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. DEBBIE WASSERMAN SCHULTZ (D-FL): I 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 the discussion that's gone on here today -- I am not an attorney.
And that's not an apology; it's just a fact. And so because we have spent a lot of time speaking at a very high level in very constitutional terms and very legal terms, I want to ask my question 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. (Laughs.)
MR. BARR: It's a privilege I share with you. I enjoy it.
REP. 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'd 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 of foreign affair -- related to the foreign affairs of the United States. That 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 a concern?
MR. BARR: It's 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 limited 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.
REP. WASSERMAN SCHULTZ: And for those that would think that my question is an oversimplification 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 are -- 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 surveiled 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 --
REP. WASSERMAN SCHULTZ: Right.
MS. SPAULDING: -- that in fact it's simply taken entirely out of the definition of electronic surveillance. The only requirement is that the target be overseas.
REP. 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've just been sitting here over the three 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're talking about. And not that we don't have smart constituents, we do, but, you know, if you have -- if you don't have a law degree, it is hard to follow what we're 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 his insidious law.
And Professor Turner, I assume you will not agree with my characterization so I'd love to hear your opinion.
MR. TURNER: I think it's 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 her privacy, if you will, we balance the two interests -- the strongest governmental interest of all is national security, 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 -- I've been out of that business for 23 years so I don't know anything classified anymore, but presumably they have computer programs that scan e-mails and say who's talking to bin Laden, who's talking to here, who's using the words "blow up America" or whatever, and then maybe somebody looks at that.
And so it is possible --
REP. WASSERMAN SCHULTZ: But Professor --
MR. TURNER: -- that somebody would spend 10 seconds scanning your daughter's e-mail and trying to find one that -- the odds are good that would go through with no trouble at all.
REP. WASSERMAN SCHULTZ: But my time's expired, but --
MR. TURNER: Go ahead.
REP. WASSERMAN SCHULTZ: -- but kids use terms like that.
MR. TURNER: I know.
REP. WASSERMAN SCHULTZ: Kids don't -- I mean, kids talk about blow up and use --
MR. TURNER: I know that.
REP. WASSERMAN SCHULTZ: They use extreme words
MR. TURNER: It's possible they might see that and it would take them two or three 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're trying to find terrorists or, 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've got at least 10 copies.
I was an Eagle Scout and I sent them myself back in the '50s and every security clearance they get a new set. You know that's 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 numbers are talking to terrorists, they probably scan my number -- that's such a minor violation of any right I may have, it doesn't bother --
REP. WASSERMAN SCHULTZ: But you're using words like hopefully and probably, and the point is, without a court review, we 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's going to copy some American person. Maybe the way he'll do it, the subject line will be "Cheap Mexican 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, that's a red herring. We're not talking about Osama bin Laden here. If the government knows where Osama bin Laden is and he's talking on the phone, one would hope they would do something about it rather than listen in.
MR. TURNER: But if you say (we ?) can't look at anything that's got U.S. person without a warrant, we're going to give him the easiest way to immunize his whole communications system.
REP. WASSERMAN SCHULTZ: And a court review would resolve that. That's my point.
MR. TURNER: In each case, you mean? Are we going to have the people -- you know, what if he -- what if --
REP. WASSERMAN SCHULTZ: As has been 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's legal to intercept, say, a drug dealer, you know, who we've gotten a warrant for, we can listen to people who talk to him. As soon as we find out they're unrelated to a drug deal, we erase it. But we can listen to it, and if they say I'm calling to buy drugs, we can use it to prosecute them.
In the same way, it's 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's 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.
REP. WASSERMAN SCHULTZ: Dr. Turner, I want to be responsible to my colleagues.
MR. BARR: Is what you're saying --
MR. TURNER: (Inaudible) -- too. There are protections.
MR. BARR: If I might, is the professor suggesting that there's 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's not the test. Is that what you're saying, that there's -- you have no reasonable expectation of privacy if you simply call somebody or e-mail somebody overseas?
MR. TURNER: If you are communicating with someone who the government has reason to believe is --
MR. BARR: That isn't what I said.
MR. TURNER: I don't think anyone should have an expectation.
REP. : Mr. Chairman, could I ask the witnesses to yield to the members?
MR. TURNER: Sorry.
REP. WASSERMAN SCHULTZ: I was enjoying it, Mr. Chairman, so it was perfectly okay with me. And I -- (laughs) --
REP. CONYERS: I'm not sure we can accommodate the gentleman.
REP. WASSERMAN SCHULTZ: I really appreciate my colleagues' indulgence.
And Professor, my point is is that this very discussion that we've 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's no way to distinguish --
REP. WASSERMAN SCHULTZ: I think my time's expired.
MR. TURNER: If there's no way to distinguish -- you're saying we shouldn't listen to the terrorists because we might pick up a communication involving a young American schoolgirl? That's the issue.
REP. 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.
I appreciate it, and my time has expired.
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