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


Location: Washington, DC

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


SEN. SAMUEL D. BROWNBACK (R-KS): Thank you, Mr. Chairman, appreciate that.

And panel members, thank you for being here today. I look forward to a good discussion, interesting information, and a good vetting on this topic. Look forward to the discussion from you on the so-called issue of secret laws.

At the outset, I must say I'm not convinced that the topics we'll address here today comport with the notion of secret law as defined by our federal courts. Hopefully, you can illuminate me on that.

Courts have defined secret laws as administrative guidance or standards that an agency applies to the public. I'm confident that we can all agree, as our courts have long-recognized, an administrative agency should, quote, "not be permitted to develop a body of secret law used by it in the discharge of its regulatory duties and its dealings with the public but hidden behind a veil of privilege because it's not designated as formal, binding, or final.

"The application of such quasi regulations would, of course, violate our fundamental commitment to the principle of legality because it is beyond dispute. The members of the public cannot be expected to conform their behavior to legal requirements that have been concealed from them." End quote.

In 1971, Court of Appeals, District of Columbia, addressed the problem with such a secret law stating this. "To prevent the development of secret law within an administrative agency we must require the agency to disclose orders and interpretations which it actually applies in cases before it." Despite this widely understood description of secret law, every branch of the federal government has at times been accused of making secret law that falls outside this definition.

Prior to the adoption of the federal rule of appellant procedure 32.1 for example, certain courts in our federal jurisdiction were sharply criticized in the past for policies under which many of their opinions were deemed "non-presidential" or excluded from databases and collections of published cases. Critics called these decisions, quote, "secret law" even though they were not truly secret and due to their non binding nature with regard to other parties before the courts could not in one sense be called law.

Even Congress are not immune from this criticism. In a case cited by our witnesses, the Seventh Circuit proclaimed that the idea of secret law is repugnant. That case, however, did not deal with secret law at all. Instead, the plaintiff in that case was arguing that a properly enacted statute passed by both houses of Congress in signing the law by the president was too inaccessible to him to be fairly considered binding.

The Court concluded that the statute at issue was not secret, and that Congress has no duty to make --- take measures to delay a statute's applicability long enough for its content to be widely disseminated.

Finally, as our witnesses today will discuss at length, there are many individuals who criticize the executive branch for promulgating supposedly secret law, particularly certain memorandum prepared by the Department of Justice Office of Legal Counsel.

I'm not convinced that these memoranda however could truly be considered secret laws or courts have understood that term. The D.C. Circuit 1971 opinion on secret law distinguished, quote, "the ideas and theories which go into making a law," end quote, from the quote, "the law itself." So it's just not the latter, but now the former must always be made available to the public.

OLC's legal opinions are the ideas and theories which go into making it a law, and they do not affect the public directly in the ways that the other agency guidance or interpretations may. Rather, the White House executive agencies use OLC's opinions to determine whether their proposed policies comply with the law.

This is a vital function within the executive branch, one that sometimes requires that those opinions be kept confidential. Regardless, I believe, and I think our witnesses all agree that there are circumstances in which our natural inclination towards openness in all branches of government must be tempered by other considerations, must take care to value, of course, our national security, must also be sensitive to the reality that information we make available to the public also becomes available to those who would do us harm.

We must promote to the extent practicable executive agencies' unfettered access to legal opinions on their proposed policies without fear that ill-advised and therefore rejected policies will become public. And we must respect not only the essential checks and balances that our constitutional system provides, but also the privileges that affords each branch of our federal government including, however unpopular at the moment, the executive privilege.

I'd like to thank our witnesses for taking the time to appear before our subcommittee. I recognize that service as a witness requires a significant commitment of time and effort and the sharing of your expertise. It requires commitment, both in research in preparing written testimony, traveling in here and appearing in person for the Senate. So I appreciate very much your input and your thoughts. I look forward to it, and I appreciate the hearing, Mr. Chairman.


SEN. BROWNBACK: Thank you, Mr. Chairman.

I thank the panel. I appreciate the discussion.

In starting on a premise of this, as a recovering lawyer like the chairman, some of this I'd look at and I think, I want the administration asking a whole bunch of legal questions all the time.

I want them asking these questions a lot. I want them asking lawyers in various agencies and branches a lot of various ways and avenues.

My guess is that if we get into a very tight practice that if all legal opinions have to be disclosed, and I know non of you are saying all legal opinions have to be disclosed, but you are pushing that a lot more of them be disclosed, that there'd be a tendency to ask a lot less legal questions so that, you know, people would say, well, let's not ask, because if we do, then this sort of information has to be disclosed, and -- or we are going to get in some grey category, then we are going to get some committee asking us questions about this. So let's just not ask the question.

Maybe that doesn't happen. My sense of it is that people generally practice in ways that they think are going to be least subject to criticism, and so that they just want to ask questions. Maybe I'm off on that.

That's one premise that I think we need to be careful about in looking at this. Having said that, Mr. Berenson, you have suggested at the end of your testimony, there was a particular area here that you thought needed to be probed further in your agreement, and I'd like for you to develop that particular area some more, because I thought that was interesting. But I'm not sure I comprehended fully what you were discussing on that.

MR. BERENSEN: Was this the moment when I was responding to Professor Johnsen's suggestion about avenues for disclosure to the Congress of circumstances?


MR. BERENSEN: What I'm suggesting there, I think it is obviously true that there are instances when statutes passed by Congress are unconstitutional. We see it every year in the Supreme Court. They can be unconstitutional for a variety of reasons. And rarely, but sometimes, a statute will transgress the president's Article II powers that belong to him alone.

So there are going to be circumstances in which it is perfectly legitimate for the executive branch to reach a constitutional conclusion that a statute, in some particular circumstance as applied, has gone too far and has restricted the president's freedom of action in a way that is inconsistent with the constitutional design.

When that happens, I agree that there is a serious danger of abuse and essentially self-aggrandizement by the executive, if the executive can reach that conclusion without appraising the coordinate branch of government that passed the statute in the first place.

So there is a -- there is already law on the books, which suggests that when the executive concludes that a statute is unconstitutional and/or will not defend it in court, it needs to appraise the Congress. I think that's the right rule.

Depending on circumstances, you may need to do that just with the intelligence committees or in closed door briefings if they would compromise operational information about intelligence or military activities.

But the best practice I think is for the executive to be transparent with the legislative branch when it reaches that conclusion. The difficult is a circumstance in which the executive doesn't forthrightly conclude this is unconstitutional as applied to us, but rather says, this might be unconstitutional. It's so close to being unconstitutional that we are going to interpret the statute in another way.

That doesn't fall within the ambit of the existing law, but it is evidence that the executive has concluded that the statute might be or could be or probably would be unconstitutional. That's where the grey area is, and I think I agree with Professor Johnsen that even in that circumstances there should be some mechanism for inter-branch discussion so that there isn't abuse.

SEN. BROWNBACK: We should pass some sort of law addressing that particular area and requirement of disclosure for the legal opinion upon which the basis of constitutional question or probability of unconstitutionality exists.

MR. BERENSEN: I think Professor Johnsen has probably thought a lot more deeply than I have about the precise mechanism, but I suspect that a few words added to the existing provision would be sufficient to accomplish that objective.

SEN. BROWNBACK: Professor Johnsen, I'm on a limited time. But could you describe that narrow category for me. I'm sure you want to talk about a whole bunch of things, but I have limited time. If you could just hit that category.

MS. JOHNSEN: Yes, certainly, and I'm very glad to hear Mr. Berensen agrees that would be helpful.

The category arises because very often the Bush administration, in particular, rather than acknowledge that they are declining to comply with the statutes outright, instead they say, we will interpret the statute in a way that is not consistent with the statutes plain meaning, because to construe it the way that it's written would violate what the Bush administration views as the president's constitutional authority.

So they say, you know, it seems the statutes says X, but we'll interpret it to say Y, because if we say it says X, as it seems to, it would violate their view of the president's sweeping constitutional authorities to act unilaterally.

And so that's not captured by the existing reporting requirement, and I do think it could be changed with the addition of a sentence (ph) or so.

SEN. BROWNBACK: In your testimony, it has that particular provision thought through. It seemed like Mr. Berensen, it would be great if you could review that -- that they have in there, and give the committee some recommendations on this.

Mr. Rivkin, just briefly, you have concern in the asymmetrical warfare that we are in right now on the impact of some of what's being suggested by some of the panel members, I take it.

MR. RIVKIN: I do, Senator Brownback, and very briefly, to me, one of the biggest problems of the critics is that I've not heard any of them acknowledge that the balancing -- the baseline for balancing the openness and public safety is any different now than it was prior to 9/11.

But also, I mean, let's be honest about it. So a question on what you disclosed. Disclosing the bottom-line policy position, disclosing the bottom-line legal position is one thing. Disclosing the ebb and flow of legal advice does entail significant consequences.

Let's be candid. It shows the candor which people offer legal advice, because unfortunately, Senator, this debate is not being carried out in a particularly dispassionate and collegiate manner.

People whose advices revealed, shall we say, not prosper, they don't get confirmed, they get ostracized, people write nasty articles in various magazines suggesting they be tried for war crimes.

The long-term implication of disclosing the ebb and flow of legal advice is very simple. In any administration, you are going to have fewer and fewer lawyers. You mentioned correctly that executive would not ask for advice.

But even if he does, or she does, you wouldn't get candid opinions, which will be bad all the way around from the standpoint of a vigorous democratic accountability. So there is a huge price to be paid.

And I -- for the life of me, I don't understand -- am I understanding every nuance, aspect of ebb and flow of legal advice is necessary for you to legislate as long as you know what the executive's bottom-line legal conclusion and policy conclusion is.

And I suspect a lot of the disclosure is really not driven by the legislative needs, it's driven by this sort of a interagency, inter- branch, political warfare --

REP. : Tension.

MR. RIVKIN: -- and tension with consequences. Does anybody really doubt that the consequences to people who is, you know, legal advisors revealed as they go forward with the rest of their lives and careers. I wish it will not be the case.

Frankly, if that were not the case, I'll be a lot less concerned about the disclosure of this information. Thank you.

SEN. BROWNBACK: Thank you Chairman.

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. BROWNBACK: Thank you.

Mr. Elwood, can the OLC decide for itself whether to classify information?

MR. ELWOOD: No, Senator, OLC lacks the authority to classify information itself, so-called original classification authority. However when we discuss matters that have been classified by other agencies, the discussions of them must be classified, that so-called derivative classification. And I will note that executive order 12958 requires that original classification be respected by the people who deal with that information later.

SEN. BROWNBACK: So you cannot classify information on your own, but you have to abide by the agency that you're working with.

MR. ELWOOD: That's right, we can't either classify nor declassify information essentially.

SEN. BROWNBACK: Okay, so it's all bound by the other agency's classification process, is that correct?

MR. ELWOOD: That's correct.

SEN. BROWNBACK: And is that uniform across administration or is that per agency by agency?

MR. ELWOOD: It's agency by agency and even component by component because I suspect that there are parts of DOJ that can classify information. Like, I wouldn't be surprised if National Security Division could, but I just don't know that off the top of my head.

SEN. BROWNBACK: Whereas there would be other agencies that wouldn't have near the classification needs or requirements I would guess, is that correct?

MR. ELWOOD: That's correct. I believe for example, the Department of State does have classification authority, Department of Defense doesn't. My understanding is that it's agency heads who are designated in the federal register have classification authority.

SEN. BROWNBACK: Do you think that's -- I mean, that seems to me to be prudent that different agencies have different requirements. You can't classify anything, but that agency has its own -- has a procedure. Is that -- that seems prudent to me. Is that being workable within OLC by and large?

MR. ELWOOD: Certainly, yeah we haven't had the need to do anything of that ourselves.

SEN. BROWNBACK: Okay. There is a document attached to Ms. Johnsen's testimony entitled "Principles to Guide the Office of Legal Counsel." In your experience are these principles generally followed in the current Office of Legal Counsel?

MR. ELWOOD: Yes, absolutely. I remember the first time I saw the principles and I read them from front to back, and I remember thinking it described the ordinary practice of the office.

SEN. BROWNBACK: And that's been your experience within the OLC is that these are followed?

MR. ELWOOD: Yes, that's right. I have been in OLC since October of 2005, and it is definitely consistent with our practice during that time.

SEN. BROWNBACK: Thank you.

Thank you, Mr. Chairman.


SEN. BROWNBACK: Mr. Elwood, Professor Johnsen seems to disagree with your statement about whether or not you followed generally the recommendations made by the group that she cited in her testimony. I'd like to give you a chance to respond to her accusations. It seemed like you would probably be in a better position to respond to those.

MR. ELWOOD: I really appreciate that. To begin with, I don't think it's an accurate statement to say that we -- I don't feel that we have to reveal legal opinions or that we don't want to. We are committed to publishing them and it's been a real priority of mine and Steve Bradbury to publish as many opinions as we can.

And we are constantly trying to move them through because as you can imagine, when you are sending around request for consent to various agencies, they -- the last thing that they want to do is do your business. They want to do their own business first. But it's something we do. We are constantly bringing agencies to try to move the process along.

SEN. BROWNBACK: Because the agency is the one that determines, it's not OLC?

MR. ELWOOD: No, no, it's -- but you want to get at least their views on it. They don't have the last word, we have the last word on it, but you -- it's one of their best practices, I think of the office, to ask the people who might be affected by publication for their views on publication are. But it's our decision.

But we are committed to publishing them. I think one thing -- I think we still have a presumption in favor of releasing the opinions, but the fact of the matter is that -- it has been my understanding that the historic practice of OLC is to publish them when they have been turned into policy because if it's otherwise -- if it's just "Here's our opinion" and they say, "Well, thanks very much, but we're going to do something else" or "Even though you say we're not legally required to do this, we're going to do it anyway as a matter of policy."

It might be publishable, but it's a completely different, I think, confidentiality interest when they've decided as -- for policy reasons to do something else than what they discussed with you.

But for opinions that have been implemented as policy, we have a very strong commitment to making them public as fast as possible and in fact one thing that we have been, I think, especially aggressive on is attempting to move the process along quickly.

If you look at our website, there are four opinions on there from just the last five months including three that were signed in 2008 and as I said, we've published 13 just in 2008 and it's only April.

SEN. BROWNBACK: Thank you.

Mr. Rivkin, there's been a suggestion here at the hearing that the TSA regulations all be made available to the traveling public, and I don't want to over-generalize on that, but do you have any concerns about all of the TSA regulations being disclosed, or if any -- that there'd be any impact on security issues if those are disclosed?

MR. RIVKIN: Thank you very much, Senator Brownback. I think the answer is very obvious. Of course they'll have an impact, if we're talking about regulations that describe the particular screening scenarios in terms of when they're triggered, as well as how they implement it.

They're obviously going to give notice to folks we do not want to give notice, and look, again to be fair, there is inherent constructive balance as in most issues dealt within a democracy.

And my problem -- of most of the critics, including my good colleague Mr. Aftergood, is that there is sort of reluctance to acknowledge that there is a cost to more disclosure.

The disclosure may be indeed necessary, but let's be honest about what the implications of the disclosure are. But in this case, again, the answer is very obvious. If people knew, for example what triggers secondary screening, or even know some routines of secondary screening, what do you think is going to happen there, going to -- try to avoid it, either triggering it at all or you know, secret things about their body that would not be detected by that particular search routine. I mean, it's just pretty obvious.

SEN. BROWNBACK: Mr. Berenson, do you have a thought on that, by chance?

MR. BERENSON: I do. I agree with Mr. Rivkin that where you're talking about sensitive security information from the Homeland Security Department, whether it relates to the security measures we take to protect air travel through the TSA, or it relates to procedures that we employ at chemical plants or nuclear plants to safeguard them against attack, nobody is worried about what Mr. Aftergood himself would do with that information.

What we're worried about is what people who would be determined to breach those defenses, to take down an airliner, to attack a chemical plant or a nuclear plant would do, and I think it's obvious that the more you know about how our defenses are constructed and our practices and procedures, the better chance you have if you mean us harm to succeed, and some so I don't find it terribly troubling that some of the procedures of the TSA for example, are not generally available.

I do think they should be available to the Congress. Congress has a legitimate legislative interest in knowing that and so pursuant to appropriate security procedures, I would hope they would be shared with the legislative branch, but there's one area where I would make a distinction between the people themselves and their elected representatives in Congress.

SEN. BROWNBACK: And it seems to me that you've got a healthy tension between a desire to disclose as much as possible to the public, which we should and we need to -- and we need to get as much out there, but also the need to protect the public.

And the desire here and that the key mechanism then is disclosure to Congress, and appropriate settings of that information so that you've got not just one entity of the government executive branch but also the legislative branch reviewing this and I'd like to see a lot more information put out there, but at the same time, when I'm getting on a plane I want to be safe in this and make sure that the procedures are as followed that we can be as safe as possible, given the asymmetrical war that we're in and the desire of a number of people in the world in different places to do us harm.

So it's a tough balance. I'm glad that we're discussing it, because I think there are places that we can see improvement in the disclosure, but at the same time I think we need to discuss it with the public from the standpoint of here's why some of this is not disclosed to be able to express that openly to the public.

MR. : And having served in the administration on 9/11, the period immediately thereafter, I would echo one of the observations that Mr. Elwood made which is, it is hard and especially hard now, at so many years removed from those events, to understand just what an extraordinary and difficult and unprecedented time that was.

There was an atmosphere of genuine crisis, and genuine threat and almost everything I observed during my time in government suggest that our public servants in both of the political branches of government were doing their level-best to deal with a very serious, very dangerous threat and I think most of the decisions that were made even on disclosure matters were made with the best of intentions and sincerely for the purpose of trying to protect the public.

The fact that we may focus here on a couple of celebrated instances, where with the benefit of hindsight we now know that there may have been an error made, shouldn't obscure from view the fact that I think the vast run of these decisions were well-intentioned and properly made.

MR. RIVKIN: Senator Brownback, may I quickly respond?

SEN. BROWNBACK: I'm out of time, but if the Chairman wants to --

(Cross talk)

SEN. FEINGOLD: Welcome to yield.

SEN. BROWNBACK: If you don't object.

SEN. : I don't object.

SEN. : -- to ask to quickly respond.

MR. RIVKIN: The suggestion was made earlier that there is really no such thing as secret law in the sense of regulations that are binding on the conduct of members of the public.

My point was that in fact there are such regulations, and I think that the initial suggestion has been refuted. Secrecy comes with a price, and among the prices are that we lose the ability to critique our security policies.

I think there's a lot of room to doubt the wisdom and efficacy of TSA procedures, and part of the reason for that is that so much of it is conducted in secret.


SEN. BROWNBACK: Thank you, Mr. Chairman. Well, I thank the panelists for being here and for the discussion and thought that you've put into the process. I think it's helpful.

I think it's helpful to us to be able to look at, and I'm hopeful that there's at least one point that they can get some agreement on that we -- there was probing in the first round, and I'd like to work with each of you on it.

I would just urge the majority caution on this. I appreciate the sentiment in which the disclosure is being pursued, what you're putting forward and I appreciate the tenacity with it.

This would -- note, let's be careful on this that we don't hurt the security of the people of the country, and I don't think anybody's intent is to do that, and let's also not hurt the process by which we hope administration comes up with good policy, which is a battle of ideas back and forth between you hope, highly competent, qualified, goodhearted people.

And you don't disclose things that are processed, date or time or place in which you report that, or you make everything go and be oral instead of in writing.

I mean, I just want and I would hope that whether administration is Republican or Democrat or independent or whatever the case might be, that they would have a good aggressive battle of ideas internally, and that those be shared, those be put in writing, and that those be sent back and forth, and if they allow to -- allow to come up with as much as they possibly can and that security not be harmed in this time of a big asymmetric war that we're going to be in a long time.

So I know your hearts are good on this. I just would urge us to take some real caution and make sure that we do this in an appropriate way that can be done in getting the good decisions and not harming public and public security for this country. Thank you for the hearing, Mr. Chairman.


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