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NSA Hearings, Part IV

LEAHY QUESTIONING: When did Administration come to the conclusion that it could authorize this wiretapping within the US? AG: Occurred subsequent to AUMF and prior to Patriot Act. I can’t give you specific dates. Leahy says AG had to sign off on it – what date did you do that? AG says he won’t answer the question – says it is an operational detail. AG says that they decided they could do this from the outset. Did you tell anyone in Congress that you needed greater extension of FISA? Nope. Anyone on the Judiciary Committee asked for changes or told about the FISA end-run? Nope. Does this allow you to go into people’s medical records in this country? AG says Preznit clearly allowed to do electronic surveillance of the internet. Leahy says you didn’t answer my question. Who told you that you could do this wiretapping – and when did it occur? Intel committee people were consulted some time in 2004? Leahy – oh, so four years after you started doing this? (RH: Nice to know.) Leahy – you found out newspapers had discovered your program, and you came up for some oversight at that point? Does this sound like CYA on your part – you don’t even ask the Judiciary Committee, who has to write the FISA law, for changes? Thank goodness the press is letting us know that this is going on, because your Administration isn’t being straight with us about what you are doing. Did you tell Intelligence Committee about this FISA end-run prior to passage of the Patriot Act? AG: As I recall, we told them shortly after Patriot Act was passed. Does Preznit have authority to wiretap e-mails, phone calls, etc., in this country, if they are involved in suspicious activity? AG not comfortable answering the question. Says not what we are talking about here. Are you doing that under some other program? I’m not going to answer anything to do with operations.

HATCH QUESTIONING: Hatch now steps in to tell AG what he should have answered to Leahy’s questions. Blah blah blah Congress can be mean blah blah blah terrorists are scary, fear them blah blah blah. AG: If AUMF didn’t exist, then it’s a difficult Constitutional question whether or not Congress can limit Presidential actions during a time of war. Hatch brings things up regarding Clinton administration actions re: opinion from Walter Dillinger. (RH: Dillinger is critical of the current NSA spying program, so Hatch is doing some pre-emptive character assassination should Dems call Dellinger to testify or try to use his arguments.) AG: An important component of our argument involves Constitutional avoidance. (RH: See Prof’s notes on this in the Comments.)

FEINSTEIN QUESTIONING: Has response from Jamie Gorelick – called her during the break. Response will be entered into the record.

Now Hatch and Sessions are trying to pretend like they were not attempting to smear Gorelick and the Clinton Administration with the same broad brush.

Feinstein also goes on to discuss statutory requirements for reporting sensitive intelligence matters in writing to the Intelligence Committee. AG disagrees with what Feinstein says was legal notice requirements – and Roberts agrees with AG (He’s relying on 413 (a) (A) and 413 (b) (B).)

Why didn’t you come to Congress for Amendments? The only thing that I can conclude is that this program is much bigger and much broader than you want the public to know. AG – I can’t confirm or deny that, beyond what the President has publicly revealed. At the time of the In Re Sealed case (which is pure dicta), did the Administration tell the Congress or the Court that warrantless wiretapping was going on. AG: Nope. Since passage of FISA, has Supreme Court made any holding on warrantless spying for foreign surveillance purposes? AG: Nope. Was this program mentioned to the Court in the Hamdi case? AG: I dunno. Feinstein: Find out. Feinstein: Has any President ever authorized warrantless surveillance contrary to a statute that was on the books saying not to do so? AG says he thinks Roosevelt may have done so, but not sure. Feinstein: Find out. Is your argument that if the AUMF doesn’t provide for warrantless spying, then FISA is unconstitutional? AG: Not what I meant. Argues that Youngstown is not analogous to this spying. This deals with core right of the Commander in Chief. Any statute that infringes on that raises serious Constitutional questions. Not prepared today to say FISA is not constitutional today, however. Feinstein: You sidestepped FISA. NSA is part of the DoD – and Congress has the right to make regs for the military – Art. I, Section 8 of the Constitution. AG: Not sure you can say the NSA is part of the military. (RH: I think a lot of the folks at the NSA would be surprised to hear that.)

GRASSLEY QUESTIONING: Snooooooore. (RH: Sorry, need tea.) We are careful in our work in seeking a FISA warrant because we want to get it right. (RH: That’s why we chose to break the law – we didn’t want to file an improper warrant. The FISA court judges must be really, really scary.) AG says that the FISA judge might notify someone under surveillance that they had been surveilled should a warrant not be granted. (RH: I’d be interested to know if this has EVER happened – because, in my limited experience, judges do not tend to be excited about tipping off potential criminals that they have been tagged as possibly breaking the law. That doesn’t sound right to me, but then I’m not a FISA attorney. If anyone has experience with this and can let me know, I’d be grateful.) Grassley is pissed that a Democrat compared this NSA spying program to the Nixon Administration. (RH: Why do Republicans now hate Nixon?) AG compares Preznit to Roosevelt. (RH tries not to spew tea on her keyboard.) Terrorists pose a new kind of war. (RH: Guess that whole Soviet threat of nuclear annihilation was just a made-up fairy tale, then?) AG says they have monthly meetings at NSA to be certain the program is consistent with President’s authorization. (RH: And since Abu says that he never disagrees with Gen. Hayden, I bet those are some pretty short meetings.)

FEINGOLD QUESTIONING: Do you know of any President who has acted outside of FISA since its inception in 1978? AG: No, can’t think of anyone. When the Preznit said in the State of the Union that Federal Courts have approved this sort of wiretapping, that wasn’t really accurate was it? (Feingold just walked Gonzales through the fact that there are NO federal court cases that okay this action since FISA was passed.) Gonzales now stammering. (RH: Oops.) I think the Preznit’s comments in the SOTU were highly misleading. The members of this Committee are highly supportive of your actions under FISA – illegal actions are another story. (RH: Gonzales is deliberately making Feingold repeat questions and asking him to explain things to run out his time. So transparent and so pathetic.) Are there any other programs we should know about that are not before the committee today that the Administration is conducting or has conducted that raise questions under FISA? AG: Can’t answer that. Russ: Well, I prefer that to you saying you can’t answer a hypothetical. Feingold then asks who in WH approved and reviewed Mr. Chris’ testimony, and his highly misleading statements to Congress. AG says he will find out underlying information on this. Feingold now asking about internet and telecommunications companies, and whether FISA or high ranking DoJ official has issued certifications to relieve them of liability for providing information? AG not willing to answer the question in open session.

KYL QUESTIONING: Kyl starts be being peevish about Feingold saying Preznit’s SOTU was misleading. Informed leadership of Congress and Intel. Committees. Kyl thinks the Judiciary Committee is less important than the Intel Committee for amendments to the FISA laws. (RH: Jeebus, is the Administration using Kyl as their clean-up the testimony boy?)

SCHUMER QUESTIONING: Schumer asks how surveillance without a warrant is different from searching a home or office without a warrant? AG says he can’t answer the question – to his knowledge, this has not happened under the terrorist surveillance program, and not going to answer any further than that. How about placing listening devices in American homes without a warrant. AG: Can’t answer that. Have you monitored political enemies? AG: We aren’t going to do that. (RH: Really? Talk with CIFA before you say that for certain.) How many times has this been authorized? AG: That is a classified number – ask the chair of the Intel. Committees. Schumer says FISA makes public the number of FISA applications per year, why can’t the President make the number public? AG: I can’t answer that. Schumer gets into the Church warnings and the increase in technology capabilities today raising even greater questions. Has there been any disciplinary action taken against any person involved in abuses in this program? If there have been some abuses, we ought to know about it? AG: I can’t answer those questions. Sometimes there are mistakes made, as you know, but I can’t really answer your question because the NSA takes care of that. (RH: Ummmm….good oversight, that.) Could you commit to tell us when you come back whether there have been abuses within the NSA? AG: Not really – I’ll see what I can do.

NSA Hearings, Part I
NSA Hearings, Part II
NSA Hearings, Part III

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

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