PARTICIPANTS

Hon. John Conyers, Jr.
Hon. Jerrold Nadler
Hon. Robert C. Scott
Hon. Robert Wexler
Hon. Adam Schiff
Hon. Chris Van Hollen
Hon. Diane Watson

Bruce Fein,
Associate Deputy Attorney General under President Reagan

James Bamford,
Author of "The Puzzle Palace"

Professor Jonathan Turley,
George Washington Law School

Richard Hersh,
The Truth Project

Caroline Fredrickson,
Washington Legislative Director, ACLU

Kate Martin,
Director, Center for National Security Studies

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MR. CONYERS: The Democratic subcommittee will come to order. Good morning, ladies and gentlemen. I'm so delighted that we're all here again in the basement of the Rayburn Building, like we were in the Downing Street memos hearing, perhaps in a little bit more upscale part of the basement area. We're very delighted to see all of my colleagues that are here, who will have some comments, brief comments to make, as I will. And we're very delighted to have our six witnesses present. I'm going to introduce them shortly.

Ladies and gentlemen, there can be little doubt that we're in a constitutional crisis that threatens the system of checks and balances that have preserved our fundamental freedoms for over 200 years. There's no better illustration of that crisis than the fact that the President of the United States is violating our Nation's laws by authorizing the National Security Administration, NSA, to engage in warrantless surveillance of United States citizens.

The administration offers two arguments to justify their actions. First, they assert that warrantless searches were authorized by the Afghanistan use-of-force resolution passed by Congress. And, second, they say that the Constitution permits and even mandates such actions. To many of us, this is indeed a very remotely plausible and very little credible argument. Neither of these, I don't think, will withstand close scrutiny.

But to make sure that in fairness we got the whole story, the Attorney General had put out a 42-page memo, once again defending his position. I called Attorney General Gonzales this morning and reinvited him or his representative to come and join us here this morning to make their case before all of us, the Members of Congress and our expert witnesses. And I just want to ask: Is there any representative from the Attorney General's office present in B339?

 [No response.] 

MR. CONYERS: Now, as for the claim of statutory authority, a plain reading of the text of the resolution to me reveals there is no reference whatsoever to domestic surveillance, and we learned from the former Senate Majority leader Mr. Daschle that the resolution had been narrowed from the administration's initial request to avoid such construction, and the Attorney General went so far as to admit that he had been advised that it would be "difficult if not impossible" for Members of Congress to amend the law to avoid such a program. As Harvard constitutional law professor Laurence Tribe wrote me, to argue that one couldn't have gotten congressional authorization after arguing previously that they had gotten congressional authorization takes some nerve."

In terms of inherent constitutional authority, this also flies in the face of both common sense and legal precedent. If the Supreme Court didn't let President Truman use this authority to take over the steel mills during the Korean War in 1952 and wouldn't let President Bush use the authority to indefinitely hold enemy combatants in 2005, it is obvious the Constitution doesn't allow warrantless wiretapping of United States citizens today. As Justice O'Connor famously wrote, the President does not have a blank check because of the state of war. Or to put it more in her terms, "a state of war is not a blank check."

What may be most troubling of all is that if we let domestic spying programs continue, if we let our President convince us that we are at war so that he can do  what he wants, we will allow to stand the principle that the President alone can decide what laws apply to him. I submit this is not only inconsistent with the principles upon which our Republic was founded, but it really denigrates the very freedom we've been fighting for since the tragic events of September 11, 2001. And so that is why we are holding today's hearing.

The Foreign Intelligence Surveillance Act law allows domestic wiretaps to our Government and the President, both coming and going. And so I'm very delighted now to recognize my colleague from California, Mr. Adam Schiff, for a few brief opening remarks.

MR. SCHIFF: Thank you, Mr. Chairman, and welcome, everyone, to the basement. We are here in the basement today because evidently all the committee rooms are in use today.

[Laughter.]

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MR. SCHIFF: Which is odd, because we are effectively in recess, but I'm sure that's the only
explanation. But we'll make do the best that we can.  Ranking Member Conyers, I want to thank you for holding this important briefing today. I must say that I would have preferred that the House Judiciary Committee conduct this important oversight through an official  committee hearing and in a bipartisan fashion. I do not believe the American people are served when at least half of the elected Representatives on the relevant committees are not willing or able to engage in such a discussion. However, I am afraid that the House of Representatives has once again abdicated its oversight responsibilities. After reading the report in the New York Times claiming that the President had secretly authorized the NSA to use electronic surveillance on Americans without any court approval, I respectfully urged that the Judiciary Committee convene hearings on this topic as soon as possible. I subsequently joined all Judiciary Democrats in another letter urging the same.

I am pleased that the Senate Judiciary Committee has announced their intention to hold hearings on this issue, and Attorney General Alberto Gonzales' testimony will be of great interest and importance. However, I don't believe that the Senate proceedings release us from our  responsibility here in the House to probe these matters as well. Therefore, I think it is both appropriate and vital that the Ranking Member has convened such a discussion in his capacity.

I'm particularly disturbed to learn that most Members of Congress on both sides of the aisle who sit on the relevant congressional committees with jurisdiction in these matters appear to have been kept in the dark regarding the Executive order, classified legal opinions asserting broad powers to order such searches, and subsequent activities of the NSA. I'm sure that the members of the committee and of the Congress on both sides of the aisle share my frustration in learning of this and other executive agency actions from media reports rather than through our constitutionally mandated oversight responsibilities.

We can all agree that congressional oversight is critically important as we continue to fight the  war against terrorism. Last year, 11 oversight hearings on the PATRIOTAct were held in subcommittee prior to action on the authorization. While I would have preferred engagement at the full committee level with more participation from minority and majority witnesses and believe that the subcommittee hearings themselves were far too long delayed, they did provide at least an opportunity for oversight. However, true oversight cannot occur in isolation or involve only certain preferred topics while ignoring other potentially more significant matters.

Domestic surveillance without court-approved warrants appears to be wholly unprecedented as a lawful exercise of power. A recent CRS report concludes that, "It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion." It goes on to say, "It may represent an exercise of Presidential power at its lowest ebb."

The report continues, "No court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power." And it goes on to say that, "Given such uncertainty that the administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well grounded as the intent of that letter suggests." These extrajudicial actions are all the more troubling when one considers that there is a court empowered to review precisely such applications for domestic surveillance that could have been utilized but was not. Given the track record of this court, the FISA Court, of quickly approving Government requests and the power to seek post hoc approval where the urgency is still greater, there appears no policy justification for the administration's actions. And, thus, what may be illegal is also so plainly unnecessary.

 I look forward to hearing our witnesses today, particularly those with expertise in the constitutional questions implicated. The CRS report suggests the President's actions are unsustainable. Moreover, the lack of an_official committee hearing scheduled by the majority will only further harm the administration's efforts to convince the American public of the legality or propriety of its actions.
 Speaking very personally, I can't imagine that there is a single Member of the House of Representatives who believed when voting to authorize the use of military force against al Qaeda that we were also voting to create a new and vast exception to FISA that would authorize, without court approval or court review, electronic surveillance of Americans on American soil. And that personal view is borne out, I think, by the legislative history, and I want to conclude by reading one last couple lines of the CRS report: "By including the emergency authorization for electronic surveillance without a court order for 15 days following a declaration of war, Congress seems clearly to have contemplated that FISA would continue to operate during war, although such conditions might necessitate amendments. Amendments to FISA and the USA PATRIOT Act, and subsequent legislation further demonstrates Congress' willingness to make adjustments. The history of Congress' active involvement in regulated electronic surveillance within the United States leaves little room for arguing that Congress has accepted by acquiescence the NSA operations here at issue." We did not, we do not, and I thank you, Mr. Conyers, for calling this hearing.

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MR. CONYERS: Thank you so much, Mr. Schiff, for your statement. If we might agree to keep our statements a little more brief so that we can get to all the members and then get to our witnesses quickly, I would deeply appreciate that. Judiciary Committee Member Chris Van Hollen from Maryland, you are recognized.

MR. VAN HOLLEN: Well, thank you very much, Mr. Conyers, and let me thank you for your leadership in organizing this hearing. Let me thank all the witnesses who are here today and the others in the audience.

I think we have all learned that the secret NSA wiretapping program, wiretapping American citizens, has raised very serious constitutional questions; it has raised serious questions about the rule of law; and it has raised serious questions about the separation of powers.

And I just want to underscore the point that Congressman Schiff, my colleague, made with respect to the obligation, I believe, of the Judiciary Committee, the full Judiciary Committee, to hold hearings on this issue.

And it's important for the American people and people listening to know that the members who are here today did send a letter early on to Chairman Sensenbrenner asking him to conduct hearings. It has now been well over a month that the American people learned of this secret wiretapping program, and yet the House of Representatives - indeed, the Congress so far has been totally AWOL in following up on the issue.

And so today I think marks a very important moment, and I thank you, Mr. Conyers, for conducting this briefing. We were here in December, and one of the last things we were debating, both in the House and the Senate, was the PATRIOT Act, trying to strike the proper balance between securing the homeland, making sure we protect the security of the American people, and at the same time securing the liberties that we all hold dear. And part of that discussion was the President's powers under the FISA Act.

And so it came as a great alarm to many of us when we went away for the recess to learn that in many ways that whole discussion had been for nothing, was moot. In other words, here we are debating the PATRIOT Act, debating the very issues that we're going to be debating here today, only to discover that the President had secretly made a decision that it really didn't matter what Congress decided on these points of the FISA court, it really didn't matter what Republicans and Democrats and elected officials had to say about that.

The President determined that he had the right to go forward anyway.

And I think that raises very serious questions in this country about the rule of law.

I am going to be brief, Mr. Chairman, because I know we are going to have a lot of excellent testimony on the back and forth, but I do have to say I took the 42-page justification that came out yesterday from the Justice Department, Attorney General Gonzales, and making their argument longer did not make it any better.

[Laughter.]


MR. VAN HOLLEN: And I have to say that any first-year law student would, after reading this, quickly conclude that the arguments were specious.

And I think that if you had a private attorney in Washington, D.C., or anywhere in this country provide their client with this kind of advice, they would be sued for malpractice. And I believe that this opinion is malpractice on the American people.

The President said he had a duty to defend the American people and provide for the safety of the people. I agree. The President has that duty and obligation, and the Congress shares in those responsibilities.

But the President also has a duty to abide by the Constitution and the rule of law.  

If the authority was not there to do what the President said needed to be done to protect the safety of the American people, he can come to the Congress. Under the Constitution, under the separation of powers, he can come to the Congress and say, listen, I need additional authority to protect the people of this Nation.

And today's debate, I don't think, is about whether or not the President should have these additional authorities. Maybe he should. Maybe he shouldn't. The point of the matter is we should argue and debate whether or not he should have those authorities through the normal process.

  Attorney General Gonzales made a very revealing statement that you, Mr. Conyers, referred to in your opening statement when he was first confronted with the exposure of this program. He essentially said we couldn't have gotten the authority if we went to Congress. Well, I don't know if they could or couldn't have. We don't know that.

But the fact of the matter is that's the way in our system of Government we do things.

And what is most troubling about this is the fact that the President and his administration decided to short-circuit the constitutional process and decide what Justice O'Connor in the Hamdi case said that they could not do, which was set aside the rights of American citizens.

So, Mr. Chairman, Mr. Conyers, I thank you for holding this hearing, and I look forward to the testimony of the witnesses.

MR. CONYERS: Thank you so much, Chris. We've been joined by Congresswoman Diane Watson of California.

I now turn to a ranking subcommittee member of the Judiciary, Robert "Bobby" Scott of Virginia.

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MR. SCOTT: Thank you. Thank you, Mr. Conyers. I want to thank you for holding the second, I guess, in a series of basement hearings.

[Laughter.]

MR. SCOTT: Because we can't get regular order and we can't do this on a regular basis, but you're willing to hold these hearings and get this information to the American public, whether the majority wants to hear it or not.

You said to be brief. I will actually be brief.

I just want to make one essential point, and that is, the people tried to make this a question of whether or not the President can wiretap and protect the public or not. That is not the question.

The question is: When he uses a wiretap, does he have to get a warrant? Is he subject to the normal checks and balances?

And under FISA, you can get a warrant without even getting - without even showing probable cause of a crime. You have to show probable cause that the agent of a foreign government is involved, but you don't even have to show a crime. If you have probable cause that a crime is committed, then a warrant obviously is easy.

So we're not talking about whether or not he can wiretap people. The question is whether or not he's subject to the same checks and balances as everybody else. Just stop by the court on the way to getting the wiretap.

Or if you're in a hurry, get the warrant on the way back from starting the wiretap.

The President, I thought, agreed with this idea because on April 20, 2004, he said, Now, by the way, anytime you hear the United States Government talking about a wiretap, it requires - a wiretap requires a court order.

Nothing has changed, by the way, when we're talking about chasing down terrorists. We're talking about getting a court order before we do so. Constitutional guarantees aren't waived when it comes to doing what is necessary to protect our homeland because we value our Constitution.

A couple of things are very important to understand about the PATRIOT Act. First of all, any action that takes place by law enforcement requires a court order.

In other words, the Government can't move on wiretaps or roving wiretaps without getting a court order.

So we're not talking about whether he can do it. We're just talking about whether he has the normal checks and balances or whether the standard is, once he makes his judgment, there is no check and balance.

And that's not what our Constitution talks to, and, Mr. Conyers, I thank you for holding this hearing.

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MR. CONYERS: Thank you so much, Bobby Scott. We now turn to the gentleman from Florida, Mr. Robert Wexler, a member of the Judiciary Committee.

MR. WEXLER: Thank you as well, Mr. Conyers. I also want to applaud your initiative and effort here today. I, too, was appalled to learn that our Nation's intelligence and military agencies have been spying on Americans at an unprecedented level without even the opportunity for legally required judicial oversight.

I was also astonished to learn that law-abiding Americans like the peace activists and retirees who make up the Truth Project in my congressional district are considered to be a credible threat to this country. Mr. Hersh is here today to represent apparently all the credible threats to the country.

The New York Times confirmed our initial fears that these spying programs are not only a violation of our individual civil liberties but also a tremendous waste of critical resources that should be employed to fight the genuine threats America truly does face. Instead of using one of the most far-reaching invasions of privacy in our Nation's history to target immediate and credible threats, the administration is needlessly diverting the scarce time and resources of our intelligence community on what appear to be wild goose chases.

There is not a single Member of Congress who is not prepared to take every legal measure necessary to prevent another 9/11 from happening. However, this is not an excuse for the Bush administration to declare by fiat that it can ignore existing law.
 
If the NSA's warrantless searches and the DOD's information collection on American citizens are indeed critical to our Nation's safety and security, it would be the responsibility, as Congressman Van Hollen said, for Congress to change the law to allow these actions. The administration cannot act alone and in secret as judge and jury for its actions. But this is exactly what President Bush has done.

The administration has groundlessly circumvented judicial review and taken America down a frightening path, which preys on a culture of fear while casually disregarding existing civil liberties. Now at the very least the American people have a right to know the full extent to which our basic rights have been violated.

Following the September 11 attacks, the President came to Congress, he addressed the American people, and he said, that the terrorist hate - this is the President's quote. The President said, "Terrorists hate our democratically elected Government. They hate our freedoms," the President said.

Why, then, did the President circumvent this democratically elected Government and disregard those very same freedoms?

We must discover what has been done under this misguided banner and unite to stop it.

Thank you, Mr. Conyers, for the time.

---

MR. CONYERS: Thank you so much.

I would now like to recognize the only lady Member of the Congress that's with us, the esteemed Diane Watson - a former Ambassador, by the way - and now a member of the International Relations Committee and Government Reform.  

MS. WATSON: I want to in turn thank the esteemed Congressman John Conyers for holding this briefing and taking advantage of a time when we ought to be in session doing the public's business, so he took the bold step of calling us together to hear from the public and so the public can hear from us as to our outrage over the administration using the law to (?) -ution.

We all know we face an enemy out there that's really an ideological enemy. We all know that there are plans, draconian plans, to destroy American society. But we have an administration that chooses to operate in the dark.

They will tell you that they went to the Intelligence Committee 12 different times to tell them what they were planning on wiretaps, et cetera.

The Intelligence Committee is duty-bound not to relate what goes on there. So the rest of Congress - and we all represent somewhere between 650,000 people - are unaware of what's going on. And it's done under the guise of protecting the security of Americans.

Now, I can understand when there is a need, but we have a process. And when our President, elected by the people, takes business away from the people, we're in trouble.

And so I am hoping that the panelists as well as other members of the public will shed some light on what they feel representing Americans and maybe give us some direction that we can take, because we've been the minority for too long, and we are all painted with the same brush.

The trust that the people put in us to serve on their behalf and to speak for them is being violated. We've got to do something about it.

So I want to again thank the Chair for taking the bold step. I want to thank the panelists for coming forth and speaking their minds. Please give us the guidance and the help that we will need to make policy on your behalf.

Thank you very much.

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MR. CONYERS: Thank you so much, Congresswoman Watson.

Ladies and gentlemen, we have been honored by a very distinguished panel. Bruce Fein, our first witness, is a constitutional lawyer and an international consultant. He has been an Associate Deputy Attorney General and General Counsel of the Federal Communications Commission, and we're so delighted and honored that he's here today.

Mr. James Bamford is the author of "The Puzzle Palace," a national best-seller when it was first published and is now regarded as a classic. Until recently, he was the Washington investigative producer for ABC's "World News Tonight with Peter Jennings" and has written investigative cover stories for the New York Times Magazine, the Washington Post Magazine, and the Los Angeles Times Magazine.

Professor Jonathan Turley is a nationally recognized legal scholar who's written extensively in areas ranging from constitutional law to legal theory to tort law. He has challenged both Democratic and Republican Presidents in the course of his distinguished career.

Richard Hersh is a member and spokesman for a Florida-based Quaker organization known as the Truth Project. He has recently discovered that because of the organization's activities, it's been listed as a credible threat to the military, with a 400-page Defense Department report that NBC News obtained.

And we have as well the Director of the Washington Legislative Office of the American Civil Liberties Union, Ms. Caroline Fredrickson, and we're delighted to have you here. We are aware of the recent lawsuit that has been filed in the Detroit Federal courts challenging the whole episode about executive branch authority to wiretap.

And Kate Martin, the Director of the Center for National Security Studies, and she has testified many times before the House and Senate on issues relating to homeland security, intelligence, and civil liberties since 9/11.

We are delighted, honored, and pleased that all of you have prepared yourselves to testify. If you would all stand and raise your right hand.

[Witnesses sworn.]

MR. CONYERS: Let the record show that all six witnesses have answered in the affirmative. I include in the record the statement of Congresswoman Sheila Jackson Lee, who was called away on official duties, and we will put it in the record. And I wanted everyone to know that Congressman Jerry Nadler of New York is rushing to get here as we speak.

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MR. CONYERS: We begin with Attorney Bruce Fein. Welcome, and thank you again for being with us today, sir.

MR. FEIN: Well, thank you, Congressman and other members of the Judiciary Committee. Could you signal when my time is up? I know it -

MR. CONYERS: It's a 5-minute deal. All of you are veterans up here. Everyone gets 5 minutes. We give you a 1-minute warning.

MR. FEIN: The separation of powers, checks and balances, is what the Founding Fathers viewed as the architecture of our civil liberties. They understood that men were not angels, as James Madison explained in the Federalist Papers -

MR. SCHIFF: Could you bring the microphone closer to you?

MR. FEIN: The Founding Fathers understood that men were not angels and that "Trust me" was not a good enough protection for our civil liberties.

And, accordingly, they created a tripartite system of Government whereby the legislative, executive, and judicial branches would be restraints upon one another.

As Madison explained, "Ambition must be made to counteract ambition." And it, the issues of separation of powers, something that is critical to the civil liberties of the living and those yet to be born, that has been raised by President Bush's justification for his unilateral decision to authorize the National Security Agency to engage in eavesdropping without warrants against American citizens and declining to suggest that Congress has any role in the matter.

One of the reasons why the issue is so critical is that we will be in a state of permanent hostilities against terrorism for our lifetime and for the indefinite future. 

So the claimed authorities of the President are not temporary. They will not go away. They will become permanent fixtures of the political and legal landscape, which is one reason why we must focus so clearly and sharply on the justifications.

Secondly, the President's claims do not distinguish in principle from intercepting a communication between a U.S. citizen in the United States and abroad or a communication wholly within the United States, because the gist of his authority that he claims is that if the purpose of the interception or surveillance is to advance or help defeat terrorism, then he can do it on his say-so alone without any consideration of what Congress has enacted.

For example, we know that the 9/11 perpetrators were within the United States prior to the attacks, and communication that they would have would be solely within the United States.

They may have communicated with an American citizen. There's nothing in the President's claim of authority to surveil only the wiretap to further the war against terrorism that would restrict his authority to only what he says he's doing now, surveiling or intercepting communications between the United States and abroad.

The implausibility of the President's claim seems to be self-evident.

In 1978, following congressional hearings on abuse of executive authority in spying on Americans, mail openings, for example, Congress decided to cut a balance between civil liberties and national security, and they struck that balance also in considering wartime, the type the President confronted after 9/11. And the Congress concluded that there would be a 15-day window when the President would not need a judicial warrant that might be too slow and clumsy in order to protect Americans from any imminent repeat attack.

And, of course, after 9/11, we didn't know whether (?) . At one time Congress had thought about a 1-year automatic extension but rejected that with the idea the President can come quickly and we can consider extending that period, even altering the standard, in a short time frame.

Moreover, the history of the Congress is one that shows that proceedings can be in secret. The Manhattan Project, for example, was conducted and executed without any leaks to the enemy. And the first Senate sat 6 years without any openness.

There is no reason why the President couldn't have come, if he thought it was necessary, to arrange to have debate and have an amendment to FISA without revealing all secrets to the enemy. Indeed, FISA itself recognized the obvious.

Our enemy recognizes that we will use surveillance and wiretapping to try to collect intelligence. And I don't think it's plausible to believe that any kind of discussion in theory that the President has extraordinary powers to surveil in wartime would permit the enemy to evade any kind of particular practice.

But, anyway, the Congress explicitly addressed the idea of the powers of the President during wartime and wiretapping.

The authorization of force statute doesn't refer to FISA.

The administration's claims that it sub silentio overruled FISA is on its face implausible. The rule of statutory construction for centuries is, the more specific statute overrides the more general one.

And I don't think anything