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

Interview

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

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman, I appreciate those kind words, sir, very much.

Mr. Berenson, you and I probably disagree on a great number of things, but I have to tell you that I was impressed by your testimony.

I found it very lucid, very disciplined, very thoughtful. The sort of thing that I would hope to find in OLC opinions and recently have not.

But if I accept your proposition, as I think most people do, that there is a necessity for secrecy in the various aspects of government operations, and that necessity for secrecy in turn provides benefits back to the public through public safety if it's being done correctly, I would suggest to you that when an administration chooses to exercise the privilege of secrecy that it is given, when it chooses to pull that mantle of secrecy over its actions, it undertakes at the same time a very high and solemn obligation to use that zone of secrecy in a proper way for two reasons.

First, it's just indecent not to and it runs contrary to government principles in our American democracy. But from a practical point of view, if you foul the nest, if you will, then you create the skepticism and the concern that Congress has now. And you create the risk that we will tighten down on these security issues.

And fundamentally, you put future administrations and the public safety that is the very purpose of secrecy to safeguard, in the future at risk as a result of having done it. It's kind of a complex version of crying wolf. And I'd like to hear your reactions to that analysis.

MR. BERENSON: Thank you, Senator. I think I can say that I'm in complete agreement with that analysis. Both of the reasons you identify for exercising the privilege to keep something secret I think are exactly correct. There are manifest benefits to open debate, discussion and criticism that you lose when something is secret. And, as with almost any authority, when you abuse it you undermine the rationale of having it in the first place and you threaten it in the future.

It is very difficult day-to-day operationally inside the government as all of this is happening in real time through the Department of Defense and the intelligence community and the White House to find a good way to police and to guard against abuse. There are inevitable self-interested tendencies that cause people to use this power when they have it.

And part of -- some of those have been alluded to other members of the panel, is a way to win a bureaucratic war sometimes by controlling information to insulate yourself from criticism to essentially to get your way. And you can convince yourself, delude yourself into think that you are making something secret in order to protect the larger national security interest.

Ultimately, it comes down to the judgment and good faith of the individuals who serve in the executive branch. I'm not sure there is much other alternative. And that's why another of this body's power is so vital, namely the power of confirmation.

SEN. WHITEHOUSE: Let me ask you a quick hard, admittedly hard question. To the extent that the opinions, classified opinions of OLC have been made public and you are familiar with them, do they meet the high standard?

MR. BERENSON: I think that this is another area where being at five years distance from my own government service gives me a little more freedom and a little more perspective. I do think that there is a strong argument that some of these memos that we have been discussing this morning should not have been classified and that they did not comport with the standards that we have been talking about.

Part of the reason for that I think is that they were constructed structurally in a way that I don't think they should ever have been or that any OLC opinion should ever be, namely divorcing the discussion of law from the fact to which it is applied. OLC should be asked concrete questions about particular policies and practices and render an opinion no broader than necessary to answer that specific question.

That fundamental flaw, that original sin, in the way these memos were constructed I think led to the creation of an opinion that probably shouldn't have been classified, but in the minds of the classifiers was, because it was part and parcel of other things that were going on around it simultaneously.

SEN. WHITEHOUSE: Let me ask Mr. Leonard a quick question because he's the person with the greatest expertise in the classification process I have ever had the occasion to come across. And I was interested on page six of this testimony where he indicated -- where he quoted Jack Goldsmith's observation that before Mr. Goldsmith arrived at OLC, not even NSA lawyers were allowed to see the Justice Department's legal analysis of what NSA was doing.

Now, that implies to me that the legal analysis supporting a classified program is more highly classified than the classified program itself because clearly the NSA knew what the heck was going on. They were doing it. So why on earth would NSA in any respect be prohibited from seeing legal analysis? In what world does it make more sense for the legal analysis supporting a classified program to be more highly classified than the program itself?

MR. LEONARD: That's an excellent observation, Senator. I mean, you know, I have a very simple question I ask whenever I encounter this type of situation is who are we trying to keep the information from? And when you answer that question "who," that will ultimately tell you then the "why," why is this being applied. As Mr. Berenson pointed out and as I have, it's often because of internal bureaucratic struggles.

SEN. WHITEHOUSE: Well, I won't -- will we have a second round, Mr. Chairman?

SEN. FEINGOLD: Yes.

SEN. WHITEHOUSE: Okay, good, thank you. I won't go into a great detail at this point, but I think as the panel knows, my concern is that the administration took advantage of the secrecy of OLC to violate, I think what Ms. Johnsen has well described as, the longstanding practice of the attorney general and Office of Legal Counsel across time and administrations in order to essentially cook the books in ways that would not survive peer review and therefore they wouldn't expose it to peer review. And as a result, the sweeping and -- at a minimum highly questionable legal theories were propounded in these opinions. But my time has expired.

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SEN. WHITEHOUSE: Thank you, Mr. Chairman.

Mr. Elwood, I confess I was a little disappointed by your testimony, and I'd like to challenge some of the things that you said in that, which I think are misleading perhaps. One is the suggestion on page three of your testimony that OLC lacks the ability to affect private parties directly.

If, as Professor Johnsen has just said, the purpose of the OLC opinion is to provide legal cover for executive activities that would otherwise be tortious or illegal or even criminal, but particularly if they will be tortious, by virtue of having received an opinion from OLC upon which the government actor can rely, they are no -- they are not protected, it would strikes me that it is a considerable ability to affect private parties directly. In fact you're taking away a right of action from the individual who is the victim of the action.

The second thing that concerns me is that immediately after that you say the executive branch adopts a policy that OLC has declared legally permissible, the policy be public unless it is classified and appropriate officials may be called upon to explain the policy including its basis in law.

Then you draw up this little parenthetical. Classified activities are of course, subject to review by the intelligence committees. I sit on the intelligence committee and we have had the most god-awful fights getting these opinions, the ones we still don't have. So I don't know how on earth you can say that classified activities are, of course, subject to review by the intelligence committees when we don't have them.

We have asked for years to get these things. There's an absolute stone wall being thrown up around this stuff. And it seems to me that it's just extremely misleading to kind of glibly pass off as if there were no problem here. But, of course, the intelligence committee have access to this stuff when you know perfectly well that we don't.

And that there's been a very, very determined effort to prevent us having access to them for, how long has it been before -- since before I have been a senator, but certainly the entire time I have been here. If you could respond to those two things because I've just -- (cross talk) --

MR. ELWOOD: Certainly whenever said that my testimony has been misleading, I have a very strong interest in responding very fully. The three points that I heard refers that it affects private parties directly because these were to provide legal cover for stuff that would be otherwise tortious. That is not the purpose for OLC opinions. I can only speak for what has occurred in the office since I have been there, which is October 2005.

But the purpose of OLC opinions is not to provide cover, even legal protection, for actors. Its purpose is to help the president effect his duty to take care that the laws be faithfully executed. So before he undertakes action, he routinely asks us for legal advice on matters that might be subject to dispute, that's the preface of OLC opinion. And the --

SEN. WHITEHOUSE: That's the theory, but there is very little that prevents the practice from straying into the area of providing legal cover.

MR. ELWOOD: That -- I will tell you that since I have joined OLC and since October 2005, that has been the purpose of the opinions that I have seen. I think that people do have -- should have the ability to rely on them. However that does not eliminate the fact --

SEN. WHITEHOUSE: Even if the purpose -- let me just interrupt you a second. Even if the purpose is well intentioned, it would nevertheless have the affect of providing that legal cover and of taking away a claim because of the reliance that the actor now can make on the OLC opinion so that he would not have the requisite C&T (ph) to qualify for the tort or for the level of knowledge required for culpability under the criminal statute.

MR. ELWOOD: I think that -- I don't think it would have -- I don't think -- it depend on what the tort is, but I don't think it would extinguish the cause of action. It might provide a factual defense if there's a C&T requirement

SEN. WHITEHOUSE: A defense.

MR. ELWOOD: But again that requires a C&T requirement and then there is still the --

SEN. WHITEHOUSE: So you will concede that where somebody has been the victim of an act and his defense takes away their claim, they have been affected as a result of OLC's action?

MR. ELWOOD: But I wouldn't accept the premise that it would take away their claim. I --

SEN. WHITEHOUSE: It would be a complete defense to their claim.

MR. ELWOOD: No, I don't think it would be. It may be a factual defense depending on what the tort is. And again it would depend on what the tort is. There are a lot of torts on the books, and there are a lot of creative lawyers. And so I wouldn't say that it would provide a protection against torts.

SEN. WHITEHOUSE: Well, let's go on to your reaction to my concern that -- to your statement that classified activities are, of course, subject to review by the intelligence committee.

MR. ELWOOD: One of the fundamental points that I want to make here -- I mean, you may not agree with it, but one of the points, that if I have not made this point, I have not done my job, is that you don't need to have OLC opinions to know what the -- our legal basis is for a policy.

OLC opinions are a -- when they are written, they are a confidential, legal, deliberative document that gives our advice to one party, the client. And when that policy has been adopted, then whatever committee has jurisdiction over it, whether it be an intelligence committee, this committee or agreement committee, whatever, has the perfect right to say, what is your legal basis for doing this.

And they can keep asking the questions to their satisfaction until they feel like they know what our legal basis is. My understanding is that you would be given legal briefings on the basis in law for our interrogation programs and for the surveillance programs. I wasn't involved in that, so I can't tell you what it is.

SEN. WHITEHOUSE: Well, ultimately what we were given was a big stack of documents about that high on the terrorist surveillance program and then one or maybe two of -- a great number, apparently, of legal opinions and letters related to the interrogation program.

MR. ELWOOD: But again, those are the actual opinions. You can have the witnesses for -- and talk to them until you are satisfied with the understanding of the basis in law. And that's not the only thing.

We also write letters and take you first --

SEN. WHITEHOUSE: Isn't it a little bit different when the opinion itself isn't just one little blip of legal advice to a particular agency, but actually becomes part of the ongoing precedent of OLC and becomes something that future administrations will rely on? It's like having a court that publish its decisions and creates precedent, but won't tell lawyers practicing before them what the precedent is.

MR. ELWOOD: Well, when the document serve in that sort of presidential fashion, that's the reason why OLC publishes the opinions that it has. It does. We published 82 since January of '05, we published 13 just in 2008 including one live this morning.

And so, no, we are very attuned to those sort of presidential concerns. When it's a classified document, it puts an additional wrinkle on things, but we are committed and I -- you know, I mean this very sincerely to getting Congress that information it needs to know what we're doing.

SEN. WHITEHOUSE: My time has expired. Thank you chairman.

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SEN. WHITEHOUSE: Thank you, Mr. Chairman. One of the reasons that I'm concerned about the transparency issue has to do with the very institutional integrity of one of the great institutions of our government.

And the concern, I think, has become reasonably widespread that in the sort of hothouse environment of a classified program, with nobody looking in at what's going on, the OLC became kind of the, you know, little shop of legal horrors that would deliver what was requested and when you have the actual opinion out, you can actually look at, you know, kind of the merits of the legal analysis, whether it stands up.

I mean, I disagree with Mr. Berenson on a million topics as I said, but his testimony here was incredibly lucid and clear and you see something like that, and you think, oh, that's pretty good scholarship.

Then you see something like this, it's been -- I won't go through it, it's been in the testimony already. That's a pretty alarming proposition to an executive order.

It's just, you know, ignorable willy-nilly with no reporting and when I -- it became apparent that I was going to release this, that I'd had it declassified, I was told that it stands on precedent, and then they told me what the precedent wants.

The precedent was a Griffin Bell opinion that said that the president can legally revoke or supersede an executive order at will. Well, of course the president can legally supersede or revoke an executive order at will. There's a process for doing that.

That's a completely different proposition than saying that the executive can use the executive orders of this country as a screen behind which they can operate programs directly contrary to the text of the executive order.

And so there's one example. The other one that I declassified was the proposition that the president has -- exercising his constitutional authority under Article Two can determine whether an action is a lawful exercise of the president's authority under Article Two.

I mean, aside from the pulling yourself by your own bootstraps nature of that argument, it stands on -- an earlier opinion that says that the executive branch has an independent constitutional obligation to interpret and apply the constitution.

Well, of course they do, in the exercise of their duties, but among the things that that opinion goes on to say is that it requires deference to legislative judgments.

Once you hang it off Article Two, which the executive under this unitary executive theory is immune from either judicial or legislative intrusion, you're now saying a very different thing and when you actually see the opinion and see how the extra step has been taken, you know, you know it's a little bit -- something else is going on other than just plain legal interpretation.

The last one, and this is my justice-bound, the Department of Justice is bound by the president's legal determinations. I mean, I thought we cleared that when President Nixon told an interviewer that "If the president does it, it's not illegal."

That stands on the proposition that the president has the constitutional authority to supervise and control the activity of subordinate officials within the executive branch, but the idea that the Attorney General of the United States and the Department of Justice don't tell the president what the law is and count on it, but rather -- it goes the other way, opens up worlds for enormous mischief.

I think it's in a -- it's a sleeping proposition, and the three of them as precedent, open enormous avenues for further mischief if you're going to clam out and out and out further on your own president.

So let me ask you, Mr. Rivkin, these three theories that we've put up, you say that there's a cost to revealing these things. What is the cost in security revealing any one of those three propositions or all three of them together?

MR. RIVKIN: Well, Senator Whitehouse, actually those three propositions, I don't see any particular cost in revealing them. It doesn't of course mean that there may not be other propositions which would be costly to reveal, but let me just say a couple of things.

SEN. WHITEHOUSE: So at least as far as these three are concerned, you'll concede that there's no cost?

MR. RIVKIN: I do, and let me also say I think the language is rather stark, as most of us lawyers, you know, hate to look at one sentence. I certainly wouldn't have -- particularly the last one --

SEN. WHITEHOUSE: I'd be delighted to show you the whole rest of the opinion, but I'm not allowed to, it's classified, I had to slave to get these declassified.

MR. RIVKIN: No, no, I --

SEN. WHITEHOUSE: They made me take my -- they kept my notes. They then delivered them to the intelligence committee, where I could only read them in the secure confines of the intelligence committee and then I had to again in a classified fashion, send this language back to be declassified.

I'm doing it again with a piece of language that relates to the question of exclusivity. There is a sentence that describes whether or not the FISA statute exclusivity provision is really exclusive enough for the OLC and that is, you know, we're still going through this process.

MR. RIVKIN: I understand, but if we're going to be able to take --

SEN. WHITEHOUSE: I'd like to be able to tell you more about this. Don't -- but this is a very unfortunate language, but if I can take just 15 seconds with regard to the first proposition about the presidents not being bound to constitution by executive order.

I would say, mindful of your earlier remarks, in most circumstances, it would be a matter of good government for the executive who bothered to issue an executive order giving some kind of notice to the public and the world at large, as to how he or she would discharge their duties to go for the same exercise.

But surely we can all agree that there maybe some very unique circumstances, not promiscuously or frequently triggered, where an executive order that if withdrawn publicly, would give some notice to people we don't want to give notice.

Very rarely invoked, and I certainly wouldn't define any particular --

MR. : Yeah.

SEN. WHITEHOUSE: -- frequency which has been applied, but as a constitutional matter, of course the president is not bound by executive order and of course the president can violate the executive order, and of course the president can retract the executive order sotto voce.

I mean, that's constitutionally unexceptional. As a matter of confidence in government and good policy, we're going to all agree it should not be done, except in the rarest of circumstance.

MR. ELWOOD: May I respond, since this is directed at Department of Justice product?

SEN. WHITEHOUSE: Sure.

MR. ELWOOD: The opinion -- you should also have been provided with an opinion that has been public for 20 years and was put up by our office and was provided to Congress in 1987 which reads as follows, "EO 12333, like all executive orders is a set of instructions from the president to his subordinates in the executive branch. Activities authorized by the president cannot violate an executive order in any legally meaningful sense, because its authorization creates a valid modification of or exception to the executive order."

So this is not secret law, this is as public as it can get. It's turned over to Congress and put in there --

SEN. WHITEHOUSE: Well, there's an important piece missing from that, which is not telling anybody and running a program that is completely different from the executive order without ever needing to go back and clean it up.

MR. : This opinion actually involved a secret modification. It involved Iran-Contra, so it was also classified.

SEN. WHITEHOUSE: So your --

MR. : If we go back to --

SEN. WHITEHOUSE: Your opinion is that in saying that an executive order cannot limit a president, there is no constitutional requirement for a president to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.

Rather than violate an executive order, the president has instead modified or waived it, and that there is no requirement for the president ever to go back and clean up, that the --

MR. ELWOOD: I think that Mr. Rivkin got it exactly right, which is that in the ordinary course, yes. The whole reason we have executive order is that the president doesn't need to have -- doesn't have to make those in public. But --

(Cross talk)

SEN. WHITEHOUSE: Well -- I've gone over my time, so let me just close by making the point that I'm trying to make with all this, which is that if you can't see the opinion itself, you can't make these determinations, and it looks very much to me, although we can debate the proposition, as if these are extremely broad, extremely stark, and extremely constitutionally challenging opinions.

It is different for us to read this, than to see a carefully, finally crafted point such as Rivkin -- Mister -- Professor Rivkin suggested and that's why I think it's important to see these opinions.

And that's the reason I went through these and I apologize for going over my time, Mr. Chairman.

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