>> From the Library of Congress in Washington, D.C. ^E00:00:05 ^B00:00:22 >> Orin Kerr: Thank you all for coming. We're going to move now to a more modern topic although one that echoes the Magna Carter sort of the Magna Carter, the values of the Magna Carter comes to us today focusing on civil liberties and surveillance. We're very, very fortunate to have two distinguished members of Congress here with us to discuss these issues Congressman Nadler and Congressman Sensenbrenner. The issues we want to focus on are how does our political systems strike the balance between the needs of the government to investigate and of course the countervailing concerns of civil liberties and privacy and because we have two members of Congress I wanted to focus specifically on the role of Congress. For many of us the questions raised about say about surveillance powers really go back to 9-11 and the Patriot Act that followed soon after and I wanted to start with the question of lessons. What are the lessons that we've learned since 9-11? What are the lessons since the Patriot Act and in particular what are the successes and failures focusing on Congress's role? Perhaps Congressman Nadler I'll start with you. What do you think are the lessons we've learned since the Patriot Act and since 9-11 in terms of Congress's role in this area? >> Congressman Nadler: I think we've learned several lessons. Number one, do not legislate in haste. The Patriot Act, Congressman Sensenbrenner was chairman of the committee at the time we passed it. The Patriot Act actually passed the committee, the Judiciary Committee unanimously believe it or not all the Democrats and Republicans voting for it. After three or four days of markup and amendments and actual amendments being passed not on party line votes but on the merits that bill was reported out unanimously I think on a Thursday. We came back the next week there was an entirely different Patriot Act that had been completely rewritten technically in the Rules Committee really, either by leadership in the White House and we voted on that bill before we really had a chance to properly examine it and one of the things that I said on the floor in voting against it was that I didn't like it for reasons A, B and C but in addition to which I said there will be reasons D, E and F that we don't know about yet which we'll find out about later which was true but we were under tremendous time pressure so number one when you're dealing with sensitive topics and important topics don't legislate in haste. Take the time to read it. That bill should have gone out to the law professors, to the ACLU, to others and gotten back comments. All right number one, number two, have a very vigorous oversight and don't believe what the Executive Branch tells you. Some of the worst things that have happened whether rendition and torture, we saw the report that came out today or the Guantanamo were basically done in secret and the oversight by Congress was grossly insufficient. I would say that oversight and then you deal with civil liberties. The intelligence information should be given to the Judiciary Committee as well as the Intelligence Committee. The third lesson is be very careful of secrets I think that worse than the surveillance that we have is the State Secrets Doctrine which was basically invented by the Supreme Court but the way it's evolved today, let's put it this way. How do you enforce any right whether the right is granted by Magna Carter or by the Constitution or by the statute? How do you enforce a right? You enforce a right by going to court, by either getting an injunction, stop or damages. You've damaged me therefore--without that anything you have becomes like the Soviet Constitution of 1936 very nice to read but irrelevant. The State Secrets Doctrine basically now says that the government can dismiss any lawsuit, dismiss any suit for damages or even for an injunction simply by saying the subject matter of this lawsuit is a state secret. It cannot be heard, case dismissed. Most courts will dismiss it without any necessity for showing that that's in fact the case. It means you can't get a hearing and essentially rights are unenforceable and that's probably the biggest problem we have right now as far as I'm concerned. >> Orin Kerr: Congressman Sensenbrenner do you have similar lessons or different ones. >> Congressman Sensenbrenner: I have some different ones. First of all issues like rendition and torture that's not a part of the Patriot Act. It's true that the Patriot Act was passed in haste but one of the things that I successfully got in there was an oversight responsibility and a Sunset. And in the year before the first Sunset which was at the end of 2005 I had hearings in the Judiciary Committee on each one of the 17 expanded powers that were given to law enforcement and the intelligence community one by one and at that time it was discovered that 14 of those 17 powers where noncontroversial and they were made permanent. The ones that weren't made permanent were the roving wire taps, the business records provision and the lone wolf terrorist provision which was not a part of the original Patriot Act but was added to that part of the law by the intelligence act of 2004 and it was determined at that time that we hadn't had enough experience to be able to determine whether it ought to be made permanent or not. So everybody supported making permanent those 14 provisions so it wasn't all that controversial. The lessons that we have learned is that there was a complete failure of oversight by both the Executive, Legislative and Judicial branches of government and that's one of the reasons why when we found out the results of this abject failure I drafted and introduced the Freedom Act, a version of which passed the House in May of this year but somehow got off the track in the Senate and what it attempted to do was to deal with better oversight. Better oversight particularly in the White House because the people who run the intelligence and defense operations are all presidential employees and appointees, better oversight in the judicial branch because the FISA corridor what we call the FISC only heard one side of the argument, the government's and better oversight by the legislative branch because the intelligence committees in both Houses which were originally established by the Church Commission in the '70s ended up being cheerleaders for the intelligence community rather than doing strict oversight and making corrections before things got out of hand. Well they did get out of hand and as a result I think we're going to have to learn our lesson on that. Now I'm very unhappy that the Senate didn't break the filibuster on the Freedom Act and at least pass their own version and here I'm critical of my own party. The result of the filibuster is going to be a game of chicken next year on business records. The business records section, Section 215 expires on June 1rst of next year and if it is not extended in some form or another there will be no legal authority for the intelligence community to get business record short of getting a grand jury subpoena and I think that that will increase the vulnerability of our country. I would be willing to predict that our beloved senators both the returning ones and the newly elected ones are going to spend an inordinate amount of time trying to reach the balance between security and privacy and civil liberties on the other side to come up with something that will be acceptable to both Houses and the White House. That is not an easy thing to do. We found that on the House side. We are far, far ahead of where the Senate is and the Freedom Act is going to be back next year. We're going to figure out how to tee this up to try to get it passed again but I can tell you that sometimes the people who play the game of chicken are the proverbial chicken who was supposed to cross the road and instead stopped in the middle of the road clucking away and got hit by a car. Thank you. >> Orin Kerr: One branch of government that was mentioned although neither of you focused on was the role of the judiciary. Of course traditionally by interpreting the Fourth Amendment to the constitution and other constitutional provisions the judiciary has had a significant role in the area of surveillance law and so under the current regime both the legislative branch and the judiciary branch have their own spheres. I'm interested in your sense of what the proper relationship is between those two branches particularly in this area of surveillance law so as you may know Justice Alito in a concurring opinion recently in a case called Riley versus California suggested that if the legislature, in particular Congress has legislated in an area of privacy then the Court should stay out of that particular area and let Congress assume the primary role. ^M00:10:18 Is that the right relationship? What role do you think Congress should take and the court should take in interpreting the Constitution in enacting statute? >> Congressman Sensenbrenner: Well with most other laws Congress passes a law and then the Supreme Court decides whether or not it's constitutional as a result of somebody withstanding bringing a case that has constitutional implications. Where I think the problem is in this area is that the FISC does not play the traditional judicial role which is there's an adversarial procedure where the government and those who are opposed to the government present their arguments to the judges and then the judges apply the fact and the law and reach a decision. It's just the government meaning NSA through the Justice Department and then this makes the judges of the FISC really policy makers rather than arbiters of a dispute and one of the things that Mr. Nadler and I agree on is that there should be some kind of agency or individual that would have standing to bring a counterargument before the FISC and then the FISC would be able to go back to the role of being judges rather than being policy makers. Judges were not appointed to be policy makers at least those of us who spent our lives in legislatures for most of our adult lives. They were appointed to be arbiters. Now we've also got some really conflicting decisions on the Fourth Amendment. For example, you need a warrant to be able to tap a telephone and find out what the spoken conversations by the parties in the phone call are but you don't need a warrant to get various types of text messaging so e-mails, texts, Facebook posts, Twitter feeds and things like that can be obtained without a warrant and I don't think that there should be a difference between the two particularly, as we're getting more into the digital age and people are using modern technology to communicate rather than doing it the old fashioned way. I can say that during the campaign in one student area in my district where I didn't do very well in 2012 I had the college Republicans put up a whole a lot of posters that said the government knows what you did last night and then saying that I'm trying to stop that and you ought to vote for me. My vote went up 20 percent in those precincts. Now I did show this to somebody from overseas and they said, "Couldn't you have gotten even more attention instead of by saying the government knows what you did last night putting up your mother knows what you did last night?" That was going a little too far. >> Congressman Nadler: Well I agree, I certainly agree with respect to the FISC Court. I would go further. I'm not sure I would go further than Congressman Sensenbrenner would but further than he mentioned. You need an adversary proceeding. You also need common-law. That is to say when the FISC rules nobody knows what it ruled. So you don't develop, maybe you develop a secret common-law, a secret law but Congress doesn't know and the public doesn't know the opinions except I believe that where the opinions define what the law is so when they say the Patriot Act means this and not that that out to be public so that the public knows and Congress knows what the law has been interpreted to be and maybe we want to change it, maybe not but at least we know what the law is. Now certainly you're not going to say that they should publish who they're putting a subpoena out to obviously but certainly legal precedence should be known in addition to having the advocacy there. Secondly, the problem in the court also is the State Secrets Act. The administration, this administration has used the State Secrets Act to basically prevent the courts from adjudicating most constitutional claims of improper surveillance, of improper detention, etcetera. You even get the situation where the government allegedly improperly uses surveillance on you and you bring a lawsuit and they say whether we use surveillance is a secret so you can't establish standing by saying you've been surveilled and the courts have upheld that. So the State Secrets Act, the State Secrets Doctrine I should say ought to be amended in many ways so that the courts can adjudicate these questions, that our rights can be enforced in court and that you just can't escape the jurisdiction of the court. Standing is another problem. Congress has to step in and act in a lot of these areas. Obviously the courts have their role. Congress has its role. It's impossible to define exactly what that role is. It's like saying what's the role of the Executive and the role of Congress? It changes from time to time. It evolves. They both have their roles. Right now I would say that the courts have hung back from properly enforcing individual rights because they've been too deferential on questions of state secrets and I think Congress has too. >> Orin Kerr: Both of you focused on the role of the FISC, the Foreign Intelligence Surveillance Court and one unusual aspect what we learned how the FISC was operating was it was in fact issues these long opinions interpreting the surveillance laws in a context when normally courts would not issue opinion. So for example, if a prosecutor or law enforcement agent goes to a judge seeking a warrant normally the judge is just going to issue the warrant or deny the application. They're not doing to write an opinion on how the Constitution may apply. Is the difficulty in your view that the FISC issued opinions without the benefit of adversarial briefing or is the problem that the FISC is issuing opinions at all? And may be the broader question is do you think the idea of having a Foreign Intelligence Surveillance Court is the right path? Are there better ways of designing surveillance laws? Are we best off with the basic structure we have now and perhaps only slightly amend them going forward? >> Congressman Sensenbrenner: Well, I would submit that the institution of the FISC is not a bad institution in dealing with things where you have to have more secrecy than in a lot of other judicial proceedings. The problem I think is that the FISC doesn't tell anybody including lots of members of Congress or maybe no members of Congress off the Intelligence committee at all what they're doing and the Freedom Act requires a notification of FISC decisions to the Intelligence and Judiciary Committees within a day after they are made and a sanitized version being released to the public within 45 days and that way if the FISC is making a determination that Congress doesn't think comports with the law or Congress decides the law ought to be changed then we know what the problem is and we can take the appropriate action but as of now we're completely in the dark on that. If you looked at the debates over the Freedom Act you will find that the Intelligence Committee thinks that we're the enemy rather than the people that the intelligence community is trying to root out to prevent them from blowing us up. >> Congressman Nadler: Well the intelligence committees have been the subject of regulatory capture. Like many regulatory agencies they've been captured by the agencies that they're supposed to regulate and they really represent their interests. There are some exceptions but they represent their interest in Congress rather than representing the interests of Congress and through Congress of the people in restraining or regulating the intelligence agencies which is why I mentioned before that one of the things that we ought to make sure happens is that a lot of this intelligence, a lot of these surveillance decisions are made known to Judiciary Committees if not to the Congress as a whole but the Judiciary Committee as well as the Intelligence Committee because the Judiciary Committee has a different concern generally, a focus on rights and law. I think that--I forget the question you asked at this point. >> Orin Kerr: Should we amend the role of FISC more broadly? >> Congressman Nadler: Well, as we said I certainly agree with Jim. We should amend the role of the FISC in the ways that we stated, adversary and public as I said before publish the comment, publish the decisions to the extent and the Freedom Act does that but it's not just the FISC. The FISC was set up in the aftermath of the Church Committee in late '70s which was investigating intelligence and abuses the FBI's COINTELCO program and so forth and it was one of a number of reforms to rein in the intelligence communities, the FBI and so forth and to some extent it's been okay but they certainly, the fact that they issue decisions or opinions I should say not decision. ^M00:20:04 The fact that they issue opinions on these warrants where they're interpreting the law is a good thing because opinions ought to be insofar as possible public and certainly made known to Congress so that you can have a development of a public common-law modifiable by legislation if necessary and you know what's going on. >> Orin Kerr: One development that we've seen since the Patriot Act one that the operate act introduced to my knowledge is this idea that of Sunsets which Congressman Sensenbrenner had discussed earlier. Is your sense that there's the political will in Congress to continue having Sunset provisions? They're updated every few years. We keep sort of going through these cycles of powers potentially elapsing and then Congress has to step in. Is that a positive way forward and do you think your colleagues agree with that? >> Congressman Nadler: First of all let me just say one thing. Back in 2005 when 14 of the Sunsets were made permanent it wasn't uncontroversial. Quite a few of us opposed permanentizing some of them. I don't remember which ones at this point but it was not uncontroversial but the relatively few Sunset provisions we still certainly ought not to be made permanent because it is imperative that we have the kind of oversight to have leverage. If it doesn't Sunset Congress has much less leverage. If it has leverage for example, Section 215 we'll Sunset as Jim mentioned. We have the Amash Amendment which almost eliminated Section 215. The votes may very well be there to eliminate it if proper remedies through something like the USA Freedom Act is not enacted and that gives those of us Jim, myself and others in Congress who are sensitive to these questions, who want to make sure that the intelligence community is properly supervised and limited some leverage. If these were made permanent it's always much more difficult to get two Houses and the president to agree on anything than it is to say you've got to agree or otherwise it's going to change. >> Congressman Sensenbrenner: I'd modify what Jerry said in just one respect. I do think that the lone wolf terrorist provision out to be made permanent. Again it wasn't up for consideration in 2005 because we had the law for only a few months on that but given the type of threat that we face from ISIL and some of the other offshoots of Al Quaeda, some self-appointed and others not, I think we have a great danger of a lone wolf terrorist being able to cause a great deal of damage and loss of life and injury but in terms of Section 215 and the roving wire tap provision I think that they out to be remain Sunsetted. >> Orin Kerr: Thank you both for the wonderful, thoughtful discussion. Please join me in thanking [inaudible]. >> This has been a presentation of Library of Congress. Visit us at loc.gov. ^M00:23:20