Judiciary Committee FISA Hearing, Part II
SPECTER SECOND ROUND: Would it be impossible to have individualized warrants? Gives him an opportunity to expand on foreign call initiated without knowing who the recipient of call is. If target is outside the country, we should use every means necessary to intercept call. Inside US, we’d need a warrant; outside the US, we don’t need one. The way that it works now, it is impractical. Specter asks what specifically makes it impractical. Alexander says it is impractical, but not impossible. Says you couldn’t stay in hot pursuit having to stop to get a warrant. (CHS: Specter does NOT follow up with regard to the 72 hour emergency window to get a warrant after the fact. Why isn’t this asked?)
Specter asks Bradbury if it isn’t a fact that the President could do under his bill what he’s already doing, under his Art. II powers? It’s a balancing test, and that the Judiciary Committee without knowing what the program is, it is tough for them to determine that without knowing what the program is. Bradbury says yes, that is correct, that Specter’s legislation would allow for judicial oversight. There are 30 or so pieces of litigation around the country – we do not think that those disparate matters around the nation are an effective means of oversight. Isn’t it true that the FISA court proceedings are not the sole means of monitoring outside communications? Can any statute expand or contract the Art. II powers? Bradbury says that statutes can reasonably define or provide oversight, but the FISA court tries to snuff out presidential power, and that’s what we are trying to avoid. Specter goes to the Youngstown case, for the next series of questions. Isn’t the Art. II power dependent on a balancing test between the privacy issues and the national security interest – not just unlimited? Bradbury says yes. FISA today allows for the Executive Branch to undertake foreign intel without a warrant already.
LEAHY SECOND ROUND: Leahy asks if Youngstown wasn’t a correct assessment. Bradbury says yes. Leahy asks about areas where Congress under Art. I can legislate laws that the President under Art. II has to follow, it’s in his oath of office. Goes to Alexander – does the Specter legislation immunize anyone who conducts warrantless searches under the order of the President? Alexander punts to Bradbury, who starts a tap dance that is interrupted by Leahy. Bradbury says that if intel officers exercise authority duly authorized by the President, that they should be immunized. Leahy points out that this is different from current FISA legislation – this isn’t authorization under a warrant from the Court, it’s the President authorizing this. Bradbury says the only thing the President has talked about is the . Bradbury will not answer the question whether the President has already authorized such warrantless searches. (CHS: Well, isn’t THAT interesting.)
Leahy goes to Hayden on targeting foreign agents – Hayden says the bill would allow for targeting foreign information, wherever it comes from. Leahy asks if this would allow for targeting say all calls from India? Hayden says no, it would only cover say targeted numbers that have been identified as being of interest. Do we do this sort of vacuum cleaner surveillance of Americans now? Hayden says that it is only targeted information now. When NSA obtains the contents of a communication, it has already been established that one of the participants has a connection to al qaeda or other organization. If there is something picked up by mistake, the communication is supposed to be destroyed. If inadvertant collection contains evidence of a crime, the policy requires that this be reported – that’s the exception – otherwise it is to be destroyed. Hayden says they try to follow well-established procedures to protect the identity of the US communicant. Asks about provisions to allow AG to delegate authority if this bill is passed – would the AG have the power to delegate? Bradbury says he would never do this. Leahy says, but he could? Bradbury says it would only be delegated under the existing provisions on delegation. Leahy says the legislation would allow him to go way beyond that, on the face of the legislation. Bradbury doesn’t answer the question. (CHS notes: what Bradbury is talking about with the delegation purposes are the same regs that were used to delegate authority to Patrick Fitzgerald under the DOJ regs.)
Specter says that they will have more hearings if need be. On to Panel II.
BRYAN CUNNINGHAM OPENING: Confident that the interests of national security and civil liberties can be done, but only if FISA is amended along the lines of Specter’s bill. The best way to look at this issue is under the President’s foreign affairs authority under Article II against the interests of Congress under Article I. Machine triage – allowing for computers to sift large amounts of data without a person getting to it until after the sifting, allowed under the Specter bill. Public needs to have a clear understanding on what the law is. Necessary to get any President to agree to reform legislation. And will help our officers to avoid risk aversion – but will help them to do their jobs. No President should be forced into the Hobson’s choice of deciding whether to collect information for national security purposes or to follow the law.
JIM DEMPSEY OPENING: Commends Specter for his tireless leadership. Through intense negotiation, you have secured this bill. It pains me to say this, but your bill has been so far altered from its original purpose. We would rather see the President’s power remain unchecked, than see this bill enacted into law – your bill endorses the radical theory of an imperial presidency, and this would turn back the clock to an era of warrantless surveillance. The AG has said, and Hayden confirmed today, that the program targets only limited information. Your bill would allow for surveillance of Americans without probable cause, without adequate oversight, and would allow this to go on long-term. (CHS: Ouch.) Gen. Hayden offered excellent testimony this morning, and it provides a roadmap on how to proceed – but your bill does not achieve this. Goes over Hayden’s four points. Thing we heard time and again is the word "targeting" – when the Government is doing so and that person is overseas, then a warrant is not required. When he calls into the US once then you may not need a warrant – if it occurs repeatedly, then you would. Look toward practical solutions. Just because technology has changed, that should not mean that our commitment to civil liberties dissipates.
JOHN SCHMIDT OPENING: It’s important to get away from any talk about whether the Congress or the President is winning or losing, or whether one side or the other is capitulating. What is important is that we have a bill that balances national security interests and civil rights. It is in everyone’s interest for there to be determinations made by the courts on individualized judgments on constitutionality, and to have the Congress to provide oversight, and that the intel professionals should allow for court oversight in advance – the new court structure in Specter’s bill would allow for that. 9/11 proved that Levy was correct – the statutory approval process cannot be allowed in an emergency. (CHS: What part of the 15 day window for emergencies does this person not understand? Oh, I see, it’s inconvenient to acknowledge that there are procedures already in place because that would make his dire statement less dire…)
MARY DeROSA OPENING: Understanding of the need to act quickly and effectively in national security. Thought at one point that I might be sort of extreme on the issue of executive authority, but I now know that is not the case. (CHS: hehehehe) Congress absolutely can regulate – the Youngstown analysis, category 3 where there is a conflict between Congress’ and Presidents’ power are in conflict – the case says that "presidential power is at its lowest ebb" there. Congress can legislate in this area – presidential power here is unquestionably still existent, but may be limited by Congressional action where the Constitution requires such intervention. Goes into details about the probable cause standards – and says that it is important that the public have some transparency and that there is an understanding of the process.
SPECTER QUESTIONS: (CHS: HA!) Specter begins with a colloquy on this President’s actions and lists out a number of instances in which this Administration has taken its abuse of power too far. It’s degenerated into an argument about what a great job Specter did negotiating this or not. Goes to DeRosa – judicial review is a high priority, says that she believes that there is exclusivity for FISA today and that from the language of the statute that was intended. For practical purposes, is the President complying? No. But the language should stay the same because it is appropriate.
LEAHY QUESTIONS: Asks Dempsey about whether Congress should just give up on its Art. I powers? No, he says, the Specter/Feinstein bill does allow for appropriate oversight and accountability. This is a substantial debate about Presidential power, and the Specter bill goes too far. If we repeal exclusivity provision? Would make FISA optional, and would cast constitutional doubt on surveillance activities. We are in the middle of a war and FISA has already been approved – what is being proposed would cast aside a constitutional provision. What if evidence collected under the new system is refused by a court? There must be a balance between President’s inherent power, the Constitution, and oversight by Congress and the courts. Leahy goes back again to the Youngstown case. Do you agree that Sec. 8 of the bill wouldn’t change the status quo and is meaningless? Well, if that’s the case, then don’t pass it. Leahy says he worries that the President says "I’ll stop breaking the law, if you pass a law that pardons me from breaking the law, and says I don’t have to follow the law any longer." A sort of Alice in Wonderland situation for us. Would the President have to get a warrant for his program? Dempsey says no if it is "foreign to foreign." Gen Hayden testified that they have probable cause and specificity – which would fit the FISA program as it exists currently. The government has benefitted from the windfall that a large percentage of foreign communications now pass through the US – everyone agrees that foreign to foreign should be exempt from FISA, regardless of where the interception occurs. But once we start in the US, targeting an individual overseas, and we find a foreign to domestic conversation under current law they have to suspend and believe they have to go and get a warrant. (CHS: Again, no discussion about the 72 hour window for emergencies.) That problem is a much more narrow definition than what Specter allows for in his bill. You should not ratify a power grab by the president – he can continue to act outside the law, but Congress should not codify these actions.
End of panel II. And I am fairly certain that is it for testimony today.
UPDATE: The Judiciary Committee has updated the website from the hearing today to include the opening statements of the witnesses. Thought some folks might like a peek — so click here. The witness statements are linked on the right-hand side of the page.