Sen. Feingold held a hearing this morning regarding secret law, the US government, and the need for better oversight and transparency. It was a fantastic hearing that, as I understand it, C-Span may have recorded for broadcast later today. Luckily for us, it was webcast from the Senate Judiciary website, and I have roughly transcribed the hearing — but watching it in its entirety is well worth looking for it on the C-Span schedule today.
· J. William Leonard – Former Director, Information Security Oversight Office
· Steven Aftergood – Director, Project on Government Secrecy, Federation of American Scientists
· Bradford Berenson – Partner, Sidley Austin LLP, Washington, DC
· Dawn Johnsen – Professor, Indiana University School of Law; Former Acting Assistant Attorney General for the Office of Legal Counsel
· Heidi Kitrosser – Associate Professor of Law, University of Minnesota Law School
· David Rivkin – Partner, Baker Hostetler, Washington, DC
Began at slightly after 9:00 am ET. Rough hearing transcription follows:
Feingold calling the committee into session.
FEINGOLD OPENING: More than any other administration in recent history, this Administration has a penchant for secrecy. It has relied increasingly on secret evidence and closed tribunals, in Guantanamo and in the US. There is also an increasing prevalence in our country of secret law. It is a basic tenet of democracy that the people get to know their laws.
The recent release of the Yoo memorandum from 2003 has shown the importance of not allowing this secret law — goes into the binding precedent of the OLC on the federal government agencies. This contains no information about sources, methods or any other information about national security — but it did contain shaky legal rationale which the Administration did not want the public knowing was used as a foundation for their actions, and yet it was classified until just weeks ago.
Goes on to discuss the problems of any sort of oversight when you have such an internal policy of secrecy.
BROWNBACK OPENING: Problem? What problem?
Witnesses sworn in for testimony.
JOHN ELLWOOD, Deputy Asst. AG at OLC: Feingold says that the Administration plans to give the SSCIC limited access to the OLC memos on the CIA’s interrogation programs — Feingold says while limited access is better than no access, and there may be some provision for the SJC as well, it has taken years to get to this point and it is wholly inadequate for the Senate to perform its function of oversight. On to Ellwood himself.
The OLC has assisted the AG in his role as legal advisor to the executive and its agencies — as advice between attorney-client privilege. There is also time where OLC must provide advice on classified matters, where our advice must remain confidential. However, that doesn’t mean things will be secret — unless they are classified. The Administration has provided information to Congress about why they are holding information in confidence and/or in classified matters, and do so regularly through meetings and other correspondence.
DAWN JOHNSON: Her written testimony discusses the role of OLC and the harmful nature of secret law on democracy, the rule of law and accountability. The thing which causes her the most pause is the OLC’s tendency to issue opinions which tell the President and the executive branch that he can ignore the rule of law, and then not share those opinions with the legislative and judicial branches or the American public. On at least two occasions, the OLC wrongly advised the executive branch that they need not comply with existing laws — basing those opinions on profoundly flawed legal interpretations on extreme views of unilateral executive power. These opinions were not subject to questions by others holding more mainstream legal views — and formed the basis for a number of legally questionable actions — domestic spying by the NSA in violation of FISA, interrogation methods which fall outside legal treaty practices, etc.
One of the longstanding OLC "best practices" principles is to disclose OLC opinions at the earliest point possible, to enable public scrutiny of the actions and interpretations. These also require a notification in writing to Congress of any deviation from this — why it is necessary and what steps have been taken to mitigate problems.
BRADFORD BERENSON: I agree with Sen. Brownback — what problem? I don’t see a problem. In general, executive branch law is not made public either (1) because it may harm the national security (the classification issue) and (2) because the President wants to have some confidential advice from time to time as any other client seeking legal advice would need to have it, and it’s important for him to have that option. Goes on to discuss the FISA Court rulings, and how they are a classic foreign surveillance realm question — so long as Congress can have oversight via the Intel committee, then the public’s interest is safeguarded there.
Does agree with Prof. Johnson where the executive branch determines that it can violate or ignore existing law, there should be some method of informing Congress and/or the public (depending on the national security implications and the needs that entails) immediately being notified for some means of oversight.
J. WILLIAM LEONARD: Would like to focus most of his testimony of the OLC memo that was discussed earlier. Classification of this document was the worst abuse of classification that he can recall in his long career — it had no impact on sources, methods or other national security concerns, it was pure legal analysis. Classifying this was an abuse of power, and it was appallingly done by the Deputy at the OLC who has the power within the government to make those sorts of decisions. And the OLC memo is only one example. The ability of the President to act unilaterally is constrained by the limitations that Congress and the Courts are willing to allow him to act — the President’s power to classify, to keep his actions secret from branches with oversight and to mask his actions from the public, is a great power — and one that has a tendency to be abused. He runs through potential options.
It is as if George Orwell, _______ and Franz Kafka came together to come up with a scheme for unchecked executive power. [CHS notes: Sorry, missed the middle author there. Anyone catch it?]
DAVID RIVKIN: I want to put the so-called "secret law" into its proper context. Blah blah blah long-term war with scary terrorists booga booga booga. In this context, the President has to deal with difficult legal issues while trying to protect the nation — and he ought to be able to classify whatever he needs to, whenever he needs to, and if that means little to no oversight, at least we are all being kept safe and the enemy didn’t find out about it. Now, I realize that once the public has found out about Administration actions — through leaks and not through their revelation by the Administration itself — there has been some public outcry about some of it — and that, as a result, some of the policies have been "watered down." I don’t agree with every Administration policy, I would strongly defend their right to secretly do a lot of this under the "laws of war paradigm." Oh, and Clinton did it, too. As some of you probably know that signing statements have been somewhat controversial, but I think it’s a great way for the president to let you know that he finds your actions unconstitutional.
HEIDI KITROSSER: Secret law is appropriate, as opposed to routine advice on regular legal matters. When you are talking about a secret legal memoranda where a contravention or replacement of existing law is withheld from public scrutiny, it’s accurate to characterize this as secret law. Under the constitution, policy decisions presumptively are transparent in nature — but the executive branch retains mechanisms structurally to oversee implementation and policy-making (e.g. intel committees). The damage of this trend toward secret law, the executive branch has circumvented both statutory law and also procedural law, such as requirements for oversight and sharing of information between the branches for Congressional oversight. Congress is structurally open in its public debate, the presidency is also — constrained by legislation, oversight, and other means — constitutionally — but it also has the largest capacity for secrecy in terms of operating outside the bounds of oversight when there is a breakdown in the structure of oversight and balance among the branches.
These actions turn the constitutional structure upside down. The only thing that could make matters worse would be for these actions to become normalized in American social understanding — Congress must reassert its authority for oversight and force some balance back into the system.
STEVEN AFTERGOOD: Talks about the Rep. Chenowith stop — and she asked to see the TSA document requiring her stop, and she was not allowed to see this because it was classified. There are binding requirements that purport to regulate American’s conduct, but those same Americans are not allowed to know what those laws say. Talks about FISA courts. This trend toward secret law is repugnant, when viewed through the lens of American political foundations. Secret law should not be the way to conduct the affairs of the world’s greatest democracy — transparency should be restored.
FEINGOLD QUESTIONS: Congress can’t exercise it’s prerogative for oversight, if it doesn’t know what the OLC opinions are, can it? Ellwood tap dances around an answer. Feingold makes the point that its awfully difficult to legislate when you don’t know everything you are having to confront in terms of what the executive branch thinks it can do outside the laws as we know they exist. Can you confirm that if there are any new OLC memos that supersede memos on interrogation and others will be provided promptly to Congress when they are issued? Ellwood doesn’t know, but he thinks so. Feingold pushing for appropriate public access on this.
A court cannot overrule the government’s wiretapping authority if the court never gets to see the case because state secrets privilege is asserted and no one ever gets to see the information underlying things. Ellwood says that the civil division handles state secrets cases, and he’d have to defer to them.
BROWNBACK QUESTIONS: Says he wants the Administration asking legal questions a lot of various ways and avenues and for opinions on difficult issues. His guess is that if we get into a tight practice that legal opinions would have to be disclosed, then there would be a tendency to not ask these legal questions to prevent disclosures. Asks Berenson to talk about Presidential response to a particular statute that he concludes is unconstitutional — needs to apprise the Congress. The best practice is for the Executive to be transparent — the worst case is where the executive concludes it may be sort of unconstitutional, that doesn’t fall within the ambit of law, but there ought to be some method for inter-branch discussion to prevent abuse. Brownback does’t get it — should we pass a law about this? Berenson defers to Johnson, who he says probably has thought about this more than he has. Johnson say this arises because the Bush Administration fails to construe a statute’s plain meaning and, instead, they interpret it in a different way because they don’t want any limitations on the sweeping unilateral executive action and powers they claim — there can be no allowance for balance from the other branches. Brownback cuts her off to ask Berenson to look at her suggestion on how legislation should be worded, and turns to Rivkin.
Rivkin whines about mean people writing nasty articles in magazines suggesting people be tried for war crimes when they issue opinions which are contrary to law. He doesn’t understand this interbranch political warfare — does anyone doubt that there aren’t consequences for some of these people who issue these legal opinions?
FEINGOLD: Says that you cannot legislate when you have flying justifications on the wiretapping issue — changing every time there was a new revelation on what was being done — it’s impossible to legislate under those conditions.
BROWNBACK: Now says this is a significant issue that needs discussion. Brownback worries about chilling discussions within the executive branch.
WHITEHOUSE: You and I probably disagree on a great number of things, but I was impressed by your testimony — the sort of thing I would hope to find in OLC opinions, but recently have not. If there is a necessity for secrecy in this, and there is a benefit that comes back to the public in terms of public safety if done correctly, I would suggest to you that if an Administration pulls a mantle of secrecy over its actions — from a practical point of view, if you foul the nest, you create the skepticism and concern that Congress will tighten down on security issues and you put future Administrations and public safety in the future at risk. It’s a complex version of crying wolf. Berenson says he is in complete agreement with that analysis. Berenson says its very difficult to police this in the day-to-day when you are pushing policy — it is a way to win a bureaucratic war, sometimes, to essentially get your way, to keep something secret, and you can delude yourself to think that you are protecting the larger national security interest in doing it — but that is why the power of Congress for oversight is so valuable.
Whitehouse asks about the OLC. Berenson says that there is a strong argument that some of these memos should not have been classified — that there is a strong argument against that classification — and that structurally there were serious problems with some of them. The flawed structure of some of these memos led to the creation of an opinion probably should not have been classified, but in the minds of the people creating it were because it was part and parcel with so many other things going on at the time. Goes to Leonard. Not even NSA lawyers were allowed to see the memo analyzing what they were doing — how can a legal opinion about a program be more highly classified than the program itself? Leonard says you often need to ask who is the information being kept from? And that often tells you the why of the secrecy — and it’s often a bureaucratic power struggle. Whitehouse says the Administration took advantage of the OLC to "cook the books" in a way that would not have survived peer review — and so they kept these opinions classified to keep that peer review from occurring.
FEINGOLD TWO: Did you see anything in the Yoo memo that should have been classified? Leonard says no. Does law of war provide some different rationale? Leonard says that he believes the memo was classified to keep it out of the hands of the military legal people — because they understand the dangers of reciprocity for our own service members, and their attorneys understand the severe implications for us violating human rights laws we had previously championed. When does the executive branch have to notify Congress about a problem with a law? Johnson points out that Bush has already said that Congress doesn’t have a right to the notification requirement already on the books, so keep that in mind with regard to any further requirements. However, what we are talking about is a limited number of OLC memos — big proponent of interactive discussion and advice and consent among the executive agencies. We are talking about a very limited number — legal reasoning and legal conclusions. Sources and methods and other national security concerns should absolutely be redacted from anything released. Some of the problems with OLC memos was giving sweeping immunization for broad categories of government action — inappropriate for an OLC opinion, should be more narrow. Aftergood talking about the sweeping implications of so many of these decisions — interception of communications, civil liberties questions. When they are moved behind a cloak of secrecy, we are all diminished.
BROWNBACK TWO: OLC does not have the authority to do original classification, according to Ellwood. Goes into a discussion regarding intricacies of classification. [CHS notes: for some reason, Brownback isn't asking Leonard this -- odd that.] Asking if the principles for practice at OLC are followed? Says they’ve been followed since October 2005, anyway, since he’s been there.
WHITEHOUSE TWO: Says that he was disappointed by Ellwood’s testimony. Want to challenge that OLC doesn’t have the authority to affect private parties directly. If, as Prof. Johnson suggested, the OLC opinion is to provide cover for government action which could be criminal and/or tortious, then that would have a considerable impact on private parties directly — you’d be removing any remedy from the person who has had to deal with the government actor. Whitehouse says he sits on the Intel Committee — I don’t know how on earth you can say that classified opinions are subject to Intel Committee review. We do not have access to this — and there has been a very, very determined effort to keep that information from us, for as long as I have been a Senator. There are still opinions we have not been able to see, even now. Ellwood says that OLC opinions are not supposed to provide legal cover — and that there haven’t been any opinions "that he has seen" from the OLC that have done something like that. And now we’re into a back and forth on whether or not the tort does or does not require scienter [CHS notes: can you say filibuster?].
Ellwood says that you do not need to see the OLC opinion to know the policy. The committees have the right to ask what the legal basis is for doing something, whether or not they ever see the original OLC opinions. [CHS notes: Please, oh please, someone ask about the "4th amendment no longer applies" footnote.]
FEINGOLD THREE: Johnson says that there should be a presumption in favor of releasing OLC opinions to the public, not just to the Congress. Ellwood is saying that he has only been there since October, 2005 — some of these opinions are from before 2005. But we have no idea how things have gone over time because the picture of what has or has not been done has been kept deliberately murky. Can Congress really do its job under these circumstances when things are kept from them? Kitrosser says that it is almost impossible to perform either oversight or legislative work without knowing the full extent of what is or is not being done. Striking a balance is crucial. Goes through problems with FISA/NSA and failures to disclose information as required by law. Asking Leonard about another Yoo memo. Ellwood not certain why that memo has not yet been provided — can say something about why the terrorism memos haven’t been released. There is always a lag in time for national security memo releases — there is a lag and a period of months and even years why they aren’t released. After a period of years, revealing them won’t have an impact on national security concerns. They are sui generis — there was a lot of "think tanking" on various contingencies. One thing that heightens the concerns is that a lot of the considered things there were not adopted — they have been kept back for various reasons, not the least of which is that there are still pieces of information there that have never been implemented. Is this memo still in effect and binding on the executive branch? Not sure, but the particular provision on the 4th Amendment has been repudiated, he thinks. Continues to push meme that the OLC’s client is the Administration. [CHS notes: think there will be some argument over that.]
BROWNBACK THREE: Goes back to the dispute on requirements for release or not. Goes again to Rivkin, on TSA regs this time. Do you have any concerns on TSA regs being disclosed — would there be an impact on security concerns? Oh, absolutely there would be an impact if you disclose everything about why and how we do things. There is an inherent balance, there is a cost to full disclosure — let’s be honest about what that cost is. Then asks Berenson to talk about it. He also goes to practices and procedures questions — in terms of security for nuclear power plants and such. Says he doesn’t have a problem with Congress providing secrecy protection is in place on methods information — but shouldn’t be disseminated widely. Brownback says that he sees a healthy tension between people being aware publicly of a lot of this, but also keeping safety concerns in mind. It’s a tough balance. Berenson talks about how difficult it can be to make decisions on the fly. Aftergood says that secrecy comes with a price — and one of those prices is that we lose the ability to critique our security policies, because we don’t know what they are — even when there are real questions about their efficacy and efficiency.
WHITEHOUSE THREE: The OLC for a time became the sort of "little shop of legal horrors" to push forward opinions with alarming conclusions. Talks about the ludicrous "precedent" on which the Yoo memo stood — on executive orders. Art. II authority argument stands on equally shaky ground. Discussing unitary executive theory — once you hang an opinion on these theories, you know that something well beyond a legal opinion was going on. The idea that the AG of the United States and the DOJ have to follow what the President says is law opens up a whole host of precedent for mischief. Goes to Rivkin — what is the cost in revealing any of these to the public? Rivkin says he doesn’t see any cost there, and he and Whitehouse talk about problems with language and otherwise. Whitehouse talks about a provision he’d like to be able to discuss on whether or not the exclusivity provision of FISA is exclusive enough for the OLC, but that hasn’t been declassified enough for him to discuss publicly yet.
Ellwood interjects that there was another opinion that should have been provided as well. Whitehouse says there is an important piece missing from that, which is a secret order, which kept the information about the program from the public and from Congress having any oversight. Ellwood starts to interject, and Whitehouse calls him on the carpet for supporting secret action by the President. If you can’t see the opinion itself, then you cannot make the determination as to whether these opinions are extremely broad, extremely stark — and extremely Constitutionally challenged opinions.
BROWNBACK CLOSING: Sure thinks this was helpful, and would like to reach some agreement to enact further legislation on disclosures. Let’s just be careful we don’t hurt the security of the people in this country or hurt the process by which the President comes up with good policy which is made by, you hope, good hearted, well qualified people. Otherwise, everything ends up being done orally instead of in writing. There needs to be an aggressive battle of ideas — in writing — between executive branch folks. Security need not be harmed. I know your hearts are good on this, I’d urge us to take caution on this and do it appropriately.
FEINGOLD CLOSING: Thank all the witnesses for their testimony and thank his colleagues. This is a unique matter, and a groundbreaking hearing in this area of law. As much as we have talked about today, we’ve only scratched the surface. The fact that we are having this hearing at all reflects the complete lack of caution from the Administration in these matters — it is their approach that has led to this hearing today. It is more and more clear to me, that this problem is a systemic one. It is clear to me that this problem requires a systemic solution. It would be naive to assume that this problem will disappear when the Bush Administration leaves office. Government secrecy is like kudzu, once it takes hold, it is tough to eradicate.
Record will remain open for one week for additional remarks or additions to the record. Hearing adjourned.
(Image via Prissy Patriot. It was too perfect not to use…)