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The Use of Presidential Signing Statements Hearing S. HRG. 109–1053 THE USE OF PRESIDENTIAL SIGNING STATEMENTS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION JUNE 27, 2006 Serial No. J–109–92 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 43–109 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma MICHAEL O’NEILL, Chief Counsel and Staff Director BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4 Durbin, Richard J., a U.S. Senator from the State of Illinois .............................. 5 Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 18 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 statement .......................................................................................................... 222 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 WITNESSES Boardman, Michelle E., Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C. .................................. 6 Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C. ................................. 24 Ogletree, Charles J., Jr., Professor, Harvard Law School, Cambridge, Massa- chusetts ................................................................................................................. 20 Rosenkranz, Nicholas Quinn, Associate Professor of Law, Georgetown Univer- sity Law Center, Washington, D.C. .................................................................... 27 Yoo, Christopher S., Professor, Vanderbilt University Law School, Nashville, Tennessee .............................................................................................................. 22 QUESTIONS AND ANSWERS Questions submitted by Senators Kennedy and Feinstein to Charles Ogletree (Note: Reponses to questions were not received as of the time of printing, April 16, 2009 ....................................................................................................... 39 Responses of Michelle Boardman to questions submitted by Senators Specter, Leahy, Kennedy, Feinstein and Schumer .......................................................... 41 Responses of Bruce Fein to questions submitted by Senator Kennedy ............... 71 Responses of Nicholas Rosenkranz to questions submitted by Senators Fein- stein and Kennedy ............................................................................................... 74 Responses of Christopher Yoo to questions submitted by Senator Feinsten ...... 85 SUBMISSIONS FOR THE RECORD American Bar Association, News Release, statement .......................................... 95 Boardman, Michelle E., Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C., statement ............... 98 Boston Globe, Boston, Massachusetts: April 30, 2006, article ....................................................................................... 109 May 3, 2006, article .......................................................................................... 119 Calabresi, Steven G., Professor of Law, Northwestern University School of Law, Yale University, statement and attachment ............................................ 122 The Constitution Project, Washington, D.C., statement ...................................... 200 Department of Justice, Washington, D.C., Memorandum for Bernard N. Nuss- baum ...................................................................................................................... 204 Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C., statement .............. 215 Ogletree, Charles J., Jr., Professor, Harvard Law School, Cambridge, Massa- chusetts, statement .............................................................................................. 227 Rosenkranz, Nicholas Quinn, Associate Professor of Law, Georgetown Univer- sity Law Center, Washington, D.C., statement ................................................. 234 Yoo, Christopher S., Professor, Vanderbilt University Law School, Nashville, Tennessee, statement ........................................................................................... 247 (III) VerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC VerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC THE USE OF PRESIDENTIAL SIGNING STATEMENTS TUESDAY, JUNE 27, 2006 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 10:02 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Cornyn, Leahy, Kennedy, Feinstein, Feingold, and Durbin. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Good morning, ladies and gentlemen. The Judiciary Committee will now proceed with our hearing on presi- dential signing statements. The issue has come into sharp focus as a result of the extensive use by President Bush of signing statements. There have been many signing statements issued by Presidents in the past, and there are good purposes which are not subject to challenge; for ex- ample, if the signing statement is one which contains instructions to the executive branch as to how to carry out the legislation. But there is a sense that the President has taken the signing state- ments far beyond the customary purview as, for example, with the heated controversy on the issue of interrogation of prisoners and the alleged use of torture. When the Senate passed 89–9 a prohibition on that kind of inter- rogation practice, and after very extensive negotiations with the White House on the so-called McCain amendment, the President issued a signing statement which appeared to undercut what had been negotiated. In the PATRIOT Act, which was a measure which came out of this Committee, very extensively negotiated, unanimous on the Committee and the Senate bill, and without any dissent on the floor, went through on the unanimous consent calendar—rather un- usual. We did have some points of controversy when it got to the conference with the House of Representatives. And the administra- tion had every opportunity to weigh on in the provisions of the bill, but when the President signed it, he put a notation in that he could withhold information. We had put into the bill oversight pro- visions intended to make sure that law enforcement did not abuse the special terrorism-related powers to search homes and secretly seize paper. It also required the Department of Justice to keep a (1) VerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC 2 closer track of how often the FBI used the new powers and in what types of situations. The President then in his signing statement added an addendum that that disclosure would not be made if, in his judgment, it would ‘‘impair foreign relations, national security, the deliberative process of the Executive, or the performance of the Executive’s constitu- tional duties.’’ Now, if the President had intended to put that limitation into law, that is something I believe should have been submitted to the Congress. We should have weighed it. We should have evaluated it, and, if we under the exercise of our legislative powers granted in the Constitution, thought it appropriate, we would have put it in. But there is a real issue here as to whether the President may, in effect, cherrypick the provisions he likes and exclude the ones he does not like and add addenda as to what he may prefer. There is no doubt that the President’s constitutional power under Article II cannot be limited by statute. But as a matter of comity and negotiation, these are things which we would all be better served if they were brought to the attention of the legislative branch before the legislation is finished. Then, as we all know, the President has the option under the Constitution to veto or not. And the Framers, in leaving with the Congress the authority to legis- late, provided for an override of the veto, again, as we all know. And in the decision of the Supreme Court of the United States in the Chadha case, the Court said, ‘‘It emerges
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