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Restoring the Rule of Law Hearing Committee on The S. HRG. 110–584 RESTORING THE RULE OF LAW HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION SEPTEMBER 16, 2008 Serial No. J–110–119 Printed for the use of the Committee on the Judiciary ( VerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00001 Fmt 6011 Sfmt 6011 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC RESTORING THE RULE OF LAW VerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00002 Fmt 6019 Sfmt 6019 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC S. HRG. 110–584 RESTORING THE RULE OF LAW HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION SEPTEMBER 16, 2008 Serial No. J–110–119 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 45–240 PDF WASHINGTON : 2008 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 Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00003 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director STEPHANIE A. MIDDLETON, Republican Staff Director NICHOLAS A. ROSSI, Republican Chief Counsel SUBCOMMITTEE ON THE CONSTITUTION RUSSELL D. FEINGOLD, Wisconsin, Chairman EDWARD M. KENNEDY, Massachusetts SAM BROWNBACK, Kansas DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas ROBERT F. SCHIFF, Chief Counsel LAUREN B. PETRON, Republican Chief Counsel (II) VerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 prepared statement .......................................................................................... 101 Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 3 WITNESSES Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, D.C. .............. 8 Dellinger, Walter, Partner, O’Melveny & Myers, LLP, Visiting Professor of Law, Harvard Law School, former Assistant Attorney General, Office of Legal Counsel (1993–1996), former Acting Solicitor General (1996–1997), Chapel Hill, North Carolina ................................................................................ 29 Edwards, Mickey, Board of Directors, The Constitution Project; Lecturer, Woodrow Wilson School of Public and International Affairs, Princeton Uni- versity; former Member of Congress 1977–1993; and former Chairman, House Republican Policy Committee, Washington, D.C. .................................. 10 Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School, New Haven, Connecticut .................. 14 Massimino, Elisa, Chief Executive Officer and Executive Director, Human Rights First, Washington, D.C. ........................................................................... 33 Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, D.C. .............. 35 Podesta, John D., President and Chief Executive Officer, Center for American Progress Action Fund, Washington, D.C. ........................................................... 39 Rotunda, Kyndra, Professor of Law, Chapman University School of Law, Orange, California ................................................................................................ 31 Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for Justice, New York University School of Law, New York, New York ............................. 5 Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, D.C. ........................................................................................................................ 37 Turner, Robert, Professor, General Faculty, Associate Director, Center for National Security Law, University of Virginia School of Law, Charlottes- ville, Virginia ........................................................................................................ 12 QUESTIONS AND ANSWERS Response of Charles J. Cooper to questions submitted by Senator Whitehouse 51 Responses of Mickey Edwards to questions submitted by Senator Whitehouse 52 Responses of Elisa Massimino to questions submitted by Senator Whitehouse 54 Responses of John D. Podesta to questions submitted by Senator Whitehouse . 55 Responses of Kyndra Rotunda to questions submitted by Senator Whitehouse 57 Responses of Frederick A.O. Schwarz to questions submitted by Senator Whitehouse ........................................................................................................... 58 Responses of Suzanne E. Spaulding to questions submitted by Senator Whitehouse ........................................................................................................... 65 Responses of Robert Turner to questions submitted by Senator Whitehouse .... 68 SUBMISSIONS FOR THE RECORD Cooper, Charles J., Partner, Cooper & Kirk, PLLC, Washington, D.C., state- ment ...................................................................................................................... 85 Edwards, Mickey, Board of Directors, The Constitution Project; Lecturer, Woodrow Wilson School of Public and International Affairs, Princeton Uni- versity; former Member of Congress 1977–1993; and former Chairman, House Republican Policy Committee, Washington, D.C., statement ............... 96 (III) VerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC IV Page Koh, Harold Hongju, Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School, New Haven, Connecticut, state- ment ...................................................................................................................... 103 Massimino, Elisa, Chief Executive Officer and Executive Director, Human Rights First, Washington, D.C., statement and attachments .......................... 116 Philbin, Patrick F., Partner, Kirkland & Ellis LLP, Washington, D.C., state- ment ...................................................................................................................... 145 Podesta, John D., President and Chief Executive Officer, Center for American Progress Action Fund, Washington, D.C., statement and attachment ............ 155 Professors of law and former attorneys in the Department of Justice, Office of Legal Counsel, joint statement and attachment ........................................... 178 Rotunda, Kyndra, Professor of Law, Chapman University School of Law, Orange, California, statement ............................................................................. 197 Schwarz, Frederick A.O., Jr., Senior Counsel, Brennan Center for Justice, New York University School of Law, New York, New York, statement .......... 204 Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, D.C., statement .................................................................................................... 235 Turner, Robert, Professor, General Faculty, Associate Director, Center for National Security Law, University of Virginia School of Law, Charlottes- ville, Virginia, statement ..................................................................................... 246 VerDate Aug 31 2005 16:38 Nov 12, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\45240.TXT SJUD1 PsN: CMORC RESTORING THE RULE OF LAW TUESDAY, SEPTEMBER 16, 2008 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Subcommittee met, pursuant to notice, at 10:20 a.m., in room SD-562, Dirksen Senate Office Building, Hon. Russell D. Feingold, Chairman of the Subcommittee, presiding. Present: Senators Feingold, Cardin, Whitehouse, and Brownback. OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Chairman FEINGOLD. I will call the Committee to order. Wel- come, everybody, to this hearing of the Constitution Subcommittee entitled ‘‘Restoring the Rule of Law.’’ We have two very distinguished panels of witnesses scheduled, and I want to thank all of you for being here. Tomorrow, September 17th, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact as we approach that anniversary that for the past 71⁄2 years, and especially since 9/11, the Bush administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country. By now, the public can be excused for being almost numb
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