Homeland Security and Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., Wednesday sent the following letter to Committee Chairman Susan Collins, R-Me., requesting the Committee issue subpoenas to the White House and other federal agencies to ensure that the Committee has a complete understanding of the federal government’s actions in preparing for and responding to Hurricane Katrina. The Committee has been conducting an extensive investigation into the government’s preparedness for and response to Hurricane Katrina and is planning to produce a detailed report on its findings later this month.
March 15, 2006
The Honorable Susan M. Collins
Committee on Homeland Security and Governmental Affairs
461 Dirksen Senate Office Building
Washington, DC 20510
I am writing to ask that the Committee immediately issue subpoenas to the White House and other federal departments compelling them to produce documents and witnesses to aid the Committee’s investigation into the preparedness for and response to Hurricane Katrina. I understand that our staffs have had extensive discussions about these issues, but I wanted to lay out for you the reasons why I believe subpoenas are appropriate
As you know, you and I sent a letter to White House Chief of Staff Andrew Card on October 7, 2005, asking for the Executive Office of the President’s (EOP’s) assistance in helping the Committee learn what the White House did to prepare for and respond to Katrina and what role the White House played in the broader federal effort with respect to that catastrophic event. When, nearly three months after sending our letter, we received only a fraction of the information we requested, we sent a second letter on January 12, 2006. That letter noted the paucity of the White House’s response to date and took issue with White House actions that effectively thwarted the Committee’s ability to obtain information related to the White House from executive branch agencies. In an effort to work with the White House, the Committee prioritized its requests and asked it to focus first on producing a portion of the material requested in the Committee’s original letter and to provide four individuals for Committee interviews.
In response, we received a letter from Deputy White House Counsel William Kelley. Mr. Kelley declined to provide the bulk of the documents we requested or to offer any of the witnesses sought for Committee interviews. Instead, he offered a second briefing by Deputy Homeland Security Adviser Ken Rapuano and a small number of documents, virtually all of which we already had obtained from other agencies and which offered little new insight into the White House’s particular activities. For example, we asked for all White House documents related to the deployment of federal troops to the Gulf Region. The documents we received consisted mainly of situation reports, most of which were already produced to us by the Pentagon and did not address the issue of troop deployment.
Like the White House’s earlier productions, this one shed no new light on what the White House did with, and in response to, the information it received, and Mr. Rapuano’s briefing offered few additional specifics on the White House’s particular activities. In short, having now received the briefing and the additional documents, I still believe that the White House’s production thus far has left the Committee without much of the information it needs to understand and assess the specific roles played by specific EOP officials and the specific actions taken by the EOP.
At the same time, recent hearing testimony has both offered new information about the White House’s involvement in the preparations for and response to Katrina and raised a number of questions the Committee must answer if its investigation is to be complete. As you recall, on Friday, February 10, former FEMA Director Michael Brown appeared before the Committee and shortly thereafter sat for a more detailed, transcribed interview with our staff. In both instances, Mr. Brown made clear that he saw the White House as a critical player in the preparations for and response to Hurricane Katrina.
Mr. Brown testified that he expressed to the President before landfall that the storm could be catastrophic depending on where it hit. He also told the Committee that he believed that on August 29, the day of Katrina’s landfall, he spoke with Deputy White House Chief of Staff Joseph Hagin on at least two occasions to inform him of the situation on the ground in New Orleans. Mr. Brown testified that in a call with Mr. Hagin – placed after Mr. Brown received FEMA employee Marty Bahamonde’s eyewitness account of the extent of the devastation – “I think I told [Hagin] that we were realizing our worst nightmare, that everything we had planned about, worried about, that FEMA, frankly, had worried about for 10 years, was coming true.” According to Mr. Brown’s interview with staff, there was no doubt that by Monday evening, Mr. Hagin knew from Mr. Brown that the 17th Street Canal levee had broken and that New Orleans was flooding. Moreover, at approximately 10 p.m. that night, an email exchange between Mr. Brown and White House Chief of Staff Andy Card had Mr. Card informing Mr. Brown that Mr. Hagin had kept him “well-informed” of Mr. Brown’s reports, and Mr. Brown telling Mr. Card that “[t]his is a bad one.”
Just as importantly, Mr. Brown made clear that, from his standpoint at least, he saw informing the White House and seeking action from it as capable of producing faster results than contacting the designated leader of the federal response, Homeland Security Secretary Chertoff. Given what our investigation has already revealed about the federal government’s activities during the week after landfall, it is clear that the White House played a significant role in coordinating and helping to manage the response to Katrina. The Committee would be remiss if it were not to follow up on the multiple questions regarding White House action left unanswered by Mr. Brown’s testimony and the rest of our investigation.
During our months of efforts to obtain the information we seek from the EOP, we have not received a satisfactory reason for the dearth of the White House’s response. Mr. Kelley’s January 27, 2006 letter suggests that our requests implicate “very important Executive Branch interests,” including “avoiding the burden on officials most directly supporting the President, threatening to impair the President’s ability to discharge his constitutional duties; preserving the confidentiality required to support Presidential decision-making; and adhering to the course of dealings between the branches, in analogous contexts, regarding the occasions for broad inquiry into EOP policymaking and deliberations.” It is out of a desire to take into account such interests that the Committee sought to prioritize its requests in early January, but that prioritization has yielded precious little additional information in return. Perhaps even more importantly, the EOP’s remedy for protecting its asserted interests is to assert a virtual immunity from our inquiry, a level of immunity that is far out of proportion with the interest asserted and highly inconsistent with the manner in which Congressional investigations have been conducted in the past.
As you know, our Committee, among others, has repeatedly conducted investigations touching on or directly involving the EOP. Yet I have never before seen the EOP take the position asserted here, under which the Committee has not only been denied most relevant material and information directly from the White House, but also has been precluded – at White House direction – from receiving from other agencies most material relating to the White House’s involvement with Hurricane Katrina. In Mr. Kelley’s January 27, 2006 letter, he asserts that the White House is giving the Committee access to material involving “factual and operational communications involving nearly all EOP personnel other than a relatively small number of officials most directly involved in supporting the President’s actions and determinations.” This exception, however, swallows the rule in one gulp: virtually everyone in the White House who had anything of operational significance to do with the preparation for and response to Katrina falls into the category put off limits to us. And, of course, we have been denied our requested interviews with even those lower level employees about whom the White House says it is willing to give us information. This has left us unable to obtain any real sense of what the White House did or didn’t do to run or aid the federal response to Katrina. And it has kept us from obtaining key information from executive branch agencies about the government’s response to Katrina. Members of both of our staffs have repeatedly and for months asked White House staff for precedent for the White House’s sweeping assertion of near immunity from inquiry. To date, we have been given none.
It is not only our experience that tells us that the White House’s position is wrong, it is the non-partisan Congressional Research Service. According to a February 9, 2006 memorandum CRS prepared for the Committee:
“the Supreme Court has held that “[t]he scope of [Congress’] power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution,” “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes,” and is at its peak when the subject is alleged waste, fraud, abuse or maladministration. [citations omitted] In the last 80 years, Congress has consistently sought and obtained documents and testimony that reflects deliberations in agencies, including almost every office and bureau in the Department of Justice and the Executive Office of the President (EOP). There have been some 75 instances in which EOP officials have testified before congressional committees, a list that includes chiefs of staff to the President, White House counsels and National Security Advisers. (emphasis added).”
In short, while I certainly recognize that there are important Executive Branch interests at stake whenever the Congress seeks to conduct oversight – interests which I believe we have tried to accommodate – the EOP has failed to recognize in return that there are countervailing and constitutionally based Legislative Branch interests at stake as well: the uncontested authority of the Congress to inquire into the Executive Branch’s administration of federal programs.
It is the historical, and as far as I know, unbroken view of the Congress that where a Congressional Committee believes that it needs particular information, whether from the EOP or elsewhere in the Executive Branch, the only basis on which the Executive Branch may ultimately resist such a Congressional demand is through an assertion by the President of executive privilege. This Constitutional safeguard ensures that where the legislative branch determines that discharging its constitutional functions requires it to obtain information, such a determination may be outweighed only if the President is willing to conclude and assert that his constitutional interests demand otherwise. Of course, even then, the privilege is a qualified one and may be overcome, but the issue of weighing the competing interests is not even reached if the President is unwilling to meet Congress’s assertion of Constitutional authority with a equivalent assertion of his own. In the words of our former Chairman Fred Thompson, when addressing the previous Administration’s efforts to resist a document request on a basis short of executive privilege:
“If the President is claiming special status because he is President, then his assertion is really one of executive privilege and not attorney-client privilege. While I can still remember Sam Ervin’s repeated admonitions that no man is above the law and that we are entitled to every man’s evidence, I still concede that executive privilege can be a valid claim, under some circumstances. However, the President must assert it. (12/20/95 Cong. Record, p. S18971) (emphasis added).”
This is a point we recognized just recently when Mr. Brown testified. Having asked the White House whether the President wished to assert executive privilege and having heard that it did not, you instructed Mr. Brown to answer questions regarding his contacts with the White House – the first time in the course of our investigation that we have received significant first hand testimony regarding the White House’s activities during Katrina.
In short, the Committee needs the information and documents we have been seeking for five months now from the White House if it is to be able to fully discharge its mandate of investigating the preparedness and response to Katrina. We have received far less cooperation from the White House in this investigation than in any in which I have previously participated during my seventeen plus years in the Senate, despite the fact that this is likely one of the most significant investigations a Senate committee has conducted in years. Nothing less than the future preparedness of our nation to respond to a terrorist attack or another catastrophic natural disaster is at stake, and the White House’s refusal to allow the Committee appropriate insight into the workings of the entity within the federal government that was ultimately responsible for coordinating and leading the federal response cannot, I believe, be permitted to stand. Although I believe it was appropriate to attempt to work out these issues with our co-equal branch, I have concluded that the time has come to take more aggressive action.
I therefore ask that the Committee issue subpoenas:
(1) to all federal departments and agencies to whom we sent request letters for the immediate production to the Committee of any document thus far withheld from the Committee on the ground that it refers or relates to EOP or OVP personnel;
(2) to the White House for the production of the following witnesses for depositions with Committee staff no later than Wednesday, March 22:
• Kirstjen Nielsen, Special Assistant to the President and Sr. Director for Preparedness and Response;
• Ken Rapuano, Deputy Assistant to the President for Homeland Security and Executive Secretary;
• Andrew H. Card, Jr., Chief of Staff
• Frances Fragos Townsend, Assistant to the President for Homeland Security
• Joseph Hagin, Deputy Chief of Staff
(3) to the White House for the production of all documents related to the priority topics listed in our January 12, 2006 letter; and
(4) to the White House for all documents:
• produced, sent or received by the EOP or any of its employees or officials between August 26, 2005 and August 31, 2005 that refer or relate to (a) actual or potential breaching or overtopping of the levees in or around New Orleans or (b) flooding in or around New Orleans; and
• related to the 11:13 AM White House Homeland Security Council spot report stating that there was a report of a levee breach, including any and all documents stating or relating to the source of the report of a levee breach. If no such documents exist, please identify the source of that report.
As you know, I greatly appreciate your leadership throughout this truly bi-partisan investigation, and I am very sorry that the White House’s lack of cooperation with our investigation has forced me to make this request. I appreciate your consideration of it, and would be happy to discuss it further with you.
Joseph I. Lieberman
Ranking Minority Member