TCP Newsletter
June 2017
Dear Friend of TCP,Top

TCP spent a very busy few weeks helping to ensure that the Constitution's dictates are followed, for all Americans but especially for those who are most vulnerable and cannot protect themselves. Congressional staff have relied on us for expert advice, we sponsored public education events, and we produced widely-praised and influential reports. As usual, we relied on our unique and broad, nonpartisan network of lawyers, political leaders, and other experts to help us make the case, and we are grateful to each of them.

If you haven't already, please mark your calendars for September 18, from 6:30-9:30 pm, for our annual Constitutional Champions Gala.  The event honors individuals who have, in the face of adversity, stood up for the American ideals of liberty, justice, and the rule of law and fought to defend our nation's Constitution and the rights it guarantees. This year's Gala also marks The Constitution Project's 20th Anniversary. We are delighted to be honoring two of TCP's founders, former Representative Mickey Edwards (R-OK) and Dr. Morton H. Halperin.  Many of you know and have worked with Mort and Mickey. But for those few who don't know the details of their distinguished careers, here's a description.
Mickey Edwards was a member of Congress for 16 years, serving on the House Budget and Appropriations Committees and as a chairman of the House Republican Policy Committee.  After leaving Congress he taught for 11 years at Harvard's Kennedy School of Government before moving on, first to Princeton's Woodrow Wilson School of Public and International Affairs, and then back to Washington, DC, as vice president of the Aspen Institute, where he directs a bipartisan fellowship for elected public officials.

He grew up in Oklahoma City, has degrees in both law and journalism, and began his career as a newspaper editor and reporter.  He won awards in advertising and public relations before being elected to Congress.  While teaching at Harvard he returned to journalism as a weekly political columnist for the Chicago Tribune and Los Angeles Times and broadcast a weekly commentary on National Public Radio's "All Things Considered."

Mort Halperin, a senior advisor to the Open Society Foundations, provides strategic guidance on U.S. and international issues. Halperin previously served as director of U.S. Advocacy for the Foundations.  He has a distinguished career in federal government, having served in the Clinton, Nixon, and Johnson administrations. He spent many years at the American Civil Liberties Union (ACLU), serving as the director of the Washington office from 1984 to 1992, where he was responsible for the national legislative program as well as the activities of the ACLU Foundation. Halperin also served as the director of the Center for National Security Studies from 1975 to 1992, where he focused on issues affecting both civil liberties and national security.

He has been associated with a number of universities and think tanks, including Harvard University, where he taught for six years (1960-1966), the Council on Foreign Relations and the Center for American Progress (CAP). He has been widely published in newspapers and magazines across the world, and has authored, coauthored, and edited more than a dozen books. The recipient of numerous awards, he serves on the boards of J Street and ONE. Mort received his B.A. from Columbia College and holds a Ph.D. in international relations from Yale University.

Information on individual tickets and sponsorship packages will be posted on TCP's website very soon.


Virginia Sloan
In This Issue
Updated When Congress Comes Calling is Released Article1
Checks & Balances

On May 23rd, TCP released the revised version of When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry. Morton Rosenberg-a preeminent scholar in the field of congressional oversight-is the study's primary author.  The 2009 version, which Mort also authored, "was designed to provide a relatively concise, practical guidance for members and staff on the conduct of congressional oversight, and on the scope and limitations of the respective powers of Congress, the executive branch, and the judiciary. It detailed the rules and tools of oversight available to congressional committees and when and how they may use them. It also assessed the limited abilities of the executive branch and members of the public to resist such inquiries, and of the courts to resolve such inter-branch conflicts. Finally, it described the then-recent executive branch challenges to congressional oversight and suggested ways to address those disputes. In short, that volume was designed to serve as a first resort resource for anyone involved in congressional oversight inquiries." 

As Mort explains, the new version updates and improves on the original in three ways:  1) it examines the broader milieu of congressional oversight resources and treats discrete but vital subject matter areas of committee inquiry; 2) it provides a series of case studies that demonstrate how oversight works in practice, including successes, challenges, and lessons learned; and 3) it accounts for the nature, scope and consequences of growing executive branch threats to Congress's oversight and investigative prerogatives.

Requests for the updated version are pouring in. It is available here.

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Oklahoma Death Penalty Commission Report Calls for Continued Moratorium Article2
You may have seen in various press accounts that on April 25, the Oklahoma Death Penalty Review Commission released its report at a press conference at the Oklahoma State Capitol. You can view the report and learn more about the Commission hereTCP convened the Commission in late 2015, shortly after Oklahoma-which has the highest execution rate per capita of any state-imposed a moratorium on executions while a grand jury investigated troubling departures from the state's execution protocols. The Commission's mandate was to conduct an independent, comprehensive review of the state's death penalty system.

Most significantly, this bipartisan group of eleven prominent Oklahomans (co-chaired by former Governor Brad Henry, who oversaw 40 executions as governor) unanimously called for the state to continue its moratorium on executions, due to the "volume and seriousness of the flaws in Oklahoma's capital punishment system."

The report has received excellent press and is already having an impact in the state.

Led by our Senior Counsel Madhu Grewal, TCP staffed the Commission from start to finish. We continue to be involved with post-release media, education and advocacy. During the Commission's press conference, the co-chairs emphasized that TCP's role was invaluable and "truly bipartisan." For TCP, such statements are a testament to the reputation we have built over the years-as a group that can push politics aside to tackle tough issues with a commitment to fact-finding and justice. 

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Clemency Granted in Teleguz Case Article3
Death Penalty
Counsel for Ivan Teleguz, who was scheduled to be executed in Virginia on April 25, reports that TCP's assistance in support of clemency was "instrumental" to Governor McAuliffe's April 20th commutation of Teleguz's sentence to life without parole. Teleguz's case was marked by several troubling abnormalities: police investigators conducted flawed interrogations; the prosecutor threatened the confessed murderer with the death penalty unless he implicated Teleguz; multiple witnesses recanted their testimony against Teleguz; and the prosecution told the jury that Teleguz was responsible for another murder that never even occurred. With TCP's assistance, a bipartisan group of three former Virginia attorneys general -- Mark Earley, William Broaddus, and Mary Sue Terry -- wrote to Governor Terry McAuliffe highlighting these problems and strongly urged the Governor to commute the sentence.  

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Legislative Reactions to Police Week Bills Article4

As always, TCP is monitoring legislative activity and conducting rapid response to bills that undermine civil rights, civil liberties, and due process. Sarah Turberville, TCP's Director of Justice Programs, and Senior Counsel Madhu Grewal coordinated the response to consideration by the U.S. House of Representatives of the Thin Blue Line Act (HR 115), which would expand the number of aggravators in the federal death penalty statute to include killing or attempted killing of local or state police. 

We organized staff briefings and two letters in opposition to the legislation, which was passed through House Judiciary without a hearing. During the House debate, Representative John Conyers, ranking member of the House Judiciary Committee, read a letter by several members of the TCP-led Public Safety Officials on the Death Penalty (PSODP) opposing the bill (the only public law enforcement opposition to the legislation); members of Congress also emphasized many of the concerns raised by TCP's opposition letter during the floor debate on the bill. Our live tweets of the floor developments helped to publicly share the PSODP letter and amplified the remarks of members who opposed the bill. Unfortunately, the bill passed the House on May 18th. 

We also coordinated the response to the introduction by Senator Cornyn of the Back the Blue Act (S 1134), which would create unprecedented limits on access to habeas corpus for defendants convicted of killing several types of public safety officials. TCP immediately responded by sharing a short memo describing the bill's numerous and unprecedented attacks on habeas with key Senate and House Judiciary staff. 

Finally, we organized a letter from law enforcement leaders to push back against the troubling "law and order" narrative used to undermine community policing goals. This letter was important for members of Congress to demonstrate -- during Police Week -- that law enforcement want to see critical investments in data collection, de-escalation training, and oversight and accountability when it comes to the use of body-worn cameras and military equipment. During Police Week, TCP was a critical coalition partner in the civil rights, law enforcement, sentencing, and death penalty fields. 

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As usual, Jake Laperruque was prolific in his comments on privacy and surveillance issues.  He was quoted in a May 12 Foreign Policy piece on NSA compliance violations for Section 702, a May 6 article in The Hill on cybersecurity staffing at the White House, and an April 28 Intercept piece on the end of the NSA's controversial "About Collection" activities conducted under Section 702 of the Foreign Intelligence Surveillance Act.  He also authored an April 27 blog post in Just Security on plans by the Department of Homeland Security to use face scanning drones at the border.

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TCP Files Amicus Brief on War Powers Article6
Checks & Balances

The courts should reach the merits of an Army officer's challenge to the legality of the war against ISIL, and find that war unlawful absent explicit congressional authorization, TCP and three members of its War Powers Committee argued in a friend-of-the-court brief submitted to the U.S. Court of Appeals for the District of Columbia on April 10th. The brief was signed by Michael Glennon, Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University; Mickey Edwards, Aspen Institute vice president and former member of Congress; and David Skaggs, co-chair of the board of the Office of Congressional Ethics, a Senior Advisor with Dentons US, LLP, and also a former member of Congress.
Capt. Nathan Michael Smith, who was deployed to Kuwait as an intelligence officer, argues in his lawsuit that the president lacks the authority to use military force against the Islamic State, also known as ISIL or ISIS, because he failed to get congressional authorization as required by the Constitution and the War Powers Resolution of 1973.  Smith is appealing a district court ruling dismissing his lawsuit.

"The principles in question could hardly be clearer, or more important.  They concern the most fundamental question that the Nation can face: whether the peoples' elected representatives have power to restrict executive war-making," the TCP brief says.

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The CIA, State Department, Justice Department, and Director of National Intelligence returned their copies of the full, classified Senate torture report despite commitments from the Attorney General, the CIA director, and the CIA general counsel during their confirmation hearings to review the full report. Katherine was quoted in both the  New York Times' and the Associated Press's coverage of the report's return.

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TCP Urges Senate to Probe OLC Nominee on Torture MemoArticle8
Counter-terrorism Policies & Practices

The Trump administration's nominee to head the Office of Legal Counsel (OLC), Steven Engel, acknowledged in response to written questions from senators (many of which TCP had suggested to Senate staff) that he had taken part in the drafting of a 2007 OLC memo that authorized the CIA to resume its torture program. The 2007 memo, signed by Steven Bradbury, argued that CIA "enhanced interrogation techniques"-including sleep deprivation by means of shackling diapered detainees in a standing position for up to 96 consecutive hours-complied with the Geneva Conventions. Mr. Engel would not respond to substantive follow-up questions about his precise role in reviewing or his current views of the 2007 memo. TCP spearheaded a letter from a coalition of human rights and civil liberties organizations called on the Senate Judiciary Committee to delay voting on Engel's nomination until it obtained further evidence of his role. (Mr. Bradbury was recently nominated to serve as general counsel for the Department of Transportation). The full letter is available here.

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On April 11, TCP Vice President Scott Roehm published a piece in Lawfare discussing recent reports from the High Value Detainee Interrogation Group (HIG) on what constitutes effective interrogation. Scott drew three conclusions from the reports:  first, humane treatment and effective interrogation are mutually reinforcing goals, a reality that U.S. policy and practice should fully reflect; second, U.S. interrogation doctrine and policy should embody evidenced-based, best practices for interrogation; and third, the HIG, and its research component in particular, should have a seat at the table throughout the review of the Army Field Manual on interrogation, and in other interrogation policy discussions going forward.

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