III 

110TH CONGRESS 

1ST SESSION S. RES. 303 

Censuring the President and the Attorney General. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 3, 2007 

Mr. FEINGOLD (for himself and Mr. HARKIN) submitted the following 

resolution; which was referred to the Committee on the Judiciary 

RESOLUTION 

Censuring the President and the Attorney General. 

1 Resolved, 

2 SECTION 1. BASIS FOR CENSURE. 

3 (a) NATIONAL SECURITY AGENCY WIRETAPPING.— 

4 The Senate finds the following: 

5 (1) Congress passed the Foreign Intelligence 

6 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), 

7 and in so doing provided the executive branch with 

8 clear authority to wiretap suspected terrorists inside 

9 the United States. 

10 (2) Section 201 of the Foreign Intelligence Sur11 veillance Act of 1978 states that it and the criminal 

12 wiretap law are the ‘‘exclusive means by which elecVerDate Aug 31 2005 21:30 Aug 07, 2007 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\SR303.IS SR303

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1 tronic surveillance’’ may be conducted by the United 

2 States Government, and section 109 of that Act 

3 makes it a crime to wiretap individuals without com4 plying with this statutory authority. 

5 (3) The Foreign Intelligence Surveillance Act of 

6 1978 both permits the Government to initiate wire7 tapping immediately in emergencies as long as the 

8 Government obtains approval from the court estab9 lished under section 103 of the Foreign Intelligence 

10 Surveillance Act of 1978 (50 U.S.C. 1803) within 

11 72 hours of initiating the wiretap, and authorizes 

12 wiretaps without a court order otherwise required by 

13 the Foreign Intelligence Surveillance Act of 1978 for 

14 the first 15 days following a declaration of war by 

15 Congress. 

16 (4) The Authorization for Use of Military Force 

17 that became law on September 18, 2001 (Public 

18 Law 107–40; 50 U.S.C. 1541 note), did not grant 

19 the President the power to authorize wiretaps of 

20 Americans within the United States without obtain21 ing the court orders required by the Foreign Intel22 ligence Surveillance Act of 1978. 

23 (5) The President’s inherent constitutional au24 thority does not give him the power to violate the exVerDate Aug 31 2005 21:30 Aug 07, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\SR303.IS SR303

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1 plicit statutory prohibition on warrantless wiretaps 

2 in the Foreign Intelligence Surveillance Act of 1978. 

3 (6) George W. Bush, President of the United 

4 States, authorized the National Security Agency to 

5 wiretap Americans within the United States without 

6 obtaining the court orders required by the Foreign 

7 Intelligence Surveillance Act of 1978 for more than 

8 5 years. 

9 (7) Alberto R. Gonzales, as Attorney General of 

10 the United States and as Counsel to the President, 

11 reviewed and defended the legality of the President’s 

12 authorization of wiretaps by the National Security 

13 Agency of Americans within the United States with14 out the court orders required by the Foreign Intel15 ligence Surveillance Act of 1978. 

16 (8) President George W. Bush repeatedly mis17 led the public prior to the public disclosure of the 

18 National Security Agency warrantless surveillance 

19 program by indicating his Administration was rely20 ing on court orders to wiretap suspected terrorists 

21 inside the United States. 

22 (9) Alberto R. Gonzales misled Congress in 

23 January 2005 during the hearing on his nomination 

24 to be Attorney General of the United States by indi25 cating that a question about whether the President 


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1 has the authority to authorize warrantless wiretaps 

2 in violation of statutory prohibitions presented a 

3 ‘‘hypothetical situation,’’ even though he was fully 

4 aware that a warrantless wiretapping program had 

5 been ongoing for several years. 

6 (10) In statements about the supposed need for 

7 the National Security Agency warrantless surveil8 lance program after the public disclosure of the pro9 gram, President George W. Bush falsely implied 

10 that the program was necessary because the execu11 tive branch did not otherwise have authority to wire12 tap suspected terrorists inside the United States. 

13 (11) Attorney General Alberto R. Gonzales, de14 spite his admitted awareness that congressional crit15 ics of the program support wiretapping terrorists in 

16 accordance with the Foreign Intelligence Surveil17 lance Act of 1978, attempted to create the opposite 

18 impression by making public statements such as 

19 ‘‘[s]ome people will argue that nothing could justify 

20 the Government being able to intercept conversations 

21 like the ones the Program targets’’. 

22 (12) President George W. Bush inaccurately 

23 stated in his January 31, 2006, State of the Union 

24 address that ‘‘[p]revious Presidents have used the 

25 same constitutional authority I have, and federal 


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1 courts have approved the use of that authority.’’, 

2 even though the Administration has failed to identify 

3 a single instance since the Foreign Intelligence Sur4 veillance Act of 1978 became law in which another 

5 President has authorized wiretaps inside the United 

6 States without complying with the Foreign Intel7 ligence Surveillance Act of 1978, and no Federal 

8 court has evaluated whether the President has the 

9 inherent authority to authorize wiretaps inside the 

10 United States without complying with the Foreign 

11 Intelligence Surveillance Act of 1978. 

12 (13) At a Senate Judiciary Committee hearing 

13 on February 6, 2006, Attorney General Alberto R. 

14 Gonzales defended the President’s misleading state15 ments in the January 31, 2006, State of the Union 

16 address. 

17 (14) Attorney General Alberto R. Gonzales has 

18 misled Congress and the American people repeatedly 

19 by stating that there was no serious disagreement 

20 among Government officials ‘‘about’’ or ‘‘relate[d] 

21 to’’ the National Security Agency program con22 firmed by the President. 

23 (15) According to testimony from former Dep24 uty Attorney General James Comey, Alberto R. 

25 Gonzales, while serving as Counsel to the President, 


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1 participated in a visit to then-Attorney General John 

2 Ashcroft in the intensive care unit of the hospital in 

3 an attempt to convince Mr. Ashcroft to overturn the 

4 decision by Mr. Comey, then serving as Acting At5 torney General due to Mr. Ashcroft’s illness, not to 

6 certify the legality of a classified intelligence pro7 gram, in what Mr. Comey described as ‘‘an effort to 

8 take advantage of a very sick man’’. 

9 (b) DETAINEE AND TORTURE POLICY.—The Senate 

10 finds the following: 

11 (1) The United States is a party to the Conven12 tion Against Torture, the Geneva Conventions, and 

13 the International Covenant on Civil and Political 

14 Rights. 

15 (2) Common Article 3 of the Geneva Conven16 tions requires that detainees in armed conflicts other 

17 than those between nations ‘‘shall in all cir18 cumstances be treated humanely,’’ and the Third 

19 Geneva Convention on the Treatment of Prisoners of 

20 War provides additional protections for detainees 

21 who qualify as ‘‘prisoners of war’’. 

22 (3) United States law criminalizes any ‘‘act spe23 cifically intended to inflict severe physical or mental 

24 pain or suffering’’ under sections 2340 and 2340A 

25 of title 18, United States Code, and the War Crimes 


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1 Act (18 U.S.C. 2441) and recognizes the gravity of 

2 such offenses by further providing for civil liability 

3 under the Torture Victim Protection Act and the 

4 Alien Tort Claims Act. 

5 (4) In a draft memorandum dated January 25, 

6 2002, Alberto R. Gonzales, in his capacity as Coun7 sel to the President, argued that the protections of 

8 the Third Geneva Convention should not be afforded 

9 to Taliban and al Qaeda detainees, and described 

10 provisions of the Convention as ‘‘quaint’’ and ‘‘obso11 lete’’. 

12 (5) The January 25, 2002, memorandum by 

13 then-Counsel to the President Alberto R. Gonzales 

14 cited ‘‘reduc[ing] the threat of domestic criminal 

15 prosecution’’ as a ‘‘positive’’ consequence of dis16 avowing the Geneva Conventions’ applicability, as17 serting that such a disavowal ‘‘would provide a solid 

18 defense to any future prosecution’’ in the event a 

19 prosecutor brought charges under the domestic War 

20 Crimes Act. 

21 (6) Secretary of State Colin Powell responded 

22 in a January 26, 2002, memorandum that such an 

23 attempt to evade the Geneva Conventions would ‘‘re24 verse over a century of U.S. policy and practice in 


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1 supporting the Geneva Conventions and undermine 

2 the protections of the rule of law for our troops’’. 

3 (7) Despite the warnings of the Secretary of 

4 State and in contravention of the language of the 

5 Third Geneva Convention, President George W. 

6 Bush announced on February 7, 2002, that— 

7 (A) he did not consider the Convention to 

8 apply to al Qaeda fighters; and 

9 (B) Taliban detainees would not be enti10 tled to ‘‘prisoner of war’’ status under the Con11 vention, despite the fact that Article 5 of the 

12 Convention and United States Army regulations 

13 expressly require such determinations to be 

14 made by a ‘‘competent tribunal’’. 

15 (8) The Supreme Court, in Hamdan v. Rums16 feld, confirmed that Common Article 3 of the Gene17 va Conventions applies to Taliban forces and al 

18 Qaeda forces, and characterized a central legal 

19 premise by which the President sought to avoid the 

20 obligations of international law as ‘‘erroneous’’. 

21 (9) Alberto R. Gonzales, acting as Counsel to 

22 the President, solicited and accepted the August 1, 

23 2002, Office of Legal Counsel memorandum entitled 

24 ‘‘Standards of Conduct for Interrogation under 18 

25 U.S.C. §§ 2340–2340A’’, which took the untenable 


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1 position that ‘‘mere infliction of pain’’ is not ‘‘tor2 ture’’ unless ‘‘the victim ... experiences intense pain 

3 or suffering of the kind that is equivalent to the 

4 pain that would be associated with serious physical 

5 injury so severe that death, organ failure, or perma6 nent damage resulting in a loss of significant body 

7 function will likely result.’’. 

8 (10) According to the ‘‘Review of Department 

9 of Defense Detention Operations and Detainee In10 terrogation Techniques’’ (the ‘‘Church Report’’), 

11 issued on March 7, 2005, then-Secretary of Defense 

12 Donald Rumsfeld on December 2, 2002, authorized 

13 the use on Guantanamo Bay detainees of harsh in14 terrogation techniques not listed in the Army Field 

15 Manual, including stress positions, hooding, the use 

16 of military dogs to exploit phobias, prolonged isola17 tion, sensory deprivation, and forcing Muslim men to 

18 shave their beards. 

19 (11) According to the ‘‘Article 15–6 Investiga20 tion of CJSOTF–AP [Combined Joint Special Oper21 ations Task Force-Arabian Peninsula] and 5th SF 

22 [Special Forces] Group Detention Operation (For23 mica Report)’’ and Department of Defense docu24 ments released under the Freedom of Information 

25 Act, Guantanamo Bay detainees were chained to the 


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1 floor, subjected to loud music, fed only bread and 

2 water, and kept for some period of time in cells 

3 measuring 4 feet by 4 feet by 20 inches. 

4 (12) The March 2004 investigative report of 

5 Major General Antonio Taguba documented ‘‘sadis6 tic, blatant and wanton criminal abuses’’ against de7 tainees at the Abu Ghraib detention facility, includ8 ing sexual and physical abuse, the threat of torture, 

9 the forcing of detainees to perform degrading acts 

10 designed to assault their religious identity, and the 

11 use of dogs to frighten detainees. 

12 (13) According to Department of Defense docu13 ments released under the Freedom of Information 

14 Act, the United States Armed Forces held certain 

15 Iraqis as ‘‘ghost detainees,’’ who were ‘‘not ac16 counted for’’ and were hidden from the observation 

17 of the International Committee of the Red Cross 

18 (ICRC). 

19 (14) Military autopsy reports and death certifi20 cates released pursuant to the Freedom of Informa21 tion Act revealed that at least 39 deaths, and prob22 ably more, have occurred among detainees in United 

23 States custody overseas, approximately half of which 

24 were homicides and 7 of which appear to have been 


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1 caused by ‘‘strangulation,’’ ‘‘asphyxiation’’ or fatal 

2 ‘‘blunt force injuries’’. 

3 (15) On September 6, 2006, President George 

4 W. Bush stated that he had authorized the incom5 municado detention of certain suspected terrorist 

6 leaders and operatives at secret sites outside the 

7 United States under a ‘‘separate program’’ operated 

8 by the Central Intelligence Agency. 

9 (16) President George W. Bush has authorized 

10 the indefinite detention, without charge or trial, of 

11 more than 700 individuals at Guantanamo Bay 

12 Naval Base on the ground that they are ‘‘enemy 

13 combatants’’ and therefore may be held until the 

14 cessation of hostilities under the laws of war. 

15 (17) Department of Justice lawyers, rep16 resenting President George W. Bush and the De17 partment of Defense in a Federal lawsuit brought on 

18 behalf of Guantanamo detainees, took the unprece19 dented position that the term ‘‘enemy combatant’’ 

20 could in theory justify the indefinite detention of a 

21 ‘‘little old lady in Switzerland who writes checks to 

22 what she thinks is [a] charity that helps orphans in 

23 Afghanistan but is really a front to finance al-Qaeda 

24 activities’’ and ‘‘a person who teaches English to the 

25 son of an al Qaeda member’’. 


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1 (18) After the Supreme Court in Hamdi v. 

2 Rumsfeld and Rasul v. Bush rejected the claim that 

3 an alleged ‘‘enemy combatant’’ could be detained in4 definitely without any meaningful opportunity to 

5 challenge the designation, the Deputy Secretary of 

6 Defense issued an order on July 7, 2004, creating 

7 ‘‘Combatant Status Review Tribunals’’ (CSRTs) for 

8 the stated purpose of ‘‘review[ing] the detainee’s sta9 tus as an enemy combatant’’. 

10 (19) Such Order— 

11 (A) did not allow detainees to be rep12 resented by counsel in Combatant Status Re13 view Tribunal proceedings, but instead specified 

14 that a ‘‘military officer’’ would be assigned to 

15 ‘‘assist[ ]’’ each detainee and required such 

16 military officers to inform the detainees that ‘‘I 

17 am neither a lawyer nor your advocate,’’ and 

18 that ‘‘[n]one of the information you provide me 

19 shall be held in confidence’’; 

20 (B) allowed the detainee to be excluded 

21 from attendance during review proceedings in22 volving ‘‘testimony or other matters that would 

23 compromise national security if held in the 

24 presence of the detainee’’; 


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1 (C) allowed the decision-maker to rely on 

2 hearsay evidence and specified that ‘‘[t]he Tri3 bunal is not bound by the rules of evidence such 

4 as would apply in a court of law’’; and 

5 (D) specified that ‘‘there shall be a rebut6 table presumption in favor of the Government’s 

7 evidence’’. 

8 (20) The Government has relied on the above 

9 procedures to deprive individuals of their liberty for 

10 an indefinite period of time without a meaningful 

11 opportunity to confront and rebut the evidence on 

12 which that detention is predicated. 

13 (21) President George W. Bush and the De14 partment of Defense designated at least 2 United 

15 States citizens as ‘‘enemy combatants,’’ claimed the 

16 right to detain them indefinitely on United States 

17 soil without charge and without access to counsel, 

18 and argued that allowing meaningful judicial review 

19 of their detention would be ‘‘constitutionally intoler20 able’’. 

21 (22) The Supreme Court established in Hamdi 

22 v. Rumsfeld that meaningful review by a neutral de23 cisionmaker of the detention of United States citi24 zens is constitutionally required, that ‘‘the risk of an 

25 erroneous deprivation of a citizen’s liberty ... is very 


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1 real,’’ and that the Constitution mandates that a 

2 United States citizen be given a fair opportunity to 

3 rebut the Government’s ‘‘enemy combatant’’ des4 ignation. 

5 (23) The administration, having consistently 

6 claimed that according United States citizens des7 ignated as ‘‘enemy combatants’’ the due process pro8 tections accorded to criminal defendants in civilian 

9 courts would jeopardize national security interests of 

10 the utmost importance, elected to pursue criminal 

11 charges against alleged ‘‘enemy combatant’’ Jose 

12 Padilla in a civilian court after holding him in mili13 tary custody for 3 years. 

14 (24) The administration, having contended that 

15 alleged ‘‘enemy combatant’’ and United States cit16 izen Yaser Esam Hamdi was so dangerous that 

17 merely allowing him to meet with counsel ‘‘jeopard18 izes compelling national security interests’’ because 

19 he might ‘‘pass concealed messages through unwit20 ting intermediaries,’’ released Mr. Hamdi from cus21 tody after 3 years and allowed him to return to 

22 Saudi Arabia. 

23 (25) President George W. Bush issued ‘‘Mili24 tary Order of November 13, 2001, Detention, Treat25 ment, and Trial of Certain Non-Citizens in the War 


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1 Against Terrorism,’’ which authorized the creation 

2 of military tribunals to try suspected al Qaeda mem3 bers and other international terrorist suspects for 

4 violations of the law of war. 

5 (26) Alberto R. Gonzales, as Counsel to the 

6 President, in a November 30, 2001, newspaper edi7 torial, defended these military tribunals and 

8 misleadingly represented that they would have ade9 quate procedural safeguards, by stating: ‘‘Everyone 

10 tried before a military commission will know the 

11 charges against him, be represented by qualified 

12 counsel and be allowed to present a defense.’’. 

13 (27) The military tribunals’ procedural rules as 

14 outlined in Military Commission Order No. 1, issued 

15 on March 21, 2002, and as subsequently amended— 

16 (A) permitted the accused and his civilian 

17 counsel to be excluded from any part of the 

18 proceeding that the presiding officer decided to 

19 close, and never learn what was presented dur20 ing that portion of the proceeding; 

21 (B) permitted the introduction of any evi22 dence that the presiding officer determined 

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1 say and evidence obtained through undue coer2 cion; and 

3 (C) restricted appellate review of the com4 missions to a panel appointed by the Secretary 

5 of Defense, followed by review by the Secretary 

6 of Defense and a final decision by the Presi7 dent, with no provision for direct appeal to the 

8 Federal courts for review by civilian judges. 

9 (28) Nearly 5 years after the military order was 

10 signed, the Supreme Court in Hamdan v. Rumsfeld 

11 struck down the military commissions as unlawful, 

12 finding that— 

13 (A) the military commissions as con14 stituted were not expressly authorized by any 

15 congressional act, including the Authorization 

16 for Use of Military Force, the Uniform Code of 

17 Military Justice (UCMJ), and the Detainee 

18 Treatment Act; 

19 (B) the military commission procedures 

20 violated the UCMJ, which mandates that rules 

21 governing military commissions be as similar to 

22 those governing courts-martial ‘‘as practicable,’’ 

23 and which affords the accused the right to be 

24 present; 


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1 (C) the military commission procedures 

2 violated Common Article 3 of the Geneva Con3 ventions, which is part of the ‘‘law of war’’ 

4 under UCMJ Article 21 and requires trial in ‘‘a 

5 regularly constituted court affording all the ju6 dicial guarantees which are recognized as indis7 pensable by civilized peoples’’. 

8 (29) President George W. Bush sought to pre9 vent the Guantanamo detainees from obtaining judi10 cial review of their indefinite confinement by claim11 ing that the writ of habeas corpus was categorically 

12 unavailable to non-citizens held at Guantanamo Bay. 

13 (30) The Supreme Court in Rasul v. Bush 

14 squarely rejected this claim, holding that the legal 

15 precedent on which the President relied ‘‘plainly 

16 does not preclude the exercise of [statutory habeas] 

17 jurisdiction’’ over the detainees’ claims, and that the 

18 general presumption against extraterritorial applica19 tion of a statute, cited by the President, ‘‘certainly 

20 has no application’’ with respect to detainees at 

21 Guantanamo Bay where the United States exercises 

22 ‘‘complete jurisdiction and control’’. 

23 (c) UNITED STATES ATTORNEY FIRINGS AND EXEC24 UTIVE PRIVILEGE.—The Senate finds the following: 


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1 (1) At least 9 United States Attorneys were 

2 told in 2006 that they must step down under the au3 thority of President George W. Bush, who had the 

4 final decision-making power in terminating the em5 ployment of United States Attorneys. 

6 (2) Attorney General Alberto R. Gonzales and 

7 subordinates under his supervision repeatedly misled 

8 Congress and attempted to block legitimate congres9 sional oversight efforts concerning the firing of at 

10 least nine United States Attorneys. 

11 (3) Attorney General Alberto R. Gonzales re12 peatedly obscured the true scope of the firings, origi13 nally declining to cite a specific number of individ14 uals fired in his testimony on January 18, 2007, ac15 knowledging only seven in his USA Today op-ed 

16 published on March 6, 2007, acknowledging eight 

17 firings in his testimony on April 19, 2007, tacitly 

18 conceding there had been nine individuals fired in 

19 his testimony on May 10, 2007, and testifying on 

20 July 24, 2007, that ‘‘there may have been others’’ 

21 but he did not know the exact number. 

22 (4) Attorney General Alberto R. Gonzales ini23 tially characterized the firings as ‘‘an overblown per24 sonnel matter,’’ claiming that the United States At25 torneys had lost his confidence and were fired for 


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1 ‘‘performance reasons’’ when many of those same in2 dividuals had received only the highest performance 

3 reviews prior to their dismissal. 

4 (5) Attorney General Alberto R. Gonzales testi5 fied before the Senate on January 18, 2007, that he 

6 would ‘‘never, ever make a change in a United 

7 States attorney for political reasons,’’ but in later 

8 testimony on April 19, 2007, and July 24, 2007, ad9 mitted that he does not know who selected each indi10 vidual United States Attorney for firing or why they 

11 were included on the list of United States Attorneys 

12 to be fired. 

13 (6) Prior to their selection for firing, both 

14 former New Mexico United States Attorney David 

15 Iglesias and former Washington United States At16 torney John McKay received inappropriate phone 

17 calls from Members of Congress or their staffs re18 garding ongoing, politically sensitive investigations 

19 and the White House received complaints about the 

20 manner in which they were conducting those inves21 tigations. 

22 (7) Attorney General Alberto R. Gonzales testi23 fied before the Senate on January 18, 2007, that he 

24 would not fire a United States Attorney ‘‘if it would 

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1 tion,’’ but later testified, as did his subordinates, 

2 that concerns about whether ongoing investigations 

3 would be jeopardized were not explored prior to the 

4 firings and were specifically ignored when some fired 

5 United States Attorneys asked for a delay in their 

6 departure dates to allow them to wrap up ongoing 

7 investigations. 

8 (8) Attorney General Alberto R. Gonzales pub9 licly stated on March 13, 2007, that he was ‘‘not in10 volved in seeing any memos, was not involved in any 

11 discussions about what was going on’’ regarding the 

12 process leading up to the firing of the United States 

13 Attorneys, but later testimony from his subordinates 

14 and documents released by the Department of Jus15 tice indicate that the Attorney General was, in fact, 

16 regularly briefed on the process and did receive at 

17 least one memo in November 2005 regarding the 

18 planned firings. 

19 (9) Attorney General Alberto R. Gonzales pub20 licly stated on May 15, 2007, that Deputy Attorney 

21 General Paul McNulty’s participation in the firing of 

22 the United States Attorneys was of central impor23 tance to the validity of the process and to the Attor24 ney General’s decision to fire the specific individuals, 

25 but he had previously testified on April 19, 2007, 


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1 that he did not discuss the process with Mr. McNul2 ty prior to firing the United States Attorneys, and 

3 that ‘‘looking back ... I would have had the deputy 

4 attorney general more involved, directly involved’’. 

5 (10) Attorney General Alberto R. Gonzales tes6 tified on May 10, 2007, that, after the start of the 

7 congressional investigation into the firings, he had 

8 refrained from discussing the firings with anyone in9 volved because he did not want to interfere with the 

10 ongoing investigations, but former White House Li11 aison for the Department of Justice, Monica Good12 ling, testified on May 23, 2007, that the Attorney 

13 General spoke with her in late March of 2007 and 

14 ‘‘laid out ... his general recollection ... of some of 

15 the process regarding the replacement of the United 

16 States Attorneys.’’ 

17 (11) Former White House Liaison for the De18 partment of Justice, Monica Goodling, also testified 

19 on May 23, 2007, that she did not respond to what 

20 Attorney General Alberto R. Gonzales said about his 

21 recollection because ‘‘I did not know if it was appro22 priate for us to both be discussing our recollections 

23 of what had happened, and I just thought maybe we 

24 shouldn’t have that conversation.’’ 


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1 (12) President George W. Bush has consistently 

2 stonewalled congressional attempts at oversight by 

3 refusing to turn over White House documents relat4 ing to the firing of at least 9 United States Attor5 neys and refusing to allow current or former White 

6 House officials to testify before Congress on this 

7 matter, based on an excessively broad and legally in8 sufficient assertion of executive privilege. 

9 (13) President George W. Bush has asserted 

10 executive privilege in refusing even to turn over cor11 respondence between non-Executive Branch officials 

12 and White House officials concerning the firings of 

13 at least 9 United States Attorneys, even though such 

14 communications could not reasonably be classified as 

15 falling within the privilege. 

16 (14) President George W. Bush has directed at 

17 least two staff members, former and current, to ig18 nore congressional subpoenas altogether, ordering 

19 former Counsel to the President Harriet Miers and 

20 current Deputy Chief of Staff and Senior Adviser to 

21 the President Karl Rove not to appear at Congres22 sional oversight hearings based on the assertion that 

23 immediate presidential advisors are ‘‘immune from 

24 compelled Congressional testimony about matters 

25 that arose during [their] tenure,’’ rather than simply 


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1 instructing them to refrain from answering questions 

2 that might be covered by a proper assertion of exec3 utive privilege. 

4 (15) President George W. Bush has refused to 

5 work to find a compromise with Congress or other6 wise accommodate legitimate congressional oversight 

7 efforts, disregarding the proper relationship between 

8 the executive and legislative branches and dem9 onstrating a belief that he and his Administration 

10 are above oversight and the rule of law. 

11 (d) MISLEADING STATEMENTS ON THE USA PA12 TRIOT ACT.—The Senate finds the following: 

13 (1) President George W. Bush made misleading 

14 claims during the course of the Administration’s 

15 2005 campaign to reauthorize the USA PATRIOT 

16 Act of 2001, by suggesting that Federal officials did 

17 not have access to the same tools to investigate ter18 rorism as they did to investigate other crimes. 

19 (2) In 2005 the Federal Bureau of Investiga20 tion transmitted to Attorney General Alberto R. 

21 Gonzales multiple reports of violations of law in con22 nection with provisions of the USA PATRIOT Act 

23 and related authorities, including unauthorized sur24 veillance and improper collection of communications 


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1 data that were serious enough to require notification 

2 of the President’s Intelligence Oversight Board. 

3 (3) Despite these reports, Attorney General 

4 Alberto R. Gonzales told Congress and the American 

5 people in the course of the Administration’s 2005 

6 campaign to reauthorize the USA PATRIOT Act of 

7 2001 that ‘‘[t]he track record established over the 

8 past three years has demonstrated the effectiveness 

9 of the safeguards of civil liberties put in place when 

10 the Act was passed,’’ that ‘‘[t]here has not been one 

11 verified case of civil liberties abuse,’’ and that ‘‘no 

12 one has provided me with evidence that the Patriot 

13 Act is being abused or misused’’. 

14 (4) The United States Department of Justice 

15 sent a 10-page letter to Congress dated November 

16 23, 2005— 

17 (A) stating that a November 6, 2005, 

18 Washington Post story detailing the Federal 

19 Bureau of Investigation’s use of National Secu20 rity Letters was a ‘‘materially misleading por21 trayal’’ full of ‘‘distortions and factual errors’’; 

22 (B) defending its use of National Security 

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1 ports to Congress regarding the number of Na2 tional Security Letters issued; and 

3 (C) stating that the November 6, 2005, 

4 Washington Post story was inaccurate in stat5 ing that ‘‘The FBI now issues more than 

6 30,000 National Security Letters a year, ... a 

7 hundredfold increase over historic norms.’’. 

8 (5) On March 9, 2007, the Inspector General 

9 for the United States Department of Justice issued 

10 a report on the Federal Bureau of Investigation’s 

11 use of National Security Letters from 2003 through 

12 2005— 

13 (A) that the Inspector General said found 

14 ‘‘widespread and serious misuse of the FBI’s 

15 national security letter authorities’’ that ‘‘in 

16 many instances ... violated NSL statutes, At17 torney General Guidelines, or the FBI’s own in18 ternal policies,’’ and found that ‘‘the FBI did 

19 not provide adequate guidance, adequate con20 trols, or adequate training on the use of these 

21 sensitive authorities’’; and 

22 (B) that indicated the Federal Bureau of 

23 Investigation issued approximately 39,000 Na24 tional Security Letter requests in 2003, 56,000 

25 National Security Letter requests in 2004, and 


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1 47,000 National Security Letter requests in 

2 2005. 

3 (6) The United States Department of Justice 

4 sent a letter on March 9, 2007, to Congress, admit5 ting that it had ‘‘determined that certain statements 

6 in our November 23, 2005 letter need clarification’’ 

7 in light of the Inspector General’s findings and that 

8 ‘‘the reports [The Department of Justice] provided 

9 Congress in response to statutory reporting require10 ments did not accurately reflect the FBI’s use of 

11 NSLs’’. 

12 (e) SIGNING STATEMENTS.—The Senate finds the 

13 following: 

14 (1) President George W. Bush has lodged more 

15 than 800 challenges to duly enacted provisions of 

16 law by issuing signing statements that indicate that 

17 the President does not believe he must comply with 

18 such provisions of law. 

19 (2) Such signing statements effectively assign 

20 to the executive branch alone the decision whether to 

21 fully comply with the laws that Congress has passed. 

22 (3) On December 30, 2005, President George 

23 W. Bush signed the Department of Defense Emer24 gency Supplemental Appropriations to Address Hur25 ricanes in the Gulf of Mexico, and Pandemic InfluVerDate Aug 31 2005 21:30 Aug 07, 2007 Jkt 059200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\SR303.IS SR303

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1 enza Act, 2006, title X of which prohibits the Gov2 ernment from subjecting any individual ‘‘in the cus3 tody or under the physical control of the United 

4 States Government, regardless of nationality or 

5 physical location’’ to ‘‘cruel, inhuman, or degrading 

6 treatment or punishment’’. 

7 (4) President George W. Bush issued a signing 

8 statement to such Act that suggested he believed he 

9 did not have to comply with the prohibition on tor10 ture and cruel, inhuman and degrading treatment, 

11 stating: ‘‘The executive branch shall construe Title 

12 X in Division A of the Act, relating to detainees, in 

13 a manner consistent with the constitutional author14 ity of the President to supervise the unitary execu15 tive branch and as Commander in Chief and con16 sistent with the constitutional limitations on the ju17 dicial power, which will assist in achieving the 

18 shared objective of the Congress and the President, 

19 evidenced in Title X, of protecting the American 

20 people from further terrorist attacks.’’. 

21 (5) On March 9, 2006, President George W. 

22 Bush signed the USA PATRIOT Improvement and 

23 Reauthorization Act of 2005, which requires that 

24 the executive branch furnish reports to Congress on 

25 certain surveillance activities. 


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•SRES 303 IS 

1 (6) President George W. Bush issued a signing 

2 statement to such Act that suggested he believed he 

3 did not have to comply fully with these reporting re4 quirements, stating: ‘‘The executive branch shall 

5 construe the provisions of H.R. 3199 that call for 

6 furnishing information to entities outside the execu7 tive branch, such as sections 106A and 119, in a 

8 manner consistent with the President’s constitu9 tional authority to supervise the unitary executive 

10 branch and to withhold information the disclosure of 

11 which could impair foreign relations, national secu12 rity, the deliberative processes of the Executive, or 

13 the performance of the Executive’s constitutional du14 ties.’’. 

15 (7) On December 20, 2006, President George 

16 W. Bush signed the Postal Accountability and En17 hancement Act, which protects certain classes of 

18 sealed domestic mail from being opened except in 

19 specifically defined circumstances. 

20 (8) President George W. Bush issued a signing 

21 statement to such Act that suggested he believed he 

22 did not have to comply with this provision, stating: 

23 ‘‘The executive branch shall construe subsection 

24 404(c) of title 39, as enacted by subsection 1010(e) 

25 of the Act, which provides for opening of an item of 


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•SRES 303 IS 

1 a class of mail otherwise sealed against inspection, 

2 in a manner consistent, to the maximum extent per3 missible, with the need to conduct searches in exi4 gent circumstances, such as to protect human life 

5 and safety against hazardous materials, and the 

6 need for physical searches specifically authorized by 

7 law for foreign intelligence collection.’’ 

8 (9) The American Bar Association Task Force 

9 on Presidential Signing Statements and the Separa10 tion of Powers Doctrine concluded that President 

11 George W. Bush’s misuse of signing statements 

12 ‘‘weaken[s] our cherished system of checks and bal13 ances and separation of powers’’. 

14 SEC. 2. CENSURE BY THE SENATE. 

15 The Senate censures George W. Bush, President of 

16 the United States, and Alberto R. Gonzales, Attorney 

17 General of the United States, and condemns their lengthy 

18 record of— 

19 (1) undermining the rule of law and the separa20 tion of powers; 

21 (2) disregarding statutes, treaties ratified by 

22 the United States, and the Constitution; and 

23 (3) repeatedly misleading the American people. 

Æ 


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