S. HRG. 109–524 AN EXAMINATION OF THE CALL TO CENSURE THE PRESIDENT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION MARCH 31, 2006 Serial No. J–109–66 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 28–341 PDF WASHINGTON : 2006 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) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\28341.TXT SJUD4 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 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\28341.TXT SJUD4 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 ............................... 13 prepared statement .......................................................................................... 73 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 6 prepared statement .......................................................................................... 88 Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina ......... 12 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 8 prepared statement .......................................................................................... 93 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4 prepared statement .......................................................................................... 96 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 10 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 2 WITNESSES Casey, Lee A., Baker and Hostetler, Washington, D.C. ....................................... 19 Dean, John W., III, former White House Counsel, Beverly Hills, California ..... 21 Fein, Bruce, Fein and Fein, Washington, D.C. ..................................................... 17 Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois ........................ 22 Turner, Robert F., Associate Director, Center for National Security Law, University of Virginia, Charlottesville, Virginia ............................................... 15 SUBMISSIONS FOR THE RECORD Boston Herald, March 15, 2006, Boston, Massachusetts, editorial ..................... 55 Calabresi, Steven G., George C. Dix Professor of Constitutional Law, North- western University, Chicago, Illinois, prepared statement .............................. 56 Casey, Lee A., Baker and Hostetler, Washington, D.C., prepared statement .... 62 Chicago Tribune, March 20, 2006, Chicago, Illinois, editorial ............................. 72 Dean, John W., III, former White House Counsel, Beverly Hills, California, prepared statement .............................................................................................. 74 Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement .................. 82 Fulton County Daily Report, October 13, 1998, Atlanta, Georgia, editorial ....... 90 New York Times, March 17, 2006, New York, New York, editorial .................... 98 San Diego Union-Tribune, March 16, 2006, San Diego, California, editorial ..... 99 Schmidt, John, Mayer, Brown Rowe and Maw, Chicago, Illinois, prepared statement and attachment .................................................................................. 100 Sunstein, Cass R., University of Chicago Law School, Chicago, Illinois, letter . 104 Turner, Robert F., Associate Director, Center for National Security Law, University of Virginia, Charlottesville, Virginia, prepared statement ............ 107 University of Richmond Law Review Association, March 1999, Richmond, Virginia, essay ...................................................................................................... 123 (III) VerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC VerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC AN EXAMINATION OF THE CALL TO CENSURE THE PRESIDENT FRIDAY, MARCH 31, 2006 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 9:32 a.m., in room SH–216, Hart Senate Office Building, Hon. Arlen Specter, Chair- man of the Committee, presiding. Present: Senators Specter, Hatch, Sessions, Graham, Cornyn, Leahy, Kohl, and Feingold. Chairman SPECTER. Good morning, ladies and gentlemen. It is 9:30. We will proceed with Senator Feingold’s resolution to censure the President. First, let me wish happy birthday to Senator Leahy. Senator LEAHY. Thank you very much, Mr. Chairman. At a little after six this morning, Marcelle and I were down at the Tidal Basin taking pictures, walking around. But I wanted to get back especially because a classmate of mine from Georgetown, Mr. Dean, is here. But it was beautiful down there. A lot of people asked for you. Chairman SPECTER. Excuse me, but why are you changing the subject from your birthday? Senator LEAHY. Because 66 is older. But it was gorgeous down there. I realize you want to get to the hearing, but I talked to all of the pages yesterday, those wonderful young men and women who serve us all on the Senate floor, and I urged them all to go down along the Tidal Basin because this is something they will re- member the rest of their lives. With that, Mr. Chairman, I will hush and let you run your hear- ing. Chairman SPECTER. Well, Senator Leahy, we do wish you a happy birthday. You have made the disclosure voluntarily that you are 66, and you have a lot to show for it. You are in your 32nd year in the U.S. Senate. Before that, you had an important job. You were district attorney of Burlington, Vermont. Pat and I have known each other since D.A. days back in the late 1960s. Senator LEAHY. We have, indeed. Chairman SPECTER. You have had a very distinguished record here, and it has been a very satisfying experience to work with you as Ranking for the past 14 months and I think we have a fair amount to show for that, too. (1) VerDate 0ct 09 2002 14:36 Aug 16, 2006 Jkt 028341 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28341.TXT SJUD4 PsN: CMORC 2 Senator LEAHY. Thank you. You are a dear friend, Mr. Chair- man, and I appreciate it. Thank you. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. This is a very important hearing for several reasons. First of all, it will examine in some depth—in fact, in sub- stantial depth, the scope of the President’s wartime power under Article II of the Constitution. Second, it will examine the inter- relationship of Congressional power under Article I, and also the courts’ power under Article III, the interrelationship and the fa- mous opinion by Justice Jackson in the steel seizure case about the strength of Presidential authority when backed up by the Congress and the weakness of Presidential authority when not backed by the Congress. Although the President has extensive authority under Article I, the Congress has extensive authority in the premises under Article II. The point of the tradition of judicial review before the issuance of warrants for surveillance or search and seizure comes into play in this matter. On the merits, I have already expressed myself on the floor of the United States Senate. Some would say that the resolution by Senator Feingold to censure the President is frivolous. I am not prepared to say that, but I do think that there is no merit in it, but it provides a forum for the discussion of issues which really ought to be considered in greater depth than they have been. This is the fourth hearing that this Committee has had on this issue in March. That is a lot of hearings by the Judiciary Com- mittee when we have to wrestle with confirmations and immigra- tion. As we speak, immigration is on the floor, although not much will happen today because—well, we won’t go into that. We had the Attorney General, we had a panel of experts, we had former judges of the Foreign Intelligence Surveillance Court in a rather remarkable hearing, in my opinion. It wasn’t easy for them to come forward and speak on this subject, but they did so out of a deep sense of patriotism and out of a deep sense of judicial re- sponsibility to comment about warrantless searches and our effort to find some way to reconcile the issues of Presidential authority to protect this country, which is vital, from the terrorists with the rights of civil liberties. Those are big, big issues. I thought they would attract more attention. One of the major newspapers carried an extensive