[Congressional Record: June 6, 2008 (Senate)]
[Page S5355-S5357]
OFFICE OF LEGAL COUNSEL
Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer for
coming to the chair a little early in order to allow me a chance to
make a statement. It was a considerable courtesy and one that is much
appreciated.
I will open my remarks by saying: Well, here we go again. I have come
to the floor several times already to warn of what appears to be a loss
of integrity and legal scholarship at the once proud Office of Legal
Counsel at the Department of Justice.
First, back in December, I pointed out the, shall we say,
``eccentric'' theories that arose out of the OLC's analysis that
greenlighted President Bush's program for warrantless wiretapping of
Americans. Those opinions had been secret. These theories came to light
after I plowed through a fat stack of classified opinions held in
secret over at the White House and pressed to have the particular
statements declassified.
My colleagues may recall that these theories included the following:
An executive order cannot limit a President. There is no
constitutional requirement for a President to issue a new
executive order whenever he wishes to depart from the terms
of a previous executive order. Rather
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than violate an executive order, the President has instead
modified or waived it.
As the Presiding Officer well knows, Executive orders have the force
of law. A theory like this allows the Federal Register, where the
executive orders are assembled, to become a screen of falsehood behind
which illegal programs can operate in violation of the very executive
order that purports to control the executive branch. So that was a fine
one.
Here is another:
The President, exercising his constitutional authority
under Article II--
That is the section of the Constitution that provides for the
Presidency and the executive branch of Government. Article I
establishes the Congress; article II establishes the executive branch--
can determine whether an action is a lawful exercise of the
President's authority under Article II.
I think the expression for that is ``pulling yourself up in the air
by your own bootstraps,'' and it runs contrary to widely established
constitutional principle. The seminal case of Marbury v. Madison, which
every law student knows, says it is emphatically the province and the
duty of the judiciary to say what the law is. And none other than the
great Justice Jackson once observed:
Some arbiter is almost indispensable when power . . . is .
. . balanced between different branches, as the legislature
and the executive. . . . Each unit cannot be left to judge
the limits of its own power.
Yet this was the opinion of the Office of Legal Counsel.
Here is the one I found perhaps most personally nauseating:
The Department of Justice is bound by the President's legal
[opinions.].
A particularly handy little doctrine for the White House, when it is
the legality of White House conduct that is at issue. Wouldn't it be
nice if you could come into the courts of America or face the laws of
America with a principle that the law-determining body has to follow
your instruction? If criminals had that, no one would ever go to jail.
It is inappropriate in our system of justice.
So I found these theories pretty appalling. I found them to be,
frankly, fringe theories from the outer limits of legal ideology. They
started me worrying about what is going on at the Office of Legal
Counsel.
Then we came to the OLC opinions the Bush administration used to
authorize waterboarding of detainees. Then, again, I came to the floor
because I was flabbergasted, horrified to discover that to reach its
conclusions, the Office of Legal Counsel totally overlooked two highly
relevant legal determinations and then went and drew language out of
health care reimbursement law--health care reimbursement law--in order
to justify allowing the administration to torture and waterboard
prisoners.
What were the highly relevant legal determinations the Office of
Legal Counsel overlooked? Well, one was that it was American
prosecutors and American judges who in military tribunals after World
War II prosecuted Japanese soldiers for war crimes, for torture, on
evidence of their waterboarding American prisoners of war. Missed it.
The other major thing the OLC overlooked was that the Department of
Justice itself prosecuted a Texas sheriff as a criminal for
waterboarding prisoners in 1984. The sheriff's conviction went up on
appeal to the U.S. Court of Appeals for the Fifth Circuit, one row
under the U.S. Supreme Court, and the appeals court, in a public
opinion, described the technique as ``water torture.'' The opinion used
the term ``torture'' over and over again. All a legal researcher has to
do is type the words ``water torture'' into the legal search engines,
Lexus or Westlaw, and this case comes up: United States v. Lee, 744 F2d
1124.
How did the wide-ranging legal analysis that ranged as far afield as
health care reimbursement law for guidance miss a case that is bang on
point, that was prosecuted by the Department of Justice itself, that is
reported in a decision of the U.S. Court of Appeals, that describes
this exact technique as ``water torture''? How, indeed.
After this, I began to refer to whatever it is that the Office of
Legal Counsel has now become as George Bush's ``Little Shop of Legal
Horrors.''
Now we have this. The FISA statute contains what is called an
exclusivity provision. The FISA statute of the Foreign Intelligence
Surveillance Act is the law that governs our surveillance authority on
foreign intelligence matters. It is an active issue before this body
right now, and the exclusivity provision is actively being discussed.
Here is how it reads:
[FISA] shall be the exclusive means by which electronic
surveillance . . . and the interception of domestic wire,
oral, and electronic communications may be conducted.
``Exclusive means.'' It seems pretty clear. And exclusivity
provisions such as this in statutes are not uncommon. More on that
later.
But let's look at what the Office of Legal Counsel said about that
language. This is language Senator Feinstein and I have had
declassified. Similar to the others, it was buried in a classified
opinion:
Unless Congress made a clear statement in the Foreign
Intelligence Surveillance Act that it sought to restrict
presidential authority to conduct wireless searches in the
national security area--which it has not--
``Which it has not''--
then the statute must be construed to avoid such a reading.
Well, this is particularly devilish because we have had a long
argument through the FISA debate with the administration over the
exclusivity provision. Senator Feinstein has led the charge on this,
with strong bipartisan support from Senators Hagel and Snowe, and never
once, in all these discussions, have I heard the administration say:
Oh, there is a problem with the exclusivity language in the FISA bill.
There is a loophole in it. It is not as strong as it could be. There is
something Congress did in the exclusivity clause that would open a way
for the President to wiretap Americans without a warrant.
Never once been said. But behind the scenes, in secret opinions, they
proclaimed that some loophole exists. I do not see the loophole: FISA
``shall be the exclusive means . . . .'' Where are you going to
challenge it? Are you going to say: Well, maybe the hole is that they
referenced the national security area? But the national security area
is where our foreign intelligence surveillance exists. Well, maybe it
has to do with wireless searches? No, wireless searches are precisely
what the FISA act is all about. Maybe it has to do with Presidential
authority? Well, who else wiretaps? We do not in Congress. The judges
do not. Of course, it is the executive branch.
So maybe it is that they do not think it was a clear enough
statement? Well, let's take a look at that and start with a case from
the U.S. Supreme Court. The Supreme Court was discussing a statute that
gave the Court ``exclusive'' jurisdiction. Chief Justice Rehnquist
wrote for the Supreme Court that this was ``uncompromising language.''
He continued:
[T]he description of our jurisdiction as ``exclusive''
necessarily denies jurisdiction of such cases to any other
federal court.
Chief Justice Rehnquist said:
This follows from the plain meaning of ``exclusive.''
The Chief Justice then cited to Webster's New International
Dictionary for that plain meaning. My Webster's defines ``exclusive''
as ``single, sole,'' ``excluding others from participation.'' That
sounds clear to me. The ``single'' means, the ``sole'' means, the means
that excludes others from participation.
Lower courts have discussed the FISA statute's own exclusivity
provision directly. Chief Justice Rehnquist was talking about a
different exclusivity provision. The FISA exclusivity provision was the
subject of a case called United States v. Andonian, cited 735 F. Supp.
1469. The court said this. Let me read three sentences talking about
the exclusivity language in FISA.
[This language] reveals that Congress intended to sew up
the perceived loopholes through which the President had been
able to avoid the warrant requirement. The exclusivity clause
makes it impossible for the President to ``opt-out'' of the
legislative scheme by retreating to his ``inherent''
Executive sovereignty over foreign affairs . . . . The
exclusivity clause . . . assures that the President cannot
avoid Congress' limitations by resorting to ``inherent''
powers as had President Truman at the time of the ``Steel
Seizure Case.''
By using this exclusivity clause, the court concluded:
Congress denied the President his inherent powers outright.
Tethering Executive reign,
[[Page S5357]]
Congress deemed that the provisions for gathering
intelligence in FISA and Title III were ``exclusive.''
Now, there still may be a constitutional question about whether the
President's Article II powers exist, no matter whether Congress has
passed a particular statute. But there can be no real question about
the intention or the effect of FISA's exclusivity provision.
I have sat and stared at FISA's exclusivity provision and the OLC
language side by side, and I cannot make sense of how they came to that
conclusion. Congress says, plain as day, FISA is the exclusive means,
and OLC says Congress did not say that.
So I wonder, maybe there is some strange legal use of the term
``exclusive'' that I missed in my 25 years of lawyering. Then I find
this Court decision that says this very language in the FISA statute
means Congress ``intended to sew up the perceived loopholes,'' that
this language ``makes it impossible for the President to `opt-out' ''
of the FISA requirements; that it ``assures that the President cannot
avoid Congress's limitations,'' and that by this language ``Congress
denied the President his inherent powers outright.''
Then I thought, maybe that is just a district court decision. That is
a lower court. But here is the Supreme Court of the United States
looking at an exclusivity clause in another statute and calling it
``uncompromising language,'' taking that word ``exclusive'' at its
plain dictionary meaning. There is literally no way I can see to
reconcile OLC's statement with the clear, plain language of Congress.
I have, in the past, expressed the fear that the Office of Legal
Counsel, under veils of secrecy, immune from either public scrutiny or
peer review, became a hothouse of ideology, in which the professional
standards expected of lawyers were thrown to the winds, all in order to
produce the right answers for the bosses over at the White House.
Well, as I said at the beginning, here we go again. Oh, one more
thing. When the Department of Justice sent me the letter acknowledging
that there was nothing that needed to be classified about this phrase,
they also said this phrase was now disclaimed--their opinion was now
disclaimed; not just declassified but disclaimed--by the Department of
Justice.
The letter reads:
[A]s you are aware from a review of the Department's
relevant legal opinions concerning the NSA's warrantless
surveillance activities, the 2001 statement addressing FISA
does not reflect the current analysis of the Department.
But that does not answer this: What went wrong at the OLC? What led
to this disclaimed opinion in the first place, and other opinions I
have had to come to the floor about? Has it been put right? This is an
important question because this is an important institution of our
Government, and we need to be assured it is working for the American
people, that it is of integrity and that it is back to the standards of
legal scholarship that long characterized the once-proud reputation of
that office.
We do not have that assurance. There is a continuing drumbeat of what
appears to be incompetence, and we need the reassurance. We are
entitled to the reassurance. Something has to be done.
Mr. President, I ask unanimous consent that the Department's letter
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 13, 2008.
Hon. Dianne Feinstein,
Hon. Sheldon Whitehouse,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein and Senator Whitehouse: This
responds to your letter, dated April 29, 2008, which asked
about a particular statement contained in a classified
November 2001 opinion of the Department's Office of Legal
Counsel addressing the Foreign Intelligence Surveillance Act.
The statement in question asserted that unless Congress had
made clear in FlSA that it sought to restrict presidential
authority to conduct warrantless surveillance activities in
the national security area, FlSA must be construed to avoid
such a reading. The statement also asserted the view in 2001
that Congress had not included such a clear statement in
FlSA. As you know, and as is set forth in the Department of
Justice's January 2006 white paper concerning the legal basis
for the Terrorist Surveillance Program, the Department's more
recent analysis is different: Congress, through the
Authorization for Use of Military Force of September 18,
2001, confirmed and supplemented the President's Article II
authority to conduct warrantless surveillance to prevent
catastrophic attacks on the United States, and such authority
confirmed by the AUMF can and must be read consistently with
FlSA, which explicitly contemplates that Congress may
authorize electronic surveillance by a statute other than
FlSA.
We understand you have been advised by the Director of
National Intelligence that the statement in question,
standing alone, may appropriately be treated as unclassified.
We also would like to address separately the substance of the
statement and provide the Department's views concerning
public discussion of the statement.
The general proposition (of which the November 2001
statement is a particular example) that statutes will be
interpreted whenever reasonably possible not to conflict with
the President's constitutional authorities is unremarkable
and fully consistent with the longstanding precedents of OLC,
issued under Administrations of both parties. See, e.g.,
Memorandum for Alan Kreczko, Legal Adviser to the National
Security Council, from Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, Re: Applicability of 47
U.S.C. section 502 to Certain Broadcast Activities at 3 (Oct.
15, 1993) (``The President's authority in these areas is very
broad indeed, in accordance with his paramount constitutional
responsibilities for foreign relations and national security.
Nothing in the text or context of [the statute] suggests that
it was Congress's intent to circumscribe this authority. In
the absence of a clear statement of such intent, we do not
believe that a statutory provision of this generality should
be interpreted so to restrict the President constitutional
powers.''). The courts apply the same canon of statutory
interpretation. See, e.g., Department of Navy v. Egan, 484
U.S. 518,530 (1988) (``[U]nless Congress has specifically
provided otherwise, courts traditionally have been reluctant
to intrude upon the authority of the Executive in military
and national security affairs.'').
However, as you are aware from a review of the Department's
relevant legal opinions concerning the NSA's warrantless
surveillance activities, the 2001 statement addressing FISA
does not reflect the current analysis of the Department.
Rather, the Department's more recent analysis of the relation
between FISA and the NSA's surveillance activities
acknowledged by the President was summarized in the
Department's January 19, 2006 white paper (published before
those activities became the subject of FISA orders and before
enactment of the Protect America Act of 2007). As that paper
pointed out, ``In the specific context of the current armed
conflict with al Qaeda and related terrorist organizations,
Congress by statute [in the AUMF] had confirmed and
supplemented the President's recognized authority under
Article II of the Constitution to conduct such surveillance
to prevent further catastrophic attacks on the homeland.''
Legal Authorities Supporting the Activities of the National
Security Agency Described by the President at 2 (Jan. 19,
2006). The Department's white paper further explained the
particular relevance of the canon of constitutional avoidance
to the NSA activities: ``Even if there were ambiguity about
whether FlSA, read together with the AUMF, permits the
President to authorize the NSA activities, the canon of
constitutional avoidance requires reading these statutes to
overcome any restrictions in FISA and Title III, at least as
they might otherwise apply to the congressionally authorized
armed conflict with al Qaeda.'' Id. at 3.
Accordingly, we respectfully request that if you wish to
make use of the 2001 statement in public debate, you also
point out that the Department's more recent analysis of the
question is reflected in the passages quoted above from the
2006 white paper.
We hope that this information is helpful. If we can be of
further assistance regarding this or any other matter, please
do not hesitate to contact this office.
Sincerely,
Brian A. Benczkowski,
Principal Deputy Assistant Attorney General.
Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer again
for his courtesy and yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from New
Jersey, Mr. Lautenberg.
Mr. LAUTENBERG. Mr. President, I thank you. I will not take long.
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