Remarks
of U.S. Senator Russ Feingold
On Restoring the Rule of Law
As
Prepared for Delivery
From the Senate Floor
September 25, 2008
Mr. President, last week
we celebrated the 221st anniversary of the day in 1787 when 39 members
of the Constitutional Convention signed the Constitution in Philadelphia.
It is a sad fact as we consider that anniversary that for the past seven
and a half years, and especially since 9/11, the Bush Administration
has treated the Constitution and the rule of law with a disrespect never
before seen in the history of this country.
By now, the public can be
excused for being almost numb to new revelations of government wrongdoing
and overreaching. The catalogue is breathtaking, even when immensely
complicated and far reaching programs and events are reduced to simple
catch phrases: torture, Guantanamo, ignoring the Geneva Conventions,
warrantless wiretapping, data mining, destruction of emails, U.S. Attorney
firings, stonewalling of congressional oversight, abuse of the state
secrets doctrine and executive privilege, secret abrogation of executive
orders, signing statements.
This is a shameful legacy
that will haunt our country for years to come. That is why I believe
so strongly that the next President of the United States – whoever
that may be – must pledge his commitment to restoring the rule
of law in this country, and then take the necessary steps to demonstrate
that commitment. And that is why I held a hearing last week in the Constitution
Subcommittee of the Senate Judiciary Committee asking a range of legal
and historical experts exactly what the new President and the new Congress
must do to repair the damage done by the current administration to the
rule of law.
There can be no dispute that
the rule of law is central to our democracy and our system of government.
But what does “the rule of law” really mean? Well, as Thomas
Paine said in 1776: “In America, the law is king.” That,
of course, was a truly revolutionary concept at a time when, in many
places, kings were the law.
More than 200 years later,
we still must struggle to fulfill Paine’s simply stated vision.
It is not always easy, nor is it something that, once done, need not
be carefully maintained. Justice Frankfurter wrote that law:
is an enveloping and permeating
habituation of behavior, reflecting the counsels of reason on the
part of those entrusted with power in reconciling the pressures of
conflicting interests. Once we conceive ‘the rule of law’
as embracing the whole range of presuppositions on which government
is conducted . . ., the relevant question is not, has it been achieved,
but, is it conscientiously and systematically pursued.
The post-September 11th period
is not, of course, the first time that the checks and balances of our
system of government have been placed under great strain. As Berkeley
law professors Daniel Farber and Anne Joseph O’Connell wrote in
testimony submitted for the hearing on this topic: “The greatest
constitutional crisis in our history came with the Civil War, which
tested the nature of the Union, the scope of presidential power, and
the extent of liberty that can survive in war time.” But as legal
scholar Louis Fisher of the Library of Congress described in his testimony,
President Lincoln pursued a much different approach than our current
President when he believed he needed to act in an extra-constitutional
manner to save the Union. He acted openly, and sought Congress’s
participation and ultimately approval of his actions. According to Dr.
Fisher:
[Lincoln] took actions
we are all familiar with, including withdrawing funds from the Treasury
without an appropriation, calling up the troops, placing a blockade
on the South, and suspending the writ of habeas corpus. In ordering
those actions, Lincoln never claimed to be acting legally or constitutionally
and never argued that Article II somehow allowed him to do what he
did. Instead, Lincoln admitted to exceeding the constitutional boundaries
of his office and therefore needed the sanction of Congress….
He recognized that the superior lawmaking body was Congress, not the
President.
Each era brings its own challenges
to the conscientious and systematic pursuit of the rule of law. How
the leaders of our government respond to those challenges at the time
they occur is, of course, critical. But recognizing that leaders do
not always perform perfectly, that not every President is an Abraham
Lincoln, the years that follow a crisis are perhaps even more important.
As Yale Law School Dean Harold Koh testified at the hearing, “As
difficult as the last seven years have been, they loom far less important
in the grand scheme of things than the next eight, which will determine
whether the pendulum of U.S. policy swings back from the extreme place
to which it has been pushed, or stays stuck in a ‘new normal’
position under which our policies toward national security, law and
human rights remain wholly subsumed by the ‘War on Terror.’”
I could not agree more.
So the obvious question is:
“Where do we go from here?” One of the most important things
that the next President must do, whoever he may be, is take concrete
steps to restore the rule of law in this country. He must make sure
that the excesses of this Administration don’t become so ingrained
in our system that they change the very notion of what the law is. And
he must recognize that we can protect our national security –
in fact, we can do it more effectively -- without trampling on the rights
of the American people or the rule of law.
That, of course, is much
easier said than done. But there is one immediate step that, while it
may be viewed as symbolic, is critically important for the next President
to take: stating clearly and unequivocally in the inaugural address
that he renounces the current administration’s abuses of executive
power and that his administration will uphold the rule of law. To be
sure, this isn’t the only subject the new president should address,
but it is among the most urgent. Where he stands on executive power
goes beyond policy and politics and speaks to his respect for the Constitution
itself. And a willingness to raise this issue in the inaugural address
will send a message, loud and clear, to the American public, to Congress
and to every level of government that the days of lawlessness and excess
are over.
Thomas Jefferson said this
in his first inaugural address:
“The essential principles
of our Government form the bright constellation which has gone before
us and guided our steps through an age of revolution and reformation
… [S]hould we wander from them in moments of error or of alarm,
let us hasten to retrace our steps and to regain the road which alone
leads to peace, liberty and safety.”
I hope our next President
will echo that sentiment in his inaugural address. Indeed, demonstrating
that commitment on Day One will go a long way toward reinstating what
Ohio State University Law Professor Peter Shane called a “rule
of law culture” in government. As he explained in his hearing
testimony, “the written documents of law have to be buttressed
by a set of norms, conventional expectations, and routine behaviors
that lead officials to behave as if they are accountable to the public
interest and to legitimate sources of legal and political authority
at all times, even when the written rules are ambiguous and even when
they could probably get away with merely self-serving behavior.”
This cuts to the core of the problem that the next President will face:
After eight years of disregard for the rule of law at the highest level
of government, how can we instill new norms and expectations throughout
the federal government? Stating that commitment in the inaugural address
will go a long way in that direction.
But it is not only a matter
of a new President saying, “Ok, I won’t do that anymore.”
This President’s transgressions are so deep and the damage to
our system of government so extensive that a concerted effort from the
executive and legislative branches will be needed. And that means the
new President will, in some respects, have to go against his institutional
interests – a challenge that we cannot underestimate.
That is why I called the
hearing last week on this topic – to hear from legal and historical
experts on how the next President should go about tackling the wreckage
that this President will leave behind. I asked witnesses to be forward-looking
– not to simply review what has gone wrong in the past seven or
eight years, but to address very specifically what needs to be set right
starting next year and how to go about doing it. In addition to the
testimony of the witnesses at the hearing, I solicited written testimony
from advocates, law professors, historians and other experts. I was
pleased that we received nearly thirty written submissions from a host
of national groups and distinguished individuals.
At the hearing, we heard
testimony from one of the foremost legal scholars in the country about
just how far outside mainstream legal thought the current administration
went We heard comparisons to the events leading up to the Church Committee’s
investigation in the 1970s, from the man who served as chief counsel
to that committee. We heard from a former Republican member of Congress
about Congress’s failure to assert itself as a coequal branch
of government. We heard from the former head of the Justice Department’s
Office of Legal Counsel about the perversion of the law that was allowed
to occur in that important office. We heard from a former White House
Chief of Staff about the dangers of the excessive executive secrecy
that permeated the government under this administration. We heard from
a leading national security lawyer about the harm that post-9/11 domestic
surveillance policies have done to our national security. And we heard
from the head of one of the leading human rights organizations about
the damage our interrogation and detention policies have done to our
reputation abroad.
But most importantly, we
heard from every one of these individuals their specific prescriptions
for moving beyond these mistakes – for taking the steps that are
necessary to restore our core American principles.
Indeed, between the hearing
witnesses and the written testimony that was submitted, the subcommittee
received an enormous number of recommendations, including many provocative
and important ideas. They range from the general to the very specific,
and they cover a variety of subject matters, from government secrecy
to detention and interrogation policy to surveillance to separation
of powers. I am very pleased that so many experts took the time to offer
these proposals.
Let me take a few minutes
today to share some examples of the kinds of recommendations that the
witnesses provided, both those who testified at the hearing and those
who submitted written testimony. Several suggestions reinforce my belief
that the new Administration must set a clear tone of adherence to the
rule of law from the start. Mark Agrast of the Center for American Progress
Action Fund suggests that the President should convene a White House
conference on the rule of law, and pledge to work with Congress to give
priority to measures to restore public confidence in the rule of law.
Former Solicitor General Walter Dellinger argues that “[t]he next
President should … affirmatively adopt a view of presidential
power that recognizes the roles and authorities of all three co-equal
branches and that takes account of settled judicial precedent.”
Many of our witnesses are
concerned about the impact of the last eight years on the separation
of powers, and specifically about Congress’s failure to stand
up to the President as he asserted more and more unconstrained power.
Several strongly suggest oversight and investigative hearings to determine
what exactly happened. Frederick Schwarz of the Brennan Center suggests
an independent, bipartisan, investigatory commission to assess what
has gone wrong and what has gone right with the nation’s policies
concerning terrorism. Such a commission would allow the public to get
the full story of the abuses of the Bush Administration, providing accountability
and a mechanism for developing protections against future abuse that
can be implemented by the executive and legislative branches. The ACLU
suggests more narrowly focused oversight hearings in Congress to reveal
illegal or improper executive branch activity, and argues that Congress
must deny funding for programs it believes are abusive or illegal.
Former Congressman Mickey
Edwards, a Republican from Oklahoma, also argues that Congress must
use the power of the purse to assert its will in interbranch disagreements.
He believes that Congress should aggressively utilize its subpoena power
to get the information it needs. Being able to enforce congressional
subpoenas, of course, is an important component of oversight, and several
witnesses had suggestions on that topic. Common Cause believes that
the next President should issue an Executive Order mandating federal
agencies’ complete cooperation with congressional investigations.
University of Pennsylvania Law Professor Seth Kreimer argues that officials
who ignored legitimate congressional subpoenas should be prosecuted.
The Center for Responsibility and Ethics in Washington suggests that
Congress enact legislation granting jurisdiction to the federal courts
over cases seeking enforcement of congressional subpoenas. And Bruce
Fein, a former Reagan Administration official, believes a special three-judge
court should be created that could appoint an Independent Counsel to
enforce contempt findings against the executive branch since the Department
of Justice refused to enforce congressional subpoenas during this Administration.
Many of the suggestions from
our witnesses focus on the decision-making of our national security
agencies. Stephen Aftergood of the Federation of American Scientists
suggests enhancing oversight of intelligence agencies by using cleared
auditors from the GAO. And Mark Agrast advocates establishing a national
security law committee within the National Security Council to make
decisions on legal issues related to national security.
A crucial part of restoring
the rule of law in the next Administration will be rebuilding the reputation
of the Office of Legal Counsel. Walter Dellinger, joined by a prestigious
group of former OLC attorneys, provided detailed testimony on how that
can be done. The incoming Attorney General should pay very close heed
to this advice.
Another issue that almost
every person or group mentioned in their submissions is the problem
of excessive government secrecy. This problem permeates all of the other
rule of law issues discussed at the hearing. When the executive branch
invokes the state secrets privilege to shut down lawsuits, hides its
programs behind secret OLC opinions, over-classifies information to
avoid public disclosure, and interprets the Freedom of Information Act
as an information withholding statute, it shuts down all of the means
to detect and respond to its abuses of the rule of law – whether
those abuses involve torture, domestic spying, or the firing of U.S.
Attorneys for partisan gain.
With regard to this administration’s
overuse of the state secrets privilege, University of Chicago Law Professor
Geoffrey Stone and many others recommend that Congress pass S. 2533,
the State Secrets Protection Act, which was reported out of the Judiciary
Committee in April. The bill takes the simple and obvious step of requiring
courts to review allegedly privileged documents to determine whether
they really are privileged.
To address the rampant problem
of over-classification, several submissions, including that of John
Podesta from the Center for American Progress Action Fund, urge the
next President to rewrite the executive order on classification to reverse
some of the changes made by President Bush to that order. In particular,
President Bush eliminated provisions that established a presumption
against classification in cases of significant doubt, that permitted
senior agency officials to declassify information in exceptional cases
where the public interest in disclosure outweighs the need to protect
the information, and that prohibited reclassification of materials that
have been released to the public. Contributors argue that these provisions
be restored.
On the issue of secret OLC
opinions and other manifestations of secret law, there is general agreement
that legislation is needed to require greater disclosure of the law
under which the executive branch operates. A number of submissions recommend
the passage of two bills I introduced this year: the Executive Order
Integrity Act, which requires the President to publish notice in the
Federal Register when revoking or modifying a published Executive Order,
and the OLC Reporting Act, which requires the Attorney General to report
to Congress when the Department of Justice concludes that the executive
branch is not bound by a statute.
Finally, the National Security
Archive and others address the proper standard for disclosure of information
under the Freedom of Information Act. Attorney General Reno issued a
memorandum in 1993 that contained a “presumption of disclosure”:
even if a document was technically exempt from disclosure under FOIA,
the Department of Justice would defend the withholding only if disclosure
would actually harm an interest protected by the exemption. Attorney
General Ashcroft reversed that presumption in 2001. Contributors uniformly
recommend that the new administration immediately restore the presumption
of disclosure.
The subcommittee also received
numerous recommendations for reforming our detention and interrogation
policy. Detailed plans for accomplishing the difficult task of closing
the detention facility at Guantanamo Bay were presented by Elisa Massimino
of Human Rights First, by the Center for Strategic and International
Studies, by Harold Koh, and by a group of 20 leading scholars. There
is near-universal agreement that Guantanamo should be closed, and these
thoughtful proposals deserve careful consideration. A number of groups
also recommend dismantling the current system of military commissions,
and instead trying terrorist suspects in U.S. courts or military courts-martial.
With respect to interrogation
practices, Princeton’s Deborah Pearlstein and others argue that
the U.S. government should have a single, government-wide standard of
humane detainee treatment. Massimino suggests that the President and
the Congress should invest in efforts to pursue the most effective and
humane means of intelligence gathering. And Harold Koh emphasizes the
importance of fully complying with obligations under the Geneva Conventions
and the Convention Against Torture.
And finally, a number of
recommendations were made on government surveillance and privacy issues.
National security lawyer Suzanne Spaulding argues that the next administration
should undertake a comprehensive review of domestic intelligence activities
and authorities, to assess their effectiveness and to ensure that they
support, rather than undermine, the rule of law. She points to a number
of key issues for review, many of which were also mentioned in other
submissions as issues where changes need to be made.
These include the Foreign
Intelligence Surveillance Act and the related amendments made this summer;
National Security Letters and other Patriot Act authorities; the First
Amendment implications of domestic spying activities; data mining and
other data collection and analysis activities; profiling in the name
of counterterrorism; the appropriate role of the many federal, state
and local entities that are now involved in domestic intelligence gathering;
and the need to enhance transparency and oversight in all of these areas.
This is a long list, but Spaulding argues that too many of these powers
were created piecemeal, without consideration of how they fit together
and without adequate consideration for the need to respect civil liberties.
This is just a sampling of
the careful and interesting proposals that the subcommittee received.
Taken together, these recommendations should serve as an excellent source
for both branches of government. While I am not at this time going to
propose a specific plan of action to the next President or the next
Congress, I am reviewing the legislative proposals that have been submitted,
and I hope my colleagues will take advantage of them as well. I want
to thank each and every person who made the effort to submit these recommendations.
They have done the country a real service.
In January, I intend to present
the full hearing record to the new President, and urge him to take specific
actions to restore the rule of law. These recommendations should serve
as a blueprint for the new President so that he can get started right
away on this immense and extremely important job of restoring the rule
of law.
It will not be easy. Even
those steps that are almost universally agreed upon, such as the necessity
of closing the facility at Guantanamo Bay, pose tricky legal and practical
questions. And, of course, there may be institutional resistance within
the executive branch to actions that are viewed as ceding power to the
other branches of government, no matter how unprecedented the executive
power theories that need to be undone. But as Suzanne Spaulding explained
at the hearing, “We have to demonstrate that we still believe
what our founders understood; that this system of checks and balances
and respect for civil liberties is not a luxury of peace and tranquility
but was created in a time of great peril as the best hope for keeping
this nation strong and resilient.”
This is an important point,
because the policies pursued by this administration have not kept this
nation “strong and resilient.” They have undermined national
unity, diminished our international standing and alliances, and hurt
our efforts to counter the serious threat we face from al Qaeda and
its affiliates. By putting policies in place that accord with basic
American principles, we can strengthen our national security as well.
As I said at the outset,
it is the years that follow a crisis that may matter most, that are
the true test of the strength of our democracy. So I hope that the next
President will carefully review the many recommendations that have been
presented, because the future of our democracy depends on it.
I yield the floor. |