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HOR Democrats Report - The Constitution in Crisis

The Constitution in Crisis; The Downing Street Minutes and Deception,
Manipulation, Torture, Retribution, and Coverups in the Iraq War,
and Illegal Domestic Surveillance

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The following are Adobe pdf links to the Final Investigative Report of the House Judiciary Committee Democratic Staff

  • Table of Contents
  • Introduction
  • Summary
  • I. The Downing Street Minutes and Deception, Manipulation, Torture, Retribution and Coverups in the Iraq War
  • II. Unlawful Domestic Surveillance and the Decline of Civil Liberties Under the Administration of George W. Bush
  • Addendum
  • Analysis
  • Recommendations and Conclusion
  • Endnotes
  • Legal Standards and Authorities
  • Major Reports


    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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    HTML - PDF - WORD DOC

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