Hearing of the Senate Judiciary Committee - Preserving the Rule of Law in the Fight Against Terrorism
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SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman for scheduling this hearing. I commend you for -- Professor Goldsmith, for writing a very important book. It is a survey of the critical issues, which have faced the country for several decades now, the threat of terrorism.
And as you have noted there has to be a very careful analysis of the threat, how we meet the threat and how we do that at the same time for serving our commitment to civil rights.
This committee has been very supportive of the executive power in the enactment or recommendation or passing out of committee the Patriot Act and the Protect America Act, but at the same time we have also, I think, been diligent in taking a look at very critical issues of civil liberties, as a counterbalance to what the executive has done. And that is the traditional role of the Congress. And in your book, you have treated the major issues.
When you write about what happened in your disagreement with some executive branch members, it is very different from what former Attorney General Gonzales told this committee, when he said there was no disagreement within the executive branch.
You, on the other hand, point out in your book that when you hold Attorney General Gonzales and Vice President Cheney's counsel that you could no longer certify the legality of, quote, "An important counterterrorism initiative," unquote that the vice president's lawyer responded, as you put it angrily, quote, "If you rule that way the blood of 100,000 people, who'll die in the next attack will be on your hands." unquote Hardly a situation where there is no disagreement within the executive branch.
This committee has been especially concerned about what the administration has done on habeas corpus, and also concerned about what the Congress has done on habeas corpus.
And I noted, in your book that you said upon seeing Hamdi, the subject -- the individual in a very important Supreme Court decision, a man who was detained you wrote quote, "Something seemed wrong, it seemed unnecessarily extreme to hold a 22-year-old foot soldier in a remote wing of a rundown prison, in a tiny cell, isolated from almost all -- isolated almost -- isolated from almost all human contact, and with no access to a lawyer. This is what habeas corpus is for," unquote as you wrote it. I believe, the Supreme Court will reinstate habeas corpus and that is a subject we will get into in the course of the hearing today.
Another issue, which is received, and on the habeas corpus matter, this committee has acted as we did on the Terrorist Surveillance Program, held five hearings on that subject, oversight hearings in the 109th Congress.
Now, on habeas corpus, Senator Leahy and I have had legislation improve from 48 votes to 56 the last time it came before the Congress at the Senate. And I think, if we bring it up again, we will reinstate habeas corpus.
At least that will be the will of the Senate. What the president will do, by way of a veto, is probably predictable. But our action may not be necessary if the Supreme Court acts.
And then you pick up the question of the signing statements where the president agreed with Senator McCain as to the scope of interrogation, and then after he signed the bill, issued a signing statement about the law might violate his commander-in-chief powers and he might not always act in compliance with it.
We have -- again legislation has been introduced to give the Congress standing to go to court, to overturn the president's signing statements because notwithstanding what the statute says before a sign if the executive grants will follow the instructions of the president.
Well, in the midst of all this we are aware of the grave difficulties that the executive branch faces in meeting the threat of terrorism, and staying on the correct side of the law. I thought your quotations of CIA Director Hayden were very interesting, where you quote Director Hayden saying that he was, quote, "troubled if not using the full authority allowed by law, after 9/11 he was going to live on the edge." unquote
And the analogy was that he would take his spikes to a position where they would have chalk on them. He would go right up to the line. And that your job was to make sure the president could act right up to the line.
And I was interested in your comment that when FBI Director Mueller presents to the president daily, the threat list that he gives him a matrix, and the matrix including some warnings, as you note, extracted from tens of billions of foreign phone calls and e-mails that fly around the world.
And now, that is a facet that very few understand. When you talk of tens of billions of phone calls, analyzed in time for an overnight report, showing the difficulties of our intelligence system in tracking the threats.
Well, this is an ongoing problem, and we want to have an executive -- a president with sufficient power but we want a president who still recognizes fundamental constitutional rights. And the oversight by this committee, I think, is very, very important in maintaining that balance, so I am pleased that we have such a knowledgeable witness here today, to shed some light on the important subject.
I seldom disagree with Senator Leahy, but I think your book is going to be a bestseller. Especially, after its promote on the C- SPAN.
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SEN. SPECTER: Professor Goldsmith, on the Terror Surveillance Program, you say that there were some aspects that you could not find legal, what can you tell us about the incident in Attorney General Ashcroft's hospital room, you write in your book that Ms. Ashcroft stuck out her tongue at Attorney General Gonzales and Chief of Staff Andrew Card when they left the room, what happened to provoke that?
MR. GOLDSMITH: Just to make the record clear, that particular statement is not from my book sir, it's from an interview I believe. But I did say that certainly. And so would you like to know about what happened in the hospital room?
SEN. SPECTER: That's a starter.
MR. GOLDSMITH: Okay. Well, I'll start and if you want more detail, I can try to give it to you. The issue was a very highly classified program on which I had advised -- that I had been reviewing -- as the head of the head of the Office of Legal Counsel, and I had been -- kept the deputy attorney general once he was read in and the attorney general informed.
SEN. SPECTER: Well, what constitutional, legal principle did you think was violated by the program?
MR. GOLDSMITH: I'd -- what I said was -- again -- (inaudible) -- the hospital scene for -- I can't talk about what that program was, I can't -- others have said that it was the TSP Program, I'm just going to call it "a highly classified program," if I could. But do you want me to -- do you want to know about -- I'm not allowed also, either, to get into the legal analysis. The government has forbidden me from talking about the legal analysis.
SEN. SPECTER: Well, now, wait a minute, you might not be able to tell us about classified material, you might not be able to tell us about what you told the president or his subordinates, but I think you can tell us what constitutional law principle was violated.
MR. GOLDSMITH: Well, that's -- unfortunately, the executive branch has taken the view and unfortunately I'm bound by this by contract and law.
SEN. SPECTER: That you can't even say what constitutional law principle was violated.
MR. GOLDSMITH: They've told me that I'm not allowed to talk about the legal analysis.
SEN. SPECTER: Okay, let's move to something perhaps you can talk about. You wrote in your book that when you saw Hamdi you said to yourself "That's what I thought habeas corpus was for," is there any doubt that constitutional right to habeas corpus is as broad as the statutory right to habeas corpus as defined and amplified by Justice Stevens in Rasul?
MR. GOLDSMITH: I'm not sure that that's always true Senator, I'm not sure -- I mean, Congress might enact a statute -- a statutory habeas jurisdiction that went further, for example, extraterritorially.
SEN. SPECTER: Okay, never mind the theory.
MR. GOLDSMITH: Okay.
SEN. SPECTER: How about in Rasul, as to Rasul --
MR. GOLDSMITH: So you're asking me --
SEN. SPECTER: -- didn't Stevens in the court say that -- going back to John at Runnymede as he put it and the tradition of habeas corpus. Of course, Attorney General Gonzales said habeas corpus wasn't in the constitution.
MR. GOLDSMITH: (Smiling)
SEN. SPECTER: -- notwithstanding. May the record show a smile, you got to at least smile, even though the constitution says you can suspend habeas corpus only in time of invasion or rebellion. But as to Rasul wasn't the court saying -- didn't the court say that the constitutional right to habeas corpus was as broad as a statutory right?
MR. GOLDSMITH: I believe that -- well, I would say this. That the Rasul court definitely extended, interpreted -- (inaudible) -- habeas corpus jurisdiction to extend to Guantanamo Bay and I don't think -- they did talk about the constitutional right to habeas corpus, but I don't believe that it ever said -- it may have, I don't recall -- that the two were coextensive.
But if you're asking me whether I think the writ of habeas corpus -- the constitutional writ extends is -- I'm not sure quite what the question is, Senator, about the scope of the constitutional habeas corpus --
SEN. SPECTER: The question again completed is didn't Justice Stevens in Rasul say, as applied to Rasul that the constitutional right was co-terminus with the statutory right?
MR. GOLDSMITH: That's not exactly the way I would've read it. I think that the holding of the opinion was about the statutory right.
SEN. SPECTER: Now, answer my question.
MR. GOLDSMITH: I don't believe -- I don't recall him saying -- I know he discussed the constitutional right, I know that the court held that the statutory right --
SEN. SPECTER: You don't recall -- would you take another look at the case and give us a written response?
MR. GOLDSMITH: Yes, sir.
SEN. SPECTER: Okay. On signing statements, you referenced Senator McCain's agreement with the president and then the president issuing a signing statement saying that, "Might infringe on this article, (two?) powers that he might not observe it as it would apply prohibiting cruel, inhuman or degrading treatment," that that would not be the definition he would stand by.
President did the same thing after we carefully negotiated the Patriot Act as to the oversight that this committee would have, and then he issued a signing statement saying he felt free to disregard that commitment.
Legislation is pending to give the Congress standing to go to court to get the court to say that the president's signing statement is inconsistent with the constitutional provision, which says legislation has presented that he either signs it or vetoes it. Do you think that that is a sound approach to try to deal with that issue?
MR. GOLDSMITH: I don't necessarily think it's a sound approach, Senator, I'm not sure that such legislation would be constitutional, because I'm not sure they're -- there's actually a case in controversy if the president -- because you don't know whether the president -- it's just a statement, you don't know whether the president's acting on it or not.
I will say that I think that that signing statement was extremely imprudent after there'd been -- as I talk about it in my book -- after there'd been these negotiations, and there seemed to have been an agreement on this very difficult issue, to turn around and suggest that it wouldn't be applied in some circumstances struck me as extremely imprudent.
But signing statements don't necessarily have any effect, they're just statements, what matters is -- and in my experience, what matters is whether the signing statement gets turned into a directive to the bureaucracy to act in a certain way.
SEN. SPECTER: Well, Professor Goldsmith, how can you say a signing statement has no effect --
MR. GOLDSMITH: Okay.
SEN. SPECTER: -- when the vast executive branch employees are directed to follow it, and if they do follow it, where the legislation prohibits interrogation, which is cruel, inhuman or degrading, that they are following orders and are protected.
MR. GOLDSMITH: Well, Senator, as I was saying, it's not the case that every signing statement -- indeed in my experience, most signing statements were not operationalized into action at the bureaucratic level.
SEN. SPECTER: How do you know that?
MR. GOLDSMITH: I'm just -- in my experience at the Office of Legal Counsel that was what I witnessed.
SEN. SPECTER: I've one final question, and that is -- you talk about retroactive discipline and that the executive branch officials, that they might be summoned into a court, face enormous attorney's fees, face reputation and are not as brave as General Hayden in -- as you characterized him, he's going to have white chalk on his spikes, because he's going to go right up to the line.
But to what extent can you specify the intensity of that concern by the executive branch officials to be worried about whether they'll be subpoenaed as Kissinger was or held into court -- some foreign court perhaps as a violation of human rights.
MR. GOLDSMITH: In my experience as head of the Office of Legal Counsel, worry about -- that some court or judge or prosecutor or investigator down the road would interpret these criminal laws differently than the administration did and hold them criminally liable was a central, prevalent concern in the administration.
SEN. SPECTER: A real fear?
MR. GOLDSMITH: A real fear, yes, sir.
SEN. SPECTER: Thank you very much, Professor Goldsmith.
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SEN. SPECTER: Thank you Mr. Chairman. Professor Goldsmith, you disagreed to accredit with the earlier interpretation of Office of Legal Counsel when you took the position to change the definition of interrogation where the predecessor had said that -- to be the finest torture it, quote, "must be equivalent in intensity to the pain that accompanies serious physical injuries such as organ failure, impairment of bodily function, or even death," close quote. Has that standard been abandoned in practice?
MR. GOLDSMITH: I don't know whether it has been abandoned in practice. It was certainly abandoned in the subsequent decision of the Office of Legal Counsel that my successor Dan Levin issued an opinion to the Deputy Attorney General Comey in December of 2004. He repudiated that standard.
SEN. SPECTER: The legislation to which the president attached the signing statement, prohibited interrogation which was, quote, "cruel, inhuman, or degrading." Is that standard consistent with what the Office of Legal Counsel now says is appropriate?
MR. GOLDSMITH: I'm not sure what the Office of Legal Counsel now says is appropriate. The opinion I was referring to was a December 2004 opinion just on the torture statute, and it did not interpret that standard. And I am not -- did not have, I'm not privy to how OLC has interpreted that standard.
SEN. SPECTER: Do you recollect what standard you wrote as legal council, as assistant AG, Office of Legal Counsel?
MR. GOLDSMITH: Interpreting that standard? I'm not --
SEN. SPECTER: Torture standard.
MR. GOLDSMITH: The torture standard. You know, I mean, the torture statute is opposed to the McCain amendment on cruel, inhuman, and degrading treatment language. I'm not sure which one you are asking me about.
SEN. SPECTER: Well, we have the language which Senator McCain and the president agreed to, prohibiting interrogation which was cruel, inhuman, or degrading.
MR. GOLDSMITH: Right.
SEN. SPECTER: And the president said he felt free to disregard that, on his powers of commander-in-chief.
MR. GOLDSMITH: Right.
SEN. SPECTER: What standard, if you know, does the administration apply?
MR. GOLDSMITH: I don't know, that happened -- I do not know, sir. That happened after I left.
SEN. SPECTER: All right.
MR. GOLDSMITH: Sorry.
SEN. SPECTER: But when you were assistant attorney general for Office of Legal Counsel, did you articulate a standard of propriety for interrogation?
MR. GOLDSMITH: I certainly considered the issue, and I don't believe I ever reached a decision on the merits of what that standard meant, no sir. I'm sure I didn't actually.
SEN. SPECTER: I'm sorry, I didn't hear that.
MR. GOLDSMITH: I did not. No, sir.
SEN. SPECTER: You have noted the difficulty that the president faces when he gets the matrix on a daily basis of extracting warnings from tens of billions of phone calls and e-mails that fly around the world. How is that manageable, and how does that work?
MR. GOLDSMITH: That gets me quickly into areas that I'm both incompetent to discuss, and it's probably classified. I just -- I saw the product, I didn't see the process behind it.
SEN. SPECTER: Well, a plea of incompetence will (suffice?) -- be sufficient. You don't have to plea the classified information --
MR. GOLDSMITH: I just plead incompetence then, sir.
SEN. SPECTER: I don't accept the plea of incompetence by the way.
MR. GOLDSMITH: Well, I don't -- I mean, you are talking about the process whereby our government collects information from around the world and ends up in a threat matrix in the morning for the president to see. I actually don't, I mean, I actually really can't tell much about that.
SEN. SPECTER: Well that -- that -- those facts which you have in your book show the scope of the difficulty --
MR. GOLDSMITH: It's very hard.
SEN. SPECTER: -- dealing with terrorism. And when I noted that I wondered if it encroached upon classified information, even to comment about the number of calls which are --
MR. GOLDSMITH: If that statement was in my book it was cleared by the government. And they determined that it wasn't classified.
SEN. SPECTER: You note in your book that the federal government ignored what you considered to be Bin Laden's 1996 declaration of war, and had pursued for eight years following the bombing of the Trade Towers in 1993 until 9/11/2001, a law enforcement approach as opposed to the declaration of war, and that as you characterize it, the administration at that time was timid, reluctant to really take the kind of bold steps which were necessary. Do you think we have outlived that kind of timidity?
MR. GOLDSMITH: Well, certainly after 9/11, the risk aversion and the timidity that characterized the fight against terrorism was no longer acceptable. And certainly, after 9/11, that attitude is no longer acceptable. And we have not had that attitude. The president has not had that attitude. Am I understanding your question correctly?
SEN. SPECTER: What's that?
MR. GOLDSMITH: Am I understanding your question correctly?
SEN. SPECTER: Well, the question is whether we are not timid anymore. Are we -- you have described what you called as retroactive discipline -- well, concerns that officials have about being sued or about being held accountable in some court.
MR. GOLDSMITH: Yes.
SEN. SPECTER: Are we past that stage?
MR. GOLDSMITH: No, sir, we are not. Not at all. And, you know, basically, inside the administration -- this is how I started my testimony. Inside the administration, everyday there is this fight between why don't you do everything you can and people being afraid that they are going to violate the law.
We are definitely not past the timidity and anxiety and really risk aversion in the face of the law, even though at the same time, the government is obviously being very aggressive. And trying to manage those two pressures is very hard.
SEN. SPECTER: Could legislation help if Congress were to pass a standard or wraps a good faith standard, no liability, or would that be outweighed if Spain or Belgium decides to invoke violation of rights against humanity?
MR. GOLDSMITH: I think that there is nothing much we can do to stop foreign courts from trying to, if they want, prosecute our officials.
I do think that there are things Congress could do to tap down the extraordinary anxiety that people in the intelligence community feel about making sure they comply with the law.
SEN. SPECTER: Well, what could Congress do, if anything, on that subject?
MR. GOLDSMITH: There are lots of things they could do. One is legislate very clearly, which is easier said than done, I realize. Two is to try to come up with mechanisms of accountability that aren't necessarily tied to criminal prosecution, that are tied to reporting and oversight and something like that.
Three, perhaps have some kind of a safe harbor or good-faith immunity or something like that. I haven't thought about that as much. But the main concerns in my experience are criminal prohibitions on intelligence officials that are not precise, and which there is pressure to go into the grey area, but obviously pressure against going into the grey area for fear of the law.
And if we, as I said in my statement, we ask people in the CIA to take out liability insurance for future prosecutions, which is a standard part of the way they operate out there. And that's a crazy signal to send, in my opinion, for people that the country is asking to take steps at the edge of the law to keep us safe.
SEN. SPECTER: Well, that is something I think that Congress ought to consider. Would you be willing to think about it some more?
MR. GOLDSMITH: Yes sir.
SEN. SPECTER: And give us a recommendation as to what we might do?
MR. GOLDSMITH: Yes sir, I will, thank you.
SEN. SPECTER: Thank you very much, Professor Goldsmith.
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