OCTOBER 20, 1999


Mr. Chairman and distinguished Members of the Judiciary Committee, I welcome the opportunity to appear before you today. With me is Roger Adams, the Pardon Attorney. We will do our best to address the questions you have relating to the conditional offers of clemency that the President recently granted to sixteen Puerto Rican nationalists.

I wish to begin by extending my heartfelt sympathy to those victims and their families whose lives were tragically affected by the criminal conduct of the FALN. It is difficult to fully comprehend the extent of the pain and suffering these victims were forced to endure. I have spent my career as a prosecutor and a judge. As United States Attorney, I met frequently with victims of violence and, as Deputy Attorney General, I have done my best to ensure that crime victims are treated properly and respectfully throughout the criminal justice system. And one of the most important points I have learned from my 23-year career is that every tragic story of victimization is unique and unforgettable. And so, I want the victims of FALN violence to know that our thoughts and prayers remain with them now and in the future.

I would like to briefly address the Department's procedures for reviewing and making recommendations to the President on clemency petitions. Mr. Adams will discuss these issues in more detail in his testimony.

In general terms, the Office of the Pardon Attorney reviews in the first instance petitions for clemency filed by federal prisoners. If it appears that the petitioner is eligible to apply for clemency and the petition contains sufficient information, the Pardon Attorney begins an investigation into the facts and circumstances of the petitioner's case. Official records such as the presentence report that was prepared for the sentencing judge, reports from the Bureau of Prisons on the petitioner's behavior while incarcerated are checked for relevant information. On occasion, the Pardon Attorney also contacts the component of the Department of Justice which prosecuted the case, for example the Criminal Division or a particular U.S. Attorney's Office.

After completing his investigation, the Pardon Attorney prepares a report and recommendation for the White House. These reports are sent to the Office of the Deputy Attorney General for review. After that review, the report and recommendation are transmitted to the White House over my signature as Deputy Attorney General. It is the exclusive prerogative of the President to decide what actions he will then take regarding the petition for clemency.

You have also asked me to address what steps the Department took in order to obtain the records that the Committee sought pursuant to the resolution which was passed on September 23rd. On September 24th, I sent a memorandum to the heads of all 47 Department components and divisions and all 93 United States Attorneys. That memorandum directed the component heads and U.S. Attorneys to immediately undertake a prompt and thorough review of their files for responsive records. In addition to my memorandum, every U.S. Attorney and each component head received the text of the Resolution for reference. Each Department component, division, and United States Attorney's office designated an attorney responsible for searching for responsive documents. The recipients were directed to identify, obtain, review, and, as appropriate, produce documents that you requested, and they did so.

We have produced over 22,000 pages of responsive documents for you. The documents include records from the U.S. Parole Commission, the Bureau of Prisons, the Office of the Pardon Attorney (OPA), the Criminal Division, the Civil Division, and the Justice Management Division, among other components. We have provided over seven hundred audio tapes of recorded telephone conversations obtained from the Bureau of Prisons. Our efforts are continuing and we will produce additional responsive materials as they are located and processed.

Additionally, the Department has provided to the Committee a "privilege log" identifying those documents which are subject to the President's assertion of executive privilege. From the log you can see that in 1996, in accordance with Department regulations, the Department submitted a written report and recommendation to the White House regarding whether the President should grant or deny the petition for clemency, and that there were subsequent communications between the Department and the White House on the subject of clemency for the Puerto Rican nationalists as recently as two months ago. However, because of the President's assertion of privilege, I am not at liberty to disclose the contents or substance of the report, recommendations, or communications. Nevertheless, consistent with these constitutional constraints, we at the Department of Justice have made, and will continue to make, every effort to provide this Committee with as many responsive documents and as much relevant information as we can.

I would like to address in more detail the issue of executive privilege. As you know, the President has asserted executive privilege with respect to documents and testimony that reflect advice sought by and provided to the White House with respect to the offers of clemency and the deliberations within the Department in connection with the preparation of that advice. The Department of Justice is obligated to respect and follow that assertion of the privilege.

We believe that there is a solid legal basis for the President's assertion of executive privilege here. Executive privilege is a necessary corollary of the executive function vested in the President by Article ll of the Constitution. This privilege, which protects, among other things, the confidentiality of presidential communications and the deliberative processes of the executive branch, has been asserted by numerous Presidents from the earliest days of our Nation, and has been explicitly recognized by the Supreme Court. The privilege is properly asserted where, as here, the President's need to maintain the confidential nature of presidential communications and executive branch deliberations outweighs Congress's need for the information contained in privileged documents.

The Committee's request for the documents generated during the deliberations relating to the President's recent grant of clemency presents a particularly compelling legal basis for the assertion of executive privilege. Under the Constitution, the granting of clemency pursuant to the pardon power is unquestionably an exclusive province of the executive branch. Thus, while the Committee has undoubted authority to oversee this Department's discharge of its statutory duties, the Department was not discharging any statutory duty or exercising any statutory authority when it conducted an evaluation of the petition for clemency made on behalf of the Puerto Rican nationalist prisoners. Rather, the Department was providing advice and assistance to the President in the discharge of his exclusive constitutional prerogative. The Department has long declined to share with Congress information concerning the advice and assistance it provides to the President on pardon matters.

The documents in the Department's files that are the subject of the President's assertion of privilege fall squarely within the well recognized scope of executive privilege. First, the documents include the Department's advice to the President and his staff on these clemency petitions. Advice provided to the President unquestionably falls within the scope of executive privilege. In its 1974 decision in United States v. Nixon, the Supreme Court recognized the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (418 U.S. at 708).

Executive privilege is not limited to advice and other communications made to the President. Rather, it is well established that the privilege also applies to intra-agency deliberations, such as the deliberative communications within the Department of Justice in connection with the preparation of advice to the White House on this clemency matter. The Supreme Court also recognized in United States v. Nixon that executive privilege covers "communications between high Government officials and those who advise and assist them in the performance of their manifold duties." 418 U.S. at 705. The Court has stated that "the importance of this confidentiality is too plain to require further discussion." Id. The Department has provided the Committee with a copy of a letter we sent to a Member of the Committee in 1991. That letter surveyed the precedents supporting the longstanding executive branch position that executive privilege "extends not only to communications to and from the President, but [also] to deliberative communications between the President's subordinates and those who, in turn, advise them." Letter to Senator Howard M. Metzenbaum, from W. Lee Rawls, Assistant Attorney General, Office of Legislative Affairs, at I (July 1, 1991). Indeed, more assertions of executive privilege have concerned deliberations between and within agencies than have concerned actual presidential communications.

Disclosure of the documents that are subject to the President's assertion of privilege would have precisely the chilling effect that the privilege is designed to prevent. There is a significant risk that the Office of the Pardon Attorney will not be able to obtain "candid, objective, and even blunt or harsh opinions" (United States v. Nixon, 418 U.S. at 708) from other components within the Department or freely provide such opinions and views to senior Department officials if the key participants in the formulation of the Department's advice know that their views will be subject to the intense public scrutiny of a congressional investigation. Similarly, senior Department officials will not be able to convey such opinions to the Counsel for the President, nor will they be "free to explore alternatives," id., if their communications with the White House and with their staffs are not protected from disclosure. Such a chilling effect would be particularly troublesome here, where Department officials are formulating advice to assist the President in the discharge of an exclusive presidential prerogative, and Congress therefore has no authority to regulate the nature of the advice that the President seeks or receives.

Thank you again for the opportunity to appear before you on this important matter. The Department of Justice wants to continue to work with the Committee to appropriately address any issues relating to this matter.