[Congressional Record: July 31, 2008 (Senate)] [Page S7955-S7956] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. FEINGOLD (for himself and Mr. Whitehouse): S. 3405. A bill to prohibit secret modifications and revocations of the law, and for other purposes; to the Committee on Homeland Security and Governmental Affairs. Mr. FEINGOLD. Mr. President, today, the junior Senator from Rhode Island, Senator Whitehouse, and I will introduce the Executive Order Integrity Act of 2008. The bill prevents secret changes to published Executive Orders by requiring the President to place a notice in the Federal Register when he has modified or revoked a published Order. Through this simple measure, the bill takes an important step toward stemming the growth of secret law in the executive branch. The principle behind this bill is straightforward. It is a basic tenet of democracy that the people have a right to know the law. Indeed, the notion of ``secret law'' has been described in court opinions and law treatises as ``repugnant'' and ``an abomination.'' That is why the laws passed by Congress have historically been matters of public record. But the law that applies in this country includes more than just statutes. It includes regulations, the controlling legal interpretations of courts and the executive branch, and certain Presidential directives. As we learned at a hearing of the Judiciary Committee's Constitution Subcommittee that I chaired in April, some of this body of executive and judicial law is increasingly being kept secret from the public, and too often from Congress as well. The Bush administration has concealed Department of Justice legal opinions, interpretations of the Foreign Intelligence Surveillance Court, and even the agency rule that requires Americans to show identification at airports. The shroud of secrecy extends to Executive Orders and other Presidential directives that carry the force of law. The Federal Register Act requires the President to publish any Executive Orders that have general applicability and legal effect. But through the diligent efforts of my colleague Senator Whitehouse, we learned last December that the Department of Justice has taken the position that a President can ``waive'' or ``modify'' any Executive Order without any notice to the public or Congress--simply by not following it. In other words, even in cases where the President is required to make the law public, the President can change the law in secret. The Office of Legal Counsel memorandum that contains this position is still classified, but Senator Whitehouse convinced the Department of Justice to declassify certain statements in the memorandum. The Senator from Rhode Island spoke on the floor last December, and many times since then, about these statements. They include the statement that ``[w]henever [the President] wishes to depart from the terms of a previous executive order,'' he may do so, because ``an executive order cannot limit a President.'' And he doesn't have to change the executive order, or give notice that he's violating it, because by ``depart[ing] from the executive order,'' the President ``has instead modified or waived it.'' Now, no one disputes that a President can withdraw or revise an Executive Order at any time; that is every President's prerogative. But abrogating a published Executive order without any public notice works a secret change in the law. Worse, because the published Order stays on the books, it actively misleads Congress and the public as to what the law is. This is not just a hypothetical problem dreamed up by the Office of Legal Counsel. It has happened, and it could happen again. To list just one example, the administration's warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities. Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration. The bill that Senator Whitehouse and I will introduce provides a simple solution to this problem. If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change. If information about the nature and circumstances of the change is classified, it is exempt from the publication requirement, but the information still must be provided to Congress so that we, as legislators, know how the law has been changed. That is what our bill does; now let me talk briefly about what our bill does not do. First, it does not expand the existing legal requirements, under the Federal Register Act, that determine which Executive Orders must be published. To the extent the Federal Register Act permits a certain amount of ``secret law'' in the form of unpublished Executive Orders, our bill leaves that framework in place. Second, our bill does not require public notice when the President revokes or modifies an unpublished Executive Order--even if the substance of the unpublished order is well-known to Congress and even the American people. This bill is narrowly aimed at the situation in which the American people have been given official notice of one version of the law, but a different version is being implemented. Third, the bill does not require the President to adhere to the terms of an Executive Order. Many scholars have argued that a President must adhere to a formally promulgated Executive Order unless or until the Order is formally withdrawn or amended, just as the head of an agency must adhere to the agency's regulations. I happen to agree. But this bill does not take a position on OLC's assertion that any deviation from the Executive Order by the President is a permissible amendment of that Order. It simply requires public notice that the amendment has occurred. Fourth, the bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified. On rare occasions, national security can justify elected officials keeping some information secret, but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that--deceiving the American people about what law applies to the government's conduct. I commend Senator Whitehouse for his tireless work to bring this issue to light, and I urge all of my colleagues in the Senate to support this modest effort to ensure the integrity of our published laws. Mr. President, I ask unanimous consent that the text of the bill be placed in the Record. There being no objection, the text of the bill was ordered to be printed in the Record, as follows: S. 3405 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Executive Order Integrity Act of 2008''. [[Page S7956]] SEC. 2. REVOCATIONS, MODIFICATIONS, WAIVERS, AND SUSPENSIONS OF PRESIDENTIAL PROCLAMATIONS AND EXECUTIVE ORDERS. Section 1505 of title 44, United States Code, is amended by adding at the end the following: ``(d) Revocations, Modifications, Waivers, and Suspensions of Presidential Proclamations and Executive Orders.-- ``(1) Notice required.--If the President, whether formally or informally, and whether through express order, conduct, or other means-- ``(A) revokes, modifies, waives, or suspends any portion of a Presidential proclamation, Executive Order, or other Presidential directive that was published in the Federal Register; or ``(B) authorizes the revocation, modification, waiver, or suspension of any portion of such Presidential proclamation, Executive Order, or other Presidential directive; notice of such revocation, modification, waiver, or suspension shall be published in the Federal Register within 30 days after the revocation, modification, waiver, or suspension, in accordance with the terms under paragraph (2). ``(2) Content of notice.-- ``(A) In general.--Except as provided under subparagraph (B), the notice required under paragraph (1) shall specify-- ``(i) the Presidential proclamation, Executive Order, or other Presidential directive, and any particular portion thereof that is affected; ``(ii) for each affected directive or portion thereof, whether that directive or portion thereof was revoked, modified, waived, or suspended; and ``(iii) except where such information is classified, the specific nature and circumstances of the revocation, modification, waiver, or suspension. ``(B) Revised executive order.--Where the revocation, modification, waiver, or suspension of a Presidential proclamation, Executive Order, or other Presidential directive is accomplished through the publication in the Federal Register of a revised Presidential proclamation, Executive Order, or other Presidential directive that replaces or amends the one that was revoked, modified, waived, or suspended, that revised Presidential proclamation, Executive Order, or other Presidential directive shall constitute notice for purposes of paragraph (1). ``(3) Classified information.--If the information specified under paragraph (2)(A)(iii) is classified, such information shall be provided to Congress, using the security procedures established under section 501(d) of the National Security Act of 1947 (50 U.S.C. 413(d)), in the form of a classified annex delivered to-- ``(A) the majority and minority leader of the Senate; ``(B) the Speaker, majority leader, and minority leader of the House of Representatives; ``(C) the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives; and ``(D) if the information pertains to national security matters, the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives. ``(4) Rule of construction.--Nothing in this subsection shall be construed as either authorizing or prohibiting the revocation, modification, waiver, or suspension of any Presidential proclamation, Executive Order, or other Presidential directive that was published in the Federal Register through means other than a formal directive issued by the President and published in the Federal Register.''. ______