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. MAXINE WATERS (D-CA): 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're 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 5th, 2007.

And I know that Congress is a very complicated place and that oftentimes 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's temporary.

And I'm so glad, Mr. Chairman, that you are revisiting this as quickly as it 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's 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'm also pleased to hear the professor here today because I know now why I'm 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 can 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 a vast number 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, according to General Haig, nothing that 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 -- specifically, 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. And of course in those days there was only a telephone company so 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'll do it on Martin Luther King Jr., he'll do it on steel company executives, he'll do it on government officials, he'll do it on newspapermen, 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 and 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.

REP. WATERS: (Tell me more about ?) -- (inaudible) -- the trust of your government once you have been violated in the way that you have described? Are you forever looking over your shoulder? Are you 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's why I thought that FISA was so important. I devoted much of my time for three or four 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 surveiled without a warrant.

And after 9/11 when people said to me, "I'll bet they're listening in again to our conversations without a warrant," I said what the president said: they can't do that. The court -- 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 and what it did in a way that people could understand.

And as I've 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 that we all knew what the rules were and we all knew that the rules would be enforced.

And I think Congress has to re-establish that system of trust and it can do so in a way that gives the director of National Intelligence access to the phone calls that he should be able to listen to.

REP. WATERS: Thank you very much, Mr. Chairman.

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