As a member of the Homeland Security and Governmental Affairs Committee, Sen. Rand Paul today attended the nomination hearing of Jeh Johnson to be Secretary of the Department of Homeland Security. Sen. Paul asked Mr. Johnson a series of questions regarding the scope of Fourth Amendment protections on American citizens, as well as civil liberties and privacy issues. Below is video of Sen. Paul's questioning of Mr. Johnson.
PAUL: Thank you, Mr. Johnson, for your testimony.
I was wondering, do you think the Fourth Amendment applies to my Visa purchases?
J. JOHNSON: I don't have a legal opinion on that, Senator. I think that there may be a privacy interest there, but I don't have a legal opinion for you right now.
PAUL: I hope you'll think about it. And I think it's something we all need to think about. And I think the current Supreme Court law actually probably says no. I think it's a tragedy, but that's the way the law has gone.
With my Visa bill, you can tell what books I read, what magazines I read. You can tell whether I go to a psychiatrist -- not yet. You can tell what medicines I buy. You can tell virtually everything about my life, because everything I buy I put on my Visa card.
People say, "Well, I don't have any expectation of privacy because it's a third-party record. I gave it up to someone."
I think this is a big issue for us, and, frankly, the Administration hasn't been very supportive of the Fourth Amendment. And we're going to press these issues.
But I want you to know that we will be watching, and that those of us who believe in the Fourth Amendment will be continuing to watch.
Do you think that a single warrant can apply to millions of records and millions of individuals?
J. JOHNSON: I understand that may be an issue with regard to certain surveillance programs. I don't have a -- I don't have a legal opinion on that for your, Senator.
PAUL: Pretty important issue. It's going to be one of the biggest issues, and, hopefully, it'll get into the Supreme Court.
Do you think that it's due process to have a court trial where only one side is represented? Do you think that's due process, where only one side would have a lawyer?
J. JOHNSON: In the context of a litigation or a courtroom proceeding, no.
PAUL: We do have a court, and that's where we're deciding now constitutional questions: the FISA Court. There is no advocate on the side of the Constitution. There is no adversarial proceeding. And I think there can be no justice.
There's also reviewing of constitutional questions done in secret. Do you think we should decide the scope of the Fourth Amendment in a secret court?
J. JOHNSON: I think we -- in the executive branch and in the FISA Court need to be skeptical, we need to have robust discussion. I've been a part of that in making certain use of force decisions. And I am skeptical of simply a lot of yeses in the room, and believe somebody needs to ask the hard questions.
PAUL: I don't doubt, and I'm not questioning your integrity, but what I would say is that due process isn't a bunch of people -- good people -- in a room discussing whether we should kill people with drones or something. The President has mistakenly said that's somehow due process. That has nothing to do with due process. It may be a good idea, but it's not due process. Due process is in a court, and it's debated back and forth with both sides being represented and with, hopefully, an impartial justice or impartial justices deciding this in an open court.
So there's a lot of things going on in our country which really don't meet due process. And, frankly, whether you're a good or bad person or whether you're in a room discussing this or whether you give vigorous debate is not due process. And it's important that this be said over and over again, because we're making important decisions -- which gets to my next question.
Do you think we should target American citizens overseas for killing, who are not involved in combat? I'm thinking of propagandists, other people who may have committed treason but haven't been charged or convicted? Do you think that a bunch of lawyers in a room from one Administration, from one political party can decide the guilt or innocence of American citizens? These are ones often, if not always or mostly not engaged in combat.
J. JOHNSON: As you pose it, I think my answer would be no.
PAUL: But you realize a lot of the drones are directed against people just walking down the street or eating or doing something. I don't have any problem if an American citizen's over there fighting and they're in the middle of a war and they're shooting at our soldiers, by all means use a drone or whatever other means you have to kill them. But we're killing people, sort of, walking down the street.
So what I'm arguing for -- and nobody really seems to be making the point that I am -- is that, for example, Adam Gadahn, we indicted him. He's probably committed treason. You probably would convince me if I were on the jury to convict him of treason.
Why not go ahead and try these people for treason?
Al-Awlaki, we had him -- we had him listed for years and years. If you have to redact some testimony, or go into private session, do it. Give him a chance. He wants to come home. My guess is he wasn't coming home to be tried for treason.
Well, go ahead and try him for treason, and then I think you at least have due process, because then you've got a real court, a real process. You'd probably have a lawyer on both sides.
I mean the whole idea that justice comes about through representation and through a court trial and through a jury is something too important -- and I know this is an unusual circumstance, we've only had like three or four citizens killed -- but the principle of it's pretty important.
And I think we should all be aware that there were times in our history where we didn't do justice to a lot of people for various reasons. For race, the Japanese-Americans, imagine, you know what happened to them when they didn't get due process during World War II. Also imagine what would have happened to an African-American in 1910 in the South accused of a crime.
So I think there's all kinds of reasons that a lot of us should be a little more concerned about due process and not be so careless about this. So I just hope you'll think about these questions, the scope of the Fourth Amendment, but also what due process is, and that if you're head of Homeland Security you and a bunch of lawyers getting together and deciding it's fine to collect data on every American through one warrant, that's a Constitutional question and it's also not due process.
And I hope that you will be somebody who will facilitate getting Constitutional questions into a real court and not a mock court.