Hearing of the Senate Judiciary Committee - Strengthening FISA (Panel 1)
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SEN. EDWARD M. KENNEDY (D-MA): Thank you very much, Mr. Chairman, and thank you for having this hearing. Welcome.
Just to review old ground for just a moment. In 1976, in the wake of the fact that we had widespread wiretapping during the previous administration during the Nixon administration, then-Attorney General Levi, a Republican with a Republican administration, asked a number of the members of this committee down to the Justice Department to say we have a real challenge on national security, enormously sensitive information, not only with regard to embassies but with regards to matters that were taking place overseas as well, enormously sensitive.
There was a sense that that attorney general understood that the members of our committee and the members of the Congress are as concerned about national security as anyone within the administration.
And during that period of time, on four different occasions, members of this committee went down to the Justice Department. And when the final legislation was submitted, enacted, in 1978, there was one dissenting vote, one dissenting vote. They worked -- we worked with a Republican administration and a Republican attorney general to try and get the national security issues correctly.
Up comes Mr. Gonzales. The members of this committee said -- many of us who have been through the 1978 experience -- "We want to work with you. We are as concerned about national security as you are." He said, "We don't need your help. We don't need your assistance. We don't need your involvement. And as a matter of fact, we're not even going to tell you what's going on."
Now, I want to have some idea of which tradition you follow on. Are you willing to work with this committee? I mean, do you have sufficient confidence in both the members of this committee that they are concerned about the security as you are and also as concerned about rights and liberties of the American people? When we have -- get it right from an intelligence point of view, we're going to get it right with regards to protecting our rights.
ADM. MCCONNELL: I do agree with that, Senator. Absolutely.
SEN. KENNEDY: Well, are you going to be working with this committee?
ADM. MCCONNELL: Absolutely.
SEN. KENNEDY: And can you give us the assurance that whatever is passed by this committee is going to be THE -- and only limit in terms of the intelligence gathering; this is going to be the one -- the new legislation affirm that the FISA is the sole means by which the executive branch can intercept communications in the United States?
ADM. MCCONNELL: Sir, the -- if we can get the law that we've just passed made permanent and address the other issues, then that's how I would intend to carry out this program.
SEN. KENNEDY: Well, this is the issue, because there are -- members of the committee aren't sure what the law is. You're going to explain in detail what that law is and what it covers, either in open or in closed session?
ADM. MCCONNELL: Yes, sir, I'd be happy to do that.
SEN. KENNEDY: Wholly and completely?
ADM. MCCONNELL: Completely. Wholly and completely.
SEN. KENNEDY: Thank you. Could I go -- ask you a question about the attorney general certification for immunity from liability in the -- for carriers? Isn't it true that the carriers who act pursuant to a warrant or the attorney general's certification already have immunity from liability?
ADM. MCCONNELL: I don't know the answer to that, sir. I can consult with counsel. I just don't know.
SEN. KENNEDY: It -- well, it's my understanding -- I see the counsel -- did you hear the -- that if the carriers act pursuant to a warrant or attorney general certification, already have immunity from liability?
ADM. MCCONNELL: That -- under the new law, that's correct. Yes, sir.
SEN. KENNEDY: Was that true under the old law, too?
ADM. MCCONNELL: I don't know about the old law.
SEN. KENNEDY: All right. Okay. I'll try -- okay. Well, that's --
ADM. MCCONNELL: What we asked for in the new one was to get that and it was --
SEN. KENNEDY: So if the warrantless surveillance program was legal, as you have claimed, what do carriers need immunity from?
ADM. MCCONNELL: I'm not sure I understand your question, sir.
SEN. KENNEDY: Okay. Well, why do they -- if they've been abiding by the law, they shouldn't need immunity; if they've been abiding by the attorney general's -- getting a certification, they shouldn't need immunity; so why does the administration ask us to grant immunity for past activities which we have no idea what they were -- at least, I don't think any of the members of this committee know what they -- what possibly they were, but we're being asked to grant that, and that's what I'm trying to driving at.
ADM. MCCONNELL: Well, going forward, there is postscriptive liability for anyone that would assist us in this mission. In a retroactive sense, those who were alleged to have cooperated with us in the past are being sued, and so it's to seek liability protection from those suits.
SEN. KENNEDY: Well, there is also a desire retroactively to grant -- retroactive immunity.
ADM. MCCONNELL: That's correct. Yes, sir.
SEN. KENNEDY: The point that is made is that this might bankrupt some of the companies if they go ahead. It's a bad precedent, I think, that we finally have a law and then the carriers are able to violate the law and think that some time in the future they can get immunity by talking about bankruptcy; there are different alternative ways of doing it. There are damages, there's a limit to damages, but it's an important policy issue and question.
And I'll -- let me be contact with you about this so we have -- you have a full idea of what I'm sort of driving at as we try to get --
ADM. MCCONNELL: I understand.
SEN. KENNEDY: -- because it is complicated, and I know that you want to get the right position on this.
Mr. Chairman, my time is just about up now. I'll come back in a --
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