congress which urged sending our troops into harm's way soldiers and their families sacrifice in so many ways making the ultimate sacrifice in order to protect us we owe them our best judgment based on the best most complete and most accurate information as to when sending them into battle is absolutely just unnecessary the president sent to senators and members of the house taken to defend the constitution as do our soldiers and in so doing we pledge the respect of the limitations of each branch of a role established by the constitution and systems of checks and balances branches of national government to separate but interdependent and candid communications between them is critical for us citizens to be effectively and honestly represented particularly on issues such as military action today will examine legislation focused on ensuring that congress can rely on the truthfulness of statements made by the executive branch officials for the purpose of influencing a member of congress to authorize the use of the armed forces of the united states we have a number of things to keep in mind as we discuss this legislation such as a historical background of communication between the executive branch and congress specter the need for the nature of the relationship between the branches of the national government and our desire to encourage not discourage open dialogue between them and congress amended the false statements this legislation raises any similar concerns we also need to consider the to which current law covers the types of us reading communications that have prompted this legislation and where the visions of current state current statutes may not apply in the car in this context because for example particular communications may not be pursuant to committees inquiry witnesses will be able to address this issue to our first witness that will be the author of the bill representative walter jones of north carolina will discuss his motivations for introducing legislation will then hear from a panel of witnesses who will discuss the story historical context with the legislation any constitutional issues that may be involved and the text of the bill to see my good friend mr jones here today thank you we're here today to discuss h r seven forty three the executive out countability act of two thousand and nine which proposes to criminalize false statements false documents and concealment by executive branch officials whose purpose it was to influence members of congress to deploy united states armed forces on the face of it forty three seems like a relatively straightforward proposition congress asked for truthful information and intelligence before we commit troops or anyone who intentionally misrepresents that information is subject to criminal penalties the reality of the statement is however a lot more problematic if the eight years since nine eleven has taught us anything it should be that the world for intelligence the truth is not only complicated but sometimes subject to a lot of political gamesmanship the question is should it be a crime if the intelligence turns out to be incorrect that is one of the questions we are here today to or resolve one way or the other at times both congress and the executive branch were forced to act on the best intelligence available at the time these are judgment calls that will be hindered if congress continues to criminalize them in the name of politics there is absolutely nothing wrong with expecting the executive branch starting with the white house and working down throughout the intelligence community the entire executive branch provide congress and the american public with truthful accurate information justifying the commitment united states troops in the loss of american lives anywhere in the world generally there's nothing wrong with congress exercising oversight to review intelligence failures after all that is our obligation under the law we in congress do have an obligation however not to monday morning quarterback those decisions for political reasons simply because we have the benefit of hindsight by continuing to politicize these decisions and sometimes actually attempting to criminal them were create an environment where not only is it likely that less sense in motion will flow from the executive branch to congress but one where future presidents are going to be increasingly inclined to act unilaterally when deploying our armed forces and that a unfortunate outlook we also must remember the title eighteen section ten zero one already makes it a federal crime to provide false statements or documents to congress using the exact language that is proposed in h r seven forty three and a federal perjury charge would often exist in situations where a witness testifies before congress i'm looking forward to seeing what the difference is in section ten zero one and h r seven forty three from mr jones last thing we need to do is further political rise and criminalize a federal criminal code as we discussed last week there are four thousand four hundred fifty federal crimes now in the united states with the congress adding fifty more every year as a member congress i want to promote an environment where there is an open honest dialogue with emphasis on the honest dialogue with the white house and intelligence community in making those decisions i still am open minded regarding h r seven forty three that i thank all of our panelists for being here and i look forward to hearing the thoughts on this bill and some of these questions answered you'll back my time pleased and honored that i would have the opportunity to testify today on h r seven forty three the executive accountability act i would like to begin by reading an excerpt from an essay that appeared in time magazine in two thousand  the essay is also about lieutenant general greg newbold and is entitled why iraq was a mistake from two thousand until two thousand and two i was a marine corps lieutenant general and director of operations for the joint chiefs of staff after nine eleven i was a witness and therefore a party to the actions that led us to the invasion of iraq and necessary war inside the military family i made no secret my view that zealots rationale for war made no sense and i think i was outspoken enough to make those uncomparable but i regret now that i did not more openly challenge those who  determined to invade a country whose actions were peripheral to the real threat al qaida i retired from the military four months before the invasion in part because of my opposition to those who would use nine eleven after reading this article i met with lieutenant general newbold and at least eighteen all the key figures including senator chuck hagel member of the senate intelligence committee to discuss the justification for the war in iraq after these meetings i was convinced the want to rock was not justified chairman i would like to submit the names of those that i met with for the record without objection so to introduce this bill at the many many reflections on the war in iraq and the vietnam war in vietnam fifty eight thousand two hundred twenty americans lost their lives last week a c the author joseph galloway recounts a meeting between the end sector of defense robert mcnamara and president lyndon johnson he writes mcnamara dictated a top secret as only memo to johnson dated november thirtieth  sixty five and that report he said the enemy not only met but had exceeded our escalation of the war and we had reached a decision point and mcnamara's view there were two options option one we could arrange whatever diplomatic cover we could arrange or pull out of south vietnam option two we could give general westmoreland the two hundred thousand more u s troops he was asking for in which case we would have more than five hundred thousand americans on the ground and they would they dine at the rate of one thousand a month he was wrong to death total would reach three thousand a month at the height of the war all we can possibly achieve by this is a military stalemate as at a much higher level of violence not an american fluted one day some of the fifteen thousand nine hundred sixty five the president assembled what he called a wise man for a brainstorming session on vietnam what he meant this was knighting sixty five ten years before the last helicopter lifted off the roof in saigon in that case the president knew we could not win the war yet he contin on after that date in one nine hundred sixty five fifty six thousand americans were killed in vietnam i bring this up to remind us that the arrogance of power by previous presidents have prevented them from changing course from relaying key information as many have said before me if we cannot learn from history we will repeat members of congress must be able to trust the president at his word especially when making decisions to go to war on october the at the two thousand and two law giving a speech in cincinnati ohio president bush talked about iraq's possession of weapons of mass destruction he said the iraqi regime possesses and produces chemicals and biological weapons it is seeking nuclear weapons in that same speech he said and i quote the evidence indicates that iraq is reconstituting its nuclear weapons program chairman i'd like to submit a copy of the senate intelligence committee's report june two thousand and eight where these statements were documented i bring up these examples to make the point that we rely on our present statements when we send u s troops abroad but let me be clear the bill is not about the past the bill is not retroactive and would only appl to presidents in office during and after the signing of this bill should it become law in the future a president must be certain to defend his justification for standing americans into harm's way where death is a very real possibility and they present should be held responsible for sending americans into jeopardy without verifying the facts for going to war the president does not have the power to go to war simply because it is the president's wish i would like to briefly outline the exactly the countability act provisions of the bill would impose criminal penalties on presidents or executive agency officials who knowingly and willfully mislead congress for the purpose  bill would enable a simple or concurrent resolution by congress to trigger a referral of a violation to the attorney general as i have mentioned the bill would apply to present and future  and that is explicitly applies to the present legal scholars disagree as to whether or not theoretically eighteen u s c thousand and one would be applied to a president i think it is important for this congress to express that it is unacceptable for a present to me to mislead the congress when making the case for going to war this bill makes it clear that a president cannot willfully  congress to authorize the use of united states on forces why this bill does not apply it to the playoffs we should learn from the past and demand that our president and executive branch officials do not mislead congress excuse me mislead congress when asking for all to zation to go to war lieutenant general newbold notes in his time magazine essay and i quote in one thousand nine hundred seventy one the rock group the who released the anti war anthem we won't be fooled again general nubile further states to most in my generation this song conveyed a sense of betrayal by the nation's latest who had led us to lead our country into a costly and unnecessary war in vietnam to me this song serves as a reminder of the importance of the present truthfulness when trying to gain support for the use of armed forces the president should be absolutely certain i was justified and the congress must be able to rely on the president's statements when making decision to authorize the use of on forces is my hope that this bill was for salt and action on this important ranking member again i will close by saying to you without any problem with humility that i've signed over eight thousand led us to families and extended families in this country because i believe what i heard in classifi briefings with that mr chairman thank you again for this opportunity i'll be glad to try to answer any questions thank you as for do you have any questions well i have a lot but i'll just ask one based on your comments mr chairman do you think that congress should revisit the war powers act well mr poe i really would love to believe that we would go back to what the constitution asked the congress to do and that's to declare war and i think that anything we can do to put congress back into the position where it can advise the president with knowledge that yes this is the right thing to do and not the right thing to do again i went back to johnson i could go back further but that would not have been helpful but when i look and i read a lot of books i'm not a legal mind as you are and  bill and i just think if no other reason that the that it is going to be fully explained that a president in the future must know before i send american kids to die for nothing i have to go justify my decision to the congress if not i might be prosecuted i don't see where that hurts one thing or knowledge i think is too important to review what johnson did and what i read to you isn't too important to think about the bush administration making all these statements and yet i mean i was very disappointed quite frankly in november december when i saw the president former president bush asked by john king what mistakes did you make and his answer was the first mistake i could not find weapons of mass destruction i would have said to john king my heart is a because i young men and women looking for weapons of mass destruction that did not exist i didn't hear that word i'm sorry that i sent these young men and women to die and i had a woman in my office four years ago to tell me my son died looking for weapons that didn't exist that might that's what she felt is what's been proven we could not find so i've got a little bit off your question i apologize one quick one other brief question the report that you just submitted for the record wasn't that drafted along pretty much partisan lines there was a strong minority report majority report course that is what came out of the committee when it pretty much partisan well i would say that on the flo one of those who made that but given how you are the on person i have i have apologized with signing those let us for six years but no i truthfully i believe what i heard i said that in my statement as right they have almost thank you for your testimony and for your compassion on this issue  legislative relations a second panelist will be a distinguished commentator on legal policy and author of several volumes on the united states supreme court united states constitution and international law at the department of justice and formerly served as a director of the legal policy legal advisor to the assistant attorney general and associate deputy attorney general he served on the american bar association test course on presidential signing statements and i've heard with the final witness will be jonathan khan who is a partner with a law firm in austin previously served for several years as deputy assistant attorney general of the united states department of justice issues and suits challenging the constitution constitutionality of agency regulations and acts of congress each of our witnesses written statements will be entered into the record industry entirely out ask each witness summarize to moni in five minutes or less to help stay within the time the lighting device at the table began and green turn to yellow when there's one minute left and turns to red when the five minutes have expired and we'll begin with  war when we look at the bill introduced by congressman jones i think it's consistent with two broad themes in american history and one is what the framers knew about going to war and secondly what we know from the framers up to now about going to war what the framers knew when they looked at other countries going to war is that single executives go to war not for the national interest they go to war for reasons of military glory for fame for ambition and the result of those wars was a calamity for the country both in terms of lives lost and fortunes squandered  the framers did not trust in human nature particularly not in single executives going to war and if you look at their deliberations they understood that the decision to take the country from a state of peace to a state of war was to to be jack the british model that gave all of the executive power over foreign affairs and war to the executive that was the blackstone model that was the john locke model and instead all the progressives that blackstone spoke about in his work not one of those prague this is given to the president they're given to congress in article one or the shared between the president and the congress such as treaty making and appointing ambassadors that's what the framers knew not to trust single executives they go to war for wrong motivations what we've learned since that time i think confirms what the framers know about human nature in single executives is that we have at least since the mexican war on we have wars started by presidents and executive officials on the basis of false information it's a fairly steady track record the eighteen forty's up to the present time so there's a basis for this bill false statements act would have criminal prosecution when you make false statements to the executive branch but not when you make false statements to congress so of course you had to fix that and you did but i think the subcommittee in co did a very thoughtful job in making sure that other values were protected so you wanted to protect the adversary process in court you didn't want to charities in court in the briefs in oral argument worrying about a false statements prosecution and you also wanted to protect the information that members of congress need and coming from constituents to you and to your staff and you protected that so i think there's a way to protect the main value  and other values as well i say in my statement i don't think there's any bill of attainder here whatever punishment comes comes not from congress as with the love it case but it comes from the justice department deciding to prosecute and what happens in the courts and i also don't think there's any legislative veto a charter problem because you're not trying to control anything in the executive branch you're just referring by reports i do have some thoughts at the end of my statement about the bill i mean to i soon that any time congress through a resolution of the two houses through a concurrent resolution submit something to the attorney general that be in a report be fully documented be an opportunity of the individual to submit documents to see documents to have counsel and so forth all your procedural safeguards of the second point about prosecuting the president the thing many of us would find it not likely that the justice department would want to have a criminal prosecution against a president but i would say in addition to having my report involving the president go to the attorney general would go to the  committees for consideration of impeachment and i can see situations where there is enough information coming in about a president where impeachment is not necessary that the president decides on the basis of information that is time to retire from office and we have precedents of that not only for presidents but for vice presidents giving notice to congress and my pen dick's on the cambodian operation on a false statements given by president nixon as the house judiciary committee considered whether to have an article of impeachment it sided not to in part because although president nixon spoke falsely to the name and then to congress he told the truth to a couple of members of congress in secret so i don't know what the committee wants to do about that but i don't think it's acceptable to have presidents making false statements to the country and the congress in public and then telling the truth to a few people in private  o less thought in addition to whatever is done under this bill congress needs at the time statements are made by the state department the defense department by the president to do your regular oversight and when people make public statements this to you to call them before you under oath and ask on what basis they have and you have to do that at the moment you can't do it years later when many of these people in public office i'm afraid will make false statements or misleading statements and assume that they will soon retire from the government after two years and go back to private life thank you very much thank you mr front thank you mr chairman and members of the committee i want to begin by expressing what i think is a clear constitutional basis for the bill and then i want to address some of the issues that have been raised about the application the false statements act put is asian or otherwise that i think congressman poe had addressed in his opening statement  i think it's absolutely clear as mr fisher expressed the founding fathers were unanimous that the sole power of initiating authority for war was with the congress the express statements are too numerous  particular hearing but it ranged from those who supported a strong legislative branch to those who wanted a very muscular executive the latter being alexander hamilton who despite being known as someone who is a strong proponent of perhaps even a semi monarchy still in the federalist papers made clear that unlike the king of great britain the present united states would not have any authority to initiate war so we start out with a clear exclusive authority of congress to initiate war and so under the article one section eight clause eighteen the necessary and proper clause congress is intrusted with authority to pass laws that are necessary and appropriate to assist the regulation or implementation of that power and obviously one way in which necessary and proper clause works here is to ensure that congress is receiving accurate information and or least not knowingly false information from the president of the united states that bears materially on their decision whether or not to authorize war and remember here this is not a first amendment problem about freedom of speech the only kind of speech that would expose the president to criminal penalties speech that is knowingly false and materially false that satisfies what the lawyers call york times and sullivan standard of protecting speech when it's knowing and intentional and it's a materially false statement of fact it's not protected by the first amendment that's why i don't believe that there's any problem in the application of this law presidential statement now there's another question what would this law incline the president to do if the president wanted an absolute shield against any conceivable accusation that this was violated he simply needs to share all of the information he relied upon the congress which is what we'd like him to do he doesn't have to share it in public he can share it in executive session and then he says based upon my opinion this justifies war but he can't be accused of a false statement he's letting congress have access to the same information that he had congress make their independent decision he could not possibly be accused of violating this law because he's not making a personal assertion of fact that he was knowing that he knew there was materially false now what is it that makes this statute very very important in my judgment is going back why do we need to worry about false statements by the president knowingly false to get us into war the founding bothers understood as madison said when war comes the president gets the secrecy he gets the money he gets the appointments you get the possible glory of transforming the world if you will the congress needs to have make this decision because it doesn't have any incentive to warp or skew the danger to get us into war when war comes congress doesn't get the money congress gives the money congress doesn't get the secrecy congress doesn't get the appointment power congress doesn't get the fame in remembrance it doesn't mean that congress is infallible like any institution it can make errors but congress doesn't have any systematic incentive to inflate danger to get us in the needless wars because they don't get benefits they get the tragedy of writing as congressman jones said to the mothers and fathers of their children who have died why did you die and i think if you look historically there has never been an abuser and no a rush of congress into war they have been encouraged exhorted by the presidents the most recent being of course the gulf of tonkin resolution that was passed when president johnson perhaps in good faith misrepresented the alleged north vietnamese torpedo attacks on u s ships but it's not congress that's rushing us into war i don't believe that given the importance of this particular statute that we should leave it to the ambiguity is of the false statements laws to whether to apply for the president or not we know that in the context of the iraqi war resolution when there were clear misstatements made whether they were knowing or not about weapons of mass destruction i don't know anyone was saying hey how come a thousand and one doesn't apply i think there's obviously clear and big or uncertainty as to whether it applies when it comes to the president it's not fair to leave him to snares out there and letting him guess whether the statute applies we want to make it is unambiguous as possible so he has fair notice and fair warning in the last issue of can the statute be politicized in its enforcement capacity can congress politicize the enforcement will congress doesn't have authority under separation of powers to initiate a criminal prosecution they can make recommendations as they can with regard to any other alleged violation of the criminal code whether it's obstruction of justice or otherwise but the ultimate decision here is in the executive branch you can be by a special prosecutor but congress certainly cannot politicize this particular matter now that doesn't mean to suggest that in the executive branch it can't be politicized obviously that's true of every single crime there is because the constitution doesn't trust the prosecutorial discretion to the president and the president alone absent i guess you could create an independent counsel as was done with regard to the mor olson case that would be outside the president's authority to fire unilaterally but overall mr chairman i believe this is a sound bill i think it's an urgent bill i think we have two possibilities on the horizon where it might arguably come into play one is iran we know the arguments about possessing weapons nuclear weapons and warheads and whether iran is about ready to attack israel that kind of thing that could be a case where war could be on the horizon the other is in pakistan where you could imagine a presence and taliban's about ready to take over the country pakistan's a nuclear armed country we need to go to war things of that sort i'm not suggesting that the president would make misstatements but the idea that you know wars are over we're not going to confront problems with presidential characterizations of danger are gone i think are misplaced thank you thank you thank you mr chairman and members of the subcommittee like other members of this panel  suspect pretty much every single person in this room i believe the communications between the executive branch and congress should be truthful and candid always and especially in the context when the country makes the grave decision to send its children off to war but that said i remain unconvinced that h r seven forty three is an appropriate way to mandate truthfulness and improve communications between the political branches as an initial matter the bill's effect  constitutionally limited in three significant respects and even when permitted by the constitution the bill be more likely to inhibit intra branch communication than to promote it i'll begin by addressing the constitutional concerns although r seven forty three is not unconstitutional on its face it could be unconstitutional instant a few of us applications and courts would be likely to construe the statute along those lines first under the ex post facto clause the bill cannot apply retroactively so it could not be used to prosecute anyone in any previous administration for the iraq war or otherwise second consistent with the history of open and direct communications between the white house and the american people courts likely will read the bill to cover only direct communications by executive branch officials to congress the president has inherent authority to address this national constituency and in light of the can is constitutional avoidance the bill likely would not reach communications with the american people or the press even though such statements theoretically at least could have the indirect effect of influencing congress decision to authorize the use of force third the bill's prohibition on concealing a material fact from congress likely would be found unconstitutional as applied to the near non disclosure of classified information by executive branch officials the supreme court has recognized that the president has power as commander in chief to classify and control access to national security information so again courts are likely to read limitations into the bill if it were inaccurate now as for the many circumstances in which the bill would not raise constitutional concerns i am still unable to support it for programmatic reasons although i share the desire to promote truth telling in washington this bill in my view is more likely to impede in branch cooperation than to facilitate it i am foremost concerned with the potential chilling effect that the bill could have an intra branch communications the fear of potential criminal prosecution would exact its toll on executive branch officials as the supreme court has recognized a mere threat of monetary liability deters officials willingness to execute his office with decisiveness and also discourages able citizens from accepting public office in the first place these concerns needless to say are all the more significant when the penalty is not just money damages but ten years in federal prison and here's the problem in a rapidly developing foreign crisis you often just don't have complete information and you simply do the best with what you have at the time you have to make that decision but if more information subsequently comes to light suggesting that an official previously should have known his statement was false and may be difficult for him to disprove the allegations and the inference is against him it's the monday morning quarterbacking that congressman poe alluded to earlier that's the concern and this is administrations position has become unpopular and the new administration is more interested in attacking its political enemies than addressing the country's needs even if the investigation is eventually dropped or the official is ultimately exonerated he will have had to endure the expense and disruption of defending against the public accusation the results are not ones that congress should encourage for instance h r seven forty three would create incentive for the white house not to seek authorization for the use of force in the first place the degree to which congressional approval is a necessary condition for war making is a controversial and unresolved debate in washington for many years and there's no need to rehash that issue today so face it to say that to the extent that executive branch officials are cognizant of their criminal exposure in the course of lobbying congress to approve the use of force  officials will be correspondingly less likely to bring congress on board as a full partner in the decision to deploy troops and that decision might be to use unilateral but even if it is it's not good for congress it's not good for the american people that is not something this congress should encourage more over congress already has the means to protect itself and to gather truthful information before authorizing the use of force this is something which i think some people might have overlooked if congress wants to ensure that executive branch officials do not mislead anyone in the legislative branch congress can simply take testimony under oath or conduct a formal investigation or review any misstatements in those contacts to give rise to criminal punishment under the perjury statute the false statements act and possibly the obstruction of justice dept you there's thus little or no need to extend criminal liability to the many informal and or branch communications that occur on a daily basis in real time and extension which may well inhibit instead of promote the flow of information from the administration to congress if i may there's just one final comment i'd like to make on the bill and it's overarching focus not a particular provision unlike many nations chairman the united states has been blessed with a propensity to look forward instead of looking backward as apology from the first peaceful transition of power to the jeffersonian democrats by the federalists to the efforts to stitch together this great nation after the civil to the decision to pardon this grace president this country has always been well served by moving forward instead of dwelling on past grievances if a president or his administration is perceived to have misled congress or the public into war his opponents are very capable of extracting a political price at the ballot box for two reasons this approach is far superior to a criminal investigation or prosecution first elections distribute responsibility to the winners and not retribution to the van question and second quarter ill suited to resolve controversies regarding american foreign policy h r seven forty three would invite a judge and jury often lacking clear repeatable standards to decide what facts were material to congress's decision as well as what facts were objective lee falls and who knew what punishing the ousted regime may be preferred course of sir banana republics of the past but with respect to should not be united states has passed in the twenty first century i look forward to answering any questions you may have thank you and i think all of our witnesses will know or recognize us as one of the five minute rule so questions  do with the statute one and he also kind of alluded to the fact that congress has so messed up its war powers constitutional responsibilities you use the term the term of the bill is  influence a member of congress to authorize the use of the armed forces of the united states that could be like war but it could be the use of the armed services is a term of art we kind of know what it is i think it means authorize the armed forces to take us into a conflict where it becomes legal to murder people because we are in a state of war with a foreign  specific as if it's the resolution kannan on kind of like going to war and not just using the armed forces for any kind of military operation that may not be well i think it the issue i think arises for this reason mr chairman in the past when congress has appropriated money authorized the use of the armed forces they haven't used the same language some times it was a declaration of war sometimes they haven't used those magic words i think the key here is whether or not the authorization is intended to see them involved in conflict with a foreign country now we have organizations as well if you call them terrorist organizations but  that you're talking about an armed conflict against another country yes although i think the reason why it has to be broader is because of course where so called at war with not with a tactic for the first time in history so we don't want to be in a situation where the president term falsifies conceals or cover up would be a violation to selectively present the case and leave out alternative view of course it would and that's the way in which you know even our securities laws are that way to fail to make a statement or to conceal it in light of the context which makes the statement in total misleading and mr chairman i want to draw an analogy to a situation in the law the fifth amendment privilege against self incrimination you can't go down a road and waive your privilege and start talking about a subject and stop in midstream and say i don't want to answer any more questions you've got once you open it up you have to tell everything because you can readily see how you can totally skew the true facts by just telling half of the story so if a president does something like this he says i've got one informant who's told me that iran has weapons of they've got a nuclear arsenal that they're just about ready to launch against israel the next five minutes he also has twenty five other informants who tell him this informant is a liar and we have absolute proof that that's not true and the president comes and says well i'm just telling you what the one form it says in conceals the twenty five other forms that discredits him that in my judgment is a knowing lie and certainly would fall within the meaning of this stat president may make statements to congress a committee and endeavor a legislative endeavor and i know the statement was made that perhaps this couldn't be applied constitutionally to statements that were made maybe to congress and the american people at the same time the president goes on television because that the free speech issue well i think that's clearly wrong remember this is limited to statements that the president knows is false it's not a false statement of an opinion it's a false statement of fact you can criminalize those statute i mean that kind of speech  other context the greatest compulsion for criminalizing it when you're married put in a context where men and women may go off to die for the country on a false premise well it's not only has to be knowingly and willfully making the false statements but it has to be in the bill at the bottom of page two for the purpose of influence and yes i know there are other crews that this would be a special  like the f d a or other areas where the public is endangered because of false statements i have been focused on that mr chairman there may well be i think the urgency of this statute is because the consequences for the american people just go to the vietnam wall are so much greater that maybe reasons to extend the idea to other agencies as well let me just ask one other question so we don't have to have a final around this this been a suggestion that the present law doesn't apply to the executive branch although the president lost except as otherwise for this section whoever in any manner why would anybody who would differ sort of make what the branch of government or whatever your station in life where would you not be covered by whoever i think the supreme court has made it clear that interpret ng statutes they're very loath to apply obligations on the president of the united states that particular office interpret in other statutes freedom of information act privacy act etc and it's something what you might call like a a clear statement rule that is used in federalism kind of cases and it's arguable to say well it's such a grave step for the reasons that mr cohen has suggested to perhaps penalize a president for making a false knowing false statements in these circumstances we won't impute to congress an intent to cover it unless it does so very explicitly and i'm sure probably the legislative history of the statute doesn't mention the president this context so a court might try to avoid a tough question by a narrow construction chairman mr cohen i have a few questions for all of you but i'll try to be brief in your answer to the point you said that seven forty three is not the answer seven forty three is not the answer for this problem what is well with respect i don't think that this is a problem that calls for any legislation but if the problem is the one that mr fein and mr jones identified earlier that the current law one thousand and one does not cover the president if that's the only problem that this up because somebody wants to address the easy solution is simply to clarify one thousand one to make clear the president discovered there's no reason to enact h r seven forty three which does much more namely cover the hundreds if not thousands of daily informal communications there are made during a crisis between the executive branch and the congress do you think that the seven forty three would have some type of chilling effect of communication between the executive branch and the legislative branch is a practical matter or not absolutely because supreme court has recognized that mere monetary liability the mere threat of monetary liability would inhibit executive officials from performing their duties diligently and discourage individuals from joining public service in the first place those concerns are all the more severe when you're talking about ten years in federal prison and look i mean the reality is people do the best they can with the information they have in crises occur in short periods of time you don't have the luxury of being a monday morning quarterback and individuals who are doing their best operating in good faith might worry look next year or even next month new information might come to light that shows i should have done something differently but i'm still doing the best i can right now not wanting to face the prospect of criminal liability he might not do anything he might not make the right decision worrying about the threat of criminal prosecution there definitely is a chilling effect dr fisher you know weigh in on that yes i right now a thousand and one applies to executive officials and i don't i haven't heard the argument that anyone coming before a committee or to the public should have any doubt that the information that they are giving is in good faith accurate and reliable and they would be no question about them knowingly and willfully misleading congress or the public so i think there is a chilling proper chilling effect that you speak truthfully and i think mr cohn has said that that's the proper standard may respond to that very quickly quickly one very fundamental difference between one thousand and one and h r seven forty three in this is something i believe that dr fisher has overlooked one thousand and one covers investigations or abuse and certain ministry of matters it does not cover the hundreds or thousands of informal communications that occur all the time in crises think of the week after nine eleven think of all the communications that occurred informally between congress and the executive branch those informal communications those phone calls are not covered by one thousand and one they would be covered by h r seven forty three and that's a problem people in the executive branch are not going to want to pick up the phone if they think every phone call could subject them to criminal liability you would have ultimately because of the chilling effect only one line of communication the formal investigations review you would lose that second channel of intelligence information because of the chilling effect one thousand and one does not cover that h r seven forty three does i think that we all want more troops in washington d c i think even congress can handle it so how do we get there from here we want to know the facts congress will know the facts that we can pass it on the american public especially when it comes to american troops going somewhere and haven't the possibility of dying so how do we promote that how do we get there well i think you can't promote basic moral and ethical tenets like that through legislation i think the answer is for public officials and both the congress and the executive branch to learn what they learned in kindergarten just do the right thing and tell the right thing and not depend on criminal statutes to plot their way for them that's not the answer to so we apply this to all communication from the president why i think we should apply th and some other issues and do as it does and they do it through should we apply that to everything the president tells congress if congress were to enact this legislation and with respect to don't think it should but if congress disagrees and wants to enact this legislation because it thinks that criminal punishment is the answer if it thinks that criminal punishment is the way to get more truth telling and i disagree with that but if congress thinks that criminal punishment is the way to get the truth there's no reason to stop at lying in the context of getting authorization for the use of force why not extend this to every other context every other executive branch like just take one example think of health care i don't know if anyone is miss peaking in the context of health care but what if for example a proposal did not cost a trillion dollars but rather four or five trillion dollars as a result of which he could saddle this country for generations with enormous debt it could perhaps discourage doctors for meeting in medicine as a result of that patients are dying outside hospitals that's a problem i think if this congress thinks that legislation is the way to get more truth telling it should not stop force authorization but she extended across the board to health care and everything else but i for one do not think that legislation is the way to get out the truth friend walter jones sitting back here and know that there's not a better heart in all of congress anybody who has the best interests of the country more than friendster jones  i do have concerns about this bill and i keep coming back to the stuff that really seemed to give rise to this the bush administration the perception of arrogance and made some bad decisions along the way and the bailout in my opinion for one thing but they also took the approach that history will be kind to us down the road so they quit defending themselves not valerie had nothing to do with the matter she definitely had not proposed that i make the trip then when we finally got her a e mail says my husband has good relations with the pm and for mr mize not to mention lots of french contacts and she had said was willing to help me she kept pushing the guy we finally got her secret memo she may have misrepresented things to the senate and you know i kept going back to his article he wrote in the san jose paper in two thousand and two where fraud under the oil for food program and they were are supposed to be our friends and they stabbed us in the back and then according to miss valerie plame the lots of french contacts as wilson's buddies had must have been greatly relieved when he was able to all of a sudden come out of the blue and say that bush lied about the uranium issue got france out the front page and put bush there for the rest of his administration and that mr fine i was a little bothered you said you know that if the president related what one person said and not twenty five then he would certainly be guilty of the crime i've had juries come back and say we believe the one we didn't believe the twenty five that is in the jury's discretion is a under a fact and here you've already judged a president clarify the distinction in the jury situation that you've got the jury hears both sides and can believe the one rather than twenty five but the jury knows the twenty five and the one the situation i'm referring to is a situation where the congress just knows about the one and doesn't even know the other twenty five that's the difference well the problem is the people in the executive branch have to make findings of fact and have to make decisions because under the constitution and it's a great document i commend to you the executive makes these decisions on foreign policy no that's not accurate we make the decisions with the purse strings and we can affect that but well obviously we have a disagreement and obviously depending on who the jury is one of us could be found guilty of a crime the way it seems you want to head this thing there's not going to be  a situation where somebody cannot come forward and say i don't believe the president i don't believe the cia gave us all the information because they have truckloads of information and if they leave one thing out then  they're opening themselves up to a crime under this bill i think the the motives and the motivation of this bill are very good but i also have concerns when a president says there is no time for congress to read this bill just give me eight hundred billion dollars people are losing their jobs every day give me the money give me the money and we've got no time to raise bill and then four days later after it's passed he gets around to a photo op and i feel like we were defrauded into passing a bill under false pretenses there i mean the question is where does it stop about when you can go after a president the president was using the political process back when he got the stimulus bill passed and i'm just concerned about going back to the carter years of the mask elating the intelligence community because frankly if i'm in the cia and this bill is law and my gut instinct is there's a real danger but i know if i'm wrong somebody is going to come after me for committing a crime you shake your because that that's just wrong if there were any concern while greenways wrong the way in which they were anybody in the executive branch make certain there's no accusation they just disclose all of the information available of them to congress then there isn't any conceivable basis that they could say they misled anybody and that's what we want to encourage they can i was a was it in public or in confidential and call or to adapt to your position our intelligence would be nothing but a conduit they would not be able to use their judgment in discerning what was more important than what was less important decisions if they were wrong on what was more important or less important there you go you deceived as you said this was more about if you look at the  statute mr congressman the statute is designed to enforce the congressional exclusive authority to make the decision not the cia or the president the congress decides whether to initiate warfare and decide that now you and the i don't believe that you could find a single founding father ranging from james madison to alexander hamilton who ever uttered a syllable suggesting the president could initiate war and so what we're looking at is the reason why you want to make the decision not the cia because it's your responsibility to to send men ourselves of intelligence opinions if we do not i mean if we make this chilling effect of creating a crime out there if they're wrong and what they represent this is not a crime to just wrongly make up to make an you disclose what you've got and you would like the members of congress to decide that it would be lovely to live ellen in the bubble that you seem to live in but politics is a big deal and in this town people go after people for criminal violations for purely political reasons so it has a chilling effect all over this town some of the things that are going on right now and i would love to think that nobody would ever use politics as a reason to go after somebody when they did nothing wrong but politics plays a part and if there is any chance of going after somebody it does happen and obviously you've been very gracious to me appreciate thank you let me ask one follow up question we've talked about the executive branch may be covered maybe not covered under the present law and that could be in this bill would clearly so that speeches in public made to informal comments and speeches made there will convince the public to call your congressman to vote for the war and create the political climate that makes it what would be part of a scheme covering material facts can you talk about the appropriateness of speech in informal comments being covered by the criminals yes let me start with an example so we know that this problem isn't just academic you may have read the book angler about dick cheney has authored by report of the washington post and he recounts and this is not been disputed by any of the participants situation prior to this body's voting on the iraqi war resolution and usually then majority leader dick armey was opposed to the resolution he said that he didn't see any danger that saddam hussein was creating to the united states and he recounts that mr cheney then approached him in his chambers and told him two things that were not factual one that saddam hussein had learned how to eyes nuclear weapons and secondly that al qaeda could be the human delivery vehicle for those and based upon those assertions he changed his vote and at least according to mr the majority leader that that his vote changed may have  enabled the house to vote in favor of that i see no reason if you can establish that statements in that context were knowingly and purposely made for the purpose of get training and authorization for war why they shouldn't be penalized  with regard to general statements to the public again it's not protected free speech knowingly to make material misstatements of fact not opinion and if the purpose is the pernicious one of obtaining authorization for war i don't see any reason why that should not be penalized and i want to come back there is no risk of any criminal penalty as long as the president makes available to this body all the information that he was examining and i come back i think it's a gross misperception that the president is the one who should be making the decision to go to war or not that's been the problem for the last fifty years it's this body that makes the decision you want to be the people who evaluate those facts based on your own judgment you know like that  the president makes the case the war is not just to members of congress in the general public and i don't think you'd want to set up a situation where the president feels some obligation under the law to tell the truth to congress and then not tell the jews to the american public because  you feel that from your constituents and that's the whole purpose of the white house machinery to convince the public to get congress to do something so i think the obligation to tell the truth is equal to congress and to the public and i think the bill to follow up with much funner stand your point the president does make foreign policy and the executive branch does but when you talk about knowingly and parse purposefully there are two different things in making the allegation and dieting some that leads to a document and then actually convicting someone if you have the law there and you're an intelligence officer and you've been gathering resources for months there's no way you can convey every and if emphasize one thing you don't have months of research in your presentation i mean five men statement here is what you're allowed to make and there's no way you can have all of the information there and it's a good point to make it available and i wish both the past administration and this distraction were more forthcoming in making information available but it is easy to charge people with knowingly i have heard prosecutors say well we have a difference of opinion on whether you knowingly will lead to that question is for the jury in the meantime somebody has been arrested and dieted because it's not that hard to get somebody indicted and then you destroy the lives as we've seen repeatedly  somebody else and dieted in a later acquitted or charges dropped at the last point as a last minute you destroy lives and this clearly would have if i'm if i'm an intelligence officer there's there's no way i would want to be in a position of coming to the hill and briefing members of congress because there's no way i could give them everything i know and somebody is going to come after me for whatever if they don't like the ultimate decision and certainly if somebody says what's your gut i understand the point this applies to facts and not opinion but somebody says what your gut instinct which is one of the most important things an intelligence officer can provide i would say you make that call because if you make a suggestion then it appears that that's what you were trying to do push them in that direction and therefore anything left out on the other side from your opinion could be used to prosecute you i just see it terribly chilling effect on our intelligence community we've already  comment well i think that there is a practical way to accommodate what you recognize is the infeasibility of coming up and giving you thousands of documents here you just put in and i was when the reagan administration  times if you want to come down to a vault you can go visit open and the intelligence officer in the position that you describe simply says i've evaluated all of this information which is available if you want to come in with your security clearance at your leisure you can look at it it's my opinion based upon the it's the evaluation that one two three is justified as a conclusion but the decision is yours you are deciding because remember this bill only applies in the context of congress deciding whether to authorize war and he says but the ultimate decision is yours you've got to decide what the facts are whether they justify going to war that is out of jail free card because the what the purpose here is to make sure that congress knows exactly the level of reliability that t place in making their decision to vote on war issues and with that kind of statement from the intelligence officer he's not going to be pursued by anybody saying the lack of information is being used to vote to spend more money in the last minute in a disgraceful like i've been misled into doing something and there's some issues about the last administration i have concerns about myself but i just have real concerns about the poor intelligence officers out there being put more in harm's way here mean this i've been watching some of this back in my office and trying to draw bead on this particular issue  obviously a decision to commit troops whether for the first time or can it committed additional troops in any circumstance is one of the most serious matters we have the question is whether this is the proper way to handle it and  one of the reasons i have concerns is what is an opinion and what is a fact we're now in in brawley over here in the congress over a simple document a chart that was developed by the republicans on the joint economic committee to show precisely what would happen if we passed the current version of the health legislation that is that is before the congress and initially republicans have been prohibited from sending it out because we were told our  that somehow it is false and misleading and then we have the situation where and i'm a member of the franking commission where we have approved letters newsletters that have been presented by members of the other side of the aisle who make a statement in there that the stimulus package that was passed has created or saved three point five million jobs i think that is absolutely inaccurate that's an opinion they are expressing in an effort to stated as a fact to persuade the audience of their position while i disagree with their representation and they disagree with our representation of this chart on a serious matter for the american people health care i was trying to think if there would be a similar circumstance in which someone discussing the very serious issue of the use of armed forces would have the same sort of problem and my concern about this bill is does it tend lend itself to that type of characterization if you disagree with a policy that is it is immaterial misstatement of a fact the example of the stimulus package three point five million jobs now there are those who believe you can determine whether that is a fact or not we believe there is a bureaucratic morass in the health bill and we try and track it and we are told by the other side that that's a material representation essentially if you have an administration or a representative of the administration who is making  and believes for instance let's say there's no weapons of mass destruction this member of the administration has reviewed all the intelligence recognizes that through different sources of intelligence but based on his or her experience believes that to be true and makes that statement but in conveying that to the congress does not point out each and every alternative opinion which he is aware that would go against that conclusion would we run would we potentially run afoul of this law if in fact after the fact it's proven that there were no weapons of mass destruction mr foreign well i think there are two issues that are raised by the question one you talk about the fact the pinion distinction we've had supreme court decisions certainly since the welsh in one thousand nine hundred seventy six thirty three years where the court definitively said there can't be false opinions only false statements of fact that can expose you to jeopardy in speech areas that have attempted to draw that line and i think the terms of the miller to make that determination what the fact is well i understand but that's true of any time you have any kind of litigation at all juries and judges make findings of fact but i don't think that you could deny that it's an assertion of fact if you say iraq does or iran does or does not have weapons of mass destruction but that doesn't necessarily even if it turns out to be an error it doesn't mean it's culpable it's only when the speaker knows he knowingly state something that is false that puts someone into jeopardy here at what point what point time to come fall if he has evidence that he m over and in his own mind makes a judgment as fifty one forty nine that there are weapons of mass destruction is that is that misleading the congress in if he doesn't disclose that that that was that close in his judgment i wouldn't think so but there's no reason why there would be a chilling effect to just say if you have if you're not one hundred percent certain just tell the members what percentage of confidence you're speaking about something of that sort and they go back to the issue of you know what the need to do to make certain is not libel they take the situation where you've got conflicting evidence there's been conflicting evidence my conclusion is that persuasive case is made that there are not weapons of mass destruction the conflicting evidence is in the vault and you need to make the decision because you're going to decide whether to go to war or not not me and you can examine that you can make up your own mind that's a way to make sure that you have the maximum disclosure and you're not jeopardizing the intelligence official if the chairman would indulge me a little bit further i have i must be a slow reader because i've been reading eisenhower book about world war two and his particular activity in europe called europe and in several places he makes it very very clear that intelligence can never be perfect in fact it goes far beyond that he talks in there about how they were told and he was convinced that when the allied troops came across north africa moving from west to east that their intelligence told them that they would be greeted as liberators those who had been living under the french when in fact that was absolutely not the case and they suffered losses as a result he mentions in different circumstances during the course of the book about intelligence that was wrong and about how you have to reckon you make your best decision based on the intelligence you have but i never felt that he suggested that in the making of the decision that you somehow had to say to your troops as you're sending them off you know i got great hope this is going to work but you know there's other in my group here my subordinates who told me that there's about a forty forty five percent chance you're going to fail and you're all going to lose your lives that's not exactly the way you run a war my question is are we trying to sort of split the baby in half here putting a criminal sanction on those in the exact register much as i want to have as much information as i have but but putting the burden of criminality on them in these circumstances i think your analogy is a little bit misplaced because the circumstances we're talking about are not at the the troops don't have responsibilities for deciding whether to fight the congress of the united states does that's why they need to be told all the information the percentages that you describe because you need to decide whether that percentage is enough to send men and women into harm's way once you're already in war the soldiers doesn't have any authority under the constitution or otherwise to second guess the commander in chief you do have authority and an obligation to second guess if you think they're wrong to decide to initiate warfare that's the difference i think your distinction between facts and opinion is helpful and made a bill like this could influence the executive fishless to be more forthcoming about what they say even if it's an opinion don't present it as a fact and as you remember after iraq released its weapons of mass destruction report two thousand pages the administration said it's a two thousand page lie and one of the things the state department did was to be released what they called a fact sheet and and they said rock fails to disclose that i was trying to get uranium or from a country in africa where there was not a fact that was something based on a fabricated docked document i don't know if the state department knew it at that time but that was not all right what let me ask a question of the state department didn't know it was fabricated at the time and took it for fact what is inappropriate about them stating it is fact it's it's it's the will willful misleading of congress that we presenting a fact it's not a fact this is an assertion and it's a false assertion no no no no no my question was if in fact if they believed it to be true they did not know it was a fabrication that is not i would hope exactly officials would be very careful in when they say something is a fact to know it is a fact instead of it being a judgment or an opinion well the point i was trying to make is eisenhower tried to tell us that you don't always know what facts are facts in the area of intelligence and that 's that's the point you do the best you can huge mistakes have been made lives have been lost there's no doubt about that and decisions that eisenhower made based on the information that he had and every military leader that we have had it also make a difference to me in the statements made in time of war we all know that there are very tough judgments in time of war whereas i think the jones bill is clearly on an issue aiding war and i think you can take it to just a different standard i think but i didn't get your old january of zero five but early on in one of my republican conferences with the president i said why we keep having these actions where we send people to harm's way and we don't have a declaration of war you want to declaration of war why shouldn't we consider doing that and i'm still intrigued that we don't do that we haven't done that for a very long time but that 's wrong i think that ought to be what congress does and you should insist upon it i don't think the president can just say well if you're not going to give it to me i'll unilaterally initiate war that's unconstitutional but every bents but the congress did vote to authorize the sending troops and providing for them and all it basically was providing for a war without the declaration and my question back in zero five was why don't we go ahead and make the declaration if it's really that you know from the very start eighteen zero one eight hundred eighteen zero one there were two supreme court cases that said congress has an option it can either authorize or it can declare and that had been the policy in europe and alexander hamilton mentioned that so i think constitutionally authorization this efficient to a declaration i think is the choice for congress no i agree but my concern grew out of it when we sent people but we didn't really mean for them to willfully falsifies and so forth if you are making anything close to a good faith statement or even a good faith opinion that in any kind of good faith it is not knowingly and willfully falsified yeah i agree one hundred percent but in this town you wouldn't necessarily be convicted but you sure could be arrested and harassed from their own if i could just make an observation about the alleged politicization of conduct that's at the high national security war area i do not perceive with a change of administration from do democrat on january twentieth of this year a pleaded zation of the law enforcement arm of the justice department where they're targeting republicans in the past administration so obviously that's a theoretical possibility throughly do not see those officials being subject to grand jury investigations or anything of that sort would encourage you to read the news that i do every day in rio if you can send me a list of all the former republican officials who are now are under investigation i'd be great i don't think we've gotten a little off of subject but i'd like to thank our witnesses for their testimony today members may have additional court written questions which will forward to us that you answered properly is quite possible so this is very may be may be made for out of the record the hearing record remaining will remain open one week for submission of additional materials and without objection the subcommittee stands adjourned thank you