January 2009

extracted from Reining in The Imperial Presidency

from Conyers Publishes Massive Report on 'Imperial Presidency'

Executive secrecy is one of the monarchical customs...certainly fatal to republican government.
– John Taylor

An Inquiry Into the Principles and Policy of the Government of the United States (1814)

The Bush Administration’s cloak of secrecy has been interwoven with many of the abuses of executive power recounted in other sections of this Report.

 

This section of the Report considers the Bush Administration’s claims of executive privilege; withholding of necessary documents and testimony from Congress without formal executive privilege assertions; use of the state secrets privilege, the president’s classification authority, and narrow construction of the Freedom of Information Act.

 

By any measure, this Administration has been extraordinarily secretive. In his first year of office alone, President Bush,

“delayed the release of presidential papers from the Reagan White House, imposed limits on public access to government documents, refused to share revised data from the 2000 Census, and shielded decades-old FBI records from scrutiny. Advisers even declined to disclose the brand of pretzel that Bush choked on.”

Criticism of the Bush Administration’s secrecy has come from across the political spectrum, including would-be allies in Congress and conservative advocacy groups like Judicial Watch.

 

Larry Klayman, former chairman of Judicial Watch, has compared the current Administration to an,

“Old-World style of government, where the sovereign is considered to be elite and the people are considered to be the rabble, and they have little to no right to know what the government is doing.”

A simple change in administration does not rectify all past harms when some of these expansions of Executive Branch secrecy have been institutionalized. Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists, points out that,

“[o]nce a precedent is set and an administration not sufficiently rebuked, this kind of secrecy becomes a permanent option.”

In examining the Bush Administration’s penchant for secrecy, the Iraq War merits particular attention.

 

Beginning shortly after the terrorist attacks on September 11, 2001, the Bush Administration built a case before Congress and the American public for pre-emptive war against Iraq. Investigations by the Judiciary Committee’s Democratic Staff, the Senate Intelligence Committee, the House Oversight and Government Reform Committee, and various news agencies subsequently revealed that the Administration had taken the use, misuse, and tailoring of intelligence information to unprecedented lengths in order to bolster support for the war.

 

The Administration also tried to silence its critics through selective declassification of intelligence assessments and reports by congressional committees. As Senator Bob Graham wrote in 2003,

“[t]he recent scandal over the Bush Administration’s manipulation of intelligence data leading up to the war in Iraq is a glaring example of why our government should be open and honest with the American people.”

 

 

I. Executive Privilege
 

 

A. Formal Assertions of Executive Privilege

“Executive privilege” is an assertion made by the president of the United States as grounds for refusing to produce information or documents, or for witnesses refusing to answer questions, in response to a request or subpoena.

 

The concept of “executive privilege” is not mentioned in the Constitution, but is grounded in the separation of powers doctrine.

 

Past presidents have argued that executive privilege is necessary to ensure frank and candid information exchange in the Executive Branch, and have generally used it to protect conversations and information provided to or from the president or, in some very limited circumstances, top presidential advisers.
 

Pushing the Boundaries Early On
Signs of President Bush’s broad interpretation of executive privilege appeared shortly after he first took office, beginning with two assertions of executive privilege blocking requests for Clinton-era documents. The first came in early 2001, when the conservative non-profit Judicial Watch submitted Freedom of Information Act (FOIA) requests to the Department of Justice for documents related to pardon applications considered by President Clinton.

 

The Justice Department withheld approximately 4,300 pages of responsive documents, claiming that they were exempt from production under the presidential communications and deliberative process privileges. Judicial Watch filed a lawsuit to obtain the documents and, on appeal, the court rebuked the Bush Administration’s attempt to expand the presidential communications privilege to documents that were not “solicited and received” by the president.

Shortly after the Judicial Watch case began, then-Chairman of the House Committee on Government Reform Dan Burton issued a subpoena to the Justice Department for memoranda relating to the Committee’s investigation of corruption allegations at the FBI’s Boston field office.

 

The Administration resisted the subpoena, and, as characterized by Chairman Burton,

“explained to the Chairman and Committee staff that the Administration wished to establish an inflexible policy to withhold from Congress all deliberative prosecutorial documents.”

In December 2001, President Bush invoked executive privilege and directed Attorney General John Ashcroft not to produce the subpoenaed documents.

 

Although the dispute was eventually resolved and the documents handed over to the Committee, the Committee report on the matter records that,

“it was clear that the Administration sought to establish a new restrictive policy regarding prosecutorial documents and that no demonstration of need by the Committee would be sufficient for the Justice Department to produce the documents.”

FBI’s Valerie Plame Leak Investigation
In early 2007, the House Oversight and Government Reform Committee opened an investigation into the leak of covert CIA agent Valerie Plame Wilson’s identity by White House officials.

 

The Committee began with a hearing on March 16, 2007, at which it heard testimony from Ms. Wilson and White House Security Office Director James Knodell.

 

Mr. Knodell testified,

• that his office never conducted an investigation into the leak of Ms. Wilson’s identity, due to the ongoing criminal investigation

• that senior White House officials had failed to report their knowledge of the leak, as required by Executive Order 12958

• that there were no administrative sanctions for White House officials as a result of the leak

On July 16, 2007, Chairman Henry Waxman wrote to Special Counsel Patrick Fitzgerald and requested documents from his investigation into the leak, including reports from FBI interviews of the President and Vice President.1304 Mr. Fitzgerald produced many of the requested documents but, at the request of the White House, withheld records of interviews of White House officials.

 

Chairman Waxman appealed to the Attorney General for an “independent judgment” to produce the documents and, following months of negotiations, the request was fulfilled in part.

Despite negotiations and repeated requests by Chairman Waxman, however, the Justice Department continued its refusal to produce the interview reports of the President and Vice President. On June 16, 2008, the Oversight Committee issued a subpoena to Attorney General Mukasey for those interview records. The return date was set for June 23, 2008. In response, the Justice Department wrote to the Committee on June 24, 2008, that it would not provide the subpoenaed documents and mentioned the possible executive privilege implications in the matter.

 

Chairman Waxman wrote to the Attorney General on July 8, 2008, informing him that the Committee would refrain from seeking the records of the President’s interview for the time, but reiterating the request for the Vice President’s interview report and informing him that the Committee would meet on July 16 to consider citing the Attorney General with contempt unless the documents were produced or a valid assertion of privilege was made.

On July 16, 2008, the Department of Justice informed the House Oversight and Government Reform Committee that, at the Attorney General’s request, the President had asserted executive privilege in response to that Committee’s subpoena for documents related to the FBI’s investigation of the leak.

 

Enclosed with the letter was a legal opinion written by Attorney General Mukasey for the President, arguing that the content of the subpoenaed documents fell “squarely within the presidential communications and deliberative process components of executive privilege,” and further contending that because the documents sought were from law enforcement files, the “law enforcement component of executive privilege” also applied. Chairman Waxman’s request for a privilege log describing the withheld documents was also refused.

In report approved by Oversight and Government Reform Committee Chairman Waxman and former Ranking Member Tom Davis,

“agreed that the President’s assertion of executive privilege over [the report of the FBI interview with the Vice President] was legally unprecedented and an inappropriate use of executive privilege.”

The Chairman and Ranking Member explained that the,

“Vice President had no reasonable expectation of confidentiality regarding the statements he made to Mr. Fitzgerald and the FBI agents,” and that the presidential communications privilege that has been carved out by the courts does not cover summaries of conversations provided to third parties.

They further rejected the President’s privilege claims on the basis that there is,

“no precedent in which executive privilege has been asserted over communications between a vice president and his staff about vice presidential decision-making,” pointing out the apparent inconsistency between the privilege claim at hand and the argument of David Addington, the Vice President’s Chief of Staff, that “the Vice President belongs neither to the executive nor the legislative branch.”

The Bush Administration’s invocation of the presidential communications component of executive privilege was far from surprising given the consistency with which it has defended the broad application of the privilege. However, it was Attorney General Mukasey’s argument for the application of a “law enforcement component of executive privilege” that took legal scholars by surprise.

 

Peter Shane, an expert on executive privilege at Ohio State University Moritz College of Law, called the claim “utterly unprecedented,” and one that he had never heard of before.

 

Mark Rozell, executive privilege expert at George Mason University, called the Administration’s claim “an argument to protect the White House’s own political interests and save it from embarrassment.”

 

The Committee’s bipartisan report refuted the notion of a law enforcement executive privilege claim, noting that the Attorney General did not cite any judicial decision recognizing it, and that the Department’s opinion memoranda that he cited applied only to open investigations, not the Special Counsel’s closed case.
 

EPA Investigation
In 2005, California requested that the Environmental Protection Agency (EPA) waive federal standards for greenhouse gas emission standards for cars on the grounds that its own state standards were more stringent.

 

Section 209(b) of the Clean Air Act requires the EPA to waive federal preemption of California motor vehicle emissions standards if California’s standards are, in aggregate, as protective of public health and welfare as federal standards.

 

After a nearly two-year delay, the EPA rejected the request. The House Oversight and Government Reform Committee began investigating allegations of political interference in the waiver decision in late 2007 and, through interviews with EPA staff and Associate Deputy Administrator Jason Burnett, learned that EPA career staff had unanimously communicated to the Administrator on multiple occasions that the waiver should be granted.

 

The Committee also learned that EPA Administrator Stephen Johnson was interested in granting the waiver until he communicated with the White House regarding the decision.

In early 2008, the Bush Administration was separately accused of improperly pressuring the Environmental Protection Agency to weaken certain proposed regulations affecting smog and greenhouse gas levels. The Clean Air Act established a Clean Air Scientific Advisory Committee to advise the EPA Administrator on setting national ambient air quality standards (measured by levels of ozone in the atmosphere).

 

The Advisory Committee and EPA career staff recommended amending the standards to more stringent levels, a recommendation echoed in the draft final rule submitted by EPA Administrator Johnson to the White House Office of Management and Budget (OMB) on February 22, 2008.

 

On March 11, 2008, just hours before the final rule was to be released, EPA staff learned that the rule was to be rewritten to implement a less stringent standard.1326 The next day, Susan Dudley, Administrator of the Office of Information and Regulatory Affairs at OMB, explained in a letter to EPA Administrator Johnson that the President had reviewed the proposed standards and concluded that the less stringent standard should be adopted.

On March 14, 2008, Chairman Waxman of the House Oversight and Government Reform Committee wrote to Administrators Johnson and Dudley to request documents relating to the ozone standards decision. Although some documents were produced, the EPA and OMB withheld many of the documents responsive to Chairman Waxman’s requests.

 

On April 9 and May 5, 2008, Chairman Waxman issued subpoenas to EPA Administrator Johnson for the outstanding documents related to EPA communications with the White House in both cases. Chairman Waxman also issued a subpoena to Susan Dudley for OMB documents related to the ozone standards regulation decision.

 

Because the EPA and OMB continued to withhold the majority of documents responsive to the subpoenas, the Oversight and Government Reform Committee scheduled a vote to hold Administrators Dudley and Johnson in contempt of Congress for June 20, 2008. The day of the scheduled vote, Chairman Waxman received letters from the EPA and OMB informing him that President Bush had asserted executive privilege over the disputed documents and the vote was cancelled so the Committee could review the privilege claims.

The June 20 letters asserting privilege both included a June 19, 2008, letter from Attorney General Michael Mukasey to the President regarding the basis for asserting executive privilege with respect to the Committee’s investigations, arguing that the documents “implicate both the presidential communications and deliberative process components of executive privilege.”

 

Upon review of the Attorney General’s analysis, the Committee rejected the privilege claims:

The President’s assertion of executive privilege...is expansive. It covers any communications that occurred within the White House, no matter how attenuated the connection between the staff authoring the communications and the presidential decision-making process.

 

At the same time, the Administration has barred a key EPA official from responding to Committee questions about these communications and has refused to provide the Committee basic information about the authorship and distribution of the documents that would enable the Committee to assess the merits of the privilege claim and whether further accommodations could be achieved. The assertion of executive privilege under these circumstances has stymied the Committee’s investigation of the waiver and ozone decisions.

 

For these reasons, the Committee finds that the President’s assertion of executive privilege is wrong and an abuse of the privilege.

On October 23, 2008, the House Oversight and Government Reform approved by voice vote a report rejecting the President’s privilege claims. No additional documents were produced by either the EPA or OMB in response to the subpoenas.
 

Investigation Into the U.S. Attorney Firings by the House and Senate Judiciary Committees
The most arguably protracted fight over executive privilege during the Bush Administration has stemmed from the House and Senate Judiciary Committees’ struggle to enforce subpoenas issued in the course of investigations into the U.S. Attorneys firings controversy that began in early 2007.1334

Before the Committees had even issued subpoenas, the President and other Administration officials made statements suggesting that executive privilege would be invoked in response to congressional requests for documents or testimony. In response, the House Judiciary Committee’s Commercial and Administrative Law Subcommittee held a hearing on March 29, 2007, titled “Ensuring Executive Branch Accountability.”

 

The Subcommittee examined executive privilege claims in the context of the U.S. Attorneys firings controversy and related issues. The discussion among the Subcommittee members and witnesses explored the contours of executive privilege and its potential use to block congressional inquiry, specifically as related to the appearance of presidential advisors for testimony before Congress.

During the hearing, Representative Hank Johnson (D-GA) asked what factors should be taken into account in balancing executive privilege against congressional oversight functions.

 

Panelist Beth Nolan, former White House Counsel to President Clinton, responded as follows:

First of all, I would like to say that no court has ever addressed this claim that former presidents have made, and this president seems to be making, that White House advisors are immune from being called to testify. There is no judicial decision on that. The judicial decisions we do have say that executive privilege involves balancing....

 

We have seen that courts may look, for instance, in a case such as this where I think there is no question that Congress has oversight authority with respect to these matters, then is Congress able to obtain the information in another way. That would be one question that you might look to.

Subcommittee Chair Sánchez asked the panelists if Congress needed to establish a likelihood of criminal wrongdoing in the case of the U.S. Attorney firings in order to overcome an assertion of the presidential communications privilege, or if “an indication of inefficiency or maladministration” would be sufficient.

 

Panelist Beth Nolan responded as follows:

"I certainly think so. If you have something that looks like obstruction of justice, an attempt to interfere with individual cases for reasons that really should be outside the authority of officials to do, then I think that is exactly the kind of thing.

 

You are talking then about issues, whether they are criminal obstruction of justice or whether it is simply questions about the administration of justice, impartial execution of prosecutorial discretion, questions that really go to the heart of the rule of law and our criminal justice system, then I would say that not only does Congress have the right to receive information relevant to that, but it has a responsibility.

 

That is what the American people look to Congress to do.”

As previously stated, despite numerous attempts to reach a compromise with the Administration and secure the voluntary production of the needed documents and testimony, the Committee was forced to issue subpoenas to former White House Counsel Harriet Miers and White House Chief of Staff and custodian of records Josh Bolten on June 13, 2007.

 

On the same day, the Senate Judiciary Committee also issued subpoenas for the White House documents as well as documents and testimony from Sara Taylor, former Deputy Assistant to the President and Director of Political Affairs.

 

On June 28, 2007, White House Counsel Fred Fielding wrote to Chairmen Conyers and Leahy, informing them that the President had decided to exert executive privilege with respect to the subpoenaed White House documents and had likewise directed Ms. Miers and Ms. Taylor not to produce any documents. The Committee later learned that the White House also directed Ms. Miers not to appear or testify before the House Judiciary Committee.

In the face of intransigence on the part of Administration officials to comply with the subpoenas as noted in Section 1, the full House passed the Judiciary Committee’s resolution to hold Harriet Miers and Josh Bolten in contempt of Congress on February 14, 2008, as well as a resolution authorizing the Judiciary Committee to file a lawsuit to obtain the subpoenaed documents and testimony.

 

As the Committee explained in its report on the Miers-Bolten contempt resolution, the Administration’s expansive claims of executive privilege were rejected on four grounds:

1. The privilege was not properly asserted because, despite requests from Chairman Conyers, there was never a directive personally signed by the President asserting executive privilege. In past privilege cases, the courts have stated that a personal assertion by the president is legally required and this principle has been recognized in previous House contempt proceedings.
    

2. The courts had previously held that a party asserting executive privilege in response to a subpoena for documents must produce a privilege log describing each document being withheld. Despite requests by Chairman Conyers that the White House produce a privilege log in an effort to reach a compromise in the matter, no such log was ever produced.
    

3. The presidential communications privilege – the specific form of executive privilege that covers communications by the president or his immediate advisors – did not apply to the information requested by the Committee. Although one court of appeals has extended executive privilege with respect to communications to or from some White House staff “in the course of preparing advice for the president” for a decision to be made by the president, the White House itself has maintained that President Bush never received any advice on, and was not himself involved in, the U.S. Attorney firings.
    

4. The compelling need of the House of Representatives to obtain the subpoenaed documents and testimony greatly outweighed the claims of executive privilege.

The White House’s claims of executive privilege and immunity from subpoena were met with similar disagreement from legal scholars and editorial boards. Constitutional lawyer and former Reagan Justice Department appointee Bruce Fein wrote,

“President Bush’s assertion of executive privilege to stymie the committee’s well-founded investigations is wildly misplaced.”

Another expert on constitutional law, Professor Erwin Chemerinsky of Duke University School of Law, wrote to Chairman Conyers:

From a constitutional perspective, the claims of executive privilege are not sufficient to overcome Congress’s constitutional responsibility to conduct meaningful oversight and to consider possible federal legislation. Simply put, this is a situation where the claim of executive privilege is weak and the need for congressional access to the information is strong.

In an editorial published on November 16, 2007, after the Committee had filed its report recommending that Harriet Miers and Josh Bolten be held in contempt but before the full House voted on the contempt resolutions, The New York Times cautioned:

The Bush Administration’s days are numbered. But the damage it has done to the balance of powers could be long-lasting. If Congress wants to maintain its Constitutional role, it needs to stand up for itself. A good place to start is by making clear that its legitimate investigative authority cannot be defied, and any who choose to do so will pay a heavy price.

Following the House’s passage of the contempt resolutions, Speaker of the House Nancy Pelosi referred the citations to the U.S. Attorney for the District of Columbia, “whose duty,” according to the statute that provides for the prosecution of contempt of Congress citations,

“it shall be to bring the matter before the grand jury for its action.”

On February 29, 2008, Attorney General Michael Mukasey responded to Speaker Pelosi that,

“the Department has concluded that the non-compliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”

In response to the Justice Department’s refusal to enforce the contempt citations, the Committee filed a civil action in the District of Columbia federal district court seeking a ruling that the Administration’s theories of executive privilege were legally unsound and the enforcement of the Committee’s subpoenas.

 

As stated in Section 1, Judge John Bates granted the Committee’s motion for partial summary judgment, ruling that the White House’s claims that Harriet Miers was immune from the congressional subpoena were invalid, and that the Administration owed the Committee a detailed listing of the documents being withheld.

 

Although Judge Bates was not asked to rule on the White House’s executive privilege claims, he did order the Administration to produce a detailed listing of the documents being withheld.

 

The Administration appealed the ruling, however, and the matter is now pending before the U.S. Court of Appeals for the District of Columbia. The Administration also successfully petitioned the appellate court for a stay of Judge Bate’s ruling pending the appeal, and as of the date of this Report, the White House has still not produced any documents in response to the Committee’s subpoena and Harriet Miers has not testified.

As discussed in Section 1 of this Report, the Judiciary Committee’s investigation into the U.S. Attorney firings led to an investigation of allegations of politically selective prosecutions. On May 22, 2008, the Committee subpoenaed former White House adviser Karl Rove to question him about allegations that he pressured the Justice Department to prosecute former Alabama Governor Don Siegelman and the broader U.S. Attorneys controversy.

 

On July 9, 2008, the day before Mr. Rove was scheduled to appear before the Commercial and Administrative Law Subcommittee, his attorney Robert Luskin informed Chairman Conyers that Mr. Rove would not comply with the subpoena, pursuant to a direction from the President.

 

In a letter to Mr. Luskin, also sent on July 9, White House Counsel Fred Fielding wrote that the White House had,

“been advised by the Department of Justice... that a present or former immediate adviser to the President is constitutionally immune from compelled congressional testimony about matters that arose during his or her tenure as a presidential aide and relate to his or her official duties.”

The White House argued that forcing the President to testify before Congress would violate the Executive Branch’s status as co-equal to Congress and the separation of powers – essentially that the President’s executive privilege protects him from any congressional subpoena.

 

The White House further claimed that a president’s advisers are an extension of the president himself – his “alter ego” – and that therefore forcing a close presidential adviser to testify would also violate separation of powers principles.

The Subcommittee on Commercial and Administrative Law met on July 10, 2008, and considered Karl Rove’s claim of executive privilege-related immunity.

 

Subcommittee Chair Sánchez ruled that, the claims were invalid because they were not properly asserted:

• because no court has ever held that presidential advisers are immune from compulsory process in any setting

• because the claims contradicted the practice of the Bush Administration and other administrations of allowing presidential advisers to testify before Congress

• because Mr. Rove had spoken publicly about the matters the Committee wished to discuss with him

• because the White House had previously stated that the President had no personal involvement in the matter, a critical element in a valid assertion of executive privilege

The Subcommittee upheld the ruling by a vote of 7-1.

 

On July 30, 2008, the Committee voted 20-14 to approve a report recommending that Karl Rove be cited for contempt of Congress by the full House of Representatives.

 

The Committee filed its report on September 15, 2008.

 

 

B. Withholding Documents or Testimony Without Formally Asserting Executive Privilege

Throughout the two terms of President George W. Bush, the Administration has on numerous occasions used threats of executive privilege or made public statements implying that some facet of executive privilege might apply, in order to stifle requests for information.

One of the Bush Administration’s earliest applications of the principles underlying executive privilege without a formal privilege assertion can be found in Vice President Cheney’s refusal to comply with a request by the General Accounting Office (GAO) for information related to the National Energy Policy Development Group (NEPDG), consisting of high-level federal officials led by Vice President Cheney, which was charged with recommending a proposal for a national energy policy.

 

Democrats in Congress were critical of the policy the group developed – worried that it simply called for increased drilling for oil and coal while ignoring the need for renewable energy sources – and also of the secrecy surrounding the NEPDG’s deliberative process.

 

On April 19, 2001, Reps. John Dingell and Henry Waxman, then-Ranking Members of the House Energy and Commerce and Government Reform Committees, respectively, asked the GAO to study the NEPDG; specifically, they wanted to know the extent to which the group consulted with representatives of energy corporations.

The Vice President’s office repeatedly denied attempts by GAO access to information related to the NEPDG, despite numerous attempts at accommodation by the GAO General Counsel and Comptroller General.

 

On February 22, 2002, the GAO “reluctantly” filed suit against Vice President Cheney, noting that it was,

“the first time that GAO [had] filed suit against a federal official in connection with a records access issue.”

The district court dismissed the case on procedural grounds on December 9, 2002.

Although the GAO did not appeal the District Court’s dismissal, the non-profit groups Sierra Club, Inc. and Judicial Watch filed suit against Vice President Cheney to obtain information related to the NEPDG meetings. The case eventually made its way to the Supreme Court as Cheney v. U.S. District Court.

 

As former Massachusetts Special Assistant Attorney General Joan Lukey wrote in The Washington Post:

Throughout the Cheney litigation, the Administration took the novel position that it would not assert “executive privilege” as grounds for withholding the information ... Instead, the White House insisted on relying on the somewhat amorphous (some might even say squishy) notion that the task force documents were protected because the vice president was operating pursuant to his “executive powers.”

 

The Administration therefore took the position that if it did not assert executive privilege and the vice president was carrying out the duties conferred on the executive by the Constitution, the documents relating to those duties did not have to be turned over -- and the courts did not have the right to review that decision.

After sending the case back to the appellate court, the Supreme Court advised the lower court to be “mindful of the burdens imposed on the executive branch in any future proceedings,” thereby implicitly rejecting the Bush Administration’s contention that the Vice President’s activities should not be subject to pretrial discovery at all.

 

Eventually, the appellate court concluded that because sub-groups of the NEPDG were not advisory committees subject to the Federal Advisory Committee Act, the Vice President did not have to disclose information concerning the identities of the energy lobbyists who participated in NEPDG meetings and the extent to which their views shaped the NEPDG’s policy recommendations.

At the same time, another battle raged over the Administration’s willingness to allow the testimony of top-level officials at the hearings held by the National Commission on Terrorist Attacks Upon the United States, commonly known as the 9/11 Commission. This dispute came to a head when, in early 2004, then-National Security Adviser Condoleezza Rice refused to testify publicly before the Commission.

 

According to her spokeswoman, Bush Administration attorneys requested that Dr. Rice’s testimony before the Commission, a body created by congressional mandate and therefore legislative in the eyes of the White House, would set a precedent for legislative branch oversight over executive branch staff.

 

Although the Administration did not directly assert executive privilege over the testimony, press reports and public statements by Commission and congressional officials indicated that similar concerns underlay the Administration’s resistance.

The White House’s argument in favor of keeping Dr. Rice’s conversations with the Commission behind closed doors was no doubt undercut by her frequent appearance in the media discussing subjects that would be covered in her testimony.

 

The Administration eventually reversed course and allowed Dr. Rice to testify, but in his letter explaining the reversal, White House Counsel Alberto Gonzales insisted,

“Dr. Rice’s public testimony... does not set, and should not be cited as, a precedent for future requests for a National Security Adviser or any other White House Official to testify before a legislative body.”

On the same day as the reversal, the Administration refused to allow Doug Badger, Special Assistant to the President for Health Policy, to testify before the House Ways and Means Committee in a hearing focusing on the cost of Medicare’s prescription drug program.

 

Echoing his earlier letters concerning Dr. Rice’s testimony before the 9/11 Commission, then-White House Counsel Alberto Gonzales wrote to Committee Chairman Bill Thomas,

“[i]t is longstanding White House policy, applied during administrations of both parties, that members of the White House staff should decline invitations to testify at congressional hearings.”

As then-Member Charles Rangel pointed out, however, White House officials from both the Bush and Clinton Administrations had in fact testified before congressional Committees.

 

Similar to the White House’s initial refusal to allow Dr. Rice’s testimony, President Bush made no formal assertion of executive privilege, but the argument by Mr. Gonzales was that public testimony by White House staff would have a chilling effect on a president’s ability to receive candid advice from his or her staff.

 

Ways and Means Ranking Member Rangel disagreed with the White House:

Executive privilege only applies when an official has had conversations directly with the President. In invoking executive privilege, we must assume that the topic of withholding these estimates was a topic of conversation between Mr. Badger and the President himself. In any event, accounts of conversations or exchanges between White House officials and the drug industry or members of Congress [as was the case with the testimony sought by the Committee from Mr. Badger] are clearly not a place where separation of powers applies.

In response to the White House’s refusal to allow the testimony, Democrats on the Ways and Means Committee attempted to have the Committee subpoena Doug Badger and another witness who was unavailable to testify at the requested time.

 

The Committee vote failed 23 to 16 along party lines and, under Republican leadership, the matter ended there.

The House Judiciary Committee has also had difficulty obtaining testimony from White House officials in matters over which the President has not formally asserted executive privilege. As noted in Section 4 of this Report, Chairman Conyers wrote to President Bush in advance of a July 12, 2007, Judiciary Committee hearing on the President’s July 2 decision to commute former Vice Presidential Chief of Staff Scooter Libby’s prison sentence.

 

He informed the President of the upcoming hearing and requested that President Bush decline to assert executive privilege and allow White House officials to testify before the Committee on the Libby clemency. Chairman Conyers cited President Clinton’s decision to allow top-level staff to testify before the House Government Reform Committee concerning the pardon of Marc Rich as well as President Ford’s testimony before the Judiciary Committee in 1974 about his decision to pardon President Nixon.

White House Counsel Fred Fielding declined Chairman Conyers’s request.

 

Although Mr. Fielding did not indicate that the President had asserted executive privilege, his letter discussed and cited an opinion memorandum written by Attorney General Janet Reno to advise President Clinton on the legal basis for a decision to exert executive privilege in response to a congressional inquiry on a pardon decision.

 

 

 

II. Improper Use of State Secrets and Other Authorities

 

A. Abuse of State Secrets

The state secrets privilege allows the Executive Branch to prevent the release of documents and information in litigation if disclosure would compromise national security.

 

The privilege was first recognized by the Supreme Court in U.S. v. Reynolds, and was derived from the president’s constitutional authority to protect the Nation. In the years following Reynolds, the state secrets privilege was used sparingly. Courts in turn were respectfully of the Executive’s judgment in these areas, and in the few state secrets cases that arose, rarely compelled disclosure over the government’s objection.

During the Bush Administration, however, invocation of the privilege has exploded. In its first six years, the Administration raised the privilege in almost 30 percent more cases per year than the prior administrations (and there is no reason to believe that the rate of invocation has slowed).

 

According to one report,

“[t]he government invoked the privilege in only four cases between 1953 and 1976, but it has been invoked more than 20 times since the September 11 terrorist attacks and at least five times” in 2006 alone.”

And beyond the simple increase in assertions, the Bush Administration has expanded the purposes for which it invokes the privilege.

 

Prior to the Bush Administration, the privilege was used to justify the government’s refusal to disclose information or to bar certain evidence from trial. Under President Bush, however, the Administration has urged that the privilege requires outright dismissal of sensitive lawsuit. Indeed, the Administration has argued for this sort of total dismissal in over 90 percent more cases than previous administrations.

Under the Bush Administration, state secrets doctrine has been invoked in seeking dismissal of lawsuits in cases involving:

1. extraordinary rendition

2. the warrantless wiretapping program

3. post-9/11 detention of American citizens

4. lawsuits brought by former federal employees alleging racial discrimination and retaliation, as discussed below

 

Extraordinary rendition
As noted in Section 2, the state secrets doctrine has been invoked in two cases involving extraordinary rendition of terrorism suspects. In the first case, a German national named Khalid El-Masri sought compensation after having been reportedly abducted by a European police force, transferred to the Central Intelligence Agency, and then taken to Afghanistan and tortured.

 

Mr. El-Masri was eventually released when it became clear that he was an innocent man and this was a case of mistaken identity. A federal judge granted the Administration’s request to dismiss Mr. El-Masri’s case on state secrets grounds, accepting its assertion that allowing the litigation to proceed would compromise national security. In October 2007, the Supreme Court declined to hear the matter on appeal.

 

Mr. El-Masri wrote of his experience attending the appellate court’s argument in his case:

Although I did not understand all of the arguments made by the lawyers, I was impressed by the dignity of the proceedings and by the respect for the rule of law that I have always associated with America. I’m deeply disappointed to find that this same legal system denies me the chance to fully present my case...

During my visit in November, many Americans offered me their personal apologies for the brutality that had been perpetrated against me in their name. I saw in their faces the true America, an America that is not held captive by fear of unknown enemies and that understands the strength and power of justice. That is the America that, I hope, one day will see me as a human being — not a state secret.

The state secrets doctrine also formed the basis of the dismissal of a lawsuit brought by Canadian Maher Arar, whose case is also discussed in Section 2. Mr. Arar’s request for civil compensation based on his rendition to Syria, where he was tortured, was dismissed by a New York-based federal court, although the matter has recently been re-argued.

In comments following the dismissal of his suit, Mr. Arar said,

“[i]f the courts will not stop this evil act, who is going to stop this administration?... The court system is what distinguishes the West from the Third World. When a court will not act because of ‘national security,’ there is no longer any difference between the West and the Third World.”

Warrantless Wiretapping Program
As noted in Section 2, the Bush Administration has used the state secrets doctrine to urge that cases challenging its domestic warrantless surveillance programs be dismissed.

In the Al-Haramain case, the Muslim charity Al-Haramain Islamic Foundation argued that it was the subject of illegal warrantless surveillance by the government. The basis for this claim, in part, was a document accidentally produced to the Foundation’s lawyers indicating that their conversations with Foundation officials had been monitored by the government.

 

Because of the accidental production, the FBI later repossessed this document. Then the Administration argued that the Foundation’s case should be dismissed because it could not prove that it had been monitored. When the Foundation argued that the repossessed document proved it had been monitored, the Administration then argued that the state secrets privilege barred any mention of the document and refused to release it or confirm its contents.

 

The Appeals Court hearing the case ultimately dismissed the Foundation’s request for the critical document.

Employee lawsuits
The state secrets doctrine was also relied on by the Bush Administration to prevent whistleblower Sibel Edmonds from challenging her dismissal from the FBI’s translation division. Ms. Edmonds, hired for her proficiency in Middle Eastern languages, was fired less than a year after she reported numerous deficiencies in the translation process to her supervisors, including poorly translated documents from before September 11, 2001, that had been relevant to the impending attacks.

 

After raising concerns about these and other issues, Ms. Edmonds was fired. When she sued to recover her job or compensation for what she was alleged was her improper dismissal, the Administration successfully argued that the state secrets privilege barred the suit.

She was also prevented from testifying in a civil suit brought by families of 9/11 victims. The state secrets doctrine was also invoked to obtain a dismissal of a racial discrimination case brought by former CIA agent Jeffrey Sterling against George Tenet and other CIA officials.

The Constitution Subcommittee held a hearing on January 29, 2008, concerning the issue of the misuse of the state secrets doctrine.

 

Testimony was received from:

• H. Thomas Wells, Jr., President-Elect, American Bar Association

• Judith Loether, daughter of one of the victims of the plane crash at issue in U.S. v. Reynolds

• the Honorable Patricia Wald, retired Chief Judge for the U.S. Court of Appeals for the D.C. Circuit

• Patrick Philbin, partner at Kirkland & Ellis

• Kevin Bankston, Senior Attorney, Electronic Frontier Foundation

Ms. Loether testified about the death of her father, an RCA engineer working under Air Force contract, when she was just seven years old.

 

She testified that she had not known much about the accident or the lawsuit involving her family’s quest for compensation that had ended in the United States Supreme Court. And she explained how, years later, doing a random internet search for information on her father’s death, she had come across the supposedly secret report that the Supreme Court had allowed the government to conceal, which actually contained no national security information at all.

 

Ms. Loether explained:

The more I understood what had happened to my mother and why, the more betrayed I felt. It seemed that the case that allows the Executive to keep its secrets was, at its very foundation, a gross overstatement by the government to forward its own purposes; to get themselves a privilege. At what cost? The cost was truth and justice and faith in this government.

Most of the witnesses agreed that, given the increased use of the state secrets privilege to seek dismissal of cases, it was necessary to craft solutions that would allow for greater judicial review of privilege claims and the requisite flexibility to fashion appropriate orders.

 

In the words of Dr. Louis Fisher, Specialist in Constitutional Law with the Law Library of the Library of Congress:

Assertions are assertions, nothing more. Judges need to look at disputed documents and not rely on how the executive branch characterizes them. Affidavits and declarations signed by executive officials, even when classified, are not sufficient....What is at stake is more than the claim or assertion by the executive branch regarding state secrets. Congress needs to protect the vitality of a political system that is based on separation of powers, checks and balances, and safeguards to individual rights.

 

B. Abuse of Other Authorities

Above and beyond the misuse of the executive and state secrets privileges, the Bush Administration has used a variety of other authorities to prevent Congress and the American public from obtaining access to information regarding its conduct.

 

Although the Judiciary Committee was not able to conduct a comprehensive review of all of these matters through oversight hearings, it is useful to briefly inventory some of the more salient concerns that have come to light with respect to classification authorities, the Freedom of Information Act, the Presidential Records Act, and the Vice President’s Office.
 

Classification
Since 1940, Executive Orders have governed federal policy on the classification of documents pertaining to national security. There are generally three levels of classification – “top secret,” “secret,” and “confidential,” in order of exclusivity. In addition, certain federal agencies have been allowed to create their own internal classification procedures.

 

The Clinton Administration, under Attorney General Janet Reno, favored a policy of transparency.

 

President Clinton’s Executive Order 12958 promoted disclosure by, among other things,

• * limiting the duration of classification in most cases to 10 years

• creating a system for automatically declassifying historical documents of significance 25 years or older

• establishing a system for challenging classification designations, as well as an appeals process for those decisions

• instilling a presumption towards lower classification or non-classification in situations where there was doubt as to the proper level of classification

As a result, under the Clinton Administration, the Executive Branch declassified nearly ten times as many documents as the historical average.

On March 25, 2003, President Bush issued Executive Order 13292, revising the Clinton order and reversing many of its key policies in ways that encouraged excessive classification and discouraged appropriate declassification.

 

Some of the key differences between the two orders include:

• The Bush order deleted the sections in the Clinton order resolving doubtful classifications in favor of lower or non-classification, allowing federal officials to classify documents with a dubious need for secrecy.

• Where the Clinton order used 10 years as a default duration for most documents, the Bush Administration allowed for an initial classification period of 25 years. While the Clinton order limited extensions to ten-year periods, the Bush order has no limit on extensions.

• Under the Clinton order, documents 25 years old or more deemed by the Archivist of the United States to be of historic value were automatically declassified, unless the controlling agency head determined that their release “should” result in one of several specific harms. The Bush order changed the operative standard from “should” to “could,” thus dramatically weakening the standard.

• The Bush order strengthened other standards in favor of withholding. Portions of the Clinton order which had stated that information in specified substantive categories “may” be classified were revised to read that such information “shall be” classified.

In addition to developing general rules favoring classification, the Bush Administration has used its classification authority in numerous instances to protect against disclosure of potentially unlawful or inappropriate activities.

 

For example, the White House attempted to retroactively classify parts of the Joint Congressional Intelligence Committee’s report on its inquiry into the 9/11 attacks that had already been made public, including excerpts from the FBI’s July 2001 Phoenix flight-school memo previously published elsewhere, the names of senior Administration officials, and information on anti-terror intelligence previously disclosed in public testimony.

 

The Bush Administration also sought to block the release of the Joint Congressional Intelligence Committee’s report. Senator Bob Graham, Chairman of the Senate Intelligence Committee at the time of the report’s release, also alleged that the Bush Administration made politically-motivated classification decisions when it shielded portions of the Joint Committee’s report that raised suspicions of possible support for some of the 9/11 hijackers by officials in Saudi Arabia.

The Bush Administration also attempted to limit the access Members of Congress had to classified information needed to carry out their oversight and legislative duties.

 

On October 5, 2001, President Bush issued a memorandum to the heads of the State, Treasury, Defense and Justice Departments, as well as the Directors of the FBI and CIA, instructing that the only Members who could receive briefings regarding classified or sensitive law enforcement information were the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the two Intelligence Committees–a group that is commonly known as the “gang of eight.”

 

Members of both parties in both houses of Congress decried the new policy as too restrictive and the House Defense Appropriations Subcommittee postponed a scheduled markup of a $318 billion defense spending bill until the new directive was reversed. Although the President responded to the outcry by easing the restrictions and allowing additional members to receive classified briefings, disputes between Congress and the Executive Branch over the release of classified information continued.

The same pattern followed with other classified information needed for effective congressional oversight of the Administration’s national security operations. Key legal memoranda and other documents were withheld from Members and cleared staff regarding the domestic warrantless surveillance program, even while Members were being pressed by the Administration to review and revise that program.

 

As noted in Section 2 of this Report, these materials were eventually provided, but only when it became clear that Congress would not provide the Administration with desired legislation without gaining this access.

 

Similarly, numerous Office of Legal Counsel legal opinions and memoranda dealing with issues of presidential power, including those regarding the Administration’s interrogation programs and its legal views on the hostilities in Iraq were withheld despite requests and subpoenas from both House and Senate Committees, even where the memoranda were not classified and even were they had been superceded or revoked.

 

Eventually, some access was gained to these materials, but only after burdensome negotiations and the scheduling of possible contempt votes in the House Judiciary Committee and the issuance of a subpoena for Attorney General Mukasey’s personal testimony on the withholding before the Senate Judiciary Committee.

In addition, on May 9, 2008, the White House issued a “Memorandum for the Heads of Executive Departments and Agencies on the Sharing of Controlled Unclassified Information.”

 

This memorandum introduced “Controlled Unclassified Information” as a new government category that replaced “Sensitive but Unclassified.” Although the memorandum explicitly states that the use of the “controlled unclassified information” label “may inform but [does] not control” the decision to disclose under FOIA, lower-level staff, seeing the label on responsive documents, may instinctively treat it as protected and withhold it from disclosure.

The Bush Administration also used classification to hide the facts of potentially illegal activities in its terrorist detention and interrogation programs. The Executive has apparently classified all statements made by terrorism suspects in detention, however innocuous. Thus, conversations between prisoners and their attorneys were presumptively classified, even if the information would assist in preparing the client’s defense.

 

The Defense Department has also classified a variety of innocuous information from conversation and correspondence with prisoners, including poetry.

Classification procedures have also been used to withhold critical information from defense counsel in cases involving suspected terrorists. In military commission proceedings against Omar Khadr, the commission reportedly issued secret orders preventing Mr. Khadr’s counsel from learning the names of the witnesses against him, thereby limiting his counsel’s ability to provide a full and vigorous defense.

 

In a terrorism prosecution case against Dr. Ali al-Tamimi, a D.C.-area professor convicted of inciting terrorism as part of the Virginia Jihad Network, federal intelligence agencies have made a series of filings secret from both prosecution and defense, prompting the judge in the case, Leonie M. Brinkema, to state,

“I am no longer willing to work under circumstances where both the prosecuting team and defense counsel are not getting any kind of access to these materials.”

In addition, The Washington Post obtained an order issued by Judge Stephen R. Henley, the Army colonel tasked with overseeing the proceedings against five men accused of orchestrating the terrorist attacks of September 11, 2001, that imposed broad classification rules on information related to the 9/11 trials.

 

In a story published January 7, 2009, the newspaper reported that the order, which remains unavailable to the public, in part states:

...any document or information including but not limited to any subject referring to the Central Intelligence Agency, National Security Agency, Defense Intelligence Agency, Department of State, National Security Council, Federal Bureau of Investigation, or intelligence agencies of any foreign government, or similar entity, or information in the possession of such agency, shall be presumed to fall within the meaning of ‘classified national security information or document’ unless and until the [senior security adviser] or Prosecution advises otherwise in writing.

The order also presumptively classifies “any statements made by the accused” and allows the court to classify information that is already publicly available, such as testimony regarding the CIA’s acknowledged waterboarding of Khalid Sheik Mohammed, one of the defendants in the case. 

 

Jennifer Daskal, senior counter-terrorism counsel at Human Rights Watch, called the rules,

“little more than a thinly disguised attempt to classify evidence simply because it might be embarrassing or unlawful,” and warned, “[i]f these rules applied in all cases, there would be no such thing as an open trial in America.”

FOIA Requests
The Freedom of Information Act (FOIA) was enacted on the premise that every citizen has the right to access federal agency records or information.

 

The Bush Administration has sought to limit its exposure under FOIA in several respects:

• An October 12, 2001, directive from then-Attorney General Ashcroft issued new guidelines for responding to FOIA requests. It was a reversal of the Clinton Administration’s policy, which instructed agencies to take a broad view of their obligations under FOIA – to favor release of information unless harm would result from disclosure. In contrast, the Ashcroft directive instructed heads of federal agencies to identify reasons to deny access to information by invoking one of the Act’s exemptions, even if no harm would result from disclosure.
   

• On March 19, 2002, Andrew Card, then-White House Chief of Staff, issued a memorandum advising executive departments and agencies to use FOIA exemptions to withhold “sensitive but non-classified” information. The memo also encouraged its recipients to re-classify certain types of unclassified or previously declassified information.
   

• In contravention of the OPEN Government Act of 2007, President Bush, in his proposed 2009 budget, transferred the office of the FOIA Ombudsman from the National Archives, an independent federal entity, to the Department of Justice, which is part of the Executive Branch and ultimately supervised by the Attorney General, a presidential appointee.

   

  Congress had created the position in response to the Administration policies designed to limit the volume of documents produced in response to FOIA requests. The transfer was initiated by the Vice President’s office after it had engaged in an escalating series of confrontations with the National Archives over the Vice President’s obligations to report his possession of classified information.

Presidential Records Act
The Bush Administration has moved to curtail its exposure under the Presidential Records Act, which changed the legal ownership of presidential records from private to public and established a new statutory framework under which presidents must manage their records:

• On March 23, 2001, then-White House Counsel Alberto Gonzales directed the National Archives not to release to the public 68,000 pages of records from the Reagan Administration that academic scholars had requested and that archivists had determined posed no threat to national security or personal privacy.

   

  The Presidential Records Act required those documents to become available January 20, 2001–twelve years after President Reagan left office.

   

• When historians objected to the Gonzales directive, stating that it undermined the Presidential Records Act, President Bush issued Executive Order 13233. This order allows former presidents and vice presidents, or their representatives, to bar release of documents by claiming one of numerous privileges.

   

  Contrary to prior law, the order prohibits the Archivist of the United States from rejecting a former president’s claim of privilege. The order also allows the current president to attempt to block release of a former president’s records even if such action subverts the former president’s wishes.

Vice President’s Office
The Vice President’s office has sought to limit its obligations to accountability and transparency:

• After declining to provide reports on his office’s possession of classified data to the National Archives and Record Administration in compliance with President Bush’s 2003 executive order, Vice President Cheney had his staff block an attempt by the Archives’ Information Security Oversight Office to perform an on-site audit. Vice President Cheney then attempted to have the executive order amended and have the investigating office at the National Archives eliminated.
   

• Vice President also took the position that, given his duties as tiebreaker in the Senate, the Office of the Vice President is actually part of the legislative branch, and not subject to executive orders.
   

• In response to a Senate Judiciary subpoena for documents relating to the warrantless wiretapping program, the Office of the Vice President again drew a distinction between it and the Executive, responding that the “Committee authorized the chairman to issue subpoenas to the Executive Office of the President and the Department of Justice, but did not authorize issuance of a subpoena to the Office of the Vice President.”
   

• In a December 8, 2008, filing as part of a lawsuit over enforcement of the Presidential Records Act requirements, Vice President Cheney asserted that he “alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law.”

 

 

III. Manipulation and Misuse of Intelligence
 

Considerable evidence exists in the public record indicating that President Bush and senior members of his Administration sought to manipulate and misuse intelligence in the lead-up to the Iraq War. Much of this information is included in the previous report prepared for Mr. Conyers, The Constitution in Crisis.

 

As a threshold matter, as noted in that report, the 2000 presidential election focused on many issues relating to domestic and foreign policy.

 

However, the topic of Iraq was virtually unmentioned in the campaign. In a presidential debate with then-Vice President Al Gore, then-presidential candidate George W. Bush emphasized that he would be careful about using troops for “nation-building” purposes and that he would not launch a pre-emptive war because he believed the role of the military was to “prevent war from happening in the first place.”

 

At the same time, some future members of the Bush Administration, including high-ranking officials such as Vice President Richard Cheney, Defense Policy Board Advisory Committee Chairman Richard Perle and Deputy Defense Secretary Paul Wolfowitz were part of this group, were waiting for war with Iraq.

Immediately after the September 11 attacks, President Bush and members of his Administration displayed an immediate inclination to blame Iraq.

• The President asked counterterrorism adviser Richard Clarke to determine if Saddam Hussein is “linked in any way”

• White House officials instructed General Wesley Clark to state that the attack was “connected to Saddam Hussein”

• Undersecretary of Defense Douglas Feith proposed that the U.S. select a “non al-Qaeda target like Iraq.”

Just a few months after the attacks and over a year prior to the U.S. invasion of Iraq, the Vice President appeared on Meet the Press on December 9, 2001, and made a connection to the American public:

“Well, what we now have that’s developed since you and I last talked, Tim [Russert], of course, was that report that’s been pretty well confirmed, that [Mohammed Atta, one of the hijackers]... did go to Prague and he did meet with a senior official of the Iraqi intelligence service in Czechoslovakia last April, several months before the attack.”

In his January 29, 2002, State of the Union Address, the President remarked that countries like Iraq, Iran and North Korea,

“constitute an axis of evil” and “pose a grave and growing danger.” The President continued, “I will not wait on events, while dangers gather."

On June 1, 2002, during a speech at West Point, President Bush formally enunciated a doctrine of preemptive military action that would soon be used against Iraq.

It was also around this time that Vice President Cheney and his then-Chief of Staff Scooter Libby began making a series of unusual trips to the Central Intelligence Agency (CIA) to discuss Iraq intelligence.

 

As early as October 2002, various U.S. military officials, intelligence employees, and diplomats charged that the Bush Administration put intelligence analysts under intense pressure to produce reports supporting the White House’s argument that Saddam Hussein posed an immediate threat and that preemptive military action was necessary.

 

One anonymous official stated at the time,

“[a]nalysts at the working level in the intelligence community are feeling very strong pressure from the Pentagon to cook the intelligence books.”

At the same time, the President’s public statements asserted a reluctance to use military force in Iraq.

 

He assured the public that he had not made up his mind to go to war with Iraq and that war was a last resort.1447 However, contrary to these public statements, the Bush Administration formed the White House Iraq Group (WHIG) in August 2002 in an apparent effort to bolster public support for war with Iraq.

 

Then, in an August 26, 2002 speech to the Veterans of Foreign Wars National Convention, Vice President Cheney began to make the case for war against Iraq when he declared,

“[t]he Iraqi regime has in fact been very busy enhancing its capabilities in the field of chemical and biological agents. And they continue to pursue the nuclear program they began so many years ago.” In this speech Vice President Cheney went on to say “we know Saddam has resumed his efforts to acquire nuclear weapons.”

The Bush Administration buttressed their claim that Iraq had a vigorous nuclear weapons program based on statements that Saddam Hussein had sought to acquire aluminum tubes for use as centrifuges to enrich uranium.

 

On September 8, 2002, – after leaked, classified, and misleading information about the aluminum tubing had been reported in the media – Vice President Cheney and National Security Advisor Condoleezza Rice both appeared on television to argue and confirm that the tubes were part of Iraq’s aggressive nuclear weapons program.

 

The claims concerning the tubes appear to have been based on the views of a single CIA analyst known in press accounts as “Joe.”

 

As The New York Times reported,

“[s]uddenly, Joe’s work was ending up in classified intelligence reports being read in the White House. Indeed, his analysis was the primary basis for one of the agency’s first reports on the tubes, which went to senior members of the Bush Administration on April 10, 2001.”

Shortly thereafter, the Administration made further alarming and sensational claims about the danger posed to the United States by Iraq, including in a September 12, 2002, address by President Bush to the United Nations, and began to press forward publicly with preparations for war, calling Iraq a “grave and gathering danger.”

 

President Bush implied that the Iraqi government would supply WMDs to terrorist when he said,

“[a]nd our greatest fear is that terrorist will find a shortcut to their mad ambitions when an outlaw regime supplies them with the technologies to kill on a massive scale. In one place – in one regime – we find all these dangers.”

The President reiterated Vice President Cheney’s declarations that Iraq had an ongoing nuclear weapons program as well as statements about the countries capacity to produce chemical weapons. In the days following the President’s speech to the United Nations, Iraq delivered a letter to U.N. Secretary-General Kofi Annan stating that it would allow the return of

U.N. weapons inspectors without conditions. But on September 18, President Bush discounted Hussein’s offer to let U.N. inspectors back into Iraq as a ploy.

 

President Bush commented on September 25, 2002,

“[y]ou can’t distinguish between al Qaeda and Saddam when you talk about the War on Terror.”

On September 27, 2002, Defense Secretary Rumsfeld claimed that he had “bulletproof” evidence of ties between Saddam and al Qaeda.

Shortly before the congressional vote on authorization for the war in Iraq in October, 2002, Members of Congress sought and obtained a National Intelligence Estimate (NIE), the coordinated assessment of the Intelligence Community on Iraq. The NIE was made available to Members of Congress, but not released to the public until July 18, 2003, and then only in part.

 

Regarding the NIE, Senator Richard Durbin of Illinois subsequently stated the classified information he had seen did not support the Bush Administration’s portrayal of the Iraqi threat.

“It's troubling to have classified information that contradicts statements made by the Administration,” Durbin said. “[t]here's more they should share with the public.”

In an October 7, 2002, speech in Cincinnati, shortly before the congressional vote to authorize military action, the President stated:

“We’ve learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases... We know that Iraq and al Qaeda have had high-level contacts that go back a decade.”

On October 11, 2002, Congress approved a joint resolution for the use of force in Iraq. Based on the intelligence findings in the National Intelligence Estimate provided to Congress by the Administration, the resolution stated that Iraq posed a continuing threat to the United States by, among other things, actively seeking a nuclear weapons capability.

The President’s focus then moved on to the United Nations in an effort to persuade the U.N. to approve renewed weapons inspections in Iraq and sanctions for noncompliance. Once again, the President asserted his reluctance to take military action.

 

Upon signing the resolution, the President stated,

“I have not ordered the use of force. I hope the use of force will not become necessary.”

On November 8, 2002, the United Nations Security Council adopted U.N. Resolution 1441, which stipulated that Iraq was required to readmit U.N. weapons inspectors under more stringent terms than required by previous U.N. Resolutions.

On January 27, 2003, the International Atomic Energy Agency (IAEA) indicated that the Bush Administration’s claim that aluminum tubes being delivered to Iraq were part of an Iraqi nuclear weapons program was likely false.

 

In the wake of this claim being discredited, President Bush informed the country in his State of the Union address on January 28, 2003,

“[t]he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

On February 5, 2003, Secretary of State Colin Powell took the Bush Administration’s case to the United Nations Security Council. In a presentation to the United Nations, Secretary Powell charged, among other things, that Iraq had mobile production facilities for biological weapons.

 

Secretary of State Powell stated:

“I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al Qaeda.”

Secretary Powell also said that,

“[w]e are not surprised that Iraq is harboring Zarqawi and his subordinates. This understanding builds on decades-long experience with respect to ties between Iraq and al Qaeda.”

Following the visit to the United Nations, the Administration indicated its readiness and enthusiasm for going to war. Vice President Cheney made an appearance on Meet the Press and stated that the war would not be long, costly or bloody because the U.S. would “be greeted as liberators.”

 

On March 18, 2003, the President submitted a letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate informing the Congress of his determination that diplomatic and peaceful means alone would not protect the Nation or lead to Iraqi compliance with United Nations demands.

 

Two days later, the President launched the preemptive invasion.

A little more than a month into the invasion, President Bush landed aboard the USS Abraham Lincoln and, standing beneath a massive banner reading “Mission Accomplished,” he stated that major combat operations in Iraq had ended. However, it became immediately evident that this declaration of victory was premature.

On January 28, 2004, head of the Iraq Survey Group David Kay testified before the Senate Armed Services Committee that there was no evidence of participation by either Saddam Hussein or his principal henchmen in the WMD-sharing with al Qaeda or any other terrorist organizations.

 

Dr. Kay also reported the Iraq Survey Group did not find evidence that the aluminum tubes were intended for nuclear use and that,

“based on the evidence that was collected... it’s more probable that those tubes were intended for use in a conventional missile program, rather than in a centrifuge program.”

Amid growing evidence that the case for war was faulty, the Administration sought to preempt inquiries into the manipulation of intelligence by launching limited internal investigations.

 

On February 6, 2004, President Bush created the Robb-Silberman Commission, which later found that the intelligence community was wrong in almost all of its pre-war judgments about Iraq’s weapons of mass destruction. However, this Commission was specifically prohibited from examining the use or manipulation of intelligence by policymakers.

On March 16, 2004, the Democratic staff of the U.S. House Committee on Government Reform submitted a report to Ranking Member Henry A. Waxman. This report, titled “Iraq on the Record: the Bush Administration’s Public Statements on Iraq,” details public statements made by senior Bush Administration officials regarding policy toward Iraq.

 

The report indicates that,

“five officials made misleading statements about the threat posed by Iraq in 125 public appearances. The report and an accompanying database identify 237 specific misleading statements by the five officials.”

In May 2004, Bryan Burrough wrote in “The Path to War,” an article published in Vanity Fair magazine, that Bush Administration officials used repeated questioning of analysts’ work and re-tasking of the same assignments to obtain intelligence assessments that would fit the Administration’s policy goals.

 

This dynamic was corroborated by Richard Kerr, a former high-level CIA analyst who was brought out of retirement to conduct the agency’s classified internal review of pre-war intelligence on Iraq and how it was used by the White House. Mr. Kerr reported,

“There were people who felt there was too much pressure. Not that they were being asked to change their judgments, but they were being asked again and again to re-state their judgments – do another paper on this, repetitive pressures. Do it again.”

Eventually the CIA Ombudsman reported that several analysts he spoke with in the preparation of a June 2002 report on the CIA’s analysis of connections between Iraq and al Qaeda,

“mentioned pressure and gave the sense that they felt the constant questions and pressure to reexamine issues were unreasonable.”

On June 16, 2004, the National Commission on Terrorist Attacks Upon the United States (9-11 Commission) held the first session of it its twelfth and final hearing, focusing on the September 11th plot.

 

At that hearing, Commission staff reported on its investigation into the Vice President’s allegations of meetings between Mohammed Atta and an Iraqi intelligence official in Prague, concluding,

“we do not believe that such a meeting occurred.”

The Commission cited FBI photographic and telephone evidence; Czech and U.S. investigations; and reports from detainees, including the Iraqi official with whom Atta was alleged to have met.

 

Douglas MacEachin, a member of the 9/11 Commission staff and former Deputy Director of Intelligence at the CIA, also testified that contacts between Iraq and al Qaeda did not constitute a,

“collaborative relationship,” and that the staff had “found no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.”

These findings were repeated in the final report of the 9/11 Commission, published on July 22, 2004.

On July 7, 2004, the Senate Select Committee on Intelligence released its first report in a series on intelligence in the lead-up to the Iraq War. The Committee’s investigation reviewed over 30,000 pages of intelligence assessments and source data as well interviews with over 200 officials in the Intelligence Community (IC).

 

Among other things, the Senate Select Committee’s 2004 Report on Pre-War Intelligence confirmed CIA assessments that “there was no evidence proving Iraqi complicity or assistance in an [al Qaeda] attack” and that contacts between the two “did not add up to an established formal relationship.”

 

This report, along with other available information, largely rebutted Bush Administration claims that Iraq had acquired aluminum tubes for use in developing nuclear weapons.

 

The Senate Intelligence report revealed that,

“the information available to the intelligence community indicated that these [aluminum] tubes were intended to be used for an Iraqi conventional rocket program and not a nuclear program.”

The report found that the Energy Department’s contradictory conclusions to the CIA were published on May 9, 2001, in the Energy Department’s Daily Intelligence Highlight on Intelink, a website used by the American intelligence community and the White House. Senate Intelligence further found that Defense Department experts also relayed their findings that the aluminum tubes corresponded to the tubes required for rocket use and not nuclear weapon production prior to the Administration’s September 2002 public statements.

As the war continued into 2005, with U.S. casualties approaching 1,500, Iraq held elections on January 30. The Administration heralded the elections as a symbol of freedom and as an event which validated the initial invasion. By that point, however, the reason for attacking Iraq had shifted from an imminent threat of weapons of mass destruction; to combating terrorism after the September 11, attacks; to regime change; and eventually to promoting democracy.

While evidence and accounts of Administration insiders strongly suggested a predetermination to go to war and the manipulation of intelligence to justify it, that evidence and those accounts were attacked by Administration officials as inaccurate or biased.

 

Then, on May 1, 2005, the Sunday London Times published the first in a series of important documents known as the “Downing Street Minutes.” The Downing Street Minutes (DSM) are a collection of classified documents, written by senior British officials during the spring and summer of 2002, which recounted meetings and discussions of such officials with their American counterparts focusing on the U.S. plan to invade Iraq.

 

The Downing Street Minutes provide documentary evidence that in the spring and summer of 2002, it was understood by the Blair government that the Bush Administration had irrevocably decided to invade Iraq.

 

These documents indicate:

• that President Bush had told Prime Minister Blair, “when we have dealt with Afghanistan, we must come back to Iraq” (Fall, 2001)

• that “Condi’s enthusiasm for regime change is undimmed” (March 14, 2002)1491; that the U.S. has “assumed regime change as a means of eliminating Iraq’s WMD threat” (March 25, 2002)

• that “Bush wanted to remove Saddam through military action, justified by the conjunction of terrorism and WMD”

• that “the intelligence and facts were being fixed around the policy” (July 23, 2002).

The Downing Street Minutes generated significant media coverage in Great Britain in the lead up to the British elections, but initially received very little media attention in the United States.

 

This circumstance began to change when, on May 5, 2005, Congressman Conyers – then the Ranking Member of the House Judiciary Committee – along with 87 other Members of Congress (eventually 121), wrote to the President demanding answers to the allegations presented in the DSM.

 

In his letter, Representative Conyers questioned the President on whether there,

“was there a coordinated effort with the U.S. intelligence community and/or British officials to ‘fix’ the intelligence and facts around the policy.”

On June 16, 2005, Rep. Conyers convened the first proceeding in the United States Congress to address the serious charges raised in the Minutes. When the Republican leadership of the House refused to allow a formal hearing room for this proceeding, the meeting was held in the Capitol basement.

Four witnesses appeared at this proceeding: Ambassador Joseph C. Wilson, activist Cindy Sheehan, who lost her son Casey in the Iraq War and founded the Gold Star Families for Peace, former CIA analyst Ray McGovern, and attorney John Bonifaz.

 

Ambassador Wilson explained the importance of the matter:

[T]he most solemn decision a government in our democracy ever has to make is that decision to send our soldiers to die and to kill in the name of our country. In making that decision, we deserve a debate based on facts, not on information that is thrown into the debate, not because it is true, but because it supports a political decision that has already been made.

After this hearing, Mr. Conyers and other Judiciary Committee Members personally delivered to the White House a letter asking President Bush when he decided to attack Iraq and a petition signed by over 500,000 Americans. The President’s refusal to answer the Members’ questions prompted the Judiciary Committee Democratic staff’s investigation, culminating in the publication of The Constitution in Crisis in August, 2006.

The following Congress, on June 5, 2008, the Senate Select Committee on Intelligence (SCCI) completed the second phase of its investigation into the manipulation of intelligence in the lead-up to the March 2003 invasion of Iraq. That day, the Committee released its report detailing prewar statements by Bush Administration officials misrepresenting intelligence on Iraq and the threat it represented to the U.S. on numerous occasions.

The Senate Intelligence Committee concentrated its analysis on “statements that were central to the nation’s decision to go to war.”

 

The report examined five important speeches by President George W. Bush and top Administration officials1498 and selected elements that fall into the following categories: nuclear weapons, biological weapons, chemical weapons, weapons of mass destruction, methods of delivery, links to terrorism, regime intent, and assessments about consequences of U.S. invasion on Iraq post-war.

 

Also, to support its analysis, the Committee gathered information from intelligence reports that were produced prior to March 19, 2003, to better “understand the state of intelligence analysis at the time of various speeches and statements.”

 

By concentrating on inter-agency intelligence reports, the Committee highlighted some of the “disagreements with the intelligence community and where different reporting could substantiate different interpretations.” In addition, the report focuses on the selective use of intelligence information and the ability of the Administration to declassify and divulge intelligence information.

The Committee report concluded that a number of public statements made by high-ranking members of the Bush Administration in the lead-up to the Iraq War were not supported by the available intelligence, including:

• Statements and implications by the President and Secretary of State suggesting that Iraq and al Qaeda had a partnership, or that Iraq had provided al Qaeda with weapons training were not substantiated by the intelligence. In particular, the Intelligence Committee noted that on several occasions, the CIA and the DIA expressed doubts that there was any collusion between Hussein and bin Ladin because “Saddam views bin Ladin’s brand of Islam as a threat to his regime and bin Ladin is opposed to those Muslim states that do not follow his version of Islam.” With regarding to weapons training, by February 2002, the Intelligence Committee had questioned the credibility of al-Libi, the former bin Laden aide who had sought to link Iraq with al Qaeda and weapons trainings.
   

• Statements by the President Bush and Vice President Cheney indicating that Saddam Hussein was prepared to give weapons of mass destruction to terrorist groups for attacks against the U.S. were contradicted by available intelligence information. In particular, the Committee found intelligence assessments before and after the President’s September 2002 address consistently expressed the difficulty of trying to gauge Saddam’s intentions with accuracy, and ultimately concluded that Saddam Hussein would not likely want to risk his regime’s survival by using WMDs against the United States.
   

• Statements by President Bush and Vice President Cheney regarding the postwar situation in Iraq, in terms of the political, security and economic, did not reflect the concerns and uncertainties expressed in the intelligence products.
   

• Statements by the President and Vice President prior to the October 2002 NIE regarding Iraq’s production of chemical weapons omitted uncertainties as to whether such production was ongoing. In particular the Senate Intelligence Committee found Bush Administration officials ignored disagreements within the IC with regard to assessments of Iraq’s capabilities to use unarmed aerial vehicles (UAVs) as delivery systems for chemical and biological weapons. Although the October 2002 NIE indicated that Iraq intended to outfit UAVs for such purposes, the Air Force intelligence agency dissented. Statements by Bush Administration officials prior to the release of the 2002 NIE also omitted IC uncertainties with regard to Iraq’s chemical weapons capabilities, and could not confirm ongoing production of chemical weapons.
   

• The statement by Defense Secretary Donald Rumsfeld in testimony before Congress that the Iraqi government operated WMD facilities that were not vulnerable to conventional airstrikes because they were buried deeply underground was not substantiated by available intelligence information.
   

• The Vice President’s repeated claims that Muhammad Atta met an Iraqi intelligence officer in Prague in 2001 were not confirmed by the Intelligence Community. The Committee found that by May 2002, the CIA found that there was contradictory reporting on this trip and that it was again unable to verify Atta’s reported trip through other channels; the CIA also found “no conclusive indication of Iraqi complicity or foreknowledge” of the September 11th attacks; and that in July 2002, the Defense Intelligence Agency (DIA) indicated that there were “significant information gaps in this reporting [regarding a April 2001 Atta meeting in Prague] that render the issue impossible to prove or disprove.”
   

• With regard to President Bush’s 2003 State of the Union remarks indicating Saddam Hussein had sought uranium from Africa, the Senate Intelligence Committee identified three important warnings that President Bush omitted. The CIA had warned him not to use that claim because of uncertainty as to its validity; the National Intelligence Estimate of October 2002 (NIE) did not include this claim in its “Key Judgements” summary of important points on which its conclusion of a current nuclear weapons program was based; and the State Department found the claim “highly dubious.”

On July 25, 2008, Chairman Conyers convened a formal Judiciary Committee hearing, titled “Executive Power and Its Constitutional Limitations.”

 

The purpose of the hearing was to further explore the Bush Administration’s abuse of executive authority, including allegations of manipulating pre-war intelligence. The testimony from many of the witnesses, including Representative Dennis Kucinich of Ohio and former Los Angeles county prosecutor Vincent Bugliosi, centered around the Bush Administration’s use of intelligence in making the case for war.

 

Representative Kucinich’s testimony focused on the role that fabricated intelligence played in justifying the war to Members of Congress and the American public at large, arguing that the President and Vice President knowingly misled Members of Congress in order to convince them to authorize the 2003 invasion of Iraq.

Mr. Bugliosi discussed the incomplete state of a declassified intelligence assessment in October 2002, which became known as the “White Paper.”

 

The White Paper portrayed Hussein’s Iraq as an imminent threat to the United States, but, as Mr. Bugliosi testified,

“the conclusion of U.S. Intelligence that Hussein would only be likely to attack us if he feared we were about to attack him was completely deleted.”

The omission made Prime Minister Hussein appear much more dangerous.

 

Former Judiciary Committee member Elizabeth Holtzman also testified, and described her conclusion that,

“[t]he deceptions, exaggerations and misstatements made by high level Administration officials to drive the country into the tragically mistaken Iraq War subvert the constitution.”

In his book released August 5, 2008, The Way of the World: A Story of Truth and Hope in an Age of Extremism, author Ron Suskind reported that White House officials had directed the fabrication of a letter in the name of Saddam Hussein’s former Intelligence Chief Tahir Habbush that suggested a link between Iraq and Mohammed Atta.

 

On August 20, 2008, Chairman Conyers wrote the key Administration insiders alleged to be involved in the matter:

• George Tenet, former Director of the CIA

• Rob Richer, former CIA Deputy Director of Clandestine Operations and Chief of the Near East Division

• John Maguire, one of the heads of the CIA’s Iraq Operations Group in the Near East Division

• A.B. “Buzzy” Krongard, former Executive Director of the CIA

• John Hannah, Assistant to the Vice President for National Security Affairs

• Lewis I. “Scooter” Libby, former Chief of Staff to the Vice President

No information was obtained in response to these letters that confirmed the recipients’ knowledge of the forgeries. Accordingly, the Administration figures who ordered and authored the apparent forgery – and their involvement in leaking it through foreign intelligence channels – remain unidentified.

In December 2008, Representative Henry A. Waxman, Chairman of the Committee on Oversight and Government Reform, released a memorandum revealing that, in apparent contrast to assurances given by Attorney General Alberto Gonzales to the Senate Select Committee on Intelligence in a 2004 letter, the CIA had in fact objected to the statement by President Bush in his 2003 State of the Union speech regarding Saddam Hussein seeking uranium from Africa.

 

John Gibson former Director of Speechwriting for Foreign Policy at the National Security Council (NSC) indicated that he attempted to insert the claim about African uranium in a September 12, 2002, speech being written for President Bush to give to the United Nations. Mr. Gibson stated that he was never able to clear the language with the CIA because the agency was concerned about the information’s reliability.

 

Similarly, a few weeks later, a high level CIA official had contacted then-National Security Advisor Condoleezza Rice personally to express the CIA’s position that the statement was not credible and should be taken out of a speech that President Bush was preparing to deliver on September 26, 2002.

In the final weeks of 2008 and of their second term, President Bush and Vice President Cheney gave a series of interviews in which they have discussed the lead-up to and execution of the war in Iraq. Speaking with Jonathan Karl of ABC News, Vice President Cheney disagreed with the assessment Karl Rove that had the pre-war intelligence been correct, the U.S. would not have invaded Iraq.

 

Vice President Cheney insisted that “what they got wrong was that there weren’t any stockpiles.”

 

In an interview with Martha Raddatz of ABC News, President Bush spoke of the relationship between al Qaeda and Iraq:

Mr. Bush: Clearly, one of the most important parts of my job because of 9/11 was to defend the security of the American people. There have been no attacks since I have been president, since 9/11. One of the major theaters against al Qaeda turns out to have been Iraq. This is where al Qaeda said they were going to take their stand. This is where al Qaeda was hoping to take ...

Ms. Raddatz: But not until after the U.S. invaded.

Mr. Bush: Yeah, that’s right. So what?

President Bush went on to insist that he,

“did not have the luxury of knowing [Saddam Hussein] did not have [weapons of mass destruction], neither did the rest of the world until after we had come and removed him.”

 

 

IV. Findings
 

Expansion of Executive Privilege

1. On numerous occasions, the Bush Administration has significantly delayed or entirely refused the production of documents or congressional testimony by Executive Branch officials by claiming that such productions would infringe upon executive privilege.

    

   President Bush has not only vastly expanded the notion of executive privilege and its applications, but also has used executive privilege claims as a means of stonewalling congressional investigations.

    

   Subpoenas not complied with include:

    

   • An April 25, 2007, House Oversight and Government Reform Committee subpoena for the testimony of the Secretary of State regarding alleged Niger document forgeries
      

   • A June 13, 2007, House Judiciary Committee subpoena for the testimony of former White House Counsel Harriet Miers and documents concerning the o U.S. Attorneys firings investigation
      

   • A June 13, 2007, Senate Judiciary Committee subpoena for the testimony of White House Chief of Staff Joshua Bolten and documents concerning the U.S. Attorneys firings investigation
      

   • A June 13, 2007, House Judiciary Committee subpoena to Robert Duncan, RNC Chairman, as custodian of record, for documents;
      

   • A June 26, 2007, Senate Judiciary Committee subpoena for documents and testimony of White House Deputy Chief of Staff Karl Rove concerning the U.S. Attorneys firings investigation
      

   • A March 13, 2008, House Oversight and Government Reform Committee subpoena for unredacted copies of documents in the possession of the Environmental Protection Agency
      

   • An April 16, 2008, House Oversight and Government Reform to Susan Dudley, Administrator, Office of Information and Regulatory Affairs in the White House Office of Management and Budget (OMB) for documents concerning the EPA’s denial of California’s request for a waiver to impose stricter greenhouse gas emission standards

      

   • The April 9, 2008, and May 5, 2008, House Oversight and Government Reform Committee subpoenas for the testimony of EPA Administrator Stephen L. Johnson regarding the EPA’s denial of California’s request for a waiver to impose stricter greenhouse gas emissions
      

   • A May 22, 2008, House Judiciary Committee subpoena for the testimony of White House Deputy Chief of Staff Karl Rove concerning the U.S. Attorneys firings investigation
      

   • A June 16, 2008, House Oversight and Government Reform Committee subpoena to Attorney General Mukasey concerning FBI interview reports with President Bush and Vice President Cheney regarding the outing of CIA agent Valerie Plame
      

   • A June 27, 2008, House Judiciary Committee subpoena to Attorney General Mukasey for documents previously requested from the Department of Justice concerning withheld OLC opinions, FBI interviews of President Bush and Vice President Cheney regarding the outing of Valerie Plame, and internal Justice Department documents concerning the Siegelman and Wecht prosecutions.
      

   • An October 21, 2008, Senate Judiciary Committee subpoena to Attorney General Mukasey for documents pertaining to legal analysis and advice provided by the Department of Justice’s Office of Legal Counsel regarding the Bush Administration’s terrorism policies, including detention and interrogation polices and practices.
      

   
   State Secrets Privilege

2. In contrast to assertions of state secrets privilege under previous administrations, the Bush Administration invoked the privilege to dismiss cases challenging specific ongoing government programs and prevented disclosure of potentially unlawful conduct by the Administration itself.

    

   These assertions have prevented disclosure of potentially unlawful conduct by members of the Bush Administration, including:

    

   • Invocation of the state secrets privilege resulted in the dismissal of a wrongful termination lawsuit brought by former FBI agent and whistleblower Sibel Edmonds. In an investigation taking place at the same time, the FBI’s Inspector General determined that Sibel Edmonds had been improperly dismissed and that her charges had never been properly investigated.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by Khalid el-Masri, preventing judicial review of the legality of the Administration’s rendition programming.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by Maher Arar, preventing judicial review of the legality of the Administration’s rendition programming.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by the Al-Haramain Islamic Foundation, preventing judicial review of the legality of the Administration’s warrantless wiretapping program.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by the ACLU, preventing judicial review of the legality of the Administration’s warrantless wiretapping program.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by the Electronic Frontier Foundation, preventing judicial review of the legality of the Administration’s warrantless wiretapping program.
      

   • Invocation of the state secrets privilege resulted in the dismissal of a lawsuit brought by the Center for Constitutional Rights, preventing judicial review of the legality of the Administration’s warrantless wiretapping program.
      

   
   Abuse of Classification and Other Authorities

3. The Bush Administration has misused authority with regard to the classification of documents under the Freedom of Information Act, the Presidential Records Act, and the Vice President’s Office to deny or delay the release of information to Congress and the public, potentially covering up misconduct by the Bush Administration.

    

   • Executive Order 13292 issued by President Bush reversed many key policies mitigating in favor of declassification, including providing for longer periods of time for declassification and weakening the standards for declassification.1546
      

   • FOIA was significantly weakened under the Bush Administration as a result of:

     1. a 2001 directive by then-Attorney General Ashcroft encouraging agency heads to deny FOIA requests even if no harm would result from disclosure

     2. 2002 and 2008 White House memoranda which encouraged denying FOIA claims for “sensitive but unclassified information” and using the newly-created “controlled unclassified information” designation to “inform” (but not control) the decision whether to release information to the public

     3. the transfer in the Administration’s proposed fiscal year 2009 budget of the newly-created FOIA Ombudsman position from the independent National Archives to the Department of Justice, which is part of the Executive Branch.
         

   • Executive Order 13233 issued by President Bush weakens the Presidential Records Act by allowing former presidents and vice presidents to bar release of documents by claiming one of numerous privileges.1548
      

   • The Vice President’s Office sought to treat itself as an entity not subject to Executive Branch disclosure obligations, and denied information to the Archivist and tried to have the Archivist’s investigating office eliminated.

   
    

   
   Manipulation and Misuse of Intelligence

4. A decision had been made to invade Iraq while President Bush and senior members of his Administration continued to make statements that a decision had not been made to invade.

    

   • President Bush and senior members of his Administration made numerous statements to the effect that no decision had been made to go to war with Iraq. For example, as early as September 8, 2002, Vice President Cheney insisted that “no decision’s been made yet to launch a military operation,” and as late as March 6, 2003, President Bush declared “I’ve not made up our mind about military action.”
      

   • The Downing Street Minutes provided unrebutted documentary evidence that by the spring and summer of 2002, the Blair government had reason to believe that the Bush Administration had made an irrevocable decision to invade Iraq.

      

     Among other things, the leaked documents revealed that President Bush had told Prime Minister Blair,

      

     • “when we have dealt with Afghanistan, we must come back to Iraq” (Fall, 2001)

     • “Condi’s enthusiasm for regime change is undimmed” (March 14, 2002)

     • the U.S. has “assumed regime change as a means of eliminating Iraq’s WMD threat” (March 25, 2002)

     • “Bush wanted to remove Saddam through military action, justified by the conjunction of terrorism and WMD” and “the intelligence and facts were being fixed around the policy” (July 23, 2002).
       
        

5. President Bush and senior members of his Administration made unsubstantiated, if not false, claims linking Saddam Hussein and al Qaeda.

    

   • Members of the Bush Administration, including the President, made a number of statements linking Saddam Hussein to the events of September 11 and to al Qaeda. For example, President Bush commented on September 25, 2002, “You can’t distinguish between al Qaeda and Saddam when you talk about the War on Terror;” and on September 27, 2002, Secretary Rumsfeld claimed that he had “bulletproof”evidence of ties between Saddam and al Qaeda.

      

     However, the 2008 Senate Intelligence Committee Report found that on several occasions, the CIA and the DIA expressed doubts that there was any collusion between Hussein and bin Ladin because “Saddam views bin Ladin’s brand of Islam as a threat to his regime and bin Ladin is opposed to those Muslim states that do not follow his version of Islam.”

      

     Moreover, the 9-11 Commission concluded that it had found no “collaborative” relationship between Iraq and al Qaeda and that “[w]e have no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.”
      

   • Vice President Cheney made unsubstantiated, if not false, claims specifically linking Iraq with the September 11 hijacker Muhammad Atta.

      

     Vice President Cheney appeared on Meet the Press on December 9, 2001, and stated:

      

     • “Well, what we now have that’s developed since you and I last talked, Tim [Russert], of course, was that report that’s been pretty well confirmed, that [Mohammed Atta, one of the hijackers]... did go to Prague and he did meet with a senior official of the Iraqi intelligence service in Czechoslovakia last April, several months before the attack.”

      

     Subsequently, the 9-11 Commission addressed the Vice President’s allegations of meetings between Atta and Iraqi intelligence, concluding, “We do not believe that such a meeting occurred.”
      

   • Both President Bush and Secretary of State Powell made unsubstantiated, if not false, claims that Iraq had trained al Qaeda members to use chemical and biological weapons.

      

     In his October 7, 2002, speech in Cincinnati, the President stated: “We’ve learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases,” and in his February 5, 2003, speech before the UN, Secretary of State Powell stated:

      

     • “I can trace the story of a senior terrorist operative telling how Iraq provided these weapons to al Qaeda.”

      

     These allegations were based on disclosures by Ibu al-Shaykh al-Libi, an aide to bin Laden in U.S. custody.

      

     However, the 2008 Senate Intelligence Committee reported noted that by February of 2002, intelligence sources began to question al-Libi’s credibility, with a DIA defense intelligence report finding,

      

     • “It is possible [al-Libi] does not know any further details; it is more likely this individual is intentionally misleading debriefers.”
        

   • President Bush made unsubstantiated, if not false, claims that Iraq would supply weapons to terrorist groups.

      

     During his September 12, 2002, speech to the United Nations General Assembly, President Bush indicated that the Iraqi government would supply WMDs to terrorist when he said,

      

     • “our greatest fear is that terrorist will find a shortcut to their mad ambitions when an outlaw regime supplies them with the technologies to kill on a massive scale. In one place – in one regime – we find all these dangers...”

      

     However, according to the 2008 Senate Intelligence report, intelligence assessments before and after the President’s September 2002 address consistently expressed the difficulty of trying to gauge Saddam’s intentions with accuracy.
     
      

6. President Bush and senior members of his Administration made unsubstantiated, if not false, claims concerning Iraq’s alleged nuclear weapons program.

    

   • President Bush and other senior members of his Administration made unsubstantiated, if not false, claims that Iraq had acquired uranium from Africa. In his 2003 State of the Union Address, President Bush told the country,

      

     • “the British Government has learned that Saddam Hussein recently discussed significant acquisition of uranium from Africa.”

      

     However, in their 2008 report, the Senate Intelligence Committee disclosed that the CIA had warned the President not to use that claim because of uncertainty as to its validity, and the State Department found the claim “highly dubious.” In addition, in December of 2008, the Oversight and Government Reform Committee disclosed a memorandum indicating that the President’s statement regarding uranium had not been cleared by the CIA.
      

   • President Bush and senior members of his Administration made unsubstantiated, if not false, claims that Iraq was using aluminum tubes to assist in making nuclear weapons.

      

     On September 8, 2002, Vice President Cheney and National Security Advisor Condoleezza Rice both appeared on television to argue and confirm that the tubes were part of Iraq’s aggressive nuclear weapons program. President Bush would later state in his 2003 State of the Union Address that Saddam Hussein was trying to buy tubes “suitable for nuclear weapons production.”

      

     However, the July 2004 report by the Senate Intelligence Committee revealed that, at the time,

     • “the information available to the intelligence community indicated that these [aluminum] tubes were intended to be used for an Iraqi conventional rocket program and not a nuclear program.”
       
        

7. Senior members of the Bush Administration placed undue pressure on intelligence officials in order to obtain intelligence assessments that aided their efforts to make the case for invading Iraq.

    

   • As early as October 2002, an anonymous intelligence official stated, “Analysts at the working level in the intelligence community are feeling very strong pressure from the Pentagon to cook the intelligence books.”

      

     Richard Kerr, a former high-level CIA analyst who conducted the agency’s classified internal review of pre-war intelligence on Iraq and how it was used by the White House, reported,

      

     • “There were people who felt there was too much pressure. Not that they were being asked to change their judgments, but they were being asked again and again to re-state their judgments-do another paper on this, repetitive pressures. Do it again."

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