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Reining in the Imperial Presidency

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Reining in the Imperial Presidency REINING IN THE IMPERIAL PRESIDENCY VerDate Nov 24 2008 23:13 Apr 07, 2009 Jkt 048026 PO 00000 Frm 00001 Fmt 6019 Sfmt 6019 E:\HR\OC\G026A.XXX G026A hsrobinson on PROD1PC76 with HEARING with PROD1PC76 on hsrobinson VerDate Nov 24 2008 23:13 Apr 07, 2009 Jkt 048026 PO 00000 Frm 00002 Fmt 6019 Sfmt 6019 E:\HR\OC\G026A.XXX G026A hsrobinson on PROD1PC76 with HEARING Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush C O N T E N T S Page Foreword ................................................................................................................ 1 Executive Summary ............................................................................................. 9 Preface: Deconstructing the Imperial Presidency ...................................... 17 I. The September 25, 2001 War Powers Memorandum .................................... 20 II. Critique of John Yoo’s Flawed Theory of Presidential Supremacy .............. 25 III. The Need for a Judiciary Committee Staff Report ........................................ 32 Section 1—Politicization of the Department of Justice ............................. 33 I. Politicization of the Prosecution Function ...................................................... 35 A. Hiring and Firing of U.S. Attorneys and other Department Personnel ......................................................................................... 35 B. Selective Prosecution ............................................................................ 42 II. Politicization of the Civil Rights Division ...................................................... 46 A. Factual Background ............................................................................. 46 B. Committee Actions ............................................................................... 49 III. Findings ............................................................................................................. 57 Politicization of the Prosecution Function .............................................. 57 Politicization of the Civil Rights Division and Voting Rights Enforcement .................................................................................... 62 Section 2—Assault on Individual Liberty: Detention, Enhanced Inter- rogation, Ghosting and Black Sites, Extraordinary Rendition, Warrantless Domestic Surveillance, and National Security and Exi- gent Letters ........................................................................................................ 65 I. Detention ........................................................................................................... 67 A. Factual Background ............................................................................. 67 November 2001 Decision to Try Detainees, Including U.S. Citi- zens, in Military Commissions ............................................... 68 December 2001 Decision to Hold Detainees at Guantanamo ..... 71 The Administration’s Public Defense of Its Guantanamo Poli- cies ............................................................................................ 71 B. The Bush Administration’s Detention Policies in the Courts ........... 74 The President’s Power to Detain an American Citizen Cap- tured in Afghanistan Without Judicial Review (Hamdi) ..... 74 The President’s Power to Establish Military Commissions to Determine Validity of Detention (Hamdan) .......................... 78 The President’s Power to Order Detention of Persons Without Access to Federal Courts—Rasul and Boumediene .............. 80 The President’s Power to Order the Military Detention of an American Citizen Seized by Civilian Authorities in the United States (Padilla) ........................................................... 82 The President’s Power to Order Military Detention of Lawfully Admitted Alien Seized by Civilian Authorities in the United States (al-Marri) ......................................................... 94 C. Committee Action ................................................................................. 98 II. Interrogation ..................................................................................................... 100 A. Factual Background ............................................................................. 100 December 2001 to February 2002—Determinations That the Protections of the Geneva Conventions, Including Common Article III, Do Not Apply to Guantanamo Detainees ........... 100 The August 1, 2002 Torture Memorandum .................................. 102 August 1, 2002—Waterboarding Approved for CIA Use ............. 104 (III) VerDate Nov 24 2008 23:13 Apr 07, 2009 Jkt 048026 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 E:\HR\OC\G026A.XXX G026A hsrobinson on PROD1PC76 with HEARING IV Page Section 2—Assault on Individual Liberty—Continued October 2002 to March 2003—Development of Techniques for Use at Guantanamo ................................................................ 105 John Yoo’s March 14, 2003 Torture Memorandum ..................... 107 Use of Harsh Interrogation at Guantanamo ................................ 109 Migration of Guantanamo Interrogation Techniques to Abu Ghraib ...................................................................................... 111 Role of High-level Officials ............................................................ 112 The Congress and the President Battle over Interrogation Techniques ............................................................................... 112 Destruction of CIA Waterboarding Videotapes ............................ 116 B. Committee Action ................................................................................. 117 Effectiveness of Enhanced Interrogation ...................................... 117 Potential Criminal Liability for Destruction of Videotapes ........ 118 OLC Opinions Concerning Enhanced Interrogation and Poten- tial Legal Liability Thereto .................................................... 119 III. Extraordinary Rendition, Ghosting and Black Sites ..................................... 125 A. Factual Background for Legal Memoranda ........................................ 125 B. Committee Action ................................................................................. 129 IV. Warrantless Surveillance ................................................................................. 132 A. The Genesis of the Bush Administration’s Warrantless Surveil- lance Program ................................................................................. 132 B. Internal Disagreements as to the Program’s Legality; Disclosure of the Program by The New York Times in December 2005 ................................................................................................. 135 C. Bush Administration’s Public Statements Concerning Warrantless Surveillance ..................................................................................... 140 D. Concerns About Legality and Effectiveness of the President’s Warrantless Surveillance ............................................................... 142 E. Additional Scrutiny and Legislative Activity in the 110th Congress .......................................................................................... 146 V. National Security Letters (NSLs) and Exigent Letters ................................. 151 A. The Increased use of NSLs Subsequent to 9/11 and the Enactment of the PATRIOT Act and PATRIOT Reauthoriza- tion Act ............................................................................................ 151 B. March 2007 Justice Department Inspector General Report and Subsequent Committee Hearings .......................................... 152 C. March 2008 Justice Department IG ‘‘Assessment of Corrective Action’’ Report and Subsequent Committee Hearings ................. 156 VI. Findings ............................................................................................................. 158 Detention .................................................................................................... 158 Interrogation .............................................................................................. 159 Extraordinary Rendition, Ghosting and Black Sites .............................. 161 FISA/Warrantless Surveillance ................................................................ 162 NSLs and Exigent Letters ........................................................................ 165 Section 3—Misuse of Executive Branch Authority ...................................... 167 I. Presidential Signing Statements ..................................................................... 168 A. Historical Background .......................................................................... 168 B. The Bush Administration’s Use of Signing Statements .................... 169 The McCain Amendment on Treatment of Detainees ................. 170 USA PATRIOT Act ......................................................................... 170 Affirmative Action .......................................................................... 170 Whistleblower Protections ............................................................. 171 C. Committee Actions ............................................................................... 171 II. Rulemaking Process ......................................................................................... 173 A. Factual Background ............................................................................
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