Introduction by Rep. John Conyers, Jr.
Scandals such
as Watergate and Iran-Contra are widely considered to be
constitutional crises. They were in the sense that the
executive branch was acting in violation of the law and in
tension with the Majority Party in the Congress. But the
system of checks and balances put in place by the founding
fathers worked, the abuses were investigated, and actions
were taken – even if presidential pardons ultimately
prevented a full measure of justice.
The situation we
find ourselves in today under the administration of George
W. Bush is systemically different. The alleged acts of
wrongdoing my staff has documented– which include making
misleading statements about the decision to go to war;
manipulating intelligence; facilitating and countenancing
torture; using classified information to out a CIA agent;
and violating federal surveillance and privacy laws – are
quite serious. However, the current Majority Party has
shown little inclination to engage in basic oversight, let
alone question the Administration directly. The media,
though showing some signs of aggressiveness as of late, is
increasingly concentrated and all too often unwilling to
risk the enmity or legal challenge from the party in charge.
At the same time, unlike previous threats to civil liberties
posed by the Civil War (suspension of habeas corpus and
eviction of the Jews from portions of the Southern States);
World War I (anti-immigrant “Palmer Raids”); World War
II (internment of Japanese Americans); and the Vietnam War
(COINTELPRO); the risks to our citizens’ rights today are
potentially more grave, as the war on terror has no specific
end point.
Although on occasion the courts are able to
serve as a partial check on the unilateral overreaching of
the Executive Branch – as they did in the recent Hamdan v.
Rumsfeld decision invalidating the President’s military
tribunal rules – the unfortunate reality remains that we
are a long way from being out of the constitutional woods
under the dangerous combination of an imperial Bush
presidency and a compliant GOP Congress. I say this for
several reasons. The Hamdan decision itself was approved by
only five Justices (three Justices dissented, and Chief
Justice Roberts recused himself because he had previously
ruled in favor of the Administration) and was written by
86-year old Justice Stevens. In the event of his retirement
in the next two years, the Court’s balance would likely be
tipped back as he would undoubtedly be replaced by another
Justice in the Scalia-Thomas-Roberts-Alito mode favoring an
all-powerful “unitary” executive. In the very first
hearing held on the decision, the Administration witness
testified that “the president is always right” and
severely chastised the Court’s decision. The Republican
Majority also appears poised to use the decision to score
political points rather than reassert Congressional
prerogatives, as House Majority Leader Boehner
disingenuously declared the case “offers a clear choice
between Capitol Hill Democrats who celebrate offering
special privileges to violent terrorists, and Republicans
who want the President to have the necessary tools to
prosecute and achieve victory in the Global War on
Terror.”
Thus, notwithstanding the eloquence of the
Hamdan decision, I believe our Constitution remains in
crisis. We cannot count on a single judicial decision to
reclaim the rule of law or resurrect the system of checks
and balances envisioned by the founding fathers. Rather, we
need to restore a vigilant Congress, an independent
judiciary, a law-abiding president, and a vigorous free
press that has served our Nation so well throughout our
history.
Because of the above concerns, I asked my
Judiciary Committee staff to prepare the following Report.
I made this request in the wake of President Bush’s
failure to respond to a letter submitted by 122 Members of
Congress and more than 500,000 Americans in July of 2005
asking him whether the assertions set forth in the so-called
“Downing Street Minutes” were accurate, and in the
aftermath of the disclosure by The New York Times in
December 2005 and USA Today in May 2006 that the President
had approved widespread warrantless domestic surveillance of
innocent Americans. I asked for this Report to be prepared
because I believe it is vital that we document these
allegations, learn from our mistakes, and consider laws and
safeguards necessary to prevent their recurrence.
I
believe it is essential that we come together as a Nation to
confront religious extremism and despicable regimes abroad
as well as terrorist tactics at home. However, as a
veteran, I recognize that we do no service to our brave
armed forces by asking them to engage in military conflict
under false pretenses and without adequate resources. Nor
do we advance the cause of fighting terrorism if our
government takes constitutionally dubious short cuts of
little law enforcement value that alienate the very groups
in this country whose cooperation is central to fighting
this seminal battle.
Many of us remember a time when the
powers of our government were horribly abused. Those of us
who lived through Vietnam know the damage that can result
when our government misleads its citizens about war. As one
who was included on President Nixon’s “enemies list,”
I am all too familiar with the specter of unlawful
government intrusion. In the face of these lessons, I
believe it is imperative that we never lose our voice of
dissent, regardless of the political pressure. As Martin
Luther King told us, “there comes a time when silence is
betrayal.” None of us should be bullied or intimidated
when the executive branch charges that those who would
criticize their actions are “aiding the terrorists” and
“giving ammunition to America’s enemies,” or when they
warn that “Americans need to watch what they say,” as
this Administration has done.
It is tragic that our Nation
has invaded another sovereign nation because “the
intelligence and facts were being fixed around the
policy,” and that millions of innocent Americans have been
subject to government surveillance outside of proper legal
process. However, it is unforgivable that Congress has been
unwilling to examine these matters or take actions to
prevent these circumstances from occurring again. Since the
Majority Party is unwilling to fulfill their oversight
responsibilities, it is incumbent on individual Members of
Congress as well as the American public to act to protect
our constitutional form of government. It is with that
purpose and in that spirit that I am releasing this Minority
Report.
I would like to thank the “blogosphere” for
its myriad and invaluable contributions to my and my staff.
Absent the assistance of “blogs” and other
Internet-based media, it would have been impossible to
assemble all of the information, sources and other materials
necessary to the preparation of this Report. Whereas the
so-called “mainstream media” has frequently been willing
to look past the abuses of the Bush Administration, the
blogosophere has proven to be a new and important bulwark of
our Nation’s first amendment freedoms.
Summary
This Minority Report has been
produced at the direction of Representative John Conyers,
Jr., Ranking Member of the House Judiciary Committee. The
Report is divided into two principal parts – Part I,
released in draft form in December, 2005, concerns “The
Downing Street Minutes and Deception Manipulation, Torture,
Retribution, and Cover-ups in the Iraq War;” and Part II,
released in June 2006, concerns “Unlawful Domestic
Surveillance and Related Civil Liberties Abuses under the
Administration of George W. Bush.” (At the conclusion, we
include an Addendum including additional matters which have
come to light since Part I of the Report was issued in
December, 2005 and Part II was written in May, 2006).
In preparing this Report we reviewed tens of
thousands of documents and materials, including testimony
submitted at two hearings held by Rep. Conyers concerning
the Downing Street Minutes and warrantless domestic
surveillance; hundreds of media reports, articles, and
books, including interviews with past and present
Administration employees and other confidential sources;
scores of government and non-profit reports, hearings, and
analyses; numerous letters and materials submitted to Rep.
Conyers; staff interviews; relevant laws, cases,
regulations, and administrative guidelines; and the
Administration’s own words and statements.
In brief, we
have found that there is substantial evidence the President,
the Vice-President and other high ranking members of the
Bush Administration misled Congress and the American people
regarding the decision to go to war in Iraq; misstated and
manipulated intelligence information regarding the
justification for such war; countenanced torture and cruel,
inhuman and degrading treatment in Iraq; permitted
inappropriate retaliation against critics of their
Administration; and approved domestic surveillance that is
both illegal and unconstitutional. As further detailed in
the Report, there is evidence that these actions violate a
number of federal laws, including:
• Making False
Statements to Congress, for example, saying you have learned
Iraq is attempting to buy uranium from Niger, when you have
been warned by the CIA that this is not the case.
• The
War Powers Resolution and Misuse of Government Funds, for
example, redeploying troops and initiating bombing raids
before receiving congressional authorization.
• Federal
laws and international treaties prohibiting torture and
cruel, inhuman, and degrading treatment, for example,
ordering detainees to be ghosted and removed, and tolerating
and laying the legal ground work for their torture and
mistreatment.
• Federal laws concerning retaliating
against witnesses and other individuals, for example,
demoting Bunnatine Greenhouse, the chief contracting officer
at the Army Corps of Engineers, because she exposed
contracting abuses involving Halliburton.
• Federal
requirements concerning leaking and other misuse of
intelligence, for example, failing to enforce the executive
order requiring disciplining those who leak classified
information, whether intentional or not.
• Federal
regulations and ethical requirements governing conflicts of
interest, for example, then Attorney General John
Aschcroft’s being personally briefed on FBI interviews
concerning possible misconduct by Karl Rove even though Mr.
Rove had previously received nearly $750,000 in fees for
political work on Mr. Ashcroft’s
campaigns.
• Violating FISA and the Fourth Amendment,
for example intercepting thousands of communications “to
or from any person within the United States,” without
obtaining a warrant.
• The Stored Communications Act of
1986 and the Communications Act of 1934, for example,
obtaining millions of U.S. customer telephone records
without obtaining a subpoena or warrant, without customer
consent, and outside of any applicable “emergency
exceptions.”
• The National Security Act, for example,
failing to keep all Members of the House and Senate
Intelligence Committees “fully and currently informed”
of intelligence activities, such as the warrantless
surveillance programs.
With regard to the NSA’s domestic
surveillance programs, we have also found that members of
the Bush Administration made a number of misleading
statements regarding its operation and scope; the legal
justifications proffered by the Bush Administration are
constitutionally destabilizing; there is little evidence the
programs have been beneficial in combating terrorism and may
have affirmatively placed terrorism prosecutions at risk;
and the programs appear to have designed and implemented in
a manner designed to stifle legitimate concerns.
The
Report rejects the frequent contention by the Bush
Administration that their pre-war conduct has been reviewed
and they have been exonerated. No entity has ever
considered whether the Administration misled Americans about
the decision to go to war. The Senate Intelligence Committee
has not yet conducted a review of pre-war intelligence
distortion and manipulation, while the presidentially
appointed Silberman-Robb Commission Report specifically
cautioned that intelligence manipulation “was not part of
our inquiry.” There has also not been any independent
inquiry concerning torture and other legal violations in
Iraq; nor has there been an independent review of the
pattern of cover-ups and political retribution by the Bush
Administration against its critics, other than the very
narrow and still ongoing inquiry of Special Counsel
Fitzgerald into the outing of Valerie Plame.
There also
has been no independent review of the circumstances
surrounding the Bush Administration’s domestic spying
scandals. The Administration summarily rejected all
requests for special counsels, as well as reviews by the
Department of Justice and Department of Defense Inspector
Generals. When the DOJ Office of Professional
Responsibility opened an investigation, the Bush
Administration effectively squashed it by denying the
investigators security clearances. Neither the House nor
Senate Intelligence Committee have undertaken any sort of
comprehensive investigation, and the Bush Administration has
sought to cut off any court review of the NSA programs by
repeatedly invoking the state secrets doctrine.
As a
result of our findings, we have made a number of
recommendations to help prevent the recurrence of these
events in the future, including:
• obtaining enhanced
investigatory authority to access documentary information
and testimony regarding the various allegations set forth in
this Report.
• reaffirming that FISA and the criminal
code contain the exclusive means for conducting domestic
warrantless surveillance and, to the extent that more
personnel are needed to process FISA requests, increasing
available resources.
• requiring the President to report
on the pardon of any former or current officials who could
implicate the President or other Administration officials
implicated by pending investigations.
• requiring the
President to notify Congress upon the declassification of
intelligence information.
• providing for enhanced
protection for national security
whistle-blowers.
• strengthening the authority of the
Privacy and Civil Liberties Oversight Board.
We also
make a number of additional recommendations within the
jurisdiction of the House Judiciary Committee to help
respond to the ongoing threat of terrorism, including:
• increasing funding and resources for local law
enforcement and first responders and insuring that
anti-terrorism funds are distributed based on risk, not
politics.
• implementing the 9-11 Commission
Recommendations, including providing for enhanced port,
infrastructure, and chemical plant security and ensuring
that all loose nuclear materials are secured.
• banning
corporate trade with state sponsors of terrorism and
eliminating sovereign immunity protections for state
sponsors of terrorism.
• enhancing laws against wartime
fraud.
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