S. HRG. 110–584 

RESTORING THE RULE OF LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 16, 2008 

Serial No. J–110–119 

Printed for the use of the Committee on the Judiciary 

( 

RESTORING THE RULE OF LAW 

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45–240 PDF 2008

S. HRG. 110–584 

RESTORING THE RULE OF LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 16, 2008 

Serial No. J–110–119 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Chief Counsel 

LAUREN B. PETRON, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 101 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 3 

WITNESSES 

Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, D.C. .............. 8 

Dellinger, Walter, Partner, O’Melveny & Myers, LLP, Visiting Professor of 

Law, Harvard Law School, former Assistant Attorney General, Office of 

Legal Counsel (1993–1996), former Acting Solicitor General (1996–1997), 

Chapel Hill, North Carolina ................................................................................ 29 

Edwards, Mickey, Board of Directors, The Constitution Project; Lecturer, 

Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress 1977–1993; and former Chairman, 

House Republican Policy Committee, Washington, D.C. .................................. 10 

Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith Professor 

of International Law, Yale Law School, New Haven, Connecticut .................. 14 

Massimino, Elisa, Chief Executive Officer and Executive Director, Human 

Rights First, Washington, D.C. ........................................................................... 33 

Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, D.C. .............. 35 

Podesta, John D., President and Chief Executive Officer, Center for American 

Progress Action Fund, Washington, D.C. ........................................................... 39 

Rotunda, Kyndra, Professor of Law, Chapman University School of Law, 

Orange, California ................................................................................................ 31 

Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for Justice, 

New York University School of Law, New York, New York ............................. 5 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C. ........................................................................................................................ 37

Turner, Robert, Professor, General Faculty, Associate Director, Center for 

National Security Law, University of Virginia School of Law, Charlottesville, Virginia ........................................................................................................ 12 

QUESTIONS AND ANSWERS 

Response of Charles J. Cooper to questions submitted by Senator Whitehouse 51 

Responses of Mickey Edwards to questions submitted by Senator Whitehouse 52 

Responses of Elisa Massimino to questions submitted by Senator Whitehouse 54 

Responses of John D. Podesta to questions submitted by Senator Whitehouse . 55 

Responses of Kyndra Rotunda to questions submitted by Senator Whitehouse 57 

Responses of Frederick A.O. Schwarz to questions submitted by Senator 

Whitehouse ........................................................................................................... 58 

Responses of Suzanne E. Spaulding to questions submitted by Senator 

Whitehouse ........................................................................................................... 65 

Responses of Robert Turner to questions submitted by Senator Whitehouse .... 68 

SUBMISSIONS FOR THE RECORD 

Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, D.C., statement ...................................................................................................................... 85 

Edwards, Mickey, Board of Directors, The Constitution Project; Lecturer, 

Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress 1977–1993; and former Chairman, 

House Republican Policy Committee, Washington, D.C., statement ............... 96 

Page

IV 

Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith Professor 

of International Law, Yale Law School, New Haven, Connecticut, statement ...................................................................................................................... 103 

Massimino, Elisa, Chief Executive Officer and Executive Director, Human 

Rights First, Washington, D.C., statement and attachments .......................... 116 

Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, D.C., statement ...................................................................................................................... 145 

Podesta, John D., President and Chief Executive Officer, Center for American 

Progress Action Fund, Washington, D.C., statement and attachment ............ 155 

Professors of law and former attorneys in the Department of Justice, Office 

of Legal Counsel, joint statement and attachment ........................................... 178 

Rotunda, Kyndra, Professor of Law, Chapman University School of Law, 

Orange, California, statement ............................................................................. 197 

Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for Justice, 

New York University School of Law, New York, New York, statement .......... 204 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C., statement .................................................................................................... 235 

Turner, Robert, Professor, General Faculty, Associate Director, Center for 

National Security Law, University of Virginia School of Law, Charlottesville, Virginia, statement ..................................................................................... 246 

(1) 

RESTORING THE RULE OF LAW 

TUESDAY, SEPTEMBER 16, 2008 

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:20 a.m., in 

room SD-562, Dirksen Senate Office Building, Hon. Russell D. 

Feingold, Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Cardin, Whitehouse, and Brownback. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I will call the Committee to order. Welcome, everybody, to this hearing of the Constitution Subcommittee 

entitled ‘‘Restoring the Rule of Law.’’ 

We have two very distinguished panels of witnesses scheduled, 

and I want to thank all of you for being here. 

Tomorrow, September 17th, is the 221st anniversary of the day 

in 1787 when 39 members of the Constitutional Convention signed 

the Constitution in Philadelphia. It is a sad fact as we approach 

that anniversary that for the past 71⁄2 years, and especially since 

9/11, the Bush administration has treated the Constitution and the 

rule of law with a disrespect never before seen in the history of this 

country. By now, the public can be excused for being almost numb 

to new revelations of Government wrongdoing and overreaching. 

The catalogue is breathtaking, even when immensely complicated 

and far-reaching programs and events are reduced to simple catch 

phrases: torture, Guantanamo, ignoring the Geneva Conventions, 

warrantless wiretapping, data mining, destruction of e-mails, U.S. 

Attorney firings, stonewalling of congressional oversight, abuse of 

the state secrets doctrine and executive privilege, secret abrogation 

of executive orders, signing statements. This is a shameful legacy 

that will haunt our country for years to come. 

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does ‘‘the rule of 

law’’ really mean? Well, as Thomas Paine said in 1776: ‘‘In America, the law is king.’’ That, of course, was a truly revolutionary concept at a time when in many places kings were the law. 

Over 200 years later, we still must struggle to fulfill Paine’s simply stated vision. It is not always easy, nor is it something that 

once done need not be carefully maintained. Justice Frankfurter 

wrote that the law is ‘‘an enveloping and permeating habituation 

of behavior, reflecting the counsels of reason on the part of those 

2 

entrusted with power in reconciling the pressures of conflicting interests. Once we conceive ‘the rule of law’ as embracing the whole 

range of presuppositions on which government is conducted..., the 

relevant question is not, has it been achieved, but, is it conscientiously and systematically pursued.’’ 

So the post-9/11 period is not, of course, the first time that 

events have caused great stress for the checks and balances of our 

system of government. As Berkeley law professors Daniel Farber 

and Anne Joseph O’Connell write in testimony submitted for this 

hearing: ‘‘The greatest constitutional crisis in our history came 

with the Civil War, which tested the nature of the Union, the scope 

of Presidential power, and the extent of liberty that can survive in 

war time.’’ But as legal scholar Louis Fisher of the Library of Congress describes in his testimony, President Lincoln pursued a much 

different approach than our current President when he believed he 

needed to act in an extra-constitutional manner to save the Union. 

He acted openly and sought Congress’s participation and ultimately 

approval of his actions. According to Dr. Fisher, ‘‘[Lincoln] took actions we are all familiar with, including withdrawing funds from 

the Treasury without appropriation, calling up the troops, placing 

a blockade on the South, and suspending the writ of habeas corpus. 

In ordering those actions, Lincoln never claimed to be acting legally 

or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed 

the sanction of Congress. . . He recognized that the superior lawmaking body was Congress and not the President.’’ 

So each era brings its own challenges to the conscientious and 

systematic pursuit of the rule of law. How the leaders of our Government respond to those challenges at the time they occur is, of 

course, critical. But recognizing that leaders do not always perform 

perfectly, that not every President is an Abraham Lincoln, the 

years that follow a crisis are perhaps even more important. And 

soon, this administration will be over. So the obvious question is: 

Where do we go from here? I believe that one of the most important 

things that the next President must do, whoever he may be, is take 

immediate and concrete steps to restore the rule of law in this 

country. He must make sure that the excesses of this administration do not become so ingrained in our system that they change the 

very notion of what the law is. 

That, of course, is much easier said than done. It is not simply 

a matter of a new President saying, ‘‘OK, I won’t do that anymore.’’ 

This President’s transgressions are so deep and the damage to our 

system of government so extensive that a concerted effort from the 

executive and legislative branches will be needed. And that means 

the new President will, in some respects, have to go against his 

own institutional interests. 

That is why I called this hearing: to hear from legal and historical experts on how the next President should go about tackling the 

wreckage that this President will leave. I have asked our two panels of experts who will testify to be forward-looking, to not only review what has gone wrong in the past 7 or 8 years, but to address 

very specifically what needs to be set right starting next year and 

how to go about it. 

3 

In addition to the testimony of the witnesses here today, I solicited written testimony from advocates, law professors, historians, 

and other experts. So far we have received nearly two dozen submissions from a host of national groups and distinguished individuals, and I want to thank each and every person who made the effort to prepare testimony for this hearing. You have done the country a real service. 

Without objection, all of this testimony will be included in the 

written record of the hearing. I plan to present the full hearing 

record to the incoming administration. The submissions we have 

received so far can be seen on my website at feingold.senate.gov. 

I hope that many of these recommendations, along with the testimony we will hear today, will serve as a blueprint for the new 

President so that he can get started right away on this immense 

and extremely important job of restoring the rule of law. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

So now let me turn to our Ranking Member and thank him for 

his participation. Senator Brownback? 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you very much, Chairman Feingold. 

Thank you, witnesses, for being here today and the preparation 

that you have gone through to be here. I look forward to hearing 

your testimony, your thoughts, and the parameters that the Chairman has put forward, although first I have to take some question 

about the title of the hearing and the testimony offered by some 

of the witnesses here today, as both clearly are intended to imply 

that President Bush and certain members of the administration 

have undermined or even eviscerated the rule of law. I have to take 

issue with the premise. 

Clearly, there is a wide range of opinion as to how the President 

has conducted the war against terrorism over the past 7 years. I 

give that. Just as there are differences of opinion with regard to 

how the courts and even we in Congress have handled that unique 

and unprecedented challenge. 

Had the attacks of September 11th and their aftermath occurred 

at a different time under a different President, that President 

might have done different policy judgments. I am pretty certain, 

though, that another President would not have found him- or herself immune to strong criticism, be it from the same voices that disagree with President Bush or from a different group of voices altogether. 

At the end of the day, though, the fact that these sorts of disagreements exist in no way demonstrates that our Nation is somehow subsisting in a lawless state. And I do not believe that it is 

helpful or even really productive to claim that it is. 

Second, the topics that will be raised in this hearing ranging 

from a debate over the proper scope of executive power to electronic 

surveillance to alleged torture to national security letters to Government secrecy to the terrorist detainee policy are certainly not 

new topics to the Judiciary Committee or the Subcommittee. By my 

staff’s count, there have been 24 hearings in this Congress and the 

4 

prior Congress addressing the very issues our witnesses today will 

discuss. And I appreciate that we are taking forward-looking sight 

and not a backward-looking one. But that does not even include, 

that number I listed, the times these issues have been raised at 

confirmation hearings or agency oversight hearings. 

Now, I come from a farming background, so the expression that 

comes to my mind is that this is ‘‘well-plowed ground.’’ Although 

these are obviously important issues, no one who has looked at the 

lengthy list of hearings we have had on these issues could legitimately claim that we have not received a significant amount of attention on these topics. 

Furthermore, we have to a certain extent always seen considerable changes on some of these topics. For example, earlier this 

summer we passed the Foreign Intelligence Surveillance Amendments Act, which, for better or for worse, expanded the types of circumstances in which our intelligence agencies must seek court approval before undertaking electronic surveillance. Additionally, the 

issue of waterboarding had previously raised considerable concern. 

We now have assurances that the CIA no longer engages in the 

practice. While I am sure that knowledge does not satisfy everyone 

testifying here today, I think they would at least believe it is a step 

in the right direction. 

With regard to detainee policy, the Supreme Court’s decision this 

summer resolved some of the concerns of administration critics. 

And, of course, just as our panelists here today may disagree on 

whether our Constitution supports the President’s broad very of executive power, I am sure they would also disagree on whether that 

same document requires that we grant Fourth Amendment protections to enemy combatants on foreign soil. 

My final point involves these enemy combatants and my home 

State. There are numerous individuals and organizations, including 

some represented on our panel today, who have called for the 

United States to close the detainee facility at Guantanamo Bay, 

Cuba, and relocate individuals being held as enemy combatants to 

the disciplinary barracks at Fort Leavenworth, Kansas. I have personally toured the facilities at Fort Leavenworth many times, and 

the facility simply is not equipped to handle these sorts of non-military detainees. 

First, the maximum security wing of the disciplinary barracks is 

near capacity with military prisoners and much too small to handle 

the Guantanamo Bay population. 

Second, Leavenworth cannot sufficiently separate detainees from 

the rest of the prison population, which would violate laws and 

policies against commingling. 

Third, Fort Leavenworth does not have the ability to house and 

feed the large number of personnel necessary to secure a detainee 

population. 

Fourth, Fort Leavenworth perimeter security is inadequate for a 

detainee mission. 

Fifth, the disciplinary barracks facility is not far enough away 

from the edge of Fort Leavenworth to safely house detainees. 

Sixth, the disciplinary barracks does not have 24-hour-a-day 

medical facilities, which would require transporting detainees offsite for after-hours or emergency care. 

5 

And, finally, it is unwise to put detainees on the same installation with the next generation of Army leaders studying at the Command and General Staff College. 

I would ask those who advocate moving terrorist detainees to my 

home State to consider these facilities and undertake an honest assessment of the physical realities of housing and securing a detainee population. I hope that the next President and many concerned Members of Congress will visit Fort Leavenworth to make 

such an assessment. I am confident any visitor would conclude that 

the Fort Leavenworth disciplinary barracks is not the best option 

for a detainee population. I would hope they would take that into 

consideration. 

Mr. Chairman, I look forward to the testimony that the witnesses 

will present. 

Chairman FEINGOLD. Thank you, Senator Brownback. 

We will now turn to the testimony from our first panel of witnesses. Will the first panel of witnesses please stand and raise your 

right hand to be sworn? Do you swear or affirm that the testimony 

you are about to give before the Committee will be the truth, the 

whole truth, and nothing but the truth, so help you God? 

Mr. COOPER. I do. 

Mr. EDWARDS. I do. 

Mr. KOH. I do. 

Mr. SCHWARZ. I do. 

Mr. TURNER. I do. 

Chairman FEINGOLD. Thank you, gentlemen, and you may be 

seated. I want to thank you, welcome you. I am extremely impressed with the caliber of the witnesses on both panels today. I 

would ask that you each limit your remarks to 5 minutes, as we 

do have a lot to discuss. Your full written statements will, of 

course, be included in the record. 

Our first witness today will be Frederick A.O. Schwarz, Jr. Mr. 

Schwarz is a graduate of Harvard University and Harvard Law 

School. He is currently senior counsel at the Brennan Center for 

Justice at NYU Law School. Mr. Schwarz has had a long and impressive career in both private practice and public service. Of particular interest to us here today, in 1975 and 1976, he was chief 

counsel for the U.S. Senate Committee to study governmental operations with respect to intelligence activities, commonly known as 

the ‘‘Church Committee.’’ In 2007, Mr. Schwarz co-authored with 

Aziz Huq the book entitled ‘‘Unchecked and Unbalanced: Presidential Power in a Time of Terror.’’ 

Mr. Schwarz, welcome and you may proceed. 

STATEMENT OF FREDERICK A. O. SCHWARZ, JR., SENIOR 

COUNSEL, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. SCHWARZ. Thank you very much, Senator. 

You know, you referenced the Church Committee, and the lesson 

that was drawn from our work there was that crisis always makes 

it tempting to abandon the wise restraints that keep us free. That 

has always been true. It is true today. However, today we have a 

worse problem than any one in our history: first, the crisis has 

gone on for longer; and, second, there is a new theory, never before 

6 

voiced by an administration in power, that the President has the 

right to ignore or defy the law. So in that sense, we are repeating 

history, but we are in a more dangerous part of history. 

I think the title of this hearing actually cuts to the heart of the 

matter because the current administration has ignored and defied 

the rule of law. And in so doing, it has undermined America’s 

greatest strength, and that is, our compliance with the rule of law 

and our reputation for doing so. That has not only left Americans 

less free; it has also made us less safe. 

Now, I make a number of recommendations in my written testimony. One is that the new President, immediately upon taking office, should disavow the theory that Vice President Cheney first 

came up with 20 years ago that the President has the right to monarchical powers. That is very, very important. And I also recommend a number of specific pieces of legislation, many of which 

deal with secrecy. 

But the one I want to start with and try to cover in this short 

period of time is that the next Congress and the next President 

should appoint an independent, bipartisan investigatory commission charged with determining what has gone right and what has 

gone wrong with our policies in confronting terrorism and to recommend solutions. Without full knowledge of all the facts, we cannot know why wrong steps were taken, and we cannot take the 

necessary steps to repair the damage. 

We have plenty of problems. Torture—I talk about torture a lot 

in my paper, and even Colin Powell and Mr. Turner say that it is 

clear that what has been done has undermined America’s greatest 

strength. Colin Powell put it: ‘‘The world is beginning to doubt the 

moral basis of our fight against terrorism.’’ And waterboarding, 

yes, it has been said they are not using it, but it has not been disavowed. The Attorney General refuses to disavow it, and the Vice 

President positively embraces it. 

These steps toward torture have hurt us enormously with our allies. We have lot support that we had. Intelligence services, even 

in Great Britain, are less willing to cooperate with us. And France 

and Germany have ordered the arrest of CIA officials. 

So to avoid repeating history requires understanding history. We 

know that excessive secrecy smothers the popular judgment that 

gives life to democracy. We need to cut through that secrecy, and 

a commission would serve several functions. 

First, it would reveal the many as yet unknown aspects of what 

our Government has done and, equally important, how internally 

it rationalized and evaluated its actions. 

Second, documenting violations of the public commitments of the 

United States is also to fulfill an important moral imperative. Renewing our commitment to the rule of law by confronting and acknowledging our recent failures gives substance to our national 

moral commitment, and thus can help begin to restore our reputation in the rest of the world. 

The findings of a commission also would play the important role 

of holding accountable those who are responsible for wrongdoing 

and for legal and constitutional violations. The public revelations 

made by a commission would lodge accountability for deeds where 

7 

it belongs and serve as a warning to future Government officials 

not to again stray into the bound of unchecked power. 

And, finally, and most importantly, the commission’s work would 

play an important role in preventing future abuses. Without the 

truth, we will not have—without the full truth, we will not have 

a sufficient factual basis for informed public debate on the role of 

Government activities in a free society during an extended time of 

crisis. And it is great that this Committee is having a debate, a discussion, and people on the other side who I respect, it is great that 

you are having a discussion about what we must do to restore the 

rule of law and to have a discussion about whether the President 

has the power to break the law. 

Now, while the revelations of a new commission charged rooting 

out the truth of this most recent period of Government failures 

might prove embarrassing to some individuals, and perhaps even 

to the country as a whole, that embarrassment is a price that must 

be paid. For, as the Church Committee concluded in one of its reports: ‘‘We must remain a people who confront our mistakes and 

resolve not to repeat them. If we do not, we will decline; but if we 

do, our future will be worthy of the best of our past.’’ 

Now, I want to conclude with just one final thought, and that is, 

this is not, this should not be, it cannot be, a partisan issue. The 

need to restore checks and balances under the rule of law is far 

more important than the controversies that divide Americans. Indeed, understanding the importance of righting the separation of 

powers and checks and balances and restoring respect for the rule 

of law should bring all Americans together. If today’s President 

happens to hail from one party and the congressional majority from 

another, in the future those affiliations will surely change. But the 

core principle that the preservation of the Constitution’s checks 

and balances and respect for the rule of law is essential to effective 

Government endures, regardless of what party controls either 

branch. If we turn a blind eye to this truth, the Nation will feel 

the consequences far into the future. 

[The prepared statement of Mr. Schwarz appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you very much, Mr. Schwarz. Again, 

if people could try to keep their remarks to 5 minutes, it would be 

helpful. 

Mr. SCHWARZ. Did I manage to, or did I—I am sorry. 

[Laughter.] 

Chairman FEINGOLD. We are pleased you are here. 

Mr. SCHWARZ. The clock is not working on this thing here. 

Chairman FEINGOLD. We’ll get the clock going. But I was delighted to hear your remarks. 

Our next witness is Charles Cooper. Mr. Cooper, a graduate of 

Yale University and Harvard Law School, is a founding member 

and chairman of the law firm of Cooper & Kirk, where his practice 

is concentrated in the areas of constitutional, commercial, and civil 

rights litigation. Mr. Cooper has over 25 years of legal experience 

in Government and private practice and was named by the National Law Journal as one of the ten best civil litigators in Washington. He served as Assistant Attorney General for the Office of 

Legal Counsel in the Reagan administration. 

8 

Mr. Cooper, thank you so much for being here today, and you 

may proceed. 

STATEMENT OF CHARLES J. COOPER, PARTNER, COOPER & 

KIRK, PLLC, WASHINGTON, D.C. 

Mr. COOPER. Thank you very much, Chairman Feingold and 

Ranking Member Brownback, for inviting me to this hearing. Before discussing particular separation of powers issues that have 

been at the forefront of today’s controversy, I think it is important 

to remember the extraordinary context in which these issues have 

arisen. 

Just 5 days ago we marked the seventh anniversary of the September 11th terrorist attacks, and we entered into the eighth year 

of an out-and-out war with those who seek the destruction of our 

Nation and our way of life. 

In perilous times such as these, with regard to momentous and 

difficult issues such as those that have confronted our Government, 

can the imperative to grant the Executive the benefit of genuine 

legal doubt be any greater? 

Like Robert Jackson, the former Attorney General and Supreme 

Court Justice, I believe the President, especially in time of war, is 

surely entitled to ‘‘the benefit of a reasonable doubt as to the law.’’ 

This has traditionally been the view of the President’s legal advisers in the Office of Legal Counsel. And I feel bound also to say 

this about the lawyers that have recently served in OLC: I cannot 

imagine a more important, yet more difficult, more trying, more 

thankless, and, indeed, it now appears, more perilous job for a lawyer than being a legal adviser to the President and the administration in the weeks and months following 9/11. I give thanks that the 

office was not confronted with so grave and difficult a responsibility 

during my time at OLC, and I am grateful to the men and women 

who have served their country in that office under these awful circumstances. 

The bill of particulars that the administration’s harshest critics 

have offered in support of the charge that the administration has 

abandoned the rule of law appears to focus on four general areas 

of concern, and I address each of those in my written statement, 

but in these remarks I will focus only on issues related to the detention and prosecution of foreign terrorists and enemy combatants. 

The debate over these issues more than any other of the issues 

that have arisen in the last 8 years has been settled in our courts. 

And in the Federal courts of appeals—that is, in the courts that are 

bound to follow faithfully Supreme Court precedent—the administration is undefeated in the major war on terror cases. In those 

cases—Rasul, Hamdi, Hamdan, and Boumediene, of the 12 votes 

cast by courts of appeals judges, 11 of them came down on the side 

of the administration. Now, that judicial acceptance of the administration’s positions surely established that they were well grounded 

in Supreme Court precedent. 

One can hardly fault the administration, for example, for failing 

to predict the Boumediene Court’s abandonment of a venerable case 

like Eisentrager. The Boumediene case overturned the Military 

Commission Act of 2006, which was Congress’s carefully considered 

9 

statutory framework for determining the status of Guantanamo detainees. Thus, the five Justices in the Boumediene majority essentially ignored Justice Jackson’s famous formulation in the steel seizure case that when the President acts pursuant to an act of Congress, his authority is, in Jackson’s words, ‘‘at its maximum’’ and 

should be accorded ‘‘the strongest of presumptions and the widest 

latitude of judicial interpretation.’’ 

Indeed, prior to the war on terror cases, the Supreme Court had 

uniformly accorded the President great deference in the area of national security and foreign and military affairs. That a bare majority of the Supreme Court has now effectively cast aside that long 

history of deference in an area so critical to our national security 

is, I would submit, the most significant development in the separation-of-powers area to come out of the last 8 years. If you want to 

know my advice on what the next President and Congress or Senate should do to ensure that the rule of law as embodied in our 

Constitution will be respected, it is this: appoint and confirm 

judges and Justices who will respect the constitutional prerogatives 

of the other branches of Government. 

One last point while I am on the subject of the Supreme Court. 

A large majority of the Court’s decisions each term reverse the 

opinions of lower court judges, and the Court invalidates congressional statutes virtually every term. In other words, every term the 

Court declares that Congress and lower court judges got the law 

wrong. But these judges and Members of Congress are presumed, 

quite properly, to make good-faith efforts to interpret the law honorably and to the best of their abilities. Yet that presumption is 

typically not accorded to members of the executive branch. 

Which brings me to something that the next administration and 

Congress, in my opinion, most assuredly should not do, and this 

will conclude my testimony, Senator Feingold. It should not threaten executive branch lawyers from the prior administration with 

ethical inquiries and criminal investigations. Even tranquil times, 

let alone times of war and national peril, engender serious debate 

and vigorous emotional disagreement over matters of policy and 

law. If disagreement between lawyers is sufficient to provoke criminal investigation, civil liability, or bar discipline proceedings, why 

would anyone—of either party or no party—elect to serve as a lawyer for the Government? 

Thank you, Senator Feingold. 

[The prepared statement of Mr. Cooper appears as a submission 

for the record.] 

Chairman FEINGOLD. I thank you, Mr. Cooper. 

Our next witness is former Congressman Mickey Edwards. Congressman Edwards was a Republican Member of Congress from 

Oklahoma for 16 years, from 1977 to 1993, during which time he 

served on the House Appropriations and Budget committees and 

was a senior member of the House Republican leadership as Chairman of the party’s Policy Committee. After leaving Congress, Edwards was on the Harvard faculty for 11 years, where he taught 

at both the Kennedy School of Government and Harvard Law 

School. For the past 4 years, he has been on the faculty of Princeton University Woodrow Wilson’s School of Public and International Affairs. Congressman Edwards is also on the board of diVerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC
10 

rectors on the Constitution Project. He was one of three founding 

directors of the Heritage Foundation, national chairman of the 

American Conservative Union, and he has chaired the annual Conservative Political Action Conference five times. 

Congressman Edwards, thank you for being here and for your 

time today. You may proceed. 

STATEMENT OF MICKEY EDWARDS, BOARD OF DIRECTORS, 

THE CONSTITUTION PROJECT; LECTURER, WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS, 

PRINCETON UNIVERSITY; FORMER MEMBER OF CONGRESS 

1977–1993; AND FORMER CHAIRMAN, HOUSE REPUBLICAN 

POLICY COMMITTEE, WASHINGTON, D.C. 

Mr. EDWARDS. Thank you, Mr. Chairman, members of the Committee. On behalf of myself and the Constitution Project, I want to 

thank you for the opportunity to discuss the rule of law as it pertains in particular to the prerogatives and obligations of the Congress. I have become increasingly concerned about the failures of 

Congress to meet its constitutional responsibilities. 

There are a great many important questions, substantive policy 

questions, to be face. Not one of those issues—and not all of them 

combined—is as important as remaining a Nation governed by the 

rule of law under our Constitution. In our case, the principal law 

that governs us and to which all other laws are subordinate is the 

Constitution, which spells out the powers and limits on the powers 

of the Government as a whole and of the component branches of 

the Government. 

There has been a great deal of criticism directed at the President 

over actions viewed by many—and by me—as overstepping the 

proper bounds of his authority and violating the Constitution. I 

have no intention of renewing those criticisms here today. I am not 

here to point a finger of blame at President Bush. 

So let me be clear. The current threat to our system of separated 

powers and the protections it affords stems not just from executive 

overreaching but also from the acquiescence of the Congress. America’s Founders envisioned a system in which each branch of Government would guard its prerogatives and meet its obligations. 

But for years, the Congress has failed to live up to its responsibilities as the representative of the people. Congress’s constitutional role includes primary authority over spending priorities, tax 

policies, and whether or not to go to war. All of those decisions require the gathering of the information necessary to act judiciously 

and a willingness to see to it that Congress’s decisions are complied 

with. 

Instead of fulfilling this trust, Congress has too often been silent. 

When the President, in a direct challenge to Article I, Section 7 of 

the Constitution, declared that he would decide for himself whether 

he was bound by the laws he signed, both Houses of Congress held 

hearings but failed to pursue the matter any further. Particularly 

distressing to me as a former member of the Republican leadership 

was the reaction of the Republican members of the House Judiciary 

Subcommittee who indicated no concern at all about a President’s 

declaration that he had the right to disregard the laws that the 

Congress had passed. 

11 

When the President declared that he had the authority to disregard Federal law that required a judicial warrant before conducting electronic surveillance on American citizens, Congress held 

hearings but never required compliance with its requests for full 

disclosure about how the program was conducted. And the Congress acquiesced to the President’s demands that the law be 

changed without obtaining the information it needed. 

When the President declared that the Congress could not question members of his staff to determine whether laws had been broken or new laws were needed, nearly half the members of the 

House—members of my party, which had always said it favored 

strict construction—walked out rather than hold White House staff 

members in contempt. And the Congress was forced to file a civil 

suit, as any citizen might do, as though it were not an equal 

branch of Government. 

When the Congress has required information about the undertaking of covert actions or needed access to information the Executive has classified, the Congress has permitted the Executive to dictate who among the Members of Congress and their staffs may 

have access to that information, the result being that information 

that is available to hundreds of executive branch staff members is 

withheld not only from congressional staff members but from Members of Congress themselves. And with this, the Congress meekly 

complies. 

Every Member of Congress takes an oath to uphold and defend 

the Constitution. Once that oath is taken, loyalty to the Constitution takes primacy over loyalty to party or individual. That is not 

what has happened in recent years. 

Do Members of the Senate recall that the President is the head 

of state but not the head of Government? Do they understand that 

they are members not merely of a separate branch of Government, 

but of a branch that is completely the equal of the Presidency and 

in many areas—taxing, spending, the power to declare war—the 

pre-eminent branch? 

Mr. Chairman and members of the Committee, do not let it be 

said that what the Founders created, you have destroyed. Do not 

let it be said that on your watch, the Constitution of the United 

States became not the law of the land but a suggestion. You are 

not a parliament; you are a Congress—separate, independent, and 

equal. And because of that you are the principal means by which 

the people maintain control of their Government. 

Mr. Chairman, the issue is not what the next President should 

do. It is what the next Congress should do. 

Thank you. 

[The prepared statement of Mr. Edwards appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Congressman Edwards. Your 

testimony I think is terribly important much beyond the confines 

of this hearing. I think it is a historic statement, and I welcome 

it. 

Our next witness this morning is Professor Robert Turner of the 

University of Virginia Law School. Professor Turner co-founded the 

Center for National Security Law in April 1981 and has, with a few 

breaks for Government service, served as its Associate Director 

12 

since then. A veteran of two Army tours in Vietnam, he has worked 

for the Senate Foreign Relations Committee, at the Pentagon, and 

the State Department, and has served as three-term chairman of 

the ABA Standing Committee on Law and National Security. Professor Turner attended Indiana University and the University of 

Virginia Law School. 

Professor Turner, it is good to see you again. Thank you for being 

here, and you may proceed. 

STATEMENT OF ROBERT TURNER, PROFESSOR, GENERAL 

FACULTY, ASSOCIATE DIRECTOR, CENTER FOR NATIONAL 

SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

CHARLOTTESVILLE, VIRGINIA 

Mr. TURNER. Thank you, Mr. Chairman, Senator Brownback, and 

members of the Committee. I am deeply honored to be here again 

before this Subcommittee because the topic is one of great importance to the Nation: ‘‘Restoring the Rule of Law.’’ Ironically, that 

was the subtitle to one of my books criticizing the War Powers Resolution. 

My central premise is that we have a hierarchy of laws in this 

country, with the Constitution at the top. The President is not 

breaking the law when he violates a statute he believes to be unconstitutional. He is upholding the supreme law of the land. And, 

sadly, over the past three or four decades, Congress has been flagrantly violating the Constitution in a variety of ways. 

As a Senate staff member in 1976, I drafted a lengthy memorandum explaining why legislative vetoes are unconstitutional. 

Seven years later, in the Chadha case, the Supreme Court reached 

exactly the same conclusion on a number of grounds. Sadly, rather 

than eliminating the hundreds of existing legislative vetoes already 

on the books, Congress responded by enacting more than 500 new 

patently unconstitutional legislative vetoes—thumbing its nose at 

the Supreme Court and the Constitution in the process. This is the 

single most common reason Presidents of both parties have found 

it necessary to issue signing statements. 

The greatest congressional lawbreaking by far has occurred in 

the area of foreign affairs. This is an area that is not understood 

by many Americans. I did my doctorate on it, 1,700 pages, and 

have spent close to 40 years studying it. In my prepared statement, 

which runs some 60 or 70 pages, I include quotations from Founding Fathers like George Washington, Thomas Jefferson, James 

Madison, Alexander Hamilton, John Jay, and John Marshall, demonstrating their view that the Constitution gave exclusive control 

over foreign policy to the President—subject only to narrowly construed ‘‘exceptions’’ given to the Senate and to the Congress—when 

it vested the executive power in Article II, Section 1 in that office. 

And I demonstrate in my testimony that there is a long history of 

agreement on this point by all three branches of Government. 

The Federalist Papers explained that, because Congress could 

not be trusted to keep secrets, the new Constitution had left the 

President, and I quote, ‘‘able to manage the business of intelligence 

as prudence might suggest.’’ Throughout our history that was the 

collective understanding until 35 years ago, when Congress began 

usurping power in this area. 

13 

The first witness said that never before in our history has a 

President claimed the power to ignore a law. This is absolutely absurd. The first example probably was somebody—you cannot come 

from the University of Virginia and not mention Thomas Jefferson—who, upon assuming office, declared he was not going to be 

bound by the Alien and Sedition Acts because they were unconstitutional. They violated the First Amendment. 

FDR, in the famous Supreme Court Levin case, issued a signing 

statement declaring he was not going to enforce a rider stuck on 

an urgent supplemental appropriations bill for World War II that 

said no money could be used to pay the salaries of three people believed by some to be Communists in Government service. During 

that debate, many members said this was a ‘‘Star Chamber process.’’ Congress was trying and punishing individuals without due 

process of law. Ultimately, the Supreme Court declared it was an 

unconstitutional bill of attainder. 

I quote John Marshall in Marbury v. Madison as declaring, and 

I quote, ‘‘a legislative Act contrary to the Constitution is not law.’’ 

Ergo, the President’s duty to see the laws ‘‘faithfully executed’’ does 

not include unconstitutional Acts of Congress. 

In Marbury v. Madison, in language often excluded from modern 

casebooks, Chief Justice Marshall noted the Constitution grants to 

the President a great deal of unchecked power. We hear today 

every power of a democracy must be checked. That was not the understanding of the Constitution by the Framers. 

For example, to quote from Marshall in Marbury: ‘‘whatever 

opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to 

control that discretion.’’ 

As recently as 1969, Senator J. William Fulbright, Chairman of 

the Senate Foreign Relations Committee, stated in a speech at Cornell Law School, ‘‘The pre-eminent responsibility of the President 

for the formulation and conduct of American foreign policy is clear 

and unalterable.’’ Soon thereafter, in the anger and heat of the 

Vietnam War, Congress began a rampage of lawbreaking. 

Finally, Mr. Chairman, I show how this congressional 

lawbreaking has done extraordinary harm to our national security 

and the cause of world peace. I explain how an unconstitutional 

1973 appropriations rider snatched defeat from the jaws of victory 

in Indochina and led directly to the slaughter of millions of lives 

we had solemnly pledged to defend in Cambodia and South Vietnam. I show how the horribly partisan congressional subversion of 

our peacekeeping deployment in Beirut a decade later led directly 

to the terrorist attack that killed 241 Marines. I document the role 

of that incident in persuading Osama bin Laden to attack Americans on 9/11 because he concluded we could not accept casualties. 

And I also show how unconstitutional constraints on our Intelligence Community, including the Foreign Intelligence Surveillance 

Act, prevented it from protecting us from those attacks. 

Mr. Chairman, my time is up. I look forward to taking your questions at the appropriate time. 

[The prepared statement of Mr. Turner appears as a submission 

for the record.] 

Chairman FEINGOLD. I thank you, Professor Turner. 

14 

Our next witness is a dear friend of mine, but he also is better 

known, of course, as Harold Koh, the Dean and Professor of International Law at Yale Law School, where he has taught since 1985. 

Dean Koh attended Harvard College and Harvard Law School, and 

as I indicated, we had the pleasure of studying together at Oxford. 

From 1998 to 2001, Dean Koh served as Assistant Secretary of 

State for Democracy, Human Rights, and Labor. Before beginning 

work at Yale Law School, he practiced law at the Washington, 

D.C., law firm of Covington & Burling and worked in the Office of 

Legal Counsel at the Department of Justice. 

Dean Koh, thank you for being here, and you may proceed. 

STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C. 

& BERNICE LATROBE SMITH PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT 

Mr. KOH. Thank you, Mr. Chairman. As you mentioned, in my 

career I have had the privilege of serving our Government in both 

Republican and Democratic administrations and at the Justice Department and the State Department. 

Seven years ago, our country was properly viewed with universal 

sympathy as the victim of a brutal attack. But, tragically, the current administration chose to respond with a series of unnecessary 

and self-inflicted wounds, which you catalogued in your opening 

statement, which have gravely diminished our standing and damaged our reputation for respect for the rule of law. These violations 

have been extensively documented, so in my written testimony, I 

have tried to answer the two questions you raised: first, to look at 

the vision of constitutional power that the administration has invoked to justify its policies; and, second, to identify four steps that 

the next President and Congress can take to reverse the damage 

and restore the vision of checks and balances. 

First, the constitutional vision. Before September 11th, as a matter of constitutional law, our national security policy was conducted 

within four premises. 

First, that under the Constitution, executive power operates 

within a constitutional framework of checks and balances, resting 

on shared institutional powers, a vision set forth in Justice Jackson’s opinion in the steel seizure case. The simple idea is that 

checks and balances do not stop at the water’s edge. 

A second idea that within that realm of government activity, 

there are no persons, practices, zones, or courts outside the law. 

Third, that the President may not invoke legislative authority to 

impinge on civil liberties without clear legislative statement. 

And, fourth, that except for the right to vote and serve on juries, 

the distinctions between citizens and aliens, especially with regard 

to social and economic rights, are modest. 

Well, only 7 years later, that constitutional world has been 

turned upside down, each of these four aspects. The current administration has urged not a system of checks and balances, but a theory of unfettered power based on Article II and the Supreme 

Court’s decision in U.S. v. Curtiss-Wright Export Corporation. They 

have argued for a system of law-free zones—Guantanamo; law-free 

practices—extraordinary rendition; law-free persons—enemy comVerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC
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batants; and law-free courts—military commissions, all of whom 

they say are exempt from judicial review. 

Third, the executive branch has justified large-scale infringements on civil liberties based on vague legislative enactments, particularly the Authorization of the Use of Military Force Resolution 

of 2001. And as we all know, the conduct of the war on terror has 

led to sharp and growing distinctions between citizens and aliens, 

especially those of Muslim, Middle Eastern, and South Asian extraction with regard to their political rights. 

And in recent years, we have really heard an even more disturbing claim: that, once taken, executive action is a kind of law 

unto itself. With respect to torture, NSA surveillance, state secrets. 

signing statements, and preemptive pardons, the administration 

has tried to use constitutional claims of executive authority to 

change the rules. 

One example you remember well, Senator, came in January 

2005. Before the NSA program came to light, you asked Attorney 

General-designate Gonzales, ‘‘Could the President violate existing 

criminal laws and spy on U.S. citizens without a warrant?’’ He said 

it was a ‘‘hypothetical situation’’ and ‘‘not the policy of the President to authorize actions in contravention of criminal statutes.’’ 

But, late, when it turned out that this was going on, and you asked 

him again, he said he had not misled Congress because once the 

President authorized it, it had become legal under the President’s 

constitutional powers and could not contravene any criminal statute. 

The same line of reasoning was applied in the infamous torture 

opinion where the claim was that if Congress tries to regulate interrogations, it violates the Constitution’s vesting of the Commander in Chief power; and further argued that those who torture 

at the direction of the Commander in Chief cannot be prosecuted. 

What this brings to mind is President Nixon’s statement: ‘‘If the 

President does it, it means it is not illegal.’’ But if that is true, then 

the President’s word alone is law, and the system of checks and 

balances in the Constitution does not exist. 

This has led to a series of problems. It has clouded our human 

rights reputation. It has blunted our ability to criticize others. It 

has made us less safe and less free. And it has had huge costs for 

our foreign policy. And so in the second part of my testimony, I set 

forth four concrete steps to put our house back in order: closing 

Guantanamo through an interagency process; a series of executive 

orders to roll back some of these provisions; the introduction of national security legislation which could bring about repeals of some 

of the worst provisions of law; and, finally, a number of steps to 

reaffirm our respect for international national and institutions. 

In closing, let me say, Mr. Chairman, that the vision of unchecked executive authority offered by the administration and some 

of the witnesses offends the vision of shared national security 

power that is central to what Justice Jackson called in Youngstown 

the ‘‘equilibrium of our constitutional system.’’ Our Government is 

defined by the rule of law. The rule of law defines who we are as 

a Nation and a people. If this country does not stand for the rule 

of law, we really do not stand for anything. 

16 

And so I think we have to remember that in the grand scheme 

of things, as difficult as the last 7 years have been, they loom far 

less important than the next 8 years, because the next 8 years will 

determine will the pendulum of U.S. policy swing back from where 

it has been pushed or will it stay stuck in what you could call a 

‘‘new normal’’ position. 

To regain our standing, I think the next President and Congress 

must unambiguously reassert our historic commitment to the rule 

of law as a major source of our moral authority. 

Thank you. 

[The prepared statement of Mr. Koh appears as a submission for 

the record.] 

Chairman FEINGOLD. Thank you so much, Dean Koh. 

Senator Brownback, I think we will begin with 7-minute rounds 

for this panel. 

Senator BROWNBACK. That is fine. 

Chairman FEINGOLD. Thank you. Ohio State University law professor Peter Shane submitted written testimony in which he argues 

that we need to reinstate a rule-of-law culture in Government. As 

he explains, ‘‘The written documents of law have to be buttressed 

by a set of norms, conventional expectations, and routine behaviors 

that lead officials to behave as if they are accountable to the public 

interest and to legitimate sources of legal and political authority at 

all times, even when the written rules are ambiguous and even 

when they probably could get away with merely self-serving behavior.’’ 

I think this cuts to the core of the problem that the next President will face. After 8 years of disregard for the rule of law at the 

highest level of Government, how can we instill new norms and expectations that permeate throughout the Federal Government? I 

would ask Dean Koh and Mr. Schwarz if they could address this. 

Dean Koh? 

Mr. KOH. Yes, Senator. The answer, I think, is in four parts. 

First, the message must come from the top. The President takes 

an oath to preserve, protect, and defend the Constitution of the 

United States of America. And so it takes a President, an Attorney 

General, a White House counsel, a head of an Office of Legal Counsel to send this message of commitment to the rule of law. And it 

can be done. After Watergate, President Ford, Attorney General 

Levi, Phil Buchen all worked together with Congress to restate a 

culture in the White House and in the executive branch of rule of 

law. 

Second, the process has to be made transparent and inclusive. 

There should be no secret legal opinions. We need full vetting by 

good lawyers. In the Washington Post, they have had coverage of 

Bart Gellman’s book ‘‘Angler.’’ One of the issues raised was how a 

secret legal opinion on FISA was being challenged as making no 

sense, and former Deputy Attorney General Comey said, ‘‘No good 

lawyer would ever rely on that opinion.’’ But that opinion is still 

not available for anyone to look at it, even though people were relying on it to violate the law. 

Third, the President has to act quickly to take steps that will reverse the trend and not adopt half measures. And I have outlined 

in my testimony a package of suggestions: closing Guantanamo, exVerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC
17 

ecutive orders, introducing legislation, taking a number of steps 

with regard to international law. 

And, finally, I think the President should create new structures. 

One structure that we propose is a national security law Committee which could be chaired by the Attorney General and guarantee that the President get good legal advice. It might make sense 

for Congress to consider creating a congressional legal adviser on 

the other side who could examine the kinds of legal justifications 

that are being brought forward. 

The key idea here is that the President has to report what he 

does to people who do not work for him, because they are ones who 

will be inclined to tell him something he does not want to hear, and 

to report to people whose job it is to look not to what he wants but 

what do the Constitution and laws direct. 

Chairman FEINGOLD. Thank you, Dean Koh. 

Mr. Schwarz? 

Mr. SCHWARZ. I would agree with what the dean said. I would 

supplement slightly. 

The leadership side, I think it has to come from the Congress as 

well as the President. And in both cases, understanding by the people of where we have gone wrong and how it has hurt us contributes to people wishing to be leaders. And the public cannot do their 

job if secrecy smothers what has happened. So those things are all 

connected—the people, the leaders, secrecy, and the way in which 

leaders lead and the public demands that they lead. 

Transparency is obviously necessary. I think all the witnesses 

today would agree we should have more transparency. John Podesta in his testimony later is very good on what we should do about 

too much secrecy. My idea of a commission I think is helpful in 

that. 

Then the public needs to understand some of the key arguments, 

which are not being made forcefully enough to the general public. 

One is that when we abandon the rule of law, when we go against 

our own values, we are actually making this country less safe, because Muslim recruiters get talking points against us and our allies are less likely to join with us. 

The second thing the public needs to understand, which will then 

help produce the leadership, is that the—we have separation of 

powers of a very good reason. It makes Government work better. 

And if you do not have a debate surrounding important issues, you 

are far less likely to get the decision right and you are far more 

likely to get the decision wrong. 

Chairman FEINGOLD. Thank you, Mr. Schwarz. 

I will go to Congressman Edwards, and I will have a follow-up 

for Mr. Schwarz on this one as well. 

Congressman, I think your point that Congress has a significant 

role to play in preventing the executive branch from overreaching 

is obviously very important. No one was more disappointed and 

vocal about the congressional response to the revelations about 

warrantless wiretapping than I was. I think we abdicated our responsibility to the country and to the Constitution by not taking 

much more significant action once we learned what was going on. 

In this case, we had the President’s party controlling the Congress at the time of the revelations, and that could be the situation 

18 

in the future, of course. So what would be your advice for how the 

minority party should handle such a situation in the future? And 

how can we make it more likely that a majority party in Congress 

that is also of the President’s party will be willing to part with him 

or her on these important issues? 

Mr. EDWARDS. Well, I want to go back to something Mr. Schwarz 

just said. You have to frame the issues in a way that gets the public involved in understanding why we have a separation of powers. 

When the party, my party, you know, as the majority with a Republican President, acquiesced to what the President was asking 

even when it went beyond constitutional authority, your party responded mostly with policy debate—with policy debate about where 

people should be, whether it should be at Guantanamo. You know, 

that is nothing—never was the question of not policy but process 

raised about the fact that we preserve our liberties by virtue of 

having the people’s branch retain its constitutional authority. 

Members of the majority party were never challenged on that. It 

was all a matter of policy, and you cannot win that way. And the 

Congress has authorities it does not use. The Congress has the 

power to withhold funding, the power to hold up appointments. If 

you really want to fight to preserve not your power, not your authority, but your responsibilities and obligations under the Constitution, then you have to use all the tools that are found in the 

first section of the Constitution. And I have not seen it happen. I 

mean, I used the example a moment ago about the executive 

branch telling the Congress—telling the Congress of the United 

States—you know, whether or not they would enforce a contempt 

citation, telling the Congress of the United States whether we will 

let you as a United States Senator have access to information that 

hundreds of executive branch staff people have. And the Congress 

goes—you have to engage on that front and say, ‘‘We are not going 

to put up with it. And if you insist, Mr. President, you are going 

to pay a price. You are going to pay a price in appointments. You 

are going to pay a price in withholding of funding,’’ and so forth. 

Chairman FEINGOLD. Of course, I could not agree with you more. 

I will turn to Senator Brownback in a second, but I just wanted 

to see if Mr. Schwarz had any thoughts on this point in light of 

your service on the Church Committee. 

Mr. SCHWARZ. Well, I think first that it is important that Congress overcome partisanship. I said these issues should not divide 

Americans. History tells us we have in the past, FDR and Lincoln 

in their Cabinets brought in members of the opposite party or political opponents. David Boren’s terrific new book, a Senator from 

Oklahoma, talks about how when he was a rookie Senator, he had 

made a vote which Howard Baker, the Republican leader of the 

Senate, knew was going to hurt him in Oklahoma. And Howard 

Baker went up to him and said, ‘‘You know, you ought to change 

that vote. You have not really understood it, and it is going to hurt 

you.’’ That is a culture which we need to restore. 

Now, on the Church Committee—do you want me to make a comparison between— 

Chairman FEINGOLD. Just very briefly, because I really should 

call on Senator Brownback. 

19 

Mr. SCHWARZ. OK. The key issues that we found were troublesome—ambiguous laws, implicit orders to violate the law, excessive 

secrecy and lack of oversight—are all problems today. But I do 

think that the willingness and assertion of this administration that 

the President can violate the law—and when you look carefully at 

the Constitution, they will violate the Constitution—is something 

which is totally new and which this Committee and others ought 

to put to rest, and the new President, whoever it is, ought to renounce upon taking office. 

Chairman FEINGOLD. Thanks so much. 

Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman, and I want to 

thank the panelists for their thoughts in considering these matters. 

You have obviously put a lot of consideration into it, and I appreciate your doing it. 

Mr. Cooper, I was struck, you said that 11 of 12 circuit court 

judges have ruled in favor of the administration. I want to make 

sure I am clear on what you were saying of that on these cases. 

Is that correct? 

Mr. COOPER. That is right, Senator Brownback. In the war on 

terror cases that the Supreme Court has decided, and it has decided them uniformly against the administration, but by very close 

votes, either three or usually four Justices in dissent. In every one 

of those cases, the administration won the case in the court of appeals and by lopsided votes. There was only one court of appeals 

judge who did not agree with the validity of the administration’s 

legal analysis and views in those cases. 

Now, the court of appeals are not free, as the Supreme Court is, 

to break with Supreme Court precedent. They are bound to conscientiously and faithfully apply Supreme Court precedent. The 

point I was making Senator Brownback is that it is simply not reasonable to charge that the administration in its analysis and its 

conclusions that led to the decisions that were at issue in those 

cases, those four war on terror cases, was indifferent to, let alone 

contemptuous of, the rule of law. It carefully applied Supreme 

Court precedent, and at least the court of appeals uniformly 

thought they were actually right. 

But even if we accept for the moment that the majority in each 

one of those cases in the United States Supreme Court got it right 

and the dissent was wrong, and that, therefore, the administration 

was wrong on the legal call, it cannot reasonably or responsible be 

said that the administration was indifferent to the rule of law. 

Senator BROWNBACK. I did not know that number. 

Dean Koh, good to see you again here. I am certain you are not 

suggesting moving the Guantanamo Bay detainees to Fort Leavenworth disciplinary barracks—is that correct?—in your testimony. 

Mr. KOH. In my testimony I said that there were four categories 

of detainees. As I understand it, there is a very tiny number of 

high-value detainees. They have a right of habeas corpus now 

under the Supreme Court’s decision, and so they could be moved 

to supermax facilities in the United States. Where they move them 

obviously is a decision to be made by the executive branch. 

One thing I can say about— 

20 

Senator BROWNBACK. But you agree they cannot be mixed with 

the current population of prisoners. Is that correct? 

Mr. KOH. I think we have in the United States many dangerous 

detainees who are held separately in special facilities, and we have 

had that for a long time. 

I would say to say about Mr. Cooper’s point, however, that— 

Senator BROWNBACK. Could I finish this point? Because I have 

got limited time, and you can come back on the other one. I hope 

you would look and review particularly a situation like the Leavenworth disciplinary barracks, you are advocating the closing of 

Guantanamo Bay, to look at the problems of doing it at least in 

that facility. Now, maybe there is a place in Wisconsin that fits or 

works, but the disciplinary barracks in Leavenworth does not. 

As one advocates that position—and I respect you for doing 

that—there is a very practical side to then how you handle that, 

and this is one that—I have been there multiple times. I do not 

know if you have. I have not been incarcerated there, but I have 

been there many times. And I just hope you will look it over. 

Mr. KOH. Senator, Timothy McVeigh was held in a facility in 

Colorado and was tried there, and he was the adjudicated killer of 

thousands of people in the terrorist attack on U.S. soil. There is no 

suggestion that he was not held safely or without due process of 

law. 

Senator BROWNBACK. Professor Turner, I want to ask you, if I 

could, it has been suggested that the Congress would withhold 

funding or make it conditional if the administration does things 

along this line that the Members of Congress would look at as 

questionable. I take it you would have great challenge to that on 

legal grounds, on constitutional grounds. Is that correct? 

Mr. TURNER. Senator, the question is: Could Congress do it directly? If Congress attempts to do something by conditional appropriation, that it is not permitted under the Constitution to do directly—for example, tries to usurp, if Congress were to pass an appropriation bill and say no money can be used for combat operations in Cambodia, for example, which they, in fact, did and killed 

over 20 percent of the population of Cambodia as a result—that I 

believe would be unconstitutional. 

The best example I can give you: What if Congress were to pass 

a rider saying no funds shall be available for the judiciary if the 

Supreme Court declares any Act of Congress to be unconstitutional—thus trying to usurp judicial review? 

Now, there is a much stronger case for that under the Constitution than there is for usurping the Commander in Chief power, because judicial review is an implied power that John Marshall gave 

us in Marbury. I think it was intended by the Founding Fathers, 

I like it, but you cannot look at the constitutional text and say, 

‘‘Here it says the Supreme Court can overturn an Act of Congress.’’ 

But that has been our law. If Congress were to pass a law saying 

no money shall be available for the judiciary unless the courts overturn Roe v. Wade—or if they overturn Roe v. Wade—my point is 

that would be an unconstitutional usurpation. And if we allowed 

this type of conditional appropriation, we would totally destroy the 

doctrine of separation of powers. 

21 

Senator BROWNBACK. Congressman Edwards, I have appreciated 

your career and all you have done, and I am looking forward to the 

football game. Hope we do well in it. We will see, with how strong 

Oklahoma is. 

Once in a while the Supreme Court gets it wrong, too: the Dred 

Scott decision, Korematsu, Plessy v. Ferguson. Are there things that 

we should look at, or is there anything that controls the Supreme 

Court in cases like that, other than, I guess, just time and wearing 

it out, that the society says, ‘‘No, this is wrong’’? When you look 

at it, we can look back on those decisions and say, ‘‘That was a horrible decision by the Supreme Court.’’ You know, you have looked 

at the Congress toward the President, and your comments are 

there, and I respect and I understand those and I think those are 

good. Is there any limitation on the Court? 

Mr. EDWARDS. Well, at the lower courts, you always have the judicial review. Congress has the authority to limit jurisdiction, as 

you know. But, you know, generally, it is a matter of over time we 

get it right. It is not just the Supreme Court. I mean, we had the 

Alien and Sedition Acts. We had the imprisonment of the Japanese-Americans. 

We have this tendency sometimes to get it wrong, but I am not 

advocating, you know, that the Congress step in and, you know, try 

to second guess the courts. There are cases where policy can be 

made by the legislative branch. But, you know, I am not a scholar 

of the Supreme Court, and I do not pretend to be. But you are 

right, I mean, I agree with you there have been a lot of very bad 

decisions over the years, maybe starting with Marbury v. Madison. 

Senator BROWNBACK. I will leave that alone. 

[Laughter.] 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Chairman FEINGOLD. I want to thank Senator Cardin for attending the entire first panel before he had to leave, and now I am very 

delighted to turn to Senator Whitehouse for his round of questions. 

Senator WHITEHOUSE. Thank you, Chairman. First of all, let me 

tell you how much I appreciate that you are holding this hearing. 

You have two very large and very distinguished panels, and it is 

a vital question that you inquire into. If only we had more time, 

because the extent to which the rule of law has been challenged by 

this administration, it is so broad that we could probably spend 2 

hours on 10 different subsets of it. 

I would like to ask about two issues. I am a bit of a student of 

separation of powers, and I am firmly convinced of its importance 

to the preservation of liberty in our country. But within the executive branch, we have over time through the administrative apparatus we have set up, both independent commissions and executive 

agencies, a bit carved up or cut into or perhaps the best way to describe it would be ‘‘required structure’’ of executive decisions. The 

Administrative Procedures Act has requirements before an agency 

can act. A responsible office holder who takes his oath of office seriously in the light of the duties of the agency he serves and the office that he occupies or she serves or she occupies has certain constraints around them. They run in opposition to the unified executive theory in which everybody works for the President, everybody 

is supposed to do his bidding. As we read in a very impressive pair 

22 

of articles in the Washington Post recently, it is the President’s 

view that he decides what the law is. And there is impatience if 

not outright hostility to a control over the process by which decisionmaking takes place in the executive branch. 

I would be interested in your thoughts on to what extent we have 

created and should preserve a structure within the executive 

branch that controls executive decisionmaking. Some of it is quite 

formal, like the Administrative Procedures Act and the statutory 

missions of the different agencies. Some of it is a little bit more 

practical, and in some cases not even derived from Congress. One 

of my favorite examples is the rule that the Department of Justice 

developed over time to prevent White House officials from meddling in Department of Justice criminal and prosecution decisions, 

which was a very important firewall, was monitored by this Committee, and was systematically disassembled by the Bush administration until they satisfied themselves that, for instance, Vice 

President Cheney’s legal counsel or Karl Rove now had access to 

prosecutors in the Department of Justice to talk with them about 

ongoing cases without what I would consider adult supervision. 

So there is a broad array of these things, and if you have anything to say about that sort of—for want of a better word, executive 

administrative separation of powers, I would be interested in hearing that, because we overlook that, I think. 

Mr. SCHWARZ. Maybe I could take a try on that. Without having 

those auxiliary devices within the executive branch, given the 

hugeness of the Federal Government, Congress cannot possibly do 

that which it should do. I mean, we all think Congress could do 

more. But unless you have within the executive branch internal 

checks and balances, Congress cannot do the job given the size of 

the Federal Government. So there are things like Inspector Generals that I think are lawful and appropriate and often work well. 

And then the other observation I would make from recent events 

is that one of the things that went wrong with the current administration was they fenced out from decisionmaking on matters of 

such importance as the Geneva Convention and torture. They 

fenced out people within the executive branch who would bring real 

expertise to that question—the State Department, military lawyers, and military generals. All of those people— 

Senator WHITEHOUSE. The NSA lawyers, for instance, were not 

allowed to read the OLC opinion on the program that they themselves were administering. 

Mr. SCHWARZ. Exactly. And so that is an observation of how dangerous it is when not only do you not have the check of the Congress working the way the Constitution intended, but within the 

administration you have a tiny coterie of people who were deciding 

things that are going to affect our reputation in the whole world 

adversely and not consulting the relevant people within their own 

administration. 

Senator WHITEHOUSE. So you are comfortable that, in addition 

the constitutional separation of powers among the branches, we 

should also in Congress attend to what you, I think, better than 

I called ‘‘internal checks and balances’’ within the executive branch 

of Government. 

Mr. SCHWARZ. Yes. 

23 

Senator WHITEHOUSE. Professor Koh? I think I saw a hand go 

up. 

Mr. KOH. Yes. The parallel to the Administrative Procedures Act 

on the national security side is the National Security Act of 1947 

which creates the current such, and much of it has been amended 

by laws that were passed after the Watergate/Vietnam era, which 

were designed to create this both system of internal checks and 

balances and consultation. 

The breakdown here came from two different points. One is a 

concentration of decisionmaking within the executive branch, 

which, as Mr. Schwarz described, fenced out expertise, ruled out 

moderate voices, prevented legal opinions that were in secret from 

being examined, and disrupted the chain of command. And so you 

had this extraordinary situation where the counsel to the Vice 

President was giving direction to the Deputy Assistant Attorney 

General for the Office of Legal Counsel, with apparently not going 

through the Attorney General? And that is an extraordinary disruption of process and ought to be addressed. 

And I think a second point is that lawyers need to be included 

at the key points, brought in before, ex ante, to help make legal 

decisions, not after the fact to give legal justifications. 

Senator WHITEHOUSE. Mr. Chairman, my time has expired. I appreciate your courtesy. 

Chairman FEINGOLD. Thank you, Senator Whitehouse. I will 

begin a second round. 

Dean Koh, again, thank you for your excellent testimony. I particularly appreciate the specificity in your written testimony about 

what exactly the next President should do right off the bat. You list 

seven executive orders a President should issue to ‘‘send the unequivocal message that the United States does not accept double 

standards in human rights.’’ This is so important not only for what 

it says about who we are, but also for our relationships with our 

allies and the message we send to and about our adversaries. I 

hope that the next President and his advisers will read these suggestions and pay very close attention to them. 

Now, you have served in the State Department, and you say a 

bit about the importance of the rule of law and dealings with other 

countries, and particularly about its role in the next President’s efforts to restore relationships with allies and build trust and cooperation that we are going to need to take on issues all the way 

from climate change or combating terrorism or extremism. 

Mr. KOH. Yes, Senator. The last 7 years have been devastating 

in this regard. Perhaps the worst example I could give is a conversation I had with a dissident in Cuba who is against the Castro 

regime. He described the situation he was under where he had 

been detained on numerous occasions without charge. His home 

was being wiretapped. I said, ‘‘How much unrest is there about this 

domestically?’’ And he said, ‘‘If you raise this issue, all anyone can 

say is ‘Guantanamo.’’’ It is a complete answer to the idea that we 

have a right to point fingers. 

The same goes with regard to the Chinese who regularly in our 

diplomatic negotiations point to human rights issues at home as a 

way of saying that we should not interfere with internal affairs. 

24 

On September 12, 2001, President Putin of Russia said, ‘‘You 

have your war on terror. So do we, which gives me carte blanche 

to act against the Chechens.’’ 

With regard to our close allies in the European Union, their concerns that individuals that they might turn over to us might be 

subjected to harsh treatment or other kinds of violations of human 

rights and the rule of law have dramatically interfered with our cooperation in these intergovernmental efforts. 

So I think that the costs have been huge, and I think it goes to 

the basic point that rule of law is very central to our stability and 

our reliability, and that what people think is that terrorists are a 

dangerous source of instability, but responding to terrorists in a 

way that violates the rule of law creates even more instability, and 

that is what we have been experiencing. 

Chairman FEINGOLD. Thank you. 

Congressman Edwards, I was impressed by your statement that, 

‘‘Securing our position as a Nation governed by the rule of law is 

the most important issue facing the next President and the Congress.’’ Can you say a little bit more about why you think that is 

the case? How does this issue in your experience interact with all 

the complicated and important domestic and international issues 

that we must tackle in the years ahead? 

Mr. EDWARDS. Senator, when the Founders created this country, 

they turned everything upside down, because in the Old World you 

had rulers and subjects, and the rulers decided and the subjects 

obeyed. And our Founders said, ‘‘We are not going to be subjects. 

We are going to be citizens, and citizens tell their Government 

what to do instead of the other way around.’’ And the way we do 

that is through the Congress, through the people selecting their 

representatives. 

Now, the Executive has said, this Executive has said that people 

do have a voice. They speak every 4 years. Well, that is not the 

way our system works. The people speak every day through you. 

They speak through their Representatives, their Senators. And the 

issues that are on the table today, whether it is energy independence, repairing our infrastructure, access to affordable health care, 

those issues and other issues come and go. They rise in importance. 

You know, they ebb. But what matters and makes us different is 

the way in which we keep the people in charge of the decisionmaking process. If we lose that, all of the other issues fade in importance. 

So that is why I argue that the number one issue that has to 

happen in the next couple of years, no matter who is elected President, is for the Congress to reassert its own role as an equal 

branch of Government. That will allow us to get past a lot of the 

problems we have had in the last few years. 

Chairman FEINGOLD. Louis Fisher of the Library of Congress is 

one of the country’s foremost experts on executive power. In his 

written testimony, he argues that the basis for the Bush administration’s theory of inherent executive power—a theory that 

underlies so many of its controversial programs—is fundamentally 

misguided and that, in fact, there is no legal basis for any inherent 

power in the President. 

Dean Koh, can you explain why that is the case? 

25 

Mr. KOH. Well, three points. This is the Subcommittee on the 

Constitution. Article II created a President and not a king. The difference is that a President is subject to checks and balances from 

Article I and Article III. And so, therefore, the scope of his executive power is limited by what he cannot do without the cooperation 

of the other branches. 

Second, there are some things that the executive has no inherent 

power to do. The executive has no inherent power to order torture. 

He is the Commander in Chief, not the torturer in chief. He has 

no power to order genocide or other kinds of acts. And so the idea 

that somehow these are justified by inherent powers is giving him 

power that no everything has. 

And the third point, which I think is a functional point, why is 

this good policy, is it is good law. A President who relies on inherent power and does not get either political support from Congress 

or legal approval from the courts ends up going it alone. And as 

a result of that, they end up having to rely on popularity polls. And 

if the war in which they engage or the acts which they pursue become unpopular, then they have no political or legal support for 

what they are doing. 

So the system of checks and balances was designed to ensure 

that a Government which runs on the consent of the governed as 

opposed to on the power of the kind is actually notified to the people and that the President talks to people who do not work for him. 

Chairman FEINGOLD. Thank you. 

Mr. Schwarz, in your written testimony, you expressed your support for the State Secrets Protection Act, which establishes procedures for judges to review executive claims of the state secrets 

privilege. You also noted that this bill and the companion bill in 

the house could be strengthened. 

Could you just say a few words about how you think these could 

be strengthened to prevent— 

Mr. SCHWARZ. I would say two things that I think could strengthen it. 

The first is the current draft directs or suggests—I think directs—judges to give deference to the executive or substantial 

weight to the position of the executive. I do not think that is appropriate. The problem here with state secrets is that the courts have 

flopped over, particularly in times of crisis. The Supreme Court did 

differently because they looked at what was going on and said 7 

years is too much. Indefinite period is too much. That is where we 

are going to put a stop to what in earlier wars they might not have 

stopped. 

But the district courts and the courts of appeals have been far 

too deferential to the executive branch. I think that is a problem 

with the draft. And then the draft, I think, also does not give sufficient attention to the importance of the district judge finding a way 

to allow the lawsuit to continue without breaching some narrow secret that may be involved. CIPA, the Classified Information Procedures Act, and other acts show that courts can work out practical 

solutions. I think more attention needs to be given to that. 

And, finally, I think it is very important that the law not leave 

the position open to just plain dismiss a case on the basis of an alleged state secret, which my experience suggests is going to be exVerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC
26 

aggerated, but sometimes will be real. But they should find a way 

to keep their case alive without compromising secrecy, and there 

are ways to do it. 

Those are the thoughts I had. 

Chairman FEINGOLD. Thank you so much. 

Senator Brownback? 

Senator BROWNBACK. No further questions. 

Chairman FEINGOLD. Senator Whitehouse? 

Senator WHITEHOUSE. The other question that I would love to get 

to with such an expert panel has to do with secrecy. On this Committee, we are from time to time presented with classified information. On the Intelligence Committee, on which Senator Feingold 

and I both serve, we are constantly bombarded with classified information, and it has a very crippling effect on our oversight of 

these agencies. And, in particular, there is a built-in bias toward 

the executive branch that is capable of being used perniciously, and 

I believe in this administration has been used perniciously. And 

that is that the senior executives who have access to classified information are often what are called ‘‘declassifiers,’’ which means 

they can stand up and tell you something that is secret in public, 

and they have not violated a confidence, they have not divulged 

classified information. They have declassified. 

And so you come into a situation in which there is an array of 

facts, as there are in many circumstances, and the executive 

branch will pick out and declassify a very selective group of facts 

and then go to their talking points and pound those publicly. And 

we in Congress are not capable—we are literally legally incapable 

of responding with the other facts that we know to make the 

counterargument, to explain to the public why the executive branch 

is wrong on this, because we are not declassifiers. We are trapped 

in the classification snare that the executive branch controls by 

classifying everything in sight and then declassifying selectively. 

And I have seen this just in my brief and year and—whatever it 

is-–9 months in the Senate play out over and over and over again. 

It strikes me that the only way to solve this is to create a counterbalance, and the counterbalance that I would recommend is that 

the Chairman of the Senate Judiciary Committee and the Chairman of the Senate Select Committee on Intelligence also be made 

declassifiers. That, I think, will not only have the effect of allowing 

the Senate committees to make their case when they need to, it 

will also discourage the abuse of the selective declassification technique by the propaganda arm of the executive branch, because they 

will know they can be answered, so there is not the return on going 

there, and so you are spared the initial misleading salvo, if you 

will. 

I am not going to have time to hear from all of you on this, but 

I would like to ask that a question for the record, how you would 

respond to that, what concerns you might have, and where we go 

from here. I have maybe a little bit over 3 minutes left, so we have 

time for a little bit of a response. But I see Professor Koh’s and 

Professor Turner’s and Representative Edwards’s hands up. Can 

we try to keep it within a quick minute each given the timeframe? 

I do not want to trespass on the Chairman’s time. 

27 

Mr. KOH. Two points. One solution is to have documents be automatically declassified unless someone insists that they remain classified. I was in the executive branch, and many documents just 

were never classified because there is no incentive to declassify 

them. 

The second point, which I think is critical for the function of this 

hearing, is declassifying legal opinions, which are often based on 

facts which have now become public. And the fact of the matter is 

that these legal opinions ought to be examined, and sometimes the 

fact that the first paragraph mentions— 

Senator WHITEHOUSE. I will jump in and let you know that I 

have examined them, and I could not agree with you more. And I 

am convinced that if the folks at the Office of Legal Counsel understood that those opinions would become public and be subjected to 

the critical scorn that they deserve, in my opinion, they would 

never have written them in the first place, and we would not have 

gone down those shameful roads. 

Mr. KOH. I agree. 

Mr. TURNER. Just briefly, the Founding Fathers gave a lot of consideration to the issue of secrecy. Indeed, Madison said we would 

have had no Constitution had it not been for the strict rule of secrecy in the proceedings of the Convention. Ben Franklin, as Chair 

of the Committee of Secret Correspondence in 1776, concluded 

unanimously with the other members they could not tell the Continental Congress about a major French covert operation because 

‘‘we find by fatal experience that Congress consists of too many 

members to keep secrets.’’ 

Senator WHITEHOUSE. Professor Turner, don’t get me wrong. I 

am not against secrecy. I am against the abuse of secrecy. 

Mr. TURNER. Oh, the question— 

Senator WHITEHOUSE. And wouldn’t everybody love to be in a debate in which they got to make their argument and they could tell 

the other side, ‘‘I am sorry. You do not get to argue? ’’ 

Mr. TURNER. Yes, sir. I’m sorry, Senator. The issue arose first 

during the Jay Treaty debate. I went back and read that entire debate in the Annals of Congress. It is very lengthy. Only one member said Congress had an absolute right to executive information. 

Several members said, were this an impeachment inquiry, Congress would have the right. James Madison, who knew the Constitution pretty well, said each branch was to be the judge of what 

information in its possession it would share with the other 

branches. And he said, ‘‘If Washington’s refusal was based on the 

claim that these were sensitive secrets, I should not object.’’ But 

his refusal was based on the claim the House had no role in treaty 

making, which Madison disputed. 

The Supreme Court, of course, in the Curtiss-Wright case, looked 

at that debate and said the Congress ultimately got it right, and 

Washington was right in refusing to give information to Congress. 

As recently as 1957, Ed Corwin in his classic study— 

Senator WHITEHOUSE. Well, this is—again, you are not on the 

topic. This is in situations in which they have given information to 

Congress. We know it. But we just cannot argue back because we 

are under restriction of classification. 

Mr. TURNER. But if they have a right— 

28 

Senator WHITEHOUSE. You are talking across my point and not 

at it. 

Mr. TURNER. Sorry, Senator. If they have a right to say you cannot have the information, surely they have the right to say this is 

information we are very concerned about making public, but we 

will share it with you in return for a promise of— 

Senator WHITEHOUSE. How would you remedy the situation in 

which, to secure propaganda advantage, one branch of Government 

discloses half of the information that supports its case and the 

other one is forbidden to by classification rules and, therefore, the 

public who we are here to serve never get actually a fair explanation of what the issue is? 

Mr. TURNER. I think the problem there is trying to find a way 

to tell Congress and the American people everything without our 

enemies finding out. Let me just— 

Senator WHITEHOUSE. Well, I understand that. Let me go on to 

Representative Edwards and then I saw Mr. Cooper’s hand up. 

Mr. EDWARDS. Well, I thought your answer was a pretty good 

one. I mean, the President has the sole treaty-making authority. 

He has no treaty-approving authority, to react to that. 

You know, you used the words yourself. You said the problem is 

that you are legally incapable of doing something. ‘‘Legally’’ is the 

law. Who writes the law? You do. Change it. 

Chairman FEINGOLD. One more quick comment from each of you, 

and then I do need to move to the next panel. 

Mr. COOPER. If I could just make this comment: I have no brief 

for the abuse of classified information or state secrets by any 

stretch, and it does sound to me like you have described an abuse 

of the classification authority. But I do have some experience in 

dealing with classified information, distant experience, but that 

means that someone has made the sober judgment that the release 

of this information publicly would damage our vital national security interests. 

And so I think the Committee and the Congress would need to 

very, very carefully consider the potential implications and ramifications of adding to the individuals who would have declassification authority. But you certainly have identified a problem. It 

sounds me like some solution ought to be devised. 

Chairman FEINGOLD. Did you have something, Mr. Schwarz? 

Mr. SCHWARZ. Well, I think, Senator, you put your finger on one 

of the most important problems, which is excessive secrecy. I believe the next Congress should, perhaps in cooperation with the 

next President, have a real serious study of the abuse of secrecy. 

There is far too much. Expert panels would probably be a good 

idea. It is something that reasonable people can come together on 

and stop arguing. There is far too much secrecy. 

Chairman FEINGOLD. Thank you, Senator Whitehouse, and I 

thank the panel for an excellent job. I ask you to retire and ask 

the second panel to come forward. Thank you all. 

Now we will turn to the second panel. Will the witnesses please 

stand and raise your right hand to be sworn. Do you swear or affirm that the testimony you are about to give before the Committee 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

29 

Mr. DELLINGER. I do. 

Ms. ROTUNDA. I do. 

Ms. MASSIMINO. I do. 

Mr. PHILBIN. I do. 

Ms. SPAULDING. I do. 

Mr. PODESTA. I do. 

Chairman FEINGOLD. Thank you very much. You may be seated. 

As with the first panel, I ask that you try to limit your remarks 

to 5 minutes. You have all provided excellent written testimony. I 

want to thank you for that. Your full written statements will be included in the record. 

Our first witness on this panel is Professor Walter Dellinger. 

Professor Dellinger is a partner at the Washington law firm of 

O’Melveny & Myers, and a Visiting Professor of Law at Harvard 

Law School. He headed the Office of Legal Counsel at the Department of Justice from 1993 to 1996. Professor Dellinger served as 

the Acting Solicitor General of the United States from 1996 to 

1997, where he argued nine cases before the Supreme Court in a 

single term. Professor Dellinger graduated from the University of 

North Carolina and Yale Law School, and he clerked for Justice 

Hugo Black on the United States Supreme Court. 

Mr. Dellinger, it is great to have you here. Please proceed. 

STATEMENT OF WALTER DELLINGER, PARTNER, O’MELVENY 

& MYERS, LLP, VISITING PROFESSOR OF LAW, HARVARD 

LAW SCHOOL, FORMER ASSISTANT ATTORNEY GENERAL, 

OFFICE OF LEGAL COUNSEL (1993–1996), FORMER ACTING 

SOLICITOR GENERAL (1996–1997), CHAPEL HILL, NORTH 

CAROLINA 

Mr. DELLINGER. Thank you, Senator Feingold. 

We address this morning the issue surrounding the rule of law 

and the concern expressed by many of those who have responded 

to the Committee’s invitation that, during the past 7 years, we 

have wandered away from the kind of adherence to norms of lawfulness that ought to be achieved. 

To say that is not to demean the fact that there are dedicated 

career attorneys in the Department of Justice who have served 

with distinction throughout this period, nor that many of the political appointees have acted with courage and dedication. Indeed, one 

of the problems is that career attorneys were too often eliminated 

from the process, and the wonderful ballast that comes from the 

fact that the Department of Justice has so many lawyers who do 

not change with changing administrations, the wonderful effect of 

that was lost by the failure to include career attorneys, the failure 

to draw upon the judgment of officials, lawyers who had served 

throughout different administrations in the national security agencies, the military agencies, and otherwise. 

It does not necessarily mean that opinions were issued in bad 

faith, though when former Assistant Attorney General Jack Goldsmith says of the torture and a series of other memos that they 

were ‘‘deeply flawed: sloppily reasoned, overbroad, and incautious,’’ 

one certainly comes very close to wondering how, when you read 

these opinions, could have possibly been written by someone who 

was trying in good faith to achieve a lawful answer. 

30 

But even where issued in good faith, an opinion, and especially 

a series of opinions, can undermine the essential elements of the 

rule of law, even where the views are held in good faith. I take it 

that it is a minimum of what we think about when we think of 

lawfulness that Government decisions are made as part of a goodfaith effort to comply with the law. But that is not enough. There 

are substantive elements in our system that provide the legitimacy 

that goes under that term. 

The division of authority among branches of Government, with 

each branch having a role, checking and balancing one another, 

with the legislative, the executive branch, and the judiciary each 

having a role to play that is respected by the others, where the core 

legitimacy of our Government, moreover, depends upon the consent 

of the governed, where actions of the Government are not made 

public, where constitutional and statutory interpretations result in 

the President being empowered to disregard national laws promptly enacted by Congress under its authority, and in combination 

with the fact that this is done in secret, to have executive orders 

that state publicly what the rule of law is but a different law being 

applied contrary to that—this so fundamentally undermines the 

ability of the governed to consent to the kind of Government that 

they have, that even if those conclusions about executive power are 

reached entirely in good faith, I think it is still fair to say that they 

ill serve the basic concepts of the rule of law. 

How might one proceed from here? I think that what we heard 

this morning is clearly right, that the President must understand 

that every President is ill served if he wants answers from lawyers 

to give him what he wants to hear. It turns out that is not in the 

best interests of any President. I think transparency, as Mr. Podesta will argue, the elimination of secrecy to the extent possible, is 

absolutely critical to the rule of law. Proper procedures, fully vetting opinions, is also critical. 

If I had to make one suggestion, Senator, it would be with respect to the OLC opinions. I think we have to have some sense of 

bipartisanship with respect to reviewing what our essential legal 

constraints are, and that in either party, it would be advisable for 

the head of the Office of Legal Counsel to have an advisory committee, modeled somewhat on PFIAB in the intelligence area, a 

group of people, a bipartisan group, including those who have 

served in other administrations, who would review with the Office 

of Legal Counsel all of the opinions, including those that we have 

not seen, and make an assessment, where the Presidentially appointed, Senate-confirmed Assistant Attorney General would have 

to make his or her decision at the end of the day, subject to review 

by the President and the Attorney General, but would make known 

what a bipartisan group, including some of those who have been 

witnesses here from each party, had to say about these issues. And 

I think that would go in some step to reclaiming the sense that we 

have had for a long time that we can trust the Office of Legal 

Counsel under political parties of both administrations, and indeed 

is exemplified by the courageous actions of Mr. Philbin and others 

in more recent administrations. It is a goal that can be attainable. 

We know in both parties OLC has stood up to the administration 

and told them no, and I think we can achieve that again. 

31 

[The prepared statement of Mr. Dellinger appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Professor. 

Our next witness is Professor Kyndra Rotunda of Chapman University School of Law. Professor Rotunda is the former Director of 

the Clinic for Legal Assistance to Service Members at George 

Mason Law School, where she devised and taught a military curriculum to second- and third-year law students and supervised students representing military families in civil legal disputes. Professor Rotunda began her legal career as an officer in the U.S. 

Army JAG Corps. She remains in the U.S. Army Reserves and was 

recently selected for promotion to major. Ms. Rotunda graduated 

from the University of Wyoming and the University of Wyoming 

College of Law. 

We welcome you, Professor. Thank you for your time and you 

may proceed. 

STATEMENT OF KYNDRA ROTUNDA, PROFESSOR OF LAW, 

CHAPMAN UNIVERSITY SCHOOL OF LAW, ORANGE, CALIFORNIA 

Ms. ROTUNDA. Thank you, gentlemen. It is a please to be with 

you this morning. I am a law professor at Chapman, and as you 

mentioned, sir, I am also a soldier. I am a major in the Army JAG 

Corps. I have served three tours in the global war on terror, including one in Guantanamo Bay and one as a legal prosecutor at the 

Office of Military Commissions, and my testimony today is based 

on those experiences serving in this global war. 

As we discuss the rule of law this morning, it is important to remember our military troops and our obligation to preserve and protect their rights, too. The United States should interpret the law 

in a way that helps and does not hurt our men and women in uniform. Unfortunately, in several important respects, that is not happening. 

For instance, in Guantanamo Bay, the U.S. military requires religious accommodation in a way that risks the safety of soldiers. It 

issues various religious items to each detainee, including a copy of 

the Koran. But, incredibly, it forbids military prison guards in 

charge of the facility from even touching the Koran under any circumstance. Not surprisingly, detainees have figured this out and 

they use the Koran to hide weapons, which they use to viciously 

attack our American soldiers. Attacks in Guantanamo Bay have 

risen to eight a day. In one year, detainees stabbed military troops 

with homemade knives 90 times. 

An incident at Camp Bucca, Iraq—a U.S.-run detention camp in 

southern Iraq—is just one example. At Camp Bucca, the military 

erected a tent as a mosque for detainees and designated it off limits to U.S. prison guards who were running Camp Bucca. The detainees used their makeshift mosque as a weapons cache, where 

they stashed concrete shards that they had dug from the concrete 

around tent poles, and home-made bombs that they had made with 

items we had given them. The prisoners attacked Camp Bucca 

from the inside out, and for 4 days they held off U.S. forces and 

seriously injured several troops. One officer was hit in the eye with 

a chunk of cinderblock. It fractured his cheek in three areas and 

32 

broke his teeth. The U.S. was forced to call for back-up in order to 

get security of our own prison camp. 

What does the law say about religious accommodation? Well, the 

Geneva Conventions say that POWs must follow the disciplinary 

routine of their captors in order to preserve their religious latitude. 

This is similar to the standard applied in U.S. prisons. In O’Lone 

v. Estate of Shabazz, the Supreme Court said that prison officials 

could impinge on prisoners’ right to exercise their religion for reasons related to legitimate prison management. 

The U.S. should restore the rule of law in Guantanamo Bay by 

allowing U.S. prison guards to search all items in detainee cells, including the Koran. No item or place within our own prison camps 

should be off limits to our guards. Doing so, gentlemen, is extremely dangerous, and neither international nor U.S. law require 

or authorize this unusual accommodation. 

When I served in Guantanamo Bay, I was appalled to learn that 

the U.S. military engages in gender discrimination against female 

military prison guards. Because it offends detainees, the U.S. forbids female soldiers from performing all aspects of their jobs within 

the detention camp. The U.S. should not engage in gender discrimination to appease the detainees. During World War II we did not 

discriminate against our Jewish soldiers to appease the Nazis, and 

we should not discriminate against our female soldiers to appease 

detainees who embrace similar discriminatory views. 

The U.S. should uphold the rule of law by ensuring that all 

troops are allowed to perform their jobs, without regard to the prejudices of our enemies. 

The U.S. follows the laws of war, and when our troops are captured, they are entitled to POW protections. That is not what happened for Staff Sergeant Matt Maupin. 

On April 9th of 2004, Iraqi terrorists attacked his convoy and led 

Private Maupin away from his convoy and his fellow soldiers. 

Later, terrorist captors released footage of Matt sitting on the floor, 

wearing his uniform, surrounded by masked gunmen and being 

forced to make a statement. Later, they claimed they murdered 

him. It was not until 4 years later, this last March in 2008, that 

we actually discovered his body. 

Incredibly, the military refused to acknowledge that Staff Sergeant Maupin was a POW. Instead, it gave him a title unknown 

under the Geneva Conventions. It considered him ‘‘missing’’ and 

called him ‘‘missing/captured’’ instead of referring to him, rightly, 

as a POW. 

Where was the International Committee of the Red Cross for 

Staff Sergeant Maupin? What happened to his rights under the Geneva Convention? We welcome the ICRC in Guantanamo Bay. I 

was the liaison to the ICRC during one of my tours there. We listened to their complaints, and we answered all of them while I was 

there. Should not the ICRC lobby to visit the prison camps where 

our soldiers are being held? The ICRC is supposed to issue complaints when it does not have the access necessary to determine if 

detainees are held humanely. But the ICRC has been silent. 

The U.S. should restore the rule of law and stop waiving POW 

protections for our own soldiers. U.S. soldiers adhere to the Geneva 

Conventions and, if captured, they are entitled to POW protections. 

33 

In closing, I wish to thank the Committee for the opportunity to 

address this matter. It is important that we uphold the rule of law 

and protect our men and women in uniform. 

[The prepared statement of Ms. Rotunda appears as a submission for the record.] 

Chairman FEINGOLD. I thank you, Professor Rotunda. 

Our next witness is Ms. Elisa Massimino. Ms. Massimino is the 

Chief Executive Officer and Director of Human Rights First. She 

joined Human Rights First as a staff attorney in 1991 and became 

the organization’s Washington Director in 1997. This year, she was 

named to head the entire organization. She was also named by the 

Hill newspaper as one of the top 20 public advocates in the country. She holds degrees from Trinity University, Johns Hopkins University, and University of Michigan Law School, and she has 

taught at the University of Virginia School of Law, George Washington School of Law, and Georgetown University Law Center. 

Ms. Massimino, thank you for being here and please proceed. 

STATEMENT OF ELISA MASSIMINO, CHIEF EXECUTIVE OFFICER AND EXECUTIVE DIRECTOR, HUMAN RIGHTS FIRST, 

WASHINGTON, D.C. 

Ms. MASSIMINO. Thank you, Mr. Chairman. I appreciate the opportunity to be here and share our views on this important topic. 

Restoring the Nation’s commitment to the rule of law must be a 

top priority for the next President of the United States. Words will 

be important; but particularly because of the way the current administration has sought to distort, obscure, and evade the clear 

language of the law, words will not be enough. It will be the actions of the next administration that will either confirm Vice President Cheney’s assertion that the drift away from the rule of law— 

which necessitates today’s hearing—is ‘‘the new normal’’ or will 

prove him wrong. 

Much of our focus today is on the impact of the policies of the 

last 7 years here at home, but it is important to understand that 

the erosion of human rights protections in the United States has 

had a profound impact on human rights standards around the 

world. Opportunistic governments have co-opted the U.S. ‘‘war on 

terror,’’ citing U.S. counterterrorism policies as a basis for internal 

repression of domestic opponents. In some instances, U.S. actions 

have encouraged other countries to disregard domestic and international law when such protections stand in the way of U.S. 

counterterrorism efforts. 

In the course of my work, I often meet with human rights colleagues from around the world, many of them operating in extremely dangerous situations. When I ask them how we can support them as they struggle to advance human rights and democratic values in their own societies, invariably they tell me one 

thing: ‘‘Get your own house in order. We need the United States 

to be in a position to offer strong leadership on human rights.’’ The 

next President will have an opportunity to provide that leadership. 

You have asked me today to focus on concrete steps the United 

States must take in order to realize a return to the rule of law in 

the area of detainee treatment. In brief, the next President must 

do three things: enforce the prohibitions on torture and other cruel 

34 

and inhuman treatment of prisoners; close Guantanamo; and abandon the failed experiment of military commissions in favor of the 

proven effectiveness—and due process—of our Federal criminal system. 

U.S. detention and interrogation policy over the past 7 years 

have been marked by ongoing violations of fundamental humane 

treatment standards rationalized by a series of secret legal opinions that have stretched the law beyond recognition. Such violations range from abusive interrogations sanctioned by Department 

of Justice memoranda to renditions of individuals to torture and 

the maintenance of a secret detention system shielded even from 

the confidential visits of the International Committee of the Red 

Cross. The return to a detention policy that is firmly rooted in the 

rule of law—not in loophole lawyering—is essential both to restoring the moral authority of the United States and to ensuring the 

success and sustainability of U.S. counterterrorism efforts going 

forward. 

On the battlefield in Afghanistan and Iraq, the military has 

learned the importance of ensuring that prisoners are treated humanely. The new joint Army-Marine Corps Counterinsurgency 

Manual issued in June of 2006 under the leadership of General 

David Petraeus makes clear that in order to gain the popular support we need to confront insurgency threats, the United States 

must send an unequivocal message that it is committed to upholding the law and principles of basic human dignity. I refer you to 

my written statement for the details of our comprehensive recommendations, which I will try to summarize briefly now. 

To reclaim what General Petraeus called the ‘‘moral high 

ground’’ in our counterterrorism efforts, perhaps the most important step the next President must take is to revoke and repudiate 

all existing orders and legal opinions that authorize cruel interrogations or secret detentions or imply that legal standards of humane treatment differ when they are applied to the CIA. At the top 

of that list is Executive Order 13440, which authorizes the CIA to 

maintain a secret detention program using interrogation techniques that have been rejected by our own military as unlawful 

and unproductive. Professor Turner from the last panel has written 

eloquently about the dangerous impact of that order and warns 

that it places the President and all who implement that order in 

serious legal jeopardy. The next President must enforce a single 

standard of human treatment of prisoners across all Government 

agencies based on the military’s Golden Rule standard. We cannot 

engage in conduct that we would consider unlawful if perpetrated 

by the enemy against captured Americans. 

In addition, we have to end the practices that facilitate torture, 

including rendition, and the operation of secret prisons, holding 

‘‘ghost prisoners’’ outside of the range of the access of the ICRC, a 

provision that is included in this year’s intelligence authorization 

bill and which was debated very eloquently on the floor last night 

by Senator Whitehouse. 

I refer you to my written statement for the details of our recommendations on a step-by-step plan on how to close Guantanamo 

and move prisoners into the Federal criminal justice system, which 

35 

has shown itself quite adaptive and capable of delivering sentences 

in terrorism cases. 

Thank you. 

[The prepared statement of Ms. Massimino appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Ms. Massimino. 

Our next witness is Mr. Patrick Philbin. Mr. Philbin is a partner 

at the law firm of Kirkland & Ellis here in Washington, where he 

practices appellate litigation. Mr. Philbin has degrees from Yale 

University, Harvard Law School, and Cambridge University, and 

clerked for D.C. Circuit Judge Laurence Silberman and Supreme 

Court Justice Clarence Thomas. From 2001 to 2005, Mr. Philbin 

served at the Department of Justice, including time in the Office 

of Legal Counsel and as Associate Deputy Attorney General. His 

responsibilities at DOJ centered on national security, intelligence, 

and terrorism issues. 

Thank you, sir, for taking the time, and you may proceed. 

STATEMENT OF PATRICK F. PHILBIN, PARTNER, KIRKLAND & 

ELLIS LLP, WASHINGTON, D.C. 

Mr. PHILBIN. Thank you, Chairman Feingold, Ranking Member 

Brownback, and members of the Subcommittee. I appreciate the 

opportunity to address the topic before the Subcommittee today. 

Because the topic of the hearing is broad and time is limited, in 

my opening remarks I would like to touch on only three points. 

First, I respectfully take some issue with the title of today’s hearing and the comments that some of the other witnesses have made. 

A hearing on ‘‘Restoring the Rule of Law’’ might be understood to 

suggest that there has been a widespread abandonment of the rule 

of law. I reject that premise. Such a premise would do a disservice 

to the dedicated men and women throughout the Federal Government who work tirelessly every day, and who have done so since 

9/11, to ensure that the actions the Federal Government takes to 

protect the Nation remain within the bounds of the law. In my 

time at the Department of Justice, I was privileged to work with 

dozens of dedicated individuals, both career employees and political 

appointees, who were committed to getting the right answer and 

ensuring that the rule of law prevailed. 

That does not mean that mistakes have not been made or that 

there were not sharp disagreements about the law. I was involved 

in contentious debates that required us to address novel and complex issues of law under enormous pressures. And in some instances, I ultimately disagreed with the reasoning others had endorsed. In the most acrimonious debate that occurred during my 

time in Government, I believe the rule of law prevailed. In one 

way, the very fact that so much energy and contention was focused 

on disputes about legal interpretations shows that the rule of law 

was considered vital. If it were not, debates about legal interpretations would not have mattered so much. And disagreements, mistakes, or errors in interpreting the law do not amount to an abandonment of the rule of law. 

Second, I want to point out a danger that I believe comes along 

in some of the rhetoric that is used about the rule of law. All too 

often in debates about the war on terror, many attempt to pack 

36 

into the concept of the ‘‘rule of law’’ the implicit assumption that 

any unilateral executive branch action or any argument for executive power that is not subject to judicial review necessarily abandons the rule of law. That is not the assumption of our Constitution. The Constitution assigns different roles to the three branches 

of Government, and particularly in the conduct of warfare, the role 

of the executive is paramount. 

One particular aspect of the judicial-centric rhetoric of the ‘‘rule 

of law’’ deserves emphasis. In many instances, arguments based on 

this approach are, at bottom, a challenge to the fundamental legal 

paradigm governing the conflict with al Qaeda. After 9/11, the 

President determined that the Nation was in a state of armed conflict and that this conflict should be treated as war, not as a matter 

of mere criminal law enforcement. Congress agreed with that assessment by passing the Authorization for Use of Military Force. 

And the Supreme Court itself endorsed it in Hamdi v. Rumsfeld. 

As the Court put it, detention of combatants, ‘‘for the duration of 

the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 

‘necessary and appropriate force’ Congress has authorized the 

President to use.’’ The proper legal framework for our conflict with 

al Qaeda is thus provided by the laws of war, not what is most familiar to us from the processes of the criminal law. Complaints, 

therefore, about detention without trial are entirely misplaced 

here. Detention without trial is precisely what the law allows for 

enemy combatants. 

Third, and finally, I would like to address one area where I believe Congress can and should take action to accomplish not a restoration of the rule of law, but a needed restoration of balance in 

the law. I believe that, as Attorney General Mukasey has argued, 

legislation is warranted in response to the Supreme Court’s decision in Boumediene v. Bush. 

In Boumediene, the Court determined that aliens detained by the 

military outside the sovereign territory of the United States in an 

ongoing armed conflict have a constitutional right to the writ of habeas corpus. 

At the same time that the Boumediene Court effected a seminal 

shift in the law concerning constitutional rights for aliens outside 

the United States, however, it declined to provide further concrete 

guidance concerning exactly what procedures would be required in 

these particular habeas cases to satisfy the right to the Great Writ. 

Under the Court’s decision, that matter would be left entirely for 

lower courts—and subsequently appellate courts, and eventually 

the Supreme Court itself—to sort out in litigation. At least as a 

practical matter, there thus may be some truth in what Chief Justice Roberts pointed out in dissent: what the decision is about most 

significantly is ‘‘control of Federal policy concerning enemy combatants.’’ The Supreme Court’s decision shifts a large measure of that 

control to the judiciary and away from the political branches, both 

executive and legislative, which had already jointly crafted a detailed system of review for the detainees at Guantanamo through 

the Detainee Treatment Act and the Military Commissions Act of 

2006. 

37 

Chief Justice Roberts makes an interesting point in noting that, 

if one considers who has ‘‘won’’ as a result of Boumediene, it is 

‘‘[n]ot the rule of law, unless by that is meant the rule of lawyers, 

who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants.’’ 

I believe that the lack of guidance the Court has provided—although the Court has determined that there is a constitutional 

right for the detainees at Guantanamo to habeas, the lack of guidance leaves a role for the political branches. Congress can and 

should step in to shape the habeas actions now required under 

Boumediene by legislation to streamline the procedures rather than 

leaving the matter solely to the ad hoc process of multiple rounds 

of litigation, which could take years. 

Legislation introduced by Senator Graham in the form of Senate 

bill 3401 provides a step in the right direction. I urge the Committee to give that bill, or similar legislation, serious consideration 

rather than leaving the contours of the habeas actions required in 

the wake of Boumediene to be determined solely by litigation. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Philbin appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Philbin. I thank, of course, 

everybody for their patience today. 

Our next witness is Ms. Suzanne Spaulding. Ms. Spaulding’s expertise in national security issues comes from 20 years of experience in Congress and the executive branch. She has worked in both 

the House and Senate Intelligence Committees and has served as 

Legislative Director and Senior Counsel to Senator Specter. She 

has served as Executive Director of two different congressionally 

mandated commissions focused on terrorism and weapons of mass 

destruction and has worked at the CIA. She is currently a principal 

at Bingham Consulting Group and past Chair of the American Bar 

Association’s Standing Committee on Law and National Security. 

Thank you very much for being here, and you may proceed. 

STATEMENT OF SUZANNE E. SPAULDING, PRINCIPAL, 

BINGHAM CONSULTING GROUP, WASHINGTON, D.C. 

Ms. SPAULDING. Thank you, Mr. Chairman, Ranking Member 

Brownback. I would like to begin by commending you for holding 

this hearing, focused not on re-litigating past disputes but on understanding the current and future imperative for upholding the 

rule of law. 

As we anticipate a new administration, it is appropriate to assess 

where we are and endeavor to put in place a long-term, sustainable 

approach to security, one that reflects all that we have learned in 

the intervening years about the nature of the threat today and effective strategies for countering it. 

We are all familiar with the ‘‘soft-on-terror’’ charge of having a 

‘‘September 10th mindset.’’ The truth is that no American who experienced the horror of September 11 can ever again know the luxury of a September 10th mindset. The greater concern is being 

stuck in a September 12th mindset, unable or unwilling to understand the lessons we have learned since those terrible days. It is 

this mindset that undermines America’s long-term security. 

38 

On September 12, 2001, for example, we lived with a deep sense 

of fragility as we waited in fear for the next attack. Over the subsequent days and years, however, we have come to understand that 

resiliency is a powerful and essential weapon against terrorism. It 

means knowing that there may be another attack, but refusing to 

live in, or make decisions based upon, fear. If politicians and policymakers fall back on that September 12th mindset of fear to convey 

their message and promote their policies, they will undermine that 

essential public resiliency. 

On September 12th, we thought we could defeat terrorism by 

going to war. Today, most of us understand that we are engaged 

in long-term struggle for hearts and minds, competing against the 

terrorists’ narrative of a glorious ‘‘global jihad’’—a narrative that 

can be very compelling to young people searching for identity and 

answers. But we now understand that the image of an America 

committed to the rule of law and ensuring that even suspected terrorists get their day in court can be a powerful antidote to that 

twisted allure of terrorism. 

We sought, in those first days and months after September 11th, 

to ‘‘balance’’ national security and civil liberties, as if they were 

competing objectives on opposite sides of the scale. We thought we 

could only get more of one by taking away from the other. Over the 

past 7 years, however, we have been reminded that our values are 

an essential source of our strength as a Nation. 

For example, experts agree that the primary reason the United 

States does not face the level of homegrown terrorism threat that 

Europe has experienced is that immigrants are better integrated 

into American society. Effectively working with Muslim communities in this country is one of the most promising avenues for deterring radicalization of young people. Policies that undermine 

those efforts threaten our national security. 

Similarly, while it seemed to some that on September 12th our 

careful system of checks and balances was a luxury we could no 

longer afford, we have seen since that an avaricious arrogation of 

power by the Executive actually leads to a dangerously weakened 

President. We have been reminded that our Government is strongest when all three branches are fulfilling their constitutional roles. 

Mr. Chairman, we all awoke to a changed world on September 

12th. But the world has continued to change, and so must our understanding of the threat we now face and how to combat it. The 

struggle for hearts and minds is of tremendous consequence. The 

enemy is deadly, determined, and adaptive. We cannot defeat it if 

we are stuck in the past. It is essential to move beyond our fears 

and understand what it is that makes us strong. 

It is with this in mind that I recommend in my written testimony 

that a new administration undertake a comprehensive review of all 

domestic intelligence activities, all relevant laws, policies, regulations, guidelines, and memos. In addition, as I have previously testified, Congress should undertake its own similar review. 

At the same time, the administration should ask the Director of 

National Intelligence to oversee a thorough assessment of the nature, scale, and scope of the national security threat inside the 

United States. 

39 

In conclusion, Mr. Chairman, I will quickly list just a few of the 

key issues that I describe in greater detail in my written testimony 

that should be part of a comprehensive review: 

A review of all electronic surveillance activities since January 

2001 and of the entire Foreign Intelligence Surveillance Act, not 

just the amendments enacted this summer; 

A review of the legal regime for national security letters and its 

implementation—something I know is of particular interest to the 

Chairman of this Committee; 

A review of the new Attorney General guidelines for 

counterterrorism investigations; 

An assessment of the First Amendment implications of domestic 

intelligence activities, including safeguards to protect against political spying and the chilling effect of current and proposed policies 

and activities; 

The need for a legal framework for Government data collection 

and data mining practices; 

The appropriate role of the various entities engaged in domestic 

intelligence activities, and that includes, obviously, not just FBI 

but also CIA, NSA, the Department of Defense and its other intelligence components, DHS, and State and local police; 

And, finally, the need to enhance transparency and oversight— 

in both the executive branch and Congress—in order to sustain 

public support, improve the quality of intelligence, and ensure respect for the rule of law. 

It is clear that this Committee understands the absolute importance of that final bullet, and I again commend you for holding this 

hearing, and thank you very much for the opportunity to participate. 

[The prepared statement of Ms. Spaulding appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Ms. Spaulding, for your very 

useful testimony. 

Our final witness this morning is Mr. John Podesta. Mr. Podesta 

is the President and CEO of the Center for American Progress Action Fund. From October 1998 to January 2001, Mr. Podesta served 

as Chief of Staff of President Bill Clinton, where he was responsible for directing, managing, and overseeing all policy development, daily operations, congressional relations, and staff activities 

at the White House. Before that, he served on the United States 

Commission on Protecting and Reducing Government Secrecy, 

chaired by the late Senator Daniel Patrick Moynihan. Mr. Podesta 

is currently a Visiting Professor of Law on the faculty of Georgetown University Law Center and is a leading expert on technology 

policy and Government secrecy. Mr. Podesta is a graduate of Knox 

College and Georgetown University Law Center. 

Thank you for your patience and thank you so much for being 

here, and you may proceed. 

STATEMENT OF JOHN D. PODESTA, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, CENTER FOR AMERICAN PROGRESS 

ACTION FUND, WASHINGTON, D.C. 

Mr. PODESTA. Thank you, Mr. Chairman and Mr. Brownback. It 

is an honor to be here today, and if you will permit me a brief moVerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC
40 

ment of nostalgia, I got into this Government secrecy question as 

a counsel to this very Subcommittee when I served Senator Leahy 

here in 1981 when he successfully opposed amendments that would 

have gutted the Freedom of Information Act. So it is great to be 

back on this side of the table. 

I just want to make a few points. I have given you a lengthy 

statement on what I see as the excesses of secrecy in the current 

administration and what we need to do about it. But let me just 

make a few points. 

First of all, obviously most Americans appreciate the need to 

keep secret national security information whose disclosure would 

pose a genuine risk of harm to the United States. I certainly subscribe to that view, and I have seen operational plans, sources, and 

methods, information that needs to be classified to keep the public 

safe. But I think as the 9/11 Commission concluded, too much secrecy can put our Nation at greater risk and breed insecurity by 

hindering oversight, accountability, and information sharing. 

Excessive secrecy conceals our vulnerabilities until it is too late 

to correct them. It slows the development of the scientific and technical knowledge we need to understand threats to our security and 

to respond to them effectively. And it short-circuits public debate. 

Moreover, it undermines the credibility of the information security 

system itself, which encourages leaks and causes people to secondguess legitimate restrictions. 

Finally, secrecy, I think, has a corrosive effect on the rule of law, 

the subject of this hearing, which requires that laws be known and 

understood and that Government officials be held accountable for 

their actions. Without such information, there can be no checks and 

balances, no accountability, no rule of law. 

You mentioned a commission I served on that was chaired by 

Senator Moynihan. It was a bipartisan commission that included 

Senator Helms as a co-chair. That commission concluded unanimously that the best way to ensure that secrecy is respected and 

that the most important secrets remain secret is for secrecy to be 

returned to its limited but necessary role. Secrets can be protected 

more effectively if secrecy is reduced overall. And, again, I recommend Senator Moynihan’s very short volume on secrecy. It is a 

terrible book for those of you who are interested in this particular 

topic. 

Unfortunately, in my view, President Bush and Vice President 

Cheney have created, I think, a cult of secrecy within the executive 

branch that is probably rivaled only, I think, by the Nixon administration. The Bush administration has systematically overhauled 

policies and practices that deny Americans information held by the 

Government. I would note that this took place and preceded 9/11. 

It is not only a reaction to 9/11. But I think some of those policies, 

his amendments to the Presidential Records Act, although issued 

right after 9/11, the Attorney General’s memorandum which, I 

think, reversed the presumption of openness and Freedom of Information Act, all that preceded 9/11. I go into some detail in my testimony on that. So without sort of going over the abuses that I see 

in the policies implemented by the administration, let me go to six 

specific things that are summaries, again, of my testimony that 

41 

need to be accomplished, I think, by either the next President, 

three in that category, or by the Congress itself. 

First, I believe that the next President should rewrite the Bush 

Executive on classification policy to reinstate the Clinton era provisions, which established a presumption against classification in 

cases of significant doubt and prohibited reclassification of material 

that had been properly declassified and released to the public. I 

think we also need to get back to really policing the system of automatic declassification that was, I think, a feature of the earlier 

Clinton order. 

Second, I think the next President and, if the President does not 

do it, the Congress should take action to reduce the practice of designating so-called controlled unclassified information. That has 

really exploded during the administration. The GAO found that 26 

agencies use 56 different information control markings that are beyond the scope of the executive order on classification, and that is 

just growing. I think that is a matter that needs urgent attention. 

If the President does not undertake it, I think the Congress needs 

to pass legislation, some of which has already passed the House 

and I recommend it to you. 

Third, the next President should revoke the Bush executive order 

on the Presidential Records Act, which I think both permit surviving relatives of former Presidents to block access to Presidential 

records, created a new Vice Presidential privilege. It really turns 

over on its head the whole import of the Presidential Records Act, 

and I think that that needs to be reversed. 

Fourth, I think in the realm of the things that Congress need to 

undertake, Congress should enact legislation directing courts to 

weigh the costs and benefits of public disclosure before dismissing 

lawsuits on the basis of state secrets privilege. Fritz talked about 

that. 

Fifth, Congress should enact S. 3405, the Executive Order Integrity Act, introduced by you, Mr. Chairman, to prohibit the President from secretly modifying or revoking a published executive 

order. 

And, finally, Congress should strengthen the Whistleblower Protection Act of 1989 to protect public employees from reprisal when 

they disclose information, particularly to Congress, regarding Government wrongdoing. 

So, with that, let me conclude. Thank you. 

[The prepared statement of Mr. Podesta appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you so much, Mr. Podesta. 

We will go to questions, a 7-minute round. I will begin. 

Mr. Dellinger, I opened my questions to the first panel by highlighting the need for a rule-of-law culture in Government. The majority of these executive actions will never be reviewed in a court 

of law or examined in a congressional hearing, and so a culture of 

respect for the rule of law within the executive branch itself is essential. I would like to return to that point now because I believe 

it has special relevance for the Office of Legal Counsel. 

From your vantage point as a former head of OLC, what can be 

done going forward to instill a culture of respect for the rule of law 

42 

among the attorneys who give advice to the President and other executive agencies? 

Mr. DELLINGER. Senator, I think first one has to recognize that 

administrations under both political parties have indeed maintained a very high standard over the years. There has been a bipartisanship, if you look at the Office of Legal Counsel under Ted 

Olson in the first Reagan administration, I believe Harold Koh, one 

of our witnesses today, and others served in the Office of Legal 

Counsel during that period of time. Charles Cooper, another of 

your witnesses today, issued opinions that were quite contrary to 

the intense political ambitions of the President and stuck with it. 

So that it is, first of all, important to overcome the cynicism that 

says this cannot be done. 

I think it is also important to recognize, quite honestly, that we 

did vary from it in this administration. To read the torture memo, 

one cannot just dismiss as a difference of legal opinion a torture 

memo that—whose reasoning is to tortuous as it goes through why 

there is no need to comply with or to interpret away the criminal 

assault statute, the maiming statute, the war crimes statute, the 

torture statute, customary international law, the Convention 

Against Torture, the Fifth, Eighth, and 14th Amendments. To read 

an opinion like that is just to be stunned at what it has done. 

I believe that one of the things a President has to understand is 

that Presidents who get the answer they want wind up being ill 

served by it. They get into trouble. It really is important, and the 

President should tell that to the Office of Legal Counsel. I think 

the Attorney General has to play an active role in advancing that, 

and I think most importantly, we have to follow the recommendations, I believe, in the legislation that you are introducing, suggested by the testimony of Mr. Podesta. There has to be as much 

transparency as national security imperatives will allow in making 

public what the basis for the President’s legal conclusions are and 

to make those readily, timely, and widely available for Congress 

and the American public to assess. 

Chairman FEINGOLD. Thank you, Professor. 

Ms. Massimino, you have recommended, as have a number of organizations who submitted written testimony, a single interrogation standard for all U.S. Government agencies. I could not agree 

more and have advocated this both publicly and behind closed 

doors at the Intelligence Committee for years. The argument I 

often hear in opposition is that intelligence interrogators have different needs and goals than military interrogators, and that the 

same rules should not apply. 

How do you respond to that? How do you know that we will not 

lose valuable intelligence information as a result? 

Ms. MASSIMINO. First, I want to say that I, too, have heard the 

arguments from the President and other administration officials 

that the so-called enhanced interrogation techniques are effective 

at obtaining information. It is a difficult assertion to challenge, not 

because it is so obviously true, but because the people who have 

the information that would substantiate it are the only ones who 

have seen it. 

So I do want to point out first, though, that effectiveness does 

not convert a felony into a misdemeanor or not a crime. It does not 

43 

rectify a breach of Common Article 3. And it does not make a given 

technique any less painful or inhumane. 

That said, though, there are serious reasons to question these assertions that intelligence interrogators need different techniques. 

The recent report by the Intelligence Science Board, called 

‘‘Educing Information,’’ has found that there is no evidence to suggest that these so-called enhanced interrogation techniques produce 

reliable or actionable intelligence. 

Over the summer, my organization, Human Rights First, convened an off-the-record meeting with about 15 intelligence interrogation experts—from the military, the FBI, and the CIA. It was 

supposed to be a 2-day meeting. After about three-quarters of the 

first day, they found such strong common agreement that not only 

did they not need to go beyond the standards of Common Article 

3 as outlined in the military manual, but they were gravely concerned that we were going to permanently lose vital intelligence by 

continuing down the road of use of these enhanced techniques. 

Now, I am not an interrogation expert, but they sure are. Within 

that room was more than 150 years of intelligence interrogation expertise. And there was no doubt in anyone’s mind that what they 

need to do and what they asked for was an investment by the next 

administration in developing and training human intelligence gatherers in the traditional rapport-building techniques that work. 

Chairman FEINGOLD. Thank you. 

Ms. Spaulding, in the past several years I have repeatedly detected from the Justice Department a fundamental distrust of 

judges when it comes to domestic surveillance authorities, whether 

it is bypassing the FISA Court for more than 5 years or the NSA 

wiretapping program or arguing that statutes should be rewritten 

to decrease the role of the judiciary. This seems to be a consistent 

theme. Yet in our system of Government, the judicial branch plays 

a critical check on executive branch overreaching. Is this distrust 

of the judiciary warranted? And how should the role of the judiciary be considered in the context of the comprehensive review of domestic surveillance authorities that you have recommended? 

Ms. SPAULDING. Senator, I think this mistrust of the courts is not 

warranted. As has been pointed out by other witnesses this morning, the courts are typically very deferential to the executive 

branch when it comes to national security, and it has been quite 

unusual to see the pushback from the Supreme Court recently with 

regard to administration legal claims in the war on terror. And I 

think that says less about the make-up of the Supreme Court than 

it does about the boundaries that this administration has been 

pushing in that legal context. 

It is very interesting. One of the arguments that is often made 

is that we cannot trust regular Article III judges with highly classified information. There have been leaks from the executive 

branch—lots. There have been leaks from Congress. There has 

never been, as far as I know, a leak of classified information from 

the courts, from the judiciary, from a judge. 

Judges deal with complex information all the time, and their role 

is absolutely vital when it comes to the areas that we are talking 

about today. 

44 

Supreme Court Justice Powell articulated it very well in the 

Keith case, which, as you know, is one of the key cases as we look 

at domestic surveillance issues, when he talked about how the role 

of the executive branch is not envisioned to be a neutral arbiter or 

decider, but actually to investigate and prosecute. And it is not appropriate to leave these final decisions in their hands lest they become subject to abuse in the zeal for prosecution. 

The role of the judiciary in this area, particularly the area of domestic surveillance, is absolutely critical. 

Chairman FEINGOLD. Thank you very much. 

Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. I thank the 

panelists for your presentations and your thought that you put into 

your presentations. I appreciate that all very much. 

Professor Rotunda, particularly I was stunned by the things that 

you were talking about. I did not know about those factual situations, and I am hopeful we can get on top of that so we can keep 

our people safe. 

Do we make the same sort of requirement for other religious materials that they cannot be touched or examined? 

Ms. ROTUNDA. Sir, it is primarily the Koran. We do issue to detainees all kinds of religious items, including prayer oil, prayer 

beads, prayer rugs. We broadcast the call to prayer five times a 

day. We have arrows pointing to Mecca. At some points when they 

are praying, they are required to have 20 minutes of uninterrupted 

time, and we have prayer cones that we put up where guards cannot enter the area where they are praying. 

Senator BROWNBACK. I want to get specific on this. Are there 

other religious documents that we hand to prisoners from other 

faiths that we say you cannot examine? 

Ms. ROTUNDA. No, sir. 

Senator BROWNBACK. This is the only one that we tell the guards 

you cannot look at. 

Ms. ROTUNDA. Yes, sir. 

Senator BROWNBACK. And the mosque is the only place we tell 

guards you cannot go into. 

Ms. ROTUNDA. As far as I am aware, sir. I know that was at 

Camp Bucca. Now, when we have prayer cones up in the prison 

camp, guards cannot go into those areas where detainees are praying. So that is true in Guantanamo Bay and also at Camp Bucca. 

Senator BROWNBACK. OK. And I thought it also interesting the 

limitation on what we allow female guards to do. I had not thought 

about that aspect of it. 

Ms. ROTUNDA. Yes, sir. 

Senator BROWNBACK. But not allowing them to do their job according to some other standard rather than our own of how we 

treat different genders. 

Ms. ROTUNDA. That is right, sir. It is clearly discrimination. 

Senator BROWNBACK. Thank you for bringing those up. I thought 

those were quite interesting. 

Professor Philbin, Mr. Philbin, I want to talk with you, because 

this is the key kind of point, it seems like to me, of one of the 

things we have got to discuss, is how we are going to process these 

detainees at this point after the Supreme Court case. How is this 

45 

going to be handled? And your point is that you are either going 

to do it on this kind of makeshift case or run it through a bunch 

of different trials, run it up the appellate court multiple times to 

kind of get a body of law developed where the Congress is going 

to pass something. That is the summation of your point. 

Mr. PHILBIN. Yes, essentially, sir. 

Senator BROWNBACK. What do you think we should do and in 

what sort of legal framework should we look at these enemy combatants? Can you give me that in a minute or two? I realize that 

is a huge question, but it is one we have tried to wrestle with 

around here, thought we had something, and the courts said differently. 

Mr. PHILBIN. And I can understand frustration with that, Senator, coming from the Congress, because Congress did make a concerted effort to respond to the Supreme Court’s decision in Hamdi 

and Hamdan that outlined what would be necessary, even for a 

U.S. citizen, for habeas corpus procedures and modeled the procedures at Guantanamo on that. 

I still think, though, that for the efficient conduct of the war, it 

is necessary not to allow things just to play out in years of litigation, but to take another stab at trying to determine what it is that 

the Court expects from these habeas proceedings. I think that the 

legal framework is the laws of war that these are enemy combatants. They can be detained without trial. But the specific contours 

of the habeas action have to be gleaned from the Supreme Court’s 

decisions so far. And legislation that provided for a procedure that 

gave the necessary process and that also provided, I believe, for an 

expedited appellate proceeding so that the test case would go 

through, there would be an established timetable for an expedited 

appeal through the D.C. Circuit Court of Appeals, and perhaps 

then to the Supreme Court, to try to get the whole thing sorted out 

so that there is a clear guideline as soon as possible, because, otherwise, tremendous resources will be wasted in litigation. 

Senator BROWNBACK. Now, this is not the first time this country 

has dealt with enemy combatants. Now, they were in a foreign government, and there were rules of law. But in World War II, we had 

a number of prisoners of war here in the United States. How did 

we treat them then? Under what legal system? 

Mr. PHILBIN. In World War II, there were over 400,000 POWs in 

the United States. They had rights under the Geneva Conventions. 

And as far as I am aware, there was no attempt, there was never 

an effort to bring a habeas corpus action on their behalf. 

Senator BROWNBACK. With all 400,000? 

Mr. PHILBIN. As far as I am aware. There were efforts to bring 

habeas corpus actions on behalf of those in the Quirin Case, saboteurs who were not held as POWs, the Quirin Case, Colepaugh v. 

Looney, and at the end of the war, a U.S. citizen, Territo, a Ninth 

Circuit case, he was captured in the Italian Army, but he had been 

a U.S. citizen. But those were the only situations in which habeas 

corpus actions were entertained. 

Senator BROWNBACK. But they were not treated as under our 

criminal law procedure at all. Correct? 

Mr. PHILBIN. Correct. 

46 

Senator BROWNBACK. It was under the Geneva Convention and 

the treatment—and there were not trials going on as long as the 

war went on. Is that correct? 

Mr. PHILBIN. That is correct. 

Senator BROWNBACK. Then after the war, they were generally returned to their home country. 

Mr. PHILBIN. They were repatriated, as required by the Geneva 

Conventions. 

Senator BROWNBACK. So you are suggesting, if I can understand 

this a lot more, that we need to go along that line rather than involving the Guantanamo Bay or the military detainees in our 

criminal law structure in the United States. 

Mr. PHILBIN. Well, I think it is important to maintain the paradigm that this is law, not simply—this is a war, and the laws of 

war apply and not simply a matter of criminal law enforcement. 

But given the Boumediene decision, there has to be a structure put 

in place for habeas corpus proceedings now for these detainees. 

That is the law under the Constitution as declared by the Supreme 

Court. 

I think the question that the political branches face is how much 

time and effort will have to be spent in litigation to try to sort out 

exactly what the procedures are for that and how much time can 

be saved by the political branches taking what I believe is their 

proper role in something that is really a matter of war policy, trying to define as quickly as possible what the contours of those habeas actions will look like. 

Senator BROWNBACK. Which I agree with, and I think that is the 

route we should go. 

Ms. Massimino, I hope you were here at the outset when I was 

talking about the unsuitability of the disciplinary barracks at Fort 

Leavenworth for moving detainees. If you were not, I hope you 

could look at the specifics that I outlined, because I think this is 

just not an appropriate facility and not set up for this and not legal 

for us to move them there. And so I would hope in your advocacy 

of closing Guantanamo Bay, which I understand and appreciate, 

that you would also look at some of the difficult facilities we have 

in the United States and not—or at least question as well moving 

them to those places as well. 

Ms. MASSIMINO. I will. And, in fact, Senator, in our written blueprint on how to close Guantanamo, we look at a number of different scenarios, possibilities. I think one of the challenges is to 

break down the population there into several categories, and the 

ones that we think are suitable to be moved to the United States 

or ones that we think the Government has identified as having 

committed crimes against the United States and should be tried. 

I have in my written testimony a whole explanation about why we 

think pursuant to this report we recently published on an evaluation of terrorism trials in the domestic criminal system that that 

is a far better—that our criminal system is far better suited than 

the current system of military commissions about which there has 

been so much controversy, even within the military command 

structure, about whether or not that system complies with our 

rules under the Geneva Conventions. 

47 

I think that, you know, we are talking about the rule of law here 

today, and the requirements of the rule of law, what it really 

means, I think, in practice is transparency, predictability, consistency. We have procedures to deal with suspected terrorists. We actually have been using them effectively in the criminal system. And 

instead of setting that system aside, we ought to be embracing it 

and using all the tools at our disposal to deal with the terrorist 

threat. And I think that is one that has been underused and is 

part, in my view, of the solution to the situation at Guantanamo. 

Senator BROWNBACK. I would note—and that talks about the 

Leavenworth Penitentiary, and I do not think you want to move 

these folks into the Leavenworth Penitentiary system let alone the 

disciplinary barracks for mixing of populations. I appreciate your 

thought and your background on it. I just think there are very 

practical problems that I would hope you would look at as well. 

Ms. MASSIMINO. Senator— 

Senator BROWNBACK. My time is up, Mr. Chairman. 

Chairman FEINGOLD. Excuse me, Senator Brownback. I want to 

just do one more question, because it has already been over 21⁄2

hours. So I just want to ask Mr. Podesta: Government secrecy is 

an issue that permeates every other rule-of-law issue we are addressing here today. Almost every group or individual who submitted written testimony in advance of this hearing brought up the 

issue of Government secrecy, and they are more or less unanimous 

in their recommendations for concrete steps that the next President 

can take on day one of his administration. I truly hope that the 

next President takes note of this remarkable consensus and acts on 

this list of recommendations. 

Now, one of the organizations that submitted a written statement for the hearing is openthegovernment.org, a coalition of 

groups that support open government. The statement includes the 

following recommendation: ‘‘The new President has an immediate 

opportunity to define the relationship between his administration 

and the public by issuing a Presidential memorandum on day one 

of his administration that makes clear that the Government information belongs to the public.’’ 

Do you agree with this recommendation? And do you have any 

thoughts about what principles and commitments might be included in such a memorandum? 

Mr. PODESTA. Thank you, Mr. Chairman. CAP is a member of 

openthegovernment.org. I do agree with the recommendation. I was 

thinking about this a little bit during the course of the hearing, 

and maybe the President might start with a statement that formed 

the basis of a study that was done by Professor Harold Cross from 

the University of Missouri, which led to the enactment of the Freedom of Information Act. He said in his classic study that the right 

to speak and the right to print—reflecting on the First Amendment—without the right to know are pretty empty. And I think 

that is a pretty strong statement that the President could issue on 

day one, direct his Government, again, the Justice Department, I 

think, to reverse and move back to the presumption of openness 

with regard to taking on FOIA cases, reform the executive order on 

classification, to deal with the problems that I have identified in 

my opening statement. 

48 

But I think ultimately this is about culture. It is about whether 

the President and whether his Cabinet are going to implement policies and oversee their own officials in a way that I think promotes 

openness and restores that sense of openness and integrity to the 

Government. 

Chairman FEINGOLD. Senator Brownback, did you have a quick 

follow-up? 

Senator BROWNBACK. I do. 

Professor Rotunda, I am just curious. If we go the route that is 

being suggested by Ms. Massimino on the prisoners from Guantanamo Bay, what is kind of the practical effect? I am curious if actually people will be left in theater rather than moved back, and if 

that is done, if they will be repatriated to host countries. And I 

wonder if they will be better treated there than they would at 

Guantanamo. Do you have any thought? 

Ms. ROTUNDA. Yes, sir. Well, Senator, two things. 

First of all, under the Geneva Convention, we cannot take enemy 

combatants and move them to a prison with convicted criminals, 

and so that is one thing we have to consider. Those who have already been charged with a crime, one thing. We cannot just airlift 

Guantanamo Bay into a U.S. prison. And not only can’t we, but we 

should not do that. Moving detainees to Guantanamo Bay presents 

significant security risks. We cannot maintain the type of security 

that is required. In Guantanamo Bay, we are surrounded by water 

on three sides and Cuba, with rows and rows of barbed wire, on 

the other side. 

If we move them to the United States, it will be a magnet for 

some terrorist bomber to attack the United States from within, 

again, and take himself out, all the U.S. troops he can take out, 

and the detainees in Guantanamo Bay. So I think it is very dangerous. All the polling I have seen is that Americans do not want 

it, it is not good for Americans. 

Additionally, the detainees in Guantanamo, many of them are 

very threatening toward their interrogators. Some of them have 

said that if they ever get out, they are going to hunt down their 

interrogators and their families and ‘‘slit their throats like animals.’’ That is what one detainee told his interrogator. It is dangerous to move them here. 

The other option, sir, you mentioned about moving them in theater, leaving them in Iraq or Afghanistan, I do not think that is 

a good idea either, and the reason is because right now in Guantanamo Bay, it is crawling with human rights advocates. The International Committee of the Red Cross had more access to detainees 

than I did, and I have a top secret security clearance, sir. 

There is media all over Guantanamo Bay. There are hundreds of 

lawyers coming in and out of Guantanamo Bay. If we move them 

to Iraq or Afghanistan, all of this oversight is going to stop. And 

so those who are truly concerned about the treatment of detainees 

should think twice about suggesting that we move them anywhere 

near the theater in Iraq or Afghanistan where they are not going 

to have this contact with the outside world. 

Chairman FEINGOLD. Senator Whitehouse, do you have a followup? 

49 

Senator WHITEHOUSE. I know that the Chairman is seeking to 

bring this wonderful hearing to a conclusion because of the press 

of other business we face, so I would like to ask a couple of questions just for the record and ask if the witnesses would follow up 

as they wish. I would, however, first like to recognize Ms. 

Spaulding and welcome her back to the Committee. She was on the 

other side of the aisle, but she worked very hard for us and was 

a wonderful asset to the Committee, and it is nice to see her back 

in this capacity. 

Question 1 is on how you go about unwinding Guantanamo. Everybody says we have got to get rid of it. I believe that a committee 

should take a look at it. Some problems are easy to get into and 

very difficult to unsnarl. I suspect that a committee that was to 

look at this, or a commission, would need military expertise, would 

need corrections expertise, would need intelligence expertise, would 

need law enforcement expertise, would need immigration and international law expertise. But if there is anything else that you can 

add as to how we unwind this, that would be helpful. 

I would reiterate the same question I asked the first panel about 

secrecy. What is an appropriate response when you have an executive branch that is strategically declassifying for propaganda purposes in order to silence dissent or opposition from Congress by 

leaving us behind the veil of secrecy while they declassify at will 

their part of the argument? 

And the third is that one of the—as I have been reading through 

these OLC opinions, you know, it is sort of one horror leads to another. I keep calling this a ‘‘George Bush Little Shop of Legal Horrors.’’ One of the assertions that was made was that an executive 

order, because it is an executive order, cannot bind a President; he 

is free to depart from it at his pleasure or disobey it at his pleasure, and he is under no compunction at any point to report that 

he is disobeying it. That strikes me as turning the Federal Register 

into essentially a screen of falsehood on which people cannot rely. 

But there is a constitutional germ of truth buried in there, and I 

would love to get the advice of the panel on what we should to assure that when Americans look at an executive order that, as we 

know, has the force and effect of law, takes a congressional act to 

overrule it, and until then has the force and effect of law, they 

know that they can actually count on its efficacy, its accuracy that 

it is legal, that it is not just a phony screen that has been put up. 

I think that is very dangerous for a structure, a Government that 

is built on laws and the laws become phony and you can run illegal 

or un-legal programs behind the screen of legal artifice. 

So those would be the three questions I would love to hear from 

you, but I know that we have a caucus to get to, and you all have 

things to get to as well. And I very much appreciate the Chairman’s courtesy, and I know I am taking more time, but I really 

would like to reiterate how extremely valuable and important I 

think this hearing is, how astonishingly good the witnesses have 

been, both in the number and expertise—it has really been a very, 

very impressive panel—and how much I value Chairman Feingold’s 

leadership in calling this, along with the Ranking Member, Senator 

Brownback. 

50 

Chairman FEINGOLD. Thank you, Senator Whitehouse, and we 

have much to do, as we have indicated, and we will get on it. 

Senator Brownback, did you have anything further? 

Senator BROWNBACK. Nothing, Mr. Chairman. 

Chairman FEINGOLD. Let me thank all the witnesses for their 

testimony and this thoughtful discussion. I appreciate your taking 

the time to be here. I thank you for your insights. 

As the testimony today confirms, I do not think we can overstate 

the importance of this issue to our Nation and to this moment in 

history. We have heard a number of provocative and interesting 

proposals today, including some very concrete and practical recommendations for restoring the rule of law and returning to the 

principles on which this Nation was founded. This does not mean 

it will be easy, even though steps that are almost universally 

agreed upon, such as the necessity of closing the facility at Guantanamo Bay, are fraught with legal and practical complexity. And, of 

course, there may be institutional resistance within the executive 

branch to actions that are viewed as ceding power to the other 

branches of Government no matter how unprecedented the executive power theories that need to be undone. 

But as I said at the outset of the hearing, it is the years that 

follow a crisis that may matter most that are the true test of the 

strength of our democracy. So I hope that the next President will 

heed what has been said today and carefully review the many recommendations that we have presented even before he takes office. 

I truly believe that the future of our democracy depends on it. Indeed, I think it is so important that this be done that I believe the 

next President, whoever he is, in the Inaugural Address should 

specifically say that he has an allegiance to the rule of law and 

that he will reverse and renounce the course followed by the current President. I believe it would obviously have to be brief in such 

an address, but it rises to that magnitude. 

The hearing record will remain open for one week for additional 

materials to be submitted. Written questions for the witnesses 

must be submitted by the close of business one week from today. 

We will ask the witnesses to respond to those questions promptly 

so the record of this hearing can be completed and presented to the 

President the day that he takes office. And, again, I thank Senator 

Brownback for his tremendous patience and participation as the 

Ranking Member. 

The hearing is adjourned. 

[Whereupon, at 12:58 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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Æ 


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