CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY

CONGRESSIONAL BRIEFING
"CONSTITUTION IN CRISIS:

DOMESTIC SURVEILLANCE

AND EXECUTIVE POWER"

11:08 a.m.
Friday, January 20, 2006

B339 Rayburn House Office Building
Washington, D.C.

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

PANELISTS:
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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P R O C E E D I N G S
MR. CONYERS:
come to order.

The Democratic subcommittee will

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

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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

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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."

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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.]
MR. SCHIFF:

Which is odd, because we are

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effectively in recess, but I'm sure that's the only
explanation.

But we'll make do the best that we can.

Mr. 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

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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 PATRIOT

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Act 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

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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.

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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."

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We did not, we do not, and I thank you, Mr.
Conyers, for calling this hearing.
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

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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

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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.

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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.
agree.

I

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.
he shouldn't.

Maybe he should.

Maybe

The point of the matter is we should argue

and debate whether or not he should have those authorities

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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.
they could or couldn't have.

Well, I don't know if

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

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Judiciary, Robert "Bobby" Scott of Virginia.
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.
is not the question.

The question is:

wiretap, does he have to get a warrant?
the normal checks and balances?

That

When he uses a
Is he subject to

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.

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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.
talking about whether he can do it.

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So we're not

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.
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

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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

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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.
the President said.

They hate our freedoms,"

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

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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

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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.
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

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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

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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.
We begin with Attorney Bruce Fein.

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Welcome, and

thank you again for being with us today, sir.
MR. FEIN:

Well, thank you, Congressman and other

members of the Judiciary Committee.
my time is up?

Could you signal when

I know it--

MR. CONYERS:
are veterans up here.

It's a 5-minute deal.

All of you

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."

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And it's

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

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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.
American citizen.

They may have communicated with an
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

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any imminent repeat attack.
didn't know whether

(?)

And, of course, after 9/11, we

.

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.
obvious.

Indeed, FISA itself recognized the

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.

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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 more needs to be said about the fact
that he is violating FISA.
I think it's even more worrisome to understand the
claims he is making of inherent constitutional authority to
undertake any efforts for the purpose of defeating
terrorism, irrespective of congressional action or
otherwise.

For instance, under his interpretation of the

authorization of force, he could suspend the writ of habeas
corpus, which he hasn't done, saying:

This authorization

enabled me to do anything in furtherance of the war effort.
I can suspend the writ of habeas corpus unilaterally even
though Congress hasn't done so.
It would suggest as well that in the amendment
that Senator McCain sponsored prohibiting inhumane, cruel,

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or degrading interrogation, that really is an
unconstitutional encroachment on his powers because if he
thinks that kind of treatment is helpful to defeating
terrorism, he can engage in it irrespective of what the
statute says.
It would suggest that the Lindsey Graham amendment
regulating the civilian review tribunals in Guantanamo Bay
also are unconstitutional because the President may decide
that those kinds of oversight is too great an intrusion on
his ability to extract intelligence and separate out the
real enemy from those who would pose a danger, and,
therefore, he could ignore that statute.
Indeed, the President could claim on a customary
incident or he could put people in concentration camps, as
was done in World War II, claiming:

These are people who

are likely to be spies and saboteurs and aiders of al Qaeda.
I don't need a warrant.

And since Roosevelt did it in World

War II, I can do it now.
He could authorize breaking and entering of homes
in order to secure intelligence to fight the war against
terrorism, despite the fact that there is an authorized

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procedure in an amendment to FISA that governs physical
searches.
Now, the principle that the President has
established here, if gone unchecked, will, as Justice Robert
Jackson said, lie around like a loaded gun and be utilized
by any future incumbent who claims a need.

And the history

of power teaches us one thing, that if it's unchecked, it
will be abused.

There will be overreaching, whether or not

you have a benevolent individual or someone who's
malevolent.

That is the nature of power.

said, "Power corrupts.

As Lord Acton

Absolute power corrupts absolutely."

And we ought not to risk that when there are absolutely
clear, legal, responsible ways to fight terrorism with all
the aggressiveness that we need.
Thank you, Mr. Chairman.
MR. CONYERS:

Thank you very much, Attorney Bruce

Fein.
We now turn to Mr. James Bamford.

Welcome to the

hearing.
MR. BAMFORD:

Thank you, Mr. Chairman, and I thank

members of the committee.

I really appreciate the

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opportunity of speaking before you today.
In the short time that I have, I think it might be
useful just to discuss a little bit of the events that led
up to the creation of the Foreign Intelligence Surveillance
Act, how it applies to NSA, and the dangers of violating
that law.
Those dangers were foreseen many years ago by
Senator Frank Church, the Idaho Democrat who led the
investigation into the abuses of the intelligence agencies
in 1975.

Following his probe, Senator Church came away from

shocked and warned very dramatically about the dangers that
might befall the country if NSA was ever turned loose.

He

said the agency's technological capability "at any time
could be turned around on the American public, and no
American would have any privacy left, such is the capability
to monitor everything:
it doesn't matter.

telephone conversations, telegrams,

There would be no place to hide.

"If this Government ever became a tyranny, if a
dictator ever took charge of this country, the technological
capability that the intelligence community has given the
Government could enable it to impose total tyranny, and

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there would be no way to fight back, because the most
careful effort to combine together in resistance to the
Government, no matter how privately it was done, is within
the reach of the Government to know.

Such is the capability

of this technology."
When Senator Church spoke those words, that was
three decades ago.

Today, the NSA's capability has

increased enormously.

Back then, all the NSA was able to do

was to eavesdrop on hardline telephones and some occasional
telegrams.

Today, the NSA is the largest intelligence

agency on earth and by far the most dangerous if not
subjected to strict laws and oversight.
to virtually get into someone's mind.

It has the ability
It can read a

person's most private thoughts expressed in e-mail
correspondence sent from their home computer, eavesdrop on
their cell telephones as they drive to work, read the
messages from their BlackBerry as they ride the elevator,
and then listen in on their office telephone and monitor
their computer and fax machine as they conduct business.
NSA was created back in 1952, and it was created
in absolute secrecy, as opposed to the CIA, which was formed

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by an act of Congress.

NSA was created by a top-secret

memorandum signed by President Truman, and the existence of
NSA--just the existence of it--was kept totally secret for
almost a decade.
At the very beginning, NSA made a secret agreement
with the heads of the various telegraph companies, including
Western Union, whereby the companies would secretly give to
NSA--virtually every night they would give to NSA, an
employee of NSA, all the cables that went through the
company during that day.

That went on for about 30 years.

NSA got these messages very secretly from Western Union and
the other companies, and there were only a handful of people
in the companies that knew that this was going on.
Then during the Watergate period, President Nixon
turned NSA's giant ear inward during the Watergate affair.
He was concerned about the growing anti-Vietnam protest
movement, and so he called the Director of NSA into his
office and ordered him to begin eavesdropping domestically
on American citizens, very much the same way President Bush
did more recently.
President Nixon ordered Admiral Noel Gayler, who

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was Director at the time, to begin listening to Americans,
and among those people were anti-war protesters:

Joan Baez;

Dr. Benjamin Spock was one of the people listened to; Dr.
Martin Luther King.

He began expanding and expanding, which

is really the nature of this type of eavesdropping, and
eventually they began eavesdropping on authors.

Two authors

who were planning to write books on NSA they began
eavesdropping on.

They put them on the watchlist.

Following the discovery of these things by the
Church committee and also by the Rockefeller Commission, the
Justice Department began a very, very secret criminal
investigation of NSA.

It was probably the only time an

entire agency was looked at as a potential criminal
defendant.

Miranda rights were read to the senior officials

of NSA, and they spent over a year looking into the possible
criminal prosecution of people at NSA.
In the end, the Justice Department investigation
decided against prosecution because they felt that there
would be too many secrets revealed in court.

Nevertheless,

they did find 23 categories of questionable activities.
But what they did decide to do, instead of

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actually prosecuting, was they recommended that Congress
create some new laws that will actually make this a real
violation of law.

At the time it was a fairly gray area

because there were no laws in this area.

So a year later,

Congress created the Foreign Intelligence Surveillance Act,
and paramount in that legislation was preventing future
Presidents from doing what Richard Nixon did--secretly
ordering NSA's giant ear turned inward on American citizens.
At that time, testifying before the House
Intelligence Committee, the Attorney General, Griffin Bell,
made that very clear.

He said, "I would particularly call

your attention to the improvements in this bill over a
similar measure proposed in the last Congress.

First, the

current bill recognizes no inherent power of the President
to conduct electronic surveillance.

Whereas, the bill

introduced last year contained an explicit reservation of
presidential power for electronic surveillance within the
United States, this bill specifically states that the
procedures in the bill are the exclusive means by which
electronic surveillance, as defined in the bill, and the
interception of domestic wire and oral communications may be

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conducted."

That really leaves no avenue for a President

except for going through the FISA court.
The problem you have here is among the people that
can be listened to, once it's taken from the FISA court
judge and given to a shift supervisor at NSA, is virtually
anybody.

And, again, they could start turning the NSA's

giant ear on the American public.

NSA has an enormous

eavesdropping facility for pulling in 2 million
communications an hour at each listening post, so you are
talking about a giant amount of communications being brought
in.

And once a person's in that database, there's virtually

no way to get out.
forever.

It's like India ink.

You're in there

And no matter--if this President is listening to

people he feels that are opposed to his administration,
there's no telling when the next administration comes in
that they will turn the giant ear on somebody that they may
feel is opposed.
So there's a very strong need for this committee
to take a very close look at NSA and the President's
violation of the Foreign Intelligence Surveillance Act.
Thank you very much.

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MR. CONYERS:

Thank you very much, Mr. Bamford.

As I predicted, Congressman Jerry Nadler came in
from New York and is with us now.

We appreciate your great

efforts this morning to be with us.
I am now pleased to recognize Professor Jonathan
Turley.
MR. TURLEY:

Thank you, sir, and thank you and

your colleagues for inviting me here to speak today with
such a distinguished panel.
The disclosure on December 16, 2005, of the NSA
operation has pushed this country deep into a constitutional
crisis and one that there are, frankly, few parallels in our
history.

Our system of Government rests on a certain axis,

a balance of power of a tripartite system, three branches,
none of which have the authority to govern alone.
system, the very scourge is a maximum leader.
against the constitutional grain.

In that

It runs

It creates a dangerous

imbalance.
President Bush has for many years asserted
authority that is both absolute and, in my view, quite
dangerous.

On August 1, 2002, there was the infamous

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torture memo that was put out by the Justice Department that
stated in significant part that the President could indeed
order Government officials to violate Federal law.

In fact,

that memo said that imposing a limitation on his ability to
conduct exercises--for people to conduct exercises that
would constitute torture would be an unconstitutional
infringement upon his inherent authority.

Attorney General

Alberto Gonzales in his confirmation hearings insisted that
he was rejecting that memo, although at the time, we now
know, he was aware of an NSA operation that was based
precisely on the same claim of authority.
The President has also claimed authority in enemy
combatant cases to unilaterally declare a citizen to be an
enemy combatant, to strip him entirely of his constitutional
rights, including the right of access to counsel and the
courts.
On December 30, 2005--just recently--the President
signed the torture bill that was enacted by this body and by
the Senate.

When he did so, he used what was a signing

reservation, a signing statement, where he reserved the
right to violate that law if he considered it to be in the

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Nation's interest.

Now we know that there is an NSA

operation based upon the same extreme theory of Presidential
power.
The problem with these claims is that they're
devoid of any limiting principle.

They place this country

on a slippery slope that inevitably leads to a maximum
leader.
Now, I read the document that was put out
yesterday by the Department of Justice, and I have changed
my written testimony to address that document, and I have
given copies of a longer statement to this body.
If there is any doubt about how extreme these
claims are, I suggest you read that document.

But, frankly,

what is most remarkable is not the sweeping claims of
authority, but the conspicuous lack of authority to support
those claims.
Now, in our system of separation of powers, the
Framers designed what was a unique system, a system where no
branch could govern alone.

That creates an inherent tension

that is healthy for a democratic process.

There has never

been a President that didn't want to be Congress.

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Frankly,

there has never been a Congress that didn't want to be
President.

And, frankly, we have had judges that wanted to

be both at times.

But all of these branches have an

institutional integrity and interest, and so they protect
that delicate balance.
The Supreme Court has rejected the very claims
being made by the President with regard to the NSA
operation.

This operation falls under what Justice Jackson

referred to as the lowest possible exhibit in terms of
executive authority.

It is in direct contradiction of FISA.

Now, I want to be absolutely clear.
President ordered in this case was a crime.

What the

We can debate

whether he had a good or bad motivation, but it was a crime.
Federal law makes it clear you cannot engage in this type of
surveillance, in a domestic surveillance operation, without
committing a crime and that you can go to jail for 5 years.
Now, we can debate the wisdom of that.
debate why the President may have done it.

We can

But, in my view,

the President committed a crime, and we have to deal with
that as citizens and, unfortunately, you have to deal with
that as Members of Congress.

It gives me no pleasure to say

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that, but it also strikes me as an alarming circumstance
when the President can go into a press conference and
announce that he has violated a Federal statute 30 times and
promises to continue to do so until someone stops him.
That's the most remarkable admission I've ever heard from a
President of the United States.
Now, the Federal law is clear because of the
exclusivity provision under Title III.

Title III says quite

clearly that all surveillance done domestically must be done
pursuant to Title III or to FISA, and then FISA makes it a
crime to engage in this type of surveillance without a court
order.
Now, this is the most user-friendly law a
President has ever been given.

FISA virtually is devoid of

a basis to turn down the President.

That's why we've had

over 13,000 FISA applications and only a handful of denials.
When I first went into the FISA court as a lowly
intern at the NSA, frankly, it started a lifetime opposition
for me to that court.

I was shocked with what I saw.

I was

convinced that the judge in that SCIF would have signed
anything that we put in front of him.

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And I wasn't entirely

sure that he had actually read what we put in front of him.
But I remember going back to my supervisor at NSA and
saying, "That place scares the daylights out of me."
supervisor said something interesting.
what?

It is scary.

And my

He said, "You know

But we're here, the lawyers of the

NSA"--I was a law student at that time--"and we won't let
things happen, we won't let a President exceed his
authority."
Well, this President has exceeded his authority.
Under FISA there are three exceptions that allow the
President to, in one case, engage in surveillance and
proceed later to get approval.

The suggestion that time was

of the essence is a ludicrous one.
I have reduced the White Paper by the Justice
Department into five central claims, all of which, frankly,
I believe is meritless.
The first and most important is that the President
has inherent authority to violate Federal law and the Fourth
Amendment.

That is the most dangerous claim of all.

Historically, our most serious wounds as a Nation have been
self-inflicted wounds.

They have been done when we have

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been afraid.
forces.

They have not been done by external evil

We did it to ourselves.

And the way that that

happens is when we remain passive and silent in the face of
unchecked authority.
If you take a look at these claims--and I won't go
through them because time is limited here.
remind this institution of its duty.

I will simply

The Framers believed

that, despite any affiliation to the President, Congress
would jealously protect its authority.

It's a duty to

protect a legacy that you were given and all citizens were
given.
crimes.

What's at stake is not a President who has committed
It's much more serious than that.

What's at stake

is a President who is committing crimes in a name or a
pretense of legality.

He is saying that he has the

authority to do that.
Now, members that stay silent are making a choice.
Very few members have faced this type of test of faith.

But

you are facing it now, and as citizens and as members, it's
now up to us.

We're called to account to the many benefits

that we have gotten from this system.

We're called to

account to do something and not to remain silent.

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I thank you very much for inviting me today.
MR. CONYERS:

Thank you, Mr. Turley.

Your

additional written comments and those of all of our
witnesses will be incorporated into the record.
We now turn to Mr. Richard Hersh, and we welcome
you to these proceedings.
MR. HERSH:

Good afternoon, Congressman Conyers,

and other esteemed Members of the House.
MR. CONYERS:
MR. HERSH:

No.

Can you hear me?

Pull it closer, please.

Good afternoon.

There we go.

Good

afternoon, Congressman Conyers, and other esteemed Members
of the House.

I thank you for including me on such an

august body of expert witnesses.

I can only conclude that

I'm the expert in being spied upon.
[Laughter.]
MR. HERSH:

My name is Richard Hersh.

I'm a

59-year-old male with a painful neurological condition that
severely limits my physical abilities.

I've traveled from

Florida to Washington to advise you of the enormous amount
of surveillance and disruption of peaceful groups by agents
of the Bush administration.

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In November of 2004, people who represented an
association of religious, educational, environmental, peace,
and social justice activists met at the Quaker Meeting House
in Lake Worth, Florida.

This group formed the Truth

Project, Incorporated, a Florida nonprofit corporation whose
purpose is to help educate high school students and their
parents about military service and to give them enough
accurate information to make informed choices about critical
decisions.

As a group, we are various ages, sexes,

ethnicities, creeds, and political philosophies, but we are
all proud Americans.
The Quakers welcomed us into their church because
they believed our intent was nonviolent and was in keeping
in their deeply felt beliefs of teaching peace and
understanding.

They knew our purpose was solely to exercise

our First Amendment rights to assemble peaceably, to speak
freely, and worship as we choose.
We had no idea until one year later that the
unfamiliar faces in the church had been sent by the
President's Department of Defense to spy on us.

NBC News

investigators showed us that agents of the 902nd Military

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Intelligence Group from Fort Meade, Maryland, where the
National Security Agency is headquartered, infiltrated the
Quaker Meeting House, and then filed a report designating us
a credible threat.

The President's agents did not come to

worship alongside us, to help us plan our educational
program, or to protect us.
And it wasn't just us.

Shortly after NBC aired

its report, churches and other groups began sharing their
experiences of infiltration and intimidation with us:

St.

Maurice's Catholic Church in Dania, the Unitarian
Universalists, the Fort Lauderdale Friends, members of Pax
Christi in West Palm Beach, environmental groups, and many
others.

Agents rummaged through trash, attacked and snooped

into e-mail, hacked websites, and listened in on phone
conversations.

Indeed, address books and activist meeting

lists have disappeared.
President Bush tells us only a few phone calls are
listened to, but that's not true.

Mr. Bush says they only

monitor calls to foreign countries, but that is absolutely
untrue.

He tells us he spies only on known al Qaeda

contacts or affiliates, but I know for a fact that is not

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true because I was spied on in a house of worship in the
United States and in private homes in Florida where I was
meeting with other peaceful persons engaged in
constitutionally protected activity.
I have reason to believe that the Federal
Government listens to my phone calls to family members and
friends about purely personal matters.

I have every reason

to believe that the President's agents read my e-mail,
photograph me as I exercise my constitutional rights, record
the license numbers of cars I ride in, and create huge
databases within information about me and my fellow
activists because all this specific activity is on record
from Government files as having been visited on American
citizens around the United States by members of the Joint
Terrorism Task Force, the FBI, the NSA, and other agencies.
If, as George Orwell once said, "In times of
universal deceit, telling the truth is a revolutionary act,
we members of the Truth Project, Incorporated, must be
revolutionaries.

I thought Congress passed safeguards

against indiscriminate domestic spying after the gross
violations of citizens' rights during the civil rights

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movement and Vietnam peace activism.
again--like the Church committee.

But here we are

Today, I think President

Bush should confess the true extent of his domestic spying
program.

Confession is good for the soul.

I think he

should tell us the truth, and that truth should set us all
free.
MR. CONYERS:

Actually, you had a minute when I

raised my hand, if you want to just continue.
[No response.]
MR. CONYERS:

Well, thank you for turning back

your time, Mr. Hersh, and thank you for your testimony.
Attorney Caroline Fredrickson, American Civil
Liberties Union.
MS. FREDRICKSON:

Congressman Conyers,

distinguished members of the panel, thank you very much for
having the ACLU to speak at this, the first of what I hope
is many congressional hearings into the NSA's classified
program of warrantless domestic spying.
And, Congressman Conyers, we applaud you for your
dedication to civil liberties and the rule of law, and I
think this hearing could not come at a more appropriate

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time, falling within the week of the Martin Luther King Day.
As you know, Dr. Martin Luther King was perhaps
the most famous victim of the out-of-control "national
security" surveillance conducted by the Government in the
'50s and '60s.

Supposedly to fight communism, the FBI

illegally wiretapped, spied on, and eventually tried to
blackmail one of this Nation's great citizens.
I'd like to make three short points today about
the NSA surveillance.
First of all, Congress must hold more such
hearings.

The White House must be held accountable, and the

Congress must perform a critical role in this scheme of
checks and balances.
I also would call on the Justice Department to
appoint a special counsel to investigate the program.

The

American people deserve to know how our rights were
violated, and that won't happen unless someone independent
of the President runs the investigation.
Second, I urge lawmakers from both sides of the
aisle to reject specious arguments being made by the White
House to justify the spying.

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Third, and most significant, as we have already
heard today, it is crucial to remember that this is not an
isolated incident.

The Bush administration has a long

record of hostility to basic constitutional norms and
democratic values.
The clearest indication of the White House's
disdain for fundamental American freedoms, aside from this
scandal, has to be the PATRIOT Act.

For more than 4 years,

reasonable men and women from both sides of the aisle have
called on the White House to accept very modest changes to
the PATRIOT Act to better balance national security and
constitutional liberties.

The answer has been a categorical

"no."
In addition, again, as we have already heard
today, the Pentagon has been spying and maintaining files on
Americans exercising their First Amendment rights.
And so is the FBI.

As part of an ACLU FOIA effort

in 20 States on behalf of over 100 domestic political and
religious groups, the ACLU received numerous documents
confirming that the FBI's Joint Terrorism Task Forces are
investigating peaceful activists working on issues from

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affirmative action, animal rights, environmental rights, to
opposition to the Iraq war.
This is the same administration that had retired
Rear Admiral John Poindexter develop the Total Information
Awareness data-mining system at the Pentagon.

That program

was supposed to track in real time the electronic footprints
of every individual in the United States.

The

administration also proposed Operation TIPS, which would
have recruited postal workers and cable technicians to be
snoops for the Government.
And the list goes on:

torture; eavesdropping on

attorney-client conversations; implementing an air travel
system called CAPPS II that promises to tar millions of
innocent air travelers as potential terrorists, including,
as we know, small children and infants; actively seeking to
paint its critics as traitors; secretly deporting suspects
to countries that use torture as an interrogation technique;
rounding up thousands of non-citizens after 9/11 on the
weakest of leads; aggressively using what should be limited
anti-terrorism powers to sidestep traditional checks and
balances; and creating, arguably, the most secretive

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administration this country has ever known.
The NSA scandal is only the latest in a long line
of abuses.
I would also like to remind everyone here just why
we now require judicial supervision of national security
surveillance.
First, historically, the executive branch has
repeatedly used vague claims of "national security" to
justify the sabotage of its political rivals.

For instance,

many would point to J. Edgar Hoover's deep dislike of Dr.
King as the reason for the smear campaign against him.
And, second, without a neutral decisiomaker
keeping tabs on wiretaps, physical searches, and other
invasions of privacy, overeager agents push the limits.

In

the Cold War, legitimate concerns about Soviet espionage
morphed into a wholesale snoop campaign into the lives of
activists and intellectuals who had nothing whatsoever to do
with our national security.
And, third, because of that tendency to overreach,
judicial supervision actually enhances national security by
focusing limited investigative resources on real threats.

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As the New York Times reported last weekend, the NSA
surveillance flooded the FBI with thousands and thousands of
useless tips.

And according t the story, it got so bad that

the agents said they were actually spending time pursuing
what turned out to be a lot of "calls to Pizza Hut."
And as we know, this country has had numerous
other examples of scandals involving warrantless security
under the false banner of "national security."
In the years following the Russian Revolution, the
FBI used the Red Scar to infiltrate labor groups, round up
immigrants, and ruin innocent lives.
In the '50s, '60s, and '70s, J. Edgar Hoover's
FBI, the CIA, and the U.S. military conducted a dizzying
array of programs in the United States to hunt down
subversives, all of which allegedly were justified by the
Cold War, but had little or nothing to do with fighting it.
These programs invariably spied on, harassed, and
kept dossiers on labor leaders, civil rights workers, and
students opposed to the Vietnam War.
Now there is a growing public outcry against the
NSA's warrantless surveillance.

Polls show that not only is

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the public wary of the NSA's actions, it's aware of the
depth of the scandal.

Two-thirds of respondents in a recent

poll said they were following this story closely.
This week, the ACLU filed suit on behalf of a
distinguished group of plaintiffs, including journalists,
scholars, and advocates whose work makes them obvious
targets of illegal NSA wiretapping.

We are challenging the

program under the First and Fourth Amendments, and we argue
that it violates longstanding separation-of-powers
principles.
Before I conclude, I'd like to just make one more
point to correct the record on a key issue.

While the ACLU

has compared the NSA surveillance to Watergate, I want to
make very clear that the NSA surveillance is, by the
President's own admission, far more extensive than that at
issue in Watergate.

As Nixon's White House counsel John

Dean wrote last month, "here, Bush may have outdone Nixon."
In closing, I urge Congress to continue to
investigate this warrantless surveillance, and I urge the
Justice Department to appoint a special counsel.
Thank you again for inviting me.

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MR. CONYERS:

Thank you so much.

Attorney Kate Martin, welcome.
MS. MARTIN:

Thank you, Representative Conyers,

and I want to thank all of the distinguished Members of the
House of Representatives for holding this hearing.

I want

to echo the remarks made by people today about the
abdication of the constitutional responsibility of the House
of Representatives in failing to hold any formal hearings,
and such formal hearings would conduct oversight over this
program and are necessary not only to protect our basic
civil liberties but, in addition, to ensure that the
departments inside the executive branch are, in fact,
engaging in effective counterterrorism activities and not
once again going down the path looking at easy and perhaps
politically unpopular targets while missing those who would
actually do us harm, and that oversight which the House of
Representatives to date has refused to engage in is
necessary for both purposes.
I want to elaborate just for a moment on the legal
analysis presented before you today by my colleagues here on
this panel and make just a couple of points.

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First, as has been pointed out, the Foreign
Intelligence Surveillance Act in three different ways
prohibits the President from conducting wiretapping outside
of the four corners of that act and criminal wiretap
statutes.

And, in fact, the specific issue of whether or

not the President had inherent authority to conduct
warrantless wiretaps outside of those statutes was
considered during the 2 years in which Congress debated and
then enacted the Foreign Intelligence Surveillance Act and
expressly rejected by the Congress at the time.

The

President's signed the bill, and there was no statement that
that limitation was unconstitutional.
The President now argues that, to the extent that
the FISA prohibits the President from engaging in
warrantless wiretapping outside of its procedures, it is
unconstitutional.
In deciding that claim, I agree that it's a
specious claim, but I think that we can look more
specifically to the text of the Constitution.
Fundamentally, their argument goes, the President is acting
here as Commander in Chief to respond to the 9/11 attacks,

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and as Commander in Chief he has the sole power to make
certain kinds of decisions.

In my judgment, that's true.

For example, when and where to attack in Afghanistan is a
matter on which Congress, once the attacks in Afghanistan
have been authorized, can have nothing to say.

What kind of

troops to insert into a specific place is a matter within
the President's Commander in Chief authority.

But the

question of whom and when to wiretap on Americans inside the
United States is a matter that the Constitution specifically
commits to more than one branch when, in the Fourth
Amendment, it states that searches and seizures require a
warrant, and that warrant is to be issued by the judiciary
branch.
So the claim here of inherent authority is
structurally contradicted by the Constitution itself, which
says that the power to conduct searches and seizures belongs
in part to the judiciary, as well as to the Congress, which
here has set the standards for the judiciary to apply in
issuing warrants.
I think it's necessary and we should not forget
that it is not simply a claim that the President has the

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sole power to decide which laws to violate and when to go
outside the judicial power, but that he has the power to do
so in secret.

Remember that until the New York Times

reviewed this program, he withheld the fact from the
American people that his view was that FISA did not limit
his powers.

He secretly believed that he had broader

authority than was laid out in the public statutes, but he
withheld and misled the American people about that view of
his own powers.

And that's evidenced in the statement that

Representative Scott quoted, but it is again evidence in
many of the testimonies that were put before the House of
Representatives in connection with the PATRIOT Act.
One thing I would urge you to do is to examine
what kind of misleading statements, if not deception, were
put before the Congress in connection with this program.

We

were assured repeatedly that Americans' privacy was safe
because there were checks and balances in place and the
administration was following the law.

We all understood the

law to be that which was publicly enacted, when it turned
out that the administration with a wink and a nod has
apparently deemed there to be some kind of secret law and

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then misled the American people and the Congress in what
that law and what those authorities were.
Just one final comment on that.

The President has

claimed that the secrecy was necessary for national security
reasons to prevent al Qaeda from knowing that we were
wiretapping them.
submit to you.

That claim is absurd on its face, I

From day one, before 9/11, al Qaeda knew

that we were trying to wiretap them, as we should be doing.
Al Qaeda knew that the PATRIOT Act was about amending the
Foreign Intelligence Surveillance Act to make it easier to
wiretap on al Qaeda.

It makes no difference to al Qaeda

whether or not they're being wiretapped with a warrant or
without a warrant.
[Laughter.]
MS. MARTIN:

It makes a difference to the American

people whether or not the President is engaging in wiretaps
of Americans without a warrant, and that, I submit to you,
is most likely the justification for keeping this program
secret.
Thank you.
MR. CONYERS:

Thank you so much.

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Ladies and gentlemen, the testimony, the written
statements, the comments of these six witnesses I think
reach a level of such historical importance that I am so
flattered and honored that not just the members here but all
the members in the Congress who feel that there should have
been more formal hearings will rest more comfortably in
their beds tonight knowing what we have done.
presented us with has been so important.

What you have

And I assure you

that this is not just a hearing and then we will move on to
other things.
But before I go into that part of it, I want to
begin with our members seeking questions and adding comments
to this remarkable testimony from you six witnesses today.
But I would like to begin with our distinguished member from
New York, Mr. Jerry Nadler, whose extraordinary energies
were required to get him here when he did, because he was
almost in two places at once.

I am very delighted and

pleased to recognize Jerry Nadler at this time.
MR. NADLER:

Well, thank you, Mr. Chairman.

Mr. Chairman, I want to thank you for--I gather
that Mr. Scott joined me, but for a different reason, in

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asking that this hearing be moved from 10:00 to 11:00,
because he had one problem and I had to make a speech in New
York at 8:15 this morning.

I went home last night, made the

speech, and came back just now for this hearing, which is of
extraordinary importance.
Let me just state briefly, because I didn't make
an opening statement before, I regard--and I have looked
into and I have read the stuff that people here put out, and
others.

The legal arguments the administration makes are

not even debatable.

They're frivolous arguments.

They're

arguments that can only be made by a monarch, by someone who
is trying to justify absolute power in the executive branch.
And as I read what they think the President can do--and
Professor Turley said that the arguments of the Justice
Department have no limits.

There is no limiting principle.

And as I read their arguments, the President would have the
inherent power to order a hit man to walk in and murder
anybody sitting in this room if he in his sole discretion
thought that would help matters of security, and he would be
accountable to no one for that judgment.
That cannot be the law of the United States.

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Absolute power cannot be the law in the United States.

As I

read the statements by the Justice Department, the power the
President claims he has, if he were in Germany in 1933, he
would not have required the enabling act to pass the
Reichstag to claim the power.

He is claiming absolute power

that no one in American history has ever claimed.
This cannot stand.

And it is far beyond the

question of just this warrantless surveillance.

The idea

that the President says, "I am breaking the law"--and he
won't admit he's breaking the law, but "I am doing X"--which
are clearly beyond the law--"and I will continue to do
them," is a challenge to the rule of law in this country
such as we have not seen since 1861, since the rebellion by
the South who said, "We will break the laws because we will
break away from this country."
How can we remedy this?

Well, the House should be

having hearings, official hearings with subpoena power, to
look into this and to take action.
will lead to that.

I hope that this hearing

I do not trust that it will because I do

not believe that the current leaders in this House have the
gumption to stand up for the Constitution.

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I hope I am

proved wrong.
Secondly, I wrote a letter the day after this was
announced to the Attorney General asking for a special
prosecutor--and the ACLU and others have followed
suit--because obviously if you are dealing with what appears
to be a criminal conspiracy by the President, the Vice
President, the Attorney General, and others, you cannot ask
the Attorney General and the people under him to fairly
investigate that.

That is why we have the statute that

authorized the appointment of a special prosecutor.
Obviously, they will dismiss this out of hand because they
will not admit that this is--how real this is.
Thirdly, the ACLU and the Center for
Constitutional Rights have brought two lawsuits seeking
injunctive relief, and they will oppose this, claiming that
nobody had standing, that nobody is injured.

And given the

current Supreme Court, they may get away with this standing
claim.

I don't know.
I do know one thing that I hope will give pause to

every official who is asked to carry out illegal acts as
well as the President, and that is that these are clearly

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crimes and that crimes are prosecutable and the statute of
limitations lasts beyond the term of this President.

Under

the next President, this President, the Vice President, the
Attorney General, and anyone who participates in what are
clearly crimes could be prosecuted.

And I hope people will

understand that and it will govern their actions
accordingly.
Let me ask Professor Turley, you stated
that--before I do that, let me say that my belief that
Congress, that this House will not stand up to its
responsibilities I hope will be proved wrong, because if it
doesn't, if it doesn't launch the proper investigation and
the proper hearings and the proper actions, it will be
greatly endangering American liberties, and it will be
saying, Why do need a Congress at all if the President can
do anything he wants just by claiming national security and
if he can just violate the laws that we pass with impunity.
Professor Turley, you said that these were clearly
crimes.

Under Section 1809, someone who, under color of

law, meaning a Government official, who wiretaps outside the
exclusivity clause against the FISA law, as is being done

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here, is guilty of a crime punishable by up to 5 years in
jail and a $10,000 fine.

Do you believe that these are high

crimes and misdemeanors?
MR. TURLEY:

You know, it's ironic, because the

two hearings I've done a lot of writing is, is Federal
surveillance and impeachment, so this is-MR. NADLER:

I remember you from the prior

impeachment hearings.
MR. TURLEY:
frankly, I do.

--a perfect storm for me, but

If you believe that the President has

violated the criminal provisions of these laws, I don't see
how you could possibly claim it would not qualify under the
impeachment standard.

There have been a lot of people who

have said things like, "Well, he was doing it for the
correct motivation.
country."

He was doing it to protect the

Most high crimes and misdemeanors, as they've

been defined in the past, have involved questions of
official conduct.
In fact, as you recall, in the hearing that we had
on impeachment, one of the great issues was: can private
conduct fall under the impeachment standard?

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And we took

different views on that point, but I think that there's no
question it would.

And also the question of what the

President's position on the crime would be--is a little bit
ambiguous.

I don't see how you can argue that this does not

violate the statute, but he's argued that regardless of what
the statute may say--he makes one statutory argument, that
"I actually satisfied the statute," which is pretty darn
weak.

But then his backup is, "Whatever the statute may

have said, I trump it with my inherent authority."
That's precisely the issue impeachment goes to.
Regardless of what a Federal Court may say about the crimes,
that's not your domain.

Your domain and responsibility is

that if a President has committed a criminal act, you are
obligated to hold hearings.

What I would caution members of

this body is you're establishing a precedent by not holding
hearings.
MR. NADLER:

There's no hearings.

MR. TURLEY:

Right, because it doesn't mean that

you're going to actually find, or actually impeach a
President and send it to the Senate, but at a minimum you
can't establish precedent that you're not even going to hold

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hearings to determine crimes are committed by the President
against citizens of the United States.
MR. NADLER:

Can I just suggest one thing, and

comment on it, and my time probably already has expired.
The question, from the high crimes and
misdemeanors point of view is not really whether a criminal
act is committed.
provenance.

As you point out, that's not our

But the purpose of the impeachment provision

was precisely, if you read the Federalist, to protect
American liberty against the encroachments of a Chief
Executive who would abuse his or her power to encroach upon
liberty, regardless of whether it is a crime or not.
it is a crime, it is a little more clear.

But if

So the question

here really is--in terms of is it a high crime or
misdemeanor--is it an unconstitutional encroachment upon
liberty beyond the power of the President, and so abusing
his office?
MR. TURLEY:

I think that actually this type of

violation should be a textbook example of an impeachment
issue because not only is it a Federal crime, but it
violates the doctrine of separation of powers, and so at

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issue is not just criminal conduct, but a rejection of a
central premise of the system.

When the President held up

his hand and took an oath to God that he would uphold the
United States Constitution, he was promising to uphold the
doctrine of separation of powers.
When the President says that he can't live within
those limitations, it is sort of a self-disqualifying
concession in terms of holding that office.

And so I would

submit to you that you're absolutely right, it doesn't have
to be a crime, but in this case I think it clearly is a
crime.
MR. NADLER:

Thank you very much.

MR. CONYERS:

And thank you very much, Mr. Nadler.

What I am going to do, I have just one question
that I would like to take up with you.

But before I do, I

wanted to ask Attorney Bruce Fein this one question.

What

would you have done when you were the Deputy Attorney
General under President Reagan if you had learned about a
program like this, sir?
MR. FEIN:

My baptism in Washington was Watergate.

I came to the Justice Department at the time of Archibald

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Cox's discharge.
Richardson.

And I very much had revered Eliot

He was the Attorney General at the time.

William Ruckelshaus was the Deputy Attorney General.
of them resigned.

Both

Judge Bork, who then fell into the

leadership post by default, was prepared to resign until he
was urged by Ruckelshaus and Richardson to stay on to keep
the Special Prosecutor's Office alive.
I think those are the standards that ought to
apply here.

You can't tell in advance--you know, in

retrospect, how you would have acted.

But it does seem to

me that an attorney has an obligation in the Justice
Department to secure and defend the Constitution of the
United States, and in cases of clear and open and imperious
breaches, I think resignation is the only method of
responsible conduct.
If I could make just one additional observation,
Mr. Chairman, and other members.

As a practical matter, I

think if we're going to move forward and try to get a
renunciation of this claim of omnipotence of the President
during wartime--which, in effect, means forever because
we'll be fighting terrorism forever--it has a

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confrontational element to it, crimes.

There's going to be

an offishness and a difficulty and a fight over information
that isn't going to be constructive.
Even if there have been sins in the past, the best
way to try to approach this is to say, "But we need to get
recognition by all, especially the executive branch, that
separation of powers is a lie."

Not required, you know,

Henry IV at Canossa and groveling, self-flagellation, but a
recognition, without casting a particular characterization
of the past, that that is not consistent with our
principles, and that going forward we agree it maybe can be
unwritten understandings of how the President consults and
works with Congress during wartime and fighting terrorism.
And this is not the time initially to say
impeachment is what we want to have.

We need to recognize

after 9/11 everybody was frightened.

Maybe the President

overreached.

No one knew whether there are sleeper cells.

But we're well beyond that.
sober second thoughts.

Now is the time for

The President and the administration

should be given a chance, not to have to grovel, but to say,
"Yes, maybe we now have our senses, and maybe we

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overreached, and we will agree to a set of ground rules
going forward."

Now, if he then balks at that, that is the

time to say, "Now, we really do have a King George III, who
received a coronation rather than an inauguration in 2004,
and we've got to go forward."
But as you well know, if you're getting involved
with the executive branch and fighting over information,
you'll be in lawsuits for five or six years and will make
very little progress.
Thank you.
MR. CONYERS:

Thank you very much for that

response that goes back into history, and into another
administration.

I appreciate your candor, Attorney Fein.

The question that I have to present is essentially
where you can go from here.

Attorney Caroline Fredrickson

has given us a list of to-do items that I thought were
excellent.

While we were in the testimony here this

morning, I have signed a letter to all phone and Internet
providers, to inquire how and when they have turned over
customer content and records, as has been reported to the
press, to the Government.

Once we can confirm what access

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the Government has and how it has been used, I think that we
can move forward.
I now invite any of you to make any additional
recommendations for our to-do list, for what I am certain
will be a growing number of members in the Congress that
will be joining us on other hearings that will follow this
one.
MR. FEIN:

I would encourage you, Mr. Chairman, to

consider holding some hearings, not in Washington, D.C.
You're sort of like a Rump Parliament here, to go back to
British history.

But to get a sense of how the American

people, who are not viewing this as an academic separation
of powers issue, feel about the sense of intimidation or
aura of Government overreaching with the principles that the
President has announced.
And there's going to be different views out there,
but I do think this is an issue that has to be kept away of
being an inside-the-beltway issue, where one party or one
group is trying to get the head of another group.

It's so

large and so important for the institutions and for the
people to come together and say, "There's one thing we ought

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to all agree on when we're fighting terrorists, and that is
keep intact the separation of powers, which is the Bill of
Rights for posterity."
MR. CONYERS:
MS. MARTIN:

Thanks for the recommendation.
I would echo that.

As long as the

House refuses to undertake its oversight responsibilities,
that you all continue what you are doing today, which is to
talk about it and to educate the American people about it,
and that that is key.
I think the one place that you will have, perhaps,
an opportunity to question the administration about it, is
that every time an official from one of the intelligence
agencies involved, or the Justice Department, or the
Department of Homeland Security, appears before your
committees, that the questions be asked about how you can be
sure that the answers you are getting are in fact candid
answers.

If the questions have to do with, "What are you

doing," and "How are you protecting American civil
liberties?"

How can you know, as long as the President

continues to make the claim that he is making, which is that
"I have this power and I can exercise it in secret without

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telling you," and that that's a way to demonstrate to people
what is at stake here.
MR. CONYERS:

Attorney Fredrickson?

MS. FREDRICKSON:
inside the Beltway.
holding a hearing.

I want to add one thing, back

Senator Specter has announced that he's
I think that's creditable, but I think

it's very, very important that members of this body explain
to the American public what a real hearing is.

We need to

insist that this is not a one-shot deal, that it's a
whitewash; they go up there, they have a chance to give
their side of the story, and then that's it, because I think
that will not do service to what the American people really
deserve.
So I would ask you to look into what you believe
would really inform us all about this program, what the
Senators need to inquire into, and not allow this
administration to characterize Attorney General Gonzales
going up and speaking once to the Senate as an appropriate
oversight activity.
MR. CONYERS:

Excellent.

Professor Turley?

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MR. TURLEY:

The only thing I would add is--I'm

not as solicitous as Bruce is when it comes to issues of
impeachment.

To me, impeachment is not an effort to get a

President to come around.

It's not the job of this body to

try to coax a President into fulfillment of his
constitutional duties.

This President has already stated

quite clearly that he believes he can violate Federal law.
That, for our system, is the equivalent of a declaration of
war on the separation of powers.
But one thing I would encourage you to think about
as a collateral matter is how important the is for Congress
to pass a shield law for journalists.

This is a great

example of why journalists need to have a Federal shield
law.

The fact that the administration's first act was to

pursue the whistleblower and potentially threaten these
journalists shows how vital it is for us to have a statutory
protection supporting the First Amendment.

If the

administration continues the way it's going, it's going to
significantly diminish the ability of journalists to hear
from whistleblowers.
I'm referring to the fact that this administration

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has used a waiver that is given to all officials in a
particular office, and they're all asked to sign to waive
confidentiality, so that if you don't, you self-identify,
but if you sign it, then you're signing something false
unless you actually did waive.
We're in a very precarious position unless we get
a shield law so that these types of abuses can be disclosed.
MR. CONYERS:

Mr. Bamford?

MR. BAMFORD:

I just have one small suggestion.

think one of the problems in terms of the public paying
attention to this is they have the idea when you talk about
wiretapping, that it's some FBI agent climbing up a
telephone poll outside their house and putting some
alligator clips on a wire, and they have no concept of the
whole idea of signals intelligence.

This is what NSA

engages in, which means whole scale eavesdropping,
eavesdropping on the entire streams of communications
entering and leaving the country, virtually everything
entering and leaving the country.
And if there were any more hearings that would
further elaborate how the NSA does its job and the

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I

difference between the public conception of a wiretap and
signals intelligence, I think it would be very helpful for
the public to understand that it's not just somebody that
may climb up a wire, but it's somebody who just pushes a
button in an office thousands of miles away, and it's their
cell phone, their e-mail, their Blackberry, their fax,
everything goes into it.
Thank you.
MR. CONYERS:

Thank you.

Very good.

Did you want the last word, Attorney Fein?
MR. FEIN:

I would just suggest consideration of a

Joint House/Senate Committee, as was done with the Iran
Contra investigation.

I think that does underscore the

importance of the issue to the American people, and it has a
sustaining element to it as Iran Contra did, that I think
would further illuminate the questions.
MR. CONYERS:

Thank you so much.

Mr. Hersh?
MR. HERSH:

Thank you.

Can I just say that as a

citizen, I have heard today that the President has obviously
broken the law, that he has claimed unjust powers to

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himself, which is characteristic of tyrants and kings, that
he has admitted that he's broken the law, and if you read to
oath of office, he's not upheld the Constitution of the
United States.
I think it's time for us to act.

I think to

protect our civil liberties and our constitutional rights,
it's important to hold him accountable, hold the President
and his entire administration accountable for their
misbehavior.
MR. CONYERS:

Thank you so much.

The Chair recognizes Congressman Adam Schiff.
MR. SCHIFF:

Thank you, Mr. Chairman.

I wanted to

just, at the outset, before I ask a question, to make a
couple other suggestions for immediate steps.
And following up on your comments, Mr. Fein, I
would hope that those within the administration who have
been working on this program would immediately cease and
desist from any further electronic surveillance not approved
by the FISA Court.

If not, because very legitimate and very

serious legal questions have been raised, then out of
respect for their own potential liability.

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I would hope if

there's anybody at DOJ that is watching this, or at NSA,
that they are mindful of the very serious legal questions
that have been raised, and that any future surveillance go
through the FISA Court.
Second, I think that we should use the opportunity
of the PATRIOT Bill Conference Committee to make it
abundantly clear, if it is not clear already--and, frankly,
I think it is very clear--that the Congress, in the
authorization to use military force, was not authorizing the
President to do electronic surveillance outside of FISA.

I

think we have an opportunity legislatively, because if we
wait for this to be resolved through litigation or even
oversight hearings, if the administration continues taking
the position that it is going to continue this form of
surveillance, then it is going to go on for months and
months without abatement.
So those are at least two things that I think
should be done in the very near term.
I wanted to push back just a little bit on your
comment, Mr. Hersh, and something you said, Mr. Turley, and
that is that I don't believe the President has said that he

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believes he can violate Federal law.

I think what the

President has said is that he believes he is not violating
Federal law.

And part of the reason I am not confident that

the President will cease and desist is that I believe the
administration would view it as an admission of culpability,
in doing something it wasn't authorized to do.
Basically, to me what the administration is
arguing in its legal papers, there are perhaps five
arguments that you point out, Mr. Turley, but for me there
are only--there is only really one credible argument, and
that is--it is a three-part argument:

one, FISA allows

exceptions; two, the authorization of use of military force
is such an exception; and three, if it isn't, FISA is
unconstitutional.
Now, I don't, frankly, on those three points, the
only one I think that has any merit is that FISA does allow
exceptions.

I don't think there is any merit, frankly, my

point of view to the argument that the authorization of
using military force was such an exception.

Indeed, as I

think Mr. Van Hollen pointed out so eloquently in his
opening statement, all of the debate that we have been

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having over FISA and the PATRIOT bill is completely
meaningless.
The administration could have come in to the first
hearing and said, "You can debate all you want, we don't
care what you do with the PATRIOT bill or FISA.
matter because we can do what we want.
authorized it.

It doesn't

You have already

And what's more, if you try to unauthorize

it, it is unconstitutional and you lack the authority."
So, plainly, the administration I think believed
that it still needed to come to Congress for authorization
of just this type of surveillance under the PATRIOT bill and
under FISA.
But I would like to ask you, Mr. Turley, and Mr.
Fein, Ms. Martin, if you would--and, Ms. Martin, I think
your point is right on the money, because it was really
nagging me too, from the very moment the administration
argued that the mere disclosure of this surveillance was
injurious to national security, that they could not come to
the Congress without impairing national security on this, if
the terrorists don't think that we are doing electronic
surveillance, then they are a lot less sophisticated than

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they seem to be.

And I agree completely, to them, they

don't care whether it goes to the FISA Court or not, but we
do care.

The whole argument about whether it goes through

FISA or not and somehow injure national security, I don't
buy.

I think it is palpably false on its face.
But I would like to ask you is what is the most

credible argument you believe the administration has?
Because you are all of one mind really on this panel, I
would like you to take the other voice today.

What is the

most credible argument they have, and why do you feel that
that is not legally merited?
MR. FEIN:

I think that the--the administration

has not, in their most recent filing, claimed inherent
constitutional power to ignore FISA on the theory that it is
too much constraining of the President's hands.

What it has

argued is that it would be such a close constitutional
question if FISA did attempt to constrain him,
notwithstanding the authorization of use of force, that any
ambiguity as to whether the authorization to force overrode
FISA should be resolved in favor of the overriding of FISA
by the statute.

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That is my judgment is their best argument, and
already on its face is so implausible that it's hard to have
gradations here, because the argument basically comes down
to the idea that they have articulated, that when it comes
to conducting warfare, there are no limits that the Congress
can place on the President.
For example, you may recall that during the
Vietnam War, Congress prohibited Nixon from bombing in
Cambodia in 1970, and this argument would be, well, the
Congress couldn't do that.

If Congress tried to prohibit

the use of Federal funds to send gun ships to the Persian
Gulf to launch missile attacks against an Iranian nuclear
facility, the theory would be Congress is trying to handicap
or arrest the President's ability to conduct the war.
Now, I went back and looked at one of the early
decisions of Chief Justice John Marshall, who was one who
idolized George Washington.

He fought in the Revolutionary

War and he wasn't abashed about Executive powers.

But

during the War of 1812, the issue arose as to whether or not
the President could confiscate and seize enemy property
within the United States without any authority of Congress.

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And Chief Justice Marshall said no, said, "It appears to the
Court that the power of confiscating enemy property is in
the legislature."

This is a case, of course, not cited by

the administration in their brief.

That is why I would say

even though that is their strongest argument, it is anemic.
MS. MARTIN:

I think I would say that their

strongest argument is based on the claim that they need to
do this as part of intelligence directed against the enemy,
and that that's a constitutional authority on their part.
I think that the difficulty with that argument is
that they then claim that they can't adequately exercise
that either within the statute or with the oversight of the
FISA Court, and that they can't adequately exercise that
inside the United States, and that they haven't made that
case.

And that to make that case, they're going to have to

read away the limits of the Fourth Amendment, because the
Fourth Amendment says that searches and seizures in the
United States have to be two things:

reasonable, and unless

there is a good reason to avoid it, have to have a warrant.
And they can't make the case that they need to avoid FISA
and still meet the requirements of the Fourth Amendment,

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even if the President does have some inherent presidential,
commander-in-chief authority to conduct surveillance on the
enemy.

The question is how and within what limits inside

the U.S.
MR. TURLEY:

Congressman Schiff, first of all, let

me clarify what I meant when I said that the President
believes he can violate Federal law, as I lay out in the
written testimony.

I think you have correctly laid out what

the administration is putting forward is a series of
alternative arguments, and, frankly, it comes across as an
intelligence operation in search of legal rationales.

The

first one is that they are not violating the Federal statute
because the statute says that you cannot conduct electronic
surveillance under the color of law, except as authorized by
a statute, and they are claiming the force resolution is a
statute that does that.
I think on its face, that one can't be in the
running because it is perfectly absurd.

The reason is that

the Congress had in fact refused to make some changes during
that period to expand the authority of the President.

The

resolution itself was changed so not to be too broad.

And

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nobody can cite to a single piece of evidence in legislative
history--and as you know, you guys produce the legislative
history by the bushel load--no one can find a single page, a
single reference, a hint that anyone thought that the
resolution meant this.

So that one we have got to take off

the table.
When I was learning to be a litigator I was told
that you have to follow what is called "the red face test,"
that you have to make sure that any arguments you make in
court you don't get a red face, and that one violates the
red face test.
[Laughter.]
MR. TURLEY:

Now, the second argument is that the

President has the inherent authority, regardless of FISA, to
carry this out, that he, because we are at war, et cetera,
that Congress cannot limit it.

There are sort of two

arguments in there, but dealing with both of them together,
I think that is probably where their best option is.

I

mean, frankly, I think the only way they could get through
this is to say that FISA is unconstitutional.

It is the

only clear argument to say, "You just simply can't restrict

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me with regard to domestic surveillance."
The problem with that argument is that, as we
talked about no limiting principle, is that it would involve
any statute.

We have already heard that the President said

that he is reserving the right to violate the torture
prohibition.

We have seen with enemy combatants that he has

reserved the right to strip citizens of all their rights
including access to counsel and the court.

We have seen

here that they believe that regardless of that initial
argument under FISA, at the end of the day, FISA may be
unconstitutional because of his inherent authority.
then it doesn't matter what the statute is.
surveillance today.

Well,

It could be

It could be a torture statute tomorrow.

It could be a banking statute the next day.

The point is,

the President is saying as long as I am acting under the
color of national security, I have an inherent authority
that trumps the Federal law.
That is probably their best one, but, boy, I would
hate to make that in a court of law.
MR. SCHIFF:

I just want to thank you all.

I

think the last point that you made, and, Mr. Fein, you made

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also, just have different forms.

What they're arguing is to

avoid any limiting principle, Mr. Turley, I think is right
on the mark.

There is no way to limit the authority they

are claiming.

That is what of such great concern.

Mr. Chairman, the Mayor of Pasadena asked me to
offer something in the record.

If I could, I would like

that to be included in the record.
MR. CONYERS:

Without objection, we will take that

into the record.
MS. FREDRICKSON:
MR. CONYERS:

Can I say one thing?

Yes.

MS. FREDRICKSON:

I just wanted to add to my

colleagues' comments to your question, Congressman Schiff.
I think what the very learned panelists have shown that this
is not an argument that is going to take place, at least in
the President's mind, in a court of law, and that he thinks
he is going to win in the court of public opinion.

I think

that is why it is so critical that you are holding this
hearing today and why it is incumbent on Congress to
continue such hearings, because without that, there will be
no oversight and no holding this President accountable.

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MR. CONYERS:

Thanks for that very illuminating

question, Congressman Schiff, that you posed.
Congressman Van Hollen?
MR. VAN HOLLEN:

Thank you, Mr. Chairman.

And I

want to thank all of the panelists here this morning for
your excellent testimony, input on this very important issue
facing our country.
You know, all our children learn in elementary
school at some point the general process that we go through
to pass laws in this country.

The House and the Senate has

to pass it, and the President has to either sign it or veto
it.

If he vetoes, then it goes back to the Congress for

potential override of decision there.
A lot of people have marveled over the fact that
this President does not veto any legislation, and now we
know why.
[Laughter.]
MR. VAN HOLLEN:

He doesn't veto any legislation

because he has taken it upon himself to decided to ignore
those laws that he decides he doesn't like, at least in the
national security area, or ignore those parts of those laws

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which he doesn't like.

And he has these signing statements

that accompany these things saying, "Yes, except for this,
and I'm not going to pay attention to it."

It is something

that I think anybody going through even the simplest
explanation how our system works realizes how ludicrous the
position he has claimed here is.

It would be funny if it

wasn't so serious, the issues that we're facing today.
I just want to underscore a point that my
colleague, Congressman Schiff, made with respect to notice
to people who are right now today engaged in wiretapping
activities.

I think people would have a plausible defense

that they were operating in accordance with a presidential
directive if they were not later put on notice about the
serious questions that have been raised with respect to the
legality of that authority.

But certainly people have been

put on notice within the last month, and through hearings
that will take place, that there are extremely serious legal
questions here, and I think the testimony of the panel, in
my view, is that it is a pretty slam-dunk case here that the
President is not operating according to his authority.

I

hate to quote George Tenet on that, but in this case, it is

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a slam-dunk case.
So I think it is very important that people come
forward.

Obviously, the people who originally came forward

with the reports to the New York Times or whoever, were
concerned potentially about their reliability and their
responsibilities in these areas.
I want to go back to what I think is this
essential question of a living principle, because the way
the Vice President has talked about this, the way the
President and the Attorney General has talked about it, it
makes it sound like, well, this is a very, very narrow
program as they have put it in place.

Now, we don't know

all the facts about how they are conducting these
operations, but I think it is important that the American
people know, number one--and I would like all of you to
confirm this if it is true--that the President, when he is
conducting wiretapping operations overseas, he has the
authority without going to a FISA Court to undertake that
wiretapping.

Would everyone agree with that?

MR. FEIN:

Yes.

If he's intercepting battlefield

intelligence in Afghanistan, he doesn't need to go to any

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court.
MR. VAN HOLLEN:
MS. MARTIN:

Exactly.

Of if he's intercepting conversations

in Paris, he doesn't need to go to any court.
MR. VAN HOLLEN:

Exactly.

Now, if you have two

people here in the United States on tourist visas, neither
of whom is a United States citizen or a resident of the
United States, the President can wiretap their
communications, or can he not wiretap those communications?
MS. MARTIN:

He needs a warrant.

The Fourth

Amendment covers everyone inside the United States, but the
FISA provides for a lower standard to wiretap those people
than to wiretap Americans and legals.
MR. VAN HOLLEN:

Let me rephrase the question, and

just looking at FISA, not the Fourth Amendment issue, under
FISA, my understanding is that as long as there is not a
significant probability that he is going to be wiretapping a
United States person, defined as a citizen of the United
States or alien lawfully admitted for permanent residence,
the President can do that, but I guess we can follow up on
that.

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The point I want to make is this, that I think
there are a lot of American citizens out there saying, "This
can't happen to me, the way the Vice President and the
President are talking about.

It will never happen to me."

And Mr. Bamford, in his testimony, talked about exactly what
happened before we had the FISA, and why the FISA provisions
were put in place.

Mr. Hersh's testimony is clear that even

with this in place, it looks like they decided to ignore the
law, and that is what this whole operation has been all
about.
But if you could just very briefly, in sort of lay
man's terms, talk about why it is the President's argument
has no limiting principle.

I think from a legal point of

view, we can see it, but just if you could briefly explain
to any people watching, why it is that their legal position,
regardless of how they are putting it into operation, the
logic of their legal position means that the President can,
if he so determines in the interest of national security, to
wiretap the telephone conversations taking place between any
of us in this room?
MR. FEIN:

Representative Van Hollen, I think the

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easiest way is to describe the President's position as a
codicil to something President Richard Nixon asserted, which
was, if the President says to do it, it's constitutional,
whether it's breaking into homes of Daniel Ellsberg's
psychiatrist or otherwise.

That was repudiated.

Now, all

of the difference that President Bush has maintained is, as
long as I say I am doing it in order to fight terrorism,
then it is automatically legal.
As I say, when he is making the assertion that
there's any provision that has historically been associated
with wartime activity, "I can do it on my own no matter what
Congress says."

That means we could have concentration

camps like World War II.

And even if Congress prohibited

them by statute, he could say, "That's an incident of war."
That is how broad and sweeping this is.
to go back to 1861.
not all that old.

And we didn't have

Richard Nixon is in my lifetime.

I'm

And this is an example, again, of power

trying to overreach itself unless it's checked, and that is
what is at issue here.

It seems a little academic, but it's

having your liberties encroached upon by inches rather than
miles all at once, and then you lose them on the installment

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plan rather than a balloon payment.
MR. CONYERS:

Thank you so much.

Congressman Scott?
MR. TURLEY:

Excuse me.

Professor Turley?

Well, I just had a very small thing

to add, and first of all, appearing academic is not a vice.
But there's another aspect to the lack of a
limiting principle.

We have been talking about the inherent

authority argument advanced by the President, how that
doesn't have a limiting principle.
aspects that are equally extreme.

But there's other
For example, the

President has put forward the principle of constitutional
avoidance.

His argument, through the Attorney General, is

that because he considers there to be ambiguity in whether
he has this authority or not, that you have to avoid the
conflict, that you have to read FISA in a way to recognize
his authority.

That argument would have no limits.

First of all, there is no more law--there is no
law that is more specific than FISA.

I mean FISA is as

specific as you can get, and it is as clear as you can get.
But the President's argument seems to be, "If I don't accept
its clear meaning, it's ambiguous, and therefore, you have

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to avoid a conflict with me."
Now, under that argument, the President could
engage in interstate auto theft and say that, "I didn't
think that I was prohibited from stealing cars and moving
them across State lines."

That's not what the

constitutional doctrine is about.

And so there's aspects,

not just the constitutional claim on the Article II issue,
that are quite extreme and without limit.
MS. MARTIN:

As a litigator, I always like to

articulate the other side's argument as powerfully as they
might, and I think their most powerful argument on the
no-limit question is they would say, "Yes.

No, no, no.

You're wrong, that we--the limit on our domestic wiretapping
is that we only wiretap individuals who the President
determines have some kind of connection or link to al Qaeda,
an associated group or terrorism.
they would say.

So that's not limitless,"

And I think that the response to that is:

it's limitless because the President decides solely on his
own, and does so in secret.

And we see what happens because

Mr. Hersh and his colleagues, and other religious groups,
are now on those lists, the President's determination.

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And

that we have a system that says when you want to make that
determination that someone is connected to terrorism, that
the judiciary or some other branch, we have some oversight
on that.
That's where the lack of limit comes in, is that
the President is free to, on his own, pick and choose who he
is going to go after.
MR. HERSH:

Could I say something, please?

I am

not an attorney, so I'm not going to try to play one on TV
here.

I can't speak to the legality or the justice of what

the President claims to be doing, to send his agents into a
Quaker Meeting House to violate my First and Fourth
Amendment rights is as ludicrous as saying we had to burn
the village in order to save it.
I taught writing at the University of Florida and
Florida Atlantic University.
a non sequitur.

And I can tell you that that's

It's illogical.

It's not illegitimate or

unjust, as these distinguished jurists have stated, but it
makes no sense.
MR. BAMFORD:

If I could make just one brief

comment.

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MR. CONYERS:

All right.

MR. BAMFORD:

I will just take a minute here, but

just to agree with Mr. Hersh there.

During Watergate one of

the targets of NSA under Richard Nixon was the Quakers.

He

ordered--I interviewed an official from NSA, who told me
that that was one of the targets Richard Nixon ordered, was
to eavesdrop on the Quakers because they were active in the
anti-war movement at the time.

These aren't frivolous

worries I don't think.
MR. CONYERS:
MR. SCOTT:

Now Mr. Scott.
Thank you, Mr. Chairman.

I just wanted to follow up on another round of
questioning, because if the President, in his own mind,
determines that war protesters are undermining the war
effort, does that make them fair game for wiretapping?
MR. FEIN:

He's not rejected that idea,

which I

would say is a disturbing element that is in all of his
explanations, both directly and through his surrogates.
He's never said, "Of course, I can't do this."

I remember

at one recent press conference a reporter asked whether
there are any limits, and his retort was, "I'm not a

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dictator."

He didn't say how he wasn't a dictator, but that

was his response.
[Laughter.]
MR. FEIN:

And that's what's troublesome, he's

refused to say there are any principles that he would
utilize as a matter of Executive self-restraint, to say,
"Not going there."

And that betrays a mindset that is very

worrisome.
MR. SCOTT:
infiltration.

Well, Mr. Hersh has outlined some

Are you familiar, Mr. Fein, with the Levy

guidelines?
MR. FEIN:
MR. SCOTT:

Yes.
Under the Levy guidelines, could you

do that?
MR. FEIN:

Well, the Levy guidelines have been

changed and altered, but I do think-MR. SCOTT:
MR. FEIN:

Could you describe what they are?
The Levy guidelines were intended to

set limits on the FBI's infiltration of various domestic
groups in search of possible criminal activity.
MR. SCOTT:

Without investigating a crime and with

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no probable cause that a crime is going on.
MR. FEIN:

That is correct.

But they were in

circumstances where typically you wouldn't necessarily have
a Fourth Amendment privacy issue at stake, for example,
surveilling a group that was holding a public demonstration
that everyone else could see.

Now, in this instance, if you

have an open place that's generally available to anybody in
the public, it wouldn't necessarily be a Fourth Amendment
violation for the FBI to go where anyone else could go, even
if they had some purpose that wasn't--that was some
nefarious purpose.

But certainly, it's calculated to create

a kind of chilling effect by suggesting there's going to be
data there that could be utilized for an improper purpose
later on.
MR. SCOTT:

So what do the Levy guidelines say

about that situation?
MR. FEIN:

Well, if there is absolutely no

suspicion to think that there would be any utility in
pursuing some criminal activity of this kind of
surveillance, then that ought not to be done.

But there

were exceptions that were made, I think, by General

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Ashcroft, that authorized the FBI to go into public places
if they had some belief they might come across a terrorist
activity.
MR. SCOTT:

The Levy guidelines were set up to

prevent the FBI from infiltrating groups where there was no
criminal investigation going on, there's no probable cause
that any crime was going on, and under the Ashcroft
administration, they eliminated the guidelines.
MR. FEIN:
guidelines.

No, I don't think they eliminated the

They did say that in pursuit of terrorists,

that there were--there was proper--where activity was
occurring in an open place, where persons were not prevented
from entering, for the FBI to make observations that they
thought might be clues to terrorism, even if it might not
have been included earlier.
MR. SCOTT:

And so based on the old Levy

guidelines before Attorney General Ashcroft got hold of
them, you couldn't infiltrate Mr. Hersh's organization, but
now with the new interpretation that came out a couple of
years ago--nobody was watching, they just kind of changed
it, and we knew it but nobody paid any attention to it--now

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that is exactly what they are doing and exactly what they
had anticipated doing.
MR. FEIN:

But I want to be clear on it because

this is--you know, we don't want to overstate things.

I

think the use of infiltration when someone is entering a
place that's open to the public may be a little bit
inaccurate and inexact.

It may be something that we don't

like, but that's different from infiltration-MR. SCOTT:

The chilling effort of your public

meeting, of your little meeting now attracting FBI agents to
listen in is something new that hadn't been done--Ms.
Martin, did you want to comment?
MS. MARTIN:

I want to agree that allowing

undercover FBI agents into religious meetings is seriously
troublesome.

But I want to also point out that we've seen

in the last six months is that the Defense Department, which
is not subject to even the Ashcroft guidelines, appears to
be sending people into religious meetings.

And NSA, of

course, is part of the Defense Department.

I suspect that

if we could get the facts, we would discover that they have
changed all of the rules and regulations about Defense

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Department surveillance of Americans, and that the NSA
program is only one aspect of it, and the infiltration of
groups like Mr. Hersh by Defense Department elements is
another aspect of it.
MR. TURLEY:
MR. CONYERS:
MR. TURLEY:

May I comment?
Mr. Turley.
Part of the problem, in terms of your

question, when you ask is there any way that this can be
limited so that people like Mr. Hersh are not targeted, is
that the President's argument doesn't lend itself to any
moderate alternative position.

That is, he has mapped out

an extreme position that doesn't really have an alternative,
that his position is [technical interruption], and that
where Mr. Hersh is protected is in the discretion of the
President.

The important thing to remember is that once you

say that something is committed to the inherent authority of
the President, like something like national security, courts
do not question that judgment as a general matter.

Courts

don't come in and say, "I think you were wrong that this
person was a risk and not that person."

If it's committed

to the discretion of the executive branch, it goes into a

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realm of total discretion, because courts really don't
exercise much of a role in questioning national security
judgment.
So part of the answer to your question, I think
what the President would say is that, you know, "We exercise
this discretion.

We have this internal review process," and

I note that the Attorney General said that every 45 days or
so they review this program.

But the important thing to

remember is that all of these reviews, all these procedures,
are all self-contained within the executive branch.

And the

President's people around him are strong believers in the
sort of unitary executive theory, so that whenever you hear
about these procedures, they lack one notable
characteristic, and that is that they are outside of the
President's control.
MR. SCOTT:

Better known as a check and balance.

I want to ask Mr. Bamford one question, and that
is that we are talking about whether or not he has to stop
by to get a warrant before he does legitimate wiretaps.

Is

there information that is unavailable to the President if he
would bother to get a wiretap and subject himself to some

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check and balance?

Because people want to suggest that we

ought to be scared to death of a battle like this,
prohibiting the President from protecting the public.

We

are not asking the President to stop protecting the public.
We are just asking him to get a warrant on the way.
MR. BAMFORD:

Well, not to my knowledge.

There

are allegations by NSA and the administration that there are
technical means, which is one of the reasons that they want
to avoid the warrant procedure.

But over the first 30

years, the FISA Act has been tweaked a number of times,
whenever there has been a change in technology or a change
in technique.

The proper procedure would be to go to the

intelligence committees and so forth and work out a way to
rework it.

They moved it from 24 hours to 72 hours, for

example, the amount of time.
MR. SCOTT:
MR. BAMFORD:

For a delayed warrant.

MR. SCOTT:

That's right.
You go start wiretapping, and you had

72 hours to get back to the Court.
MR. BAMFORD:

Yes.

It started out with 24, and

then they gradually moved it to 72.

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But the point is that

that is a possible.

They could simply go and change it.

But as far as I know, and the people I've talked to, there
has been no effort made whatsoever to at least legislatively
change the FISA Act to accommodated any new technology, and
if there is a new technology, that's something that I think
should be considered because it's an advance on what we
already have, and what we already have is very frightening
in terms of the capabilities.
MR. SCOTT:
MR. CONYERS:

Thank you, Mr. Chairman.
Thank you so much.

Mr. Wexler.
MR. WEXLER:

Thank you, Congressman.

Given the failure of this Congress to exercise its
responsibility of oversight, and I think the fairly
reasonable expectation that the leadership of this Congress
will continue to stubbornly refuse to exercise our
constitutional oversight, it seems to me that the only venue
or vehicle in which to successfully force the leadership of
this Congress to act is in fact in the court of public
opinion.
Yesterday Americans received the latest chilling

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threat from Osama bin Laden.

I think most Americans,

particularly after September 11th, presume that the
President of the United States will act in the best interest
of America in terms of our security interests.

They want to

give the President of the United States a benefit of the
doubt.

I think Congressman Van Hollen hit it on the head.

I think most Americans, when they hear descriptions of
surveillance and wiretaps say, "Well, that can't happen to
me.

I'm just going to work.

school.

I'm just a retiree.

go to synagogue.

I'm just driving my kids to
I just go to church or I just

I just go and exercise my religious rights

the way I wish."
Ms. Martin talked about what I think is the
administration's presentation of the exercise of their
discretion as always couched in terms of a connection and
link to terror.

Professor Turley, I think, rightfully

pointed out that in essence the President claims the
exercise of discretion.
So in that regard I would like to ask Mr. Hersh,
if I could, the President has exercised his discretion.
Secretary of Defense, Mr. Rumsfeld, has exercised his

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The

discretion.

The Commanders at the NSA have exercised their

discretion.

The enlisted people, who were ordered, I

presume, to go and sit in the Quaker Church in Palm Beach
County, they followed their orders.

Could you describe for

us--and you have to some degree--but I think it is important
for Americans to understand in the context of that question
"it can't happen to me"--who was sitting in that Quaker
Church in Palm Beach County?

Were these people that had

traveled to Afghanistan in the 1990s?

Were these people who

had taken plane trips to Pakistan, people who had ongoing
dealings with Iraqi agents?
grandmothers were there.

My understanding is a bunch of

Can you describe for us, so

America understands, the answer to the question "could it
happen to me," who was in that church when the Department of
Defense ordered enlisted people to go spy on Americans?
MR. HERSH:

Yes, I can.

59, father of two daughters.

There was me, disabled,

There was Evelyn Grachow (ph),

79-years-old, grandmother and an activist, former union
member.

There was Deborah Smith, an Asian-American

housewife.

There was Javier del Sol, a Native American and

a student.

There was Marie Slicker (ph), mother of Native

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American children, and a nurse.

There was Alvin Taylor, a

pharmacist, a retired pharmacist and retired attorney.
There was James venable, an African-American, a Web
designer, a marketing person, a businessman.

There was his

wife, Bonnie Reading, a European-American like myself, who
is a legal attorney, a real estate agent, and a direct
marketing person.

I hope I haven't left anyone out, and if

I have, I hope they can forgive me.
There were a number of other Quakers there as
well.

I can't name them all, but I do know that none of us

had traveled outside the country.

None of us had, to my

knowledge, made any phone calls outside of the country.

We

were just people interested in getting at some truth, and
educating our children, teaching them how to think, and
giving them the facts so that they could make informed
decisions.
MR. WEXLER:

The fact is, Mr. Hersh, as I see

it--and you haven't said it--but there isn't the slightest
bit of connection between you or anybody in that church and
anything to do with terrorism or the security of the United
States.

The fact is, what the Truth Project is, is a group

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that may have a philosophy that is adverse to the political
philosophy and the political goals of the President of the
United States, and as a result of that differing philosophy
and the exercise of your political rights as Americans, the
President of the United States, the Secretary of Defense of
the United States, ordered that your group be spied on.

And

it doesn't have the slightest bit to do with Iraq, not the
slightest bit to do with Afghanistan, not the slightest bit
to do with al Qaeda or the SOB who threatened America
yesterday.

And the President of the United States and

Americans need to understand what this President is all
about in engaging in the NSA program that he has
unfortunately engaged in.
And the question in my mind that comes, if what
the President is doing is entirely legal, then why wouldn't
he have just gone through the accepted legal process to
begin with?

If he had gone through that process, we are

told that on 13,000 occasions he could have legally possibly
done what he did in that Quaker Church.

But apparently, the

President of the United States and the Secretary of Defense
have chosen a different path with no court approval to spy

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on people like you and the 79-year-old grandmother, and
these other patriotic Americans.

And there shouldn't be a

single American that today remains confident that it
couldn't happen to them, because it happened to them in Palm
Beach County.
Thank you very much, Mr. Hersh.
MR. HERSH:

Thank you, Congressman Wexler.

I'd

like to point out that I don't think that we are, as we've
been painted in the press, completely harmless.
[Laughter.]
MR. HERSH:

I mean the Department of Defense has

labeled us a credible threat.

And I think the truth is all

of us are a credible threat to illegitimate and unjust
power.
MR. CONYERS:

Thank you.

[Applause.]
MR. FEIN:

Could I just add an observation?

And

that is, the President has said that the surveillance is
targeted only upon those who are known members of al Qaeda
or affiliated organizations.

Now, if he already has that

evidence, why didn't he just go into court and get it rubber

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stamped?
MR. BAMFORD:

If I could just add one thing also.

From looking at what's been reported on NSA, what it appears
to be is that it is expanding concentric circles around
people who were probably legitimately targeted in the first
place, and then the people who have become targeted after
that are people who happened to call that person, and then
people who happened to call that person.

So you happen to

get a baby-sitter who calls the Pizza Hut, who calls
whatever, and that's how you get this expanding circle, and
that's why I think the comments were made earlier by some
people in the administration that this was more of a brief
look at people's communications rather than the long FISA
look, when they would go get a warrant.
I think that's one of the ways they're trying to
justify this, is this is sort of a--and I think they've used
the term "early warning approach."

So they go out there and

they listen to a lot of people for less than the full time
of a FISA Court warrant, and then they go and use that
information and go back to a FISA Court, and say, "We've
found that these people here are needing some FISA

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warrants."
And that's the problem I think that the FISA Court
was faced with, was that the presiding justice of the FISA
Court was beginning to get applications for FISA warrants
based on information that she had no idea where it was
coming from, and it appeared obvious to her that this was
information that was being illegally picked up by NSA
without a warrant.

And that was precisely the reason why

she insisted that from then on, any officials from the
Justice Department coming in there seeking a warrant, also
bring with them an affidavit signed under penalty of
perjury, that none of that information is the product of
illegal warrant-less wiretapping.
MR. CONYERS:
MS. WATSON:

Congresswoman Watson.
Thank you so much.

in a high state of frustration.

I am sitting here

As you heard when I was

introduced, I was a former ambassador to the Federated
States of Micronesia, and it was my responsibility in that
country, that island nation, to preach democracy and the
rule of law.

I sit here now feeling that I could be branded

a hypocrite.

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I have in front of me--and I would you on the
panel to pull this up, it's from the Los Angeles Times
today--my Deputy Chief of Mission on the front page of the
LA Times, and it's titled "She's on Activist Duty Now."

And

"As an Army colonel and diplomat, Mary Ann Wright served her
country for more than 30 years in some of the most isolated
and dangerous parts of the world -- then quit" when "she
felt she could not defend this war."

The war of choice that

this President says was to fight terrorism, al Qaeda, Osama
bin Laden, and he goes after Saddam Hussein.

Think about

that.
And so, as Barbara Jordan used to say, "Everyone
ought to have their friendly Constitution in their purses
and pockets."
Amendment.

So I asked someone to let me see the Fourth

And it says, the right of the people to be

secure in their own homes and on their persons, their
houses, their papers and effects, against unreasonable
searches and seizures, shall not be violated, and no warrant
shall be issued but upon probable cause.

And it goes on.

So what is troubling me now as a former
representative of this country abroad is the words

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"reasonable" and "probable cause."

I feel that I have

betrayed the principles of America abroad.

Madeline

Albright would cable us, almost on an hourly basis, and she
would say, "Remember the rule of law."

And I would go to

the islands within this nation and talk about the rule of
law and the Constitution, under which they have signed a
compact.

Now I am feeling that I have betrayed them,

because the country that I represented is not following the
rule of law.
So unreasonable searches, "unreasonable" and
"probable."

To the attorneys sitting in front of us, Mr.

Fein and Mr. Turley, the rest of you, can you respond as to
how they can use the words in the Fourth Amendment,
"unreasonable" and "probable" to justify what the President
is doing?
MR. FEIN:

Well, Congresswoman, I think the

ostensible response by the President, "We're only spying on
those who really are complicit with al Qaeda and terrorists,
and you just need to trust me," and therefore-MS. WATSON:
MR. FEIN:

In this country.
Yes, in this country, because they

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have, he says, they have an association.

Moreover, the

reason why he knows is he asked his friend, you know, down
the White House corridor and he says, "Yeah, they really are
the bad guys."
MS. WATSON:

Let me ask you this.

Could I respond

to a student by saying that the interpretation of
"unreasonable" and "probable cause" is left up to the
President at the time?
MR. FEIN:

Well, that's what he is asserting.

Of

course, that's contrary to our entire--separation of powers
is the contrary.

The whole reason why we have different

branches is to check an abuse of that kind of
characterization of a suspect.

That's why we customarily

have judicial warrants, but in any event, even in the
exceptions to warrants, there has to be a standard that's
subject to some outside review in determining whether or not
the President simply is styling an elephant to a mouse with
a glandular condition, and saying, "Aha, I can go after this
elephant."
And that's what's so troublesome here.

The

Constitution was based on the principle of "trust me" is not

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good enough.

Men aren't angels.

We need ambition to

counteract ambition, and those are truisms for the ages.
And if we let this principle of violating that
norm--remember President Reagan, "Trust but verify."

Then

we have laid a weapon around for any future President to
abuse any of our liberties, not just communications.
MR. TURLEY:

I would echo what Bruce has said.

I

would add probably two things, and that is, first of all,
one of the reasons we're at this point is that the language
of the Fourth Amendment has been ignored.

All these people

that say they're into strict construction and textualism,
there's no part of the Constitution that is clearer than the
Fourth Amendment.
warrants.

It says "probable cause."

It talks about

But what we have seen over the last two decades

is a series of exceptions to that amendment, which, frankly,
I found troubling.
And also in response to--unfortunately, you know,
the Framers created a three-branch system in the hopes that
they would check and balance each other, and we're sort of
down to our last branch, the judicial branch.
it's not so bad, we got one fully operative.

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I suppose
But the

judges, Federal judges, including a lot of Republican
appointees, have been remarkably courageous.

I mean, even

though much of this is left to the discretion of the
President, there is an ability of judicial review.
that with Hamdi.

We saw

We've seen that where judges have tried.

We even see that with the FISA Court where judges have taken
very courageous stands to try to get some balance.
But what's troublesome is when you look at white
paper, some of the cases that they rely on most heavily are
sole search cases.
Earls and Vernonia.

You know, they don't talk about like
Those are cases that reaffirm the

ability of a high school principal to search the locker of a
kid, looking for a joint.

I don't think the Supreme Court

was intending to create a national security legal apparatus
on that case.
[Laughter.]
MR. TURLEY:

But what happened is that they said

because of the unique context of the high school, that these
are reasonable.

But when you read those cases you realize

how far afield we have gone to avoid what the Constitution
says.

So I would just echo your response.

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I have to tell you, I'm the eternal optimist when
it comes to this country.
incredible things.

I mean I think we have weathered

We have weathered good and bad, but

we've always seemed to survive.

I mean, the Framers

developed the Constitution as sort of the all-terrain
vehicles of constitutions.
weather.
now.

It's really designed for bad

And, boy, we're in a bad weather pattern right

But I think we'll come out of it, but hopefully it

will be with the assistance of your institution.
MR. CONYERS:

I want to thank, again, on behalf of

we, the committee, and for all of the members of Congress
that support what we are doing, the millions of Americans
who are expressing, we hope, their gratitude, so that this
will continue to encourage us all to take the necessary
steps of the responsible branch of Government as American
citizens, who are determined to continue with the kind of
optimism that will make democracy succeed in the end, and
that we all move forward as a people, and that we will turn
this bit of troubled passage into an even stronger
constitutional democracy.
On that note, I declare these hearings concluded,

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but we leave the record open for five days for members of
Congress who would like to send you questions that we could
include in the record.

Again, our thanks.

[Whereupon, at 1:44 p.m., the briefing was
adjourned.]

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