Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments

Statement

Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments: How to Protect Americans' Security and Privacy and Preserve the Rule of Law and Government Accountability

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SEN. ARLEN SPECTER (R-PA): Thank you, Mr. Chairman.

I am glad to see that we have come a long way in the last 18 months since legislation was introduced in mid-2006 to bring the Terrorist Surveillance Program under the FISA Court. And we have some very important considerations to protect U.S. persons, to have the FISA Court review the procedures, and to handle minimization in an appropriate way.

With respect to the request for retroactive release of liability, I have great reluctance. Part of that stems from the secrecy that the government has interposed. When we were seeking subpoenas last year for the telephone companies, we were thwarted by action of the vice president in contacting Republican members without notifying the chairman. And as I see the situation, I think that telephone companies do have a strong equitable case, but my inclination is that they ought to get indemnification, that the courts ought not to be closed. I doubt very much that cases will be proved, but if plaintiffs can prove them, I think they ought to have their day in court. And it is costly, but that's part of the cost of the war on terrorism.

Finally, yesterday, we had a closed-door briefing on what is happening, and I believe we need more briefings. The government has been reluctant to follow the statute on informing the Intelligence Committee about FISA until they needed support for the confirmation of General Hayden as director of the CIA. And the session we had yesterday was an important one, and I think we need more information from the administration. The chairman has referred to the pendency of the nomination of Judge Mukasey to be attorney general, and that is a matter which covers the issues which are before us now or a first cousin, at a very minimum.

And it is my hope, Mr. Chairman, that we would able to resolve the issues on Judge Mukasey sooner rather than later, and I know that's your inclination as well and that you had wanted to bring the matter to a determination by the committee early. I think it may be advisable to have a closed-door session where we talk about waterboarding and we talk about torture and we talk about those techniques. Earlier this week, in the wake of the issue on waterboarding, I had an extensive briefing by General Hayden. There are people who overlap with the Intelligence Committee, with the Judiciary Committee, who know about the details, and I believe it is a matter that the full committee ought to be informed about.

I think that the extensive letter which Judge Mukasey has submitted goes about as far as he can go. He has repudiated waterboarding, he has rejected it, but he has stopped short of making a determination of legality. And let's face the facts. The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened. Now they may be at risk regardless of what Judge Mukasey says or what the next attorney general says.

And last week former Secretary of Defense Rumsfeld was in France, and there was an effort made to initiate a prosecution against him. And extraterritorial jurisdiction is being asserted by many countries under the doctrine of crimes against humanity. Ordinarily a prosecution can be brought only where the act occurred, but what Judge Mukasey would say on that subject has repercussions in that direction.

The standard has been articulated of whether it "shocks the conscience," under the Rochin decision, and that depends upon a totality of circumstances. It depends on who is the individual, what access the individual has to information, how important the threat is, what is the likelihood of getting information which would be critical in saving lives. We all dodge around the so-called ticking bomb case. Nobody wants to articulate a principle if there are any exceptions to torture. And it is probably advisable not to be explicit in that situation, because you may make exceptions which will be broadened, as the expression goes, that you can drive a truck through.

But we do know that the Department of Justice is in dire straits. If there's one thing that this committee and perhaps the entire Senate is unanimous on, it's that the Department of Justice is dysfunctional.

I think we need extensive assurances, but as I will carefully read Judge Mukasey's letter, I don't know how much more he could say than what he has said, considering the exposure to people in collateral circumstances and considering the impossibility of predicting what may be faced with respect to a future potential danger if the so-called ticking bomb hypothetical were to reach fruition.

But what I would like to see is us, Mr. Chairman, go into a closed session like we had yesterday. I thought it was very fruitful when we were behind closed doors and could talk more openly about the subject matter of what the telephone companies have been doing, and to share information from those who know more about the interrogation techniques and the waterboarding than many members of this committee know. And the Intelligence Committee is privy to that, and they should be, but so should this committee when we have to make a measurement and make a decision about the adequacy of what Judge Mukasey has said on a subject which could defeat his confirmation. No doubt the confirmation is at risk at this moment because he has not answered the question categorically.

And I think that we need to have a very frank discussion with more facts available, and I believe that can only be done in a closed-door session. I would hope we might do that early next week. Hopefully we could get Judge Mukasey on the agenda for next week and either fish or cut bait on this important matter.

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SEN. SPECTER: Mr. Wainstein, let's begin by discussing the relative role of the courts in protecting civil liberties, and what it would mean to grant retroactive release of liability. In the long history of this country, the courts have done a much better job in protecting civil liberties than has the Congress from an overreaching executive branch. And we have seen, in this administration, extension of executive authority.

Now, in many ways, it is necessary to protect America. And when the administration came to the Congress and asked for a Patriot Act, this committee took the lead in providing a Patriot Act with expanded executive authority for investigations to fight terrorism.

We at the same time imposed some limitations on oversight, negotiated with the administration, and then we found a signing statement which reserved the president's rights under Article II, commander in chief, not to pay attention to the negotiated limitations.

And if we are to close the courthouse door to some 40 litigants who are now claiming that their privacy has been invaded, it seems to me we are undercutting a major avenue of redress. If at this late date the Congress bails out whatever was done before and we can't even discuss what has been done, that is just an open invitation for this kind of conduct in the future.

Why not provide for indemnification? I believe the telephone companies have a very strong equitable case in saying that they were good citizens in responding to what the government ordered or requested and that the telephone companies shouldn't have to weigh the importance to national security. But isn't the cost of those lawsuits part of our overall battle against terrorism and isn't it an infinitesimal cost, and isn't likely that these lawsuits are not going to be successful?

You find the federal government interposing the doctrine of state secrets very broadly, trying to stop reviews under the Terrorist Surveillance Program or in the San Francisco federal court or stopping litigants who have claimed torture on rendition can't go to court, can't have a hearing because of the state's secret doctrine.

So it's a two-part question. Number one, why not make it a matter of indemnification, and isn't such indemnification really likely to cost the government very little, if anything, because these suits are destined for failure?

MR. WAINSTEIN: I guess I would go back, Senator Specter. I'd go back to sort of the foundational issue for me, which is these were companies operating on good faith, on assurances from the government. If there is fault here, it's fault in the legal analysis and the decisions made by the government.

SEN. SPECTER: I concede they're operating in good faith.

And if they're indemnified, they're not going to be harmed. They're going to be held harmless. So why not do that?

MR. WAINSTEIN: True, I think you're right that maybe as a legal matter, in terms of damages, they might be held harmless. But indemnification just means that we would pay the bills at the end of the process, but they would have to go through the process. And keep in mind, there is a lot of damage inflicted on these companies from having to go through the litigation, be subject to discovery --

SEN. SPECTER: Well, what do they have to go through when you impose the state secrets document (sic)? I can't even question you in a Judiciary Committee hearing about what is going on, because it's a secret. And every time you impose the state -- virtually every time you impose the state secrets document, you win. Those witnesses don't even have to appear. They're not going to be deposed. There's no discovery. They're cut off at the pass. Aren't they really?

MR. WAINSTEIN: Well, there's no assurance that we're going to prevail every time we interpose with the state secrets doctrine. And the litigation still has to get to that point. And keep in mind that, you know, we're also dealing with an industry that has -- really has the access to the communications that we absolutely need. And it's critical that we maintain cooperation with these companies. If they find that they are constantly and being pulled into court for assistance with the government --

SEN. SPECTER: Have you suggested to them that you would grant them indemnification? When I've talked to the telephone companies that have commented about that, they seemed to think that that would answer the question. Have you asked them?

MR. WAINSTEIN: I know there have been discussions about various options -- indemnification, substitution. But anything that -- also, keep in mind, anything that keeps the litigation going also compromises secret information about sources and methods that we have a very serious concern about. Even if we don't prevail with state secrets, then there is no guarantee that information is not going to get out. In fact, even just the filing of lawsuits and the allegations made can actually end up -- allegations made in the initial pleadings can end up compromising sensitive sources and methods --

SEN. SPECTER: Oh, really? Allegations in a lawsuit for people who are plaintiffs who don't have any inside information?

MR. WAINSTEIN: Yes.

SEN. SPECTER: If they know something, it must be in the public domain.

Let me move to one other line of question, and that is to protect U.S. persons. Admiral McConnell testified that there were 46 persons abroad, U.S. persons, under surveillance abroad. Why not require a showing of probable cause? And also, on U.S. persons who are the recipients of calls from overseas -- if you have a call from overseas to another overseas point going through a U.S. terminal, I can readily agree with your point that that is not an involvement of a U.S. person. But where a U.S. person is targeted abroad or when it is determined that a U.S. person is being under surveillance from a foreign call, why not require a statement of probable cause and approval of a warrant by the Foreign Intelligence Surveillance Court?

MR. WAINSTEIN: Yes, sir, good questions, two separate questions.

In terms of the question of whether we should have to go to the FISA Court to make a probable cause showing before we surveil a U.S. person outside the United States, that arose in the context of an amendment that was attached to the Senate Intelligence bill that came out --

SEN. SPECTER: The Wyden Amendment.

MR. WAINSTEIN: Right, the Wyden Amendment.

And that has been an area of much debate back and forth. As you know, under traditional procedure since 1981, FISA did not require that we get a -- in the statute itself from 1978 -- did not require that we get a court order for a U.S. person overseas because of that person's U.S. person status. Instead, what we had is an executive order that was passed in 1981 that required that every time the government wants to surveil a U.S. person overseas, the attorney general himself or herself personally has to make a finding of probable cause that that U.S. person is an agent of a foreign power.

That was challenged at least once in court and has been upheld as reasonable under the Fourth Amendment. It's worked quite well. We have minimization procedures that limit the dissemination, use and retention of U.S. person information that we get from those surveillances. And our argument is, that mechanism has protected American civil liberties quite well.

There are downsides to imposing that as well, operational downsides. And for one, you're taking the FISA Court and, for the very first time, putting the FISA Court into surveillances targeted outside the United States. The statute itself will be saying, person who's outside the U.S., you still have to go to the FISA Court, which is a new extension of FISA Court jurisdiction. Operationally it would also, you know, potentially bring the FISA Court into the realm of having to deal with foreign laws, for instance, laws that might be in effect in the foreign countries where we want to do the surveillance.

So there are some complicated operational matters, some which I think are better left to be discussed in classified setting, that I think are implicated by requiring that all overseas surveillances against U.S. persons have to go to the FISA Court.

SEN. SPECTER: Thank you, Mr. Wainstein.

Thank you, Mr. Chairman.

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