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COPYRIGHT 2006 Congressional Quarterly, Inc.
Original Source: Political Transcript Wire
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NSA'S SURVEILLANCE AUTHORITY
FEBRUARY 28, 2006
SPEAKERS: U.S. SENATOR ARLEN SPECTER (R-PA)
CHAIRMAN U.S. SENATOR ORRIN G. HATCH (R-UT) U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ) U.S. SENATOR MIKE DEWINE (R-OH) U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC) U.S. SENATOR JOHN CORNYN (R-TX) U.S. SENATOR SAM BROWNBACK (R-KS) U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE) U.S. SENATOR HERBERT KOHL (D-WI) U.S. SENATOR DIANNE FEINSTEIN (D-CA) U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY) U.S. SENATOR RICHARD J. DURBIN (D-IL)
WITNESSES: JAMES WOOLSEY, FORMER CIA DIRECTOR
HAROLD HONGJU KOH, DEAN, YALE LAW SCHOOL
KEN GORMLEY, ASSOCIATE PROFESSOR OF CONSTITUTIONAL LAW, DUQUESNE UNIVERSITY SCHOOL OF LAW
DOUG KMIEC, PROFESSOR, PEPPERDINE UNIVERSITY SCHOOL OF LAW
BRUCE FEIN, ATTORNEY, FEIN & FEIN
ROBERT TURNER, ASSOCIATE DIRECTOR, CENTER FOR NATIONAL SECURITY LAW, UNIVERSITY OF VIRGINIA
ROBERT LEVY, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE
[*] SPECTER: Good morning, ladies and gentlemen. The Senate Judiciary Committee will now proceed with our second hearing on the administration's electronic surveillance program.
It is our practice to start right on time. We have a very distinguished panel of witnesses, and we have a great deal of ground to cover because, this morning, the Patriot Act is on the floor of the United States Senate on a vote to cut off debate.
And that will require the attendance of members of this committee on the floor. So we are targeting a conclusion of this hearing at 11:30. We can run a little over, but not too much.
So we need to start on time and we need to progress with the five-minute statements by each witness and the five-minute rounds of questioning by all the senators.
I have delayed reaching any substantive comment until the arrival of our distinguished ranking member, Senator Leahy.
We will be inquiring, today, about the president's authority to institute the electronic surveillance program. And we will be focusing significantly on the president's inherent power under Article 2 of the United States Constitution.
But we will also take up the issue of the Foreign Intelligence Surveillance Act -- whether the resolution to authorize the use of force on September 14th modifies that statute.
I've already expressed my opinion, that it does not -- for a variety of reasons. But that still leaves open the issue of constitutional authority and if the president has constitutional authority.
As we all know, that trumps the statutory limitation. But there can be electronic surveillance only with a court order.
Legislation has been circulated. We have asked the witnesses to be prepared to comment on it, which would make the Foreign Intelligence Surveillance Court the unit to make a determination of constitutionality.
Notwithstanding the statutory requirements that the Intelligence Committees in full would have access to programs of this sort, this administration and previous administrations have chosen not to utilize the committees because Congress has a well-established record for leaking.
Of course, so does the White House. This town leaks like a sieve, in the vernacular. So the president has been reluctant to take these matters to the Congress, limiting it only to the so-called gang of eight.
The thinking has been that the Foreign Intelligence Surveillance Court has the expertise and has the record for maintaining secrecy and can appropriately be entrusted with the job of making a determination of constitutionality.
And the statute which has been circulated sets forth criteria for the court's determination on the scope of the intrusions, the breadth, the minimization, the results.
There has been some concern as to whether there is a general warrant involved here. We think the authorities are strong, but it is not. There has been concern as to whether there is an advisory opinion here. And we think the authorities, again, are strong that it is not an advisory opinion in derogation of the case-in-controversy clause of the United States Constitution. When judges of the Foreign Intelligence Surveillance Court are asked to issue a search warrant, they do so in an ex parte proceeding. That has direct analogy to the kind of a determination we're asking the court to make here on a broader basis for the entire program.
There are other statutory ideas being circulated.
SPECTER: One would involve congressional approval of the program, which seems difficult -- really impossible -- to me, unless we know what the program is. And we do not know what the program is.
But the Foreign Intelligence Surveillance Court has the standing, the expertise and the record for secrecy to make that kind of a determination.
The existence of the president's program was disclosed rather dramatically on Friday morning, December 16th, the day we were in final arguments on the Patriot Act.
It had quite an impact on our discussion that day, and cloture was not invoked -- and a number of senators raised the point that there was special concern about privacy as a result of the disclosure of the administration's program in the context of what the Patriot Act should provide.
We have, since, worked through the issues. I think the chances are good that there will be cloture imposed today -- although you never know what the Senate's going to do until the final vote is tallied.
I've said yesterday on the Senate floor that I would introduce supplementary legislation which would bring back the standards that the Senate bill had -- which passed this committee unanimously and which passed the Senate by unanimous consent.
But we have structured a compromise with the House of Representatives. We have bicameral legislative branches, as we all know. We had very significant compromises reached.
SPECTER: One very important one for the House was sunsetting in four years, which was a concession from 10 to seven.
But my view is we ought to strive for the best bill we can. We have an acceptable bill, in my judgment, on the current state of the record -- but we can improve it.
And this committee, Senator Leahy and I, are committed to have vigorous oversight. The FBI director will be before this committee on March 29th, and we will be asking him all of the tough questions about the provisions of the Patriot Act which were excluded in the conference report.
I'm down to four seconds. I now yield to Senator Leahy.
LEAHY: Thank you, Mr. Chairman. In fact, I'll be co-sponsoring that legislation you just spoke about -- to emphasize that it is a bipartisan effort, as the legislation that originally passed this committee was.
Our hearing today is the second to explore the legality of President Bush's warrantless domestic spying program.
On December 17th, one day after the program was revealed in the New York Times, the president admitted that the administration engaged in secret wiretapping of ordinary Americans without warrants for more than four years -- then, seven weeks later, Attorney General Gonzales came before this committee to talk about this.
Now that testimony of the attorney general was far from complete. It left many important questions unanswered.
As the chief legal officer of the United States, the attorney general is not the president's legal adviser; he's each American people's lawyer. His sworn duty is to uphold the Constitution and the laws enacted by Congress.
So it seemed reasonable to ask him how his Department of Justice will interpret these laws -- how are they interpreting them?
And by starting with legal questions, we weren't asking any operational issues that could implicate national security or would require a closed hearing.
So I asked him a very simple question. It was: When did the administration come up with its current theory that the congressional resolution authorizing the use of force against Al Qaida -- a resolution, incidentally, that says absolutely nothing about wiretapping -- also authorized secret warrantless wiretapping of Americans inside the United States?
He was asked that question consistently and, at every opportunity, the attorney general failed -- he refused to answer what is a basic factual question.
He was asked several times to clarify the scope of the Bush- Cheney administration's legal theory of executive power. If, as they claim, they can ignore the Foreign Intelligence Surveillance Act's express prohibition of warrantless wiretapping, could they also eavesdrop on purely domestic phone calls?
Could they search or electronically bug an American's home or office? Can they comb through Americans' medical records and open first-class mail? Can they suspend the posse comitatus act?
Now these are questions to which I believe Congress, but especially the American people, deserve some answers. And based on his testimony, his persistent refusal to answer responsively, it appears the attorney general has a radically different understanding of the laws than those of who are the people's representatives here in Congress.
He limited his appearance, confirming those facts. The president has publicly confirmed nothing more.
Again, we weren't asking about operational. We were asking: "What's the law? What's the law? You're the attorney general, what's the law?"
In a last-minute change to his prepared testimony, he also followed the path of his predecessor by playing politics on security matters -- hoping to intimidate senators who sought to get the facts.
I think we can confirm that every single member of the United States Senate, Republican and Democrat, are patriots and believe in the security of this country.
Asking questions doesn't mean that we don't believe in the security of our nation. In fact, sometimes in asking questions you might improve the security of Americans.
Senators from both parties took great care to ask straight- forward questions that could be answered without danger to national security:
When did the program begin? How many Americans have had their calls and e-mails intercepted? Has the program led to any arrests? Of these thousands of intercepts, has there been even one arrest? What involvement, if any, has the FISA court had with the program? Why was the program shut down in 2004 and its scope changed?
Once again, we got no answers.
Whatever we asked was either too relevant or not relevant enough. And either way, we're getting no answers from the attorney general.
Now there was one crack in the stone wall that he erected. It has been reported that senior Department of Justice officials concluded in 2004 the president's program was illegal. And backed by former Attorney General Ashcroft, they insisted its scope be narrowed.
So Chairman Specter asked the attorney general whether he objected to his predecessor testifying before the committee on this issue. Attorney General Gonzales said, "I would not."
But then one week later, in a carefully worded about-face, he had an assistant write to the chairman that the administration would not permit any former officials to provide any information to the committee -- and the stone wall went right back up.
Now his conduct has made the administration's position crystal clear. He claims there's no place for congressional or judicial oversight of any of its activities related to national security in the post-9/11 world.
The stone walling, steam rolling, intimidation -- I believe they're running a rough shot over the Constitution. They're hiding behind inflammatory rhetoric, demanding Americans blindly trust their decisions -- whether it's this, our ports or anything else.
And last week, we were reminded again they hold to that position -- even when bipartisan members of Congress raise national security concerns about approval of a deal allowing a government-owned Dubai company to take over major port operations in the United States.
LEAHY: In both cases, this obsessively secretive administration proceeded with actions that they must have known would face strong bipartisan opposition; did so without informing Congress or the American people. They made no attempt to follow specifically expressed federal statutes.
In both cases, the Bush-Cheney administration has responded to congressional oversight efforts with bellicose political threats.
So it's up to the Congress, even though it's controlled by the same party as the White House, to fulfill its constitutional duty of providing the checks and balances by engaging in real oversight -- or it can abdicate that role in deference to the other end of Pennsylvania Avenue.
Now, Chairman Specter has a history of engaging in meaningful bipartisan oversight, and I appreciate his efforts. I'm glad we're having this hearing.
We should know what this hearing is. This hearing will go into some questions. But it is not oversight in the sense that we're asking the administration. There are no former officials who are allowed by the administration to come forward and answer questions.
I think, to get them, we may have to go to subpoenas.
I've gone over my time, Mr. Chairman. I appreciate your courtesy. And I'll put my full statement in the record.
SPECTER: Thank you very much, Senator Leahy.
Senator Kyl, would you care to make an opening statement?
KYL: Mr. Chairman, in view of what I just heard, I'm tempted to -- but I think it's more important for us to hear the witnesses. So I'll defer.
SPECTER: Succinct and well-said. Thank you, Senator Kyl.
(LAUGHTER)
I want to acknowledge especially the work on this committee of Ms. Carolyn Short, our general counsel, who is serving her last day on a 14-month stint.
Ms. Short came here from a very prestigious law firm and a very substantial cut in salary, and has contributed very extensively to this committee -- including the lion's share of the preparation for this hearing today.
We've been joined by the distinguished former chairman of the committee, Senator Hatch. Would you care to make an opening statement?
HATCH: No, Mr. Chairman. I'm just happy to be here. And we want to welcome all of you here. I'm looking forward to hearing what you have to say.
SPECTER: Thank you very much, Senator Hatch.
We've had an issue raised before the committee on swearing witnesses. And after some consideration, the judgment was made that we're going to make it a regular practice, to swear all witnesses.
And in so doing, we won't have any issue as to whether there was any special concern about witnesses or whether any witnesses are being targeted -- we're just going to swear all the witnesses.
And that may not be totally necessary in circumstances where expert opinions are given, but if we have a uniform rule, I think it will facilitate the work of the committee.
So if you'll all rise, I'll administer the oath to you as a group.
Raise your right hands. Do each of you solemnly swear that the evidence and testimony that you give before this committee will be the truth, the whole truth and so help you God?
Thank you all very much.
Our first witness is the distinguished former director of central intelligence, the Honorable James Woolsey. (inaudible) Stanford University with great distinction, Phi Beta Kappa; Oxford University, Yale Law School; managing editor of the Yale Law Journal.
We may be a little heavy with Yale Law representation here today. But we have other distinguished schools represented.
I'm going to make Senator Leahy an honorary Yale Law grad.
(LAUGHTER)
Except he'd probably reject the offer.
SPECTER: Director Woolsey, thank you very much for joining us today, and we look forward to your testimony.
WOOLSEY: Thank you, Mr. Chairman.
SPECTER: Let me repeat that the clock is set at five minutes, and we ask you to adhere to the rules so we can have the maximum amount of time for a dialogue -- questions and answers.
The floor is yours, Director Woolsey.
WOOLSEY: Thank you, Mr. Chairman. It's an honor to be asked to be with you.
Since we're in a war, I would start with the enemy -- and I will summarize briefly the first several pages of my testimony to say that two fanatic, theocratic, totalitarian movements in the Middle East have chosen, in the last few years, to be at war with us -- one from the Shiite side of Islam; one from the Sunni side of Islam.
They are manifested in shifting alliances tactically, in doctrinal differences that can sometimes be submerged in alliances of convenience. They have two somewhat different objectives.
One wishes to kill as many people as possible in order to bring the Madhi back and hopefully have an end of the world as soon as possible. The other would only like to fold us into a caliphate some day that would rule the world under Sharia.
We may shake our heads in puzzlement at these types of objectives. But we've learned with the thousand-year reich and with world communism that we need to take totalitarianism and its views seriously.
Unlike the Cold War, we have a number of assumptions that we have to operate under today that are fundamentally different. Far from fighting a single, rigid empire, our enemies have a host of different relationships with government; containment and deterrence has very little to do with them.
Unlike the Soviets in the Cold War, they are fantastically wealthy from oil. Unlike the Soviets in the Cold War, their ideology is not dead; it is religiously rooted. It's central to their behavior.
Unlike the Cold War, we are not safe behind our shores. The chief strategy for Mr. Ahmadinejad, who is close to Hezbollah, says that he knows of the 29 sensitive sites in the U.S. and the West which he has spied out and is ready to attack in order to, quote, "end Anglo-Saxon civilization."
Unlike the Cold War, our intelligence requirements are not just overseas. We live on the battlefield, and we need to be able to map electronically that battlefield.
Unlike the Cold War, domestic terrorism in this country cannot solely be dealt with by criminal law. It is difficult to understand how one deters, through the criminal law, individuals who want to die themselves while killing thousands of us.
Unlike the Cold War, security can come more into conflict with liberty than we wish would be the case. And unlike the Cold War -- and perhaps most importantly -- the operation of Moore's law over the course of the last two to three decades has fundamentally changed our world.
Throw-away cell phones and Internet Web sites and chat rooms are now available to terrorists. This is no longer 1978 when phones plugged into the wall and the Internet was just a gleam in the eye of a few people at the Defense Advanced Research Projects Agency.
I believe that the inherent authority of the president, under Article 2, under these circumstances, permits the types of intercepts that are being undertaken.
I believe that's true because the country has been invaded -- albeit, of course, not occupied -- and defending against invasion was at the heart of the president's Article 2 authority for the founders.
We run a serious risk of being attacked again. Both bin Laden and Ahmadinejad and Abbasi and, indirectly, Hezbollah have so threatened. The threat from bin Laden is augmented by a fatwah from a Saudi religious leader that threatens the use of nuclear weapons.
Since the battlefield is in part, sadly, here at home, I believe that what we have to do is think very hard about how to have a system that can provide a check and balance against the type of electronic mapping of the battlefield that I believe is necessary.
The one spy at a time surveillance systems of the Cold War, including FISA, through courts, are not designed to deal with fast- moving battlefield electronic mapping -- in which an Al Qaida or a Hezbollah computer might be captured which contains a large number of e-mail addresses and phone numbers which would have to be checked out very promptly.
An attorney general, on the 72-hour basis or a FISA court, simply cannot go through the steps that are set out on pages nine and 10 of my testimony in time to deal with this type of a problem.
In my judgment, oversight is needed.
WOOLSEY: I generally endorse the support that Judge Posner submitted to the Wall Street Journal in an op-ed a couple of weeks ago with one modification, which is in the testimony and which I don't have time to describe.
Thank you, Mr. Chairman.
SPECTER: Thank you. Thank you very much, Director Woolsey.
We now turn to the dean of the Yale Law School, Smith Professor of International Law Dean Harold Koh; summa cum laude graduate of Harvard and cum laude of the law school, Oxford; a clerk to Justice Harry Blackmun.
Thank you very much for coming from New Haven today, Dean Koh, and we look forward to your testimony.
KOH: Thank you, Mr. Chairman and members of the committee.
In my career, I've had the privilege of serving our government in both Republican and Democratic administrations, and I've also sued both Republican and Democratic administrations when I thought their conduct was unlawful.
In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I've seen. And my reasons are given not just in my written testimony, but also in two letters that were sent to you by myself and a number of constitutional law scholars and former government officials; as well as in the ABA task report, for which I served as an adviser.
Now I say this fully aware of the ongoing threat from Al Qaida and the need for law enforcement officials to gather vital information. And of course, in time of war, our Constitution recognizes the president as commander in chief.
But the same Constitution requires that the commander in chief obey the Fourth Amendment, which requires that any government surveillance be reasonable, statutorily authorized, supported except in emergencies by court-ordered warrants, and based on probable cause.
The current NSA program is blatantly illegal because it lacks all of these standards. And the Supreme Court has never upheld such a sweeping, unchecked power of government to invade the privacy of Americans without individualized suspicion, congressional authorization or judicial oversight.
For nearly 30 years, the FISA, the Foreign Intelligence Surveillance Act, has provided a comprehensive, constitutional and -- using its words -- exclusive framework for electronic surveillance.
Under FISA, executive officials can conduct electronic surveillance of Americans, but they can do so without a warrant for only three days or, in case of wartime, for 15 days after a declaration of war.
After that, they must either go to the special court for an order or come to Congress for an amendment -- or stand in violation of the criminal law.
This was based on a simple logic: Before the president launches...
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