House Judiciary Subcommittee Holds Hearing on Civil Liberties and ICT Issues

December 9, 2010. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will held a hearing titled "Civil Liberties and National Security".

This hearing covered a wide range of topics involving detention, interrogation, torture, prosecution and trial of defendants, prisoners of war, foreign detainees, and terrorism suspects. It also addressed covert military operations. However, some of the hearing addressed information and communications technology (ICT) related topics, including the state secrets privilege, warrantless wiretaps, government access to consumers' phone call records, and a potential CALEA like statute for the internet.

This hearing, which was sparsely attended by members, staff, and the public, was held days before the end of a lame duck session, and just before a change of party control. Rep. John Conyers (D-MI), the Chairman of the HJC, conducted the two and one half hour hearing on his own.

Rep. John ConyersRep. Conyers (at left) and some witnesses focused their criticism on the Bush administration. Rep. Conyers stated that it created an "expanded national security state". He cited "civil rights abuses", including "widespread warrantless wiretapping", and abuse of the state secrets privilege.

Rep. James Sensenbrenner (R-WI), the ranking Republican on the Subcommittee, stated in opening that "I don't see why we need to have this hearing today because it is talking about things in the past". He added that "next year, when this Committee is under new management, we will be much more productive, much more relevant, and we won't be looking at the calendar of last year or two years ago." He then left the hearing room.

Rep. Conyers and Laura Murphy (ACLU) conceded that the Bush administration policies that they condemned at this hearing have been continued by the Obama administration. Thomas Pickering stated at the end of the hearing that the hearing had a "partisan flavor".

State Secrets Privilege. This is not inherently ICT related. And, the government invokes it in cases that do not involve ICT. However, the government has relied upon it in recent years to evade legal claims arising out of allegation of illegal and warrantless wiretapping.

For an explanation of the doctrine, see story titled "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,927, April 29, 2009, story titled "Holder Advocates Some Constitutional Principles" in TLJ Daily E-Mail Alert No. 1,927, April 15, 2009, and story titled "Holder Issues Memorandum on State Secrets Privilege" in TLJ Daily E-Mail Alert No. 1988, September 24, 2009.

Rep. Conyers said that "invocation of the state secrets privilege, which has gone on in recent years, including this administration, to an incredible new height, to shut down complaints, investigations and lawsuits challenging executive branch action, such as illegal domestic surveillance".

Thomas Pickering wrote about the state secrets privilege, among other topics, in his prepared testimony. He is a former career diplomat. He was Ambassador to Russia and Undersecretary of State for Political Affairs during the Clinton administration, and U.S. Ambassador to the United Nations during the elder Bush's administration. He now works at Hills & Company.

Pickering wrote that "The application of the state secrets doctrine is also an area of growing concern, particularly as it affects the rights of citizens and aliens to seek redress in court for actions of the government which negatively impact them or their interests. Blanket efforts to block all such claims seeking redress are both unfair and improper. Any doctrine that leaves the Executive Branch entirely immune, on its own say so, from all claims for redress against mistakes, errors, or bad or improperly applied policy seems overly broad and peremptory. We need to look carefully at how to assure the right to redress while fully protecting the government’s responsibility to keep its legitimate secrets secure."

He added that it "should be restored to its proper role as an evidentiary privilege, safeguarding particular pieces of evidence against disclosure. The privilege should not be used as an immunity doctrine, completely blocking challenges to government actions. Judges should independently examine the evidence asserted to be secret to determine whether the privilege applies, and should assess whether there is sufficient non-privileged evidence for the case to proceed. This would help to assure the executive branch is not left to police itself."

The ACLU's Murphy wrote in her prepared testimony that "the Bush administration began using the privilege to dismiss entire lawsuits at the onset -- and the Obama Administration has supported and continued that abuse of power."

There have been unsuccessful efforts to address abuse of the state secrets privilege by legislation in the 110th and 111th Congresses. The HJC approved HR 984 [LOC | WW], the "States Secret Protection Act", on December 5, 2009. However, the full House did not pass the bill. See also, story titled "House Constitution Subcommittee Approves States Secrets Protection Act" in TLJ Daily E-Mail Alert No. 1,954, June 12, 2009.

And see, S 417 [LOC | WW], which the Senate Judiciary Committee (SJC) did not pass, and in the 110th Congress, S 2533 [LOC | WW], which the SJC, but not the full Senate, passed.

Warrantless Wiretaps. Laura Murphy (ACLU) wrote that "our spy agencies have departed radically from their supposedly exclusive focus on overseas spying, and have turned their eyes and ears inward upon the American people."

She wrote that in December of 2005,  "the New York Times first reported that the NSA was tapping into telephone calls of Americans in violation of existing laws and the Constitution. Furthermore, the agency gained direct access to the telecommunications infrastructure through some of America's largest companies. Using that access, the agency appeared to be using broad data-mining techniques to evaluate the communications of millions of people within the United States."

The New York Times published a story by James Risen and Eric Lichtblau titled "Bush Lets U.S. Spy on Callers Without Courts". It stated that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." See also, story titled "President Bush Discloses Interception of Communications Without Court Approval" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005, and story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

Murphy continued that "In May 2006, Americans learned that at least some of the major telecommunications companies granted the NSA direct, wholesale access to their customers' calling records -- once again, outside the law -- and that the NSA was compiling a giant database of those records."

The USA Today published an article by Leslie Cauley titled "NSA has massive database of Americans' phone calls". See, story titled "Bush Responds to USA Today Story Regarding NSA Database of Phone Calls" in TLJ Daily E-Mail Alert No. 1,369, May 12, 2006.

Murphy also said that "Congress worsened the situation in 2008 by passing the Foreign Intelligence Surveillance Act Amendments Act (FAA), which permits the government to get annual court orders that can capture all communications coming into or going of the United States -- even if an American citizen is on one end, and even if that person is not suspected of doing something wrong. The amount of private American communications that can be collected under this law is staggering, and this un-American and unconstitutional spying continues under President Obama. The ACLU has challenged the constitutionality of this law and our case is pending before the Second Circuit."

CALEA for the Internet. The ACLU's Murphy also discussed in her written testimony, and oral statement, a Communications Assistance for Law Enforcement Act (CALEA) like statute for the internet. She said that in the 112th Congress, there will be an Obama administration proposal "to change the very architecture of the Internet in order to make eavesdropping easier".

She elaborated that "the administration is expected to submit legislation to Congress early next year that would require all online services even those which operate by putting individuals in direct contact with each other to make it possible for the government to eavesdrop upon demand. This would require companies to completely restructure the way their services work. The proposed measure would mandate that all online communications services allow the government to collect private communications and decode encrypted messages that Americans send over texting platforms, BlackBerries, social networking sites and other ``peer to peer´´ communications software."

Murphy argued that "This is particularly problematic because many of the privacy protections that governed the government’s wiretapping powers when CALEA passed in 1994 no longer exist or have been significantly weakened. For example, Congress has granted the executive branch virtually unchecked power to conduct dragnet collection of Americans' international e-mails and telephone calls without a warrant or suspicion of any kind under the FISA Amendments Act of 2008."

Moreover, she wrote, "This proposal would interfere with technological innovation, create significant new cybersecurity vulnerabilities, reduce privacy and chill expression on the Internet, and pose dangers of government and third-party abuse. Under the guise of a mere technical fix, the executive branch seeks significant new power to reconfigure the Internet and conduct easy dragnet collection of Americans’ most private communications."

The other witnesses, who addressed non ICT related issues, were Jamil Jaffer (Kellogg Huber), Michael Lewis (Ohio Northern University law school), Jeremy Scahill (Democracy Now), Mary Ellen O'Connell (University of Notre Dame Law School), and Bruce Fein (Litchfield Group). See also, HJC web page with hyperlinks to the prepared testimony of all of the hearing witnesses.