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REINING IN THE IMPERIAL PRESIDENCY
Lessons and Recommendations Relating to
the Presidency of George W. BushHouse Committee on the Judiciary Majority Staff Report to
Chairman John Conyers, Jr.January 13, 2009
Foreword . . 9
Executive Summary . . 16
Preface: Deconstructing the Imperial Presidency . . . 24
The September 25, 2001, War Powers Memorandum . . . 27
Critique of John Yoo’s Flawed Theory of Presidential Supremacy . . 32
The Need for a Judiciary Committee Staff Report . . 40Section 1 – Politicization of the Department of Justice . . . 41
I. Politicization of the Prosecution Function. . . 43
A. Hiring and Firing of U.S. Attorneys and other Department Personnel . . 43
B. Selective Prosecution . . . 50
II. Politicization of the Civil Rights Division . . . 54
A. Factual Background . . . 54
B. Committee Actions . . . 56
III. Findings . . . . . . . . . 63
Politicization of the Prosecution Function . . . . 63
Politicization of the Civil Rights Division and Voting Rights Enforcement . . . 69Section 2 – Assault on Individual Liberty:
Detention, Enhanced Interrogation, Ghosting and Black Sites, Extraordinary
Rendition, Warrantless Domestic Surveillance, and National Security and Exigent Letters. . . 72
I. Detention . . 74
A. Factual Background . . . 74
November 2001 Decision to Try Detainees, Including U.S. Citizens, in Military Commissions . . . 75
December 2001 Decision to Hold Detainees at Guantanamo . . . 78
The Administration’s Public Defense of Its Guantanamo Policies . . . 78
B. The Bush Administration’s Detention Policies in the Courts . . . 81
The President’s Power to Detain an American Citizen Captured in Afghanistan Without Judicial Review (Hamdi) . . . 81
The President’s Power to Establish Military Commissions to Determine Validity of Detention (Hamdan) . . . 85
The President’s Power to Order Detention of Persons Without Access to Federal Courts – Rasul and Boumediene . . . 87
The President’s Power to Order the Military Detention of an American Citizen Seized by Civilian Authorities in the United States (Padilla) . . . 89
The President’s Power to Order Military Detention of Lawfully Admitted Alien Seized by Civilian Authorities in the United States (al-Marri) . . . . 103
C. Committee Action . . . 107
II. Interrogation . . . 110
A. Factual Background . . . 110
December 2001toFebruary 2002 – Determinations That the Protections of the Geneva Conventions, Including Common Article III, Do Not Apply to Guantanamo Detainees . . . 110
The August 1, 2002 Torture Memorandum . . . 112
August 1, 2002 – Waterboarding Approved for CIA Use . . . 114
October 2002 to March 2003 – Development of Techniques for Use at Guantanamo . . . . 115
John Yoo’s March 14, 2003, Torture Memorandum . . . 118
Use of Harsh Interrogation at Guantanamo . . . 120
Migration of Guantanamo Interrogation Techniques to Abu Ghraib . . . 121
Role of High-level Officials . . . 122
The Congress and the President Battle over Interrogation Techniques. . . 123
Destruction of CIA Waterboarding Videotapes . . 127
B. Committee Action . . . 128
Effectiveness of Enhanced Interrogation . . 128
Potential Criminal Liability for Destruction of Videotapes.. . 130
OLC Opinions Concerning Enhanced Interrogation and Potential Legal Liability Thereto . . . 131
III. Extraordinary Rendition, Ghosting and Black Sites . . . 137
A. Factual Background for Legal Memoranda . . . 137
B. Committee Action . . . 142
IV. Warrantless Surveillance . . . 146
A. The Genesis of the Bush Administration’s Warrantless Surveillance Program . . . 146
B. Internal Disagreements as to the Program’s Legality; Disclosure of the Program by The New York Times in December 2005 . . . 148
C. Bush Administration’s Public Statements Concerning Warrantless Surveillance . . . . 153
D. Concerns About Legality and Effectiveness of the President’s Warrantless Surveillance .. . . 156
E. Additional Scrutiny and Legislative Activity in the 110th Congress . . . 161
V. National Security Letters (NSLs) and Exigent Letters . . . . 166
A. The Increased use of NSLs Subsequent to 9/11 and the Enactment of the PATRIOT Act and PATRIOT Reauthorization Act . . . 166
B. March 2007 Justice Department Inspector General Report and Subsequent Committee Hearings . . . . 167
C. March 2008 Justice Department IG “Assessment of Corrective Action” Report and Subsequent Committee Hearings . . . 170
VI. Findings . . . 173
Detention . . . 173
Interrogation . . . . 175
Extraordinary Rendition, Ghosting and Black Sites . . . 176
NSLs and Exigent Letters . . 181Section 3 – Misuse of Executive Branch Authority . . . 185
I. Presidential Signing Statements . . . 185
A. Historical Background . . 186
B. The Bush Administration’s Use of Signing Statements . . . 187
The McCain Amendment on Treatment of Detainees . . . 188
USA PATRIOT Act . . . 188
Affirmative Action . . . 188
Whistleblower Protections . . . 189
C. Committee Actions . . . 189
II. Rulemaking Process . . . . 191
A. Factual Background . . . 191
B. Executive Control by the Bush Administration .. . . 193
Executive Order 13422: Expanding White House Political Control Over Rulemaking . . . 193
Greater Specificity and Market Analysis Requirements . . . 194
Heightened Scrutiny of Significant Guidance Documents . . . 194
Greater Emphasis on Cost-Benefit Analysis . . . 195
Greater Role for Political Appointees in the Rulemaking Process . . . 196
C. Efforts by OIRA to Control Rulemaking . . . 196
Direct Intervention by the Administration to Control Rulemaking . .. . 197
Using Directives and Other Means to Circumvent Formal Rulemaking. . . . 198
Midnight Rulemaking . . . 199
D. Lack of Transparency . . 201
III. Findings . . . 203
Abuse of Presidential Signing Statements . . . 2034
Rulemaking Process . . . 205Section 4 – Retribution Against Critics . .. . 208
I. The Leak of Valerie Plame Wilson’s Covert CIA Identity and Its Aftermath . . 208
A. The July 2003 Disclosure by the Press . . . 208
B. The Bush Administration’s Response to the Leak .. . . 209
C. The Libby Indictment and Trial: Evidence of a White House Leak . . 211
D. Mr. Libby’s Conviction, Sentence, and Presidential Grant of Clemency. . . 216
E. Committee Actions . . . 218
The Leak . . . . 218
The White House’s Response to the Leak . . . 219
The President’s Grant of Clemency . . . 221
II. Retaliation Against Other Administration Critics . . . 224
Military Officers – Including Former General Eric Shinseki . . . . 225
Former Treasury Secretary Paul O’Neill and Economic Advisor Lawrence Lindsey .. . . 225
Counter-terrorism Czar Richard Clarke . . . 226
Army Core of Engineers Chief Contracting Office Bunnatine Greenhouse. . . 227
III. Findings . . 228
The Leak of Valerie Plame Wilson’s Covert CIA Identity . . . 228Section 5 – Government in the Shadows:
Executive Privilege, Secrecy, and the Manipulation of Intelligence . . . 233
I. Executive Privilege . . . 234
A. Formal Assertions of Executive Privilege . . . 234
Pushing the Boundaries Early On . . . 234
FBI’s Valerie Plame Leak Investigation . . . 235
EPA Investigation . . . 236
Investigation Into the U.S. Attorney Firings by the House and Senate Judiciary Committees . . . 238
B. Withholding Documents or Testimony Without Formally Asserting Executive Privilege . . . 242
II. Improper Use of State Secrets and Other Authorities . . . . 245
A. Abuse of State Secrets . . . . 245
Extraordinary rendition . . . . 245
Warrantless Wiretapping Program . . . 246
Employee lawsuits . . . 247
B. Abuse of Other Authorities . .. 248
Classification . . . 2485
FOIA Requests . . 251
Presidential Records Act . . . . 252
Vice President’s Office . . . 253
III. Manipulation and Misuse of Intelligence . . . . 253
IV. Findings . .. . . 263
Expansion of Executive Privilege . . 263
State Secrets Privilege . . . 264
Abuse of Classification and Other Authorities . . . 265
Manipulation and Misuse of Intelligence . . . 266Section 6 – Policy Recommendations . . . 270
General . . 2701. The Congress and the Judiciary Committee should pursue document and witness
requests pending at the end of the 110th Congress, including subpoenas, and the
incoming Administration should cooperate with those requests. . . . . 2702. Congress should establish a Blue Ribbon Commission or similar panel to investigate the broad range of policies of the Bush Administration that were undertaken under claims of unreviewable war powers, including detention, enhanced interrogation, ghosting and black sites, extraordinary rendition, and warrantless domestic surveillance. .. . 271
3. The Attorney General should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance. . 271
Politicization of the Department of Justice . . . 2724. The incoming Administration should review and consider strengthening the policy limiting contacts concerning prosecution and enforcement matters. . . 272
5. The incoming Administration should continue the customary practice of replacing U.S. Attorneys at the outset of the Administration. . . . 273
6. Congress should expand Justice Department Inspector General jurisdiction. . . 273
7. The incoming Administration should improve the Executive Office of Immigration Review (EOIR) and the functioning of the immigration courts. . . 274
8. The Department of Justice should rescind the policy prohibiting career voting section employees from making recommendations as to whether the Department should object to proposed voting changes. . . . 274
9. The Department of Justice should revise the Federal Prosecution of Election Offenses Manual. . . . 2746
10. Congress should enact comprehensive election reform legislation. .. . 275
Assault on Individual Liberty: Detention, Enhanced Interrogation, Ghosting and Black Sites, Extraordinary Rendition, Warrantless Domestic Surveillance, and National Security and Exigent Letters . . . 27611. The Department of Justice should reform its Office of Legal Counsel. . . 276
12. The incoming Administration should close the U.S. prison at Guantanamo Bay. . . 277
13. The incoming Administration should require that all persons arrested in the United States be subject to civilian law enforcement procedures with requisite due process guarantees. . . . 278
14. The incoming Administration should end torture and abuse. . . 278
15. The incoming Administration should end the CIA program of secret detention and abusive interrogation. . . 279
16. The incoming Administration should end the Bush Administration’s practice of the extraordinary rendition of terror suspects. . . . . . 280
17. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should implement policies to ensure that there is no “reverse targeting” used under authorities created by the FISA Amendments Act of 2008. . . 281
18. The President, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Director of the National Security Agency should
implement policies to ensure that foreign intelligence surveillance is limited to
targeted collection. . . 28119. The incoming Administration should ensure full implementation of Inspector General recommendations concerning the FBI’s use of NSLs. . . 282
20. The incoming Administration should withdraw the proposed Justice Department rule on criminal intelligence system operating policies and carefully review and revise as needed the Attorney General’s guidelines for FBI operations. . 283
21. The President should nominate and bring into operation the Privacy and Civil Liberties Oversight Board. . . . 283
22. The President should renew efforts to implement U.S. obligations under human rights treaties. .. . . 284
23. The incoming Administration should review and consider modifications to Bureau of Prisons use of authority under Special Administrative Measures. .. . 284
Misuse of Executive Branch Authority . . . . 285
24. The President should end abuse of presidential signing statements. . . . 285
25. The incoming Administration should restore rulemaking from the White House to
traditional agency authority consistent with congressional intent and the public interest. . . 285726. The incoming Administration should make rulemaking more transparent, understandable, and informative, thereby permitting greater accountability to Congress and the public. . . . 285
27. The incoming Administration should rein in “Midnight” rulemaking, which implements the priorities of a lame-duck administration even though a new President has been elected. . 286
Other Incursions by the Executive Branch . . . . 287
28. The incoming Administration and Congress should restore the full protection of the attorney-client privilege. . . . 287
29. Congress should enact press shield legislation. . . 287
30. The incoming Administration should limit the ability of Executive Branch officials to prevent victims of terrorism from recovering for their losses. . . 288
31. Congress should pass legislation holding Administration-designated contractors in Iraq and elsewhere responsible for their criminal misconduct. . . 289
32. The Department of Justice should issue guidelines to require transparency and uniformity of corporate deferred and non-prosecution agreements. . . . 289
Retribution Against Critics . . . 290
33. Congress should consider legislation concerning the exercise of clemency involving government officials. . . . 290
34. Congress should enhance and strengthen protection for Executive-Branch whistleblowers. . . 291
Government in the Shadows: Executive Privilege, Secrecy, and the Manipulation of Intelligence . . . . 291
35. Congress should enact changes in statutes and rules to strengthen Congress’ contempt power. . . 291
36. The incoming Administration should establish procedures for asserting Executive Privilege. . . 292
37. The incoming Administration and Congress should prevent abusive assertion of the state secrets privilege. . . . . 293
38. The incoming Administration and Congress should improve the system for classification and declassification. . . 293
39. Congress should consider legislation requiring the President to publicly announce the declassification of classified materials. . . . 294
41. The President should rescind Bush White House memoranda that significantly restrict the use and disclosure of non-classified information. . . 295
42. The President should place the Office of FOIA Ombudsperson in the National Archives. . . . . 2968
43. The incoming Administration should restore the accessibility of presidential records. . . . . 296
44. Congress should modernize the Presidential Records Act. . . 296
45. The incoming Administration should clarify the applicability of rules of access to the Office of the Vice President. . . . 297
46. The incoming Administration should eliminate overly restrictive “Gang of 8″ briefings in favor of more effective mechanisms. . . 297
47. The incoming Administration mandate steps to avoid manipulation and misuse of intelligence. . . 298
Endnotes . . . 300
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I am Jon. You can read the full text HERE.
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