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EXECUTIVE ACCOUNTABILITY ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 743 

JULY 27, 2009 

Serial No. 111–72 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JULY 27, 2009 

Page 

THE BILL 

H.R. 743, the ‘‘Executive Accountability Act of 2009’’ .......................................... 3 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Ted Poe, a Representative in Congress from the State of 

Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 6 

WITNESSES 

The Honorable Walter B. Jones, a Representative in Congress from the State 

of North Carolina 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 19 

Mr. Louis Fisher, Specialist in Constitutional Law, Law Library of the Library of Congress, Washington, DC 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 26 

Mr. Bruce Fein, Legal Consultant, Washington, DC 

Oral Testimony ..................................................................................................... 42 

Prepared Statement ............................................................................................. 44 

Mr. Jonathan F. Cohn, Partner, Sidley and Austin, Washington, DC 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 61 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Senate Intelligence Committee Report submitted by the Honorable Walter 

B. Jones, a Representative in Congress from the State of North Carolina ..... 83 

(1) 

EXECUTIVE ACCOUNTABILITY ACT OF 2009 

MONDAY, JULY 27, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Jackson Lee, Gohmert, Poe, and 

Lungren. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger, Counsel; Veronica Eligan, Professional Staff Member; (Minority) Caroline Lynch, Counsel; and Robert Woldt, FBI Detailee. 

Mr. SCOTT. The Subcommittee will now come to order. 

I am pleased to welcome you today to the hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on the Executive Accountability Act of 2009. 

There are no more important communications from the executive 

branch to Congress than those which urge sending our troops into 

harm’s way. Our soldiers and their families sacrifice in so many 

ways, some 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 and necessary. 

The President, Senators and Members of the House take an oath 

to defend the Constitution, as do our soldiers; and in so doing we 

pledge to respect the limitations of each branch’s role established 

by the Constitution’s systems of checks and balances. Our branches 

of national government are separate but interdependent; and candid communications between them is critical for our citizens to be 

effectively and honestly represented, particularly on an issue such 

as military action. 

Today, we will examine legislation focused on ensuring that Congress can rely on the truthfulness of statements made by the President and executive branch officials about when it is necessary to 

use our military. The bill before us seeks to amend the Federal 

Code to specifically prohibit false statements that are made knowingly and willfully by the President or other executive branch officials for the purpose of influencing a Member of Congress to authorize the use of the Armed Forces of the United States. 

2 

We have a number of things to keep in mind as we discuss this 

legislation, such as the historical background of communications 

between the executive branch and Congress with respect to the 

need for war, the nature of the relationship between the branches 

of the national government, and our desire to encourage, not discourage, open and truthful dialogue between them. 

When Congress amended the False Statements Act in 1996 to ensure that certain misrepresentations to Congress were prohibited, 

we were concerned about going too far and discouraging people 

from engaging in advocacy and furnishing information to Congress. 

I want to hear from our witnesses about whether this legislation 

raises any similar concerns. 

We also need to consider the extent to which current law covers 

the types of misleading communications that have prompted this 

legislation and whether the provisions of current statutes may not 

apply in this context because, for example, particular communications may not be under oath or pursuing a Committee’s inquiry. I 

hope our witnesses will be able to address this issue, too. 

Our first witness will be the author of the bill, Representative 

Walter Jones from North Carolina, who will discuss his motivations 

for introducing the legislation. We will then hear from a panel of 

witnesses who will discuss the historical context for the legislation, 

any constitutional issues that may be involved, and the text of the 

bill. 

[The bill, H.R. 743, follows:] 

3 


HR743-1.eps
4 


HR743-2.eps
5 


HR743-3.eps
6 

Mr. SCOTT. It is now my pleasure to recognize the Ranking Member pro tem, the gentleman from Texas, Mr. Poe, who is representing the Ranking Member Mr. Gohmert, at least temporarily. 

Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. 

Glad to see my good friend, Mr. Jones, here today. Thank you. 

We are here today to discuss H.R. 743, the Executive Accountability Act of 2009, which proposes to criminalize false statements, 

false documents, and concealments by executive branch officials 

whose purpose it was to influence Members of Congress to deploy 

United States’ Armed Forces. 

On the face of it, H.R. 743 seems like a relatively straightforward 

proposition. Congress asks for truthful information and intelligence 

before we commit troops or anyone who intentionally misrepresents 

that information is subject to criminal penalties. 

The reality of this statement is, however, a lot more problematic. 

If the 8 years since 9/11 has taught us anything, it should be that 

the world of foreign 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 resolve, one 

way or the other. 

At times, both Congress and the executive branch are 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, to provide Congress and the American public with truthful, accurate information justifying the commitment of United States troops and 

the loss of American lives anywhere in the world. Similarly, there 

is 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 criminalize them, we are creating an environment where not only is it 

likely that less information will flow from the executive branch to 

Congress but one where future Presidents are going to increasingly 

be inclined to act unilaterally when deploying our Armed Forces, 

and that is an unfortunate outlook. 

We also must remember that Title 18, section 1001, already 

makes it a Federal crime to provide false statements or documents 

to Congress using the exact language that is proposed in H.R. 743; 

and a Federal perjury charge would often exist in situations where 

a witness testifies before Congress. I am looking forward to seeing 

what the difference is in section 1001 and H.R. 743 from Mr. Jones. 

The last thing we need to do is further proliferize and criminalize 

the Federal Criminal Code. As we discussed last week, there are 

4,450 Federal crimes now in the United States, with the Congress 

adding 50 more every year. 

7 

As a Member of 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 the intelligence community in making those decisions. I still am open-minded regarding H.R. 743. 

That said, I thank all of our panelists for being here; and I look 

forward to hearing the thoughts on this bill and some of the questions answered. 

I yield back my time, Mr. Chairman. 

Mr. SCOTT. Thank you, Mr. Poe. 

We have two panels of witnesses who will help us consider this 

bill. First, we will hear from the author of the legislation, a senior 

Member of the United States House of Representatives who serves 

on the Armed Services and Financial Services Committees and is 

Chair of the Military Personnel—excuse me, Ranking Member of 

the Military Personnel Oversight and Investigation Subcommittee. 

And has been a Member of the House since 1994? 

Mr. JONES. Yes, sir. 

Mr. SCOTT. 1994. So we look forward to hearing from our witness 

today. Representative Jones. 

TESTIMONY OF THE HONORABLE WALTER B. JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. JONES. Mr. Chairman, thank you very much; and, Ranking 

Member Poe, thank you as well. I am pleased and honored that I 

would have the opportunity to testify today on H.R. 743, the Executive Accountability Act. 

I would like to begin by reading an excerpt from an essay that 

appeared in Time Magazine in 2006. The essay is authored by 

Lieutenant General Greg Newbold and is entitled ‘‘Why Iraq Was 

a Mistake.’’ He states: 

‘‘From 2000 until 2002, I was a Marine Corps Lieutenant General and Director of Operations for the Joint Chiefs of Staff. After 

9/11, I was a witness and therefore a party to the actions that led 

us to the invasion of Iraq—an unnecessary war. Inside the military 

family, I made no secret of my view that zealots’ rationale for war 

made no sense. And I think I was outspoken enough to make those 

senior to me uncomfortable. But I regret now that I did not more 

openly challenge those who were determined to invade a country 

whose actions were peripheral to the real threat—al-Qaeda. I retired from the military 4 months before the invasion, in part because of my opposition to those who had used 9/11’s tragedy to hijack our national security policy.’’ 

Later in the essay Lieutenant General Newbold cites, and I 

quote, ‘‘the distortion, the distortion of intelligence in the buildup 

to the war.’’ 

Chairman, I would like to submit a copy of his article for the 

record. 

Mr. SCOTT. Without objection. 

[The information referred to follows:] 

8 


A-1.eps
9 


A-2.eps
10 


A-3.eps
11 

Mr. JONES. After reading this article I met with Lieutenant General Newbold and at least 18 other key figures, including Senator 

Chuck Hagel, a Member of the Senate Intelligence Committee, to 

discuss the justification for the war in Iraq. After these meetings, 

I was convinced the war in Iraq was not justified. Chairman, I 

would like to submit the names of those that I met with for the 

record. 

Mr. SCOTT. Without objection so ordered. 

[The information referred to follows:] 

12 


B-1.eps
13 

Mr. JONES. I introduced this bill after many, many reflections on 

the war in Iraq and the Vietnam War. In Vietnam, 58,220 Americans lost their lives. Last week, a column appeared in the Raleigh 

News and Observer entitled Vietnam 1959 to Afghanistan 2009; 


B-2.eps
14 

and, Mr. Chairman, I would like to ask again if I might submit this 

for the record. 

Mr. SCOTT. Without objection. 

[The information referred to follows:] 


C-1.eps
15 


C-2.eps
16 

Mr. JONES. The author, Joseph Galloway, recounts a meeting between then Secretary of Defense Robert McNamara and President 

Lyndon Johnson. He writes: 

McNamara dictated a Top Secret/Eyes Only memo to Johnson 

dated November 30, 1965. In that report he said the enemy had not 

only met but had exceeded our escalation of the war and we had 


C-3.eps
17 

*The information referred to is available in the Appendix. 

reached a decision point. In McNamara’s view, there were two options. Option one, we could arrange whatever diplomatic cover we 

could arrange and pull out of South Vietnam. Option two, we could 

give General Westmoreland the 200,000 more U.S. troops he was 

asking for, in which case we would have more than 500,000 Americans on the ground, and they would be dying at the rate of 1,000 

a month. He was wrong. The death total would reach 3,000 a 

month at the height of the war. All we can possibly achieve by this 

is a military stalemate at a much higher level of violence, McNamara concluded. 

On December 15, 1965, the President assembled what he called 

the ‘‘wise men’’ for a brainstorming session on Vietnam. Johnson 

entered the Cabinet room holding McNamara’s memo. He shook it 

at McNamara and asked, Bob, you mean to tell me no matter what 

I do I can’t win in Vietnam? McNamara nodded yes; that was precisely what he meant. This was 1965, 10 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 continued on. After that date in 1965, over 56,000 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 it. 

Members of Congress must be able to trust our President at his 

word, especially when making decisions to go to war. 

On October 7 of 2002, while 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 would like to submit a copy of the Senate Intelligence Committee’s report June 2008, where these statements 

were documented. 

Mr. SCOTT. Without objection.* 

Mr. JONES. I bring up these examples to make the point that we 

rely on our President’s 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 apply 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 

sending Americans into harm’s way where death is a very real possibility; and a President 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 Executive Accountability Act 

provisions. The bill would impose criminal penalties on Presidents 

or executive agency officials who knowingly and willfully mislead 

Congress for the purpose of persuading Congress to authorize the 

use of Armed Forces; the bill would suspend the running of the 5- 

18 

year statute of limitations until the end of the term of the President in office at the time the offense is committed; and the 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 Administrations 

only, not past Presidents or executive agency officials. 

This bill would be inserted at the end of Chapter 47 of Title 18 

of the United States Code. This bill is different from existing law— 

namely, 18 U.S.C. 1001, the False Statements Act—in that it explicitly applies to the President. Legal scholars disagree as to 

whether or not, theoretically, 18 U.S.C. 1001 would be applied to 

a President. I think it is important for this Congress to express 

that it is unacceptable for a President to mislead the Congress 

when making the case for going to war. This bill makes it clear 

that a President cannot willfully or knowingly mislead the Congress to authorize the use of United States Armed Forces. 

While this bill does not apply to the past, we should learn from 

the past and demand that our President and executive branch officials do not mislead Congress when asking for authorization to go 

to war. Lieutenant General Newbold notes in his Time Magazine 

essay, and I quote, ‘‘In 1971, the rock group, The Who, released the 

antiwar anthem, ‘‘We Won’t Be Fooled Again.’’ General Newbold 

further states, ‘‘To most in my generation, this song conveyed a 

sense of betrayal by the Nation’s leaders, who had led our country 

into a costly and unnecessary war in Vietnam.’’ 

To me, this song serves as a reminder of the importance of the 

President’s truthfulness when trying to gain support for use of 

Armed Forces. The President should be absolutely certain of a 

war’s justification, and the Congress must be able to rely on the 

President’s statements when making a decision to authorize the 

use of Armed Forces. 

It is my hope that this bill will spark thought and action on this 

important issue. 

And, Mr. Chairman, before closing, I would like to thank Bruce 

Fein, who will be testifying shortly for his help in drafting this bill, 

along with my staffer Cybil Roehrenbeck. 

And, with that, Mr. Chairman, I want to thank you and the 

Ranking Member again. I will close by saying to you, without any 

pride but with humility, that I have signed over 8,000 letters to 

families and extended families in this country because I believe 

what I heard in classified briefings. So, with that, Mr. Chairman, 

thank you again for this opportunity. I would be glad to try to answer any questions. 

[The prepared statement of Mr. Jones follows:] 

19 

PREPARED STATEMENT OF THE HONORABLE WALTER B. JONES, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA


Jones-1.eps
20 


Jones-2.eps
21 

Mr. SCOTT. Thank you. 

Mr. Poe, do you have any questions? 

Mr. POE. Well, I have a lot, but I will just ask one, based on your 

comments, Mr. Chairman. 


Jones-3.eps
22 

Do you think that Congress should revisit the War Powers Act? 

Mr. JONES. 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 is 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 or 

not the right thing to do. 

Again, I went back to Johnson—I could have gone back further, 

but that would not have been helpful. But when I looked—I read 

a lot of books. I am not a legal mind as you are and those that will 

be testifying behind me. But I read many books, from War Made 

Easily, to the Pretext for War by James Bamford, to the NeoConned! Again over the last 5 or 6 years. 

And what has troubled me and why I put this bill in, I just 

think, if no other reason, 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 another. I think it is 

too important to review what Johnson did and what I read to you. 

It is 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 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 has ached because I 

sent young men and women looking for weapons of mass destruction that did not exist. I didn’t hear that word I am sorry that I 

sent these young men and women to die. 

And I had a woman in my office 4 years ago to tell me, my son 

died looking for weapons that didn’t exist. Well, that might—that 

is what she thought. It is what has been proven. We could not find 

them. 

So I have got a little bit off your question. I apologize. 

Mr. POE. 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? Of 

course, that is what came out of the Committee, but it is pretty 

much partisan. 

Mr. JONES. Well, I would say that on the floor I was one of those 

who made that vote. I have apologized with signing those letters 

for 6 years. 

But, no, truthfully, I believed what I heard. I said that in my 

statement. I sat right there for almost every one of the classified 

briefings, and I believed what I was hearing. 

Mr. POE. Thank you. Thank you Mr. Jones. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Representative Jones, I have questions, but I think I am going 

to reserve them for the other witnesses. And thank you for your 

testimony and for your compassion on this issue. 

Mr. JONES. Thank you, Mr. Chairman. Thank you. 

Mr. SCOTT. If our next panel will come forward. 

23 

Our first witness will be Dr. Louis Fisher. Dr. Louis Fisher is a 

Specialist in Constitutional Law with the Law Library of the Library of Congress, after working for the Congressional Research 

Service from 1970 to 2006. During his service with CRS, he was 

Research Director for the House Iran Contra Committee in 1987, 

writing major sections of the final report. His specialties include 

constitutional law, war powers, and executive legislative relations. 

Our second panelist will be Mr. Bruce Fein, 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, he formerly served 

as the Director of Office of Legal Policy, Legal Advisor to the Assistant Attorney General for Antitrust, and Associate Deputy Attorney General. He served on the American Bar Association’s Task 

Force on Presidential Signing Statements. 

And our final witness will be Jonathan Cohn, who is a partner 

with the law firm of Sidley and Austin, who previously served for 

several years as Deputy Assistant Attorney General of the United 

States Department of Justice. During his tenure at the Department 

of Justice, he was in charge of the Civil Division’s appellate staff, 

which represents the Federal Government in high-profile civil 

cases. His caseload covered administrative law appeals, commercial 

disputes, national security issues, and suits challenging the constitutionality of agency regulations and acts of Congress. 

Each of our witness’ written statements will be entered into the 

record in its entirety. 

I would ask each witness to summarize his testimony in 5 minutes or less. To help stay within that time, there is a lighting device at the table that will begin at green, turn to yellow when there 

is 1 minute left, and turns to red when the 5 minutes have expired. 

And we will begin with Dr. Fisher. 

TESTIMONY OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW, LAW LIBRARY OF THE LIBRARY OF CONGRESS, 

WASHINGTON, DC 

Mr. FISHER. Thank you very much, Mr. Chairman, Mr. Ranking 

Member. 

I appreciate the hearing today because it gives Congress an opportunity to decide what information it needs when it makes the 

most important choice possible, sending troops to war. 

When we look at the bill introduced by Congressman Jones, I 

think it is consistent with two broad themes in American history; 

and one is what the Framers new 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. 

So 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 be given to Congress alone. 

24 

Congress through the deliberative process would decide whether to 

make that fateful choice. 

What the Framers understood was to reject the British model 

that gave all of the executive power over foreign affairs in war to 

the executive. That was the Blackstone model; that was the John 

Locke model. And, instead, all the prerogatives that Blackstone 

spoke about in his work, not one of his prerogatives is given to the 

President. They are given to Congress in Article 1, or they are 

shared between the President and the Congress, such as treaty 

making and appointing ambassadors. 

So that is what the Framers knew, not to trust single executives. 

They go to war for wrong motivations. 

What we have learned since that time I think confirms what the 

Framers knew about human nature and 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 is a fairly steady track record from the 1840’s up to the 

present time. So there is a basis for this bill. 

I appreciate what you said, Mr. Chairman, about what happened 

in 1995 and 1996 when this Subcommittee met to decide what to 

do after the Supreme Court case in Hubbard. And because of the 

court decision, the 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 this Subcommittee and Congress 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 

attorneys in court, in their briefs and oral argument, worrying 

about a false statements prosecution; and you also wanted to protect the information that Members of Congress need coming from 

constituents to you and to your staff. And you protected that. So 

I think there is a way to protect the main value and other values 

as well. 

I say in my statement, I don’t think there is any bill of attainder 

here. Whatever punishment comes, comes not from Congress, as 

with the Lovett case, but comes from the Justice Department deciding to prosecute and what happens in the courts. 

And I also don’t think there is any legislative veto or Chadha 

problem, because you are not trying to control anything in the executive branch. You are just referring a report. 

I do have some thoughts at the end of my statement about the 

bill. I assume that anytime Congress, through a resolution of the 

two Houses, through a concurrent resolution, submits something to 

the Attorney General that will be in a report, it will be fully documented, there will be an opportunity of the individual to submit 

documents, to see documents, to have counsel, and so forth, all 

your procedural safeguards. 

The second point is about prosecuting the President. I think 

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 a report involving the President 

go to the Attorney General, it would go to the Judiciary Committees for consideration of impeachment. And I can see situations 

25 

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 it is time to retire from office; and we 

have precedence of that not only for Presidents but for Vice Presidents. 

Giving notice to Congress (in my appendix on the Cambodian operation) on the false statements given by President Nixon, the 

House Judiciary Committee considered whether to have an article 

of impeachment. It decided not to in part because, although President Nixon spoke falsely to the Nation and 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 is acceptable to have Presidents making false statements to the country and to Congress in public and then telling the 

truth to a few people in private. 

The last thought, in addition to what was 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 or 

statements to you, to call them before you under oath and ask 

them 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 am afraid, will make false statements or misleading 

statements and assume that they will soon retire from the government after 2 years and then go back to private life. 

Thank you very much. 

[The prepared statement of Mr. Fisher follows:] 

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PREPARED STATEMENT OF LOUIS FISHER


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Mr. SCOTT. Thank you. 

Mr. Fein. 

TESTIMONY OF BRUCE FEIN, LEGAL CONSULTANT, 

WASHINGTON, DC 

Mr. FEIN. Thank you, Mr. Chairman and Members of the Committee. 

I want to begin by expressing what I think is the clear constitutional basis for the bill; and then I want to address some of the 

issues that have been raised about the application of the False 

Statements Act, politicization or otherwise, that I think Congressman Poe had addressed in his opening statement. 

I think it is 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 to enumerate in a 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 

President of the 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 1, section 8, clause 18, the 

necessary and proper clause, Congress is entrusted 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 there is to ensure that 

Congress is receiving accurate information, or at 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 is speech that is knowingly 

false and materially false. That satisfies what the lawyers call The 

New York Times and Sullivan standard of protecting speech. When 

it is knowing and intentional and it is a materially false statement 

of fact, it is not protected by the First Amendment. That is why 

I don’t believe that there is any problem in the application of this 

law to Presidential statements. 

Now, there is 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 to Congress, which 

is what we 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 is letting Congress have access to the same information that he had. Congress 

makes their independent decision. He could not possibly be accused 

of violating this law, because he is not making a personal assertion 

of fact that he knew that it was materially false. 

43 

Now, what it is 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 Fathers understood, as Madison said, when war 

comes, the President gets the secrecy, he gets the money, he gets 

the possible glory of transforming the world, if you will. 

The Congress needs to have to make the best 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 

and 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 into needless wars because they 

don’t get benefits. They get the tragedy of writing, as Congress 

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 

abuse or 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 is not Congress that 

is rushing us into war. 

I don’t believe that, given the importance of this particular statute, that we should leave it to the ambiguities of the false statements laws to whether it applies to 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 who was 

saying, hey, how come 1001 doesn’t apply. I think there is obviously clear ambiguity or uncertainty as to whether it applied. 

When it comes to the President, it is not fair to leave him to 

snares out there and letting him guess whether the statute applies. 

We want to make it as unambiguous as possible so he has fair notice and fair warning. 

And the last issue of can this statute be politicized in its enforcement capacity, can Congress politicize the enforcement, well, 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 is obstruction of justice or otherwise, but the ultimate decision here is in the executive branch. It 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 is true of every single crime 

there is. Because the Constitution does entrust the prosecutorial 

discretion to the President and the President alone, absent I guess 

you could create an independent council, as was done with regard 

to the Morrison Olson case, that would be outside the President’s 

authority to fire unilaterally. 

44 

But, overall, Mr. Chairman I believe this is a sound bill. I think 

it is 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 President 

saying, you know, Taliban is about ready to take over the country, 

Pakistan is a nuclear-armed country, we need to go to war, things 

of that sort. 

I am not suggesting that a President would make misstatements, 

but the idea that wars are over, we are not going to confront problems with Presidential characterizations of danger are gone, I think 

are misplaced. 

Thank you. 

[The prepared statement of Mr. Fein follows:] 

PREPARED STATEMENT OF BRUCE FEIN


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Mr. SCOTT. Thank you. 

Mr. Cohn. 

TESTIMONY OF JONATHAN F. COHN, PARTNER, 

SIDLEY AND AUSTIN, WASHINGTON, DC 

Mr. COHN. Thank you, Mr. Chairman and Members of the Subcommittee. 


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Like other members of this panel, I suspect pretty much every 

single person in this room, I believe that 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. 743 is an appropriate way to mandate truthfulness and improve communications 

between the political branches. As an initial matter, the bill’s effect 

would be constitutionally limited in three significant respects; and 

even when permitted by the Constitution the bill will be more likely to inhibit interbranch communication than to promote it. 

I will begin by addressing the constitutional concerns. Although 

H.R. 743 is not unconstitutional on its face, it could be unconstitutional in a few of its 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 his national constituency; and in light of 

the cannon of 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 will be found unconstitutional as applied to the 

mere nondisclosure 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 enacted. 

Now, as for the many circumstances in which the bill would not 

raise constitutional concerns, I am still unable to support it for 

pragmatic reasons. Although I share the desire to promote truth 

telling in Washington, this bill, in my view, is more likely to impede interbranch cooperation than to facilitate it. I am foremost 

concerned with the potential chilling effect that the bill could have 

on interbranch 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 an official’s 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 

10 years in Federal prison. 

And here is 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 

59 

was false, it may be difficult for him to disprove the allegations and 

the inferences against him. It is the Monday morning quarterbacking that Congressman Poe alluded to earlier. That is the concern. 

And this is especially true if the prior Administration’s position 

has become unpopular and a 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. 743 would create an 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 is no need to rehash that issue 

today. Suffice 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, they, the 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 viewed as unilateral, but, even if it is, it is not good for Congress; it is not good for the American people. That is not something 

this Congress should encourage. 

Moreover, 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 contexts could give rise to 

criminal punishment under the perjury statute, the False Statements Act, and possibly the obstruction of justice statute. 

There is just little or no need to extend criminal liability to the 

many informal interbranch communications that occur on a daily 

basis in real time, an extension which may well inhibit instead of 

promote the flow of information from the Administration to Congress. 

If I may, there is just one final comment I would like to make 

on the bill and its overarching focus and not on any particular provision. Unlike many nations, Mr. Chairman, the United States has 

been blessed with a propensity to look forward instead of looking 

backward as a polity. 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 War, to the decision 

to pardon a disgraced President, this country has always been wellserved 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 vanquished; and, second, courts are ill-suited to resolve controversies regarding America’s foreign policy. 

60 

H.R. 743 would invite a judge and jury often lacking clear and 

reviewable standards to decide what facts were material to Congress’ decision as well as what facts were objectively false and who 

knew what. Punishing the ousted regime may be a preferred course 

of certain banana republics of the past, but, with respect, this 

should not be the United States’ path in the 21st century. 

I look forward to answering any questions you may have. 

[The prepared statement of Mr. Cohn follows:] 

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PREPARED STATEMENT OF JONATHAN F. COHN


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Mr. SCOTT. Thank you. 

I want to thank all of our witnesses. 

We will now recognize ourselves under the 5-minute rule for 

questions. 


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Mr. Fein, Mr. Cohn indicated that this could not be applied retroactively. There is no question about retroactive application. It cannot be—— 

Mr. FEIN. That is correct. And, of course, the bill doesn’t purport 

to apply retroactively, so that has nothing to do with the statute. 

Mr. SCOTT. Now, he also kind of alluded to the fact that Congress 

has so messed up its war powers constitutional responsibilities. 

You used 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 that a term of art that we kind of know what 

it is? 

Mr. FEIN. I think it means authorize the Armed Forces to take 

us into a conflict where it becomes legal to murder people because 

we are at a state of war with a foreign country. 

Mr. SCOTT. It has been used in the bill as if it is a resolution 

kind of like going to war and not just using the Armed Forces for 

any kind of military operation that may not be—— 

Mr. FEIN. Well, I think the issue arises for this reason, Mr. 

Chairman. In the past when Congress has appropriated money or 

authorized the use of the Armed Forces, they haven’t used the 

same language. Earlier times, there 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. 

Mr. SCOTT. But the sense is that you are talking about an armed 

conflict against another country. 

Mr. FEIN. Yes. Although I think the reason why it has to be 

broader is because, of course, we are so-called at war with a tactic 

for the first time in history. So we don’t want to be in a situation 

where the President, you know, he initiates war and says this 

doesn’t apply because now we are fighting the sister of al-Qaeda or 

whatever. 

Mr. SCOTT. The bill uses the term falsifies, conceals, or covers up. 

Would it be a violation to selectively present the case and leave out 

alternative views? 

Mr. FEIN. Of course it would. And that is 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 then stop in midstream and say I don’t 

want to answer any more questions. 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 have got one 

informant who has told me that Iran has weapons of—they have 

got a nuclear arsenal that they are just about ready to launch 

against Israel in the next 5 minutes. He also has 25 other informants who tell him this informant is a liar and we have absolute 

proof that that is not true. And the President comes and says, well, 

69 

I am just telling you what the one informant says and conceals the 

other 25 informants that discredits him, that in my judgment is a 

knowing lie and certainly would fall within the meaning of this 

statute. 

Mr. SCOTT. Now, the present law restricts the application of the 

law, not the bill but the present law, to cases, quote, pursuant to 

the authority of a Committee. 

Mr. FEIN. Yes. It doesn’t apply to the situations where the President may make statements to Congress, a Committee, an 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 is a freespeech issue. 

Well, I think that is clearly wrong. Remember, this is limited to 

statements that the President knows is false. It is not a false statement of an opinion; it is a false statement of fact. You can criminalize that kind of speech in other contexts. The greatest compulsion for criminalizing it, when you are putting it in context where 

men and women may go off to die for the country on a false 

premise. 

Mr. SCOTT. Well, it 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 2, for the purpose of influencing. 

Mr. FEIN. Yes. 

Mr. SCOTT. Now, there the idea that this would be a special situation because people are going to war, are there other situations— 

and, obviously, life and death are involved. Are there other situations where the executive branch may be making false statements 

that would endanger people’s lives like the FDA or other areas 

where the public is endangered because of false statements? 

Mr. FEIN. I haven’t 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. There may be reasons to extend the idea to 

other agencies as well. 

Mr. SCOTT. Let me just ask one other question so we don’t have 

to have a final round. 

There has been the suggestion that the present law doesn’t apply 

to the executive branch, although the present law says, except as 

otherwise provided in this section, whoever in any manner—why 

would anybody—what difference would it make what branch of 

government or whatever your station in life—why would you not be 

covered by whoever? 

Mr. FEIN. I think the Supreme Court has made it clear that, in 

interpreting statutes, they are very loathe to apply obligations on 

the President of the United States, that particular office, in interpreting other statutes, Freedom of Information Act, Privacy Act, et 

cetera; and it is something what you might call like a clear statement rule that is used in Federalism kind of cases. 

And it is arguable to say, well, it is such a grave step, for the 

reasons that Mr. Cohn has suggested, to perhaps penalize a President for making knowing false statements in these circumstances. 

We won’t impute to Congress an intent to cover it unless it does 

70 

so very explicitly. And I am sure probably the legislative history of 

this statute doesn’t mention the President in this context, so a 

court might try to avoid a tough question by a narrow construction. 

Mr. SCOTT. Thank you. 

Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. Cohn, I have a few questions for all of you, but I will try to 

be brief and your answers to the point. 

You said that 743 is not the answer. If 743 is not the answer for 

this problem, what is? 

Mr. COHN. 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 1001 

does not cover the President, if that is the only problem that this 

Subcommittee wants to address, the easy solution is simply to clarify 1001 to make clear the President is covered. There is no reason 

to enact H.R. 743, which does much more, namely, cover the hundreds if not thousands of daily and formal communications that are 

made during a crisis between the executive branch and the Congress. 

Mr. POE. Do you think that 743 would have some type of chilling 

effect of communication between the executive branch and the legislative branch as a practical matter or not? 

Mr. COHN. Absolutely. Look, the Supreme Court has recognized 

that mere monetary liability—the mere threat of monetary liability 

would inhibit executive officials from performing their duties diligently and discouraging individuals from joining public service in 

the first place. Those concerns are all the more severe when you 

are talking about 10 years in Federal prison. 

And, look, I mean, the reality is people do the best they can with 

the information they have; and 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, even next month, new information might come to light that shows I should have done something differently, but I am 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. 

Mr. POE. Dr. Fisher, do you want to weigh in on that? 

Mr. FISHER. Yes. Right now, 1001 applies to executive officials; 

and I haven’t heard the argument that that chills their official duties in the executive branch. 

And if I heard Mr. Cohn correctly, you would say that one of the 

solutions would be to apply 1001 expressly to the President, and 

you would have the same chilling effect there. So I don’t think 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 there would be no question about them 

knowingly or willfully misleading Congress or the public. So I think 

there is a chilling—a proper chilling effect that you speak truthfully, and I think Mr. Cohn has said that that is the proper standard. 

71 

Mr. COHN. May I respond to that, very quickly? 

Mr. POE. All right, quickly. 

Mr. COHN. There is one very fundamental difference between 

1001 and H.R. 443, and this is something I believe that Dr. Fisher 

has overlooked. 1001 covers investigations or reviews and sort of 

administrative matters. It does not cover the hundreds or thousands of informal communications that occur all the time in crises. 

Think of the week after 9/11, think of all the communications 

that occurred informally between Congress and the executive 

branch. Those informal communications or those phone calls are 

not covered by 1001. They would be covered by H.R. 743, and that 

is 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. 1001 does not 

cover that; H.R. 743 does. 

Mr. POE. I think that we all want more truth 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 wants to know the 

facts so we can pass it on to the American public, especially when 

it comes to American troops going somewhere and having the possibility of dying. 

So how do we promote that? How do we get there? 

Mr. COHN. Well, I think you can’t promote basic moral and ethical tenets like that through legislation. I think the answer is for 

public officials in both Congress and the executive branch to follow 

what they learned in kindergarten and just do the right thing and 

tell the right thing and not depend on critical statutes to plot the 

way for them. That is not the answer. 

Mr. POE. Should we apply this to all communication from the 

President? In other words, some other issue that doesn’t have anything to do with troops, should we apply that to everything the 

President tells Congress? 

Mr. COHN. If Congress were to enact this legislation—and, with 

respect, I 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 criminal punishment is a way to get the truth, there 

is no reason to stop at lying in the context of getting authorization 

under for use of force. Why not extend this to every other context, 

every other executive branch? 

Just take one example. Think of health care. I don’t know if anyone is misspeaking in the context of health care, but what if, for 

example, a proposal did not cost $1 trillion, but rather $4 trillion 

or $5 trillion, as a result of which it could saddle this country for 

generations with enormous debt. It could perhaps discourage doctors from remaining in medicine. As a result of that, patients are 

dying outside hospitals. That is a problem. 

I think if this Congress thinks that legislation is the way to get 

more truth telling, it should not stop at force authorization, but 

should extend this across the board to health care and everything 

72 

else. But I for one do not think that legislation is the way to get 

at the truth. 

Mr. POE. Thank you, Mr. Chairman. I yield back my time. 

Mr. SCOTT. Mr. Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. I am sorry I was 

late. I had been reviewing information in preparation for the hearing, but my plane was late due to weather. I see my friend Walter 

Jones sitting back here. And I know that there is not a better heart 

in all of Congress, anybody who has the best interest of the country, more than my friend, Mr. Jones. But I do have concerns about 

this bill and I keep coming back to the stuff that really seem to 

give rise to this. 

The Bush administration aired the perception of arrogance and 

made some bad decisions along the way. The bailout, in my opinion, for one thing. They also took the approach that history will be 

kind to us down the road, so they quit defending themselves. 

Not many people noticed July of 2008 that 550 metric tons of 

yellowcake uranium were removed from Iraq. We had hearings in 

this room. And I think one of the most deceptive people I have seen 

testify in this room in my 41⁄2 years in Congress was a man named 

Joseph Wilson. Of course, he had said before Valerie had nothing 

to do with the matter. She definitely had not proposed that I make 

the trip. And when we finally got her e-mail, it says, My husband 

has a good relationship with the PM and the Foreign Minister, not 

to mention lots of French contacts. And she said, My husband is 

willing to help. I mean she kept pushing, and we finally got her 

secret memo. She misrepresented things to the Senate. 

I kept going back to his article he wrote in the San Jose paper 

in 2002, where he said, A threat could push Saddam to fight back 

with the very weapons we are seeking to destroy. He never made 

any mention of—in fact, the CIA notes were that he was concerned 

about Iraq trying to get yellowcake uranium. And he never made 

any mention of it until after France hit the front page as being 

guilty of fraud under the Oil-for-Food program. And they were supposed to be our friends, and they stabbed us in the back. 

Then, according to Ms. Valerie Plame, lots of the French contacts 

Wilson’s buddies had must have been greatly relieved when he was 

able all of a sudden to come out of the blue and say that Bush lied 

about the uranium issue. Got France off the front page and put 

Bush there for the rest of his Administration. 

Mr. Fein, I was a little bothered. You said that if the President 

related what one person said and not the 25, then he certainly 

would be guilty of the crime. I have had juries come back and say, 

We believed the one; we didn’t believe the 25. That is in the jury’s 

discretion as a finder of fact, and here you have already judged the 

President. 

Mr. FEIN. I think you totally misrepresented what I stated. 

Mr. GOHMERT. Listen to me. We will go back and get the transcript. But that is basically what you said. I think you may have 

overstated your case when you did. And if you would like to clarify, 

now is the time to do it. 

Mr. FEIN. Let me clarify the distinction. In the jury situation 

that you have got, the jury hears both sides and can believe the 

one rather than 25. But the jury knows the 25 and the one. 

73 

The situation I am referring to is the situation where the Congress just knows about the one and doesn’t even know the other 

25 exist. That is the difference. 

Mr. GOHMERT. Well, the problem is that people in the executive 

branch have to make findings of facts and have to make decisions 

because under the Constitution—and it is a great document—I 

commend it to you—the executive makes these decisions on foreign 

policy. 

Mr. FEIN. No, that is not accurate. 

Mr. GOHMERT. We make decisions with the purse strings, and we 

can affect that. Obviously, we have a disagreement and obviously, 

depending on who the jury is, one of us can be found guilty of a 

crime, the way it seems you want to head this thing. 

There is 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 are opening 

themselves up to a crime under this bill. 

I think 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 $800 billion. People are 

losing their jobs every day. Give me the money. Give me the 

money. And we have got no time to read the bill. And then, 4 days 

later, after it is passed, he gets around to a photo op in Denver to 

sign it. 

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 

am just concerned about us going back to the Carter years of emasculating the intelligence community because, frankly, if I am in the 

CIA and this bill is law and my gut instinct is there is a real danger, but I know if I am wrong somebody is going to come after me 

for committing a crime. 

You shake your head. 

Mr. FEIN. Because that is just wrong. The way in which anybody 

in the executive branch makes certain there is no accusation, they 

just disclose all the information available to them to Congress. 

Then there isn’t any conceivable basis that they can say they misled anybody. That is what we want to encourage. They can disclose 

it in public or in confidential—— 

Mr. GOHMERT. According 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 and what was less 

important, because if they were wrong on what was more important or less important, Ah, there you go; you deceived us because 

you said this was more important. 

Mr. FEIN. 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. 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. 

74 

So what we are looking at is, yeah, the reason why you want to 

make the decision, not the CIA, because it is your responsibility to 

decide to send men and women off to die. Not the CIA, not the 

President. It is yours. That is exactly why you don’t want them to 

make the decision. They give you the facts, you decide. 

Mr. GOHMERT. Well, do you understand my point that we are 

going to deprive ourselves of intelligence opinions if we do not—I 

mean if we make this chilling effect of creating a crime out there, 

if they are wrong in what they represent? 

Mr. FEIN. It is not a crime to make an error in the fact. You disclose what you have got and you let the Members of Congress decide. There is no possible criminality. 

Mr. GOHMERT. It would be lovely to live 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 I can tell you it has a chilling effect all over this town, some 

of the things that are going on right now. 

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. 

Obviously, you have been very gracious to me, Mr. Chairman. I 

appreciate the time. 

Mr. SCOTT. Thank you. Let me ask one follow-up question. We 

have talked about the executive branch may be covered, may be not 

covered under the present law. This bill would clarify that. But, 

also, the present law talks about pursuant to the authority of a 

Committee, which suggests that there is an investigation, hearings 

going on. This bill does not have that limitation, so that speeches 

in public made 

to—informal comments and speeches made that will convince the 

public to call your Congressman to vote for the war and create the 

political climate that makes it possible, would be part of a scheme 

covering up material facts. 

Can you talk about the appropriateness of speeches and informal 

comments being covered by the criminal statute? 

Mr. FEIN. 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, authored by a reporter of the Washington 

Post. He recounts—and this has not been disputed by any of the 

participants—a situation prior to this body’s voting on the Iraqi 

war resolution. 

Initially, 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 miniaturize nuclear weapons and, secondly, that alQaeda could be the human delivery vehicle for those. And based 

upon those assertions he changed his vote, at least according to the 

majority leader, that his vote change may have enabled the House 

to vote in favor of that. 

75 

I see no reason if you can establish that statements in that context were knowingly and purposely made for the purpose of obtaining an authorization for war, why they shouldn’t be penalized. 

With regard to general statements to the public, again, it is 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 think it is a gross 

misperception that, Hey, the President is the one who should be 

making the decision to go to war or not. That has been the problem 

for the last 50 years. It is this body that makes the decision. You 

want to be the people who evaluate those facts based on your own 

judgment. 

Mr. FISHER. I would like to add that the President, when he 

makes the case to war, is not just to Members of Congress, it is 

the general public. I don’t think you 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 truth to the American public, because you fel that from your constituents. That is 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. I think the bill is properly designed that way. 

Mr. SCOTT. Thank you. 

Mr. Gohmert. 

Mr. GOHMERT. Just one follow-up. Mr. Fein, I understand your 

point. The President does make foreign policy, and the executive 

branch does. But when you talk about knowingly and purposefully, 

there are two different things in making the allegation that leads 

to indictment and then actually convicting someone. 

If you have the law there and you are an intelligence officer and 

you have been gathering resources for months, there is no way you 

can convey everything. And if you emphasize one thing, you don’t 

have months of research in your presentation. I mean a 5-minute 

statement here is what you are allowed to make. There is no way 

you can have all of the information there. 

And it is a good point: Make it available. I wish both the past 

Administration and this Administration 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 deceived. We will—that question is for the jury. In 

the meantime, somebody has been arrested, indicted, because it is 

not that hard to get somebody indicted. And then you destroy lives, 

as we have seen repeatedly. Somebody is indicted and later acquitted or charges dropped at the last minute, you destroy lives. 

This clearly would have—if I am an intelligence officer, there is 

no way I would want to be in a position of coming to the Hill and 

briefing Members of Congress, because there is no way I could give 

them everything I know. And somebody is going to come after me 

for whatever I leave out if they don’t like the ultimate decision. 

76 

And, certainly, if somebody says, What is your gut, I understand 

the point. This applies to facts and not opinion. But if somebody 

says, What is 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 is 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 a terrible chilling effect on our intelligence community. 

We have already been seeing that play out. And I am just afraid 

we are going to emasculate again our intelligence community, like 

the Carter years did, and then we pay the price for years to come. 

You had a comment? 

Mr. FEIN. 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. In the Reagan administration, if 

you wanted to come down to a vault, you could go visit, it is open, 

and the intelligence officer in the position that you have described 

simply said, I have 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 is my opinion, based on this 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. But the ultimate decision 

is yours. You have got to decide what the facts are, whether they 

justify going to war. That is his out-of-jail-free card. Because the 

purpose here is to make sure that Congress knows exactly the level 

of reliability that they can place in making their decision to vote 

yea or nay on war issues. 

With that kind of statement from the intelligence officer, he is 

not going to be pursued by anybody. 

Mr. GOHMERT. Have you seen the lack of information that has 

been used to vote to spend more money in the last 7 months? 

Mr. FEIN. And it is disgraceful. 

Mr. GOHMERT. Well, we do agree on that. But that is my concern, 

that it may lead to less information being brought forward rather 

than more. Nobody gets more irate than me if I feel I have been 

misled into doing something. 

There are 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 than 

they are out in the field. 

But thank you for all of your input. 

Thank you, Chairman. 

Mr. SCOTT. I want to recognize the presence during the Committee hearing of the gentlelady from Texas, Ms. Jackson Lee, and 

the gentleman from California, Mr. Lungren. Do you have questions? You are recognized for 5 minutes. 

Mr. LUNGREN. I have been watching some of this back at my office and trying to draw a bead on this particular issue. Obviously, 

a decision to commit troops, whether for the first time or commit 

additional troops in any circumstance is one of the most serious 

77 

matters we have. The question is whether this is the proper way 

to handle it. 

One of the reasons I have concerns is what is an opinion and 

what is a fact. We are now in an imbroglio 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 before the Congress. And, initially, Republicans have 

been prohibited from sending it out because we were told our schematic is inaccurate, that somehow it is false and misleading. 

And then we had the situation where—I am a member of the 

Franking Commission where we have approved letters—newsletters presented by the other side of the aisle who make a bald 

statement in there that the stimulus package that was passed has 

created or saved 3.5 million jobs. I think that is absolutely inaccurate. Yet, that is an opinion they are expressing in an effort to 

state it as a fact to persuade the audience of their position. 

While I disagreed with their representation and they disagreed 

with our representation of this chart on a serious matter before 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 to lend itself to 

that type of characterization, if you disagree with the policy, that 

is, it is a material misstatement of a fact. The example of the stimulus package, 3.5 million jobs. Now there are those who believe you 

can determine whether that is a fact or not. But 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 is a material representation, essentially. 

If you have an Administration or representative of the Administration who is making a case and believes, for instance, let’s say 

that there are weapons of mass destruction. This member of the 

Administration has reviewed all the intelligence, recognizes that 

you sift 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 of 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 is proven that there 

were no weapons of mass destruction? 

Mr. Fein? 

Mr. FEIN. Well, I think there are two issues that are raised by 

the question. One, you talk about the fact-opinion distinction. We 

have had Supreme Court decisions certainly since Gertz v. Welch, 

in 1976, 33 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. 

Mr. LUNGREN. Depends on who is making the determination 

what the fact is, though. 

Mr. FEIN. I understand, but that is true of any time you have 

any kind litigation at all. Juries and judges make findings of fact. 

But I don’t think that you could deny that it is an assertion of fact 

78 

if you say Iraq does or Iran does or not have weapons of mass destruction. But that doesn’t necessarily—even if it turns out to be 

in error, it doesn’t mean it is culpable. It is only when the speaker 

knows, he knowingly states something that is false, that puts 

someone into jeopardy here. 

Mr. LUNGREN. At what point in time does it become false? If he 

has evidence that he mulls over and in his own mind makes a judgment it is 51-49 that there are weapons of mass destruction, is that 

misleading the Congress? 

Mr. FEIN. You mean if he doesn’t disclose that that was close in 

his judgment? 

Mr. LUNGREN. Yes. 

Mr. FEIN. I wouldn’t think so, but there is no reason why there 

would be a chilling effect to just say if you are not 100 percent certain, just tell the Members what percentage of confidence you are 

speaking about; something of that sort. 

To go back to the issue of what does he need to do to make certain he is not liable; take the situation where he has got conflicting 

evidence. He says, Listen, there has been conflicting evidence. My 

conclusion is that the persuasive case is made that there are or are 

not weapons of mass destruction. The conflicting evidence is in a 

vault in the CIA, and you need to make the decision because you 

are going to decide whether to go to war or not, not me, and you 

can examine that and you can make up your own mind. That is a 

way to make certain that you have the maximum disclosure and 

you are not jeopardizing the intelligence official. 

Mr. LUNGREN. If the Chairman would indulge me a little bit further. 

Mr. SCOTT. The gentleman is recognized. 

Mr. LUNGREN. I must be a slow reader, because I have been 

reading Eisenhower’s book about World War II and his particular 

activity in Europe, called Crusade in Europe. And in several places 

he makes it very, very clear that intelligence can never be perfect. 

In fact, he 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 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 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 are sending them off, 

You know, I got great hopes this is going to work, but there are 

others in my group here, my subordinates, who have told me there 

is about a 40, 45 percent chance you are going to fail and you are 

all going to lose your lives. 

That is 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 executive branch, 

as much as I want to have as much information as I have, but putting the burden of criminality on them in these circumstances. 

79 

Mr. FEIN. I think your analogy is a little bit misplaced because 

the circumstances we are talking about—the troops don’t have the 

responsibility for deciding whether to fight. The Congress of the 

United States does. That is why they need to be told all the information, the percentages that you have described, because you need 

to decide whether that percentage is enough to send men and 

women into harm’s way. 

Once you are already in war, the soldiers don’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 are wrong to decide to initiate warfare. 

That is the difference. 

Mr. LUNGREN. Yes, sir. 

Mr. FISHER. I think your distinction between facts and opinion 

is helpful and a bill like this could influence executive officials to 

be more forthcoming about what they say. If it is an opinion, don’t 

present it as a fact. 

As you remember, after Iraq released its weapons of mass destruction report, 2,000 pages, the Administration said it was a 

2,000-page lie. One of the things the State Department did was release what they called a fact sheet. And they said Iraq failed to disclose that it was trying to get uranium ore from a country in Africa. That was not a fact. That was something based on a fabricated 

document. I don’t know if the State Department knew it at the 

time. But that was not a fact. 

Mr. LUNGREN. Let me ask you a question. If the State Department didn’t know it was fabricated at the time and took it for fact, 

what is inappropriate about them stating it as a fact? 

Mr. FISHER. It is a willful misleading of Congress that we are 

presenting a fact that is not a fact. It is an assertion, a false assertion. 

Mr. LUNGREN. No, no, no. My question was: If they believe it to 

be true—they did not know it was a fabrication—that is not—— 

Mr. FISHER. I would hope executive officials would be very careful when they say something is a fact, to know it is a fact, instead 

of it being a judgment or an opinion. 

Mr. LUNGREN. 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. That is the point. You do the best you can. 

Huge mistakes have been made. Lives have been lost, there is no 

doubt about that, in decisions that Eisenhower made, based on the 

information that he had, and every military leader that we have 

had. 

Mr. FISHER. It would also make a difference to me—statements 

made in time of war, we all know that there are very tough judgments in times of war. I think the Jones bill is clearly on initiating 

war. And I think you can take a different standard. 

Mr. LUNGREN. I thank the Chairman. 

Mr. SCOTT. I would like to thank the witnesses for their testimony. 

Are there other questions? 

Mr. GOHMERT. Mr. Chairman, unanimous consent, just to mention—I didn’t know if the witnesses might be interested—but I 

didn’t get here until January of 2005. But early on in one of our 

80 

Republican conferences with the President I said, Why do we keep 

having these actions where we send people into harm’s way and we 

don’t have a declaration of war. If you want a declaration of war, 

why shouldn’t we consider doing that? 

I am still intrigued we don’t do that. We haven’t done that for 

a very long time. 

Mr. FEIN. That is 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 will unilaterally 

initiate war. That is unconstitutional. 

Mr. GOHMERT. But the Congress did vote to authorize the sending of troops and providing for them and all. It basically was providing for war without the declaration. 

My question back in 2005 was why don’t we go ahead and make 

the declaration if it is really that serious. 

Mr. FISHER. From the very start, 1800, 1801, there are 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. 

Alexander Hamilton mentioned that. So I think, constitutionally, 

authorization is sufficient to a declaration. I think it is a choice for 

Congress. 

Mr. GOHMERT. No, I agree. My concern grew out of Vietnam 

when we sent people but we didn’t really mean for them to win. 

If it is serious enough to send them, then we ought to have a declaration and we ought to tell them to do what it takes to win. 

Mr. SCOTT. Will the gentleman yield? 

Mr. GOHMERT. Sure. 

Mr. SCOTT. I just wanted to remind that the bill says knowingly 

and willfully falsifies, and so forth. If you are making anything 

close to a good faith statement or even a good faith opinion that 

is in any kind of good faith, it is not knowingly and willfully falsified. 

Mr. GOHMERT. I agree 100 percent, but in this town you wouldn’t 

necessarily be convicted, but you sure could be arrested and harassed from now on. 

Mr. FEIN. If I could just make an observation about the alleged 

politicization of conduct that is at the high national security war 

area. I do not perceive with the change of Administration from Republican to Democrat on January 20 of this year a politicization of 

the law enforcement arm of the Justice Department where they are 

targeting Republicans in the past Administration. 

So, obviously, that is a theoretical possibility. But I certainly do 

not see those officials being subject to grand jury investigations or 

anything of that sort. 

Mr. GOHMERT. I encourage you to read the news. 

Mr. FEIN. I do, every day. If you can send me a list of all the 

former Republican officials who are now under investigation, I 

would be grateful. 

Mr. SCOTT. I think we have gotten a little off subject. But I 

would like to thank our witnesses for their testimony today. Members may have additional written questions which we will forward 

to you and ask that you answer as promptly as possible so the answers may be made part of the record. The hearing record will remain open for 1 week for submission of additional materials. 

81 

Without objection, the Subcommittee stands adjourned. Thank 

you. 

[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.] 

(83) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

SENATE INTELLIGENCE COMMITTEE REPORT SUBMITTED BY THE HONORABLE WALTER

B. JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA


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