[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT:
THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
(PART I)
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 5, 2007
__________
Serial No. 110-78
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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SEPTEMBER 5, 2007
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 3
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Committee on the Judiciary....... 5
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 6
WITNESSES
The Honorable Bob Barr, former Member of Congress
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Ms. Suzanne Spaulding, Principal, Bingham Consulting Group
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Professor Robert F. Turner, University of Virginia School of Law
Oral Testimony................................................. 23
Prepared Statement............................................. 26
Mr. Morton H. Halperin, Director of U.S. Advocacy, Open Society
Institute
Oral Testimony................................................. 66
Prepared Statement............................................. 68
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 119
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member, Committee
on the Judiciary............................................... 127
Senate bill S. 1927, the ``Protect America Act of 2007''......... 128
CRS Report for Congress entitled ``P.L. 110-55, the Protect
American Act of 2007: Modifications to the Foreign Intelligence
Surveillance Act,'' August 23, 2007............................ 142
Letter from Denise A. Cardman, Acting Director, American Bar
Association (ABA), dated September 14, 2007, to Chairman John
Conyers, Jr., and Ranking Member Lamar S. Smith................ 165
Report of the Task Force on Domestic Surveillance in the Fight
Against Terrorism, the American Bar Association (ABA), February
13, 2006....................................................... 167
Letter from John W. Whitehead, Founder and President, The
Rutherford Institute, dated September 7, 2007, to Chairman John
Conyers, Jr.................................................... 192
Prepared Statement of Caroline Frederickson, Director, Washington
Legislative Office, American Civil Liberties Union (ACLU)...... 198
WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT:
THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
(PART I)
----------
WEDNESDAY, SEPTEMBER 5, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:23 a.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Berman, Nadler, Scott,
Watt, Lofgren, Jackson Lee, Waters, Delahunt, Cohen, Johnson,
Sutton, Baldwin, Schiff, Davis, Wasserman Schultz, Ellison,
Smith, Coble, Goodlatte, Chabot, Lungren, Keller, Issa, Pence,
King, Feeney, Franks, Gohmert, and Jordan.
Staff present: Ted Kalo, General Counsel/Deputy Staff
Director; Sean McLaughlin, Deputy Chief Minority Counsel/Staff
Director; George Slover, Legislative Counsel/Parliamentarian;
and Anita L. Johnson, Professional Staff Member.
Mr. Conyers. The Committee will reconvene and come to
order.
We now turn to our consideration of Warrantless
Surveillance and the Foreign Intelligence Surveillance Act: The
Role of Checks and Balances in Protecting Americans' Privacy
Rights.
A month ago, the Congress passed an emergency wiretap law,
at the President's urging, that granted the Attorney General
largely unfettered authority to conduct surveillance of those
who are engaged in communications abroad.
The law was controversial. I strongly opposed it.
Fortunately, the law sunsets early next year. It had 6 months'
duration.
Today, we begin the process of reviewing the law and
considering modifications to it. In my judgment, there are
three tests that ought be met as we consider additional
legislation.
The first is we must be able to conduct real and meaningful
oversight on the surveillance program. The second is that we
must provide the courts with a meaningful role in reviewing
surveillance that applies to American citizens.
And finally, we need to consider the role of
telecommunications carriers. That, to me, summarizes what I
think our present responsibilities are.
There is not a Member on this Committee or in this room--
and I have invited the Chairman of Intelligence in the House to
join us this morning if his time permits--who would deny any
Administration the legitimate tools and resources it needs to
protect our citizens against terrorism.
But granting these tools cannot and should not involve
abdicating our responsibility as a co-equal branch of
Government to protect our precious rights and liberties. Both
of them are important, and we can do these two things at once.
We urge my colleagues to remember what truly makes this
country different from those of our enemies is that we can
begin by reading the Constitution and the Bill of Rights, as
well as our history books.
And I am happy today that we have such a distinguished
group of witnesses to start off our consideration of this very
important subject.
Our first witness is Bob Barr. Suzanne Spaulding is next.
Dr. Robert F. Turner and Mort Halperin. I will introduce them
in more detail later, but I want to welcome them right from the
outset.
Good to have you all here and start us off.
And I now turn to the distinguished Ranking Member from
Texas for his opening remarks, Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, I hope that this hearing will lead to
increased bipartisan support for measures needed to protect our
country from terrorists.
We are a Nation at war with foreign terrorists who are
continuing to plot deadly attacks. It is essential that our
intelligence agencies have the necessary tools to detect and
disrupt such attacks.
In the 30 years since Congress enacted the Foreign
Intelligence Surveillance Act, telecommunications technology
has dramatically changed.
As a result, the intelligence community has been hampered
in gathering essential information about terrorists needed to
prevent attacks against Americans.
Before we left for the August recess, Congress passed
important legislation to fill a gap in FISA.
That bill clarified well-established law that neither the
Constitution nor Federal law requires a court order to gather
foreign communications from foreign terrorists, adopted
flexible procedures to collect foreign intelligence from
foreign terrorists overseas, and provided for court review of
collection procedures under this new authority.
The director of national intelligence made it clear that
these reforms were essential for the intelligence community to
protect America from terrorist attacks.
Last April, the director submitted to Congress a
comprehensive proposal to modernize FISA. The director's
submission was ignored until the President made it clear in
July that Congress had to act to ensure that our intelligence
community obtains much-needed information about foreign
terrorists.
During the recess, some Members of Congress made public
statements promising to rewrite the bill we just passed. It
would be a deadly mistake to weaken such legislation.
Nearly 60 percent of Americans polled on the subject of
FISA reform supported the legislation Congress passed before
the August recess. The simple fact is that Americans support
surveillance of foreign terrorists when they contact persons in
the United States.
Unfortunately, 90 percent of House Democrats voted to deny
the director of national intelligence what he said he needed to
prevent future terrorist attacks.
If the majority decides to reverse this law, they will
hamper the ability of the intelligence community to prevent
terrorist attacks. Innocent lives will be lost unnecessarily.
We all cherish our individual liberties, but our liberties
cannot flourish without security. The pursuit of life, liberty
and happiness can occur only in a safe and secure country.
I look forward to today's hearing with the hope that the
debate on FISA reform will lead to enactment of all the
director's proposals that he submitted in April.
These proposals would ensure assistance from private
entities in conducting authorized surveillance activities, make
certain that private entities are protected from liability for
assisting the Government, and streamline the FISA process so
that the intelligence community can direct resources to
essential operation.
These reforms are long overdue. They should be debated
without exaggerated claims of abuse or misleading claims of
threats to civil liberty. Such a debate should also address the
importance of all Americans living in a safe and secure
country.
President George Washington once said there is nothing so
likely to produce peace as to be well prepared to meet the
enemy. We should maintain our commitment to winning the war
against terrorism.
I thank you, Mr. Chairman, and I will yield back the
balance of my time.
Mr. Conyers. And I thank you, sir.
We have agreed to allow Congressman Bobby Scott to make a
brief statement, Trent Franks to be recognized.
And I begin with Jerry Nadler, who is the Chairman of the
Constitution Subcommittee, and I recognize the gentleman for
2.5 minutes.
Mr. Nadler. Thank you.
I would like to thank Chairman Conyers for his leadership
in holding this hearing today.
This hearing is an important first step in examining the
serious concerns regarding the recently enacted White House
proposal to drastically alter the Foreign Intelligence
Surveillance Act.
That law, rushed through Congress just before the August
recess, gives unnecessary license for the Administration to
wiretap Americans without court supervision.
Today's hearing specifically looks at one of the
foundations of our fundamental liberties, the constitutional
and statutory restrictions on the Government's ability to spy
on people.
Both the fourth amendment and FISA were responsive to
abuses by Government that thought they were above the law. The
right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
is a core limitation on the Government that protects each of
us.
The framers of the Constitution understood this and,
despite periodic lapses, so have most of our Nation's leaders.
Congress enacted FISA following the Church Committee report
on surveillance abuses. It reflects Congress' understanding
that the conduct of foreign intelligence activities is
fundamentally different from domestic surveillance.
It nonetheless also reflects one of our Nation's founding
principles that power, especially the power to invade people's
privacy, cannot be exercised unchecked.
We rejected monarchy in this country more than 200 years
ago. That means that no President, even this one, may become a
law unto him or herself. As with every part of Government,
there must always be checks and balances.
This President appears to have forgotten that fact. Not
only has he asserted the right to go around the FISA court and
the wiretap act, but he has actually done so.
Even more disturbing, he does not believe that he is
accountable to the Congress, the courts or anyone else.
This Committee created the FISA statute and the FISA court,
yet the President believes we are not entitled to know what he
or the court are doing.
The President also believes that we are not entitled to
know what he is doing, or has been doing, outside the confines
of the FISA statute.
Now we have passed a flawed bill that, in the guise of
updating the FISA law, actually gives the President almost
unfettered power to spy without court supervision, not just on
foreigners, but on Americans.
In the rush of the final hours before the August recess, we
were stampeded by Administration fear-mongering and deception
into signing away our rights. Thank God there is a 6-month
sunset on the bill.
The legislation allows the NSA warrantless access to
virtually all international communications of Americans with
anyone outside the U.S. so long as the Government maintains
that the surveillance is directed at people, including both
citizens and foreigners, who are ``reasonably believed to be
located outside the U.S.''
The Administration rejected all sensible efforts to focus
such surveillance on terrorist activity or to provide
meaningful court review of the rights of Americans who will be
spied on in our country.
Make no mistake about it. We are speaking about domestic
spying on American citizens.
We must act now to restore much-needed checks and balances
into this damaged law. I look forward to----
Mr. Conyers. The gentleman's time----
Mr. Nadler [continuing]. Standing with Chairmen Conyers and
Reyes----
Mr. Conyers [continuing]. Is nearly expired.
Mr. Nadler [continuing]. As we work with leadership to
restore our freedoms that define America.
I thank you.
Mr. Conyers. I thank you, sir.
Because the gentleman from Arizona, the Subcommittee
Ranking Member, Trent Franks, is the only Republican that has
agreed to speak, we will give him 5 minutes. And we recognize
Trent Franks of Arizona at this point.
Mr. Franks. Well, thank you very much, Mr. Chairman.
And, Mr. Chairman, I am hopeful that this meeting will
lead, indeed, to a bipartisan effort to provide tools necessary
and needed by our intelligence community to protect this
Nation.
The arrest of eight suspected al-Qaida members in Denmark
yesterday should serve as a reminder to us all that terrorists
every day are plotting overseas to carry out deadly attacks.
Unfortunately, I am afraid the majority has failed to see
the importance of monitoring terrorists overseas when they
communicate with other terrorists outside this country or
communicate with other terrorists inside the United States.
The director of national intelligence has made it clear the
Foreign Intelligence Surveillance Act of 1978 needs to be
updated.
It is imperative that the intelligence community have the
flexibility to monitor foreign terrorists so that our Nation
remains safe.
While opponents of FISA reforms continue to create, in my
judgment, mountains out of molehills, it is important to
remember that the Protect America Act restored FISA to its
original focus by allowing the intelligence community to
conduct surveillance of terrorists overseas without prior court
approval.
The Protect America Act also allows for substantial
oversight, including a submission of important implementation
procedures for review by the FISA court.
The director of national intelligence has explained to
Congress for more than a year that the Government devotes
substantial resources to obtaining court approvals based on a
showing of probable cause to conduct surveillance against
terrorists, again, located overseas.
The Government does not know in advance who these
terrorists will talk to and needs to have the flexibility to
monitor calls that may occur between a foreign terrorist and a
terrorist inside the United States.
Such monitoring of these communications can be conducted
with well-established minimization rules that have been applied
to restrict any unwarranted intrusion on the civil liberties of
any United States citizen.
Requiring specific applications and authority for
surveillance of such communications would impose burdens and
delays with possible catastrophic consequences.
Mr. Chairman, so-called civil liberties groups and liberal
newspaper editors have spent the last month spreading false
allegations and misconceptions about foreign intelligence in
order to gin up opposition to the Protect America Act.
Such claims and efforts are irresponsible. We are a Nation
at war with foreign terrorists who continue to plan deadly
attacks against America. The safety of Americans depends on
action by Congress.
al-Qaida released a video recently promising a ``big
surprise.'' This threat, along with other activity, has
heightened concern among our intelligence agencies.
Mr. Chairman, I have said many times in this Committee that
we are at war with an ideology that is dedicated to the
destruction of the western world. And what we do will be
considered carefully by future generations.
We have, in this Congress, given the President the
authority to hunt down, ferret out and kill terrorists. The
Constitution of the United States, as it empowers him to be the
commander in chief, gives him the power to hunt down, ferret
out and kill terrorists.
Surely he has the right and even the responsibility to
listen to them on the phone before he proceeds. And I am
hopeful that the Protect America Act will be made permanent and
that other responsible FISA reforms will be crafted by this
Committee and passed by the House.
And, Mr. Chairman, I yield back my time. Thank you.
Mr. Conyers. Thank you, Trent.
I am now pleased to recognize Bobby Scott of Virginia, who
is the Subcommittee Chairman of the Crime Subcommittee, and we
recognize the gentleman at this time for 2.5 minutes.
Mr. Scott. Thank you, Mr. Chairman, and I appreciate you
holding this hearing on warrantless surveillance under the
Foreign Intelligence Surveillance Act, or FISA.
Because of the Department of Justice's refusal to respond
to requests for information, we have been stymied in conducting
meaningful oversight with respect to the Administration's
warrantless surveillance and have been prevented from serving
as an independent check on abuses by the President and the
National Security Agency.
And so there is a sense, now, there are virtually no checks
and balances on the Administration's discretion on who or what
is the subject of warrantless surveillance.
Now, there has never been any controversy over overseas
surveillance. You don't need any oversight for that. They can
do what they want.
But now, based on the Administration's own certification,
the Administration is now free to intercept communications
believed to be from outside the United States into the United
States and possibly even, because of ambiguities in the law,
domestic calls that involve any vague notion of foreign
intelligence.
Now, that is not terrorism. Foreign intelligence includes
information regarding trade deals, or international politics or
any kind of diplomacy.
And the standard the Government has to meet to engage in
such data mining is that the acquisition of information has to
be a significant justification for the invasive surveillance
techniques, not the traditional primary justification.
Now, the Department of Justice has not credibly refuted the
allegations that United States attorneys were fired because
they failed to use the criminal justice process to pursue
partisan political agendas.
So now, if the Department of Justice wiretaps when foreign
intelligence is just a significant purpose and not the primary
purpose, you wonder what the primary purpose may be.
Now, let's be clear. This is not a question of balancing
rights and liberties versus security. The requirement that the
Department of Justice has to essentially notify the FISA court
of its surveillance activities in no way restricts what it can
do.
There is even an emergency exception. If they are in a
hurry, they can get the warrant after the fact. But meaningful
FISA oversight will give the public confidence that the
Department of Justice is complying with the law.
Thank you, Mr. Chairman, and I appreciate the fact that you
are holding this hearing.
Mr. Conyers. Thank you, Bobby Scott.
What a distinguished group of witnesses we have today. Our
first witness is a former colleague and a Member of the
Judiciary Committee who served with great distinction over the
years that he was in the Congress.
Bob Barr is also a founding member of the Liberty and
Security Initiative of the Constitution Project and just from
what I have been observing, he has been almost as active out of
the Congress as he has been in the Congress.
And we are delighted that he has once again accepted an
invitation to come before the Judiciary Committee on this very
important subject.
And without objection, his and all other Members'
statements will be included in their entirety in the record.
Welcome, Congressman Barr.
TESTIMONY OF THE HONORABLE BOB BARR,
FORMER MEMBER OF CONGRESS3
Mr. Barr. Thank you, Mr. Chairman. It is both a pleasure
and an honor to be back among so many former colleagues and
continuing friends on both sides of the aisle, and particularly
on such an important topic as the Chairman and the Committee is
set to consider today.
It is a pleasure also being with my good friend and
colleague from my home state of Georgia, Congressman Johnson.
Hank, it is great to be with you and, as the Chairman has
indicated, an extremely distinguished panel.
Mr. Chairman, I read with some interest a recent interview
with National Intelligence Director Mike McConnell which
appeared in the El Paso Times.
And I can't help but note that the dire warnings by the
Administration similar to those which were employed to secure
very rapid passage of the FISA amendments exactly 1 month ago,
or 1 month ago and then signed exactly 1 month ago by the
President, continue unabated.
And they ill serve any Administration, Republican or
Democrat. And I refer particularly to the words of Mr.
McConnell that indicate that simply debating this topic as this
Committee is doing today will ``cost American lives.''
I think this is a completely unacceptable approach to the
democratic representative process that we have in this country
whereby the Congress and the Administration are both deemed not
just--it is deemed not just appropriate, but absolutely
essential, to debate important policy issues, particularly
those, as today, which are very well-founded, inextricably
founded, in constitutional principles. Noted among them is the
fourth amendment.
And to try and squelch even the debate of these topics by
raising the false specter that debating the constitutionality
of FISA or amendments to FISA will some how cost American
lives, and therefore we ought not to even debate these issues,
ought not to be something that the American people accept.
And I am certainly glad that this Committee and the current
leadership--yourself, certainly, Mr. Chairman--are not falling
prey to that. These matters are, indeed, very worthy of debate.
If these matters are not worthy of debate--that is, the
extent to which our own Government can spy on our own citizens
in this, our own land, are not worthy of debate--then it is
hard to imagine any issue that would be worthy of debate.
So I think it is extremely important that this topic is
coming before the Committee.
The very title of this hearing places the subject away or
removes the topic away from simply a dry technical discussion
to a discussion not only of the technology but, more
importantly, of the fundamental constitutional principles and
rights underlying intelligence surveillance or any kind of
electronic surveillance by this Government, which, indeed,
immediately and necessarily involves the privacy rights of our
citizens as embodied not only but particularly in the fourth
amendment.
The manner in which this Administration argued in support
of what it termed a technical amendment to FISA in order to
accommodate the problem at hand as it identified it--that is,
two individuals, both outside the United States, engaging in
electronic communication, but because of the technology that
communication is routed through the United States--is one
issue, and it is a legitimate issue.
Unfortunately, as the Chairman and some of the other
Members on the Chairman's side have indicated, the supposed fix
by the Administration as embodied in the legislation, P.L. 110-
55, that the President signed on August 5, go far, far beyond
any reasonable effort to address that particular problem.
And now virtually any electronic communication--that is, a
telephone call or an e-mail--by any person in this country,
U.S. citizen or otherwise, that simply has as one of its
parties somebody reasonably believed to be overseas, is now
subject to surveillance by the Government without ever even
contemplating, much less going before, the Foreign Intelligence
Surveillance Court or any court.
And this notion that we address a very specific technical
problem by a massive rewrite, in essence, of the entire FISA
mechanism is one that I believe is entirely unacceptable.
And hopefully now, beginning with the process here today,
the Congress will rectify and restore constitutional balance to
the FISA process.
This will not weaken the legislation. I fail to see that
ever when legislation is crafted to bring it in accord with the
Constitution, that weakens it. This would not weaken it.
It would, indeed, greatly strengthen not only the
legislation but also the constitutional underpinnings of the
right to privacy for all Americans.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Barr follows:]
Prepared Statement of the Honorable Bob Barr
Mr. Conyers. I thank you very much.
Congressman Hank Johnson was desperately trying to get my
attention before we started. I yield him a very small amount of
time.
Mr. Johnson. I thank you, Mr. Chairman.
Mr. Chairman, the purpose of my request is to simply
acknowledge the presence of my Georgia colleague in the bar of
Georgia, Mr. Bob Barr, a man who we have not agreed on all of
our political issues.
But I certainly deeply respect the patriotism that he has
displayed throughout his career, both as a U.S. attorney where
he prosecuted public corruption cases in a bipartisan way, as
well as was tough on other crime, and also as a congressman,
and then his post-congressional career where he has been an
eloquent spokesperson for our adherence to constitutional
principles, as we proceed in a more dangerous existence on this
planet.
So I just wanted to acknowledge your great work and say
that I appreciate the fact that you are a lawyer from Georgia,
and you continue to do great work. So thank you very much.
Mr. Barr. Appreciate very much the very kind and
unwarranted words of my friend from Georgia. Thank you.
Mr. Conyers. Our next witness is attorney Suzanne
Spaulding, who was Assistant General Counsel at the CIA,
previously a minority staff director on the House Permanent
Select Committee of Intelligence, Executive Director of the
National Commission on Terrorism, and currently Managing
Director of the Harbour Group, specializing in national
security and terrorism issues.
We are delighted and pleased that you could join us this
morning.
TESTIMONY OF SUZANNE SPAULDING, PRINCIPAL,
BINGHAM CONSULTING GROUP
Ms. Spaulding. Chairman Conyers, Ranking Member Smith,
Members of the Committee, thank you for this opportunity to
testify on changes to the Foreign Intelligence Surveillance
Act.
I would like to begin by emphasizing that in the over 20
years that I have spent working on efforts to combat terrorism,
I developed a strong sense of the seriousness of the national
security challenges that we face and a deep respect for the men
and women in our national security agencies who work so hard to
keep us safe.
We all agree that we owe it to those professionals to
ensure that they have the tools they need to do their jobs,
tools that reflect the ways in which advances of technology
have changed both the nature of the threat and our capacity to
meet it.
They also deserve to have clear guidance on just what it is
that we want them to do on our behalf and how we want them to
do it.
Unfortunately, the newly enacted changes to FISA do not
provide clear guidance and instead appear to provide
potentially very broad authority and inadequate safeguards.
I will touch on just a few points today with additional
comments in my written testimony.
First, avoid changing definitions. The terms in FISA not
only appear throughout this complex statute, they are also
referenced in and inform other laws, executive orders,
directives and policies.
The risk of unintended consequences is significant,
particularly when changing the definition of a term as
fundamental as electronic surveillance.
Second, the words ``notwithstanding any other law,'' which
is how the new section 105(b) begins, should always raise a red
flag. These words mean that all other laws that regulate the
collection of intelligence inside the United States no longer
apply to activities undertaken under section 105(b).
And those activities are potentially extremely far-
reaching. Section 105(b) appears to provide statutory
authorization for the Government to gather information on any
kind of communication and to gather it inside the United States
from U.S. citizens, so long as it is about someone who happens
to be outside the United States at that time.
Thus, it would appear, for example, to authorize
intercepting U.S. mail between two people inside the United
States, as long as the Government reasonably believes that the
letter discusses someone outside the United States.
The careful statutory regime governing mail intercepts is
overruled by the ``notwithstanding any other law'' language in
section 105(b).
Similarly, it would appear that the Attorney General could
authorize the physical search of a person's office for stored
e-mails or letters concerning their colleagues overseas. The
FISA provisions that regulate physical searches become
irrelevant if section 105(b) applies.
This language also overrules privacy protections in the
Electronic Communications Privacy Act and other privacy laws.
And none of this domestic intelligence collection has to be
related in any way to terrorism.
It applies to any foreign intelligence, a term which has
been amended over the years to include a very broad range of
information.
The Protect Act requires that information be minimized but
it appears to apply the relatively relaxed, permissive
procedures that currently apply when a FISA judge has reviewed
a full FISA application and found probable cause.
Instead, what should be required are the far more stringent
procedures that currently apply when the Attorney General has
unilaterally approved surveillance under his current authority
under 102(a) of FISA.
Changes to FISA should be the narrowest possible to remove
whatever impediment has arisen to using FISA. There ought to be
a way for the Government to know, even if it is after the fact,
where the parties to these communications are located.
My phone company seems to be able to determine whether I am
using my cell phone at home or overseas. They charge me a lot
more when I use it overseas.
This technology can begin to provide the basis for a legal
regime that is much more narrowly focused with precise
procedures and safeguards to govern surveillance that involves
people inside the United States.
Finally, Congress should seek a stronger commitment from
the Administration that it will actually abide by the law.
Until Congress gets some assurance from the executive
branch about where they draw the line on presidential authority
in this area, it is hard to see why Members should continue to
work so hard to craft careful laws.
In conclusion, Mr. Chairman, I believe that ultimately
effective oversight and thoughtful legislation will require
reshaping the discussion about how to best address the long-
term threat of terrorism.
We need a broader discussion about the ways in which
policies that mock the rule of law or undermine our carefully
constructed system of checks and balances make it more likely,
not less likely, that we will be attacked again.
The long-term challenge of international terrorism is a
struggle for hearts and minds, a competition of narratives.
The best way to be strong on terrorism is not to defer to
the avaricious accumulation of power by the executive branch
but to better understand the true nature of the long-term
struggle against violent extremism.
We can only defeat this threat by building upon the
strengths of our system, including its checks and balances.
That city on a hill can outshine the twisted but compelling
lure of violent jihad. That is how we will ultimately prevail.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Spaulding follows:]
Prepared Statement of Suzanne E. Spaulding
Mr. Chairman, Ranking Member, Members of the Committee, thank you
for this opportunity to testify on changes to the Foreign Intelligence
Surveillance Act (FISA). I'd like to begin by emphasizing that I have
spent over twenty years working on efforts to combat terrorism. Over
those two decades, in my work at the Central Intelligence Agency, at
both the House and Senate intelligence oversight committees, and as
Executive Director of two different commissions, on terrorism and
weapons of mass destruction, I developed a strong sense of the
seriousness of the national security challenges that we face and deep
respect for the men and women in our national security agencies who
work so hard to keep our nation safe.
We owe it to those professionals to ensure that they have the tools
they need to do their job; tools that reflect the ways in which
advances in technology have changed both the nature of the threat and
our capacity to meet it. Equally important, they deserve to have clear
guidance on just what it is that we want them to do on our behalf--and
how we want them to do it. Clear rules and careful oversight provide
essential protections for those on the front lines of our national
security efforts. Unfortunately, the newly enacted changes to the
Foreign Intelligence Surveillance Act (FISA) provide neither clear
guidance nor the mechanisms to ensure careful oversight.
problems with the protect america act of 2007
I understand that the committee plans to hold further hearings to
examine in greater detail the specifics of the Protect Act and assess
whether to make changes or replace it. Thus, I will limit my testimony
today to a few key points.
Avoid trying to accomplish your objective by changing definitions.
The terms in FISA not only appear throughout this complex statute; they
are also referenced in or inform other laws, Executive Orders,
directives, policies, etc. The risk of unintended consequences is
significant, particularly when changing the definition of something a
fundamental as electronic surveillance. The report recently prepared by
the Congressional Research Service points out several ways in which
defining a range of activity out of electronic surveillance, while
still setting up a scheme to govern those activities within this
statute designed to regulate electronic surveillance, creates
confusion. This does not even address the consequences for internal NSA
directives and other legal and policy documents that reference
electronic surveillance.
A better approach would be one similar to that found in the bill
introduced by Representative Reyes, Chair of the House Permanent Select
Committee on Intelligence, that explicitly authorizes the surveillance
when the target is reasonably believed outside US, with strong
safeguards to protect against ``reverse targeting'' or unnecessary
intrusions on the privacy of the US--end of a communication.
As a general rule, never use the words ``notwithstanding any other
law.'' This is how the new section 105B begins and that should always
raise a red flag. In this case, it raises serious questions about the
continuing applicability of other laws that regulate the collection of
intelligence inside the United States, including restrictions within
FISA with regard to physical searches.
Section 105B provides authority for the AG and DNI to collect
intelligence information inside the United States so long as (1) the
information is about a person who happens to be outside the US at the
time--including, of course, a US citizen, (2) the collection of that
information does not involve electronic surveillance, and (3) the
government requires the assistance of someone with access to a
communication or communication equipment. It appears to be about
electronic surveillance targeting someone outside the US (which is now
no long considered ``electronic surveillance''), but it in fact
provides authorization for the government to gather any kind of
communication and to gather it inside the United States. Thus, it would
appear to authorize intercepting US mail between two people inside the
United States, so long as the government reasonably believes the letter
discusses, at least in part, someone outside the US. The careful legal
regime governing mail intercepts is overruled by the ``notwithstanding
any other law'' language'' in section 105B.
Moreover, it would appear that the AG could authorize the physical
search of your home to find a letter from your son overseas or the
family computer on which you've stored his emails, although this would
raise significant 4th Amendment issues. The FISA provisions that
regulate physical searches become irrelevant because section 105B
applies ``notwithstanding any other law.''
Similarly, the protections that Congress worked so hard to enact
last year for section 215, the so-called business records provision,
would also appear to be overruled when Section 105B applies. Thus, any
individual who can help the government obtain access to communications
that involve someone outside the United States can now be compelled to
provide that assistance under section 105B, with fewer safeguards.
And it is not just other sections of FISA that are effectively
repealed by this language. It overrules any laws that might otherwise
affect the gathering of information about communications that concern
people outside the US. Thus, whatever privacy protections Congress may
have enacted in other laws, including the Electronic Communications
Privacy Act, the Communications Privacy Act, even HIPPA and the Privacy
Act, would no longer have any impact on this activity.
If there are particular provisions of law that Congress wishes to
ensure do not hamper the collection of this intelligence inside the US,
they should specify those provisions and be clear about how they will
and will not apply.
And none of this domestic intelligence collection has to be related
in any way to terrorism. It applies to any ``foreign intelligence,'' a
term which has been amended over the years to include a very broad
range of information.
It is true that information gathered under 105B must be subjected
to minimization procedures, but it appears that the statutory
requirements that apply are the less rigorous procedures that apply
when a FISA judge has reviewed a full FISA application and found
probable cause to believe that the target of the surveillance was a
foreign power or agent of a foreign power. The Protect Act simply
refers to ``the minimization procedures in section 101(h).'' There are
two sets of minimization procedures proscribed in that section. The
first set applies when a FISA judge has approved an application. The
second set is much more stringent and applies when the Attorney General
has approved surveillance without going to a FISA judge. These more
rigorous procedures are statutorily limited to situations in which the
AG is acting pursuant to the authority granted him in section 102(a).
Thus, they would not apply to the unilateral authority granted to the
AG and DNI in the Protect Act.
The general minimization procedures in 101(h)(1)-(3) reflect a
recognition that, even after all the application requirements had been
met and approved by a FISA judge, there remains some risk that
information about U.S. persons (USPs) might be collected. These
procedures require steps be taken to minimize the acquisition and
retention, and prohibit the dissemination, of such information. The
procedures are to be ``reasonably designed in light of the purpose and
technique'' of the surveillance and ``consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence
information.'' This is a very broad and flexible standard, particularly
given the current scope of ``foreign intelligence.''
Under section 101(h)(4), if surveillance is conducted pursuant to
AG authorization rather than a warrant from a FISA judge, no contents
of any communication to which a USP is a party can be disclosed,
disseminated, or used for any purpose or retained for more than 72
hours without getting a court order, unless the AG determines that the
information indicates a threat of death or serious bodily harm. Concern
about ensuring that electronic surveillance authorized unilaterally by
the AG could not be used to gather information about USPs was so strong
when FISA was enacted that even the mere existence of such a
communication was included in this restriction. At a minimum, this
stricter procedure should apply to information collected under section
105B.
In addition, the Protect Act requires that the AG and DNI develop
procedures to reasonably ensure that the target is outside the US (or
the information concerns someone outside the US and is not ``electronic
surveillance'') but the Act does not provide any other requirements for
those procedures.
The government should have a proactive obligation to take whatever
steps are feasible, on an ongoing basis rather than just at the outset
of surveillance or other intelligence collection, to determine whether
the target is in fact overseas and whether the other party to a
communication is inside the United States. The phone company always
seems to be able to determine whether I am using my cell phone at home
or overseas--I know this because they charge me a lot more when I use
it overseas! There ought to be a way for the government to know, even
if it is after the fact, where the parties to many of these
communications are located. This begins to provide the basis for a
legal regime that is much more narrowly focused, with precise
procedures and safeguards to govern surveillance that involves persons
inside the United States.
Finally, rigorous oversight of the use of this authority will be
essential. Given the reported failure of the AG to properly report to
Congress regarding problems with the use of national security letters,
I would urge Congress to direct the Justice Department and DNI
Inspectors General to report jointly on implementation within 90 days
of enactment and every 90 days thereafter.
context for fisa changes
The Administration has indicated that it plans to seek broader
changes to FISA. As the committee and the Congress consider how to move
forward on this issue, I would offer some overarching thoughts on the
challenge presented by the national security imperative to monitor
communications of those who wish to do us harm.
First, any expansion of authority should be limited to terrorism
targets. This is how the authority is sold to the American public by
the Administration. To then broaden the authority to include any and
all foreign intelligence on anything is a kind of ``bait and switch.''
Second, craft the narrowest changes possible to remove whatever
impediment has arisen to using FISA. Technology experts and FISA
judges, current and former, can provide essential insights into what
the government and the communications providers can and cannot do, as
well as what safeguards are most important to prevent abuse.
Third, be extremely cautious about limiting the role of the FISA
judges. As Supreme Court Justice Powell wrote for the majority in the
Keith case, ``The Fourth Amendment does not contemplate the executive
officers of Government as neutral and disinterested magistrates. Their
duty and responsibility are to enforce the laws, to investigate, and to
prosecute. . . . But those charged with this investigative and
prosecutorial duty should not be the sole judges of when to utilize
constitutionally sensitive means in pursuing their tasks. The
historical judgment, which the Fourth Amendment accepts, is that
unreviewed executive discretion may yield too readily to pressures to
obtain incriminating evidence and overlook potential invasions of
privacy and protected speech.''
Finally, Congress should seek a stronger commitment from the
Administration that it will actually abide by the law. This new
procedures under section 105B are optional; the AG and DNI ``may''
choose to use them; they are not required to follow this process. But
the rest of FISA is not optional. Until Congress gets some assurance
from the Executive Branch about where they draw the line on
Presidential authority in this area, it is hard to see why Members
should continue to work so hard to craft careful laws.
On a related point, the Administration has indicated that it will
be back in front of Congress seeking immunity for carriers and others
who cooperated in the Terrorist Surveillance Program and, perhaps,
other intelligence activities. It is hard to imagine a more powerful
way to undermine respect for the rule of law and the critical role that
communication providers play as the last line of defense against
government abuse. Moreover, it's not clear why this is needed. Under
current law, communication providers already can avoid liability if
they simply have a letter from the AG saying the government's request
is legal. If they did not even get that, what message do we send by
giving them immunity for totally disregarding the law? Why wouldn't the
next telecommunications CEO also decide to go ahead and violate the
law, figuring the government would bail the company out if it ever
became public?
In an area such as this, where the normal safeguards of
transparency are lacking, requiring communication providers to at least
get a certification that the request to hand over customer information
or allow communication intercepts is legal serves as an important
potential deterrent to abusive behavior by the government. At a
minimum, Congress needs to fully understand what past activities would
be immunized before adopting such a wide-ranging provision.
undertake a broader review of domestic intelligence collection
FISA is the primary statute governing domestic intelligence
collection. Rather than attempt to guess at what might really be needed
to meet today's challenges and how these and other changes will affect
our ability to meet those challenges and protect Americans' privacy,
Congress should take the time to ensure they understand the full
context in which these changes are being sought. This includes the
problems that have prompted them, particularly as these relate to
current and past intelligence activities and the changing nature of the
threat, as well as how these new authorities, definitions, and
procedures would relate to all of the other national security and law
enforcement tools available to the government.
I urge Congress not to consider any ``overhaul'' of FISA without
first undertaking a comprehensive review of domestic intelligence
collection. The attacks of 9/11 revealed a vulnerability at home that
led to a dramatic increase in domestic intelligence activity. The
Federal Bureau of Investigation's priorities turned 180 degrees, as it
was pressed to place domestic intelligence collection at the forefront
rather than criminal law enforcement. But the FBI is not the only
entity engaged in domestic intelligence. The Central Intelligence
Agency, National Security Agency, Department of Defense, Department of
Homeland Security, and state and local law enforcement are among the
many entities gathering intelligence inside the US. The threat to the
homeland presents unique challenges, both to effective intelligence and
to appropriate protections against unwarranted government intrusion.
Unfortunately, the legal framework governing this intelligence
activity has come to resemble a Rube Goldberg contraption rather than
the coherent foundation we expect and need from our laws. The rules
that govern domestic intelligence collection are scattered throughout
the US Code and a multitude of internal agency policies, guidelines,
and directives, developed piecemeal over time, often adopted quickly in
response to scandal or crisis and sometimes in secret.
Rather than continuing this pattern, the House of Representatives
should consider establishing a Joint Inquiry or Task Force with
representation from the most relevant committees (Intelligence,
Judiciary, Armed Services, Foreign Affairs, and Homeland Security), to
carefully examine the nature of the threat inside the US and the most
effective strategies for countering it. Then this task force, the
entire Congress, and the American public, can consider whether we have
the appropriate institutional and legal framework for ensuring that we
have the intelligence necessary to implement those strategies, with
adequate safeguards and oversight.
The various authorities for gathering information inside the United
States, including the authorities in FISA, need to be considered and
understood in relation to each other, not in isolation. For example, as
discussed earlier, Congress needs to understand how broader FISA
authority relates to the various current authorities for obtaining or
reviewing records, such as national security letters, section 215 of
FISA, and the physical search pen register/trap and trace authorities
in FISA, and the counterparts to these in the criminal context, as well
as other law enforcement tools such as grand juries and material
witness statutes.
Executive Order 12333, echoed in FISA, calls for using the ``least
intrusive collection techniques feasible.'' The appropriateness of
using electronic surveillance or other intrusive techniques to gather
the communications of Americans should be considered in light of other,
less intrusive techniques that might be available to establish, for
example, whether a phone number belongs to a suspected terrorist or the
pizza delivery shop. It's not the ``all or nothing'' proposition often
portrayed in some of the debates.
Congress should undertake this comprehensive consideration of
domestic intelligence with an eye toward the future but informed by the
past and present. Until Congress fully understands precisely what has
and is being done in terms of the collection and exploitation of
intelligence related to activities inside the US, by all national
security agencies, it cannot wisely anticipate the needs and potential
problems going forward.
This applies particularly to changes to FISA. Congress must be
certain that it has been fully informed about the details of the
Terrorist Surveillance Program and any other surveillance programs or
activities initiated after 9/11, not just in their current form but in
the very earliest stages, including the legal justifications offered at
the time the activities were initiated. Understanding how the law
operates in times of crisis and stress is key to understanding how it
might need to be strengthened or adjusted to meet national security
imperatives in ways that will protect against future abuse.
Conducting this kind of careful and thorough oversight is
particularly challenging in today's environment, as we saw with the
rush to enact the Protect Act just before the August recess. Congress'
ability to insist that the expansion of authority be appropriately
limited and safeguarded was significantly hampered by concerns that the
American public would view Members as ``soft'' on national security.
reshape discussions about how best to address the terrorist threat
Effective oversight and thoughtful legislation will require
reshaping the discussion about how to best address the long term threat
of terrorism. We need a broader discussion about the ways in which
policies that mock the rule of law and undermine our carefully
constructed system of checks and balances make it more likely, rather
than less likely, that we will be attacked again.
Military and civilian experts agree that the long-term threat from
international terrorism is not going to be defeated militarily. In
addition to eliminating the terrorists' leadership, it is at least
equally essential to reduce their ability to recruit new young people
to join their ``cause'' and to generate and maintain support within
communities around the world. This is a struggle for hearts and minds;
a competition of narratives. The ``jihadist'' narrative is undeniably
compelling to many young Muslim men--and we unfortunately strengthen
this narrative when we speak in terms of a Global War on Terrorism. The
narrative of democracy, individual freedoms, and the rule of law can be
equally compelling but its credibility is dramatically undermined if
the greatest democracy is not clearly committed to live that narrative
rather than simply mouthing the words.
We have to demonstrate that we still believe what our founders
understood; that this system of checks and balances and respect for
civil liberties is not a luxury of peace and tranquility but was
created in a time of great peril as the best hope for keeping this
nation strong and resilient. It was a system developed not by fuzzy-
headed idealists but by individuals who had just fought a war and who
knew that they faced an uncertain and dangerous time. They saw first-
hand the how the whims of a single, unchecked ruler could lead a
country astray. They knew that in times of fear and crisis, the
instinct is to reach for power--and they determined that balancing
power between all three branches would protect against that frailty of
human nature and ultimately make for wiser, better decisions and a more
unified and strong nation.
Our greatest weapon against global terrorism is a committed and
determined American public. Public support is strengthened by
developing consensus through public discussion and debate--not by
developing policies in secret or by stifling dissent by labeling those
who disagree as ``unpatriotic'' or insufficiently aware of the post 9/
11 threat. Statements claiming that Congressional debate over proposed
FISA changes costs American lives are not only suspect in terms of
credibility, they also reflect a fundamental failure to appreciate the
strength of our democracy.
The wisdom of this system and the importance of remaining true to
it even in times of peril can perhaps best be understood with regard to
fears of home-grown terrorism. The best hope for detecting and
preventing this threat lies not in intrusive intelligence methods,
which are better suited to monitoring a known target than in finding
out who might be a target. Instead, our best hope lies in working
closely with communities, particularly Muslim American communities.
Yet, many of our policies and practices since 9/11 that unnecessarily
compromise civil liberties or seem to reflect a lack of respect for the
rule of law risk alienating those very communities. In this regard,
they make us less secure.
It is also clear that the failure of the Administration to follow
the law or take advantage of our system of checks and balances in its
implementation of the Terrorist Surveillance Program, and other related
intelligence activities, had significant negative consequences for our
national security. The Administration tells us that these surveillance
activities were, and are, vital to our security. Yet here are some of
the consequences of the failure to build a firm legal foundation for
these programs:
The program was shut down for weeks: The shaky legal
ground for surveillance activities apparently caused sufficient
concern by the Acting Attorney General and the FBI Director
that the program was reportedly shut down for weeks until more
safeguards were added. That means for weeks we were not
listening to what we are told are conversations between
terrorists and people inside the US. A firmer legal footing,
based on a stronger consensus, would have avoided this
potentially dangerous gap in coverage.
The program was leaked to the press, something the
Administration claims has hurt our national security. Why was
it leaked? Because the professionals at NSA were so troubled by
what they believed was an illegal program. Had the program been
placed on a more solid legal footing, these dedicated
professionals would not have felt compelled to seek outside
oversight.
Prosecutions may be jeopardized. Prosecutions that
were based in any way on information obtained by this program
may now be jeopardized if a court finds that the information
was collected or used improperly. A more solid legal basis
could have avoided this risk.
Damaging impact on intelligence professionals. The
legal uncertainty of this program (1) puts the men and women
who were conducting this surveillance program, and those who
were using the information, in jeopardy of potential criminal
liability, (2) hurts agency morale, and (3) may well undermine
officials' confidence that they can and should carry out future
presidential directions without facing potential liability.
(The same is true for the torture debate--where intelligence
officials operated pursuant to a DOJ memo that was later
repudiated for political reasons. How are the folks on the
front line of intelligence supposed to react to all of this?)
Diverted vital investigative resources. There are
indications that this program produced too many false leads and
may have led to an unproductive diversion of important FBI
resources that could have been better used conducting more
fruitful investigations of suspected terrorist activity inside
the US. For example, press reports indicate that only about 10
intercepts each year--out of the thousands of communications
intercepted through this program--proved suspicious enough to
justify intercepting all the domestic communications of the
US--end of the original communication. Presumably, the rest of
the intercepted communications with Americans ultimately proved
to be unrelated to terrorism and involved innocent Americans or
others inside the US.
Complicates future efforts to gain the support of
Congress. The expansive reading of the AUMF may make it harder
to get such authorizations in the future, potentially weakening
public support for future conflicts. Indeed, the mistrust
created on both sides of the aisle in Congress may impact
executive branch efforts in a number of ways beyond just
authorizations for the use of force.
Ensuring appropriate safeguards in FISA is essential to avoiding
similar national security problems in the future and, ultimately, to
defeating the terrorists. The bottom line is that the best way to be
strong on terrorism is not to defer to the avaricious accumulation of
power by the President but to better understand the true nature of the
long term struggle against violent extremists. We can only defeat this
threat by building upon the strengths of our system. That city on the
hill can outshine the twisted but compelling draw of violent jihad.
That is how we will ultimately prevail.
Mr. Conyers. Thank you, Attorney Spaulding.
We next turn to Dr. Robert Turner, who has served in both
the Department of Defense and the Department of State. He is a
professor at the University of Virginia School of Law, and
serves as the Associate Director of an organization he helped
create there, the Center for National Security Law. And we
welcome him at this time.
Welcome to the Committee, sir.
TESTIMONY OF PROFESSOR ROBERT F. TURNER,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
Mr. Turner. Thank you, Mr. Chairman. It is a pleasure to be
here.
Mr. Smith and Members of the Committee.
I have prepared a rather lengthy statement I would submit
for the record at this time.
I worked in the Senate when FISA was enacted, and I later
oversaw the compliance with FISA when I served as counsel to
the President's Intelligence Oversight Board in White House in
the early 1980's.
But the central focus of my testimony and my expertise in
this area is on the separation of national security
constitutional powers. I have sent more than 30 years working
in this area, and I have given you a fairly long statement
focusing on that.
Speaking personally, and certainly not on behalf of the
organization, I am a strong supporter both of the legislation
you just passed, the Protect America Act, and also of the
revisions submitted by the Administration, but I don't pretend
to be an expert on all the details of those.
When FISA was first enacted, I believed it was
unconstitutional. I continue to feel that way.
In my testimony, I have given you quotations from people
like James Madison, Thomas Jefferson, George Washington,
Alexander Hamilton, John Jay, John Marshall--some of the most
important people who set up this country--all of them arguing
that when the Constitution gave the President ``the executive
power'' in article II, section 1, that carried with it the
general control of foreign affairs, save for the specific
exceptions mentioned in the Constitution which were to be
construed narrowly.
In the area of foreign intelligence, it is absolutely clear
that this is presidential business. It has always been viewed
as presidential business. It was not even questioned until well
into my adult lifetime in the 1970's.
John Jay, in Federalist Number 64, specifically talked
about this. And he explained that foreign sources of
intelligence would not trust, would not cooperate, if they knew
the information would be shared with Congress. And therefore
the Constitution had left the President ``able to manage the
business of intelligence as prudence might suggest.''
Every President going back to George Washington has
conducted intelligence without sharing it with Congress,
without seeking permission from Congress. Every President from
FDR to Jimmy Carter engaged in warrantless wiretapping and said
that was legal.
The Carter Justice Department said there was a national
security, a foreign intelligence national security, exception
to the warrant requirement of the fourth amendment.
And when Griffin Bell testified on FISA he said, obviously
FISA cannot take away the President's independent powers. But
he went on to say however, President Carter is willing to agree
to comply with FISA so there is no problem. That, obviously,
did not bind any future Presidents and could not take away
their constitutional power.
When Congress in 1790 first appropriated funds for foreign
intelligence, it was extremely deferential. It said the
President should account specifically for those sums which, in
his judgment, could be made public and for the amount of other
expenditures so Congress could replenish the kitty.
In 1818, there was a debate in this chamber in which Henry
Clay and other Members said, of course it would be improper for
us to inquire into how money is spent for foreign intelligence
purposes.
And when Congress in 1968 passed title III, the first
wiretap statute, it said specifically that nothing in this
title shall limit the constitutional power of the President to
obtain foreign intelligence information. Thus, Congress, by
statute, recognized this independent power.
When the Supreme Court in 1967, for the first time,
declared that wiretaps were, in fact, a seizure under the
fourth amendment, it included a footnote that exempted national
security wiretaps.
In the Keith case in 1972, when the Supreme Court held
warrants would be required for domestic wiretaps, twice Justice
Powell, speaking for the unanimous court, said this does not
affect foreign powers, or wiretaps of foreign powers or their
agents, in this country.
This was, in fact, consistent with a blue ribbon panel of
the American Bar Association in 1971 which concluded there
should be a distinction. There should not be a requirement for
warrants for foreign intelligence wiretaps, but when the target
is purely a domestic subversive group or something like that,
you must have a warrant.
Since Keith, every single Federal court of appeals to
decide the issue agreed the President has independent
constitutional power to decide this.
FISA set up a special court of review consistent of Federal
court of appeals judges. In 2002, they unanimously noted that
every Federal court to decide the issue had said the President
has this power, many of them saying specifically there is a
foreign intelligence national security exception to the fourth
amendment.
And the court of review went on to say, ``FISA could not
encroach on the President's constitutional power.''
Now, a second point. FISA contributed to the success of 9/
11. You all have heard about Colleen Rowley, the Time Magazine
person of the year, in 2002 who complained the FBI lawyers
would not even submit her FISA warrant so she could look at
Moussaoui's laptop.
The reason was that FISA forgot to include lone wolf
terrorists. I discuss this in my testimony. Congress finally
corrected this a few years ago. But it was FISA that kept the
FBI from perhaps discovering that plot.
In addition, General Michael Hayden, who was the director
of NSA for many years, including through 2001, has testified it
is his professional view that had the terrorist surveillance
program that was blocked by FISA been in effect in 2001, NSA
would have identified at least some of the al-Qaida terrorists
as such prior to the attacks.
My fundamental conclusion, Mr. Chairman, is a simple one.
When a mere statute like FISA does battle with our majestic
Constitution, the Constitution always wins, and properly wins.
As John Marshall told us in Marbury v. Madison, an act of
the legislature repugnant to the Constitution is void.
My bottom line conclusion is it is not the President who,
in trying to protect the country, has been gathering foreign
intelligence who has been the lawbreaker. Rather, it is
Congress.
Thank you, Mr. Chairman. That concludes my remarks.
[The statement of Mr. Turner follows:]
Prepared Statement of Robert F. Turner
Mr. Conyers. Thank you, Dr. Turner.
We turn now to Morton Halperin, attorney, who served in
Departments of Defense, State and the National Security Council
during President Clinton, President Nixon and President
Johnson, and was instrumental in the formulation of FISA in
1978.
He is currently Director of U.S. Advocacy for The Open
Society Institute and a fellow at the Center for American
Progress.
Welcome again to the Committee.
TESTIMONY OF MORTON H. HALPERIN, DIRECTOR OF
U.S. ADVOCACY, OPEN SOCIETY INSTITUTE
Mr. Halperin. Thank you, Mr. Chairman. It is a great
pleasure to be back.
I need to report that I have not acquired a law degree,
although I still hope that is some time in my future.
It is a pleasure to be back here again before this
Committee. I last testified on this subject before the
Committee in a hearing in 1978 in which we debated exactly the
same issues.
And I think I want to touch on this question of whether
FISA is constitutional or not and whether it is appropriate or
not.
The fact is every court that has considered FISA has held
it to be constitutional. It continues to be the case that no
court has found a warrantless tap for national security
purposes to be unconstitutional because that question became
moot with the enactment of FISA.
I think the real issue for me is to look at the
Constitution and to note that it is based on a notion of
separation of power. The Congress has a role. The President has
a role. And the court has a role.
And the genius of FISA when it was enacted and reported out
by this and other Committees with very broad, bipartisan
support is that it took account of the obligations and
responsibilities of the three branches and of the need both to
protect the rights of American citizens and deal with the
requirements of national security.
At the end of the day, the intelligence community leaders
and many leaders of the civil liberties community said this
bill has our support. It is an appropriate balance.
And that support from all those elements was, in my view,
critical to the extraordinary success of FISA, which has been
testified to by a succession of CIA directors, NSA directors,
directors of national intelligence and other senior officials
from every Administration since FISA was enacted.
FISA has permitted the intelligence community to do what it
needed to do, but to do it in a way that had the support of the
American people, that had the support of the courts. And the
FISA court fulfilled its role by not always approving warrants,
but by providing the support that was needed to enable this
program to go forward.
We need to get back to that bipartisan support. We need to
get back to a situation where most Americans support the
Foreign Intelligence Surveillance Act because they understand
what it does and they recognize that there is a court and a
Congress monitoring the actions of the executive branch.
Where the system has fallen down now, in my view, Mr.
Chairman, is in precisely ignoring all of these lessons which
came out of the enactment of FISA.
The Administration has come forward and said, as we heard
again this morning, we need to modernize FISA because FISA used
to permit the acquisition of the overseas calls of foreign
terrorists and now it requires a warrant because we want to
intercept them within the United States.
I know no one who believes that the intelligence community
should not be able to intercept these calls. All of us believe
that the calls of a foreign terrorist can be intercepted,
should be intercepted, and that the Government has the right to
do so.
If FISA needs to be amended to make that clear, that
amendment would have overwhelming support within the Congress.
Indeed, a number of proposals were made by senior Members of
the Intelligence Committees and the Judiciary Committees of
both houses which would have granted to the intelligence
community the authority to conduct surveillance for that
purpose.
Those amendments were rejected. And in its place, we got
the language which Congress, under substantial duress, enacted
into law.
The fact is there is no public explanation, and I do not
believe there is any private explanation, from the
Administration about what the difference is between the
language that people were prepared to enact and the language
that the Administration, in the end, insisted on.
And I think that is where this process needs to begin. We
need to know as much as we can publicly, and certainly the
Congress privately, what the difference is between the language
proposed by many others, which appeared to give the Government
the authority it said it needed, and the language in the
statute.
Is the difference simply that one doesn't want to bother
going to a court because it is a burden? Or is the difference
one that actually affects what you can intercept and what you
can do with that interception?
If it is the latter, we need to understand what the
difference is and why that difference is important. And I
believe that everyone will then want to work to make sure that
the intelligence community has the authority under FISA to do
the surveillance that it needs to do.
But it needs to be done based on the principles which this
Committee and others insisted upon when it enacted FISA and
which gave us the support that the intelligence community needs
to get the cooperation that it needs from the private community
going forward.
And that means it must require that it be the sole means
for conducting the surveillance. Whatever one believes about
the inherent constitutional power, the President and the
Congress can agree that this is the sole means. And I think
that is essential for gaining public support and private
support.
We also need to assure that the FISA court at the
initiation of any surveillance authorizes the surveillance and
finds that it is consistent with the statutory requirements.
We need to have appropriate procedures for the phone
companies and the Internet service providers to be notified
that they must cooperate.
FISA was based on a simple and important rule. If the
surveillance fit within FISA--you either had a warrant or a
very specific certification from the Attorney General--then the
law was you had to cooperate, whether you were a landlord,
whether you were a phone company.
You had an obligation to cooperate and you were fully
protected from criminal or civil liability if you failed to
cooperate.
On the other hand, if you cooperated without the warrant or
the certification required by the statute, then you were
subject to civil and criminal penalties from the State as well
as from the Federal Government.
That is the way that the Congress can enforce exclusive
means. And that must be restored in this bill. By making it
clear to the telephone companies again that they only can
cooperate when they have either a warrant or a certificate
relating to very narrow circumstances where a warrant is not
required.
The problem with this bill is it gives a totally open-ended
authority to the Attorney General to tell the telephone
companies to cooperate. Nobody in the world can understand
under what circumstances the Attorney General is permitted to
make that certification.
And certainly, the phone companies will have no basis for
knowing whether they are supposed to cooperate or not, whether
he has met those standards. That provision, in my view, needs
to be rectified, along with other changes in the statute.
Mr. Chairman, in short, we have reached, in my view, a
situation that is very dangerous for our national security as
well as for our civil liberties.
We have a bill elected into law without the support of the
senior leadership of one of our two political parties, with
vigorous opposition from the entire civil liberties community,
and with nobody in the American public able to understand what
it is that Congress authorized and what it is that the
executive branch needed to do.
That is a recipe for suspicion, for opposition, for the
intelligence community and the private industry not being sure
what they are supposed to do and what the rules of the game
are.
And that is a recipe, as we discovered before FISA was
enacted, for people to hold back because they fear they will be
subject to civil and criminal penalties and for citizens to be
fearful that their phones are being tapped and their e-mails
are being read.
We need clear and simple rules that everybody understands
and that everybody is committed to obey. Thank you.
[The statement of Mr. Halperin follows:]
Prepared Statement of Morton H. Halperin
Mr. Chairman,
It is a great pleasure for me to appear again before this committee
with regard to the Foreign Intelligence Surveillance Act.
I need to be frank, however, in saying that I am deeply troubled by
the amendments to FISA passed by the Congress before the August recess.
I am troubled because Congress granted to the Executive branch broad
authority, in violation of the Fourth Amendment, to intercept the phone
calls and emails of persons in the United States. Moreover, any person
who is committed to the constitutional principle of checks and balances
should be seriously concerned because:
Congress enacted this legislation without any opportunity for
hearings and debate and without the input of civil libertarians
who are as dedicated to our security as they are to the
protection of civil liberties and constitutional rights.
Congress enacted legislation the meaning of which is simply not
deducible from the words in the text. Clearly, the
Administration insisted on this language and rejected a text
offered by the congressional leadership because it wants to
conduct interceptions not permitted under the alternative
language. However, it has not explained why that surveillance
is necessary nor what interceptions are permitted under the
language as enacted but not under the alternative language.
The legislation enacted by the Congress at the insistence of
the President excludes the FISA court from any meaningful role
in permitting the surveillance to go forward. Whether the
Constitution always requires a warrant for intelligence
surveillance remains an open question, but there is no question
that the role of the FISA court has been critical in providing
assurance to the intelligence community that it would get the
cooperation it needs and to the public that the Constitution
was being protected. Despite strong criticism from both the
left and the right, the FISA court in my view has played the
role that Congress intended it to play by forcing the
administration to think carefully and by reviewing its actions.
The telephone companies and ISPs are being sent a dangerous
message that they should and must cooperate with a request to
facilitate interception of messages simply on the say-so of the
Attorney General.
The legislation does not reaffirm that FISA is the sole means
for intercepting conversations and emails in the United States
for intelligence purposes.
Not included on this list of chief concerns is the accusation that
the passage of the legislation will lead to the interception of phone
calls and emails that the intelligence community should not be reading.
I have no idea if that is the case or not but neither does anyone else
in the public and most of the Congress. That very uncertainty is simply
unacceptable and a threat to both our liberty and our security.
The bipartisan and strong public support of the FISA was ruptured
by the Administration's tactics. This broad support was essential in
creating a system which endured from one administration to another and
which enjoyed strong congressional and public support.
Congress, working with leaders of the intelligence community and
the public needs to restore the bipartisan support for an effective
FISA and it needs to do so quickly.
The enactment of the initial FISA bill following the Watergate and
intelligence scandals provides some important lessons which should
guide the Congress in that process. Since I was deeply and continuously
involved in those careful negotiations, I thought I could be most
useful to the committee in describing some of that history.
The enactment of FISA was triggered in large part, as I believe
these recent amendments were, by concerns expressed by the telephone
company. In those long gone days, there was just one telephone company
(and no internet). AT&T and the FBI had a simple arrangement. An
official at the Bureau would simply call the AT&T security officer and
give him a phone number. Nothing more was needed and the calls were
flowing into the local FBI field office.
As the scandals broke, the FBI learned that some of these numbers
were not the Soviet Ambassador, but White House and NSC officials and
journalists as well as business leaders and civic leaders, including
Martin Luther King, Jr. Some of those who learned that they were
overhead (including me and my family) sued the phone company along with
government officials. AT&T had had enough and warned the Justice
Department that the days of blind cooperation were over.
Attorney General Levi on behalf of the Ford Administration came to
the Congress and asked for legislation. Congress agreed to authorize
interceptions for intelligence purposes under a different standard than
for criminal wiretaps but only after insisting on four essential
principles:
surveillance could occur only after the FISA court
issued an order or the situation fit into a few tightly drawn
and fully specified exceptions to the warrant requirement.
the phone company would be required to cooperate if
given a court order or a certification by the Attorney General
that the situation met one of the limited specified exceptions
and that the requirements spelled out in FISA for such an
exception had been fully satisfied.
No U.S. person or any person in the United States
would be the target of surveillance except if the FISA court
found individualized probable cause about that person.
The draft legislation needed to be subject to full
public hearings as well as classified hearings at which the
meaning of each phase in the legislation was fully explained
and civil liberties groups were given an opportunity to
testify.
We must go back to these core principles. The Congress must insist
that senior officials of the intelligence community testify in public
and in private before the Judiciary as well as the Intelligence
Committees and explain in detail what meaning they attach to each of
the new and arcane phrases in the bill. These officials should also
explain why they seek this language to accomplish the objectives that
they assert are what motivates the request for legislation.
Administration officials must also explain in detail why the earlier
bills drafted by the Congress in response to the described need did not
accomplish these objectives.
Then there must be an opportunity for private citizens and groups
to testify as to their understanding of the draft bill and the
requirements of the Constitution. Then there should be private and
public conversations to seek to arrive at a consensus that would
restore the bipartisan and broad public support for FISA. Then the
committees should conduct open mark ups and the bills should be debated
on the floor of both houses and if necessary in a conference committee.
The final legislation should make clear that it is the sole means
by which the executive branch can intercept communications in the
United States or from Americans anywhere for intelligence purposes. It
should enforce that assertion by directing the phone companies and ISPs
to cooperate when they receive a court order or a certification that
the surveillance is within the narrow exceptions to the warrant
requirement specified in the statute. All private persons should be on
clear notice that if they cooperate with surveillance in any other
circumstances that they will be subject to state as well as federal
civil and criminal penalties.
I have said almost nothing about the substance of what changes need
to be made in FISA. I have not done so in part because I expect other
witnesses will discuss these issues. More important I think it is
premature. There is enough information in the public domain to know
that Congress has given the Administration far more unchecked power
than the Constitution permits or our security requires. At the same
time, there is far from enough public information to know how to
restore the balance that FISA had until last month and from which we
all benefit.
Mr. Chairman, I once again want to express my appreciation to you
and to the committee for inviting me to participate in this hearing and
I would be pleased to respond to your questions.
Mr. Conyers. Thank you very much.
Congressman Barr, Attorney Spaulding, Dr. Turner and Mort
Halperin, I am very grateful to you for beginning our
examination of FISA in this setting.
Mort Halperin, I not only want you to get your law degree,
but I know a number of schools that would welcome you to teach
law at these schools, and we thank you for your long
experience.
We now begin the inquiry of the witnesses. And in my 5
minutes, I just want to ask this one question. Isn't it
important that we reestablish that the sole means of
intercepting any kinds of communications, conversations, or e-
mail from United States citizens for intelligence purposes go
through the FISA court or be specifically accepted from them
under very clear terms by the FISA court?
And let's start with you, Dr. Turner. What do you feel
about that?
Mr. Turner. Well, I don't think it is possible for anyone,
including the Congress and the President together, to prevent
constitutional national security law searches.
The question is, do you always have to have a warrant in
order to listen to a communication with an American? And the
answer to that is clear.
Every court to consider it has basically said there is a
foreign intelligence exception to the fourth amendment just as
there are exceptions in so many other areas.
I came into this building today. They went through my bag.
They made me go through a machine. Airports--these are searches
under the Fourth amendment, but the way it is decided--the
Supreme Court says you balance the infringement on privacy with
the Government interest, and the court in Haig v. Agee said no
governmental interest is more important than the national
security.
Mr. Conyers. Okay. Wait a minute.
Mr. Turner. Sorry. Yes, sir.
Mr. Conyers. Congressman Barr, what is your reaction to the
question?
Mr. Barr. My reaction to the question, Mr. Chairman, is it
is a very appropriate one that both this and prior Congresses
have considered. The Chairman correctly identifies the gravamen
of what we are talking about here, and that is the private
communications of American persons in this country.
Under FISA, the Chairman's question was answered
resoundingly with a yes. And courts have recognized that. It
provides both an institutional and a constitutional framework
that respects the privacy rights of our citizenry yet also
affords very clear and robust mechanisms for the Government to
acquire the foreign intelligence that it claims it needs.
That is the point where we were before this law was signed
a month ago, and that is where we ought to return.
Mr. Conyers. Thank you.
Attorney Spaulding?
Ms. Spaulding. Mr. Chairman, as I said in my opening
statement and my written testimony, I think it is vitally
important that Congress get some affirmation, confirmation,
from the executive branch that the President will, indeed,
abide by the law.
I think this issue of Article II authority and the
President's authority to ignore laws, or not abide by laws that
the President determines unilaterally are unconstitutional, is
one that really needs to be more fully discussed and debated
and wrestled to the ground, frankly.
Mr. Conyers. Mr. Halperin?
Mr. Halperin. There is no case holding that Congress cannot
limit the President's power to conduct electronic surveillance
for foreign purposes.
All of the cases that Mr. Turner refers to are cases
dealing with the question of whether in the absence of
congressional legislation either prohibiting or authorizing
such surveillance the President has the authority to conduct
that surveillance on his own initiative.
That remains an open question. But there is no authority at
all propositioned that Congress cannot limit the President's
power.
There are, indeed, cases in the court now which the
Government is desperately trying to have dismissed because I
think it fears they will lead to an opinion that says that if
the Congress proposes a means to do this, the President must
follow those means.
But at best, it is an open question and, in my view, almost
an irrelevant question, because if the President agrees that he
will follow these rules because that is the way to get the
support of the American people and of the phone companies,
surely the President has the authority under the Constitution
to decide that he will follow these procedures.
And that is the----
Mr. Conyers. Well, we don't have any objection, do we,
witnesses, that Americans, particularly on American soil,
cannot be surveilled unless they go through the requirements of
FISA law?
And there are existing exemptions that would allow them to
be surveilled, but in the overwhelming majority of cases, they
can't be surveilled. Does anybody want to refine their response
to that question which I suggest is ``yes''?
Mr. Turner. Mr. Chairman, there are two sides to this. If
we are targeting a foreign intelligence source--say, you know,
bin Laden in Pakistan--and he is communicating with Joe Six
Pack in Peoria, clearly the President has constitutional power
to intercept that conversation.
As far as targeting an American citizen, I think it is
unsettled, because if there is, in fact, as several courts have
said, a national security or foreign intelligence exception to
the fourth amendment, then if that American citizen were
involved with foreign powers, you might well be allowed to have
a warrantless wiretap.
The courts have not said that, but I think it certainly
follows from some of the decisions we have.
Mr. Conyers. I just want everyone to know that I have been
in discussions with the Ranking Member, that there may be
hearings that will be classified because of the nature of the
discussions that will be happening. And that we are also
considering inviting some of our colleagues who have opinions
and advice to give us in the formulation of this law, maybe
even to the extent of having a hearing solely of our other
colleagues who are not Members of the Committee.
And with that, I recognize Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman.
Professor Turner, I have several questions, and I will try
to keep them brief--if you can give me short answers as well.
I want to touch upon a subject that just has come up, and
that is you clearly feel that the fourth amendment's protection
of privacy is not implicated by a phone call from a foreign
terrorist to someone who lives in the United States.
Do you want to, because of national security reasons,
elaborate on your answer in any way?
Mr. Turner. Well, just briefly, the general principle of
wiretaps is if you have a legal wiretap for, say, somebody
selling illegal guns, and I call him up, even though the
Government has never heard of me, they can record every word I
say and use it against----
Mr. Smith. Right.
Mr. Turner [continuing]. Me in court. In the same way, it
is absolutely clear the President, certainly in time of war,
when you have to engage in intelligence to find out even what
to target, has independent and exclusive power to listen to al-
Qaida in this case, and it is reinforced by the authorization
for the use of military force.
Mr. Smith. Right. Okay. Thank you.
Professor Turner, also, what kinds of information has the
intelligence community not been able to gather over the last 20
years or 30 years because of changes in technology?
Mr. Turner. Well, I have been out of this business for more
than 25 years, or almost 25 years, but from the testimony of
the DNI, we are told roughly 25 percent of the intelligence we
used to get we are not getting now, and a lot of this is
foreign known or suspect terrorists calling other terrorists
outside this country.
Because those communications happen to transit a switch in
northern Virginia or Silicon Valley, FISA is stopping us from
listening to those, and people may die because of that.
Mr. Smith. Okay. What additional changes do you feel should
be made to FISA? And if so, why do you think those changes
should be made?
Mr. Turner. Well, FISA is only going to work if you have
the agreement of the President. Griffin Bell himself said that
is how this will work, because you can't take away the
President's power.
Mort said there is no court case saying Congress can't do
this. That is silly. The appeals court you set up under FISA,
in the 2002 case, In re Sealed Case, said ``FISA could not
encroach on the President's constitutional power.''
What authority do you want? That is a U.S. Court of Appeals
that you set up to judge FISA. It is unanimous when you say you
can't do this. So the way FISA is going to work--it is in the
executive's interest to have FISA. Why? If they get a warrant,
they can be sure they can get that evidence in court if they
try to convict someone.
If they are doing it for foreign intelligence purposes,
that is not a problem. Getting it into court--and they have got
reasonableness tests and so forth.
They want to work with you. They have given you a bill that
draws the distinction not where you intercept it, but is this a
foreign power or are you targeting a U.S. citizen. That is an
awfully good deal. I would take it.
Mr. Smith. Okay. Professor Turner, also, why is the FISA
process so burdensome?
Mr. Turner. Well, they tried to streamline it, but the way
it works--first of all, you have got, say, an NSA analyst. He
says, ``Hey, we need a warrant for this. We need a warrant.''
They put together a package. They run it through the
lawyers at NSA. They have got a lot of lawyers out there. They
send it over to the Office of Intelligence Policy and Review,
in what is now the national security division. They look at it.
And if they like it, then they run it by the Attorney
General, who may be in Peoria today giving a speech. But when
he gets back, he has to come up to the Hill and testify, but
then he gets back on, say, Friday.
He signs it, and it goes over to the White House and gets
signed by the national security advisor. Then it gets in line
to be considered by the court.
These judges are wonderful. They are working all day long
and on weekends. But there still is a several-day delay, and
one of the most important principles in war is speed and
dispatch.
If it takes you 4, 5, 10 days, 2 weeks to get a decision,
the bomb may have already blown.
Mr. Smith. Thank you, Professor Turner.
Let me go to former colleague Bob Barr and make a comment.
And, Bob, you are welcome to respond if you want to. Thank you
for your very articulate testimony--no surprise there.
At the outset of your testimony, though, you made the
statement that Director McConnell had said that the mere debate
of FISA was going to cost American lives. I think you came to
that conclusion, which I think is a mischaracterization,
because of the media.
And I notice in the A.P. report of his comments that was
something that they concluded. And I will say that was an
editorial comment on the part of the A.P. that I think was not
appropriate.
But let me read you Director McConnell's exact words, and I
think we will all agree that it wasn't the mere debate on FISA
that was going to cost lives, it was the release of classified
information that was going to cost lives.
``Part of this is a classified world. The fact that we are
doing it this way means that some Americans are going to die.''
He was referring to the classified information, not the debate
itself.
And it is understandable you said what you did, because
that was the way the A.P. characterized it, but I don't think
that that would be an accurate characterization. Just a
comment.
Thank you, Mr. Chairman. And my time has expired.
Mr. Conyers. Chairman Jerry Nadler?
Mr. Nadler. Thank you, Mr. Chairman.
Congressman Barr, I would like to ask a couple of questions
about Ms. Spaulding's testimony. She writes that section 105(b)
provides authority to the A.G. and DNI to collect intelligence
information inside the U.S. so long as the information is about
a person who happens to be outside the U.S. at the time,
including a U.S. citizen.
It would appear, therefore, to authorize intercepting U.S.
mail between two people inside the U.S. so long as the
Government--without a warrant--so long as the Government
reasonably believes the letter discussed, at least in part,
someone outside the U.S.
Do you agree with that?
Mr. Barr. I think that is an accurate reading of the
section 105(b).
Mr. Nadler. Thank you. She also says it would appear the
A.G. could authorize the physical search of your home to find a
letter from your son overseas or the family computer on which
you stored his e-mails.
Do you think that that is a reasonable reading of this
statute?
Mr. Barr. I do.
Mr. Nadler. Okay. Thank you. Thank you very much.
Ms. Spaulding, you talk about the provisions immunizing the
telecommunications companies from liability.
We are being asked very insistently by the Administration
to enact legislation now to immunize the telecommunications
companies retroactively from any liability for the last 5 years
since the President started ignoring the FISA act in 2001.
Why should we or shouldn't we do that, in your opinion?
Ms. Spaulding. I think it would be a huge mistake,
Congressman. As Mort Halperin has already testified, the
current law already protects telecommunications carriers and
others who provide assistance to the Government.
In this case, all they needed was a letter from the
Attorney General certifying that this request for assistance
was legal.
If they are now seeking immunity from liability, I can only
assume they didn't even get that letter. And I think for
Congress to say that is okay sends a very strong signal
undermining our respect for the rule of law.
Mr. Nadler. Well, let me ask you this. The President's and
the Attorney General's tapping people's phones without a
warrant from the FISA court would appear to be a prima facie
violation of the FISA act, which is a criminal statute.
If we are not prosecuting them, why should we let the
telecom companies get off scot-free?
Ms. Spaulding. Well, I think that is certainly a fair
point. But I think the Attorney General, given the legal
arguments from the Department of Justice, asserting that this
warrantless surveillance in violation of FISA was nonetheless
legal, certainly could have provided this letter to the
telecommunications carriers.
And why, given that, if that is all they needed, they need
immunity at this point is beyond me.
And I also think that they are an important, given the lack
of transparency in this area, they are an important safeguard
against Government abuse.
Mr. Nadler. Well, I must say that since the Government is
interposing a state secrets defense on any lawsuit against the
Government for illegal wiretapping, suing the
telecommunications companies might be the only way of getting
into court.
And I certainly agree with you. I don't like the abuse of
the state secrets doctrine, but this may be somewhat of a way
around that.
And absent that, if we were to give them that protection
retroactively, there might be no way for anybody to get into
court, and the executive would be completely scot free to
ignore the law without any judicial accountability.
Mr. Halperin?
Mr. Halperin. Yes, the problem is the Government is
asserting the state secrets privilege even when the telephone
companies are sued. So I think that we need to find a way
around that.
And I think Congress could do that by simply asserting that
the justifications provided by the Government to the phone
companies need to be made public. Those are documents that, I
gather, Committees have sued for.
I think we are all entitled to see those. And I think one
way to deal with the problem is to give the phone companies
limited immunity based on a demonstration that they acted on a
communication from the Attorney General that they reasonably
relied on to believe that the surveillance was lawful.
We don't have any idea what the Government told the
telephone companies. And to give them immunity without first
finding out----
Mr. Nadler. I agree with you. Thank you.
Mr. Turner--or Professor Turner, I should say--you have
written as to the President's expansive foreign relations
powers, inherent powers.
I would like to ask you some questions with regard to the
scope of those powers. If President Bush believed an American
citizen in the United States were a spy for al-Qaida, could he
authorize the burglary of that citizen's house to plant an
eavesdropping bug without a wire?
Mr. Turner. That is an interesting question. If the courts
that have decided that there is a foreign intelligence
exception to the fourth amendment, as there is in so many other
areas--I don't know the answer to that, you know, but it at
least would be arguable.
Mr. Nadler. And my last question. Could he be permitted in
that circumstance to authorize the breaking into that
individual's psychiatrist's office without a warrant to find
evidence against him?
Mr. Turner. I think it is a moot point. As I understand the
Administration, they are saying they will get warrants for----
Mr. Nadler. No, no, but could they, under your
interpretation of the law?
Mr. Turner. It is an interesting question. I would really
want to think about it. If you want an answer for the record, I
will try to think about it. But that is an area of the law I
don't teach in the general----
Mr. Nadler. Okay. Thank you.
Mr. Conyers. The gentleman's time has expired.
Howard Coble, the gentleman from North Carolina and Ranking
Member on the Subcommittee of Courts?
Mr. Coble. Thank you, Mr. Chairman.
Good to have you all with us.
Professor Turner, we are working you overtime today. Let me
put a two-part question to you.
What implication does the growth of mobile telephones have
on FISA surveillance? And does this not require some flexible
standard when our Government reasonably believes that the
person is located outside the United States?
Mr. Turner. It is a very good question. I may not be the
right person to answer it, but my--again, when I last worked in
this area, it was the early 1980's when nobody I knew could
afford a portable telephone.
When FISA was written, telephones were carried by lines.
Today most phone conversations, land line or mobile, I am told,
are actually sent through other means.
So there are a lot of sort of technical amendments here.
But one of the problems we have run into--the Patriot Act, for
example, included a provision--the old way, you go to a judge.
You would say, ``I have got a suspected--here is the
probable cause. Here is his phone number.'' You would get a
warrant to monitor that phone number.
Well, we have got drug dealers, terrorists and others who
will buy a dozen cheap cell phones, use them for an hour, throw
one away. Then the surveillance guy has to run back to the
judge, ``Hey, here is a new number.''
When he gets back, he is three phones later. It doesn't
work. The modern communications, from e-mail, cell phones and
so forth, make the job of terrorists much easier. We have to
adapt the law to make it possible for the people trying to stop
them to keep up with them.
And again, the technology I can't tell you much about,
especially the classified side, because I don't know about it,
but my understanding is we are missing a lot of stuff.
Again, the DNI has said 25 percent we were getting a year
ago because FISA and other laws have not kept up with the 21st
century.
Mr. Coble. Thank you, Professor.
Ms. Spaulding, what do you say about that, about flexible
standard?
Ms. Spaulding. Chairman Coble, I think there is certainly
room for looking again at FISA to see whether it, in fact,
ought to be modernized given changes in technology. And in
fact, it has been a number of times, as you know, over the
years.
And the example that Professor Turner gave of, you know,
changing the cell phones, in fact, has been addressed through
provisions that address roving wiretaps.
I think it is important to make sure, as I said at the
outset, that these intelligence professionals have the tools
that they need. I think it is equally important to ensure we
have appropriate safeguards as we do that.
Mr. Coble. Ms. Spaulding, thank you for elevating me to
chairmanship. I am not aware of that, but thank you
nonetheless.
Mr. Turner, let me come back to you. What do you believe
was the Congress' intent with respect to FISA coverage of
domestic communication involving foreign intelligence, domestic
caller to domestic caller, versus international communications
involving foreign intelligence, foreign caller to foreign
caller?
Mr. Turner. FISA clearly wanted to protect any U.S. person
any, you know, domestic calls, basically, and it intentionally
excluded--indeed, in the HPSCI report, they said, ``We
considered trying to cover foreign calls, and we decided it is
just too complex, and it can't be done in this bill.''
So it is very clear that FISA was not intended to place any
limits on intercepting, you know, the calls of foreigners
outside of this country or calls even of Americans outside this
country.
Mr. Coble. Let me talk to the Georgian for a minute and
welcome him back to the Hill.
Mr. Barr, how burdensome, in your opinion, is the FISA
process? And what modifications, if any, can be made to the
process to expedite the process of applications?
Mr. Barr. In my experience, and I note in the same
interview that the Ranking Member and I have a little bit of a
disagreement about involving Director McConnell, he talks about
the article here, that it takes 200 hours to assemble a FISA
warrant on a single telephone number.
That certainly ought to be something that this Congress
looks into to determine whether or not that figure is an
accurate figure. If, in fact, it is an accurate figure and that
much time is consumed with virtually every FISA application,
then it might be a question of resources that the Congress has
to look into.
But the mechanism itself, I don't believe, is particularly
burdensome. And with the growth of technology, it becomes
actually much easier now than previously, in previous years and
decades, to determine where a call is being made.
If you have two people using cell phones overseas, the
Government, through the technology available even to private
industry, knows exactly where those two people are calling.
So if you have two people using cell phones overseas, you
don't need this massive rewrite of FISA that basically subjects
every call that somebody in this country makes to somebody,
anybody, whoever, overseas potentially subject to Government
surveillance.
Mr. Coble. Thank you, sir.
Mr. Turner?
Mr. Turner. Just one quick point. In addition to the 200
hours--I don't know if that figure--I assume that figure is
true. But also, a lot of those hours are spent by linguists who
have the special ability--they are one of the most valuable
commodities we have and one of our greatest weaknesses.
And taking people who understand the culture and the
language of our enemy and making them review FISA requests, so
they cannot be reviewing intercepts that might be talking about
tomorrow's attack, is a very expensive price.
Mr. Coble. My red light illuminates, and I yield back, Mr.
Chairman.
Mr. Conyers. Chairman Bobby Scott?
Mr. Scott. Thank you. Thank you, Mr. Chairman.
I thank all of our witnesses for their testimony.
Ms. Spaulding, you mentioned the new act had the word
``concerning'' in 105(b)--105(a) says encompass surveillance
directed at a person reasonably believed to be located outside
the United States.
But section (b) says acquisition of foreign intelligence
information concerning persons reasonably believed to be
outside the United States.
Could you restate what you think that difference in wording
might mean?
Ms. Spaulding. Well, it seems to me that section 105(a), in
redefining electronic surveillance, when it uses the words
``directed at'' it means targeting. It means that that is the
focus of your surveillance.
That is where you are directing your interest, as opposed
to at the other parties with whom that target may be
communicating.
Concerning persons--if they had meant the exact same thing,
if they had meant targeting persons, I think they would have
used the words ``directed at.'' Concerning persons means
something different, then.
And I think it could mean the communication merely mentions
or is about, even just in part, someone who happens to be
outside the United States, and that is a far different matter.
Mr. Scott. So if the communication is concerning someone
outside, could that include communications domestic to
domestic?
Ms. Spaulding. Absolutely.
Mr. Scott. And do you think that--because we don't hear
that mentioned very often, and these two words, as I have
noticed, as you have, are different words and must mean
different things.
Ms. Spaulding. I would note that when we talk about
communications between two individuals inside the United
States, potentially coming within the scope of 105(b), there is
the requirement that it not be electronic surveillance, which
is why in my testimony I refer to letters or potentially stored
e-mails, things that do not fall within the existing definition
of electronic surveillance.
Mr. Scott. And you also mentioned that foreign
intelligence--we keep hearing an al-Qaida member calling
inside, but foreign intelligence includes more than terrorism,
does it not?
Ms. Spaulding. Absolutely. It is a very broad definition,
one that has been broadened over the years.
Mr. Scott. And what kinds of things might be foreign
intelligence?
Ms. Spaulding. Really almost anything of interest to the
foreign affairs and national defense of the United States.
In fact, most recently, it was broadened to include
information that is at all relevant to potential sabotage or
attack in the United States. So that might mean, for example,
if you----
Mr. Scott. Well, that is terrorism. What about a trade
deal?
Ms. Spaulding. Well, it obviously includes trade deals. It
includes all of the things that you think about the
intelligence community monitoring and being interested in, and
now they have added to their agenda global climate change.
They have long been interested in trade issues. There is a
wide range of information that----
Mr. Scott. So if you are negotiating a global warming
agreement with another country, that would constitute foreign
intelligence.
Ms. Spaulding. It might constitute foreign intelligence.
Mr. Scott. There is another little change here where it
says significant purpose. That is not the primary purpose. If
the primary purpose is not even foreign intelligence, what
could the primary purpose be?
Ms. Spaulding. The primary purpose could be anything that
is presumably constitutional. You know, I think it would be
limited, clearly, by the constitutional framework, but it
could----
Mr. Scott. Partisan politics?
Ms. Spaulding. It could be, because certainly, we know that
it could be criminal prosecution.
Mr. Scott. Without probable cause of a crime.
Ms. Spaulding. And it could be suspicion of, you know,
subversion, which we know has been interpreted in ways that
have proven very harmful in the past.
Mr. Scott. Now, Mr. Barr, is there anything under FISA that
you can't do that you could do if you didn't have to worry
about FISA? Or does FISA just require you to let the court know
what you are doing?
Mr. Barr. No, FISA, under the very words of the statute and
the way it has been interpreted over the years, is intended to
and encompasses electronic surveillance for foreign
intelligence purposes.
So if, in fact, that is, you know, the universe of
information or persons involved in that that you are trying to
gather evidence or information from, on or about, then FISA
covers that.
Now, does that mean there----
Mr. Scott. But let me just----
Mr. Barr [continuing]. Isn't overlap with other areas?
Mr. Scott. We keep talking about balancing security and
liberties. In fact, there is no balance at all because you can
do any kind of wiretap you want under FISA. You just have to
notify the court. Or without FISA, you just go ahead and do it.
But if it is legal, you can go ahead. There is no
restriction on security created by requiring you to go to the
FISA court, is there?
Mr. Barr. And that is correct, and that problem is made
manifestly worse by the law that was signed 1 month ago.
Mr. Scott. And that is just on the--essentially the
Attorney General and the director of intelligence can just
authorize it.
Mr. Barr. Without any review by the courts at all.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Conyers. Thank you.
The gentleman from Virginia, Bob Goodlatte?
Mr. Goodlatte. Mr. Chairman, thank you very much, and thank
you for holding this hearing on this ongoing discussion.
The response by some to the Government's concerns has
typically been we will give them more resources. That seems to
me to miss a couple of basic points.
One, even if the department, the intelligence community,
the FISA court had additional resources, would it make sense to
expend them on taking surveillance of foreign terrorists
operating overseas to the FISA court?
And second, at some point there is what I call a pyramid
problem. Assuming that we could find more linguists to
translate, more agents, more lawyers, all applications still
have to go to the top of the department and would have to be
certified by a Senate-confirmed official in the intelligence
community, which is a good thing. There should be very high-
level accountability for the decision.
If this high-level sign-off based upon an individualized
showing of probable cause is needed, how will more resources
provide the intelligence community with the speed and agility
that is needed?
Mr. Turner, do you have any thoughts on that?
Mr. Turner. Amen. I think you said it very well. I agree
completely.
Mr. Goodlatte. Mr. Halperin, do you have a----
Mr. Halperin. Yes, I do have some views on that. First of
all, in terms of speed and agility, the solution in FISA is to
permit emergency surveillances and still you get a warrant.
And I think the Administration has made a case that those
emergency procedures are not flexible enough. And I think
Congress ought to be willing to consider precise proposals to
extend the emergency procedures.
For example, they could allow an NSA agency official to
begin a surveillance based on guidelines established by the
Attorney General and give him several days before he has to
take it to the Justice Department.
In turn, the Justice Department could have several days
before it had to take the matter to court if it determined that
a court order was needed. So the----
Mr. Goodlatte. But aren't we talking about enormous volumes
of material that need to be worked through?
Mr. Halperin. Well, we don't have any idea, because we
haven't been told what it is they want to hear.
If it is a question simply of saying, ``We want to be able
to conduct surveillance of phone conversations between two
people overseas, but we want to intercept them in the United
States,'' then I think everybody would support an amendment
that said you do not need a court order to conduct a
surveillance of two people outside the United States.
Mr. Goodlatte. That leads to my next question, so I will go
right to that.
Some have suggested this so-called foreign-to-foreign
carve-out, but I wonder how workable that really is. After all,
how is the Government going to know in advance who an overseas
target is going to contact when they make----
Mr. Halperin. But that, of course, proves our point, not
yours, which is to say the Government can't know that it is
only intercepting the conversations of two people overseas. It
may well be intercepting the conversations of many Americans.
And that is precisely why it should require a warrant,
because it can't be sure of what it will encounter.
Mr. Goodlatte. We are talking about thousands of these
every single day. How can you have that problem that we just
described to you work to adequately understand the intelligence
information that is being gathered on a regular basis?
Now, as soon as it is determined that there is a U.S.
citizen involved in the conversation, I absolutely agree with
you.
Mr. Halperin. But that is what Congress--that was a
provision in the alternative bill that the Administration
insisted be taken out.
Exactly what needs to be added to the bill is language
which says when you discover that this channel that you are
listening to, which you thought was foreign to foreign, in fact
picked up a significant number of conversations of U.S.
citizens, then you have got to go back to the FISA court and
get an appropriate warrant with appropriate minimization
procedures.
That is exactly what this whole fight is about. If the
Administration conceded that, we could get an agreement. It is
resisting exactly that.
Mr. Goodlatte. Well, let me ask Mr. Turner to respond to
your comment.
Mr. Turner. I don't know the modern technology, but my
guess is it is going to be difficult to capture bin Laden's
conversations with his top aides from Pakistan to Saudi Arabia,
wherever, without occasionally intercepting some U.S. person
communications.
I think the focus needs to be on minimization. That is to
say, let them get what they need to stop the next 9/11, but
have very firm processes so as soon as they determine that any
U.S. person in the communication is not, in fact, working with
the terrorists and talking about, ``Yes, where do I go to pick
up the explosive to knock off the capital?''
Then you do what they have always done, which is first to
isolate the material so nobody can have it, make a record of
it, and destroy it to protect the rights of Americans.
The idea that the risk they are going to pick up one of my
e-mails or one of my phone calls means we should stop listening
to bin Laden and let him kill anybody he wants to me is a very
bad balance of those very important interests.
Mr. Goodlatte. Thank you.
Let me ask Mr. Barr or Ms. Spaulding, anybody, with the
advent of large fiber optic cables and other new technologies,
should FISA cover situations where a call is routed to a United
States facility, but involves two persons located outside the
United States? Why or why not?
Mr. Barr. No, they should be exempt. And here again, if
that is, in fact, the problem, as I believe it is, as
articulated by the Administration, I believe there are
certainly much more simple and focused ways to address that
than the legislation that was signed a month ago.
Mr. Goodlatte. Ms. Spaulding?
Ms. Spaulding. Well, I think we are all in agreement on
that point. You know, Professor Turner and you were discussing
a much more challenging point, which is when you reasonably
believe that you have got foreign to foreign, and your target
is a foreign target, but you inadvertently pick up U.S. person
communication.
I think where you don't know for sure what the other end of
the call is, there ought to be an affirmative obligation, not
just if you happen to discover, but affirmative obligation on
the Government to have procedures in place to determine, even
if after the fact, whether, in fact, a significant number of
those communications are going into the United States and
involve U.S. persons or people inside the United States.
And at that point, I think there does need to be some more
rigorous process.
I agree with Professor Turner that I think a big part of
the solution here lies in very strict, stringent minimization
procedures of the kind that the executive branch now uses when
the Attorney General unilaterally approves of a wiretap.
Mr. Goodlatte. Thank you.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you.
Chairwoman Zoe Lofgren?
Ms. Lofgren. Thank you, Mr. Chairman.
Before I ask my questions, I would like to yield--he said 5
seconds, but we won't be strict on that--to Mr. Scott for a
point he wanted to make.
Mr. Scott. Thank you. Thank you.
And I appreciate you for yielding, because some people try
to suggest that the requirement to get a FISA warrant means you
can't listen to the conversation. You can listen to the
conversation. You just have to get a FISA warrant.
So when you say these--listening to al-Qaida, if you have
got a FISA warrant, you can't listen--of course you can listen.
Thank you.
Ms. Lofgren. Reclaiming my time, I would just like to ask
Mr. Barr--and it is good to have you back in this Committee
room. I read through your testimony, and I see this quite
similarly to the way you do.
And I remember the years we served here on the Committee,
we didn't always see every issue the same way, but often on
constitutional issues we did. And I find that that is once
again the case.
You mentioned that the--and I agree with you; I think we
made this point quite clearly--that changes that would allow
for the capture of communications from someone in a foreign
country to someone in another foreign country that was routed
technologically through the U.S.--there is no problem with it.
I think there is like almost unanimous agreement that that
should not be precluded, and that you wouldn't need a FISA
warrant. You shouldn't need a FISA warrant because the people
that you are tapping are abroad.
However, supposedly there was a court decision that
required a change in the law. It is a mysterious court
decision. How much do we know--do you know what is in that
court decision? I haven't seen the decision, as we have not
been permitted to see it.
Mr. Barr. It is very interesting, because in the very
interview that the Ranking Member and I were discussing with
DNI Director Mike McConnell, he apparently knows, as he should,
a great deal about it and actually discussed it, even though it
is my understanding that the order or the opinion remains
classified.
So it raises in my mind an interesting question about
discussing classified information. But no, none of us do. I
certainly haven't seen it. And I am not absolutely certain,
therefore, and I don't think we ought to presume, that it is
necessarily a good decision.
I would want to see it. I would think the Committee would
want to see it.
Ms. Lofgren. Well, you suggest that we should have more
vigorous oversight in this activity, and I very much agree. And
one of the things that I think has been a tremendous
improvement in the 110th Congress is that the Judiciary
Committee is now involved in this. It is not just the
Intelligence Committee.
And we have our own backgrounds and set of skills to bring
to this debate to enhance what the Intelligence Committee is
doing.
And I am pleased, Mr. Chairman, that we are going to have
some classified hearings, and I am hopeful that one element of
that might be a review of the actual decision that supposedly
set this whole circumstances on its merry way.
And if the DNI could talk about it on T.V., I would assume
that Members of Congress who have signed an oath never to
reveal classified information would be able to review it in a
classified setting.
Now, for Ms. Spaulding, you know, one of the things you
mention in your testimony has to do with the technology, and it
was a point that I made on the floor with my colleagues, that
for telecommunications, you know where calls are being
initiated. At least you know enough to get the bill for them.
And so presumably, you wouldn't have the kind of rampant
inadvertence that is referred to in terms of how would you ever
know if a call was being initiated here or there.
You know, one of the concerns that I had is that we didn't
have any technology experts with us to inform us. We had a lot
of constitutional lawyers in the Congress, not that many
technological wiz people.
Do you know whether any technology experts have really
reviewed the statute? I have been reaching out to some in
Silicon Valley. Have you been able to discover expertise that
we could tap into on that aspect of this?
Ms. Spaulding. First, I want to applaud you for reaching
out to the technology experts outside the Government. As I said
in my testimony, I think that is vitally important.
And I do think that technology allows us to narrow
significantly that group of communications for which we don't
know.
I think one of the greatest challenges, I would say, in
that regard, is less phone calls than it is potentially either
e-mail or--often times, what terrorists will do is draft an e-
mail but not send it, and save it as a draft.
And then the intended recipient simply logs on as that user
and goes to the saved draft file, for example. And you can't
know the nationality, potentially, of the person who--so I
think there are examples where it is extremely difficult, if
not impossible, to know where the recipient of a communication
resides.
But I think it is a very narrow band of communications, and
technology experts can help us.
Kim Taipale is somebody--I am not sure I am pronouncing his
last name correctly--is someone who has looked very carefully
at both the technology and the law, and I would certainly
recommend that you talk with him.
Ms. Lofgren. Thank you, Mr. Chairman. My time has expired.
Mr. Conyers. Our only California attorney general, Dan
Lungren?
Mr. Lungren. Thank you very much, Mr. Chairman, our only
Chairman of the Judiciary Committee at the present time. And I
will treat you kindly, too, when you are the Chairman Emeritus.
First of all, I just find it passing strange that we would
have someone on the majority side suggest that this bill is
somehow a covert operation for us to gain information on global
warming.
The only reason global warming is within the ambit of the
intelligence community is that the majority party decided, in
the reauthorization of the intelligence act, to put global
warming within the ambit of the Intelligence Committee,
requiring them to do not only short-term, but long-term 50-year
studies on global warming, which I thought was nonsense. It
ought not to be part of the Intelligence Committee.
But to use that now as a criticism of this bill is
extraordinarily inventive.
Let's just, please, go back and understand why we are where
we are. The DNI, Admiral McConnell, who was the NSA director
under Bill Clinton, someone who I am unaware has any public
political motivation, came to us and said two things.
One, he said we had increasing chatter from targets of our
terrorism intelligence overseas similar to that increased
chatter we had just before 9/11. He did not say that we were
going to have a 9/11, but he said it would be irresponsible for
us not to pay attention.
He said, secondly, because of a decision of the FISA court
by a single FISA court judge, we had been blinded.
And I thought it was a classified piece of information as
to how much we have been blinded, but you have suggested,
Professor, that he has stated publicly on the record how much
of our targets we used to get we can no longer get.
The judge said go to Congress to have it changed. He had to
rule that way because the change in technology--the law had not
come up to it. So that is where we are.
Why did we include it for all foreign intelligence? For the
very reason articulated by Admiral McConnell. What is the worst
scenario we could possibly have? It is al-Qaida or another
transnational terrorist organization making common cause with a
rogue state that has a nuclear weapon.
And he suggested perhaps the best way for us to find out
about that is to target the other country rather than al-Qaida.
That is why he expanded it, not so he could go into global
warming information.
The other thing he told us was that if you merely defined
it, as the Democratic bill did, the Democratic majority bill as
presented to us, to say, ``Look, as long as it is foreign to
foreign, that takes care of it,'' he told us practically
speaking that does not take care of the problem, because you
don't know ahead of time whether there is going to be an
inadvertent conversation into the United States because you are
targeting a source outside the United States.
So balancing those things, how do you respond? The bill
that we passed responds in this way.
It says because we have heard from Admiral McConnell that
practically speaking it makes it impossible for us to respond
to the law in the way articulated under the Democratic
provision, because practically speaking it takes too much
manpower, too much time, to go for an application in each
instance--and he talked about how the fact we have to take
analysts offline, linguists offline, to do that so they can't
do the other, and the time requirements, as you suggested,
Professor--he suggested the way to do it is the way we do in
the criminal justice system.
When you wiretap a mafioso member, you don't know who he is
going to call. As I said before, he could be calling his
sainted mother, or his brother the priest or the pizza delivery
guy. We bring in minimization.
And that is why I think, Professor, you are absolutely
right. Where we ought to be concentrating our attention is the
quality of the minimization as already articulated in the FISA
statute. That didn't change with what we just put out.
The other thing is Admiral McConnell said as NSA director
he took the minimization requirement so seriously because he
said there was potential criminal liability for him. And he
suggested that is the way you do it.
So, Professor, I would ask you this. What is essentially
different between the minimization process that we have in
place now where we inadvertently find an American in the United
States, he is on one end of the conversation, and the
minimization process we have used in the criminal justice
system for years and years and years?
Mr. Turner. The answer is I don't know enough about either
one of those now. I know what it was 20 years, 25 years ago.
But I think you are exactly right. I think that has to be the
focus.
If I could pick up on one other issue here, and that is are
we doing harm by holding hearings. Top sources of intelligence
for our enemies, or the Soviets, used to be Aviation Week,
which leaked things left and right, and the Congressional
Record.
When you hold a hearing, you tell our enemies how our
system works. The more you tell them, the more they can find--
oh, they are not allowed to do this, let's direct our
communications system through that, you know, free area they
have given us.
And we are involved in a war against people that want to
use WMD against us. I don't know if they are going to get
nukes. I don't know if they are going to get some--you know, we
know the Soviets were playing with a smallpox that was immune
from known treatments.
If we don't take this seriously, if we don't allow our
President to fight this war and protect our people, and if
there is a bad consequence, people are going to want to know
why they couldn't do that.
And my hope is the people in the intelligence community and
elsewhere are going to say, ``Well, Congress tied our hands.
They were afraid we would inadvertently pick up communication
with an American.''
The answer: Let them get the communications. Let them
extract the foreign intelligence from it. They don't want to
listen to grandma talking to grandson.
When they find that conversation, they will isolate it, and
they will destroy it. They will erase the recordings and so
forth.
And if you tell Americans, you know, rather than
overhearing grandma talking to grandson, we are going to stop
listening to the enemies and stop finding out where they are
planning to kill grandson, most Americans aren't going to
understand that, and they shouldn't understand that.
Mr. Lungren. And as I understand it, even with the change
we made in FISA, if, in fact, that person on the U.S. side does
have information of a terrorist nature, we are going to follow
it. At that point in time, we have to go in and get a FISA
warrant to continue to follow that person.
Mr. Turner. If the President accepts that. I think there is
a strong case the President can act outside of FISA on that. It
is in the President's interest to work with FISA.
Every Administration likes FISA because it then lets them
prosecute these people. Work with them, but you have to be
reasonable about it.
And if you tie their hands when it comes to getting
intelligence on our enemies, and there are consequences,
understand your constituents are going to ask about it.
Mr. Conyers. The gentleman's time has expired.
The former prosecutor from the state of Massachusetts, Bill
Delahunt?
Mr. Delahunt. Yes, thank you, Mr. Chairman.
And let me extend a welcome home to Congressman Barr. And
it has been an excellent panel.
You know, I keep hearing about the delay and the cost and
the burden, and that really seems to be the gravamen of many
who debate this issue.
And let me just posit that no matter how much it costs, it
is a cost that is well worth to protect our constitutional
system and the relationship between the branches and individual
liberties.
You know, there has been report after report emanating from
a variety of agencies about wasteful spending. We still haven't
accounted for $9 billion that was unaccounted for in Iraq
during the first several months.
I dare say to protect the Constitution and what we are
concerned about in terms of our own values, no price is too
high, if that is really what it is about.
Because what I am hearing is well, we have to go here, we
have to go there, and then we are talking about, you know, 3
days, we can make it 5 days, we can make it 7 days. We can work
this out.
There is agreement that I am hearing today about foreign to
foreign, and let's--I will use the term ``modernize FISA'' to
deal with whatever has to be done to account for the newer
technologies that exist.
And another issue that I would like to at least raise--
because I have done a search and I can't find a single incident
of information disseminating from a FISA court hearing that
jeopardized the national security of the United States.
And I would just pose that to the panel. Has there been one
single incident that has been reported that you are aware of
that involved a leak--let me use that colloquial term--a leak
from the FISA court that would jeopardize American national
security?
Mr. Barr. Well, if I might respond to the gentleman from
Massachusetts, I am not aware of any in the 30 years that the
Foreign Intelligence Surveillance Court has been in existence.
The information, as I understand it, that has been
discussed publicly regarding this particular case--which, by
the way, the Government apparently was not sufficiently
concerned about to seek an emergency review, which raises the
question did they just want to use this as an excuse.
But the information that has been out there regarding this
has been discussed by the director of national intelligence and
at least one Member of this body, which raises interesting
questions about leaks.
But no, I am not aware of any cases, orders, or opinions or
deliberations that have been problematic in that regard.
Mr. Delahunt. Thank you.
Mr. Halperin?
Mr. Halperin. Yes. There have not been any such leaks. I
also want to make----
Mr. Delahunt. Why can't we trust the judiciary?
Mr. Halperin. Well, we can, and I--if you look back at the
hearing this Committee held in 1978 on this exact issue, you
had all of the same arguments made--we can't go to court, it
will be too cumbersome, the information will leak, we have to
move more quickly, it will take resources away.
And the fact was that Administration officials in every
Administration since FISA is enacted have testified that they
did far more surveillance after the enactment of FISA than they
were able to do before the enactment of FISA.
And the reason was that officials in the Justice Department
and the intelligence agencies were willing to do it because
they knew that it was legal, because Congress had enacted it.
The telephone company was willing to cooperate because they had
a legal order from the Attorney General or from the court.
And so the number of interceptions went up enormously after
FISA was enacted because it was done under a legal system. So
the answer to the burden is that it has this payoff which the
intelligence community is continuing to testify to.
What we need to do is to fix the rules so that we deal with
this problem but without throwing away, as the bill that was
enacted does, all the positive benefits of having a system that
is broadly supported and broadly understood and that it has
clear rules in it.
Mr. Delahunt. I think that in his testimony Congressman
Barr references a quote from Judge Royce Lamberth, and I think
it is particularly salient here today.
We have to understand that you can fight the war on
terrorism and lose everything if you have no civil liberties
left when you get through fighting the war.
What we have found in the history of our country is that
you can't trust the executive. We still have to preserve our
civil liberties.
With that, I yield back.
Mr. Conyers. Thank you.
The gentleman from Indiana, Mike Pence?
Mr. Pence. Thank you, Mr. Chairman.
And I want to thank these witnesses.
I want to welcome back, while in some disagreement on this
issue, my esteemed colleague and friend, Congressman Barr. I
appreciate the thoughtfulness of your presentation today.
And I really want to, in my time allotted, I want to see if
we can reflect on first principles. I think Mr. Lungren did a
very nice job of identifying kind of why we are here.
And the 6-month extension and the issues we are facing were
not invented by the Congress.
The director of national intelligence came to the Congress
and said there has been a court decision that is tying our
hands, and it is affecting our ability to engage in the
gathering of foreign intelligence necessary to protect the
country.
And Congress was able to compromise on that this summer,
and we are now back in an important debate.
I take a second chair to no one in my commitment to the
constitutional liberties enshrined in the Bill of Rights, and I
question the sincerity of no Member of this Committee or any
Member of this body who raises issues in this debate.
But that being said, I would like to get Professor Turner
to some first principles, and maybe invite a little discussion.
I am very provoked by your written testimony on the larger
question here of where does the authority derive for the
executive branch, and specifically the President of the United
States, to engage in the gathering of foreign intelligence.
It seems to me--and I want to agree very strongly with your
written testimony--that the Bush administration has done, in
your words, an atrocious job of explaining their constitutional
position in this matter. That, in fact, if I understand your
testimony correctly, which I would encourage any American to
look at in the record--is that, in fact, you know, Congress may
no more usurp the constitutional powers of the President by
statute than it can usurp the rights guaranteed to the people
by enacting legislation contrary to the first amendment.
I think that was your thought, that the President's
authority to gather foreign intelligence here is inherent in
the powers of the executive. And this, as you forcefully
articulate, was reflected by the likes of Thomas Jefferson and
George Washington and other framers of the Constitution.
I was especially moved by the quote from Senator Fulbright,
the late Senator Fulbright, who was a leading critic of the
Vietnam War, who made a comment in which he explained ``the
preeminent responsibility of the President for the formulation
of the conduct of American foreign policy is clear and
unalterable,'' adding later that this also included the Central
Intelligence Agency and all of the vast executive apparatus.
I believe, Professor Turner, you point out and emphasize
the word ``formulation'' here. Then, in fact, Senator Fulbright
himself said the President's authority was not merely to carry
out policies established by Congress, as is the case of
domestic policy, but it is the case to make policy in the
gathering of foreign intelligence and protecting the Nation.
I also would point out that you quote favorably President
Carter's Attorney General, Griffin Bell, who said that in the
testimony involving the creation of the FISA court, he said the
current bill recognizes no inherent power of the President to
conduct electronic surveillance.
And I want to interpolate here that this does not take away
the power of the President under the Constitution. He went on
to say it is not necessary to state that power. There is no
reason to reiterate it or to iterate it, as the case may be. It
is in the Constitution, whatever it is. The President, by
offering this legislation, is agreeing to follow statutory
procedures.
I would like to raise that issue with you, Professor
Turner, and then to anyone else on the panel, of where does
this authority derive from. Can you expand on that further?
Because I think it is a backdrop of this debate that is
largely lost, as millions of Americans, I think, believe the
President's ability to engage in surveillance derives from the
FISA act itself.
Mr. Turner. Thank you. That is a very good question. It is
almost as if during Vietnam we had a hard drive crash, and
everybody forgot about the meaning of the executive power
clause.
The term ``executive power'' was understood by the founding
fathers, because they had read John Locke's Second Treatise on
Civil Government. They had read Montesquieu's Spirit of the
Laws. They had read Blackstone's Commentaries on the Laws of
England.
All of those, and many others, understood by its nature
external business, foreign affairs, the conduct of war cannot
be managed by large deliberative assemblies.
You have got to act with speed and dispatch. You have got
to act with secrecy. Legislating bodies can't keep secrets.
Thus, this is presidential business. This was part of the
executive power.
In my testimony, I quote James Madison, Thomas Jefferson
saying that--he quotes article II, section 1, the executive
powers given to the President.
And then he said the transaction of business with foreign
nations is executive altogether, and thus it belongs to the
head of that department, except for those exceptions expressly
vested in the Senate, which were to be construed narrowly.
Jefferson's chief rival in Washington's cabinet, Alexander
Hamilton, made exactly the same point 3 years later as
Pacificus. John Marshall, as a Member of the House of
Representatives, said the President is the sole organ of the
Nation in foreign affairs. He possesses the executive power.
I did a 1,700-page doctoral dissertation on separation of
foreign affairs powers. I went through year by year and looked
at congressional debates, looked at court opinions and so
forth.
There was almost unanimity that certainly intelligence,
certainly the conduct of diplomacy--in Curtiss-Wright in 1936,
the Supreme Court said into the field of negotiations the
Senate cannot intrude. Congress itself is powerless to invade
it.
The same reason you don't get involved with negotiations is
why you don't get involved in intelligence.
Now, the distinction is external and internal. John
Marshall in Marbury--a great line. He talks about the President
having certain powers under the Constitution that are confided
to his discretion.
``Whatever opinion may be entertained on the manner in
which executive discretion may be used, still there exists and
can exist no power to control that discretion. Being entrusted
to the executive, the decision of the executive is
conclusive.''
And to illustrate this, he mentioned in the next sentence
the creation of the Department of Foreign Affairs, the
presidential department, and he said courts cannot inquire into
the official acts of the Secretary of State. This is a well-
established principle that we lost about the time of the
Vietnam debates.
And neither side mentioned this, but throughout our history
it was understood the reason the President managed foreign
affairs was because of the executive power grant.
And on intelligence, it was expressly discussed in the
Federalist Papers. Congress can't keep secrets. Therefore, the
Constitution has given the President power ``to manage the
business of intelligence as prudence might suggest.''
And the gentleman from Massachusetts, who has left us, made
the point of the importance of protecting the Constitution. I
could not agree more. But what is being missed is Congress is
usurping presidential powers.
Now, there is a gentleman's agreement here that I think
works. If Congress can come up with a FISA that allows us to
have an extra check when they are talking about looking at
American communications, I think that is wonderful.
But that will not be founded upon Congress directing the
President to do something in the foreign intelligence area.
It will be founded upon the mutual interest of everyone
wanting to protect the rights of individuals from unnecessary
and unreasonable searches and Congress giving the President the
flexibility he can do the job of protecting the country.
This is why I think it is so important that you work with
the President, you are not dictating to him, because in reality
you are trying to restrict his powers under the Constitution.
Mr. Pence. I thank you.
I think my time has expired, unless there is other
commentary on that, Mr. Chairman.
Ms. Spaulding. Congressman, I would like to emphasize that
the crux of the debate here, and certainly the crux of the FISA
legislation, is not with respect to purely foreign affairs but,
in fact, where it touches upon individual liberties of
Americans inside the United States. That is the challenge with
which we are wrestling.
And I would offer a more recent quote than those that
Professor Turner was offering--Justice O'Connor in the Hamdan
decision, who said that regardless of what authorities the
President may have with respect to foreign affairs, surely when
it comes to individual liberties--when individual liberties are
at stake, it is clear that the Constitution envisioned a role
for all three branches of Government.
Mr. Barr. If I might, at the gentleman's invitation, with
the concurrence of the Chair, also respond briefly to that,
with all due respect, the discourse between the gentleman from
Indiana and the law professor is very interesting, but it is
totally irrelevant to the gentleman from Indiana's question.
If he is inquiring about first principles, the first
principles are that a United States citizen in this country is
clothed with a sphere and aura of privacy that the Federal
Government cannot invade, absent a good and sufficient reason,
which there will be from time to time.
But that ought to be the focus of the debate here. We are
not talking, I don't think, any of us here, about infringing
the power of the President as the chief executive to gather
foreign intelligence overseas or, under certain circumstances,
in this country.
What we are talking about here, and the real problem with
P.L. 110-55, is the fact that as Ms. Spaulding indicated, it
implicates fundamental first principle constitutional liberties
for citizens in this country who now, thanks to that law as
signed by the President and passed with too much haste by this
Congress--any call or e-mail--that is, any electronic
communication--that a U.S. person has with anybody overseas,
without any necessary hint of any association with a terrorist,
is now subject to surveillance by the Government without any
court supervision.
That is a violation of about as first principle as one can
get. And I really think that that is where the debate ought to
be, not on the intricacies of how far Article II might extend
in foreign affairs.
Mr. Pence. I appreciate that.
Just to conclude, Mr. Chairman, I appreciate the rebuttal
remarks, but it is just imperative to me that as we reflect on
the privacy rights of Americans, we also reflect on those long-
term principles of separation of powers in Government that have
served to protect the people of this country effectively over
hundreds of years.
And with that, I yield back, grateful for the additional
time.
Mr. Conyers. Thank you.
The Chair observes that there were no hearings in the
Judiciary on the amendments just recently passed that have a 6-
month period before they expire, which now require us to begin
to hold these hearings, which there was no opportunity to do in
our haste before the recess.
The Chair is pleased to recognize the distinguished lady
from Houston, Texas, Sheila Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, I want to take my first
moment to thank you for your leadership and your complete
commitment to the preservation of the Constitution.
I think that one of the things that we learned after 9/11--
Mr. Chairman, you remember we went quickly to the steps of the
United States Congress, purposely to show the American people
that we would not be undermined and denied our liberty because
of the horrific terrorist act of 9/11.
I remember singing ``God Bless America,'' and it was really
to show to the American people--Congressman Barr, you probably
remember that we were not to be daunted in this enormous
tragedy, in the face of this enormous tragedy.
And so, as I listened to the discourse between my good
friend from Indiana and the distinguished professor from my
alma mater, the University of Virginia School of Law--the
Jeffersonian mission that that school has--I saw more than a
reflection of this present underlying bill.
My recollection of Thomas Jefferson's original premise in
the founding of this Nation was a healthy skepticism of
authority does not mean that we don't have to have the laws
necessary to protect America.
I have just left--and I apologize to the witnesses--the
Homeland Security Committee which I am on and Secretary
Chertoff discussing closing gaps on security in America.
And so we are not unmindful of that. But as I listen,
Professor Turner--and I really just need a yes or no answer,
because I hear an expanded view of the executive power.
So let me just read off to you the Bill of Rights, and I
would like Professor Barr and the distinguished panelist to his
right, Ms. Spaulding--I am sorry, I am being blocked out of
your view--to also answer this in the context of this question.
And that is that the bill that was passed was under the
premise of protecting America, and its premise was to surveil
people overseas.
But frankly, what is happening, and I imagine has been
discussed, is that it will weave its way into the bedroom,
kitchen and other places of refuge for Americans.
This is, I think, the narrow focus of what we are trying to
protect, and that is the basic underpinnings of civil
liberties, while at the same time we promote the sharing of
intelligence.
For those of us who are here, we remember the key
underlying cause of 9/11--individuals in our intelligence
community not talking to each other, not necessarily not having
the right intelligence, but not talking to each other, with
clear evidence of what might have been happening.
And so we were very cautious not to then take the terrorist
act and terrorize Americans.
Professor, are you suggesting that executive powers during
this very difficult time would then have the right to eliminate
the freedom of press, the freedom of speech, to eliminate
Americans' right to carry arms, of which--I happen to be
someone who defines the second amendment differently, but
America's right to carry arms, America's right to the
protection against unreasonable search and seizure, America's
right to due process, Americans' rights to a trial by jury?
Is that the expansive executive power that you are now
promoting, that in times like these we, then, yield to the
auspicious and, I might say, oppressive power of the executive
and allow them to eliminate all these rights?
Is that your position today?
Mr. Turner. I am always wary of yes or no questions. I
stopped----
Ms. Jackson Lee. But I asked for----
Mr. Turner [continuing]. Years ago.
Ms. Jackson Lee [continuing]. Is that your position today?
Mr. Turner. Not at all. If you will read my testimony, the
distinction is the President's, in many respects, exclusive
power dealing with the external world, versus what you are
talking about, internal.
The fourth amendment----
Ms. Jackson Lee. And may I just----
Mr. Turner [continuing]. Is just as enforced today as it is
in peace time, but what is an unreasonable search may change
when you are trying to stop a terrorist attack.
But certainly, I don't suggest at all that the President
can suspend the Constitution or something like that. Quite the
contrary.
Ms. Jackson Lee. Thank you, Professor.
Congressman Barr, is it not possible to take the argument
and the premise that the professor has made in his previous
comments, including his testimony, even though he has now
suggested the distinction of war time versus peace time. But if
we don't look to provide some parameters for this warrantless
wiretapping structure that does not invade improperly the civil
liberties of Americans, is that not the possibility of the
expansion of executive powers?
Mr. Barr. Well, it certainly is a possibility, and as a
matter of fact a number of advocates for the Administration's
policies regarding enemy combatants, regarding military
tribunals, regarding foreign intelligence surveillance--all
these areas and more--argue that the President has, in fact, in
their view plenary authority under article II, sections 1 and
2, as commander in chief to do all of those things that you
have enumerated.
Ms. Jackson Lee. Ms. Spaulding?
Ms. Spaulding. I think we have to be wary of expansion of
executive authority and the skewing of our system of checks and
balances, not just because we believe strongly in civil
liberties, but there are also national security costs to that
kind of avaricious accumulation of power and ignoring our
system of checks and balances.
And I think it can be seen most clearly in the lessons we
have learned from community policing. We are concerned about
homegrown terrorism.
We are not likely to detect some young man sitting in his
basement contemplating a terrorist attack through these
expansive FISA powers, even as amended.
We are most likely to be able to successfully address
homegrown terrorism by developing a close relationship with our
communities, and particularly our Muslim-American communities.
They are deeply suspicious when the Government starts
asserting this kind of broad power that infringes upon
Americans' rights. And they know they are particularly
vulnerable population, particularly in this context with this
threat.
And I think it begins to drive a dangerous wedge and makes
us less secure, not more secure.
Ms. Jackson Lee. Mr. Halperin, would you comment?
Mr. Halperin. Yes. I think that we give up our liberty and
do not gain our security. My basic point about FISA is that it
has worked. The number of----
Ms. Jackson Lee. That it is--I didn't hear you.
Mr. Halperin. Has worked. After it was enacted, the number
of surveillances went up. Every director of central
intelligence since has testified that they were able to conduct
more surveillances and gain more information, because
Government officials, officials of the phone company, landlords
of people whose houses you needed to get into, all knew that
they were doing something that was lawful, that Congress had
authorized, that the courts had sanctioned, and that therefore
they had an obligation to cooperate.
Before FISA, you had a situation in which you didn't have
anywhere near as much cooperation and therefore much less
surveillance.
The first leak that occurred of the foreign intelligence
surveillance since the enactment of FISA was the leak of the
President's program going beyond FISA and conducting
surveillances outside of FISA.
And that leaked because some of the people involved did not
believe it was lawful. We know one of the telephone companies
refused to cooperate because their lawyers, I think properly,
told them it was unlawful.
We now have the Government coming into the Congress
desperately seeking new legislation because a court has said
you violated FISA.
We protect our security, as we protect our civil liberties,
by doing what this Congress did in 1978, which is enacting
clear laws with clear obligations for everybody, with a clear
role for the Congress and for the FISA court.
And when we break that rule, as we did in this legislation,
we jeopardize our security as much as we jeopardize our civil
liberties.
Ms. Jackson Lee. I thank the Chairman.
Mr. Conyers. I thank the gentlelady from Texas.
The Chair is pleased to recognize the Ranking Member of the
Immigration Committee, the gentleman from Iowa, Steve King.
Mr. King. Thank you, Mr. Chairman. I appreciate you holding
this hearing here today and appreciate the testimony of the
witnesses and I will say the expert perspective that is brought
by each of you.
And I just have a few curiosities left. My colleagues have
done a very good job, I think, of combing out a lot of the
wrinkles that we have had here in this Committee.
And at first, I direct to Professor Turner. We passed the
Protect America Act and completed into law August 5, and you
understand the background for that. Would we have been better
off not to have addressed this issue, in your opinion?
Did we take a step that was an improvement in the right
direction? Should we back up a little bit? How would you
summarize your recommendation, if there should be any changes
made?
Mr. Turner. Well, I think there is a consensus here that we
are in a situation, as the Administration has explained--the
DNI has explained--that new technology has made it--turned FISA
on its head.
Things that used to be legal under FISA now can't be done
because of the way the technology works. We need to have a
technology-neutral FISA. And to me, the focus of FISA should be
on protecting the rights of U.S. persons in this country.
The situation we were in before you acted--we were actually
being told we could not listen if bin Laden called his number
two across town in Pakistan somewhere because of Congress and
the way you wrote this law. Which, again, proves the wisdom of
Locke when he said you cannot manage these problems by
antecedent, standing, positive laws because you cannot
anticipate all the changes.
You know, the loss of a battle, the resignation of a
minister might change a bad situation to a good one, and so
Locke said those who preside must be left in position to act
for the common good. This is a wonderful example when Congress
gets into this area.
Now, I want to make it very clear, I have not suggested the
President has any power to suspend the first amendment, or the
fifth amendment or the second amendment. The distinction here
is foreign-domestic.
There was a 1971 Committee of experts of the American Bar
Association that said the President ought to be able to wiretap
people in this country for foreign intelligence persons, but
when the target is a domestic threat--in that case, it was a
White Panther who worked for the Black Panthers, who had blown
up the CIA building and was found with many pounds of dynamite
and maps to American military bases.
The Supreme Court in the Keith case said you have to have a
warrant. If it is an American threat, fourth amendment--you
know, of course, fourth amendment applies all the time, but the
Supreme Court has carved out a number of safety-related
exceptions to the fourth amendment, including the----
Mr. King. I agree, Mr. Turner.
Mr. Turner. And this is one of them.
Mr. King. But you set up a question here, now, and that is
these decisions that were made by the several judges that
brought us into this situation--do you believe, then, that the
executive powers of the United States should have been
suspended with regard to intelligence gathering until Congress
acted?
Mr. Turner. No. I think Griffin Bell got it right. I think
the President has the power to do this that is a higher power
than your power to limit----
Mr. King. Okay. Let me take you, then, if I might----
Mr. Turner. Had you not passed this, I would have
recommended the President just ignore FISA and continue
listening to bin Laden. But I would rather see him work--I like
FISA.
But FISA ought to be understood as an agreement, not as
controlling the President, because in the end, he wins, because
his constitutional power prevails in this act.
Mr. King. Okay. And I appreciate your constitutional
perspective, so I would ask this following question, and that
is when there is a court decision that the executive believes
runs contrary to the constitutional authority of the executive
branch, then what is the duty--or the Congress, for that
matter.
If we believe that there is a decision made by the court
that is inconsistent with the Constitution, do we honor that
decision and comply--and conform the law to match that decision
of the judge? Or do we ignore that?
What is your recommendation on how Congress should act or
the executive branch should act when we find ourselves in
disagreement with the constitutional interpretation of a judge?
Mr. Turner. This is an easy one. The Constitution is
supreme. The courts have the supreme authority to interpret the
Constitution. If a court says this is unconstitutional, you
stop doing it, and if you disagree, you immediately appeal.
When the Supreme Court rules, that is final, except you can
then try to amend the Constitution. Ultimately, the American
people are the boss, but until they change the Constitution, it
binds all the branches.
Mr. King. Okay. But Ms. Spaulding quoted from the Hamdan
case, a case where we clearly used article III, section 2
stripping language, and the Supreme Court was denied
jurisdiction in that case. They heard it anyway.
And so are you suggesting, then, that for the Congress or
the executive branch to maintain their authority in this
balance of powers we would have to go to a constitutional
amendment to remind the Supreme Court what the Constitution
says in article III, section 2?
Mr. Turner. That is an interesting question, and it is
really a political question. But the basic point is ultimately
the courts prevail on interpreting the Constitution. If you
believe the courts violated the law, I am not sure what the
answer to it is.
But if they--obviously, if it is an interpretation of the
law--in fact, any time they say it has to do with the law, you
just change the law. If it deals with the Constitution, you
accept it or you amend the Constitution.
Mr. King. If I might, then, just very quickly conclude, and
that is that each branch of Government--if we do not jealously
protect the power and authority granted to us in the
Constitution, we will lose it to another branch of Government.
I thank you very much for your testimony.
And I yield back.
Mr. Conyers. The Chair is pleased to recognize the
distinguished gentlelady from California, Maxine Waters.
Ms. Waters. Thank you very much, Mr. Chairman. This has
been an interesting and fascinating discussion. Sorry that I
was not able to be here for all of it. We are looking at home
foreclosures over in the Financial Services Committee.
But I was anxious to get back here, because I think that
this is an issue that must be dealt with by the Congress of the
United States.
As a matter of fact, I was disheartened with the passage of
the Protect America Act when we left here on August 5, 2007.
And I know that Congress is a very complicated place, and that
often times actions are taken, decisions are made, based on the
complication of the makeup of this body.
But I was not a very happy camper because that act was
passed, even though it is temporary.
And I am so glad, Mr. Chairman, that you are revisiting
this as quickly as could possibly be done and having us here
today, because I know that there is going to be a coming
together of both sides of the aisle eventually to deal with
this, as demonstrated by my former colleague, Mr. Bob Barr, who
is here today.
As Mr. Barr knows and many of you know, I disagree with him
on a lot of things. But he has been absolutely spectacular on
this issue.
And he and the ACLU literally have formed a partnership on
the protection of civil liberties, and I have a real
appreciation for that.
I am also pleased to hear the professor here today, because
I know now why I am so frightened about the President of the
United States and his ability to ignore the Constitution of the
United States and to place American citizens under
surveillance.
And I need to hear people like the professor explain why
they think the way that they do, so it could help to keep me
focused on why I must fight very, very hard to ensure that the
President does not use the power of the presidency to spy on
American citizens, or to ignore FISA, or simply to violate the
Constitution, in my estimation.
Now, having said all of that--and I think this issue has
been framed very well here today, and we probably all know
where we stand on it. And we can wax eloquently about what the
Constitution meant, and some can, I guess, emerge as strict
constructionists, others more liberal.
But I want to get to what it really means for an American
citizen to be spied on by their Government. And we have someone
here today who is presenting as a witness, Mr. Mort Halperin,
who was targeted as an enemy by the Nixon administration.
And I would like to hear from Mr. Halperin what you learned
about surveillance of your family. I want to know why did the
Government target you. What did you do about it? And help us
put a face on this here in this Committee today.
Mr. Halperin. Well, thank you. I discovered that there was
a warrantless electronic surveillance on my home phone. I sued
the Government. The case went on for many, many, many years.
We took the depositions of vast numbers of people. All of
them modestly assured us that they had nothing to do with the
decision to put the tap on my home phone. Mr. Nixon, Mr.
Kissinger, Mr. Haldeman, the deputy director of the FBI all
insisted that somebody else had made the decision.
But the fact was that the FBI listened to my home phone
conversations and those of my family for 21 months, learned at
the end that according to General Haig, nothing suggested that
I was a leaker of information.
They learned about the Muskie Presidential Campaign. They
learned about Common Cause's campaign against the Vietnam War.
They learned about my shopping habits, particularly what
groceries I tended to buy, and other information relating to
political activity that they had no business acquiring.
We sued, among other people, the telephone company. And I
think that actually played an important role in getting us to
FISA, because the phone company was starting to get sued by a
number of people.
They had acted on the assumption that the Government always
behaved in good faith. This tap was put on the way they all
were put on. There was a phone call from an assistant director
of the FBI to the security officer in the telephone company.
Now, of course, in those days, there was only a telephone
company. It was very simple. And then they would provide all
the phone calls to the FBI field office--in this case, the old
post office building down on Pennsylvania Avenue--where they
listened to the calls.
But I think the lesson there was that you can't trust the
Government, that if the President has the power to pick up the
phone and call the FBI and get a wiretap, he will do it on
Martin Luther King, Jr. He will do it on steel company
executives. He will do it on Government officials.
He will do it on newspaper men, as well as on the
girlfriend of the Russian ambassador, and that therefore we
needed rules. We needed clear rules for the phone company and
for Government officials about when this was appropriate and
when this was not appropriate.
And I think out of that came FISA, which I strongly
supported, believed it was the right thing to do, and now
strongly support amendments to make sure that we can listen to
phone calls between two terrorists overseas but not do it in a
way that allows the Government to acquire vast numbers of
conversations of Americans.
Ms. Waters. Can you regain the trust of your Government
once you have been violated in the way that you have described,
or are you forever looking over your shoulder, you are a little
bit nervous about being spied on?
What does this do to an American citizen to find that their
President has violated the law and the Constitution and spied
on you?
Mr. Halperin. Well, I think, obviously, different people
react different ways. My reaction was to say we have to fix the
problem. We have to fix the problem by Congress enacting clear
and firm rules.
We should not be in a position where an FBI official, or an
NSA official, or CIA official, or the President or the Attorney
General is not clear what the law permits him to do.
And that is why I thought that FISA was so important. I
devoted much of my time for 3 or 4 years to the debate about
FISA, because my view was there were some conversations that
the Government had to be able to listen to.
At the same time, the American people needed to be assured
that they would not be surveilled without a warrant.
And after 9/11, when people said to me, ``I will bet they
are listening in again to our conversations without a
warrant,'' I said what the President said, ``They can't do
that. A court order and a warrant is required.''
And then we found out the President was lying to us, that
he was listening without a warrant to those conversations. And
he destroyed the whole system of trust that had been built up
in the enactment of FISA.
And then the Administration destroyed it again by demanding
a bill without explaining what it meant or what it did in a way
that people could understand.
And as I have said several times, my view is that threatens
our security as much as it threatens our civil liberties. And
it breaks the bond of trust that FISA created between our
citizens and the Government, and we all know we what the rule
were and we all knew that the rules would be enforced.
And I think Congress has to reestablish that system of
trust, and it can do so in any way that gives the director of
national intelligence access to the phone calls that he should
be able to listen to.
Ms. Waters. Thank you very much, Mr. Chairman.
Mr. Conyers. Thank you so much.
The Ranking Member of the Constitution Subcommittee, the
gentleman from Arizona, Mr. Trent Franks?
Mr. Franks. Well, thank you, Mr. Chairman.
And thank all of you at the panel here. You know, sometimes
it is important just to kind of come back to earth a little
bit.
And I am reminded that when 9/11 came upon America, there
were over 2,500 Americans that were almost instantaneously
stripped of their right to live, of their right to be free, and
their right to pursue their dreams.
Almost everything that any of us hold dear was taken from
them in an almost blinding instant.
And it reminded our Government that they have a profound
responsibility to protect the citizens of the United States.
It also reminded them that they face a different kind of
enemy than we have ever faced, an ideological one that lurks
behind the shadows and is an asymmetric threat that is
difficult to define and to ascertain where and what they are
trying to do.
With that in mind, even intelligence becomes a critical and
overriding issue. If we knew where every terrorist was in the
world today and what they were planning, the war on terror
would be over in 60 days. Our greatest challenge is
intelligence.
So in the effort for all of us to protect the civil
liberties of the United States and the people in it, we have to
consider the importance also of foreign intelligence.
With that in mind, as I understand, Mr. Turner, let me just
try to, if I can, walk through this a little bit, and you are
welcome to say to the whole world where I am right and wrong.
But as I understand it, the Protect America Act essentially
says that--like it was originally envisioned, that the foreign
intelligence surveillance having to do with people not on this
Nation's territory, could be done by the President largely
without any kind of warrant, that he could listen to Terrorist
A in Morocco and Terrorist B in Abu Dhabi and could make his
own conclusions there as to whether or not they represented a
threat to the United States, but that if someone in the United
States was targeted, that there had to be a warrant.
And I understand that the rub comes when someone calls--a
terrorist, perhaps, calls into the United States to someone
that is not a targeted person under any warrant. And there are
those of the majority that suggest that that is
unconstitutional.
Is it not true, however, that if a terrorist calls someone
in the United States, that of all considerations, of all calls
that should be considered carefully, that that would be among
the most important ones to consider?
And I understand that if there is some criminal discussion
on the part of the person that is being listened to here in the
United States as a result of listening to a terrorist phone
from outside the United States that before that person can be
targeted for any type of criminal investigation that they have
to get a warrant to do that.
Is that correct, Mr. Turner?
Mr. Turner. That is a good question, and I am not certain.
It seems to me there are two regimes here. Going back to the
ABA report in 1971, their argument was the President could do
foreign intelligence wiretaps without a warrant.
That would include a foreign agent, a foreign government
official, a terrorist--what have you--calling in.
They listen. If the American is not saying, ``Hey, where do
I get the explosive,'' but rather is trying to say, ``Where do
I send the lamp you bought on eBay,'' then the minimization
procedures come in and they erase, you know, the tape and
everything else.
The other issue is the FISA regime. I am not certain
whether--I think FISA, if you are targeting the foreigner
outside the country, where you have got every right--certainly,
everybody agrees it is legal--the President has a duty to try
to find them and target them or find out what they are doing.
I don't think you need a FISA warrant for the individual in
this country. Certainly, you shouldn't. Certainly, the
President should have a right to intercept that.
Mr. Franks. Well, that is as I understand----
Mr. Turner. Yes.
Mr. Franks [continuing]. The situation, and I wanted to try
to make that----
Mr. Turner. That was before the latest interpretation over
the technology that if it goes--now, anything that goes through
a switch in this country----
Mr. Franks. Right. I think the technology, Mr. Chairman, is
what made a lot of the challenge here--is that sometimes now
those come through the United States, and that is what has
caused the new discussion here.
And I will just close here, because I am about out of time.
But the director of national intelligence has said that prior
to the passage of the Protect America Act of 2007 that the
intelligence community was ``actually missing a significant
portion of what we should be getting with respect to terrorist
communication.''
And, Mr. Chairman, I just am convinced that the Protect
America Act does everything it possibly can--and I am open to
making it better--to protect the civil liberties of those
residing in the United States and still helps protect the
country from those who are malevolent outside the United
States.
And, Mr. Turner, if you would like to respond to that----
Mr. Turner. Just one quick comment related to the Mort
Halperin situation. I think everybody agrees that bug should
not have taken place.
It is very clear under the Keith case in 1972 the Supreme
Court has said you need a warrant to bug a person in this
country, unless you have got reason to believe that person is
tied to a foreign power, a foreign terrorist group or something
like that.
So what happened there has already been taken care of by a
Supreme Court ruling, quite properly.
Mr. Franks. And just for the record, Mr. Chairman, that is
the case under the Protect America Act. Thank you.
Mr. Conyers. The gentlelady from New York, Sue Sutton.
Oh, excuse me, the gentleman from Tennessee, Steve Cohen.
Mr. Cohen. Thank you, Mr. Chairman. I appreciate it.
Most of the questions, I guess, have been asked, but I do
have a few thoughts and questions.
Congressman Barr, you were here--most of the discussion has
been about foreign terrorists, and certainly that is our
primary concern.
But before 9/11, our primary terrorist attack was some
yahoos out in the Big 12 conference, Oklahoma, Colorado,
Nebraska, wherever they were, and Oklahoma City.
After that attack in Oklahoma City, was there any
discussion of changing the constitutional history of this
country to have surveillance on domestic terrorists to protect
us from that threat?
Mr. Barr. There were some discussions, for example, as the
gentleman from Tennessee may recall--even though he wasn't in
the Congress, I know he followed these issues.
There was some discussion in the initial antiterrorism
legislation that was crafted in the wake of the Oklahoma City
bombing that did--a number of us across the political spectrum
believed did improperly infringe constitutional rights of our
citizens, and at that time we defeated those. Those did not
pass as part of that legislation.
Mr. Cohen. Did anything pass to give additional authority
to the Government to intercept any conversations or documents
of any sort?
Mr. Barr. No.
Mr. Cohen. Were the proposals ones that were tailored
strictly to terrorist activity?
Mr. Barr. Some of the proposals went apparently far afield
of the specific focus that a number of us believed should have
been the focus of legislation to address the particular problem
that manifested itself in Oklahoma City.
And here again, we were able to curtail those.
Mr. Cohen. And either you or Ms. Spaulding--this
legislation that we passed was not strictly limited to
terrorists, is that correct?
Mr. Barr. As the Chair, I think, is--or as the gentleman
from Tennessee is implying here, the scope of P.L. 110-55,
which is the Protect America Act, goes far beyond targeting
terrorists.
Virtually any phone call or e-mail, any electronic
transmission, communication, that a U.S. citizen in this
country makes to anybody overseas, regardless of any connection
whatsoever or even a mere suspicion that they are a terrorist
or connected with a terrorist, is now subject to surveillance
without court order, supervision or effective oversight by the
Congress simply because that U.S. person is communicating with
somebody overseas.
That goes far, far beyond anything reasonably necessary to
address the problem of terrorism.
Mr. Cohen. And so, Ms. Spaulding, would you like to
respond?
Ms. Spaulding. Well, I was just going to respond to the
argument that was made for why this bill was not limited to
issues related to international terrorism.
And the example that was given, that suppose a terrorist
group is talking with a foreign government about trying to
purchase nuclear weapons or obtain other kinds of weapons of
mass destruction--that still is related to international
terrorism.
And an appropriately focused legislation that restricts
itself to the threat posed by international terrorism could,
indeed, encompass those kinds of threats.
Mr. Cohen. Do you have words of art that you could offer to
the Committee?
Ms. Spaulding. Congressman, I would be more than happy to
work with the Committee to try to find the appropriate way to
address all of these challenges.
Mr. Cohen. Thank you.
Do any of you know of any situations where the fact that
some request for some surveillance went to the FISA court and
had that time limit affected the security of this country?
Mr. Turner. Mr. Chairman, I--or sorry.
Mr. Cohen. That is all right.
Mr. Turner. Maybe later. Right. I don't know of any, but
there is no reason I would, since all of that is classified.
Mr. Halperin. The Attorney General, I thought, in his
testimony did lay out the situation which supposedly justified
the terrorist surveillance program because there was not time
to go to court.
I thought they did make out a case for why the emergency
procedures needed to be lengthened in time in order to be able
to deal with those particular surveillances.
The Administration seems to have lost interest in that
amendment. It is not in their package anymore. I don't know how
the problem went away, but I think it does need to be fixed.
Mr. Cohen. Thank you.
When this bill came up for vote, I voted no, as did most of
my Democratic colleagues. There were lots of reasons to vote
no, most of which are the subject matter and the concern of the
fourth amendment, the courts, the tradition of American
jurisprudence.
But one of the other reasons is because this bill gave a
great deal of authority to the Attorney General of the United
States.
This Committee, under our Chairman, had hearings which I
think exposed certain problems in the Department of Justice and
with our current Attorney General.
Because of the oversight of this Committee, as well as the
oversight of the Senate, I believe issues were raised,
responses were not given, that led to the resignation of our
Attorney General, which will give this Congress and this
congressman possibly more confidence in giving the Attorney
General authority which he didn't have.
On that night when I voted no, I said that one of the
reasons I voted no is because the American people did not trust
this Attorney General with additional authorities, having seen
what he had done with former Attorney General Ashcroft on his
sick bed.
And I called on his resignation that night. I am pleased
that he has announced his resignation. And I think this
Committee, because of the hearings the Chairman has had--we
have seen a hero emerge, and that was Mr. Comey. James Comey is
an American hero.
And, Mr. Chairman, I have called in Memphis, Tennessee--and
some of you may know it, but I believe if the President would
appoint James Comey--or nominate him as Attorney General, we
would feel a lot more comfortable with this law and the laws of
this entire country.
And he would show that he was putting the country first,
because he is a hero who will do what is right under the
Constitution and the laws of the United States and not act as a
political tool of any individual. And I would encourage the
President to do so.
Thank you, Mr. Chairman.
Mr. Conyers. Well, there are others on the Committee that
share your view, Mr. Cohen.
I am pleased now to recognize Judge Louie Gohmert of Texas.
Mr. Gohmert. Thank you, Mr. Chairman. I do appreciate this
hearing.
And I do appreciate when we have a panel whose I.Q.s
collectively enhance the I.Q. of the room itself, so we
appreciate you all being here.
I would like to just ask some very basic questions so I
know where everybody is. That helps me judge, you know, the
credibility, weight, that kind of thing, for the testimony.
But first of all, I would like to ask a simple question to
each.
Mr. Barr, you are looking at me sternly there--simple
questions--but just to get an answer--and it should be yes or
no. I am not trying to trick anybody, but just to find out
where you stand.
First question: Are U.S. citizens located in foreign
countries entitled to the rights in that country that are
afforded under the United States Constitution?
Mr. Barr, if we could just go down the row?
Mr. Barr. In the context of the discussion regarding FISA,
no.
Ms. Spaulding. Most constitutional rights travel with
Americans when they travel overseas vis-a-vis their
relationship with the United States Government.
Mr. Gohmert. So would that be----
Ms. Spaulding. Yes.
Mr. Gohmert [continuing]. A yes? Okay. Thank you.
Mr. Turner. I think it is more complex than that, but I
think most constitutional rights, you know, would carry over
with respect to the U.S. Government, but I also agree with Mr.
Barr with regard to some of the surveillance issues.
The question is whether they have a reasonable expectation
of privacy, and I think one of the things you have to ask--the
only country in the world that has a fourth amendment is the
United States.
You go to France today, if you are a businessman--you had
better be sure your briefcase is going to rifled while you are
at lunch by the French intelligence.
And so, you know, the test in the fourth amendment--one, is
there a reasonable expectation of privacy? If there is, is the
search unreasonable?
Mr. Gohmert. But going back to the question, you are saying
there is no expectation of privacy by an American citizen in
France, but nonetheless their constitutional rights have to be
observed?
Mr. Turner. Well, the answer there is the fourth amendment
may not apply by virtue of the fact that they have to have an
expectation of privacy for it to apply.
But most of the provisions certainly do apply to Americans
overseas with respect to their relation to----
Mr. Gohmert. Well, Professor, you have been so clear-spoken
throughout your testimony. I think this is the most befuddling
your answers have been so far in this hearing.
And I am still not clear where you stand on that question.
Mr. Turner. Most constitutional rights do carry with them
with respect to our Government with respect to----
Mr. Gohmert. Even when there is no expectation of privacy.
Mr. Turner. No. That is the key. The fourth amendment may
apply, but if it does apply, they are probably excluded from
its protections----
Mr. Gohmert. But you just gave an example, France. You got
no expectation----
Mr. Turner. Yes, they don't have----
Mr. Gohmert [continuing]. Of privacy.
Mr. Turner [continuing]. An expectation of privacy. You
know, that is the trigger for----
Mr. Gohmert. So if you are a moron and you go into a
country thinking you are going to have an expectation of
privacy, even though you clearly don't, then the fourth
amendment follows you, is that----
Mr. Turner. You know, I would have to research that one. I
have never researched it, and the reason I am befuddled is
because I am trying to think it through, and I don't----
Mr. Gohmert. Okay.
Mr. Turner [continuing]. Even know if there is any case
law----
Mr. Gohmert. Well, I really wasn't trying to be tricky
here.
Mr. Turner. Yes.
Mr. Gohmert. Like I say, you have been pretty clear-
spoken----
Mr. Turner. I think I agree with Mort.
Mr. Halperin. Yes, he is going to agree with me.
Mr. Gohmert. All right. Your answer?
Mr. Halperin. The Constitutional fully protects Americans
against their own Government's actions whether they are at home
or abroad.
The fourth amendment is situational both at home and
abroad. For example, you are not protected against Government
seizures of your conversations if you sit in your house and
talk loudly enough for someone else to hear outside, because
the court has said----
Mr. Gohmert. Are we talking about in a foreign country?
Because that was my question.
Mr. Halperin. No, but what I am saying is the fourth
amendment applies equally in a foreign country as it does in
the United States. Most----
Mr. Gohmert. So expectation of privacy means nothing.
Mr. Halperin. No. It means something both in the United
States and----
Mr. Gohmert. But I am asking about a foreign country.
Mr. Halperin. Yes.
Mr. Gohmert. And that is rather a subjective standard that
you----
Mr. Halperin. But that is the one----
Mr. Gohmert [continuing]. Have mentioned.
Mr. Halperin. It is the one the court has----
Mr. Gohmert. And apparently it is a moronic offense if you
are a moron and think you have got an----
Mr. Halperin. No, no.
Mr. Gohmert [continuing]. Expectation of privacy.
Mr. Halperin. It is a reasonable person.
Mr. Turner. That is the key.
Mr. Halperin. It is a reasonable person.
Mr. Turner. It is a reasonable expectation.
Mr. Gohmert. All right. All right. But this question is
not--I didn't say constitutional rights with respect to
intrusion by the United States Government.
Do they have a right to expect protections under the U.S.
Constitution when they are in a foreign country?
Mr. Halperin. Against a foreign government?
Mr. Turner. No.
Mr. Gohmert. Right.
Mr. Halperin. Not at all.
Mr. Turner. We all agree on that, I am sure.
Mr. Gohmert. And is that your belief? As regards a foreign
government, a U.S. citizen abroad has no expectation of the
observation of U.S. constitutional rights? Is that fair?
Mr. Turner. It is still more complex than that. For
example, if a foreign government were to threaten the life of
an American citizen abroad, that person would have an
expectation that our Government would use its--you know, would
make an effort to protect their, you know, safety and so forth.
Mr. Gohmert. Okay. But then that raises other issues, and
that would be unless it is an unborn child, and then you would
have no expectation the U.S. Government would protect that
life. But that is another issue.
Well, let me go to another question. Do you believe
terrorists located in a foreign country who is of foreign
citizenship is entitled to protections and rights afforded
under the U.S. Constitution to U.S. citizens?
Mr. Barr? Foreign terrorists in a foreign country.
Mr. Barr. No connection with the U.S.
Mr. Gohmert. No connection with the U.S.
Mr. Barr. No.
Ms. Spaulding. No, that terrorist does not enjoy any
constitutional rights.
Mr. Turner. I am sure we all agree on that.
Mr. Gohmert. Well, I just wanted to make sure, because I
wasn't.
Mr. Halperin. Yes, we agree on that.
Mr. Gohmert. Okay. And we got into--answer this question
with regard to my first question--but are foreign intelligence
agents in foreign countries trying to surveil foreign
terrorists required to provide them with constitutional rights
under the U.S. Constitution?
The answer apparently, from your last question, would be
no, correct?
Mr. Halperin. Right.
Mr. Gohmert. I appreciated my friend from California, Mr.
Lungren, getting into the minimization issue. I have had some
concerns that perhaps we have not had adequate--well, let me
just mention this as a final comment. I see my time has
expired.
I am very concerned that as we continue to have a lack of
border security that in order to provide protections people
want there is more and more usurpation of civil rights, and I
would hope that we would have more border security to protect
us there than have to keep encroaching, as apparently we have
been going on some of the rights or perceived rights.
And I yield back. Thank you, Mr. Chairman.
Mr. Conyers. You are welcome, Judge.
Several Members have allowed Debbie Wasserman Schultz of
Florida to precede them, and we thank them for their courtesy.
The gentlelady is recognized.
Ms. Wasserman Schultz. Oh, thank you so much, Mr. Chairman.
And to my colleagues, I appreciate the courtesy.
At the risk of dumbing down the very important and eloquent
debate that has gone on and discussion that has gone on here
today--I am not an attorney, and that is not an apology. It is
just a fact.
And so because we have spent a lot of time speaking at a
very high level, in very constitutional terms, in very legal
terms, I want to ask my questions through the prism of someone
who looks at an example like the following.
In my view, the FISA law that we just adopted, which I
voted against--and Congressman Barr, I have to tell you that it
is a privilege to be in the same room with you and not be
yelling at you from my couch, which I did for many a year.
Mr. Barr. It is a privilege I share with you. I enjoy it.
Ms. Wasserman Schultz. So I appreciate the opportunity to
both agree with you, for once, and be in the same room.
But the question that I have for you--I would like you to
comment on this, if you will, and Ms. Spaulding as well, and
Professor Turner, if the time allows.
I look at this from this standpoint. The FISA law that we
just passed would, in my estimation, allow the surveillance of
an e-mail between my child and an Iraqi child communicating
perhaps innocently, most likely innocently, about their views
on the war, from an American child's perspective and an Iraqi
child's perspective.
The Iraqi child would, you know, be someone in another
country, would be--the discussion would possibly be related to
foreigners or foreign affairs of the United States.
It seems to fit into the category of being eligible for
surveillance and also, by almost every American you would ask,
be an unreasonable communication to surveil.
Yet we would have no way of knowing whether the
surveillance of that communication was reasonable, because
there is no court review under this new version of the law, and
there is no judge that is going to apply a reasonable standard
or a constitutional standard to that surveillance.
Is that an accurate depiction or concern?
Mr. Barr. It is both an accurate depiction and ought to be
a very major concern for certainly all of us.
Not only is the scenario that the gentlelady from Florida
laid out a very accurate one, the fact of the matter is that
the minimization procedures that are incorporated now in the
FISA law as a result of P.L. 110-55 are dramatically different
from earlier and other minimization procedures.
They are essentially just a sham. There is virtually no way
that a court, even with the limits of review that it now has in
this category of communication, could do anything more than
simply pass judgment on whether the Government has made a
clearly erroneous decision that somebody--that one of the
parties is located overseas.
Ms. Wasserman Schultz. I mean, and for those that would
think that my question is an over simplification or is not
reasonable to suspect that the Government might surveil that
kind of communication, we do have Iraqi children blowing
themselves up.
So I mean, there is a use of children in an entirely
inappropriate and unacceptable way in that country and in other
countries.
So it is not unreasonable to suspect or worry that innocent
communications could be surveilled because of the difference in
values or--well, values would be the best way to describe it,
with how children are treated in other countries--some other
countries versus ours.
And thank you for your comment.
And, Ms. Spaulding?
Ms. Spaulding. I think the example you gave is appropriate,
and I would point out that by the example you gave, if the
Government is targeting that Iraqi child and not your child,
that they don't even have to be discussing foreign
intelligence----
Ms. Wasserman Schultz. Right.
Ms. Spaulding [continuing]. That, in fact, it is simply
taken entirely out of the definition of electronic
surveillance. The only requirement is that the target be
overseas.
Ms. Wasserman Schultz. And the reason that I brought up
this example is because it really--this is an insidious law,
and it would be really--I have just been sitting here over the
3 hours thinking it would be really hard for most of our
constituents, as individual Members of Congress, listening to
this hearing, to grasp a lot of what we are talking about.
And not that we don't have smart constituents, we do, but
you know, if you don't have a law degree, it is hard to follow
what we are saying and apply it to your everyday situation and
wonder and worry how the law that we changed in July would
potentially impact you.
So I asked that question because I wanted to use an example
of how an average, everyday person, not even an adult, but a
kid could be impacted by this insidious law.
And, Professor Turner, I assume you will not agree with my
characterization, so I would love to hear your opinion.
Mr. Turner. I think it is a good question. I think the
Supreme Court has told us in these kinds of cases your daughter
has fourth amendment rights.
And in assessing the degree to which the Government can
search--you know, can intrude upon your privacy, if you will,
we balance the two interests. The strongest governmental
interest of all is national security, protecting--preventing
the next 9/11.
Now obviously, NSA doesn't have enough people to sit there
and read the billions of e-mails that flow back and forth.
Presumably--and I have been out of the business 23 years, so I
don't know anything classified anymore.
But presumably, they have computer programs that scan e-
mails and say who is talking to bin Laden, who is talking to
here, who is using the words ``blow up America'' or whatever,
and then maybe somebody looks at that, and so it is possible--
--
Ms. Wasserman Schultz. But, Professor----
Mr. Turner [continuing]. That somebody would spend 10
seconds scanning at your daughter's e-mail and trying to find
the one that--the odds are good that would go through with no
trouble at all.
Ms. Wasserman Schultz. But my time has expired, but----
Mr. Turner. Go ahead.
Ms. Wasserman Schultz [continuing]. But kids use terms like
that. Kids don't----
Mr. Turner. I know.
Ms. Wasserman Schultz [continuing]. I mean, kids talk about
blow up and use----
Mr. Turner. I know that, and----
Ms. Wasserman Schultz. They use extreme words.
Mr. Turner [continuing]. It is possible they might see
that, and it would take them 2 or 3 seconds to say kids,
ignore, and then minimization procedures would say protect her
name, nothing goes to anybody on this, and the record gets
destroyed.
And the question is is it so important when we are trying
to find terrorists--you know, is this so offensive to her that
somebody might look at this--I mean, every time we do a
fingerprint search, Government computers search my fingerprint
records.
They have got at least 10 copies. I was an Eagle Scout, and
I sent them myself back in the 1950's, and then every security
clearance they get a new set. You know, that is not, in my
view, a violation of my privacy, the fact they have a computer
scan through that.
The fact that NSA scans telephone records to find out what
members are talking to terrorists--they probably scan my
number. That is such a minor violation of any right I may have.
It doesn't bother me in the least.
Ms. Wasserman Schultz. But you are using words like
``hopefully'' and ``probably.'' And the point is that without--
--
Mr. Turner. Well, here is the key.
Ms. Wasserman Schultz [continuing]. A court review, we
really don't know.
Mr. Turner. The alternative is if we say we don't want our
Government seeing any e-mails that have U.S. persons on them
without a warrant, what that means is bin Laden, every e-mail
he sends he is going to copy some American person.
Maybe the way he will do it, the subject line will be
``cheap Mexico Viagra,'' two pages of gibberish, and then pick
up the explosives here and take them to the Capitol building.
Mr. Barr. With all due respect----
Mr. Turner. If we say we have to have a warrant, we can't
read that.
Mr. Barr [continuing]. That is a red herring. We are not
talking about Osama bin Laden here.
Ms. Wasserman Schultz. Right.
Mr. Barr. If the Government knows where Osama bin Laden is
if he is talking on the phone, one would hope they would do
something about it rather than listen in.
Mr. Turner. But if we say they can't look at anything that
has got U.S. person without a warrant, we are going to give him
the easiest way to immunize his whole communication system.
Ms. Wasserman Schultz. And a court review would resolve
that. That is my point.
Mr. Turner. In each case, you mean. Are we going to have
the people--you know, what if----
Ms. Wasserman Schultz. As the Chairman said, Professor
Turner, a court review has never and would never stop the
actual surveillance from occurring.
Mr. Turner. Well, the old rule is if it is legal to
intercept, say, a drug dealer, you know, who we have gotten a
warrant for, we can listen to people who talk to him.
As soon as we find out they are unrelated to a drug deal,
we erase it, but we can listen to it. And if they say, ``I am
calling to buy drugs,'' we can use it to prosecute them.
In the same way, it is perfectly legitimate to target bin
Laden and probably to target just about any other foreign
national we feel the need to do, and that means there is
probably no reasonable expectation of privacy when you
communicate.
But the reality is we don't have the time or the interest,
you know, to read communications between little girls. That is
to say--remember, NSA is overseen by 100 people in their office
of inspector general.
Ms. Wasserman Schultz. Professor Turner, I want to be
respectful of my colleagues.
Mr. Barr. Is the professor saying----
Mr. Turner [continuing]. There are protections.
Mr. Barr. If I might, is the professor suggesting that
there is no reasonable expectation of privacy in any
communication with a foreign person or somebody outside the
country?
Mr. Turner. The way we test that is to balance interests
and ask whether society is willing to recognize an expectation
of privacy----
Mr. Barr. No, that is not the test.
Mr. Turner [continuing]. In each case.
Mr. Barr. Is that what you are saying, that you have no
reasonable expectation of privacy if you simply call somebody
or e-mail somebody overseas?
Mr. Turner. If you are commissioning with someone who the
Government has reason to believe is a foreign terrorist----
Mr. Barr. No, that isn't what I said.
Mr. Turner [continuing]. I don't think anyone should have
an expectation----
Mr. Davis. Mr. Chairman, could I ask the witnesses to yield
to the Members?
Mr. Turner. Sorry.
Ms. Wasserman Schultz. I was enjoying it, Mr. Chairman, so
it is perfectly okay with me.
Mr. Turner. Former Member.
Mr. Conyers. I am not sure if we can accommodate the
gentlemen.
Ms. Wasserman Schultz. I really appreciate my colleagues'
indulgence.
And, Professor, my point is that this very discussion that
we have been having for the last few minutes literally points
out that the changes we made cry out for reform and that we
cannot cast aside people's constitutional rights.
Mr. Turner. But if there is no way to distinguish----
Ms. Wasserman Schultz. I think my time has expired.
Mr. Turner. If there is no way to distinguish, you are
saying we shouldn't listen to the terrorists because we might
pick up a communication involving a young American school girl.
That is the issue.
Ms. Wasserman Schultz. No. The issue is that we have a lot
of innocent communication that we are capturing unreasonably
and unconstitutionally and that the law should be reformed so
that we don't do that, and people don't have to sit and wonder
whether the Government is listening to them for no good reason.
And I appreciate it, and my time has expired.
Mr. Conyers. Hank Johnson, Georgia?
Mr. Johnson. Thank you, Mr. Chairman.
And I would note for the record that my kids would, from
time to time, place in an e-mail the fact that new Jay-Z is
``blowing up,'' and so I guess that they would trigger a review
of their e-mails.
But I am concerned about the interview that Director of
National Intelligence Mike McConnell gave to the El Paso times,
and you alluded to that interview, Congressman Barr, and you
mentioned that Mr. McConnell stated that if we continue to
debate this issue in Congress, then Americans are going to die.
And you were attacked in this hearing for alluding to that
statement. And I have a copy of the transcript of the interview
with Mr. McConnell, and I will just read that part for the
record.
The question says, ``So you are saying that the reporting
and the debate in Congress means that some Americans are going
to die?'' The answer, ``That is what I mean, because we have
made it so public. We used to do these things very differently,
but for whatever reason, you know, it is the democratic
process, and sunshine is a good thing.''
And so he definitely said that if Congress continues to
discuss this then Americans are going to die.
And, Ms. Spaulding, I want to ask you, as a former CIA
official and former executive director of the National
Commission on Terrorism, can you tell us what your concerns
would be about that statement that Mr. McConnell made in the
context of the passage of this law that we are talking about
today, the amendment to FISA?
Ms. Spaulding. I think it is a most unfortunate comment on
the part of Director McConnell. And we have discussed
previously today the importance, not just to our civil
liberties, but to our national security of having an open and
robust and informed public discussion and debate.
The thing that I think is so tragic about comments like
that of Director McConnell is that it does seem to reflect a
fundamental lack of faith in the strength of our democratic
system.
And I think it is important to remember, to always keep in
mind, that this system of checks and balances was not created
by a bunch of fuzzy-headed liberals.
This was a system that was created by hard-nosed
pragmatists who had just fought a war and faced a time of great
peril.
Mr. Johnson. These are the same----
Ms. Spaulding. This was the way to keep the country strong.
Mr. Johnson [continuing]. Same founding fathers that have
been cited repeatedly by Professor Turner.
And, Professor Turner, you would agree that our
Constitutional sets up a separation of powers between the three
branches of Government--presidential, legislative and
judicial--correct? You would agree?
Mr. Turner. I would agree, but some of those powers are not
checked.
Mr. Johnson. Well, no, no, you would agree----
Mr. Turner. That is to say, pardon power, for example, is
unchecked.
Mr. Johnson. Well, listen to my question, now. And you
answered--you agreed that we set up a separation of powers.
Mr. Turner. With some checks.
Mr. Johnson. And then one of the things that makes that
separation so important is because the three branches are co-
equal, are they not?
Mr. Turner. Well, they are co-equal, but they also----
Mr. Johnson. Thank you.
Mr. Turner [continuing]. Have their own powers that are
independent of the others.
Mr. Johnson. That is true. They are separate--separation of
powers--co-equal. And the thing that gives substance to this
co-equality is the concept of checks and balances.
Would you agree to that, Congressman Barr?
Mr. Barr. I would certainly agree with that.
Mr. Johnson. And, Congressman Barr, how can there be a
check and balance on the executive branch if there is no
judicial oversight or legislative input into an executive
function?
Mr. Barr. It creates a nullity. There is none.
Mr. Johnson. What is your response to that, Professor
Turner?
Mr. Turner. It is fairly easy. And I document it briefly in
my testimony. In the area of foreign affairs, the founding
fathers, the people you are talking about----
Mr. Johnson. So you are saying that there is no check and
balance----
Mr. Turner. Well, to give you one example----
Mr. Johnson [continuing]. In foreign affairs?
Mr. Turner [continuing]. Three days after Jefferson wrote
his memo----
Mr. Johnson. Is that true or is that false? No check and
balance----
Mr. Turner. There are some checks.
Mr. Johnson [continuing]. In the President's conduct of
foreign affairs?
Mr. Turner. In Jefferson's memo, he said subject to the
negatives given to the Senate. For example, the Senate can
block an ambassadorial nominee. The Senate can block a treaty.
The House, for example, in the----
Mr. Johnson. Well, we understand that, but we----
Mr. Turner [continuing]. The House clearly can control
that.
Mr. Johnson. I understand. And you have kind of graced us
with a historical perspective as we have gone through this
hearing, and I appreciate that. But my time is----
Mr. Turner. Okay.
Mr. Johnson [continuing]. Running.
I did want to ask Mr. Barr, Congressman, if two Americans
in the United States each sent--well, let me ask this question.
If there was an American soldier in Iraq that sent an e-
mail to his girlfriend here in the United States, then under
this new FISA act that communication can be monitored because
it concerns a person who is outside of the United States. Is
that correct?
Mr. Barr. That is correct.
Mr. Johnson. And there is no need for a warrant?
Mr. Barr. That is correct, too.
Mr. Johnson. No judicial oversight is called for?
Mr. Barr. Correct.
Mr. Johnson. And that can be for a student who may be over
in England somewhere and communicate back with a phone call to
their parents. That phone call can be monitored.
Mr. Barr. That is correct.
Mr. Johnson. A doctor who is traveling overseas may call a
patient here in the U.S., and that phone call can be monitored.
Mr. Barr. That is correct.
Mr. Johnson. That e-mail correspondence can be monitored.
Mr. Barr. Correct.
Mr. Johnson. And, Ms. Spaulding and Mr. Halperin, isn't it
a fact that this new act would allow for the physical search of
premises inside of the United States if it concerns a person
located outside the United States?
Ms. Spaulding. There are several criteria. For this, it
would be under 105(b). And it has to concern a person outside
the United States.
As I read it, it has to require the assistance of someone
to gain access to a communication, which I can only assume the
Government meant and was focused on electronic surveillance,
but the language is unfortunate because it, as I have pointed
out----
Mr. Johnson. Overly broad.
Ms. Spaulding [continuing]. In my testimony, is much, much
broader.
Mr. Johnson. Yes.
Ms. Spaulding. But yes, assuming that it fit that fact
pattern, the Government would be able to, because of the
``notwithstanding any other law,'' use this authority to
conduct a physical search.
Mr. Johnson. Thank you. I would----
Mr. Halperin. Can I just--Mr. Johnson, I don't think that
that is correct, because the provision also says that it cannot
be electronic surveillance. And I think the interception of the
e-mail would be electronic surveillance.
But I think the important point is that this statute uses a
whole set of new words. The ``notwithstanding'' language
doesn't appear anyplace else. The ``directed at'' rather than
``targeted at'' doesn't appear anyplace else.
The ``concerning a person overseas'' doesn't appear
anywhere else in the statute. And nobody has any idea what
those words were intended to mean or what a court will
interpret them to mean or what the Attorney General now thinks
they mean.
And that is not a way to legislate when it involves the
constitutional rights of Americans.
Mr. Johnson. Well, I agree, and I have confidence that
under the oversight of this Chairman of this Committee we will
consider legislation to amend this act and to correct these
deficiencies.
And I want to applaud the Chairman for holding this hearing
today. Thank you.
Mr. Conyers. Thank you, Judge Johnson.
I am pleased now to recognize Betty Sutton of New York.
Ms. Sutton. Ohio.
Mr. Conyers. Ohio, I am sorry.
Ms. Sutton. Love New York, but love my constituents in
Ohio.
Mr. Conyers. Excuse me.
Ms. Sutton. That is okay. Mr. Chairman, thank you very,
very much.
And thank you to the panelists for your testimony. It has
been quite incredible to sit here and listen and take it all
in.
I am taken by the testimony referencing the importance of
the changes--words matter--words matter--the changes in the
terms and the language that we find in this new act.
And I think that it is only heightened--the importance of
those changes is heightened when we see some of the other
things that we have heard discussed today here about the
interview that Mr. McConnell has given.
And certainly, to characterize, I guess, carefully,
suggestions that to have a discussion about this is in and of
itself threatening to our security--I find that to be a very
dangerous place for us in this country to be.
I would like to just begin--Mr. Turner, if you could just
answer a question for me so that I understand where you are
coming from.
Do you think that a warrantless interception of domestic-
to-domestic mail by our Government on a belief that it concerns
foreign intelligence does not violate the fourth amendment?
Mr. Turner. The Supreme Court has left that open. The
courts that have considered it--if the purpose is foreign
intelligence--you know, the distinction the courts have drawn--
the Supreme Court has said if it is a terrorist issue and the
threat is not tied to a foreign power, it is--you know, it
absolutely requires a warrant in every situation.
If it involves a foreign power, the Supreme Court punted.
As I discussed--I actually discuss that case--we know how the
judges favor, because one of the clerks has written about it,
and it is fairly clear to me that had the Keith case been a
foreign power case they would have gone the other way on it.
We know that Lewis Powell, who had been president of the
American Bar Association, had set up and sat on this Committee
that looked at this--had said that foreign intelligence
wiretaps are part of an exception to the fourth amendment. You
know, you can do it.
Now, the key to this is, again, if you wind up picking up--
and it doesn't involve a terrorist threat or foreign
intelligence, you need procedures to make sure that the privacy
rights are protected. You know, we have been doing this for 30
years.
You need to make sure that any names of Americans and so
forth are deleted, any communications about it--even if it has
foreign intelligence value, you normally take the names of
Americans out, unless they are terrorists or something like
that.
But I think this is an issue--every court to decide it has
said yes, the President has independent constitutional
authority to engage in foreign intelligence wiretaps.
You know, again, we have got all sorts of supervision
within the system for abuse. If the President were to say,
``NSA, give me every conversation you can get from Ted Kennedy
because he traveled to England and there is some foreign
terrorists there,'' this would be in the Washington Post within
an hour, probably, because there are 100 overseers just in the
I.G. shop.
There are many people. And the people in the community
don't want to violate the law. So this is not like it was in
the 1960's. We have all kinds of internal checks.
Anybody in the intelligence community who believes
something improper or illegal is being done can go directly to
my old job. My job was to sit in the White House and try to
make sure that all of the laws, including FISA, were being
obeyed.
And although I thought it was unconstitutional, I said we
are--you know, this is the law. We can challenge it but it will
be obeyed. And we did obey it.
Go ahead, sorry.
Ms. Sutton. Mr. Turner, I just--my question was, I think,
much, much narrower than your response, and I am not really
sure--maybe you were answering it, and I just didn't catch it.
Okay. So your answer is you don't know. It may be that----
Mr. Turner. Yes.
Ms. Sutton [continuing]. A warrantless interception of
domestic-to-domestic communication like that on the--because a
belief that it concerns foreign intelligence may violate the
fourth amendment, so something that provided for that may
violate the fourth amendment.
Mr. Turner. The only exception would involve foreign
intelligence, and there we don't know. The Supreme Court has
not ruled it. But if it did not involve foreign intelligence,
it would require a warrant.
Ms. Sutton. Okay. Thank you. Thank you, Mr. Turner.
I also just want to go back real quickly to Mr. McConnell's
claim and some of the statements that he has made,
specifically, the claim that 100 or less Americans have been
targeted for surveillance.
First, at the same time that the Administration refuses to
provide information on surveillance programs to Congress
because it is classified, they seem to be selectively releasing
classified information when they think it will help their
position.
And that is a great concern to me. And for all the reasons
that you all have articulated here today, I think it is
concerning for the public and the trust of the public.
Second, that 100 or less number tells us absolutely nothing
about the bigger and more disturbing question of how many
Americans have had their phone calls listened to whether they
were targeted or not.
Mr. Halperin, could you just tell me what you think about,
you know, those concerns?
Mr. Halperin. Well, I think they are real, but I think they
are very hard questions. And I think the only way to resolve
what to do here is through serious good faith negotiations
between the Committees of jurisdiction and the executive
branch. And that is not what happened here.
I think on the one hand it is very easy. If it is a
conversation between two Americans, you need a warrant based on
probable cause.
If it is two foreigners talking to each other, you don't
need a warrant, and even though the conversation runs through
the United States, I think Congress should and would give the
authority to do it.
The hard question, as you say, is you are targeting
somebody abroad who you reasonably believe is not only abroad
but is a terrorist--you are trying to collect terrorist
information--and then they have conversations with Americans.
And the question is--and you have allowed the surveillance
to go on without an individual warrant. Because if you get an
individual warrant on bin Laden, for example, then it doesn't
matter how many Americans he talks to.
You can listen to all of those conversations. You have to
minimize the distribution of information about the Americans,
unless it is necessary to understand the conversation. But that
is all well understood.
The problem comes because the executive branch wants the
authority to listen to these calls without a warrant or with a
generalized warrant that says you can listen to all the calls,
and then what happens if there are a lot of Americans?
And that is why I thought the direction that the Democrats
were going in, and others in the Congress, which was to say the
court has to be notified, the Congress has to be notified, of
how many calls of Americans you are picking up on this
particular surveillance--and at some point, if it is a
significant number, then you have got to go back to the court
and get a different kind of warrant.
That seems to me a reasonable balance that doesn't
interfere with anything that the director said he needed to be
able to do. And I think what we never got, as far as I can
tell, was an explanation from the director as to why that was
not okay.
What we got was it is not okay, and if you don't pass this,
you are going to be responsible for the next terrorist attack.
What I think was the responsible answer was let me explain
to you why that is too tightly written, or needs some more
flexibility, or some greater time limits on it. But that has to
be the way you solve the problem.
And the Administration, I think, has to be forced to
engage, even if you say we are not extending this unless it
does, to answering that question in a precise and serious way.
Ms. Sutton. Thank you very much, Mr. Halperin.
Mr. Conyers. Thank you very much.
The Chair recognizes the former assistant U.S. attorney
from Alabama, Artur Davis.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Turner, Professor Turner, let me begin with you in the
limited time that I have today. One of the reasons why I think
you have run into so much skepticism from this side of the
aisle is there is an inherent contradiction that I want to
point out to you.
On one hand, you, I think pretty accurately, describe the
Administration's position on its authority. You describe an
executive who essentially has untrammeled authority with
respect to national security, and national security is
essentially whatever the President decides it is.
You have said that several times. I think that it is a
reasonably good summary of what the Administration has said in
its pleadings.
So on the one hand, you have a very expansive view, and
then when you talk about how this statute is going to be
administered, all of a sudden you suggest that this
Administration, which has such an expansive view of its power,
is going to all of a sudden become very restrained.
You suggest, for example, that an Administration, this
Administration, as it carries out this statute will take
special care to make sure that it doesn't cross particular
lines.
You suggest that the Administration will take special care
to make sure that there is the strongest minimization process
that we can contemplate. Those two don't work together.
And I say that, and my perspective is a little bit unique,
Professor Turner, because I am the only person on this side of
the aisle who is here today who actually voted for the bill
that passed the House.
So as someone who agrees with more of what Dan Lungren said
substantively than not, I am still troubled by a lot of what I
have heard today. I am troubled by this expansive portrait of
an executive and this theory that somehow that same executive
will turn around and be restrained.
What I worried most about when I cast this vote was the
following, that the Bush administration has no history
whatsoever of executive restraint.
I cast the vote I did for one simple reason. After January
20th, 2009 there will be a different person in the White House.
And I trust that the next person, frankly, will be much wiser
in the use of those powers.
The next observation that I want to make is this one.
Several times today you made the correct point that our country
is facing an extreme threat. Several times today you made the
correct point that these are unusual circumstances and they
demand unusual measures.
But I want you to be cognizant of something else. What has
made it near impossible to assemble bipartisan consensus around
these issues is the following.
For the last 6 years, a lot of people on your side of these
issues, frankly, on the President's side of these issues, have
taken the position that if you don't agree that somehow you are
not sufficiently zealous in your concern for American security.
On numerous occasions, the Administration has taken the
position that, as the President famously said in 2004, you are
either for us or you are for the terrorists.
The consequence of that kind of rhetoric is what you have
now, a sharp partisan divide that very few of us cross, over
issues that 6 years ago commanded a broad consensus.
The Patriot Act passed this House with an overwhelming
vote. The reason every single subsequent vote on the boundaries
of the fourth amendment--the reason they have all lost their
bipartisan character is largely because of the rhetoric of the
Administration, and this rhetoric that suggests you have got to
pick or choose, and if you don't follow this particular line
you are not zealous enough about national security.
I don't buy that. As someone who voted with the
Administration on this issue, I don't buy that. And it leads to
my last observation.
If the Administration abuses this power, if the
Administration takes this latest grant of authority and they
treat it as cavalierly as they have treated the Patriot Act, or
as cavalierly as they treated the authorization to go into
Iraq, or as cavalierly as they have interpreted the
authorization for force in Afghanistan, then I think I can
safely represent to this entire panel and to the
Administration, if it is listening to this, that it will be
literally impossible to construct a bipartisan consensus around
these issues.
We are down to 41 Democrats who crossed party lines in this
last vote. If this authority is pushed in the way this
Administration is eminently capable of pushing it, that number
will shrink to nothing.
And that will be a cost not just on this particular term
and this particular space in the political universe, but it
will have a long-term cost on the relationship between the
executive and the legislative.
And I will yield back, Mr. Chairman.
Mr. Conyers. Thank you so much.
Mr. Barr, Attorney Spaulding, Dr. Turner, Mr. Halperin,
your contribution really can't be appreciated sufficiently with
words. And your endurance should also be taken note of as we
conclude this hearing.
It has been an important way to begin the reexamination of
FISA, and you have made the Committee and the Congress very
proud of how we have put together our first record.
We thank you again and, of course, all the Members for
their contributions.
The Committee stands adjourned.
[Whereupon, at 1:38 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Committee on the
Judiciary
Senate bill S. 1927, the ``Protect America Act of 2007''
CRS Report for Congress entitled ``P.O. 110-55, the Protect American
Act of 2007: Modifications to the Foreign Intelligence Surveillance
Act,'' August 23, 2007
Letter from Denise A. Cardman, Acting Director, American Bar
Association (ABA), dated September 14, 2007, to Chairman John Conyers,
Jr., and Ranking Member Lamar S. Smith
Report of the Task Force on Domestic Surveillance in the Fight Against
Terrorism, the American Bar Association (ABA), February 13, 2006
Letter from John W. Whitehead, Founder and President, The Rutherford
Institute, dated September 7, 2007, to Chairman John Conyers, Jr.
Prepared Statement of Caroline Frederickson, Director, Washington
Legislative Office, American Civil Liberties Union (ACLU)