Senator Sheldon Whitehouse

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Remarks of U.S. Senator Sheldon Whitehouse
New York City Bar Association Council on Criminal Justice
April 12, 2008

 

Ladies and Gentlemen, as a former federal and state prosecutor, it is an honor to appear at the New York City Bar Association’s Council on Criminal Justice.

 

I have been lots of different kinds of lawyer in my life, but nothing quite matches the feeling of standing up in court and getting to say the words: “Your Honor, I represent the United States of America.” Those simple words, uttered every day in courtrooms across the country, bind together lawyers of all personal backgrounds and ideological persuasions in a common mission, articulated in the Department of Justice’s motto: “prosecute on behalf of Justice.”

 

As a United States Attorney, I saw first-hand how seriously the men and women of the Department took that mission and how deeply ingrained have become the words written by Justice Sutherland in 1935: that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” I experienced the esprit de corps that came with this great responsibility, a memory which former U.S. Attorneys and AUSAs of all denominations carry for their lifetime.

 

I know that many of you in this room have shared that experience.

 

And I am sure that many of you must have shared the feeling of frustration and dismay that I felt last year, as each day seemed to bring a new story of politics infecting the Department at its highest levels; of the Department’s protective armature of longstanding norms, policies, and procedures being disassembled; and of incompetence so stunning, it made you wince.

 

My remarks this morning will touch on what the new leadership at the Department has done to right the ship; and the hard work that lies ahead.

 


 

While I won’t delve into the long litany of frightful stories regarding the tenure of former Attorney General Alberto Gonzales, I would like to touch on one simple point: the Attorney General simply did not seem to respect the institution that he was tasked to serve. I remember when I first took office as Attorney General of little Rhode Island, how strongly I felt the responsibility and honor of that office. I don’t think he ever felt that way. I think he felt he had seized more territory for George Bush. This simple fact, more than his ideology or his actions on any particular matter, is what set him apart from his predecessors – Democratic and Republican. It is also, I believe, what allowed him to disregard and degrade so many of the time-honored traditions and practices of the Department – the rebuilding of which ranks among the current Attorney General’s most important tasks.

 

What do I mean by “time-honored traditions and practices”?

 

I mean the unwritten rule that U.S. Attorneys were expected to be homegrown – to make sure that they knew and understood and were accountable to their Districts, so they were not just envoys for a distant Department, with all their allegiance to its command; I mean the statutory requirement that U.S. Attorneys must be put up for Senate confirmation, to trim away the ideological extremes, and raise the bar of the candidate’s credentials; I mean the restriction of communications between the White House and the Department on case-specific matters, to erect an essential firewall between that great institution and its likeliest source of improper influence; and I mean the notion that career attorneys are hired, fired, and work free from overt partisan interference and that U.S. Attorneys are equally free to do their important work without political interference from above, a principle that should need no further elaboration.

 

Each of these traditions and practices was more or less eviscerated over the past few years – and that is to say nothing of memoranda approving interrogation methods long understood to be illegal, the disarray of the Office of Legal Counsel, the tainting of the famous Honors Program, and, of course, that late night visit to Attorney General Ashcroft’s hospital room.

 


 

This is the situation that Attorney General Mukasey inherited. And the question remains: how is the recovery proceeding?

 

First, I give the Attorney General credit for overhauling almost the entire senior leadership at the Department. He has replaced a generally discredited group of senior Department officials with generally strong replacements – people such as Deputy Attorney General Mark Filip, who is both highly qualified and, just as important, not a member of the President’s inner circle. He is also someone who I believe feels in his heart and in his gut the vital governmental role of this great institution, and the importance of protecting and preserving it.

 

Second, there has been a perceptible change in tone. During my first year on the Senate Judiciary Committee, nearly every Department of Justice oversight hearing followed a familiar, depressing script: sift through a series of obfuscations and half-truths, only to ultimately find that politics, ideology, and obedience to the President had trumped sober legal analysis and respect for the rule of law.

 

That has improved, and it is my hope that, in the waning days of the Bush Administration, Attorney General Mukasey can restore the Department’s credibility to a point where a new President – whoever she or he may be – can finish the job.

 

Third, I give Attorney General Mukasey considerable credit for reinstating a Department policy whose reversal, I believe, was most responsible for the infestation of improper politics there. When I was a U.S. Attorney, under the Clinton administration, the list of people at the White House and the Department who could discuss ongoing cases and investigations was restricted to only four White House officials and only three Department officials. The Bush Administration broke down this firewall between the White House and the Department to permit up to 417 White House officials, including Karl Rove and other political advisers, to have case-specific conversations with up to 42 Department officials. Attorney General Mukasey, true to his word at his confirmation hearing, promptly changed that policy upon taking office – to permit only the Attorney General, Deputy Attorney General, White House Counsel and Deputy White House Counsel to have initial contacts regarding criminal cases. This is a healthy protection for the Department against its likeliest avenue of improper political influence.

 


 

But much remains undone.

 

First and foremost, I am deeply concerned about the current state of affairs at the Office of Legal Counsel. As you know, OLC is responsible for determining the legality of proposed Executive Branch actions. It therefore wields tremendous power – particularly since its decisions are viewed to have the force of law; since the office is subject to little (if any) oversight; since there is limited transparency, particularly when its opinions are classified and kept secret; and since it is insulated from the healthy and illuminating play of separated powers of government.

 

As former OLC head Jack Goldsmith noted in his recent book “The Terror Presidency,” generations of OLC attorneys understood the great power that the office holds and, in his words, “developed powerful cultural norms about the importance of providing the President with detached, apolitical legal advice, as if OLC were an independent court inside the executive branch.”

 

Thanks in part to Goldsmith but also from the OLC’s own deeds, we now know the degree to which those norms were trampled.

 

For example, we know that, in 2002, OLC attorney John Yoo drafted a memo, later approved by OLC Assistant Attorney General Jay Bybee, which reads, in part:

 

Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. … On the basis of that definition, they concluded: There is [a] significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.

 

Where does this definition come from? What was the source for the “organ failure, impairment of bodily function, or even death” language? I point you to 42 U.S.C. §§ 1395w-22. What is that statute, which helped set a new course for our interrogation practices? A Medicare reimbursement statute. Go figure the relevance of that.

 

And how did we get to the point where the highly respected Office of Legal Counsel was using Medicare reimbursement statutes – statutes utterly irrelevant to the interrogation of suspected terrorists – to justify its legal analysis on this issue?

 

Making matters worse, this “legal analysis” was used to justify the legality of a certain coercive interrogation technique that regrettably has become familiar to us all, “water-boarding.”

 

Water-boarding has a long and sordid history in the annals of tyrant regimes, and brutal occupations. It was used by the Spanish Inquisition, by the Khmer Rouge in Cambodia, by the French in Algeria, by the Japanese in World War II, and by military dictators of Latin America. The technique ordinarily involves strapping a captive in a reclining position, heels above head, putting a cloth over his face and pouring water over the cloth to create the feeling of suffocation and drowning. Senator John McCain (R-Ariz.), who was held captive for more than five years by the North Vietnamese, has said this of water-boarding: “It is not a complicated procedure. It is torture.”

 

The United States government said the same thing. Americans, on behalf of military tribunals, initiated war crimes prosecutions against Japanese soldiers who water-boarded American aviators in World War II.

 

In fact, the United States government itself brought a civil rights prosecution against a Texas sheriff who water-boarded prisoners. The indictment asserted that the defendants conspired to “subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions.” The sheriff and his deputies were convicted by a jury and the United States Court of Appeals for the Fifth Circuit affirmed. At sentencing, the presiding judge admonished the former sheriff that “[t]he operation down there would embarrass the dictator of a primitive country.”

 

The decision is reported at 744 F.2d 1124. A Westlaw or Lexis query for the term “water torture” brings it up. How is it that the Office of Legal Counsel, the elite legal conscience of the Department of Justice, completely missed this case? The Department itself had brought the charges. The prosecuting Assistant U.S. Attorney is still in the Department. Is this an abject failure of legal research and analysis, or something much, much worse?

 

I see the torture memo as part of a disquieting pattern at the Office of Legal Counsel. As a member of the Senate Intelligence Committee, I have had the opportunity to review secret OLC opinions related to the warrantless wiretapping program. Those opinions are also deeply troubling. I was so offended by three legal theories contained in those memos, that I fought to have them declassified and brought to light. Those theories are, as declassified by the Director of National Intelligence:

 

1) An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it;

2) The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II; and

3) The Department of Justice is bound by the President’s legal determinations.

 

We are all lawyers here. I do not need to dwell on these propositions. Suffice it simply to say that the first proposition — that executive compliance with executive orders is optional — turns the Federal Register into a screen of falsehood, behind whose phony regulations lawless programs can operate in secret. (Remember that a regulation has the “force and effect of law.”) Contrast the second proposition — that Article II gives the President the authority to define his Article II powers — with the famous language of Marbury v. Madison, that “it is emphatically the province and duty of the Judicial Department to say what the law is.” And compare the third proposition — that the President tells the Department of Justice what the law is, and not vice versa — to the famous statement, uttered by Richard Nixon: “If the President does it, that means it is not illegal.”

 

Of course, these theories have serious real-world applications, one of which I will briefly discuss. Under FISA there is no current statutory limitation – no law of Congress and consequently no oversight by the courts – on the government’s ability to spy on Americans traveling abroad whenever it wants, for whatever purpose. The only limitation that now exists on this power is Executive Order 12333, which says that the government will not wiretap Americans overseas unless the Attorney General makes a determination that that person is acting as an agent of a foreign power.

 

In other words, the only thing standing between Americans traveling overseas and a government wiretap is an Executive Order – an order this President, under the first legal theory I cited, claims he has no obligation to obey. This OLC Theory of Executive Orders means that a soldier serving in Iraq or Afghanistan or an American visiting family abroad can be spied on with no oversight or limitations, notwithstanding the Executive Order stating the contrary.

 

The FISA bill that passed the Senate does require a court to determine that there is probable cause before any American overseas may be targeted for intelligence surveillance. We got that in part because disclosure of the Bush OLC Theory of Executive Orders cut the legs out from under the Administration’s argument that we could rely on 12333 to protect Americans.

 

It should give us great pause that these three legal theories were promulgated by the Office of Legal Counsel, an office that used to be the Department’s secular temple of legal scholarship and analysis.

 

How did we get to this point? Again, I will quote Jack Goldsmith, who wrote of Alberto Gonzales and Vice President Cheney’s Counsel David Addington that they expressed the view that “OLC’s legal reasoning was irrelevant to the authority of an OLC opinion. All that mattered, they believed, was OLC’s bottom line approval.” In other words, what mattered was getting what the President wanted, not how you got there, or whether it was the right decision.

 

Fortunately, the Office of Professional Responsibility has now opened an investigation into OLC’s legal work. OPR does not customarily make the results of its inquiries public, but I hope that OPR makes an exception in this case, and produces a public report that takes a cold, hard look into an office that appears to have become a hothouse of legal ideology. I also hope that Attorney General Mukasey understands the importance of this office – that it must be independent, and that it must always place sound legal reasoning above any political agenda.

 


 

During the Senate Judiciary Committee investigation into the U.S. Attorney firings, I was often reminded of the familiar words of a famous New Yorker who became a prosecutor, Attorney General, and a Supreme Court Justice: Robert Jackson. In a 1940 speech to his assembled United States Attorneys, the Attorney General said this:

 

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

 

I doubt Alberto Gonzales, or Kyle Sampson, or Monica Goodling ever read that passage. If they did, they forgot, or chose to ignore it. Jackson’s warning rings through the decades: the power to prosecute is the most solemn and terrible civil power held by government – and it must be used with vigor, but also with wisdom, and restraint, and to one and only one purpose – to “prosecute on behalf of Justice.”

 

The damage that was done to the Department will not be corrected overnight – it will take months or maybe years to fully repair. That correction now depends in part on another New Yorker who became a prosecutor, judge, and Attorney General: Michael Mukasey. I hope he rises to the occasion and I wish him godspeed.

 

It also depends on many of us in this room. As a member of the Senate Judiciary Committee, I will do everything in my small power to conduct vigorous oversight of the Department and to support the honorable men and women who work there.

 

But, more important, you in this room are the backbone of our criminal justice system. Every one of you who has been a prosecutor or who has provided the vital service of criminal defense understands the importance of Justice Jackson’s famous words – and each of you has common cause in seeing a Department of Justice that sets the highest standard to which our country can aspire, one that leads and inspires state Attorneys General, District Attorneys, and county and municipal prosecutors; not one that dishonors the craft of law or the work of law enforcement.

 

Thank you.