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Hearing of the Constitution Subcommittee of the Senate Judiciary Committee - Secret Law and the Threat to Democratic and Accountable Government

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Location: Washington, DC


Hearing of the Constitution Subcommittee of the Senate Judiciary Committee - Secret Law and the Threat to Democratic and Accountable Government

SEN. FEINGOLD: Call the committee to order. Good morning everybody and welcome to this hearing of the Constitution Subcommittee entitled "Secret Law and the Threat to Democratic and Accountable Government."

We are honored to have with us today a distinguished panel of witnesses to help us examine this very important and timely issue. I'll start by making just a few remarks and then I'll recognize the ranking member, Senator Brownback for an opening statement and then we'll turn to our witnesses.

More than any other administration in recent history, this administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits.

It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.

These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed --- the increasing prevalence in our country of secret law.

The notion of secret law has been described in court opinions and law treatises as repugnant and an abomination. It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of secret law.

That purpose today is being thwarted. Congressional enactments and agency regulations are for the most part still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from the public, and too often from the Congress as well.

The recent release of the March 2003 John Yoo torture memorandum has shone a sobering light on this practice. A legal interpretation by the Justice Department's Office of Legal Counsel, or OLC, binds the entire executive branch, just like a regulation or the ruling of a court.

In the words of a former OLC head Jack Goldsmith, quote, "These executive branch precedents are law for the executive branch." Unquote. The Yoo memorandum was, for a nine-month period in 2003 until it was withdrawn by Mr. Goldsmith, the law that this administration followed when it came to matters of torture. And of course, that law was essentially a declaration that few if any laws apply.

This entire memorandum was classified and withheld from Congress and the public for years on the claim that it contained information that would harm national security. Now it may be appropriate prior to public disclosure of an OLC memorandum, to redact information about, for example, specific intelligence sources or methods. But as we now know, this 81-page document contains no information about sources, methods, or any other operational information that could compromise national security.

What it contains however, is a shocking glimpse of the law that governed the administration's conduct during the period this memo was in effect. And the many, many footnoted references to other OLC memos we've never seen suggests that there is an entire regime of secret law that may be just as shocking.

Another body of secret law is the controlling interpretations of the Foreign Intelligence Surveillance Act that are issued by the FISA Court. FISA, of course, is the law that governs the government's ability in intelligence investigations to conduct wiretaps and search the homes of people in the United States.

Under that statute, the FISA Court is directed to evaluate a wiretap and search warrant applications and decide whether the standard for issuing a warrant has been met, a largely factual evaluation that is properly done behind closed doors. But with the evolution of technology and with this administration's efforts to get the Court's blessing for its illegal wiretapping activities, we now know that the Court's role is broader, and that it is very much engaged in substantive interpretations of the governing statute.

These interpretations are as much a part of this country's surveillance law as the statute itself. Without access to them, it is impossible for Congress or the public to have an informed debate on matters that deeply affect the privacy and civil liberties of all Americans.

While some aspects of the FISA Court's work involve operational details and should not be publicly disclosed, I do not believe that same presumption must apply to the Court's purely legal interpretations of what the statute means. Yet the administration has fought tooth and nail against public disclosure of how the Court interprets the law, and has strictly limited even congressional access to some of those decisions.

The administration's shroud of secrecy extends to agency rules and executive pronouncements, such as executive orders that carry the force of law. Through the diligent efforts of my colleague, Senator Whitehouse, we have learned that OLC has taken the position that a president can waive or modify a published executive order without any notice to the public or Congress, simply by not following it.

Now, none of us disputes that a president can withdraw or revise an Executive Order at any time. That's the president's prerogative. But abrogating an executive order without any public notice works a secret change in the law. Worse, because the published order stays on the books, it actively misleads Congress and the public as to what the law is. That has the effect, presumably, the intended effect, of derailing any accountability or oversight that could otherwise occur.

And that gets us to the heart of the problem. In a democracy, the government must be accountable to the people, and that means the people must know what their government is doing. Through the classification system and the common law, we've carved out limited exceptions for highly sensitive factual information about military operations, intelligence sources and methods, nuclear programs, and the like.

That is entirely appropriate and important to protecting our national security. But even in these areas, Congress and the courts must maintain some access to the information to ensure that the president is acting in accordance with the law and the Constitution.

And when it comes to the law that governs the executive branch's actions, Congress, the courts, and the public have the right and the need to know what law is in effect. An executive that operates pursuant to secret law makes a mockery of the democratic principles and freedoms on which this country was based.

We'll hear today from several experts who can help us understand the extent of this problem and also help us begin to think about solutions. But before I turn to them, let me first turn to my colleague, Ranking Member, Senator Brownback, for any comments he'd like to make.

BREAK IN TRANSCRIPT

SEN. FEINGOLD: Thank you, Senator Brownback. We'll now turn to our panel of witnesses.

Will witnesses please stand to be sworn? If you could all please raise your right hand to be sworn?

(Witnesses sworn in.)

SEN. FEINGOLD: I thank the witnesses. You may be seated. I want to welcome you and thank you for being here with us this morning. I ask that you each limit your remarks to five minutes, as we have a full panel today and we need to finish up in time for the joint session at 11 o'clock. Your full written statements will of course be included in the record.

Begin today with Mr. John Elwood.

Mr. Elwood serves as deputy assistant attorney general, in the Justice Department's Office of Legal Counsel. He previously served in the department as assistant to the solicitor general and as an attorney in the Criminal Division.

Before you start, Mr. Elwood, I want to mention that the Department of Justice and the Office of the Director of National Intelligence informed by office yesterday evening that the administration plans to give the Senate Intelligence Committee a limited access to Office of Legal Counsel memoranda, relating to the CIA's interrogation programs. We were also informed that parts of some memos may be made available to the Judiciary Committee.

Certainly, some access is better than no access, but that's about the best thing I can say about this arrangement. First it took years to get this far. During that time the attorney general refused to even talk to the intelligence committee about the legal basis for the interrogation program, which I strongly opposed on legal, moral, and national security grounds.

And now, the access that is being granted comes with strings that will make it difficult for the committees to make use of this information. I understand that the intelligence committee members will not actually be given the memos to allow for a thorough review and the conditions of access for the Judiciary Committee remains unclear.

So while I appreciate that there has been some movement here, I don't think there's any way we can say that Congress is being provided what it needs with respect to these memos. And none of this of course provides the public with any information about how the executive branch interprets the law governing torture.

So, having said that, Mr. Elwood, I will have some questions for you about this, but I would like you to now proceed with your testimony.

BREAK IN TRANSCRIPT

SEN. FEINGOLD: I just comment that -- I understand what you are saying, but I've been a legislator for 26 years, and the notion that simply giving a general policy position as opposed to exactly knowing what your rationale is makes it very difficult to legislate.

It makes it extremely difficult to anticipate exactly what we need to say in the law in order to make sure the executive doesn't try again to resist it.

Mr. Elwood, you testified that, quote, "We remain committed to working with Congress to find appropriate ways to keep Congress well informed about the basis in law for executive branch policies." Unquote.

In fact, until now, the administration has refused to share with Congress, OLC opinions on the CIA's Interrogation Program. When I asked Attorney General Mukasey if he would brief the intelligence committee behind closed door and the legal justification for the program, he refused on the ground that the OLC memo spoke for themselves, even though we were not allowed to see them.

That was where things stood for years, which doesn't strike me as demonstrating a commitment to keeping Congress well informed.

Now, as of yesterday, we talked about, the administration has now decided to provide the intelligence committee with limited access to these opinions.

And as I've indicated, this is certainly too late, and what I understand, too little as well, but I would like to ask some follow-up questions with regard to this.

Will the interrogation memo that you'll be providing the intelligence committee include all the memos on interrogation, including those that are currently in effect and those that are no longer in effect.

MR. ELWOOD: It's my understanding that the memoranda that are going to be provided to the intelligence committee are going to be un- redacted copies of all the memos both in effect and that were not in effect. That's correct.

And if I might, I was not involved in briefing the intelligence committees earlier, but it was my understanding that they were, although they were not provided with copies of their opinions, that they were briefed on a legal basis for the policies, both of the intelligence committees and Mr. Bradbury testified in front of House judiciary on the legal basis for the current interrogation policies.

And certainly it is my understanding that we wish to provide you an understanding of our basis in law for all of these positions. So I would just say at the risk of irritating my colleagues who actually provide these briefings, just keep asking.

SEN. FEINGOLD: Okay. And can you confirm if there are anything OLC memos that supersede the memos you are making available that they too will be provided to Congress as soon as they go into effect?

MR. ELWOOD: It's my understanding that the interrogation committees are going to get all of the opinions on interrogation.

SEN. FEINGOLD: And going forward?

MR. ELWOOD: That is something I simply don't know one way or the other. I thought the only thing I know of is what was -- what was said yesterday.

SEN. FEINGOLD: Now will all these memos that we are discussing be made available to the judiciary committee?

MR. ELWOOD: I understand that those discussions are still ongoing, but we are seriously committed to making an accommodation that will get the judiciary committee the information it needs.

SEN. FEINGOLD: In the same form or in a redacted form?

MR. ELWOOD: I believe that -- well, I think that this is still the subject of negotiations.

So I am not prepared to say anything further other than the fact that they are very interested in working something out.

SEN. FEINGOLD: Well, we'll have to obviously take a close look at any proposed redactions to make sure that this committee has what it needs to evaluate the legal issues.

Will you agree to make these memos public with appropriate redactions to protect sensitive information about specific operational details?

MR. ELWOOD: Senator, I'm not in a position to say one way or the other. It's really not up to me. But our main goal, right at the moment, is to make sure that Congress has the information that it needs to be appraised of our policies. As you say so, it can legislate.

SEN. FEINGOLD: I will certainly be engaged, and I think, some of my colleagues, in getting as much appropriate public access as possible.

Going back to your testimony that OLC's legal views are not binding on the courts, it's reassuring that you admit that a court's interpretation of the law would trump the interpretation of the executive branch.

I think I'd be a little more reassured though if the administration weren't simultaneously arguing that the courts aren't allowed to decide many of these issues because it would require the disclosure of state secrets.

Now a court can't override the executive branch's legal interpretation of, for example, it's wiretapping authority if the court is prevented from deciding the case, can it?

MR. ELWOOD: Senator, I think that the way the government's wiretapping authority would be decided would be in courts that issue wiretapping warrants. Civil suits, it's a different matter. And where the state secret privileges are asserted is in civil litigation which doesn't directly involve wiretapping, it only does through imposition of damages, I would imagine.

I'm not involved in "state secrets" practice. That's principally handled by the civil division. I know that Carl Nichols has testified on that. But I would simply want to note that all we can do, all the executive branch can do is make our position known to the courts that certain material is state secret.

Senator, it's up to the judiciary to decide whether or not they agree.

SEN. FEINGOLD: Mr. Elwood, thank you for your answers to my first round of questions. And now we'll turn for a round to Senator Brownback.

BREAK IN TRANSCRIPT

SEN. FEINGOLD: Thank you Senator Brownback. I can tell you, as a legislator, my experience in trying to deal with the illegal wiretapping program, the justifications for that, the shifting justification to that, they just kept flying at us after we shot down the notion that somehow the authorization of military force was a justification.

This is exactly why we need to know the scope and the depth of legal justifications, or you can't legislate, because every time you legislate, they come up with some new, usually absurd argument to justify what was illegal.

So that is in fact why it's important for me as a legislator, at least, to know that.

SEN. BROWNBACK: Well then, if I --

SEN. FEINGOLD: Yes, of course, Senator Brownback.

SEN. BROWNBACK: -- just a brief comment. And I appreciate you delving into this, because it's -- it is a significant issue, and a significant one we need to know about.

But I have been -- witnessed this, and I think you have too, and a couple of people on the panel have served in administrations, of the internal administration fighting that goes on, because you got a bunch of bright people that hold their position strongly.

And I think if you are saying, okay, we want to know about this ebb and flow of this, it's really more of a political debate, and once it gets out in the front, this group says this and that one says that.

Now probably that's not the specific of what your asking for, but if we don't provide some protection for that discussion, that's then you are either not going to have that or you are not going to have it in writing, it's all going to be oral, or people are just not going to ask the question, and you are going to have poor administration decision-making taking place.

And I think there's a danger in us doing that to the administration that we shouldn't.

SEN. FEINGOLD: Okay, I won't take this long, but I think this is healthy for us. You mentioned people having served in the administration, that's right, we've got a couple of them here who have served in the administration; Professor Johnsen and Mr. Leonard, I believe, who agree with my proposition that this is something that we have to deal with. And apparently aren't terribly concerned about this alleged chilling effect. So we have testimony right here from people who have served in both Republican and Democratic administrations who say the opposite.

SEN. BROWNBACK: Well, you've got Mr. Rivkin who has testified differently. He served in another administration. So you've got even on your panel a dispute relative to this. So I think what we could focus on though --

SEN. FEINGOLD: (Cross talk.)

SEN. BROWNBACK: -- is you do have an agreement of a narrower category here that I think would be a more interesting more likely-to- produce-result probe of what Mr. Berenson was suggesting. And in agreement with Professor Johnsen, I think if you tightened in on your focus more, there is some possibility here.

SEN. FEINGOLD: And you know, I may be able to work with you on that. I think that has a lot of merit. And I'm hoping we can come together in the way they came together on this matter.

Now, I'm pleased to turn to turn to Senator Whitehouse who, of course, a distinguished member of the committee, but I want to repeat my compliment to him on the excellent work he did in helping reveal this problem of executive orders being rescinded in secret. I thank you, and I turn it over to Senator Whitehouse.

BREAK IN TRANSCRIPT

SEN. FEINGOLD: As former head of the office responsible for implementing the present standards for classification, did you see anything in this memo that should've been classified?

MR. LEONARD: Absolutely nothing.

SEN. FEINGOLD: You have testified that in your view pure legal analysis should never be classified. It's been suggested however that the law of war is different from the law of taxes and the law of healthcare and that the law of war is properly classified and kept secret. What is your response to that argument?

MR. LEONARD: I think the perfect response to that is again, some of the reason why this memo was classified reportedly in the first place, that was to keep it out of the hands of the military services legal people because they very much recognized from a reciprocity point of view any steps or any positions we take with respect to the handling of enemy combatants, lack of transparency and the interrogation that they are subjected to, that our young men and women that we sent into combat, they too are potentially subjected to be held to that same reciprocal standard.

So that's why from that perspective the military service attorneys are great advocates of transparency. Not to say that our adversary, particularly in those case is anything but brutal, but our goal is not to reduce ourselves to a level of our adversary, but rather to use our own beliefs and values as a positive vision for the rest of the world so as to isolate the extremists.

SEN. FEINGOLD: Ms. Johnsen, as you know the attorney general was required by statute to inform Congress and the Justice Department terms that it will not enforce or defend a statute on the ground that it is unconstitutional. You made the case that the attorney general also should be required to inform Congress when it applies to doctrine of constitutional avoidance, to construe a statute's limitations narrowly.

Why in your view is it important for the executive branch to notify Congress when it has decided that it doesn't need to fully comply with the statute?

MS. JOHNSEN: Let me make one preliminary point if I may. And I'm delighted we're all moving toward some agreement, that it would be good to extend it that way. I do need to point out that President Bush has created a little probably by saying in previous statements that it is unconstitutional in some applications for Congress even to require what it has required.

So certainly the Bush administration would say, this extension also would unconstitutionally infringe the president's powers, which I think is clearly wrong. But that's something that we need to be aware of.

So I think it's simply self-evident that the reason, Mr. Chairman, you described that in a Democratic -- in a democracy the government must be accountable to the people, and Congress must know how the executive branch in particular is interpreting and enforcing statutes that are already on the books.

The whole system falls apart if the executive branch is allowed to keep those interpretations secret. You know, and I want to clarify. No one is talking about the feeling, there have been flow of discussions. I am a big supporter and saw it first hand the importance of having confidentiality in deliberations about policy and legal interpretation as well.

What we're talking about is a limited class of OLC opinions and the presumption in favor of release, not an absolute requirement. I would be opposed to Congress going beyond what we have discussed in requiring release of all OLC opinions.

SEN. FEINGOLD: And I agree with that as well. Is it a sufficient substitute for such notification in your view for the administration to brief a few members of Congress under the condition that they keep the information secret?

MS. JOHNSEN: Yeah, absolutely not. I realized that there may be some very rare circumstances where that is the only possible opportunity, but remember as it has been said, and you said, we're talking about legal reasoning and legal conclusions here. And we're not talking about sources and methods and operational details. And the better approach is to redact that information to the extent that it does appear in an OLC opinion.

As Mr. Berenson pointed out, what we're talking about in these OLC opinions, we know about it at least, are not discussions of those kind of details. And Mr. Berenson, I think is right, they should contain more and be more pointed though I think in some cases OLC does need to give more general advice. But part of the problem was, it was trying to give sweeping immunization to government actors to violate criminal statutes. You know, that's what really going on with some of these opinions.

SEN. FEINGOLD: Professor, a couple of witnesses have suggested that these OLC memos address matters that are not proper subjects of congressional interest. Do you agree with that?

MS. JOHNSEN: Absolutely not. And Congress clearly has brought authority to regulate with regard to war and national security, and we have talked about FISA interrogation methods, military commissions. It was a position in the March 2003 opinion that Congress did not have that authority. But the Supreme Court has rejected that and it is plainly wrong and it has been widely ridiculed. And the administration itself, once these opinions are leaked and made public, regularly backs down from the more extreme assertions.

SEN. FEINGOLD: Thank you, Professor. Mr. Aftergood and Mr. Berenson draws a distinction between laws that govern the conduct of private citizen and laws that govern the conduct of government officials. In fact, he says that the laws governing the conduct of the executive branch are not what is meant by the term "law," and I find that puzzling.

In any event, he claims that when the law that governs the conduct of government officials is withheld from the public, that is not truly secret law and that is something the public should be concerned with. What is your response to that?

MR. AFTERGOOD: I find that hard to understand. In fact there is a spectrum of legal activity delineated in my statement, some of which directly affect the conduct of American citizens and requires them to behave in a certain way. The example I gave of transportation security directives that cannot be inspected by ordinary citizens.

But even more important than those are the decisions of executive branch officials that have tremendous ramifications and implications for the rights of American citizens. The whole question of domestic surveillance. Under what conditions might I be subject to interception of communications. These are elemental questions of American citizenship, and when they are moved behind a cloak of secrecy, we are all diminished as citizens.

SEN. FEINGOLD: Thank you very much, Mr. Aftergood.

Senator Brownback?

BREAK IN TRANSCRIPT

SEN. FEINGOLD: Thank you, Senator. And we'll begin the third, and what I expect would perhaps be the final round.

Professor Johnson, how do you respond to Mr. Elwood's statement OLC under this administration has complied with the principles to guide the Office of Legal Council?

MS. JOHNSON: Probably a reply would take quite a long time and I'm a little kind of amazed that Mr. Elwood said he agreed with the principles. It does not seem consistent with his point that OLC should not need to reveal the actual legal opinions that it has issued.

I do believe that OLC has not been forthcoming in other ways either. But one of the principles is that there should be a presumption in favor of releasing OLC opinions to the public, not just to Congress. And so that is partly inconsistent with Mr. Elwood's description of OLC opinion that confidential legal advice that routinely should be withheld from the public.

I think also important, as Mr. Elwood talked about, since he's been there in October 2005, we just don't have and Congress does not have a good sense of what has happened at OLC overtime. We do know isolated opinions that has been publicly released and some of them are conceivably before October 2005. Those opinions do, as Senator Whitehouse said, have presidential force within OLC, within this administration and in future administrations.

So I would be curious to hear what Mr. Elwood thinks about the pre-October 2005 opinions that flatly contradict the guidelines, the principles to guide OLC because they clearly were not written to give accurate principle legal advice, they were not written with the input of all interested knowledgeable agencies. They violated many of the specifics of the principles.

SEN. FEINGOLD: Thank you, Professor.

Professor Kitrosser, for the past six months Congress has been working on legislation to amend FISA, but the FISA court decisions that are directly relevant to the drafting of the legislation have been withheld from most lawmakers. As you know, even in the considered proposed amendments and statutory terms in the dark without the benefit of the court's prior interpretation. How does this disrupt the constitutional balance among the branches of government, and can Congress really do its job under these circumstances?

MS. KITROSSER: Senator Feingold, I believe it disrupts it very substantially. As I talked about in my oral testimony and in more detail in my written testimony, the constitution, I think strikes a rather brilliant balance by ensuring that the policy framework under which the executive branch implements that policy is transparent even if some implementation can occur in secret.

However, as we have seen and as we have discussed at length today, there is a danger that that opportunity and capacity for secret implementation will be abused, will be taken advantage of, and will be used not merely to implement law but to circumvent law.

Now, how can we strike that balance, how can we ensure that doesn't happen? And congressional oversight is absolutely crucial. One problem that we've seen in the past with FISA over the last few years is a failure of the administration that still has not really explained adequately the reason for its failure, failure of the administration to comply with its informing requirements under the NSA.

And certainly going forward, I would agree that Congress has a need to understand how FISA has been implemented as well, certainly as any policy decisions that the FISA court has made in order to understand how the statute might need to be amended in the future.

SEN. FEINGOLD: Thank you.

Mr. Elwood, I would like to ask you about a certain memo that was referenced in the March 2003 memo. That was a memo to the defense department dated October 23, 2001, entitled "Authority for use of military force to combat terrorist activities in the United States," authored by John Yoo.

It's my understanding that some of my colleagues in the Congress have been asking to see this memo for years. Has this memo been provided to Congress and if not on what ground?

MR. ELWOOD: I don't know whether it's been provided to Congress. I expect from your question that it has not. If it has not been provided, I can't say specifically why that particular memo wasn't provided, but I can say something about the terrorism related opinions that were released -- or were not released, were signed, in 2001 to 2003. And that is there is always a lag in time between when an OLC opinion is signed and when it is published.

I think the shortest ever got was with the December 2004 torture law opinion that OLC put out, it was put on the same day. But generally, it is a period of months or even years. I have seen where they aren't set up for speculation for a while because at the time they are made, they are confidential legal advice. The decisions have not been made. After a period of years, the confidentiality interests come down because the decisions have been made and revealing them won't disrupt the decisional process.

I think that the terrorism opinions are in some ways sui generis, if I can use the legalism which I'm usually allowed to do, because this -- in the aftermath of 9/11 during the catastrophic terrorist attack when thousands of people died, they were scrambling to try to figure out what to do because there was a thought that another terrorist attack would be coming and they didn't know where it would be coming from, what it looked like.

And so there was a lot of think-tanking on the various contingencies. One thing that I think heightens that confidentiality interests of many of the terrorism opinions is that the policies discussed weren't implemented. If you look through all of the opinions, which some day I think that they will be released, there are some of the opinion in the publication pipeline now, you will see things in there that were considered, but not adopted.

And I think that heightened the confidentiality interests there because people aren't going to come to you and ask for legal advice if they know that even if they don't wind up doing it, everyone is going to find out that they were thinking about it. So as a general matter, that's why I think the war on terror opinions are especially sensitive, but there will be -- many of them are on a pipeline for publication.

SEN. FEINGOLD: Do you agree to properly release the portion of the October 23, 2001, memo that addresses the legal conclusion about the Fourth Amendment that has now been made public?

MR. ELWOOD: I will certainly go back -- and it's not my decision, but I will certainly go back and convey it, and in as much as I understand that the attorney general himself has criticized that conclusion, I don't think that that is any longer an operative conclusion of the office.

But, yes, I will take that back.

SEN. FEINGOLD: Is this memo still in effect and binding on the executive branch?

MR. ELWOOD: The entire memo? I don't know the answer to that question. That particular conclusion, I think, has been repudiated, the fourth amendment conclusion.

SEN. FEINGOLD: Thank you, Mr. Elwood.

BREAK IN TRANSCRIPT

SEN. FEINGOLD: Thank you, Senator Brownback. I want to thank all the witnesses for their testimony and for this very enlightening discussion. I want to particularly thank both my colleagues for their very diligent attention throughout this two-hour plus hearing.

I think this is a unique matter. In fact, I think this is a groundbreaking hearing with regard to this area of law, certainly with regard to the Congress.

As much as we have accomplished today, I feel that we've only scratched the surface for this hearing. I take the ranking member's concern about caution seriously.

There is not a single member of the Senate who would not act cautiously in this hearing, but I must say that the fact that we're having this hearing is an indication of almost a complete lack of caution on the part of the administration in terms of the other side of this -- a complete failure to be concerned about disclosure and the failure to disclose and what that means for the American public, that's why we're here today.

Presumably, this never would have been a serious issue under many other administrations. It is their approach that has caused us to have to take these actions and investigate this issue.

We focused today on the OLC memos and on FISA court opinions, appropriately so in my opinion because they are critical and timely examples of the problem.

But it's more and more clear to me that this problem is a systemic one and that there's much more secret law out there than most of us suspected.

It's also clear to me that this systemic problem needs a systemic solution. It's true that this administration has raised secret government concerns to a new level, but I think it would be naïve to expect that this problem will disappear somehow when the Bush administration leaves office, and this relates to my comments a minute ago.

Government secrecy has been compared to Kudzu, and I think there's something to that. Once it takes hold, it's difficult to pry loose. We've heard some ideas here about ways to tackle the problem, and I intend to continue to give this issue close study.

The hearing record will remain open for one week for additional materials and written questions for the witnesses to be submitted.

As usual, we will ask the witnesses to respond properly to any written questions so that the record of the hearing can be completed.

I thank you and the hearing is adjourned.


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