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Response to Sen. Sheldon Whitehouse’s Questions

Questions raised after “Restoring the Rule of Law,” a hearing before the Senate Judiciary Committee Subcommittee on the Constitution that took place in Sep. 2008.

Published: October 7, 2008

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Sheldon Whitehouse
Hart Senate Office Building
Room 502
Washington, D.C. 20510

Re:      Hearing before the Senate Judiciary Committee Subcommittee on the Constitution on “Restoring the Rule of Law” Tuesday, September 16, 2008.

Dear Senator Whitehouse:

Thank you for your insightful questions at the hearing chaired by Senator Feingold and in your post-hearing letter of September 24, 2008.  Below are answers to the two questions in your post-hearing letter. 


1. There is broad bipartisan support for closing the detention facility at Guantanamo Bay, Cuba.  The question we face is how to close it.  Doing so will raise complicated military, intelligence, judicial, diplomatic, correctional, and civil liberties issues.


    Do you support the establishment of an independent commission on how to close Guantanamo Bay?  If so, what expertise should the members of that commission have?  What powers should the commission have in order to accomplish its work? 


    Without doubt, the winding up of detention operations at the Guantánamo Bay Naval Base implicates “complicated military, intelligence, judicial, diplomatic, correctional and civil liberties issues.”  Determining how to execute that winding-up, to be sure, demands sound policies grounded in careful consideration of all those issues.  In my view, however, a commission does not present the best way to devise or implement these policies.  Instead, the next president should take the initiative and also work to facilitate the federal courts’ effort to bring about a timely resolution of the detention facility in Cuba.  Below, I spell out how a new administration can expedite equitable solutions to Guantánamo’s dilemmas.

    While Guantánamo has become a symbol of America’s immoral anti-terrorism policies, and thus requires immediate attention, it is also important to remember at the threshold that the problems engendered by U.S. detention policies are not limited to Guantánamo Bay.  Concerns over the treatment of prisoners, the risk of erroneous detention, and the prospect of indefinite confinement are all equally applicable to other detention and proxy detention efforts.  Attention to the visible problem of Guantánamo should not mean that less well-known but equally problematic practices are left unchanged. 

    In Guantánamo, the hard issues involved in winding-up are best worked out through decisive action by a new president, and presidential energy to ensure a prompt and just resolution of the habeas cases now being litigated in the District of Columbia federal courts under Boumediene v. Bush, 553 U.S.—(2008).  An independent commission would be an appropriate response to the challenge of determining with precision why and how our national security policies have gone awry in the past-not only for the historical record but also to guard against the repetition of error.[1]  It is not, however, the right tool for determining speedy and just resolution of forward-looking action on Guantánamo.  To the contrary, a commission would engender harmful delay and undermine efforts that could begin even before an inauguration, and which a new president must undertake to restore America’s sullied international reputation. 

    Guantánamo Bay has become a symbol of American shame around the world-much as Robben Island became emblematic of the South African apartheid regime-because it symbolizes American disregard for international law, and especially the laws of war.  By repudiating the 1949 Geneva Conventions in February 2002, the White House determined unilaterally that it was under no obligation to sift those captured in Afghanistan and elsewhere to ascertain if they had been properly detained.[2]  It hence swept in indiscriminately the soldier and the shepherd.  Further, because it relied on proxy captors (including foreign intelligence services and even bounty hunters), the Administration netted a mixture of individuals properly subject to military detention and people whose detention is not authorized by the laws of war.  This threshold failure to separate those who can be held lawfully from those who cannot has poisoned the well of wartime detention.  It destined the Guantánamo project to harmful controversy and moral indictment.  Worse, having detained some innocents and some enemies without means to discriminate between them, the Administration has relied on coercive interrogation-often in violation of the Army’s own Uniform Code of Military Justice—to obtain flawed “intelligence” to justify otherwise illegal detentions.  The result is abuse heaped on, and deployed to justify, error. 

    Guantánamo must be closed now because its lawlessness soils our reputation, making us both less free and less safe.  But closing it is not enough.  No one will be fooled or fobbed off by a closure that is lawless or morally flawed.  The only way to restore America’s reputation, the credibility of its moral leadership, is through decisive and just presidential action rooted in the rule of law. 

    A new president must quickly seize the moral high ground on Guantánamo.  He must release speedily, for example, all detainees whose “enemy combatant” designation has been disavowed.  He must declare that the base will be closed expeditiously.  Happily, he already has in place a trustworthy and respected mechanism to separate those who are lawfully detained from those who must be released: the federal district courts.  Habeas proceedings for Guantánamo detainees have now been underway since July before Chief Judge Hogan and other members of the D.C. District Courts.  Through habeas, the federal courts will achieve what the Administration has delayed and prevaricated against for years.  Through habeas, the federal courts will attain what some novel commission would only-at best-defer:  Just resolution of individual cases based on facts assessed by an independent adjudicator.  Only through habeas will we have a fair and respected accounting of who can properly be held, and who must be released.

    A new president must take the initiative to speed the accurate resolution of these cases.  Their resolution has been delayed by the government’s failure at the end of August to file timely returns to the pending habeas petitions.  It seems that the Bush Justice Department is likely to succeed in running out the clock, ensuring that it never has to explain its gross and harmfully erroneous detention decisions.  But, that does not mean a new president cannot act decisively, by instructing that necessary resources are devoted to resolving the habeas proceedings fairly and expeditiously, and then taking appropriate action based on their results.  The next administration thus should direct the Justice Department to root out flawed detention decisions and decline to oppose the habeas petitions in such cases.  Further, in each case the government should present to the courts the most accurate possible reflection of the facts, not the strongest case the government can devise to justify detention.  Because we find ourselves in a struggle against terrorism seemingly without end, it is imperative that our government’s detention decisions-which might condemn a human being to indefinite captivity-are correct.    

    Once the new president knows who ought not to be detained, he must act decisively to restore America’s reputation and credibility by working with other nations to facilitate their release.  The best way to restore international trust, which will be necessary to negotiate solutions for placing detainees who cannot be returned to their native lands for human rights reasons, is to hasten fair proceedings, and then to ask third countries to give haven to those cleared through those independent proceedings.  Fair procedures thus build political capital, which in turn can be used to create resolutions.  For those detainees who have been wrongfully detained, and for whom no other nation can serve as safe sanctuary, the new president must have the moral strength to insist that they be given a home here in the United States.  However hard this is, however much opposition this faces, there is no other just course.  Only such swift, decisive, just action can claim the moral high ground that the next American executive must occupy. 

    For those detainees who are properly detained under the laws of war, a new president must identify facilities that can hold them that are not marked by the enduring shame of Guantánamo.  This is a practical problem.  It requires no new law, and is best done by expeditious agency action. 

    A commission to determine the fate of the Guantánamo detainees is a recipe for delay and deepening national embarrassment.  It cannot do the difficult diplomatic work that our State Department must undertake to repatriate detainees eligible for release.  Nor is it likely to provide the moral strength that a true national leader must display in overcoming opposition to admitting to the U.S. detainees with nowhere else to go.  To the contrary, it would flag an abdication of leadership.  Most importantly, it places the burden of further unnecessary delay on innocent detainees who have been wrongfully detained for as long as six years.  No august deliberative body can make up for the hard diplomatic labor, the careful lawyering, and the attention to practical detail that must go into any just resolution of the Guantánamo crisis.

    In my testimony, I argued for the creation of a commission to examine what has already happened and how to prevent the recurrence of abuses-and not as a way to determine future policy.[3]  This work of accountability unquestionably must encompass Guantánamo-how and why both international and federal statutory law were violated; how abuse spread; who made key decisions.  But, a backward-looking inquiry must not defer the reckoning, a reckoning whose delay has already cost us dearly.


    2. Many officials in the executive branch are granted the authority to classify and declassify.  This means that if they disclose previously classified information, it is automatically declassified ­ and the “declassifier” faces no exposure to civil or criminal liability.  By contrast, members of Congress are not granted this authority.  This puts Congress at an extreme disadvantage when it is performing its constitutionally mandated oversight role.  It also raises the possibility for abuse:  executive officials can declassify material selectively for their own political and partisan purposes.  Making matters worse, members of Congress, like other citizens, are prohibited by law from declassifying other information that would reveal the inaccuracies or distortions propagated by the executive branch.


      At the hearing, I raised the possibility of granting the Chairman and Ranking Member of the Judiciary and Intelligence Committees the authority to declassify.  Do you support this approach?  If not, can you offer another approach to address this problem?


      The executive branch’s selective declassification for “political and partisan purposes” is without question a perversion of our democratic system.  It should be addressed.  While individual Members of Congress currently are not entitled to declassify information, each House of Congress does possess the power to confer this authority on its Members or committees.  Extending limited declassification authority, albeit to be used sparingly, to the judiciary and intelligence committee chairs presents one promising means of addressing the problem.  It is a useful, though incomplete response.  In my view, a sustainable and enduring solution also lies in fundamental reforms that eliminate excessive secrecy.[4]

      Our constitutional order rests on a fundamental norm of presumptive openness and free flow of information.  Without this openness, democracy cannot operate.  Information flow is crucial not only to ensure that Congress possesses the facts it needs to legislate and conduct oversight, but also to guarantee full—and fully informed—public debate.  This is most clearly the case in sensitive areas of national security policy, which often touch on core American values and implicate fundamental constitutional rights. 

      Selective declassification by the executive alone presents a grave threat to effective governance and oversight.  Consider one worst-case scenario:  A document is classified that contains evidence of criminal conduct.  The executive releases an innocuous portion of the document but fails to reveal the impropriety.  Not only is criminal conduct being concealed, but disclosing information that casts executive policies or proposals in a favorable light while withholding information supporting counterarguments, also yields a distortion of public opinion, spinning the debate in favor of policies sanctioned by the executive.  Absent similar declassification authority, Congress cannot rebut selective disclosures.

      We have seen in the last eight years the disastrous results of policies endorsed and publicly defended on the basis of partial information:  A war initiated to retaliate against a dictator for his alleged role in the events of 9/11, though he actually played no part in that attack, and to eliminate the threat of chemical/biological/nuclear weapons that did not exist; detention and interrogation policies that secretly disregarded federal statutes barring torture, the laws of war, and basic human dignity; rendition to torture; and lawless surveillance policies that violated the privacy rights of unknown numbers of Americans even as Congress drew up and debated careful amendments to the existing surveillance statutes.

      A concrete example shows there is a link between the first question you ask and this one.  In early 2002, senior Bush Administration officials variously described the Guantánamo detainees as “among the most dangerous, best trained, vicious killers on the face of the earth”; “the worst of a very bad lot”; and “very dangerous people who would gnaw hydraulic lines in the back of a [plane] to bring it down.”[5]  We now know-not least from the number of people released already from Guantánamo-that these characterizations were at best partial and at worst misleading.  For the Administration to fail to correct these initial sweeping claims is an example of the phenomenon you focus on in your second question.

      But finding an effective solution to the problem of selective declassification is far more difficult than diagnosis of the problem.  Liberal declassification policy, unless carefully implemented, can hazard disclosing information whose publication in fact poses security risks.  Any measure that Congress undertakes to combat selective executive declassification must take into account this danger.  One option short of retaliatory declassification is simply to call attention to the practice as it is happening:  When the executive declassifies information in a way that is misleading, Members of Congress can-and should-state publicly that they have seen the information at issue and that the executive’s partial release is misleading.  Nonetheless, selective declassification is a remedy for selective executive declassification when carefully and responsibly used.

      When I served as Chief Counsel to the Select Committee to Study Government Operations with Respect to Intelligence Activities (Church Committee) we faced a similar dilemma.  The Committee had uncovered an operation known as Project SHAMROCK, in which for 30 years the National Security Agency was secretly given access to all international telegrams of Americans.  Great debate ensued within the Committee over whether the names of the telegraph companies involved-which was classified information at the time-should be disclosed publicly.[6]  The Church Committee ultimately determined, over the strong opposition of the White House, not only that the Committee itself had the power to declassify information, but that the names should in fact be made public. [7]

      Similarly, both the Senate and House may confer on their Members or committees the power to declassify information.[8]  I agree that extending declassification authority to the Chairmen of the Judiciary Committees and Select Committees on Intelligence presents a possible advance on the current troubling situation.  Ideally, enabling congressional committee chairs to declassify information when they certify the need to do so in response to the executive’s selective declassification would dissuade the executive from employing a strategy of selective-and misleading-declassification.  Even if it does not, however, Congress must be sure that it uses this new authority responsibly.  There is no reason to believe those elected to Congress are any less capable than those elected to the White House of acting responsibly.  But, certain precautions are nonetheless warranted.

      First, disclosure power ought to be held only by a narrow set of individuals.  A new declassification authority should be extended only to the Chairman of the Senate and House Judiciary Committees and the Chairman of the Senate and House Select Committees on Intelligence, who would presumably exercise their power only after discussion with colleagues.[9]

      Second, no decision to declassify should be made without consulting the executive agency that made the initial decision to classify-a practice we followed while I was working on the Church Committee.  While much information is classified unnecessarily, there is of course some information that is properly classified and should remain confidential.  Congress should declassify information only when the public interest in disclosure outweighs the need to protect the information.  Professionals in the relevant agency (as opposed to political appointees who are in the White House) should be given an opportunity to highlight possible negative repercussions from a disclosure.  Only after all the risks of declassification are explored should a committee chair be permitted to determine whether continued classification is necessary.  From my experience, I am persuaded that it is both wrong and inappropriate to believe that persons chosen by the people for national elected office, and by their peers to chair their respective committees, would not make this kind of judgment fairly and responsibly. 

      In my testimony, I urged Congress to tackle the problem of over-classification and other forms of executive secrecy.  Finding an effective means to combat over-classification will help solve the problem you have described.  I would therefore urge the Senate to undertake comprehensive reappraisal of secrecy problems, both as a way to reduce the impact of selective executive declassification and as a means of limiting the broader harms resulting from excessive executive secrecy. 


                  I look forward to discussing and working with you further on these issues.    


      Frederick A.O. Schwarz, Jr.

      cc: Senator Russell Feingold

      [1] See Written 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,” Sept. 16, 2008, at pp. 2–10. 

      [2] F. Schwarz and A. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press, 2007), pp. 75–81.

      [3] Schwarz testimony, supra note 1.

      [4] Senator Feingold, who chairs your committee, offered remarks on the Senate floor summarizing the hearing at which I appeared several days after it took place.  In those remarks, he noted the common concern emphasized by most witnesses who offered testimony that day:  a concern over excessive secrecy.  Remarks on the Senate Floor of U.S. Senator Russell Feingold On Restoring the Rule of Law, Sept. 25, 2008 (on file with the Brennan Center for Justice).

      [5] Joseph Margulies, Guantánamo and the Abuse of Presidential Power (Simon & Schuster, 2006), p.65.

      [6] L. Britt Snider, Recollections from the Church Committee’s Investigation of NSA, Studies in Intelligence, Winter 1999–2000, at 47.

      [7] Hearings Before the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, 94th Cong. 47–55 (1975).  This power was conferred on the Committee by S. Res. 21, 94th Cong. (1975). Snider, supra note 6, at 49–50.

      [8] The Senate and House Select Committees on Intelligence currently possess this power, subject to strict procedural requirements.  S. Res. 400, 94th Cong., § 8 (1976) (as amended); Rules of the House of Representatives, Rule X, § 11(f).

      [9] You also might consider conferring this authority on the Ranking Members of the respective committees in times of unified government.  When the President and the Chairmen hail from the same political party, incidents of misleading selective declassification are less likely to be challenged.  Giving the Ranking Members the same power as the Chairmen in this regard will both deter and respond to misleading executive declassification even when both political branches are controlled by the same party.