EXECUTIVE ACCOUNTABILITY ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 743
__________
JULY 27, 2009
__________
Serial No. 111-72
__________
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 DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
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JULY 27, 2009
Page
THE BILL
H.R. 743, the ``Executive Accountability Act of 2009''........... 3
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Ted Poe, a Representative in Congress from the
State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 6
WITNESSES
The Honorable Walter B. Jones, a Representative in Congress from
the State of North Carolina
Oral Testimony................................................. 7
Prepared Statement............................................. 19
Mr. Louis Fisher, Specialist in Constitutional Law, Law Library
of the Library of Congress, Washington, DC
Oral Testimony................................................. 23
Prepared Statement............................................. 26
Mr. Bruce Fein, Legal Consultant, Washington, DC
Oral Testimony................................................. 42
Prepared Statement............................................. 44
Mr. Jonathan F. Cohn, Partner, Sidley and Austin, Washington, DC
Oral Testimony................................................. 57
Prepared Statement............................................. 61
APPENDIX
Material Submitted for the Hearing Record
Senate Intelligence Committee Report submitted by the Honorable
Walter B. Jones, a Representative in Congress from the State of
North Carolina................................................. 83
EXECUTIVE ACCOUNTABILITY ACT OF 2009
----------
MONDAY, JULY 27, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Jackson Lee, Gohmert, Poe,
and Lungren.
Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger,
Counsel; Veronica Eligan, Professional Staff Member; (Minority)
Caroline Lynch, Counsel; and Robert Woldt, FBI Detailee.
Mr. Scott. The Subcommittee will now come to order.
I am pleased to welcome you today to the hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security on the
Executive Accountability Act of 2009.
There are no more important communications from the
executive branch to Congress than those which urge sending our
troops into harm's way. Our soldiers and their families
sacrifice in so many ways, some making the ultimate sacrifice
in order to protect us. We owe them our best judgment based on
the best, most complete, and most accurate information as to
when sending them into battle is absolutely just and necessary.
The President, Senators and Members of the House take an
oath to defend the Constitution, as do our soldiers; and in so
doing we pledge to respect the limitations of each branch's
role established by the Constitution's systems of checks and
balances. Our branches of national government are separate but
interdependent; and candid communications between them is
critical for our citizens to be effectively and honestly
represented, particularly on an issue such as military action.
Today, we will examine legislation focused on ensuring that
Congress can rely on the truthfulness of statements made by the
President and executive branch officials about when it is
necessary to use our military. The bill before us seeks to
amend the Federal Code to specifically prohibit false
statements that are made knowingly and willfully by the
President or other executive branch officials for the purpose
of influencing a Member of Congress to authorize the use of the
Armed Forces of the United States.
We have a number of things to keep in mind as we discuss
this legislation, such as the historical background of
communications between the executive branch and Congress with
respect to the need for war, the nature of the relationship
between the branches of the national government, and our desire
to encourage, not discourage, open and truthful dialogue
between them.
When Congress amended the False Statements Act in 1996 to
ensure that certain misrepresentations to Congress were
prohibited, we were concerned about going too far and
discouraging people from engaging in advocacy and furnishing
information to Congress. I want to hear from our witnesses
about whether this legislation raises any similar concerns.
We also need to consider the extent to which current law
covers the types of misleading communications that have
prompted this legislation and whether the provisions of current
statutes may not apply in this context because, for example,
particular communications may not be under oath or pursuing a
Committee's inquiry. I hope our witnesses will be able to
address this issue, too.
Our first witness will be the author of the bill,
Representative Walter Jones from North Carolina, who will
discuss his motivations for introducing the legislation. We
will then hear from a panel of witnesses who will discuss the
historical context for the legislation, any constitutional
issues that may be involved, and the text of the bill.
[The bill, H.R. 743, follows:]
Mr. Scott. It is now my pleasure to recognize the Ranking
Member pro tem, the gentleman from Texas, Mr. Poe, who is
representing the Ranking Member Mr. Gohmert, at least
temporarily. Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
Glad to see my good friend, Mr. Jones, here today. Thank
you.
We are here today to discuss H.R. 743, the Executive
Accountability Act of 2009, which proposes to criminalize false
statements, false documents, and concealments by executive
branch officials whose purpose it was to influence Members of
Congress to deploy United States' Armed Forces.
On the face of it, H.R. 743 seems like a relatively
straightforward proposition. Congress asks for truthful
information and intelligence before we commit troops or anyone
who intentionally misrepresents that information is subject to
criminal penalties.
The reality of this statement is, however, a lot more
problematic. If the 8 years since 9/11 has taught us anything,
it should be that the world of foreign intelligence--the truth
is not only complicated but sometimes subject to a lot of
political gamesmanship. The question is, should it be a crime
if the intelligence turns out to be incorrect? That is one of
the questions we are here today to resolve, one way or the
other.
At times, both Congress and the executive branch are forced
to act on the best intelligence available at the time. These
are judgment calls that will be hindered if Congress continues
to criminalize them in the name of politics.
There is absolutely nothing wrong with expecting the
executive branch, starting with the White House and working
down throughout the intelligence community, the entire
executive branch, to provide Congress and the American public
with truthful, accurate information justifying the commitment
of United States troops and the loss of American lives anywhere
in the world. Similarly, there is nothing wrong with Congress
exercising oversight to review intelligence failures. After
all, that is our obligation under the law.
We in Congress do have an obligation, however, not to
Monday morning quarterback those decisions for political
reasons simply because we have the benefit of hindsight. By
continuing to politicize these decisions and sometimes actually
attempting to criminalize them, we are creating an environment
where not only is it likely that less information will flow
from the executive branch to Congress but one where future
Presidents are going to increasingly be inclined to act
unilaterally when deploying our Armed Forces, and that is an
unfortunate outlook.
We also must remember that Title 18, section 1001, already
makes it a Federal crime to provide false statements or
documents to Congress using the exact language that is proposed
in H.R. 743; and a Federal perjury charge would often exist in
situations where a witness testifies before Congress. I am
looking forward to seeing what the difference is in section
1001 and H.R. 743 from Mr. Jones.
The last thing we need to do is further proliferize and
criminalize the Federal Criminal Code. As we discussed last
week, there are 4,450 Federal crimes now in the United States,
with the Congress adding 50 more every year.
As a Member of Congress, I want to promote an environment
where there is an open, honest dialogue--with emphasis on the
honest dialogue--with the White House and the intelligence
community in making those decisions. I still am open-minded
regarding H.R. 743.
That said, I thank all of our panelists for being here; and
I look forward to hearing the thoughts on this bill and some of
the questions answered.
I yield back my time, Mr. Chairman.
Mr. Scott. Thank you, Mr. Poe.
We have two panels of witnesses who will help us consider
this bill. First, we will hear from the author of the
legislation, a senior Member of the United States House of
Representatives who serves on the Armed Services and Financial
Services Committees and is Chair of the Military Personnel--
excuse me, Ranking Member of the Military Personnel Oversight
and Investigation Subcommittee. And has been a Member of the
House since 1994?
Mr. Jones. Yes, sir.
Mr. Scott. 1994. So we look forward to hearing from our
witness today. Representative Jones.
TESTIMONY OF THE HONORABLE WALTER B. JONES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. Jones. Mr. Chairman, thank you very much; and, Ranking
Member Poe, thank you as well. I am pleased and honored that I
would have the opportunity to testify today on H.R. 743, the
Executive Accountability Act.
I would like to begin by reading an excerpt from an essay
that appeared in Time Magazine in 2006. The essay is authored
by Lieutenant General Greg Newbold and is entitled ``Why Iraq
Was a Mistake.'' He states:
``From 2000 until 2002, I was a Marine Corps Lieutenant
General and Director of Operations for the Joint Chiefs of
Staff. After 9/11, I was a witness and therefore a party to the
actions that led us to the invasion of Iraq--an unnecessary
war. Inside the military family, I made no secret of my view
that zealots' rationale for war made no sense. And I think I
was outspoken enough to make those senior to me uncomfortable.
But I regret now that I did not more openly challenge those who
were determined to invade a country whose actions were
peripheral to the real threat--al-Qaeda. I retired from the
military 4 months before the invasion, in part because of my
opposition to those who had used 9/11's tragedy to hijack our
national security policy.''
Later in the essay Lieutenant General Newbold cites, and I
quote, ``the distortion, the distortion of intelligence in the
buildup to the war.''
Chairman, I would like to submit a copy of his article for
the record.
Mr. Scott. Without objection.
[The information referred to follows:]
__________
Mr. Jones. After reading this article I met with Lieutenant
General Newbold and at least 18 other key figures, including
Senator Chuck Hagel, a Member of the Senate Intelligence
Committee, to discuss the justification for the war in Iraq.
After these meetings, I was convinced the war in Iraq was not
justified. Chairman, I would like to submit the names of those
that I met with for the record.
Mr. Scott. Without objection so ordered.
[The information referred to follows:]
__________
Mr. Jones. I introduced this bill after many, many
reflections on the war in Iraq and the Vietnam War. In Vietnam,
58,220 Americans lost their lives. Last week, a column appeared
in the Raleigh News and Observer entitled Vietnam 1959 to
Afghanistan 2009; and, Mr. Chairman, I would like to ask again
if I might submit this for the record.
Mr. Scott. Without objection.
[The information referred to follows:]
__________
Mr. Jones. The author, Joseph Galloway, recounts a meeting
between then Secretary of Defense Robert McNamara and President
Lyndon Johnson. He writes:
McNamara dictated a Top Secret/Eyes Only memo to Johnson
dated November 30, 1965. In that report he said the enemy had
not only met but had exceeded our escalation of the war and we
had reached a decision point. In McNamara's view, there were
two options. Option one, we could arrange whatever diplomatic
cover we could arrange and pull out of South Vietnam. Option
two, we could give General Westmoreland the 200,000 more U.S.
troops he was asking for, in which case we would have more than
500,000 Americans on the ground, and they would be dying at the
rate of 1,000 a month. He was wrong. The death total would
reach 3,000 a month at the height of the war. All we can
possibly achieve by this is a military stalemate at a much
higher level of violence, McNamara concluded.
On December 15, 1965, the President assembled what he
called the ``wise men'' for a brainstorming session on Vietnam.
Johnson entered the Cabinet room holding McNamara's memo. He
shook it at McNamara and asked, Bob, you mean to tell me no
matter what I do I can't win in Vietnam? McNamara nodded yes;
that was precisely what he meant. This was 1965, 10 years
before the last helicopter lifted off the roof in Saigon.
In that case, the President knew we could not win the war,
yet he continued on. After that date in 1965, over 56,000
Americans were killed in Vietnam. I bring this up to remind us
that the arrogance of power by previous Presidents have
prevented them from changing course, from relaying key
information. As many have said before me, if we cannot learn
from history, we will repeat it.
Members of Congress must be able to trust our President at
his word, especially when making decisions to go to war.
On October 7 of 2002, while giving a speech in Cincinnati,
Ohio, President Bush talked about Iraq's possession of weapons
of mass destruction. He said: The Iraqi regime possesses and
produces chemicals and biological weapons. It is seeking
nuclear weapons.
In that same speech he said, and I quote, ``The evidence
indicates that Iraq is reconstituting its nuclear weapons
program.''
Chairman, I would like to submit a copy of the Senate
Intelligence Committee's report June 2008, where these
statements were documented.
Mr. Scott. Without objection.*
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*The information referred to is available in the Appendix.
---------------------------------------------------------------------------
Mr. Jones. I bring up these examples to make the point that
we rely on our President's statements when we send U.S. troops
abroad.
But let me be clear. The bill is not about the past. The
bill is not retroactive and would only apply to Presidents in
office during and after the signing of this bill should it
become law. In the future, a President must be certain to
defend his justification for sending Americans into harm's way
where death is a very real possibility; and a President should
be held responsible for sending Americans into jeopardy without
verifying the facts for going to war. The President does not
have the power to go to war simply because it is the
President's wish.
I would like to briefly outline the Executive
Accountability Act provisions. The bill would impose criminal
penalties on Presidents or executive agency officials who
knowingly and willfully mislead Congress for the purpose of
persuading Congress to authorize the use of Armed Forces; the
bill would suspend the running of the 5-year statute of
limitations until the end of the term of the President in
office at the time the offense is committed; and the bill would
enable a simple or concurrent resolution by Congress to trigger
a referral of a violation to the attorney general. As I have
mentioned, the bill would apply to present and future
Administrations only, not past Presidents or executive agency
officials.
This bill would be inserted at the end of Chapter 47 of
Title 18 of the United States Code. This bill is different from
existing law--namely, 18 U.S.C. 1001, the False Statements
Act--in that it explicitly applies to the President. Legal
scholars disagree as to whether or not, theoretically, 18
U.S.C. 1001 would be applied to a President. I think it is
important for this Congress to express that it is unacceptable
for a President to mislead the Congress when making the case
for going to war. This bill makes it clear that a President
cannot willfully or knowingly mislead the Congress to authorize
the use of United States Armed Forces.
While this bill does not apply to the past, we should learn
from the past and demand that our President and executive
branch officials do not mislead Congress when asking for
authorization to go to war. Lieutenant General Newbold notes in
his Time Magazine essay, and I quote, ``In 1971, the rock
group, The Who, released the antiwar anthem, ``We Won't Be
Fooled Again.'' General Newbold further states, ``To most in my
generation, this song conveyed a sense of betrayal by the
Nation's leaders, who had led our country into a costly and
unnecessary war in Vietnam.''
To me, this song serves as a reminder of the importance of
the President's truthfulness when trying to gain support for
use of Armed Forces. The President should be absolutely certain
of a war's justification, and the Congress must be able to rely
on the President's statements when making a decision to
authorize the use of Armed Forces.
It is my hope that this bill will spark thought and action
on this important issue.
And, Mr. Chairman, before closing, I would like to thank
Bruce Fein, who will be testifying shortly for his help in
drafting this bill, along with my staffer Cybil Roehrenbeck.
And, with that, Mr. Chairman, I want to thank you and the
Ranking Member again. I will close by saying to you, without
any pride but with humility, that I have signed over 8,000
letters to families and extended families in this country
because I believe what I heard in classified briefings. So,
with that, Mr. Chairman, thank you again for this opportunity.
I would be glad to try to answer any questions.
[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. Scott. Thank you.
Mr. Poe, do you have any questions?
Mr. Poe. Well, I have a lot, but I will just ask one, based
on your comments, Mr. Chairman.
Do you think that Congress should revisit the War Powers
Act?
Mr. Jones. Well, Mr. Poe, I really would love to believe
that we would go back to what the Constitution asked the
Congress to do, and that is to declare war. And I think that
anything we can do to put Congress back into the position where
it can advise the President with knowledge that, yes, this is
the right thing to do or not the right thing to do.
Again, I went back to Johnson--I could have gone back
further, but that would not have been helpful. But when I
looked--I read a lot of books. I am not a legal mind as you are
and those that will be testifying behind me. But I read many
books, from War Made Easily, to the Pretext for War by James
Bamford, to the Neo-Conned! Again over the last 5 or 6 years.
And what has troubled me and why I put this bill in, I just
think, if no other reason, that it is going to be fully
explained that a President in the future must know, before I
send American kids to die for nothing, I have to go justify my
decision to the Congress; if not, I might be prosecuted.
I don't see where that hurts one thing or another. I think
it is too important to review what Johnson did and what I read
to you. It is too important to think about the Bush
administration making all these statements and yet--I mean, I
was very disappointed, quite frankly, in November, December
when I saw former President Bush asked by John King, what
mistakes did you make; and his answer was, the first mistake, I
could not find weapons of mass destruction.
I would have said to John King, my heart has ached because
I sent young men and women looking for weapons of mass
destruction that did not exist. I didn't hear that word I am
sorry that I sent these young men and women to die.
And I had a woman in my office 4 years ago to tell me, my
son died looking for weapons that didn't exist. Well, that
might--that is what she thought. It is what has been proven. We
could not find them.
So I have got a little bit off your question. I apologize.
Mr. Poe. One other brief question. The report that you just
submitted for the record, wasn't that drafted along pretty much
partisan lines? There was a strong minority report, majority
report? Of course, that is what came out of the Committee, but
it is pretty much partisan.
Mr. Jones. Well, I would say that on the floor I was one of
those who made that vote. I have apologized with signing those
letters for 6 years.
But, no, truthfully, I believed what I heard. I said that
in my statement. I sat right there for almost every one of the
classified briefings, and I believed what I was hearing.
Mr. Poe. Thank you. Thank you Mr. Jones.
Thank you, Mr. Chairman.
Mr. Scott. Thank you.
Representative Jones, I have questions, but I think I am
going to reserve them for the other witnesses. And thank you
for your testimony and for your compassion on this issue.
Mr. Jones. Thank you, Mr. Chairman. Thank you.
Mr. Scott. If our next panel will come forward.
Our first witness will be Dr. Louis Fisher. Dr. Louis
Fisher is a Specialist in Constitutional Law with the Law
Library of the Library of Congress, after working for the
Congressional Research Service from 1970 to 2006. During his
service with CRS, he was Research Director for the House Iran
Contra Committee in 1987, writing major sections of the final
report. His specialties include constitutional law, war powers,
and executive legislative relations.
Our second panelist will be Mr. Bruce Fein, a distinguished
commentator on legal policy and author of several volumes on
the United States Supreme Court, United States Constitution,
and international law. At the Department of Justice, he
formerly served as the Director of Office of Legal Policy,
Legal Advisor to the Assistant Attorney General for Antitrust,
and Associate Deputy Attorney General. He served on the
American Bar Association's Task Force on Presidential Signing
Statements.
And our final witness will be Jonathan Cohn, who is a
partner with the law firm of Sidley and Austin, who previously
served for several years as Deputy Assistant Attorney General
of the United States Department of Justice. During his tenure
at the Department of Justice, he was in charge of the Civil
Division's appellate staff, which represents the Federal
Government in high-profile civil cases. His caseload covered
administrative law appeals, commercial disputes, national
security issues, and suits challenging the constitutionality of
agency regulations and acts of Congress.
Each of our witness' written statements will be entered
into the record in its entirety.
I would ask each witness to summarize his testimony in 5
minutes or less. To help stay within that time, there is a
lighting device at the table that will begin at green, turn to
yellow when there is 1 minute left, and turns to red when the 5
minutes have expired.
And we will begin with Dr. Fisher.
TESTIMONY OF LOUIS FISHER, SPECIALIST IN CONSTITUTIONAL LAW,
LAW LIBRARY OF THE LIBRARY OF CONGRESS, WASHINGTON, DC
Mr. Fisher. Thank you very much, Mr. Chairman, Mr. Ranking
Member.
I appreciate the hearing today because it gives Congress an
opportunity to decide what information it needs when it makes
the most important choice possible, sending troops to war.
When we look at the bill introduced by Congressman Jones, I
think it is consistent with two broad themes in American
history; and one is what the Framers new about going to war
and, secondly, what we know from the Framers up to now about
going to war.
What the Framers knew when they looked at other countries
going to war is that single executives go to war not for the
national interest. They go to war for reasons of military
glory, for fame, for ambition; and the result of those wars was
a calamity for the country both in terms of lives lost and
fortunes squandered.
So the Framers did not trust in human nature, particularly
not in single executives going to war. And if you look at their
deliberations they understood that the decision to take the
country from a state of peace to a state of war was to be given
to Congress alone. Congress through the deliberative process
would decide whether to make that fateful choice.
What the Framers understood was to reject the British model
that gave all of the executive power over foreign affairs in
war to the executive. That was the Blackstone model; that was
the John Locke model. And, instead, all the prerogatives that
Blackstone spoke about in his work, not one of his prerogatives
is given to the President. They are given to Congress in
Article 1, or they are shared between the President and the
Congress, such as treaty making and appointing ambassadors.
So that is what the Framers knew, not to trust single
executives. They go to war for wrong motivations.
What we have learned since that time I think confirms what
the Framers knew about human nature and single executives, is
that we have, at least since the Mexican War on, we have wars
started by Presidents and executive officials on the basis of
false information. It is a fairly steady track record from the
1840's up to the present time. So there is a basis for this
bill.
I appreciate what you said, Mr. Chairman, about what
happened in 1995 and 1996 when this Subcommittee met to decide
what to do after the Supreme Court case in Hubbard. And because
of the court decision, the False Statements Act would have
criminal prosecution when you make false statements to the
executive branch but not when you make false statements to
Congress. So, of course, you had to fix that; and you did.
But I think this Subcommittee and Congress did a very
thoughtful job in making sure that other values were protected.
So you wanted to protect the adversary process in court. You
didn't want attorneys in court, in their briefs and oral
argument, worrying about a false statements prosecution; and
you also wanted to protect the information that Members of
Congress need coming from constituents to you and to your
staff. And you protected that. So I think there is a way to
protect the main value and other values as well.
I say in my statement, I don't think there is any bill of
attainder here. Whatever punishment comes, comes not from
Congress, as with the Lovett case, but comes from the Justice
Department deciding to prosecute and what happens in the
courts.
And I also don't think there is any legislative veto or
Chadha problem, because you are not trying to control anything
in the executive branch. You are just referring a report.
I do have some thoughts at the end of my statement about
the bill. I assume that anytime Congress, through a resolution
of the two Houses, through a concurrent resolution, submits
something to the Attorney General that will be in a report, it
will be fully documented, there will be an opportunity of the
individual to submit documents, to see documents, to have
counsel, and so forth, all your procedural safeguards.
The second point is about prosecuting the President. I
think many of us would find it not likely that the Justice
Department would want to have a criminal prosecution against a
President. But I would say, in addition to having a report
involving the President go to the Attorney General, it would go
to the Judiciary Committees for consideration of impeachment.
And I can see situations where there is enough information
coming in about a President where impeachment is not necessary,
that the President decides on the basis of information that it
is time to retire from office; and we have precedence of that
not only for Presidents but for Vice Presidents.
Giving notice to Congress (in my appendix on the Cambodian
operation) on the false statements given by President Nixon,
the House Judiciary Committee considered whether to have an
article of impeachment. It decided not to in part because,
although President Nixon spoke falsely to the Nation and to
Congress, he told the truth to a couple of Members of Congress
in secret.
So I don't know what the Committee wants to do about that,
but I don't think it is acceptable to have Presidents making
false statements to the country and to Congress in public and
then telling the truth to a few people in private.
The last thought, in addition to what was done under this
bill, Congress needs, at the time statements are made by the
State Department, the Defense Department, by the President, to
do your regular oversight; and when people make public
statements or statements to you, to call them before you under
oath and ask them on what basis they have. And you have to do
that at the moment. You can't do it years later when many of
these people in public office, I am afraid, will make false
statements or misleading statements and assume that they will
soon retire from the government after 2 years and then go back
to private life.
Thank you very much.
[The prepared statement of Mr. Fisher follows:]
Prepared Statement of Louis Fisher
__________
Mr. Scott. Thank you.
Mr. Fein.
TESTIMONY OF BRUCE FEIN, LEGAL CONSULTANT, WASHINGTON, DC
Mr. Fein. Thank you, Mr. Chairman and Members of the
Committee.
I want to begin by expressing what I think is the clear
constitutional basis for the bill; and then I want to address
some of the issues that have been raised about the application
of the False Statements Act, politicization or otherwise, that
I think Congressman Poe had addressed in his opening statement.
I think it is absolutely clear, as Mr. Fisher expressed,
the Founding Fathers were unanimous that the sole power of
initiating authority for war was with the Congress. The express
statements are too numerous to enumerate in a particular
hearing, but it ranged from those who supported a strong
legislative branch to those who wanted a very muscular
executive, the latter being Alexander Hamilton, who, despite
being known as someone who is a strong proponent of perhaps
even a semi monarchy, still in the Federalist Papers made clear
that, unlike the King of Great Britain, the President of the
United States would not have any authority to initiate war.
So we start out with a clear, exclusive authority of
Congress to initiate war. And so under the Article 1, section
8, clause 18, the necessary and proper clause, Congress is
entrusted with authority to pass laws that are necessary and
appropriate to assist the regulation or implementation of that
power. And, obviously, one way in which necessary and proper
clause works there is to ensure that Congress is receiving
accurate information, or at least not knowingly false
information, from the President of the United States that bears
materially on their decision whether or not to authorize war.
And, remember, here this is not a First Amendment problem
about freedom of speech. The only kind of speech that would
expose the President to criminal penalties is speech that is
knowingly false and materially false. That satisfies what the
lawyers call The New York Times and Sullivan standard of
protecting speech. When it is knowing and intentional and it is
a materially false statement of fact, it is not protected by
the First Amendment. That is why I don't believe that there is
any problem in the application of this law to Presidential
statements.
Now, there is another question. What would this law incline
the President to do? If the President wanted an absolute shield
against any conceivable accusation that this was violated, he
simply needs to share all of the information he relied upon to
Congress, which is what we like him to do. He doesn't have to
share it in public. He can share it in executive session. And
then he says, based upon my opinion, this justifies war.
But he can't be accused of a false statement. He is letting
Congress have access to the same information that he had.
Congress makes their independent decision. He could not
possibly be accused of violating this law, because he is not
making a personal assertion of fact that he knew that it was
materially false.
Now, what it is that makes this statute very, very
important in my judgment is going back why do we need to worry
about false statements by the President, knowingly false to get
us into war. The Founding Fathers understood, as Madison said,
when war comes, the President gets the secrecy, he gets the
money, he gets the possible glory of transforming the world, if
you will.
The Congress needs to have to make the best decision,
because it doesn't have any incentive to warp or skew the
danger to get us into war. When war comes, Congress doesn't get
the money. Congress gives the money. Congress doesn't get the
secrecy. Congress doesn't get the appointment power. Congress
doesn't get the fame and remembrance.
It doesn't mean that Congress is infallible. Like any
institution, it can make errors. But Congress doesn't have any
systematic incentive to inflate danger to get us into needless
wars because they don't get benefits. They get the tragedy of
writing, as Congress Jones said, to the mothers and fathers of
their children who have died, why did you die.
And I think if you look historically there has never been
an abuse or a rush of Congress into war. They have been
encouraged, exhorted by the Presidents. The most recent being,
of course, the Gulf of Tonkin resolution that was passed when
President Johnson, perhaps in good faith, misrepresented the
alleged North Vietnamese torpedo attacks on U.S. ships. But it
is not Congress that is rushing us into war.
I don't believe that, given the importance of this
particular statute, that we should leave it to the ambiguities
of the false statements laws to whether it applies to the
President or not. We know that in the context of the Iraqi war
resolution, when there were clear misstatements made, whether
they were knowing or not, about weapons of mass destruction, I
don't know anyone who was saying, hey, how come 1001 doesn't
apply. I think there is obviously clear ambiguity or
uncertainty as to whether it applied.
When it comes to the President, it is not fair to leave him
to snares out there and letting him guess whether the statute
applies. We want to make it as unambiguous as possible so he
has fair notice and fair warning.
And the last issue of can this statute be politicized in
its enforcement capacity, can Congress politicize the
enforcement, well, Congress doesn't have authority under
separation of powers to initiate a criminal prosecution. They
can make recommendations, as they can with regard to any other
alleged violation of the Criminal Code, whether it is
obstruction of justice or otherwise, but the ultimate decision
here is in the executive branch. It can be by a special
prosecutor, but Congress certainly cannot politicize this
particular matter.
Now, that doesn't mean to suggest that in the executive
branch it can't be politicized. Obviously, that is true of
every single crime there is. Because the Constitution does
entrust the prosecutorial discretion to the President and the
President alone, absent I guess you could create an independent
council, as was done with regard to the Morrison Olson case,
that would be outside the President's authority to fire
unilaterally.
But, overall, Mr. Chairman I believe this is a sound bill.
I think it is an urgent bill.
I think we have two possibilities on the horizon where it
might arguably come into play. One is Iran. We know the
arguments about possessing weapons, nuclear weapons, and
warheads and whether Iran is about ready to attack Israel, that
kind of thing. That could be a case where war could be on the
horizon.
The other is in Pakistan, where you could imagine a
President saying, you know, Taliban is about ready to take over
the country, Pakistan is a nuclear-armed country, we need to go
to war, things of that sort.
I am not suggesting that a President would make
misstatements, but the idea that wars are over, we are not
going to confront problems with Presidential characterizations
of danger are gone, I think are misplaced.
Thank you.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
__________
Mr. Scott. Thank you.
Mr. Cohn.
TESTIMONY OF JONATHAN F. COHN, PARTNER,
SIDLEY AND AUSTIN, WASHINGTON, DC
Mr. Cohn. Thank you, Mr. Chairman and Members of the
Subcommittee.
Like other members of this panel, I suspect pretty much
every single person in this room, I believe that communications
between the executive branch and Congress should be truthful
and candid always and especially in the context when the
country makes the grave decision to send its children off to
war.
But, that said, I remain unconvinced that H.R. 743 is an
appropriate way to mandate truthfulness and improve
communications between the political branches. As an initial
matter, the bill's effect would be constitutionally limited in
three significant respects; and even when permitted by the
Constitution the bill will be more likely to inhibit
interbranch communication than to promote it.
I will begin by addressing the constitutional concerns.
Although H.R. 743 is not unconstitutional on its face, it could
be unconstitutional in a few of its applications; and courts
would be likely to construe the statute along those lines.
First, under the ex post facto clause, the bill cannot
apply retroactively, so it could not be used to prosecute
anyone in any previous Administration for the Iraq war or
otherwise.
Second, consistent with the history of open and direct
communications between the White House and the American people,
courts likely will read the bill to cover only direct
communications by executive branch officials to Congress. The
President has inherent authority to address his national
constituency; and in light of the cannon of constitutional
avoidance the bill likely would not reach communications with
the American people or the press, even though such statements,
theoretically, at least, could have the indirect effect of
influencing Congress' decision to authorize the use of force.
Third, the bill's prohibition on concealing a material fact
from Congress likely will be found unconstitutional as applied
to the mere nondisclosure of classified information by
executive branch officials. The Supreme Court has recognized
that the President has power as commander in chief to classify
and control access to national security information. So, again,
courts are likely to read limitations into the bill if it were
enacted.
Now, as for the many circumstances in which the bill would
not raise constitutional concerns, I am still unable to support
it for pragmatic reasons. Although I share the desire to
promote truth telling in Washington, this bill, in my view, is
more likely to impede interbranch cooperation than to
facilitate it. I am foremost concerned with the potential
chilling effect that the bill could have on interbranch
communications. The fear of potential criminal prosecution
would exact its toll on executive branch officials.
As the Supreme Court has recognized, a mere threat of
monetary liability deters an official's willingness to execute
his office with decisiveness and also discourages able citizens
from accepting public office in the first place. These
concerns, needless to say, are all the more significant when
the penalty is not just money damages but 10 years in Federal
prison.
And here is the problem. In a rapidly developing foreign
crisis you often just don't have complete information, and you
simply do the best with what you have at the time you have to
make that decision. But if more information subsequently comes
to light suggesting that an official previously should have
known his statement was false, it may be difficult for him to
disprove the allegations and the inferences against him. It is
the Monday morning quarterbacking that Congressman Poe alluded
to earlier. That is the concern.
And this is especially true if the prior Administration's
position has become unpopular and a new Administration is more
interested in attacking its political enemies than addressing
the country's needs. Even if the investigation is eventually
dropped or the official is ultimately exonerated, he will have
had to endure the expense and disruption of defending against
the public accusation.
The results are not ones that Congress should encourage.
For instance, H.R. 743 would create an incentive for the White
House not to seek authorization for the use of force in the
first place. The degree to which congressional approval is a
necessary condition for war making is a controversial and
unresolved debate in Washington for many years, and there is no
need to rehash that issue today. Suffice it to say that, to the
extent that executive branch officials are cognizant of their
criminal exposure in the course of lobbying Congress to approve
the use of force, they, the officials, will be correspondingly
less likely to bring Congress on board as a full partner in the
decision to deploy troops. And that decision might be viewed as
unilateral, but, even if it is, it is not good for Congress; it
is not good for the American people. That is not something this
Congress should encourage.
Moreover, Congress already has the means to protect itself
and to gather truthful information before authorizing the use
of force. This is something which I think some people might
have overlooked. If Congress wants to ensure that executive
branch officials do not mislead anyone in the legislative
branch, Congress can simply take testimony under oath or
conduct a formal investigation or review. Any misstatements in
those contexts could give rise to criminal punishment under the
perjury statute, the False Statements Act, and possibly the
obstruction of justice statute.
There is just little or no need to extend criminal
liability to the many informal interbranch communications that
occur on a daily basis in real time, an extension which may
well inhibit instead of promote the flow of information from
the Administration to Congress.
If I may, there is just one final comment I would like to
make on the bill and its overarching focus and not on any
particular provision. Unlike many nations, Mr. Chairman, the
United States has been blessed with a propensity to look
forward instead of looking backward as a polity. From the first
peaceful transition of power to the Jeffersonian Democrats by
the Federalists, to the efforts to stitch together this great
Nation after the Civil War, to the decision to pardon a
disgraced President, this country has always been well-served
by moving forward instead of dwelling on past grievances.
If a President or his Administration is perceived to have
misled Congress or the public into war, his opponents are very
capable of extracting a political price at the ballot box. For
two reasons, this approach is far superior to a criminal
investigation or prosecution. First, elections distribute
responsibility to the winners and not retribution to the
vanquished; and, second, courts are ill-suited to resolve
controversies regarding America's foreign policy.
H.R. 743 would invite a judge and jury often lacking clear
and reviewable standards to decide what facts were material to
Congress' decision as well as what facts were objectively false
and who knew what. Punishing the ousted regime may be a
preferred course of certain banana republics of the past, but,
with respect, this should not be the United States' path in the
21st century.
I look forward to answering any questions you may have.
[The prepared statement of Mr. Cohn follows:]
Prepared Statement of Jonathan F. Cohn
__________
Mr. Scott. Thank you.
I want to thank all of our witnesses.
We will now recognize ourselves under the 5-minute rule for
questions.
Mr. Fein, Mr. Cohn indicated that this could not be applied
retroactively. There is no question about retroactive
application. It cannot be----
Mr. Fein. That is correct. And, of course, the bill doesn't
purport to apply retroactively, so that has nothing to do with
the statute.
Mr. Scott. Now, he also kind of alluded to the fact that
Congress has so messed up its war powers constitutional
responsibilities. You used the term--the term of the bill is
``influence a Member of Congress to authorize the use of the
Armed Forces of the United States.'' That could be like war,
but it could be the use of the armed services. Is that a term
of art that we kind of know what it is?
Mr. Fein. I think it means authorize the Armed Forces to
take us into a conflict where it becomes legal to murder people
because we are at a state of war with a foreign country.
Mr. Scott. It has been used in the bill as if it is a
resolution kind of like going to war and not just using the
Armed Forces for any kind of military operation that may not
be----
Mr. Fein. Well, I think the issue arises for this reason,
Mr. Chairman. In the past when Congress has appropriated money
or authorized the use of the Armed Forces, they haven't used
the same language. Earlier times, there was a declaration of
war. Sometimes they haven't used those magic words. I think the
key here is whether or not the authorization is intended to see
them involved in conflict with a foreign country. Now we have
organizations as well, if you call them terrorist
organizations.
Mr. Scott. But the sense is that you are talking about an
armed conflict against another country.
Mr. Fein. Yes. Although I think the reason why it has to be
broader is because, of course, we are so-called at war with a
tactic for the first time in history. So we don't want to be in
a situation where the President, you know, he initiates war and
says this doesn't apply because now we are fighting the sister
of al-Qaeda or whatever.
Mr. Scott. The bill uses the term falsifies, conceals, or
covers up. Would it be a violation to selectively present the
case and leave out alternative views?
Mr. Fein. Of course it would. And that is the way in
which--you know, even our securities laws are that way. To fail
to make a statement or to conceal it in light of the context,
which makes the statement in total misleading.
And, Mr. Chairman, I want to draw an analogy to a situation
in the law, the Fifth Amendment privilege against self-
incrimination. You can't go down a road and waive your
privilege and start talking about a subject and then stop in
midstream and say I don't want to answer any more questions.
Once you open it up, you have to tell everything. Because you
can readily see how you can totally skew the true facts by just
telling half of the story.
So if a President does something like this, he says, I have
got one informant who has told me that Iran has weapons of--
they have got a nuclear arsenal that they are just about ready
to launch against Israel in the next 5 minutes. He also has 25
other informants who tell him this informant is a liar and we
have absolute proof that that is not true. And the President
comes and says, well, I am just telling you what the one
informant says and conceals the other 25 informants that
discredits him, that in my judgment is a knowing lie and
certainly would fall within the meaning of this statute.
Mr. Scott. Now, the present law restricts the application
of the law, not the bill but the present law, to cases, quote,
pursuant to the authority of a Committee.
Mr. Fein. Yes. It doesn't apply to the situations where the
President may make statements to Congress, a Committee, an
endeavor, a legislative endeavor. And I know the statement was
made that perhaps this couldn't be applied constitutionally to
statements that were made maybe to Congress and the American
people at the same time, the President goes on television,
because that is a free-speech issue.
Well, I think that is clearly wrong. Remember, this is
limited to statements that the President knows is false. It is
not a false statement of an opinion; it is a false statement of
fact. You can criminalize that kind of speech in other
contexts. The greatest compulsion for criminalizing it, when
you are putting it in context where men and women may go off to
die for the country on a false premise.
Mr. Scott. Well, it not only has to be knowingly and
willfully making the false statements, but it has to be, in the
bill at the bottom of page 2, for the purpose of influencing.
Mr. Fein. Yes.
Mr. Scott. Now, there the idea that this would be a special
situation because people are going to war, are there other
situations--and, obviously, life and death are involved. Are
there other situations where the executive branch may be making
false statements that would endanger people's lives like the
FDA or other areas where the public is endangered because of
false statements?
Mr. Fein. I haven't focused on that, Mr. Chairman. There
may well be. I think the urgency of this statute is because the
consequences for the American people--just go to the Vietnam
Wall--are so much greater. There may be reasons to extend the
idea to other agencies as well.
Mr. Scott. Let me just ask one other question so we don't
have to have a final round.
There has been the suggestion that the present law doesn't
apply to the executive branch, although the present law says,
except as otherwise provided in this section, whoever in any
manner--why would anybody--what difference would it make what
branch of government or whatever your station in life--why
would you not be covered by whoever?
Mr. Fein. I think the Supreme Court has made it clear that,
in interpreting statutes, they are very loathe to apply
obligations on the President of the United States, that
particular office, in interpreting other statutes, Freedom of
Information Act, Privacy Act, et cetera; and it is something
what you might call like a clear statement rule that is used in
Federalism kind of cases.
And it is arguable to say, well, it is such a grave step,
for the reasons that Mr. Cohn has suggested, to perhaps
penalize a President for making knowing false statements in
these circumstances. We won't impute to Congress an intent to
cover it unless it does so very explicitly. And I am sure
probably the legislative history of this statute doesn't
mention the President in this context, so a court might try to
avoid a tough question by a narrow construction.
Mr. Scott. Thank you.
Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Cohn, I have a few questions for all of you, but I will
try to be brief and your answers to the point.
You said that 743 is not the answer. If 743 is not the
answer for this problem, what is?
Mr. Cohn. Well, with respect, I don't think that this is a
problem that calls for any legislation. But if the problem is
the one that Mr. Fein and Mr. Jones identified earlier, that
the current law 1001 does not cover the President, if that is
the only problem that this Subcommittee wants to address, the
easy solution is simply to clarify 1001 to make clear the
President is covered. There is no reason to enact H.R. 743,
which does much more, namely, cover the hundreds if not
thousands of daily and formal communications that are made
during a crisis between the executive branch and the Congress.
Mr. Poe. Do you think that 743 would have some type of
chilling effect of communication between the executive branch
and the legislative branch as a practical matter or not?
Mr. Cohn. Absolutely. Look, the Supreme Court has
recognized that mere monetary liability--the mere threat of
monetary liability would inhibit executive officials from
performing their duties diligently and discouraging individuals
from joining public service in the first place. Those concerns
are all the more severe when you are talking about 10 years in
Federal prison.
And, look, I mean, the reality is people do the best they
can with the information they have; and crises occur in short
periods of time. You don't have the luxury of being a Monday
morning quarterback. And individuals who are doing their best,
operating in good faith might worry, look, next year, even next
month, new information might come to light that shows I should
have done something differently, but I am still doing the best
I can right now. Not wanting to face the prospect of criminal
liability, he might not do anything. He might not make the
right decision, worrying about the threat of criminal
prosecution. There definitely is a chilling effect.
Mr. Poe. Dr. Fisher, do you want to weigh in on that?
Mr. Fisher. Yes. Right now, 1001 applies to executive
officials; and I haven't heard the argument that that chills
their official duties in the executive branch.
And if I heard Mr. Cohn correctly, you would say that one
of the solutions would be to apply 1001 expressly to the
President, and you would have the same chilling effect there.
So I don't think anyone coming before a Committee or to the
public should have any doubt that the information that they are
giving is in good faith, accurate, and reliable; and there
would be no question about them knowingly or willfully
misleading Congress or the public. So I think there is a
chilling--a proper chilling effect that you speak truthfully,
and I think Mr. Cohn has said that that is the proper standard.
Mr. Cohn. May I respond to that, very quickly?
Mr. Poe. All right, quickly.
Mr. Cohn. There is one very fundamental difference between
1001 and H.R. 443, and this is something I believe that Dr.
Fisher has overlooked. 1001 covers investigations or reviews
and sort of administrative matters. It does not cover the
hundreds or thousands of informal communications that occur all
the time in crises.
Think of the week after 9/11, think of all the
communications that occurred informally between Congress and
the executive branch. Those informal communications or those
phone calls are not covered by 1001. They would be covered by
H.R. 743, and that is a problem. People in the executive branch
are not going to want to pick up the phone if they think every
phone call could subject them to criminal liability. You would
have ultimately, because of the chilling effect, only one line
of communication, the formal investigations review. You would
lose that second channel of intelligence information because of
the chilling effect. 1001 does not cover that; H.R. 743 does.
Mr. Poe. I think that we all want more truth in Washington,
D.C. I think even Congress can handle it. So how do we get
there from here? We want to know the facts. Congress wants to
know the facts so we can pass it on to the American public,
especially when it comes to American troops going somewhere and
having the possibility of dying.
So how do we promote that? How do we get there?
Mr. Cohn. Well, I think you can't promote basic moral and
ethical tenets like that through legislation. I think the
answer is for public officials in both Congress and the
executive branch to follow what they learned in kindergarten
and just do the right thing and tell the right thing and not
depend on critical statutes to plot the way for them. That is
not the answer.
Mr. Poe. Should we apply this to all communication from the
President? In other words, some other issue that doesn't have
anything to do with troops, should we apply that to everything
the President tells Congress?
Mr. Cohn. If Congress were to enact this legislation--and,
with respect, I don't think it should--but if Congress
disagrees and wants to enact this legislation because it thinks
that criminal punishment is the answer, if it thinks that
criminal punishment is the way to get more truth telling, and I
disagree with that, but if Congress thinks criminal punishment
is a way to get the truth, there is no reason to stop at lying
in the context of getting authorization under for use of force.
Why not extend this to every other context, every other
executive branch?
Just take one example. Think of health care. I don't know
if anyone is misspeaking in the context of health care, but
what if, for example, a proposal did not cost $1 trillion, but
rather $4 trillion or $5 trillion, as a result of which it
could saddle this country for generations with enormous debt.
It could perhaps discourage doctors from remaining in medicine.
As a result of that, patients are dying outside hospitals. That
is a problem.
I think if this Congress thinks that legislation is the way
to get more truth telling, it should not stop at force
authorization, but should extend this across the board to
health care and everything else. But I for one do not think
that legislation is the way to get at the truth.
Mr. Poe. Thank you, Mr. Chairman. I yield back my time.
Mr. Scott. Mr. Gohmert.
Mr. Gohmert. Thank you, Chairman Scott. I am sorry I was
late. I had been reviewing information in preparation for the
hearing, but my plane was late due to weather. I see my friend
Walter Jones sitting back here. And I know that there is not a
better heart in all of Congress, anybody who has the best
interest of the country, more than my friend, Mr. Jones. But I
do have concerns about this bill and I keep coming back to the
stuff that really seem to give rise to this.
The Bush administration aired the perception of arrogance
and made some bad decisions along the way. The bailout, in my
opinion, for one thing. They also took the approach that
history will be kind to us down the road, so they quit
defending themselves.
Not many people noticed July of 2008 that 550 metric tons
of yellowcake uranium were removed from Iraq. We had hearings
in this room. And I think one of the most deceptive people I
have seen testify in this room in my 4\1/2\ years in Congress
was a man named Joseph Wilson. Of course, he had said before
Valerie had nothing to do with the matter. She definitely had
not proposed that I make the trip. And when we finally got her
e-mail, it says, My husband has a good relationship with the PM
and the Foreign Minister, not to mention lots of French
contacts. And she said, My husband is willing to help. I mean
she kept pushing, and we finally got her secret memo. She
misrepresented things to the Senate.
I kept going back to his article he wrote in the San Jose
paper in 2002, where he said, A threat could push Saddam to
fight back with the very weapons we are seeking to destroy. He
never made any mention of--in fact, the CIA notes were that he
was concerned about Iraq trying to get yellowcake uranium. And
he never made any mention of it until after France hit the
front page as being guilty of fraud under the Oil-for-Food
program. And they were supposed to be our friends, and they
stabbed us in the back.
Then, according to Ms. Valerie Plame, lots of the French
contacts Wilson's buddies had must have been greatly relieved
when he was able all of a sudden to come out of the blue and
say that Bush lied about the uranium issue. Got France off the
front page and put Bush there for the rest of his
Administration.
Mr. Fein, I was a little bothered. You said that if the
President related what one person said and not the 25, then he
certainly would be guilty of the crime. I have had juries come
back and say, We believed the one; we didn't believe the 25.
That is in the jury's discretion as a finder of fact, and here
you have already judged the President.
Mr. Fein. I think you totally misrepresented what I stated.
Mr. Gohmert. Listen to me. We will go back and get the
transcript. But that is basically what you said. I think you
may have overstated your case when you did. And if you would
like to clarify, now is the time to do it.
Mr. Fein. Let me clarify the distinction. In the jury
situation that you have got, the jury hears both sides and can
believe the one rather than 25. But the jury knows the 25 and
the one.
The situation I am referring to is the situation where the
Congress just knows about the one and doesn't even know the
other 25 exist. That is the difference.
Mr. Gohmert. Well, the problem is that people in the
executive branch have to make findings of facts and have to
make decisions because under the Constitution--and it is a
great document--I commend it to you--the executive makes these
decisions on foreign policy.
Mr. Fein. No, that is not accurate.
Mr. Gohmert. We make decisions with the purse strings, and
we can affect that. Obviously, we have a disagreement and
obviously, depending on who the jury is, one of us can be found
guilty of a crime, the way it seems you want to head this
thing.
There is not going to be a situation where somebody cannot
come forward and say, I don't believe the President, I don't
believe the CIA gave us all the information, because they have
truckloads of information. And if they leave one thing out,
then they are opening themselves up to a crime under this bill.
I think the motives and the motivation of this bill are
very good, but I also have concerns when a President says,
There is no time for Congress to read this bill. Just give me
$800 billion. People are losing their jobs every day. Give me
the money. Give me the money. And we have got no time to read
the bill. And then, 4 days later, after it is passed, he gets
around to a photo op in Denver to sign it.
I feel like we were defrauded into passing a bill under
false pretenses there. I mean, the question is: Where does it
stop about when you can go after a President? The President was
using the political process back when he got the stimulus bill
passed. And I am just concerned about us going back to the
Carter years of emasculating the intelligence community
because, frankly, if I am in the CIA and this bill is law and
my gut instinct is there is a real danger, but I know if I am
wrong somebody is going to come after me for committing a
crime.
You shake your head.
Mr. Fein. Because that is just wrong. The way in which
anybody in the executive branch makes certain there is no
accusation, they just disclose all the information available to
them to Congress. Then there isn't any conceivable basis that
they can say they misled anybody. That is what we want to
encourage. They can disclose it in public or in confidential--
--
Mr. Gohmert. According to your position, our intelligence
would be nothing but a conduit. They would not be able to use
their judgment in discerning what was more important and what
was less important, because if they were wrong on what was more
important or less important, Ah, there you go; you deceived us
because you said this was more important.
Mr. Fein. If you look at the statute, Mr. Congressman, the
statute is designed to enforce the congressional exclusive
authority to make the decision--not the CIA or the President--
the Congress decides whether to initiate warfare and decide
that. I don't believe that you could find a single Founding
Father, ranging from James Madison to Alexander Hamilton, who
ever uttered a syllable suggesting the President could initiate
war.
So what we are looking at is, yeah, the reason why you want
to make the decision, not the CIA, because it is your
responsibility to decide to send men and women off to die. Not
the CIA, not the President. It is yours. That is exactly why
you don't want them to make the decision. They give you the
facts, you decide.
Mr. Gohmert. Well, do you understand my point that we are
going to deprive ourselves of intelligence opinions if we do
not--I mean if we make this chilling effect of creating a crime
out there, if they are wrong in what they represent?
Mr. Fein. It is not a crime to make an error in the fact.
You disclose what you have got and you let the Members of
Congress decide. There is no possible criminality.
Mr. Gohmert. It would be lovely to live in the bubble that
you seem to live in, but politics is a big deal. And in this
town, people go after people for criminal violations for purely
political reasons. So I can tell you it has a chilling effect
all over this town, some of the things that are going on right
now.
I would love to think that nobody would ever use politics
as a reason to go after somebody when they did nothing wrong,
but politics plays a part. And if there is any chance of going
after somebody, it does happen.
Obviously, you have been very gracious to me, Mr. Chairman.
I appreciate the time.
Mr. Scott. Thank you. Let me ask one follow-up question. We
have talked about the executive branch may be covered, may be
not covered under the present law. This bill would clarify
that. But, also, the present law talks about pursuant to the
authority of a Committee, which suggests that there is an
investigation, hearings going on. This bill does not have that
limitation, so that speeches in public made
to--informal comments and speeches made that will convince
the public to call your Congressman to vote for the war and
create the political climate that makes it possible, would be
part of a scheme covering up material facts.
Can you talk about the appropriateness of speeches and
informal comments being covered by the criminal statute?
Mr. Fein. Yes. Let me start with an example so we know that
this problem isn't just academic. You may have read the book
Angler about Dick Cheney, authored by a reporter of the
Washington Post. He recounts--and this has not been disputed by
any of the participants--a situation prior to this body's
voting on the Iraqi war resolution.
Initially, then-Majority Leader Dick Armey was opposed to
the resolution. He said that he didn't see any danger that
Saddam Hussein was creating to the United States. And he
recounts that Mr. Cheney then approached him in his chambers
and told him two things that were not factual. One, that Saddam
Hussein had learned how to miniaturize nuclear weapons and,
secondly, that al-Qaeda could be the human delivery vehicle for
those. And based upon those assertions he changed his vote, at
least according to the majority leader, that his vote change
may have enabled the House to vote in favor of that.
I see no reason if you can establish that statements in
that context were knowingly and purposely made for the purpose
of obtaining an authorization for war, why they shouldn't be
penalized.
With regard to general statements to the public, again, it
is not protected free speech knowingly to make material
misstatements of fact, not opinion. And if the purpose is the
pernicious one of obtaining authorization for war, I don't see
any reason why that should not be penalized.
And I want to come back. There is no risk of any criminal
penalty as long as the President makes available to this body
all the information that he was examining. And I think it is a
gross misperception that, Hey, the President is the one who
should be making the decision to go to war or not. That has
been the problem for the last 50 years. It is this body that
makes the decision. You want to be the people who evaluate
those facts based on your own judgment.
Mr. Fisher. I would like to add that the President, when he
makes the case to war, is not just to Members of Congress, it
is the general public. I don't think you want to set up a
situation where the President feels some obligation under the
law to tell the truth to Congress and then not tell the truth
to the American public, because you fel that from your
constituents. That is the whole purpose of the White House
machinery, to convince the public to get Congress to do
something.
So I think the obligation to tell the truth is equal to
Congress and to the public. I think the bill is properly
designed that way.
Mr. Scott. Thank you.
Mr. Gohmert.
Mr. Gohmert. Just one follow-up. Mr. Fein, I understand
your point. The President does make foreign policy, and the
executive branch does. But when you talk about knowingly and
purposefully, there are two different things in making the
allegation that leads to indictment and then actually
convicting someone.
If you have the law there and you are an intelligence
officer and you have been gathering resources for months, there
is no way you can convey everything. And if you emphasize one
thing, you don't have months of research in your presentation.
I mean a 5-minute statement here is what you are allowed to
make. There is no way you can have all of the information
there.
And it is a good point: Make it available. I wish both the
past Administration and this Administration were more
forthcoming in making information available.
But it is easy to charge people with knowingly. I have
heard prosecutors say, Well, we have a difference of opinion on
whether you knowingly deceived. We will--that question is for
the jury. In the meantime, somebody has been arrested,
indicted, because it is not that hard to get somebody indicted.
And then you destroy lives, as we have seen repeatedly.
Somebody is indicted and later acquitted or charges dropped at
the last minute, you destroy lives.
This clearly would have--if I am an intelligence officer,
there is no way I would want to be in a position of coming to
the Hill and briefing Members of Congress, because there is no
way I could give them everything I know. And somebody is going
to come after me for whatever I leave out if they don't like
the ultimate decision. And, certainly, if somebody says, What
is your gut, I understand the point. This applies to facts and
not opinion. But if somebody says, What is your gut instinct,
which is one of the most important things an intelligence
officer can provide, I would say, You make that call. Because
if you make a suggestion, then it appears that that is what you
were trying to do--push them in that direction and therefore
anything left out on the other side from your opinion could be
used to prosecute you.
I just see a terrible chilling effect on our intelligence
community. We have already been seeing that play out. And I am
just afraid we are going to emasculate again our intelligence
community, like the Carter years did, and then we pay the price
for years to come.
You had a comment?
Mr. Fein. Well, I think that there is a practical way to
accommodate what you recognize is the infeasibility of coming
up and giving you thousands of documents here. In the Reagan
administration, if you wanted to come down to a vault, you
could go visit, it is open, and the intelligence officer in the
position that you have described simply said, I have evaluated
all of this information, which is available. If you want to
come in with your security clearance at your leisure, you can
look at it.
It is my opinion, based on this evaluation, that one, two,
three is justified as a conclusion, but the decision is yours.
You are deciding. Because, remember, this bill only applies in
the context of Congress deciding whether to authorize war. But
the ultimate decision is yours. You have got to decide what the
facts are, whether they justify going to war. That is his out-
of-jail-free card. Because the purpose here is to make sure
that Congress knows exactly the level of reliability that they
can place in making their decision to vote yea or nay on war
issues.
With that kind of statement from the intelligence officer,
he is not going to be pursued by anybody.
Mr. Gohmert. Have you seen the lack of information that has
been used to vote to spend more money in the last 7 months?
Mr. Fein. And it is disgraceful.
Mr. Gohmert. Well, we do agree on that. But that is my
concern, that it may lead to less information being brought
forward rather than more. Nobody gets more irate than me if I
feel I have been misled into doing something.
There are issues about the last Administration I have
concerns about myself. But I just have real concerns about the
poor intelligence officers out there being put more in harm's
way here than they are out in the field.
But thank you for all of your input.
Thank you, Chairman.
Mr. Scott. I want to recognize the presence during the
Committee hearing of the gentlelady from Texas, Ms. Jackson
Lee, and the gentleman from California, Mr. Lungren. Do you
have questions? You are recognized for 5 minutes.
Mr. Lungren. I have been watching some of this back at my
office and trying to draw a bead on this particular issue.
Obviously, a decision to commit troops, whether for the first
time or commit additional troops in any circumstance is one of
the most serious matters we have. The question is whether this
is the proper way to handle it.
One of the reasons I have concerns is what is an opinion
and what is a fact. We are now in an imbroglio here in the
Congress over a simple document, a chart that was developed by
the Republicans on the Joint Economic Committee to show
precisely what would happen if we passed the current version of
the health legislation that is before the Congress. And,
initially, Republicans have been prohibited from sending it out
because we were told our schematic is inaccurate, that somehow
it is false and misleading.
And then we had the situation where--I am a member of the
Franking Commission where we have approved letters--newsletters
presented by the other side of the aisle who make a bald
statement in there that the stimulus package that was passed
has created or saved 3.5 million jobs. I think that is
absolutely inaccurate. Yet, that is an opinion they are
expressing in an effort to state it as a fact to persuade the
audience of their position.
While I disagreed with their representation and they
disagreed with our representation of this chart on a serious
matter before the American people--health care--I was trying to
think if there would be a similar circumstance in which someone
discussing the very serious issue of the use of Armed Forces
would have the same sort of problem.
And my concern about this bill is: Does it tend to lend
itself to that type of characterization, if you disagree with
the policy, that is, it is a material misstatement of a fact.
The example of the stimulus package, 3.5 million jobs. Now
there are those who believe you can determine whether that is a
fact or not. But we believe there is a bureaucratic morass in
the health bill. And we try and track it. And we are told by
the other side that that is a material representation,
essentially.
If you have an Administration or representative of the
Administration who is making a case and believes, for instance,
let's say that there are weapons of mass destruction. This
member of the Administration has reviewed all the intelligence,
recognizes that you sift through different sources of
intelligence, but based on his or her experience believes that
to be true and makes that statement, but in conveying that to
the Congress, does not point out each and every alternative
opinion of which he is aware that would go against that
conclusion, would we run--would we potentially run afoul of
this law if in fact after the fact it is proven that there were
no weapons of mass destruction?
Mr. Fein?
Mr. Fein. Well, I think there are two issues that are
raised by the question. One, you talk about the fact-opinion
distinction. We have had Supreme Court decisions certainly
since Gertz v. Welch, in 1976, 33 years, where the Court
definitively said there can't be false opinions, only false
statements of fact that can expose you to jeopardy in speech
areas that have attempted to draw that line.
Mr. Lungren. Depends on who is making the determination
what the fact is, though.
Mr. Fein. I understand, but that is true of any time you
have any kind litigation at all. Juries and judges make
findings of fact. But I don't think that you could deny that it
is an assertion of fact if you say Iraq does or Iran does or
not have weapons of mass destruction. But that doesn't
necessarily--even if it turns out to be in error, it doesn't
mean it is culpable. It is only when the speaker knows, he
knowingly states something that is false, that puts someone
into jeopardy here.
Mr. Lungren. At what point in time does it become false? If
he has evidence that he mulls over and in his own mind makes a
judgment it is 51-49 that there are weapons of mass
destruction, is that misleading the Congress?
Mr. Fein. You mean if he doesn't disclose that that was
close in his judgment?
Mr. Lungren. Yes.
Mr. Fein. I wouldn't think so, but there is no reason why
there would be a chilling effect to just say if you are not 100
percent certain, just tell the Members what percentage of
confidence you are speaking about; something of that sort.
To go back to the issue of what does he need to do to make
certain he is not liable; take the situation where he has got
conflicting evidence. He says, Listen, there has been
conflicting evidence. My conclusion is that the persuasive case
is made that there are or are not weapons of mass destruction.
The conflicting evidence is in a vault in the CIA, and you need
to make the decision because you are going to decide whether to
go to war or not, not me, and you can examine that and you can
make up your own mind. That is a way to make certain that you
have the maximum disclosure and you are not jeopardizing the
intelligence official.
Mr. Lungren. If the Chairman would indulge me a little bit
further.
Mr. Scott. The gentleman is recognized.
Mr. Lungren. I must be a slow reader, because I have been
reading Eisenhower's book about World War II and his particular
activity in Europe, called Crusade in Europe. And in several
places he makes it very, very clear that intelligence can never
be perfect. In fact, he goes far beyond that. He talks in there
about how they were told and he was convinced that when the
allied troops came across North Africa, moving from west to
east, that their intelligence told them they would be greeted
as liberators, those who had been living under the French, when
in fact that was absolutely not the case, and they suffered
losses as a result.
He mentions in different circumstances during the course of
the book about intelligence that was wrong and about how you
make your best decision based on the intelligence you have. But
I never felt that he suggested that in the making of the
decision, that you somehow had to say to your troops as you are
sending them off, You know, I got great hopes this is going to
work, but there are others in my group here, my subordinates,
who have told me there is about a 40, 45 percent chance you are
going to fail and you are all going to lose your lives.
That is not exactly the way you run a war.
My question is: Are we trying to sort of split the baby in
half here? Putting a criminal sanction on those in the
executive branch, as much as I want to have as much information
as I have, but putting the burden of criminality on them in
these circumstances.
Mr. Fein. I think your analogy is a little bit misplaced
because the circumstances we are talking about--the troops
don't have the responsibility for deciding whether to fight.
The Congress of the United States does. That is why they need
to be told all the information, the percentages that you have
described, because you need to decide whether that percentage
is enough to send men and women into harm's way.
Once you are already in war, the soldiers don't have any
authority under the Constitution or otherwise to second guess
the Commander in Chief. You do have authority and an obligation
to second guess if you think they are wrong to decide to
initiate warfare. That is the difference.
Mr. Lungren. Yes, sir.
Mr. Fisher. I think your distinction between facts and
opinion is helpful and a bill like this could influence
executive officials to be more forthcoming about what they say.
If it is an opinion, don't present it as a fact.
As you remember, after Iraq released its weapons of mass
destruction report, 2,000 pages, the Administration said it was
a 2,000-page lie. One of the things the State Department did
was release what they called a fact sheet. And they said Iraq
failed to disclose that it was trying to get uranium ore from a
country in Africa. That was not a fact. That was something
based on a fabricated document. I don't know if the State
Department knew it at the time. But that was not a fact.
Mr. Lungren. Let me ask you a question. If the State
Department didn't know it was fabricated at the time and took
it for fact, what is inappropriate about them stating it as a
fact?
Mr. Fisher. It is a willful misleading of Congress that we
are presenting a fact that is not a fact. It is an assertion, a
false assertion.
Mr. Lungren. No, no, no. My question was: If they believe
it to be true--they did not know it was a fabrication--that is
not----
Mr. Fisher. I would hope executive officials would be very
careful when they say something is a fact, to know it is a
fact, instead of it being a judgment or an opinion.
Mr. Lungren. The point I was trying to make is Eisenhower
tried to tell us that you don't always know what facts are
facts in the area of intelligence. That is the point. You do
the best you can. Huge mistakes have been made. Lives have been
lost, there is no doubt about that, in decisions that
Eisenhower made, based on the information that he had, and
every military leader that we have had.
Mr. Fisher. It would also make a difference to me--
statements made in time of war, we all know that there are very
tough judgments in times of war. I think the Jones bill is
clearly on initiating war. And I think you can take a different
standard.
Mr. Lungren. I thank the Chairman.
Mr. Scott. I would like to thank the witnesses for their
testimony.
Are there other questions?
Mr. Gohmert. Mr. Chairman, unanimous consent, just to
mention--I didn't know if the witnesses might be interested--
but I didn't get here until January of 2005. But early on in
one of our Republican conferences with the President I said,
Why do we keep having these actions where we send people into
harm's way and we don't have a declaration of war. If you want
a declaration of war, why shouldn't we consider doing that?
I am still intrigued we don't do that. We haven't done that
for a very long time.
Mr. Fein. That is wrong. I think that ought to be what
Congress does, and you should insist upon it. I don't think the
President can just say, Well, if you're not going to give it to
me, I will unilaterally initiate war. That is unconstitutional.
Mr. Gohmert. But the Congress did vote to authorize the
sending of troops and providing for them and all. It basically
was providing for war without the declaration.
My question back in 2005 was why don't we go ahead and make
the declaration if it is really that serious.
Mr. Fisher. From the very start, 1800, 1801, there are two
Supreme Court cases that said Congress has an option; it can
either authorize or it can declare. And that had been the
policy in Europe. Alexander Hamilton mentioned that. So I
think, constitutionally, authorization is sufficient to a
declaration. I think it is a choice for Congress.
Mr. Gohmert. No, I agree. My concern grew out of Vietnam
when we sent people but we didn't really mean for them to win.
If it is serious enough to send them, then we ought to have a
declaration and we ought to tell them to do what it takes to
win.
Mr. Scott. Will the gentleman yield?
Mr. Gohmert. Sure.
Mr. Scott. I just wanted to remind that the bill says
knowingly and willfully falsifies, and so forth. If you are
making anything close to a good faith statement or even a good
faith opinion that is in any kind of good faith, it is not
knowingly and willfully falsified.
Mr. Gohmert. I agree 100 percent, but in this town you
wouldn't necessarily be convicted, but you sure could be
arrested and harassed from now on.
Mr. Fein. If I could just make an observation about the
alleged politicization of conduct that is at the high national
security war area. I do not perceive with the change of
Administration from Republican to Democrat on January 20 of
this year a politicization of the law enforcement arm of the
Justice Department where they are targeting Republicans in the
past Administration.
So, obviously, that is a theoretical possibility. But I
certainly do not see those officials being subject to grand
jury investigations or anything of that sort.
Mr. Gohmert. I encourage you to read the news.
Mr. Fein. I do, every day. If you can send me a list of all
the former Republican officials who are now under
investigation, I would be grateful.
Mr. Scott. I think we have gotten a little off subject. But
I would like to thank our witnesses for their testimony today.
Members may have additional written questions which we will
forward to you and ask that you answer as promptly as possible
so the answers may be made part of the record. The hearing
record will remain open for 1 week for submission of additional
materials.
Without objection, the Subcommittee stands adjourned. Thank
you.
[Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Senate Intelligence Committee Report submitted by the Honorable Walter
B. Jones, a Representative in Congress from the State of North Carolina
