Restoring the Rule of Law

Testimony delivered before the Senate Subcommittee on the Constitution, Civil Rights, and Property Rights.

September 16, 2008

Download PDF of full testimony here.

Testimony of Frederick A.O. Schwarz, Jr.

Senate Committee on the Judiciary

Subcommittee on the Constitution, Civil Rights, and Property Rights

"Restoring the Rule of Law"

Urging Congress to Establish a bipartisan, independent investigatory Commission to determine what has gone wrong with our policies and practices in confronting terrorism since September 11th, 2001, and to adopt a series of specific reforms aimed at restoring checks and balances and the rule of law in order to reduce risk of repetition of recent abuses.

Introduction only published here. To download entire testimony, click here.

Introduction

The title of this hearing cuts to the heart of the matter.  The current Administration has ignored, defied, and defiled the Rule of Law.  In so doing, it has undermined America's greatest strength.  And that has not only left Americans less free, it has also made us less safe.  It is vital to our country's future that we do indeed restore the Rule of Law.  In my testimony, I draw on my experience as Chief Counsel to the Church Committee to suggest how a new Congress and President in 2009 could start this immense and important task, especially in the context of counter-terrorism policy.

In the almost eight years that have passed under the current Administration, and especially in the seven years since the tragedy of 9/11, the White House arrogated to itself unprecedented powers of coercion, detention, and surveillance.  All the while, it has tried to use a patina of legal and constitutional justifications to disguise the degree to which it has abandoned the core American values in whose defense these tactics have been deployed.  The result has been a distortion of the Constitution, an evisceration of the rights and liberties of individuals, and a perversion of American values.  All of this has done grave harm to our nation's reputation and has reduced our security here and abroad.

It is of the utmost importance to review our policies and practices, and to make changes where we find unseemly and illegal programs or inefficient and counterproductive policies.  The time to act is at hand.  The members of the 111th Congress will take their seats in early January, and a new administration will enter the White House on January 20, 2009.  They, and the nation as a whole, have the opportunity to return to our values, check the overextension of the executive branch in recent years, and renew our national commitment to the constitutional framework under the rule of law.

The urgent need to restore checks and balances under the rule of law is far more important than the controversies that divide us.  Instead, understanding the importance of righting the separation-of-powers imbalance and restoring respect for the rule of law should bring all Americans together.  If today's President hails from one party and the congressional majority from another, in the future these affiliations will surely change.  But the core principle-that the preservation of the Constitution's checks and balances, and respect for the rule of law, is essential to effective governance-endures regardless of what party controls either branch.  If we turn a blind eye to this truth, the nation will feel the consequences far into the future.

Therefore, I am grateful to have the chance to share with you some thoughts on specific measures aimed at restoring the proper constitutional balance between the branches of government, reinvigorating the separation of powers, and restoring respect for American values.[1]  Broadly speaking, I make two sorts of suggestions:

  • (i) a bipartisan independent investigatory Commission should be established by the next Congress and President, first to determine what has gone wrong (and right) with our policies and practices in confronting terrorists since September 11, 2001, and then to recommend lasting solutions to address past mistakes (see pp 3 to 10 below); and
  • (ii) a series of specific reforms should be adopted aimed at reforming the executive branch and ensuring no repetition of recent abuses.  Among the topics I touch on are the need for a clear rejection of the "monarchial" presidency theory; improved oversight and accountability mechanisms; responses to the pathological secrecy that today characterizes executive branch operations; and coercive interrogations (see pp 10 to 27 below).

We must resolve to confront our mistakes so that we do not repeat them.  Throughout American history, in times of crisis, presidents have accumulated significant new powers, and the executive branch has often engaged in abusive conduct. [2]  Crisis always makes it tempting to ignore the wise restraints that both keep us free and reduce the likelihood of foolish mistakes.  This nation has, at times, admirably set about correcting its course-realizing, as the dust settles, or as previously secret facts are revealed, that constitutional and legal norms have been breached, shaming and harming our nation. 

One such moment, in which I was involved, came in 1975–1976, when an investigation conducted by a Senate Select Committee, known as the Church Committee for its Chair, Senator Frank Church of Idaho, revealed intelligence agencies' excesses during the Cold War.  The Church Committee's investigation of the intelligence agencies, most importantly the FBI, the CIA, and the NSA and other components of the Defense Department, found that these agencies had exceeded their authority through abusive surveillance and disruption of political activity at home (e.g., trying to provoke Martin Luther King, Jr. to commit suicide), and unwise overseas covert action (e.g., hiring the Mafia to try to assassinate Cuba's Fidel Castro, and supporting the overthrow of Chile's democratically elected government).  While men and women of the intelligence agencies directly committed abuses, the most serious breaches of duty were those of presidents and other senior executive branch officials who, the Church Committee determined, had the "responsib[ility] for controlling intelligence activities and generally failed to assure compliance with the law."[3]

The Church Committee's investigation illuminated what had been going wrong with our intelligence agencies.  Exposing the truth strengthened both our democracy and our ability to defend the country without waste or abuse, confirming that America's ability to self-correct is one of the great strengths of our democracy.  It is time for such a searching assessment and self-correction again.

Introduction only published here. To download entire testimony, click here.


[1] Other thoughts are contained in Unchecked and Unbalanced, particularly in the addendum to the paperback revision (The New Press, 2008) and in the Brennan Center's publication, Aziz Huq, Twelve Steps to Restore Checks and Balances, available at http://www.brennancenter.org/content/resource/twelve_steps_to_restore_ch....

[2] For an overview of past excesses, see Unchecked and Unbalanced, supra n. 1, at 3-5 ("Introduction"), chapter 2 21-49 ("Revelations of the Church Committee").  See also Geoffrey B. Stone, Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism (2004).

[3] Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book II, 1 S. Rep. No. 94-755, at 137 (1976).