US. Department of Justice Of?ce of Legislative Affairs Of?ce of the Assistant Attorney General Washington, D. C. 2 05 30 March 17, 2017 The Honorable Dianne Feinstein Ranking Member Committee on the Judiciary United States Senate Washington, DC 20510 Dear Senator Feinstein: This responds to your letter dated March 15, 2017, which asked the Department of Justice (the Department) to provide copies of 19 privileged documents previously made available to the Judiciary Committee for in camera review. Your letter indicates that despite the 174,905 pages of documents produced for public review and out of the 11,219 pages of in camera documents made available by the Department, these 19 documents are ?vital to the Judiciary Committee?s ability to perform its advice and consent function.? As explained in the Department?s letters offering those and thousands of other documents for review, the privileges and con?dentiality interests covering the documents protect the internal exchange of ideas essential to the Department?s exercise of its institutional responsibilities, including law enforcement and litigation. Also, we had understood from the Committee?s letter of February 21, 2017, that the Department?s privileges and con?dentiality interests would be respected. Nevertheless, after consulting with relevant components and because of the small number of documents sought, as well as the extraordinary circumstances surrounding a Supreme Court nomination, we have decided to accommodate your request. Accordingly, we are herewith providing the documents without objection to the Committee?s public disclosure of them in connection with its consideration of Judge Gorsuch?s nomination. The Department does not anticipate making any further productions regarding this matter. We appreciate your respect for the Department?s deliberative processes and con?dentiality interests. Please do not hesitate to contact this of?ce if we may provide additional assistance regarding this or any other matter. Sincerely, x: ?Samuel R. Ramer Acting Assistant Attorney General The Honorable Dianne Feinstein Page Two Enclosures 00: The Honorable Charles E. Grassley Chairman was! Fat? ?35; ?aws, ?-?i?zfa-gfei I gala. a fig?a ?a?i?e??ei taliaga d??ai mam Emir??g? gamma f?f?f??ww ?g 511mg gl'sg' :g?acgie? 3 mm: 35,531 1 ?g mgam? ?w?i?i?l?r?g?fer??g?a wig-:53; ?irtta?am?ie? i?e-u??m Era-ma? ?.er amm- ?r $633331} . . Iggajg'agmiwigsa?g?mgm - a-u??n ag- taasz; ?ghts fr? jg: $232335- aims wm?? Elisha-fa} be?fg?awmi ?g . Enigma ?a?kibngn wma?s?wga 355d: Em: SJC DOJ Gorsuch 000001 ?ne-a. DRAFT so DRAFT DRAFT DRAFT DRAFT DRAFT March 15, 2006 TO: FROM: NOTE: PURPOSE: x??m?x Holders of the United States Attorneys? {ManuaL Title 9 Office of the Attorney General I Alberto R. Gonzales Attorney General Principles of Federal Prosecution . 1. This is issued pursuant to USAM 1?1550, 2. Distribute to Holders of Title 9. 3. Insert in front of affected sections. 947.000 The Department of Justice is proud of the long record of. federal prosecutors meeting or exceeding their obligation to disclose exculpatory and impeachment evidence. The purpose of this amendment to the US. Attorneys? Manual is to ?further develop the Department?s guidance to federal pmSecutors in ?il?lling their obligation, pursuant to Brac?z Maryland and Giglio v. United States, to disclose exculpatory and impeachment evidence to criminal defendants. The policy embodied in this bluesheet asks prosecutors, in most cases, to go beyond the minimtnn disclosure required by the Constitution. The goals of the policy are to ensure that all federal prosecutors are aware oftheir disclosure obligations, that prosecutors take the necessary and appropriate steps to ?iliill such obligations, that Wi?messes are fully protected from harassment; assault, and intimidation, that disclosure occurs at a time and in a manner consistent with the needs of national security, and that disclosure is made in a manner and to an . extent that promotes fair trials and exp edites proceedings. The policy embodied in this bluesheet is intended to be ?exible yet produce regularity. As ?rst stated in the preface to the original 1980 SJC DOJ Gorsuch 000002 DRAFT DRAFT DRAFT DRAFT it? DRAFT DRAFT March 15, 2006 - general terms with a View to providing guidance rather than to mandating results. The intent is to aesure regularity without re gimentation, to prevent unwarranted disparity without sacri?cing ?exibility." The policy also recognizes the paramount imp ortance of fully protecting witnesses and safeguarding other vital interests. Through the use of circumsoribed standards and principles outlined herein, federal prosecutors should exercise their judgment and discretion so as to build con?dence in criminal trials, while keeping witnesses safe and allowing for e?icient resolution of 08.563. The bluesheet creates a new section dated 2006, in your United States Attorneys? Manual. SJC DOJ Gorsuch 000003 A. s. c. was DRAFT are DRAFT are DRAFT are DRAFT sir DRAFT DRAFT March 15, 2006 USAM Purpose. Consistent with applicable federal statutes, rules, and case law, the policy set forth here is intended to promote regularity in diSclosure practices, through the reasoned exercise of prosecutorial judgment and discretion by attorneys for the government, with respect to the government?s obligation to disclose exculpatory and impeachment evidence to criminal defendants. The policy is also intended to encourage timely disclosure of exculpatory and impeachment evidence so as to expedite trial procedures and ensure that trials are fair. The policy, however, recognizes that witness security is paramount, see USAM 9-21.000, and that if disclosure prior to trial might jeopardize witness safety, disclosure must be delayed. This policy is not a substitute for researching the legal issues that may arise in an individual case, 1101' does it supersede the signi?cant body of excellent training materials on this subject. Additionally, this policy does not alter or superSede the Giglz'c policy adopted in 1996, see USAM 9?5.100, or the policy that requires prosecutors to disclose "substantial evidence that directly negates the guilt of a subject of the innestigation? to the grand jury before seeking an indictment, see USAM 9?1 1.23 3 . . Constitutional obligation to ensure a fair trial. Govemment disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Neither the Constitution nor this policy creates a discovery right for trial prep araticn or plea negotiations. Weatherford v. Barsey, 429 US. 545, 559 (1977). As a result, the dis closure obligation discussed herein pertains only to cases that proceed to trial. DiscloSure of circulpatory and impeachment evidence. The law requires the disclosure of exculpatory and impeachment evidence when such?evidence is material to guilt. Brady 12. Maryland, 373 US. 83, 87 (1963); Giglic v. United States, 405 U.S. 150, 154 (1972). While materialiw is the standard for the disclosure of exculpatory and impeachment evidence, as articulated in 1331235 Whitley, 514 US. 419 (1995) and Strickler v. Greene, 52?? U.S. 263, 280?81 (1999), the Department encourages prosecutors to take an expansiveview of the materiality requirement and err on the side of disclosure Without engaging in speculation as to Whether the evidence will be material to guilt or the outcome of a trial. in oases where such broad disclosure is not appropriate, prosecutors nonetheless must disclose exculpatory and impeachment evidence lmown to the prosecutor?s of?ce and government agencies working with the office on the criminal case, including state and local authorities Where applicable, if such evidence is material to a ?nding of guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); Gigiic v. United States, 405 US, 150, 154 (1972). Because they are Constitutional obligations, - Brady and Giglic evidence must be disclosed regardless of Whether the defendant makes a request for exculpatory or impeachment evidence. i SIJC DOJ Gorsuch 000004 Marts is; l. Materiality and Admissibility. Recognizing that it is sometimes dif?cult to assess the admissibility and materiality of evidence before trial, prosecutors generally should take a broad view of materiality and err on the side of disclosing exculpatmy and impeaching evidence. Exculpatory evidence is material to a ?nding of guilt, and thus the Constitution requires diSclosure, when it is (1) favorable to the defendant; and (2) if disclosed and used effectively, may make the difference between conviction and acquittal. linpeacbnient evidence is material if (1) it relates to a key government witness; and (2) signi?cantly impacts the reliability of such a Witness in a Way that may determine guilt or innocence, UnitedSz?ares v. Eagle-y, 475 US. 667, 676 (1985). While ordinarily, evidence that would not be admissible at trial need not be disclosed, Wood 12. Bartholomew, 5 16 US. l, 6 (1995), this policy encourages prosecutors not to engage in speculation as to Whether particular evidence will be admitted by a trial court and to disclose evidence that might reasonably be deemed admissible. 2. The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory or impeachment infonnaiion ?rom the government agency investigating the criminal case against the defendant and all other members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement of?cers participating in the investigation and prosecution of the criminal case against the defendant. Kyles v. Whitley, 514 US. 419, 437 (1995). 3. Timing of disclosure. Due process requires that disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in suf?cient time to permit the defendant to make effective use of that information at trial. See, a. g. United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). hi roost cases, the diSclosures required by the Constitution and this policy will be made in advance of trial. Exculpatory evidence, for example, must be disclosed as soon as it is discovered. Impeachment evidence is typically disclosed at a reasonable time to allow the trial to proceed efficiently, and prosecutors should normally make the disclo sores required under this policy approximately two weeks before trial. In some caSes, however, the prosecutor may have to balance the goals of this policy against other significant interests and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with'the policy embodied in the Jencks Act, 18' U.S.C. ?'3500. D. Exceptions. To the extent that this policy encourages disclosure of evidence or - information beyond the requirements of the Constitution, exceptions to this policy may be made on a case~byncase basis. Such exceptions should be made infrequently and only SJC DOJ Gorsuch 000005 fee-1w. DRAFT DRAFT are DRAFT err DRAFT are DRAFT .March 15, 2005' after a? supervisor has concluded that other measures, including protective orders, will be insufficient to protect the interests of the United States. Examples of cases in which it may be appropriate for a supervisor to limit the application of this policy include, but are not limited to, cases that involve the national security of the United States and cases in which the United States has reason to believe that early and broad disclosure of evidence will jeop ardize the safety of a witness or lead to obstruction of justice or Witness tampering. Comment. This policy establishes guidelines for the exercise of judgment and discretion by attorneys for the goVernnlent in determining What information to to a criminal defendant pursuant to the government?s disclosure obligation asset out in Brady; 12. Maryland and Giglz'o v. United States. As the Supreme Court has explained, disclosure is required when evidence?in the possession of the prosecutor or prosecution team is material to guilt or innocence. This policy encourages adopting a broad as to materiality and favors expansive disclosure Well in advance of trial. Under this policy, in most cases, the government?s disclosure will exceed its constitutional obligations. This expanded disclosure requirement, hoWever, does not create 'a general right of discovery in criminal cases. Where it is unclear Whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or to the court for inspection in camera. By doing SO, prosecutors Will ensure confidence in fair trials and Verdicts. Prosecutors are also encouraged to undertake periodic training concerning the government?s disclosure obligation and the emerging case law surrounding that obligation. SJC DOJ Gorsuch 000006 March 15, 2006 draft Rule 16. Discovery and Inspection GOVERNMENTS DISCLOSURE. (1) INFORMA HONSUBJECTTO osunn :14 (H) Excahiaz?ory or Impeachz?ng Information." Upon a defendant?s request, the govemrnent must make available all information that is known to the attorney for the goVernment or agents of law enforcement inVolved in the mVestigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment infonnation earlier than 14 days before trial. - COMMITTEE NOTE Suhdixdsion New subdivision is based on the principle that fundamental fairness is enhanced whenthe defense has access before trial to any. exculpatory or imp caching information known to the prosecution. The requirement that exculp aton and imp caching information be provided to the defense also reduces the possibility that innocent persons will be convicted in federal proceedings. See generally ABA Standards for Criminal Justice, Prosecution Function and Defense Function (3d ed. 1993), and ABA Model Rule of Professional Conduct 3.8(d) (2003). The amendment is intended to supplement the prosecutor?s obligations to disclose material exculpatory or impeaching information under Brady Maryland, 373 US. 83 (1963), Giglz?o v. United States, 405 US. 150 (1972), Kyles v. Whitley, 514 US. 419 (1995), Strickler v. Greene, 527 US. 263, 280-81 (1999), and?Baults v. Drerlce, 540 us. 668, 691 (2004), The rule contains no requirement that the information be "material" to guilt in the sense that this term is used in cases such as Kyles v. Whitley. It requires prosecutors to disclose to the defeIISe all exculpatory or irnpeaehing information known to any law enforcement agency that participated in the prosecution or investigation of the eaSe without further speculation as to whether this information will ultimately be material to guilt. I - The amendment distinguishes between eXeulpatory and trap eaching? information for 1The Rules Committee voted 7 to 4 in favor of stating the rule in terms of "information" rather than "evidence." The Department of Justice and some members of the subcommittee continue to favor the term ?evidence? in the rule and the committee note. 1 SJC DOJ Gorsuoh 000007 purposes of the timing of disclosure. lnfonnation is exculpatory under the rule if it tends to cast doubt upon the defendant ?3 guilt as to any essential element in any count in? the indictment or information. Because the disclosure of the identity ofwitnesses raises special concerns, and impeachment information may disclose a winiess ?s identity, the rule provides that the court may not order the disclosure of information-that is impeaehing but not exculpatory earlier than 14 days before trial. The governinent niay apply to the court for a protective order concerning exculpatory or imp caching information under the already existing provision of Rule so as to defer disclosure to a later time. SJC DOJ Gorsuch 000008 From: Gorsuoh. Neil ; Engei, Steve Bradbury, Steve Cc: Katsas, Gregory Bcc: . Subject: RE: Hamdan legislation comments Date: Thu Jul 13 2006 16:42:27 EDT Attachments: Adding Steve Engel and Steve Bradbury.? From: Buchoitz, Jeffrey Sent: Wednesday, July 12, 2006 7:26 PM To: Gorsuch, Neil Cc: Katsas, Gregory (01V) Subject: Hamldan legislation comments ?Neii: Here are a few comments on the draft (attached), though i recognize that it may have been superseded by now. The only substantive comments I have relate to section 6, re: judicial review, and section 8, re: temporal effect. - Section 6(a) bars all review other than what's provided in the two exceptions of any claim relating to any aspect of an alien?s detention, etc. it?s not limited to aliens detained at GTMO, aliens detained by the military, aliens detained as enemy combatants, or in any other ways As written it would bar a Zadyydas challenge to detention beyond six months pending removal of an alien detained by DHS. it Would bar a conditions of cenfin ement BiVens or med~rnal FTCA claim by a convicted prisoner detained by BOP who happened to be an alien. Pm sure there" are good reasons to draft this more broadiy than the UTA, which Was speci?c to GTMO, but i doubt these consequences are intended. And i am confident that, regardless of the language of the bill, these consequences would be rejected by courts. On the one hand, the bill may get watered down on the Hill, so we don?t want to aim low. But on the other hand, this may be tpo extreme to be i would add ?on? after ?pending? and before "er flied after the date of enactment?. And i wbuld reorder the categories of barred claims in the last sentence to avoid any suggestion that claims relating to an aiien?s detention, classification, or conditionscf confinement are only covered to the extent they relate to the alien?s prosecution by military commission. i?d change it to ?reiatin to any aspect of an alien?s . detention, prosecution by commission, classification, or conditions of confinement". in section lwouid add "at any time since September 200i" after ?detained as an enemy combatant by the United States? and before "that is pending on or after the date of the enactment" at the end of the provision, in order to ensure that it applies to pending claims by aliens who were, but no ionger are, detained as enemy combatants the Rasui Bivens/RFRA case). SJC DOJ Gorsuch 000021 Here are some minor comments: i. in section "That' at the beginning of the second sentence should be "The" or "This". in the ?nal sentence, call me a paranoid punctUator, but I?d add a comma before ?whose activities" to make clear that we?re saying Geneva doesn?t confer rights on members of al Qaeda, full stop, not simply that it doesn?t confer rights on the particular members of al Qaeda whose activities demonstrate no respect for the laws of War. 2. In section 1 (ext 1 l, the second sentence says that the detainee can petition for judicial review of his detention in CADC "and, thereafter, to theSupreme Court,? I assume the idea is that cart is available from a CADC decision as it normally would be, but this could be read to suggest that the detainee could petition the for review of his detention as opposed to for review of the CADC decision. l'd change the sentence to something like "exciuslveiy in the US. Court of Appeals for the Circuit, with certiorari review available thereafter in the Supreme Court of the United States.? 3. in sectidn the second sentence is unclear. It says ?Each such report shail be submitted in unciassifled form, with classified annex, if necessary and consistentwith national security." Does this mean that we can skip the unclassified report it there's no unclassified report that would be consistent with national security? That we can skip the classified annex if providing one wouldn't be consistent with national security (even though it would be classified)? Something eise? 4. Section gives the Presiding d?icer authority to discipline attorneys and act upon any contempt. in an unrelated case recently, there appeared to be a problem with a court-martial statute that gave DOJ authority to prosecute a violation of a oourt~rnartial subpoena but didn?t give DOJ authority to enforce the subpoena civilly. This provision doesn?t say anything about DOJ having authority to enforce a Presiding Officer order. If that?s intentional, that's fine. But if not, maybe it Wouid be worth considering this issue. . 5. In section it's not clear how the interiocutory certification is supposed to work. Does the Presiding Officer have sole discretion to certify or not certify, like a district at under 129203)? if he certifies, does the CADC have discretion to accept or not accept the appeal, as under ?129203), or must the CADG hear it? I assume we'd wantjt to work like under 1292(b), but if there?s a reason for a contrary view, that?s fine; either way, it might be worth ciaritying this. This issue also goes to {section 6(a 6. I think section may need to be rephrased. it says "To summon Witnesses to trial and to require their attendance and testimony to put questions to them.?t Maybe it should he "testimony to goestions put to them?? Or something else may be intended. 7. in section I Would move the Words ?in accordance with the instructions from the Presiding Officer." As currently phrased, it couid be read to suggest that sentence shall be imposed only when an accused is convicted "in accordance with instructions from the Presiding Officer,? as opposed to in violation of those instructions. Moving those words to after "the other members of the commission? and before ?shall impose a avoid this issue. Later in this sentence, "firm" should be ?fine?. And l?m not sure what the "such" in ?such other iawful punishment? refers to. 8. in section "Combat" should be "Combatant" in the title and at the and Let me know if you have any questions or if there's anyone else i should send these comments to. Thanks, Jeff SJC DOJ Gorsuch 000022 i Sanger, Jeffrey From: - To: Silas, Adrien Edney, Michael Co: Leiter, Jordan Gorsuoh, Neil Boo: Subject: RE: OSAG Questions on Detainees Date: Fri May 20 2006 17:09:47 EDT Attachments: Okay with me as long as it?s okay With OLE). From: Silas, Adrien Sentfriday, May 26, 2006 5:03 PM To:Senger, Jeffrey Edney, Michael Co:Leiter, Jordan; Gorsuoh, Neil Subject:FW: OSAG Questions on Detainees OASG and OLC reaction to CIV response below? From: Cummings, Holly (CIV) SentThursday, May 25, 2006 1:50 PM T028035, Adrien A SubjectiFW: OSAG Questions on Detainees Adrien, Below is ClV?s response. Prom: Henry, Terry (CIV) Sent:Thursday, May 25, 2006 1:35 PM To:Curnrnings, Holly CcrNiohols, Cari Garvey, Vincent Katerberg, Robert (CIV) SubjectRE: OSAG Questions on Detainees We have concerns about the ability of a DOJ Witness to credibly assert that "no evidence has been obtained at Guantanamo Bay ?through the use of torture.? Accordingly, we suggest the following edit: 1. The Bill of Rights protects the right to be free from coerced confessions, both to pretect the civil liberties of defendants, and to ensure the accuracy of information relied Upon to deprive individuals of' their freedom. Setting aside the question of what constitutional rights apply to' the detainees at Guantanamo Bay, would you agree that evidence obtained through the use of torture should be treated as suspect? - ANSWER: As the President has repeatedly and unequivocally emphasized, the United States neither commits nor condones torture. See, Statement on United Nations international Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167-68 (July 5,2004) (?America stands against and SJC DOJ Gorsuch 000023 .. f1: ?1 will not tolerate torture. We will investigate and prosecute all acts of torture . . . in all territory and or our jurisdiction. . . . Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere?). Torture, moreover, is a federal crime, is not permitted, and cannot be justi?ed for any reason. Thus, no evidence has been obtained at Guantanamo Bay "through the use of torture." in addition, the United States has undertaken an international law obligation "to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings.? CAT Art. i5. And, the General Counsel of the Secretary of Defense recently reaf?rmed that statements established to have been made as a result of torture shall not be admitted as evidence against an accused in a military commission proceeding. See Military Commission instruction No. ?10 (Mar. 24, 2006). Terry M. Henry SeniorTrial Counsel Civil Division, Federal Programs Branch U.S. Department of Ustice Tel. 202.514.4107 The information in this transmittal (including attachments, if any) is intended only for the recipient(s) listed above'and may contain information that is privileged and confidential. Any review, use, disclosure, distribution, or copying of this transmittal is prohibited except by or on behalf of the intended recipient. if you have received this transmittal in error, please notify me immediately and destroy all copies of the transmittal. Your cooperation is appreciated. From: Cummings, Holly (CIV) SentThursday, May 25, 2006 12:25 PM To:Henry, Terry Katerberg, Robert (CIV) Cc:Nichois, Carl Garvey, Vincent (CIV) Subject:RE: OSAG Questions on Detainees Please see below and advise. Thank you. From: Sanger, Jeffrey Sent:Thursday. May 25, 2008 12:02 PM To:Siias, Adrien; Monheim, Thomas Ccheiter, Jordan; Edney, Michael; Libutti, Tim Cummings, Holly Gorsuch, Nell SubjectRE: H38, Detainees - OASG (Control -9?l24) is Civil okay-with OLC's proposed answer to Feingold 1? if so, We appear to have reached an accord draft accommodates the concern that CRM raised). i found two typos: in our answer to Feingold 3, change "mad" to "made." in our answer to Feingold 5, remove the hyphen from "one-hundred.? Jeff From: Silas, Adrien Sent2Wednesday, May 24, 2006 8:53 PM I Todvlonheim, Thomas; Gunn, Currie Sanger, Jeffrey Shaw, Aioma A SJC DO.) Gorsuch 000024 mum. of Cc2Leiter, Jordan; Edney, Michael; Libutti, Tim Cummings, Holly SubjectIHSEi, Detainees - OASG (Control 43124) have attached the only comments received from DOJ components (from OLC, 01V, and CRM) in response to passback of interagency comments on these OASG (MA. The component comments go beyond responding to the OMB passback. OLC, .in particular, would like to submit the rewrite to OMB for clearance. ODAG and OASG views on what we should submit to OMB in response to its passback of comments? I. 0Lc COMMENTS: From: Edney, Michael SentiNednesdey, April 05, 2006 5:02 PM To:Siias, Adrien Cc:Eisenberg, John; Willen, Brian; Boardman, Michelle; Smith, George; Mitcheil, Dyone SubjectzRE: H36, Detainees - OASG (Control -9?124) The Office of. Legal Counsel has rewritten these QFRs. For your convenience, we have attached clean and blackiined versions. This changes are important, and we require ccnsuitation in the event any are not implemented. Thanks, and feel free to contact me with any questions. File: Final Edits Clean.wpd File: Final Edits Blacklinewpd Michael J. Edney Office of Legat Counsel United States Department of Justice - (202) 514-0188 ll. COMMENTS From: Libutti, Tim? Sent:Monday, April 03, 200611209 AM To:Silas, Adrien H36, Detainees OASG deA (Control ?9124) ijust received the email below. My previous email on this is below. Thanks. From: Henry, Terry (GIV) Sent:Monday, April 03, 2006 10:57 AM To:l_ibutti, Tim (ON) Cc:Nichols, Carl Katerberg, Robert (01V) SubjectRE: H36, Detainees OASG (.1ch (Gontrol 43124) Tlrn, One folicw up, if the fact that Feingcid i is not tethered to military commissions is giving folks pa use about not taking a position, one ?x would be to preface the ?rst sentence of the answer we suggested below with, ?Given that the question necessarily implicates the military commissions at Guantanamo Bay that are run by the Department of Thus, the answer would read: . "Given that the question necessarily implicates the military commissions at Guantanamo Bay that are run by the Department of Defense, for this qLIestion, the Department defers to the Department of Defense. Our understanding is that the Department of Defense explicitly prohibits the use in military commissions of evidence obtained by torture.? SJC DOJ Gorsuch 000025 Tam=,\ Terry M. Henry SeniorTrial Counsel Civil Division, Federal Programs Branch LLS. Department of Justice Tel. 202.514.4107 From: Libutti, Tim (01V) Sentliilonday, April 03, 2008 9:26 AM To:8ilas, Adrien . H36, Detainees OASG (Control ?9124) The comments below are from Terry Henry (Federal Programs). Thanks. We continue to believe that the response to Feingoid question 1 (to which Mr. Wiegrnann refers) should continue to "defer to in this context given that the matter involved (military commissions) is one as to which DOD has responsibility. However, the response could be changed to the version outlined below. We would defer to OLC regarding whether the response should include any more general statement about policies against torture or the use of evidence obtained by torture as Mr. Wiegmann suggests. Thanks. Questions from Senator Russell D. Feingoid 1. The Bill of Rights protects the right to be free from coerced confessions, both to protect the civil? liberties of defendants, and to ensure the accuracy of information relied upon to deprive individUals of their freedom. Setting aside the question of what constitutions! rights apply to the detainees at Guantanamo Bay, would you agree that evidence obtained through the use of torture should be treated as suspect? ANSWER: For this question, the Department deters to the Department of Defense becadse Military Commission members are in the best position to address the goestion in the context of a particular case. Our understanding is that the Department of Defense explicitly prohibits the use in military commissions of evidence obtained by torture. ill. CRM COMMENTS: From: Letter, Jordan Sent: Thursday, April 06, 2006 11:58 AM To: Silas, Adrien Co: Brennan, John; Opt, Legislation; Sternier, Patty; Samuels, Julie; Campbell, Benton; Edelrnan, Ronnie Subject: CRM comments on H36, Detainees OASG (Control ?9124) Adrian: sorry about getting back to you so late on this. 0T8 is still reviewing this (we only sent it out to them this morning). Our appellate section has already noted a concern, which I have reprinted below (from John Dren nan). My only comment concerns our response to the second Sen. Leahy quastion, which is about whether there is a realistic possibility that we will prosecute long~heid detainees in federal court. i wouid not respond. as we do, that a factor informing our prosecutorial discretion is consideration of detainees? "allegations of 'harsh conditions? and 'repeated interrogations? . . . i think that what we mean to say by this is that it a detainee alleged harsh treatment, the allegation would matter to criminal prosecutors and SJC DOJ Gorsuch 000026 would cause us to think hard about whether we have in fact obtained reliabie, admissible evidence from the detainee. However, as currently written and in the eyes of an uncharitable audience, it could suggest instead that if a detainee alleged harsh treatment, we might opt to continue that detainee?s status as an enemy combatant rather than risk exposure of, and investigation into, the mistreatment allegation in federal court (which is plainly untrue). In otherwords, it might erroneously suggest that our prosecution decisions favor a approach by GTMO detainees. iv. REQUEST FOR COMPONENT VIEWS ON THE OMB From: Silas, Adrien Sent: Thursday, March 30, 2006 4:07 PM To: Libutti, Tim Edwin Kneedier; James Beilot; Kevin Jones; Winnie Brinkley; Wykema Jackson; Dyone Mitcheli; George Smith; Michelle Boardman; Betty Lofton; Julie Samuels; Legislation Patricia Massie; David Smith; Natatie Voris; Little, Kimani Beth Beers; Caroi.Keeley@ic.tbi.goy; dcoates@leo.gov; Kristen Mack; L. Sue Hayn; mhowell5@leo.gov; Rene Morton; Spinola, Teresa Ed Ross; Matthew Bronick Cc: Monheim, Thomas; Rybicki, James Blake, Dave; Atoms Shaw; Currie Gunn; Jeffrey Sanger Subieot: H36, Detainees - OASG GSA (Control ?9'124) Please provide me your comment or ?no comment" on the attached OMB passback of interagency comments on the Justice Department's draft responses to congressional questions by no later than ?10 a on Monday, April 3, 2006. Thank you. File: H36controi.pdt File: 06?24?05 re QFRs for Wiggins from 06-15-05 hearing re Detaineespdf File: terrorYOaJeLWpd File: terror?0b.let.wpd ODAG OASG OSG OLC GRM EOUSA JCRT FBI BOP m~?Originai Messagew?d - From: Sent: Wednesday, March 22, 2006 1:00 PM To: Silas, Adrien Cc: JohnHD.HBurnim@omb.eop.gov; Subject: RE: DOJ responses to questions from the 08-15?05 hearing re Detainees a For Clearance Just Wanted to share with you the NSC (Wiegmann) comment on this QFR. i guessi am OK with this if and State have cleared. I would think there, could be less "defer to answers though, and i would think DOJ would have a View on the one question relating to use of testimony obtained by torture. Also would suggest supplementing that answer by sentence law and policy does not permit the use of torture." Please edit as appropriate per Brad?s comments. OMB clears. Thanks, Bryan SJC DOJ Gorsuch 000027 Message?~~- From: Adrien _Silas@usdoj.gov Sent: Wednesday, March 22, 2006 10:53 AM To: Legaspi, M. Bryan Subject: FW: DOJ responses to questions from the 06-15?05 hearing re Detainees For Clearance Any progress on OMB clearance of this one? . Message?? From: Silas, Adrien Sent: Thursday, February '16, 2006 12:02 PM To: M. Bryan Legaspi Subject: FW: DOJ responses to questions from the 06-15-05 hearing re Detainees - For Clearance Thank you for pointing out this omissi on. I have attached a revised version, With the ?all? deleted in Feingold question 6. w?wOriginai Message-4m From: Sent: Wednesday, February 08, 2008 4:13 PM To: Silas, Adrien Cc: - Subject: RE: DOJ responses to questions from the 064505 hearing re Detainees For Clearance Adrien; l?ll forward these comments to DOD to see if they have any objections. For Feingold Question 6, the revised version does not seem to incorporate State's edit (to delete ?all") and the comments do not address why D03 did not want to accept that edit. Could you advise why? Thanks. Bryan ??-?uOriginai From: Adrien.Silas@usdoJ.gov Sent: Tuesday, February 2008 7:48 PM To: Legaspi, M. Bryan - Subject: FW: DOJ responses to onestions from the 0645?05 hearing re Detainees - For Clearance The Justice Department has the foliovving response to the OMB passback of comments on the Justice Department?s responses to questions from the Senate Judiciary Committee concerning detainees: Biden Question 5: While have concerns about the proposed response to question 5 from Senator Blden, this is a complicated issue and would be in a better position to draft a stronger response. We also question the tone of the proposed revised response. Additionally, we note that the proposed response appears inaccurate, in that it ignores the Government resources expended to create and implement procedures for the Combatant Status Review Tribunals. We believe that the original response (deferring to should be retained. if it were necessary to revise the response along the lines of the proposed revisions, we would suggest using the following text". The Department of Defense has informed us that all individuals ultimately detained by the were initially screened through an extensive multi?step process to determine their enemy combatant status SJC DOJ Gorsuch 000028 and whether detention at Guantanamo was appropriate. information on this process is avaiiable through the website at: The subsequent Combatant Status Review Tribunals provided considerably more extensive process to detainees than the procedures that implement Article 5. . Biden Question 7: We are 'not in a position to confirm the accuracy of the numbers i? and ?nearly 500?) in the new, redlined answer. The poison who inserted them should confirm their accuracy. Moreover, it the original answer is replaced, we believe that the response must be prefaced with ?Our understanding is that Cornyn Question 1: We will delete the text in the response beginning with "in lraq, not only" and ending with "hundreds of casualties". Due to the passage of time, the events these sentences describe no ionger constitute current events illustrating that the war against ai Qaeda continues. The exampies would be awkward and not nearly as persuasive because the events are no ionger current. DOD is in the best position to confirm the accuracy of the number contained in the proposed new response. in addition, we recommend replacing the new text with the following: and DOD has effective processes in place to review, on an annual basis, the status of enemy combatants detained at Guantanamo Bay, and to release Guantanamo detainees from US. custody when detention by the US. is no longer necessary. While more than 230 detainees have departed Guantanamo, detainee releases and transfers are not without risks. The Department of Defense has informed us that approximately a dozen detainees who were released from Guantanamo are known to have later taken part in anti?coalition activities. Additionally, the last sentence of the DOJ-proposed response also appears in the response to Senator Leahy?s question 1. However, the passback wouid deiete this sentence (along with other text) from the Cornyn response and rephrase it. It is unclear to us why this sentence would be acceptabie in the Leahy response, but not in the Biden response. Leahy Question 1: We will delete the text in the response beginning with "in Iraq, not only" and ending with ?hundreds of casualties". Due to the passage of time, the events these sentences describe no longer constitute current events illustrating that the war against al Qaeda continues. The examples Would be awkward and not nearly as persuasive because the events are no longer current. Leahy Question 5: We believe that the response the Department of Defense proposes should be prefaced by the foliowing: ?Our understanding is that. . since our knowledge on this point is based primarily on DoD?s information to us. Feingold Question Saying that We defer to the Department of Defense regarding the weight given evidence obtained by torture ?because Military Commission members are in the best position to address the question in the context of a particular case? is problematic. The question asks about evidence obtained by torture and there are treaty obligations prohibiting consideration of such evidence Whether torture has occurred may be a question of fact for a military commission, but the weight given such evidence may not be, depending on how one views the applicability of the Convention Against Torture. However, there is no need to address the issue head on here. Therefore, we support the original answer: ?For this question, the Department defers to the Depattment of Defense." and oppose adding what is effecthleiy an af?rmation by us that the military commissions can consider evidence obtained by torture. We suggest replacing the proposed revised response with the following text, which we believe makes the same point, oniy more cleariy: For this question, the Department defers to the Department of Defense because Commission members are in the best position to address the question in the context of a particular case. SJC DOJ Gorsuch 000029 Jug.le Feihgold Question 3: We strongly prefer the original ddstice response, At the very least, preface the edit with "Our understanding is that . Feingoid Question 6: The Gerrth citation for the offense of spying under the UCMJ is U.8.C. 906 not "90" as the draft states and we make this Chang e. We have attached a revised set of responses. <> SJC DOJ Gorsuch 000830 McNulty Art. lidoc for Printed Item: 1226 (Attachment 7 of 14) 3-4 Article II Authority Issue: Do you believe that the President has the power under Article ll to ignore laws enacted by Congress? What is the scope ofthe President?s poWers under Article Talking foints: The President has a constitutional resPonsibility to ?take Care that the Laws be faithfully executed.? Therefore, he cannot ?ignore? laws passed by Congress on refuse to enforce them simply because he may disagree with them as a matter of policy. - The President, however, also has a constitutional responsibility to preserve, protect, and defend the Constitution. It is therefore the longstanding position of the Executive Branch that the President may decline to enforce an unconstitutional law. The artment of Justice under Attorney General Reno described this proposition as ?unassailable.? i" To avoid the need to decline to enforce a law, it also. is the lengstanding practice of the Executive Branch, as well as the courts, to construe statutory language so as to avoid serious constitutional problems. Background: Article ll of the Constitution vests ali ?executive Power? in the President and makes him the Commander in Chief of the Armed Forces. The Supreme Court has long recognized that the President has bro ad, independent authority in matters of foreign affairs and as Commander in Chief during war. The President, for example, is the ?sole organ? of the U.S. in international relations (Germs?Wright), and foreign policy is ?the province and responsibility of the Executive? (New 12. Egan). Of course, the President?s powers in matters ofwar and national security are greatest when supported by a congressional enactment (Steel Seizure Case). In conducting the War on Terror; the President has acted in conformity with applicable statutory requirements. 0 Five justices of the Supreme Court concluded in Hamdz' that Congress, in. the Authorization for the Use of Force following the attacks of 9/11, ?clearly and unmistakably? authorized the detention of enemy combatants in the ?ght against our nation?s terrorist enerm'es, as a ?fundamental and accepted incident to war.? SJC DOJ Gorsuch 000031 McNulty Art. ildoc {extracted} for Printed Item: 226 (Attachment? of 14) H4 E?v 0 Another ?mdemerital and accepted incident to war is conducting surveillance in order to detect and lo oate the enemy and to learn his plans. I The AUMF therefore also authorizes such surveillance, and provides the statutory authorization contemplated by the Foreign Intelligence Surveillance Act (PISA) for surveillance outside the prooedures of PISA. At this hearing, it would be imprudent to purport to define the limits of the President?s constitutional powers based on hypotheticels. SJC DOJ Gorsuch 000032 I "a McNulty Art. ILdoc wa or manner: wm?d druid! sub m3?! mat! In: delay, ?it: in?esiigkf?ag of?cer a?mild in?rm the am dim this invgs?ga?on, I A The} mvigiomin EB), rpquirlng the. i?va?ga?ng d?icer the Wrists. aw?zorf?b?s :1me 113 ?113 slog;de for Wan-p11ng mael? Mil. 3.13%. '505 191? 505, iafmr the 15% of pining the wn?ata all?u?ta? em nether that an 01:56:, as autharind be 1n matey; w?aiever the ga?af?rpma?t may decide'to r64 tease '10 the accused. . .E. 4.5 .. 9?1-?ha i?vas?ga?ng of?~ ?Gar make an- ini'tial .demnnina?an whethar a. whims is aVaiiahIe. If'?m- invw of?qar (techies ?int the witness is 316i feaa- $6133th aifa?aihia, the: investigating of?cer shall infirm 13h; pantigs. Cilia-wise? the: immEdiate 30:31? mam ofthe wimezss shall he {6:13:63th t0 make? this wim?s's ayaiiahfek ?datennina?pn By the: imm?di?at? man-1:131:66: ihat the witness is not was malady availw bla is 111231: ?suhicet ta ap?geal by thaw accused but may be mviawe? '35] that: milifary judge u?tiezt? REM. 90503.33}- Diaaussi?on '1?qu mm?ga?ug of?cer may {Emma ?pm-affw??g mas?mbio avaiiab?ity @111 the imimdiatb enninihndat?f th? Win-1m!? ?sh neSS'?'tIcl' ?w?h a?mr?s. If'ths immcdiafe somqu gimmima {nae the Minus is no}: reasond?iy gya?gbia, the: masons that shor?? he. ?mvfded II: we. investiga?ng o?iom; . - The investigating hf?g?Se?f c! Whether a civilian wima?ss is manageny ayaila?ls to a5 a? mess? Discussion I Ef?e in?gw?ga?ng af?rm shun-Id initially detani?ns Wham *5 Gym-Mme? is m?s?m?yraw?able wimmlt regard to make: 'the vibrate-s is w?i'ixlg: m-?pp?nruff thy investigating a?csr?azer- mines that a aiv?i?n ik away Max:351? magma,- Mmesi a?pultf hi: invlw?? to m1ch Eirft wha'n 29mm, i?f??IiEd that enigma w?l 129 Iftha wims m?was m?m?i?y. .1119 is net mama?y' avaiia?e lawman: ai?liw Witnessem net 356 sum: 51- pmtn?ai invm?ga?nn. Undbr subsection {333(3) af'this SJC DOJ Gorsuch 000076 wag-W?! my. it: 112% .m'qu-an? at a! 33W jag ?igig?ijzet ??zz-i we: saga make? 511 $359.1: gimme; is mimgig?rfg? gt: . aim. it *?zgt mama?- a1? mil-a; ii:ng- 1" $35 Maggie; ?9111}? MEL mute-3g? ?amiim??m? gamma we is mi: ?afm??i??a?iifa?e is 3:91?: aim-Eerie apir?hl ?ag has vim?? an: 13mm? ?mifaf; R.QM., 965mm) Bikwss?ian - $111 Mam: If 13W: Wiggm?ljia?gm?fm?bna?? g?wlaare; .?wt?w?i?gd? gati?g?f?cm . 322m my p?r? 43 via 5:583:32? waf?e. aai?em? iaiaf??ta? as n?aaitfian 3133f tibia $113171 '?l?leii? a 'Sfawgaz?nt-u?ha Wis ?ie 331a mart? (sf mes?ga?m aways. Erang'gn?g?an exp-gages mid 1161}. Jim mm 132%" reqng tar :tzonm?fm?sx??h mmvea?gw ?rst; ma?a mfg? gammy; ti}; :mg?a?m?s pm am"th aka cf 3 (Emant ?ls?c?usajan ?59.3 9? 13m 3659*; mm: Regulaan Voi. 2, 9m?1?3?m cam, mean. (A) Hit?313533 gig dam; ?an i?y??fm??g 9mm my-midggv?g?qm if ?le witness: {-33 swam maximum: 111243;: :oafh' taken. by tai?u mam {if m??na web PM if}? 19: zed:- W?ie?. ?it} nf??e: may ma?. ??ux?ll??i?f that the "smiles? i?m?g is, as (331)? P?er tb?s?iimgy mick- path; {fig}. awaiting; @133 and 95613:: of 93321913 at? wa-?meny ?Qf' may esi??i'dhr; 43? jarg?m ?s?fense, gram "the Wing is- 1'39? WNW avaiia?i'm W?mantg ma: oath .taken by tele? @133}: gravidng e'aohjgm?y ?les m-gimg?m 3113' witness. under . wen o?icar may 1113?s: the was" identity is a ?emitted; . ?as?x?my oath; aid jaws?i?m mt: mm; and Er} In. vqf-mm? Stat?ments. gimmer ta; ma?a ?a?n?ae dial-eats, an in?ating swag: mm wa?ab?ity 13f tli?: . ?e?s?fibing the e??pn?e; ii} milim ghota .ar ?if :mf ?rm ?33m; aawmiye Ta: te??fan?m wan-136% .. mam gag?(gas; this mag. ia Whi?i ills; EA :faog- skew mt?s um" fem; "Ii? gamma damihiug. 1313 est?? idea's? at . {if liar?nant charaetga?fs??s a? ?xes? . ?Eha iwea?'rga??g may consider, @1555: n?wtimo?-mq Wm,- w?m 11m evi?tenca-is gilt W?a?l?i? 'We??many ?le .e??'ende; {ii} an _au??ea?isatm 96px? phemgr?agh, r?pz?dug?an ?of simiaa??aam Qf't?? a?e?m; an, aiman wet?eagig??ny, whag gar". wm?a?a male, in my?id?negii?szdegq Hair . um SJC DOJ Gorsuch 000077 {if fact er axp-eota? . Mmah .. i163: 417519] ffb?ec?ve ordgt? ?rregaam ?51" privileged in? ?rma?rzm p?or' f0) refe?izah {13? ag?ies. to $303036} ti: 31? (acmd ?in?ammation to- whiuh the ?amed Bow; or 596. aathgri?gr, at other pawn ?esigmte'ci is}; gegm??tm the, Eemctary 9f ?at: saw-its; ??nf?r gn- appmp?gte; gra- tasstiva: ma?a; in ?with; ta gum-1i against ?re? smut.- pmmisa ofinfnma?t?n ?imiaged to amused, terms, 9f any such gramme mam ineiude mkibi?ng' Em disalnm That mix:me mm: as g?ghn?ge? hy the a?m?g issamg Em gratec?va ordj?r, :as men an items Ivfil. R. fvid. Sng?je?-?hmgh or Sli?fg?a? through 5): (l1) Fracedure. (I) wagrm?m gf?mfdeme. (A) fe?sffmany. All testimony $11311 ?be: taken mdar mm, '65:wa ?lm; 3219 Mum may an 3mm.- ?I?he be given wide 1mm ?in grassy-awning wimeg'seg. Dismmiorz The: f??wiug oai? may be; aim Mamas: I ?3331 ?n (swear) ?at file egid?uec you giva?g? .bp 353?}; but?m I. an 1:65 51611 The: ?vet?ga??g of?cer is mgkitaiilzg ingluge in ting-W of? the is W'p?'?m'gg??mg -_af all Seaguiiwg?an 6mm} ot?this?m??a, Haa?gg'??m ga?ng??-?iw mi: 11%? 'suhaiance.ef 1hr: testimony 61? wet; .yt?ggegg. tie; mm mi it mule W5: @1351. wmy?q?qu of juvea?gg?un, have each ?times: iris? 383.958! m? the: 12mm (sf ?fe: t?sgbra'?va samua?? ?Thar fo?uwing- ciai? amt-"bu 133? wiin?ss iil. 1.111631 3936.8: (mm) {4:152:51in 'iimt?iis stamnt-ia tin: truth ?an mm amt mmg?hai the: ma: (. ga help you. If ame? 1116' inves?ga?ng uf?per may iiwiie 1m]: th'? as meat int {he (If a autism 39mm wfkai?in nah?!- d?am?mny ?r teem diugmf mam-r; Hm.?k?ea dux'i?g tbs: ?vesan my aTmul'd? be: "gimmbd' un?! ?im??a ?of 'Ifit mas-.2223; {?at matq??-wimessgs fan1 ?rings sida?wi??mt Ba $3111: the ag?giga'ted 4:131?th invcs?gati?hg af?cem'hqn?a 23931253? the mgr-vegan dirqew? 4116: inm?ggn ?rm as} 441a; ?sgq?i?mis: may be ?it? if mummy. dsztix?rg Hi!) aiihjaet ti: ting ?(gig-i3 gamma {if an ammund?g?r??i?r??da; ihe inv?s?ga??g o?wr. ?sh?a?itt ?amply with wagging mquiwmmw of @131. 395130} 3&5: if (Bag 03%? evidence. The inws?gatihg ef?wr 1W8 shall what'e?mr- Magma he pgt?gs shall td: 12:33:15 igla a??i?h?r Bizidence; ceaside by 1&6 inv?s?gap ing' gamer. Dg'eme .avfd?migg. f?x? ??f?ma 3111311 ?113576 ?1.13: 13:63th my mam in defbmca, axtanminn, h: mitigating. ?izf?q?om. Any ohjau?a? alleging to with mm amapts?bsw?nn?}; :13 mm: .to immigrating-omm ptmp?y 11pm 31$ ec?z?i?y cf ?ag allegad war. The im?s? g?gg'iaf'?eer 's?ln?l mi; 151; raga-frea? tn- mk: any pet-ism A51 abier?tiah s??afll be: mined in tie-men af?x-testi?es: if a gait? an feq?gs?t?. The ?ves?ga?ngio?iaar may requiie a to any obje?iiun in Wang; ?i?m?amn See alga 9f this tab Elimth inve??g?ting is nefi?gl?r?d f? mic 011 a?ec?ons, mi?veh?guti?g? o?i??eei? :?ay 42va maes?ve-gg?qu?in We} Ea an tq mammal:ng the ch??uct-?of the: whaa?le {?vw?ga?ug af?cexr beii?ves new ?rst: is gramma- - mi obj?e?gn meg-,3 W?ol'l??lmui?a: matter airwtadm ihves?g?zi? 113311 (for Win whether 1:11: i?vi?sifga?ug ma a??n?ga?hag? iafqrm we: mmgierr wga ?imata? ?aw imis?ga?mi. A?aeas by 337%me Mama by 'sne?tatgtsio all or part pf'the may 13-3 .mtricted; or ?nalisach in the- gamma ?f?tha cammwder grim ?it-acted 1312?.i i?vesti?ga?gn m; the imggtiga?ng af?car; hi?cugsi?n Gleam-may mama? mmyiebe tgsiimqny Ewan ambassta?se? :51- witagm. 'of a 1mm: hvwfiga?qn shojul? 13a" epe? 113? imam. log.? af?rmed: Th5 ?i?her the taking 0f evide?ae shall ha-yrev??e? mid ?at; aqeusad-s?imli? be censidbradm haw Mama irks?: ri'gi? is he: $33913, whencwr ?ag: mans-ed: being as? 111$; timeE?an? piase . af the hi wiwmy 'a?bggat (mama: net infameii by the inveg?ga?ng 031%? cf them-:11; gatian to be plibs??f); gr (B) .A?an?baihg wata?d by inws?gating of? ?ber ?is?mp?va (-3.0th yv?i cana'e remaval ?59m SJC DOJ Gorsuch 000078 the pmqae?hlg, parsis?gs in dondu?f Whigh is sng?h as to jumify sxelusi?dn the prgw?t??g Rule? (if mama. Rulss E??encw?ther NHL 1 Eyid. 302, 3TH, 1305., 21-12 3110 Bastian 53,1 15mm} invastiga?gng made:- ihisr. n?e. Dis?us?ibn The invgs?ga?ug amuse mahabie mire} ever the afaap?e? ufnha we subw??bn pf this 31116; An inve??gd?hg, 90331103; awn i?i?ethnt?vL ?ance imam mt 139.. 53:31:3ng at (10(4) of this rule :25 {imitations en Whig!) ?s?a main: my. mm icin??g to the farm at tektinmny whisk maybe m?ai?m?by?tha inm?ga??g a?aer'app?ar in?m?mtion of ?air:- Rape?! 9f i?vem'ga?an. Ii: gamma}. The, investigating af?scr shail a th?nl}: w??an xegoff of? the i?ms?ga?m ta 0?10 c?mmandei whiz dimmed the Wes?ga?un. ?lscussibn If W?blc} ,thg, ahaxgeg an? apart of inm?ga?en ahnuw be fm?e?i am the 'g?nml eb?rtdmaz??l boilir'eii?ig I autliorty withiz': 8? days a?er an: homered 5:119 meat or?m?n 1:35:31. 3:66: 33. (2) Emmy. The'mpart {if imvebtigatiazi aha-i} include: (A) A statement of names anti .nrganiaa?ans 6'1" addmasag of def?nsn gamma! anti wh??fimr game 'equzgsai wag phes?ut woaghaut ?xer 9? avi- eianog?; if act the reason why; The sabstause pf the Tigs?tf?mny mi hath sides, including any s?puiat?d mummy; (C) Any Ollie: 639mm; 92 mat- ters, consi??i?ed by ?it: iawastiga?ing of?cer, orwea?fm ala qf 131:: substame pr Bailiff} of sueh wi?enw; (D) A- Stj?af?menf dfmiyi?astgnahle g?ou??at fer be?ef that ?the accu?ed, m?f?ta?y for af?liate: or w?si net painpamnt to particig?te in the defensa during 1ha'investiga??n; ?iswssian See ?06315. 9:19' (mania! Sagacity); savage, (manta! rizsjgan?i?il?y). (E) A stath the: ?385er Wimessas MM 395m} will his ava?eihta? at the time an?eipats? for t??'al and the! Mamas why any aswntialwimass may not than be; availabie; (F) explanation of any delays in i?vas?ga?on; f1?) inmtiga?ng officer?s 901101118011 whether the. chafg?eg' and gpeoi??atfans are in preps: fem?1; (H) Tim gnyegg?ga?ng of?cer?s m?ciusion whamr ze?zgonable mama exisi 'ta b?li?V? that the 'accgsad the ??anses alleged; and . (I) ?I?he Macmme?da?bns 6f the investigating nf?car1 handing dispo?ition. nisauswon the investigating G?ic?' may mat the mid spasti?ea?s?s he ?ni??ded or that additional charges BE: ?99 {23,155. 396' and JIM cumming mixer 110331811: mgpm?ms. Sag Apgen?ix 5 far a samgIe of tha Investigating D?iear?s (120.35on 457), Dfs??ra?on of?rlze The invas?tiga?ng ruff-3w: shat} 631233 the 1613014; 113' ?96 ?eliVnIed to the. aman?er WM 711% ?i?v?atig'a'tigm That cammandar aha?1'1 preamp-?y cause a aopy an? the wait ?g 12;: :d??ve?ed to. Bad} anew-ed. (4) ?lyeri?om My objed??n to ?le regent shail b6 ma?a In ?xe- aom?nandezr who directed the inveg?? g??m '5 d?g?ya {bf Em map: By that steamed, T1233 suiasmtion ?aw not ptdhil?i a comni'ag au- tharity ?am mfarrmg tin: .charg'es air taking a?mr action within the: ?n?ay petiorf. Waging: Th6 .aecqsed may mm: an investigation under this fate. In ad?ifipn?, failma ta mm: a timely uh?ation ?13163 ixialud?lg 3?11 tn the? ?69011, Sinai! caixs?ma? waiver of the ohieetian. Re?af ?39m the waiver Bi: W11 by the iiwas~ ?ga?ug- of?ceg, the eelmnander .wha diraateci ?ier invas?ga?nn, ?re cunva auth??ty, :the m?in far}; judge, as appmp?izte, far ?giao?d ?cause ahaw?? Discussian am REM. mum . If the: {wert??g?s -'tp i?c??gdis?xcferencc to 91:13th which mm; made Index giqu (hm??fthia rul?. ?ame to t9 tha him]: object-3m in ?le absmee of gGD?'eHusa?fdf relief ?om ?lquim?. 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WW. aMaggii-?gm?ma ah?basai?g?a?amf @2793; imp-ma?aabieg?eza ism?! aagtaisamen??hv rm :ihmgewmaz Elan wgi-s {?rea?h para-51% gad?gmresiti? 47,. :ggmpii?'aa?'b?a duixqammai'??j'in tam! ?f ?933 glitz: 215%; s?izi?'e- 9% mil. Ears. ai?iaa??gf age gazxgzemga?mgg; mg??ei?i? 1:13. ?ega?m??t?f??efama .3ng 'F?ntag?a n, gaggag?ag h- ra'niona raw-?n? SJC DOJ Gorsuch 000086 jam-ig?emmg SJC DOJ Gorsuch 000087 massages From: Sent: Tm. Subject: Elwood, iohn Thursday, February 2, 2006 10:23 AM Neil RE: Layers of review Here's from a draft answer to Specter: "The emergency authorizatin provision in FISA, which allows 72 hours of surveillance before obtaining a court order, does not?as many believemalow the Government to undertake surveiliance immediateiy. Rather, in order to authorize emergency surveiliance under PISA, the Attorney General must personaliy ?deten'nine? that . . .The tactuai basis for issuance of an order under to approve suoh surveillance exists." 50 FISA requires the Attorney General to determine that this conditi on is satisfied in advance of authorizing the surveillance to begin. The process to make that determinatlno, in turn, takes precious time. By the time i am presented with the applicatino, the infonnatino wii have passed from inteliigence of?cers at the NSA to NSA attorneys for vetting. Once NSA attorneys are satisfied, they pass the information along to Department of duetioe attorneys. And once these attorneys are satisfied, they will present the information to me. And this same process takes the decision away from the intelligence of?cers best situated to make it during an armed conflict. We can etiord neither of those consequences in this armed conflict with an enemy that has already proven its ability to strike within the United States.? From: Sent: To: Subject: Gorsuch, Neil Thursday, February 02, 2805 10:18 AM Elwood, John RE: Layers of review i?d appreciate those detaiis ifyou have them handy. Thanks] From: Sent: To: Subject: Elwood, John Thursday, February 02, 2006 Gorsuch, Neil Layers of review Did Eisenberg get back to you? if not, i have details on the layers of review necessary for even the most expedited of FISA actions. SJC DOJ eorsuch 000088 . - - 33.3353? I perm Fifi-{3m . 'iq?kf?ggai?. Ha?rgi?? - .. J?fm ma?ssgit??gi . . . 'aaw?ri?m Emmi {my . ?E?ggii ?i?ihmg??m??w?t??f?WE E?mggk? SEW - The nEeg??ar?ihan Wei iE-a gram gh??j 3.. {?ags Ify?i? ?if; .Enig?ti iigi?lf?r?i? ??i??iefbaiam?u?g F?ng [119ng ?t?is, ?at media-aha Ema: give? ma-?warza?h-angeaf?l?gg aid- kmqwe?ai?g SJC DOJ Gorsuch 000089 . Wm? NMG Draft 2/3/06 PREPARED ORAL STATEMENT FOR ATTORNEY GENERAL ALBERTO R. GONZALES AT THE SENATE JUDICIARY COMMITTEE HEARING - WASHINGTON, DC. MONDAY, FEBRUARY 2006 Good morning Chairman Specter, Senator Leahy, and members of the Committee l?m pleased to have this opportunity . to speak with you and thank you for it. When all the facts and law are considered, I believe you will conclude-as have, that the President?s terrorist surveillance program is justi?ed by the nature of the threat we face and consistent with the laws of the. United States and the Constitution we all cherish. kirk As leaders of our government, you know that the. enemy remains deadly dangerous. Only in the last few days, both . Osama bin Laden and his deputy have emerged from their caves to threaten new attacks. Speaking of recent bombings in Europe, bin Laden warned that the same is in store for us. He claimed, quote, ?the operations are under preparation and you will see them in your homes,? Bin Laden?s deputy, Ayman al-Zawahiri, added that the American people are and again I quote ?destined for a future colored by blood, the smoke of explosions, and the shadows of terror.? SJC DQJ Gorsuch 000090 Dm? 2/3/06 None of us can afford to shrug off warnings iike this or forget that we remain a nation at war. Nor can we forget that this is a war against a radical and unconventional enemy. Our enemy knows no boundaries, has no government and no standing army. Yet our enemy has a fanatic desire?to wreak death and destruction on our shores. And they have sought to fight us not just with bombs and guns. They are trained in the most sophisticated communications, counter intelligence, and counter surveillance techniques and their tactics are constantly changing in response to our tactics and what they learn. Indeed, they fight in ways different from any other enemy we have faced, using Our own technologies to their advantage: video tapes and worldwide television networks. to communicate with their forces; e-mail, the Internet, and cell phone calls to direct their operations; and even our own schools in which to learn English and how to fly 'our most sophisticated aircraft as suicide-driven missiles. We underestimate this enemy at our peril. To fight this war, some say that we should close our society and isolate ourseIVes from the world. But America has always rejected the path of isolationism, And I know you agree that following this course would sacrifice the core freedoms essential to the promise of this great nation. in order to fight this war while remaining open, democratic and vibrantly engaged with the world, we must search out the . terrorists abroad and pinpoint their cells here at home. And we must do all this before they can hurt us. To succeed in such a challenging mission against an amorphous and amoral enemy we must deploy not just soldiers, sailors, airmen and marines. SJC DOJ 000091 if?? f, NMG Dm?? 2/3/06 We must also depend on intelligence and surveillance experts and the nimble use of our technological The President made this clear?just after 9-11 when he assured the American people that he would use every tool in his power to protect this country, He said that some of these tools would be visible and obvious, while others would necessarily have to remain secret. Imagine what a program like the terrorist surveillance program might have accomplished before 9-11. Terrorists were clustered in cells throughout the United States preparing their assault. We know from the 9-11 Commission Report that they communicated with their al Qaeda superiors abroad using mail, the Internet, and cell phones, What might New York and Washington and, really, the whole world look like today if we had intercepted a communication revealing their plans? Of course, we cannot answer that question. But I am convinced that the terrorist surveillance program instituted after 9-11 has helped us disrupt terror plots and save American lives. [am also convinced that its continuation in the future is essential if we are to avoid another attack. this? In assessing the lawfulness of the terrorist surveillance I program, we must bear in mind the reality of 9-11 and the ongoing threat against us. In a democracy, the law can never be left to be decided by elites in a moral vacuum or based only on abstractions. Justice Oliver Wendell Holmes put the point best' when he said, ?the life of the law . .. . has been Experience." The experience of 9~11 - an appreciation for how it changed all of our lives irrevocably is essential to any sound'legal analysis. like this, though I am still a little concerned that this could SJC DOJ Gorsuch 000092 NMG Dra? 2/3/06 A leave the impression that we need to appeal to something beyond the law.] - I Immediately after 9-41, the President was duty bound as Commander in Chief under our Constitution to do everything he could to protect the American people. Like you, he took anoath to preserve, protect, and defend the Constitution. He told you and the American people that, to carryout this solemn responsibility, he would use every lawfu1 means at his disposal to prevent another attack, and he demanded ideas from his staff. v, One of the ideas presented to the President was the terrorist surveillance program. It involved the National Security Agency, then led by General Michael Hayden. To the extent I can talk about the details of this classified program today, I am limited to the facts that the President has confirmed publicly. No one is above'the law and I feel duty bound not to compromise operational details that remain classified. To reveal further classified information would be a gift to our enemy who, we all'know, is listening carefully to this discussion and will adapt to what it learns. After agreeing to authorize the terrorist surveillance program of international communications, the President imposed several-critical safeguards. These safeguards were specifically designed to protect the privacy and civil liberties of all Americans and to do so zealously. First, the only communications intercepted under the terrorist surveillance program are international communications that is, communications between this country and a foreign country. Communications that begin and and only within our borders are not involved. The President has repeatedly SJC DOJ Gorsuch 000093 NMG Draft 2/3/06 underscored that he has not authorized electronic surveillance for domestic purposes. [not sure what this means. He does authorize electronic surveillance here by FISA and title ill. Perhaps: underscored that the. program does not target domestic communications] Second, the program authorized by the President targets communications only if there are reasonable grounds to believe that one of the parties to the communication is a member or agent of al Qaeda or an affiliated terrorist organization . As the President said during his State of the Union, if you?re talking with al Qaeda, you better believe we want to know what you?re saying? But if you?re just a typical American going about your business this program is specifically designed g9?; to intercept your calls. - Th ird, in order to protect the privacy of American citizens even further, the President?s program includes strict limits on how information concerning U.S. persons can be collected, retained, and disseminated. These limits or minimization requirements are similar to requirements imposed by other . foreign intelligence programs conducted by the NSA and briefed to members of Congress. [olc correct? We need to let nsa see this] So, for example, if the NSA inadvertently collects the name a of a person in the United States who is not relevant,?that person many not be mentioned in any intelligence report by name. Fourth, this program is administered by career civil servants at NSA and it has been reviewed and appmVed by NSA lawyers and monitored by the independent Inspector General there. I have been personally assured that no NSA foreign intelligence program has received a more thorough review. SJC DOJ Gorsuch 000094 NMG Dm? 2/3/06 Fifth, the program expires by its own terms approximately every 45 days. Under the terms of the program, it may be reauthorized only on the recommendation of intelligence professionals. And it may be reauthorized only after a finding that al Qaeda? continues. to pose a threat to America, based on the latest intelligence. Each time the program is reauthorized, lawyers also must reassess whether the President continues to have the legal authority to conduct the program. Finally, the President instructed Executive Branch officials to inform leading members of Congress -- both Republican and Democratic about this program. The President do so in the spirit of national unity and bipartisanship following 9-4 As a result, the bipartisan leadership of both the House and Senate has known of this program for years. So have the bipartisan leaders of the House and Senate Intelligence Committees. Not one of these leaders has asked the President to discontinue the program. The recent claims of shock and horror we hear from some quarters about this program come as something as a surprise to me given the consultation the President provided the bipartisan leader?hip of Congress. Another claim that rings hollow is the notion advanced by a few that the terrorist surveillance program is somehow like the partisan political spying we witnessed in the 19605 or 19705. Nothing could be farther from the truth. The President and all Americans, denounce the inappropriate use of our intelligence capabilities against domestic political opponents. But leaders of Congress have known since the outset of this program that it is no partisan snooping expedition. instead, it is surgically aimed at those foreign terrorists who have repeatedly announced their intention to see our future, in Zawahiri?s recent words, ?colored by blood, the smoke of explosions, and the shadows of terror.? SJC DOJ Gorsuch 000095 w'JI-hr NMG Draft 2/3/06 think From a legal perspective, any analysis of the President?s program has to begin with the Constitution. Article ll designates the President the Commander in Chief with authority over the conduct of war. Article ll also gives makes the President, in the words of the Supreme Court, ?the sole organ [of government] in the field of international relations.? - These authorities are vested in the President by the Constitution and they are inherent to the office. They cannot be diminished or legislated away by other co?equal branches of government. And these authorities include the power to spy on enemies like al Qaeda without prior approval from other branches of government through a judicial warrant or a application. Now, let me make clear, this isn?tjust my opinion or President Bush?s. The courts have uniformly upheld this principle in case after case. I - Fifty-five years ago in Johnson Eisentrager, the Supreme Court explained that the President?s inherent constitutional authority expressly includes - quote ?the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns.? . More recently, the FISA Court of Review [in full, it is the Foreign intelligence Surveillance Court of Review] explained that ?all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain intelligence information.? The court went on to add, quote, ?We take for granted that the President does have that authority and, assuming that it is so, FISA could not SJC DOJ Gorsuch 000096 NMG Dra? 2/3/06 encroach on the President?s constitutional powers,? It is significant that this ruling stressing the constitutional limits of FISA came from the very court Congress established to oversee the FISA court. Yet another federal appellate court 'in US v. Trudng held I that, even during peacetime, a ?uniform warrant requirement would unduly frustrate the President in carrying out his foreign affairs responsibilities.? Nor is this just the view of the courts. Presidents throughout our history from President Washingtonto President Clinton -- have authorized the warrantiess surveillance of. foreign enemies operating on our soil. And they has done so in ways far more aggressive and sweeping than the narrowly targeted program President Bush authorized against al Qaeda;_ General Washington, for example, instructed his army, to find ways to intercept letters between British operatives, copy them, and then allow those Communications to go on their way. President Lincoln used warrantless wiretapping of telegraph communications during the Civil War in order to - discern the movements and intentions of opposing-troops. President Wilson in World War I authorized the military to intercept all telephone and telegraph traf?c going into or out of the United States. That?s each and every call and cable crossing our Nation?s borders. - - During World War ll, President Roosevelt instructed the government to use listening devices to learn the plans of spies in the United States. He also gave the military the authority to SJC DOJ 000097 NMG Dm? 2/3/06 access and review, without warrant, ail telecommunications, quote, ?passing between the United States and any foreign country.? Some scholars estimate that the use of signals intelligence as a whole helped shorten the Second World War by as much as two years. Nor have Presidents used warrantless searches only in times of foreign crisis and was President Clinton?s Administration, for example, ordered several warrantless searches on the home and property of the spy Aldrich Ames. His Administration also authorized the warrantless search of the Mississippi home of a suspected terrorist financier. The Clinton Justice Department authorized thesesearches because it was the judgment of Deputy Attorney General Jamie Gorelick that and quote [T]he President has inherent authority to conduct. warrantiess physical searches for foreign intelligence purposes. . [and] the-rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities As you can see from this brief overview, every court and every President throughout our history to decide the question has agreed that the Commander-in-Chief may conduct secret searches of enemy communications in this country without the prior approval of the other co-equal branches. And president after president has authorized programs far more sweeping than the narrow and targeted program that President Bush has authorized against al Qaeda. DOJ Gorsuch 000098 NMG Drg? 2/3/06 Some have suggested that the passage of'the Foreign intelligence Surveillance Act changed everything, diminishing the President?s inherent authority to intercept enemy communications. After all, the argument goes, Congress has the power under Article I of Constitution to declare war, raise armies, and make regulations concerning our forces. And in a time of war there is no question that both Of the elected branches have critical roles to play in the protection of the American people. But there are some flaws in this argument as well, As I?ve already outlined, nothing in FISA or any other statute can diminish the President?s inherent authorities granted by Article of the Constitution. Likewise, of course, nothing the President orders can diminish the powers of the Congress under Article I of the Constitution. The Constitution speaks to the inherent power of every co-equal branch. But we do not need to get into a debate over competing constitutional authorities to resolve the legal question here. Even if we assume that interceptions made under the terrorist surveillance program qualify as ?electronic surveillance? subject to the FISA statute, the President?s program is fully compliant with that law. This is so because, by its plain terms, FISA prohibits persons from intentionally engaging in electronic surveillance under celor of law ?except as authorized by statute.? 10 SJC DO.) Gorsuch 000099 If.? NMG Dm? 2/3/06 Those words except as authorized by statute are . important and they are no accident of drafting. The Congress that passed FISA in 1978 in the aftermath of Watergate deliberately included those words in order to leave room for . future Congresses to modify or eliminate the requirement . without having to amend or repeal itself. Congress did so because it knew that the only thing certain about foreign threats is that they change over time and do so in unpredictable ways. As you know, too, Congress doesn?t always include exceptions like this when it legislates in other more stable areas. The Resolution Authorizing the Use of Military Force is exactly the sort of statutory exception contemplated by FISA. Just as the 1978 Congress envisioned, a new Congress in 2001 found itself facing radically new circumstances and it legislated to recognize that new reality. In 2001, we were no longer living the aftermath of the Watergate, but in the aftermath of the World Trade Center. And?in that new environment, Congress did two critical things when it passed the Force Resolution. First, Congress included language eXpreSsly recognizing the President?s inherent authority under the constitution to. combat al Qaeda and its affiliates. And these inherent authorities, as explained earlier, have always included the right to conduct surveillance of foreign enemies operating within this country. - Second, Congress supplemented the President?s inherent authority by granting? him the additional authority to x- and I quote -- ?use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks? Many distinguishedscholars have observed that this is a broad grant 11 SJC DOJ Gorsuch 000100 NMG Dra? 2/3/06 of authority, and, we believe, one that includes electronic surveillance of those associated with al Qaeda. After all, we agree that it is a ?necessary and -.appropriate? use of force to fire bullets and mortars at al Qaeda strongholds. Given this, how can anyone say that we can?t also listen to al Qaeda phone calls? The term ?necessary and appropriate force? must allow the President to spyon our enemies, not just shoot at them blindly hoping we might hit the right target. In fact, other presidents have used statutes like the Force Resolution as a basis for authorizing even broader intelligence surveillance. President Wilson in World War I cited not just his inherent constitutional authority as Commander in Chief to intercept?telecommunications coming into and out of this country. He also expressly relied on a congressional resolution authorizing the use of force against Germany. And the language of that resolution parallels the Force Resolution in both tone and tenor. President Bush is doing nothing new here, but yet again following longstanding precedent. [can we work in again the point that this is much more narrow?] I have heard a few Members of Congress say that they personally did not intend the Force Resolution to allow for the electronic surveillance of al Qaeda communications. I don?t doubt this is true. But we are a nation governed by written laws, not the intentions of any individual. What matters is the plain meaning of the words approved by both chambers of Congress and signed by the President. And those plain words could not be clearer. They do not say that the President is authorized to use only certain particular tactics against al Qaeda. Instead, they authorize the use of all necessary and appropriate force. Nor does the Force Resolution require the President to fight al Qaeda only in foreign countries. Far from it. in passing the 12 - SJC no.1 Gorsuch 000101 NMG Dm? 2/3/06 Force Resolution, Congress was responding to threat from within our own borders. Al Qaeda infiltrated our homeland and attacked us where we live. 'Plainly, Congress expected the President to address that threat within our borders? and to do so with all appropriate force. It is important to underscore that Supreme Court has already interpreted the plain language of the Force Statute in just the way We outlined. In 2004, the SUpreme Court faced the Hamdi case. There, the question was whether the President had the authority to detain an American citizen as an enemy combatant for the duration of'the hostilities. The Supreme Court held [still don?t think that?s quite right] that the language of the Force Resolution gave the President the authority to employ the traditional incidents of waging war. Justice O?Connor also explained that these traditional powers included the power to detain enemy combatants for the duration of hostilities and to do so even if the combatants is an American citizen. If the detention of an American al Qaeda combatants is authorized by the Force Resolution as an appropriate incident of waging war, how can one seriously suggest that merely listening to their phone calls to prevent and disrupt their attacks doesn?t also qualify? Can one really argue'that, while the Supreme Court says it?s okay under the Force Resolution to keep enemy combatants at Guantanamo Bay, we may not listen if they try to call terror cells in the United States with orders to execute an attack? Members of the Committee, I respectfully submit that cannot be the law, ?ktht? Even though the President has the authority to conduct the terrorist surveillance program under the Constitution and the 13 SJC DOJ Gorsuch 000102 NMG Dm? 2/3/06 Force Resolution, some have asked whether he just as easily could have obtained the same intelligence using the tools afforded by itself. Let me assure you that we are using in our war efforts. And let me assure you that remains vitally important to national security. But, the ?why not use argument depends on a misconception about how that statute works. When FISA was written, it included a so-called ?emergency exception.? That exception now- allows the government to file applications 72 hours after surveillance begins. But this is simply too cumbersome for us to be successful'in tracking a crafty and technologically astute enemy in the current environment. To putthe point bluntly: al Qaeda terrorists do not operate on lawyer time. .As ybu know, even an emergency surveillance under FISA I cannot be approved without assurance, in advance, that the requirements and conditions for a regular application will be satisfied. And in order to assure that the government will be able to comply with FISA, a great deal must be done. To begin, the lawyers at NSA must review the evidence assembled from their intelligence officers and conclude that it satisfies requirements. Then, lawyers in the Department of Justice have to review the request and reach the same judgment or insist on additional evidence or'analysis when necessary. Finally, as Attorney General, I have to review their submission and make the determination. After all that, within three days we must follow up with a formal application. And that itself entails significant additional burdens, The 14 8.10 DOJ Gorsuch 000103 in? NMG Dm?? 2/3/06 government must prepare a legal document and supporting declarations laying out all the relevant facts and law. It must obtain the approval of a Cabinet-level officer as well as a certification from the National Security Adviser, the Director of the FBI, or a designated Senate-confirmed officer. And, finally, of course, it must win the approval of an Article judge. Simply put, the FISA process doesn?t move in real time the way oar enemies do - and the way we must if we are to stop. them. Just as we can?t demand that our soldiers bring lawyers onto the battlefield to tell them when they are allowed to shoot under military law (let alone await instructions from the Attorney General), it would be a mistake to ?lawyer up? career intelligence officers who are trying desperately to track secretive al Qaeda operatives in real time. The terrorism surveillance program allows the real experts to make intelligence surveillance decisions rather than layer after layer of lawyers. *t?rtic Mr. Chairman, members of the Committee, the President chose to act to prevent the next attack With every lawful tool .at his disposal, rather than wait until it is too late. it is hard to imagine any responsible President who would not do the same. The terrorist surveillance program is necessary and it is narrowly tailored to. the threat we face. it is lawful, and it respects the civil liberties Americans have cherished for "generations. It is well within the mainstream of what courts and prior Presidents have authorized. lt is'subject to careful' constraints, and Congressional leaders have known of its operation since 2001. Accordingly, as the President has explained, he intends to continueto the program as long as al Qaeda poses a threat to our national security. To succumb to 15 SJC DOJ Gorsuch 000104 NMG Dm? 2/3/06 media criticisms or political polls and end the program now would-be a grave mistake, affording our enemy dangerous and potentially deadly new room for operation within our own - borders. Mr. Chairman, have tried to outline the highlights of the program and its legal authority as best i can in an open hearing and in the brief time allotted. I look forward to your questions and will do the best i can to answer them. At the same time, I know you appreciate that there are serious constraints on what I can say without compromising information that remains classified. As you know, the Director of National intelligence testified last week that public leaks about this program have inflicted very severe damage. I do not want'to disclose anything further; that would make me complicit in aiding the enemy?s efforts or, God forbid, another attack. Our enemy is listening. And they are probably laughing laughing at the thought that anyone would leak such a sensitive program in the first place, and laughing at the prospect that we might unilaterally disarm ourselves of a key tool in the war on terror. Finally, lwant to thank you again for giving me this opportunity to speak. This is an important issue and I hope i have contributed to the Committee?s understanding of the program?s legal basis and precedent. Mr. Chairman, I also hope and trust that our continued dialogue in this hearing?will be distinguished by the civility and bipartisanship that i know you always exhibit and the American people deserve when it comes to matters so critical to their nation?s defense; Thank you. 16 . SJC DOJ Gorsuch 000105 NMG Dm? 2/3/06 17 SJC DOJ Gorsuch 000106 Gorsuch, Neil From: Gorsuch, Neil Sent: Monday, February 06, 2006 1:17 PM To; Sampson, Kyle; Moschella, William Subject: lntel Cmte' hearings sent message via Clinger that he?d like me to prepare some testimony for the upcoming intei cmte hearings. i?m?happy to help and, in doing so, it would be heipfui to have from you (1) a copy of the final as?given testimony today incorporating all of the WHlintel Cmty comments, and (2) any directions from either should address in these upcoming talks/different emphasis we ought. to make given the audience. Also, will both of these hearings be closed? Thanks Very much. Bitiw and despite my obvious bias, 1 thinkthe AG is doing a really nice job today. He?s running ciroies - around the omte members and i can?t help but beiieye that he?s scoring plenty of with the American people. The news networks ran his opening remarks in full but broke away pretty shortly after questioning began. - SJC DOJ Gorsuch 000107 . Ecliz?a?ixg??lu . - I ?'m?heg?at amt?mitgwifEa?Eis Exalimgiwau?m?fg; I. e; 33:93:15- ma fisia?t a?iigta?gi'gig. that to; 'Wwi??w??madi?i-Eg amt?grisanteri?? ?rm . i?k??i?ig??g*??thnrim?l {aft 1a,: thrga't? er Weizg'h' vinte'l Llf?lf?rigzes?ena ?ag-fa t?i ma; $339353?! tat-fife a. 333%. {inef?wgre? Eited?angp?gsimm Fella-waning; ?a?gs aft-er.- {31h ?fth? if W?ifai??i?? .Ia?t in ihe ?at-full earn'gagfa'i?j Thai: - ?ax-3? a??f?rb-aeh; r??ee?t??iyi? f??rguchf ?ail I ??fsz??arze? m. Paul {a?rarsa?mgsigm aegajrg WE Cangt?g?may nut is: least. i?a?wlfa?a?apar sm?p?c?i: .31" least same: mag-Ed l?i?eiram?wfmatI ?an?f??kn-uw. 533:1! 'l-ikeswi?a fh?nghtoic: 519:3 thin-gs, di?etea?y; inggai ?gment! i am the ggriu?nar l?'?kimg?f?r Ia'rqgaa?giagifh?at m.ig?t?lasz?aswe i ih?ii'rft?i?attached 'Ii?fe?dlfd .Cil'rwl?t?: {Big-Lit: sewwa?gt?sma am hut thaw-gist i?d giv-E a?n-acivam?e pee-k. I an: ?nd a saggy-se- a. "?5553; aka-far? 3mg: Erg-ati?acef. with and this might: MG. ww??igi?al- MraggaggE-um Emmigagging?fq??himgilg?gmf i?g?f?m? an =2 - I :a?ai; .133 .3111?! 1 Serif:- FEE: Eli?i'?i?? i'Z?lifFE? mam. ?gj?iie?ggrg tats-a; Gorsuch, Neil From: Gorsuch, Neil Sent: Thursday, December 29, EDGE 5:11 PM To: Subject: RE: Draft Signing Statement Thanks. Sounds like she needs to hear from us, otherwise this may.r wind up going the other wav. From: BellingerJB@state.gov Sent: Thursday, December 29, 2005 5:05 PM To: Gorsuch, Neil Subject: RE: Draft Signing Statement I agree with 1your agreement with me and I sent Harriet a note to this effect. From: Neil.Gorsuch@usdoj.gov Sent: Thursday, December 29, 2005 4:5? PM To: Steve.Eradburv@usdoj.gov; jimenerf@dodgc.osd.mil; Bellinger, John ElLegal} Subject: RE: Draft Signing Statement A signing statement along these lines seems to give us at least three advantages. First, it would aid State and others on the foreignfpublic relations front, as John's intimated, allowing us to speak about this development positively,r rather grudginglv. {And there can be little doubt that, for example, the Graham portion of the bill is vet",r positive indeed for and the Administration generallv.} Second, while we all appreciate the appropriate limitations on the usefulness of legislative history (and, despite those limitations, the penchant some courts have for it}, a signing statement would be of help to us litigators in the inevitable lawsuits we all see coming. Evervone has worked terriblv hard to develop the best legislative history.r we can for the Executive under the circumstances we've faced and it would seem incongruous if we stopped working that front now, when we control the pen. Third, a statement along the lines proposed below would help inoculate against the potential of having the Administration criticized sometime in the future for not making sufficient changes in interrogation policy.r in light of the McCain portion of the amendment; this statement clearlv, and in a formal way.r that would be hard to dispute later, puts down a marker to the effect that the view that McCain is best read as essentially.r codifving existing interrogation policies. No one could convincinglv sav they.r weren't on notice of the Administration's position to that effect, whereas without such a statement we leave ourselves perhaps more open to such a criticism. On the other side of the equation, what's the downside? While perhaps not common, neither is it unprecedented to use signing statements in this fashion to advance the Executive's interests and, indeed, some statements have been cited by courts as persuasive sources of authority.r in efforts to divine statutorv intent. From: Bradbury, Steye Sent: Thursday, December ES, 2005 1:05 PM To: Elwood, John; jimenezf@dodgc.osd.mil; Cc: Gorsuch, Neil roberje@ucia.goy: melodar@ucia.goy; Subject: RE: Draft Signing Statement I agree with John's comments. ??--Driginal Message?-?? From: BellingerJE@state.goy Sent: Thursday, December ES, 2005 PM To: Elwood, John; jimenezf@dodgc.osd.mil; Cc: Bradbury, Steye: Gorsuch, Neil M: roberje@ucia.goy; melodar@ucia.goy; Subject: RE: Draft Signing Statement Although long, this yersion looks good to me. suggest two changes: 1} in para 1, I would replace the phrase "security and liberty'I with the bolded language below, because foreign terrorists, unlike US nationals, do not have liberty interests: and 2} in para 2, I would add "and lawful" to make clear that we are only trying to protect "lawful" activities, not merely "authorizedrl activities. I think the short yersion at the end is too short and does not do justice to what was achieved in the McCain-Graham compromise. Eyen though we may not be entirely happy with the final version, we want to declare yictory, rather than sound grudging and make it sound like the Executiye plans to interpret the law as we please no matter what Congress says. ??--Driginal Message?-?? From: IWiegmann, John E. Sent: Thursday, December 29, EDGE 11:41 AM To: John.Elwood@usdoj.goy; Rettman, Rosalyn J.: jimenerf@dodgc.osd.mil; Gerry, Brett C. Cc: Steye.Bradbury@usdoj.goy; Addington, David Coffin, Shannen W.: roberje@ucia.goy; Allen, Michael: Eellinger, John BlLegal]; melodar@ucia.goy; Neil.Gorsuch@usdoj.goy; Yanes, Raul F. Subject: RE: Draft Signing Statement DH, here is a revised version that attempts to incorporate the substance of most comments. I could not incorporate eyerything as there were conflicting comments, but I did my best. have put this version into the formal DME clearance process, so it should come around to eyeryone again through that route for formal comment. David Addington has suggested a one-line signing statement, which is now the last line of this statement. I am interested in everyone's views on that approach this is now much longer than what we would traditionally dor but there are various objectives that people wanted to accomplish with this. Thanks to everyone for the informal comments and quiclx turn?around. Detainee operations are a critical part of the war on terror. The Administration is committed to treating all detainees held by the United States in a manner consistent with our Constitution and laws and our treaty obligations. Title K, the Detainee Treatment Act of 2005, addresses certain matters relating to the detention and interrogation of persons by the United States. This legislation strikes an appropriate balance, RESPECTING THE AUTHORITY OF THE PRESIDENT TO TAKE STEPS NECESSARY TO DEFEND OUR COUNTRY WHILE CLARIFYING STANDARDS OF TREATMENT AND COURT REVIEW RELATED TO DETENTION. The provisions of Title regarding the standards for treatment of detainees are an important statement reaffirming the values and principles we share as a Nation. U.S. law and policy already prohibit torture. Section 1003, which prohibits cruelr inhuman or degrading treatment or punishmentr is intended to codify the Administration's existing policy of abiding by the substantive constitutional standard applicable to the United States under Article 16 of the Convention Against Torture in its treatment of detainees in U.S. custody anywhere. As the sponsors of this legislation have statedr howeverr it does not create or authorize any private right of action for terrorists to sue anyone, including our men and women on the front lines in the war on terror. On the contrary, section 10-04 provides additional protection for those engaged in authorized AND LAWFUL detention or interrogation of terrorists from any civil suit or criminal prosecution that might be brought under other provisions of law. I appreciate the provisions in Title ii that address the burden placed on the United Statesr conduct of the war on terror by the flood of claims brought in U.S. courts by terrorists detained at Guantanamo flayr Cuba. Section authorizes limited judicial review of thejudgments of military commissions and of military detention decisions regarding these individuals. This grant of access to our courts is historically unprecedented for any nation at warr as are the processes already in place within the Department of Defense on these issues. Given the separation of powers concerns raised by judicial review in this arear the legislation prudently establishes a role for the courts that is narrow and limited in scoper and is deferential to the decisions made by military authorities in wartime pursuant to my authority as Commander-in-Chief. The legislation also eliminates altogether the hundreds of other claims brought by terrorists at Guantanamo that challenege many different aspects of their detention and that are now pending in our courts. balancer all the procedures that have been established will help ensure that the United States can effectively fight the war on terror free of a debilitating litigation burden while upholding its commitment to the rule of law. The executive branch shall construe Title I of the Act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power. -?--CJriginal Message--?-- From: Wiegmann, John E. Sent: 1 Nednesdayr December ES, 3:33 PM rl?hn DHCEIIJH I newnun, x, jimenezf@dodgc.osd.mil; Gerrv, Brett C. Cc: Steve.Eradbuw@usdoj.gov; Addington, David Coffin, Shannen W. Subject: RE: Draft Signing Statement See proposed edited version below. Still seems too long and I expect there is some that could be cut, but these edits are offered on the assumption for now that we mav want to sav all this. From: John.Elwood@usdoj.gov Sent: December 23, 2005 ?:02 PM To: IWiegmann, John Rettman, Rosalvn J.: jimenezf@dodgc.osd.mil; Gerry, Brett C. Cc: Steve.Eradbunv@usdoj.gov Subject: Draft Signing Statement Below is a draft signing statement on the McCain and Graham amendments to National Defense Authorization Act [Title I-il?vr in the most recent draft we've seen}. Neil Corsuch in the Associate A.G.'s office has reviewed this. Thank 1vou very much. John P. Elwood Deputy.r Assistant Attorney General Office of Legal Counsel U.S. Department of Justice [202} 514-4132 {cell}: [202} SSE-SEAS The Administration is committed to treating all detainees held bv the United States in the war on terror in a manner consistent with applicable law. Title K, the Detainee Treatment Act of 2005, addresses certain matters relating to the detention and interrogation of persons by the United States. The provisions of this title regarding the standards for treatment of detainees are an important statement reaffirming the values and principles we share as a nation. Section 1003, for example, is intended to codif'u,r the Administration's existing policv of abiding bv the substantive constitutional standard applicable to the United States under Article 15 of the Convention Against Torture in its treatment of detainees. As the sponsors of this legislation have stated, however, it does not create or authorize anv private right of action for terrorists to sue our men and women on the front lines in the war on terror. the contrary, section 100:5r provides additional protection for those engaged in authorized detention or interrogation of terrorists from anv civil suit or criminal prosecution that might be brought under other provisions of law. [All existing legal defenses are also preserved, and the United States may compensate its personnel for anv legal expenses they.r mayr incur in connection with such suits or prosecutions, in the United States or abroad] Title addresses an area that involves core presidential responsibilities regarding national security.r and the conduct of war and in which, as a result, Congress traditionally: has avoided attempts to regulate. The Constitution makes the President the Commander?in-Chief of the Armed Forces, a grant that includes the authorityr and duty to protect Americans effectiver from attacks bv our enemies, including the terrorists with whom we are now at war, and to bring those enemies to justice. I therefore shall construe this title in a manner that is consistent with this vital constitutional responsibility to protect the safety of the Nation. This legislation authorizes judicial review of the judgments of military commissions and of military detention decisions regarding terrorists detained at Guantanamo Bayr Cuba that is historically unprecedented for any nation at war. In light of the serious separation of powers concerns raised by such review, the legislation necessarily establishes a narrow and strictly limited role for the courts in reviewing decisions made by military authorities in wartime pursuant to my authority as Commander?in? Chief. It also eliminates altogether the flood of claims brought by these terorists that challenge many different aspects of their detention and that are now pending in our courts. Do balancer this legislation will help to ensure that the United States can continue to effectively fight the global war on terror free of a crippling litigation burden. Gorsuch, Neil From: Gorsuch, Neil Sent: Saturday, February 4, EDGE AM To: Elwood, Courtney Subject: Re: Haven't heard back yet but I am hopeful we can patch over any difference of 1yiews. Message-?? From: Elwood, Courtney To: Gorsuch, Neil Sent: Sat Feb Gil EDGE Subject: RE: This doesn't make me happy. Where are we on it now. Haye you heard from Steve and Paul on this draft?l Courtney Simmons Elwood Deputy Chief of Staff and Counselor to the Attorney General US. Department of Justice 2431514225? 2o2.ssz.seo2 {fax} 2o2.sos.ssar From: Gorsuch, Neil Sent: Friday, February G3, EDGE 9:49 PM To: Elwood, Courtney Subject: Fw: Fyi. Message-??- From: Gorsuch, Neil To: Clement, Paul Bradbury, Steye Sent: Fri Feb GS EDGE Subject: Fw: Gentlemen, tonight Paul expressed the concern that the draft circulated earlier today suggested a I I LI L. run .-..-. "Humane. . nun 1. l- .-. Erna. u. ..-. ?annual?.? mnu unl- LElliEIIll Ul UEIUHEIHE 'luIVllILi-il FlliZI'rr HUI. encroach [and vice 1yersa}r and Paul found this proposition unconyincing. Based on at least my read of the white paper I suspect at least some may feel differently, but I don't know. Paul likewise thought olc might see things differently. In any eyentr I am but the scriyener looking for language that might please everyone and I have tried to accomplish that in the attached latest draft. I intend to circulate this to eyeryone tomorrow am but thought I'd giye you two an advance peek. I do hope I have managed to find a course here acceptable to eyeryone. Many thanks for your patience with me and this project. NMG Message?? From: ngorsuch@hotmail.com To: I'Eorsuchr Neil Sent: Fri Feb 21:25:00 EDDIE Subject: Express yourself instantly with MSN Messenger! Download today - it's From: Gorsuch, Neil To: - Bradbury, Steve CC: 800: Subject: RE: House leg Date: Tue Nov 08 2005 12:23:48 EST Attachments: That is exactly how I've sought to draft it, after consulting with From: Bradbury, Steve Sent: Tuesday, November 08, 2005 12:22 PM To: Gorsuch, Neil Subject: RE: House leg I agree that we should push first and foremost to eliminate jurisdiction across the board, including in the Hamdan itself, and then, as a fallback, iirnitjurisdiction only to post-conviction habeas review (and then only of compliance with authorized procedures). How about as a third option (second fallback) limiting jurisdiction to post-conviction review generally no Hamdan pre?trial review but unlimited post~ conviction habeas review)? From: Gorsuch, Neil Sent: Tuesday, November 08, 2005 12:18 PM To: Bradbury, Steve Subject: RE: House leg Thanks, Steve. Agree on (1) and have made the change. On (2), the language is DoD's and I don't know how willing they are to considering edits, but I will suggest deleting duress. On (3), has expressed grave reluctance about letting Hamdan proceed, obtain a finding of unconstitutionality, and then leave to argue that the hoiding applies to no other cases. That does seem a tough sell politically. Thoughts? . From: Bradbury, Steve Sent: Tuesday, November 08, 2005 72:12 PM To: Gorsuch, Neil Subject: FW: House leg Neil: Some thoughts from John Elwood. From: Elwood, John Sent: Tuesday, November 08, 2005 12:06 PM To: Bradbury, Steve; Eisenberg, John; Marshall, C. Kevin; Boardman, Michelle; Prestes, Brian Subject: RE: House ieg Looks to me like the continuing issues with respect to the version we have now are: omission of"filed by or" ih addition to "on behalf of" new standard for considering statements: whether statements were "obtained under duress resulting from physical or mental coercion." I don't know that there?s any better established standard for what constitutes ?duress? than there is for ?undue coercion," and if anything, my instinct is that "duress" would be easier for a detainee to show. (0) I?m in no rush to preserve Hamdan, but note the absence of any carve?out for that, Personally, I liked the proposal that grandfathered the cases existing on 11/7 the best of the ones I saw; were any of those Bivens actions or only habeas cases? Message?-?-? From: Bradbury, Steve Sent: Tuesday, November 08, 2005 11:43 AM To: Marshall, (3. Kevin; Boardman, Michelle; Etwood, John; Eisenberg, John; Prestes, Brian Subject: FW: House leg Comments for Matt? Thx! Message-m- From: Gorsuch, Neit Sent: Tuesday, November 08, 2005 11:37 AM To: Bradbury, Steve; Nichols, Carl Moschella, William Co: Sampson, Kyle; Elwood, Courtney Subject: House leg Per discussions with Steve, Will, and about concepts for the House authorization bill, attached is some draft ianguage we might use in upcoming discussions with the Hous. AnyIatl comments appreciated. Given the time fuse on this, I?d like to share the attached with this afternoon, so if you could pass along comments by 130, that would be especially helpful,