CREATING SECRET LAWS
In his conduct while President of the United States, George W. Bush, in violation of his constitutional oath to faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty under Article II, Section 3 of the Constitution "to take care that the laws be faithfully executed", has both personally and acting through his agents and subordinates, together with the Vice President, established a body of secret laws through the issuance of legal opinions by the Department of Justice's Office of Legal Counsel (OLC).
The OLC's March 14, 2003, interrogation memorandum ("Yoo Memorandum") was declassified years after it served as law for the executive branch. On April 29, 2008, House Judiciary Committee Chairman John Conyers and Subcommittee on the Constitution, Civil Rights and Civil Liberties Chairman Jerrold Nadler wrote in a letter to Attorney General Michael Mukasey:
"It appears to us that there was never any legitimate basis for the purely legal analysis contained in this document to be classified in the first place. The Yoo Memorandum does not describe sources and methods of intelligence gathering, or any specific facts regarding any interrogation activities. Instead, it consists almost entirely of the Department's legal views, which are not properly kept secret from Congress and the American people. J. William Leonard, the Director of the National Archive's Office of Information Security Oversight Office, and a top expert in this field concurs, commenting that '[t]he document in question is purely a legal analysis' that contains 'nothing which would justify classification.' In addition, the Yoo Memorandum suggests an extraordinary breadth and aggressiveness of OLC's secret legal opinion-making. Much attention has rightly been given to the statement in footnote 10 in the March 14, 2003, memorandum that, in an October 23, 2001, opinion, OLC concluded 'that the Fourth Amendment had no application to domestic military operations.' As you know, we have requested a copy of that memorandum on no less than four prior occasions and we continue to demand access to this important document.
"In addition to this opinion, however, the Yoo Memorandum references at least 10 other OLC opinions on weighty matters of great interest to the American people that also do not appear to have been released. These appear to cover matters such as the power of Congress to regulate the conduct of military commissions, legal constraints on the 'military detention of United States citizens,' legal rules applicable to the boarding and searching foreign ships, the President's authority to render U.S. detainees to the custody of foreign governments, and the President's authority to breach or suspend U.S. treaty obligations. Furthermore, it has been more than five years since the Yoo Memorandum was authored, raising the question how many other such memoranda and letters have been secretly authored and utilized by the Administration.
"Indeed, a recent court filing by the Department in FOIA litigation involving the Central Intelligence Agency identifies 8 additional secret OLC opinions, dating from August 6, 2004, to February 18, 2007. Given that these reflect only OLC memoranda identified in the files of the CIA, and based on the sampling procedures under which that listing was generated, it appears that these represent only a small portion of the secret OLC memoranda generated during this time, with the true number almost certainly much higher."
Senator Russ Feingold, in a statement during an April 30, 2008, senate hearing stated:
"It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of 'secret law.' "That purpose today is being thwarted. Congressional enactments and agency regulations are for the most part still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from the public, and too often from Congress as well....
"A legal interpretation by the Justice Department's Office of Legal Counsel ... binds the entire executive branch, just like a regulation or the ruling of a court. In the words of former OLC head Jack Goldsmith, 'These executive branch precedents are "law" for the executive branch.' The Yoo memorandum was, for a nine-month period in 2003 until it was withdrawn by Mr. Goldsmith, the law that this Administration followed when it came to matters of torture. And of course, that law was essentially a declaration that few if any laws applied...
"Another body of secret law is the controlling interpretations of the Foreign Intelligence Surveillance Act that are issued by the Foreign Intelligence Surveillance Court. FISA, of course, is the law that governs the government's ability in intelligence investigations to conduct wiretaps and search the homes of people in the United States. Under that statute, the FISA Court is directed to evaluate wiretap and search warrant applications and decide whether the standard for issuing a warrant has been met – a largely factual evaluation that is properly done behind closed doors. But with the evolution of technology and with this Administration's efforts to get the Court's blessing for its illegal wiretapping activities, we now know that the Court's role is broader, and that it is very much engaged in substantive interpretations of the governing statute. These interpretations are as much a part of this country's surveillance law as the statute itself. Without access to them, it is impossible for Congress or the public to have an informed debate on matters that deeply affect the privacy and civil liberties of all Americans...
"The Administration's shroud of secrecy extends to agency rules and executive pronouncements, such as Executive Orders, that carry the force of law. Through the diligent efforts of my colleague Senator Whitehouse, we have learned that OLC has taken the position that a President can 'waive' or 'modify' a published Executive Order without any notice to the public or Congress – simply by not following it."
In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his trust as President, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.
Letter from Congressmen John Conyers and Jerrold Nadler  to Attorney General Michael Mukasey, April 29, 2008.
Statement of Senator Russ Feingold , April 30, 2008.
Hearing before the Senate Committee on the Judiciary Subcommittee on the Constitution on Secret Law and the Threat to Democratic and Accountable Government , Wednesday, April 30, 2008.
John C. Yoo, Memorandum for William J. Haynes II, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States , March 14, 2003.
John Conyers, Jr., Letter to Professor John Choo Yoo  -- requests testimony, April 8, 2008
Electronic Privacy Information Center v. United States Department of Justice, Civil Action No. 06-0096 (HHK), April 3, 2008.
American Civil Liberties Union et al v. United States Department of Justice , Civil Action No. 06-00214 (HHK), April 3, 2008.
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