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44–955 PDF 2008

S. HRG. 110–604 

SECRET LAW AND THE THREAT TO DEMOCRATIC 

AND ACCOUNTABLE GOVERNMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 30, 2008 

Serial No. J–110–89 

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 

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

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

prepared statement .......................................................................................... 115 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 150 

WITNESSES 

Aftergood, Steven, Director, Project on Government Secrecy, Federation of 

American Scientists, Washington, D.C. .............................................................. 17 

Berenson, Bradford A., Partner, Sidley Austin, LLP, Washington, D.C. ............ 9 

Elwood, John P., Deputy Assistant Attorney General, Office of Legal Counsel, 

Department of Justice, Washington, D.C. .......................................................... 6 

Johnsen, Dawn E., Professor, Indiana University School of Law–Bloomington, 

former Acting Assistant Attorney General, Office of Legal Counsel, Bloomington, Indiana ..................................................................................................... 7 

Kitrosser, Heidi, Associate Professor of Law, University of Minnesota Law 

School, Minneapolis, Minnesota .......................................................................... 15 

Leonard, J. William, former Director, Information Security Oversight Office, 

Leonardtown, Maryland ...................................................................................... 11 

Rivkin, David B., Jr., Partner, Baker Hostetler, Washington, D.C. .................... 13 

QUESTIONS AND ANSWERS 

Responses of Steven Aftergood to questions submitted by Senators Feingold 

and Kennedy ......................................................................................................... 42 

Responses of John P. Elwood to questions submitted by Senators Feingold 

and Brownback ..................................................................................................... 48 

Responses of Dawn Johnsen to questions submitted by Senators Feingold 

and Kennedy ......................................................................................................... 65 

Responses of Heidi Kitrosser to questions submitted by Senator Kennedy ....... 70 

Responses of J. William Leonard to questions submitted by Senators Feingold 

and Kennedy ......................................................................................................... 74 

SUBMISSIONS FOR THE RECORD 

Aftergood, Steven, Director, Project on Government Secrecy, Federation of 

American Scientists, Washington, D.C., statement ........................................... 77 

Berenson, Bradford A., Partner, Sidley Austin, LLP, Washington, D.C., statement ...................................................................................................................... 88 

Elwood, John P., Deputy Assistant Attorney General, Office of Legal Counsel, 

Department of Justice, Washington, D.C., statement ....................................... 109 

Harrison, James P., Director, The Identity Project, statement ........................... 117 

Johnsen, Dawn E., Professor, Indiana University School of Law–Bloomington, 

former Acting Assistant Attorney General, Office of Legal Counsel, Bloomington, Indiana, statement and attachment ...................................................... 124 

Kitrosser, Heidi, Associate Professor of Law, University of Minnesota Law 

School, Minneapolis, Minnesota, statement ....................................................... 137 

Leonard, J. William, former Director, Information Security Oversight Office, 

Leonardtown, Maryland, statement ................................................................... 152 

Rivkin, David B., Jr., Partner, Baker Hostetler, Washington, D.C., statement . 162 

Weismann, Anne L., Chief Counsel, CREW, Washington, D.C., letter ............... 171 

(1) 

SECRET LAW AND THE THREAT TO DEMOCRATIC AND ACCOUNTABLE GOVERNMENT 

WEDNESDAY, APRIL 30, 2008 

UNITED STATES SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, Pursuant to notice, at 9:02 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

chairman of the subcommittee, presiding. 

Also present: Senators Whitehouse and Brownback. 

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

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I call the Committee to order. 

Good morning, everybody. Welcome to this hearing of the Constitution Subcommittee entitled ‘‘Secret Law and the Threat to 

Democratic and Accountable Government’’. 

We are honored to have with us today a distinguished panel of 

witnesses to help us examine this very important and timely issue. 

I’ll start by making just a few remarks, and then I’ll recognize 

the Ranking Member, Senator Brownback, for an opening statement. Then we’ll turn to our witnesses. 

More than any other administration in recent history, this administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional 

oversight and the state secrets privilege to shut down lawsuits. 

It has relied increasingly on secret evidence and closed tribunals, 

not only in Guantanamo, but here in the United States. It has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, 

even to Congress. 

These examples are the topic of much discussion and concern, 

and appropriately so. But there is a particularly sinister trend that 

has gone relatively unnoticed: the increasing prevalence in our 

country of secret law. 

The notion of secret law has been described in court opinions and 

law treatises as ‘‘repugnant’’ and ‘‘an abomination’’. It is a basic 

tenet of democracy that the people have a right to know the law. 

In keeping with this principle, the laws passed by Congress and 

the case law of our courts have historically been matters of public 

record. When it became apparent in the middle of the 20th century 

that Federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring 

2 

this law to be made public for the express purpose of preventing 

a regime of secret law. 

That purpose today is being thwarted. Congressional enactments 

and agency regulations are, for the most part, still public. But the 

law that applies in this country is determined not only by statutes 

and regulations, but also by the controlling interpretations of 

courts and, in some cases, the executive branch. More and more, 

this body of executive and judicial law is being kept secret from 

Congress as well. 

The recent release of the March 2003 John Yoo torture memorandum has shone a sobering light on this practice. A legal interpretation by the Justice Department’s Office of Legal Counsel, or 

OLC, binds the entire executive branch, just like a regulation or 

the ruling of a court. In the words of former OLC head Jack Goldsmith, ‘‘These executive branch precedents are ‘law’ for the executive branch.’’ The Yoo memorandum was, for a nine-month period 

in 2003 until it was withdrawn by Mr. Goldsmith, the law that this 

administration followed when it came to matters of torture. And 

course, that law was essentially a declaration that few, if any, laws 

applied. 

This entire memorandum was classified and withheld from Congress and the public for years on the claim that it contained information that would harm national security. Now, it may be appropriate, prior to public disclosure of an OLC memorandum, to redact 

information about, for example, specific intelligence sources or 

methods. But as we now know, this 81-page document contains no 

information about sources, methods, or any other operational information that could compromise national security. What it contains 

is a shocking glimpse of the ‘‘law’’ that governed the administration’s conduct during the period this memo was in effect. The 

many, many footnoted references to other OLC memos we have 

never seen suggest that there is an entire regime of secret law that 

may be just as shocking. 

Another body of secret law is the controlling interpretations of 

the Foreign Intelligence Surveillance Act that are issued by the 

FISA Court. FISA, of course, is the law that governs the government’s ability in intelligence investigations to conduct wiretaps and 

search the homes of people in the United States. Under that statute, the FISA Court is directed to evaluate wiretap and search warrant applications and decide whether the standard for issuing a 

warrant has been met a largely factual evaluation that is properly 

done behind closed doors. But with the evolution of technology and 

with this administration’s efforts to get the Court’s blessing for its 

illegal wiretapping activities, we now know that the Court’s role is 

broader and that it is very much engaged in substantive interpretations of the governing statute. 

These interpretations are as much a part of this country’s surveillance law as the statute itself. Without access to them, it is impossible for Congress or the public to have an informed debate on 

matters that deeply affect the privacy and civil liberties of all 

Americans. While some aspects of the FISA Court’s work involve 

operational details and should not be publicly disclosed, I do not 

believe that same presumption must apply to the Court’s purely 

legal interpretations of what the statute means. Yet, the adminisVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
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tration has fought tooth and nail against public disclosure of how 

the court interprets the law and has strictly limited even congressional access to some of those decisions. 

The administration’s shroud of secrecy extends to agency rules 

and executive pronouncements, such as Executive orders, that 

carry the force of law. Through the diligent efforts of my colleague 

Senator Whitehouse, we have learned that OLC has taken the position that a President can ‘‘waive’’ or ‘‘modify’’ a published Executive 

order without any notice to the public or Congress—simply by not 

following it. 

Now, none of us disputes that a President can withdraw or revise 

an Executive order at any time. That’s the President’s prerogative. 

But abrogating an Executive order without any public notice works 

a secret change in the law. Worse, because the published order 

stays on the books, it actively misleads Congress and the public as 

to what the law is. That has the effect—presumably the intended 

effect—of derailing any accountability or oversight that could otherwise occur. 

That gets us to the heart of the problem. In a democracy, the 

government must be accountable to the people, and that means the 

people must know what the government is doing. Through the classification system and the common law, we have carved out limited 

exceptions for highly sensitive factual information about military 

operations, intelligence sources and methods, nuclear programs, 

and the like. That is entirely appropriate and important to protecting our national security. But even in these areas, Congress 

and the courts must maintain some access to the information to ensure that the President is acting in accordance with the law and 

the Constitution. And when it comes to the law that governs the 

executive branch’s actions, Congress, the courts, and the public 

have the right and the need to know what law is in effect. An Executive that operates pursuant to secret law makes a mockery of the 

democratic principles and freedoms on which this country was 

based. 

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

We’ll hear today from several experts who can help us understand the extent of this problem, and also help us begin to think 

about solutions. But before I turn to them, let me first turn to my 

colleague and the Ranking Member, Senator Brownback, for any 

comments he’d like to make. 

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

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman. I appreciate 

that. Panel members, thank you for being here today. I look forward to a good discussion, interesting information, and a good vetting on this topic. I look forward to discussion from you on the socalled issue of secret laws. 

At the outset, however, I must say that I’m not convinced that 

the topics we’ll address here today comport with the notion of secret law as defined by our Federal courts. Hopefully you can illuminate me on that. Courts have defined secret laws as ‘‘administrative guidance or standards that an agency applies to the public.’’ 

4 

I’m confident that we can all agree, as our courts have long recognized, that an administrative agency should ‘‘not be permitted to 

develop a body of secret law used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind 

a veil of privilege because it is not designated as formal, binding, 

or final.’’ 

The application of such quasi-regulations would, of course, violate our fundamental commitment to the principle of legality, as it 

is beyond dispute that members of the public cannot be expected 

to conform their behavior to legal requirements that have been concealed from them. 

In 1971, the Court of Appeals, District of Columbia, addressed 

the problem of such secret laws stating this: ‘‘To prevent the development of secret law within an administrative agency, we must require the agency to disclose orders and interpretations which it actually applies in cases before it.’’ 

Despite this widely understood description of secret law, every 

branch of the Federal Government has at times been accused of 

making secret law that falls outside this definition. 

Prior to the adoption of the Federal rule of appellate procedure, 

32.1, for example, certain courts in our Federal jurisdiction were 

sharply criticized in the past for policies under which many of their 

opinions are deemed ‘‘non-precedential’’, or excluded from electronic 

databases and collections of published cases. Critics called these 

decisions ‘‘secret law’’, even though they were not truly secret and, 

due to their non-binding nature with regard to other parties before 

the courts, could not in one sense be called law. 

In Congress, they are not immune from this criticism. In a case 

cited by our witnesses, the Seventh Circuit proclaimed that ‘‘the 

idea of secret laws is repugnant.’’ That case, however, did not deal 

with secret law at all. Instead, the plaintiff in that case was arguing that a properly enacted statute passed by both Houses of Congress and signed into law by the President was too inaccessible to 

him to be fairly considered binding. 

The court concluded that the statute at issue was not secret, and 

that Congress has no duty to take measures to delay a statute’s applicability long enough for its content to be widely disseminated. 

Finally, as our witnesses today will discuss at length, there are 

many individuals who criticize the executive branch for promulgating supposedly secret law, particularly certain memorandum 

prepared by the Department of Justice’s Office of Legal Counsel. 

I’m not convinced that these memoranda, however, can truly be 

considered secret law as our courts have understood that term. The 

D.C. Circuit’s 1971 opinion on secret law distinguished ‘‘the ideas 

and theories which go into making the law’’ from ‘‘the law itself’’, 

suggesting that the latter, but not the former, must always be 

made available to the public. 

OLC’s legal opinions are the ideas and theories which go into the 

making of the law and they do not affect the public directly in the 

ways that other agency guidance or interpretations may. Rather, 

the White House and executive agencies use OLC’s opinions to determine whether their proposed policies comply with the law. his 

is a vital function within the executive branch, one that sometimes 

requires that those opinions be kept confidential. 

5 

Regardless, I believe—and I think our witnesses will agree—that 

there are circumstances in which our natural inclination towards 

openness in all branches of government must be tempered by other 

considerations. We must take care to value, of course, our national 

security. We must also be sensitive to the reality that information 

we make available to the public also becomes available to those 

who would do us harm. 

We must promote, to the extent practicable, executive agencies’ 

unfettered access to legal opinions on their proposed policies without fear that ill-advised, and therefore rejected, policies will become 

public. We must respect not only the essential checks and balances 

that our constitutional system provides, but also the privileges that 

it affords to each branch of our Federal Government, including, 

however unpopular at the moment, the executive privilege. 

I’d like to thank our witnesses for taking the time to appear before our subcommittee. I recognize that service as a witness requires a significant commitment of time and effort and a sharing 

of your expertise. It requires commitment both in research and in 

preparing written testimony, traveling here, and appearing in person before the Senate. So, I appreciate very much your input and 

your thoughts. I look forward to it. 

I appreciate the hearing, Mr. Chairman. 

Chairman FEINGOLD. Thank you, Senator Brownback. 

We’ll now turn to our witnesses. Will the witnesses please stand? 

Would you all please raise your right hand to be sworn? 

[Whereupon, the witnesses were duly sworn.] 

Chairman FEINGOLD. I thank the witnesses. You may be seated. 

I want to welcome you and thank you for being here with us this 

morning. I ask that you each limit your remarks to 5 minutes, as 

we have a full panel today and we need to finish up in time for 

the joint session at 11. Your full written statements will, of course, 

be included in the record. 

We’ll begin today with John Elwood. Mr. Elwood serves as Deputy Assistant Attorney General in the Justice Department’s Office 

of Legal Counsel. He previously served in the Department as Assistant to the Solicitor General and as an attorney in the Criminal 

Division. 

Before you start, Mr. Elwood, I want to mention that the Department of Justice and the Office of the Director of National Intelligence informed my office yesterday evening that the administration plans to give the Senate Intelligence Committee limited access 

to Office of Legal Counsel memoranda related to the CIA’s interrogation program. We were also informed that parts of some memos 

may be made available to the Judiciary Committee. 

Certainly some access is better than no access, but that’s about 

the best thing I can say about this arrangement. First, it took 

years to get this far. During that time, the Attorney General refused to even talk to the Intelligence Committee about the legal 

basis for the interrogation program, which I strongly oppose on 

legal, moral, and national security grounds. And now, the access 

that is being granted comes with strings that will make it difficult 

for the committees to make use of this information. I understand 

that the Intelligence Committee members will not actually be given 

6 

the memos to allow for a thorough review, and the conditions of access for the Judiciary Committee remain unclear. 

So while I appreciate that there has been some movement here, 

I don’t think there’s any way that we can say that Congress is 

being provided what it needs with respect to these memos. And 

none of this, of course, provides the public with any information 

about how the executive branch interprets the law governing torture. 

So having said that, Mr. Elwood, I will have some questions for 

you about this, but I would like you to now proceed with your testimony. 

STATEMENT OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT 

OF JUSTICE, WASHINGTON, D.C. 

Mr. ELWOOD. Thank you, Mr. Chairman, Ranking Member 

Brownback, and members of the subcommittee for giving me the 

opportunity to discuss how the Office of Legal Counsel works to 

balance the values of transparency, accountability, and the confidentiality that is essential to the provision of candid legal advice. 

The Department of Justice shares the Subcommittee’s interest in 

ensuring that our government works in as transparent and accountable a manner as possible. Indeed, our Office regularly publishes opinions that address issues of interest to the executive 

branch, to Congress, and to the public, and our approach to publication is consistent with that of prior Administrations. 

At the same time, administrations of both parties have recognized that policymakers within the executive branch, like any decisionmaker, sometimes need to consult with attorneys within the 

confidential bounds of the attorney/client relationship. For 54 

years, OLC has assisted the Attorney General in his role as legal 

adviser to the President and executive agencies. Confidentiality is 

critical in performing that role as legal adviser to ensure that officials will be willing to seek our advice at precisely those critical 

times when it is most needed, and to ensure that our legal advice 

is candid. 

There are, thus, times when the national interest requires that 

OLC advice remain confidential. There also are times when OLC 

must provide advice on matters that other agencies and offices 

have classified, for OLC lacks original classification authority. 

Under such circumstances, our confidential legal opinions themselves cannot be made public, at least for a time. But this does not 

mean that our confidential legal advice in any sense constitutes 

‘‘secret law’’ governing the lives of Americans. First, OLC does not 

make law in the same sense that Congress or the courts do. It is 

true that OLC opinions ordinarily are controlling within the executive branch on questions of law. 

While OLC’s legal advice may inform its clients’ policy decisions, 

its legal advice rarely, if ever, compels the adoption of any particular policy. Rather, it remains up to the policymakers to decide 

whether, and how, to act. OLC, thus, lacks the ability to affect private parties directly, and its legal views are not binding on the legislative branch, the courts, or the general public. 

7 

Second, even when the documents communicating our legal advice to the client remain confidential, that does not mean that a 

policy’s basis in law is secret. If officials adopt a policy that OLC 

has declared legally permissible, the policy will be public unless it 

is classified, and appropriate officials may be called upon to explain 

the policy, including its basis in law. Classified activities are, of 

course, subject to review by the Intelligence Committees. 

In this manner the Department has provided Members of Congress and committees with an explanation of its position on legal 

issues of interest to Congress, while preserving the confidentiality 

of legal advice on that issue from OLC to an executive branch client. The Department has done so in meetings, in conversations, in 

briefings, testimony, letters, questions for the record, and in more 

substantial documents such as the 42-page white paper providing 

the Department’s legal position on the NSA activities described by 

the President in December 2005. 

In recent months, the executive branch has even made copies of 

confidential OLC opinions available to Members of Congress, including highly classified opinions, as the Chairman mentioned this 

morning. While such steps are extraordinary, the Department is 

committed to working with Congress to find appropriate ways to 

keep Congress well informed about the basis in law for executive 

branch policies. 

OLC recognizes the value of openness in government, which promotes public confidence that the Government is making its decisions through a process of careful and thoughtful reasoning. By 

publishing OLC opinions when possible and by making concerted 

efforts to accommodate congressional requests for information, we 

strive to balance the values of transparency and accountability, 

while maintaining the confidentiality that is necessary to performing our historic function—providing reasoned and objective 

legal advice. 

I thank the Subcommittee for the opportunity to testify, and 

would be happy to take any questions you may have. 

Chairman FEINGOLD. Thank you, Mr. Elwood. 

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

for the record.] 

Chairman FEINGOLD. Our next witness is Professor Dawn 

Johnsen. Professor Johnsen is Professor of Law at the Indiana University School of Law–Bloomington, where she teaches and writes 

about issues of constitutional law, and especially about presidential 

power. 

During the Clinton administration she served in the Office of 

Legal Counsel, first as Deputy Assistant Attorney General and 

then as Acting Assistant Attorney General from 1996 to 1998. 

Professor, thank you very much for taking time out of what I 

know is a very busy schedule to be here. You may begin. 

STATEMENT OF DAWN E. JOHNSEN, PROFESSOR, INDIANA 

UNIVERSITY SCHOOL OF LAW–BLOOMINGTON, FORMER ACTING ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF 

LEGAL COUNSEL, BLOOMINGTON, INDIANA 

Ms. JOHNSEN. Thank you, Mr. Chairman and Senator 

Brownback. My written testimony submitted for the record genVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
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erally discusses the harm of secret law, and especially the role of 

OLC, where I served for 5 years. 

I do want to mention, I think secret law is an appropriate term 

for at least some OLC opinions because they do profoundly affect 

the lives of private persons. 

I would like, now, though, to address one aspect of the Bush administration’s secret law that I believe most profoundly threatens 

the rule of law and democratic accountability, and that is OLC’s 

practice of issuing secret legal opinions that essentially tell the 

President that he has the constitutional authority to violate statutes. 

Mr. Elwood, not surprisingly, did not focus on this precise question. He talked more generally about the need for secrecy in some 

instances. Clearly, the executive branch must protect some national 

security information, and also some OLC opinions must remain 

confidential and secret. That is beyond serious dispute, and I’d be 

happy to answer questions about the details of that. 

But that is not what fundamentally brings us here today. The 

more pointed question is, may OLC issue binding legal opinions 

that in essence tell the President and the executive branch that 

they need not comply with existing laws, and then not share those 

opinions with Congress and the American people? I would submit 

that, clearly in our constitutional democracy, the answer to that 

question must be no. 

There are at least two major problems with much of OLC’s legal 

advice regarding counterterrorism measures, and I’d like to say a 

few words about each of these two. 

First, on many occasions OLC wrongly advised the executive 

branch that it did not need to comply with existing legal restrictions. The basis for that flawed advice was an extreme and plainly 

erroneous view of the President’s constitutional powers. For example, the March 14, 2003 OLC opinion released last month 

sweepingly declared, ‘‘Congress has no authority to regulate the 

President’s ability to detain and interrogate enemy combatants, or 

to try them before military commissions.’’ 

Many commentators, including Jack Goldsmith, who served at 

the Bush administration’s OLC, have detailed why this view of 

presidential power beyond Congress’s control is clearly and dangerously wrong. 

Problem two. OLC kept their profoundly flawed legal interpretations secret, which made it impossible for there to be any public debate, or scrutiny, or remedy of these extreme legal views, or the 

government’s actions in many cases that were taken based on these 

views, actions that of course included electronic surveillance here 

in the United States without complying with FISA’s court order requirements, the use of extreme interrogation methods including 

waterboarding in violation of legal prohibitions, indefinite detention of people at Guantanamo Bay and secret prisons abroad. 

As this Subcommittee well knows, in some cases Congress and 

the public did not even learn about these violations of laws for 

years, and only then after leaks, in many cases. The Bush administration continues to withhold many legal opinions and forces Congress essentially to legislate in the dark. 

9 

So this combination of the claimed authority not to comply with 

the law and to do so secretly, it’s a terrible abuse of power without 

limits and without checks, and it clearly is antithetical to our constitutional democracy. 

I’ve appended to my written testimony a document entitled 

‘‘Principles to Guide the Office of Legal Counsel’’, which I co-authored in 2004 with 18 other former OLC lawyers in response to 

the first leaked OLC torture opinion. Among the 10 principles, 

which were built on longstanding best practices at OLC, is a call 

for OLC to publicly disclose its written legal opinions in a timely 

manner, absent strong reason for delay and non-disclosure. The 

principles explained that this will help deter excessive claims of executive authority. 

I’m going to read just one other of the principles: ‘‘Absent the 

most compelling need for secrecy, any time the executive branch 

disregards a Federal statutory requirement it should publicly release a clear statement explaining the deviation.’’ 

Congress actually already has enacted legislation requiring the 

executive branch to notify it if it declines to enforce or defend a 

statute on constitutional grounds. The Bush administration has 

evaded this by claiming it is simply interpreting statutes to avoid 

constitutional problems. I would recommend one statutory change 

which I have described in greater detail in my written testimony. 

Congress should add a requirement that the executive branch report any time it interprets a statute to avoid a constitutional problem, as well as when it admits that it is actually refusing to enforce 

the statute. 

I’m going to close by thanking the Subcommittee for its work upholding the Constitution and holding the Government accountable. 

[Applause]. 

Chairman FEINGOLD. Thank you for your testimony. 

[The prepared statement of Professor Johnsen appears as a submission for the record.] 

Our next witness is Bradford Berenson. Mr. Berenson served as 

Associate Counsel to President George W. Bush from 2001 to 2003. 

He’s now a partner in the Washington office of Sidley Austin, and 

a frequent witness before the Judiciary Committee. 

Mr. Berenson, we’re glad to have you back. You may proceed. 

STATEMENT OF BRADFORD A. BERENSON, PARTNER, SIDLEY 

AUSTIN, LLP, WASHINGTON, D.C. 

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

Member Brownback, and other members of the Subcommittee for 

the opportunity to appear. 

I would like to start where Ranking Member Brownback started, 

which is with the question whether what we’re really discussing 

here this morning is secret law at all in the way that most Americans watching this hearing would understand that term. 

I don’t think that it is. It doesn’t mean that the issue isn’t serious, it doesn’t mean that there can’t be problems or haven’t been 

abuses that are worth discussing. But the kinds of things we’re 

talking about, FISA Court opinions that interpret the FISA statute, 

Executive orders, OLC opinions, those are not sources of law that 

regulate the primary conduct of private citizens. They are all funVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
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damentally sources of law that regulate the conduct of the executive branch itself. Again, that doesn’t mean they aren’t important, 

but it means that the issues of democratic accountability that are 

on the table today have to be seen in a somewhat different light. 

In particular, it means that we have to distinguish between what 

we make public and what we give Congress access to. I think in 

general terms it is far more important in some of these areas 

where we may be dealing with classified activities and classified information to ensure accountability through having access in the 

Congress to the internal executive branch law. Where Congress 

does have legislative authority and responsibilities, then those 

sources of law which govern internal executive branch activities 

should be made available to the Congress. Obviously there’s a 

value in all instances of making information available to the general public. You can stimulate debate and criticism and discussion, 

all of which does tend to produce more thoughtful and more accurate decision-making. 

But as regards the general public, there are important countervailing considerations that I think everybody here would acknowledge. In general, executive branch law that is not made public, generally public, is not made generally public for one of two reasons. 

Either that’s because it threatens harm to the national security of 

the country—that’s essentially the classification issue—or because 

it involves confidential advice, legal or otherwise, provided to the 

President about how to discharge his constitutional responsibilities. 

Some scope for receiving confidential advice is clearly essential to 

the proper functioning of that office no matter who occupies it, and 

I don’t think that’s terribly controversial, either. 

Let’s take the example of FISA Court rulings for a moment. The 

FISA Court engages in a classic judicial activity and it interprets 

a statute of Congress, the Foreign Intelligence Surveillance Act. I 

think it’s important for Congress to understand how that Act is 

being interpreted, but because that Act only guides government 

agents in how they conduct themselves and sets the limits on what 

they can do in highly classified areas of foreign intelligence, I think 

the broader public interest in seeing those rulings, certainly to the 

extent that they might disclose or hint at what is actually being 

done in the foreign intelligence surveillance realm, is outweighed 

by the needs of national security. 

So long as Congress can understand what the court is saying so 

that it can make legislative adjustments that it deems appropriate, 

I think the public interest is largely protected there, and that 

should occur through the mechanism established by the National 

Security Act of 1947, through the oversight of the Intelligence Committees. 

I will say that I agree with Professor Johnsen on her central criticism. I think there is an important interest in safeguarding 

against abuse by making sure that when the executive branch 

reaches a conclusion that a statute of Congress is unconstitutional 

as applied to a particular course of conduct, or even when it thinks 

the constitutional question is so serious that it will strain hard to 

interpret a statute to avoid it, there is a legitimate and strong interest on the part of the Congress in knowing about that. 

11 

Again, I’m not sure the public has quite the same interest because sometimes—particularly if this is occurring in the defense or 

intelligence realm—the very existence of the legal interpretation, 

and certainly the nature of it, can disclose what we are doing. But 

I’m generally supportive of the notion that the executive branch 

should be transparent with the Congress, at least the appropriate 

committees of the Congress, when circumstances like that arise. 

Thank you very much for the opportunity to share my views, and 

I look forward to answering any questions you may have. 

Chairman FEINGOLD. Thank you very much, Mr. Berenson. 

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

Chairman FEINGOLD. Our next witness is J. William Leonard. 

Mr. Leonard recently retired after 34 years of Federal service. Between 2002 and 2007, he served as Director of the Information Security Oversight Office, where he was responsible for oversight of 

classification policy throughout the executive branch. In 2002, the 

President conferred upon Mr. Leonard the rank of Meritorious Executive. 

Mr. Leonard, we’re delighted to have you here and we thank you 

for your long and fruitful government service. You may proceed. 

STATEMENT OF J. WILLIAM LEONARD, FORMER DIRECTOR, 

INFORMATION SECURITY OVERSIGHT OFFICE, LEONARDTOWN, MARYLAND 

Mr. LEONARD. Thank you, Mr. Chairman, Senator Brownback. 

I’d just like to open by addressing one point that my colleague, 

Mr. Berenson, made with respect to FISA Court opinions and the 

fact that they only regulate the conduct of the executive. I think 

such opinions are a classic example. When you think about the significant surveillance capability that this government has, I think 

it’s of profound interest to any American to know to what extent, 

and under what circumstances, he or she may in fact be subject to 

Government surveillance. I think such opinions are a classic example of how even internal regulations are of profound interest to 

Americans. 

I’d like to focus most of my attention this morning on the OLC 

memorandum that was released earlier this month, because when 

it was released I was profoundly disappointed because I believe it 

represents one of the worst abuses of the classification system that 

I have seen. This memorandum is pure legal analysis. It is not 

operational in nature. Its contents give no advantage to the enemy. 

To learn that such a document was classified had the same effect 

on me as waking up one morning and learning that, after all these 

years, there was a secret article to the Constitution that the American people somehow didn’t know about. 

Whoever, affixed classification markings to this document had either profound ignorance of, or deep contempt for, the process set 

forth by the President in which he delegates to certain Government 

officials his authority to restrict dissemination of information in the 

interest of national security. The classification of this memo is 

wrong on so many levels, and I provide specific details in my prepared written testimony. 

12 

What is equally disturbing is that this memo was not some obscure document written by a low-level bureaucrat who did not 

know any better and had inadequate supervision. Rather, the 

memo was written by the Deputy of the OLC, the very entity which 

has the responsibility to render interpretations of all Executive orders, to include the governing order that distinguishes between the 

proper and improper classification of information. 

The effects of inappropriately classifying the OLC memo are visible to all. Use of classification in this instance is a prime example 

of how classification is used not for purposes of national security, 

but rather as a bureaucratic weapon to blunt potential opposition. 

Reportedly, top lawyers for the military services did not receive a 

final copy of the OLC memo, in part because they opposed the 

harsh interrogation techniques endorsed in the memo, as well as 

the lack of transparency about how we handle enemy combatants, 

all out of concern for our own men and women sent into combat; 

again, another example of how the American people are directly 

impacted by these types of decisions. 

The OLC memorandum is but one example of an issue with respect to the balance of constitutional powers. It’s long been recognized that the President must have the ability to interpret and define his constitutional authorities, and at times to act unilaterally. 

The limits of the President’s authority to act unilaterally are defined by the willingness and the ability of the Congress and the 

courts to constrain it. Of course, before the Congress or the courts 

can constrain presidential claims they must first be aware of those 

claims. Yet, a long-recognized power of the President is to classify, 

and thus restrict, the dissemination of information in the interest 

of national security. 

The combination of those two powers of the President—that is, 

when the President lays claim to power to act unilaterally, but does 

so in secret—can equate to the very open-ended executive authority 

that the Constitution’s framers sought to avoid in constructing a 

system of checks and balances. 

Added to this is the reality that the President is not irrevocably 

bound by his own Executive orders, and this administration claims 

the President can depart from the terms of an Executive order 

without public notice. Thus, at least in theory, the President could 

authorize the classification of the OLC memo, even though to do so 

would violate the standards of his own governing Executive order. 

Equally possible, the President could change his order governing 

secrecy and do so in secret, all unbeknownst to the Congress and 

the courts. It’s as if Lewis Carroll, George Orwell, and Franz Kafka 

jointly conspired to come up with the ultimate recipe for unchecked 

Executive power. 

There are, I believe, a number of tools at the disposal of Congress to address this issue. In my prepared written testimony I 

make suggestions with respect to how Congress can leverage agency Inspectors General, as well as the Public Interest Declassification Board, in ferreting out similar abuses of the classification system. I also make other recommendations with respect to enhancing 

transparency in this area. 

13 

I appreciate the opportunity to provide my perspective on this 

issue and look forward to any questions or comments the members 

of the Subcommittee may have. 

Thank you. 

Chairman FEINGOLD. Thank you so much, Mr. Leonard. 

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

for the record.] 

Chairman FEINGOLD. Our next witness is David Rivkin. Mr. 

Rivkin served in a variety of legal and policy positions in the administrations of Ronald Reagan and George H.W. Bush, including 

positions at the White House Counsel’s Office, the Office of the Vice 

President, the Department of Justice, and the Department of Energy. 

He’s currently a partner in the Washington office of Baker 

Hostetler, LLP. He has also appeared before the Judiciary Committee before, and we thank him for taking time to be with us this 

morning. 

Mr. Rivkin, you may proceed. 

STATEMENT OF DAVID B. RIVKIN, PARTNER, BAKER 

HOSTETLER, WASHINGTON, D.C. 

Mr. RIVKIN. Chairman Feingold, Ranking Member Brownback, 

Senator Whitehouse. I am glad to meet with you this morning. I 

want to spend just a few minutes putting the issue we are discussing today, the so-called secret law, in its proper legal and policy context. 

I think we all agree that the United States finds itself today committed to a difficult and protracted military, ideological, economic 

conflict with a very difficult enemy, typified by such groups as al 

Qaeda and the Taliban. We obviously did not seek this conflict, but 

this is a conflict we must prosecute well and win. 

To do so, it is essential that the U.S. Government act within the 

proper legal paradigm. Indeed, contrary to what many people believe, war is not a domain of pure violence but is one of the most 

rule-driven human activities. 

In this context and September 11, the Bush administration has 

embarked on a concerted effort to resolve many difficult issues of 

both international and domestic law raised by this conflict. These 

issues include the applicability of the 1949 Geneva Conventions to 

the complex al Qaeda and Taliban, rules governing collection of 

electronic intelligence and other types of intelligence, and a whole 

host of other issues. 

Much of this analysis was originally classified. In my view, this 

is neither inappropriate nor unprecedented. The issues of attorney/ 

client privilege and executive privilege aside, keeping this material 

secret from the enemy is, and remains, a vital necessity. 

Much of the legal analysis prepared by the administration was 

either based upon sensitive factual information, but did not contain 

the facts by establishing what are the parameters for future administration behavior. It certainly would reveal how the U.S. Government would operate in certain circumstances, and therefore was 

very important to keep it secret. 

Now, I realize that a number of the administration’s legal positions, as they become publicly known as a result of leaks to the 

14 

media or declassification decisions, have attracted considerable criticism, some of which we heard this morning and many other times 

in the past, and I’m sure in the future. 

I want to submit to you the questions that the administration’s 

lawyers have sought to address, particularly dealing with issues 

governing the interrogation of captured enemy combatants, uncomfortable and difficult issues that do not mesh well with our 21st 

century sensibilities. 

Many legal conclusions have struck many people as excessively 

harsh. Some of them, of course, have been watered down or amended as a result of internal administration debate or as a result of 

public and political pressure brought to bear upon the administration. 

While I don’t concur with every single aspect of the administration’s post-September 11 wartime policies, I would vigorously defend the exercise of asking difficult legal questions and trying to 

work through them. To me, the fact that this exercise was undertaken at all attests actually to the vigor and strength of our democracy and the administration’s commitment to rule of law, even in 

the most serious circumstances. In this regard, I want to point out 

that few of our democratic allies have ever engaged in so probing 

and searching illegal exegesis more times. Let me just briefly mention that I happen to do a fair amount of these type of debates with 

European friends. For example, whenever I ask our British friends, 

who of course face, in my opinion, a far less existentialist threat 

in dealing with IRA, the extent to which their interrogation, detention, and other policies had been predicated upon a concerted effort 

to obtain legal advice. The answer I get is, we did not do nearly 

as much of that. 

I would also strongly defend the overarching legal framework 

chosen by the administration. In fact, I think the critics’ rejection 

of this overarching legal framework, which is properly found in the 

laws of war paradigm, is the basis for so much of the criticism we 

hear today. 

Let me stop the rest of my prepared remarks and just point out 

one thing, with all due respect to Professor Johnsen. The proposition that the President has both a right—indeed, an obligation— 

to disregard constitutional statutes is certainly not an old one. In 

fact, if you look at OLC jurisprudence, probably the best work done 

in this area is done by none other than Walter Dillinger during the 

Clinton administration tenure, and I would certainly commend everybody to that opinion. 

Let me also point out that it is absolutely true that whenever an 

administration believes that a particular congressional enactment 

is unconstitutional either in whole or in part, it should say so. I 

somewhat chuckle when I hear this observation, because of course 

typically the administration has done that in the content of a signing statement. As some of you undoubtedly know, that practice has 

also been somewhat controversial, so it’s somewhat difficult for me 

to figure out exactly how the President can convey, without arousing criticism from you, that a particular statutory enactment is unconstitutional. 

Thank you very much for your time, and I’ll look forward to answering your questions. 

15 

Chairman FEINGOLD. Thank you, sir. 

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

for the record.] 

Chairman FEINGOLD. Our next witness is Professor Heidi 

Kitrosser. Professor Kitrosser is an Associate Professor at the University of Minnesota Law School. She’s a scholar of constitutional 

law who has written extensively on the separation of powers, government secrecy, and free speech. 

Professor, I appreciate your coming to D.C. today to give us your 

testimony, and you may proceed. 

STATEMENT OF HEIDI KITROSSER, ASSOCIATE PROFESSOR 

OF LAW UNIVERSITY OF MINNESOTA LAW SCHOOL, MINNEAPOLIS, MINNESOTA 

Ms. KITROSSER. Thank you, Chairman Feingold, Ranking Member Brownback, Senator Whitehouse. Thank you very much for inviting me to testify on secret law and the threat that it poses to 

democratic and accountable government. My testimony will consider the light that constitutional law sheds on the topic. 

I do want to start, first, though, by echoing the point made by 

both Professor Johnsen and Mr. Leonard, that indeed, secret law, 

I think, is a very appropriate characterization of the types of decisions and materials that we’re addressing here in this hearing as 

opposed to routine legal or administrative advice or discussion. 

Rather, the types of decisions that we’re addressing here, whether in the form of secret OLC memoranda or in the form of secret 

Executive orders, are decisions that establish Government policy of 

the executive branch that impact countless individuals, such as, for 

example, decisions to circumvent existing limitations on surveillance of American citizens, and in particular where this is done in 

circumvention of existing publicly known law that the public has 

every reason to believe is being followed. It is particularly important that this replacement of existing law be out in the open. So 

when openness is not adhered to in this context, I think it is quite 

appropriate to characterize what is occurring as secret law. 

All right. With that in mind, I wish to make two main points 

today, again, about the light the constitutional law sheds on this 

topic. First, the text, structure, and history of the Constitution reflect a brilliant design that reconciles the dangers of Government 

secrecy with the occasional need for secrecy. 

Under the Constitution, policy decisions—again, the types of decisions we’re talking about today as opposed to routine legal advice—presumptively are transparent in nature, but the executive 

branch retains some limited leeway to implement those transparent policies in secret. 

Furthermore, the Constitution gives us structural mechanisms, 

such as Congress’s oversight capacity, to check even secret implementation of transparent policies to ensure that it does not cloak 

circumvention of the law—again, to oversee the distinction between 

implementation and policymaking is being observed. 

Second, over the past several years we have seen a disturbing 

trend whereby the executive branch has taken its structural capacities to secretly implement law and abuse them to secretly make 

new law and to circumvent established law. The damage of this 

16 

trend is exacerbated by the fact that the executive branch has circumvented not only substantive law, but also procedural law such 

as statutory mandates to share information with Congress. 

On the first point of constitutional design, we see a careful balance between secrecy’s virtues and its risks in the Constitution’s 

text and structure. Specifically, we see a negative correlation in the 

Constitution between the relative openness of each political branch 

and the relative control that each branch has over the other. Congress is relatively transparent and dialogue-driven. The executive 

branch, in contrast, is structurally capable of much secrecy, but 

also is largely beholden to legislative directives. Thus, the executive branch again can be given leeway to operate in secret, but remains subject to being overseen or otherwise restrained in its secrecy by the legislature. 

Looking at history, we see an understanding by the Founders 

that such a balance would, indeed, be struck. Among the President’s claimed virtues was a structural capacity for secrecy, yet it 

was equally crucial to the Founders that the President would be 

constrained through legislation, oversight, and other means. 

As Alexander Hamilton put it, one person ‘‘will be more narrowly 

watched and most readily suspected.’’ In short then, the Constitution reconciles competing needs for openness and secrecy by giving 

us an executive branch that has the structural capacity to keep secrets but that must operate within policy parameters that are 

themselves transparent and subject to revision. 

On the second point as to recent events, we increasingly see a 

dangerous breakdown in the structure. For example, as was alluded to earlier, we know now that for years the administration relied on a series of secret Executive orders and secret legal opinions, 

many of which to this day remain classified, in order to run secret 

surveillance and interrogation programs. Furthermore, the existence of these programs was made possible in part by the additional 

circumvention of statutory disclosure mandates by the executive to 

Congress. 

Finally, let me end by noting that these events turn the constitutional structure upside down, seizing for the executive branch the 

power not only to legislate, but to create secret alternate legislative 

regimes. The only thing that could make matters worse would be 

for such events to become normalized in the eyes of Americans. I 

fear that we have already started down this road and I urge Congress to use its substantial constitutional powers of legislation and 

oversight to make clear to the executive branch and to all Americans that secret law has no place in our constitutional system. 

Thank you very much. 

Chairman FEINGOLD. Thank you very much, Professor. 

[The prepared statement of Professor Kitrosser appears as a submission for the record.] 

Chairman FEINGOLD. Our last witness today is Steven Aftergood. 

Mr. Aftergood is a senior research analyst at the Federation of 

American Scientists, where he specializes in national security information and intelligence policies. He directs the FAS Project on 

Government Secrecy, and he writes and edits Secrecy News, an email newsletter and blog which is read by more than 13,000 subVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
17 

scribers in media, Government, and among the general public. He 

has won numerous awards for his work in this field. 

Mr. Aftergood, thank you for coming this morning. You may proceed. 

STATEMENT OF STEVEN AFTERGOOD, DIRECTOR, PROJECT 

ON GOVERNMENT SECRECY FEDERATION OF AMERICAN 

SCIENTISTS, WASHINGTON, D.C. 

Mr. AFTERGOOD. Thank you, Chairman Feingold, Ranking Member Brownback, and Senator Whitehouse. 

In October 2004, former Congressman Helen Chenoweth was attempting to board a United Airlines flight from Boise to Reno when 

she was pulled aside for additional security screening. She was told 

she needed to undergo a physical pat-down. Before doing so, she 

asked to see the TSA regulation that authorized such a procedure. 

She was told she could not see it because it is designated ‘‘sensitive 

security information’’ and could not be disclosed. She declined to 

submit to a pat-down under those circumstances and she was not 

permitted to board the aircraft. 

This is a scenario that has played out innumerable times since 

the Transportation Security Administration decided to withhold its 

security directives from public disclosure. It means that secret law 

is not just a metaphor, it is a reality of our time in the most literal 

sense. There are binding requirements that purport to regulate 

Americans’ conduct, but that cannot be examined or reviewed by 

them. I have attempted to catalog many of these categories of secret law in my written statement. 

One of those that has already been mentioned a couple of times 

is the secret opinions of the Foreign Intelligence Surveillance 

Court. As we all know, the court is charged with reviewing Government applications for electronic surveillance and physical search to 

ensure that they are consistent with the law. What is not as well 

known is that the court has repeatedly reinterpreted that law, yet 

its interpretations are secret. Of course, I would emphasize I’m 

talking about legal interpretations, not operational information. 

Everyone understands that there are sensitive operational considerations that have to be protected. 

What is harder to understand is how legal analysis and interpretation can be kept secret. But since it is secret, the current debate 

over whether, and how, to amend the Foreign Intelligence Surveillance Act is occurring in a significant vacuum and Americans’ own 

understanding of the law is obscured. If I travel abroad, are my 

communications protected from warrantless surveillance or not? 

It’s hard for me to get a definitive answer. Under what circumstances could my communications, my telephone calls abroad 

or my e-mails, be subject to interception? Again, it’s very hard to 

get a clear and complete answer. In this way, the rule of law is diminished. 

Now, if secret law produced wise, effective policy, then that 

would have to be weighed in its favor. But to our dismay, we have 

repeatedly seen that secret law actually distorts the decisionmaking process and it often produces bad policy that cannot stand 

the light of day. The clandestine endorsement of torture or coercive 

interrogation as official policy is proof of that. 

18 

The idea of secret law, courts have said, is repugnant. Thank you 

for holding this hearing to help shed some light on this repugnant 

phenomenon and for helping to keep it at bay. 

Last, I would say that I was glad to hear the news from Chairman Feingold that the administration has decided to yield a bit on 

disclosure of OLC memoranda on interrogation, but I was only a 

little bit pleased because it sounds like I’m not going to see them 

and it’s not clear that this Committee will either. 

I would observe that the flip side of secret law is tactical disclosure, that is where information is disclosed at a time and in a way 

that advances a particular policy agenda. That is not the way to 

conduct the affairs of the world’s greatest democracy, or any democracy. I hope that this Committee can help find a way to bring 

order to this practice in a way that serves the public interest. 

Thank you very much. 

Chairman FEINGOLD. Thank you very much, Mr. Aftergood, and 

all the witnesses. 

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

Chairman FEINGOLD. Before we start the questions, I want to 

briefly address the notion that an OLC memo is not what courts 

would consider secret law. The Supreme Court has held that ‘‘opinions and interpretations which embody the agency’s effective law 

and policy’’ must be disclosed precisely because it would be ‘‘secret 

law’’ not to do so. That definition clearly would cover some OLC 

opinions. 

Let me also comment on the notion that giving Congress information is sufficient to address some of these issues and the public 

can be kept in the dark. Members of Congress are representatives 

of the people. We need to, and should, give great consideration to 

the input of the public. Unless there are specific national security 

reasons to keep information private, we should always strive to 

give the public as much information as possible so that we can better do our job of representing them. 

We will now turn to questions for the witnesses. We’ll start with 

7-minute rounds. 

Mr. Elwood, in your written testimony, you argue that OLC 

doesn’t make ‘‘secret law’’ because its legal views are not binding 

on the legislative branch, the courts, or members of the general 

public. 

But OLC’s legal views are binding on the executive branch, and 

your statement, therefore, goes to the very heart of the problem: 

the complete absence of checks and balances when the executive 

branch makes law in secret. 

By saying that OLC’s legal views are not binding on the legislative branch, you acknowledge that Congress can override, through 

legislation, the otherwise binding legal interpretation of OLC. But 

Mr. Elwood, Congress can’t exercise that prerogative if it doesn’t 

know what OLC’s interpretation is, can it? 

Mr. ELWOOD. Two things. First of all, I’d like to—well, I will address the second question first, because that’s the most recent. Just 

because we don’t turn over our communications to our client embodying our views doesn’t mean that you can’t know what our position on the law is. Whenever a policy is adopted—and this is the 

19 

reason why OLC opinions aren’t law because they don’t become law 

until some agency decides to choose among the various legal possibilities and say this is the policy we’re going to adopt. At that point 

when it starts operating on the public, I think you can reasonably 

call that law. 

But once it becomes public like that, you can ask us all day long 

for what our legal position is on the matter. The only thing that 

we think there’s a confidentiality interest is in the deliberative 

communication to the client of what that law is. So to choose any 

example you want for a public policy, you could say, why are you 

adopting this policy? An appropriate witness can come up or we 

can write you a letter and say, this is the basis in law for that position. That’s how Congress can legislate. 

Chairman FEINGOLD. I understand what you’re saying, but I’ve 

been a legislator for 26 years. Simply being given a general policy 

position, as opposed to knowing exactly what the rationale is, 

makes it very difficult to legislate. It makes it extremely difficult 

to anticipate exactly what we need to say in the law in order to 

make sure the Executive doesn’t try again to resist it. 

Mr. Elwood, you’ve testified that ‘‘we remain committed to working with Congress to find appropriate ways to keep Congress wellinformed about the basis in law for executive branch policies.’’ In 

fact, until now, the administration has refused to share with Congress OLC opinions on the CIA’s interrogation program. When I 

asked Attorney General Mukasey if he would brief the Intelligence 

Committee behind closed doors on the legal justification for the 

program, he refused on the ground that the OLC memos spoke for 

themselves, even though we were not allowed to see them. That 

was where things stood for years, which doesn’t strike me as demonstrating a commitment to keeping Congress well-informed. 

As of yesterday, as we talked about, the administration has now 

decided to provide the Intelligence Committee with limited access 

to these opinions. As I’ve indicated, this is certainly too late, and 

from what I understand too little, as well. But I would like to ask 

some follow-up questions with regard to this. 

Will the interrogation memos that you’ll be providing the Intelligence Committee include all the memos on interrogation, including those that are currently in effect and those that are no longer 

in effect? 

Mr. ELWOOD. It’s my understanding that the memoranda that 

are going to be provided to the Intelligence Committee are going 

to be unredacted copies of all the memos, both in effect and those 

no longer in effect. That’s correct. 

If I might, I was not involved in briefing the Intelligence Committees earlier, but it was my understanding that they were—although they were not provided with copies of the opinions, that 

they were briefed on the legal basis for the policies, both of the Intelligence Committees, and Mr. Bradbury testified in front of House 

Judiciary on the legal basis for the current interrogation policies. 

Certainly it is my understanding that we wish to provide you an 

understanding of our basis in law for all of these positions. So I 

would just say, at the risk of irritating my colleagues who actually 

provide these briefings, just keep asking. 

20 

Chairman FEINGOLD. Okay. And can you confirm that if there 

are any new OLC memos that supersede the memos you’re making 

available, that they, too, will be provided to Congress as soon as 

they go into effect? 

Mr. ELWOOD. It’s my understanding that the Intelligence Committees are going to get all of the opinions on interrogation. 

Chairman FEINGOLD. And going forward? 

Mr. ELWOOD. That is something I simply don’t know one way or 

the other. The only thing I know of is what was said yesterday. 

Chairman FEINGOLD. All right. 

Now, will all these memos we’re discussing be made available to 

the Judiciary Committee? 

Mr. ELWOOD. I understand that those discussions are still ongoing, but we are seriously committed to making an accommodation 

that will get the Judiciary Committee the information it needs. 

Chairman FEINGOLD. In the same form or in a redacted form? 

Mr. ELWOOD. I believe that—well, I think this is still the subject 

of negotiation, so I’m not prepared to say anything further other 

than the fact that they are very interested in working something 

out. 

Chairman FEINGOLD. All right. We’ll have to take a close look at 

any proposed redactions to make sure that this Committee has 

what it needs to evaluate the legal issues. 

Will you agree to make these memos public, with appropriate 

redactions to protect sensitive information about specific operational details? 

Mr. ELWOOD. Senator, I’m not in a position to say one way or the 

other. It’s really not up to me. But our main goal right at the moment is to make sure that Congress has the information that it 

needs to be apprised of our policies, as you say, so it can legislate. 

Chairman FEINGOLD. I will certainly be engaged, as will I think 

some of my colleagues, in getting as much appropriate public access as possible. 

Going back to your testimony that OLC’s legal views are not 

binding on the courts, it is reassuring that you admit that a court’s 

interpretation of the law would trump the interpretation of the executive branch. I think I’d be a little more reassured, though, if the 

Administration weren’t simultaneously arguing that the courts 

aren’t allowed to decide many of these issues because it would require the disclosure of ‘‘state secrets.’’ 

A court can’t override the executive branch’s legal interpretation 

of, for example, its wiretapping authority if the court is prevented 

from deciding the case, can it? 

Mr. ELWOOD. Senator, I think that the way the Government’s 

wiretapping authority would be decided would be in courts that 

issue wiretap warrants. Civil suits, it’s a different matter. Where 

the state secrets privilege is asserted is in civil litigation, which 

doesn’t directly involve wiretapping. It only does through imposition of damages, I would imagine. I’m not involved in state secrets 

practice. That’s principally handled by the Civil Division. I know 

that Carl Nichols has testified on that. But I would simply want 

to note that all we can do, all the executive branch can do, is make 

our position known to the courts that certain material is state seVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
21 

crets, and it’s up to the judiciary to decide whether or not they 

agree. 

Chairman FEINGOLD. Mr. Elwood, thank you for your answers to 

my first round of questions. 

Now we’ll turn for a round to Senator Brownback. 

Senator BROWNBACK. Thank you, Mr. Chairman. Thank you to 

the panel. I appreciate the discussion. 

In starting on a premise of this, as a recovering lawyer like the 

Chairman, some of this I look at and I think, I want the administration asking a whole bunch of legal questions all the time. I want 

them asking these questions a lot. I want them asking lawyers and 

various agencies and branches a lot of various ways and avenues. 

My guess is that if we get into a very tight practice of, all legal 

opinions have to be disclosed—and I know none of you are saying 

all legal opinions have to be disclosed, but you’re pushing that a 

lot more of them be disclosed—that there’d be a tendency to ask 

a lot less legal questions. People would say, well, let’s not ask because if we do then this sort of information has to be disclosed, or 

we’re going to get in some gray category and then we’re going to 

get some committee asking us questions about this, so let’s just not 

ask the question. Maybe that doesn’t happen. My sense of it is that 

people generally practice in ways that they think are going to be 

least subject to criticism so that they just won’t ask questions. 

Maybe I’m off on that. That’s one premise that I think we need to 

be careful about in looking at this. 

Having said that, Mr. Berenson, you suggested at the end of your 

testimony there was a particular area here that you thought needed to be probed further in your agreement. I’d like for you to develop that particular area some more because I thought that was 

interesting, but I’m not sure I comprehended fully what you were 

discussing on that. 

Mr. BERENSON. Was this the moment when I was responding to 

Professor Johnsen’s suggestion about avenues for disclosure to the 

Congress? 

Senator BROWNBACK. Yes. 

Mr. BERENSON. I think it is obviously true that there are instances when statutes passed by Congress are unconstitutional. We 

see it every year in the Supreme Court. They can be unconstitutional for a variety of reasons, and rarely, but sometimes, a statute 

will transgress the President’s Article 2 powers that belong to him 

alone. So there are going to be circumstances in which it is perfectly legitimate for the executive branch to reach a constitutional 

conclusion that a statute, in some particular circumstance as applied, has gone too far and has restricted the President’s freedom 

of action in a way that is inconsistent with the constitutional design. 

When that happens, I agree that there is a serious danger of 

abuse and essentially self-aggrandizement by the Executive if the 

executive can reach that conclusion without apprising the coordinate branch of Government that passed the statute in the first 

place. 

There is already law on the books which suggests that when the 

Executive concludes that a statute is unconstitutional and/or decides not to defend it in court, the Executive needs to apprise the 

22 

Congress. I think that’s the right rule. Depending on circumstances, you may need to do that just with the Intelligence 

Committees, or in closed-door briefings if they would compromise 

operational information about intelligence or military activities. 

But the best practice, I think, is for the Executive to be transparent with the legislative branch when it reaches that conclusion. 

The difficulty arises when the Executive doesn’t forthrightly conclude ‘‘this is unconstitutional as applied to us’’, but rather says 

this might be unconstitutional. It’s so close to being unconstitutional that we’re going to interpret the statute in another way. 

That doesn’t fall within the ambit of the existing law, but it is 

evidence that the Executive has concluded that the statute might 

be, or could be, or probably would be unconstitutional. That’s 

where the gray area is. I think I agree with Professor Johnsen that 

even in those circumstances there should be some mechanism for 

inter-branch discussion so that there isn’t abuse. 

Senator BROWNBACK. So we should pas some sort of law addressing that particular area and requirement of disclosure for the legal 

opinion on which the basis of a constitutional question or probability of unconstitutionality exists? 

Mr. BERENSON. I think Professor Johnsen has probably thought 

a lot more deeply than I have about the precise mechanism, but I 

suspect that a few words added to the existing provision would be 

sufficient to accomplish that objective. 

Senator BROWNBACK. Professor Johnsen, I’m on limited time, but 

could you describe that narrow category for me? I’m sure you want 

to talk about a whole bunch of things, but I’ve got limited time. If 

you could, just hit that category. 

Ms. JOHNSEN. Yes, certainly. I’m very glad to hear Mr. Berenson 

agrees that would be helpful. The category arises because very 

often the Bush administration, in particular, rather than acknowledge that they are declining to comply with the statute outright, 

instead they say we will interpret the statute in a way that is not 

consistent with the statute’s plain meaning, because to construe it 

the way that it’s written would violate what the Bush administration views as the President’s constitutional authorities. 

So they say, it seems the statute says X, but we’ll interpret it to 

say Y, because if we say it says X as it seems to it would violate 

their view of the President’s sweeping constitutional authorities to 

act unilaterally. So that’s not captured by the existing reporting requirement, and I do think it could be changed with the addition of 

a sentence or so. 

Senator BROWNBACK. And your testimony has that particular 

provision thought through? It seems like, Mr. Berenson, it would 

be great if you could review that that they have in there and give 

the Committee some recommendations on this. 

Mr. Rivkin, just briefly, you have concerns, in the asymmetrical 

warfare that we’re in right now, on the impact of some of what is 

being suggested by some of the panel members, I take it. 

Mr. RIVKIN. I do, Senator Brownback. Very briefly, to me one of 

the biggest problems of the critics is that I have not heard any of 

them acknowledge that the balancing, the baseline for balancing, 

the openness and public safety is any different now than it was 

prior to 9/11. But also, let’s be honest about it. It’s a question of 

23 

what to disclose. Disclosing the bottom-line policy position, disclosing the bottom-line legal position is one thing. Disclosing the 

ebb and flow of legal advice does entail significant consequences. 

Let’s be candid: it chills the candor which people offer legal advice, 

because unfortunately, this debate is not being carried out in a particularly dispassionate and collegial manner. 

People whose advice is revealed, shall we say, don’t prosper, they 

don’t get confirmed, they get ostracized, people write nasty articles 

in various magazines suggesting they be tried for war crimes. The 

long-term implication of disclosing the ebb and flow of legal advice 

is very simple. Any administration would have fewer and fewer 

lawyers. 

You mentioned correctly, the Executive would not ask for advice. 

But even if he does—or she does—he wouldn’t get candid opinions, 

which would be bad all the way around from the standpoint of a 

vigorous democratic accountability. So there’s a huge price to be 

paid, and for the life of me I don’t understand every nuanced aspect, ebb and flow of legal advice, is necessary for you to legislate 

as long as you know what the Executive’s bottom-line legal conclusion and policy conclusion is. I suspect a lot of our disclosures is 

really not driven by the legislative needs, it’s driven by the sort of 

interagency, interbranch— 

Senator BROWNBACK. Tension. 

Mr. RIVKIN. Political warfare and tension with consequences. 

Does anybody really doubt that there are consequences to people 

whose legal advice is revealed, as they go forward with the rest of 

their lives and careers? I wish it would not be the case. Frankly, 

if that were not the case I would be a lot less concerned about the 

disclosure of this information. 

Senator BROWNBACK. Thank you. 

Thank you, Mr. Chairman. 

Chairman FEINGOLD. Thank you, Senator Brownback. 

I can tell you as a legislator, based on my experience in trying 

to deal with the illegal wiretapping program, the shifting justifications that just kept flying at us, after we shot down the notion that 

somehow the Authorization for Use of Military Force was a justification, show exactly why we need to know the scope and the 

depth of the legal justification, or you can’t legislate because every 

time you legislate they come up with some new, usually absurd, argument to justify what was illegal. So that is why it’s important 

for me, as a legislator, to know that. 

Senator Brownback? 

Senator BROWNBACK. If I could make just a brief comment. I appreciate your delving into this because it is a significant issue and 

it’s a significant one we need to know about. But I have been witness, and I think you have too—a couple of the people on the panel 

have served in administrations—of the internal administration 

fighting that goes on, because you’ve got a bunch of bright people 

that hold their position strongly. I think if you’re saying, okay, we 

want to know about the ebb and flow of this, it’s really more of a 

political debate than once it gets out in front of, this group says 

this and that one says that. 

Now, probably that’s not specifically what you’re asking for, but 

if we don’t provide some protection for that discussion you are eiVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
24 

ther not going to have that or you’re not going to have it in writing 

and it’s all going to be oral, or people just aren’t going to ask the 

question and you’re going to have poorer administration decisionmaking taking place. I think there’s a danger in us doing that to 

the administration that we shouldn’t. 

Chairman FEINGOLD. I won’t continue this long, but I think this 

is healthy for us to discuss. You mentioned people having served 

in the administration. We’ve got a couple of them here who have 

served in different administrations, Professor Johnsen and Mr. 

Leonard, who agree with my proposition that this is something we 

have to deal with, and apparently aren’t terribly concerned about 

this alleged chilling effect. So we have testimony right here from 

people to serve in both Republican and Democratic administrations 

who say the opposite. 

Senator BROWNBACK. Well, you’ve got Mr. Rivkin who has testified differently who has served in another administration, so you’ve 

got, even on your panel, a dispute relative to this. I think what we 

could focus on, though, is you do have an agreement of a narrower 

category here that I think would be a more interesting, more likely 

to produce results probe of what Mr. Berenson was suggesting in 

an agreement with Professor Johnsen. I mean, I think if you tightened in on your focus more there is some possibility here. 

Chairman FEINGOLD. You know, I may well be able to work with 

you on that. I think that has a lot of merit. I’m hoping we can come 

together in the way they came together on this matter. 

Now I am pleased to turn to Senator Whitehouse, who of course 

is a distinguished member of the Committee. I want to repeat my 

compliment to him on the excellent work he did in helping reveal 

this problem of Executive orders being rescinded in secret. I thank 

you, and I turn it over to Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. I appreciate 

those kind words very, very much. 

Mr. Berenson, you and I probably disagree on a great number of 

things, but I have to tell you that I was impressed by your testimony. I found it very lucid, very disciplined, very thoughtful, the 

sort of thing that I would hope to find in OLC opinions and recently have not. 

But if I accept your proposition, as I think most people do, that 

there is a necessity for secrecy in various aspects of Government 

operations, and that necessity for secrecy in turn provides benefits 

back to the public through public safety if it’s being done correctly, 

I would suggest to you that when an administration chooses to exercise the privilege of secrecy that it is given, when it chooses to 

pull that mantle of secrecy over its actions, it undertakes at the 

same time a very high and solemn obligation to use that zone of 

secrecy in a proper way, for two reasons. First, it’s just indecent 

not to and it runs contrary to Government principles in our American system of democracy. 

But from a practical point of view, if you foul the nest, if you 

will, then you create the skepticism and concern that Congress has 

now and you create the risk that we will tighten down on these security issues, and fundamentally you put future administrations 

and the public safety that it is the very purpose of secrecy to safeguard, in the future at risk as a result of having done it. It’s kind 

25 

of a complex version of crying wolf. I’d like to hear your reactions 

to that analysis. 

Mr. BERENSON. Thank you, Senator. I think I can say that I’m 

in complete agreement with that analysis. Both of the reasons you 

identify for exercising the privilege to keep something secret, I 

think, are exactly correct. There are manifest benefits to open debate, discussion, and criticism that you lose when something is secret, and, as with almost any authority, when you abuse it you undermine the rationale for having it in the first place and you 

threaten it in the future. 

It is very difficult day-to-day operationally inside the Government, as all of this is happening in real time through the Department of Defense, the intelligence community, and the White House, 

to find a good way to police it and to guard against abuse. There 

are inevitable self-interested tendencies that cause people to use 

this power when they have it, and some of those have been alluded 

to by other members of the panel. It can sometimes be a way to 

win a bureaucratic war by controlling information to insulate yourself from criticism, to essentially get your way. 

You can convince yourself, delude yourself into thinking that 

you’re making something secret in order to protect the larger national security interests. Ultimately, it comes down to the judgment 

and good faith of the individuals who serve in the Executive 

branch. I’m not sure there’s much other alternative, and it’s why 

another of this body’s powers is so vital, namely the power of confirmation. 

Senator WHITEHOUSE. Let me ask you a quick, admittedly hard, 

question. To the extent that the classified opinions of OLC have 

been made public and you are familiar with them, do they meet 

that high standard? 

Mr. BERENSON. I think that this is another area where being at 

5 years distance from my own Government service gives me a little 

more freedom and a little more perspective. I do think that there 

is a strong argument that some of these memos that we’ve been 

discussing this morning should not have been classified and that 

they did not comport with the standards that we’ve been talking 

about. Part of the reason for that, I think, is that they were constructed structurally in a way that I don’t think they should ever 

have been, or that any OLC opinion should ever be, namely divorcing the discussion of law from the facts to which it is applied. 

OLC should be asked concrete questions about particular policies 

and practices and render an opinion no broader than necessary to 

answer that specific question. That fundamental flaw, that original 

sin in the way these memos were constructed, I think, led to the 

creation of an opinion that probably shouldn’t have been classified, 

but in the minds of the classifiers was properly classified because 

it was part and parcel of other documents that were being considered simultaneously. 

Senator WHITEHOUSE. Let me ask Mr. Leonard a quick question, 

because he’s the person with the greatest expertise in the classification process I’ve ever had the occasion to come across. I was interested, on page 6 of his testimony, where he quoted Jack Goldsmith’s observation that before Mr. Goldsmith arrived at OLC, ‘‘not 

26 

even NSA lawyers were allowed to see the Justice Department’s 

legal analysis of what NSA was doing.’’ 

Now, that implies, to me, that the legal analysis supporting a 

classified program is more highly classified than the classified program itself, because clearly the NSA knew what the heck was 

going on. They were doing it. So why on earth would NSA, in any 

respect, be prohibited from seeing legal analyses? In what world 

does it make more sense for the legal analysis supporting a classified program to be more highly classified than the program itself? 

Mr. LEONARD. That’s an excellent observation, Senator. I mean, 

I have a very simple question I ask whenever I encounter this type 

of situation: from who are we trying to keep the information? When 

you answer that question who, that often will tell you the why, 

why is this being applied. As Mr. Berenson pointed out, and as I 

have, it’s often done because of internal bureaucratic struggles. 

Senator WHITEHOUSE. Will we have a second round, Mr. Chairman? 

Chairman FEINGOLD. Yes. 

Senator WHITEHOUSE. Okay. Good. Thank you. I won’t go into it 

in any great detail at this point, but I think as the panel knows, 

my concern is that the administration took advantage of the secrecy of OLC to violate I think what Ms. Johnsen has well described as the longstanding practices of the Attorney General and 

Office of Legal Counsel across time and administrations in order to 

essentially cook the books in ways that would not survive peer review and, therefore, they wouldn’t expose it to peer review. As a 

result, these sweeping and, at a minimum, highly questionable 

legal theories were propounded in these opinions. 

But my time has expired. 

Chairman FEINGOLD. Thank you, Senator. We will return. I’ll 

start the second round now, and we’ll get back to you shortly. 

Mr. Leonard, I assume you read the entire March 14, 2003 

memorandum by John Yoo? 

Mr. LEONARD. Yes, I have, Mr. Chairman. 

Chairman FEINGOLD. As the former head of the office responsible 

for implementing the President’s standards for classification, did 

you see anything in this memo that should have been classified? 

Mr. LEONARD. Absolutely nothing. 

Chairman FEINGOLD. You have testified that, in your view, pure 

legal analysis should never be classified. It’s been suggested, however, that the law of war is different from the law of taxes or the 

law of health care, and that the law of war is properly classified 

and kept secret. What’s your response to that argument? 

Mr. LEONARD. I think the perfect response to that is, again, some 

of the reasons why this memo was classified reportedly in the first 

place, and that was to keep it out of the hands of the military services’ legal people, because they very much recognize, from a reciprocity point of view, any steps—any positions we take with respect 

to the handling of enemy combatants—lack of transparency and interrogation methods that they’re subjected to—that our young men 

and women that we send into combat, they, too, are potentially 

subject to be held to that same reciprocal standard. 

So that is why, from that perspective, the military service attorneys are great advocates of transparency. Not to say that our adVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
27 

versary, particular in this case, is anything but brutal. But our 

goal is not to reduce ourselves to the level of our adversary, but 

rather to use our own beliefs and values as a positive vision for the 

rest of the world so as to isolate the extremists. 

Chairman FEINGOLD. Professor Johnsen, as you know, the Attorney General is required by statute to inform Congress if the Justice 

Department determines that it will not enforce or defend a statute 

on the ground that it is unconstitutional. 

You’ve made the case that the Attorney General also should be 

required to inform Congress when it applies the doctrine of ‘‘Constitutional avoidance’’ to construe a statute’s limitations narrowly. 

Why, in your view, is it important for the executive branch to notify Congress when it has decided that it does not need to fully 

comply with a statute? 

Ms. JOHNSEN. Let me make one preliminary point, if I may. I’m 

delighted we’re all moving towards some agreement that it would 

be good to extend it that way. 

I do need to point out that President Bush has created a real 

problem by saying in previous statements that it is unconstitutional in some applications for Congress even to require what it has 

required, so certainly the Bush administration would say this extension also would unconstitutionally infringe the President’s powers, which I think is clearly wrong, but that’s something that we 

need to be aware of. 

So I think it’s simply self-evident for the reasons, Mr. Chairman, 

you described, that in a democracy the Government must be accountable to the people and Congress must know how the executive 

branch, in particular, is interpreting and enforcing statutes that 

are already on the books. The whole system falls apart if the executive branch is allowed to keep those interpretations secret. 

I want to clarify, no one is talking about revealing the ebb and 

flow of discussions. I am a big supporter, and saw firsthand, the 

importance of having confidentiality in deliberations about policy 

and legal interpretation as well. What we’re talking about is a limited class of OLC opinions and a presumption in favor of release, 

not an absolute requirement. I would be opposed to Congress going 

beyond what we’ve discussed and requiring the release of all OLC 

opinions. 

Chairman FEINGOLD. And I agree with that as well. 

Is it a sufficient substitute for such notification, in your view, for 

the administration to brief a few Members of Congress under the 

condition that they keep the information secret? 

Ms. JOHNSEN. Absolutely not. I realize there may be some very 

rare circumstances where that is the only possible opportunity. But 

remember, as it’s been said, and as you said, we’re talking about 

legal reasoning and legal conclusions here. We’re not talking about 

sources, methods, and operational details. The better approach is 

to redact that information to the extent it does appear in an OLC 

opinion. As Mr. Berenson pointed out, what we’re talking about— 

in these OLC opinions we know about, at least—are not discussions 

of those kinds of details. 

Mr. Berenson, I think, is right. They should contain more and be 

more pointed. But I do think in some cases OLC does need to give 

more general advice. But part of the problem was, it was trying to 

28 

give sweeping immunization to Government actors to violate criminal statutes. That’s what really was going on with some of these 

opinions. 

Chairman FEINGOLD. Professor, a couple of witnesses have suggested that these OLC memos address matters that are not proper 

subjects of congressional interest. Do you agree with that? 

Ms. JOHNSEN. Absolutely not. Congress clearly has broad authority to regulate with regard to war and national security. You talked 

about FISA, interrogation methods, military commissions. It was 

the position, in the March 2003 opinion, that Congress did not have 

that authority. But the Supreme Court has rejected that and it was 

plainly wrong, and it’s been widely ridiculed. The administration 

itself, once these opinions are leaked and made public, regularly 

backs down from the more extreme assertions. 

Chairman FEINGOLD. Thank you, Professor. 

Mr. Aftergood, Mr. Berenson draws a distinction between laws 

that govern the conduct of private citizens and laws that govern 

the conduct of government officials. In fact, he says that the laws 

governing the conduct of the executive branch are not what is 

meant by the term ‘‘law,’’ which I find puzzling. In any event, he 

claims that when the law that governs the conduct of government 

officials is withheld from the public, that is not truly secret law 

and not something the public should be concerned with. 

What is your response to that? 

Mr. AFTERGOOD. I find that hard to understand. In fact, there is 

a spectrum of legal activity delineated in my statement, some of 

which directly affects the conduct of American citizens and requires 

them to behave in a certain way, such as the example I gave of 

Transportation Security directives that cannot be inspected by ordinary citizens. 

But even more important than those are the decisions of executive branch officials that have tremendous ramifications and implications for the rights of American citizens. The whole question of 

domestic surveillance. Under what conditions might I be subject to 

interception of communications? These are elemental questions of 

American citizenship, and when they are moved behind a cloak of 

secrecy, we are all diminished as citizens. 

Chairman FEINGOLD. Thank you very much, Mr. Aftergood. 

Senator Brownback? 

Senator BROWNBACK. Thank you. 

Mr. Elwood, can the OLC decide for itself whether to classify information? 

Mr. ELWOOD. No, Senator. OLC lacks the authority to classify information itself, so-called original classification authority. However, 

when we discuss matters that have been classified by other agencies, the discussions of them must be classified. That’s so-called derivative classification. I will note that Executive order 12958 requires that original classification be respected by the people who 

deal with that information later. 

Senator BROWNBACK. So you cannot classify information on your 

own, but you have to abide by the agency that you’re working with? 

Mr. ELWOOD. That’s right. We can neither classify nor declassify 

information, essentially. 

29 

Senator BROWNBACK. Okay. So it’s all bound by the other agencies’ classification process. Is that correct? 

Mr. ELWOOD. That’s correct. 

Senator BROWNBACK. Okay. 

Now, is that uniform across the administration or is that per 

agency-by-agency? 

Mr. ELWOOD. It’s agency-by-agency, and even component-by-component. I suspect that there are parts of DOJ that can classify information. Like, I wouldn’t be surprised if the National Security Division could. But I just don’t know that off the top of my head. 

Senator BROWNBACK. Whereas, there’d be other agencies that 

wouldn’t have near the classification needs or requirements, I 

would guess. Is that correct? 

Mr. ELWOOD. That’s correct. I believe, for example, the Department of State does have classification authority; Department of Defense does. My understanding is that it’s agency heads who are 

designated in the Federal Register have classification authority. 

Senator BROWNBACK. That seems to me to be prudent, that different agencies would have different requirements. You can’t classify anything, but that agency has its own procedure. That seems 

prudent to me. Has that been workable within OLC, by and large? 

Mr. ELWOOD. Certainly. Yes. We haven’t had the need to do any 

of that ourselves. 

Senator BROWNBACK. Okay. 

There is a document attached to Ms. Johnsen’s testimony entitled, ‘‘Principles to Guide the Office of Legal Counsel’’. In your experience, are these principles generally followed in the current Office of Legal Counsel? 

Mr. ELWOOD. Yes, absolutely. I remember the first time I saw 

the principles, and I read them from front to back. I remember 

thinking that it described the ordinary practice of the office. 

Senator BROWNBACK. And that’s been your experience within the 

OLC, is that these are followed? 

Mr. ELWOOD. Yes, that’s right. I’ve been in OLC since October of 

2005, and it is definitely consistent with our practice during that 

time. 

Senator BROWNBACK. Good. Thank you. 

Thank you, Mr. Chairman. 

Chairman FEINGOLD. Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Mr. Elwood, I’ll confess, I was a little disappointed by your testimony. I’d like to challenge some of the things you said in it which 

I think are misleading, perhaps. 

One, is the suggestion on page 3 of your testimony that OLC 

lacks the ability to affect private parties directly. If, as Professor 

Johnsen has just said, the purpose of the OLC opinion is to provide 

legal cover for Executive activities that would otherwise be tortuous, or illegal, or even criminal, but particularly if they would be 

tortuous, by virtue of having received an opinion from OLC upon 

which the government actor can rely, they are now protected. It 

would strike me that that is a considerable ability to affect private 

parties directly. In fact, you’re taking away a right of action from 

the individual who is the victim of the action. 

30 

The second thing that concerns me is that immediately after that 

you say, ‘‘if the executive branch adopts a policy that OLC has declared legally permissible, the policy will be public unless it is classified, and appropriate officials may be called upon to explain the 

policy, including its basis in law.’’ Then you dropped this little parenthetical: ‘‘Classified activities are, of course, subject to review by 

the Intelligence Committees.’’ 

Well, I sit on the Intelligence Committees, and we’ve had the 

most god-awful fight getting these opinions. There are ones we still 

don’t have. So I don’t know how on earth you can say that ‘‘classified activities are, of course, subject to the review by the Intelligence Committees’’ when we don’t have them. We’ve asked for 

years to get these things. There’s an absolute stone wall thrown up 

around this stuff. 

It seems to me that it is just extremely misleading to kind of 

glibly pass off as if there were no problem here that of course the 

Intelligence Committees have access to this stuff, when you know 

perfectly well that we don’t and that there’s been a very, very determined effort to prevent us having access to them for, how long 

has it been? Since before I’ve been a Senator, but certainly the entire time I’ve been here. 

If you could respond to those two things, because I just— 

Mr. ELWOOD. Certainly. Well, whenever says that someone says 

that my testimony has been misleading, I have a very strong interest in responding very fully. The three points that I heard were, 

first, that it affects private parties directly because these provide 

legal cover for stuff that would be otherwise tortious. That is not 

the purpose for OLC opinions. I can only speak for what has occurred in the Office since I’ve been there, which is October 2005. 

But the purpose of OLC opinions is not to provide cover, even 

legal protection, for actors. Its purpose is to help the President effect his duty to take care that the laws be faithfully executed. So 

before he undertakes action, he routinely asks us for legal advice 

on matters that might be subject to dispute. That’s the purpose of 

OLC opinions. 

Senator WHITEHOUSE. That’s the theory. But there is very little 

that prevents the practice from straying into the area of providing 

legal cover. 

Mr. ELWOOD. That, I will tell you that since I’ve joined OLC 

since October 2005, that has been the purpose of the opinions I 

have seen. I think that people do have—should have the ability— 

who rely on them, should have the ability to rely on them. However, that does not eliminate— 

Senator WHITEHOUSE. Even if the purpose—let me just interrupt 

you a second. Even if the purpose is well-intentioned, it would nevertheless have the effect of providing that legal cover and of taking 

away a claim because of the reliance that the actor now can make 

on the OLC opinion so that he would not have the requisite 

scienter to qualify for the tort or for the level of knowledge required for culpability under the criminal statute. 

Mr. ELWOOD. I think that—I don’t think it would affect—it depends on what the tort is, but I don’t think it would extinguish the 

cause of action. It might provide a factual defense— 

Senator WHITEHOUSE. A defense. 

31 

Mr. ELWOOD.—if there is a scienter requirement. But again, that 

requires a scienter requirement, and then there’s still the discussion of— 

Senator WHITEHOUSE. So you’ll concede that where somebody has 

been the victim of an act and this defense takes away their claim, 

they have been affected as a result of OLC’s action? 

Mr. ELWOOD. But I wouldn’t accept the premise that it would 

take away their claim. 

Senator WHITEHOUSE. It could be a complete defense to their 

claim. 

Mr. ELWOOD. No, I don’t think it would be. It may be a factual 

defense depending on what the tort is, but again, it would depend 

on what the tort is. There are a lot of torts on the books and there 

are a lot of creative lawyers, and so I wouldn’t say that it would 

provide a protection against torts. 

Senator WHITEHOUSE. Well, let’s go on to your reaction to my 

concern to your statement that ‘‘classified activities are, of course, 

subject to review by the Intelligence Committees.’’ 

Mr. ELWOOD. One of the fundamental points that I want to make 

here—I mean, you may not agree with it, but one of my points— 

if I have not made this point, I have not done my job—is that you 

don’t need to have OLC opinions to know what our legal basis is 

for a policy. OLC opinions are a—when they are written they are 

a confidential, legal, deliberative document that gives our advice to 

one party, the client. 

When a policy has been adopted, then whatever committee has 

jurisdiction over it, whether it be an Intelligence Committee, this 

Committee, the Agriculture Committee, whatever, has the perfect 

right to say, what is your legal basis for doing this? They can keep 

asking the questions to their satisfaction until they feel like they 

know what our legal basis is. 

My understanding is that you were given legal briefings on the 

basis in law for our interrogation programs and for the surveillance 

programs. I wasn’t involved in that, so I can’t tell you what it is. 

Senator WHITEHOUSE. Well, ultimately what we were given was 

a big stack of documents about that high on the Terrorist Surveillance Program, and one, or maybe two of a great number, apparently, of legal opinions and letters related to the interrogation program. 

Mr. ELWOOD. But again, those are the actual opinions. You can 

have witnesses and talk to them until you’re satisfied with the understanding of the basis in law. That’s not the only thing. We also 

write letters and— 

Senator WHITEHOUSE. Isn’t it a little bit different when the opinion itself isn’t just one little blip of legal advice to a particular 

agency, but actually becomes part of the ongoing precedent of OLC 

and becomes something that future administrations will rely on. 

It’s like having a court that publishes its decisions and creates 

precedent, but won’t tell lawyers practicing before them what the 

precedent is. 

Mr. ELWOOD. Well, when the documents serve in that sort of 

precedential fashion, that’s a reason why OLC publishes opinions 

it has—it does. We’ve published 82 since January 2005. We’ve published 13 just in 2008, including one that went live this morning. 

32 

So, no, we are very attuned to those sort of precedential concerns. 

When it’s a classified document it puts an additional wrinkle on 

things, but we are committed—and I mean this very sincerely—to 

getting Congress the information it needs to know what we’re 

doing. 

Senator WHITEHOUSE. My time has expired. Thank you, Chairman. 

Chairman FEINGOLD. Thank you, Senator. 

We’ll begin the third, and what I suspect will be the final round. 

Professor Johnsen, how do you respond to Mr. Elwood’s statement that OLC, under this administration, has complied with the 

‘‘Principles to Guide the Office of Legal Counsel’’ ? 

Ms. JOHNSEN. To fully reply would take quite a long time. I’m 

a little—kind of amazed that Mr. Elwood said he agreed with the 

principles. It does not seem consistent with his point that OLC 

should not need to reveal the actual legal opinions that it has 

issued. I also believe that OLC has not been forthcoming in other 

ways. But one of the principles is that there should be presumption 

in favor of releasing OLC opinions to the public, not just to Congress. So that is flatly inconsistent with Mr. Elwood’s description 

of OLC opinions as confidential legal advice that routinely should 

be withheld from the public. 

I think also important, is Mr. Elwood only talked about, since 

he’s been there in October, 2005. We just don’t have, and Congress 

does not have, a good sense of what has happened at OLC over 

time. We do know isolated opinions that have been publicly released, and some of them are, concededly, before October, 2005. 

Those opinions do, as Senator Whitehouse said, have precedential force within the OLC, within this administration, and in future 

administrations. So I’d be curious to hear what Mr. Elwood thinks 

about the pre-October, 2005 opinions that flatly contradict the 

guidelines, the ‘‘Principles to Guide OLC,’’ because they clearly 

were not written to give accurate principled legal advice. They were 

not written with the input of all interested, knowledgeable agencies. They violated many of the specifics of the principles. 

Chairman FEINGOLD. Thank you, Professor. 

Professor Kitrosser, for the past 6 months, Congress has been 

working on legislation to amend FISA. But FISA Court decisions 

that are directly relevant to the drafting of that legislation have 

been withheld from most lawmakers, leaving them to even consider 

proposed amendments and statutory terms in the dark, without the 

benefit of the Court’s prior interpretations. 

How does this disrupt the constitutional balance among the 

branches of Government? Can Congress really do its job under 

these circumstances? 

Ms. KITROSSER. Senator Feingold, I believe it disrupts it very 

substantially. As I talked about in my oral testimony and in more 

detail in my written testimony, the Constitution, I think, strikes a 

rather brilliant balance by ensuring that the policy framework 

under which the executive branch implements that policy is transparent, even if some implementation can occur in secret. However, 

as we have seen and as we’ve discussed at length today, there is 

a danger that that opportunity and capacity for secret implementaVerDate Aug 31 2005 14:56 Nov 20, 2008 Jkt 044955 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44955.TXT SJUD1 PsN: CMORC
33 

tion will be abused, will be taken advantage of, and will be used 

not merely to implement law, but to circumvent law. 

Now, how can we strike that balance? How can we ensure that 

doesn’t happen? Congressional oversight is absolutely crucial. One 

problem that we’ve seen in the past with FISA over the last few 

years is a failure of the administration that still has not really explained adequately the reasons for this failure, failure of the administration to comply with its informing requirements under the 

NSA, and certainly going forward I would agree that Congress has 

a need to understand how FISA has been implemented, as well, 

certainly, as any policy decisions that the FISA Court has made in 

order to understand how the statute might need to be amended in 

the future. 

Chairman FEINGOLD. Thank you. 

Mr. Elwood, I’d like to ask you about a certain memo that is referenced in the March 2003 memo. There’s a memo to the Defense 

Department dated October 23, 2001 entitled ‘‘Authority for Use of 

Military Force to Combat Terrorist Activities in the United States’’, 

authored by John Yoo. 

It’s my understanding that some of my colleagues in Congress 

have been asking to see this memo for years. Has this memo been 

provided to Congress? If not, on what ground? 

Mr. ELWOOD. I don’t know whether it has been provided to Congress. I suspect from your question that it has not. If it has not 

been provided, I can’t say specifically why that particular memo 

wasn’t provided. But I can say something generally about the terrorism-related opinions that were released—or not released, were 

signed—in 2001 to 2003. That is, there was always a lag in time 

between when an OLC opinion is signed and when it is published. 

I think the shortest it ever got was with the December 2004 torture 

law opinion that OLC put out that was put on the website the 

same day, but generally it is a period of months, or even years. 

I’ve seen where they aren’t even sent out for circulation for a 

while because at the time they are made they are confidential legal 

advice. The policy decisions have not been made. After a period of 

years, the confidentiality interests come down because the decisions have been made and so revealing the opinions won’t disrupt 

the decisional process. 

I think that the terrorism opinions are in some ways sui generis, 

if I can use a legalism, which I’m usually loathe to do, because in 

the aftermath of 9/11, a catastrophic terrorist attack when thousands of people died, they were scrambling to try to figure out what 

to do because they thought another terrorist attack would be coming and they didn’t know where it would be coming from or what 

it would look like, so there was a lot of think-tanking on various 

contingencies. 

One thing that I think heightens the confidentiality interest of 

many of the terrorism opinions is that the policies discussed 

weren’t implemented. If you look through all of the opinions— 

which some day I think they will be released. There are some in 

the publication pipeline now—you will see things in there that 

were considered, but not adopted. 

I think there is heightened confidentiality interest there because 

people aren’t going to come to you and ask for legal advice if they 

34 

know that, even if they don’t wind up doing it, everyone’s going to 

find out that they were thinking about it. So as a general matter, 

that’s why I think the war on terror opinions are especially sensitive, but many of them are on a pipeline for publication. 

Chairman FEINGOLD. Will you agree to promptly release the portion of the October 23, 2001 memo that addresses the legal conclusion about the Fourth Amendment that has now been made public? 

Mr. ELWOOD. I will certainly go back and—it’s not my decision, 

but I’ll certainly go back and convey it. Inasmuch as I understand 

that the Attorney General himself has criticized that conclusion, I 

don’t think that that is any longer an operative conclusion of the 

Office. But, yes, I’ll take that back. 

Chairman FEINGOLD. Is this memo still in effect and binding on 

the executive branch? 

Mr. ELWOOD. The entire memo? I don’t know the answer to that 

question. That particular conclusion, I think, has been repudiated. 

Chairman FEINGOLD. Thank you, Mr. Elwood. 

Senator Brownback? 

Senator BROWNBACK. Mr. Elwood, Professor Johnsen seems to 

disagree with your statement about whether or not you have followed, generally, the recommendations made by the group that she 

cited in her testimony. I’d like to give you a chance to respond to 

her accusations. It seems like you’d probably be in a better position 

to respond to those. 

Mr. ELWOOD. I really appreciate that. 

To begin with, I don’t think it’s an accurate statement to say that 

we don’t feel that we have to reveal legal opinions or that we don’t 

want to. We are committed to publishing them, and it’s been a real 

priority of mine and Steve Bradbury to publish as many opinions 

as we can. We are constantly trying to move them through, because 

as you can imagine, when you’re sending around a request for consent to various agencies, the last thing they want to do is do your 

business. They want to do their own business, first. But that’s 

something we do, is we’re constantly pinging agencies to try to 

move the process along. 

Senator BROWNBACK. Because the agency is the one that determines this, not OLC? 

Mr. ELWOOD. No. No. But you want to get at least their views 

on it. They don’t have the last word. We have the last word on it. 

But it’s one of the best practices, I think, of the Office to ask the 

people who might be affected by publication for what their views 

on publication are. But it is our decision. 

But we are committed to publishing them. I think one thing, I 

think we still have a presumption in favor of releasing the opinions, but the fact of the matter is that it has been my understanding that the historic practice of OLC is to publish them when 

they have been turned into policy, because otherwise if it’s just, 

here’s our opinion and they say, thanks very much but we’re going 

to do something else, or even though you say we’re not legally required to do this we’re going to do it anyway as a matter of policy, 

it might be publishable but it’s a completely different, I think, confidentiality interest when they’ve decided, for policy reasons, to do 

something else than what they discussed with you. 

35 

But for opinions that have been implemented as policy, we have 

a very strong commitment to making them public as fast as possible. In fact, one thing that we have been, I think, especially aggressive on is attempting to move the process along quickly. If you 

look at our web site, there are four opinions on there from just the 

last 5 months, including three that were signed in 2008. As I said, 

we published 13 just in 2008 and it’s only April. 

Senator BROWNBACK. Thank you. 

Mr. Rivkin, there’s been a suggestion here at the hearing that 

the TSA regulations all be made available to the traveling public. 

I don’t want to over-generalize on that, but do you have any concerns about all of the TSA regulations being disclosed, or that 

there’d be any impact on security issues if those are disclosed? 

Mr. RIVKIN. Thank you very much, Senator Brownback. I think 

the answer is very obvious: of course they’ll have an impact. If 

we’re talking about regulations that describe the particular screening scenarios in terms of when they’re triggered, as well as how 

they’re implemented, they’re obviously going to give notice to folks 

we do not want to give notice. 

Look, again, to be fair, there is inherent constructive balance, as 

in most issues dealt with in a democracy. My problem with most 

of the critics, including my good colleague Mr. Aftergood, is there 

is sort of reluctance to acknowledge that there is a cost to more disclosure. The disclosure may be, indeed, necessary, but let’s be honest about what the implications of a disclosure are. 

In this case, again, the answer is very obvious. If people knew, 

for example, what triggers secondary screening or even know some 

routines of secondary screening, what do you think is going to happen? They’re going to try to avoid it, either triggering it at all or, 

you know, secret things about their body that would not be detected by that particular search routine. I mean, to me it’s just 

pretty obvious. 

Senator BROWNBACK. Mr. Berenson, do you have a thought on 

that, by chance? 

Mr. BERENSON. I do. I agree with Mr. Rivkin, that secrecy is appropriate where you’re talking about sensitive security information 

from the Homeland Security Department, whether it relates to the 

security measures we take to protect air travel through the TSA or 

it relates to procedures that we employ at chemical plants or nuclear plants to safeguard them against attack. 

Nobody is worried about what Mr. Aftergood himself would do 

with that information. What we’re worried about is what people 

who would be determined to breach those defenses, to take down 

an airliner, to attack a chemical plant or a nuclear plant, would do. 

I think it’s obvious that the more you know about how our defenses 

are constructed and our practices and procedures, the better chance 

you have, if you mean us harm, to succeed. So I don’t find it terribly troubling that some of the procedures of the TSA, for example, are not generally available. I do think they should be available 

to the Congress. Congress has a legitimate legislative interest in 

knowing that. So pursuant to appropriate security procedures, I 

would hope they would be shared with the legislative branch. But 

this is one area where I would make a distinction between the people themselves and their elected Representatives in Congress. 

36 

Senator BROWNBACK. It seems to me that you’ve got a healthy 

tension between a desire to disclose as much as possible to the public, which we should, and we need to and we need to get as much 

out there, but also the need to protect the public. The desire here, 

and the key mechanism then, is disclosure to Congress in appropriate settings of that information so that you’ve got not just one 

entity of the government, the executive branch, but also the legislative branch reviewing this. 

I’d like to see a lot more information put out there. But at the 

same time, when I’m getting on a plane I want to be safe in this, 

and make sure that the procedures are followed that we can be as 

safe as possible, given the asymmetrical war that we’re in and the 

desire of a number of people in the world in different places to do 

us harm. So, it’s a tough balance. I’m glad that we’re discussing it 

because I think there are places that we can see improvement in 

the disclosure. But at the same time, I think we need to discuss 

it with the public from the standpoint of, here’s why some of this 

is not disclosed, to be able to express that openly to the public. 

Mr. BERENSON. And having served in the administration on 9/11 

and the period immediately thereafter, I would echo one of the observations that Mr. Elwood made, which is, it is hard, and especially hard now so many years removed from those events, to understand just what an extraordinary, difficult, and unprecedented 

time that was. 

There was an atmosphere of genuine crisis and genuine threat, 

and almost everything I observed during my time in government 

suggested that our public servants in both of the political branches 

of government were doing their level best to deal with a very serious, very dangerous threat. I think most of the decisions that were 

made, even on disclosure matters, were made with the best of intentions and sincerely for the purpose of trying to protect the public. 

The fact that we may focus here on a couple of celebrated instances where, with the benefit of hindsight, we now know that 

there may have been an error made shouldn’t obscure from view 

the fact that I think the vast run of these decisions were well-intentioned and properly made. 

Mr. AFTERGOOD. Senator Brownback, may I quickly respond? 

Senator BROWNBACK. I’m out of time. But Mr. Chairman, if you 

want to— 

Chairman FEINGOLD. You’re welcome to. 

Senator BROWNBACK. If you don’t object, I’ll let Mr. Aftergood 

quickly respond. 

Mr. AFTERGOOD. The suggestion was made earlier that there’s 

really no such thing as secret law in the sense of regulations that 

are binding on the conduct of members of the public. My point was, 

in fact, there are such regulations. I think that the initial suggestion has been refuted. Secrecy comes with a price. Among the 

prices are that we lose the ability to critique our security policies. 

I think there’s a lot of room to doubt the wisdom and efficacy of 

TSA procedures. Part of the reason for that is that so much of it 

is conducted in secret. 

Chairman FEINGOLD. Thank you, Mr. Aftergood. Thank you, Senator Brownback, for your courtesy on that. 

37 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

One of the reasons that I’m concerned about the transparency 

issue has to do with the very institutional integrity of one of the 

great institution of our government. The concern, I think, has become reasonably widespread that in this sort of hothouse environment of a classified program with nobody looking in at what’s going 

on, the OLC became kind of, you know, the little shop of legal horrors that would deliver what was requested. When you have the actual opinion out, you can actually look at, you know, kind of the 

merits of the legal analysis, whether it stands up. 

I mean, I disagree with Mr. Berenson on a million topics, I said, 

but his testimony here was incredibly lucid and clear. When you 

see something like that you think, oh, that’s pretty good scholarship. Then you see something like this. I won’t go through it. It’s 

been in the testimony already. That’s a pretty alarming proposition 

that an Executive order is just ignorable, willy-nilly, with no reporting. When it became apparent that I was going to release this, 

that I’d had it declassified, I was told that it stands on precedent. 

When they told me what the precedent was, the precedent was 

a Griffin-Bell opinion that said that the President can legally revoke or supersede an Executive order at will. Well, of course the 

President can legally supersede or revoke an Executive order at 

will. There’s a process for doing that. That’s a completely different 

proposition than saying that the Executive can use the Executive 

orders of this country as a screen behind which they can operate 

programs directly contrary to the text of the Executive order. 

So, there is one example. The other one that I declassified was 

the proposition that the President, exercising his constitutional authority under Article 2, can determine whether an action is a lawful exercise of the President’s authority under Article 2. 

I mean, aside from the ‘‘pulling yourself up from your own bootstraps’’ nature of that argument, it stands on an earlier opinion 

that says the executive branch has an independent constitutional 

obligation to interpret and apply the Constitution. Well, of course 

they do in the exercise of their duties. But among the things that 

that opinion goes on to say is that it requires deference to legislative judgments. 

Once you hang it off Article 2, which the Executive, under this 

unitary executive theory, claims it is immune from either judicial 

or legislative intrusion, you are now saying a very different thing. 

When you actually see the opinion and see how the extra step has 

been taken, you know, you know it’s a little bit—something else is 

going on other than just plain legal interpretation. 

The last one—this is my ‘‘justice bound’’. The Department of Justice is bound by the President’s legal determinations. I mean, I 

thought we’d cleared that when President Nixon told an interviewer that if the President does it it’s not illegal. That stands on 

the proposition that the President has authority to supervise and 

control the activity of subordinate officials within the executive 

branch. 

But the idea that the Attorney General of the United States and 

the Department of Justice don’t tell the President what the law is 

and count on it, but rather it goes the other way, opens up worlds 

38 

for enormous mischief. I think it’s a sweeping proposition. The 

three of them, as precedent, open enormous avenues for further 

mischief if you’re going to climb out, and out, and out further on 

your own precedent. 

So let me ask you, Mr. Rivkin. These three theories that we have 

put up, you say that there’s a cost to revealing these things. What 

is the cost in security in revealing any one of those three propositions, or all three of them together? 

Mr. RIVKIN. Well, Senator Whitehouse, those three propositions, 

I don’t see any particular cost in revealing them. It doesn’t, of 

course, mean that there may not be other propositions it would be 

costly to reveal. But let me just say a couple of things. 

Senator WHITEHOUSE. So at least as far as these three are concerned, you’ll concede that there’s no cost? 

Mr. RIVKIN. I do. And let me also say, I think the language is 

rather stark. As most of us lawyers, you hate to look at one sentence. I certainly wouldn’t have, particularly the last— 

Senator WHITEHOUSE. I’d be delighted to show you the whole rest 

of the opinion, but I’m not allowed to. It’s classified. I had to fight 

to get these declassified. 

Mr. RIVKIN. No, no. 

Senator WHITEHOUSE. They made me take—they kept my notes. 

They then delivered them to the Intelligence Committee, where I 

could only read them in the secure confines of the Intelligence 

Committee. Then I had to—again in a classified fashion—send this 

language back to be declassified. I’m doing it again with a piece of 

language that relates to the question of exclusivity. There is a sentence that describes whether or not the FISA statute exclusivity 

provision is really exclusive enough for the OLC. We’re still going 

through this process. 

Mr. RIVKIN. I understand. But if I could just say— 

Senator WHITEHOUSE. I’d like to be able to tell you more about 

this. 

Mr. RIVKIN. But this is a very—language. If I can just take 15 

seconds with regards to the first proposition about the President’s 

not being bound constitutionally by Executive order. I would say, 

mindful of your earlier remarks, in most circumstances it would be 

a matter of good government for the Executive who bothered to 

issue an Executive order giving some kind of notice to the public 

and the world at large as to how he or she would discharge their 

duties to go for the same exercise, but surely we can all agree that 

there may be some very unique circumstances not promiscuously or 

frequently triggered where you have an Executive order that, if it 

were done publicly, would give some notice to people we don’t want 

to give notice. 

Very rarely—and I certainly wouldn’t defend any particular frequency which has been applied. But as a constitutional matter, of 

course the President is not bound by Executive order, and of course 

the President can violate the Executive order, and of course the 

President can retract the Executive order sotto voce. I mean, that’s 

constitutionally unexceptional. As a matter of competence in government and good policy, we can all agree it should not be done, 

except in the rarest of circumstances. 

39 

Mr. ELWOOD. May I respond, since this is directed at a Department of Justice product? 

Senator WHITEHOUSE. Sure. 

Mr. ELWOOD. The opinion—you should have also have been provided with an opinion that has been public for 20 years and was 

put out by my Office and provided to Congress in 1987, which 

reads as follows: ‘‘E.O. 12333, like all Executive orders, is a set of 

instructions from the President to his subordinates in the executive 

branch. Activities authorized by the President cannot violate an 

Executive order in any legal and meaningful sense because this authorization creates a valid modification of, or exception to, the Executive order.’’ So this is not secret law, this is as public as it can 

get. It’s turned over to Congress and put in— 

Senator WHITEHOUSE. Well, there’s an important piece missing 

from that, which is not telling anybody and running a program 

that is completely different from the Executive order without ever 

needing to go back and clean it up. 

Mr. ELWOOD. This opinion actually involved a secret modification 

that involved Iran-Contra, so it was also classified. 

Senator WHITEHOUSE. So your opinion is that in saying that an 

Executive order cannot limit a President, there is no constitutional 

requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive 

order. Rather than violate an Executive order, the President has, 

instead, modified or waived it. There is no requirement for the 

President ever to go back and clean up. 

Mr. ELWOOD. I think that Mr. Rivkin got it exactly right, which 

is that in the ordinary course, yes, that’s the whole reason we have 

Executive orders. The President doesn’t have to make Executive orders, or make them public. But he does both of those things because— 

Senator WHITEHOUSE. Well, I’ve gone over my time, so let me 

just close by making the point that I’m trying to make with all this, 

which is that if you can’t see the opinion itself you can’t make 

these determinations. It looks very much to me—although we can 

debate the proposition—as if these are extremely broad, extremely 

stark, and extremely constitutionally challenging opinions. It is different for us to read this than to see a carefully, finely crafted point 

such as Mr. Rivkin suggested. That is why I think it’s important 

to see these opinions, and that’s the reason I went through this. 

I apologize for going over my time, Mr. Chairman. 

Chairman FEINGOLD. Thank you, Senator Whitehouse. 

The Ranking Member has asked to make brief closing remarks, 

and I will follow him. 

Senator Brownback? 

Senator BROWNBACK. Thank you, Mr. Chairman. 

I want to thank the panelists for being here and for their discussion and thought that you’ve put into the process. I think it’s helpful. I think it’s helpful to us to be able to look at it. I am hopeful 

that there’s at least one point that we can get some agreement on 

that I was probing in the first round, and I’d like to work with each 

of you on it. 

I would just urge the majority caution on this. I appreciate the 

sentiment in which the disclosure is being pursued, what you’re 

40 

putting forward, and I appreciate the tenacity with it. I just would 

note, let us be careful on this so we don’t hurt the security of the 

people of the country. I don’t think anybody’s intent is to do that. 

And let’s also not hurt the process by which we hope an administration comes up with good policy, which is a battle of ideas back 

and forth between, you hope, highly competent, qualified, goodhearted people. You don’t disclose things that—a process date, 

time, or place in which you thwart that, or you make everything 

go and be oral instead of in writing. 

I mean, I was one—I would hope that whether the administration is Republican, or Democrat, or Independent, or whatever the 

case might be, that they would have a good, aggressive battle of 

ideas internally and that those be shared, and that those be put 

in writing, and that those be sent back and forth and that they 

allow it to come up with as much as they possibly can, and that 

security not be harmed in this time of a big, asymmetric war that 

we’re going to be in for a long time. 

So I know your hearts are good on this. I just would urge us to 

take some real caution and make sure that we do this in an appropriate way that can be done in getting good decisions and not 

harming the public and public security for this country. 

Thank you for the hearing, Mr. Chairman. 

Chairman FEINGOLD. Thank you, Senator Brownback. 

I want to thank all the witnesses for their testimony and for this 

very enlightening discussion. I want to particularly thank both of 

my colleagues for their very diligent attention throughout this twohour plus hearing. I think this is a unique matter. In fact, I think 

this is a groundbreaking hearing with regard to this area of law. 

As much as we’ve accomplished here today, I feel that we’ve only 

scratched the surface with this hearing. I take the Ranking Member’s concern about caution seriously. There is not a single member 

of the Senate who would not act cautiously in this area. But I must 

say that the fact that we’re having this hearing is an indication of 

almost a complete lack of caution on the part of the administration 

in terms of the other side of this, a complete failure to be concerned 

about disclosure and what the failure to disclose means for the 

American public. That’s why we’re here today. Presumably this 

never would have been as serious an issue under many other administrations. It is this administration’s approach that has caused 

us to have to take these actions and investigate this issue. 

We focused today on the OLC memos and on FISA Court opinions—appropriately so, in my opinion, because they are critical and 

timely examples of the problem. But it is more and more clear to 

me that this problem is a systemic one and that there’s much more 

secret law out there than most of us suspected. 

It is also clear to me that this systemic problem needs a systemic 

solution. While it is true that this administration has raised secret 

Government concerns to a new level, I think it would be naive to 

expect that this problem will disappear when the Bush administration leaves office. Government secrecy has been compared to kudzu, 

and I think there’s something to that: once it takes hold, it’s difficult to pry loose. We’ve heard some ideas here about ways to tackle the problem, and I intend to continue to give this issue close 

study. 

41 

The hearing record will remain open for one week for additional 

materials and written questions for the witnesses to be submitted. 

As usual, we will ask the witnesses to respond promptly to any 

written questions so that the record of the hearing can be completed. 

Thank you. The hearing is adjourned. 

[Whereupon, at 11:07 a.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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Æ 


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