Page:Congressional Record - Volume 154 - H5088–H5107.djvu/13

 copy of that memorandum on no less than four prior occasions and we continue to demand access to this important document.

‘‘In addition to this opinion, however, the Yoo Memorandum references at least 10 other OLC opinions on weighty matters of great interest to the American people that also do not appear to have been released. These appear to cover matters such as the power of Congress to regulate the conduct of military commissions, legal constraints on the ‘military detention of United States citizens,’ legal rules applicable to the boarding and searching foreign ships, the President’s authority to render U.S. detainees to the custody of foreign governments, and the President’s authority to breach or suspend U.S. treaty obligations. Furthermore, it has been more than five years since the Yoo Memorandum was authored, raising the question how many other such memoranda and letters have been secretly authored and utilized by the Administration.

‘‘Indeed, a recent court filing by the Department in FOIA litigation involving the Central Intelligence Agency identifies 8 additional secret OLC opinions, dating from August 6, 2004, to February 18, 2007. Given that these reflect only OLC memoranda identified in the files of the CIA, and based on the sampling procedures under which that listing was generated, it appears that these represent only a small portion of the secret OLC memoranda generated during this time, with the true number almost certainly much higher.’’

Senator Russ Feingold, in a statement during an April 30, 2008, senate hearing stated:

‘‘It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of nonpublic administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of ‘secret law.’ That purpose today is being thwarted. Congressional enactments and agency regulations are for the most part still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from the public, and too often from Congress as well. . ..

‘‘A legal interpretation by the Justice Department’s Office of Legal Counsel. . . binds the entire executive branch, just like a regulation or the ruling of a court. In the words of former OLC head Jack Goldsmith, ‘These executive branch precedents are ‘‘law’’ for the executive branch.’ The Yoo memorandum was, for a nine-month period in 2003 until it was withdrawn by Mr. Goldsmith, the law that this Administration followed when it came to matters of torture. And of course, that law was essentially a declaration that few if any laws applied. ..

‘‘Another body of secret law is the controlling interpretations of the Foreign Intelligence Surveillance Act that are issued by the Foreign Intelligence Surveillance Court. FISA, of course, is the law that governs the government’s ability in intelligence investigations to conduct wiretaps and search the homes of people in the United States. Under that statute, the FISA Court is directed to evaluate wiretap and search warrant applications and decide whether the standard for issuing a warrant has been met—a largely factual evaluation that is properly done behind closed doors. But with the evolution of technology and with this Administration’s efforts to get the Court’s blessing for its illegal wiretapping activities, we now know that the Court’s role is broader, and that it is very much engaged in substantive interpretations of the governing statute. These interpretations are as much a part of this country’s surveillance law as the statute itself. Without access to them, it is impossible for Congress or the public to have an informed debate on matters that deeply affect the privacy and civil liberties of all Americans. ..

‘‘The Administration’s shroud of secrecy extends to agency rules and executive pronouncements, such as Executive Orders, that carry the force of law. Through the diligent efforts of my colleague Senator Whitehouse, we have learned that OLC has taken the position that a President can ‘waive’ or ‘modify’ a published Executive Order without any notice to the public or Congress simply by not following it.’’

In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his trust as President and Commander in Chief, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.

In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his trust as President, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.

ARTICLE XXIII—VIOLATION OF THE POSSE COMITATUS ACT
In his conduct while President of the United States, George W. Bush, in violation of his constitutional oath to faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty under Article II, Section 3 of the Constitution ‘‘to take care that the laws be faithfully executed’’, has both personally and acting through his agents and subordinates, repeatedly and illegally established programs to appropriate the power of the military for use in law enforcement. Specifically, he has contravened U.S.C. Title 18, Section 1385, originally enacted in 1878, subsequently amended as ‘‘Use of Army and Air Force as Posse Comitatus’’ and commonly known as the Posse Comitatus Act.

The Act states:

‘‘Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.’’ The Posse Comitatus Act is designed to prevent the military from becoming a national police force.

The Declaration of Independence states as a specific grievance against the British that the King had ‘‘kept among us, in times of peace, Standing Armies without the consent of our legislatures,’’ had ‘‘affected to render the Military independent of and superior to the civil power,’’ and had ‘‘quarter[ed] large bodies of armed troops among us. . . protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these States’’

Despite the Posse Comitatus Act’s intent, and in contravention of the law, President Bush:

(a) has used military forces for law enforcement purposes on U.S. border patrol;

(b) has established a program to use military personnel for surveillance and information on criminal activities;

(c) is using military espionage equipment to collect intelligence information for law enforcement use on civilians within the United States; and

(d) employs active duty military personnel in surveillance agencies, including the Central Intelligence Agency (CIA).

In June 2006, President Bush ordered National Guard troops deployed to the border shared by Mexico with Arizona, Texas, and California. This deployment, which by 2007 reached a maximum of 6,000 troops, had orders to ‘‘conduct surveillance and operate detection equipment, work with border entry identification teams, analyze information, assist with communications and give administrative support to the Border Patrol’’ and concerned ‘‘. . . providing intelligence, inspecting cargo, and conducting surveillance.’’

The Air Force’s ‘‘Eagle Eyes’’ program encourages Air Force military staff to gather evidence on American citizens. Eagle Eyes instructs Air Force personnel to engage in surveillance and then advises them to ‘‘alert local authorities,’’ asking military staff to surveil and gather evidence on public citizens. This contravenes DoD Directive 5525.5 ‘‘SUBJECT: DoD Cooperation with Civilian Law Enforcement’’ which limits such activities.

President Bush has implemented a program to use imagery from military satellites for domestic law enforcement through the National Applications Office.

President Bush has assigned numerous active duty military personnel to civilian institutions such as the CIA and the Department of Homeland Security, both of which have responsibilities for law enforcement and intelligence.

In addition, on May 9, 2007, President Bush released ‘‘National Security Presidential Directive/NSPD 51,’’ which effectively gives the president unchecked power to control the entire government and to define that government in time of an emergency, as well as the power to determine whether there is an emergency. The document also contains ‘‘classified Continuity Annexes.’’ In July 2007 and again in August 2007 Rep. Peter DeFazio, a senior member of the House Homeland Security Committee, sought access to the classified annexes. DeFazio and other leaders of the Homeland Security Committee, including Chairman Bennie Thompson, have been denied a review of the Continuity of Government classified annexes.

In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his trust as President and Commander in Chief, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.

ARTICLE XXIV.—SPYING ON AMERICAN CITIZENS, WITHOUT A COURT-ORDERED WARRANT, IN VIOLATION OF THE LAW AND THE FOURTH AMENDMENT
In his conduct while President of the United States, George W. Bush, in violation of his constitutional oath to faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty under Article II, Section 3 of the Constitution ‘‘to take care that the laws be faithfully executed,’’ has both personally and acting through his agents and