[国会记录：2008年6月6日（参议院）法律顾问WHITEHOUSE先生[页S5355-S5357] OFFICE。主席先生，我感谢主持人为早来的椅子有点为了让我有机会发言。这是一个相当大的礼貌和一个是大加赞赏。好了，我们又来了：我会说打开我的言论。我已经走到了地上好几遍了，提醒一下出现在以诚信和法律学术的损失一度在司法部法律顾问办公室感到自豪。首先，早在12月，我指出，我们应该说，``偏心'理论所出现的OLC的分析，认为greenlighted布什总统的计划，美国人的窃听装置的出来。这些看法已经秘密。之后我通过在白宫秘密举行过意见分类的脂肪堆积犁和加压，解密的具体陈述这些理论曝光。我的同事们可能还记得，这些理论包括以下内容：行政命令不能限制总统。没有宪法规定每当他想从以前的行政命令的条款出发的总统发出新的行政命令。 Rather [[Page S5356]] than violate an executive order, the President has instead modified or waived it. As the Presiding Officer well knows, Executive orders have the force of law. A theory like this allows the Federal Register, where the executive orders are assembled, to become a screen of falsehood behind which illegal programs can operate in violation of the very executive order that purports to control the executive branch. So that was a fine one. Here is another: The President, exercising his constitutional authority under Article II-- That is the section of the Constitution that provides for the Presidency and the executive branch of Government. Article I establishes the Congress; article II establishes the executive branch-- can determine whether an action is a lawful exercise of the President's authority under Article II. I think the expression for that is ``pulling yourself up in the air by your own bootstraps,'' and it runs contrary to widely established constitutional principle. The seminal case of Marbury v. Madison, which every law student knows, says it is emphatically the province and the duty of the judiciary to say what the law is. And none other than the great Justice Jackson once observed: Some arbiter is almost indispensable when power . . . is . . . balanced between different branches, as the legislature and the executive. . . . Each unit cannot be left to judge the limits of its own power. Yet this was the opinion of the Office of Legal Counsel. Here is the one I found perhaps most personally nauseating: The Department of Justice is bound by the President's legal [opinions.]. A particularly handy little doctrine for the White House, when it is the legality of White House conduct that is at issue. Wouldn't it be nice if you could come into the courts of America or face the laws of America with a principle that the law-determining body has to follow your instruction? If criminals had that, no one would ever go to jail. It is inappropriate in our system of justice. So I found these theories pretty appalling. I found them to be, frankly, fringe theories from the outer limits of legal ideology. They started me worrying about what is going on at the Office of Legal Counsel. Then we came to the OLC opinions the Bush administration used to authorize waterboarding of detainees. Then, again, I came to the floor because I was flabbergasted, horrified to discover that to reach its conclusions, the Office of Legal Counsel totally overlooked two highly relevant legal determinations and then went and drew language out of health care reimbursement law--health care reimbursement law--in order to justify allowing the administration to torture and waterboard prisoners. What were the highly relevant legal determinations the Office of Legal Counsel overlooked? Well, one was that it was American prosecutors and American judges who in military tribunals after World War II prosecuted Japanese soldiers for war crimes, for torture, on evidence of their waterboarding American prisoners of war. Missed it. The other major thing the OLC overlooked was that the Department of Justice itself prosecuted a Texas sheriff as a criminal for waterboarding prisoners in 1984. The sheriff's conviction went up on appeal to the U.S. Court of Appeals for the Fifth Circuit, one row under the U.S. Supreme Court, and the appeals court, in a public opinion, described the technique as ``water torture.'' The opinion used the term ``torture'' over and over again. All a legal researcher has to do is type the words ``water torture'' into the legal search engines, Lexus or Westlaw, and this case comes up: United States v. Lee, 744 F2d 1124. How did the wide-ranging legal analysis that ranged as far afield as health care reimbursement law for guidance miss a case that is bang on point, that was prosecuted by the Department of Justice itself, that is reported in a decision of the U.S. Court of Appeals, that describes this exact technique as ``water torture''? How, indeed. After this, I began to refer to whatever it is that the Office of Legal Counsel has now become as George Bush's ``Little Shop of Legal Horrors.'' Now we have this. The FISA statute contains what is called an exclusivity provision. The FISA statute of the Foreign Intelligence Surveillance Act is the law that governs our surveillance authority on foreign intelligence matters. It is an active issue before this body right now, and the exclusivity provision is actively being discussed. Here is how it reads: [FISA] shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted. ``Exclusive means.'' It seems pretty clear. And exclusivity provisions such as this in statutes are not uncommon. More on that later. But let's look at what the Office of Legal Counsel said about that language. This is language Senator Feinstein and I have had declassified. Similar to the others, it was buried in a classified opinion: Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct wireless searches in the national security area--which it has not-- ``Which it has not''-- then the statute must be construed to avoid such a reading. Well, this is particularly devilish because we have had a long argument through the FISA debate with the administration over the exclusivity provision. Senator Feinstein has led the charge on this, with strong bipartisan support from Senators Hagel and Snowe, and never once, in all these discussions, have I heard the administration say: Oh, there is a problem with the exclusivity language in the FISA bill. There is a loophole in it. It is not as strong as it could be. There is something Congress did in the exclusivity clause that would open a way for the President to wiretap Americans without a warrant. Never once been said. But behind the scenes, in secret opinions, they proclaimed that some loophole exists. I do not see the loophole: FISA ``shall be the exclusive means . . . .'' Where are you going to challenge it? Are you going to say: Well, maybe the hole is that they referenced the national security area? But the national security area is where our foreign intelligence surveillance exists. Well, maybe it has to do with wireless searches? No, wireless searches are precisely what the FISA act is all about. Maybe it has to do with Presidential authority? Well, who else wiretaps? We do not in Congress. The judges do not. Of course, it is the executive branch. So maybe it is that they do not think it was a clear enough statement? Well, let's take a look at that and start with a case from the U.S. Supreme Court. The Supreme Court was discussing a statute that gave the Court ``exclusive'' jurisdiction. Chief Justice Rehnquist wrote for the Supreme Court that this was ``uncompromising language.'' He continued: [T]he description of our jurisdiction as ``exclusive'' necessarily denies jurisdiction of such cases to any other federal court. Chief Justice Rehnquist said: This follows from the plain meaning of ``exclusive.'' The Chief Justice then cited to Webster's New International Dictionary for that plain meaning. My Webster's defines ``exclusive'' as ``single, sole,'' ``excluding others from participation.'' That sounds clear to me. The ``single'' means, the ``sole'' means, the means that excludes others from participation. Lower courts have discussed the FISA statute's own exclusivity provision directly. Chief Justice Rehnquist was talking about a different exclusivity provision. The FISA exclusivity provision was the subject of a case called United States v. Andonian, cited 735 F. Supp. 1469. The court said this. Let me read three sentences talking about the exclusivity language in FISA. [This language] reveals that Congress intended to sew up the perceived loopholes through which the President had been able to avoid the warrant requirement. The exclusivity clause makes it impossible for the President to ``opt-out'' of the legislative scheme by retreating to his ``inherent'' Executive sovereignty over foreign affairs . . . . The exclusivity clause . . . assures that the President cannot avoid Congress' limitations by resorting to ``inherent'' powers as had President Truman at the time of the ``Steel Seizure Case.'' By using this exclusivity clause, the court concluded: Congress denied the President his inherent powers outright. Tethering Executive reign, [[Page S5357]] Congress deemed that the provisions for gathering intelligence in FISA and Title III were ``exclusive.'' Now, there still may be a constitutional question about whether the President's Article II powers exist, no matter whether Congress has passed a particular statute. But there can be no real question about the intention or the effect of FISA's exclusivity provision. I have sat and stared at FISA's exclusivity provision and the OLC language side by side, and I cannot make sense of how they came to that conclusion. Congress says, plain as day, FISA is the exclusive means, and OLC says Congress did not say that. So I wonder, maybe there is some strange legal use of the term ``exclusive'' that I missed in my 25 years of lawyering. Then I find this Court decision that says this very language in the FISA statute means Congress ``intended to sew up the perceived loopholes,'' that this language ``makes it impossible for the President to `opt-out' '' of the FISA requirements; that it ``assures that the President cannot avoid Congress's limitations,'' and that by this language ``Congress denied the President his inherent powers outright.'' Then I thought, maybe that is just a district court decision. That is a lower court. But here is the Supreme Court of the United States looking at an exclusivity clause in another statute and calling it ``uncompromising language,'' taking that word ``exclusive'' at its plain dictionary meaning. There is literally no way I can see to reconcile OLC's statement with the clear, plain language of Congress. I have, in the past, expressed the fear that the Office of Legal Counsel, under veils of secrecy, immune from either public scrutiny or peer review, became a hothouse of ideology, in which the professional standards expected of lawyers were thrown to the winds, all in order to produce the right answers for the bosses over at the White House. Well, as I said at the beginning, here we go again. Oh, one more thing. When the Department of Justice sent me the letter acknowledging that there was nothing that needed to be classified about this phrase, they also said this phrase was now disclaimed--their opinion was now disclaimed; not just declassified but disclaimed--by the Department of Justice. The letter reads: [A]s you are aware from a review of the Department's relevant legal opinions concerning the NSA's warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. But that does not answer this: What went wrong at the OLC? What led to this disclaimed opinion in the first place, and other opinions I have had to come to the floor about? Has it been put right? This is an important question because this is an important institution of our Government, and we need to be assured it is working for the American people, that it is of integrity and that it is back to the standards of legal scholarship that long characterized the once-proud reputation of that office. We do not have that assurance. There is a continuing drumbeat of what appears to be incompetence, and we need the reassurance. We are entitled to the reassurance. Something has to be done. Mr. President, I ask unanimous consent that the Department's letter be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: U.S. Department of Justice, Office of Legislative Affairs, Washington, DC, May 13, 2008. Hon. Dianne Feinstein, Hon. Sheldon Whitehouse, U.S. Senate, Washington, DC. Dear Senator Feinstein and Senator Whitehouse: This responds to your letter, dated April 29, 2008, which asked about a particular statement contained in a classified November 2001 opinion of the Department's Office of Legal Counsel addressing the Foreign Intelligence Surveillance Act. The statement in question asserted that unless Congress had made clear in FlSA that it sought to restrict presidential authority to conduct warrantless surveillance activities in the national security area, FlSA must be construed to avoid such a reading. The statement also asserted the view in 2001 that Congress had not included such a clear statement in FlSA. As you know, and as is set forth in the Department of Justice's January 2006 white paper concerning the legal basis for the Terrorist Surveillance Program, the Department's more recent analysis is different: Congress, through the Authorization for Use of Military Force of September 18, 2001, confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States, and such authority confirmed by the AUMF can and must be read consistently with FlSA, which explicitly contemplates that Congress may authorize electronic surveillance by a statute other than FlSA. We understand you have been advised by the Director of National Intelligence that the statement in question, standing alone, may appropriately be treated as unclassified. We also would like to address separately the substance of the statement and provide the Department's views concerning public discussion of the statement. The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President's constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties. See, e.g., Memorandum for Alan Kreczko, Legal Adviser to the National Security Council, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of 47 U.S.C. section 502 to Certain Broadcast Activities at 3 (Oct. 15, 1993) (``The President's authority in these areas is very broad indeed, in accordance with his paramount constitutional responsibilities for foreign relations and national security. Nothing in the text or context of [the statute] suggests that it was Congress's intent to circumscribe this authority. In the absence of a clear statement of such intent, we do not believe that a statutory provision of this generality should be interpreted so to restrict the President constitutional powers.''). The courts apply the same canon of statutory interpretation. See, e.g., Department of Navy v. Egan, 484 U.S. 518,530 (1988) (``[U]nless Congress has specifically provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.''). However, as you are aware from a review of the Department's relevant legal opinions concerning the NSA's warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. Rather, the Department's more recent analysis of the relation between FISA and the NSA's surveillance activities acknowledged by the President was summarized in the Department's January 19, 2006 white paper (published before those activities became the subject of FISA orders and before enactment of the Protect America Act of 2007). As that paper pointed out, ``In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [in the AUMF] had confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland.'' Legal Authorities Supporting the Activities of the National Security Agency Described by the President at 2 (Jan. 19, 2006). The Department's white paper further explained the particular relevance of the canon of constitutional avoidance to the NSA activities: ``Even if there were ambiguity about whether FlSA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda.'' Id. at 3. Accordingly, we respectfully request that if you wish to make use of the 2001 statement in public debate, you also point out that the Department's more recent analysis of the question is reflected in the passages quoted above from the 2006 white paper. We hope that this information is helpful. If we can be of further assistance regarding this or any other matter, please do not hesitate to contact this office. Sincerely, Brian A. Benczkowski, Principal Deputy Assistant Attorney General. Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer again for his courtesy and yield the floor. The PRESIDING OFFICER. The Chair recognizes the Senator from New Jersey, Mr. Lautenberg. Mr. LAUTENBERG. Mr. President, I thank you. I will not take long. ____________________