For some of you, this will only whet your appetite to read the whole thing! Go for it!
Foreword
In 1973, historian Arthur Schlesinger coined the term "Imperial Presidency" to describe a presidency that had assumed more power than the Constitution allows, and had circumvented the traditional checks and balances of our constitutional system. Until recently, the Nixon Administration seemed to represent the singular embodiment of that idea. But today, as the Bush Administration comes to a close, there can be little doubt concerning the persistence of Mr. Schlesinger's notion. More than three decades later, Mr. Schlesinger himself characterized the Bush Administration as "the Imperial Presidency redux," although he more optimistically predicted that "democracy's singular virtue - its capacity for self-correction - will one day swing into action." Today, in hindsight I can attest to the prescience of Mr. Schlesinger's warnings of unchecked power, even as we vigorously pursue the much-needed democratic self- correction he anticipated.
The Bush Administration's approach to power is, at its core, little more than a restatement of Mr. Nixon's famous rationalization of presidential misdeeds: "When the president does it, that means it's not illegal." Under this view, laws that forbid torturing or degrading prisoners cannot constrain the president because, if the president ordered such acts as Commander in Chief, "that means it's not illegal." Under this view, it is not the courts that decide the reach of the law - it is the president - and neither the judiciary nor Congress can constrain him. And where statutory law or the Constitution itself appear to impose obstacles to presidential whim, creative counselors can be relied upon to reach whatever result the president desires.
This dismissive approach to our system of checks and balances was exemplified when the Vice President's Chief of Staff, David Addington, appeared before the House Judiciary Committee on June 26, 2008. As much as any individual in the Bush Administration, David Addington is considered the architect of the concept of unchecked and unreviewable presidential powers known as the "unitary executive" (in a New Yorker profile, a former Pentagon attorney, Richard Schiffrin, said that he left one meeting with Mr. Addington with the impression that he "doesn't believe there should be co-equal branches"). Yet when I questioned Mr. Addington about the unitary executive theory of government during our Judiciary Committee hearing, he responded, "I frankly, don't know what you mean by unitary theory of government."
Perhaps nowhere was the range and scope of this most recent version of the Imperial Presidency more apparent than within the United States Department of Justice, the cornerstone of law enforcement in our country. While each administration re-populates the upper reaches of the Department with its own appointees, the men and women who have served there - in administrations of both political parties and throughout our Nation's history - have taken to heart the Department's core values of fair, honest, and impartial justice. Thus, at the height of Watergate, in what became known as the "Saturday Night Massacre," President Nixon's Attorney General Elliot Richardson and Mr. Richardson's Deputy William Ruckelshaus famously resigned rather than carry out the President's order to fire Special Prosecutor Archibald Cox, who had subpoenaed White House tape recordings.
The contrast with the Bush Department of Justice could not be starker. In this Administration, too many Department leaders abandoned that proud tradition of independence and integrity, and made decisions based on political objectives rather than the facts and the law. Young political operatives were given control over the most sensitive operations of the Department, and federally protected, non-partisan law enforcement positions were used to provide political patronage. The Civil Rights Division was twisted to obtain partisan electoral advantage, rather than protect the most vulnerable among us from discrimination.
In keeping with its imperial aspirations, the Administration went to extraordinary lengths to hide its conduct from scrutiny and avoid accountability. Thus, the White House refused to respond to congressional subpoenas, and insisted that presidential aides - and even former aides - are immune from subpoena, even though numerous presidential aides have testified under congressional subpoena during past administrations, as every citizen is legally obligated to do. Here, too, the Administration was following the example set by Richard Nixon. When President Nixon suggested such a claim, Senator Sam Ervin responded: "That is not executive privilege. That is executive poppycock."
The Bush Administration has relied on even more extreme claims in refusing to release documents subpoenaed by Congress. In the end, the Administration has been so recalcitrant in asserting this "executive poppycock" that the Committee was forced to pursue witnesses and documents in federal court. Even after the Committee secured a historic victory rejecting the Administration's claims, the White House still refused to relent. As of this writing, the matter remains in litigation.
There have been additional transgressions against the Constitution and the country by the Bush Administration. There was the contrived and manipulated drive to a preemptive war of aggression with Iraq. In the words of the Downing Street Minutes, "the intelligence and facts were being fixed around the policy." There was the unconscionable use of detention without cause; enhanced interrogation if not outright torture; extraordinary rendition; the extralegal use of national security letters; warrantless wiretaps of American citizens; the unilateral weakening of our regulatory system; the use of signing statements to override the laws of the land; and the intimidation and silencing of critics and whistleblowers who dared tell fellow citizens what was being done in their name.
Many think these acts rise to the level of impeachable conduct. I agree. I have never wavered in my belief that this President and Vice-President are among the most impeachable officials in our Nation's history, and the more we learn the truer that becomes.
Some ardent advocates of impeachment have labeled me a traitor - or worse - for declining to begin a formal impeachment inquiry in the House Judiciary Committee. While I reject that particular criticism, I want to make clear how much I respect those who have given so much time and energy to the cause of fighting for the impeachment of President Bush and Vice- President Cheney. While we may not agree on the best path forward, I know they are acting on the basis of our shared love of this country. These citizens are not fringe radicals, and they are obviously not motivated simply by personal feelings about President Bush, however strong those feelings may be at times. They are individuals who care deeply about our Constitution and our Nation, and who have stood up to fight for the democracy they love, often at great personal cost. Our country was founded, and our democracy has long been nurtured, by people willing to take such risks, and we should honor their vigilance and courage.
However, as I have said, while President Bush and Vice President Cheney have earned the dishonorable eligibility to be impeached, I do not believe that would have been the appropriate step at this time in our history, and I would like again to briefly explain why that is the case.
Contrary to assertions by some advocates, the predecessor to this Report - the Judiciary Committee then-Minority staff's "Constitution in Crisis" - did not call for impeachment. Rather, it concluded that there was substantial evidence of impeachable misconduct and that there should be a full investigation by a select Committee armed with subpoena power. Prior to the 2006 elections, when I saw that my views on impeachment were being misstated by friends and foes alike, I set the record straight in an essay published in The Washington Post titled "No Rush to Impeachment":
The administration's stonewalling, and the lack of oversight by Congress, have left us to guess whether we are dealing with isolated wrongdoing, or mistakes, or something worse. In my view, the American people deserve answers, not guesses. I have proposed that we obtain these answers in a responsible and bipartisan manner. It was House Republicans who took power in 1995 with immediate plans to undermine President Bill Clinton by any means necessary, and they did so in the most autocratic, partisan and destructive ways imaginable. If there is any lesson from those "revolutionaries," it is that partisan vendettas ultimately provoke a public backlash and are never viewed as legitimate.
So, rather than seeking impeachment, I have chosen to propose comprehensive oversight of these alleged abuses. The oversight I have suggested would be performed by a select committee made up equally of Democrats and Republicans and chosen by the House speaker and the minority leader.
The committee's job would be to obtain answers - finally. At the end of the process, if - and only if - the select committee, acting on a bipartisan basis, finds evidence of potentially impeachable offenses, it would forward that information to the Judiciary Committee. This threshold of bipartisanship is appropriate, I believe, when dealing with an issue of this magnitude.
Nonetheless, I have been accused of "violating my oath of office" by "playing politics" with impeachment, and I have been criticized for saying that I have the Constitution in one hand and a calculator in the other. I would suggest that this argument ignores the text and history of the Constitution. There is nothing mandatory about using the power to impeach when wrongful conduct is shown, and the decision whether or not to impeach was always intended to be subject to the politics at the time. We live in a democracy, after all.
Thus, in Federalist No. 65, Alexander Hamilton described impeachable offenses as "those... which proceed from the misconduct of public men... which may with peculiar propriety be denominated POLITICAL..." (Caps in original.) To address these "political" offenses, the Constitutional Convention rejected using either a judicial tribunal (that was the approach of the "Virginia Plan") or a hybrid committee of judicial and political officers (as proposed by Gouverneur Morris and Charles Pinckney), and instead vested the authority in the legislature. As the records of the Convention detail, the Founders made this choice fully aware of the political considerations that would factor into impeachment decisions.
The simple fact is, despite the efforts of impeachment advocates, the support and votes have not been there, and could not reasonably be expected to materialize. It takes 218 votes in the House and 67 votes in the Senate to impeach and remove a president from office. The resolution I offered three years ago to simply investigate whether an impeachment inquiry was warranted garnered only 38 cosponsors in the House, and the Democratic Leader of the Senate labeled it "ridiculous." Impeachment resolutions against Vice President Cheney and President Bush offered by my friend and colleague Dennis Kucinich only garnered 27 and 11 House cosponsors, respectively.
Impeachment, if done right, also takes time. When I became Chairman of the House Judiciary Committee in January of 2007, after twelve years of Republican rule, we had to start much of our oversight from scratch, and against an Administration more dedicated to secrecy and obfuscation than any in our history. Unlike the Nixon impeachment, we did not have the benefit of the bipartisan Ervin Committee or a fearless special prosecutor such as Archibald Cox or Leon Jaworski to help lay the groundwork needed to remove a president or vice president from office.
During the failed impeachment of President Bill Clinton, many of us derided House Republicans for, in the words of Senator Bob Kerrey, "sloppily" conducting the inquiry. Without calling a single fact witness, the Republicans essentially rubber-stamped the work of Independent Counsel Ken Starr and forwarded his allegations on to defeat in the Senate. Many advocates would have had me do the same to this President based on newspaper and magazine articles. But that course would have cheapened the impeachment process itself - and would not have led to success.
The final plea was: "Why not try? What do you have to lose?" Impeachments, however, both successful and unsuccessful, have precedential consequences - they set standards for future presidential behavior. The House Judiciary Committee's rejection of an article of impeachment against President Nixon for failing to file tax returns, for example, was used as precedent in acquitting President Clinton for impeachment based on personal misdeeds.
While some of the difficulty in garnering support for impeachment results from fatigue over the recent and unjustified impeachment of President Clinton, and concern about routinizing what should be an extraordinary constitutional event - whatever the reason, an impeachment vote in the House was certain to fail. What, then, would be the precedent set by a House vote against the impeachment of President Bush or Vice President Cheney for deceiving our nation into war, allowing torture, engaging in warrantless domestic surveillance, and retaliating against those who attempted to reveal the truth about these acts? In my view, a failed impeachment - by an almost certainly lopsided vote - would have grossly lowered the bar for presidential behavior and caused great damage to our Constitution. More immediately, a failure to impeach President Bush and Vice President Cheney would have been trumpeted by their allies as a vindication for them and for their overreaching policies.
To all of us who treasure our constitutional form of government and our standing in the world, and mourn the loss of life in a war built on deception, I know the failure to impeach is a deeply unsatisfying outcome. As one who has participated in more impeachments than any other Member of Congress, I came to the realization that this is the reality of this moment in history.
Faced with that reality, I had a choice: do nothing; or redouble my efforts to peel away the secrecy of this Administration, expose its wrongdoing, and protect the liberties and freedoms of the American people.
I chose the latter course. This is what led me to bring suit in federal court to challenge the legality of the Iraq War. This is what led me to publish my own report, "What Went Wrong in Ohio," and join with Barbara Boxer and the late Stephanie Tubbs Jones in filing an election challenge on the House floor challenging the unjust result in 2004. This is what led me to personally deliver a letter to the White House regarding the manipulation of intelligence described in the Downing Street Minutes, signed by 121 Members and more than 500,000 Americans, to challenge the warrantless surveillance of innocent Americans, and to hold a series of Minority hearings in the basement of the Capitol and the Rayburn Building regarding these matters. This is what led me to call for a special counsel to investigate the culpability of the White House in the outing of Valerie Plame. And over the last two years in the Majority, this is what led the Judiciary Committee to conduct 157 days of oversight hearings.
These choices produced results. As just one example, our Committee issued the first subpoenas of the new Congress when we learned that United States Attorneys had been mysteriously dismissed. Our investigative efforts turned up thousands of pages of documents, which were made available, in real time, on the Internet to the public. We went to court and obtained the testimony of former Justice Department/White House liaison Monica Goodling. These efforts exposed substantial wrongdoing at the Department, and resulted in passage of a new law regarding the replacement of U.S. Attorneys, the resignations of numerous high- ranking Department officials, including the Attorney General, and an ongoing criminal investigation of these officials.
When the culpability for the firing of the United States Attorneys appeared to lead into the White House, the Committee subpoenaed high-ranking presidential aides and internal White House memos. When the Administration refused to comply, our Committee held the responsible officials in contempt, and the full House followed suit. And when the Justice Department refused to prosecute, the Committee filed suit in federal court and won a landmark victory.
In addition to the appointment of Patrick Fitzgerald as Special Counsel in the Valerie Plame matter and the conviction of Scooter Libby, I released a Homeland Security Inspector General Report calling into question the rendition of Maher Arar to Syria, and obtained two GAO reports confirming the harm and danger of President Bush's signing statements. At the time of this Report, we are awaiting an Office of Professional Responsibility report concerning what may have been the selective, politically biased prosecution of former Alabama Governor Don Siegelman and others, Inspector General reports concerning the propriety of the President's warrantless surveillance program, a Special U.S. Attorney investigation into the U.S. Attorney firings, and a Special U.S. Attorney investigation into the CIA tape destruction. All of this is occurring even before the onset of a new, more open Administration.
Moreover, history is already judging President George W. Bush. As of this writing, his approval rating is in the mid-20s, dismal by any standard. The November 2008 election is widely viewed as a landslide repudiation of President Bush and his policies.
But our work is not done. The lesson I took away from Watergate and the Vietnam era spying abuses was that much of the work of reining in an Imperial Presidency takes place after the change in Administrations. It was only due to the work of the Church Committee and other reviews initiated after President Nixon resigned that we were able to pass historic legislation such as the Federal Campaign Finance Act, the Foreign Intelligence Surveillance Act, the Independent Counsel Act, the Ethics in Government Act, and the Presidential Records Act. It was Pecora Commission's work after the Wall Street Crash in 1929 that helped lay the ground work for the New Deal banking and securities reforms.
Likewise, I believe now is when much of the work to remedy the excesses of the most recent Imperial Presidency begins. That is why this Report recommends that the Judiciary Committee and the Congress pursue any unresolved subpoenas and document requests left over from the last Congress; that we create a "blue-ribbon" commission or similar select committee, along the lines of the 9/11 Commission, to investigate these matters and report to Congress, the President, and the public; and that the incoming Administration finally begin an independent criminal review of activities of the outgoing Administration, such as enhanced interrogation, extraordinary rendition, and domestic warrantless surveillance. These initiatives can and should work collectively and without prejudice to one another. The fact that Congress is pursuing responsible oversight should not impact any criminal investigations, just as the work of the Ervin Committee did not limit the prerogatives of Special Counsels Cox or Jaworski. As a matter of fact, information gleaned from one review could reinforce and galvanize others. While I understand there is a powerful desire to simply move on and focus on the many large issues facing us, we simply cannot sweep these matters under the rug of history without addressing them head on. As the world's oldest democracy, I am certain we are strong enough to survive and even prosper from these proposed inquiries.
In addition to these threshold recommendations, the Report goes on to make a total of 50 policy recommendations. These range from passing laws regarding self-serving presidential pardons, helping to protect whistleblowers from retribution, and reforming our elections; as well as commencing executive and Justice Department actions to end torture and extraordinary rendition, close Guantanamo Bay, provide due process to detainees, end the use of abusive signing statements and assertions of state secrets, and end the selective declassification and manipulation of intelligence information.
Candidate Obama repeatedly and publicly spoke out against the violations of our Constitution perpetrated by the Bush Administration. It is my hope that these recommendations will help to ensure that President Obama follows through and rolls back those excesses, and restores the checks and balances that have made our nation strong. There remain numerous questions about the Bush Administration's misdeeds, many of them described in the text that follows, and the more these facts are uncovered and aired, the stronger they will make our democracy.
The Constitution has been sorely tested over the last eight years. But like the late Mr. Schlesinger, I am confident in our capacity to self-correct. Doing so will require much hard work and diligence, and that effort only continues with the release of this Report. Our work is far from complete.
John Conyers, Jr. January 2009
Executive Summary
This Report has been prepared at the direction of Rep. John Conyers, Jr., Chairman of the House of Representatives Committee on the Judiciary. It was drafted to itemize and document the various abuses that occurred during the Bush Administration relating to the Committee's review and jurisdiction, and to develop a comprehensive set of recommendations to prevent the recurrence of these or similar abuses in the future. The Report was initially published on the internet on January 13, 2009. This final version corrects typographical errors, includes an Appendix that highlights significant source materials and Judiciary Committee accomplishments, and accounts for the final days of the Bush Administration.
The Report begins with a preface titled "Deconstructing the Imperial Presidency," which describes and critiques the key war power memos that gave rise to the concept of broad-based, unreviewable, and secret presidential powers in time of war. These legal theories, many of which took seed shortly after September 11, 2001, rely on breathtaking assertions regarding the nature and scope of the so-called "global war on terror," such as those set forth in an October 23, 2001, memorandum concluding that the president may order extensive military operations inside the United States. As the Report documents, these theories were relied on time and again in numerous other contexts by the Bush Administration over the next seven and one half years.
The next five sections of the Report describe specific abuses of the Imperial Presidency relating to Judiciary Committee inquiries.
Section 1, "Politicization of the Department of Justice," describes the Committee's U.S. Attorneys investigation and concerns relating to the politicization of the Civil Rights Division in general and the Voting Rights Division in particular.
Section 2, "Assault on Individual Liberties," broadly details Bush Administration policies relating to detention, enhanced interrogation, extraordinary rendition, ghosting and black sites, warrantless domestic surveillance, and the issuance of national security and exigent letters.
Section 3, "Misuse of Executive Branch Authority," describes concerns relating to signing statements and misuse of regulatory authorities.
Section 4, "Retribution against Critics," details the facts ascertained relating to the outing of former intelligence agent Valerie Plame Wilson, and other instances of improper retribution by the Bush Administration against its critics.
Section 5, "Government in the Shadows," describes multifaceted efforts of the Bush Administration to avoid accountability and culpability through a variety of legal techniques, including broad and unprecedented assertions of executive privilege, withholding testimony and information without formal assertion of privilege, extraordinary assertions of state secrets, broad uses of classification authorities, and unduly narrow construction of the Freedom of Information Act, as well as manipulation of intelligence in the run-up to the Iraq War. Each of these sections includes a comprehensive set of findings detailing specific legal and factual conclusions drawn from the review.
Section 6 of the Report sets forth a comprehensive set of 50 policy recommendations designed to respond to the abuses and excesses of the Bush Imperial Presidency. The list begins with three major threshold recommendations:
- First, that the Judiciary Committee pursue its document requests and subpoenas pending at the end of the 110th Congress.In this regard, the Report firmly rejects the notion that we should move on from these matters simply because a new Administration is set to take office. This is because there never has been an independent, comprehensive review of these very serious allegations with a full report to the American public. The investigations to date have either been limited in scope or authority, hidden from the public and the Congress, or stonewalled or obstructed by the outgoing Administration behind impenetrable walls of classification and privilege.
- Second, that Congress create an independent blue ribbon commission or similar body to investigate the host of previously unreviewable activities of the Bush Administration; including detention, enhanced interrogation, extraordinary rendition, ghosting and black sites, and warrantless domestic electronic surveillance.
- Third, that the new Administration conduct an independent criminal inquiry into whether any laws were broken in connection with these activities.
The purpose of the above-described investigations is not payback, but to uphold the rule of law, allow us to learn from our national mistakes, and prevent them from recurring. Such an effort would be a welcome sign to our friends, and a warning to our foes, that this Nation can indeed serve as a beacon of liberty and freedom without weakening our ability to combat terrorism or other threats.
The Report makes clear that even after scores of hearings, investigations, and reports, Congress and the American public still do not have answers to some of the most fundamental questions concerning the Bush Imperial Presidency. These include the following:
1. Who created the U.S. Attorney firing list, and how were specific U.S. Attorneys included or excluded from the list?
After more than 13 House and Senate Judiciary committee hearings and depositions with over 12 witnesses, we still do not know who created the U.S. Attorney firing list and why. Witnesses testifying included then-Attorney General Alberto Gonzales, his Chief of Staff Kyle Sampson, Deputy Attorney General Paul McNulty, White House Liaison Monica Goodling, and every other senior Department of Justice official with a reported role in the matter, but none have accepted responsibility for creating the list. Then-Attorney General Gonzales, for example, claimed that he "was not involved in seeing any memos, was not involved in any discussions about what was going on," and testified that he did not place the fired U.S. Attorneys on the list, even as he later claimed not to remember any details of the firings or the reasons those U.S. Attorneys were fired. He testified at one point that he regretted not having the Deputy Attorney General "directly involved" in the process, only to later assert that the one person he had relied upon "in particular" was the Deputy Attorney General. Mr. Gonzales defended his inability to recollect the facts by claiming that he had not spoken to key fact witnesses "to preserve the integrity" of the investigation, but Ms. Goodling said that the Attorney General had rehearsed his recollection of the facts with her.
Chairman Conyers has repeatedly stated that "the bread crumbs in this investigation have always led to 1600 Pennsylvania Avenue," yet the White House has asserted a broad and unprecedented form of executive privilege and supposed immunity from subpoena to prevent Harriet Miers and Karl Rove from testifying and to justify the refusal by the White House and the Republican National Committee refusing to turn over relevant documents and e-mails. The Bush Administration has continued to stonewall even after House votes for contempt of Congress and a federal district court decision rejecting its legal position.
2. Were any laws broken as a result of the enhanced interrogation tactics engaged in by the Bush Administration?
Notwithstanding various internal reports by the Bush Administration and a number of investigations and hearings in the Congress (limited and constrained in many cases by Administration obstruction), there never has been a full and independent inquiry into whether there have been criminal violations of federal statutes prohibiting torture and war crimes. Consider the following exchange between Chairman Conyers and Attorney General Mukasey at a February 7, 2008, hearing concerning admitted instances of waterboarding, an interrogation method the Bush Administration belatedly acknowledged was unlawful:
Mr. Conyers: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?Unanswered was how the Attorney General could know the waterboarding was done in good faith reliance on the OLC opinions and within any limits or constraints set by the Justice Department without first investigating the facts.
Mr. Mukasey: No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under law as it existed then.
Consider also the following exchanges between Subcommittee Chairman Nadler, former Attorney General Ashcroft, and Attorney General Mukasey at hearings on July 17, 2008, and July 23, 2008, respectively, concerning waterboarding:
Mr. Nadler: Attorney General Ashcroft, in your testimony you mentioned Abu Zubaydah, who was captured in March 2002. The Inspector General report on the FBI's role in interrogation makes clear that he was interrogated beginning in march of that year. The Yoo-Bybee legal memo [approving CIA interrogation techniques] was not issued until August 2002. So was the interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?Attorney General Mukasey was no more responsive:
Mr. Ashcroft: I don't know.
Mr. Nadler: Well, did you offer legal approval of interrogation methods used at that time?
Mr. Ashcroft: At what time, sir?
Mr. Nadler: Prior to August of 2002, [in] March 2002.
Mr. Ashcroft: I have no recollection of doing that at all.
Mr. Nadler: ...Do you know if waterboarding was used on Abu Zubaydah before the DOJ approved it?
Mr. Ashcroft: I do not.
Mr. Mukasey: I have not investigated that myself. I think part of that question involves whether the methods employed were consistent with that memo or not, and I don't know whether they were or they were not.
Mr Nadler: Do you think someone should take a look at that?
Mr. Mukasey: I think a look at that may very well be taken or have been taken. I am not specifically aware of it as I sit here.
Mr. Nadler: Can you let us know?
Mr. Mukasey: I will take a look.
The Committee has not heard back on the matter from the Attorney General.
3. Were any laws broken as a result of the extraordinary rendition tactics engaged in by the Bush Administration?
The Committee has uncovered considerable evidence of potential criminal culpability relating to the rendition of Maher Arar. This includes:
- A Department of Homeland Security Inspector General report found that Immigration and Naturalization Service (INS) officials had determined that it was "more likely than not" that Mr. Arar would be tortured if sent to Syria, but sent him anyway, even though the "assurances upon which INS based Mr. Arar's removal were ambiguous regarding the source or authority purporting to bind the Syrian government to protect Arar."
- The Inspector General also expressed concern about the speed with which Administration officials transferred Mr. Arar and about possible interference with his access to counsel. "The method of the notification of the [Convention Against Torture protection] interview to Mr. Arar's attorneys and the notification's proximity to the time of the interview [a phone message left at a work number at 4:30 p.m. on a Sunday for an interview that started at 9:00 p.m. that same Sunday night] were questionable."
- Former Department of Homeland Security Inspector General Clark Ervin has also testified before the Committee that: "There is no question but that given everything we know, the intention here was to render him to Syria, as opposed to Canada, because of the certainty that he would be tortured in Syria and he would not be in Canada."
While these troubling facts led to apologies to Mr. Arar by the Chairs and Ranking Members of the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and the House Foreign Affairs Committee's Subcommittee on Oversight, there has never been an adequate explanation as to why these facts have not warranted a criminal investigation.
4. Were any laws broken as a result of the so-called "Terrorist Surveillance Program" and related activities?
There have been numerous efforts to obtain a judicial determination of the legality of the President's warrantless domestic surveillance program. Among other things, the Electronic Frontier Foundation filed a lawsuit alleging that AT&T had collaborated with the National Security Agency (NSA) to engage in illegal surveillance (which became one of a series of consolidated cases challenging the program); the American Civil Liberties Union brought a suit alleging the program was unlawful; and Rep. Maurice Hinchey (D-NY) sought a Department of Justice Office of Professional Responsibility investigation into whether Department attorneys had violated their legal or ethical responsibilities in connection with the program.
Each and every one of these efforts has been obstructed by the Bush Administration. After unsuccessfully arguing that the Electronic Frontier Foundation suit should be dismissed as a result of the state secrets doctrine, the Bush Administration insisted that retroactive legal immunity for telecommunications companies involved in the program be included in recently enacted surveillance legislation. After a federal court in Michigan found the warrantless surveillance program to be unlawful, the Administration succeeded in having the decision reversed on appeal on procedural grounds. The Department's internal investigation died in early 2006 after President Bush denied the investigators the necessary security clearances (the investigation was belatedly revived by the new Attorney General last year, but only after substantial time on the relevant statutes of limitations had elapsed).
5. To what extent were President Bush and Vice President Cheney involved in the outing of Valerie Plame Wilson and its aftermath?
There is considerable evidence that culpability for the outing of Valerie Plame Wilson and subsequent obstruction goes above and beyond Scooter Libby. We have learned the following as a result of the Special Counsel and congressional investigations and the trial and conviction of the Vice President's former Chief of Staff I. Lewis Libby:
- Mr. Libby's notes from on or before June 11, 2003, reveal that the Vice President informed Mr. Libby that Ambassador Wilson's wife, Valerie Plame Wilson, worked in the Central Intelligence Agency's Counterproliferation Division.
- That same day, Cathie Martin, Assistant to the Vice President for Public Affairs, learned that Ambassador Wilson's wife worked at the CIA, and she relayed that information to Mr. Cheney and Mr. Libby during a meeting in the Vice President's office.
- A few weeks later, on or about July 6, 2003, Mr. Cheney clipped Ambassador Wilson's New York Times op-ed questioning the Bush Administration's Iraq- uranium claim and, in his own hand, wrote the following rhetorical note conspicuously above its title: "Have they [i.e., the CIA] done this sort of thing before? Send an ambassador to answer a question... Or did his wife send him on a junket?"
- The next day, Ms. Martin e-mailed White House Press Secretary Ari Fleischer with talking points on the Niger trip by Mr. Cheney. He subsequently dictated a revised set of talking points that Ms. Martin circulated to the press. It has been reported that the FBI's summary of the Special Counsel's interview with Vice President Cheney reflects that he "was at a loss to explain how the change of the talking points focusing attention on who specifically sent Wilson to Niger would not lead... to exposure" of Valerie Plame Wilson's identity.
- In the early fall of 2003, Mr. Cheney wrote a note to himself on the unfairness of Mr. Libby, alone among White House staffers, having been asked to "stick his neck in the meat grinder" in connection with the White House's response to Ambassador Wilson's op-ed.
- Mr. Libby's key disclosure of Ms. Plame Wilson's identity to New York Times reporter Judith Miller occurred during a meeting arranged at the behest of the Vice President.
- A redacted report of the FBI's interview with Mr. Libby that the Justice Department allowed the staff of the House Oversight Committee to review reflects that Mr. Libby told the FBI that "it was 'possible' that Vice President Cheney instructed him to disseminate information about Ambassador Wilson's wife to the press."
While this and other evidence strongly suggests vice presidential and/or presidential involvement, complete understanding of this matter has been obstructed by both the President's assertion of executive privilege and threatened assertion to deny the Oversight and Government Reform Committee and the Judiciary Committee access to relevant information, and by Mr. Libby's lies to FBI interviewers and the grand jury convened to investigate the leak. As Special Counsel Fitzgerald emphasized during his closing argument, Mr. Libby's lies put a "cloud over what the Vice President did" immediately following the publication of Ambassador Wilson's op-ed.
Given that so many significant questions remain unanswered relating to these core constitutional and legal matters, many of which implicate basic premises of our national honor, it seems clear that our country cannot simply move on. As easy or convenient as it would be to turn the page, our Nation's respect for the rule of law and its role as a moral leader in the world demand that we finally and without obstruction conduct and complete these inquiries. This can and should be done without rancor or partisanship.
[...]
Section 6 - Policy Recommendations
Discussed below is a comprehensive set of 50 recommendations designed to respond to the abuses and excesses of the Bush Imperial Presidency. They correspond to the topics discussed in more detail in sections one through five of this report, although a short explanation of the reasons for each recommendation is included below. Some of these recommendations will require congressional action, while others can and should be implemented promptly by executive action by the incoming Obama Administration.
General
1. The Congress and the Judiciary Committee should pursue document and witness requests pending at the end of the 110th Congress, including subpoenas, and the incoming Administration should cooperate with those requests. The Committee's outstanding requests include:
(i) subpoenas to Harriet Miers and Josh Bolten for testimony and documents relating to the politicization of the Department of Justice and the U.S. Attorney firings;Reason: The Bush Administration has relied on excessively broad claims of executive privilege and immunity from subpoena to obstruct congressional oversight of the Administration's operations and activities. While a new Administration is soon to take office, critical questions about the matters under investigation remain unanswered. No president should be allowed to run out the clock on important congressional oversight in this fashion. While executive confidentiality may be necessary in limited circumstances to protect the content and candor of counsel to the president, the principle has been abused. Left unresolved, this dispute involving the Judiciary Committee and the Congress could set a dangerous precedent whereby future administrations could avoid congressional inquiry simply by refusing to provide documents and waiting out the end of the presidential term. The executive would then effectively be able to erase one of the checks held over it by the legislative branch.
(ii) a subpoena to Karl Rove for testimony relating to the politicization of the Department of Justice and the U.S. Attorney firings;
(iii) a subpoena to the Republican National Committee for documents relating to the politicization of the Department of Justice and the U.S. Attorneys firings;
(iv) a subpoena to Attorney General Mukasey for documents regarding selective prosecution, undisclosed OLC memoranda concerning national security and related issues, and unredacted FBI reports of interviews with President Bush, Vice President Cheney, and other White House officials concerning the unauthorized disclosure of Valerie Plame Wilson's identity;
(v) the unredacted notes of FBI Director Mueller relating to the 2004 hospital visit at Attorney General Ashcroft's bedside and the Terrorist Surveillance Program;
(vi) information regarding the Justice Department's arrangements to pay for former Attorney General Gonzales' legal fees stemming from the pending class action lawsuit relating to allegations of politicized hiring; and
(vii) e-mails and documents pertaining to the FBI whistleblower claims of Bassem Youssef and Michael German.
2. Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance.
This Commission should have subpoena power, the power to take depositions, and the right to compel testimony or seek access to the courts to enforce subpoenas for hearing or deposition testimony or for documents. The president should order full cooperation by all present and past federal employees with requests for information from this Commission, and, to the extent possible, waive privileges, including privileges that may be asserted by prior Administration officials, that would otherwise impede the fact-finding process.1605 Chairman Conyers introduced H.R. 104 on the first day of the 111th Congress, January 6, 2009, to provide for such a commission.
Reason: At present, information concerning the Bush Administration's policies that have impacted civil liberties - such as its detention, interrogation, ghosting, rendition, and warrantless domestic surveillance policies - has emerged in somewhat limited internal investigations, a few press articles and some self-serving public statements or publications, and the disclosure of a limited set of documents. While there have been some important Committee investigations on particular matters of controversy, there has been no systematic effort to ascertain the pertinent facts as to the formulation and implementation of these policies. The American people and Congress must have a more comprehensive understanding of the facts and circumstances that resulted in the policies and practices of the Bush Administration by which it asserted that the president could exercise uncheckable and unreviewable powers as Commander in Chief in spheres of action that directly impacted the Constitutional rights of United States citizens.
Previous blue-ribbon panels, such as the "National Commission on Terrorist Attacks Upon the United States" (the "9/11 Commission") have helped inform and educate the public and the Congress, as have congressional "select committees" such as the Select Committee to Study Government Intelligence Activities (the "Church Committee"), the respective "House Select Committee to Investigate Covert Arms Transactions with Iran" and the "Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition" (the congressional "Iran/Contra Committees"), and the Senate Select Committee on Presidential Campaign Activities (the Senate "Watergate" Committee, chaired by Senator Sam Ervin).
3. The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.
This criminal investigation should, for the first time, ascertain and critically examine the facts to determine whether federal criminal laws were violated. It may be appropriate for certain aspects of the factual investigation by the prosecutor to await pertinent reports by the Inspectors General or information developed by any Blue Ribbon Commission or Select Committee. As part of this process, the incoming Administration should provide all relevant information and all necessary resources to outstanding Justice Department investigations, including with respect to the U.S. Attorney removals, the politicization of the Civil Rights Division, and allegations of selective prosecution. Congress should also consider extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years.
Reason: Among other things, documented incidents of grave abuse of detainees at various detention facilities including Abu Ghraib and Guantanamo Bay and the extraordinary rendition of terror suspects to countries where they have been tortured, and the implementation of warrantless surveillance inside the United States, raise credible concerns that criminal laws may have been violated.1606
Attorney General Mukasey agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law.1607 Despite requests from Congress, that prosecutor was not asked to investigate whether the underlying conduct being depicted - the waterboarding itself or other harsh interrogation techniques used by the military or the CIA - violated the law.1608
In this regard, Attorney General Eric Holder, in his confirmation, was unequivocal in stating, in response to a question by Senator Leahy: "I agree with you, Mr. Chairman, water boarding is torture."1609 The Bush Administration's Attorney Generals refused to appoint a special counsel to investigate whether the practice of extraordinary rendition and, in particular whether the extraordinary rendition of Canadian citizen Maher Arar, violated the law. Similarly, there remains a serious question as to whether the warrantless domestic surveillance engaged in as part of the so-called "Terrorist Surveillance Program" prior to January 2007, violated the law.1610
Finally, the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment (Torture Convention), ratified by the United States in 1994, appears to require the United States to investigate possible torture committed within its jurisdiction. Article 12 of the Convention requires: "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."1611 Under the Supreme Court's decisions providing the Guantanamo detainees access to the United States courts to pursue habeas claims, there is little question that Guantanamo would be considered a "territory under [the United States'] jurisdiction." Moreover, the statement of Susan J. Crawford, the convening authority for military commissions, that: "We tortured [Mohammed al-Qahtani]," along with other public materials that describe aspects of that interrogation, provide "reasonable grounds" to believe that torture was committed there.1612
It would seem that all or part of the above-described conduct meets the relevant requirements under federal regulations for the appointment of a special counsel (28 CFR 600.1), in that (i) a criminal investigation is warranted (e.g., waterboarding and warrantless domestic surveillance appear to violate criminal laws); (ii) the investigation would present a conflict of interest for the Justice Department (e.g., some of the potentially culpable parties have worked for or with the Department); and (iii) appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).
Politicization of the Department of Justice
4. The incoming Administration should review and consider strengthening the policy limiting contacts concerning prosecution and enforcement matters. The incoming Administration should review and strengthen as appropriate the current policy limiting contacts between the White House, the Department of Justice, and Members of Congress regarding prosecution and civil enforcement matters.
Reason: Attorney General Mukasey deserves credit for revising the Ashcroft/Gonzales policy under which a broad range of individuals within the White House were authorized to communicate with Department personnel about criminal prosecution or civil enforcement matters. Further review is warranted, however, to assess whether the current policy has appropriately limited these channels of communication. In addition, this policy appears to be contained solely in a memorandum from Attorney General Mukasey to Department of Justice officials, including United States Attorneys.1613 In past administrations, however, Department policy regarding contacts with the White House or members of Congress on prosecution and civil enforcement has additionally been stated in formal communications to congressional Committee Chairs and the White House Counsel,1614 and the incoming Administration should consider whether such additional steps are warranted.
5. The incoming Administration should continue the customary practice of replacing U.S. Attorneys at the outset of the Administration. The Administration should accept the resignation of current U.S. Attorneys, as has been customary for incoming administrations when a change of party occurs, and should promptly appoint new U.S. Attorneys to all positions nationwide except where traditional recommenders urge that retaining current U.S. Attorneys would be in the public interest.
Reason: The Bush Administration's politicization of the United States Attorney corps has shaken the public's faith in the fairness of our federal criminal justice system. The Administration's refusal to provide a full public accounting of these issues to Congress or to the public has exacerbated the problem and cast an unfortunate cloud over the entire U.S. Attorney corps. In these circumstances, it is imperative to have a clean break and appoint a new slate of respected federal prosecutors through an appropriately thorough and professional process. In particular cases where traditional recommenders urge that current U.S. Attorneys be retained and the president concludes that doing so would be in the public interest, exceptions to this process may be appropriate. The Bush Administration, it should be noted, has already facilitated this process by requesting all political appointees to submit such letters of resignation "consistent with past practice." 1615
6. Congress should expand Justice Department Inspector General jurisdiction. Congress should consider legislation that would clarify and expand the jurisdiction of the Department of Justice's Office of the Inspector General to allow investigation of misconduct by senior Justice Department officials and United States Attorneys, such as the Amendment to H.R. 928 on this subject offered by Chairman Conyers and passed by the House during the 110th Congress.1616
Reason: Under current law, charges of political interference with prosecution decisions fall within the jurisdiction of the Department's Office of Professional Responsibility (OPR) and may not be investigated by the Department's Inspector General. Thus, the highly controversial Siegelman case and other matters raising concerns about political interference with prosecutorial decision-making are being investigated solely by OPR. Because OPR is answerable to the Attorney General, while the Inspector General has statutory independence, such matters are often better investigated by OIG. Accordingly, the next Administration and the Congress should support legislation allowing OIG to investigate allegations of misconduct by senior Department officials and United States Attorneys. This would strengthen the Department's ability to address such matters internally and enhance the credibility of Department investigations of these sensitive issues.
7. Congress should pass legislation providing Inspectors General the power to subpoena former agency employees and contract employees for testimony related to matters that occurred in connection with their employment or contract. This legislation would amend the Inspector General Act to permit an Inspector General to issue a subpoena to take testimony of an employee who resigns (or is no longer with the agency) and declines to consent to an interview by the Inspector General, subject to the reasonable limitations that testimony relate to matters occurring in connection with the individual's employment with the agency. As with other Inspector General subpoenas, such a subpoena for testimony would be enforceable by a district court.
Reason: The ability of the various Inspectors General to ferret out waste, fraud, and abuse can be easily frustrated when critical witnesses who were employees at the agency and have pertinent information resign rather than submit to interviews. The experiences of Department of Justice Inspector General Glenn Fine provide numerous examples of this problem. For example, in connection with his investigation of politicized hiring practices by Monica Goodling, Inspector General Fine noted in his report: "Monica Goodling declined our request to be interviewed. Because she is not currently employed by the Department, we could not compel her to cooperate."1617
Another example that typifies this problem occurred in connection with the Justice Department Inspector General's investigation of political hiring in the Department's Honors Program. Inspector General Fine described his Office's attempts to secure an interview with Ester Slater McDonald, Counsel to the Acting Associate Attorney General as follows:
McDonald declined to be interviewed during our investigation. When we first contacted her in September 2007 for an interview,she was a Counsel to the Associate Attorney General. She initially agreed to a tentative date for her interview, but she later asked us to postpone the interview while she retained counsel. We agreed. After McDonald retained an attorney, and after allowing time for the attorney to familiarize himself with the matter, a new date for the interview was set, October 25, 2007. However, at 5:15 p.m. on October 24, McDonald's attorney e-mailed our investigators to advise them that his client was canceling the interview. The attorney added that McDonald was no longer employed by the Department.As Inspector General Fine explicitly noted, her resignation and refusal to be interviewed frustrated his ability to identify the person or persons who gave Ms. McDonald instructions to implement the improper applicant review procedures.1619 This problem of the departed employee has emerged and been documented in other circumstances as well.1620
We learned that McDonald had resigned from the Department, effective October 24. On the evening of October 23, she had told her supervisor, Acting Associate Attorney General Katsas, that the next day would be her last day at the Department. Katsas said that her resignation came as a surprise to him.1618
The ability of an Inspector General to uncover wrong-doing should not be so easily frustrated by the departure of necessary witnesses from an agency. At present, the Inspectors General possess the authority to issues subpoenas for certain documents.1621 This legislation would extend that subpoena authority to testimony in the special circumstance of a departed employee.1622
8. The incoming Administration should improve the Executive Office of Immigration Review (EOIR) and the functioning of the immigration courts. The next Administration should ensure the professionalism and quality of the immigration courts, including the review process, by: increasing the number of immigration judges and law clerks; filling judicial vacancies promptly; providing meaningful and ongoing education and training for judges; addressing technology issues; and engaging in a review of Board of Immigration Appeals practices, such as affirmances without opinion and the implementation of the 2002 "streamlining" regulations.1623 An expert roundtable to consider further administrative and legislative improvements should be convened.
Reason: A Joint Report by the Department's Inspector General and Office of Professional Responsibility found substantial and "systematic" politicization in the selection of immigration judges, in violation of the law.1624 The recommended improvements would minimize the substantive impact of this improper politicization and enhance the performance of EOIR and the immigration courts.1625
9. The Department of Justice should rescind the policy prohibiting career voting section employees from making recommendations as to whether the Department should object to proposed voting changes. The Attorney General should reinstate the policy followed prior to 2005 and allow recommendations from career staff as to whether the Department should object to proposed voting changes from state and local jurisdictions under Section 5 of the Voting Rights Act. It should also be made clear that career staff need not artificially limit their written analysis to the facts surrounding specific Section 5 submissions.
Reason: Under Section 5 of the Voting Rights Act, the Department of Justice reviews proposed changes to voting practices and procedures in jurisdictions with a history of voting discrimination, and can object to and make difficult to enact changes that have the purpose or effect of harming minority voting rights. As discussed in Section 1, in response to significant controversy concerning the Department's decision not to object to a Georgia law requiring photo identification to vote, a decision that some charged had involved political considerations, it was reported that the Department's political leadership instituted a new policy in 2005 requiring that staff members who review Section 5 submissions limit their written analysis to the facts of specific cases and refrain from making any recommendations as to whether the Department should object to the change.1626 Informal reports indicate that this policy remains in effect. In addition to the concern about politicization of Justice Department decisions, such a policy impairs the ability of the Justice Department to effectively analyze proposed voting changes and protect minority voting rights and should therefore be eliminated.
10. The Attorney General should conduct an independent review as to whether Bradley Schlozman violated criminal laws in his testimony before Congress. As promised during his confirmation hearing,1627 Attorney General Holder should order an independent review of the U.S. Attorney's Office of the District of Columbia's decision not to pursue criminal prosecution of Mr. Schlozman for providing false statements to Congress.
Reason: On June 5, 2007, Schlozman testified under oath before the Senate Judiciary Committee in connection with its investigation into the use of political considerations in hiring and firing of career attorneys at the Department of Justice. After evaluating Mr. Schlozman's testimony, the Justice Department's Office of the Inspector General (OIG) and Office of Professional Responsibility (OPR) concluded that Mr. Schlozman provided false statements to Congress and referred the matter to federal prosecutors. The OIG and OPR provided to the U.S. Attorney Office for the District of Columbia substantial evidence gathered during the course of its investigation, including transcripts of interviews, relevant documents, and e-mails which contradicted the sworn testimony of Mr. Schlozman. Providing false statements to Congress is a criminal offense and those who engage in such behavior should be federally prosecuted.
11. The Department of Justice should revise the Federal Prosecution of Election Offenses Manual. The Attorney General should reinstate language contained in the "Policy and Procedural Considerations" section of the January 1995 manual designed to prevent partisan abuse of election law enforcement by the Department. The Department should restore language warning against investigating allegations of voter fraud shortly before an election, reinstate the earlier cautionary policy against pursuing isolated instances of individual voter fraud (as compared to large scale cases of voter suppression), and reinstate the list of pre-election investigatory precautions (including those with respect to voter fraud) to be followed by prosecutors.
Reason: A federal criminal investigation initiated close to an election runs the risks of chilling legitimate voting participation and campaign activities, particularly in jurisdictions where there is a history of disfranchisement efforts targeting racial and ethnic minorities. As discussed in Section 1, moreover, actual and attempted politicization of voter fraud cases during the Bush Administration, such as the cases brought in 2006 by acting U.S. Attorney Brad Schlozman in Missouri, clearly warrant the reinstatement of language designed to help prevent partisan abuse of election law enforcement by federal prosecutors. In addition, federal election fraud prosecutions should involve a systemic and organized pattern of abuse, since individual cases typically have a minimal impact on the integrity of the voting process and generally represent an unwise use of Departmental resources.
12. Congress should enact comprehensive election reform legislation. Among other things, the legislation should:
(i) prohibit deceptive practices and voter intimidation;1628
(ii) prohibit the practice of voter caging (including caging based on mortgage foreclosure lists) and establish circumstances under which voters can properly be challenged at the polls;1629
(iii) establish a uniform system for counting provisional ballots;
(iv) clarify that non-matches between a registration list and drivers license or Social Security information under HAVA is not an automatic trigger for removing voters from voter registration rolls;
(v) make clear that voters without photo identification can vote if they sign an affidavit confirming their identity;
(vi) eliminate disparities in the allocation of voting machines and poll workers among a state's precincts;
(vii) mandate early voting and election day registration procedures;
(viii) provide uniform standards for vote recounts; and
(ix) prohibit voting machine companies that manufacture or sell voting equipment to state and local governments from engaging in political activities.1630 Chairman Conyers introduced a comprehensive election reform bill, H.R. 105, the Voter Opportunity and Technology Enhancement Rights (VOTER) Act of 2009 on the first day of the 111th Congress, January 6, 2009.
Reason: Voting irregularities and improprieties were reported throughout the country during the 2000 and subsequent presidential elections. As discussed in Section 1, actions of the Justice Department since then have weakened voting rights. Many barriers prevented thousands of people from voting. Voter registration was made more difficult. Officials misconstrued, misapplied and abused identification and provisional-ballot rules. In some areas, there were few voting machines in heavily populated minority areas, leading to unacceptable wait times, and there were suspicious voting-machine "errors." There were also numerous allegations of voter intimidation, voter deception, and vote suppression. Attempts were made to improperly challenge voters based on mass mailing or "caging" tactics, and to disqualify voters because of non-matches between information on registration lists and other data bases, contrary to the law.1631 On the positive side, experience with early voting and same day registration has demonstrated that these methods can help prevent a number of these voting difficulties. Numerous reports have documented these problems and potential solutions.1632 Comprehensive federal legislation including the specific reforms listed above, most of which have been included in previous federal election reform proposals, would promote uniformity of procedures and help ensure that all voters who are eligible to vote are able to vote, and have their vote properly counted in Federal elections.
Assault on Individual Liberty: Detention, Enhanced Interrogation, Ghosting and Black Sites, Extraordinary Rendition, Warrantless Domestic Surveillance, and National Security and Exigent Letters
13. The Department of Justice should reform its Office of Legal Counsel. The Attorney General should adopt rules to ensure that the Office of Legal Counsel provides the high quality, professional and independent legal advice that has long been its hallmark. Accordingly, the incoming Administration should formally adopt the well-stated "Principles to Guide the Office of Legal Counsel," proposed on December 21, 2004, by 19 former OLC attorneys.1633 These principles address matters such as the appropriate standards of professionalism and independence that should guide OLC attorneys, the importance of considering and addressing alternative legal arguments, the importance of conducting an effective interagency review of sensitive policy opinions, and related matters. They require public disclosure of opinions that conclude that the executive branch may disregard a federal statutory requirement, and call for timely disclosure of most OLC opinions. Furthermore, all current legal opinions should be reviewed, flawed opinions should be withdrawn, and non-classified opinions should be publically disclosed as appropriate.1634 In the future, classified opinions should be made available to the House and Senate Judiciary Committees, to ensure effective oversight of the Department of Justice.1635 Finally, if necessary, Congress should consider legislation such as H.R. 6929, the "Office of Legal Counsel Reporting Act of 2008," introduced by Representative Brad Miller in the 110th Congress, which would specifically require that OLC opinions be disclosed to Congress and that the Comptroller General review OLC practices.
Reason: The Department of Justice's Office of Legal Counsel has been at the center of providing the legal rationale for unreviewable Commander in Chief powers to justify the Bush Administration's policies regarding torture and interrogation (among other areas), and other executive usurpations of power. Traditional lines of communication between the White House and OLC broke down during the Bush Administration, so that White House aides worked too closely with lower tier OLC officials such as John Yoo to craft legal opinions that were politically or operationally useful to the Administration but which were not legally sound. These actions undermined OLC in a way that has harmed the nation, and in particular has damaged our intelligence services, which received erratic and unreliable guidance on the most sensitive of matters.
It is antithetical to the principles of our Constitution that the president should claim secret powers supported by secret interpretations of the Constitution. In fact. it is not fully known what body of "secret law" sits on the secret books of the Department of Justice and other Executive Branch offices. Documents such as those advising interpretations of the law that have been found unconstitutional by courts - such as the memoranda which concluded that the Geneva Conventions did not apply to the detainees - should be explicitly revoked.
14. The incoming Administration should close the U.S. prison at Guantanamo Bay. The President by executive order should close the Guantanamo Bay detention facility and dismantle the existing military commission system. The al Qaeda detainees accused of hostile conduct should, as a general matter, be charged with federal offenses and tried in the United States courts. Every effort should be made to find foreign countries to which other detainees who cannot be tried (either for lack of usable evidence or for other reasons), should be sent.1636 In rare circumstances and as a last resort, detainees - such as the Chinese Uighurs1637 - may be released into the United States.1638 The statute of limitations for terrorism related offenses should be increased from 8 to 10 years to minimize the prospect that the fact that the individuals have been held in Guantanamo (or elsewhere in military custody) would impede the ability to prosecute. Finally, Congress should conduct oversight and consider repealing the Military Commissions Act if necessary.
Reason: The actions of the United States in taking into military custody persons from around the world and sending them blind-folded and shackled to a remote island prison, where they have been subjected to harsh interrogation, has brought world-wide condemnation, especially where the processes for determining whether they should be so detained lacked procedural fairness. Indeed, the Bush Administration chose to hold the detainees at Guantanamo Bay on the assumption that there would be no institutions (such as the courts) to second-guess decisions as to who should be detained, for how long, and under what conditions. Even though the Supreme Court has required the Administration to use procedures that permit judicial review of the detention determinations and has permitted the detainees access to federal courts to pursue habeas corpus claims, approximately 250 prisoners are still held at Guantanamo.
The prisoners at Guantanamo cannot be neatly categorized. Some are al Qaeda fighters who can and should be prosecuted and tried for criminal terrorist acts, including their involvement in terrorist conspiracies. Others, like the Chinese Uighurs, do not pose a threat to the United States. The majority are alleged to have fought against the United States in Afghanistan, and of this group, many appear to have been low-level fighters - and may not have committed prosecutable war crimes. Some were turned over to the United States by bounty hunters or others seeking rewards. David Hicks and Salim Hamdan have already been returned to Australia and Yemen respectively, and hundreds of others have been freed. Every diplomatic effort should be made to repatriate or find countries willing to accept prisoners who cannot be tried. In rare circumstances, the United States should be willing to accept some of the Guantanamo detainees. This is a small but necessary step as part of a process of convincing other allies to accept some of them as well.1639
The costs of shutting down Guantanamo include the intense diplomatic efforts necessary to find countries willing to accept the prisoners upon their release and the devotion of judicial resources to try the al Qaeda prisoners or others for whom criminal prosecution is appropriate. However, the costs of maintaining Guantanamo are profound, and include the fact that its very existence serves as a recruiting motivation for future terrorists. Thus, notwithstanding the difficulties involved in closing Guantanamo, and recognizing that there are risks inherent in that process, the incoming Administration should do what is necessary to close Guantanamo.
15. The incoming Administration should require that all persons arrested in the United States be subject to civilian law enforcement procedures with requisite due process guarantees. This should include immediately taking steps to effectuate the transfer of Ali Saleh Kahlah al-Marri from military to civilian custody in order to charge him with federal terrorism-related offenses.1640 If Mr. al-Marri were to object to that transfer - for such act would moot out Supreme Court review - the Government should seek approval from the Supreme Court to move him, or seek a remand from the Supreme Court to the Fourth Circuit so that the Fourth Circuit can rule on its request to move him.1641 At the same time, the Justice Department should request that the Fourth Circuit vacate its July 2008 opinion, in light of the fact that the litigation has been mooted by events, and, in particular, so that the Fourth Circuit opinion that upheld Mr. al-Marri's military detention does not remain "good law" on this issue.1642
Reason: The detentions of Jose Padilla (an American citizen) and Ali Saleh Kahlah al-Marri (a lawfully admitted alien), each of whom was arrested in the United States and turned over to military custody upon the order of the President, constitute among the most extreme assertions of presidential power undertaken by the Bush Administration, and involve the Administration's claim that the United States itself is a "battlefield" on which the president can exercise full military power. As a practical matter, this means the incoming President, through the Department of Justice, should take a dramatically different legal position on the issues associated with the on-going detention of Mr. al-Marri. That case is presently before the Supreme Court, where the Bush Justice Department has maintained that the president, either under powers granted him directly by the Constitution as Commander in Chief or granted by Congress under the AUMF, may order the indefinite military detention of Mr. al-Marri.1643 Mr. Al-Marri, with support of numerous amici, has challenged his detention in federal court, and maintained that the president has no such power under either authority.
16. The incoming Administration should end torture and abuse. The President should issue an executive order that ends the use of torture or cruel, inhuman or degrading treatment of persons in U.S. custody or control and prohibits the use - by any agency, including the Central Intelligence Agency - of any practice not authorized by the Army Field Manual on Intelligence Interrogations, including but not limited to waterboarding. One concrete step that the President should take toward that end is to formally rescind President Bush's Memorandum of February 7, 2002, in which he concluded that as Common Article 3 of the Geneva Conventions does not apply to either al Qaeda or Taliban detainees.1644 If necessary, Congress should consider enactment of a bill that embodies the principles of H.R. 4114, the "American Anti-Torture Act of 2007," introduced by Rep. Jerrold Nadler in the 110th Congress, which provided, among other provisions: "No person in the custody or under the effective control of the United States shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation."1645
Reason: Among the actions taken by President Bush that has most damaged the United States standing and credibility as a moral leader in the world, his decisions - through Vice President Cheney, David Addington, and others - to permit waterboarding of detainees and to subject them to cruel, inhuman and degrading treatment stands at or near the top. Former Secretary of State Powell has stated that "The world is beginning to doubt the moral basis of our fight against terrorism."1646
To be clear, torture is currently banned under United States laws (under the anti-torture statute, the War Crimes Act, the Geneva Conventions, and the Detainee Treatment Act). It is an unfortunate state of affairs that these prohibitions have been called into doubt by the Bush Administration and its insistence that it may avoid these laws simply by redefining the term "torture." For the incoming President to reassert America's commitment to recognizing the prohibitions against torture and cruel, inhuman and degrading treatment should not suggest that there is any ambiguity in those prohibitions. Nonetheless, actions by the United States to again foreswear its intent to use torture or cruel, inhuman or degrading treatment will constitute an important first step to permit the United States to regain its international standing as a leader in the advocacy for human rights.
17. The incoming Administration should end the CIA program of secret detention and abusive interrogation. The incoming President should revoke Executive Order 13440 (issued July 20, 2007) and bring an immediate end to the CIA's secret detention and interrogation program. Consistent with military guidelines and international law, the President should restore accurate accounting and reporting of all detainees, ensure that the International Committee of the Red Cross (ICRC) be notified of and granted access to all detainees,1647 publicly disclose the identities, fate, and whereabouts of all detainees currently or previously held in secret, and ensure that detainees are afforded the baseline substantive right to be free from torture or cruel, inhuman, and degrading treatment. Finally, Congress should conduct oversight and consider legislation if necessary.
Reason: In September 2006, five years after he first secretly authorized it, President Bush admitted the existence of a secret CIA detention and interrogation program. Under this program, detainees were held incommunicado at secret prison sites - so-called "black sites" - and subject to aggressive interrogation, including waterboarding. In addition to holding detainees at secret facilities, the CIA also reportedly "ghosted" detainees within or among prison facilities in Iraq. Ghost detainees were not registered or processed as prisoners, allowing the CIA to avoid accountability for and documentation of their identity, whereabouts, and treatment. To date, the number of individuals held secretly remains unknown, but it is estimated that at least 100 individuals were held secretly by the CIA and that the whereabouts of two to three dozen remain unknown. While this program was suspended by President Bush in September 2006, a subsequent July 20, 2007, executive order appears to have revived it.1648 Holding prisoners in secret allows for torture and abusive detention and interrogation practices. It also undermines future efforts by the U.S. to demand ICRC access to U.S. personnel being held abroad and further undermines our moral standing in the world.
18. The incoming Administration should end the Bush Administration's practice of the extraordinary rendition of terror suspects. The President should halt the rendition of terror suspects in circumstances where torture is likely and should direct a comprehensive, interagency review of U.S. rendition practices, including the use of assurances from receiving countries that a detainee will not be tortured. This should include ensuring that relevant agencies promulgate regulations to implement the legal obligation that the U.S. not transfer persons to countries where it is more likely than not that they will be tortured. Congress should conduct oversight hearings on the policy and consider legislation to limit the transfer of suspects from U.S. custody based in part on aspects or principles of H.R. 1352, the "Torture Outsourcing Prevention Act," introduced by Rep. Edward Markey in the 110th Congress, which would make it illegal for the government to transfer detainees to countries that the State Department has substantial grounds to believe engage in torture or other cruel or degrading treatment, and S. 1876, the "National Security with Justice Act of 2007," introduced by Sen. Joe Biden in the 110th Congress, which prohibits extraterritorial detention and rendition except in limited circumstances.
Reason: Following the September 11th terrorist attacks, the Bush Administration rendered individuals to countries - including Syria, Egypt, Jordan, and Morocco - where torture of persons identified as having ties to al Qaeda or terrorism was likely. These "extraordinary renditions" - the covert transfer of individuals to foreign states in circumstances where torture is likely - violate U.S. and international law.1649 While the exact number of individuals subjected to the Administration's extraordinary rendition program remains unknown, the cases that have come to light have generated concern that the Administration has used the practice frequently,1650 and as a tool to avoid legal limits on - or criminal liability for - harsh interrogation.1651
The Bush Administration's extraordinary rendition program has been condemned by some of the U.S.'s strongest allies, and U.S. agents have been indicted in Italy and Germany for their involvement in renditions from those countries.1652 The Administration asserts that it has met any obligation to prevent transfers in circumstances where torture is foreseeable because it has gotten assurances from foreign governments that individuals will not be tortured.1653 But press reports, congressional testimony, and the experience of individuals rendered to foreign countries indicate that such assurances are insufficient protection against torture and also raise troubling questions about whether these assurances have been obtained and relied upon in good faith by U.S. officials.1654 Any such assurances should comply with applicable legal and human rights standards, and appropriate federal agencies should carry out their obligations under the Foreign Affairs Reform and Restructuring Act of 1998 to adopt regulations that individuals should not be transferred to countries where it is more likely than not that they will be tortured.1655
19. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should implement policies to ensure that there is no "reverse targeting" used under authorities created by the FISA Amendments Act of 2008. Such policies, whether resulting from legislation, amendments to Executive Order 12333 or internal guidelines and procedures, should make it clear that it is impermissible to acquire the communications of a U.S. person (who is protected by FISA) by targeting their acquaintances overseas (for whom a FISA warrant is not necessary). Such guidelines should prohibit reverse targeting when a significant purpose of the interception is to acquire an American's communications. Moreover, the guidelines should require a warrant from the Foreign Intelligence Surveillance Court if the intercepted communications of a known U.S. person are disseminated outside of the collecting agency repeatedly, as this is an indication that the U.S. person may in fact be the target. Congress should conduct oversight and consider legislation if necessary.
Reason: The 110th Congress enacted the FISA Amendments Act of 2008 (FAA). This Act, while an improvement on the Protect America Act which had been enacted to update FISA in 2007, still lacks certain key protections against "reverse targeting" by members of the intelligence community (the intelligence components of the Director of National Intelligence, Central Intelligence Agency, National Security Agency, Department of Homeland Security, Department of Defense, Department of State, and Department of Justice). When Congress allowed the Executive Branch the ability to go to the FISC to obtain broad authorizations for overseas communications, concerns were raised that such broad powers could be used to engage in reverse targeting. Although the Administration had claimed that it would not engage in such practices, and recognized that reverse targeting would be illegal if it occurred,1656 guidelines and training programs are necessary to ensure that reverse targeting does not happen.
20. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should implement policies to ensure that foreign intelligence surveillance is limited to targeted collection. The President should promulgate regulations and Executive Orders to dispel any concern that the FISA Amendment Act or other surveillance activities would allow bulk collection - the indiscriminate collection of all international communications into and out of the United States. Congress should conduct oversight and consider legislation if necessary.
Reason: It has been reported that the Bush Administration's secret wiretapping program involved not just the interception of foreign communications within the United States, but also the seizure and storage of masses of e-mail and other electronic traffic for future analysis.1657 During the debates on the FAA, Director of National Intelligence Mike McConnell denied that the United States had the capacity - let alone the desire - to engage in bulk collection, but he would not rule out bulk collection should technology develop to make such a dramatic seizure feasible.1658 Limitation of acquisitions - to circumstances in which a significant purpose of the acquisition of the communication is to obtain foreign intelligence information and in which at least one party is a specific individual target who is reasonably believed to be located outside of the United States - should serve to prevent such wholesale collection while preserving the ability to target persons overseas under the flexible authorities of the FAA. The method of the collection should not be broader than the parameters under which the interception is authorized. That is, if the intelligence community is only authorized to acquire communications of "a specific individual target," it is unreasonable to undertake such an acquisition through the wholesale seizure of communications traffic.
21. The incoming Administration should ensure full implementation of Inspector General recommendations concerning the FBI's use of NSLs. The FBI Director should complete implementation of the Inspector General's 2007 recommendations, including adequately accounting for information acquired from NSLs; training agents in all 56 field offices; ensuring that agents continue to abide by Attorney General Guidelines to use the least intrusive techniques during their investigations; and fully addressing the problems pertaining to the hierarchical issues in the field offices between Special Agents in Charge (SACs) and Chief Division Counsel. 1659 Congress should conduct careful oversight in this area and, if necessary, consider legislation addressing the current problems with NSL usage, incorporating at minimum the pre-PATRIOT Act NSL issuance standard requiring "specific and articulable facts giving reason to believe that the information or records sought... pertain to a foreign power or agent of a foreign power;" providing the recipient of an NSL the right to challenge the NSL and its nondisclosure requirement; providing a cause of action to any person aggrieved by the illegal provision of records pertaining to that person as a result of an NSL issued contrary to law, placing a time limit on an NSL gag order and allowing for a court approved extension; and providing for minimization procedures to ensure that information obtained pursuant to an NSL regarding persons who are no longer of interest in an authorized investigation is destroyed, along the lines of H.R. 3189, the "National Security Letters Reform Act," introduced by Rep. Jerrold Nadler in the 110th Congress.
Reason: In 2007 and 2008, reports from the Justice Department's Inspector General documented problems and abuses with the FBI's use of national security letters, including: the use of exigent letters,1660 inaccurate and incomplete congressional reporting regarding the use of NSLs,1661 inaccurate reporting of possible Intelligence Oversight Board violations,1662 circumventing NSL statutes by issuing NSLs in impermissible contexts,1663 and indefinitely retaining personal information on individuals even if they were irrelevant to terrorism investigations.1664 In its 2008 report, the IG found that the FBI had made some progress in implementing its recommendations from the 2007 report, but that several recommendations were not yet implemented.1665 The incoming Justice Department and the Inspector General should ensure that the FBI adequately and fully implements the remaining recommendations and does not backtrack on any progress to date.1666
Legislation restoring the pre-PATRIOT Act NSL issuance standard would help eliminate the problems highlighted in the Inspector General's reports pertaining to the acquisition and indefinite retention of information on American citizens who are not reasonably suspected of being involved in terrorism. Legislation could also help address concerns identified under Patriot Act provisions authorizing the FBI to impose blanket, indefinite, prior restraints on speech, strictly confining an NSL recipient's ability to challenge the gag in court, and limiting judicial review of a gag order (making it difficult to determine whether the order violates NSL statutes, the Constitution, or other legal rights and privileges).1667 Statutory changes regarding minimization rules may also be needed to reduce the potential for the misuse of information acquired through NSLs and to ensure that NSLs capture information only on individuals who actually are the subjects of terrorism investigations.
22. The incoming Administration should withdraw the proposed Justice Department rule on criminal intelligence system operating policies and carefully review and revise as needed the Attorney General's guidelines for FBI operations. The proposed Criminal Intelligence Systems Operating Policies rule, published in the summer of 2008, should be withdrawn and the process started from scratch because of serious concerns about its potential to improperly invade Americans' privacy and other rights. Similar concerns warrant a careful re- examination of the Attorney General FBI guidelines.to ensure that they strike the appropriate balance between effective law enforcement and the respect for civil liberties and individual rights.
Reason: The Department of Justice's proposed rule on Criminal Intelligence Systems Operating Policies has generated significant controversy.1668 This rule appears to permit the collection of information by state and local law enforcement agencies regarding non-criminal (and constitutionally protected) activities and sharing that information with non-law enforcement agencies. The rule would also allow for the collection of information about organizations and individuals, resulting in potential violations of individuals' First Amendment rights and the creation of McCarthy era-type "blacklists." Additionally, the regulation would extend the retention period for information in criminal intelligence systems from five years to ten years and would allow for the tolling of the retention period during a person's incarceration. This could lead to the retention of inaccurate, obsolete, and otherwise unreliable information in the systems that could be used to wrongly accuse someone of a crime. The incoming Administration should withdraw the proposed rule and restart the rulemaking process so that a final rule in this area does not have these defects.
In late 2008, the Bush Administration also issued FBI Domestic Investigation and Operations Guidance regarding the Attorney General Guidelines for Domestic FBI Operations, issued September 29, 2008. These Guidelines have generated significant concern, both as to their timing just before the end of the Bush Administration and their authorization of potentially intrusive techniques against Americans. For example, critics have raised significant questions about provisions that could give FBI field agents the authority to conduct some forms of physical surveillance and interviews without getting approval from or filing specific reports with their supervisors.1669 The FBI has indicated that the guidelines are to be reviewed in the fall of 2009. As part of that review, the incoming Administration should consider modifying the guidelines and the accompanying guidance as appropriate to ensure that they protect civil rights and civl liberties as well as promoting effective law enforcement.
23. The President should nominate and bring into operation the Privacy and Civil Liberties Oversight Board. The incoming President should appoint all members to the Privacy and Civil Liberties Oversight Board created by Congress and urge the Senate to hold prompt confirmation hearings for the candidates. Further, the President's first budget proposal should contain sufficient funds to actually bring the board into existence as an effective entity.
Reason: This Board was created by the Intelligence Reform and Terrorism Prevention Act of 2004.1670 It was originally part of the White House but was made an independent agency in the Executive Branch pursuant to the Implementing Recommendations of the 9/11 Commission Act of 2007.1671 The Board's mandate is to monitor the impact of U.S. government actions on civil liberties and privacy interests, and to advise Executive Branch officials to help ensure that such interests are appropriately considered in executive actions undertaken to protect against terrorism. It has five members who are appointed by the president and subject to confirmation by the Senate. The terms of its original members expired in January 2008. However, President Bush failed to nominate candidates for all seats on the board, and none have been confirmed by the Senate. As a result, the revised Board has never gone into operation.
24. The President should renew efforts to implement U.S. obligations under human rights treaties. The incoming President should reactivate the Interagency Working Group on Human Rights Treaties (replaced under the Bush Administration by the Policy Coordinating Committee on Democracy, Human Rights, and International Operations), which would create an open and transparent process for treaty reporting and consider compiling a comprehensive human rights compliance report on the U.S., similar to that compiled by the State Department on other countries.
Reason: The incoming Administration needs to reassert its commitment to the rule of law as well as send a clear message to the world that the United States will take a leadership role in promoting human rights at home and abroad. Since 1992, the United States has ratified only three major human rights treaties.1672 However, little oversight and few legislative initiatives have focused on codifying the rights and obligations under these treaties. Official U.S. action has been primarily limited to periodic reporting and review process activities by Geneva-based committees who monitor treaty compliance.
25. The incoming Administration should review and consider modifications to Bureau of Prisons use of authority under Special Administrative Measures. The incoming Administration should review how the Special Administrative Measures (SAM) authority has been used, including mental health screening of prisoners subjected to extreme isolation under the SAM rules, and consider appropriate modifications, which may include modifying SAM rules. The review should additionally ensure attorney-client privileges to prisoners in federal custody.
Reason: Under the Bush Administration, an interim rule drastically expanded the Bureau of Prisons (BOP) authority under the Special Administrative Measures (SAMs).1673 The regulation became effective immediately without the usual opportunity for prior public comment. The rules now give the Attorney General virtually unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate with counsel confidentially.
Misuse of Executive Branch Authority
26. The President should end abuse of presidential signing statements. President Obama should fulfill his pledge that he will "not use signing statements to nullify or undermine congressional instructions as enacted into law"1674 as has occurred under the Bush Administration. He should also make clear that, despite his predecessor's signing statements, he intends to fully execute existing laws.
Reason: A presidential signing statement is not part of the enactment process.1675 Yet President Bush has issued signing statements unilaterally claiming the power to refuse to implement parts of laws enacted by Congress, and has in fact done so in a number of instances. As recognized on a bipartisan basis, the pattern and practice of signing statements by the Bush Administration has represented a major abuse of power, undermining the authority of the Congress and the intent of the Framers of the Constitution. By executive action fulfilling his pre- election pledge, and by making clear that he will fully execute laws as to which President Bush issued signing statements, President Obama can end this abuse, as some of the most severe critics of the Bush Administration's use of signing statements have recognized.1676 If necessary, Congress should consider possible legislation, such as some of the proposals in the 110th Congress, to prevent future misuse of signing statements.1677
27. The incoming Administration should restore rulemaking from the White House to traditional agency authority consistent with congressional intent and the public interest. As a threshold matter, the President should take two initial steps to restore this traditional authority to the relevant agency: (i) clarify that the role of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) is to facilitate the rulemaking process rather than to serve as a gatekeeper on rulemaking; and (ii) rescind Executive Order 13422, which by substantially enhancing the Executive Branch's control over agency rulemaking, has undermined congressional intent.
Reason: Under President Bush's leadership, OIRA's role has changed from serving as a counselor for agencies to a self-described "gatekeeper" of agency rulemaking. OIRA's current gatekeeping role conflicts with the fact that Congress delegates rulemaking authority to the agencies, not to OMB.1678 Issued without any prior consultation in January 2007, Executive Order 13422 undermines congressional intent in several respects. For example, the Order's requirement that an agency identify a specific "market failure" establishes standards for regulatory initiation that are not consistent with statutory requirements and that can be used to deter congressionally- intended regulatory actions.1679 A diverse group of 17 regulatory experts supports this recommendation.1680
28. The incoming Administration should make rulemaking more transparent, understandable, and informative, thereby permitting greater accountability to Congress
and the public. The President should: (i) amend Executive Order 12866 to mandate that the rulemaking process be transparent and subject to greater accountability consistent with recommendations made by GAO;1681 and (ii) require agencies to use electronic rulemaking.1682 In addition, Congress should: (i) fund the Administrative Conference of the United States (ACUS); and (ii) enact legislation to clarify the applicability of the Congressional Review Act with respect to what constitutes a "rule" within the meaning of the Act.
Reason: The Administration's influence on agency rulemaking is difficult to discern even after the proposed or final rule is published because key parts of the OIRA review process and other Administration initiatives are not transparent. The only transparency required by OMB is during the formal review process. Accordingly, it is unclear whether outside entities have exercised undue influence and whether the Administration has directly or indirectly intervened in the rulemaking process to weaken or delay rules contrary to the public interest.1683 In addition, OIRA discloses neither how many "significant" guidance documents it has reviewed since the issuance of Executive Order 13422 nor whether any changes were made to those documents as a result of those reviews. Further, agency regulatory policy officers do not disclose how many rules they changed or completely prevented from being published in the Federal Register.1684 The need for greater transparency was also cited by a diverse group of 17 regulatory experts.1685
Other ways to promote greater transparency include implementing an effective electronic rulemaking process, as the current system makes it very difficult to track rulemaking.1686 This recommendation is supported by various regulatory experts.1687 In addition, ACUS could conduct empirical analyses with the cooperation of all three branches of government and make recommendations to the Administration and Congress on how the rulemaking process can be improved.1688 Further, the Congressional Review Act should be clarified with respect to what constitutes a "rule" within the meaning of the Act in light of the fact that the Bush Administration has sought to circumvent the requirements of the Congressional Review Act, which mandates that agencies submit rules to Congress before they become effective.1689
29. The incoming Administration should rein in "Midnight" rulemaking, which implements the priorities of a lame-duck administration even though a new President has been elected. The President should: (i) impose a 60-day moratorium on regulations not yet finalized or in effect; and (ii) prohibit Executive Branch agencies from unilaterally issuing "midnight regulations" - regulations issued during the last several months of an outgoing president's term of office - except in compelling or exigent circumstances. If necessary, Congress should consider legislative restrictions on the practice, such as H.R. 34, the "Midnight Rule Act," introduced by Rep. Nadler at the beginning of the 111th Congress.
Reason: While many outgoing administrations attempt to expedite the rulemaking process to ensure their priorities are addressed, such an expedited process may shortcut meaningful agency review and public participation processes. A recent spate of controversial midnight regulations issued by the Bush Administration relating to the environment, civil liberties, the preemption of state consumer safety laws, and other important matters of public policy, present serious concerns about midnight regulations. Such rules can be particularly problematic if they have been rushed through the review and comment process.1690 As recommended by a diverse group of regulatory experts, a moratorium would allow time for the incoming Administration to review problematic regulations not yet finalized or in effect.1691 Regulations required by court order, statute, or necessity to meet regulatory emergencies could be exempt from the moratorium.1692
Other Incursions by the Executive Branch
In addition to the above recommendations concerning the misuse of signing statements and regulatory authority, over the last eight years we have witnessed a number of additional instances of misuse of Executive Branch authority or unaccountable abuses of power which warrant a Legislative or Executive Branch response. Several of these additional recommendations were worked on by the Committee over the last two years and are set forth below.
30. The incoming Administration and Congress should restore the full protection of the attorney-client privilege. The Obama Administration should issue an executive order or memorandum requiring application to all agencies of the August 28, 2008, Justice Department guidelines on corporate prosecutions, which recognized the importance of the attorney-client privilege and work-product doctrine. Congress should also consider legislation to prohibit federal prosecutors from considering a corporation's willingness to "waive" its attorney-client privilege and work-product protections in making charging and leniency decisions. H.R. 3013, the "Attorney-Client Privilege Protection Act of 2007," which passed the House on November 13, 2007, by voice vote, would restore judicial oversight to these protections, while preserving prosecutorial discretion necessary to fight corporate crime.
Reason: The centuries-old common law and constitutional protections of the attorney-client privilege and attorney work-product doctrine are fundamental to our nation's system of justice. Unfortunately, past governmental policies gave rise to a "culture of waiver" that placed the continuing vitality of these crucial protections in serious jeopardy. Specifically, the Department of Justice had previously adopted policies that placed defendants at greater risk of prosecution if they claimed any of the fundamental protections embodied in the attorney-client privilege or work-product doctrine. The genesis of these policies was a series of Justice Department memoranda, which include a 2006 memorandum from then-Deputy Attorney General Paul McNulty, permitting prosecutors to demand a privilege waiver after receiving Department approval, and granting corporate defendants credit from criminal charges for "voluntarily" waiving without being formally asked. In a laudatory change of direction, the Department, on August 28, 2008, issued new guidelines on corporate prosecutions, specifically recognizing the importance of the attorney-client privilege and work-product doctrine.1693 Because the guidelines follow the spirit of H.R. 3013, the Obama Administration should take immediate steps to replicate the Justice Department guidelines by executive order for all agencies. Legislation may also be necessary if certain independent regulatory agencies (such as the Securities and Exchange Commission) fail to follow the President's lead and to ensure that these standards apply under future administrations.
31. Congress should enact press shield legislation. Congress should pass legislation that provides a qualified privilege that prevents a reporter's source material from being revealed except under certain narrow circumstances, such as where it is necessary to prevent an act of terrorism or other significant and specified harm to national security or imminent death or significant bodily harm. H.R. 2102, the "Free Flow of Information Act," which passed the House on October 16, 2007, by a vote of 398-21, will restore the independence of the press while balancing the legitimate and important interests that society has in maintaining public safety.
Reason: One of the most fundamental principles enshrined by the Founding Fathers in the First Amendment of the Constitution is freedom of the press. This freedom is one of the cornerstones of our democracy; without it, we cannot have a well-informed electorate and a government that truly represents the will of the people. The Bush Administration has repeatedly assaulted the press by imprisoning or threatening imprisonment of reporters. As noted by the Washington Post, "40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases."1694
Many stories would not have been published without a promise of confidentiality to sources, such as Watergate, the Pentagon Papers, and Iran-Contra. More recent news stories brought to light based on confidential sources include the conditions at the Walter Reed Army Medical Center, the Abu Ghraib prison scandal, and the abuse of steroids by baseball players. At present, 49 States and the District of Columbia have some form of a shield law. The lack of a corresponding federal reporter's privilege undercuts these state laws. Because the privilege is not absolute, a federal law will prevent law enforcement officials from using journalists and the results of their fact-gathering as a shortcut to a proper investigation but will not obstruct truly appropriate and necessary inquiries. With the reporter shield law, law enforcement will be forced to pursue other sources of information before being able to turn to journalists for their notes.
32. The incoming Administration should limit the ability of Executive Branch officials to prevent victims of terrorism from recovering for their losses. The President should seek to resolve a dispute between victims of torture and the government of Iraq committed during the Gulf War. If not, Congress should consider enacting legislation, such as H.R. 5167, the "Justice for Victims of Torture and Terrorism Act," which passed the House on September 15, 2008, by voice vote. This legislation will enable American POWs and civilians to hold the Government of Iraq liable for the physical and emotional injuries they sustained while held captive by Iraqi officials during the Gulf War.1695
Reason: In 1998, Congress passed the "Flatow Amendment" to specify that a cause of action existed against the officials, employees, and agents of foreign states who commit a terrorist act "while acting within the scope of" their employment if a U.S. government official would be liable for similar actions.1696 Unfortunately, in conjunction with the 2003 Iraq War, President Bush took a series of actions that, in combination, had the effect of making Iraq's assets in the U.S. unavailable to terrorism victims who, after March 20, 2003, obtained terrorism-related judgments against Iraq.1697 In 2008, Congress sought to amend the Foreign Sovereign Immunities Act (FSIA) of 1978 to enable victims whose claims were dismissed for lack of a federal cause of action to re-file their claims under new 28 U.S.C. §1605A - a new FSIA terrorism exception and explicit cause of action against terrorist states - and enforce judgments by attaching a defendant state's assets.1698 However, President Bush vetoed the FY08 National Defense Authorization Act, solely on the basis of this provision.1699
33. Congress should pass legislation holding Administration-designated contractors in Iraq and elsewhere responsible for their criminal misconduct. Congress should pass legislation to explicitly address the inadequacies of our criminal law in war zones. H.R. 2740, the "MEJA Expansion and Enforcement Act of 2007," which passed the House on October 4, 2007, by a vote of 389-30, would make contractors and contract personnel under Federal contracts criminally liable for crimes committed overseas. It would amend the Military Extraterritorial Jurisdiction Act ("MEJA"),1700 which criminalizes offenses committed outside the United States by members of the Armed Forces and certain Defense Department contractors, but does not cover all contractors providing services in an overseas military operation.1701
Reason: An estimated 180,000 contractors are currently working in Iraq, and thousands more are working in Afghanistan and elsewhere.1702 Unfortunately, the current law does not clearly specify that these contractors are accountable for their criminal conduct.1703 For example, contractors hired through the Defense Department are subject to both the Uniform Code of Military Justice and MEJA, while contractors who commit crimes on Federal property may be prosecuted under the USA PATRIOT Act. The vast majority of armed contractors performing security functions overseas, however, may not be subject to any of these laws. Thus, although the Justice Department has recently brought five indictments against contractors involved in the Iraq Nisour square shooting where at least 17 Iraqis were killed, lawyers for the defendants have already stated that they will contest whether the Justice Department has jurisdiction under MEJA to bring the case.1704
In another example, Jamie Leigh Jones, a young woman working for Halliburton/KBR in Iraq, testified before the Judiciary Committee that she was drugged and raped by fellow employees in 2005.1705 Almost four years later, we have yet to hear of the status of the investigation or prosecution.
34. The Department of Justice should issue guidelines to require transparency and uniformity of corporate deferred and non-prosecution agreements. The Attorney General should revise guidelines regarding the Justice Department's use of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) in order to provide greater transparency and consistency in their use and in the selection and compensation of independent corporate monitors. DPAs and NPAs are agreements between the federal government and individual corporations in which the government agrees to not prosecute or defer criminal prosecution in exchange for the corporation agreeing to specific actions such as changes in corporate policies and payment of monetary penalties. If necessary, Congress should consider enacting legislation such as H.R. 6492, the "Accountability in Deferred Prosecution Act of 2008," which would require the Attorney General to take steps to ensure that the process is fair for all parties to the agreement and that prosecutors award contracts to corporate monitors pursuant to a process that is open, public and competitive.1706
Reason: DPAs and NPAs often impose significant obligations on corporations, including the payment of substantial monetary penalties, the implementation of stringent corporate governance and compliance measures, mandatory cooperation with the government's ongoing investigation (often requiring waiver of the corporation's attorney-client and work-product privileges), waiver of speedy trial rights and statute of limitations defenses, and agreement to external oversight by an independent corporate monitor approved by the government.1707 The Justice Department, however, has provided minimal guidance to United States Attorneys with respect to how these agreements should be structured, how independent monitors should be selected, and what are appropriate duties for these monitors.1708 The absence of meaningful guidance has led to inconsistent use of these agreements among the jurisdictions, unequal treatment of corporations that choose to enter into such agreements, and abuse in the appointment of independent corporate monitors.1709
Retribution Against Critics
35. Congress should consider legislation concerning the exercise of clemency involving government officials. Congress should consider legislation that would require the president, upon granting clemency to a current or former Executive Branch official, to report to Congress (1) whether the official was involved in any ongoing or contemplated criminal or civil investigation; (2) whether the president sought the recommendation of the federal official responsible for the investigation as to the implication of the clemency grant on the investigation and, if so, the nature of the official's recommendation; and (3) whether the responsible official communicated to the president his or her belief that the grant of clemency would interfere with any ongoing or contemplated investigation into possible misconduct by the president, vice president, or administration officials. Those and similar procedural requirements appear in H.R. 5961, the "Integrity and Accountability in Administration Pardons Act of 2006," which then-Ranking Member John Conyers, Jr. introduced in the House during the 109th Congress. Congress should also consider legislation that would require lobbyists to disclose pardon-relating lobbying activities directed at the Executive Branch.1710
Reason: The president's clemency power can too easily be used to interfere with or hinder a civil or criminal investigation into malfeasance by the president, vice president, and Executive Branch officials. A pardon can even shut down an investigation altogether by immunizing the subjects of the investigation from prosecution. That concern arose most notably at the end of George H. W. Bush's Administration, when the President pardoned former Defense Secretary Casper Weinberger and Assistant Secretary of State Elliott Abrams with respect to their actions during the Iran-Contra scandal of the mid-1980s The prosecution of Secretary Weinberger and Assistant Secretary Abrams might well have brought the President's own actions under public scrutiny.1711
President George W. Bush's 2007 grant of clemency to Vice President Cheney's chief of staff, Scooter Libby, raised similar concerns, as did President's Clinton's end-of-term pardons of his brother, Roger Clinton, and Clinton friend and partner in the Whitewater real- estate venture, Susan McDougal. Legislation along the lines of H.R. 5961 would render the president more publicly accountable when granting clemency to Executive Branch officials,1712 while leaving the President's constitutional clemency authority undisturbed.1713 As for lobbying- disclosure legislation, it may be needed to expose pardon-lobbying by wealthy and influential pardon applicants of the sort the public witnessed during the final days of the Clinton Administration.1714
36. Congress should enhance and strengthen protection for Executive-Branch whistleblowers. Congress should pass legislation to enhance and strengthen existing legal protection for whistleblowers. Needed changes of particular importance include according protection to federal employees who report high-level misconduct directly to Congress (rather than requiring them to "report up the chain of command"), reversing court decisions that have largely gutted existing legal protections against retaliation, and enhancing legal remedies for successful claimants. Congress should also extend whistleblower protections to CIA, FBI, and other employees who work on national security matters. Most are currently unprotected under existing federal laws. Legislation introduced during the 110th Congress that passed the House but failed to become law (including H.R. 985, the "Whistleblower Protection Enhancement Act of 2007," and S. 274, the "Federal Employee Protection Disclosure Act") offers a starting point for future legislation.1715
Reason: A key component to government accountability is protecting the employees who are on the inside and decide to report wrongdoing. Federal employees are often the first, and perhaps the only, people to see signs of corruption, government misinformation, and political manipulation. They are in a distinct position to alert Congress or other authorities when officials put political agendas ahead of facts or sound policy. Unfortunately, as seen in cases involving the Bush Administration, whistleblowers often are the victims of retaliation by their superiors. The threat of such retaliation can have a chilling effect on federal employees' willingness to blow the whistle. Enhanced legal protections would help insulate whistleblowers from the threat of retaliation. National security officials particularly deserve whistleblower protections. They are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified documents. They are in the unique position of handling the most sensitive law enforcement and intelligence projects, but they currently receive no protection when they come forward to identify abuses that are undermining our national security.
Government in the Shadows: Executive Privilege, Secrecy, and the Manipulation of Intelligence
37. Congress should enact changes in statutes and rules to strengthen Congress' contempt power. Congress should pass legislation that would establish a clear and expeditious mechanism to enforce congressional subpoenas civilly against current and former Executive Branch officials. Congress should also adopt legislation creating a process for the appointment of a special counsel to prosecute current or former Executive Branch employees held in contempt of Congress for refusing to testify or produce documents in response to a congressional subpoena, such as Representative Miller's H.R. 6508, the "Special Criminal Contempt Procedures Act." In addition, the House should consider adopting a rule providing for procedures to go forward with inherent contempt as necessary.
Reason: While the Committee's lawsuit to enforce subpoenas against Harriet Miers and Josh Bolten has established that Congress may enforce its subpoenas in federal court under the Declaratory Judgment Act, the procedures required can be burdensome and time consuming. The established remedy of statutory criminal contempt has proven ineffective because the Justice Department has refused to prosecute despite the House's finding of contempt. Any use of Congress' recognized power of inherent contempt has been frustrated by the absence of specific procedures in the House. A law specifically authorizing civil contempt proceedings to enforce subpoenas would avoid problems of delay and create an orderly, streamlined, non-criminal mechanism to resolve these disputes.
Legislation should also make clear that when Congress determines that a present or former Executive Branch official is in contempt for refusing to comply with a subpoena, enforcement cannot simply be stopped by the Administration's refusal to go forward (as occurred in the Miers-Bolten case), but would be turned over to a special counsel because of the obvious conflict of interest. The Miers-Bolten situation also highlighted the need for clarification of the process for exercising Congress' inherent contempt power to penalize an individual who defies a subpoena, and specific rules to address questions such as how inherent contempt proceedings would be initiated, what House entities would prosecute and initially rule on such charges, and what and how penalties can be imposed.
38. The incoming Administration should establish procedures for asserting Executive Privilege. The President should issue an executive order establishing procedures for asserting executive privilege, including a commitment to personally invoke the privilege and to provide adequate descriptive information to Congress if documents are withheld. Congress should engage in oversight concerning the efficacy of any proposed procedures and determine whether additional action in the form of legislation is necessary.
Reason: During the 110th Congress, the Administration withheld subpoenaed documents from Congress on the basis of executive privilege on multiple occasions.1716 However, some of these invocations of privilege were stated in communications from the White House Counsel; no personal assertion of the privilege by President Bush, as caselaw and prior executive practice require, was ever presented.1717 Accordingly, the incoming Administration should establish clear guidelines for the assertion of privilege that include provision of an unambiguous personal claim of privilege by the president.
In addition, the interbranch accommodation process under the Bush Administration suffered because of a consistent refusal of the White House to provide adequate information about documents being withheld, which would have allowed Congress to consider possible compromises in an informed manner. As Judge Bates recognized in the Judiciary Committee's lawsuit against Harriet Miers and Josh Bolten, "a more detailed description of the documents withheld and the privileges asserted would be a tremendous aid during the negotiation and accommodation process."1718
39. The incoming Administration and Congress should prevent abusive assertion of the state secrets privilege. The President should issue an Executive Order specifying that (i) the state secrets privilege should be invoked narrowly to challenge the admissibility of particular pieces of evidence, not to dismiss entire cases, and (ii) when invoked, the government should make a reasonable attempt to provide a non-privileged substitute - such as a redacted version or a summary - instead. The next Congress should also pass legislation that sets out the substantive standards and procedural framework for meaningful judicial review of state secret claims, and requires judges to review the information that the government seeks to withhold and determine whether its disclosure would be harmful to national security using procedures that safeguard classified and other potentially sensitive information. These provisions were included in H.R. 5607, the "State Secret Protection Act," introduced by Reps. Nadler and Conyers in the 110th Congress.
Reason: Although there are valid reasons for recognizing a state secrets privilege, preventing the sort of broad abuses of the privilege perpetrated by the Bush Administration requires action in both the Legislative and Executive Branches. The state secrets privilege was used by the Bush Administration to broadly escape judicial review of a number of potentially illegal actions, including rendition, warrantless domestic surveillance, and post-9/11 detention of American citizens, and in discrimination and retaliation claims brought by former federal employees. Corrective measures are needed from the Executive to limit the circumstances and manner in which state secrets privilege is asserted. Corrective measures are needed from the Legislative branch to standardize the process and provide uniform substantive standards by which courts may fairly evaluate whether the state secrets privilege, when challenged, was properly invoked.
40. The incoming Administration and Congress should improve the system for classification and declassification. The President should issue an Executive Order that (i) rescinds Executive Order 13292, thereby restoring the previous presumptions for declassification, (ii) requires each Executive Branch agency that classified information during the Bush administration to perform a detailed review of its classification guides in order to eliminate obsolete requirements and to reduce the total amount of classification to a minimum, (iii) modifies military and intelligence classification rules to reduce unnecessary classification, (iv) adds a balancing test that requires that the public value of the information be considered when determining if it is to be declassified, and (v) ends the practice of reclassifying declassified documents. Congress should also consider legislation to prohibit political manipulation of the classification/declassification process in the future. The legislation should incorporate the recommendations of the Moynihan Commission,1719 among them, (i) the establishment of a national declassification center to declassify material (with guidance from the originating agencies) and make it available to the public, (ii) establishing a single, independent Executive Branch office for coordinating classification and declassification practice, (iii) requiring classification officials to weigh a variety of factors, including costs and benefits of secrecy, in arriving at their initial classification decision, and (iv) having the Director of National Intelligence issue a directive outlining the appropriate scope of protection for methods and sources as a rationale for classification.
Reason: As a general matter, government documents should be declassified in all but the most necessary of circumstances, in order to promote the widest distribution of government information. The Bush Administration has largely operated under a veil of secrecy, not only seeking to keep existing classified information out of the public domain, but also attempting to re- classify documents that have already been declassified and released to the public. The consequences of using classification to keep potentially damaging revelations out of the public eye can be grave. For example, the Bush Administration used classification in order to embellish the 2002 National Intelligence Estimate on Iraq's weapons of mass destruction capabilities and its ties to al Qaeda.1720 The public version omitted major caveats, uncertainties, and dissents contained in the classified version, thus leading the public to believe that the threat posed by Iraq was far more certain and immediate than the intelligence agencies actually believed.
41. Congress should consider legislation requiring the President to publicly announce the declassification of classified materials. Congress should consider legislation whereby the Executive Office of the President is required to provide public notice whenever it declassifies documents, with the notices to be published on the White House website and other selected locations. The legislation should require the president to inform the congressional intelligence committees within a reasonable time frame whenever intelligence has been declassified, as provided in S. 2660, introduced by Sen. Diane Feinstein in the 109th Congress. Her legislation provided a 15-day time period in which to give congressional intelligence committees notice of declassification.
Reason: The Administration appears to have selectively leaked numerous items of classified information to buttress their case for war. The President himself appears to have secretly authorized the declassification of information without notice in an effort to neutralize Ambassador Wilson's op-ed concerning the Administration's uranium claims. The public would have better access to information were the White House to issue public notices upon declassification.
42. The Department of Justice should restore the presumption of disclosure under FOIA. The Attorney General should rescind the October 2001 Ashcroft directive that reversed the presumption of disclosure under FOIA and restore the principle that information should be released unless it is both exempt from disclosure and it would be harmful to release it.1721
Reason: The October 2001 directive issued by then-Attorney General Ashcroft reversed the presumption of disclosure under FOIA. Explicitly superseding the Department of Justice's FOIA Memorandum of October 4, 1993, the directive imposed a high threshold for disclosure, permitting the heads of all federal departments and agencies to make discretionary decisions to disclose information protected under the FOIA "only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated." Adopted as Administration policy, the directive has resulted in a lack of transparency by the federal government. Indeed, 2007 witnessed the lowest percentage of FOIA requests granted in full, 35.6%, since data collection started in1998.1722 The previous presumption in favor of disclosure should be restored. Conflicts in balancing the public interest in information about its government with legitimate needs for secrecy should be decided in favor of disclosure.
43. The President should rescind Bush White House memoranda that significantly restrict the use and disclosure of non-classified information. In particular, the memoranda that should be revoked include White House Chief of Staff Andrew Card's Memorandum for the Heads of Executive Departments and Agencies on "Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security,"(March 19, 2002) and President Bush's Memorandum for the Heads of Executive Departments and Agencies on the Sharing of Controlled Unclassified Information" (May 9, 2008).
Reason: While national security concerns may legitimately require preventing the disclosure of certain classified information, those arguments fall away when that information is already declassified and in the public domain. The 2002 memo staked out broad Executive authority and encouraged agencies to reclassify information that was no longer classified and, similar to the Ashcroft memo on the Freedom of Information Act, encouraged the use of various FOIA exemptions to withhold disclosure of sensitive but unclassified information, which was not defined. The 2008 memo introduced "Controlled Unclassified Information" as a new government category that replaced "Sensitive but Unclassified." Rescinding the memos would promote greater transparency of government records by reducing the avenues by which documents could be withheld from the public for classification reasons.
Similarly, while the Bush Administration claims that the purpose of the 2008 memo is to standardize practices and improve information sharing, it effectively continues an expansion of secrecy in government by adding an unnecessary level of uncertainty for government employees deciding which documents may be released in response to public inquiry. Although the Memorandum explicitly states that the use of the "controlled unclassified information" label "may inform but [does] not control" the decision to disclose under FOIA, lower-level staff, seeing the label on responsive documents, may instinctively treat it as protected and withhold it from disclosure.1723 Poorly-trained or ill-informed junior staff, unfamiliar with these new designations, may be overly cautious in withholding documents, which is currently the norm in cases of uncertainty as a result of the memos described above. Because of the threat of under-disclosure, the incoming Administration should reduce potential room for error by minimizing the number of classification designations (in addition to mandating a presumption of disclosure, as described above).
44. The President should place the Office of FOIA Ombudsperson in the National Archives. The President should resolve the impasse created by the Bush Administration and place the office of FOIA ombudsperson in the National Archives and Records Administration rather than in the Department of Justice, in compliance with the OPEN Government Act of 2007.1724 This would situate the entity in a neutral forum to aid requesters with their FOIA requests without potential interference from a party in possession of requested documents, and provide impartial oversight over compliance.
Reason: In enacting the OPEN Government Act of 2007, Congress created an ombudsperson responsible for FOIA requests. The position was created in response to Bush Administration policies designed to limit the volume of documents produced in response to FOIA requests. The position was created in the National Archives, and was designed to both assist requesters by providing informal guidance and reviewing agency compliance. In contravention of the enacting law, in 2008, the Bush Administration administratively transferred the office of FOIA ombudsperson from the National Archives, an independent federal entity, to the Department of Justice, which is part of the Executive Branch and ultimately supervised by the Attorney General, a presidential appointee. This change occurred before the office even began functioning. The transfer was initiated by the Vice President's office after it had engaged in an escalating series of confrontations with the National Archives over the Vice President's obligations to report his possession of classified information. As the ombudsperson's superior, the Attorney General could directly and indirectly influence the ombudsperson's actions and limit the guidance provide and disclosures authorized.
45. The incoming Administration should restore the accessibility of presidential records. The President should issue an Executive Order rescinding Executive Order 13233 and restoring the requirements of Executive Order 12667. Such an order should have the effect of making presidential records generally available to the public twelve years after the president has left office, and preventing former presidents and vice presidents from indefinitely claiming privilege over such documents.1725
Reason: President Bush issued Executive Order 13233, concerning the Presidential Records Act, which superseded Executive Order 12667. Under the old Executive Order, presidential documents were made public 12 years after the custodial president left office. Under President Bush's Order, former presidents and vice presidents and their representatives may seek to bar the release of such documents by claiming one of numerous privileges, allowing the president and vice president to enshroud numerous historical documents in a permanent secrecy.
46. Congress should modernize the Presidential Records Act. Congress should consider legislation that would modernize the Presidential Records Act and clarify its application to a modern White House using multiple and overlapping communications systems, such as blackberries and personal digital assistants. The legislation should enact criminal penalties for intentional destruction of presidential records or deliberate circumvention of official record- keeping mechanisms when conducting presidential business.
Reason: The Bush Administration's widespread use of political communications equipment to conduct official business has led to a number of challenges in investigating allegations of official misconduct such as the U.S. Attorney removals. Other investigations have been hampered by the loss of e-mail communications and inconsistency within backup and archiving mechanisms. Investigation by the Oversight and Government Reform Committee revealed that, in some instances, personnel intentionally and knowingly diverted official business to outside communication systems to avoid White House recordkeeping systems.1726
47. The incoming Administration should clarify the applicability of rules of access to the Office of the Vice President. The President should issue an Executive Order clarifying that the rules of secrecy applicable to the Executive Branch apply equally to the Office of the Vice President and that the Office of the Vice President is subject to the same document preservation requirements as the president.
Reason: Vice President Cheney has consistently refused to comply with information disclosure mandates applicable to the entire Executive Branch.1727 He has justified his noncompliance on the grounds that the secrecy rules which bind the Executive are not applicable to the Office of the Vice President. The Office of the Vice President cited this alleged ambiguity in declining to comply with the National Archives' request for the preservation of documents, a request with which even the Office of the President has complied. The dispute led to unnecessary litigation between the two offices. The political nature of the Vice President's position became evident when his chief of staff David Addington attempted to have the Archivist's office eliminated. There is no proper policy or constitutional basis for excluding the Vice President's office from general rules of access.
48. The incoming Administration should eliminate overly restrictive "Gang of 8" briefings in favor of more effective mechanisms. To the extent possible, the President should avoid using "Gang of 8" briefings, as the system leads to abuses. If necessary, Congress should consider amending the National Security Act to (i) expand 50 U.S.C. §413b(c)(2) to permit staff members of the Gang of 8 with suitable security clearances to participate, (ii) make clear that the Gang of 8 can discuss the contents of these briefings with their congressional colleagues under suitable protections, and (iii) clarify the meaning of the word "covert" within the statute.
Reason: The National Security Act of 1947 requires the president to keep all members of the congressional intelligence committees fully and currently informed of all of the intelligence activities of the United States.1728 However, where covert actions are involved, the president is statutorily permitted to limit notification to the so-called "Gang of 8," the leaders of the House and Senate and the chairs of the House and Senate intelligence committees.1729 "Gang of 8" briefings exclude staff, regardless of their levels of security clearance; moreover, the debriefed members are forbidden from taking notes or discussing the substance of these briefings with their colleagues. Despite the express limitation spelled out in the statute, the Bush Administration has used "Gang of 8" briefings to brief a limited number of Members on a wider variety of issues not provided for within the law, such as warrantless domestic surveillance; the Congressional Research Service specifically found that the program "would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute."1730 On one occasion in October 2001, the Bush White House went so far as to say that any congressional briefing involving classified information should be limited to the "Gang of 8" and no one else in Congress. This undermines the express purpose of the National Security Act, which was to keep the intelligence committees fully informed of the federal government's intelligence activities. In addition, no legislation should be able to limit the ability of any Members of Congress to share information with other Members when necessary to carry out their constitutional responsibilities, and amendments to the rules of both Houses would be appropriate to make this clear.
49. The incoming Administration mandate steps to avoid manipulation and misuse of intelligence. The President should issue an Executive Order that ensures that (i) versions of National Intelligence Estimates ("NIEs") and other documents made public adequately indicate dissents or caveats, (ii) only official components of the intelligence community can produce intelligence assessments, and (iii) senior officials not make public assertions inadequately supported by intelligence, and there be procedures for corrective action should that occur. In addition, by executive action or by statutory mandate if necessary, an unclassified version of National Intelligence Estimates and comparable assessments, including important caveats and dissents, should be publicly released.
Reason: The "hands-on" approach of the Bush Administration in directly reviewing raw intelligence data that had not been vetted through appropriate channels led to improper assumptions, incorrect assessments, and a diminution in independent recommendations, all of which led to misguided policies with devastating long-term consequences.
Senior Defense Department executives established the Office of Special Plans (OSP), which purported to produce intelligence reports and assessments about alleged Iraqi WMDs and links to al Qaeda. Working with the Office of the Vice President, OSP sent its products directly to the White House, without their being subject to review and comment by the intelligence community. At the same time, the Vice President, his staff and other senior Executive officials made repeated trips to the CIA to press analysts to conform their evaluations on Iraq to predetermined positions.
Rather than provide unbiased independent assessments to the White House, the intelligence community effectively came under the Office of the Vice President, which then filtered the intelligence to comport with the policy positions of the Executive. For example, the Bush Administration cited an intelligence community estimate that aluminum tubes imported by Iraq were intended for centrifuges to enrich uranium to weapons grade. Department of Energy (DOE) scientists, who were the Americans most expert on uranium enrichment, were confident that the tubes were not intended for use as centrifuge. They had vehemently dissented from the majority Community view that the tubes were intended for centrifuges. Moreover the State Department intelligence experts on nuclear proliferation agreed with the DOE experts.
Although NIEs, which are authoritative assessments by the intelligence community on intelligence related to specific national security issues, are under the possession and control of the president, the misuse of NIEs by the President in the Iraq War illuminates why publishing declassified versions is so important. The Bush Administration made public a declassified version of the 2002 National Intelligence Estimate about the WMD threats posed by Iraq. However, the published version omitted major caveats, acknowledgment of poor information, expressions of low probability, and dissenting views. It also omitted the Intelligence Community consensus that there was little likelihood that Saddam would give whatever WMD he might have had to terrorists, as President Bush had suggested. It is crucial to ensure that Congress and the public can consider the facts and assumptions relied upon in fashioning some of the Executive's most grave policy decisions.
50. The incoming Administration should conduct an internal review to determine what involvement, if any, the CIA or any other intelligence agency played in the preparation or dissemination of the forged "Habbush"memorandum, leaked in December 2003, that: 1) purported to establish a link between Saddam Hussein and al Qaeda prior to the 9/11 attacks, and 2) purported to establish that Iraq did, in fact, purchase uranium from Niger as suggested in President Bush's 2003 State of the Union address.1731 The Director of National Intelligence, the Director of Central Intelligence, and the Secretary of Defense should each direct a complete and necessary investigation - either by way of the appropriate Inspector General or otherwise - to fully account for all acts associated with the apparently forged memorandum.
Reason: There is substantial reason to believe that the "Habbush Memorandum" was created within the Executive Branch of the United States, or, even if physically created elsewhere, that its dissemination by the Iraqi intelligence service to the Telegraph was furthered or otherwise encouraged by the Executive Branch. These actions could constitute a violation of the United States law that prohibits the intelligence community from conducting covert actions intended to influence United States political processes, public opinion, policies, or media.1732 The evidence suggesting intelligence community complicity in this event includes:
- Ron Suskind, in his book The Way of the World, states that a source in the CIA told him that Vice President Cheney ordered the CIA to prepare the Habbush Memorandum.1733
- Mr. Suskind posted on his web site his interview with that CIA source in which the source acknowledged directions from the White House/Vice President to prepare the document.1734
- Former CIA officer Philip Giraldi, writing in The American Conservative, reported that the document was prepared within the Office of Special Plans at the Defense Department at the direction of Vice President Cheney.1735
- Ayad Allawi, identified by Telegraph reporter as having been the source of the document, was known to be a CIA asset. Indeed, Allawi was reported by The Washington Post as having met with the CIA the very week prior to the Telegraph article.1736
- The story was leaked to a British newspaper, potentially to avoid the reach of the law by avoiding direct disclosure to United States media.
Furthermore, the motive for the creation of the document points to Vice President Cheney's office, and is thus consistent with the above press accounts:
- This memorandum was written and leaked after no weapons of mass destruction were found in Iraq and questions were being raised about why the United States had invaded Iraq. This letter bolstered the case for the existence of Iraq's atomic weapons program.
- Vice President Cheney was known to have persisted in the claim that there were connections between Saddam and al Qaeda long after these connections were disproved. This document bolstered the case for the invasion as having been justified as a response to the 9/11 attacks.
- More important, as reported in the Suskind book, this forgery was created starting in September of 2003 - shortly after the Department of Justice commenced investigating the leak of Valerie Plame's identity. The forgery would have undermined Joseph Wilson (by supporting the truthfulness of the purported uranium purchase) and, to some extent, undermined the merits of the federal leak investigation.
- The leak of this document as part of a strategy to defend the Iraq War is consistent with the leak of the identity of Valerie Plame's identity (through Scooter Libby), an act conducted through Vice President Cheney's Office.
Though certain officials in the Bush Administration have denied creating this document, it is vital to this Nation's understanding of the events leading us into the Iraq War that there be a complete accounting for the facts and circumstances associated with the implementation of the Bush Administration's Iraq policies, and as part of that accounting, that the truth about the government's involvement in the creation and distribution of this document - if any - be fully disclosed.
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Comment: A reworking of Samuel Johnson's quote about patriotism as "the last refuge of the scoundrel" was posted by anonymously on the Ed Shultz forum recently. Needless to say, the views of the person making the comment were ridiculed by some who supported the latest tea party protests. In reference to the tea party attendees, the cop-shooting suspect in Pittsburgh, and whether individuals were inciting the "patriotic" base to make runs on gun shops and the violence to that would ensue, he/she said:
"... violence is usually the first resort of madmen, bigots and fools. Too often, patriotism is often used as a shield for such acts"
In this article Laura Knight-Jadczyk has outlined some very reasonable things that can be done without resorting to violence. On SOTT there area pages upon pages of information regarding who is behind a lot of the problems we find ourselves in - madmen. Unfortunately we think that both the madmen and the normal but brainwashed people will fervently rage against these kinds of ideas as impossible. They may stress how difficult it would be to their bottom line, their right to bear arms or other such slogans being pushed by madmen. This is after all how pathologicals got the upper hand in the first place; by convincing normal people that what is actually the best thing to do is really not in their best interest, while presenting the worse possible thing to do as salvation. These kinds of madmen - we call them psychopaths, others call them snakes in suits - dupe then slowly drain everyone around them until there is nothing left to destroy. All the while they have no worries because they think there are always more willing fools. Thing is, we all end up paying for the acceptance of a pathological worldview and the bill seems to be coming due.
Let's stop taking directions from pathological speakers at tea parties and political rallies. Do not assume that the agenda of psychopaths in the media, and their similarly afflicted friends, hidden financial backers and most vociferous and ardent followers, don't have designs to incite violence in normal but worried members of the public. In going through some of the threads and comments all over alternative as well as mainstream news sites, it's obvious that some of these self-identified conservatives are not pathological but have bought into the pathological worldview; same goes for some identified as liberals. In the end it doesn't matter when everyone but the pathologicals are getting scammed. Violence isn't going to stop it. Violence begets more violence somewhere down the line and is foolish when it's the madmen who have the bigger guns and have shown no hesitation in using them.
Maybe by taking Ms Knight-Jadczyk's ideas to heart and sending the report to elected officials, those who are not outright madmen will begin to wipe the scales from their eyes. We won't hold our breath though. We suspect that the pathologicals have even those firmly in a blackmail loaded vice grip.