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. STEVE COHEN (D-TN): 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 -- in 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 anti-terrorism legislation that was crafted in the wake of the Oklahoma City bombing that did, a number of us across the political spectrum believe, did improperly infringe constitutional rights of our citizens. And at that time, we defeated those. Those did not pass as part of that legislation.

REP. COHEN: What was what -- did anything pass to give additional authority to the government to intercept any conversations or documents of any sort?

MR. BARR: No.

REP. COHEN: Were the proposals ones that were tailored strictly to terrorist activities?

MR. BARR: Some of the proposals went fairly far a-field of the specific focus that we -- 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.

REP. 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.

REP. 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 it appropriately focused legislation that restricts itself to the threat posed by international terrorism could indeed encompass those kinds of threats.

REP. COHEN: Do you have words of art that you could offer to the committee?

MS. SPAULDING: Congressman, I'd be more than happy to work with the committee to try to find the appropriate way to address all of these challenges.

REP. 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 -- sorry.

REP. COHEN: That's all right.

MR. TURNER: Maybe later. Right. I don't know of any but there's no reason I would since all of that is classified.

MR. HALPERIN: The attorney general, I thought, in his testimony did lay out a situation in 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's not in their package anymore. And I don't know how the problem went away, but I think it does need to be fixed.

Thank you.

REP. COHEN: When this bill came up for a 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 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 we 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 Ashworth on his sickbed. And I called on his resignation that night. I am pleased that he's announced his resignation, and I think this committee, because of the hearings the chairman's had, we've seen a hero emerge and that was Mr. Comey. James Comey is an American hero.

And Mr. Chairman, I called in Memphis, Tennessee -- and some of you may know it -- but I believe if the president would appoint James Comey, nominate him as attorney general, we'd feel a lot more comfortable with this law and the laws of this entire country. And he would show that he's putting the country first because he's a hero who will do what's 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.

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