 
     less important in the grand scheme of things than the next 8, 
     which will determine whether the pendulum of U.S. policy 
     swings back from the extreme place to which it has been 
     pushed, or stays stuck in a `new normal' position under which 
     our policies toward national security, law, and human rights 
     remain wholly subsumed by the `War on Terror.'

  I could not agree more.
  So the obvious question is: Where do we go from here? One of the most 
important things that the next President must do, whoever he may be, is 
take concrete steps to restore the rule of

[[Page S9457]]

law in this country. He must make sure that the excesses of this 
administration don't become so ingrained in our system that they change 
the very notion of what the law is. And he must recognize that we can 
protect our national security--in fact, we can do it more effectively--
without trampling on the rights of the American people or the rule of 
law.
  That, of course, is much easier said than done. But there is one 
immediate step that, while it may be viewed as symbolic, is critically 
important for the next President to take: stating clearly and 
unequivocally in the inaugural address that he renounces the current 
administration's abuses of executive power and that his administration 
will uphold the rule of law. To be sure, this isn't the only subject 
the new president should address, but it is among the most urgent. 
Where he stands on executive power goes beyond policy and politics and 
speaks to his respect for the Constitution itself. And a willingness to 
raise this issue in the inaugural address will send a message, loud and 
clear, to the American public, to Congress and to every level of 
government that the days of lawlessness and excess are over.
  Thomas Jefferson said this in his first inaugural address:

       The essential principles of our Government form the bright 
     constellation which has gone before us and guided our steps 
     through an age of revolution and reformation . . . [S]hould 
     we wander from them in moments of error or of alarm, let us 
     hasten to retrace our steps and to regain the road which 
     alone leads to peace, liberty and safety.

  I hope our next President will echo that sentiment in his inaugural 
address. Indeed, demonstrating that commitment on day one will go a 
long way toward reinstating what Ohio State University Law Professor 
Peter Shane called a ``rule of law culture'' in government. As he 
explained in his hearing testimony:

       The written documents of law have to be buttressed by a set 
     of norms, conventional expectations, and routine behaviors 
     that lead officials to behave as if they are accountable to 
     the public interest and to legitimate sources of legal and 
     political authority at all times, even when the written rules 
     are ambiguous and even when they could probably get away with 
     merely self-serving behavior.

  This cuts to the core of the problem that the next President will 
face: After 8 years of disregard for the rule of law at the highest 
level of government, how can we instill new norms and expectations 
throughout the Federal Government? Stating that commitment in the 
inaugural address will go a long way in that direction.
  But it is not only a matter of a new President saying: Ok, I won't do 
that anymore. This President's transgressions are so deep and the 
damage to our system of government so extensive that a concerted effort 
from the executive and legislative branches will be needed. And that 
means the new President will, in some respects, have to go against his 
institutional interests--a challenge that we cannot underestimate.
  That is why I called the hearing last week on this topic--to hear 
from legal and historical experts on how the next President should go 
about tackling the wreckage that this President will leave behind. I 
asked witnesses to be forward-looking--not to simply review what has 
gone wrong in the past 7 or 8 years, but to address very specifically 
what needs to be set right starting next year and how to go about doing 
it. In addition to the testimony of the witnesses at the hearing, I 
solicited written testimony from advocates, law professors, historians 
and other experts. I was pleased that we received nearly 30 written 
submissions from a host of national groups and distinguished 
individuals.
  At the hearing, we heard testimony from one of the foremost legal 
scholars in the country about just how far outside mainstream legal 
thought the current administration went. We heard comparisons to the 
events leading up to the Church Committee's investigation in the 1970s, 
from the man who served as chief counsel to that committee. We heard 
from a former Republican Member of Congress about Congress's failure to 
assert itself as a coequal branch of government. We heard from the 
former head of the Justice Department's office of legal counsel about 
the perversion of the law that was allowed to occur in that important 
office. We heard from a former White House chief of staff about the 
dangers of the excessive executive secrecy that permeated the 
government under this administration. We heard from a leading national 
security lawyer about the harm that post-9/11 domestic surveillance 
policies have done to our national security. And we heard from the head 
of one of the leading human rights organizations about the damage our 
interrogation and detention policies have done to our reputation 
abroad.
  But most importantly, we heard from every one of these individuals 
their specific prescriptions for moving beyond these mistakes--for 
taking the steps that are necessary to restore our core American 
principles.
  Indeed, between the hearing witnesses and the written testimony that 
was submitted, the subcommittee received an enormous number of 
recommendations, including many provocative and important ideas. They 
range from the general to the very specific, and they cover a variety 
of subject matters, from government secrecy to detention and 
interrogation policy to surveillance to separation of powers. I am very 
pleased that so many experts took the time to offer these proposals.
  Let me take a few minutes today to share some examples of the kinds 
of recommendations that the witnesses provided, both those who 
testified at the hearing and those who submitted written testimony. 
Several suggestions reinforce my belief that the new administration 
must set a clear tone of adherence to the rule of law from the start. 
Mark Agrast of the Center for American Progress Action Fund suggests 
that the President should convene a White House conference on the rule 
of law, and pledge to work with Congress to give priority to measures 
to restore public confidence in the rule of law. Former Solicitor 
General Walter Dellinger argues that:

       [T]he next President should . . . affirmatively adopt a 
     view of presidential power that recognizes the roles and 
     authorities of all three co-equal branches and that takes 
     account of settled judicial precedent.

  Many of our witnesses are concerned about the impact of the last 8 
years on the separation of powers, and specifically about Congress's 
failure to stand up to the president as he asserted more and more 
unconstrained power. Several strongly suggest oversight and 
investigative hearings to determine what exactly happened. Frederick 
Schwarz of the Brennan Center suggests an independent, bipartisan, 
investigatory commission to assess what has gone wrong and what has 
gone right with the Nation's policies concerning terrorism. Such a 
commission would allow the public to get the full story of the abuses 
of the Bush administration, providing accountability and a mechanism 
for developing protections against future abuse that can be implemented 
by the executive and legislative branches. The ACLU suggests more 
narrowly focused oversight hearings in Congress to reveal illegal or 
improper executive branch activity, and argues that Congress must deny 
funding for programs it believes are abusive or illegal.
  Former Congressman Mickey Edwards, a Republican from Oklahoma, also 
argues that Congress must use the power of the purse to assert its will 
in interbranch disagreements. He believes that Congress should 
aggressively utilize its subpoena power to get the information it 
needs. Being able to enforce congressional subpoenas, of course, is an 
important component of oversight, and several witnesses had suggestions 
on that topic. Common Cause believes that the next president should 
issue an Executive order mandating Federal agencies' complete 
cooperation with congressional investigations. University of 
Pennsylvania Law Professor Seth Kreimer argues that officials who 
ignored legitimate congressional subpoenas should be prosecuted. The 
Center for Responsibility and Ethics in Washington suggests that 
Congress enact legislation granting jurisdiction to the Federal courts 
over cases seeking enforcement of congressional subpoenas. And Bruce 
Fein, a former Reagan administration official, believes a special 
three-judge court should be created that could appoint an independent 
counsel to enforce contempt findings against the executive branch since 
the Department of Justice refused to enforce congressional subpoenas 
during this administration.

[[Page S9458]]

  Many of the suggestions from our witnesses focus on the 
decisionmaking of our national security agencies. Stephen Aftergood of 
the Federation of American Scientists suggests enhancing oversight of 
intelligence agencies by using cleared auditors from the GAO. And Mark 
Agrast advocates establishing a national security law committee within 
the National Security Council to make decisions on legal issues related 
to national security.
  A crucial part of restoring the rule of law in the next 
administration will be rebuilding the reputation of the office of legal 
counsel. Walter Dellinger, joined by a prestigious group of former OLC 
attorneys, provided detailed testimony on how that can be done. The 
incoming attorney general should pay very close heed to this advice.
  Another issue that almost every person or group mentioned in their 
submissions is the problem of excessive government secrecy. This 
problem permeates all of the other rule of law issues discussed at the 
hearing. When the executive branch invokes the state secrets privilege 
to shut down lawsuits, hides its programs behind secret OLC opinions, 
overclassifies information to avoid public disclosure, and interprets 
the Freedom of Information Act as an information withholding statute, 
it shuts down all of the means to detect and respond to its abuses of 
the rule of law--whether those abuses involve torture, domestic spying, 
or the firing of U.S. attorneys for partisan gain.
  With regard to this administration's overuse of the state secrets 
privilege, University of Chicago law professor Geoffrey Stone and many 
others recommend that Congress pass S. 2533, the State Secrets 
Protection Act, which was reported out of the Judiciary Committee in 
April. The bill takes the simple and obvious step of requiring courts 
to review allegedly privileged documents to determine whether they 
really are privileged.
  To address the rampant problem of overclassification, several 
submissions, including that of John Podesta from the Center for 
American Progress Action Fund, urge the next President to rewrite the 
executive order on classification to reverse some of the changes made 
by President Bush to that order. In particular, President Bush 
eliminated provisions that established a presumption against 
classification in cases of significant doubt, that permitted senior 
agency officials to declassify information in exceptional cases where 
the public interest in disclosure outweighs the need to protect the 
information, and that prohibited reclassification of materials that 
have been released to the public. Contributors argue that these 
provisions be restored.
  On the issue of secret OLC opinions and other manifestations of 
secret law, there is general agreement that legislation is needed to 
require greater disclosure of the law under which the executive branch 
operates. A number of submissions recommend the passage of 2 bills I 
introduced this year: the Executive Order Integrity Act, which requires 
the president to publish notice in the Federal Register when revoking 
or modifying a published Executive order, and the OLC Reporting Act, 
which requires the Attorney General to report to Congress when the 
Department of Justice concludes that the executive branch is not bound 
by a statute.
  Finally, the National Security Archive and others address the proper 
standard for disclosure of information under the Freedom of Information 
Act. Attorney General Reno issued a memorandum in 1993 that contained a 
``presumption of disclosure'': even if a document was technically 
exempt from disclosure under FOIA, the Department of Justice would 
defend the withholding only if disclosure would actually harm an 
interest protected by the exemption. Attorney General Ashcroft reversed 
that presumption in 2001. Contributors uniformly recommend that the new 
administration immediately restore the presumption of disclosure.
  The subcommittee also received numerous recommendations for reforming 
our detention and interrogation policy. Detailed plans for 
accomplishing the difficult task of closing the detention facility at 
Guantanamo Bay were presented by Elisa Massimino of Human Rights First, 
by the Center for Strategic and International Studies, by Harold Koh, 
and by a group of 20 leading scholars. There is near- universal 
agreement that Guantanamo should be closed. These thoughtful proposals 
deserve careful consideration. A number of groups also recommend 
dismantling the current system of military commissions, and instead 
trying terrorist suspects in U.S. courts or military courts-martial.
  With respect to interrogation practices, Princeton's Deborah 
Pearlstein and others argue that the U.S. Government should have a 
single, government-wide standard of humane detainee treatment. 
Massimino suggests that the President and the Congress should invest in 
efforts to pursue the most effective and humane means of intelligence 
gathering. And Harold Koh emphasizes the importance of fully complying 
with obligations under the Geneva Conventions and the Convention 
Against Torture.

  And finally, a number of recommendations were made on government 
surveillance and privacy issues. National security lawyer Suzanne 
Spaulding argues that the next administration should undertake a 
comprehensive review of domestic intelligence activities and 
authorities, to assess their effectiveness and to ensure that they 
support, rather than undermine, the rule of law. She points to a number 
of key issues for review, many of which were also mentioned in other 
submissions as issues where changes need to be made.
  These include the Foreign Intelligence Surveillance Act and the 
related amendments made this summer; national security letters and 
other Patriot Act authorities; the first amendment implications of 
domestic spying activities; data mining and other data collection and 
analysis activities; profiling in the name of counterterrorism; the 
appropriate role of the many Federal, State and local entities that are 
now involved in domestic intelligence gathering; and the need to 
enhance transparency and oversight in all of these areas. This is a 
long list, but Spaulding argues that too many of these powers were 
created piecemeal, without consideration of how they fit together and 
without adequate consideration for the need to respect civil liberties.
  This is just a sampling of the careful and interesting proposals that 
the subcommittee received. Taken together, these recommendations should 
serve as an excellent source for both branches of government. While I 
am not at this ge time going to propose a specific plan of action to 
the next President or the next Congress, I am reviewing the legislative 
proposals that have been submitted, and I hope my colleagues will take 
advantage of them as well. I thank each and every person who made the 
effort to submit these recommendations. They have done this country a 
real service.
  In January, I intend to present the full hearing record to the new 
President, and urge him to take specific actions to restore the rule of 
law. These recommendations should serve as a blueprint for the new 
President so that he can get started right away on this immense and 
extremely important job of restoring the rule of law.
  It will not be easy. Even those steps that are almost universally 
agreed upon, such as the necessity of closing the facility at 
Guantanamo Bay, pose tricky legal and practical questions. And, of 
course, there may be institutional resistance within the executive 
branch to actions that are viewed as ceding power to the other branches 
of government, no matter how unprecedented the executive power theories 
that need to be undone. But as Suzanne Spaulding explained at the 
hearing:

       We have to demonstrate that we still believe what our 
     founders understood; that this system of checks and balances 
     and respect for civil liberties is not a luxury of peace and 
     tranquility but was created in a time of great peril as the 
     best hope for keeping this nation strong and resilient.

  This is an important point, because the polices pursued by this 
administration have not kept this Nation ``strong and resilient.'' They 
have undermined national unity, diminished our international standing 
and alliances, and hurt our efforts to counter the serious threat we 
face from al-Qaida and its affiliates. By putting policies in place 
that accord with basic American principles, we can strengthen our 
national security as well.
  As I said at the outset, it is the years that follow a crisis that 
may matter

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most, that are the true test of the strength of our democracy. So I 
hope that the next President will carefully review the many 
recommendations that have been presented, because the future of our 
democracy depends on it.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan is recognized.
  Mr. LEVIN. I thank the Chair.
  (The remarks of Mr. Levin pertaining to the introduction of S. 3577 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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