EXECUTIVE POWER AND ITS
CONSTITUTIONAL LIMITATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
----------
JULY 25, 2008
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Serial No. 110-200
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
EXECUTIVE POWER AND ITS CONSTITUTIONAL LIMITATIONS
EXECUTIVE POWER AND ITS
CONSTITUTIONAL LIMITATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 25, 2008
__________
Serial No. 110-200
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
----------
JULY 25, 2008
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 3
The Honorable Robert Wexler, a Representative in Congress from
the State of Florida, and Member, Committee on the Judiciary... 4
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 5
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Member, Committee on the Judiciary.......... 5
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Member, Committee on the Judiciary.... 10
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California, and Member, Committee on the
Judiciary...................................................... 11
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 12
The Honorable Mike Pence, a Representative in Congress from the
State of Indiana, and Member, Committee on the Judiciary....... 13
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Member, Committee on the Judiciary 15
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Committee on the Judiciary....... 18
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Member, Committee on the Judiciary..... 19
The Honorable Hank Johnson, a Representative in Congress from the
State of Georgia, and Member, Committee on the Judiciary....... 20
The Honorable Tammy Baldwin, a Representative in Congress from
the State of Wisconsin, and Member, Committee on the Judiciary. 21
The Honorable Keith Ellison, a Representative in Congress from
the State of Minnesota, and Member, Committee on the Judiciary. 26
WITNESSES
The Honorable Dennis J. Kucinich, a Representative in Congress
from the State of Ohio
Oral Testimony................................................. 26
Prepared Statement............................................. 28
The Honorable Maurice Hinchey, a Representative in Congress from
the State of New York
Oral Testimony................................................. 29
Prepared Statement............................................. 32
The Honorable Brad Miller, a Representative in Congress from the
State of North Carolina
Oral Testimony................................................. 33
Prepared Statement............................................. 35
The Honorable Walter Jones, a Representative in Congress from the
State of North Carolina
Oral Testimony................................................. 36
Prepared Statement............................................. 72
The Honorable Elizabeth Holtzman, former U.S. Representative from
New York
Oral Testimony................................................. 73
Prepared Statement............................................. 75
The Honorable Bob Barr, former U.S. Representative from Georgia
and 2008 Libertarian Nominee for President
Oral Testimony................................................. 81
Prepared Statement............................................. 84
The Honorable Ross C. ``Rocky'' Anderson, Founder and President,
High Roads for Human Rights
Oral Testimony................................................. 98
Prepared Statement............................................. 100
Mr. Stephen Presser, Raoul Berger Professor of Legal History,
Northwestern University School of Law
Oral Testimony................................................. 129
Prepared Statement............................................. 131
Mr. Bruce Fein, Associate Deputy Attorney General, 1981-1982, and
Chairman, American Freedom Agenda
Oral Testimony................................................. 145
Prepared Statement............................................. 147
Mr. Vincent Bugliosi, Author and former Los Angeles County
Prosecutor
Oral Testimony................................................. 150
Prepared Statement............................................. 151
Mr. Jeremy A. Rabkin, Professor of Law, George Mason University
School of Law
Oral Testimony................................................. 152
Prepared Statement............................................. 155
Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center
for Justice at NYU School of Law
Oral Testimony................................................. 160
Prepared Statement............................................. 162
Mr. Elliott Adams, President of the Board, Veterans for Peace
Oral Testimony................................................. 171
Prepared Statement............................................. 172
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Steve King, a Representative
in Congress from the State of Iowa, and Member, Committee on
the Judiciary.................................................. 7
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 16
Prepared Statement of the Honorable Tammy Baldwin, a
Representative in Congress from the State of Wisconsin......... 23
Material submitted by the Honorable Walter Jones, a
Representative in Congress from the State of North Carolina.... 38
Material submitted by the Honorable Bob Barr, former U.S.
Representative from Georgia and 2008 Libertarian Nominee for
President...................................................... 175
Material submitted by the Honorable Steve King, a Representative
in Congress from the State of Iowa, and Member, Committee on
the Judiciary.................................................. 191
Material submitted by the Honorable Steve King, a Representative
in Congress from the State of Iowa, and Member, Committee on
the Judiciary.................................................. 194
APPENDIX
Material Submitted for the Hearing Record........................ 239
EXECUTIVE POWER AND ITS CONSTITUTIONAL LIMITATIONS
----------
FRIDAY, JULY 25, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:19 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Nadler, Scott, Watt,
Lofgren, Jackson Lee, Waters, Wexler, Cohen, Johnson, Sherman,
Baldwin, Schiff, Wasserman Schultz, Ellison, Smith, Lungren,
Pence, King, Franks, and Gohmert.
Staff Present: Perry Apelbaum, Staff Director and Chief
Counsel; Ted Kalo, Deputy Chief Counsel; Benjamin Staub,
Majority Professional Staff Member; and Crystal Jezierski,
Minority Counsel.
Mr. Conyers. Good morning. The Committee will come to
order.
We face few issues more difficult, complex or important
than separation of powers in general and excesses of the
executive branch in particular. As our first great civil
libertarian, in my mind, Thomas Jefferson wrote, ``The greatest
calamity which would befall us would be submission to a
government of unlimited powers.''
So, it is for that reason that the Founders gave Congress
the power to oversee the executive branch as well as the power
of the purse, the power to decide when the country goes to war,
and the power to remove through the constitutional process
officers who may have violated their oath. And so it is for
these same reasons that the Founders created independent courts
to operate as a check on the two political branches and to
serve as the final protector of our precious rights and
liberties.
It is no secret that I have grave concerns about the
excesses and the exercises of the executive branch authority as
has been used in this present Administration. And at my
direction, this Committee has spent a considerable portion of
its time, energy and resources investigating allegations
concerning the politicization of the Department of Justice; the
misuse of signing statements; misuse of authority with regard
to detention, interrogation and rendition of detainees and
others; possible manipulation of intelligence regarding the
Iraq war; improper retaliation against critics of the
Administration, including the outing of Valerie Plame; and
excessive secrecy by the Administration, including the misuse
of various privileges and immunities.
I believe the evidence on these matters is both credible
and substantial and warrants direct answers from the most
senior members of the Administration, under oath if at all
possible.
This Member, the second-longest serving in the Congress,
has a 40-year track record of opposing governmental injustice
by both Republican and Democratic Presidents. Regardless of who
the next President is and who is in the congressional majority
next year, Congress and the American people will be struggling
with the legacy of these excesses.
By the same token, I have good friends on my own side of
the aisle who say we have done too little and too late. I would
remind all of us that in the prior Congress, when I wasn't
Chairman, I held forums on the Presidential election in Ohio,
what went wrong in that election; the Downing Street minutes
hearings; hearings on warrantless wiretapping. And there have
been at least two comprehensive reports made on these matters.
In this Congress, the Committee on Judiciary has held more
than 45 separate public hearings on these matters, bringing in
a range of witnesses, including the former Attorney General; a
couple of past Attorneys General; also two heads of the Justice
Department Office of Legal Counsel; two current and former
Deputy Attorneys General; the special counsel, Patrick
Fitzgerald; the Department of Justice White House liaison,
Monica Goodling; the former Secretary of State of Ohio, Kenneth
Blackwell; Douglas Feith; Scott McClellan; Ambassador Joseph
Wilson, to name a few.
We have pursued criminal contempt against Harriet Miers,
the President's former lawyer, and Josh Bolton, his chief of
staff, in the Department of Justice and in Federal court. And
we expect to take action against Karl Rove for his refusal to
obey our Judiciary Committee-issued subpoena.
I have also been involved, as have other Members on the
Committee, opposing the spying on Americans and wiretapping
phones and warrantless surveillance, and have opposed many of
the modifications in the wrong direction, in my view, of the
FISA bill. We have helped initiate numerous Inspector General
investigations and Office of Professional Responsibility
investigations and have passed legislation into law limiting
abusive United States Attorney appointments.
And we are not done yet. We do not intend to go away until
we achieve the accountability that the Congress is entitled to
and the American people deserve. I believe it is in all our
interests to work together to rein in any excesses of the
executive branch, regardless of whose hands it is in,
Democratic, Republican, Libertarian, or independent.
Whether it was the suspension of habeas corpus during the
Civil War, the Palmer raids during World War I, the internment
of Japanese Americans during World War II, COINTELPRO that came
out of the White House during Vietnam, we know the executive
branch can and does overreach frequently during times of war.
As one who was included on President Nixon's enemies list, I am
all too familiar with the specter of an unchecked executive
branch. And the risk to our citizens' rights are even graver
today, as the war on terror has no specific end point.
And so I conclude, our great challenge as a Committee, as
the Congress, as a people, is to find a way to work together to
protect these rights and develop a record and a process for
addressing and correcting the abuses, a process that will stand
the test of time, in a manner that serves our Nation and our
Constitution. I hope today's hearing will be a beginning to
make progress in that direction.
And I am pleased now to recognize the Ranking Member of the
Judiciary Committee from Texas, the distinguished Member, Lamar
Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, if last month it appeared we hosted a book-
of-the-month club, this week it seems that we are hosting an
anger management class. Nothing is going to come out of this
hearing with regard to impeachment of the President. I know it,
the media knows it, and the Speaker knows it. The Democratic
leadership has said time and again they have no intention of
bringing any impeachment resolution for the President or the
Vice President to the House floor.
Why is that? It is because they know it won't pass. That is
because there is no evidence to support impeachment. To quote a
Democratic Member of this Committee during the Clinton
impeachment, Congress, quote, ``has no authority to forcibly
remove the President simply because they dislike him or
disapprove of his actions,'' end quote. And another Democratic
Member of this Judiciary Committee said yesterday he did not
think that the President had committed any crime.
After holding 32 hearings and listening to over 120
witnesses, the Members of the Judiciary Committee have found no
evidence of any criminal wrongdoing by the President or the
Vice President. Meanwhile, congressional approval ratings have
sunk to a record low. Only 9 percent of those polled believe
that Congress is doing a good job. That makes President Bush's
approval rating of 32 percent look pretty good.
The American people have a low opinion of Congress because
Congress wreaks of partisanship. This partisan hearing
contributes to that view. Instead of partisan bickering and
bitterness, we should consider bipartisan legislation to reduce
the price of gas, reduce crime, and secure the borders.
Speaker Pelosi came into office promising to govern in a,
quote, ``respectful, bipartisan way.'' Yet there is nothing
bipartisan about this hearing she suggested or the Speaker's
recent comments about the President himself.
Americans are tired of bitter partisanship and want
solutions that unite our country. They want lower gas prices.
They want to keep their children safe from violent crime and
sexual predators. And they want to live, work and raise their
families in the United States free from terrorist attacks.
The relentless efforts of some individuals to malign the
outgoing Administration only demeans and harms the institution
of Congress. This hearing will not cause us to impeach the
President. It will only serve to impeach Congress's own
credibility.
Mr. Chairman, before I yield back, I want to read, with
your permission, an excerpt from the House rules. And let me
say at the outset that I have confidence that our own Members,
as well as our witnesses, will abide by these rules, as you
always have yourself. And, in fact, you have always encouraged
witnesses to do so.
But let me quote from the rules with regard to references
to the President. This is a quote: The rules ``do not permit
the use of language that is personally offensive toward the
President. Personal criticism, innuendo, ridicule or terms of
opprobrium are not in order,'' end quote.
Thank you, Mr. Chairman. I will yield back.
Mr. Conyers. I thank the gentleman.
I am now pleased to recognize the distinguished Member of
the Judiciary Committee, the Honorable Robert Wexler of
Florida.
Mr. Wexler. Thank you, Mr. Chairman. Is this for purposes
of an opening statement?
Mr. Conyers. Yes.
Mr. Wexler. Thank you so much.
Thank you, Mr. Chairman. I applaud your tenacity and
courage for calling for this hearing.
For the past few months, I have vigorously argued that this
Committee should immediately begin impeachment hearings. The
allegations made against the Bush White House documents serious
abuses that, if proven, would certainly constitute high crimes.
The White House is charged with deliberately lying to
Congress and the American people and manipulating intelligence
regarding weapons of mass destruction in Iraq, ordering the
illegal use of torture, firing U.S. attorneys for political
purposes, denying the legitimate constitutional powers of
congressional oversight by blatantly ignoring subpoenas, among
countless other crimes.
Never before in the history of this Nation has an
Administration so successfully diminished the constitutional
powers of the legislative branch. It is unacceptable, and it
must not stand. This is not how our Founders so carefully and
delicately designed our democracy.
In a deliberate effort to reduce the power of this Congress
and obstruct our ability to provide oversight over the
executive branch, President Bush has ordered Karl Rove, Harriet
Miers, Josh Bolton and other Administration officials to simply
ignore Congress by refusing to testify. This failure of
Administration witnesses to even appear is unprecedented in the
history of our Nation. The Bush White House has distorted the
concept of executive privilege beyond recognition in order to
hide White House wrongdoings.
Faced with this litany of wrongful actions, I am convinced
that the most appropriate response to this unprecedented
behavior is to hold hearings for impeachment.
The power of impeachment, which our Founding Fathers
provided to the House of Representatives, was designed
precisely for this type of wrongdoing. I fully recognize the
significance of holding impeachment hearings, and I have not
come to this position lightly, not one bit. But when an
Administration takes actions that amount to high crimes, we,
the representatives of the people, are left with no option
other than to seek impeachment and removal from office.
Our Government was founded by a delicate balance of powers,
whereby one branch carefully checks the other branches to
prevent a dangerous consolidation of power. The actions of this
White House have eviscerated this careful balance.
This is not a Democratic or Republican issue. This is an
American issue. Without these checks and balances, a President
can run roughshod over any law with impunity. Congress must end
this disturbing pattern of behavior. And, in these
circumstances, unfortunately the only option left is
impeachment hearings.
We have been down this road before. Yes, we have. In 1973,
articles of impeachment were introduced against President Nixon
after he inappropriately tried to use executive privilege to
bury evidence of his wrongdoings. I think it would be helpful
to delve more deeply into what happened during the Nixon
administration, particularly as it relates to the obstruction
of the oversight powers of this Congress.
Mr. Chairman, I thank you so much for having this hearing
and giving the American people an opportunity to hear about how
we can begin to take our Government and our country back. Thank
you.
Mr. Conyers. You are welcome.
I have been reminded by a Member on the Committee that
there are to be no reactions. As much as we want to applaud and
cheer the statements that we totally approve of, let's restrain
ourselves, please.
I am very pleased now to recognize the Chairman of the
Crime Subcommittee, Bobby Scott, the distinguished gentleman
from Virginia.
Mr. Scott. Thank you very much, Mr. Chairman.
Just very briefly, if government is to work with three
branches of government, we have to understand the executive
power and its constitutional limitations. So there are a number
of issues that we have to address, such as the politicization
of the Department of Justice, including hiring policy and the
use of Department of Justice resources and powers in violation
of the Constitution, we have to find out whether or not crimes
were committed which resulted in us getting into Iraq, and who
has authorized what virtually everyone in the world outside of
this Administration considers torture. We have to figure out
how we can do an investigation if the Department of Justice
does not enforce subpoenas when witnesses refuse to cooperate
with our investigations.
So this hearing on executive power and its constitutional
limitations will not only help us define those limitations but
also recommend ways to enforce those limitations.
I thank you, Mr. Chairman, for holding the hearing.
Mr. Conyers. Thank you.
I am now pleased to recognize Steve King, the distinguished
gentleman from Iowa, who is the Ranking Member on the
Immigration Subcommittee.
Mr. King. Thank you, Mr. Chairman.
I would notice, Mr. Chairman, in your opening remarks you
used the phrase, ``power to remove.'' And as I read that in my
Constitution, that is actually impeachment. We are here having
impeachment hearings before the Judiciary Committee.
It is an astonishing thing to me to think that I was
sitting back there in 1998, in December 1998, watching what
went on here. It was one of the inspirations to me, the reason
I am sitting here, bigger than anything else, is because I sat
out there and I was influenced significantly by both sides of
this in ways I won't go into.
But this is an impeachment hearing. And whether it is to be
called the ``power to remove,'' these are impeachment hearings
before the United States Congress. I never imagined I would
ever be sitting on this side when something like this happened.
And as I've watched the Bush administration in every day of
these 7\1/2\ years, I didn't see anything along the way that
would have indicated to me by an objective judgment that we
would be sitting here with these impeachment hearings today.
But here is what I will tell you is going on. We have had
this parade of 45 separate public hearings, as the Chairman
said in his opening statement, 45 of them. Among them, the
chief of staff for the Vice President of the United States,
David Addington, the successor of Scooter Libby, I might add.
And I would point out that it is pretty rare if you can find
anybody out in the crowd that can actually say what it is that
Scooter Libby actually did.
Along the list, Doug Feith, Attorney General John Ashcroft
just last week, Scott McClellan. Forever the press secretary of
the President of the United States will be looked at
skeptically and probably be locked out of the inner sanctum of
what goes on in the White House because Scott McClellan came
here and testified. And even though there wasn't any new
information there, he gave his view on what the President
should have done 3 years after the fact.
And Joe Wilson, referenced by the gentleman from Florida,
Ambassador Joe Wilson, whose integrity demonstrated before this
witness was the least impressive of any witness that I have
seen before this Committee in 6 years. And, in fact, Joe
Wilson's report before the CIA, which is now a public document,
says--and he testified, sitting right where Mr. Kucinich is
right now--he testified before this Committee and before the
world that he had been debriefed within 2 hours of his return
from 2 weeks in Niger by two CIA agents, and those CIA then had
debriefed him in his home. That report I think he thought was
going to remain secret in perpetuity. But, in fact, that report
is a public document. I will make that report available today.
And in that document, it says that he met with the former
Prime Minister of Niger, Mayaki. Mayaki had met with Iraqi
representatives, four of them, who were seeking expanded
commercial relations in Niger. And the only thing that Niger
has to sell is yellow cake uranium. And Mayaki said, ``That is
what the conversation was about. I downplayed it because I
didn't want to get crossways with the United States.'' That
will be in a public document today.
Mr. Conyers. Does the gentleman wish to introduce it into
the record?
Mr. King. I do wish to introduce it into the record. My
staff has it on the way. I thank the Chairman.
[The material referred to follows:]
Mr. King. And that is some of the framework that is not
considered here by the majority side. And that is the value of
this evidence that we are hearing come from, say, the gentleman
of Florida and others.
And so I would point out that the 16 words, by the way,
supported by the CIA report of Ambassador Wilson's, the
President's 16 words in his State of the Union address on
January 28, 2003, were supported by the CIA report from
Ambassador Joe Wilson.
Weapons of mass destruction--every intelligence agency in
the world that I know of, including the Israelis, including
Western Europe, all agreed with the same thing. Those don't
become lies. That is the best intelligence that we had.
So we are here, impeachment hearings before the United
States Congress.
I am just going to quote quickly the Chair and the Chairman
of the Constitution Subcommittee. I am not going to tell you
which said what. Here is one from the impeachment hearings. You
can figure it out on your own. I think you will know.
A 1998 impeachment hearings, quote: ``We are using the most
powerful institutional tool available to this body,
impeachment, in a highly partisan manner. Impeachment was
designed to rid this Nation of traitors and tyrants,'' closed
quote, presumably and not something else.
And here is another quote from a different Chair: ``It is
an enormous responsibility and extraordinary power. It is not
one that should be exercised lightly. It certainly is not one
which should be exercised in a manner which is or would be
perceived to be unfair or partisan,'' close quote.
I close my statement. And I look forward to hearing and
watching this unfold.
Mr. Chairman, I yield back.
Mr. Conyers. I thank the gentleman, and would remind him
that we are gathered here today this morning on a hearing on
the Executive Power and Its Constitutional Limitations. To the
regret of many, this is not an impeachment hearing. To have an
impeachment hearing, the House of Representatives has to vote
to authorize that a Committee begin an inquiry. And that has
not taken place yet.
I would now recognize the distinguished gentlelady from
California, the Chair of the Immigration Subommittee, Zoe
Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman, for convening this
important hearing.
In January of this year, I requested that this Committee
hold a hearing to develop a common understanding of the role of
impeachment in the history of the United States and a common
understanding of the impeachment standards set forth in the
Constitution. And I welcome this opportunity to explore the
issues of executive power and its constitutional limitations.
I have a unique view of the history of impeachment. As you
know, Mr. Chairman, I served on the staff of Congressman Don
Edwards during the impeachment of Richard Nixon and, of course,
also served as a Member of this Committee during the
impeachment of President Clinton. The two efforts could not
have been more different.
I would note that the impeachment of Richard Nixon consumed
14 months. And if you add in the Senate's action, because the
information gathered there was material to the effort here;
plus the evidence gathered by a very active prosecutor that was
just voluminous, really going to the issue of whether high
crimes and misdemeanors had been committed by President Nixon.
And, really, the definition of high crimes and misdemeanors is
rogue action that really undercuts the very core system of
government. I won't belabor the Clinton impeachment but will
simply say that his actions, though reprehensible, did not
undercut the entire system of American Government.
Over the past 7 years, I have watched us go down roads I
thought this country would never go down. I have watched the
Administration take actions that I previously thought were
unimaginable in our Nation that is governed by the
Constitution. And, regrettably, for those years when the
Republicans were in the majority in Congress, that broad push
of executive power was too often ratified by the legislative
branch of Government.
With just a few months left in this 110th Congress, I am
particularly interested in hearing from witnesses about
strategies to reverse the expansion of executive power that has
jeopardized the careful balance between the three branches of
Government that help preserve our freedom and our democracy.
It is my judgment that President Bush is the worst
President our country has ever suffered, making judgments that
have jeopardized our national security, impaired our economy,
diminished the freedom and civil liberties of the American
people. This hearing is an important step forward in examining
how our free America can be restored.
I thank you, Mr. Chairman, and yield back.
Mr. Conyers. Thank you.
I am pleased now to recognize the gentleman from
California, Dan Lungren, who has not only been a Congressman,
but was the chief law enforcement officer for California before
he returned to the Congress.
Mr. Lungren. Thank you very much, Mr. Chairman.
I have deep respect for you, Mr. Chairman. We have worked
together in the past on a nonpartisan basis. But I must express
my disappointment in today's hearing.
When I was a kid growing up, the worst epithet that could
be thrown at Republicans was ``Herbert Hoover.'' Now it is
``Richard Nixon,'' and I wondered how long it would be before
we found that. I guess it was the second gentleman on the
Democratic side to bring that up.
It is unusual, as anyone who has watched this Committee
would know, that every Member is given a right to actually give
an opening statement. We appreciate the fact that we were
informed this morning that that would happen today, unusual
though it is. One wonders what we are becoming here. When I was
a kid growing up, we used to watch the Friday night fights, and
now it looks like we have the Friday morning show trials.
I have great respect for many of the witnesses here that I
know. It doesn't mean I don't have respect for the others, but
I just know a number of the witnesses, current Members, former
Members with whom I served, others that I knew in previous
Administration.
I am somewhat perplexed, Mr. Chairman, though, because in
your opening statement you made reference to removal of the
President. I believe those were your words. And yet you have
assured us these are not impeachment hearings.
Mr. Jones told me that he was invited here to talk about
his bill, which is not impeachment, so I hope we will keep that
in mind as we go forward with other opening statements.
Maybe what we are here for is something called impeachment-
lite. We won't go through the process of impeachment, but we
will make every allegation against the President, some of which
has already been said, and leave the press with the opportunity
to print the fact that the President is accused of impeachable
offenses but perhaps leaving not out the fact that we are not
taking, as the Chairman told us, steps toward impeachment.
It is sort of in that Never-Never Land of accusing the
President of impeachable offenses but not taking actions to
impeach him, which I guess impugns him but does not impeach
him. But maybe it has the same effect in the court of public
opinion.
As I understand it, our notion of high crimes and
misdemeanors contained in the Constitution comes from the
English common law, and it refers to acts that are inconsistent
with the obligations and duties of office that involve putting
personal and partisan concerns ahead of the interests of the
people and demonstrate the unfitness of the man to the office.
It has seldom been sought in the history of the United
States, because that is a high bar. And I think, just as it is
a tragedy that we have moved in the direction of criminalizing
differences of political opinion to the detriment of this
country and to the detriment of vigorous public debate, when we
loosely throw around terms of ``high crimes and misdemeanors''
and loosely make references to disagreements we have with the
chief executive, as deep as they may be, in the context of
impeachment and high crimes and misdemeanors, in my judgment,
we do violence to the Constitution and the seriousness of
actions which would be impeachable. And for that, I am sorry.
This is occurring just months before the President will
leave office. We know from the statements of the Speaker of the
House there is no reasonable expectation that impeachment
proceedings will proceed. So one has to wonder why.
Thank you very much, Mr. Chairman.
Mr. Conyers. The Chair is pleased to recognize now the
Chair of the Constitution Subcommittee in the Judiciary, the
distinguished gentleman from New York, Jerry Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
I won't take the full 5 minutes because I am eager to hear
the testimony of the witnesses. But I must say, I have heard
some of my colleagues on the other side of the aisle say that
this hearing and many of the investigations of the full
Committee and my Subcommittee have conducted are a waste of
time or worse.
I had the misfortune to be here during the investigation
and impeachment of President Clinton, who, at worst, lied about
an affair. It had to be one of the most demeaning and prurient
circuses to which I have ever been subjected.
In this case, we are involved with far more serious
allegations: allegations including violations of the anti-
torture laws of this country, violations of the FISA laws,
criminal prohibition against warrantless wiretapping, illegal
detentions, political interference with prosecutions, and a
host of other serious, illegal and possibly criminal acts
which, by many definitions, would be classified as high crimes
and misdemeanors.
I think it is vital that we look into these questions. So I
thank the Chairman for holding these hearings, and I look
forward to the testimony of the witnesses.
And I hope that anyone who thinks that inquiring into the
excesses of the executive branch and into what appears to be a
concerted effort in every different aspect of law to destroy
the power of the Congress and the Judiciary and to limit our
power to protect the liberties of the American people against
encroachments by the executive are a waste of time, I hope they
will rethink what they are doing here.
Thank you. I yield back the balance of my time.
Mr. Conyers. The Chair is pleased now to recognize the
distinguished gentleman from Indiana, Mike Pence, who serves on
the Foreign Affairs Committee, as well as the Judiciary
Committee.
Mr. Pence. Thank you, Mr. Chairman.
I note this hearing is entitled ``Executive Power and Its
Constitutional Limitations.'' And I want to say, I accept the
Chairman's assurance that it was not his intention to convene a
hearing today on the subject of impeachment. But I know that
many here today on both sides of the rostrum and many looking
in are anxious to debate whether the 43rd President of the
United States should be impeached. And I would like to address
myself to that issue in my opening remarks.
We have already heard from the distinguished Ranking Member
and other colleagues about arguments against having this
hearing. I can't add to those arguments. These types of
hearings, my concern is, do intentionally or unintentionally
take us down the road of the criminalization of American
politics. And I deeply regret that.
Now, putting those objections aside, let me say
emphatically, I see absolutely no credible basis for the
impeachment of President George W. Bush. The Constitution
provides in article 2, section 4, that, ``The President, the
Vice President and all civil officers of the United States
shall be removed from office on impeachment for and conviction
of treason, bribery and other high crimes and misdemeanors.''
Now, certainly the President has not been accused of treason or
bribery, so that leaves high crimes and misdemeanors.
Now, let me direct my attention to my colleague on the left
today and in every respect, Mr. Kucinich from Ohio. I think the
gentleman knows of my respect and affection for him. I
appreciate his passion and his focus, and I do not begrudge him
his efforts in pursuing this cause. I just believe the
gentleman from Ohio is dead-wrong on our history and on facts
and on the Constitution.
In his testimony today, Professor Presser has provided us
with an exhaustive overview of what the Framers of the
Constitution intended by the phrase, ``high crimes and
misdemeanors.'' Taking cues from the Framers in ``The
Federalist Papers,'' the English common law, and the text of
the Constitution, Professor Presser sets forth the belief of
the Framers that the President must have put his personal
interests above the Constitution and the laws of the Nation,
thereby violating his oath of office.
Of course, the Constitution provides the House of
Representatives with the sole power of impeachment, article 1,
section 2, clause 5. But that does not mean we should act
without regard to the Framers' intent or, frankly, without
regard to our own good judgment and discretion.
I started looking at whether the President has violated his
oath of office, specifically by putting his personal interests
above those of the country or by committing other acts
obviously criminal such as lying under oath.
Now, I want to say emphatically, I believe President Bush
is a man of integrity. I believe he has led this Nation with
distinction during some of her darkest hours.
Many in this room have not agreed with the President on
every one of his policy decisions, and I am one of those
people. As late as Wednesday of this week, my colleagues on
this Committee will know that I vigorously debated a Member of
this Administration on an issue upon which we disagreed.
But disagreements on policy with any President or
Administration do not and must not, in and of themselves, give
rise to impeachment. The Framers did not intend impeachment as
a political device to be used whenever the majority party in
Congress is unhappy with the President and wants to get rid of
him. The bar is much higher than that, and ought to be.
President Bush has, in my view, conducted himself
throughout his tenure in a manner that is not only consistent
with his oath of office, but let me say emphatically here, from
that dreadful day in September of 2001 to this, I believe
President George W. Bush has consistently put the American
people's needs before his own.
Now, the issues up for discussion before resolutions in
this body, I believe, include a range of accusations: improper
politicization of the Justice Department, misuse of executive
branch authority, alleged misuse of authority in denying
Congress and the American people an opportunity to engage in
oversight. These issues ought to be debated.
But let me say emphatically, there is no evidence in these
allegations of the President putting his personal interest
above those of the Nation. There is no evidence in these
allegations of the President violating his oath of office.
There is no evidence I have seen emerge from the multitude of
hearings and investigations on the President and this
Administration that have taken place throughout the 110th
Congress which shows the existence of a high crime or a
misdemeanor.
In short, let me say about the elephant in the room, about
which this hearing apparently is not, let me say, I believe
there has been no high crime or misdemeanor committed, and
therefore there should be no serious consideration of the
impeachment of President George W. Bush.
And I yield back.
Mr. Conyers. The Chair recognizes the distinguished
gentlelady from Texas, who is a Subcommittee Chair on Homeland
Security and a senior Member of the House Judiciary Committee,
the Honorable Sheila Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, thank you very much for
yielding.
And let me thank this Committee for accepting the
institutional responsibility that the Congress and the House
Judiciary retains. This is not a personal discussion. It is an
institutional discussion and a very, very vital hearing.
Although Americans may be experiencing high prices at the
gas pump, there may be concerns about tornadoes and hurricanes,
certainly there are concerns regarding the economy, the
Congress still cannot abdicate its responsibility for
protecting the Constitution.
Mr. Chairman, I would like to just simply offer for the
record the opening words of the Constitution: ``We, the people
of the United States, in order to form a more perfect union,
establish justice, ensure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the
blessings of liberty to ourselves, our posterity, do ordain and
establish the Constitution for the United States of America.''
It is unique; it is finite. It offers a distinctive role
for this country and this Congress. And we must act.
We are being deliberative today. We are not being
accusatory, but we are recognizing the responsibility of this
particular Committee.
As I note, two former Members of Congress, Congresswoman
Holtzman and Congressman Barr, both having experienced
impeachment, I believe their presence today or their
willingness to be here today connotes the seriousness of this
hearing. We cannot dictate as to what the ultimate outcome will
be, but we can take advantage of the responsibilities of this
particular body and this particular Congress.
Now, let me cite the reasons why I believe that this is an
appropriate process that we are going through and that we have
every right to, again, be fact-finding so that we can make
judgments as to how we protect the Constitution of the United
States of America.
It is clear in this document that Congress has the right to
declare war. In article 1, section 8, it is clear that there
was a resolution of which I opposed in 2002. That was not a
declaration of war. The question, even though it might be
utilizing the War Powers Act, the question is whether or not
this institution of the presidency, whether or not this
Administration went forward on a war that was not declared
under the rules of the Constitution and whether the
presentation of the question of war violated the Constitution
in how it was presented.
There are questions of torture and whether or not there was
the direction of this particular Administration, institutional
administration, to, in essence, contravene international law
and thereby contravene the Constitution of the United States of
America.
There is a question as to why an individual who admits to
involvement in the exposing of a CIA agent, which I raise
generically as to whether in times before that action could be
treasonous, is whether or not that individual, Mr. Karl Rove,
has refused repeatedly to appear before this body, and whether
or not that is an institutional question or whether this
Constitution is being protected.
Then, of course, we are well-familiar with the Saturday
Night Massacres, when individuals resigned in the Nixon
administration. But my question is whether or not the seeming
question of the firing of U.S. attorneys, again, has to do with
any institutional statement of the relationship between
individuals who are supposed to be beyond politics. That is a
question of protecting the Constitution.
Then, lastly, let me say that we have watched over a series
of years, and I think my colleagues have watched this, the
Congress passing laws and then the laws being contravened by
signing statements. I introduced legislation H.R. 5684 to talk
about the concept of signing statements which contravene the
intent of this body. I suggest that we have the right to
prohibit the funding for signing statements. But it is an
institutional question of whether or not, in the checks and
balances, the executive is overruling the constitutional right
of this Congress.
So, Mr. Chairman, I adhere to this document. It is a
beautiful document. It has given me, through the 13th and 14th
amendment, as an African-American, the privilege of sitting
here today and being viewed as a first-class citizen instead of
a second-class citizen.
I, frankly, believe that this is a time that we hold this
Constitution, endear it, and view this as an institutional
question of whether or not we adhere to the concept that we
have organized this Nation to form a more perfect union. I
believe we have.
And I yield back, and look forward to the witnesses.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Mr. Chairman, thank you for your leadership in convening today's
very important hearing probing the reaches of Executive power and its
Constitutional limitations. I would also like to thank the ranking
member the Honorable Lamar S. Smith, and welcome our extremely
distinguished witnesses.
In recent years the reputation of the Administration has been
tarnished. This Committee has no greater challenge and obligation to
the nation than to ensure that there are appropriate checks in balances
between the power wielded by the Executive and Congress. Because ours
is a system of checks and balances, we as members of Congress have a
duty to make sure that one branch of government does not upset the
balance of power between the three co-equal branches of government.
Congress has the power to ensure that the Executive does not
overstep its bounds. There are a myriad of ways that Congress can exert
its power. Among the ways that Congress can exercise its power is
through appropriation, the appointment process, exercising oversight
over the Executive, enactment legislation, or even establishing a
select Committee to probe any abuse of power by the Administration.
In probing the limits of the power of any administration, we must
consider the impact of signing statements. To some, the topic may seem
abstract or esoteric or arcane. But you and I and most members of this
Committee understand that what has been going on in the Administration
regarding the misuse and abuse of signing statements poses, as the
American Bar Association's Task Force on Signing Statements has
observed, as a real threat to our system of checks and balances and the
rule of law.
It is for this reason that in the last Congress I introduced H.R.
5684, the ``Congressional Lawmaking Authority Protection Act'' or CLAP
Act of 2006, which (1) prohibited the expenditure of appropriated funds
to distribute, disseminate, or publish presidential signing statements
that contradict or are inconsistent with the legislative intent of the
Congress in enacting the laws; and (2) bars consideration of any
signing statement by any court, administrative agency, or quasi-
judicial body when construing or applying any law enacted by Congress.
I am proud to say that the Chairman was one of the original co-sponsors
of my bill.
I have reintroduced this legislation in substantially the same form
in the 110th Congress, except that the new bill, H.R. 264, makes clear
that the limitations of the law do not apply to presidential signing
statements that are not inconsistent with the congressional intent.
This is not a hard test to administer. Like the late Justice Potter
Stewart said about obscenity: ``it may be hard to define, but you know
it when you see it!''
As an aside Mr. Chairman, might I say this to those who would
question whether the Congress has the power to ban the use of
appropriated funds to publish or distribute signing statements:
regardless of whether it is wise to do so, if no one seriously can
question Congress' constitutional authority to terminate the
Executive's use of appropriated funds to wage military operations, a
fortiori, Congress has the constitutional authority to withhold from
the president funds needed to distribute a signing statement that
undermines the separation of powers!
Let me state clearly and for the record my concern with the abuse
and misuse of signing statements.
Presidential signing statements seek to alter Congress' primacy in
the legislative process by giving a President's intention in signing
the bill equal or greater standing to Congress' intention in enacting
it. This would be a radical, indeed revolutionary, change to our system
of separated powers and checks and balances.
Bill signing statements eliminate the need for a President ever to
exercise the veto since he or she could just reinterpret the bill he
signs so as to make it unobjectionable to him. Such actions deprive
Congress of the chance to consider the president's objections, override
his veto, and in the process make it clear that the president's
position is rejected by an overwhelming majority of the people's
representatives. Since few presidents wish to suffer a humiliation so
complete and public they have strong incentive to work closely with the
Congress and are amenable to negotiation and compromise. This is
precisely the type of competitive cooperation the Constitution
contemplates and which bill signing statements threaten!
Although presidents have used signing statements since the Monroe
Administration, they really came to prominence during the
administration of Ronald Reagan, who issued 276 signing statements, 71
of which (26%) questioned the constitutionality of a statutory
provision. The Reagan Administration's goal, as articulated by then-
Office of Legal Counsel lawyer, now Associate Justice Samuel Alito, was
to establish the signing statement as part of a statute's legislative
history which courts would use in interpretation. This met with limited
success because while the Court referenced signing statements in two
major cases, there is no indication that it accorded them any weight.
President George H.W. Bush issued 214 signing statements during his
single 4-year term raising 146 constitutional objections. President
Bill Clinton issued 391 but raised only 105 constitutional objections.
Thus, out of a total of 881 signing statements, 322 constitutional
objections were raised to the bills signed by Presidents Reagan, the
first Bush, and Clinton during the twenty (20) year span from 1981-
2001.
The record of the present Administration is dramatically different
and confirms that such power has been more aggressively used and to an
historically unprecedented degree. In less than six years, the current
occupant of the White House issued more than 125 signing statements,
raising more than 800 constitutional objections by himself. As the ABA
Task Force put it:
From the inception of the Republic until 2000, Presidents
produced signing statements containing fewer than 600
challenges to the bills they signed. According to the most
recent update, in his one and a half terms so far, President
George W. Bush (Bush II) has produced more than 800.
Mr. Chairman, according to Professor Christopher Kelley, an expert
on presidential signing statements, as of January 12, 2007, the
Executive has issued 150 signing statements challenging 1,149
provisions of law.
Not coincidentally, the Administration's signing statements have
challenged the constitutionality of extremely high-profile laws such as
the reporting provisions under the USA PATRIOT Act of 2005, and the
McCain Amendment prohibiting torture. The president's statements have
essentially asserted that the Executive does not believe that he is
bound by key provisions of the legislation. They seek to further a
broad view of executive power and the Administration's view of the
``unitary executive,'' pursuant to which all the powers lodged in the
Executive and administrative agencies by Congress is somehow
automatically and constitutionally vested in the President himself.
In general, the Administration's signing statements do not contain
specific refusals to enforce provisions or analysis of specific legal
objections, but instead are broad and conclusory assertions that the
president will enforce a particular law or provision consistent with
his constitutional authority, making their true intentions and scope
unclear and rendering them difficult to challenge.
What makes the Administration's use of presidential signing
statements doubly problematic is his demonstrated and documented
reluctance to raise his constitutional objections in a veto message to
Congress, as contemplated by the Constitution. Indeed, the President
has vetoed few bills (one was on the embryonic stem cell),
notwithstanding the more than 1,000 constitutional objections he has
raised during this same period of time.
It seems obvious to intelligent observers that the Administration t
is trying to game the system and frustrate the system of checks and
balances so carefully crafted by the Framers. Rather than risk a
showdown with the Congress over some claimed constitutional right he
thinks he possesses but cannot articulate or defend in the light of
day, the Administration simply signs the law as if he accepts its
constitutional validity and then summarily issues a signing statement
saying the Administration will comply with the law only to the extent
it feels legally bound to do so, which of course, it doesn't.
This sort of shenanigan would embarrass and anger the Founding
Fathers. Embarrass them because the action is cowardly, which was
hardly to be expected of the Chief Executive of the United States. It
would anger them because it makes a mockery of the system of checks and
balances they so carefully crafted.
So thank you again, Mr. Chairman, for convening this timely and
important hearing. I am looking forward to hearing from the witnesses
and considering their responses to the committee's questions.
Mr. Conyers. The Chair recognizes the distinguished
gentleman from Arizona, Trent Franks, who is the Ranking Member
on the Constitution Committee.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, the title of this hearing is ``Executive
Power and Its Constitutional Limitations.'' And I want to take
the Chairman at his word this morning that this hearing is not
about impeachment, and therefore I hope we can expect that none
of the witnesses will even mention the word ``impeachment.''
But perhaps a more appropriate subject for our hearing today
would be the congressional dereliction of its constitutional
duty to protect the American people. Mr. Chairman, I say that
based on this Committee's abysmal record on furthering
legislation that would actually make the American people safer
from terrorist attacks.
I am the Ranking Member on the Constitution, Civil Rights
and Civil Liberties Subcommittee. And during this Congress, the
Democratic majority of that Subcommittee has held no less than
11 hearings on the subject of providing more rights to known
terrorists. Those hearings have included six hearings designed
to impugn the integrity of public servants who have done
nothing other than to work tirelessly within the limits of the
Constitution to defend this country against murdering
terrorists who plan day and night to kill as many Americans as
possible.
Those hearings also included one designed to grant
unprecedented litigation rights to terrorists so that they can
use our lawyers and our own Federal courts to sue the very
people who they try to kill and who are trying to bring them to
justice.
And those hearings have also included one to provide
greater restrictions to the Government's ability to seek
business records in terrorist investigations, restrictions that
would provide terrorists even greater rights than domestic
criminals regarding business records that the Supreme Court has
held are subject to absolutely no protections under the fourth
amendment.
Amidst all of this, Mr. Chairman, the Subcommittee on the
Constitution has not held one single hearing designed to make
it easier for the Government to track down, detain and bring
our terrorist enemies to justice.
Mr. Chairman, the coincidence of jihadist terrorism and
nuclear proliferation I believe is one of the most dangerous
circumstances facing the human family today. Osama bin Laden
said, quote, ``It is our religious duty to gain nuclear
weapons.'' And every day Iran continues to enrich uranium to
build a nuclear weapon. Terrorists bide their time.
Mr. Chairman, there may well be a day when we would all
wish we could revisit this day again and when we could try to
reorder our priorities and perhaps better appreciate a
President who was willing to subordinate his popularity with
the American people in order to protect them.
And, Mr. Chairman, I know that the full Committee does not
address itself to any of these subjects today. Instead, it
conducts a do-over hearing that amuses our terrorist friends
greatly and that would make Alice in Wonderland roll her eyes.
And I yield back, Mr. Chair.
Mr. Conyers. The Chair recognizes the gentleman from
Tennessee, Steve Cohen, who serves with distinction on the
Administrative and Commercial Law Subcommittee, as well as the
Intellectual Property Committee.
Mr. Cohen. Thank you, Mr. Chairman.
Thank God we are not in Kansas any longer. I am very proud
to be a Member of this Committee and appreciate your having
these hearings on the executive powers.
I have only served here in this Congress now for a mere 19
months, but I have served 29 years as a legislator, both as a
county commissioner and a State Senator. There were four
Governors who I served as a State Senator at the time and four
Governors I worked with. And I have great pride in the
legislative branch of Government and the duty to be a check and
balance on abuses of the executive. And I think that is what
this hearing is about.
What I have seen in my 19 months with hearings here is a
contemptuous conduct by this Administration toward this
Congress and toward the whole idea of checks and balances. The
idea that anybody can restrain this Administration is beyond
them.
Last August I worked with one of the Members of the second
panel, Mr. Fein, and we were working on impeachment articles
for the former Attorney General of the United States, Alberto
Gonzalez. Before we could bring those articles, General
Gonzalez chose the wiser course, a little late, but he chose to
resign.
Ms. Monica Goodling testified, but only after she was
granted immunity. One does not seek immunity, generally, unless
there has been some criminal conduct. The Attorney General's
Office is part of the executive. Apparently there were, at
least in Ms. Goodling's eyes, criminal conduct that was carried
on by the executive, an agency of this particular
Administration, that could have been uncovered by questioning
by this Committee. That alone makes these hearings relevant.
But the fact is, these hearings will restore the faith of
the American people and the idea that the executive cannot run
roughshod over the legislative process and that this Congress
is standing up after 6 years of one-party rule and exercising
its proper role of check and balance.
With that, I yield back the remainder of my time, Mr.
Chairman, and proudly look forward to these hearings.
Mr. Conyers. The Chair recognizes the gentleman from
Georgia, Hank Johnson, a lawyer, magistrate and one who serves
with great distinction on the Crime Committee, as well as the
Intellectual Property Committee.
Mr. Johnson. Thank you, Mr. Chairman.
As a Member of the House Judiciary Committee, an attorney,
and former magistrate judge, I understand the high standards
that we must hold our public officials to. Every elected
official, from dog catcher to the President, has one boss, and
that is the American people. And once that bond is broken, once
Administration officials feel they are no longer accountable to
the American people, then action must be taken.
As the American people count down the final 6 months of
this now infamous Bush administration, the prevailing political
opinion has been that impeachment should be taken off the
table. With only 6 months left, what would be the point, people
ask? They argue that the American people would view impeachment
as being overzealous partisanship which would harm our
prospects for electing a Democratic President and adding to the
Democratic Party's majority in November.
But I ask, would impeachment be a vehicle to restore life
and vitality to the delicate system of checks and balances,
which is the hallmark of our Constitution and which this
Administration has shattered, aided and abetted by the do-
nothing Republican-controlled rubber-stamp Congress which
failed to exercise its constitutional responsibility to oversee
the operations of the executive branch of our Government?
If lying about consensual sexual activity fits the bill for
impeachment, then certainly lying to the American people about
the reason for invading Iraq, a sovereign nation, which
invasion resulted in the deaths of countless Iraqi citizens and
4,127 American service men and women, along with the maiming of
over 30,000 Americans, certainly that qualifies as an
impeachable offense.
There are other activities: warrantless wiretapping of
Americans; torturing and kidnapping and detaining numerous
prisoners, foreign enemy combatants, prisoners, whatever they
could be classified as. The fact that we have become a severely
surveilled population now, with the abuses of the PATRIOT Act,
all done under the cloak of Government secrecy, political
spying, the attacks on academic freedom, the politicization of
the Justice Department, selective prosecutions--so many areas
fertile for inquiry by this Congress.
And I am proud to have been a Member of the Judiciary
Committee because this one has exercised vigorously its
constitutional responsibility to oversee the operations of the
executive branch.
And so while, Mr. Chairman, today's hearing is not an
impeachment hearing, I fear that in the event that the current
Administration continues with its secret actions, with motives
and purposes that are not known or not revealed, if this
Administration, during the last 6 months, decides to attack the
sovereign nation of Iran, then Americans will look back and
think and rethink whether or not it would have been worth
pursuing impeachment at this time to deter any further misdoing
by this Administration.
And I will yield back.
Mr. Conyers. I am inclined to remind everyone in the
hearing room, there are guests today, and because of the
importance of respecting our proceedings, please refrain from
any actions of support or opposition to or for or against the
views that are being expressed by the Members and the witnesses
that will soon follow.
Tammy Baldwin is a distinguished Member of the Committee.
She serves on the Crime Committee, and I recognize the
gentlelady from Wisconsin.
Ms. Baldwin. Thank you, Chairman Conyers. I ask unanimous
consent to submit my full statement for the record.
Mr. Conyers. Without objection, so ordered.
Ms. Baldwin. On January 20, 2009, the next President and
Vice President of the United States will stand before the
American people and take an oath of office, swearing to
preserve, protect and defend the Constitution of the United
States. This commitment and obligation is so fundamental to our
democracy that our Founders proscribed that oath in our
Constitution. They also provided for the removal of the
President and Vice President for, among other things, high
crimes and misdemeanors.
Presidents and Vice Presidents do not take that oath in a
vacuum. They are informed by the actions and inactions of past
Presidents and Congresses, who establish these precedents for
the future. What this Congress does or chooses not to do in
furthering the investigation of the serious allegations against
this Administration and if just cause is found to hold them
accountable will impact the conduct of future Presidents
perhaps for generations.
Mr. Chairman, there are those who would say that holding
this hearing, examining whether or not the President and Vice
President broke the law, is frivolous. I not only reject this,
I believe there is no task more important for this Congress
than to seriously consider whether our Nation's leaders have
violated their oath of office. The American public expects no
less. It is, after all, their Constitution. No President or
Congress has the authority to override that document whereby We
the People conferred upon the branches of government limited
and defined power and provided for meaningful checks and
balances.
Over the past several years, serious questions have been
raised about the conduct of high-ranking Administration
officials in relation to some of the most basic elements of our
democracy: respect for the rule of law, the principle of checks
and balances, and the fundamental freedoms enshrined in the
Bill of Rights. In other words, the American people are in
doubt as to whether Administration officials have fulfilled
their oaths of office to preserve, protect, and defend our
Constitution. And their concerns are not insignificant.
Americans want to know whether our Nation's highest-ranking
officials broke the law to justify the invasion of Iraq. Many
in our Nation and around the world wonder whether, today, the
Bush White House is planning to illegally attack Iran. They
wonder, too, whether their private conversations are being
listened to by government officials unconcerned about
restraints placed upon them by the Constitution; whether our
Nation is holding individuals in secret prisons, denying them
even the right to appear before a judge or to be represented by
an attorney, or to confront their accusers. They wonder who
authorized torture and rendition. They wonder whether this
Administration will forever change what it means to be an
American.
Yet our efforts on behalf of the American people to hold
the White House accountable for numerous credible allegations
of abuse were blocked at each step. The list of congressional
subpoenas with which Administration officials refuse to comply
is long. Most recently, Karl Rove, the President's senior
adviser, defied congressional subpoena to testify on
allegations of politicization at the Department of Justice.
This Administration has soundly rebuffed nearly every attempt
to investigate and made true accountability impossible.
As we know, the Framers of our Constitution called for
impeachment only in the case of high crimes and misdemeanors.
The standard is purposely set high because we should not
impeach for personal or political gain, only to uphold and
safeguard our democracy. Sadly, in my judgment, at least two
high-ranking Administration officials have met that standard.
Although the call to impeach is one that I take neither easily
nor lightly, I now firmly believe that impeachment hearings are
the appropriate and necessary next step.
I yield back the remainder of my time, Mr. Chairman.
[The prepared statement of Ms. Baldwin follows:]
Prepared Statement of the Honorable Tammy Baldwin, a Representative in
Congress from the State of Wisconsin
Mr. Conyers. Keith Ellison is not only a former State
legislator from Minnesota, but he has been a trial lawyer for
over 15 years and serves with distinction on the Immigration
Committee and the Constitution Committee of Judiciary.
Mr. Ellison. Mr. Chairman, thank you for these hearings.
I appreciate this opportunity very much. I have been
waiting for it for quite a long time. Thank you very much.
Let me just be very direct and to the point, and I will
submit my full statement for the record. It is important to get
the facts on the record, to get people under oath, and to dig
up the information that we need to form the basis of a decision
as to how we should go forward. That alone is an important
reason for these proceedings and for these hearings. The due
process of getting the facts out on the table are critical. You
simply can't jump to an outcome or a result. And so these
hearings are critical and I think important simply because of
the fact-gathering process that they require.
Also, second point, powers unused are lost. And our
Constitution contemplated a three-part system of government, in
which each one would hold the other accountable. The
Constitution does not contemplate a branch of government
acquiescing or deferring to another. If that happens, our
constitutional system breaks down, and it does not work. We
could end up with an imperial presidency, which is something
the Framers never contemplated.
For those reasons, whether or not we are in the Democratic
or Republican administration, it is critical for Congress as an
institution to hang onto its powers. And yet, the Constitution
doesn't give Congress an unlimited number of ways to hold the
executive accountable. We all know about the power of the
purse. That one works. We know that. We also know that there
are other things we can do. We can try to wall off money
restrictively. We can pass limited resolutions. But at the of
the day, the most powerful tool for reining in the executive is
that of impeachment. That is how you get the executive to pay
attention and to balance the delicate constitutional framework.
The system doesn't work if one branch acquiesces to another.
I am so happy to be here. My colleagues have laid out ample
basis for inquiry: Iraq, signing statements, the denial of
basic human rights, a surveillance society, many other factors.
And I know we will have a good and fruitful hearing on those
matters.
Thank you. I yield back.
Mr. Conyers. Thank you. The Members of Congress that have
asked to come before the Committee today are, of course, the
gentleman from North Carolina, Mr. Jones; the gentleman from
North Carolina, Brad Miller; the gentleman from New York,
Maurice Hinchey; and the gentleman from Illinois--Ohio, Dennis
Kucinich.
Dennis Kucinich chairs the Domestic Policy Subcommittee of
Oversight and serves also on the Education and Labor Committee.
He is a former mayor of the City of Cleveland and is a tireless
advocate for peace and justice.
We welcome him here today.
TESTIMONY OF THE HONORABLE DENNIS J. KUCINICH, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF OHIO
Mr. Kucinich. May I proceed, Mr. Chairman?
I want to thank the Chair for this opportunity to testify.
And I want to recognize my colleagues on both sides of the
aisle, Ranking Member Smith, and my colleagues from the House,
who I work with, who are my friends, who I respect their
integrity and their honor.
And I think it is important that we proceed among ourselves
in that way so that we can be of service to our Nation in the
highest manner.
Our country has been at war in Iraq, and has occupied the
streets and villages of Iraq for 5 years, 4 months, and 6 days.
The war has caused the deaths of 4,127 American soldiers and
the deaths of as many as 1 million innocent Iraqis. The war
will cost the American people upwards of $3 trillion and is the
main contributing factor to the destruction of our domestic
economy.
Mr. Chairman, I would ask unanimous consent to enter S.J.
Res. 45 and H.J. Res. 114 into the record.
Mr. Conyers. Without objection, so ordered.
[See Appendix, pages 240 and 245.]
Mr. Kucinich. The primary justifications for going to war,
outlined in the legislation which the White House sent to
Congress in October of 2002, have been determined conclusively
to be untrue.
Iraq was not continuing to threaten the national security
interests of the United States.
Iraq was not continuing to possess and develop a
significant chemical and biological weapons capability.
Iraq was not actively seeking a nuclear weapons capability.
Iraq did not have the willingness to attack the United
States.
Iraq had not demonstrated capability and willingness to use
weapons of mass destruction.
Iraq could not launch a surprise attack against the United
States or its Armed Forces.
Therefore, there was not an extreme magnitude of harm that
would result in the United States--that would result to the
United States and its citizens from such an attack. The
aforementioned did not justify the use of force by the United
States to defend itself.
Iraq had no connection with the attacks of 9/11 or with al-
Qaeda's role in 9/11.
Iraq possessed no weapons of mass destruction to transfer
to anyone.
Iraq had no weapons of mass destruction and, therefore, had
no capability of launching a surprise attack against the United
States or its Armed Forces, and no capability to provide them
to international terrorists who would do so.
However, many Members of Congress relied on these
representations from the White House to inform their decision
to support the legislation that authorized the use of force
against Iraq. We all know present and former colleagues who
have said that if they knew then what they know now, they would
not have voted to permit an attack upon Iraq.
The war was totally unnecessary, unprovoked, and
unjustified. The question for Congress is this: What
responsibility does the President and members of his
Administration have for that unnecessary, unprovoked, and
unjustified war? The Rules of the House prevent me or any
witness from utilizing familiar terms. But we can put two and
two together in our minds. We can draw inferences about
culpability.
Mr. Chairman, I ask unanimous consent to enter H. Res. 333,
H. Res. 1258, and H. Res. 1345 into the record.
Mr. Conyers. Without objection, so ordered.
[See Appendix, pages 255, 273 and 440.]
Mr. Kucinich. I request that each Member read the three
bills that I have authored, bills which are now awaiting
consideration by the Judiciary Committee. I am confident that
the reader will reach the same conclusions that I have about
culpability.
What then should we do about it?
The decision before us is whether to honor our oath as
Members of Congress to support and defend the Constitution that
has been trampled time and again over the last 7 years.
The decision before us is whether to stand up for the
checks and balances designed by our Founding Fathers to prevent
excessive power grabs by either the judicial, legislative, or
executive branch of government.
The decision before us is whether to restore faith in
government, in justice, and in the rule of law.
The decision before us is whether Congress will endorse
with its silence the methods used to take us into the Iraq war.
The decision before us is whether to demand accountability
for one of the gravest injustices imaginable.
The decision before us is whether Congress will stand up to
tell future Presidents that America has seen the last of these
injustices, not the first.
I believe the choice is clear. I ask this Committee to
think and then to act now in order to enable this Congress to
right a very great wrong and to hold accountable those who
misled this Nation.
I thank you.
[The prepared statement of Mr. Kucinich follows:]
Prepared Statement of the Honorable Dennis J. Kucinich, a
Representative in Congress from the State of Ohio
Our country has been at war in Iraq, and has occupied the streets
and villages of Iraq for five years, four months, and 6 days. The war
has caused the deaths of 4,127 American soldiers and the deaths of as
many as one million innocent Iraqis. The war will cost the American
people upwards of $3 trillion and is the main contributing factor to
the destruction of our domestic economy.
We are borrowing money at high rates of interest to fight an
illegal war for oil, so that the oil companies can make record profits
while charging our constituents $5 a gallon for gas. Food prices are
increasing, the temperature of the planet is increasing, our dependence
on fossil fuel is increasing, and poverty is increasing. How in the
world could this have happened to our country?
Mr. Chairman, I would ask unanimous consent to enter S.J. Res. 45
into the record. The primary justifications for going to war, outlined
in the legislation which the White House sent to Congress in October of
2002, have been determined conclusively to be untrue:
Iraq did not pose ``a continuing threat to national
security''
Iraq was not ``continuing to possess and develop a
significant chemical and biological weapons capability . . .''
Iraq was not ``actively seeking a nuclear weapons
capability''
Iraq was not ``supporting and harboring terrorist
organizations''
Iraq had not ``demonstrated its willingness to
attack, the United States''
Members of Al Qaeda were not ``known to be in Iraq''
Iraq had not ``demonstrated capability and
willingness to use weapons of mass destruction . . .''
Iraq could not ``launch a surprise attack against the
United States or its Armed Forces''
Therefore there was not an ``extreme magnitude of
harm that would result to the United States and its citizens
from such an attack''
The aforementioned did not ``justify action by the
United States to defend itself''
Iraq had no ``ongoing support for international
terrorists''
Iraq had not demonstrated ``development of weapons of
mass destruction.''
However, many Members of Congress relied on these representations
from the White House to inform their decision to support the
legislation that authorized the use of force against Iraq. We all know
present and former colleagues who have said that if they knew then what
they know now, they would not have voted to permit an attack upon Iraq.
The war was totally unnecessary, unprovoked and unjustified. The
question for Congress is this: what responsibility do the President and
members of his Administration have for that unnecessary, unprovoked and
unjustified war? The rules of the House prevent me or any witness from
utilizing familiar terms. But we can put two and two together in our
minds. We can draw inferences about culpability.
Mr. Chairman, I would ask unanimous consent to enter H. Res. 333,
H. Res. 1258, and H. Res. 1345 into the record. I request that each
Member read the three bills I have authored, bills which are now
awaiting consideration by the Judiciary Committee. I am confident the
reader will reach the same conclusions that I have about culpability.
What, then, should we do about it?
The decision before us is whether to honor our oath as Members of
Congress to support and defend the Constitution that has been trampled
time and again over the last seven years.
The decision before us is whether to stand up for the checks and
balances designed by our founding fathers to prevent excessive power
grabs by either the judicial, legislative or executive branch of
government.
The decision before us is whether to restore faith in government,
in justice, and in the rule of law.
The decision before us is whether Congress will endorse with its
silence the methods used to take us into the Iraq war.
The decision before us is whether to demand accountability for one
of the gravest injustices imaginable.
The decision before us is whether Congress will stand up to tell
future Presidents that America has seen the last of these injustices,
not the first.
I believe the choice is clear.
I ask this committee to think, and then to act, in order to enable
this Congress to right a very great wrong and to hold accountable those
who have misled this Nation.
Mr. Conyers. Our next Member of Congress to testify is our
distinguished colleague, Maurice Hinchey, who serves as a
Member of both the Committee on Appropriations, on the Natural
Resources Committee, and also serves on the bicameral Joint
Economic Committee, and a leader in the Progressive Caucus. He
has been a longstanding opponent of the war in Iraq, an
outspoken advocate for environmental reforms and economic
justice.
Welcome.
TESTIMONY OF THE HONORABLE MAURICE HINCHEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Hinchey. Mr. Chairman, I thank you very much.
This has been a very, extraordinarily interesting
experience just sitting here listening to you and to the other
Members of this House Judiciary Committee, which is one of the
most significant Committees in this Congress, with one of the
greatest elements of responsibility, particularly with regard
to doing the job which is of such great importance for all of
us, which is to defend and protect the Constitution of the
United States.
So I deeply appreciate what you have done here, Mr.
Chairman, and all the Members of this Committee as well, in
being here for this particular purpose, to focus attention on
this particular issue.
We have a main responsibility, as I said, to protect and
defend that Constitution and maintain the separation of powers
to ensure that we do not have one aspect of this government
which dominates all the rest of it and particularly we do not
have a President who attempts to dominate all of the lawful
activities of our Nation and completely dominate all the
significant decisions that are made. And we have seen that so
clearly in the context of this Administration.
But I think we have seen it also in the context of
corruption and incompetence. And I think that this
Administration has been dominated throughout by those two
words, corruption and incompetence. And that needs to be
addressed. We need to be sure that, in the future, we have a
President who understands his obligations and responsibilities,
and who lives up to those obligations and responsibilities, and
who works responsibly with the other two branches of
government.
Now I think, with regard to the situation in Iraq and this
terrorist operation which has dominated so much of what this
Administration has done, the proper kind of attention has to be
directed to the situation from the very beginning. And if you
look at that situation from the very beginning, one of the
things that you see is that 2 months before the election of
November 2000, there was a meeting with the President and the
intelligence operation, the director of intelligence to inform
him about one of the major problems that we had to confront as
a Nation, which was the fact that Osama bin Laden and al-Qaeda
was determined to attack the United States. That was a message
which was delivered down in Crawford, Texas, in September of
2000.
Following that, there were more than 40 intelligence
briefings delivered to the top levels of this Administration,
from January 2001 through September 10 of 2001, including
references, all of those, all of those briefings included
references to al-Qaeda, references to bin Laden, and the fact
that they were determined to engage in various forms of attack.
The most prominent one of those PDBs, for example, was the one
that was made public, which was delivered on August 6, which
was so obvious, particularly in its headline, about those
facts.
The warnings to the White House about Osama bin Laden were
extended and consistent, and should have promoted actions to
prevent the attack of September 11, but they did not. And why
they did not is a major question that we need to be
confronting, I believe, as a Congress, particularly here in the
House of Representatives.
Another example of that is how Richard Clarke sent
consistent warnings to the National Security Adviser,
Condoleezza Rice, throughout that same period of time in 2001,
providing information that should have been adhered to.
After the attack of September 11, we engaged in a direct
attack of course on the Taliban and al-Qaeda in Afghanistan.
And that attack, of course, was very successful. It disrupted
the Taliban. It put in a new government in that country.
But also it did something else, which is extraordinarily
interesting. That military invasion of Afghanistan failed to
follow up on bin Laden and allowed him to escape up into the
Tora Bora Mountains. And that escape was provided by, most
directly, by the Secretary of Defense in his direction to pull
our military forces back and not follow up on that attack. And
I think that that was clear that the reason for that was that
they did not want to capture bin Laden, because if we had
captured him, if our military had captured him, it would have
been much more difficult for them to attempt to justify an
attack against another country which had nothing to do with the
attack of September 11 but which they were attempting to
manipulate the intelligence, and did so initially with a
certain amount of success, manipulating intelligence to try to
show that there was a direct connection between Iraq and the
attack of September 11, which of course there was not.
And then they went on to say that there were weapons of
mass destruction in Iraq, and that those weapons of mass
destruction were threatening the safety and security of the
United States and other countries, and we should act against
that in the form of an invasion. And of course, the information
that was given over and over again was that there was no clear
evidence. And that information was given by United Nations
inspectors, inspectors from the United States, and from the
intelligence of the United States.
Nevertheless, they chose to ignore all of that. Then the
one that got a substantial amount of attention was the warnings
that the Administration ignored, which included a memo that the
National Intelligence Council sent to the White House in
January of 2003 that stated that the uranium claim which this
Administration was making, that that uranium claim was baseless
and should be laid to rest.
We remember how just prior to that vote in October of 2002,
there were those kinds of statements about that uranium claim.
And then, just prior to the invasion in March of 2003, 2 months
prior to that, how numerous statements were being made by
members of the Administration talking about the potential for
nuclear invasion and saying things, for example, over and over
again on a number of occasions, we do not want a smoking gun to
be a mushroom cloud. All of that was designed to manipulate the
decision, which was unfortunately made by this Congress, to
vote to give the President the authority to engage in some kind
of military activity, which he carried out, against Iraq.
All of those circumstances need to be examined very, very
carefully. And they need to be examined because of the terrible
damage that all of that has done to the present set of
circumstances that we are confronting as a Nation, both
militarily, internationally, and economically right here at
home. And the danger that it offers and really opens the door
for in the future for other Presidents to engage in similar
kinds of activities, which would put this Nation once again not
only in physical danger but in the danger of eliminating the
basic provisions of the Constitution of the United States and
undermine the democratic principles of our country, which need
to be sustained.
I think that the situation that we are confronting now is
one of the most difficult that we have had in the history of
our country. And the word impeachment has been mentioned over
and over again by Members of the Judiciary Committee on a
number of occasions and again this morning. And I think,
frankly, that, based upon all of the things that this
Administration has done, it is probably the most impeachable
Administration in the history of America because of the ways in
which it has clearly violated the law.
One of the most clear examples of that is the State of the
Union address in January of 2003. And in that State of the
Union address, the President knew that what he was stating
about the nuclear weapons program had been told to him that was
false. It was not true. There was no documentation backing it
up. And at the last minute of course, he switched and tried to
put the responsibility onto the British. But all of that, of
course, was very, very untrue. And the circumstances that we
are confronting, I think, have to be dealt with. And I think
the responsibility of this Committee needs to focus on all of
those elements, to examine them carefully, and to see the way
in which this Administration has behaved, the dangerous set of
issues that we need to confront as a result of that behavior,
and to engage in actions that are going to try to ensure that
the basic democratic principles of our country are not going to
be undermined, that they are going to be protected and
strengthened with regard to future Presidents and future
Congresses.
And so I thank you, Mr. Chairman, for everything that was
said today by the Members of this Committee and for the
opportunity to be here with you.
Thank you very much.
[The prepared statement of Mr. Hinchey follows:]
Prepared Statement of the Honorable Maurice Hinchey, a Representative
in Congress from the State of New York
I would like to extend my appreciation to my dear friend Chairman
Conyers and Ranking Member Lamar Smith, and members of the Committee,
for giving me this opportunity to participate in this very important
hearing on ``Executive Power and its Constitutional Limitations.''
This is a very important hearing, and I am honored to be a part of
it. The Members who do not sit on the House Judiciary Committee,
including myself, were invited to this hearing today because of certain
actions we have taken as Members of Congress to highlight the behavior
of this administration. While our actions varied, our purpose for
acting can be linked to one common dominator--we do not believe that
anyone is above the laws of these United States. I have no doubt that
under the current administration, administrative officials have
intentionally gone outside the bounds of the law and should be held
accountable.
I think this is the most impeachable administration in the history
of our country. This administration has successfully put its own
interests above the interests of the American people, which is why in
August of 2007, I introduced two companion bills to Senator Feingold's
censure resolutions in the House. Both bills, H.Res. 625 and H.Res.
626, outline a very comprehensive argument in favor of censuring
several administrative officials.
H.Res.625 would censure administration officials because of their
role in stating the case for invading Iraq. The resolution would also
condemn administrative officials for failing to plan for the inevitable
civil conflict and humanitarian strife in Iraq. Finally, the resolution
would also reprimand the administration for overstretching the military
with prolonged deployments that have damaged U.S. efforts to be
prepared for other conflicts.
H. Res. 625 would condemn administration officials for launching
the warrantless surveillance program and for instituting and following
extreme policies on torture, the Geneva Conventions, and detainees at
Guantanamo Bay. The resolution would also condemn the politically--
motivated firings of U.S. Attorneys.
I was unwilling to sit idly by and watch these abuses take place.
Especially after evidence in how the administration responded to
individuals that posed a dissenting view or a threat to its policies
came to light--two obvious examples of this being the disclosure of the
identity of CIA Operative Valerie Plame and the treatment of certain
federal prosecutors.
The Founding Fathers of this great country set up a system of
Checks and Balances to make certain that the three branches of
government did not abuse their power. They did not set up the system of
Checks and Balances as an option but rather an obligation which is why
I consider it to be imperative to offer my voice on behalf of so many
others who could not speak out of fear. Someday we will all be judged
by what we did, or worse, what we did not do when confronted with these
abuses. Inaction is simply not an option. I will leave you with this
final thought, President Theodore Roosevelt once said, ``No man is
above the law and no man is below it; nor do we ask any man's
permission when we ask him to obey it.'' Administration officials past,
present and future should be no exception.
Mr. Conyers. Congressman Brad Miller is known for his work
on the Financial Services Committee to protect homeowners from
predatory lending practices. In addition, he is on the Foreign
Affairs Committee, as well as the Science and Technology
Committee, where he Chairs the Investigations and Oversight
Committee.
We welcome you here this morning.
TESTIMONY OF THE HONORABLE BRAD MILLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Miller. Chairman Conyers, Ranking Member Smith, Members
of the Committee, thank you for the invitation to testify this
morning.
Our constitutional system of checks and balances assumes a
certain jostling between the President and Congress. But the
Bush administration's refusal to provide information to
Congress and to the American people; the Bush administration's
insistence on acting in secret is more dangerous and more
sinister than just an extravagantly ambitious claim to
executive branch powers.
Control of information stifles dissent. It insulates an
Administration from challenge, either by Congress or by
critics. Control of information is incompatible with democracy.
Informed criticism, as annoying as it frequently is to people
with power, is the stuff of democracy.
Democracy dies behind closed doors. It is Congress's duty
to throw the doors open and keep them open in future
Administrations, Democratic and Republican alike. A great
American political scientist, Woodrow Wilson, said that it is
the proper duty of Congress to look into every affair of
government and to talk much about what it sees. It is meant to
be the eyes and the voice, to embody the wisdom and will of its
constituents.
The many disputes between Congress and the President, and
it is not just Miers and Bolton and Rove, every Committee has
been stiff-armed by the Bush administration in our exercise of
our oversight powers. Those disputes will not be resolved
before the election in November or by the inauguration in
January, but those disputes will not be moot next year. We must
continue our effort to learn how the Bush administration has
used the powers of government, and we must restore the balance
of powers between Congress and the President, regardless of who
is President and regardless of which party is in the majority
in Congress.
I have introduced one bill just last week to restore
Congress's checks on Presidential power, especially the power
to act in impregnable secrecy. And I expect to introduce
another shortly.
Ms. Lofgren asked for practical suggestions on how to right
the balance between the branches of government, how to restore
the separation of powers and the checks and balances that the
Founders of this Republic intended. And that has been my aim.
Now, the first bill, H.R. 6508--Chairman Conyers is a
cosponsor; Mr. Nadler is as well, as well as Ms. Sanchez, and
obviously, I would welcome additional supporters--would allow
the House to ask a court to appoint a special prosecutor for a
criminal contempt of Congress charge where the United States
Attorney refuses to present the case to the grand jury. In
recent history, Congress has enforced our authority to take
evidence by referring contempt charges to the U.S. Attorney
under a 1857 criminal statute. There is not a lot of wiggle
room in the language of the statute. The House, the Senate may
submit contempt charges to the U.S. Attorney, whose duty it
shall be to bring the matter before the grand jury for its
action.
Now, despite that unequivocal statutory requirement, when
Congress referred contempt charges, criminal contempt charges,
against Josh Bolton and Harriet Miers, Attorney General Mukasey
refused to allow the U.S. Attorney to present the charges to
the grand jury. He argued that criminal prosecution is
exclusively an executive branch power, and Congress cannot
compel the executive branch to bring a criminal prosecution
regardless of what the statute said.
In a 1987 decision, the Supreme Court held that a trial
court could appoint a private prosecutor to bring a contempt of
court proceeding where the appropriate prosecuting authority
denied the Court's request to prosecute. The Supreme Court held
that a trial court's power to appoint a private prosecutor was
based on the trial court's inherent power of self-protection.
If the judiciary were completely dependent on the executive
branch to redress direct affronts to its authority, the Supreme
Court said, it would be powerless to protect itself if that
branch declined prosecution. Congress cannot depend entirely on
the executive branch to redress direct affronts to Congress, to
Congress's authority any more than the courts can, especially
when the affront is by the executive branch itself.
Second, the U.S. Justice Department's Office of Legal
Counsel is little known to the general public, but it exercises
remarkable power. The Bush administration has fully realized
the potential for the abuse of the OLC's power. The Bush
administration has, instead of seeking disinterested legal
opinions from the OLC, the Bush administration has demanded and
gotten exactly the opinions from the OLC that it wanted. And
the Bush administration has received those opinions and acted
on those opinions in secret, placing the opinions beyond any
challenge. Even when the OLC obligingly advised the Bush
administration that the Bush administration could just ignore
the requirements of statute, the Bush administration asserts no
exigent circumstances, no practical necessity for that
breathtaking claim of power by the OLC. That they can exercise
in secret that legal power, it is simply a calculated expansion
of Presidential power at the expense of Congress and the
courts.
I am now working with Senator Feingold and with others on
legislation to require the OLC to report opinions to Congress,
especially where the OLC decides that the executive branch can
just ignore statutory requirements.
James Madison wrote, the Founders of our Republic provided
against the usurpation of power by providing each branch of
government the necessary constitutional means and personal
motives to resist encroachment of the others. Madison wrote
that the constant aim is to divide and arrange the several
branches in such a manner as that each may be a check on the
other, that the private interests of every individual may be a
sentinel of public rights.
The Bush administration's claim that the President alone
decides, in its own unreviewable discretion, what to tell
Congress and the American people is an encroachment that we
must resist. And by jealously asserting our rights under the
Constitution, we defend the public rights. Thank you.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of the Honorable Brad Miller, a Representative in
Congress from the State of North Carolina
Thank you for the invitation to testify this morning.
Our constitutional system of checks and balances assumes a certain
jostling between the President and Congress, but the Bush
Administration's refusal to provide information to Congress or to the
American people is more dangerous and more sinister than just an
extravagantly ambitious claim to executive branch powers. Control of
information stifles dissent and insulates an administration from
challenge, either by Congress or by critics. Control of information is
incompatible with democracy. Informed criticism, as annoying as it is
for many in power, is the stuff of democracy.
Democracy dies behind closed doors. It is Congress' duty to throw
the doors open and keep them open in future administrations, Democratic
and Republican alike. A great American political scientist, Woodrow
Wilson, said that it is ``the proper duty'' of Congress ``to look into
every affair of government and to talk much about what it sees. It is
meant to be the eyes and the voice, and to embody the wisdom and will
of its constituents.''
The many disputes between the Bush Administration and Congress will
not be moot if not resolved before the election in November or the
inauguration in January. Congress must continue the effort next year to
learn how the Bush Administration used the powers of government. And we
must restore the balance of powers between Congress and the President,
regardless of who is president and which party is in the majority in
Congress.
I have introduced one bill to restore Congress' checks on
presidential power, especially the power to act in impregnable secrecy,
and I expect to introduce another shortly.
The first bill, HR 6508, would allow the House to ask a court to
appoint a special prosecutor for a criminal contempt of congress charge
where the United States Attorney refuses to present the case to the
grand jury. In recent history, Congress has enforced our authority to
take evidence by referring contempt charges to the U.S. Attorney under
an 1857 criminal statute. There's not a lot of wriggle room in the
statute: the House or Senate may submit contempt charges to the U.S.
Attorney, ``whose duty it shall be to bring the matter before the grand
jury for its action.'' Despite that unequivocal statutory requirement,
when Congress referred criminal contempt charges against Josh Bolton
and Harriet Miers, Attorney General Mukasey refused to allow the U.S.
Attorney to present the charges to the grand jury. He argued that
criminal prosecution is exclusively an executive branch power, and
Congress cannot compel the executive branch to bring a criminal
prosecution regardless of what the statute said.
In a 1987 decision, the Supreme Court held that a trial court could
appoint a private prosecutor to bring a contempt of court proceeding
where ``the appropriate prosecuting authority'' denied the court's
request to prosecute. The Supreme Court held that the trial court's
power to appoint a private prosecutor was based on the trial court's
``inherent power of self-protection.'' ``If the Judiciary were
completely dependent on the Executive Branch to redress direct affronts
to its authority,'' the Supreme Court said, ``it would be powerless to
protect itself if that Branch declined prosecution.''
Congress cannot depend entirely on the executive branch to redress
affronts to Congress' authority any more than the courts can,
especially where the affront is by the executive branch itself.
Second, the U.S. Justice Department's Office of Legal Counsel is
little known to the public, but exercises remarkable power. The Bush
Administration has fully realized the potential for the abuse of the
OLC's power. Instead of seeking disinterested legal opinions, the Bush
Administration has demanded and gotten exactly the opinions it wanted
from the OLC. And the Bush Administration has received and acted on the
OLC's opinions in secret, placing the opinions beyond challenge, even
when the OLC obligingly advised that the Bush Administration could
simply ignore statutory requirements. The Bush Administration asserts
no exigent circumstances, no practical necessity for the breathtaking
claim that the OLC can secretly excuse the administration from legal
requirements. It is simply a calculated expansion of presidential power
at the expense of Congress and the courts.
I am now working with Senator Feingold on legislation to require
the OLC to report opinions to Congress, especially where the OLC
decides that the executive branch can just ignore statutory
requirements.
According to James Madison, the founders of our republic provided
against the usurpation of power by providing each branch of government
``the necessary constitutional means and personal motives to resist
encroachments of the others.'' Madison wrote that ``the constant aim is
to divide and arrange the several offices in such a manner as that each
may be a check on the other--that the private interest of every
individual may be a sentinel of the public rights.''
The Bush Administration's claim that the president alone decides--
in his own unreviewable discretion--what to tell Congress and the
American people is an encroachment we must resist. And by jealously
asserting our powers under the Constitution, we defend the public
rights.
Mr. Conyers. Walter Jones, long-serving Member of the House
of Representatives from North Carolina, who serves on the Armed
Services Committee, the Financial Services Committee and has
been known for working across the aisle to craft bipartisan
legislation; the War Crimes Act under President Clinton, the
Constitutional War Powers Resolution, which he introduced with
our Judiciary Committee colleague William Delahunt only last
year.
We are pleased that you could be with us today.
TESTIMONY OF THE HONORABLE WALTER JONES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Jones. Mr. Chairman, thank you very much.
And I want to thank you and this Committee for holding this
hearing, for giving me an opportunity to speak on the issue of
Presidential signing statements. This hearing today is about
trust. It is about the American people, and can they trust
their government?
Just as the American people have access to the text of
bills that are signed into law, they should have easy and
prompt access to the content of Presidential signing statements
that could affect how those laws will be executed.
To enable a more complete public understanding and trust of
our Nation's laws, the Congress should also be able to call for
the executive's explanation and justification for a
Presidential signing statement.
The history of Presidential signing statements dates back
to the 19th century. President James Monroe issued the first
signing statement in 1821. However, a September 17th, 2007,
Congressional Research Service report noted that U.S.
Presidents, and I quote, have increasingly employed the
statements to assert constitutional and legal objections to
congressional enactments. In doing so, Presidents sometimes
communicate their intent to disregard certain provisions of
bills they have signed into law.
According to the CRS, President Clinton issued 381 signing
statements while in office; 70 of these statements raised legal
and constitutional objections. President George W. Bush has
issued at least 152 signing statements; 118 of these statements
have contained over 800 constitutional challenges or
objections.
According to the American Bar Association, and I quote,
``from the inception of the Republic until the year 2000,
Presidents have produced signing statements containing fewer
than 600 challenges to bills they signed.''
That tells a great deal.
I continue, because future Presidents are likely to
continue this practice, Congress should act now to pass
legislation to ensure proper understanding and disclosure of
these signing statements.
To address this issue, I have introduced H.R. 5993, the
Presidential Signing Statement Act, which would, first, require
the President to provide copies of signing statements to
congressional leadership within 3 days of being issued; second,
require signing statements to be published in the Federal
Register; third, require executive staff to testify on the
meaning and justification for Presidential signing statements
at the request of the House or the Senate Judiciary Committee;
and fourth and last, provide that no moneys may be used to
implement any law accompanied by a signing statement if any
provision of the act is violated.
This bill directly addresses the recommendation of the
American Bar Association Task Force on Presidential Signing
Statements.
Mr. Chairman, I would like to submit a copy of the ABA
report for the record.
[The material referred to follows:]
Mr. Conyers. Without objection, so ordered.
Mr. Jones. Because it is critical that we preserve the
division of power in our government and public understanding of
our Nation's laws, I hope this Committee will seriously
consider the merits of H.R. 5993.
In closing, let me express my appreciation for Senator
McCain's pledge to never use--to never use--signing statements
if elected. I hope that Senator Obama and candidate Bob Barr
each will say the same thing, that they will not issue signing
statements should they be elected President of the United
States.
Mr. Chairman, we must reveal public trust. The public trust
in Congress and the White House is at an all time low. This
hearing and the passage of legislation like H.R. 5993 and other
legislation, I believe, will help to rebuild the public's
trust.
Mr. Chairman, thank you for convening this hearing and
giving me the opportunity to further discuss what I think is a
very important issue to the Constitution of America.
Thank you, sir.
[The prepared statement of Mr. Jones follows:]
Prepared Statement of the Honorable Walter B. Jones, a Representative
in Congress from the State of North Carolina
Mr. Chairman, thank you for the opportunity to testify regarding
the use of presidential signing statements. To me, what we're really
talking about today is trust: for our Nation to be free and strong, the
people must trust their President to enforce the law. When the
President bypasses the will of the people, expressed through Congress,
and decides what provisions of law will and will not be enforced, the
President goes beyond the Constitutional authority given to him by our
Founding Fathers.
Presidential signing statements are official pronouncements that a
President may make when signing a bill into law for a variety of
purposes: to express thanks to legislators, to acknowledge matters of
historical significance, or, to state that the President does not
intend to enforce a specific section of the bill when signed into law
because he does not believe it to be constitutional. While expressing
thanks or making note of an historic piece of legislation is an
appropriate use of a presidential signing statement, the increasing use
of signing statements to declare the President's intent to ignore the
will of Congress is unacceptable.
While signing statements have been used since the Monroe
Administration in the early 19th century, their use to qualify or
nullify legislation has grown dramatically in recent history. According
to a September 2007 Congressional Research Service report entitled
``Presidential Signing Statements: Constitutional and Institutional
Implications,'' President Clinton issued 381 statements during his
presidency, 70 of which, or 18 percent, raised constitutional or legal
objections. That report also noted that as of late last year, President
George W. Bush had issued 152 signing statements, 118 of which, or 78
percent, stated constitutional or legal objections.
The American Bar Association (ABA) convened a Task Force on
Presidential Signing Statements and the Separation of Powers Doctrine
in 2006. That Task Force examined the increased use of signing
statements by presidents to effectively line-item veto provisions of
bills that they do not intend to enforce. The report issued by the Task
Force in August of 2006 cited numerous constitutional objections in
signing statements by President Bush. I have submitted a copy of that
report for the record. Specifically, the report notes signing
statements objecting to provisions in a law banning the use of U.S.
troops in combat against rebels in Colombia, as well as a law requiring
background checks for civilian contractors in Iraq.
The American people deserve to know the truth about these signing
statements--what they say and what they mean. That is why I have
introduced H.R. 5993, the Presidential Signing Statements Act. This
bill addresses the recommendation of the ABA Task Force that the
Congress and the public be fully informed about the use of presidential
signing statements by requiring that signing statements be sent to
Congressional leadership within 3 days of issuance and published in the
Federal Register. H.R. 5993 would also allow the House and Senate
Judiciary Committees to request testimony on the meaning and
justification for any signing statement. Lastly, H.R. 5993 would
provide that if any of the provisions I've mentioned are not complied
with, funding of the underlying bill would be denied.
I would like to conclude my statement by expressing my appreciation
for Senator McCain's pledge never to use signing statements if elected
president. I would encourage Senator Obama to do the same. Our Nation
is suffering from a lack of trust: how can our electorate trust their
elected officials when the Executive power disregards provisions of
bills passed by Congress and signed into law? The use of signing
statements must be examined by the public, and it is my belief that my
bill and this hearing today will serve that purpose. Mr. Chairman, I
thank you for the opportunity to speak to the Committee on this
important issue.
Mr. Conyers. I thank you and all of our congressional
colleagues who constitute panel one.
Mr. Conyers. We will now invite panel two to come up, all
nine of our witnesses, many of whom are former Members of
Congress: Elizabeth Holtzman, seat number one; Bob Barr; former
Mayor Rocky Anderson; Professor Steven Presser; former
Associate Deputy Attorney General Bruce Fein; author and former
prosecutor Vincent Bugliosi; Professor Jeremy Rabkin; Elliott
Adams of Veterans for Peace; and Frederick Schwarz, senior
counsel at the Brennan Center for Justice.
Would all of you please take your seats?
Elizabeth Holtzman is well known to everybody here. First
of all, one of her latest books I am holding in my hand. And it
deals with the constitutional removal of George Bush, written
by her with Cynthia Cooper, who is also here in the audience.
But she served as a Congresswoman in New York from 1973 to
1981. And she was a Member of the House Judiciary Committee we
are proud to report. During the Nixon impeachment, she served
with great distinction, and has since then become the only
elected woman district attorney in Brooklyn, New York, and
then, following that, the only woman ever elected as New York
City Comptroller.
We have your statement, Congresswoman Holtzman, and
everybody else's, which will be entered into the record.
And we invite you to proceed. Welcome to the Committee
again.
TESTIMONY OF THE HONORABLE ELIZABETH HOLTZMAN, FORMER U.S.
REPRESENTATIVE FROM NEW YORK
Ms. Holtzman. Thank you very much, Mr. Chairman, Members of
the Committee.
For me, it is a privilege to be here. I had the great honor
of serving on this Committee with your esteemed Chairman, John
Conyers, during the Nixon impeachment proceedings, and I know
the critical and historical role this Committee has played in
preserving and protecting democracy and the Constitution in
this country. It is a great honor to be here. And I want to
thank the Chair for his leadership in calling this hearing.
I will try to summarize my written testimony to you, which
is that--and start by saying that the Framers developed the
power of impeachment and put it in the hands of Congress to
protect the democracy. And as unpleasant as that burden is, it
can't be ignored, and it can't be shrugged aside. The buck
stops here in this Committee room, in the House of
Representatives, and the Congress of the United States in terms
of protecting the democracy against a President, against an
Administration, against executive officials who run amok. There
is no avoiding that.
I believe that there are grounds to make a prima facie case
of impeachment with respect to high Administration officials. I
said prima facie, and I mean that. Anyone accused should have a
full opportunity to present his side of the argument and defend
and justify his actions.
I will briefly state what I believe the grounds would be
prima facie. The first category would be the systematic refusal
to obey the law. In the Constitution, the President is required
to take care that the laws are faithfully executed. I often
call that a double whammy. It was so important that the
President has to take care and be faithful in the execution of
the laws. We learned that in the third grade. The President
executes the laws. Congress makes the laws.
There is substantial evidence that the Administration
repeatedly failed and refused to obey the requirements of the
Foreign Intelligence Surveillance Act, which was enacted in
light of the abuse in Watergate when Richard Nixon illegally
wiretapped, and was designed to prevent any repetition of
unilateral Presidential wiretapping because of the abuses seen.
Nonetheless, we know that the FISA court repeatedly, was not
gone to for the purposes of obtaining approval, as the law
required.
A second area in terms of systematic refusal to obey the
law would be the Administration's response to the Geneva
Conventions, the Conventions Against Torture, both of which are
the law of the land under the Constitution, and the War Crimes
Act of 1996 and the Anti-Torture Act. All of those acts and
acts prohibit the mistreatment of detainees and set strict
limits on interrogations. Two of the laws make such
mistreatment a Federal crime, with the death penalty in the
event that death occurs in the commission of that crime, which
means no statute of limitations in cases where death results.
The penalties are serious.
Nonetheless, as we know, there has been waterboarding,
which has been admitted, which most nations believe constitutes
torture. But even if waterboarding doesn't constitute torture,
it certainly constitutes cruel and inhuman treatment, which is
or used to be a crime under the War Crimes Act of 1996. The
Administration has the responsibility under the Take Care
Clause to enforce the Geneva Conventions, the Convention
Against Torture, the Anti-Torture Act, and the War Crimes Act.
In my opinion, the evidence at this point suggests that
those conventions and those laws have been systematically
ignored.
I won't mention signing statements to any degree because I
think the prior panel discussed that at length.
You also have the misuse of executive privilege. This is
another area, by the way, that was a basis for the impeachment
of Richard Nixon. The improper claim of executive privilege not
only subverts the legitimate operations of Congress, but it can
rise to an impeachable offense when it is used to shield
improper or illegal executive branch activities. A most recent
example, an egregious example, is the refusal to provide to a
House Committee the FBI statements of Vice President Cheney's
interview with them. There isn't even a colorable ground on
which executive privilege can be claimed with respect to that
statement.
Deceptions with respect to the Iraq war. Others have talked
about that. I believe very strongly that deceptions in
connection with the war-making power subvert the Constitution
of the United States. As many of you have alluded to just
today, Congress plays an essential role in the war-making
decision of the United States. It is in the Constitution
repeatedly. When an Administration deceives the Congress, it
undermines the ability of the Congress to make a reasoned
decision. And the decision about war-making is the most serious
and grave and consequential one that the Congress can ever
make. Those deceptions, I believe, are rampant.
The real question before us is what is to be done. I don't
think that this Committee or this Congress can shirk the
responsibility that the Constitution put in its hands. Of
course, this is very late in the session of Congress, and the
options are limited, but there are still options.
I believe the remedy that the Constitution provides, and
the one that is most appropriate in this situation, is an
impeachment inquiry. Why? It would send the clearest signal of
the constitutional limits on abuse of Presidential power. It
would also educate the public about the appropriate limits of
executive power and the importance of checks and balances. And
beyond that, it would also give those people in the
Administration against whom accusations are leveled an
appropriate forum in which to respond, which I believe is the
American way.
Mr. King. Mr. Chairman, the witness's time has expired.
Ms. Holtzman. I thank the Chair and the Committee for the
opportunity to be here.
[The prepared statement of Ms. Holtzman follows:]
Prepared Statement of the Honorable Elizabeth Holtzman
Chairman Conyers, members of the Committee, I thank you for the
privilege of appearing before you on the issue of the Executive Power
and its Constitutional Limitations. Having served on this Committee
during the impeachment proceedings against President Richard Nixon, in
the company I might add of your esteemed Chair, I want to express my
enormous respect for this Committee and its critical role in preserving
our democracy.
During my service on this Committee, I acquired a niche expertise
on impeachment. This is frankly not expertise one would voluntarily
seek. The issue of impeachment, after all, arises only when a president
has abused the great trust placed in his hands, something that few
people, despite party or political predilection, like to see happen.
Looking back at the Nixon impeachment proceedings, I remember that,
much as I disagreed with his policies, he was still my president, and
it was painful and sobering to vote for his impeachment, a sentiment I
believe all of my colleagues on the Committee shared, Democrat and
Republican alike.
But sad as the responsibility to deal with impeachment is, it
cannot be shrugged off. The framers put the power to hold presidents
accountable in your hands. Our framers knew that unlimited power
presented the greatest danger to our liberties, and that is why they
added the power of impeachment to the constitution. They envisioned
that there would be presidents who would seriously abuse the power of
their office and put themselves above the rule of law. And they knew
there had to be a way to protect against them, aside from waiting for
them to leave office.
I will spell out briefly the grounds that I believe make out a
prima facie case of impeachment for certain Administration officials. I
have written about the grounds at greater length elsewhere, including
in my book, co-authored with Cynthia Cooper, entitled The Impeachment
of George W. Bush. If the Committee wishes, I would be pleased to
provide additional details.
Before I go any further I want to issue a caveat. A prima facie
case is just that. It doesn't mean than an impeachable offense has in
fact been committed. Anyone accused must be given a full opportunity to
rebut the charges and justify the questioned conduct. It is imperative
that this principle be adhered to as it was in the Nixon impeachment
process. It was precisely the fairness of those proceedings to the
President, not just the strong evidence of abuse of power, that
persuaded the American people that impeachment was the appropriate
remedy.
The abuses of power related to this Administration fall into
several categories.
SYSTEMATIC REFUSAL TO OBEY THE LAW
The first abuse of power has to do with the systematic refusal to
obey the law. One of the key constitutional responsibilities of a
president, as set forth in the constitution, is to implement the laws.
The framers use an elegant term for this: a president must, in their
words, ``take care that the laws be faithfully executed.'' The
responsibility is so serious that it is phrased almost redundantly: a
president must ``take care'' and ``faithfully'' execute.
The principle is instilled in all of us as school children, where
we learn at an early age that the Congress makes the laws and the
president carries them out.
But has this principle that is enshrined in our constitution and
the oath of office been adhered to? Let's consider these examples:
1. The Foreign Intelligence Surveillance Act.
This law was enacted partially in response to President Richard
Nixon's illegal wiretapping where, falsely claiming national security,
he wiretapped journalists and his own staffers. (This wiretapping was
one of the many grounds for his impeachment). FISA was also enacted
after disclosures of surveillance abuses by federal agencies. The 1978
law was designed to prevent these abuses by barring unilateral
presidential wiretapping and requiring special court approval instead.
Starting in the fall of 2001, President Bush authorized wiretapping
on at least 45 separate occasions without obtaining FISA court
approval. He claimed that as Commander in Chief of the army and navy he
was empowered to disregard FISA. But no president may simply override
laws for this reason. The Supreme Court considered just this issue in
Youngstown v. Ohio, where President Truman wanted to seize steel mills
faced with a strike in order to ensure a continued supply of armaments
for the Korean War. He claimed that as Commander in Chief he could do
so. The Supreme Court rejected his position. In one of the most famous
opinions in American jurisprudence, Justice Robert Jackson wrote: ``No
penance would ever expiate the sin against free government of holding
that a President can escape control of executive powers by law through
assuming his military role. . . .'' Justice Jackson, the former chief
US prosecutor at the Nuremberg trials, alluded to the excesses of
executive power seen in totalitarian regimes and warned that if we
allowed the president's Commander in Chief role to swallow up the
checks and balances of our constitution, we would be starting down the
road to military dictatorship.
2. The Geneva Conventions, the Convention against Torture, the War
Crimes Act of 1996 and the anti-Torture Act.
The Geneva Conventions and the Convention against Torture ban
torture. As ratified treaties, they are the law of the land under the
constitution. Further, the anti-Torture Act makes it a federal crime to
engage in torture abroad. President Bush has repeatedly said we ``don't
do torture,'' but is this true? The US has recently admitted that water
boarding was used against three detainees. Water boarding has been
considered torture by most countries, including the United States
itself under prior administrations. Just recently, a committee of the
British Parliament determined that US denials about torture could no
longer be credited.
In addition to water boarding, detainees were subjected to many
other forms of serious abuse, as is clear from various reports done
after the Abu Ghraib disclosures. That mistreatment has been further
documented in a number of recent books, including The Dark Side, by
Jane Mayer.
Apart from torture, the Geneva Conventions and the War Crimes Act
of 1996 bar cruel and inhuman treatment of detainees. Thus, even
assuming that water boarding, stress positions, threatening use of
dogs, exposure to temperature extremes and other similar abuses did not
constitute torture singly or in combination, these practices likely
constituted cruel and inhuman treatment and thus violated the War
Crimes Act. Although the Act was made retroactively inoperative in the
fall of 2006 as part of the Military Commissions Act at the
Administration's request, the law was still in effect up to that time.
The role of top Administration officials in detainee mistreatment
has not been fully elucidated, but various investigations undertaken
after the Abu Ghraib disclosures make it clear that the mistreatment
was set into motion once the President decided, in February 2002, to
remove all the protections of the Geneva Conventions from Al Qaeda, and
some Geneva protections from the Taliban.
President Bush has recently acknowledged that he was aware of the
actions of his Principals Committee, a group of National Security
Council members who reportedly gathered to approve specific forms of
mistreatment during the interrogation of various detainees. Did he know
about and approve the techniques of interrogation mentioned above? If
so, did that violate the anti-Torture statute and the War Crimes Act,
and/or constitute a serious abuse of power and an impeachable offense?
Under the Geneva Conventions, the United States is required to
bring to justice those who violate the Conventions. Pursuant to the
duty to faithfully execute the laws, a president must take care that
this mandate as well as relevant US statutes such as the anti-Torture
and the War Crimes Act of 1996 are properly enforced. Yet, it appears
that this requirement may not have been met. Former Secretary of
Defense Donald Rumsfeld, who admitted to ``ghosting'' a detainee, which
might have violated the Geneva Conventions and US war crimes statutes,
was put in charge of the investigation. No higher ups were held
responsible and the investigations did not cover top officials of the
Administration.
The mistreatment of detainees is not just morally wrong and likely
illegal, but it has brought disrepute to the United States and
endangered our citizens and soldiers by inflaming anti-American
sentiment in Iraq, Afghanistan and elsewhere in the world and by
setting a precedent for the mistreatment of captured US troops.
3. Signing Statements.
President Bush has issued at least 750 signing statements in
connection with his signing certain bills into law. The statements
indicate that the President will not be bound to carry out all or parts
of the laws in question.
Under the constitution, once a bill becomes law, a president must
implement the law under the ``take care'' clause. If a president does
not like the bill, the president may veto it, but pursuant to the
carefully calibrated system of checks and balances, once the bill is
vetoed, Congress has the power to override the veto, thereby making the
bill law despite the president's opposition.
Signing statements that are not acted upon create no serious
constitutional issue. But, the General Accountability Office examined
the signing statements of this Administration and reported that the
Administration has in fact refused to enforce or implement laws in
connection with which signing statements were issued.
The wholesale refusal to enforce duly enacted laws may well be
viewed as a failure to carry out the constitutional ``take care'' duty.
Signing statements coupled with the failure to implement the law might
also be viewed as nullifying the veto provisions of the constitution
and undermining the role of Congress in making the laws.
MISUSE OF EXECUTIVE PRIVILEGE
Another area of possible Administration abuse of power has to do
with the abuse of executive privilege.
Under the constitution, Congress has the power to inquire into
executive branch operations in furtherance of its legislative powers.
The improper claim of executive privilege subverts the legitimate
operations of Congress and may rise to the level of an impeachable
offense, as occurred in the Nixon proceedings.
Recently, Attorney General Michael B. Mukasey announced that
executive privilege was invoked to prevent the disclosure to the House
Committee on Oversight and Government Reform of Vice President Cheney's
interview with the FBI about the Valerie Plame affair. Executive
privilege protects the confidentiality of advice given to a president
by his advisors. But the document being shielded by this invocation of
executive privilege was not confidential advice to the President, but
rather a statement made by the Vice President to the FBI, a law
enforcement agency. There was also no confidentiality in that statement
because such statements are typically presented to prosecutors and the
grand jury and may even be shared with the public, if a trial involving
the contents of the document takes place. There is no colorable basis
on which executive privilege can be asserted with respect to this
document.
This claim is reminiscent of President Nixon's claims of executive
privilege with respect to the illegal break in into the offices of
Daniel Ellsberg's psychiatrist. The break in was designed to obtain
materials to smear Ellsberg, a prominent opponent of the Vietnam War.
President Nixon did not want this break in disclosed and used various
false claims of national security and executive privilege to keep it
from Congress and Watergate prosecutors. The break in and its
concealment were part of the Nixon impeachment proceedings.
Ironically, the Plame matter, about which the House Committee was
inquiring, also may have involved an effort to smear and retaliate
against a war critic, in this case, former Ambassador Joseph Wilson,
Plame's husband, for charging that President Bush had taken the country
into the Iraq war on a basis of deception. Congress was clearly
entitled to explore whether executive power was abused in the Plame
matter.
Similar extreme claims of executive privilege have been made in
connection with Congress' efforts to examine the so-called US
Attorneys' scandal. In response to the invocation of executive
privilege with respect to their testimony, former and present
Administration officials, Harriet Miers, Joshua Bolten and Karl Rove,
have refused even to appear before Congress in response to subpoenas
seeking information about what role the White House may have played in
the scandal. Congress has every right to inquire into whether federal
prosecutors were fired to stymie politically harmful prosecutions or
whether prosecutors were urged by top Administration officials to
prosecute innocent persons.
As the Nixon impeachment process shows, assertions of executive
privilege to shield improper or criminal conduct rather than to protect
legitimate White House advice may constitute an impeachable offense.
DECEPTIONS LEADING TO THE IRAQ WAR
The deceptions, exaggerations and misstatements made by high level
Administration officials to drive the country into the tragically
mistaken Iraq war subvert the constitution and may constitute an
impeachable offense.
Hearings should have been held to determine what President Bush
knew and when he knew it with respect to each and every claim he made
as to why the country needed to go to war, but that regrettably was not
done. Nonetheless, the latest report from the Senate Intelligence
Committee concludes that one of the major claims made by top
Administration officials to justify an attack on Iraq, a country that
did not attack us--namely that Saddam Hussein was linked to 9/11--was
not supported by intelligence. The Committee also found that the claim
repeated by top Administration officials before the war that Saddam
would hand off weapons of mass destruction to terrorists to attack us,
thereby suggesting that Iraq posed a serious threat to the United
States, was not supported by intelligence. It found a similar lack of
support for a number of other pre-war Administration claims.
Although top Administration officials contended that Iraq's
purchase of aluminum tubes and its alleged efforts to purchase Niger
yellow cake were evidence of Iraq's efforts to reconstitute its nuclear
weapons program, there was more than enough information at high levels
of the Administration to raise serious doubts about these contentions.
As I explain in my book, presidential deception of Congress in
connection with war-making is an impeachable offense. This is so
because the constitution contemplates that Congress will be at least an
equal partner with the president on decisions to go to war (aside from
emergency situations, which this was not). Deceiving Congress
undermines its ability to play the deliberative role the framers
intended. We know the tragic consequences for the country of this
flawed decision-making process.
What is to be done?
The question before this Committee is how to respond to the assault
on the constitution, the rule of law and our system of government
resulting from actions taken by this Administration.
Doing nothing is not an option. The failure to act will further
fuel the culture of impunity that has grown up around this
Administration. The failure to act will send a strong message to future
presidents that they need not obey the law, that they can deceive the
country and the Congress into future wars and that they can treat
Congress with contempt, obstructing legitimate efforts by Congress to
exercise responsible oversight over the executive branch, without
serious consequences for them.
What is to stop future presidents of either party from doing the
same or going further?
As a former prosecutor, I know that unless serious misconduct
results in a correspondingly serious penalty, there is a grave
likelihood that the misconduct will be repeated. The absence of a
penalty breeds cynicism, disrespect for the law and suggests that the
misconduct is not so bad, after all.
Congress needs to assert its constitutional prerogatives to check
serious executive branch abuses, not because it craves power, but
because our democracy depends on it. Our system counts on each branch
of government to act as a counterweight to the other branches. If any
branch fails to do its job and check the abuses of another branch, the
system as a whole may fail, and our liberties will be endangered. Think
of how far down this dark road of unchecked powers we have gone
already: secret surveillance without judicial review, secret prisons,
secret torture and mistreatment, secret executive orders and possible
politicized prosecutions--not to mention a tragic war begun on a basis
of deception and misstatement.
The options before Congress for response, at this late stage, are
very limited--but Congress still has options.
The remedy the constitution provides, and the one most appropriate
to the present situation, is an impeachment inquiry. It would send the
clearest signal of the constitutional limits on abusive presidential
power. It would also educate the public about the appropriate limits of
executive power and the importance of checks and balances in our
constitutional system. That is what happened as a result of the
impeachment process during Watergate.
I am not unrealistic, however. I understand the great time
constraints and the virtual impossibility of completing a full-blown
impeachment inquiry before this session of Congress is over.
Nonetheless, there are compelling, pragmatic reasons--as well as a
constitutional imperative--to commence an inquiry now, and pursue it in
a meaningful and, constructive way over the few remaining months.
Even if an impeachment inquiry is not completed or does not result
in an impeachment vote in the House or the Committee, it still should
be undertaken. It is warranted and since impeachment inquiries cannot
be evaded by citing executive privilege, initiating an inquiry now
would accomplish several valuable purposes:
a) It would send a clear message to the American people and future
presidents that the actions engaged in by top Administration officials
are serious enough on their face to warrant an impeachment inquiry. It
would create a precedent whereby executive privilege does not
effectively vitiate a president's accountability to Congress, as this
Administration has sought to do. This would create a deterrent to
future administrations. So would the historic nature of impeachment.
Opening an impeachment inquiry would put this Administration in a very
small category along with only three others in US history that have
been the subject of such an inquiry.
b) Because there is no executive privilege in an impeachment
inquiry, pursing one would allow the Committee to obtain additional
material on presidential and vice presidential conduct which the
Administration has until now refused to provide. That material would
disclose the details about Administration actions that are currently
secret. Those details would better inform Congress about what the
appropriate response to this Administration's actions should be. They
would also better inform it about how to avert abuses of power by
future presidents. That in itself would be an important outcome of new
disclosures. Alternatively, if the Administration still refuses to
provide the information and documents requested as part of an
impeachment inquiry, that refusal would itself be an impeachable
offense under the precedent established in the Nixon proceedings, with
the bi-partisan adoption of the third article of impeachment holding
that the refusal to respond to committee subpoenas in an impeachment
proceeding was an impeachable offense; and
c) It would allow a serious, sober and respectful discussion, in
the appropriate and constitutionally mandated forum, of whether or not
specific Administration officials committed impeachable offenses. The
discussion would include a full and fair airing of evidence and
argument on both sides, both allegations and defenses. As I understand
it, such a discussion cannot be fully and satisfactorily conducted
under House rules without a real impeachment inquiry.
I therefore suggest that the Committee commence an inquiry and send
to the President and Vice President relatively short and
straightforward requests for information--consisting of some key
questions and requests for key documents. The questions would be
similar to what lawyers call interrogatories, and document requests
would be made at the same time. The Administration could be given until
the end of the August recess to respond.
For example, in the area of abuse of executive privilege, the
Committee could ask the President to direct the release to the
Committee of the transcripts of both his and the Vice President's FBI
interviews on the Valerie Plame matter, and if he refused, to provide
his constitutional and legal justifications. Similarly, on the Iraq
war, the President could be asked some questions such as: Given the
Senate Intelligence Committee report that US intelligence agencies had
no information to the effect that there were serious operational
connections between Al Qaeda and Saddam Hussein, and given your
Administration's claims otherwise to Congress and the American people,
what information did you have and what was the source of any such
information suggesting that there were such connections? On torture,
since the President claims that we ``do not do torture,'' he should be
asked how he defines torture and the basis for that definition. He
should also be asked if he approved of or authorized water boarding
either before or after it was used on detainees. He should also be
asked to provide copies of all authorizations for interrogations that
he issued, including those to the CIA, and all legal documents that
have not already been made public regarding his claimed authority to
authorize interrogations that conflict with the constraints contained
in the Geneva Conventions, the Convention against Torture and US law.
Of course, information that affects national security or that is
classified would have to be properly handled by the Committee.
When the Committee obtains the President's responses, or if it
becomes clear that the White House will not comply with its requests,
then the Committee can determine what further steps it needs to take.
Those could include a report by the Committee to the House on the
results of the inquiry, a decision to refer the matter to the next
Congress, or even a vote of impeachment if the President stonewalls the
Committee's requests.
The other options for checking executive abuses are less appealing.
Censure for example is not a constitutional remedy. But even if
censure is the course Congress takes, before it is adopted, the targets
of any censure resolution should be given the opportunity to justify
and explain their actions. The Congress must be seen to be both
respectful and fair whether it acts in an impeachment inquiry or votes
on censure.
Some have advocated reforming statutes, and that may be useful.
But, I want to emphasize to the Committee that presidents intent on
putting themselves above the law will not obey a new statute any more
than they would obey an old one. Statutes cannot constrain a president
who will not be constrained.
Criminal prosecutions alone are also not a sufficiently
satisfactory answer to checking abuses of executive power. Leaving the
treatment of these abuses to prosecutors to resolve is simply passing
the buck. Congress must exercise its own powers to check the executive.
Prosecutors vindicate criminal laws; it is only Congress that can
vindicate the constitution against a president who abuses the power of
his office. And some of the most serious abuses may not even be crimes,
such as deceiving Congress and the public in connection with the war in
Iraq. In the Nixon impeachment, one of the impeachment articles dealt
with abuses of power, including the misuse of federal agencies and the
creation of an enemies list of war opponents for the purpose of
targeting harassing IRS audits against them. It is not clear that Nixon
could have been prosecuted for many of those acts, but they were
nevertheless among the articles of impeachment, and rightly so.
That said, prosecutions may play some role in checking those abuses
of executive power that are violations of the criminal law. The anti-
Torture statute, for example, makes torture a federal crime and when
death results there is no statute of limitations. This means that any
Administration officials involved in authorizing or carrying out
torture where death resulted could be liable to prosecution for the
rest of their lives.
The same was true of the War Crimes Act of 1996. That act had a
lower standard of liability than the anti-Torture act and criminalized
cruel and inhuman treatment of detainees. Similarly there was no
statute of limitations for prosecutions under that Act if death
resulted. Concerns about criminal prosecution under the War Crimes Act
were pressing enough to be brought to the attention of President Bush
by White House Counsel Alberto Gonzales in his memo to the President of
January 2002. To avoid those prosecutions, Mr. Gonzales recommended
making the Geneva Conventions inapplicable to Al Qaida and Taliban
detainees, a recommendation that was partially accepted.
Thus, while certain Administration officials may argue that water
boarding is not torture, there is little doubt that water boarding
would meet the test of cruel and inhuman treatment and would likely
violate the War Crimes Act as originally adopted. It may have been for
that very reason that the Administration, in October 2006, persuaded
Congress, as part of the Military Commission Act, to make the War
Crimes Act retroactively inoperative. But Congress could overturn that
inoperability provision and restore the full operability of the Act.
Allowing Administration officials to be held liable under the War
Crimes Act would go far towards re-establishing respect for the rule of
law among high Administration officials, both now and in the future.
Even if Congress chooses the path of statutory reform and/or
prosecution, those efforts, to be optimally well-informed and
effective, would need to take into account the kind of disclosures that
would be obtained through an impeachment inquiry because it operates
outside the constraints of executive privilege. Administration actions
on their face fully warrant such an inquiry. Once begun, the inquiry
would both compel substantive disclosure by the Administration on
critical issues and provide a constitutionally appropriate forum for
full and civil discussion in which the Administration may answer the
serious allegations raised. Neither of these things would be
accomplished without an impeachment inquiry, and both are important to
defending the constitution, upholding the rule of law and preventing
abuses of power by future presidents.
Thank you for your consideration of these views.
Mr. Conyers. Congressman--or former Congressman Bob Barr
came from Georgia, represented his state from 1995 to 2003. He
was a senior Member on the Judiciary Committee and was vice
Chairman of the Government Reform Committee. Since leaving the
House, Congressman Barr has worked extensively on privacy
issues with organizations like the American Conservative Union
and the Harvard Kennedy School of Government.
We are very pleased to have him here today. He is currently
the 2008 Libertarian nominee for President of the United
States.
Welcome back to the Judiciary Committee, Bob Barr.
TESTIMONY OF THE HONORABLE BOB BARR, FORMER U.S. REPRESENTATIVE
FROM GEORGIA AND 2008 LIBERTARIAN NOMINEE FOR PRESIDENT
Mr. Barr. Thank you very much, Mr. Chairman.
It is always a pleasure to come home to this great
institution, the Congress, and of course this Committee.
And I very much appreciate the Members here today
represented by the sitting Ranking Member, Mr. King of Iowa.
We have heard earlier today, I forget which Members in
their opening statements, Mr. Chairman, alluded to various poll
numbers regarding the Presidency and the Congress and so forth.
But there was a study recently gauging the public's awareness
of and impression of something else that is even more important
than political polls, and that is the privacy trust rankings of
U.S. Government agencies which is put out annually by the
nonpartisan Ponemon Institute.
And very revealing, in this most recent 2008 survey,
ranking at, not at the top of the list, where the U.S. Postal
Service is, which might indicate to some the depth of the
problem we have that the U.S. Postal Service is the most
trusted institution in the Federal Government, but ranking near
the bottom is the Department of Justice. Nearly four times as
many Americans place their trust--would sooner place their
trust in the U.S. Postal Service than the U.S. Department of
Justice. That should concern all of us as Americans and
certainly all Members of the Judiciary Committee, certainly,
regardless of which side of the aisle they sit on and I think
points to the very valid reason for the Chair convening this
hearing today, which hopefully will be the first of many
inquiring into and following on the earlier work of this
Committee to get to the bottom of what appear to be certainly
problematic uses of executive power that did great detriment,
great harm to the fundamental institutions of our government,
namely checks and balances and separation of powers.
One does not need to impugn the reputation or the motives
of any one President, whether the current President or any
other President, to recognize the validity and importance of
the matters before this Committee. As one of America's greatest
jurists, Justice Louis Brandeis said many years ago, and I
quote, the greatest dangers to liberty lurk in the insidious
encroachment by men of zeal, well meaning, but without
understanding.
It is up to this Committee to provide that understanding,
to point out to the American people those instances, of which
they are legion with the current Administration, in which, to
be most charitable, that understanding of the institution of
liberty is sorely lacking.
Most recently, two of America's current jurists I think
echoed in their own way in different contexts the sentiments of
Justice Brandeis. For example, Supreme Court Justice Anthony
Kennedy in a majority opinion, 5-4 majority opinion, regarding
the value and place of habeas corpus as an underpinning, not
just of our society but of Western Civilization itself, said,
and I quote him, the laws and Constitution are designed to
survive and remain in force in extraordinary times. Liberty and
security can be reconciled, and in our system, they are
reconciled within the framework of the law.
And another of America's current jurists, appointed by
President Reagan to the D.C. Court, you can fight the war,
quote, you can fight the war on terrorism and lose everything
if you have no civil liberties left when you get through
fighting the war.
We have heard from some of the earlier members of the first
panel and Members of this learned Committee on some of the
specific instances of executive branch and separation-of-power
abuses that we have witnessed with regard to the current
Administration and in recent years. Some of these trends began
before the current Administration but have been taken to new
and unprecedented levels. And those are recounted to certainly
a less eloquent extent than we have heard already in my written
remarks, which I know the Chair will introduce into the record.
But there are a number of specifics that I think need to be
mentioned.
We have heard reference to the secret OLC opinions, Office
of Legal Counsel, by this Administration. Here, again, this is
nothing new, but the degree and depth and secrecy of which I
think is new and very, very troubling, again, as an activity
that undermines respect for the rule of law, separation of
powers, and the legitimate power of the Congress to conduct
oversight of the executive branch. I quote just one, and we
still don't even know the extent of even this one memorandum
from 2001 because it remains still classified, but this was a
memorandum that indicated that, quote, the fourth amendment had
no application to domestic military operations, close quote. I
mean, what in the heck is the Administration talking about,
first of all, about domestic military operations? And secondly,
to display the audacity to declare that the fourth amendment
does not reach and does not surround those operations, whatever
they are, with the protections of the fourth amendment to our
Constitution.
That is the depth I think of the lack of understanding of
the fundamental institutions of our government that have been
displayed by and disdained by the current Administration at a
level taking them far beyond those problems that we have seen
in prior Administrations. This is not a problem with a
particular President. It is not a problem with a particular
Administration, although the degree to which these problems
have manifested themselves with the current Administration is
problematic. This is an institutional concern.
For one thing, Mr. Chairman, every Administration in my
view, and I think history bears this out, takes the power that
it inherits from its predecessor and considers it a floor, not
a ceiling. So if we don't get a handle on this now in some form
or fashion, the next Administration and the one after that,
regardless of party, will take these abuses, these powers,
these liberties with the fundamental institutions of our
government, and take them to even higher and higher levels.
So I commend the Chair and the Members of this Committee
for taking hold of something that could not possibly be more
important, and that is the fundamental underpinnings of our
constitutional system of government.
I thank the Chair.
[The prepared statement of Mr. Barr follows:]
Prepared Statement of the Honorable Bob Barr
Mr. Conyers. Thank you very much.
I note that our former colleague to your right was nodding
her head on occasion.
The Chair is very happy to welcome the former Mayor of Salt
Lake City, Utah, who had served as mayor from 2000 up until
earlier this year. And after he left just recently, he founded
an organization called the High Road For Human Rights,
dedicated to facilitating grass roots advocacy on issues of
torture, genocide, global warming, and human trafficking. He
now serves as that organization's president. He is known to
many of us in the Congress. And we welcome him.
TESTIMONY OF THE HONORABLE ROSS C. ``ROCKY'' ANDERSON, FOUNDER
AND PRESIDENT, HIGH ROADS FOR HUMAN RIGHTS
Mr. Anderson. Thank you, Mr. Chairman, Members of the
Committee.
I am honored to address you today, and along with millions
of others, am pleased that you are considering your solemn
responsibility to ascertain and disclose to the American people
the nature and scope of egregious abuses of power by the
Administration.
Ascertaining and disclosing the truth about these matters
is vital in order to restore the rule of law and the crucial
role Congress plays in a system of checks and balances that has
been utterly eviscerated.
We still have no idea about the nature and scope of the
Administration's felonious, warrantless wiretapping program. We
don't know if dozens, thousands, or millions of Americans have
been victims of the illegal spying initiative. How were those
communications used? Were my communications intercepted? Were
yours? We, the American People, are entitled to know.
United States agents have illegally tortured detainees and
have kidnapped, disappeared, and tortured, or caused others to
torture, people around the world, including some like Maher
Arar and Khalid al-Masri, who had no connection whatsoever to
terrorism. However, the American people have not learned how
this unprecedented, blatantly illegal program operated, whether
it is continuing, or the consequences suffered by the people
who have been subjected to these monstrous human rights abuses.
Because the courts have blindly accepted the perpetrators'
indication of the frighteningly overbroad State Secrets
Doctrine and summarily dismissed cases challenging these
illegal human rights abusing practices, the American people
will learn the truth only if Congress meets its
responsibilities.
The Administration has engaged in heinous human rights
violations, the most serious breaches of trust, abuses of power
injurious to the Nation, astounding denials of due process,
including indefinite detention without charges or without even
a hearing, war crimes, crimes against peace, misleading
Congress and the American people about threats to our Nation's
security and the supposed case for war, and grave violations of
treaties, the Constitution, and domestic statutory law.
What are the potential remedies? First, there has never
been a more compelling case for impeachment. Nothing would
speak so loudly regarding the principled, nonpartisan
commitment of our Nation to the rule of law and to our jealous
embrace of our constitutional democracy.
I urge the consideration by Congress of Federal legislation
that would instruct the courts they are not to consider signing
statements when determining the meaning of legislation and
provide that no one can rely upon signing statements or
opinions of the Office of Legal Counsel as a defense for a
violation of the law.
I also urge Congress to seek a declaratory judgment as to
the legal effect of the Administration's signing statements.
Some members of the Administration appear to be bent on
attacking Iran.
I urge Congress to reassert its vital constitutional role,
and not just send letters of concern, not just make threats
about initiating impeachment proceedings, but forbid, by a
criminal statute with severe penalties, any attack against
Iran, except as permitted under the United Nations Charters and
the Constitution, absent explicit authorization by Congress.
Special prosecutors should be authorized, designated and
assigned to investigate and prosecute violations of the law by
members of the Administration.
Legislation strictly limiting the application of the state
secrets doctrine should be urgently considered in order that
the courts will once again provide a meaningful check on abuses
of power and violations of the law by members of the executive
branch.
Severe punishment should be provided for any government
agent who engages in or authorizes torture or cruel, inhuman or
degrading treatment of any person being detained anywhere,
without exception.
Congress should make clear what process must be followed
before any U.S. treaty obligations are violated or terminated
by any member of the executive branch, and provide for
sanctions in the event such process is not followed.
Vital to our constitutional democracy and to our political
and moral standing throughout the world is a comprehensive
consideration by Congress of what is to be done for the sake of
accountability, and to ensure that the horrendous damage to our
Nation and to much of the rest of the world as a result of the
illegal and abusive of misconduct of Administration officials--
--
Mr. King. Mr. Chairman, the gentleman's time has expired.
Mr. Anderson [continuing]. Again repeated.
If I could just sum up, the way to get to that
accountability and deterrence is the appointment of a select
Committee similar to the Church and Ervin committees or an
independent commission charged with investigating the abuses
and making recommendations concerning reforms----
Mr. King. Mr. Chairman----
Mr. Anderson [continuing]. That would spell a recommitment
to our fundamental democratic and moral principles.
Thank you Mr. Chair.
[The prepared statement of Mr. Anderson follows:]
Prepared Statement of the Honorable Ross C. ``Rocky'' Anderson
Mr. Conyers. Stephen Presser is Northwestern University Law
School's Raoul Berger Professor of Legal History. He has been
before this Committee at least three times that I can remember,
and I don't know where else in the Congress he has appeared. He
is a frequent commentator on issues of constitutional law, and
we are proud to welcome him back to the Committee again.
TESTIMONY OF STEPHEN PRESSER, RAOUL BERGER PROFESSOR OF LEGAL
HISTORY, NORTHWESTERN UNIVERSITY SCHOOL OF LAW
Mr. Presser. Thank you very much, Mr. Chairman. I appeared
here in late 1998 to give my views on what constituted an
impeachable offense, and I have been invited today to comment
on whether some suggestions of misconduct by President Bush are
acts that might appropriately result in impeachment
proceedings.
Impeachment should not simply be at the pleasure of the
House and conviction at the pleasure of the Senate. There must
be some standards. And for a President to be impeached, as
Congressman Pence said earlier today, he must have committed
some grave offense that is contrary to his oath to uphold the
Constitution and laws of his country. He must put his interests
above the Constitution and the laws.
When I appeared here in 1998, I did so because it appeared
to some Members of Congress that the allegations made against
President Clinton suggested that over many months he had
engaged in deception, lying under oath, concealing evidence,
tampering with witnesses, and in general obstructing justice by
seeking to prevent the proper functioning of the courts, the
grand jury and the investigation of the Office of Independent
Counsel. Those offenses, if they did occur, would clearly have
been undertaken for personal reasons and to frustrate the
workings of our system of justice.
I have reviewed the allegations made against President
Bush, but they seem different in character from those made
against President Clinton, and let me try to hit the highlights
here.
First, the allegations against President Bush include the
dismissal of United States attorneys for political purposes.
Given, however, that Presidents have had complete discretion
over the hiring and firing of U.S. attorneys, and given that
there is no suggestion that President Bush sought to prosecute
innocent defendants, I can't believe that there any grounds for
impeachment here. There does not seem to be any indication that
the Justice Department was frustrated from doing its appointed
tasks in order to serve the personal needs of the President.
Second, I am unable to discern how the implementation of a
particular view of the powers of the executive--the unitary
executive theory amounts to a high crime or misdemeanor. There
is no doubt that the Constitution does give considerable
discretion to each branch of the government to determine for
itself the reach of its own powers. As near as I can tell, this
is what it meant by the theory of the unitary executive.
In the course of fulfilling his executive responsibilities,
particularly in a time of war or national crisis, the President
needs the freedom to act effectively in the national interest.
If a President in good faith seeks to act in the national
interest rather than in his own, his conduct is not
impeachable.
President Bush's practice of signing statements
accompanying placing his signature on legislation has also come
in for some criticism today. Given that it seems, though, to be
a practice followed by several Presidents, the practice should
probably not be construed as an impeachable offense. A better
solution suggested today is to pass legislation instructing
judges, perhaps, to ignore signing statements or making other
qualifications.
In a third set of allegations regarding detention and
investigations, what President Bush and his Administration have
done in seeking to prevent another terrorist attack seems to
have been undertaken in good faith, pursuant to the President's
understanding of his constitutional powers and with the close
oversight of Congress, because Congress has exercised
legislative direction in connection with judicial proceedings
against enemy combatants, and because the courts have stepped
in on several occasions to support or rebuff what the executive
has done. This doesn't seem to be an area of abuse that cries
out for the impeachment remedy.
Fourth, manipulation of intelligence and misuse of war
powers. Here the concern seems to relate to the representations
of weapons of mass destruction purportedly possessed by Iraq
which later turned out not to exist in the quantities and
qualities claimed. But here what the Bush administration claims
to have done was what it believed was necessary in our national
defense and that of our allies, such as Israel. Again, there
appears to be no claim that the President abused his office for
personal reasons that would call for his impeachment and
removal.
Improper retaliation against administrative critics and
obstruction of justice. Obstruction of justice is an offense
that was charged against President Clinton, and if there was
evidence that the President had sought to obstruct justice,
this might be a good impeachment charge, but I haven't seen any
evidence that, in fact, that occurred.
Six, misuse of authority and denying Congress and the
American people the ability to oversee and scrutinize conduct
within the Administration. Misuse of authority is so general a
term that it brings to mind the constitutional debate between
Mason and Madison over whether malAdministration could be an
impeachable offense. I am not sure this kind of misuse of
authority is.
My time is up, and I will just sum up by saying, Mr.
Chairman, that impeachment is a radical remedy to be used only
in the case of executive misconduct that demonstrates that the
official has used his abuse for venal purposes. I have seen no
evidence that that occurred.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Presser follows:]
Prepared Statement of Stephen Presser
Mr. Conyers. Bruce Fein, a long-serving member of the
Department of Justice where he served as Associate Deputy
Attorney General under President Reagan. He has also been
before the Congress and forums frequently, and he writes a good
deal for a variety of publications. We welcome you here today.
TESTIMONY OF BRUCE FEIN, ASSOCIATE DEPUTY ATTORNEY GENERAL,
1981-1982, AND CHAIRMAN, AMERICAN FREEDOM AGENDA
Mr. Fein. Thank you, Mr. Chairman and Members of Committee.
In preparing my testimony, I had indulged the rash
assumption that I was living under a republican form of
government where titles of nobility were forbidden. And the
idea of addressing the President as His Excellency or His
Highness had been repudiated more than two centuries ago by our
first President, George Washington.
Much to my surprise on the eve of this hearing, I
discovered that in certain official quarters there was an
insistence on prohibiting pejorative references to President
George W. Bush or Vice President Richard Cheney; for example,
insinuating they he had committed high crimes or misdemeanors.
So I puzzled over the dilemma, and then the answer came like an
epiphany from Dragnet's Sergeant Friday: I changed the names to
protect the guilty.
Mr. Chairman and Members of the Committee, if President
George W. Bush had knocked to enter the Constitutional
Convention in Philadelphia in 1787, the presiding officer,
President George Washington, would have denied him admission,
and thereby hangs an alarming tale.
The executive branch has vandalized the Constitution every
bit as much as the barbarians sacked Rome in 410 A.D. The
executive branch has destroyed the Constitution's time-honored
checks and balances, taken the Nation perilously close to
executive despotism. The executive branch rejects the basic
philosophical tenets of the United States of America. It does
not accept that America was conceived in liberty and dedicated
to the proposition that sovereignty in a republican forum of
government lies with the people, not with the executive; that
there are no vassals or serfs in the Constitution's landscape;
that every man or women is a king or queen, but no one wears a
crown; and that the rule of law is the Nation's civic religion,
and the Founding Fathers fashioned impeachment as a remedy for
attacks against the constitutional order.
And let me identify just three. The President's claims of
war power. What he has asserted in the aftermath of 9/11 is
that every square inch of the world, including the United
States, is an active battlefield, including where we are
sitting at present, and that if he has a suspicion, maybe by
his gut instinct or otherwise, there is al-Qaeda or an
international terrorist anywhere, he can use military force, he
can impose military law in order to wage war, in his view,
successfully. He can invade Iran if he thinks that is necessary
to succeed in the war against international terrorism
irrespective of what this branch may do.
Now, that truly is an alarming power. That means that we
all have a sword of Damocles over our heads, because any time
any President claims that he is fighting international
terrorism, he can kidnap, arrest, kill anyone he thinks is an
international terrorist. There is no second-guessing him. He
doesn't go to court and ask for probable cause, because in
wartime you shoot first and ask questions later.
Now, it is true he hasn't asserted that authority in the
United States. He shot rockets in Yemen, Macedonia, elsewhere;
not in the United States yet. But we shouldn't have to wait
until we have a coup before we take protective action.
I recall in our own colonial history in 1766, after the
British Parliament had repudiated the Stamp Act because we had
protested no taxation without representation, they came back
with a declaratory act saying, by the way, even though we
withheld that tax now, we still have power to regulate you in
any manner whatsoever, and that fueled the Declaration of
Independence. The Founding Fathers didn't say, oh, they haven't
asserted the authority yet; let us wait until the tyranny
comes.
Now, a second area relates to the rule of law. When the
President says he is seeking to gather foreign intelligence, he
can flout any restriction that this legislative body has placed
in the gathering of foreign intelligence. That is what he did
after 9/11. Open and notorious, he has confessed. He decided he
would flout the Foreign Intelligence Surveillance Act, which
placed limits, very modest ones, on the ability to gather
foreign intelligence because of 40 years of disclosed abuses by
the Church Committee and other Committees of this Congress.
He also claimed not only could he violate the Foreign
Intelligence Surveillance Act, but any limitation, in his
view--any limitation on his ability to gather foreign
intelligence was unconstitutional. Thus you could kidnap,
detain in secret prisons, in violation of limitations, saying,
I am gathering foreign intelligence. He could open mail, he can
burglarize homes, all in the name of gathering foreign
intelligence, a frightening power, and he has not renounced
that to this day.
He has also asserted the right to shield what he has done
from review and oversight by this body. And just to give an
example, if you remember your history, and I know Liz does
because she was here, like me, in Watergate, Watergate brought
down President Nixon largely because a former White House
counsel in the same position of Harriet Miers, who refused to
show up before this Committee, related the Senate Watergate
Committee Oval Office conversations he had with the President
of the United States. His name was John Dean. And I remember
very vividly the entire Nation, including you, Mr. Chairman,
had you eyes riveted on his testimony. Oh, it would be wrong to
pay off the burglars. And that was the reason why we restored
the rule of law, because we had testimony about the Oval Office
conversations, exactly the kind of privilege this President is
asserting prevents this Congress from overseeing anything that
this President might have done.
Mr. King. Mr. Chairman, the gentleman's time has expired.
Mr. Fein. Let me just conclude, with deference to
Congressman King, from a quote by Tacitus which I think
explains the dilemma we confront now. As the Roman Republic
degenerated into the Roman Empire and dictatorship, he said,
the worst crimes were dared by few, practiced by more, but
tolerated by all.
Thank you.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
Dear Mr. Chairman and Members of the Committee:
If President George W. Bush had knocked to enter the constitutional
convention in Philadelphia in 1787, presiding convention president
George Washington would have denied him admission. Thereby hangs an
alarming tale. The executive branch has vandalized the Constitution
every bit as much the barbarians vandalized Rome in 410 A.D. The
executive branch has destroyed the Constitution's time-honored checks
and balances and raced the nation perilously close to executive
despotism. The executive branch rejects the basic philosophical tenets
of the United States. It does not accept that America was conceived in
liberty and dedicated to the proposition that sovereignty in a
republican form of government lies with the people; that there are no
vassals or serfs in the Constitution's landscape; that every man or
woman is a king or queen but no one wears a crown; and, that the rule
of law is the nation's civic religion. The Founding Fathers fashioned
impeachment as a remedy for attacks against the constitutional order.
I wish these words were hyperbole. But they are not.
The Declaration of Independence posits that all men and women are
endowed with certain unalienable rights, including life, liberty, and
the pursuit of happiness. Those rights are not at the sufferance of the
executive branch, of Platonic Guardians, or of any government
whatsoever.
The executive branch, however, has made our natural rights sport
for its political ambitions and craving for power. After 9/11, the
executive branch declared--with the endorsement or acquiescence of
Congress and the American people--a state of permanent warfare with
international terrorism, i.e., the war would not conclude until every
actual or potential terrorist in the Milky Way were either killed or
captured and the risk of an international terrorist incident had been
reduced to zero. The executive branch further maintained without
quarrel from Congress or the American people that since Osama bin Laden
threatens to kill Americans at any time and in any location, the entire
world, including all of the United States, is an active battlefield
where military force and military law may be employed at the discretion
of the executive branch. For instance, the executive branch claims
authority to employ the military for aerial bombardment of cities in
the United States if it believes that Al Qaeda sleeper cells and are
nesting there and are hidden among civilians with the same certitude
that the executive branch knew Saddam Hussein possessed weapons of mass
destruction. The innocent civilian deaths occasioned by the bombings
would be no more than regrettable collateral damage in the war against
international terrorism. Just ask the bereaving Iraqis and Afghanis who
witness indistinguishable collateral damage daily inflicted by the
United States military.
If the executive branch decided to place the nation under military
rule, unalienable rights to life, liberty, and the pursuit of happiness
would be eviscerated. Citizens could be arrested and searched at
random. Homes could be destroyed without just compensation if the
executive branch asserted that they could serve as hiding places for Al
Qaeda. Trials for alleged crimes would be by military commissions
denuded of fundamental due process protections, for example, the right
to confront adverse evidence.
It might be said in defense of the executive branch that it has not
yet extended its claimed military power on a regular basis into the
United States. The executive branch has directed United States forces
to kill or kidnap persons it suspects have allegiance to Al Qaeda in
foreign lands, for instance, Italy, Macedonia, or Yemen, but it has
plucked only one United States resident, Ali Saleh Kahlah al-Marri,
from his home for indefinite detention as a suspected enemy combatant.
But if the executive branch's constitutional justification for its
modest actions is not rebuked through impeachment or otherwise, a
precedent of executive power will have been established that will lie
around like a loaded weapon ready for use by any incumbent who claims
an urgent need. Moreover, the Founding Fathers understood that mere
claims to unchecked power warranted stern responses. After the British
Parliament repealed the 1765 Stamp Tax by the protesting American
colonists waving the banner of ``No Taxation Without Representation,''
the Parliament responded with the Declaratory Act that insisted that it
retained power to govern the colonies in all matters whatsoever
irrespective of their absence of parliamentary representation. That
theory of parliamentary omnipotence, simpliciter, awakened a colonial
fury that culminated in the Declaration of Independence. The
Constitution does not require Congress to await the executive branch's
actual imposition of martial law and the indiscriminate use of military
force in the United States against American citizens before exercising
the impeachment power against Administration officials who are unworthy
stewards of the Constitution. Moreover, the executive branch has
buttressed its claimed military omnipotence with the unitary executive
theory. It posits, contrary to centuries of constitutional law and the
original intent of the Founding Fathers, that any power than can be
characterized as executive is shielded from review, inquiry, or
checking by any other branch. For example, the power to wage war is an
executive power. According to the executive branch, that means that
Congress is powerless to regulate how the Commander in Chief seeks to
attain victory in Iraq by prohibiting torture, invasions of Iran or
Syria, limiting troop levels or permanent military bases, or otherwise.
The Declaration of Independence instructs that all just powers of
government derive from the consent of the governed. And the core
principle of self-government is that the people must know what their
government is doing and why to intelligently adapt, shape, and direct
their political loyalties or energies. James Madison, father of the
Constitution, lectured that a people who mean to be their own governors
must arm themselves with the power that knowledge gives. Democracy
resting on popular or congressional ignorance is a farce. In addition,
sunshine is the best disinfectant. The executive branch will be
deterred from lawlessness, folly, or maladministration by the knowledge
that its actions will be made known to the public or Congress in a
timely fashion. The executive branch ceased authorizing torture once
knowledge of the practice by the United States in the war against
international terrorism entered the public domain. A strong presumption
favoring transparency in the executive branch is a constitutional
imperative. The presumption is at its zenith in matters of war and
peace, as Supreme Court Justice Hugo Black underscored in the Pentagon
Papers case concerning the Vietnam War; otherwise, the executive branch
will otherwise concoct reasons for initiating or maintaining war and
cause deaths to heroic American soldiers as senseless as the Charge of
the Light Brigade.
The Founding Fathers were virtually unanimous that if permitted to
be cloaked with secrecy the executive branch would distort facts and
deceive the people and Congress by inflating foreign dangers manifold
to justify resort to military force or war. As was related to erstwhile
White House Press Secretary Scott McClellan, only war holds the
prospect of crowning a President with fame and leaving his footprints
in the sand of time by transforming the political globe or major
regions. War also boosts a President's immediate popularity, heightens
his control over information critical to his political fortunes,
multiplies his opportunities to favor his political friends through
appointments and government contracts, and justifies spying on war
opponents as enemy combatants or potential traitors.
The executive branch, however, has routinely invoked executive
privilege to conceal what the executive branch is doing and why in both
national security and domestic matters. The executive branch has
employed secrecy to communicate a suboptimal level of candor to the
American people and Congress about foreign dangers and purported
justifications for war. James Iredell, later appointed by President
George Washington to the United States Supreme Court, advised the North
Carolina ratification convention:
``The President must certainly be punishable for giving false
information to the Senate. He is to regulate all intercourse
with foreign powers, and it is his duty to impart to the Senate
every material intelligence he receives. If it should appear
that he has not given them full information, but has concealed
important intelligence which he ought to have communicated, and
by that means induced them to enter into measures injurious to
their country, and which they would not have consented to had
the true state of things been disclosed to them--in this case,
I ask whether, upon an impeachment for a misdemeanor upon such
an account, the Senate would probably favor him.''
The executive branch deceived the American people and Congress by
concealing material evidence discrediting the claim that Saddam Hussein
possessed weapons of mass destruction or was in cahoots with Al Qaeda,
chief justifications for invading Iraq in March 2003. The executive
branch misled the American people and Congress about the true danger of
international terrorism to elicit their endorsements for a state of
permanent war. The House Judiciary Committee voted an article of
impeachment against President Richard M. Nixon based in part on his
deceit to the American people about a bogus internal investigation of
the Watergate cover-up.
The executive branch has invoked executive privilege to prevent
Congress and the American people from knowing the prime features and
the putative intelligence benefits of the Terrorist Surveillance
Program undertaken in contravention of the Foreign Intelligence
Surveillance Act of 1978, as amended.
On the domestic front, the executive branch has invoked the
privilege to conceal from the American people and Congress Vice
President Dick Cheney's interview with special prosecutor Patrick
Fitzgerald concerning the Valerie Wilson leak investigation. The
privilege at its apex was never before thought to extend to vice
presidential communications not intended for the president.
The privilege has been invoked to prevent former White House aides
Karl Rove and Harriet Meirs from even appearing before Congress
regarding the firing of United States attorneys and possible
obstruction of justice or perjury, and to prevent White House chief of
staff Joshua Bolten from responding to document production requests
from Congress concerning the same. The executive branch's counter-
constitutional theory of executive privilege is that the President can
prevent any current or former executive branch official from appearing
before Congress to testify about communications that were aimed to
reach the President or emanated from the Oval Office. That would sound
the death knell of congressional oversight and the public's right to
know what their government is doing and why. It would have permitted
President Richard M. Nixon to muzzle former White House counsel John
Dean from testifying about the Watergate cover-up before the Senate
Watergate Committee by reciting Oval Office conversations whose
disclosures engendered Nixon's resignation. No decision of the United
States Supreme Court has sustained a presidential privilege to deny
information to Congress. Its assumption that executive officials will
shortchange candid advice to the President absent an iron-clad
guarantee of confidentiality is counterfactual. Every important
presidential adviser operates on the assumption that what is said in
the Oval Office might through leaks or waivers of privilege later
appear in major media outlets. Thus, former CIA Director George Tenet
writes in At the Center of the Storm: ``[T]here are no private
conversations, even in the Oval Office.''
The executive branch maintains that it is endowed with
constitutional authority to gather foreign intelligence in any manner
the executive branch wishes in contravention of statutory restraints
imposed by Congress. The Constitution, however, obligates the executive
branch to faithfully to execute the laws, not to sabotage them. The
executive branch operated the Terrorist Surveillance Program to target
American citizens on American soil for warrantless electronic
surveillance on the executive branch's say so alone from 9/11/2007 in
violation of FISA. The executive branch also claims power to torture,
kidnap, open mail, or burglarize in violation of congressional
limitations in the name of collecting foreign intelligence. The
multiple victims of executive branch's authorization of torture,
including waterboarding, are documented in Jane Mayer's recent book The
Dark Side. The executive branch's lawlessness made the nation less safe
by deterring expert FBI agents from participating in key interrogations
to avoid complicity in crime and alienating foreign allies like Italy
whose sovereignty was violated by a CIA-orchestrated kidnapping of
Egyptian cleric Abu Omar.
An American Bar Association Task Force on which I served issued a
report delineating the constitutional evils of signing statements that
I need not amplify at this time. It is another example of the executive
branch's usurpation of legislative powers and scorn for the rule of
law.
In Federalist 65, Alexander Hamilton explained that impeachments
would proceed ``from the misconduct of public men, or, in other words,
from abuse of violation of some public trust. They are of a nature
which may with peculiar propriety be dominated POLITICAL, as they
relate chiefly to injuries done to society itself.'' There is no more
important task for this Committee than restoring the constitutional
equilibrium among the three branches that the Founding Fathers
fashioned based on their unsurpassed insight into human nature and the
inexorable degeneration of unchecked power into tyranny.
Mr. Conyers. We are pleased to welcome Vincent Bugliosi,
who has authored several timely books. I think this is his
latest one, The Prosecution of George W. Bush for Murder. And
he, of course, is a well-known former Los Angeles County deputy
district attorney remembered for his prosecution of Charles
Manson in 1970. He has still been very active, and we welcome
his appearance before the Committee today.
TESTIMONY OF VINCENT BUGLIOSI, AUTHOR AND FORMER LOS ANGELES
COUNTY PROSECUTOR
Mr. Bugliosi. Mr. Chairman, and Members of the Committee. I
have been told that the rules of this House dictate that
although I can quote what President George Bush said, I am
forbidden from accusing him of a crime or even any dishonorable
conduct, only being allowed to use the words ``Bush
administration'' or ``administration officials.'' This will not
make for the best of articulations, but I will do the best that
I can.
In my book here, The Prosecution of George W. Bush for
Murder, I present evidence that proves beyond all reasonable
doubt that Bush administration officials took this Nation to
war in Iraq on a lie, under false pretenses, and, therefore,
under the law, they are guilty of murder for the deaths of over
4,000 young American soldiers who have died so far in Iraq
fighting their war. And let us not forget the over 100,000
innocent Iraqi men, women, children and babies who have died
horrible, violent deaths because of this war.
I am fully aware that the charge I have just made is a very
serious one, but let me say that at this stage of my career, I
don't have time for fanciful reveries. I never in a million
years would propose a murder prosecution of Bush administration
officials if I didn't believe there was more than enough
evidence to convict them and that I was standing on strong
legal ground.
What is some of that evidence? Because of time constraints,
I am only going to mention one piece of evidence today. I have
documentary evidence that when George Bush told the Nation on
the evening of October 7, 2002, that Saddam Hussein was an
imminent threat to the security of this country, he was telling
millions of unsuspecting Americans the exact opposite of what
his own CIA had told Administration officials just 6 days
earlier in a classified report on October the 1st, that Hussein
was not an imminent threat.
But it gets worse. On October 4th, the Bush administration
put out an unclassified summary version of the classified
report so they could give it to Congress and the American
people, and this unclassified version came to be known as the
White Paper. And in this White Paper, which I have in front of
me, the conclusion of U.S. intelligence that Saddam Hussein was
not an imminent threat to the security of this country was
completely deleted. Every single one of these all-important
words was taken out. So Congress and the American people never
saw any of this.
Since we are talking about a matter of war and peace with
the safety and lives of millions of human beings at that time
hanging in the balance, and with Congress about to vote in 1
week on whether or not it should authorize George Bush to go to
war in Iraq, what could possibly be worse, I repeat, what could
possibly be worse or more criminal than the Bush administration
deliberately keeping this all-important conclusion from
Congress and the American people?
The terrible reality is that the Bush administration has
gotten away with thousands upon thousands of murders. And we,
America, the American people, cannot let them do this.
During the question-and-answer period, if requested, I will
give you words from George Bush's own mouth that I believe will
prove shocking to most of you folks in this Chamber.
On December 9th, 1998, a previous House Judiciary Committee
issued four articles of impeachment against President Bill
Clinton for doing something infinitely less significant than
what the evidence shows the Bush administration did in this
case. Indeed, it is a calumny, a slander of the highest rank to
even talk about them in the same breath or on the same page. If
a House Judiciary Committee could recommend that President
Clinton be impeached for what he did, as they say in the law, a
fortiori, all the more so, with all the highly incriminating
evidence that I set forth in my book, much of it documentary,
you shouldn't have any difficulty making a criminal referral to
the Department of Justice to commence a criminal investigation
of the Bush administration to determine whether first degree
murder charges should be brought against certain members of
this Administration, and I hereby strongly urge you to do so.
Whether Republican or Democrat, all Americans should be
absolutely outraged over what the Bush administration has done.
How dare they do what they did? How dare they?
This will take a half minute or so to wrap it up.
Mr. Smith. I am sorry, have to interrupt you. I am going to
ask the Chairman to make----
Mr. Conyers. I admonish the----
Mr. Smith [continuing]. A comment or clear the room.
Mr. Bugliosi. May I wrap this up this right here?
Mr. Smith. Just a minute please. I am asking the Chairman a
question.
A few minutes ago you said you would clear the room if
there was an outburst, and I think there has clearly been an
outburst. I leave it up to your discretion.
Mr. Conyers. I am not going to clear the room, but I would
ask the guests here at the hearing to not give any indication
of approval or disapproval of any of the statements being made
by the witnesses.
Mr. Bugliosi. Directly because of this Administration's
war, there are well over 100,000 precious human beings in their
cold graves right now as I am talking to you. Speaking
metaphorically, I want you to hear, as I do, their cries for
justice. I say that it would greatly dishonor those in their
graves who paid the ultimate price because of this war were you
not to refer this case to the Department of Justice.
If we want this Nation to become the great Nation it once
was, widely respected around the world, we can hardly do this
if we don't take the first step of bringing those responsible
for the war in Iraq to justice.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Bugliosi follows:]
Prepared Statement of Vincent Bugliosi
Within the pages of my book, The Prosecution Of George W. Bush For
Murder, I present evidence that proves, beyond a reasonable doubt, that
Bush administration officials took this nation to war in Iraq under
false pretenses, and therefore, under the law, they are guilty of
murder for the deaths of over 4,000 young American soldiers who have
died so far in Iraq fighting their war. And let's not forget the over
100,000 innocent Iraqi men, women, children and babies who have died
horrible, violent deaths because of their war.
I am fully aware that the charge I have just made is an extremely
serious one. But let me tell you that at this stage of my career I
don't have time for fanciful reveries. I never in a million years would
propose this prosecution if I didn't believe there was more than enough
evidence to convict administration officials and that I was standing on
strong, legal ground.
What is some of that evidence? Although there is much other
evidence in my book, because of the press of time, I am only going to
mention one piece of evidence in this paper. I have documentary
evidence that when George Bush told the nation on the evening of
October 7, 2002, that Saddam Hussein was a ``great danger'' to America
who might give his weapons of mass destruction to a terrorist group
``on any given day'' to attack us (meaning, the threat was imminent),
he was telling millions of unsuspecting Americans the exact opposite of
what his own CIA had told administration officials just six days
earlier, in a classified report on October 1, that Hussein was not an
imminent threat.
But it gets worse. On October 4, the Bush administration put out an
unclassified, summary version of the classified report so they could
give it to Congress and the American people. This unclassified version,
as you know, came to be known as the White Paper. And in this White
Paper, the conclusion of U.S. Intelligence that Hussein would only be
likely to attack us if he feared we were about to attack him was
completely deleted. So Congress and the American people never saw any
of this. Since we're talking about a matter of war and peace, with the
safety and lives of millions of human beings hanging in the balance,
and with Congress about to vote in one week on whether it should
authorize President Bush to go to war, what could be worse than
administration officials keeping this all-important conclusion from
Congress and the American people?
Directly because of this administration's war, there are well over
100,000 precious human beings who are in their cold graves, right now,
as I am writing these words. Speaking metaphorically, I want Congress
to hear, as I do, their cries for justice.
If we want this nation to become the great nation it once was,
widely respected around the world, we can hardly do this if we don't
take the first step of bringing those responsible for the terrible war
in Iraq to justice. I would ask the House Judiciary Committee to take
whatever measures that are available to them to further this objective.
Mr. Conyers. Our next witness is--excuse me, our next
witness is Professor Rabkin, Jeremy Rabkin, professor at George
Mason University School of Law. Additionally, he taught at
Cornell University for over 25 years, is a renowned scholar in
international law, and was recently confirmed by the United
States Senate as a member of the Board of Directors of the
United States Institute of Peace.
Welcome, Jeremy Rabkin, and we await your testimony.
TESTIMONY OF JEREMY A. RABKIN, PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY SCHOOL OF LAW
Mr. Rabkin. Thank you. I see that a lot of people are very
angry at the Bush administration. I am not here particularly to
defend the Bush administration, but I was asked by the
Minority.
I hope I can add a little bit of perspective to this. I
think the number of previous people testifying have suggested
not just that the war in Iraq was a mistake, but that there was
some kind of conspiracy to take the Nation into a war for no
good reason at all, and that this was done knowingly.
People who believe that, it seems to me, shouldn't be
wasting time on FISA. They shouldn't be wasting time on
secondary issues. That is an extraordinary, explosive charge if
you think it is really true that the President knowingly and
deliberately sent the country into a war for reasons which he
knew were untrue. We should just zero right in on that charge
and have a debate about that.
I don't know that charge is true. I think it is wildly
improbable. But that is what we should be talking about. It
doesn't make it more credible to say, ``I believe these wild
conspiracy charges because the President has abused signing
statements and I don't like that. Also there is some dispute
about the interpretation of the Geneva Convention; I don't like
that.'' All these other secondary things don't add credibility
to the main sensational, explosive charge.
What I want to do is just remind people in looking at the
secondary charges that these sorts of disputes are not unique
to this Administration. They are nothing new. Let us just
remind ourselves, with all the talk about surveillance, that in
previous wars, right at the beginning and indeed in the Second
World War, before the beginning, the President authorized the
Attorney General, to engage in open-ended wiretapping.
Congresswoman Holtzman mentioned abuses that led up to the
enactment of FISA in 1978. Right, surveillance activities go
back decades. This has been a thing that happens frequently in
wartime.
Chief Justice Rehnquist wrote a book--not in defense of the
Bush administration, he wrote it in the 1990's--about civil
liberties and wartime. He tells the story about the dispute
within the government about putting more than 100,000 people
behind barbed wire, Japanese Americans, and he quotes the
saying of the Attorney General at the time, Francis Biddle, who
told the President, this is a problem, we shouldn't be doing
this. And Biddle said afterwards, ``I do not think the
constitutional difficulty plagued him--plagued President
Roosevelt. The Constitution has not greatly bothered any
wartime President.''
Chief Justice Rehnquist was so impressed by those words
that he not only quoted them in the section of his book about
World War II, he quotes them in the last two pages of the book
at the conclusion: Wartime Presidents don't take great care
about the Constitution; wartime presidents take great care to
defend the country because they think that is what they will be
judged on. And Chief Justice Rehnquist wasn't making that point
in criticism; he was making that point, I think, as a former
Assistant Attorney General for Legal Counsel. He knew this is
what Presidents do.
All I am saying is, keep in mind the context of all the
things that are being charged against the Bush administration.
They thought they were acting in wartime. We are now looking
back on it 7 years later, there hasn't been another attack, so
we now think, ``Oh, really there was no good reason for this.''
But people had no reason to be self-confident as we are now
that there wasn't really much of a terror threat. If you keep
that in mind, it is much more understandable how people of good
faith and sincerity could do things which in retrospect we
think maybe were excessive and should be looked into.
I just want to say one last thing before I finish, which
is, we should remind ourselves that we are not looking at this
now as historians. There is very deep ideological division in
the country, or just partisan division in the country. I have
to tell you, coming to this hearing, the first time I have been
in a hearing in quite a few years, I am really astonished at
the mood in this room. I mean. The tone of these deliberations,
I think, is somewhat demented. I am not saying this to
criticize people, I am just saying you should all remind
yourselves that the rest of the country is not necessarily in
this same bubble in which people here think it is reasonable to
describe the President as if he were Caligula.
We have reasonable differences. We ought to be able to
pursue those differences without reaching for the most extreme
interpretation and the most sensational way of viewing what has
happened. If the Congress thinks there are things that need to
be fixed, you have a legislative process. I think to put
everything onto the ``somebody must pay for mistakes, and
impeachment is the way'' is to make the country ungovernable,
because each time you start cranking up this kind of extreme
response, it just encourages people on the other side to get
their backs up and feel, yes, they are our enemies. Our enemies
are not Democrats or Republicans, our enemies are terrorists
abroad who want to kill us.
Thank you.
[The prepared statement of Mr. Rabkin follows:]
Prepared Statement of Jeremy A. Rabkin
Mr. Conyers. We have the pleasure of welcoming Frederick
Schwarz, senior counsel at the very well-known Brennan Center
in New York. Before heading that up, he was a partner at
Cravath, et al. He was also once chief counsel to the Senate
select committee to study governmental operations with respect
to intelligence activity, and he chaired the commission that
revised New York City's charter.
We welcome you this afternoon to our proceedings.
TESTIMONY OF FREDERICK A.O. SCHWARZ, JR., SENIOR COUNSEL,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW
Mr. Schwarz. Thank you very much, Mr. Chairman. That
Committee was known as the Church Committee, which several of
the other witnesses have made reference to.
I have covered details of what is going wrong elsewhere in
my written testimony and in my book, Unchecked and Unbalanced.
I would just like to summarize what I think is the most--
largest problem, which is that in our efforts to protect
ourselves, we have made the mistake of adopting tactics of the
enemy.
The most important mistake has been with respect to
torture. And waterboarding, by the way, we prosecuted Japanese
soldiers for using it against Americans. And we have abandoned
the rule of law and slipped away from checks and balances, and
those all have created a serious constitutional problem.
The Vice President 20 years ago said we should have
monarchical powers for the Presidency, and I believe that is
his view today. The consequence of what we have done is that
America has been made not only less free, but also less safe.
And just to illustrate that with some examples, by abandoning
our values and choosing instead to adopt some tactics of our
vicious enemies, we have given enemy recruiters powerful tools
to stir up passions in the Muslim world. Those tactics have
also undermined necessary cooperation from our closest allies.
Colin Powell said in a letter to John McCain just 2 years ago,
the world is beginning to doubt the moral basis of our fight
against terrorism, and that is a terrible loss.
After the rush of support and emotional bonding with
America immediately after 9/11, we are met with disappointment,
caution and resistance from even our closest allies. For
example, the British now refuse to cooperate with us on lots of
intelligence matters because they fear they will be used in
rendition.
Now the full story needs to be told, and the full story of
the consequences of what has been done needs to be told. I
recommend, therefore, something different than what is being
heard today. I recommend that the Congress and the new
President sign a bill that sets up an independent, nonpartisan
and bipartisan investigatory commission that will look at what
has been done wrong, look at what has been done right, and
recommend remedies for things that have been done wrong.
I don't recommended impeachment, because I believe it is
too late; that could have been considered earlier. I think it
is too late now, and the timing now would make it not only
impossible to have a mature and responsible and detailed
investigation, but the timing would also make such an
investigation more partisan than it ought to be.
We need to know from an investigation the full truth so we
do not repeat mistakes. We need to know the full truth to
produce accountability for those that have committed
wrongdoing. And we need to know the full truth because to
produce the truth begins to restore America's moral luster,
which is a great part of our strength.
Now, you could say that putting out the full truth will
embarrass the country. That has been said before. It might
embarrass people, but the great strength of America is to
remain a people who confront our mistakes and resolve not to
repeat them. If we do not do that, we will decline, but if we
do confront our mistakes, our future will be worthy of the best
of our past.
Now let me just conclude with these thoughts. The first
thing is we must remember that the conduct that has undermined
our values and zapped our strength arose in the context of
seeking to protect the country from further attacks. But as
Justice Louis Brandeis warned in a somewhat different context,
at times the greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning, but without
understanding. These issues transcend partisanship. They are
far more important than the controversies that divide us.
Indeed, to fully understand these issues should bring all
Americans together. The development of novel and erroneous
constitutional theories has, in my view, led to conduct that is
contrary to American values, and that has actually made us less
safe.
Now, again, there are some words that the Church Committee
uttered 30 years ago--32 years ago that are no less true today
than they were three decades ago. The United States must not
adopt the tactics of the enemy. Means are as important as ends.
Crisis always makes it tempting to ignore the wise restraints
that make us free, but each time we do so, each time the means
we use are wrong, our inner strength, the strength which makes
us free, is lessened.
Now, I believe that with a sober investigation into what
has been done, both what has gone wrong and what has gone
right, we can actually bring our country together, and that we
can show that, when properly respected, our constitutional
structure and our core fundamental values can, as they have for
so many years, provide the people of this country and of the
world the hope for a better, fuller, fairer life.
Thank you.
[The prepared statement of Mr. Schwarz follows:]
Prepared Statement of Frederick A.O. Schwarz, Jr.
Mr. Conyers. Finally we have Elliott Adams, national
president of Veterans for Peace, of which I am a proud member.
Mr. Adams has served in the Army as a paratrooper in Vietnam,
Japan and Korea. He has been a mayor, a president of his school
board, and president of Rotary Club.
Welcome to the Judiciary Committee.
TESTIMONY OF ELLIOTT ADAMS, PRESIDENT OF THE BOARD, VETERANS
FOR PEACE
Mr. Adams. Thank you, Mr. Chairman. It is a pleasure to be
here.
Upon leaving the Constitutional Congress in--Convention in
1787, Ben Franklin was asked, well, Doctor, what have we, a
republic or a monarchy? Dr. Franklin reapplied, a republic, if
you can keep it.
Honorable representatives, that single sentence sums up the
essence of what we are here today for, if we can keep it. In
the Armed Forces we took an oath, the same oath Congressmen
take to support and defend the Constitution of the United
States against all enemies, foreign and domestic. Now as
veterans we still take that oath seriously. Some of us are
gray-haired, long of tooth, but are here on the Hill still
defending that Constitution.
Briefly, Veterans for Peace have members from every war
this country has fought since the World War II. We are 23 years
old, we have 120 chapters, an NGO seat at the U.N. We have a
small part of the 1997 Nobel Peace Prize. We provide 85,000
Iraqis with drinking water, 57,000 free phone cards and 148
veterans hospitals. We work on Agent Orange victims, both U.S.
veterans and Vietnam citizens. We support schools and
orphanages in Vietnam and Afghanistan. We have bought body
armor for our soldiers in Iraq because the U.S. Government
could not provide them with the proper equipment. We work
deeply in Central America working for democracy and free
elections.
With all this work, many of our members have set aside that
work for what de deemed be more important in defending the very
democracy of this country by working for impeachment. There can
be no question whether criminal offenses have been committed by
members of this Administration. The only question now is what,
if anything, each Member of Congress will do about it.
This is not about impeaching a few Administration
officials. This is about maintaining the structure of our
government. All future Presidents of both parties will start
their Presidency where this one leaves off. For Congress to
continue to allow the usurpation of power and the flaunting of
violations of the Constitution to go unanswered is in itself a
violation of the law.
While there is no need to enumerate the long list of
impeachable offenses committed by officials of this
Administration, I cannot escape the visceral pain and
indignation that we who served our country in combat feel when
we find our own government condoning and/or committing war
crimes and/or crimes against humanity.
It is appalling as a veteran to hear a discussion that
justifies any form of torture. In the Army we were taught not
to torture not only because it was illegal, but because, and
especially because, it ruins the integrity of the intelligence
you gather. Simply put, any victim of torture will eventually
say whatever their torturer wants them to say.
For us veterans when our time came, we volunteered our very
lives for this Republic. Now, Congressmen, it is your time, yet
I hear there is not enough time. Yet I hear, oh, it will hurt
one party or another party. Or I hear there is not enough of a
political will. Gentlemen, when our Founding Fathers signed the
Declaration of Independence, they were not worried about
political will or about how much time there was or what parties
might affect their political future. They were just worried
that they were to get hanged by the neck. Yet they did the
right thing. Now, gentlemen, it is your time to stand up.
And let me close with Einstein's statement: The world is a
dangerous place not because of those who do evil, but because
of those who look on and do nothing.
Thank you.
[The prepared statement of Mr. Adams follows:]
Prepared Statement of Elliott Adams
Upon leaving the Constitutional Convention of 1787--
Ben Franklin was asked: ``Well, Doctor, what have we got--a
Republic or a Monarchy?''
Dr. Franklin replied: ``A Republic, if you can keep it.''
Ladies and Gentlemen in that a sentence is the essence of what this
hearing is about today--``if you can keep it.'' Right now hanging in
the balance, in one pan is our republic and all the principles that
made the United State a shining beacon of freedom around the world and
in the other pan is a totalitarian state and all the despotism that it
brings.
In the armed forces we took an oath, the same oath congressmen
take, ``to support and defend the Constitution of the United States
against all enemies, foreign and domestic.'' Now as veterans we still
take oath very seriously. Which is why we are here on the Hill some of
us gray haired and getting long in the tooth, but still defending the
Constitution.
Veterans For Peace is comprised of veterans from every war our
country has fought back to and including World War II. VFP has a long
history of important work. VFP is 23 years old, has over 120 chapters
spread around the country, has an NGO seat in the UN, and a small share
in the 1997 Nobel Peace Prize. Our members help 85,000 Iraqis get safe
drinking water, gave 54,000 free phone cards to patients in 148 VA
hospitals, help Agent Orange victims both US soldiers and Vietnamese
civilians, aided Hurricane Katrina victims, supports schools and
orphanages in Afghanistan & Vietnam, have worked extensively in Central
American for freedom and fair elections, bought appropriate body armor
for soldiers in Iraq when the government could not supply it, and
organized blood drives.
But many of our members have set aside all these other important
works to defend our democracy by calling for impeachment.
There can be no question about whether criminal offenses have been
committed by officials of this administration. The only question now
is, what, if anything, you ladies and gentlemen are going to do about
it.
There are those who say, ``oh heck, there are only a few months
left, just let them finish their terms, and then we can get on with our
lives like waking from a bad dream.'' But we cannot afford that luxury.
This is not about impeaching a few administration officials. This is
about maintaining the structure of our government. This is about
protecting the Geneva Conventions, the Nuremberg Principles, and the
Law of Land Warfare. This is about defending the rights and freedoms of
the US citizens.
This brings to mind the words of Ben Franklin ``Any society that
would give up a little liberty to gain a little security will deserve
neither and lose both.''
The officials of this administration have usurped power from
congress, stolen the rights of the people, and by ignoring it Congress
reinforces it and joins it. All future presidents of both parties will
start where this presidency leaves off. For Congress to continue to
allow the usurpation of power and the flagrant violations of the
Constitution to go unanswered is in itself be a violation of law.
While there is no need for re-enumerating the long lists of
impeachable offenses committed by officials of this administration, I
can not escape the visceral pain and indignation that we, who served
our country in combat, feel when we find our own government condoning
and/or committing war crimes and/or crimes against humanity.
I cannot believe that members of our government are trying to
obscure and distort what is torture and what is not torture. What is
human has not changed in the past 8 years. What is torture has not
changed in the past 8 year. The saddest thing to me about torture
discussion is that it obscures the central point that, except in the
movies, torture does not work. We were taught do not torture, not only
because it is illegal, but especially because it ruins the integrity of
the information you gather. Simply put, any victim of torture will
eventually just try to say what ever it is the torturer wants them to
say. Put another way it is the very power of torture that keeps it from
giving us the truth.
As Congressmen you have available to you some of the greatest
constitutional minds. But I learned in war that sometimes too much
information can make it hard to see the essence. With your permission I
will highlight a few salient points.
Without impeachment, requests and subpoenas and contempt citations
are ignored (Congress has been mocked by an administration that has
repeated ignored its subpoenas with impunity).
With impeachment, witnesses are freer to speak, ``executive
privilege'' is gone, and subpoenas must be complied with.
The Constitution discusses impeachment in six places and never once
mentions other remedies like censure, criminal referrals, legislative
``solutions'', or even prosecution (except to indicate it can occur
separate from impeachment). The drafters of the constitution
incorporated impeachment as the simple and proper process for dealing
with all high crimes and even misdemeanors.
Without impeachment there looms the specter of an audacious broad
sweeping self-serving pardon, even one that includes, a
constitutionally dubious, but not explicitly forbidden, self-pardon!
Which would further erode Congress' place in the balance of power
rendering it virtually irrelevant. The only thing a president cannot
pardon is an impeachment and a conviction in the Senate. But once
removed from office, he can pardon nobody of anything.
For us veterans, when our time came, we volunteered our very lives
for this republic; for the principle of freedom for all, for equal
opportunity for all, to defend the Constitution and the principles
embodied in the Declaration of Independence, to guarantee the
opportunity for life, liberty, and the pursuit of happiness. Now it is
your time, and I hear there is not enough time! Now is your time, and I
hear it will not be good for one party or the other party! Now is your
time, and I hear there is not enough political will around you!
When our founding fathers signed the Declaration of Independence
they were not worried about political will, how much time there was, or
about any parties' political future, they were just worried they were
going to be hanged by the neck. But they did what was right. Now it is
your time
Einstein said--``The world is a dangerous place, not because of
those who do evil, but because of those who look on and do nothing.''
Mr. Conyers. I thank you all, and I am going to ask each
one of you--no. I am going to ask each one of you to just make
a brief observation about what you have heard your fellow
panelists comment on that you might want to make a remark
about, or anything else you would like to add to your own
testimony. We will begin with Congresswoman Elizabeth Holtzman.
Ms. Holtzman. Thank you, Mr. Chairman. I will try to be
brief.
Sorry, I do have a copy--for other Members of the Committee
who want more depth, I do recommend my book on the subject
called The Impeachment of George W. Bush. It is a little bit
out of date, but it has got a lot of information in it.
I think the question for this Committee is what is to be
done now and what can be done now. Prosecution is unrealistic.
The Administration will never prosecute itself. Truth
commissions, the Administration will stonewall them as they
have so many Committees of Congress. So what is the realistic
remedy?
The only remedy, and that is the one the Framers gave to
the Congress of the United States, the House and the Senate, is
the remedy of impeachment, because no one can interfere with
it. The critically important thing about impeachment is that
there is no executive privilege in impeachment. That becomes an
impeachable offense. You ask the President to tell you what he
knew and when he knew it. You ask the President or the Vice
President to give you the contents of the FBI statement; they
don't do that, that becomes an impeachable offense. You can ask
them to provide the information under oath.
You may not be able to finish the task, but you certainly
can start the task, which will send an important signal not
just to this President, but to future Presidents, because I
completely agree with Congressman Barr that this can only be a
floor, and God help us if that is the case--I mean for the
country, the Constitution and our democracy.
Mr. Conyers. Congressman Bob Barr.
Mr. Barr. Thank you again, Mr. Chairman.
Many years ago some of us older folks like yourself and
myself recall we had a nuclear clock that would count down how
close we were to nuclear Armageddon. And then back in the
1990's, I recall the national debt clock that would count up
the amount over time of the national debt.
Mr. Chairman, what we are facing now is a constitutional
clock, and it is counting down what remains of the Constitution
of this great land. If I might ask to be introduced into the
record the disappearing Bill of Rights. This is the Bill of
Rights that we, as the Members of the Judiciary Committee, know
it as adopted in 1791. This is what it is fast becoming. And I
quote, ``the right of the people to be secure in their persons,
houses, papers and effects shall be delegated to the United
States.'' If I might introduce that into the record.
Mr. Conyers. Without objection, so ordered into the record.
[The information referred to follows:]
Mr. Barr. We have heard, even though this is not, as the
Chairman correctly points out, an impeachment inquiry, this
Committee has the awesome responsibility to decide whether or
not at some point in time to conduct such a momentous inquiry.
It is not a responsibility of myself, now as a private citizen.
But if, in fact, the decision before this Committee and the
American people is constitutional inquiry or constitutional
silence, then by God I choose constitutional inquiry.
Thank you, Mr. Chairman.
Mr. Conyers. Mayor Rocky Anderson.
Mr. Anderson. Thank you very much.
Representative Pence and Professor Presser made a comment
upon which all of the rest of their following comments was
based; that is, that impeachment is to be limited only to those
instances where the person being impeached exercised his or her
own personal interest above that of the Nation. That is
atrocious scholarship. It does not reflect what has happened in
history. It does not reflect what the Founders had to say or
the comments made during the ratification convention regarding
impeachment.
Ed Firmage, who is coauthor of To Chain the Dog of War,
still the seminal book on the war powers, wrote an article in
1973, a Law Review article, about substantive law of
impeachment. There he noted that clearly charges of
constitutional violations--and here there certainly have been
many discussed--and gross abuses of power for illegitimate
purposes should be included as impeachable offenses regardless
of the offender's office.
And then Professor Firmage goes on to cite this Committee,
the Judiciary Committee, a statement in 1926 where the
Judiciary Committee noted that the better sustained and modern
view is that the provision for impeachment in the Constitution
applies not only to high crimes and misdemeanors as those words
were understood at common law, but also acts which are not
defined as criminal and made subject to indictment, but also to
those which affect the public welfare. Thus an official may be
impeached for offenses of a political character and for gross
betrayal of public interest; also for abuses of betrayal of
trust, for inexcusable negligence of duty, for the tyrannical
abuse of power, or, as one writer puts it, for a breach of
official duties. That has been established beyond any doubt.
And I would add just one thing in terms of the
misrepresentations. I would say fraud committed by--we can't
name anybody by name here, so I would say by the Administration
or a high-ranking official of the Administration, and that is
when this Congress and the American people were told about the
security risks to this country posed by Iraq and by the case
for war, we were only told one part of the story. We were not
told, for instance, besides some of the reports that were noted
before, about the dissents by the intelligence agency within
the State Department and by the Department of Energy, their
statements in the October National Intelligence Estimate that
said there is nothing to back this up about these aluminum
tubes being used to help Iraq's supposed nuclear initiative.
And there certainly is nothing to this claim about Iraq trying
to buy uranium from Niger.
It was right there in the National Intelligence Estimate,
the President--excuse me, high-ranking members of the
Administration, as they were telling we the American people and
you, the Congress, just the opposite, failed to disclose those
dissenting opinions from the State Department and the
Department of Energy. That constitutes a fraud which helped
lead this country to this disaster in Iraq.
Mr. Conyers. Professor Stephen Presser.
Mr. Presser. I will try to be brief, Mr. Chairman. And I
want to say I really am grateful that you are conducting these
hearings. Socrates said the unexamined life isn't worth living,
and I think it will be inevitable, the Constitution requires
it, that each branch of the government carefully guard its
prerogatives and carefully make sure that the other branches
aren't exceeding theirs. That is the undertaking that you have
made. I think that is laudable.
At the same time, though, I think Professor Rabkin got some
things that he said correct. The real question here is is the
Administration proceeding in good faith, or is it, as some have
suggested, proceeding on a fraudulent basis for God knows what
nefarious motives?
I don't think that there is evidence of those kind of
motives, and I think in particular the Minority report from
this Committee with regard to the contempt proceedings against
Mr. Bolten and Ms. Miers make pretty clear that this
Administration has cooperated with this Committee to what, I
think, is a fairly great extent. So really what you are looking
for--and I stick by the definition of impeachable offenses that
Mr. Pence gave earlier and that I have tried to develop. What
you are looking for is an absence of good faith, and I am not
sure you are going to find it.
I think, as Mr. Smith said a little bit earlier, this
Administration has done the best it could in a difficult set of
circumstances, and I don't think it gives rise to impeachable
offense.
Mr. Conyers. Chairman Bruce Fein.
Mr. Fein. You have elevated me without even an election.
Mr. Conyers. But it is your organization.
Mr. Fein. I think the title of this hearing speaks volumes
about our misconception of the United States, its executive
power constitutional limitations. But as Barbara Jordan said, I
remember, many years ago in the impeachment proceedings of
Richard Nixon, the executive has no power that we don't give
it. ``We, the people'' is the beginning of the Constitution of
the United States. It is not whether there are limits on the
executive power, it is whether we have given the executive
power to do what he is doing. That is a critical element of
thinking properly about our Constitution.
Now, as said by a previous speaker that all Presidents have
flouted law during wartime, but I think, number one, it is
incorrect as an historical matter, but, number two, this
particular war is different than all others because it is
permanent, it will never end. The definition of an end is when
there will never be anyone who threatens an American with a
terrorist incident in any way in the Milky Way. No one has even
conceived of a benchmark that says the war is over. So this is
permanent war, exactly what James Madison said was inconsistent
with freedom.
And with regard to Presidents who spied, it is certainly
true that they spied without warrants and had abuses. That is
what led to the Foreign Intelligence Surveillance Act,
precisely what Liz Holtzman explained.
It is one thing for the President to act when there is no
express congressional prohibition. It is quite another to say,
we didn't care what Congress says, the law is irrelevant to me,
I can act on my own initiative.
The last thing I would like to say is that with regard to
the necessity of impeachment, it was Robert Jackson, our
prosecutor at Nuremberg, who said, if you have a principle, a
precedent, that goes unrebuked, and it is an abuse, it will lie
around like a loaded weapon ready to be used by any future
incumbent who establishes an urgent need.
If this President's actions and claims of monarchical
power--actually supermonarchical, because if you examine our
Declaration of Independence, the indictment against King
George, III, this President has claimed far more power than
King George, III. But if we do not rebuke these powers, they
then become precedents that will lie around like loaded
weapons, a sword of Damocles over us forever.
Then there was--it also mentioned previously about
Caligula, and while this President shouldn't be at all
associated with that particular emperor--you remember one of
his infamies, that he placed the laws very high on the walls so
that no one could see them, and then he could trap them into
violations. But we have had testimony before this Congress,
Senator Feingold's office, that shows that this Administration
promulgates Executive Orders, revokes them in secrecy, and then
claims they are classified so we don't know whether they are in
existence or not. That really betters the instruction of
Caligula.
Last, I won't go on further, I do have a book called
Constitutional Peril being published next month, and if Liz can
promote her book, I think I can follow. Thank you.
Well, I didn't have a copy of it to hold up. I am so sorry.
Attorney Vincent Bugliosi?
Mr. Bugliosi. Yes, sir. To summarize what I believe Mr.
Presser said, he apparently feels that President Clinton,
having consensual sexual relations outside of marriage and
lying about it, is worse than the Bush administration taking
this Nation to war on a terrible lie, a war that has caused
incalculable death, horror and suffering.
And I would ask Mr. Presser, what previously recognized
form of logic would allow such a conclusion?
I would like to give you words from Mr. Bush's own mouth
that I think are relevant to this proceeding. January 31st,
2003, less than 2 months before Bush ordered the invasion of
Iraq, on the rationale that Hussein was an imminent threat to
the security of this country so we had to strike first in self-
defense, Bush and British Prime Minister Tony Blair met in the
Oval Office with six of their top aides, including Blair's
chief foreign policy advisor, David Manning. After the meeting,
Manning prepared a 5-page memo stamped, ``Extremely
Sensitive,'' summarizing what was said at the meeting.'' He
wrote that George Bush--not Blair now--George Bush was so
worried about the failure of U.N. inspectors to find weapons of
mass destruction in Iraq that he talked about three possible
ways to, quote, ``provoke a confrontation,'' unquote, with
Hussein, one of which was to, quote--this is quoting George
Bush--quote, ``fly U-2 reconnaissance aircraft over Iraq
painted in United Nations colors, and if Hussein fired on
them,'' Bush said, ``he would be in violation'' of U.N.
resolutions, and this would justify our going to war.
So Bush is telling the American people, telling the world
that Hussein is an imminent threat to the security of this
country, but behind closed doors, George Bush was talking about
how to provoke Hussein into a war.
Now, Chairman, may I draw an inference from this? If George
Bush honestly believed that Hussein was an imminent threat to
the security of this country, which is the main reason he gave
the American people for going to war, the thought--the
thought--of provoking Hussein into a war, by definition, would
never, ever, ever have entered his mind.
And I say this, that by taking this Nation to war on a lie,
all of the killings of American soldiers in Iraq became
unlawful killings and, therefore, murder.
[Audience disruption.]
Mr. Conyers. Okay, now.
There are Members urging me to take more action than merely
reminding our audience.
Professor Rabkin----
[Audience disruption.]
Mr. Conyers. All right, then. Sheehan, you are out. Yeah,
goodbye.
Professor Jeremy Rabkin?
Mr. Rabkin. I wasn't moved by having people repeat their
emotional statements with more emotion, and I don't think it
will be useful for me to say, ``Calm down,'' with more emotion.
It won't get people to calm down. Besides that, I am not
selling a book. So I will pass.
Mr. Conyers. Thank you.
Mr. Schwarz. So you yield all the time to me. [Laughter.]
Actually, I thought Professor Rabkin usefully called our
attention to history, but I would draw somewhat different
lessons from the history.
Everything up to the time of the Cold War that was done by
Presidents in time of crisis was known. And, in the case of
Lincoln, what he did, he said to the Congress, you know, ``You
may disapprove of what I have done. If you do, please criticize
me. But I would like you to ratify what I have done.'' And they
did ratify what he did.
Then came along the Cold War, and we began to have
excessive secrecy. And the great lesson that the Church
Committee learned and that we are learning again today is, if
you have secrecy and you have a lack of oversight, you are
bound to have two things: one, abuse; but even more
importantly, you are likely to have mistakes. Because the great
lesson of James Madison in the 51st Federalist, where he said,
men--we say now men and women--are not angels, the great lesson
was, because we are not angels, the Government, in his words,
must be obliged to control itself. That is what checks and
balances mean; that is what oversight means.
Now, the other thing that is unique about the current
Administration is that, for the first time in American history,
the Administration takes the position, first voiced by the Vice
President when he was a Congressman 20 years ago and he
dissented from the Iran-Contra report, the Administration takes
the position that, like the British monarchs in the 17th
century, the President has the right to break the law. If he
believes that the law gets in the way of what he thinks are
national security objectives, he can break the law, and he can
do so secretly.
Now, that is an enormously dangerous loaded gun, to pick up
on that expression, that lies, unless it is squashed, that lies
for future Presidents to take advantage of, future Presidents
of either party.
This is totally unique. Richard Nixon, only when he left
office did he tell first the Church Committee in a rather
obscure affidavit and then David Frost in that famous
television interview that, in his words, ``When the President
does it, that means it's not illegal.''
But we are now in a position where the OLC's position still
is that the President can break the law if he thinks there is a
need to do it, and can do so secretly. And that's something
that every American from either party should say is a dangerous
doctrine that needs to be squashed, disagreed with, exposed and
never accepted by anybody in this Government or by the American
people.
Mr. Conyers. President of Veterans for Peace, Elliott
Adams.
Mr. Adams. I will follow the model of Rabkin here. But I
would like to--since everybody else promoted their book, I
would like to promote my book, but I haven't written it yet.
[Laughter.]
Mr. Conyers. I can hardly wait.
I thank all of the witnesses. You have been extraordinarily
cooperative.
We will accept into the record any additional comments,
documents or enlightening paperwork that you would like to have
go into the record.
Thank you all very, very much.
And the Chair now turns to the Ranking Member, who has
patiently been waiting for his turn. We recognize him for any
questions to any of the panel.
Mr. Smith. Thank you, Mr. Chairman.
The witnesses have not only been unusually cooperative,
they have been unusually voluble. And I have to say, Mr.
Chairman, I do believe you set the record today, with eliciting
22 minutes' worth of answers under the 5-minute rule. And I
hope I don't break that record myself.
Mr. Chairman, I am not altogether sure that the witnesses
get your message about this not being an impeachment hearing.
By my account, they have used the word ``impeachment'' at least
30 times, and I think euphemisms amount to at least three times
that many. Nevertheless, a lot of important subjects have been
brought up.
The first thing I want to do is to thank Professor Presser
and Professor Rabkin. If you could move to a mike, I am going
to direct some questions toward you all in just a minute. I
want to thank you all for making a big effort to be here today,
which I know is at some personal inconvenience but is much
appreciated as well.
Mr. Presser, very quickly, Mr. Bugliosi seemed to have
attacked you personally a while ago, and I didn't know if you
wanted to respond or not.
Mr. Presser. Well, I thank you for the opportunity.
I suppose it is not the right thing to do to relitigate the
Clinton impeachment hearings, but Mr. Bugliosi said, I think
twice, that they were all about lying about sex.
They weren't. More than half of this House believed that
they were about obstruction of justice and tampering with
witnesses and doing other acts that seemed to suggest no regard
to the President's obligation to take care that the laws be
faithfully executed. That is what I thought the Clinton
impeachment was all about, not lying about sex.
But that is over now, and we can move on.
Mr. Smith. Okay.
Professor Presser, then, let me ask a couple of other
questions. First of all, have you heard any credible allegation
today that you think amounts to any kind of an impeachable
offense?
Mr. Presser. No.
Mr. Smith. A few minutes ago, you said that you thought the
real problem was--or suggested that the real problem was just a
difference of opinion, a difference of policy, and you thought
that the same legitimate actions taken by this President had
been taken by any other President.
So I assume that you don't think there is any evidence of
misconduct in this Administration.
Mr. Presser. That is my view. I think the comments about
what other Presidents have done was probably from Professor
Rabkin. But I think the answer to your question is still, I
haven't seen acts that would rise to the level of any
impeachable offense.
Mr. Smith. Professor Rabkin, now that you are at a mike,
you have regretted strongly the tone of the debate that
surrounds this particular subject. If you look beneath the
anger and the hatred and the bitterness, do you see any
impeachable offenses? And sort of a secondary question: What
accounts for that--that is, the tone?
Mr. Rabkin. Let me start with the first question, is there
something impeachable? If people believed that the President
knowingly, deliberately got us into a war for reasons
completely unrelated to national security and he did it, I
don't know, to enrich oil companies--I really have not been
able to understand what people were alluding to, but they seem
to be suggesting that the actual reasons for going into Iraq
were so completely removed from national security that he
wasn't just engaged in constructing an argument someone might
disagree with, but he was totally misrepresenting what were the
real reasons.
If that were true, of course that would be impeachable. You
absolutely need to defend the country against a chief executive
who would wantonly take the country into war for illicit
purposes, sure. But nobody has tried to explain what that
conspiracy theory is; it is just alluded to, as if aleady well
understood.
Now, to the second thing, which is why are people so
bitter, which I think has something to do with why they even
find it plausible that such a charge is worth investigating,
which just, to me, just seems so demented, really--I mean, you
have to believe not only that the President is a Shakespearean
villain, right, a sort of Iago, just pure evil. You have to
believe not only that, but you have to believe that all through
the White House there are people saying. ``I think I will just
cover it up, I think I just won't let anyone know this,'' and
that seems, to me, just unbelievable.
So I think if people are open to this view, they must be
extremely bitter, I mean, the people making these charges. And
why is that? I will just give you one thing that is worth
reminding ourselves of, which is that the country has been
closely divided for a long time, and that tends to build up,
you know, a sense of frustration and sometimes rage.
And here we are now, on the eve of what seems likely to be
the third election in a row which is really, really close. I am
not criticizing anyone for that; I'm just reminding people. In
a situation like that, tempers flare, people get a little bit
overwrought. And I think some of what we have heard here today
was just overwrought.
Mr. Smith. Mr. Chairman, I have one last question that I
would like to direct both to Professor Presser and to Professor
Rabkin.
And it is this: If we were to use the charges that we have
heard today, the accusations that we have heard today as a
standard for an impeachable offense, what other Presidents
would also be guilty of impeachable offenses?
Now, this would be a good question to ask in your classes,
I realize, and allow at least an hour to respond, because it
seems to me you have to start with the first President, George
Washington, Thomas Jefferson, all wartime Presidents, including
Abraham Lincoln and all the wartime Presidents of the last
century and so forth.
But I would like for you to take your time and tell me what
Presidents you feel the accusations today would apply to, if
they were credible accusations of impeachable offenses. And,
Professor Presser, start with you, and we will end with
Professor Rabkin.
Mr. Presser. I am probably going to be a little briefer
than you would like. I mean, certainly you'd have to add
Franklin Roosevelt to the list because there are allegations
that he wanted to get us into World War II. There may be other
Presidents.
But the point I think you made in your opening statement,
and that is, the House of Representatives has to be very, very
careful when it comes to attempts to criminalize political
decisions. And I think that is the real thing that you have to
watch out for.
And I think war is a matter of high politics. And I think
the Constitution gives both the House and the President
considerable discretion in these areas. And I think you have to
tread with great care when you think about them.
Mr. Smith. Okay. Thank you, Professor.
Professor Rabkin?
Mr. Rabkin. Let me just give three examples that are worth
reminding ourselves about.
In the Spanish-American War, President McKinley asked for a
declaration of war on the grounds that the Spanish had blown up
the Battleship Maine. And we discovered much later that,
actually, they didn't blow up the Battleship Maine. It was an
accident; there was a faulty boiler. Did President McKinley
know this? I don't believe so, but he didn't pause too closely
to have a close investigation of this.
In the Second World War, President Roosevelt was really
goading the Japanese. I mean, he imposed severe restrictions on
their access to oil. He was really goading them to attack. And
then he didn't take precautions that the Chief of Naval
Operations urged on him, to move the fleet away from Hawaii
where it would be exposed to attack. I do not believe he meant
to have the fleet sunk.
But it is good to remind people--I see Congressman Nadler
smiling----
Mr. Nadler. Shaking my head.
Mr. Rabkin. Well, a lot of crazy people--you may know
this--a lot of crazy people, not in Manhattan but elsewhere,
said Roosevelt deliberately betrayed the country. Now, I think
that was crazy, but there was a certain plausible basis for
saying that if you were prepared to believe that a President of
the United States could behave in such an outrageous way, which
I am not.
But I am just saying, if you take this standard of there is
something on the surface that looks suspicious and it ended
badly, and then say, ``A-ha, let's go,'' there are a lot of
Presidents who you could ask questions about.
And let me just give a third example quickly--Truman in
1950. Truman said, this is not just a dispute between North
Korea and South Korea; this is obviously communist aggression,
this was obviously planned in the Kremlin. And that was
entirely plausible. He probably did believe it. We know now
from records that we found, actually, no, North Korea did this
on its own, and Stalin had to catch up with it his Korean
client.
So we have had a number of Presidents in important
situations say things which turned out to be false and a lot of
people died. Sorry.
Mr. Smith. Would you put the Vietnam War-era President----
Mr. Rabkin. Yes, there is another example. A lot of
representations by President Johnson turned out to be not quite
the way he represented them--I am not accusing him of
deliberately deceiving the country. But the Gulf of Tonkin
resolution, there are substantial disputes now about what
actually happened there, and it doesn't seem to be exactly how
LBJ represented it to Congress at the time.
So, yes, I think that is a very helpful question. All of us
should remind ourselves that Presidents have to act in
situations where often there is a great deal of uncertainty.
And to construe everything in the worst possible light and then
say, ``Someone has to be punished; let's start with the
President,'' this makes it impossible for future Presidents to
think calmly about what they need to do on the basis of limited
information.
Mr. Smith. Okay. Thank you, Professor Rabkin.
Thank you, Mr. Chairman.
Mr. Conyers. Jerry Nadler?
Mr. Nadler. Thank you, Mr. Chairman.
Let me start with a couple of observations.
First, I think what Professor Presser and Professor Rabkin
said are totally wrong. Impeachment has nothing to do with
personal benefit, nothing to do with motives or good faith.
That is not the issue of impeachment. The issue of impeachment
is, did the President commit an abuse of power that would tend
to destroy liberty or flout the structure and function of
government, in particular by reducing or traducing a separation
of powers, which is the basic protection of our liberty. And
that is what we look to, and that is what the report of the
House Judiciary Committee in 1974 said, and that is what we
look to at any time.
Secondly, let me just comment on Mr. Rabkin. If the
President lied to Congress--and I think there is good evidence
that he did--if the President lied to Congress in order to
motivate Congress to go into war, he may have had a motive
thinking that it was in the national security interest of the
United States to go to war for some other reason which would
not be persuasive to Congress, and therefore he lied to
Congress, that would be impeachable.
Mr. Rabkin. Maybe.
Mr. Nadler. Because it is not up to him to decide what
phony excuse would give Congress to do what he believed in good
faith was the right thing to do. Because that is up to Congress
to exercise its powers.
Thirdly, we are in a very, very dangerous situation now in
terms of our liberty. We have a President and an Administration
that claims the power--I don't believe the Supreme Court is
going to let him get away with it, but that holds by one vote--
to point their finger at any person in this room and say, ``You
are an enemy combatant because I say so. And because I say so,
we are going to throw you in jail forever, with no hearing, no
due process, no anything until the war on terror is over,'' six
or seven generations from now when some President declares it
over. No executive in English-speaking countries since Magna
Carta has claimed such a power. So far, they have been getting
away with it. It is the foundation for future tyranny.
And finally, the way they have tied us in knots, the
Administration in effect says, we can--you know, they don't put
it in these terms, but they have asserted the power to kidnap
someone off the streets, send them to another country to be
tortured, or torture them themselves, or do any other illegal
thing. And when you say, ``Well, that is a crime; prosecute
it,'' they don't prosecute. And when you bring a lawsuit, they
say, ``Wait, you can't bring a lawsuit. The case must be
dismissed because it violates the state secrets doctrine.'' So
there is no way, no remedy to any misconduct by the executive
branch of Government, because they won't prosecute at law. They
claim executive privilege; they won't tell Congress about it.
And anybody brings a lawsuit, they claim state secrets, so you
can't even get it into court. So there is no remedy to any
abuse of power or any action whatsoever by the executive. We
have to figure out a way around all this.
Now, I have been quoted in the past as saying that I did
not think impeachment was a practical remedy, though God knows
it is deserving.
My first question to Mr. Fein, because I heard in your
testimony I believe you said that, in impeachment inquiry,
executive privilege does not apply. I think it was----
Mr. Fein. That is correct. And Liz Holtzman was right
there.
Mr. Nadler. I think you said executive privilege does not
apply. Now, my understanding--and correct me if I am wrong,
please--is that Congress has taken that position, but the
executive branch has never agreed to it. And if, in fact, the
Administration has gone so far beyond any previous
interpretation of executive privilege as to say to Karl Rove
and other people, ``Don't show up, just ignore the subpoenas,''
and to the U.S. attorney, ``Never mind the mandatory language
of the statute, don't enforce the contempt citation,'' how
would we, were there to be an impeachment inquiry, effectuate
executive privilege against the same sort of conduct?
Mr. Fein. Simple. You do what was done in the Nixon
inquiry. You vote on Articles of Impeachment saying it is an
impeachable offense to refuse to comply with a request for
information from the House.
Mr. Nadler. So, in other words, what you are saying is they
could have the same far-reaching claim of executive privilege
in an impeachment inquiry as they could in any other Committee
hearing, but the remedy is to vote on impeachment.
Mr. Fein. And then they are out of office, yes, sir.
Mr. Nadler. In other words, holding the impeachment inquiry
doesn't get around the executive privilege problem. But voting
the impeachment and exactly removing them from office is the
only thing that would?
Mr. Fein. That worked with Nixon.
Mr. Nadler. And that would work with a lot of other
problems.
Let me ask you a different question. Let me ask, I think it
should be either you or--well, Professor Schwarz, you expressed
hesitation at the impracticality of impeachment. Now, the first
President Bush pardoned senior members of his Cabinet who were
involved in the Iran-Contra scandal. It foreclosed any
possibility of pursuing those individuals for their activities,
no matter how lawless it may have turned out to have been. It
also foreclosed any option of coercing their testimony as to
the possible culpability of the President in that.
Now we are beginning to see suggestions that this President
Bush had pardoned people involved in illegal torture, illegal
wiretapping, outing a CIA agent, and anything else.
Does Congress need to explore changes to the pardon clause
of the Constitution to prevent it from being abused by a
President who may wish to prevent scrutiny of illegal acts of
his own Administration or of himself personally?
Mr. Schwarz. You could not effect the pardon power, which
is one of the very few things----
Mr. Nadler. I said, should we look at a constitutionality
amendment?
Mr. Schwarz. That is exclusively in the hands of the
President unless you amended the Constitution.
Mr. Nadler. Well, my question is, should we look at
amending the Constitution in that respect?
Mr. Schwarz. I think if you have a justification for it
being abused, that is fair to look at. That is definitely fair
to look at.
Mr. Fein. Congressman, I think there is a statutory
procedure that would deter abuses of the pardon power. That is,
if you--and I think this would be constitutional--if the
President was to use the pardon power to pardon people of his
Administration for alleged crimes that involved abuses, it
would have to be 6 months, 8 months before his term ends, so he
would clearly suffer a political penalty.
Mr. Nadler. Why couldn't it be the day before his term
ends?
Mr. Fein. Well, the approach would be the statute would try
to regulate, not prohibit use of the pardon power----
Mr. Nadler. Oh, you're saying----
Mr. Fein [continuing]. To say that you make him exercise
the power sufficiently before his term ends, so he's got to pay
a political price, so he can't go like Marc Rich, out the door,
and pardon someone and then escape any political retribution.
If you forced him to make that decision 6, 7, 8 months before
he left, then he needs to confront the possibility----
Mr. Nadler. Well, let me ask Mr. Schwartz and Mr. Fein,
would a bill, not a constitutional amendment, a bill to say
that the President couldn't pardon any member of his own
Administration after 6 months or whatever before the end of his
Administration, would that be constitutional as a limitation of
the pardon power?
Mr. Schwarz. It would be a litigable matter, I would think.
Mr. Fein. Congressman, the authority comes from article 1,
section 8, clause 18; it is the necessary and proper clause.
And what it says is that Congress has authority to enact all
laws necessary and proper for the execution of any power under
the United States or any department or officer thereof. That
is, it applies to the execution of executive power, like the
pardon power, like any other power. This isn't an attempt to
nullify the President's ability to pardon, but make certain
that----
Mr. Nadler. By that theory, could Congress pass a bill
saying that the President--a bill, not a constitutional
amendment--saying that the President could not pardon anyone in
his Administration for alleged crimes committed pursuant to
Administration policy, for example?
Mr. Fein. Well, I think that goes too far. Of course, all
Constitution law becomes matters of degree when you hit tough
cases. But there you are eliminating the President's discretion
to exercise pardon at all for this particular category. And the
pardon power is broad enough, in terms of its scope, to protect
people against retaliation from somebody who the President
thinks has been unjustly hounded. I doubt that would survive.
But that is different than just a time limitation.
Mr. Nadler. Could I have one more question, Mr. Chairman?
Mr. Conyers. Why, of course.
Mr. Nadler. Thank you.
I would like to ask former Congresswoman Holtzman:
Obviously, we know the Framers of the Constitution established
impeachment as one of the checks on the President under the
judiciary. Nonetheless, no President has ever been impeached
and removed from office.
Part of this is because a successful impeachment requires
the support of Members of the President's party, which has
proved virtually unattainable. In the case of the one President
who would have been removed had he not resigned, President
Nixon, it took the smoking-gun tape to push Members of his
party over the edge to the point where impeachment became a
real possibility.
As a Member of the Committee during the impeachment of
President Nixon, how would you approach impeachment in the
highly charged, partisan environment we have today so that
impeachment could be a viable option?
Ms. Holtzman. Thank you, Congressman Nadler. I think that
is an important question. I think the reason that the
impeachment process worked during the Nixon impeachment was
because it was bipartisan and because the American people had
confidence that when both parties were involved that, even
though they didn't understand every fact, the House was
proceeding in a proper way.
It is not correct to say that without the smoking-gun tape,
impeachment would not have happened. You have to remember that
prior to the smoking-gun tape, three Articles of Impeachment
were voted with substantial Republican or bipartisan support,
including an article on obstruction of justice, including an
article on abuse of power, and including an article on the
President's refusal to cooperate with the impeachment inquiry.
When we started the impeachment process, it was not done by
Congress. It was done because of the Saturday Night Massacre
and the resulting outrage of the American people. That is what
triggered the Congress to act. When we started, nobody knew
what the head count was going to be on the House Judiciary
Committee. It was partisan; you had Republicans who stood their
side and Democrats who stood their side. But nobody had been in
this kind of proceeding for 100 years, and so people were
feeling their way.
How did it work? How did we bring Republicans and Democrats
together? Well, partly, it was--and I think the Chair will
remember this--the fact that Congressman Rodino understood that
the process had to be completely fair, so the Democrats picked
for the Committee counsel for impeachment a Republican and the
Republicans picked a Republican. So that was one way of saying,
look, we are not going to do this on a partisan way. That was a
way of bringing people along.
There was no poll that was taken. There was no head count
that was taken. We were in totally unchartered waters. And what
we tried to do was to do it right. And, ultimately, the facts
and the fairness of the process persuaded people on both sides
of the aisle that this was the right thing to do.
And it wasn't just Republicans. You had Southern Democrats
who had more, if you will, pro-Nixon constituents than some of
the Republicans on the Committee, and they had to come along.
How did you bring people along? By a fair process, by
assuring--fairness to the President, too. The President's
counsel said, ``Well, I want to have one witness.'' We said,
``Take five.'' It was so that there were never issues that got
in the way. That is what helped bring this process together.
I am not saying that there is enough time to do a full-
blown impeachment process. But impeachment inquiry itself,
handled fairly, completely fairly, with the full participation
of the minority, so that no one says this process is out to get
somebody, but that it is a fair process and if Congress uses
the constitutional powers that it has, I think that in an
atmosphere where people are willing to work together and you
are being fair and the evidence is there and you have
constitutional scholars supporting it, I think it can work.
Now, maybe I am a cock-eyed optimist. Nobody would have
thought the impeachment would have worked in 1973, that that
process would have worked. Remember, what we were looking at
was the Andrew Johnson impeachment. That was what was staring
us in the face. And that didn't work because it was partisan.
And the Clinton impeachment didn't work because it was
partisan. But I think good people, working in good faith
together, as we did, can overcome those partisan hurdles and
have to for the good of the country.
Mr. Conyers. Steve King?
Mr. King. Thank you, Mr. Chairman.
I appreciate the nonpartisan remarks from the gentlelady,
former Congresswoman Holtzman, and with regard to the
responsibilities of both sides. And I did watch intently the
impeachment hearings in this Committee in 1998, and I could see
that there was definitely a partisan divide. Now, there were
some things that were irrational and illogical that took place,
as referenced, I think, by Mr. Rabkin.
And it occurs to me that this is the most polarized
Committee on the Hill. It is the most political and the most
polarized, ideologically, of all Committees on the Hill. And I
am trying to imagine a scenario by which we could have a
Democrat President who could be brought before this Committee
with this majority who would be subjected to this kind of
scrutiny, let alone move forward with a vote on impeachment. In
fact, I am trying to imagine if Caligula himself, if he were a
Democrat before this Committee, could be even undergoing some
kind of scrutiny.
And so I appreciate the level of discretion used by the
gentleman from New York when he said, ``if the President lied
to Congress''--a delicate statement.
The reference has been made by Mr. Wexler and others of the
16 words in the President's State of the Union address, January
28, 2003. These 16 words are this: ``The British Government has
learned that Saddam Hussein recently sought significant
quantities of uranium from Africa.'' That is the statement in
question. Now, whether or not it turns out to be true, the
question really is, did the President believe it at the time?
Did the CIA believe it at the time? I have a mountain of
documentation here that says the CIA did believe it at the
time.
But I would ask unanimous consent to introduce this now-
unclassified document into the record that I referenced in my
earlier remarks, Mr. Chairman.
Mr. Conyers. What is it about?
Mr. King. This is a debrief document that was formulated--a
secret document of the CIA's debriefing of Ambassador Joe
Wilson. And it is 8 March, 2002, the date that he testified
that he was debriefed.
Mr. Conyers. Without objection, so ordered.
[The material referred to is available on page 7 of this
hearing.]
Mr. King. Thank you, Mr. Chairman.
And this document says within it, it says, the debriefing
of former Ambassador Joe Wilson, upon his return of his 2-week
trip to Niger, sent there to draw a determination if he could
illuminate on whether the Iraqis were seeking yellow cake
uranium from Niger, and reading from this report, he met with
former Nigerien Prime Minister Ibrahim Mayaki. Mayaki was the
former Foreign Minister from 1996 until 1997.
Mayaki did relate that in, June 1999, a businessman named
Barka, a Nigerien-Algerian businessman, approached him and
insisted that Mayaki met with an Iraqi delegation to discuss,
quote, ``expanding commercial relations,'' closed quote,
between Niger and Iraq. The meeting took place. Mayaki let the
matter drop due to the United Nations sanctions against Iraq
and the fact that he opposed doing business with Iraq. Mayaki
said that he interpreted the phrase ``expanding commercial
relations'' to mean that Iraq wanted to discuss uranium yellow
cake sales.
There is more. It is in the record. I think that should be
something that could cause all of you to put the brakes on and
take a good look at the basis for the conclusion that you have
so easily swept to.
And going further, again, the statement from President
Bush, ``The British Government has learned that Saddam Hussein
recently sought significant quantities of uranium from
Africa.'' I am looking for a hole in that statement.
``Significant'' might be a word that one could look at and say,
well, no, it wasn't a significant effort to seek significant
quantities.
I hold in my hand Middle East Times, dated July 7, 2008.
This document I would ask unanimous consent to introduce into
the record.
Mr. Conyers. Without objection, so ordered.
[The information referred to follows:]
Mr. King. I thank you, Mr. Chairman.
This document is headlined, ``Iraqi Uranium Transferred to
Canada.'' And it says in part, ``At Iraq's request, the U.S.
military recently transferred hundreds of metric tons of yellow
cake uranium from Iraq to Canada in a secret weeks-long
operation, a Pentagon spokesman said Monday.'' Reading further,
``The yellow cake was discovered by U.S. troops after the 2003
U.S. invasion of Iraq at the Tuwaitha Nuclear Research Facility
south of Baghdad and was placed under the control of the
International Atomic Energy Agency. Quantity: 550 metric
tons.'' That is a significant quantity, ladies and gentlemen,
550 metric tons. And it says, ``With the transfer, no yellow
cake was known to be left in Iraq.''
So I think we have concluded now there is no sense in
looking there any longer. We have done a pretty adequate job of
loading 550 tons of yellow cake out of Iraq.
When I look at the statements that are made by leaders and
depositions that have been taken, what do people believe?
September of 2002, Al Gore: ``We know that Saddam has stored
secret supplies of biological and chemical weapons.'' This
similar statement was made--and these are by former Secretary
of State Madeline Albright in February of 2003, she said
``clearly has a lot of weapons of mass destruction''; by the
Chairman of the Select Committee on Intelligence in the Senate,
Jay Rockefeller, October of 2002; a similar statement by the
Chairman of the Armed Services Committee, Senator Carl Levin,
September 2002; Robert Byrd, October 2002. The list goes on. I
turn the page, and I get to Senator Kennedy, September 2002;
and Senator John Kerry, October 2002; Hillary Clinton, October
2002.
But the thing that is really interesting is Chicago Tribune
published, July 27, 2004--and here is a statement: ``There is
not much of a difference between my position and George Bush's
position at this stage,'' Senator Barack Obama.
I would ask unanimous consent to introduce this Tribune
document into the record, Mr. Chairman.
Mr. Conyers. I am a little reluctant to consider this
document, but I will introduce it into the record, of course.
[The information referred to follows:]
Mr. King. And out of deference to the Chairman's, let me
say, genteel nature, I would simply conclude and yield back the
balance of my time. And I thank you.
Mr. Conyers. Bobby Scott?
Mr. Scott. Thank you, Mr. Chairman.
It is interesting that the name of the hearing is
``Executive Power and Its Constitutional Limitations'' or, as
Mr. Fein says, what power does the executive have? And
virtually every Republican Member in the opening statements
said if we are having a hearing discussing constitutional
limitations on power, therefore it must be, by nature, an
impeachment inquiry.
I would like to ask the witnesses what things, kind of,
short of impeachment we may be pursuing. Because if we want to
enforce laws against misleading Congress and getting us into a
war, enforcing the laws against torture or illegal wiretaps, or
corruption in the Department of Justice, do we have to be
talking about impeachment?
We heard, in terms of impeachment, Mr. Rabkin suggests that
the suggestion that we have gotten into a war by misleading
information is ideology, demented, explosive charge. Some of
these, we know as a matter of documented fact that what was
said turned out not to be true.
And I think the comments from Professor Presser have been
commented on by Mr. Anderson and Mr. Fein. And the suggestion
that covering up a sexual affair is impeachable because it had
some personal motivation, whereas misleading us into war,
corruption in the Department of Justice, torture and those kind
of things were irrelevant, I think we have discussed that.
So I guess my question is, is there a limitation on the
ability of the executive to provide false information to
Congress that we rely on that gets us into a war? And if we
don't pursue impeachment, what else could we do if we--how do
we enforce the constitutional limitations on the use of
torture? We have had this Administration essentially just
redefine ``torture'' to permit what everybody else in the world
believes is torture.
And we have had allegations by Republican-appointed
officials who have accused this Administration of firing U.S.
attorneys because they refuse to indict Democrats in time to
affect an upcoming election and suggesting that others may have
kept their jobs because they, in fact, have pursued frivolous
charges. Another said under oath that--or, at least, she did
not deny taking partisan, political considerations into
consideration in hiring Department of Justice personnel in
violation of the law.
In our investigation of these allegations, we have been
faced with witnesses who've refuse to respond to subpoenas,
refuse to testify without immunity; others refuse to cooperate
claiming unprecedented privileges.
So I guess my question is how we can enforce the
limitations on executive power, in light of the situation we
find ourselves in, without using the impeachment inquiry
process.
Mr. Fein?
Mr. Fein. When President Nixon was under investigation by
the special prosecutor and there was a concurrent Senate
Watergate hearing and a House impeachment hearing, there was
very deep examination--I was in the Department of Justice at
the time, and then-Acting Attorney General was Bob Bork, later
a Supreme Court nominee--as to whether you could criminally
prosecute a President in lieu of impeachment.
Well, he remained in office. And it had been highlighted,
in part, because you may recall that Vice President Agnew was
actually prosecuted for tax evasion, and then he resigned
afterwards. He probably would have been impeached if he didn't
resign. But the conclusion was that you cannot criminally
prosecute a President who is incumbent because there is just
one figure who can make executive decisions. You can't have an
acephalous branch, so to speak, unlike the possibility of
prosecuting a Member of Congress or a Supreme Court Justice,
where the institution would continue to function.
But the corollary of that conclusion is that, short of
impeachment, there isn't anything you can do about a President.
And that, in some sense, underscores the political nature of
the decision. It is one that can't be shirked, because there
isn't any other way to get at an abuse of power.
I would just like to make one observation about the idea of
misleading Congress as an impeachable offense. And this is a
quotation from James Iredell. Now, he was appointed by George
Washington to be on the first Supreme Court of the United
States. He was there, if you will, at the creation, to borrow
from Dean Acheson. And he was speaking to the North Carolina
Ratification Convention.
And this is what he said: ``The President must certainly be
punishable for giving false information to the Senate. He is to
regulate all intercourse with foreign powers, and it is his
duty to impart to the Senate every material intelligence he
receives, whether he believes it or not. If it should appear
that he has not given them full information but has concealed
important intelligence which he ought to have communicated and,
by that means, induced them to enter into measures injurious to
their country in which they would not have consented had the
true state of things been disclosed to them, in this case, yes,
isn't that clearly an impeachable offense?''
So the Founding Fathers understood exactly the situation
that has been alleged in this case--not necessarily that
President Bush lied; it is clear he didn't give the full slate
of information to the Congress that was available regarding
weapons of mass destruction, collusion between Saddam and al-
Qaeda or otherwise. And this is, as the Supreme Court has said,
a virtual definitive interpretation of an impeachable offense
because it was made by someone who was there at the time,
participated in the convention and ratification. It is not
something that is concocted after the fact.
Mr. Scott. Mr. Barr and Ms. Holtzman?
Mr. Barr. Thank you.
If I could, with the indulgence of the Chair, respond just
briefly, there are, of course, a number of things the Congress
can do legislatively. We have touched on a number of them
today, with regard to state secrets, signing statements,
executive privilege and so forth.
But I think, in answer to the gentleman's question, at an
absolute minimum, Congress cannot make matters worse, which it
did in passing recently the amendments to the Foreign
Intelligence Surveillance Act, which not only vastly expanded
the power of the executive branch to surveil American citizens
in their own country without cause or without court order, but
gave both retroactive and prospective immunity to companies
that demonstrably, even from what little we know thus far given
the parameters and secrecy practiced by this Administration,
clearly violated the law as well.
And Congress, not this Committee certainly but a majority
of Members of both houses, basically have set the
constitutional clock back considerably by caving in to the
Administration on that just one particular instance where the
executive branch has not abided by the law and not abided by
the very clear intent and wishes of the Congress.
Ms. Holtzman. Congressman, you asked a very important
question, and I completely agree with Mr. Fein. In a way,
Congress can pass all the statutes that it wants, and a
President who doesn't feel bound by the law can ignore them.
That is the problem.
Prosecution--I agree that the precedent that was set with
regard to President Nixon is that a sitting President cannot be
prosecuted.
The Anti-Torture Act, because it carries a death penalty,
has no statute of limitations at all in cases where death
occurs in the course of torturous interrogations. That statute
applies to any U.S. national. I take that to include people at
the highest rungs of the U.S. Government. So anyone who engaged
in torture where death resulted could be prosecuted for the
rest of his or her life under that statute.
The War Crimes Act similarly could apply, but Congress
changed the terms of it and made it retroactively inoperable,
in the Military Commissions Act. If Congress wanted to
rejuvenate that act and make it applicable, it could remove the
inoperability of it, restore it to its full effect. And what
would happen is that people who engaged in cruel and inhuman
conduct--and there is no question that waterboarding, for
example, would fall under that--would be prosecutable, and in
the cases where death resulted, there would be no statute of
limitations, so that threat of prosecution would hang over them
for the rest of their lives. That statute also applies to any
U.S. national. And I take it that applies to people at the
highest as well as lowest rungs of our Government.
That statute was a matter of grave concern to this
Administration. If you read the memorandum that was prepared by
Alberto Gonzalez to the President, it reflects that was one of
the reasons that the suggestion was made that we opt out of the
Geneva Convention.
But aside from prosecution that may be down the road, truth
commission--I am sure there are other remedies that can be
applied--the real remedy for a President who believes that he
is above the law and continues to act on that belief
systematically is impeachment. And there is no running away
from that. That is the problem.
And so the question is, what do we do about it? What does
the Congress do about it? And I think the American people want
to see Congress act.
Mr. Bugliosi. Mr. Chairman, I would like to elaborate on
what Mr. Fein said. I make it very clear in my book that
President Bush has temporary immunity from criminal
prosecution. But the law is very clear that, once he leaves
office, he can be prosecuted for any crimes he committed while
he was in office. The U.S. Constitution provides that. It goes
all the way back to ``The Federalist Papers,'' 1787, Alexander
Hamilton. Once he leaves office, he can be prosecuted for any
crime he committed while he was in office.
When President Nixon resigned in 1974, there was quite a
demand, as you probably know, from many people to prosecute him
for Watergate-related crimes. I think the crimes were
obstruction of justice, wiretapping, subornation or perjury.
And this necessitated, in President Ford's mind, pardoning him.
Now, if he had immunity, there would be no need for Ford to
intervene and pardon President Nixon.
So Bush does not have immunity from prosecution for murder
once he leaves office. And the criminal investigation of
whether he committed murder can commence at this time right
now. And when he leaves office, I guess it is what, January 20,
2009, they can hit the ground running.
But I want to make that very clear. I have never suggested
that he could be prosecuted for murder while he is in office.
Mr. Conyers. Trent Franks?
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I have already expressed my dismay at the
focus of this hearing. But let me just start by saying that it
seems to me that the big so-called issue here is that somehow
the President of the United States either deliberately
falsified information as to the danger that potential
terrorists had for us in Iraq or that he deliberately falsified
their intent. So what I am going to do, rather than give you a
lot of my own words, I am going to read some other people's
words.
Former Vice President Al Gore said, quote, ``Iraq's search
for weapons of mass destruction has proven impossible to deter,
and we should assume that it will continue for as long as
Saddam Hussein is in power.''
Secretary of State Madeline Albright said, ``Iraq has a
very serious problem and clearly has a lot of weapons of mass
destruction.''
Senate Intelligence Committee Chairman Jay Rockefeller
said, ``There is unmistakable evidence that Saddam Hussein is
working aggressively to develop nuclear weapons and will likely
have nuclear weapons capability within the next 5 years.''
Senator Hillary Clinton said, ``In the 4 years since the
inspectors left, intelligence reports show that Saddam Hussein
has worked to rebuild his chemical and biological weapons
stock, his missile delivery capability and his nuclear program.
I voted for the Iraqi resolution,'' she said, ``because I
considered this prospect of a nuclear-armed Saddam Hussein who
can threaten not only his neighbors but the stability of the
region and the world a very, very serious threat to the United
States.''
John Kerry said, ``I will be voting to give the President
of the United States the authority to use force to disarm
Saddam Hussein because I believe that a deadly arsenal of
weapons of mass destruction in his hands are a very grave and
real threat to our security.''
Now, those were the people talking at the time, Mr.
Chairman. Let me also, if I could, just go ahead and give us a
few quotes from the terrorists.
Al Qaeda's al-Zawahiri said, ``The jihad movement is
growing and rising. It reached its peak with the two blessed
raids on New York and Washington. And it is now waging a great
heroic battle in Iraq, Afghanistan, Palestine and even the
crusaders' own home.''
Al-Manar said on BBC, ``Let the entire world hear me: Our
hostility to the great state, America, is absolute. Regardless
of how the world has changed after September 11, death to
America will remain our reverberating and powerful slogan''--
death to America.
Osama bin Laden's chief deputy, al-Zawahiri, said right
after 9/11 took place, in his book, quote--the book is
``Knights Under the Prophet's Banner--''Al Qaeda's most
important strategic short-term goal is to seize control of a
state or part of a state somewhere in the Muslim world.
Confronting the enemies of Islam and launching jihad against
them require a Muslim authority established on Muslim land.
Without achieving this, our actions will means nothing.''
Osama bin Laden himself said, ``The most important and
serious issue today for the world is this third world war. It
is raging in the land of the two rivers, Iraq. The world's
millstone and pillar is in Baghdad, the capital of the
Caliphate.''
Mr. Chairman, if the majority is correct here today, that
winning the struggle against terrorism has nothing to do with
Iraq, then I wish to God they would tell the terrorists,
because they don't seem to understand.
And the bottom line here is that we have focused so much on
these fairy tales that we are missing our primary goal here,
which is to protect the American people and their
constitutional rights.
And I would suggest, Mr. Chairman, if terrorists do have
their way at some point, I hope the majority has some better
explanation than what I have heard today for focusing in this
direction rather than what our primary responsibility is, which
is protecting the American people and their constitutional
rights.
And with that, I would suggest that the greatest failure of
the Administration--and I don't suggest it was their fault,
but, I mean, if there was a failure of the Administration, it
was allowing 9/11 to occur. There is the failure. And this
President tried to respond by doing everything he could to
protect the American people.
And I want to ask Mr. Rabkin, I want to ask you, before I
get a little overwrought here, where do you think that
Presidents fail us more, where are they more impeachable, in
failing to protect our country or in what the President has
done here in doing everything he could, within the bounds of
the Constitution, to protect us from terrorists?
Mr. Rabkin. I wouldn't claim to be an expert on what is or
isn't impeachable. You should ask Professor Presser.
But I remember this, that when President Truman was
deliberating whether to use the atomic bomb, he was told by his
Secretary of State--what was his name from South Carolina who
was on the Supreme Court afterwards?
Mr. Fein. Jimmy Byrnes.
Mr. Rabkin. James Byrnes, who was subsequently Justice of
the Supreme Court, so presumably had some authority to
interpret the Constitution. And he said, ``If the American
people find out that you had this weapon and you failed to use
it, they will demand your impeachment immediately.''
And I don't know, maybe that was not right, but I think we
should all remind ourselves that the President does feel, and
rightly feels, an intense responsibility to see that the
country is safe. And for a President who just had, whatever it
was, 3,000 people killed in September of 2001, he had to have
felt that very intensely. And we should just try to factor that
into our understanding.
I don't know whether really we would impeach somebody for
military failure. But we would certainly say, ``You're
incompetent and shouldn't be President,'' and we would curse
his name.
Somebody said earlier that Bush was the worst President. I
think clearly the worst President was James Buchanan, who
allowed the country to fall apart on his watch.
Mr. Franks. Mr. Chairman, part of the question, of course,
was rhetorical. I was simply suggesting that somehow we are
going after this President for trying to protect us and we are
missing the whole issue here. And if terrorists do hit us
again, I think that we are all going to be pretty ashamed of
what we have done here today.
Mr. Schwarz. You know, could I just say something, Mr.
Chairman?
Let's accept both the question and the answer. But the
problem is that the tactics that have been used in the name of
defending the country have actually made us less safe by
trashing, by undercutting our values. Using torture is not
something which Americans should----
Mr. Gohmert. Mr. Chairman, I'd ask that we proceed with
regular order instead of allowing the witnesses to dictate the
procedure. If we are going to have witnesses get final
arguments after each Member of Congress has their time, then we
should be able to respond in rebuttal.
Mr. Conyers. Does Mr. Franks have any objection to Mr.
Schwarz making his statement?
Mr. Franks. Mr. Chairman, I don't have any real objection.
But the idea that--it doesn't really go to my question in any
way. And the bottom line is here I am astonished at our lack of
priority on the real issue here.
Mr. Conyers. Well, it sounds like you have objections.
[Laughter.]
Mr. Franks. Mr. Chairman, if it is all right, I will go
ahead and yield back.
Mr. Conyers. All right.
Mel Watt?
Mr. Watt. Thank you, Mr. Chairman.
And I guess the only thing I can say in response to Mr.
Franks' comments is what I have often said after having voted
against various iterations of the PATRIOT Act. If the President
and Attorney General Ashcroft--later Attorney General somebody
else, later Attorney General somebody else--is protecting me
against terrorism, who is protecting me against them?
[Applause.]
So that's kind of where I come down on that. If you trash
the Constitution in the name of protecting me, I'm not sure I
want to be there.
Mr. Conyers. Well, maybe the gentleman should yield to Mr.
Schwarz then.
Mr. Watt. No, no, I'm not--I wasn't trying to pursue that
because it wasn't even where I was going. I just happened to be
the next in line after Mr. Franks, and it seemed to be to be an
appropriate response.
I want to do two things. Number one, I wanted to welcome
our former colleague Representative Barr back. In his absence,
on several occasions in this Committee, I have longed for the
day that he would be back here. We had our differences when he
was here, and sometimes he strayed from some of these
principles. But I can tell you, there has not been anybody on
that side of the aisle who has stepped into that void to defend
the Constitution since he left. And I want to thank him for
that.
I want to thank the Chair for having this hearing today. It
is not an impeachment hearing. But it is the most important
hearing, I think--in fact, I was on a 2:05 flight, moved back
to 3:30, moved back to 5:25, so that I could continue to
participate. And this is the most important issue that we could
be exploring at this time.
I am on record, much to the dismay and disenchantment of a
lot of my constituents, of saying that I am not going to lead a
charge for impeachment. I will read you what my standard letter
says. It says, ``As a member of the House Judiciary Committee,
I would certainly be an active participant if such a resolution
is considered and I would consider their input.''
And then I go on to say, ``I share your frustration about
the Vice President or the President's decisions on many policy
matters. However, I served on the House Judiciary Committee
during the impeachment proceedings against President Clinton
and received valuable lessons about how high the impeachment
standard is and about how an impeachment can distract from
other important work of the American people.''
``Our Founding Fathers intentionally set an extremely high
constitutional standard for impeachment to assure that
impeachment could not be routinely used for political or policy
disagreements or as a substitute for political participation.
Additionally, as a practical political matter, it is clear to
me that we would not have sufficient votes in the House or
Senate at present to do a successful impeachment.''
Now there are practical considerations.
All of those things have really been talked about by this
panel in one way or another.
But I will tell you, I remember sitting in this Committee;
the Chair has been here three times on impeachments. And in the
distractions of all the cameras rolling and everything, I sat
beside my good buddy, Representative Bobby Scott from Virginia,
and we would, in the quiet of those moments when the cameras
were projected everywhere, debate whether we would be making
the same decision if this were a Republican President or a
Democratic President.
And it is clear to me that the allegations here are
substantially more substantive than the sexual allegations that
were being made against President Clinton.
And obviously, Mr. Presser has a different standard now
than he possibly had earlier. But I don't think that ought to
be the standard. I really don't, because I thought the
Republicans were wrong when they did it then.
I don't say we would be wrong if we did it now. But I am
firmly convinced that it would so distract us. I am convinced
that we couldn't have a fair, bipartisan evaluation of this
issue in this environment. I am convinced that we couldn't get
to the end of it between now and the end of the year. I am
convinced that it might even distract from the most important
thing that my good friend Bob Barr said, which is, you know,
each subsequent President starts from the standard that the
prior President has set. I aspire to a different set of
standards, and I hope the next President of the United States
doesn't live up to that prediction that my good friend Bob Barr
has made.
I hope we can raise the standard back to some element of
reasonableness. And perhaps maybe we can go back in a different
time and place and do what Mr. Schwarz has suggested or indict
or prosecute the President. But I don't think, as a practical
matter and maybe my obligation is different than practical
politics under the Constitution, and if somebody brings the
resolution, I am going to be right here every step of the way.
But I would have to say I am not going to be--I am going to say
the same thing that I say--I am not going to be leading the
parade right now.
And I guess once somebody is out of office, you can't
impeach him. But we need--we definitely need to raise the
standard. And that is the aspiration I have when I say I don't
want this to be a substitute for political participation. I
want the American people to impeach this President in November
of 2008 and this whole Administration and all of its concepts
that have been associated with it, including the notion that
the President can protect me from terrorists by doing whatever
in the hell he wants to do.
Mr. King. Mr. Chairman?
A parliamentary inquiry?
Mr. Conyers. Yes, the gentleman will state his inquiry.
Mr. King. I would just ask the Chairman if you have a
predicted time on when you might be seeking to conclude this
hearing so those that are planning to travel today, like Mr.
Watt, might be able to make their plans.
Mr. Conyers. Well, as soon as we finish having all the
Members make their inquiry and not a minute later.
Mr. Watt. I would yield it back, Mr. Chairman.
Mr. King. I thank the Chairman for that definitive
response, and I will help you proceed accordingly.
Mr. Conyers. Mike Pence.
Judge Louie Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And I appreciated some of the testimony here today. I am
often a little surprised how free some people feel when they
come before a Committee in Congress to testify when we have
heard people say misleading Congress is an impeachable offense.
But, you know, making brash statements without adequate support
ought to be a pretty serious matter when you are testifying
here in front of the Committee and in front of the world.
Now my friend Mr. Jones, we disagree strongly on some
things, but I like his idea that if there is going to be a
signing statement it ought to at least be made public in 3
days. I would say simultaneously. So I will talk to my friend
Mr. Jones about pushing that issue.
We have had a number of concerns. I was very concerned
about the National Security Letter abuse, when we found out
that had happened. There is no evidence whatsoever that the
President knew that was going on. The FBI Director said he took
full responsibility, and there were no consequences there. But
I was also one who fought for--one of the Republicans who
fought very strongly for sunsets on the PATRIOT Act, because I
believe we needed that kind of safeguard on those kind of
powers.
But we come back to some of these brash allegations. You
know, President Clinton was in office for 8 years. George Bush
was in office for about 8 months, and we know, looking in
retrospect, that the World Trade Center was bombed in 1993.
That was an act of terrorism. It was an act of war, just like
the act of war when our embassy was attacked in 1979, was
actually an act of war, and we didn't see it for what it was.
Now, the attack on the World Trade Center, unsuccessfully--
even though people were hurt, people were killed--the plans
soon began to try again. Now, I have a hard time blaming
President Clinton for not suspecting that there were radical
Muslim elements out there who wanted to destroy the United
States, because every time--I believe every time President
Clinton committed troops, it was, well at least most every
time, it was to help Muslims against Christians. How was he to
know that there was a radical element out there all the time
that he was helping Muslims in their effort against Christians,
that he had Muslims that were planning on attacking him? That
was so grossly unfair.
So I know people keep saying over and over, he lied about--
the President lied about weapons of mass destruction. The
President lied about weapons of mass destruction. The Secretary
of State lied about weapons of mass destruction. And we have
heard the quotes. If he really lied about weapons of mass
destruction, I say it is time to forgive President Clinton and
Madeleine Albright and move on. Let's forgive them for the lies
and move on. It is not constructive at this time to keep
blaming President Clinton for lying about them. And if George
Bush was so naive that he would accept those representations
that were passed on to him by the Clinton administration, then,
okay, he gets blamed for being too naive in accepting all those
representations.
But if you bring this timeline back to what really
happened, you come back to Joseph Wilson. And in February of
2002, his wife said, oh, I never suggested him. She is under
oath saying that. And when we finally got the e-mail, it turns
out she says in her e-mail, my husband is willing to help if it
makes sense, but no problem if not. End of story.
Well, it wasn't end of story because she goes on, my
husband has good relationships with both the P.M. and the
former minister of mines, not to mention lots of French
contacts. And then she goes on down, however, my husband may be
in a position to assist. Of course she suggested that. And that
was untrue to say otherwise.
And then he went to Niger. And what people don't realize,
October of 2002, he wrote an op-ed in which he said he was
urging that we not go in and attack Saddam, that we just try to
get him to accept inspections. And he said, one of the
strongest arguments for military-supported inspection plan is
that it doesn't threaten Saddam with extinction, a threat that
could push him to fight back with the very weapons we are
seeking to destroy.
There was no mention that he didn't have weapons of mass
destruction. It was not until many months later, after the
United States had gone into Iraq, and we found that his good
friends and contacts in France had been making great deals of
money by cheating on the Oil-for-Food scandal. So we took
France out of the headlines when he came forward and said,
well, Bush lied, I told them there were no weapons of mass
destruction. That was not supported by the evidence, wasn't
supported by the CIA notes. It wasn't supported by his op-ed.
And yet he turns on the President and gets a lot of celebrity
out of it.
But I think it is time to move forward. And in response to
the issue of, is there a more important issue than this, we
heard in this room this week the Attorney General of the United
States say, because the Supreme Court has put us in the
position virtually to release, or the threat of releasing
terrorists on American soil because of the ridiculous decision
in the Boumediene case, we have got to do something to fix
that. Even though, as both Justice Roberts and Scalia pointed
out, they pulled a bait and switch. We did what the Supreme
Court asked us to do, and then they said it was
unconstitutional. That is something that would be important to
very quickly deal with.
And I see I am out of time, so I yield back at this point.
Mr. Conyers. Zoe Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
This has been a very helpful hearing. Just some of the
comments that have been made I wanted to deal with.
I voted against the FISA bill, but I do want to stick up
for some portions of it. I very much objected to the
retroactive immunity provisions of that act. But it does
increase the opportunity for oversight by the Congress. And if
we utilize that new authority, that is going to be a very
significant element in making sure that, in the future,
activities that do not comport with the Constitution are
curbed. And that has been rarely discussed in the public debate
over this, which is why I am raising it now, because I think it
is a very important thing, in addition to the expansion of
fourth amendment protections for Americans when they are
outside of the United States.
You know, I remember I was watching Congresswoman Holtzman
and watching Congressman Conyers as a young staffer back in the
Nixon impeachment. And certainly the articles were adopted as
Congressman Holtzman described. But I remember that the senior
Members of the Committee on the Republican side were really not
on board until Chuck Wiggins, I will always remember the look
on his face when he found out that the President, President
Nixon, had not been telling him the truth. And when the truth
came out, he was an honorable guy and an honest conservative,
and the look on his face when he found out that his faith in
his President had been betrayed will always be with me. It was
a bipartisan group that came together in the Congress. We will
never know whether the full House would have approved the
articles of impeachment or not, but certainly you can see here
today that we are not in the same spot in this Congress that
that Congress was in.
And so there has been a discussion of whether, as a
practical matter, impeachment is a remedy available to this
Congress. In addition to where we are as a Committee and a
Congress, there is the element of time. It is almost August.
And I recall really the substantial months-long efforts to
acquire evidence and review it.
And so my real question is, assuming just for the sake of
argument that we are not in an impeachment mode, we have a very
strong need to set things right. I have a bill to extend the
statute of limitations for any President for the number of
years that they have served in office just automatically as a
matter of just good jurisprudence. But whether that will pass I
do not know. I think it should.
But how do we set this right? I mean, ``I told you so''
really isn't very helpful. It is very unsatisfying. When we
provided for, essentially, suspension of habeas corpus, I
pointed out in the House debate that we don't have the
authority to do that except in cases of rebellion and invasion,
which is exactly what the Court found later. I remember telling
the White House that they lacked the authority to establish the
military courts. It is only Congress in article III, section 1,
that may from time to time establish inferior courts. But being
right doesn't do me any good.
I am intrigued by, Mr. Schwarz, by your suggestion that we
have commissions, that we have maybe a truth-and-reconciliation
effort that would really dig in to find out, we know some of
the offenses, but to find out the things we don't know and set
a course to readjust. It is not just the legislative branch
that has been pushed and trampled, but it has also been the
judicial branch--and it is a very conservative court--to rein
in the executive so that, once again, we have a functioning
three-branches-of-government system. How would we enforce the
findings against the executive in a three-branch truth-and-
reconciliation commission?
Mr. Schwarz. If there is such an inquiry that I believe the
next Congress and the next President should promptly put in
motion, then it will have a responsible inquiry, which does
take a lot of time. I mean, from the Church Committee, it took
us 15, 18 months.
Ms. Lofgren. If I may, I think there is some benefit in
having the commission not be the Congress, but having it be
some experts and acknowledged people so it is not a partisan
issue. It could never be claimed to be partisan.
Mr. Schwarz. That is what I recommend, actually, that it be
something like the 9/11 Commission, where the President and the
Congress appointed people from American society who understand
the Constitution, who appreciate the importance of both
protecting ourselves and keeping our constitutional checks and
balances working. I think it would work well. It is not easy to
do. But the 9/11 Commission did a good job. And that would free
the Congress to work on the many things that also have to be
addressed, like secrecy and state secrets.
Ms. Lofgren. Right. Legislative efforts.
Mr. Schwarz. Legislative matters.
Ms. Lofgren. Let me just ask Congressman Barr, and it is
good to see you here again, let's say that through hard
campaigning and maybe a little luck, you become our next
President. What would your effort be to restore the checks and
balances? What would you recommend as a course of action?
Mr. Barr. Well, it is hard to know where to start. We have
touched on every single area that the policies in the Barr
administration would be quite different from those under the
current Administration. The doctrine of state secrets would not
be employed to hide embarrassing or improper acts by an
Administration. It would not be used to thwart the legitimate
complaints seeking redress by American citizens for wrongs
committed against them by the government.
Signing statements, you know, I certainly would accept the
challenge laid down by your colleague, my former colleague,
Walter Jones. Signing statements would not be employed to
undercut the will of the Congress and to move forward the
notion that the executive branch is above the law.
Executive privilege would not be used as a shield behind
which to hide embarrassing or political information
legitimately sought by the Congress. The commander in chief
power would be returned to its proper place, and that is not
the power to make or run--make war or run the Armed Forces, but
simply to carry out the administrative duty of serving as the
chief and top officer in the military. The FISA law would be
adhered to. And I would seek legislation to undo what I
consider the unwarranted and constitutionally damaging
expansion of foreign intelligence surveillance gathering on
American citizens in their own country reflected in the
legislation that was just passed by the Congress.
And then we would look at my next week in office.
Ms. Lofgren. Thank you, Mr. Chairman.
I think my time has expired.
Mr. Conyers. Dan Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman.
And I thank the gentlelady from California, making
reference to the late Chuck Wiggins, who truly was a wonderful
Member of this Committee and later served on the Ninth Circuit.
Although when you refer to him as an honest conservative,
in my family that is considered a redundancy.
Ms. Lofgren. I see.
Mr. Lungren. I appreciate that.
Ms. Lofgren. I always respected Congressman Wiggins.
Mr. Lungren. With former prosecutors, such as former
Congresswoman Holtzman and Vincent Bugliosi, here, I appreciate
the contributions you made to the criminal justice system in
the past.
The only thing I would observe is that I know both of you
being very valuable members of the prosecution bar in the past
understand the importance of not overcharging cases. And one of
the concerns I have here is this is tantamount, in my judgment,
to overcharging in a case. And we run the risk of criminalizing
political disputes. And I am not sure that is in the best
interests of this country.
And let me just reflect on a couple things. During World
War One, as I recall reading history, Woodrow Wilson had
cartoonists imprisoned because they published cartoons critical
of our troops during that time. He thought that was offensive
and harmful to troop morale.
I was privileged to serve on a national commission that
reviewed the treatment of Japanese nationals and Japanese
Americans during World War II. And the executive order issued
by President Franklin Delano Roosevelt caused hundreds of
thousands of Japanese Americans, Japanese nationals to be put
into camps, removed from their homes. Not so coincidentally,
many of them lost their property.
I remember after the election in 1960, when Richard Nixon
returned to California, he was immediately subjected to IRS
audits. Some suggested that that was political in nature. We
know the stories of the wiretapping of the great civil rights
leader Martin Luther King, and that LBJ seemingly revelled in
listening to those things. And does anybody suggest that we
should have impeached those Presidents for those actions, as
erroneous and improper as they may have been? And how does that
sit with the allegations I have heard here that this
Administration has trampled on the Constitution worse than any
others?
That is not to absolve Administrations of improper conduct,
but it is the question of whether impeachment is the proper
tool that we ought to use.
And I wonder, Mr. Rabkin, Mr. Presser, if you might first
start off by reflecting on that. That is, I believe the
impeachment is a strong and important tool of the legislative
branch, but I think it ought to be used judiciously. Otherwise,
its importance is undercut, but more importantly it becomes a
distortion of the tension between the branches of government
that are justifiably placed there by the Constitution. Yes,
sir.
Mr. Presser. It is difficult to add much to what you said.
I think you laid out the problem very nicely. Impeachment is a
tool.
[Audience disruption.]
Mr. Lungren. Mr. Chairman, you know, that is about the
fifth time we have had a reaction. We have people in the
audience who have signs that, under our rules, are
inappropriate to be here. And I wish that the Chairman would
have the Rules of the House respected and enforced.
Mr. Conyers. Well, I will instruct the staff and the
officers to ask anyone with such signs to either remove them or
leave the hearing room from this point on.
[Audience disruption.]
Mr. Conyers. Will everybody that wants to leave leave?
Everybody that wants to leave is excused.
[Audience disruption.]
Mr. Conyers. Let's leave.
[Audience disruption.]
Ms. Jackson Lee. Don't do that.
[Audience disruption.]
Mr. King. Mr. Chairman, if we can't maintain order, you do
have the authority to recess this hearing. And I would suggest
that if it can't be maintained, you do that.
Mr. Lungren. Could Mr. Presser now answer, Mr. Chairman?
Mr. Presser. Sure. Impeachment is a remedy that is
available to the House when it believes that a President is
corrupt and can't or won't do his job.
It strikes me that the question before you here is, do you
have a President who acted in good faith to carry out the
responsibilities of his office or do you have somebody who, as
was suggested before, simply wasn't interested in doing that? I
think your choice is pretty clear here, as you have indicated.
Mr. Lungren. Mr. Rabkin?
Mr. Rabkin. Let me say something a little different.
I agree with what you said, but I think if people really
are determined on accountability, they should remember that the
President doesn't do anything alone. If you think there have
been abuses over signing statements, you think there have been
abuses over not referring things to the FISA court, you can
impeach the Attorney General. You can impeach the White House
Counsel, I think. You could certainly impeach a lot of other
officials whose offices are created by statute.
I am not saying that is a great idea. But it is just not
true that there is no recourse other than impeaching the
President. The impeachment clause applies to executive
officers--actually, to ``officers of the United States.'' So it
is not true that the House is powerless. And I think the reason
why we are talking about impeaching the President is that a lot
of people find it extremely titillating to talk about
impeaching the President. But there are recourses short of
that. And if you wanted to focus responsibility, you could do
it. Let's see if there is a majority of the House interested in
doing it.
Mr. Lungren. Thank you, Mr. Chairman.
Mr. Conyers. Sheila Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I want to associate myself with the words of my colleague
from California. This is an enormously important hearing. It is
creating a legislative and congressional record for what I have
maintained. And I am so glad that Bruce Fein mentioned the
previous holder of this seat, who really captured not only the
sentiment of the Constitution but really the hearts and minds
of Americans when she reminded them, the Honorable Barbara
Jordan, that this is an institution of We the People.
And I would like to characterize my questions in the
context of preserving the institution that I think our Founding
Fathers, in their wisdom and intellect, and the scholars that
helped write the legislation, when I say that self-imposed
scholars, the Constitution, were very concerned about.
And I think Mr. Fein, your eloquent recounting of the
elimination of His Excellency and your Honor really do point to
what America is all about, and that is the protection of the
rights of simple people. And I don't say that in any negative
terminology.
So I think it is important to note, if I might, Mr.
Chairman, I would like to ask unanimous consent to put into the
record a draft of H.R. 264, please.
Mr. Conyers. What is the title of that?
Ms. Jackson Lee. That is the title is, Congressional
Lawmaking Authority Protection Act of 2007 and 2008, regarding
signing statements.
Mr. Conyers. Without objection, so ordered.
[See Appendix, page 462.]
Ms. Jackson Lee. Thank you.
In the discussion of signing statements, I want to make
sure we now have a vehicle to move forward, legislation that I
have offered regarding signing statements. And I know others
have been suggested as well.
But I would like to put it in the context, if I can pose my
questions around my premise of protecting the Constitution,
that there may be a number of vehicles that we might use.
First, I want to say to the Chairman, a series of abuse-of-
power hearings, and I know how challenging it is for us to
issue subpoenas, but to impress upon the Congress the
importance of subpoenaing Karl Rove, as we have done, and to
utilize, as we want to do, and to utilize the subpoena power,
because it is in the context of protecting the American people.
And I think there have been crucial fractures, Mr. Presser,
that really look to the question of whether the American people
have been protected. And whether or not we define it as high
crimes and misdemeanors, which frankly I do believe we have a
very firm basis of suggesting high crimes and misdemeanors,
because the inquiry made--the impeachment inquiry made in this
body, the Judiciary Committee, is what it is, is a
prosecutorial approach. It is the indictment. It is the
question of determining whether we move forward. And then the
trial is held in the Senate. So, in essence, we are giving the,
in essence, defendant or defendants the opportunity to be
heard. Why in the world would we be afraid of allowing the
prosecutorial approach to go forward?
I think timing is an issue. But if I might, so to clarify
that we should not be intimidated by the process or time, that
what we are doing is not personalizing this. I have no angst
against a personal individual, as we have tried to use the name
of President Clinton, and Franklin Delano Roosevelt, and
President Johnson. This is not a personal question. This is a
question of protecting the institution and the Constitution.
Now let me go back and pay tribute to those who have lost
their lives on the front lines of Iraq and Afghanistan, and to
pay tribute to the veterans who are here. But in the memory of
those who lost their lives in Iraq, this is the question that I
want to raise: One of the oaths of office says to take care
that the laws be faithfully executed. And our colleague,
Congressman Kucinich, has included those very, very precise
words in one of his articles. And so if I might, one of the
premises of this whole issue of the Iraq war was the
representation of the government, the Administration, the
commander in chief, the presentation made before the United
Nations, what I believe is ignoring 2002, where we gave the
President the right to use force if all other things didn't
work.
Mr. Fein, can you help me with juxtaposing the
representations that were made, the players in the
representation, and article I, section 8, about Congress
declaring war? But just focus there as to whether or not our
duty to, if you will, protect the institution on behalf of the
people of the United States, is there some merit there as we
might look at those facts?
Mr. Fein. Yes. James Madison said that a people who mean to
govern themselves must arm themselves with the power that
knowledge and information gives and that a popular government
without popular information is a farce.
And obviously, the Congress of the United States is making
its deliberative choice to authorize war or not based on
information in the hands of the executive branch. And as I
explained earlier, James Iredell, who was a Founding Father,
subsequent member of the U.S. Supreme Court, made it very clear
that it would be an impeachable high crime and misdemeanor to
withhold information from Congress that, if they had known
about, would have caused them to decide differently on a matter
of war and peace. This was unambiguous. He wasn't a Democrat.
He wasn't a Republican, he was just a Founding Father
interpreting a document that he had helped fashion.
Now based upon the Administration's own former occupants of
office, including George Tenet and others who have served in
the CIA that have not been denied by this Administration, there
was withheld from this Congress strong information that
Congress had a right to evaluate on its own, not just based
upon President Bush, that undercut the idea that there were
weapons of mass destruction in Iraq that the President held out
as a justification for Congress to authorize war and that al-
Qaeda was in cahoots with Saddam Hussein. And these are--this
is information that comes out from Bush administration
officials. Now, it may be true that has been quoted by
Congressman King that Madeleine Albright or Albert Gore made
statements that Iraq has this kind of--these kinds of weapons
or collusion. But what was their information based on? I have
no doubt that President Bush didn't say, come and survey all of
our documents. They got the same briefing, I am sure, that
everybody else got. That was the same one-sided, distorted
information. And to say this characterization isn't out of--
this is out of Bush administration officials themselves. And it
seems quite clear that the declaring war function is corrupted
if the President has complete control over the information flow
and gives you part of the story but not all of it, because the
power to declare war means you get to make your own independent
evaluation of what to believe or not, just not what the
President wants you to hear.
Ms. Jackson Lee. And any of that could bear on--just if we
were in an inquiry, could bear on treason to the extent of how
you undermine the infrastructure of government and could also
lay the precedent for say, for example, an attack on Iran. So
we are forward thinking when we do this kind of inquiry, are we
not?
Mr. Fein. Of course. Suppose there is conflicting
information about whether Iran in fact has a nuclear weapon.
And there is just one snippet and says, oh, all the information
I am giving you suggests that there is a nuclear weapon and
they are about ready to launch an attack against Jerusalem.
There is volumes of information otherwise, but that is all
suppressed. So you only hear part of the story. That clearly in
my judgment is an impeachable offense under the standard of the
Founding Fathers, not under the standard of anybody who came
afterwards with partisan axes to grind. James Iredell didn't
have any grudge against a Republican or Democrat. He was
seeking to defend the Constitution.
Ms. Jackson Lee. Maybe Mr. Bugliosi, who has commented on
this, would add to the framework of what you are----
Mr. Bugliosi. Yes. I want to respond----
Ms. Jackson Lee. Thank you, Mr. Fein.
Mr. Bugliosi [continuing]. On this whole issue of weapons
of mass destruction that Congressman Franks and Gohmert talked
about. In this book of mine here, ``The Prosecution of George
W. Bush for Murder,'' believe it or not I do not say----
Mr. Franks. Hold it higher.
Mr. Bugliosi. You want me to hold it higher?
Mr. Franks. Hold it way up.
Mr. Bugliosi. You are being funny now, aren't you? You are
being funny. Okay.
Ms. Jackson Lee. Mr. Bugliosi, you may continue.
Mr. Bugliosi. Yes. Believe it or not, I do not say in this
book where I am asking that George Bush be prosecuted for
murder that he lied about weapons of mass destruction.
Actually, he did lie about weapons of mass destruction, but
that is not why I am saying he should be prosecuted for murder.
The evidence that he lied about weapons of mass destruction, by
the way, which is not the basis for this book, are right in
front of me. I have it right here. Here is the evidence. This
document here is the National Intelligence Estimate. I didn't
name it before. I talked about a classified report. This is it
right here. October 1st, 2002, classified NIE report. It is
called Iraq's Continuing Programs of Weapons of Mass
Destruction. In this document right here, the CIA and 15 other
U.S. intelligence agencies use words like this, ``we assess
that'' or ``we judge that'' Hussein has weapons of mass
destruction. This document here is the white paper that was
given to you folks here in Congress and the American people.
And the words ``we assess that'' or ``we judge that'' were
removed, meaning that you folks here heard a fact, and in fact,
it was only an opinion.
Number two, on nuclear weapons, this document right here,
the classified report has several important dissents. This
document right here, the white paper that you folks were given
and the American people, all of those dissents were deleted.
That is where the line about----
Ms. Jackson Lee. And were those dissents presented at the
U.N.?
Mr. Bugliosi. Pardon?
Ms. Jackson Lee. Were those dissents at the presented at
the U.N.?
Mr. Bugliosi. I am sorry?
Ms. Jackson Lee. Those dissents, were they presented at the
U.N.? The presentation made at the U.N., were those dissents
presented there? No.
Mr. Bugliosi. No.
But the dissents that are in the classified document right
here do not appear, do not appear in this white paper that you
folks were given. There is the lies about weapons of mass
destruction.
But here is the point I want to make. And I really feel,
and this sounds presumptuous of me, I guess Mr. Franks already
knows enough that he doesn't want to hear. But here is the
evidence that I want to present to this Committee that weapons
of mass destruction, that is not the issue here. The issue is
not whether Hussein had weapons of mass destruction. If that
were the issue, Pakistan, China, Russia, Britain, France, North
Korea----
Mr. King. Mr. Chairman, the gentleman's time has long ago
expired.
Mr. Bugliosi. Wait a while. I am talking about something I
think is pretty important, okay?
Mr. King. Mr. Chairman, the gentleman is talking about
classified information in this meeting.
[Audience disruption.]
Mr. Bugliosi. Wait----
Mr. King. And the gentleman's time has expired. And I
insist that you impose the rules on this.
Mr. Nadler. Mr. Chairman? Mr. Chairman? Mr. Chairman?
Mr. Conyers. Let's have order.
The gentlelady asked a question, and after it is responded
to, her time will have been expired.
Ms. Jackson Lee. I thank the gentleman for his indulgence.
Mr. Bugliosi. This document right here has been
declassified. This one here was an unclassified version. So you
are wrong.
But here is the point I want to make, here is the point I
want to make: Britain, France, Russia, China, Pakistan, they
have weapons of mass destruction. Are we going to war with
them? No. Why? I will tell you why. Because the only issue, not
two issues or three issues, the only issue is whether a Nation
that has weapons of mass destruction is an imminent threat to
the security of this country. That is the only issue. And 16
U.S. intelligence agencies in this previously classified
document, including the CIA, all said unanimously that Hussein
was not an imminent threat to the security of this country. And
they knew all about these weapons of mass destruction. They
thought they did. Actually, Hussein did not have weapons of
mass destruction. Let's overlook that fact. They thought--these
16 U.S. agencies thought that Hussein had weapons of mass
destruction, and they still said he was not an imminent threat
to the security of this country. It is a terrible non sequitur
to say that just because you have weapons of mass destruction,
you are an imminent threat to the security of this country. The
proposition that Hussein was an imminent threat to the security
of this country is outrageous on its face. Why? I will tell you
why. Hussein wanted to live.
Mr. King. Mr. Chairman, I am getting really close to an
aneurysm here. Do you think you could help him wind this thing
up?
Mr. Bugliosi. Hussein wanted to live. And when you want to
live, you do not attack the United States of America or help
anyone else do so. And all 16 U.S. intelligence agencies agreed
with what I just told you.
Mr. King. The man is repeating himself, and long ago, the
gentlelady's time has expired.
Mr. Conyers. The gentlelady's time has expired.
Ms. Jackson Lee. I thank the Chairman.
Mr. Bugliosi. I have more to say, but I won't.
Mr. Conyers. Mr. Pence.
Mr. Pence. Thank you, Mr. Chairman.
Thank you to our panel of witnesses.
I want to address my questions, if I can, to Professor
Presser. I am not entirely sure that you weren't just referred
to as a self-imposed scholar, although I would be happy to be
corrected on that. I do know that earlier reference was made by
another witness at this panel who characterized your work for
this Committee for this hearing as quote, atrocious
scholarship. How long have you been a professor of legal
history and constitutional law at Northwestern University
School of Law?
Mr. Presser. Thirty-one years.
Mr. Pence. I didn't hear that. I don't know if your
microphone----
Mr. Presser. Thirty-one years.
Mr. Pence. Thirty-one years. Are you the same Stephen B.
Presser who has co-authored one of the seminal casebooks on
constitutional law in the United States of America?
Mr. Pence. Yes.
Mr. Presser. What is the title of that book? It is a while
I am out of law school.
Mr. Presser. It is called ``Law and Jurisprudence in
American History.''
Mr. Pence. And you co-authored that with?
Mr. Presser. A fellow named Jamil Zainaldin, who I think
was then in the History Department at Northwestern.
Mr. Pence. Now, I am a Hoosier, but I think Northwestern is
a pretty good school. It seems to be a pretty credible place.
You ever published any other works on constitutional law
and history other than the widely utilized seminal casebook
that you co-authored on constitutional law and history?
Mr. Presser. Yes, several other books and articles.
Mr. Pence. I might take the opportunity to welcome you back
to the Committee. It was 10 years ago you testified before the
Judiciary Committee in another hearing on the subject that has
found its way into the subject matter of this hearing. Again,
as I said in my opening statement, I accept the Chairman's
assurances that this hearing was not called on the subject of
impeachment, but it is the elephant in the room. We found our
way there.
I am fascinated by your analysis. Because we just heard
from the immediate prior witness and witnesses, it just seems
to me that the objections that have been raised are, in the
main, differences on policy. The decisions to go to war, which
of course the Congress and the House and the Senate gave the
President the authority to go to war in Afghanistan and Iraq,
voted in overwhelming majorities to do that, people can differ
with that policy, but it seems to me in some of your analysis
in what has been characterized, regrettably, as atrocious
scholarship, you point out the Founders of this country, the
Framers of the Constitution were very, very careful about this
business of not allowing impeachment to be a basis to challenge
policy differences with an Administration.
There is one part of that I would like you to elaborate on.
I think it is fascinating. I think one of our witnesses just
cited James Madison glowingly. He should always be cited
glowingly, in my judgment.
James Madison and George Mason had this argument that you
cite in your report to this Committee. I am absolutely
fascinated by it. It turns out, and tell me if I get this
wrong, George Mason, who seems to me kind of to be the
forgotten Founder, he is a brilliant man, understood liberty
and constitutional rights maybe like no one other than James
Madison, but the two of them had an argument about this very
provision, this business of whether or not the term
malAdministration would be included, I believe in the text of
the Constitution, would be included as a basis for impeachment.
Now, I don't quarrel with any of my colleagues on this
Committee on policy differences with this Administration. As I
said earlier, anyone tuning into C-SPAN 20 or something earlier
this week would have seen me in a rather pointed conversation
with this Administration's Attorney General on the subject of
the first amendment freedom of the press. So I cherish policy
differences of opinion.
But it seems that there is a--you point, Mr. Presser, to
the Founders rejecting this term of maladministration as a
basis for impeachment, because you quote here that Madison, one
of the authors of the Federalist and the man commonly described
as Father of the Constitution, objected on the grounds that
maladministration was too elusive. He said, quote, so vague a
term will be equivalent to a tenure during the pleasure of the
Senate.
In effect, my understanding of that, but I would really
like you to elaborate on it, is it seems like that--and he won
that argument with George Mason, and the term maladministration
was not included in the Constitution--it seems that
specifically they were rejecting--they made the decision to
reject differences in the administration of and the pursuit of
policies in the government. Fair characterization?
Mr. Presser. I think that is entirely accurate.
Mr. Pence. Okay. I got a passing grade on that.
The other one is this other business is--and I said a
little bit earlier, I have great respect for Congressman
Kucinich. I have actually great affection for him. He is a man
that is as passionate on the left as I am on the right. I don't
begrudge him utilizing whatever tools are available to him as a
legislator to raise and to press the issues that he cares
about.
It seems to me, though, you make a point in your report
that this business of high crimes and misdemeanors goes to the
question of whether or not the person serving as President of
the United States put their own interests, their personal
interests, ahead of public service.
Now, when you testified here 10 years ago, you indicated
that--you testified about the allegations made against
President Clinton; you said if they were true, it showed that
over many months Mr. Clinton engaged in deception, lying under
oath, concealing evidence, tampering with witnesses, and in
general obstructing justice by seeking to prevent the proper
functioning of the courts, the grand jury, and the
investigation of the Office of Independent Counsel. I believe,
I am inferring here, I believe you testified that if those
things were proven to be true, those would be instances where a
President put his personal interests above public service.
Do you see in evidence of any of these policy differences
with the current Administration the same types of--same type of
conduct that would be high crimes and misdemeanors?
Mr. Presser. No, sir.
Mr. Pence. That is the briefest law school professor I have
ever met in my life.
I want to thank you for being here. And I so appreciate
what I want to affirm, and anyone can, I suspect, look at the
public record of this hearing and see to be outstanding
scholarship in your report to this Committee. And I am grateful
for your work.
And I yield back the balance of my time.
Mr. Conyers. Robert Wexler.
Mr. Wexler. Thank you, Mr. Chairman.
I just want to again thank you, Chairman Conyers, for
holding this important hearing.
I would like to just begin by taking up where my good
friend and someone I respect enormously, Mr. Pence, just spoke
about.
And essentially, Mr. Pence I believe referred to policy
differences as being distinguished from constitutional issues
or legal issues. And I would beg, respectfully, to differ with
Mr. Pence, particularly as to three issues: Ignoring
congressional subpoenas, spying on American citizens, and
whether or not torture is ordered, illegally or in some other
fashion, to me are not policy issues; they go to the issue of
abuse of executive power.
For instance, with respect to ignoring congressional
subpoenas, I think it is at this point not debatable that
President Bush has ordered his executive branch officials, such
as Karl Rove, Harriet Miers, Josh Bolton, and other
Administration officials not to testify to Congress. I believe
that is an indisputable fact. And what has occurred is a set of
circumstances where this Administration has made itself immune
from congressional oversight to a degree that no other
Administration in American history has done.
Respectfully, in my estimation, that is not a policy issue.
That is a constitutional action, and it is a legitimate inquiry
to determine whether or not that abuse of executive privilege
amounts to the constitutional standard of or required for
impeachment.
I would like to ask--I was going to ask Mr. Barr, but Mr.
Barr has gone, I know. That is why I said I was going to ask
Mr. Barr. I would like to ask the other members of the panel,
Mr. Barr, in the last impeachment, during the impeachment of
President Clinton, repeated what was also said earlier today in
terms of President Nixon and his comment, quote, President
Nixon was, when the President does it, that means it is not
illegal. And Mr. Barr, to his credit during the Clinton
impeachment, his quote was, Nixon's statement, quote, was dead
wrong then, and it is dead wrong today--wrong that is, unless
one subscribes to the principle that the President is not only
above the law, but that he is the law, end quote.
The issue of refusing to appear before Congress, just that
one count of impeachment, what is--in my mind, is that a--or I
am asking, is that a constitutional issue or a policy issue?
And what justification can there possibly be, to the degree
that the President has employed this tactic, to justify its use
in the context that this President has done so?
Please, Mr. Anderson.
Mr. Anderson. It is clearly a constitutional issue. It is
not just a matter of policy. And it goes right to the core of
our constitutional system. It is up to Congress as to whether
its power is going to slip through its fingers. And now is the
time to assert Congress's power. It is not waiting for the good
will of another President, hoping that they will restrain
themselves. It is up to Congress.
And you know, it is unbelievable in this body how people
have cavalierly downplayed the abuses of power that go far
beyond what was talked about during the Nixon impeachment,
which by the way, they didn't end--in the articles of
impeachment, they weren't talking about criminal offenses, per
se. They were talking about abuses and breaches of trust and
subversion of constitutional government.
Here it is absolutely unprecedented. It is not a matter of
whether you like it or not; it is not a matter of policy. It
has been a matter of egregious violations of domestic statutory
law, laws passed by this Congress, treaties that have been
ratified by the Senate, and the Constitution. We are talking
about violations of those laws that prohibit torture, the
indefinite detention of American citizens with no due process,
no lawyers, no trials, no charges against them. Absolutely
unprecedented. Kidnapping, disappearing and torturing people
around the world. And then the FISA violations, which, again,
they want to be downplaying those, saying, well, other people
have caused the warrantless wiretapping of this sort. Never has
a President, in engaging in warrantless wiretapping, before
violated the terms of FISA, which provide that every instance
is a felony. These blatant violations of law----
Mr. Wexler. I think Mr. Fein would like to answer.
And I would just like to add, if you include in what
Attorney General Mukasey has come before this Committee and
said blanketly, we refuse to honor the congressional subpoenas
that you issued.
Mr. Fein. That by itself in my judgment is a clear
impeachable offense. The Founding Fathers understood the most
important function of Congress is the informing function. That
self-government can't work unless the people know what their
rulers are doing and why. And that can't happen if they don't
appear before Congress, the President doesn't voluntarily
disclose things. And simply by refusing even to appear, it is
the equivalent of contempt of court, like refusing to obey a
court order, which I think everyone would concede would be an
impeachable offense. I think that is one of the things that
that question points out, Congressman, is I don't think you
would need a very long period of time to decide whether what
the President has done is an impeachable offense. It is open;
it is notorious. You just vote. You just need to know what
Constitution means. The facts are, on their face, contemptuous
of this legislative body.
Mr. Wexler. Thank you.
Ms. Holtzman?
Mr. Holtzman. Congressman Wexler, I think, if you take the
constitutional standard for impeachment, which is a high crime
and misdemeanor, Mr. Mason said that it meant subverting great
and dangerous offenses that subvert the Constitution.
Subverting the Constitution here is when the President, for no
reason, not even a colorable claim, refuses to give Congress
the information it needs to do its job and obstructs the work
of Congress. That can be an impeachable offense.
If you translate it into the context of an impeachment
inquiry, in other words, if you were to commence an impeachment
inquiry and then you were to ask the President to provide the
information again, the obstruction of an impeachment inquiry,
the failure to cooperate with an impeachment inquiry, the
failure to provide the information is itself an impeachable
offense, as we established in the Nixon proceedings and in the
Nixon precedent.
So these are very serious abuses. And because what the
inquiry, if you go back, what were you asking about? You were
asking about whether the Justice Department undermined the rule
of law by engaging either in improper prosecutions or by firing
people because they refused to engage in improper prosecutions.
Mr. Wexler. Thank you, Mr. Chairman. My time has long
expired. Thank you very much.
Mr. Conyers. Steve Cohen.
Mr. Cohen. Thank you, Mr. Chairman.
Congressman Holtzman, you suggested that you think there is
a prima facie case for impeachment of the President. Is that
correct?
Ms. Holtzman. Well, I am not allowed to say those last two
words.
Mr. Cohen. Prima facie case----
Ms. Holtzman. I get to say 14 of the 16 words. But the last
two I can't say.
Mr. Cohen. They are like George Carlin's words or
something.
Ms. Holtzman. What do we say, high government--high
Administration officials, yes.
Mr. Cohen. Would that include somebody who was considered
to be not a member of the executive but a barnacle attached to
the legislative branch?
Ms. Holtzman. Such as?
Mr. Cohen. Such as the man who would succeed to the office
of President if he got out of the----
Ms. Holtzman. I think you could do a twofer.
Mr. Cohen. They could be a twofer?
Ms. Holtzman. Uh-huh.
Mr. Cohen. But if that person was assigned to the
legislative branch, could you impeach him? Is a person who is
assigned to the legislative branch, attached, as Mr. Addington
has said the Vice President is, would he then not be subject to
impeachment?
Ms. Holtzman. No, I don't know what Mr. Addington says
about that, but there is no question the Vice President could
be impeached.
Mr. Cohen. But he would have to be a member of the
executive branch to be impeached, would he not?
Ms. Holtzman. I think there is some--maybe Mr. Fein knows
this--but I think there is also some precedent for holding that
members of the congressional branch can be impeached as well.
Mr. Fein. The very first impeachment was against a senator,
Senator William Blount of the Senate. The standard has clearly
been established that Members of Congress can be impeached.
Mr. Cohen. Thank you.
I was trying to see if there was some method to their
madness. We had General Mukasey before us this week, and he
said the Vice President is obviously and definitely a member of
the executive branch. In the previous week, Mr. Addington said,
no, he is not--or he could be, and he went back to Katzenbach
in 1961, some opinion, and suggested he was attached to the
legislative branch, so he was neither. He wasn't really an
executive. And of course, the National Archives wanted him to
classify papers; they are not part of the executive. So I guess
there is not a method to their madness. There is just madness.
Ms. Holtzman. Right.
Mr. Fein. Well, it is very clear the Vice President has
claimed he stands in the shoes of the President when he claims
immunity from suit; that he argued in the suit brought by
Valerie Plame and Mr. Wilson following the disclosure, that he
was entitled, like the President, to absolute immunity. So he
claimed he was an executive officer there. And obviously, when
he refused to respond to the request, I think it was by Mr.
Berman's--or I think it was Mr. Berman's----
Mr. Cohen. Maybe Waxman.
Mr. Fein. Waxman, excuse me, Mr. Waxman's request for
documentation of the statements he had made to the special
prosecutor in the Valerie Plame investigation, it was executive
privilege of the President that he claimed. Now maybe that
destroys their idea of a unitary executive, because now that
sounds like a duumvirate under the Roman Empire. But I doubt
whether they were thinking of that analogy.
Mr. Cohen. Mr. Fein, when you did research I know on
General Gonzales, did you feel like there was a prima facie
case for some type of impeachment proceeding at that time?
Mr. Fein. Well, I think there needed to be more
investigation of the facts as to whether or not, during his
testimony, he had misled Congress as to what he knew about the
reasons for the firing of U.S. Attorneys, communications he had
had with the White House or otherwise. But certainly, if that
could be established, obstruction of a congressional
investigation surely would rise to the standard of a high crime
and misdemeanor.
Mr. Cohen. Do you think it serves a good social purpose to
go into impeachment, or do you think, as Congressman Watt
feels, that we should concentrate on the omissions on health
care and education and other issues and environment that we
have had over the last 6 years?
Mr. Fein. Well, my experience certainly--it depends upon
what the allegations of impeachable offenses are. There can be
bad impeachments and good ones. The one that preceded Nixon was
a bad one against President Andrew Johnson. But my sense,
having participated in, from a different angle than Ms.
Holtzman, on the Nixon impeachment, that it was an enormously
unifying exercise. I never felt prouder as an American than
when I saw Mr. Nixon leave the White House. Because he said, if
I do it, it is legal. And that wasn't our constitutional
system. And it was President Ford who said our national
nightmare was over after we got rid of President Nixon through
an impeachment proceeding.
Now, certainly, if the impeachment would be interrupted
because of time, then you would have to question whether that
would be satisfactory, because it wouldn't be fair to have only
half of an investigation, and people's names being maligned
because there wasn't an opportunity to hear everything.
But my view of the institutional wrongdoing against the
Constitution here isn't something that you need archeological
expeditions to discover. These are open and notorious. The
President has openly stated on the record. He has gone on
public radio and television saying, I flouted the FISA law. He
stated, I had a terrorist surveillance program, and I didn't
care what the law said. And he has had his own Attorney General
say, if I am gathering foreign intelligence, I don't have to
obey anything Congress has done. That simply is a decision
here, is a that an impeachable offense if the President says, I
don't need to obey the laws that Congress has enacted? It is
another version of the President Nixon; if the President does
it, it is not illegal.
And, therefore, you don't need a prolonged investigation of
facts, he has already conceded what he has done.
The same kind of thing has come up with his claim that he
has power to detain any U.S. citizen as an enemy combatant and
put them in detention indefinitely without any customary
accusation or charge. And that is not hypothetical. There is
someone right now, his case in the Fourth Circuit Court of
Appeals, his name is Mr. al-Masri, he was plucked 5 years ago
from his home. He was initially charged with a crime, and he is
now being held as an enemy combatant.
Those kinds of things are just a judgment. Does that
satisfy our understanding of what executive power is? That can
go very quickly, and I think that would be a very healthy
debate.
Mr. Cohen. Thank you.
Mr. Conyers. Hank Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Professor Presser, I mean, you testified at the impeachment
hearing of President Clinton before this Committee; is that
true?
Mr. Presser. Yes.
Mr. Johnson. And you testified that if the President--if
President Clinton lied--if he lied, and if he concealed
evidence, then if those things were true, then that would make
the President's actions self-serving, and so therefore it
becomes an impeachable offense. Is that the gist of your
testimony?
Mr. Presser. I think it is fair to say that was the gist of
it. What I was trying to suggest was when you examine in
impeachment proceedings the President, what you are looking for
is whether you have got an official who is corrupt and can't
carry out for one reason or another his constitutional tasks.
Mr. Johnson. I want to pose this question to you. If a
President lied and concealed information, and did so for
purposes of taking the country to war, do you believe that that
would be an impeachable offense?
Mr. Presser. I think you would have to examine the
circumstances. It strikes me that----
Mr. Johnson. Without--without--I mean, wouldn't an
impeachment inquiry examine the circumstances? I mean, you
would support that notion; would you not?
Mr. Presser. Sure. Mr. Rabkin made his point a little bit
earlier.
Mr. Johnson. And when one has probable cause to believe
that that has occurred, it is certainly wise and prudent to
proceed with action to determine whether or not the allegations
can be proved by a higher level of evidence; is that correct?
Mr. Presser. Yeah. I think what it turns on is your
suggestion whether you have got probable cause or not.
Mr. Johnson. Okay. Well, now, we have heard all kinds of
testimony and information today, some of which is very well
known, in the public domain. Are you here to tell the American
people and the people on this Committee that you don't think
that that information rises to the level of a legitimate
inquiry, Professor?
Mr. Presser. I will stick by what I said earlier and what
is in the written testimony. I don't see the facts that way.
Mr. Johnson. You don't--well, it's not so much of how you--
how you look at the facts.
Mr. Presser. No. It is your call to make.
Mr. Johnson. Prosecutor Mr. Bugliosi could look at the
facts one way and Defense Attorney Fein look at them a
different way, but I think they would both agree--excuse me,
did I say defense lawyer? In other words, a defense lawyer and
a prosecutor may look at the facts a different way, but the
question would be whether or not we should even be looking at
the facts. And you take the position, it seems to me, that we
shouldn't be looking at the facts today. Is that what you mean
to portray to me and the American people?
Mr. Presser. No. I like very much the way that you
characterized it earlier. It is a question of whether you have
probable cause or not. I don't see it; maybe others do.
Mr. Johnson. Okay. Well, you would not fault us for wanting
to go forward. You don't think that it would be fanciful for
someone to believe that perhaps there might be probable cause,
and we should proceed with some inquiry.
Mr. Presser. I think you take an oath to uphold the
Constitution, you have to do what you think is the right thing
to do.
Mr. Johnson. Now, do you think that it would be
irresponsible if this Congress, in light of the information
that has come to pass over the past 4, 5 years, that we would
neglect our responsibility to look into this?
Mr. Presser. I think I have said I don't see the facts the
same way that you do.
Mr. Johnson. Well, I mean, yes, I admit that, and I respect
that. But do you think it would be irresponsible for us to not
look further into this, given what we--given the allegations,
the seriousness of the allegations that have been raised and
the factual data that supports those allegations?
Mr. Presser. No, I don't think it would be irresponsible of
you not to move forward.
Mr. Johnson. Well, now, Prosecutor, Ms. Holtzman and also
Mr. Bugliosi, how would you respond to my questions?
Ms. Holtzman. Well, I think it would be shirking your
constitutional duty to fail to hold this Administration
accountable constitutionally for these serious abuses of power.
And then I think, agreeing with Mr. Fein, that an abbreviated,
and short, and very careful examination and inquiry could be
made, and the President and the Vice President and the members
of the Administration could be called to respond. And then you
could determine based on the responses how you wanted to
proceed. And I think that that would be the responsible thing
to do.
I want to add one thing that wasn't really brought out
before. When people said, well, how did it work in the Nixon
process, how did Republicans and Democrats come together? Well,
the process itself educated Members of Congress about the
Constitution, educated Members of Congress about the facts, and
probably most important educated the American public about the
Constitution and its requirements and the evidence, and that is
what made impeachment work. The process made it work.
Mr. Johnson. Mr. Rabkin----
Mr. Conyers. The time of the gentleman has expired.
Brad Sherman.
Mr. Johnson. Thank you, Mr. Chair.
Mr. Sherman. Thank you, Mr. Chairman.
Congress has become basically an advisory body to the
President, and the fault lies many places, including here in
Congress, because we have done to ourselves that which Jesse
Jackson has said to have wanted to do to someone else. We have
put our party above article I of the Constitution, and any
statute which would protect congressional power is not only
certain to be vetoed, but that veto is certainly to be
sustained by whichever party is represented in the White House.
Now, one example of where we are and how not only the
Congress, but the public and the press. I mean, we have a big
Presidential election. Nobody makes a big deal out of whether
the President will actually follow laws, whether the President
will respond to Congress.
And I have got one example, and that is the Iran Sanctions
Act, an act that many of those supporting impeachment disagree
with, which raises the question do people support impeachment
for failing to carry out a law that they themselves disagree
with?
Now, the Iran Sanctions Act requires the President to
identify those foreign oil companies that are making
investments in Iran. The Administration has told me privately
and testified publicly that they think that this is bad foreign
policy to upset the governments of Europe. And so the question
is--I will address it to Mr. Fein--is nonfeasance an
impeachable offense?
Mr. Fein. The take care clause of the Constitution that
provides that the President shall take care that the laws be
faithfully executed was a response to the Stuart monarchs who
had refused to execute laws passed by the British Parliament.
They were oftentimes recusancy laws against the Catholics and
Stuart monarchs. Certainly James was a Catholic and even
refused to execute the laws. And so in the English Bill of
Rights of 1688, following the glorious revolution, there was a
specific assertion prohibiting any king, any executive officer
from refusing to execute the laws faithfully----
Mr. Sherman. I hate to--you seem to be giving us a long
answer that adds up to yes?
Mr. Fein. Yes. And, by the way, that impeachment article
that was voted against Nixon by this Committee made that same
recitation.
Mr. Sherman. Thank you.
Now, every President would like a line-item veto. They
would like something even better; they would like to just cross
out any section of an enactment that we sent to them, those
provisions would be inapplicable, and the parts of the bill
they like would be applicable, because every President likes
some part of each piece of legislation we pass and dislikes
others. And one--the way they accomplish this is they sign a
bill containing, say, four or five provisions, and then they
say the provisions they don't like are unconstitutional, and
they are not going to enforce them.
One way we could protect ourselves from this is to add to
every statute a provision that says, no provision of this
statute shall go into effect until the President signs a
statement that says he believes that every provision of the
bill is constitutional, and he will do everything possible to
carry out every provision of the law.
Mr. Schwarz, would that be an effective way to be sure that
either the President vetoes the bills he thinks are partially
unconstitutional, or that he waives any assertion that he
shouldn't enforce this or that provision?
Mr. Schwarz. It might give the President--might give the
President more power in a way.
Mr. Sherman. If he could refuse to sign such a statement,
and then we could pass the law again without the statement, and
he would have to veto it, we would return--retain the right to
deal with those bills that the President would want to veto.
Mr. Schwarz. It is an interesting device that might get at
the abuse of the signing statements, and I think it is worthy
of really some more further work on it. But it is a good get at
the subject.
Mr. Sherman. I will be trying to add that provision to many
bills next year. I have only a second.
Ms. Holtzman, you are a former prosecutor. Is it
appropriate for a prosecutor to seek an indictment if he or she
is virtually certain they cannot obtain a conviction?
Ms. Holtzman. Well, probably--well, it depends on the
system. It depends on the evidence. Why wouldn't you get a
conviction? Is it because you don't have a good staff, you
haven't done your homework?
Mr. Sherman. Maybe you couldn't get a conviction because--
--
Ms. Holtzman. If the evidence warrants it, it is a very
tough call, very tough call.
Mr. Sherman. So if the evidence convinces you that the
person is guilty but for this or that extraneous factor, say,
the person is a big-time celebrity, and you know absolutely,
positively you can't get a conviction, it still might be
appropriate to indict or not?
Ms. Holtzman. Well, I have never had to face that, so I am
not going to give you a----
Mr. Sherman. You were never a prosecutor in Los Angeles.
I yield back.
Mr. Conyers. Attorney Tammy Baldwin.
Ms. Baldwin. Thank you, Mr. Chairman.
I hope I will get a chance to propound just two questions.
Mr. Fein, about a year ago, I had the good fortune of seeing an
appearance of yours and a constituent of mine John Nichols on
the Bill Moyers Journal show. Since we are plugging books, my
constituent John Nichols is the author of The Genius of
Impeachment: The Founders' Cure For Royalism. And it was during
that show Mr. Nichols used a metaphor that I have found quite--
it stuck with me, and I know it stuck with many others. I am
just going to quote it for you.
He said, let us say that when George Washington chopped
down the cherry tree, he used the wood to make a little box,
and in that box the President put his powers. We have taken
things out and we have put things in over the years. On January
20, 2009, if this Administration is not appropriately held to
account, they will hand off a toolbox with more powers than any
President has ever had, more powers than the Founders could
ever have imagined, and that box will be handed to the next
President. Whoever gets it, one of the things we know about
power is that people don't give away tools. They don't give
them up. The only way we take tools out of that box is if we
sanction this Administration now and say the next President
cannot govern as these men have.
Mr. Fein, as you may recall, you responded to Mr. Nichols
with the observation that Congress has, to the contrary,
seemingly given up its powers voluntarily. Could you briefly
elaborate on that answer?
Mr. Fein. Well, the reason why--the way in which Congress
has surrendered the power is simply by being unresponsive to
the President's usurpations, like claiming executive privilege
to say he doesn't have to respond to oversight requests; really
expanding the President's authority with the FISA amendments;
passing the Military Commissions Act, which is perhaps the most
sweeping delegation of authority ever given to any President at
any time, any place; and acquiescing in signing statements. If
there is no rebuke to these claims of power, that is a
surrender.
And perhaps one of the most dangerous ones, I think, is--I
think this body tacitly has accepted the idea the President can
initiate the war on his own. He can extend the war against
terrorism into Iran if he thinks that is critical, and that is
something the Founding Fathers would have been shocked about.
They said no one man should ever take us into war.
Ms. Baldwin. Thank you. And that leads directly into my
second question.
Certainly, based on what I have observed in the last 7\1/2\
years of this Administration, I can honestly say that I have
serious concerns about what I may yet see in the remaining 6
months of this Administration. I have no reason to believe that
the conduct that we have been focusing on today has stopped. I
am finding some very disturbing and eerie similarities in my
mind between the behavior and rhetoric of this Administration
during the lead-up to the war in Iraq and the behavior and
rhetoric of this Administration regarding Iran.
As one example, the Administration seems to be disregarding
National Intelligence Estimates again. I would like to ask the
two witnesses who I heard reference Iran in their testimony
what impact an impeachment inquiry or other congressional
action might have on the conduct of this Administration from
this day forward, and so I direct that question to Mr. Anderson
and Mr. Bugliosi.
Mr. Anderson. I don't think if this Administration is bent
on attacking Iran that anything short of criminal sanctions is
going to stop them. I think there needs to be criminal
legislation passed with severe sanctions for anyone who causes
an attack against Iran inconsistent with our Constitution or
the United Nations Charter without the explicit consent of
Congress.
Mr. Bugliosi. Your question is whether an impeachment
proceeding would deter this President from invading Iran?
Ms. Baldwin. The question is whether an impeachment inquiry
or other congressional action--what impact do you think that
will have on this Administration's conduct moving forward?
Mr. Bugliosi. Well, I think you have learned from me today,
if anything, that I only deal with evidence and the facts, and
you are asking me for just speculation. I have no answer to
your question.
Ms. Baldwin. Fair enough.
Mr. Bugliosi. Thank you.
Mr. Conyers. Adam Schiff is a former assistant United
States attorney and a valued Member of the Committee.
Mr. Schiff. Thank you, Mr. Chairman. Thank you for holding
this hearing.
Over the last 8 years, I have been deeply disturbed by much
of the conduct of the Administration and its overreach of
constitutional lines. Some of what has disturbed me and some of
this overreach has taken place in the dark in the categories of
surveillance and interrogation. And some of this conduct has
taken place very much in the open, as when the Administration
ignores the plain language of a statute that when the Congress
finds someone in contempt of the Congress, that matter shall be
brought before the grand jury; not may or might, but shall. And
some of the Administration's conduct that disturbs me has been
both in the open and in the dark, as in the intelligence
leading up to the war in Iraq.
I would like to use this opportunity to make an open call
to this Congress to form a Church Committee to conduct an
investigation into any of the encroachments upon the
Constitution, any of the encroachments upon the legislative
branch by the Administration. It should be a bipartisan
Committee, as the Church Committee was. It should go back, I
think, even before this Administration and look at perhaps some
of the roots of what has lead to the abuses in this
Administration. I think that that inquiry should start now and
should continue during the next session of Congress.
What I would like to ask today are some of the steps that
we might take immediately in addition to initiating a Church
inquiry. I think, for example, it would be enormously important
to require that when the executive takes the position that an
act of Congress has overstepped Congress's constitutional
bounds and intruded on the prerogatives of the executive, that
it notify Congress of its intention not to comply. There is no
guarantee even with signed statement that Congress will find
out in a timely way or ever that the Administration had decided
to act upon its statement in a signing statement. I think
Congress should be notified whenever the Administration takes
an action or refrains from taking an action that is compelled
by law under its own claim of constitutional authority.
I would also like to get your opinion on something else
which I think is deeply problematic, and that is the Office of
Legal Counsel, and in particular the Office of Legal Counsel as
related to the issue of torture. We seem to have a situation
where the Administration chose a lawyer to head the Office of
Legal Counsel who was either a very bad lawyer, or who was a
competent lawyer, but saw his job in an improper manner; saw
his job as that of being an advocate of the Administration and
everything it wanted to do.
We have had good and credible witnesses come before the
Committee to say that because of an opinion of that counsel,
anyone who acted upon it, even if the conduct that was taken in
reliance upon it crossed the line into torture, that no one
could be held accountable, not the people who acted upon it,
not the people who wrote the opinions, not the people who chose
the lawyer to write the opinion.
And I would like to get your thoughts about how it is
possible to determine accountability. Is there legal
accountability? If there isn't, how do we instill legal
accountability? Should we impose a requirement that on issues
like this, that not long after the fact, these opinions be
disclosed to Congress, but that contemporaneously they be
disclosed either to the Judiciary Committee or the Intelligence
Committee or both. Would such a requirement interfere with the
attorney-client nature of the opinions that come out of the
OLC?
And if you could direct some of your comments, I would like
to start with you, Mr. Schwarz. I appreciate a great deal the
work and recommendations the Brennan Center has made. And is
that a possible way to provide some accountability?
Mr. Schwarz. First, the reliance on opinions is surely not
a defense unless the reliance is reasonable, and I don't
believe reliance on those opinions could have been reasonable.
The second thought that occurred to me in listening to your
remarks, which I thought were right on target, is there is
already a law that says the President must notify the Congress
if he decides that a portion of the law that is passed is not
constitutional and that he is not going to enforce it. And one
of President Bush's signing statements is, I am not going to
comply with the law, that I should tell you that I am not
complying with the law. That somehow has the world totally
upside down.
The opinions, all the opinions, of the Office of Legal
Counsel should be released. We are not a country where we can
have laws--and their opinions have some force of law. We are
not a country where we can have laws that are secret. They
should all be released, and Attorney General Mukasey was asked
to do that by former Attorney General Katzenbach and I----
Mr. Schiff. Mr. Schwarz, if I could just interject very
quickly for a very specific follow-up for my time, which is, I
think, already up, runs out even more. Does the Congress have
jurisdiction to bring suit on a claim that the Administration
has not disclosed to Congress as it was required to do when it
made a determination that it would not comply with a law based
on its belief of its constitutional prerogative?
Mr. Schwarz. I mean, that is sort of the issue that is
raised in the suit you are now pressing in the district court
in Washington about the refusal of Harriet Miers to appear and
the refusal of Mr. Bolten to produce the documents. I think
your counsel has put in an extremely powerful brief about the
power of Congress to enforce those, but it hasn't been decided
by the courts yet.
If I could just add one other thing, on the subject of
documents and things that could be done at the last minute,
particularly if the Vice President's counsel is taking the
position that the Vice President is not part of the executive
branch, which, as Mr. Fein pointed out, is a strange position
in light of what they have previously argued, but you ought to
go look at the Presidential Records Act and what is going to
happen and make sure there aren't loopholes in that act that
might facilitate people in the Administration carrying away
documents which ought to be part of the public domain.
Mr. Fein. Could I just--because I was in Office of Legal
Counsel for several years, this was during the Nixon
impeachment, in fact, my first task was to examine after 100
years what was an impeachable offense. Nothing that ever
produced was classified; they were all published. And the
importance of openness is that shoddy scholarship is so
embarrassing, they changed their mind.
One of the things that happened, for instance, when the
Department for the first time tried to provide a public
explanation for flouting FISA by conducting this terrorist
surveillance program, the so-called White Paper, after it was
disclosed and shredded by many, after a year they went back and
said, now we are going to get a FISA warrant in 2007. That was
because it was so obvious that they had no legal argument.
Sunshine is the best disinfectant, and that is why you
would have a right to have access to every one of those
opinions. Some of them might be classified, but you would have
access of the legislative body because you are overseeing it.
And I want to underscore what I think is a great
forgetfulness of this branch. You have authority to oversee the
exercise of every power, legislative, executive and judicial.
Oversight means checking; not asserting it by itself, but
checking. That is what publicity and checking is about,
sunshine.
Mr. Schiff. Thank you, Mr. Chairman.
Mr. Conyers. Yes. The problem has been that we have got so
much oversight after 12 years, that it is piled up and running
out of 2141.
The Chair recognizes an invaluable Member of the Committee
from Florida, Debbie Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. And you
really took the words right out of my mouth. I want to commend
the Chairman for the leadership he has shown on the 45 public
hearings that we have had during this Congress on topics
ranging from improper surveillance to torture, and unlawful
detention and signing statements. And to the degree that our
colleagues and good friends on the other side of the aisle are
lamenting those 45 hearings, it is simply because there was a
6-year backlog. In the first 6 years of this Administration,
there was virtually no oversight done by the Congress because
the former leadership of this Congress ceded our oversight role
and took a very hands-off approach and let the Administration
run amok and do whatever they wanted. So Lord knows that we
certainly had a lot of make-up and catch-up work to do.
And what I want to do is focus on the Administration's
abuse of Presidential signing statements. I have to tell you
that when I joined the Congress and joined this Committee, I
was surprised to learn that Presidential signing statements
even existed. I know since the early 19th century American
Presidents have occasionally signed a large bill while
declaring they would not enforce a specific provision that they
believed unconstitutional.
I mean, I would argue, and I am surprised over the years
and would be interested in the scholarship at the table of
thought on that as to why there has never been any suit brought
on those, because I don't really think there is anything in the
Constitution that allows the President to interpret law or
refuse to enact or follow a portion of the law. I know on rare
occasions historians says Presidents have also issued signing
statements interpreting the law and explaining any concerns
about it, which also really seems baffling to me.
But this President has issued almost 1,100 provisions of
law and signing statements, and I just think that that
stretches the abuse of power beyond imagination. And as someone
who has spent 16 years in a legislative body, I jealously guard
our congressional responsibilities and the system of checks and
balances, and I really think signing statements are an assault
on the legislative branch, basically the same as a line-item
veto as what came out during the hearing that you had on that
subject, Mr. Chairman, and that the Supreme Court ruled was
unconstitutional, a line-item veto, in our system of
government.
So with that overview, I did want to ask Congressman Barr
this question, but I know he had to go. But I was also going to
ask Mr. Schwarz the same question: Can you comment--and I am
really glad our colleague Congressman Jones brought up the
subject on the first panel, but do you have an opinion about
whether President Bush's use of signing statements is
precedented in history or even a comment on the more egregious
examples of signing statements?
Mr. Schwarz. Well, it is clearly unprecedented in its
volume, and it is clearly unprecedented in its audacity, like
saying when Congress asks that it be told if the President
believes something is unconstitutional, he says, I am not even
going to tell you that. That just turns the Constitution upside
down.
The President's power is meant to be to veto laws. He can
veto them for any reason, policy reason, legal reason. And then
the if the Congress passes the law, the President ought to
enforce it. If he wants to send someone to court and have a
challenge made, maybe, but not secretly decide to not fulfill
his obligation to take care that the laws are faithfully
executed.
Ms. Wasserman Schultz. I know you in your publication, the
Brennan Center for Justice's publication 12 Steps to Restore
Checks and Balances, you address this subject. Can you also
address what you think the remedies are that are available to
Congress?
Mr. Schwarz. Well, you do have ultimately the impeachment
remedy. I expressed some skepticism about whether, given how
much time has passed, how little time there is to go now, and
whether this is the right time to do that. But you have the
impeachment remedy, and Congress----
Ms. Wasserman Schultz. The impeachment remedy, I am talking
as a specific response to the abuse of signing statements?
Mr. Schwarz. You could, sure.
Ms. Wasserman Schultz. But short of that, what other
remedies are available? Because, I mean, I am not just--I mean,
I think this President has engaged in horrific abuses of power,
but we also have the future Presidents to deal with. And I know
that Senator Specter sponsored legislation in the 109th
Congress that would prohibit the practice of signing
statements, and I know the Chairman is supportive of that
entire concept. So beyond impeaching this President, I am
taking a longer-term view.
Mr. Schwarz. I mean, you know, could they be absolutely
prohibited--for the President not to be able to say, I think
there is a problem probably would be a problem to say that you
can't say there is a problem.
Ms. Wasserman Schultz. Okay.
Mr. Schwarz. But they are being abused. You have--Mr.
Sherman, I think it was, had a quite interesting technique----
Ms. Wasserman Schultz. I mean, is there--let me give you an
example. When I was in the Florida Legislature, there were
instances in which the legislature went to the State supreme
court to basically fight or challenge the abuse of--our
perceived abuse of power on specific examples where the
Governor--where we believed the Governor overreached. Is there
a provision in which--short of passing a law to say that they
are prohibited or narrowing their use; is there a provision in
the Constitution or anything that would allow us as the
legislative branch to do that?
Mr. Schwarz. Well, I am not sure. I think the power of the
political system should be used, too. I mean, these are now
clearly controversial signing statements. They have clearly
been abused in a way that is harmful to America. And I think it
is quite appropriate for, in the political campaign, pressure
to be put on the candidates for President to say we are not
going to----
Ms. Wasserman Schultz. Yeah, but I want more than that. I
want--I want some real legal--and, Mr. Fein, I actually want to
hear your comments on that, too.
Mr. Fein. Yes. I think what you can do through the
appropriations powers----
Ms. Wasserman Schultz. This President has no shame, so, I
mean, political pressure doesn't work----
Mr. Schwarz. No, no, no. I am talking about pressure on the
people who are running for President.
Ms. Wasserman Schultz. No, I know.
Mr. Fein. What can be done is through the power of the
purse. You simply say that there is no money that the President
can utilize to execute any law where he has issued a signing
statement saying that he is going to pick and choose what he
chooses to enforce. So he then has to choose all or nothing. So
he says, all right. So then, unlike the situation now, he can
take what he likes and then White-Out what he doesn't, so there
you tell him, you have no money to enforce any law.
Ms. Wasserman Schultz. So look at that. That is
when I am glad that I am an appropriator. That is
wonderful. I am glad to hear that I personally can get involved
in that.
Mr. Chairman, I thank you and yield back the balance of my
time.
Mr. Conyers. The Chair recognizes Keith Ellison, former
State legislator and a trial attorney for over 13 years.
Mr. Ellison. Mr. Fein, could you do a signing statement--
based on the President--precedent of this White House, could
you do a signing statement that says--for a law that said there
is no money to carry out a law in which you have done a signing
statement?
Mr. Fein. That certainly would be a new high watermark of
audacity, but that doesn't mean it might not be reached.
Mr. Ellison. Right.
Mr. Fein. He could try to veto it and say he won't execute
that. The problem, however, is it is a crime to spend money
that hasn't been properly authorized and appropriated by the
Congress of the United States, so if he tried to do that, he
would really be risking----
Mr. Ellison. Risking what.
Mr. Fein. Impeachment. I think for whatever reason, there
seems to be still a consensus that the power of the purse is
inviolate, and the President can't spend money that this House
has not appropriated.
Mr. Ellison. So based on the signing statements we have
seen, it wouldn't shock anybody to see one in the case you have
described.
Congressman Kucinich, what is the factual basis for your
claim that the President made knowing, untrue state--for the
White House made untrue statements to the Congress which led us
into war?
Mr. Kucinich. Mr. Chairman, Members of Congress and Mr.
Ellison, I took Senate Joint Resolution 45, which came from the
White House; I took H.J. Res. 114, which we passed, which was
essentially the same. I examined it line by line, and in doing
so was able to come to an easy conclusion that the
representations that were made in both of these resolutions,
substantive representations, were, in fact, not backed up by
fact.
Mr. Ellison. Could you sort of----
Mr. Kucinich. Were not backed up by fact. Excuse me?
Mr. Ellison. I was going to ask the Congressman to
summarize the representation for people----
Mr. Kucinich. Well, for example, in both--and when I speak
to this, I speak to both S.J. Res. 45 and House Joint
Resolution 114, and this is what we acted upon. We were told
that Iraq was continuing to threaten the national security
interest of the United States. That is a direct quote from
this--these resolutions. It not only turned out not to be true,
but there was intelligence that existed at the time that
suggested that the White House knew then that it wasn't true.
That we were told in this resolution that Iraq was continuing
to possess and develop a significant chemical and biological
weapons capability. We have learned since then that was not
true, and there is evidence to suggest that the White House
understood at that time that it was not true and nevertheless
represented to the Congress that it was.
And so we were told that Iraq was actively seeking a
nuclear weapons capability, that Iraq had a willingness to
attack the United States, that Iraq had demonstrated capability
and willingness to use weapons of mass destruction, that Iraq
could launch a surprise attack against the United States or its
Armed Forces, that there was an extreme magnitude of harm that
would result in the United States--that would result to the
United States and its citizens from such an attack, that there
was justification for the use of force by the United States to
defend itself, that Iraq had--that there was an attempt to
connect Iraq with 9/11 and with al-Qaeda's role in 9/11, and
over and over saying Iraq had weapons of mass destruction.
This came from the resolutions which Congress was presented
and which, based on information and belief, Members of Congress
acted upon and gave the President the authorization to use
force. So what I have done is to very narrowly present a case
so it is narrowly tailored to exactly what it is we were told.
I don't even--Mr. Chairman, I don't even get into the
discussion of what the Senate Intelligence Committee got into
in terms of the statements that were made about biological,
chemical and nuclear weapons. I would say you don't even have
to go that far.
And so what I would humbly recommend that the Committee do
is to--is to start with the postwar analysis that has
incontrovertible proof that all of these assertions that were
made in here were not fact-based. Then you look at the prewar
intelligence, and you can see that the intelligence that was
said to have been acted upon was selective, and there is
questions raised about the role of the Office of Special Plans
in helping to produce it, even though it contradicted time-
honored intelligence that was available from established
Federal agencies in both the CIA and the State Department.
Then you look at which intelligence was right, but not used
or acted upon; which intelligence was wrong and acted upon, and
then go into who was it who helped shape the wrong intelligence
and caused it to be acted upon. And that then, I think, will
lead to a chain of events that inalterably, inevitably must
lead to people in very high positions in this government.
Mr. Ellison. Professor Presser, based on the presentation
that Congressman Kucinich just made, wouldn't you agree that
there is at least a basis for an inquiry that could lead to
impeachment, just based on those facts if proved.
Mr. Presser. If proved, I would think so, but we have heard
some suggestions that that view of the facts is incorrect.
Mr. Ellison. Right. But wouldn't you agree that it would be
the Senate's obligation to weigh the facts, not--is that right;
wouldn't you agree with that?
Mr. Presser. I think you mean the House in this case.
Mr. Ellison. Well, I would say ultimately the Senate would
be the one to decide whether or not a case had been proved or
not, but it would be the House to see whether the--these facts
could rise to the level to form an accusation.
Mr. Presser. Yeah. You have to decide whether they are
accurate or not.
Mr. Ellison. Right. But if proved, if Congressman
Kucinich's offerings were proved, wouldn't you agree that would
form the basis of an inquiry that could lead to impeachment.
Mr. Presser. I think they could form the basis of inquiry,
sure.
Mr. Ellison. And, Mr. Rabkin, wouldn't you also agree that
if proved--now, of course, you don't--you may not agree with
the facts as Mr. Kucinich offered them, but wouldn't you agree
that if proved, that would form the basis of an inquiry for
impeachment.
Mr. Rabkin. I am not sure what exactly we are talking about
now. What I understood Congressman Kucinich to be saying, was
that he thinks what the Administration presented to Congress
has not been borne out by what we have learned since. Now, that
does not seem to me impeachable. If what he was saying is the
Administration knowingly and deliberately deceived Congress,
that would be in a different category. If that is what we are
talking about, that they knowingly and deliberately deceived
Congress, yes, that could be the basis of an inquiry.
Mr. Ellison. Okay. Now, Congressman Kucinich, am I----
Mr. Kucinich. If I may.
Mr. Ellison. Could you clarify for----
Mr. Kucinich. If I may, it is the proper role of the
Judiciary Committee, given that we--that Congress received a
resolution that made representations that all turned out to be
categorically--that most of which turned out to be
categorically false. It would then seem to me that it would be
appropriate to make an inquiry so you can get the truth. Then
if the truth backs up that the Administration made
misrepresentations, then it would be up to the Committee to
decide whether to forward that in a form of a report to the
full House and whether the House then as individual Members
would act upon it.
Mr. Ellison. But, Congressman----
Mr. Kucinich. The only reason I am here, and the only
reason that I have been pushing for a moment like this, where
in a 6-hour hearing now where Members of the Judiciary
Committee could have things laid out in front of them, is to
get to the truth. Let us find out what the truth is. Was
Congress presented with a case for war that was not based on
the truth? And if that happened, then we have to--there has to
be consequences.
Mr. Conyers. The gentleman's time has expired.
The Chair by unanimous consent would recognize the
gentleman from California.
Mr. Lungren. Thank you, Mr. Chairman. I appreciate it, and
I realize the indulgence as a result of you allowing
Congressman Kucinich to come back and testify once again on a
separate panel.
I would just like to point out a couple things, because you
have asked questions of some of the people here who have been
prosecutors, and a number of us have been. I remember
prosecuting a very difficult case on perjury coming out of one
of the most racially charged issues, cases in California, the
O.J. Simpson case, and I was required to prosecute perjury that
came out of that. And one thing that guided me in that was
there is an essential difference between a misstatement and an
intentional misstatement. While we were able to show perjury in
a particular case, we had to prove in the first instance that
it was a misstatement, that it was material and intentional, in
this case under oath.
There were plenty of allegations during the time I was
attorney general of crimes committed by individuals, and the
one thing I learned, that allegations or assertions of criminal
misconduct or misconduct are easily made. And the distance
between an assertion and proof and conviction, or in this case
impeachment, is a long road. And I would just hope that we
would understand there is a huge difference between a
misstatement of facts and an intentional misstatement of facts,
and that 20/20 hindsight is not the basis upon which you bring
a charge of either perjury or impeachment.
Mr. Nadler. Will the gentleman yield?
Mr. Lungren. Well, I will be happy to yield, but, you know,
I have sat here for a half hour or 45 minutes without a single
opportunity for this side to say anything.
Mr. Nadler. I just want to ask you a question.
Mr. Lungren. Yeah, sure.
Mr. Nadler. In connection with what you were just saying,
it has been brought out here today that assertions or reports
were made to Congress saying that the intelligence says this,
that and the other thing, when, in fact, intelligence said, we
think this, that and the other thing, but we are not sure, and
we have dissents, and all the dissents and the caveats were not
there. Is that not, in your opinion, prima facie deliberate
misrepresentation?
Mr. Lungren. No, no, that it is not. And once again, Mr.
Chairman, I have not raised objections here to the conduct of
this hearing, but when, in fact, there are allowed to be
responses by the audience, it tends to be an attempt to either
change or intimidate witnesses here. And that is why people
should understand why this is important. It is not that people
are attempting to try and muzzle first amendment rights; it is
when we invite people here to testify, they should testify to
the best of their ability without any sense that behind their
back, that behind their back there is going to be a response in
one direction or another. And I am saddened to see that
continue here.
Mr. Conyers. Will the gentleman yield?
Mr. Lungren. Yes, I would yield.
Mr. Conyers. I want to make it clear that we have been
exceedingly tolerant of responses from our invited guests, but
staff is going to--when we adjourn immediately after Mr.
Lungren finishes, if there are any disruptions, those people
identified will not be invited to these hearings again. So I
ask everyone to please join us in an orderly dismissal of these
hearings.
Mr. Lungren. I thank the Chairman for that.
The only point I would make in response to my friend from
New York is that we have it on the record that the CI Director,
at that time Mr. Tenet, who I believe was a carryover CIA
Director, if I am not mistaken, used the word ``slam dunk''
with respect to the crucial part of this evidence, number one.
Number two, and I know some people may be tired of hearing
this, but I have been rereading Eisenhower's memoirs of World
War II called Crusade in Europe. He makes the point on several
occasions that intelligence is never perfect, that intelligence
is often wrong, and that you go on the best intelligence that
you have. Perhaps the best example he gives of that is when we
went into North Africa for the purpose of trying to secure that
area prior to the time we moved up the Mediterranean into
Europe, and he was assured by our best intelligence at that
time that our troops would be welcomed with open arms by the
French citizens and others that were under French control. In
fact, when the American forces and British forces got there,
they were bitterly opposed and went through days of attack. And
Eisenhower makes the point specifically in his memoirs that
that was the best intelligence they had. It was dead wrong, and
it probably resulted in the death of people that were under his
command, but he didn't do it intentionally. He did it based on
the best intelligence he had. And he goes on to say, it is
difficult for people who are not there to be able to convey or
understand the fog that exists with respect to intelligence.
That is the only point I am trying to make. We make
presentation here as if intelligence is something so clear. The
reason it is called a National Intelligence Estimate is because
it is an estimate.
Mr. Nadler. Would the gentleman----
Mr. Lungren. And the President tries to make the best
judgment with that information. And for him to reach a
conclusion that he believes the evidence and presents that is
not a case of lying, it is a case of the President making his
best judgment at that time.
The last thing I would say is this: We should be reminded
that in these cases--and when we talk about--and FISA has been
brought up here a number of different times and different
investigative techniques. The Administration did bring in
leadership on a bipartisan basis to give them this information
and to ask for their advice. And we in this Congress have the
right perhaps to pass legislation to expand the number of
people who are brought into those consultations. We have made
the judgment in the past that ought to be limited to the
Democrat and Republican on the Intelligence Committees and of
our leadership in the House Chambers. Maybe that is something
we should consider. Maybe we should pass legislation saying we
want a wider circle of Members of Congress on a bipartisan
basis.
But I am just--the way that has been portrayed as all evil
versus all goodness and a President that is absolutely champing
at the bit to somehow violate the Constitution I just think
is----
Mr. Nadler. Would the gentleman yield?
Mr. Lungren. I would be happy to yield.
Mr. Nadler. Thank you.
First of all, I just must comment that when we invaded
North Africa, there was considerable uncertainty as to what
Admiral Darlan would do, and there were a lot of negotiations
with him behind the scenes.
But be that as it may, the issue is not whether the
President was correct in his estimate or whether the
intelligence was correct. The intelligence is always a fog, you
are quite correct in that. The issue is that whereas the
intelligence that the President was given had all sorts of
caveats and said, we think this, but some people think that,
this division thinks that, that division thinks that, we are
not sure, we think that this is correct, the President is
absolutely entitled to take the minority or the majority view,
you know, and say, I think that, this, fine.
But I think it is a prima facie--the problem here is that
when he reported to Congress on the--and the
misrepresentations, he did not say there is a division in the
intelligence; the majority thinks this, the ``Department of
Whatchamacallit'' thinks that. He made categorical statements.
He said, we know this, we know that, when, in fact, it was
quite clear we didn't know this, we thought this.
Mr. Lungren. Well, I will reclaim my time and just say the
President was basing it not only on the National Intelligence
Estimate, but also the conclusions of the Intelligence
Communities around the world. Tony Blair has stated that he
believed it. The French Government believed it. The Israelis,
who have about as good an intelligence service as in the world
relative to ours--I think ours is the best--also believed it.
I don't think you can find an impeachable offense based on
the fact the President took these estimates and, in the context
of the other Intelligence Communities of the world agreeing
with it unanimously, then made the presentation to Congress.
Now, we can agree or disagree. You can say this is
maladministration, a mistake by the President, but it is not
the basis for impeachment. And I know we have gone on very
long----
Mr. Scott. Will the gentleman yield?
Mr. Lungren. I will be happy to yield.
Mr. Scott. Just very briefly. If you draw those
conclusions, then I think you are right, but some, based on the
facts that were available, think that if we review it, we may
or may not find that--a different conclusion, that we were, in
fact, misled, if we can get all the information. But we haven't
gotten all the information.
Mr. Lungren. Well, I appreciate it, although it is
incontrovertible with respect to the conclusions of the other
intelligence agencies, and I think--well, I----
Mr. Conyers. Gentlemen.
Mr. Lungren. I thank the Chairman for his indulgence.
Mr. Conyers. The time of everybody has expired. And I want
to thank the Members that were able to stay through 5 hours of
hearings, but what about the witnesses who stayed through 5
hours of hearings? We thank you very much.
I think Mel Watt was right. These are the most important
hearings that we have held in the Judiciary Committee during
the 110th Congress. This transcript will be examined. We leave
it open for 5 days so that if there are any corrections that
witnesses want to make, or any additional submissions that they
would like, or any questions that Members of the Judiciary
would like to present to our witnesses, the record will be open
for that period of time.
This hearing is adjourned. Thank you so much.
[Whereupon, at 4:15 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
