Hearing of the House Committee on the Judiciary - Warrantless Surveillance and the Foreign Intelligence Surveillance Act
Statement
HEARING OF THE HOUSE COMMITTEE ON THE JUDICIARY
SUBJECT: WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
CHAIRED BY: REP. JOHN CONYERS (D-MI)
WITNESSES: BOB BARR, FORMER U.S. HOUSE REP.; SUZANNE SPAULDING, FORMER CIA ASSISTANT GENERAL COUNSEL; PROFESSOR ROBERT TURNER, UNIVERSITY OF VIRGINIA LAW SCHOOL; MORT HALPERIN, OPEN SOCIETY INSTITUTE
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REP. JERROLD NADLER (D-NY): Thank you.
I'd like to thank Chairman Conyers for his leadership in holding this hearing today.
This hearing's an important first step in examining the serious concerns regarding the recently enacted White House proposal to aggressively 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 responses to abuses by governments 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's committee report on surveillance abuses to reflect 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 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 in the final hours before the August recess, we were stampeded by administration fear mongering and deception into signing away our rights. Thank God there's a six-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, quote, "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 -- (inaudible) --
REP. CONYERS: The gentleman's time is --
REP. NADLER: -- Conyers (and Reyes ?) --
REP. CONYERS: -- nearly expired.
REP. NADLER: -- as we work with leadership to restore our freedoms that define America. I thank you.
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REP. CONYERS: Chairman Jerrold Nadler.
REP. NADLER: Thank you, Mr. Chairman.
Congressman Barr, I'd like you to ask (sic) a couple of questions about Ms. Spaulding's testimony. She writes that, "Section 105B provides authority for the AG 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 -- as the letter discussed, at least in part, discussed -- someone outside the U.S. Do you agree with that?
MR. BARR: I think that is an accurate reading of the section 105B.
REP. NADLER: Thank you.
She also says, "It would appear the AG could authorize the physical search of your home to find the letter from your son overseas or the family computer on which you stored his e-mails."
Do you think that that's a reasonable reading of the statute?
MR. BARR: I do.
REP. NADLER: And -- okay, thank you very much.
Ms. Spaulding, you talk about the provisions immunizing the telecommunications companies from liability. We're being asked very insistently by the administration to enact legislation now to immunize the telecommunications companies retroactively from any liability for the last five 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 assistance -- 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's okay," sends a very strong signal undermining our respect for the rule of law.
REP. NADLER: Let me ask you this: The president 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're not prosecuting them, why shouldn't we let the telecom companies get off scot-free?
MS. SPAULDING: Well, I think that's certainly a fair point. And -- 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 that's all they needed, they need immunity at this point is beyond me.
I also think that they are an important -- given the lack of transparency in this area, they are an important safeguard against government abuse.
REP. NADLER: Well, I must say that since the government is interposing the state secrets defense on any lawsuit against the government for illegal wiretapping, suing the telecom companies might be the only way of getting it to court. And I certainly agree with you. I don't like the abuse of the state secrets document; 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 it to court, and the executive would be completely scot-free to ignore the law without any judicial accountability.
Mr. Halperin?
MR. HALPERIN: Yeah, the problem is the government's 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're 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 --
REP. NADLER: I agree with you. Thank you.
Mr. Turner -- or Professor Turner, I should say -- you have written that as the president's expansive foreign relations powers -- inherent powers -- I'd 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 was spy for al Qaeda could he authorize that individual to be -- could he authorize a burglary of that citizen's house to plant an eavesdropping bug without a wire?
MR. TURNER: It's an interesting question. If the courts 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.
REP. NADLER: And my last question: Could he be permitted in that circumstance to authorize the breaking in to the individual's psychiatrist's office without a warrant to find evidence against him?
MR. TURNER: As I -- I think it's a moot point. As I understand the administration, they are saying they will get warrants --
REP. NADLER: No, no, but, could they under your interpretation of the law?
MR. TURNER: It's an interesting question. I'd really want to think about it. If you want an answer for the record, I'll try to think about it. But it's -- that scenario of the law I don't teach, and the general --
REP. NADLER: Okay. Thank you.
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