CURRENT NEWS

	SENATE-HRG-NSA-AUTHORITY, sked,0779 U.S. Senator Arlen Specter (R-Pa) Holds A Hearing On The Nsa'S Surveillance Authority
	U.S. Senator Arlen Specter (R-Pa) Holds A Hearing On The Nsa'S Surveillance Authority        xfdtr SENATE-HRG-NSA-AUTHORITY sked xfdsu                             TRANSCRIPT                                                               February 28, 2006                                                               COMMITTEE HEARING                                                                                                                               U.S. SENATOR ARLEN SPECTER (R-PA)                                                                    CHAIRMAN                                                          SENATE JUDICIARY COMMITTEE                                                                WASHINGTON, D.C.                                         U.S. SENATOR ARLEN SPECTER (R-PA) HOLDS A HEARING ON THE NSA'S                         SURVEILLANCE AUTHORITY                         CQ Transcriptions, LLC                         1255 22nd Street N.W.                         Washington, D.C. 20037                 Transcript/Programming: Tel. 301-731-1728                    Sales: Tel. 202-419-8500  ext 599                              sales@cq.com                               www.cq.com                 Copyright 2006 CQ Transcriptions, LLC    All materials herein are protected by United States copyright law    and may not be reproduced, distributed, transmitted, displayed,     published or broadcast without the prior written permission of      CQ Transcriptions. You may not alter or remove any trademark,         copyright or other notice from copies of the content.      U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE        NSA'S SURVEILLANCE AUTHORITY      FEBRUARY 28, 2006                SPEAKERS:                U.S. SENATOR ARLEN SPECTER (R-PA)                          CHAIRMAN                U.S. SENATOR ORRIN G. HATCH (R-UT)                U.S. SENATOR CHARLES E. GRASSLEY (R-IA)                U.S. SENATOR JON KYL (R-AZ)                U.S. SENATOR MIKE DEWINE (R-OH)                U.S. SENATOR JEFF SESSIONS (R-AL)                U.S. SENATOR LINDSEY O. GRAHAM (R-SC)                U.S. SENATOR JOHN CORNYN (R-TX)                U.S. SENATOR SAM BROWNBACK (R-KS)                U.S. SENATOR TOM COBURN (R-OK)                U.S. SENATOR PATRICK J. LEAHY (D-VT)                          RANKING MEMBER                U.S. SENATOR EDWARD M. KENNEDY (D-MA)                U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)                U.S. SENATOR HERBERT KOHL (D-WI)                U.S. SENATOR DIANNE FEINSTEIN (D-CA)                U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)                U.S. SENATOR CHARLES E. SCHUMER (D-NY)                U.S. SENATOR RICHARD J. DURBIN (D-IL)                WITNESSES:                JAMES WOOLSEY,                  FORMER CIA DIRECTOR                HAROLD HONGJU KOH,                  DEAN,                  YALE LAW SCHOOL                KEN GORMLEY,                  ASSOCIATE PROFESSOR OF CONSTITUTIONAL LAW,                  DUQUESNE UNIVERSITY SCHOOL OF LAW                DOUG KMIEC,                  PROFESSOR,                  PEPPERDINE UNIVERSITY SCHOOL OF LAW                BRUCE FEIN,                  ATTORNEY,                  FEIN & FEIN                ROBERT TURNER ,                  ASSOCIATE DIRECTOR,                  CENTER FOR NATIONAL SECURITY LAW,                  UNIVERSITY OF VIRGINIA                ROBERT LEVY,                  SENIOR FELLOW IN CONSTITUTIONAL STUDIES,                  CATO INSTITUTE      SPECTER:  Good morning, ladies and gentlemen.  The Senate Judiciary Committee will now proceed with our second hearing on the administration's electronic surveillance program.         It is our practice to start right on time.  We have a very distinguished panel of witnesses, and we have a great deal of ground to cover because, this morning, the Patriot Act is on the floor of the United States Senate on a vote to cut off debate.         And that will require the attendance of members of this committee on the floor.  So we are targeting a conclusion of this hearing at 11:30.  We can run a little over, but not too much.      So we need to start on time and we need to progress with the five-minute statements by each witness and the five-minute rounds of questioning by all the senators.      I have delayed reaching any substantive comment until the arrival of our distinguished ranking member, Senator Leahy.         We will be inquiring, today, about the president's authority to institute the electronic surveillance program.  And we will be focusing significantly on the president's inherent power under Article 2 of the United States Constitution.        But we will also take up the issue of the Foreign Intelligence Surveillance Act -- whether the resolution to authorize the use of force on September 14th modifies that statute.         I've already expressed my opinion, that it does not -- for a variety of reasons.  But that still leaves open the issue of constitutional authority and if the president has constitutional authority.         As we all know, that trumps the statutory limitation.  But there can be electronic surveillance only with a court order.      Legislation has been circulated.  We have asked the witnesses to be prepared to comment on it, which would make the Foreign Intelligence Surveillance Court the unit to make a determination of constitutionality.        Notwithstanding the statutory requirements that the Intelligence Committees in full would have access to programs of this sort, this administration and previous administrations have chosen not to utilize the committees because Congress has a well-established record for leaking.      Of course, so does the White House.  This town leaks like a sieve, in the vernacular.  So the president has been reluctant to take these matters to the Congress, limiting it only to the so-called gang of eight.      The thinking has been that the Foreign Intelligence Surveillance Court has the expertise and has the record for maintaining secrecy and can appropriately be entrusted with the job of making a determination of constitutionality.         And the statute which has been circulated sets forth criteria for the court's determination on the scope of the intrusions, the breadth, the minimization, the results.         There has been some concern as to whether there is a general warrant involved here.  We think the authorities are strong, but it is not.  There has been concern as to whether there is an advisory opinion here.  And we think the authorities, again, are strong that it is not an advisory opinion in derogation of the case-in-controversy clause of the United States Constitution.         When judges of the Foreign Intelligence Surveillance Court are asked to issue a search warrant, they do so in an ex parte proceeding. That has direct analogy to the kind of a determination we're asking the court to make here on a broader basis for the entire program.        There are other statutory ideas being circulated.         SPECTER:  One would involve congressional approval of the program, which seems difficult -- really impossible -- to me, unless we know what the program is.  And we do not know what the program is.      But the Foreign Intelligence Surveillance Court has the standing, the expertise and the record for secrecy to make that kind of a determination.      The existence of the president's program was disclosed rather dramatically on Friday morning, December 16th, the day we were in final arguments on the Patriot Act.         It had quite an impact on our discussion that day, and cloture was not invoked -- and a number of senators raised the point that there was special concern about privacy as a result of the disclosure of the administration's program in the context of what the Patriot Act should provide.      We have, since, worked through the issues.  I think the chances are good that there will be cloture imposed today -- although you never know what the Senate's going to do until the final vote is tallied.      I've said yesterday on the Senate floor that I would introduce supplementary legislation which would bring back the standards that the Senate bill had -- which passed this committee unanimously and which passed the Senate by unanimous consent.      But we have structured a compromise with the House of Representatives.  We have bicameral legislative branches, as we all know.  We had very significant compromises reached.         SPECTER:  One very important one for the House was sunsetting in four years, which was a concession from 10 to seven.         But my view is we ought to strive for the best bill we can.  We have an acceptable bill, in my judgment, on the current state of the record -- but we can improve it.         And this committee, Senator Leahy and I, are committed to have vigorous oversight.  The FBI director will be before this committee on March 29th, and we will be asking him all of the tough questions about the provisions of the Patriot Act which were excluded in the conference report.      I'm down to four seconds.  I now yield to Senator Leahy.      LEAHY:  Thank you, Mr. Chairman.  In fact, I'll be co-sponsoring that legislation you just spoke about -- to emphasize that it is a bipartisan effort, as the legislation that originally passed this committee was.      Our hearing today is the second to explore the legality of President Bush's warrantless domestic spying program.         On December 17th, one day after the program was revealed in the New York Times, the president admitted that the administration engaged in secret wiretapping of ordinary Americans without warrants for more than four years -- then, seven weeks later, Attorney General Gonzales came before this committee to talk about this.         Now that testimony of the attorney general was far from complete. It left many important questions unanswered.         As the chief legal officer of the United States, the attorney general is not the president's legal adviser; he's each American people's lawyer.  His sworn duty is to uphold the Constitution and the laws enacted by Congress.         So it seemed reasonable to ask him how his Department of Justice will interpret these laws -- how are they interpreting them?      And by starting with legal questions, we weren't asking any operational issues that could implicate national security or would require a closed hearing.      So I asked him a very simple question.  It was:  When did the administration come up with its current theory that the congressional resolution authorizing the use of force against Al Qaida -- a resolution, incidentally, that says absolutely nothing about wiretapping -- also authorized secret warrantless wiretapping of Americans inside the United States?      He was asked that question consistently and, at every opportunity, the attorney general failed -- he refused to answer what is a basic factual question.      He was asked several times to clarify the scope of the Bush- Cheney administration's legal theory of executive power.  If, as they claim, they can ignore the Foreign Intelligence Surveillance Act's express prohibition of warrantless wiretapping, could they also eavesdrop on purely domestic phone calls?         Could they search or electronically bug an American's home or office?  Can they comb through Americans' medical records and open first-class mail?  Can they suspend the posse comitatus act?      Now these are questions to which I believe Congress, but especially the American people, deserve some answers.  And based on his testimony, his persistent refusal to answer responsively, it appears the attorney general has a radically different understanding of the laws than those of who are the people's representatives here in Congress.      He limited his appearance, confirming those facts.  The president has publicly confirmed nothing more.         Again, we weren't asking about operational.  We were asking: "What's the law?  What's the law?  You're the attorney general, what's the law?"      In a last-minute change to his prepared testimony, he also followed the path of his predecessor by playing politics on security matters -- hoping to intimidate senators who sought to get the facts.      I think we can confirm that every single member of the United States Senate, Republican and Democrat, are patriots and believe in the security of this country.         Asking questions doesn't mean that we don't believe in the security of our nation.  In fact, sometimes in asking questions you might improve the security of Americans.      Senators from both parties took great care to ask straight- forward questions that could be answered without danger to national security:      When did the program begin?  How many Americans have had their calls and e-mails intercepted?  Has the program led to any arrests? Of these thousands of intercepts, has there been even one arrest? What involvement, if any, has the FISA court had with the program? Why was the program shut down in 2004 and its scope changed?        Once again, we got no answers.         Whatever we asked was either too relevant or not relevant enough. And either way, we're getting no answers from the attorney general.      Now there was one crack in the stone wall that he erected.  It has been reported that senior Department of Justice officials concluded in 2004 the president's program was illegal.  And backed by former Attorney General Ashcroft, they insisted its scope be narrowed.      So Chairman Specter asked the attorney general whether he objected to his predecessor testifying before the committee on this issue.  Attorney General Gonzales said, "I would not."      But then one week later, in a carefully worded about-face, he had an assistant write to the chairman that the administration would not permit any former officials to provide any information to the committee -- and the stone wall went right back up.         Now his conduct has made the administration's position crystal clear.  He claims there's no place for congressional or judicial oversight of any of its activities related to national security in the post-9/11 world.         The stone walling, steam rolling, intimidation -- I believe they're running a rough shot over the Constitution.  They're hiding behind inflammatory rhetoric, demanding Americans blindly trust their decisions -- whether it's this, our ports or anything else.        And last week, we were reminded again they hold to that position -- even when bipartisan members of Congress raise national security concerns about approval of a deal allowing a government-owned Dubai company to take over major port operations in the United States.      LEAHY:  In both cases, this obsessively secretive administration proceeded with actions that they must have known would face strong bipartisan opposition; did so without informing Congress or the American people.  They made no attempt to follow specifically expressed federal statutes.      In both cases, the Bush-Cheney administration has responded to congressional oversight efforts with bellicose political threats.      So it's up to the Congress, even though it's controlled by the same party as the White House, to fulfill its constitutional duty of providing the checks and balances by engaging in real oversight -- or it can abdicate that role in deference to the other end of Pennsylvania Avenue.      Now, Chairman Specter has a history of engaging in meaningful bipartisan oversight, and I appreciate his efforts.  I'm glad we're having this hearing.         We should know what this hearing is.  This hearing will go into some questions.  But it is not oversight in the sense that we're asking the administration.  There are no former officials who are allowed by the administration to come forward and answer questions.      I think, to get them, we may have to go to subpoenas.      I've gone over my time, Mr. Chairman.  I appreciate your courtesy.  And I'll put my full statement in the record.      SPECTER:  Thank you very much, Senator Leahy.         Senator Kyl, would you care to make an opening statement?      KYL:  Mr. Chairman, in view of what I just heard, I'm tempted to -- but I think it's more important for us to hear the witnesses.  So I'll defer.         SPECTER:  Succinct and well-said.  Thank you, Senator Kyl.      (LAUGHTER)      I want to acknowledge especially the work on this committee of Ms. Carolyn Short, our general counsel, who is serving her last day on a 14-month stint.         Ms. Short came here from a very prestigious law firm and a very substantial cut in salary, and has contributed very extensively to this committee -- including the lion's share of the preparation for this hearing today.         We've been joined by the distinguished former chairman of the committee, Senator Hatch.  Would you care to make an opening statement?      HATCH:  No, Mr. Chairman.  I'm just happy to be here.  And we want to welcome all of you here.  I'm looking forward to hearing what you have to say.         SPECTER:  Thank you very much, Senator Hatch.         We've had an issue raised before the committee on swearing witnesses.  And after some consideration, the judgment was made that we're going to make it a regular practice, to swear all witnesses.         And in so doing, we won't have any issue as to whether there was any special concern about witnesses or whether any witnesses are being targeted -- we're just going to swear all the witnesses.         And that may not be totally necessary in circumstances where expert opinions are given, but if we have a uniform rule, I think it will facilitate the work of the committee.      So if you'll all rise, I'll administer the oath to you as a group.         Raise your right hands.  Do each of you solemnly swear that the evidence and testimony that you give before this committee will be the truth, the whole truth and so help you God?      Thank you all very much.         Our first witness is the distinguished former director of central intelligence, the Honorable James Woolsey.  (inaudible) Stanford University with great distinction, Phi Beta Kappa; Oxford University, Yale Law School; managing editor of the Yale Law Journal.         We may be a little heavy with Yale Law representation here today. But we have other distinguished schools represented.      I'm going to make Senator Leahy an honorary Yale Law grad.      (LAUGHTER)      Except he'd probably reject the offer.      SPECTER:  Director Woolsey, thank you very much for joining us today, and we look forward to your testimony.      WOOLSEY:  Thank you, Mr. Chairman.      SPECTER:  Let me repeat that the clock is set at five minutes, and we ask you to adhere to the rules so we can have the maximum amount of time for a dialogue -- questions and answers.         The floor is yours, Director Woolsey.      WOOLSEY:  Thank you, Mr. Chairman.  It's an honor to be asked to be with you.      Since we're in a war, I would start with the enemy -- and I will summarize briefly the first several pages of my testimony to say that two fanatic, theocratic, totalitarian movements in the Middle East have chosen, in the last few years, to be at war with us -- one from the Shiite side of Islam; one from the Sunni side of Islam.         They are manifested in shifting alliances tactically, in doctrinal differences that can sometimes be submerged in alliances of convenience.  They have two somewhat different objectives.         One wishes to kill as many people as possible in order to bring the Madhi back and hopefully have an end of the world as soon as possible.  The other would only like to fold us into a caliphate some day that would rule the world under Sharia.         We may shake our heads in puzzlement at these types of objectives.  But we've learned with the thousand-year reich and with world communism that we need to take totalitarianism and its views seriously.         Unlike the Cold War, we have a number of assumptions that we have to operate under today that are fundamentally different.  Far from fighting a single, rigid empire, our enemies have a host of different relationships with government; containment and deterrence has very little to do with them.      Unlike the Soviets in the Cold War, they are fantastically wealthy from oil.  Unlike the Soviets in the Cold War, their ideology is not dead; it is religiously rooted.  It's central to their behavior.      Unlike the Cold War, we are not safe behind our shores.  The chief strategy for Mr. Ahmadinejad, who is close to Hezbollah, says that he knows of the 29 sensitive sites in the U.S. and the West which he has spied out and is ready to attack in order to, quote, "end Anglo-Saxon civilization."      Unlike the Cold War, our intelligence requirements are not just overseas.  We live on the battlefield, and we need to be able to map electronically that battlefield.      Unlike the Cold War, domestic terrorism in this country cannot solely be dealt with by criminal law.  It is difficult to understand how one deters, through the criminal law, individuals who want to die themselves while killing thousands of us.         Unlike the Cold War, security can come more into conflict with liberty than we wish would be the case.  And unlike the Cold War -- and perhaps most importantly -- the operation of Moore's law over the course of the last two to three decades has fundamentally changed our world.      Throw-away cell phones and Internet Web sites and chat rooms are now available to terrorists.  This is no longer 1978 when phones plugged into the wall and the Internet was just a gleam in the eye of a few people at the Defense Advanced Research Projects Agency.         I believe that the inherent authority of the president, under Article 2, under these circumstances, permits the types of intercepts that are being undertaken.         I believe that's true because the country has been invaded -- albeit, of course, not occupied -- and defending against invasion was at the heart of the president's Article 2 authority for the founders.      We run a serious risk of being attacked again.  Both bin Laden and Ahmadinejad and Abbasi and, indirectly, Hezbollah have so threatened.  The threat from bin Laden is augmented by a fatwah from a Saudi religious leader that threatens the use of nuclear weapons.         Since the battlefield is in part, sadly, here at home, I believe that what we have to do is think very hard about how to have a system that can provide a check and balance against the type of electronic mapping of the battlefield that I believe is necessary.      The one spy at a time surveillance systems of the Cold War, including FISA, through courts, are not designed to deal with fast- moving battlefield electronic mapping -- in which an Al Qaida or a Hezbollah computer might be captured which contains a large number of e-mail addresses and phone numbers which would have to be checked out very promptly.      An attorney general, on the 72-hour basis or a FISA court, simply cannot go through the steps that are set out on pages nine and 10 of my testimony in time to deal with this type of a problem.      In my judgment, oversight is needed.         WOOLSEY:  I generally endorse the support that Judge Posner submitted to the Wall Street Journal in an op-ed a couple of weeks ago with one modification, which is in the testimony and which I don't have time to describe.      Thank you, Mr. Chairman.      SPECTER:  Thank you.  Thank you very much, Director Woolsey.         We now turn to the dean of the Yale Law School, Smith Professor of International Law Dean Harold Koh; summa cum laude graduate of Harvard and cum laude of the law school, Oxford; a clerk to Justice Harry Blackmun.         Thank you very much for coming from New Haven today, Dean Koh, and we look forward to your testimony.         KOH:  Thank you, Mr. Chairman and members of the committee.         In my career, I've had the privilege of serving our government in both Republican and Democratic administrations, and I've also sued both Republican and Democratic administrations when I thought their conduct was unlawful.      In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I've seen.  And my reasons are given not just in my written testimony, but also in two letters that were sent to you by myself and a number of constitutional law scholars and former government officials; as well as in the ABA task report, for which I served as an adviser.      Now I say this fully aware of the ongoing threat from Al Qaida and the need for law enforcement officials to gather vital information.  And of course, in time of war, our Constitution recognizes the president as commander in chief.      But the same Constitution requires that the commander in chief obey the Fourth Amendment, which requires that any government surveillance be reasonable, statutorily authorized, supported except in emergencies by court-ordered warrants, and based on probable cause.      The current NSA program is blatantly illegal because it lacks all of these standards.  And the Supreme Court has never upheld such a sweeping, unchecked power of government to invade the privacy of Americans without individualized suspicion, congressional authorization or judicial oversight.      For nearly 30 years, the FISA, the Foreign Intelligence Surveillance Act, has provided a comprehensive, constitutional and -- using its words -- exclusive framework for electronic surveillance.         Under FISA, executive officials can conduct electronic surveillance of Americans, but they can do so without a warrant for only three days or, in case of wartime, for 15 days after a declaration of war.      After that, they must either go to the special court for an order or come to Congress for an amendment -- or stand in violation of the criminal law.      This was based on a simple logic:  Before the president launches an extended domestic spying program, his lawyers must get approval from someone who does not work for him.      KOH:  Yet, that's precisely what has not happened here.      Now, of course, I agree with Director Woolsey that we can and should aggressively fight terrorism -- but fighting terrorism outside the law is deeply counterproductive.         Under the ongoing program, NSA analysts are increasingly caught between following orders and carrying out electronic surveillance that's facially illegal.         And, moreover, evidence collected under the program will almost surely be challenged -- and it may prove inadmissible, making it far more difficult to prosecute terrorists.      With respect, none of the program's defenders has identified any convincing defense for conducting such a sweeping program without congressional authorization and oversight and judicial review.         And in my testimony, I review and reject those defenses, including the extraordinary claim that you here in Congress enacted the use of force resolution to repeal the FISA, which had, in fact, criminalized unauthorized, indefinite, warrantless domestic wiretapping 23 years earlier.      Most fundamentally, my testimony rejects the radical view of unchecked executive authority that's offered by some of my fellow witnesses.  That unilateral vision offends the vision of shared national security power that's central to what Justice Jackson called, "the equilibrium established by our constitutional system."      Read literally, the president's reading of the Constitution would turn this body into a pointless rubber stamp whose limited role in the war on terror would be enacting laws that the president could ignore at will and issuing blank checks that the president can redefine at will.      Finally, Mr. Chairman, I've had a chance to look at the proposed bill to refine and amend the FISA.  I don't think it will improve the situation.         First, as you say, it is radically premature.  Congress simply does not have enough information to conduct such a broad revision at this time.        Second, remember that the president has refused for four years to operate within the FISA framework.  Unless the president acknowledges that he must obey the FISA amendments and agrees to operate within it, any new congressional action will be equally meaningless.      And third, the proposal pre-authorizes programs, not particular searches.  And as a result, it gives a general warrant to a significant number of unreasonable searches and seizures.         This resembles the statutory version of the British general warrant that was used in the 1700s by the king.         But it was precisely because English law did not protect our privacy that our colonial ancestors said that even when the president in wartime is our commander in chief, we have a right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and no warrant shall issue except on probable cause -- and the persons or things to be seen being stated with particularity.      In sum, Mr. Chairman, for four years our government has been conducting an illegal program and now wants to rewrite the Constitution to say that that program is lawful.      This committee should reject those claims.      Thank you.      SPECTER:  Thank you very much, Dean Koh.         Our next witness is Mr. Robert Levy, who is a senior fellow in constitutional studies at the Cato Institute; has a bachelor's degree from American University, a Ph.D. from American University, and a law degree from George Mason University.  He is an adjunct professor at the Georgetown University Law School, and is a member of the Board of Visitors of the Federalist Society.         I thank you for joining us today, Mr. Levy, and the floor is yours.      LEVY:  Mr. Chairman and members, thank you very much for inviting me to testify.  I'd like to discuss four legal questions related to the surveillance program.         And first:  Do NSA warrantless domestic wiretaps necessarily violate Fourth Amendment protections against unreasonable searches? My answer to that is:  No, they do not -- not necessarily.      There are numerous exceptions to the warrant requirement, including hot pursuit, search incidents or arrest, stop and frisk, and others.      LEVY:  And as for national security, that's an open issue as to whether there is an exception.      Under the Keith case in 1972, the court indicated that it was plausible that the administration could conduct some types of warrantless wiretaps without violating the Fourth Amendment, if a foreign power were involved.         The second question, though:  What about the FISA statute -- doesn't the NSA program violate its expressed terms?      My answer to that question is:  Yes.  The text is unambiguous.  A person is guilty of offense if he intentionally engages in electronic surveillance except as authorized by statute.      Now, to be sure, FISA was drafted to deal with peace-time intelligence, but that does not mean that it's inapplicable in the post-9/11 war on terror.         In fact, Congress expressly contemplated warrantless wiretaps during wartime and limited them to the first 15 days after war is declared.  And furthermore, FISA was amended by the Patriot Act, passed in response to 9/11 and signed by President Bush.         So if 9/11 triggered wartime, as the administration has repeatedly argued, then the amended FISA statute is clearly a wartime statute.      The third question:  Does the authorization for use of military force provide the statutory approval that FISA requires?  Answer:  No, it does not.  A settled canon of statutory interpretation is that specific provisions supersede general provisions.         When FISA forbids electronic surveillance without a court order, except for 15 days, while the AUMF permits necessary and appropriate force, it seems to me quite simply bizarre to argue that electronic surveillance is thereby authorized without a warrant.      Congress, in passing the AUMF, did not intend to make compliance with FISA optional.  In fact, Congress was simultaneously relaxing selected surveillance provisions via the Patriot Act.      To my knowledge, not a single member of Congress, among the 518 members who voted for the AUMF, now claims that his vote changed domestic wiretapping rules.      The fourth question -- and the most difficult:  Do the president's inherent wartime powers allow him to ignore FISA?  My answer is:  No.         Now that's not to say that the president is powerless to order warrantless wartime surveillance.  For example, intercepting enemy communications on the battlefield is clearly an incident of his war power.  But warrantless wiretapping of Americans inside the United States who may have nothing to do with Al Qaida does not qualify as incidental wartime authority.      The president's war powers are broad, but they are not boundless. And, indeed, they are not exclusive.         The power to grant pardons, for example, is exclusive.  Congress could not make an exception for persons convicted of, let us say, child abuse.         But war powers are not exclusive; they are shared between the president and Congress.  It is Congress, not the president, that's constitutionally authorized to declare war, suspend habeas, define and punish offenses against the law of nations, make rules concerning captures on land and water.      The real question is not whether the president has some inherent authority to conduct warrantless surveillance -- he does.  The tougher question is to determine the scope of his authority in the face of Congress' concurrent powers.         And the key Supreme Court case, as you know, is Justice Jackson's concurrence in Youngstown (inaudible).  Clearly, the NSA surveillance program belongs in Youngstown's third category, in which the president has acted in the face of an expressed statutory prohibition.      In my view, he as overreached.  The executive branch may be justified in taking measures that, in pre-9/11 times, could be seen as infringements of civil liberties; but the president cannot, in the face of an express prohibition by Congress, unilaterally set the rules, execute the rules and eliminate oversight by the other branches.      In short, the NSA surveillance program, under current law, is illegal.         Now, in 20 seconds remaining, I'd like to comment on Director Woolsey's statement that the battlefield is here at home.  Calls from the actual battlefield, Afghanistan, or anywhere else outside the United States, can be monitored under current rules, under FISA, as long as the target is not a U.S. person in the U.S.      So to suggest that calls can't be monitored is a mistake.  A call from France or the U.K. cannot be construed as battlefield related unless the term "battlefield" has no geographic limits.         And, indeed, if France is part of the battlefield, why not Nebraska?        LEVY:  The same logic that argues for warrantless surveillance of foreign communications would permit warrant surveillance of domestic communications as well.      Thank you, Mr. Chairman.      SPECTER:  Thank you very much, Mr. Levy.         Our next witness is Professor Doug Kmiec, professor of constitutional law at Pepperdine; had been dean and professor of Catholic University, and on the faculties of Notre Dame Law School and Valparaiso; undergraduate degree from Northwestern with honors, and a law degree from the University of Southern California; assistant attorney general in the U.S. Department of Justice for four years, from 1985 to 1989.         Thank you for being with us today, Professor.  And we look forward to your testimony.      KMIEC:  Thank you, Mr. Chairman and members of the committee.  I ask that my full statement be made part of the record.      SPECTER:  Without objection, it will be made a part of the record, as will all the statements.      KMIEC:  I believe there's a common objective between the president and the Congress.  And, of course, that common objective is to prevent further attack.      One of the things that was immediately recognized after 9/11 -- recognized by both the president and by the Congress -- was that there were missed opportunities to unravel that plot through enhanced surveillance.      The joint independent inquiry of the Select Intelligence Committees recognized that, as well as recognized that there was a perception that FISA wasn't working because of its lengthy process.      So there was a legal issue:  Did the president have the authority to address that question?      The president's lawyers in the White House concluded that he did. The chair of the Senate Intelligence Committee concluded that he did. The attorney general, in an eloquent statement to you on February 6th, illustrated why he concluded that he did.      And I affirm these conclusions as both constitutionally reasonable, practically justified, and necessary.      Now in my written testimony, I give detailed support for that conclusion.  But in a nutshell, it is this:  That Congress, through FISA, was seeking to address a political abuse of the use of surveillance.  It was important for them to address that abuse.  They did.  And it has been stopped.      That Congress, through FISA, was taking up Justice Powell's suggestion in the Keith case that domestic security, while needing to comply with the Fourth Amendment, did not need to comply precisely in the same way.  It could be done through a specialized court and specialized determinations of particularity and probable cause.      But Congress also chose to launch into an area that is very difficult, because there is authority in both Congress and the president with regard to issues of foreign intelligence.      Griffin Bell cautioned the Congress on this score.  And they responded to that caution with a number of provisions in FISA that basically anticipated the need for specialized legislation in the event of wartime.      And I believe that specialized legislation has been passed in the form of the authorization for the use of military force.  And that fully authorizes, as the Supreme Court has held in Hamdi, that the president can use all incidents of war to wage war successfully.      Now I recognize that reasonable minds can differ on this question.        KMIEC:  Reasonable minds have been differing on this question since Madison and Hamilton had a debate about the neutrality policies of the United States.      Justice Jackson himself disagreed with FDR on some questions with regard to foreign affairs authority.  Of course, this body disagreed, to some degree, with President Reagan in matters of Iran-Contra.      But the fact that these questions have been debated perennially since the time of our founding certainly does not mean that these disagreements are illegal or that they call for the appointment of a special counsel.      Such rhetoric -- it seems to me to be partisan, unnecessary, unfortunate and unwise.         The American poet T.S. Elliot observed that:  "War is not life; it is a situation.  It is a situation which can neither be ignored nor accepted."      The war on terror cannot be ignored, and the prospect of further attacks cannot be accepted.      So I think the real constructive purpose of this hearing, Mr. Chairman, is not to have recriminations about legality or illegality, because there is a genuine argument on both sides of that question -- but rather to pursue the issue of what is the appropriate course as we go forward.      And I know that legislation has been drafted for our consideration.  And my sense, with regard to that legislation, is to give it a qualified affirmation.      It is qualified, as it must be, because of course any legislation in this area must always maintain focus on the primary objective:  to prevent attack.         And to the extent that it fails to accomplish that objective, it must be rejected.         But if it does, in fact, authorize a program warrant requirement that meets constitutional specifications -- and I believe, in many respects, it does -- then it is striking a more appropriate balance between the legislature and the executive.         And I hope to answer your specific questions about the legislation in the questions that are to come.      Thank you, sir.      SPECTER:  Thank you very much, Professor.         Our next witness is Mr. Bruce Fein, partner of Fein & Fein; undergraduate degree from the University of California, Phi Beta Kappa; Harvard law, cum laude; was a special assistant in the Anti- Trust Division at the Department of Justice, 1973 to 1980; general counsel to the FCC under President Reagan, 1983 to 1985; constitutional lawyer, international consultant.      Thank you very much for agreeing to be a witness, Mr. Fein, and we look forward to your testimony.      FEIN:  Thank you, Mr. Chairman and members of the committee.         This is a defining moment in the constitutional history of the United States.  And on this issue, I think we're all Republicans and we're all Democrats -- to borrow from Thomas Jefferson's inaugural -- because the issues that we confront, with regard to checks and balances, are indispensable to the liberty of those living and those yet to be born.         The theory invoked by the president to justify eavesdropping by the NSA in contradiction to FISA would equally justify mail-openings, burglaries, torture, or internment camps -- all in the name of gathering foreign intelligence.      Unless rebuked, it will lie around like a loaded weapon, ready to be used by an incumbent who claims an urgent need.         And on this score, as Justice Holmes said, "a page of history speaks volumes of logic."      FISA was the child of the Church Committee hearings.  It disclosed, among other things, that in 1938, when a secret program of domestic surveillance not authorized by Congress was undertaken to identify fascists or communists, the director of the FBI, the attorney general and the president concurred as follows, quote:      "In considering the steps to be taken for the expansion" -- which then occurred -- "of the present structure of intelligence work, it is believed imperative that it be preceded with the utmost degree of secrecy in order to avoid criticism or objections which might be raised by such an expansion by either ill-informed persons or individuals having some ulterior motive.      FEIN:  "Consequently, it would seem undesirable to seek special legislation which would draw attention to the fact of what is being done."      President Bush has advanced the identical justification for refusing to seek congressional authority for the NSA's warrantless eavesdropping, targeting American citizens at home.      What happened after the 1938 secret intelligence program commenced?  The abuses:  mail-openings, burglaries, Internal Revenue Service harassment, a security index in violation of the Internal Security Act of 1950 and COINTELPRO.      The bureaucratic mentality of this spy was captured in the following FBI headquarters response to its New York office's conclusion that surveillance of a civil rights leader should cease because an investigation had unearthed no evidence of communist sympathies.      And this is what the bureau headquarters wrote in response:  "The bureau does not agree with the expressed belief of the New York office that Mr. X is not sympathetic to the party cause.  While there may not be any direct evidence that Mr. X is a communist, neither is there any direct substantial evidence that he is anti-communist."      In other words, it is the mental inclination of spies in the intelligence community to overreach, because their job is to gather intelligence; their jobs is not to weigh and balance privacy interests.      Privacy interests that Justice Louis D. Brandeis characterized in Olmstead v. United States, as "a right to be left alone -- the most comprehensive of rights and the right most valued by civilized men."      Now this committee was told by the attorney general on February 6th that we can all be assured because NSA professionals are deciding who is and who is not sympathetic to Al Qaida, that only the culprits are targeted.      But the whole purpose of the Fourth Amendment, the whole purpose of FISA, was to have an outside check on the executive branch spying -- because of the inherent tension with the desire of the professional to get the maximum intelligence and the desire of the American people to be secure in their persons, houses, papers and effects.      That is the reason why FISA was enacted and why it has demanded such scrupulous conformity over the years.      The argument is made that the authorization to use military force somehow overrode the FISA statute.  On its face, it is preposterous, because the theory that the AUMF authorized the president to undertake anything pertinent to collecting foreign intelligence also meant that this committee and this Congress silently overrode the prohibitions on mail-openings, on breaking and entering homes, on torture, cruel, inhumane degrading treatment of prisoners.      And to do all of those things in silence, on its face, is laughable.         I'd like to briefly address what I think the responsibility of this committee is.         FEIN:  You don't know, we don't know exactly what the nature of the spying program of the NSA is -- as the attorney general conceded on February 6th.  So we don't know the nature of the problem that's created by FISA.         The attorney general said:  "Domestic to domestic Al Qaida calls, FISA works reasonably well."  And the president hasn't authorized those kinds of interceptions without warrant.      Well, on its face, why would the practical difficulty of complying with FISA, when an international call is at issue should be different from the domestic calls.  Maybe there is.  But this committee and the American people haven't been told why.      The burden of persuasion ought to be on the president to explain why FISA is unworkable, not on us to explain why a secret program we know nothing about is unnecessary.      The power of the purse is perhaps the greatest power the founding fathers entrusted to the legislative branch.  It has been used in the past and, in my judgment, should be used now to stipulate that the president can undertake no electronic surveillance for foreign intelligence purposes outside of FISA unless...      SPECTER:  Mr. Fein, could you summarize it?      FEIN:  ... unless within 30 days, the president comes forward with a plan that this Congress agrees will be treated on a fast-track basis like trade negotiations and let the burden be on the administration to explain to this committee why changes are necessary.      Thank you, Mr. Chairman.      SPECTER:  Thank you, Mr. Fein.      We now turn to Professor Robert Turner of the Woodrow Wilson Department at the University of Virginia; bachelor's degree from Indiana University, and law degree and advanced law degree from the University of Virginia Law School; has served in key positions such as the associate director of the Center for National Security Law, of the president's Intelligence Oversight Board, and the president of the Institute for Peace; and worked back in the 1970s for Senator Robert Griffin.      Thank you very much for agreeing to join us today, Professor Turner , and we look forward to your testimony.       TURNER :  Thank you, Mr. Chairman.  It's an honor to be here.      I hope that our question period will provide an opportunity to talk both about the power of the purse and also about the statutory authorization.      I think a case can be made that the AUMF did authorize these intercepts, but I've got five minutes, so let me focus on the more important issues.      I share the view that no one, including the president, is above the law.  But I would emphasize when we're talking about law that the Constitution comes first -- as the chairman did in his opening remarks.         Chief Justice John Marshall told us in Marbury:  "An act of the legislature repugnant to the Constitution is void."      I think there's a place for FISA, but the bill need to include a recognition of the president's independent constitutional power to act in this area.      As Attorney General Griffin Bell mentioned during the Carter administration when he testified before the Senate in 1978:  "During these hearings, it's been suggested that unchecked presidential power is incompatible with democratic governance."      Once again I would call your attention to Marbury v. Madison, where Chief Justice Marshall noted "by the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country, in his political character, and to his conscience.      "Whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists and can exist no power to control that discretion."      At the core of executive discretion, I submit, is the control of foreign intelligence during wartime.  As John Jay noted in Federalist 64, the convention have done well in so dividing the treaty powers that, quote, "the president will be able to manage the business of intelligence as prudence might suggest."       TURNER :  When the founding fathers vested the executive power in the president in Article 2, Section 1, they gave the general control of foreign intercourse to the president subject only to narrowly construed negatives or checks vested in the Senate or Congress.         As I document in my written statement, George Washington, James Madison, Thomas Jefferson, John Jay, Alexander Hamilton and John Marshall all specifically referred to the executive power grant as the reason for the president's control in this area.      As Jefferson put it in 1790, quote, "the transaction of business with foreign nations is executive altogether."  And the need for secrecy was central to the decision to vest not only foreign intelligence, but also the negotiation of treaties exclusively in the president.      As the Supreme Court noted in the landmark 1936 Curtiss-Wright decision, "into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it."      Sadly, since Vietnam, senators have too often breached this barrier.      In my prepared statement, I explained why Curtiss-Wright remains the primary Supreme Court precedent concerning foreign affairs.  I also explain that Youngstown is not really a foreign affairs case.      Both Justice Black, for the majority, and Justice Jackson, in his concurring opinion, time and again emphasized that this was a question of internal powers, of a taking of private property without due process of law -- a clear violation of the Fifth Amendment.      Similarly, the Keith case has been greatly misunderstood.  Like Justice Black and Douglas, Justice Powell, for the unanimous court in Keith, repeatedly emphasized the case involved internal threats from domestic organizations -- in this case, the Black Panthers.         And he noted that the court took no position on the president's power with respect to foreign powers within or without this country.      I would add to the argument that FISA was enacted in response to an invitation from the Supreme Court is simply not accurate.         What Justice Powell said was:  Given those potential distinctions between Title III -- that is, Title III of the '68 Crime Control and Safe Streets Act -- criminal surveillance and those involving the domestic security, that is groups like the Black Panthers, Congress may wish to consider protective standards for the latter -- that is, domestic security -- which differ from those in Title II.      The court made no suggestion that Congress should put any constraints on foreign intelligence gathering, and the courts have clearly sided with the president -- as have all precedents.         In 2002, the Foreign Intelligence Surveillance Court noted that every court that had considered the issue had held the president did have inherent authority under the Constitution to conduct warrantless searches to obtain foreign intelligence.        And the court went on to say, "We take it for granted the president does have that authority.  And assuming that is so, FISA could not take away that presidential power."      Finally, Mr. Chairman, I would note that FISA has done serious harm to this nation.  Colleen Rowley was Time's woman of the year because she complained that the FBI would not even request a FISA warrant.         In fact, I'm sure as you know, the reason the FBI would not request a FISA warrant was because Congress had failed to consider the possibility of a lone-wolf terrorist like Zacarias Moussaoui.  And the statute made it clearly illegal to get a warrant to look at his laptop.         FISA was amended in 2004 to fix that.         General Michael Hayden, a former head of NSA, has said that if this program had been legal back before 9/11, it might have prevented those attacks.  But it prohibited the kind of program.      We've heard a lot of talk about risk avoidance culture in the intelligence community.  Go back -- I followed the Church hearings.  I was here at the time.  Look at the fact you've made felony penalties...      SPECTER:  Professor Turner , could you summarize at this point?       TURNER :  Yes, sir.      You've made felony penalties for intelligence agents to step over the line, even if they do so with presidential authority.      So with that, I thank you, Senator.      SPECTER:  Thank you very much, Professor Turner .      Our concluding witness is associate professor of law from Duquense University, Professor Ken Gormley; undergraduate degree from University of Pittsburgh, law degree from Harvard; a clerk for federal Judge Ziegler and state supreme court Justice Ralph (inaudible); and in 2002, he organized a symposium to celebrate the 50th anniversary of the Youngstown steel seizure case.        And without objection, we'll make a part of the record the videotape and the statement of the Coalition to Defend Checks and Balances -- an initiative of the Constitution Project.      I reviewed your tape, Professor Gormley, and it brought back a lot of memories.        SPECTER:  The case of the steel seizure in black and white doesn't have the drama that the videos did with the newsreels of President Truman and the Korean War and the need for steel and the president's wartime powers.      We were at a war at that time, although we haven't found any nominee for the Supreme Court who will say it was a war yet.  I've been trying for more than a decade.      If you'll permit just a 30-second personal aside, I was one of 200 ROTC cadets at Lowry Air Force Base arriving there in June 25th, 1950, the day the Korean War started.  And we were sure and cocky we were heading right to the trenches.      And after we were there for six weeks, they sent us all back to college.  They wanted to win the war.      (LAUGHTER)      But when your video was shown, it was enormously impressive, and you got the Chief Justice Rehnquist to say that public opinion influences the Supreme Court.  I thought that was quite a concession.      By the way, none of this is out of your time, Professor Gormley.      GORMLEY:  Thank you very much.      SPECTER:  You may proceed, please.      GORMLEY:  Chairman Specter and members of the committee, it's a great privilege to testify today.         And as Senator Specter said, I have had the good fortune of studying the issue of presidential power and, specifically, the steel seizure case often described as the granddaddy of the cases dealing with presidential power, especially on American soil.      And my written testimony contains a lengthy summary of that.         Let me just summarize the problems I do see with the current Bush administration secret surveillance program, acknowledging that I believe it flows from good-faith efforts to wage a crucial war on terror.  Then I'd like to talk about solutions.      Justice Jackson, as you know, declared in his famous concurrence in that case that presidential power's at the high point at the theater of war abroad.  It's at its low ebb on American turf, especially when the president has acted without constitutional or congressional support.      Applying that precedent, I see four problems with the current surveillance program.  Nothing, first, in the text of the Constitution specifically gives the president power to conduct such secret warrantless surveillance on the domestic front, even in times of emergency.      Second, the administration specifically bypasses an act of Congress -- in creating the FISA Court -- that directly deals with precisely these sorts of surveillance efforts with respect to citizens of the United States and residents.      Third, the president's power -- and this is important -- the president's power is further diminished because the program directly collides with rights of American persons under the Bill of Rights, specifically the Fourth Amendment.      And this collision, I should point out, potentially puts President Bush's power even at a lower point than President Truman's in the steel seizure case.      And fourth, this is interesting:  If you adapt the steel seizure test and apply it to Congress, you discover that, unlike the president, Congress is at its zenith of power here.  Congress has the power to establish inferior courts under Article 1, which it has done in establishing the FISA Court.         It has the power to enact laws to ensure that Fourth Amendment rights and Bill of Rights protections are safeguarded, as it has done since the 1960s with wiretap laws.      So Congress is at its high point here.  The president is at low ebb.      So how does this committee give the president the tools he needs to fight the war on terror while still making sure that no constitutional shortcuts are taken?      Here's a very quick summary.  First, the existing FISA statute, I believe, should be used as a starting point.  It works, it's been in place for 28 years, it's the best framework for any new legislation.      Second, a mechanism has to be created for judicial review. Congressional oversight is important, yes, and I've proposed a form of that in my written comments -- but any secret surveillance legislation that makes it impossible to test the constitutionality of the program in the court will end up violating the separation of powers doctrine, as well as the Fourth Amendment.      Probable cause, by definition, includes the participation of neutral and detached judges.  So it's key that the FISA Court be included in the process, albeit to make sure it operates in a highly secure fashion.      Third, a mechanism must be created to allow standing for aggrieved parties so that a valid case or controversy can be created in the courts.         As you know, this is very complicated stuff.  I've attempted to spell out some suggestions in my written testimony.  I think there are ways to accomplish standing legitimately.         GORMLEY:  My proposal would put the Intelligence Committees of Congress in the role of intermediator in order to permit valid cases and controversies to be presented to the courts without jeopardizing national security.         And fourth, the United States Supreme Court must possess the final power of review.  All roads have to lead to the Supreme Court here.  Even Congress can't write the Supreme Court out of Article 3.      And fifth, the intake valve in what's funneled into the FISA Court has to remain extremely narrow.  Any new legislation has to be fine-tuned carefully.         When it comes to surveillance of American citizens in secret, this should be a rare thing -- to be limited to cases where there's an awfully good reason to believe there's someone linked to terrorism on the other end of the communication.      I think that still needs some tweaking.      Let me just end by saying, Mr. Chairman, there is no question in my mind that President Bush and his advisers and the attorney general are doing everything humanly possible to do the right thing for our country here -- just as Harry Truman did in 1952 in the steel seizure case.      He thought it was essential to seize those steel mills in order to protect American troops in the field of battle.      President Bush confronts a world quite different than any other previous president.  This is serious business.  There should be no finger-pointing here.      At the same time, this Congress has clearly defined powers under the Constitution.  It has a duty to our system of government to ensure that these are not disemboweled or diminished in any way by any other branch of government -- however well-intentioned.      Some of the draft legislation, I believe, is a positive step in that direction.  This is not about right or wrong, Mr. Chairman.  It's about attempting to find some common constitutional ground among equally well-intentioned public officials and branches of government.      And I pray that we as a nation are still capable of doing that.      Thank you for the privilege of testifying.      SPECTER:  Thank you very much, Professor Gormley.         As I said at the outset of the hearing before some of the senators arrived, we have on the floor the Patriot Act, and a number of us have to be on the floor yet this morning.      SPECTER:  Scheduling of the Patriot Act motion to cut off debate coincides, by coincidence, with this hearing, so we're going to have to stay on the schedule and conclude in the next hour, one and a quarter hours.      And we have, as is our practice, five-minute rounds for senators, and on the early bird, in order of arrival.      Beginning with you, Professor Kmiec, I note your statement on page 18 of your 27-page statement -- and we thank you for being so detailed -- you have come to the conclusion that if legislation were enacted which would give the Foreign Intelligence Surveillance Court the responsibility to determine constitutionality under the standards set forth in that bill that it would not be an advisory opinion.      You articulated that the program warrant is a fair equivalent of the FISA warrant, which has been upheld, as you put it, quintessential judicial determination at common law.  Would you amplify your reasoning on that point, please?      KMIEC:  Certainly, Mr. Chairman.  The concerns I had when I first saw the draft of legislation was whether this was an advisory opinion, whether this was assigning to the court something that was inconsistent with the court's function in the sense that it was an administrative or non-judicial posture.      But one of the things that's very clear from our history and from the cases is that the determination of probable cause and particularity is and has been described since Matthew Hale, since Blackstone, and commentators thereafter, as quintessentially a judicial function.      SPECTER:  And the determination of constitutionality of the overall program would follow those general principles?      KMIEC:  It would as well, because, of course, the very determination of the appropriateness or inappropriateness of a warrant always has as a background principle the issue of constitutionality. And the way you describe it in your proposed legislation is that the judges would be ascertaining that constitutionality in the performance of this function.  I think...      SPECTER:  Dean Koh, let me...      KMIEC:  I think that is what they do generally.      SPECTER:  We only have a limited amount of time, so you'll have to forgive our moving rather rapidly to another question.      Dean Koh, you've said that unless the president agrees to comply with the operation of the Foreign Intelligence Surveillance Act it would be meaningless to pass more legislation, where we would give to the Foreign Intelligence Surveillance Court the responsibility to determine constitutionality of the overall program.      Why do you say it would be meaningless?  You're not suggesting that if the court made a determination that the program was unconstitutional -- and as has been noted here, we don't know what the program is.  And I don't think we're about to find out what the program is.      There may be some very limited oversight, and even then, the administration has shown a real reluctance to tell the Congress.  I served as chairman of the Intelligence Committee in the 104th Congress, and Director Woolsey has some real insights here.  I couldn't find out very much.  I was chairman of the committee.      I thought a lot of times the director didn't know very much about what the Central Intelligence Agency was doing.  Very, very compartmentalized and secret.  May the record show that Director Woolsey is smiling.  I won't say that's an affirmation of what I've said, but it has some probative value, but perhaps not much.      But, Dean Koh, if the FISA Court said it was unconstitutional, that wouldn't be meaningless, would it?  It would be respective of the president.        KOH:  Well, Senator, 28 years ago Congress and the president enacted a law which they said was exclusive.  And now the president's saying, in fact, it's not exclusive, he can operate outside the scope of that law.      SPECTER:  Well, he's saying the attorney general came in and says the president has constitutional authority.  If the president does have inherent authority under Article II, wouldn't that trump the statute?      KOH:  Well, what I'm saying is that if you pass a new statute, and the attorney general and president have inherent authority to operate outside the scope of it, you can keep passing statutes as long as you want, and they can keep doing it under their inherent power under the AUMF.      I should just point out that the act of passing the Patriot Act again is irrelevant if their theory is true, because the AUMF has already re-authorized the key provisions and you don't need to pass anything.      In other words, the role of Congress here is to either give a blank check, which is revised later on, or to just play this role in which you pass legislation that can be ignored at will.      SPECTER:  In the 18 seconds I have left, I can propound the question for Professor Gormley, and you'll have more time to answer it after my red light goes on.      But you have come to the conclusion that the creation of this legislation would not be an advisory opinion.  Would you amplify that, please?      GORMLEY:  Yes, Chairman Specter.  I think that it, again, requires some fine-tuning.  Here we're talking about the proposed draft Specter bill, and I think it's a good start.  It's a good framework, because it allows for program-based warrants, but it requires probable cause.      It includes the FISA Court.  It includes Congress in an oversight capacity, so we have all three branches of government working.  And I think that is a good start.      I do think that it's essential to make sure that there is some way that there can be a case or controversy presented to the courts. That's a problem, because when you stop and think about it, when matters are done in secret, there is no plaintiff, by definition.  You have to allow some plaintiff to be created legitimately.        And so what I have proposed is to give the power -- require the director of national intelligence to give an inventory of American citizens who have been subject to surveillance who are not terrorists, as is done under Title III, and allow the congressional oversight committee, the Intel Committees, with consultation with the executive branch, to determine if it's OK to then release some of those names. And then you would have live cases or controversies, and they could go to the FISA Court.      But I do think that in general the system works.  I do think it has to be tweaked, and let me just give you one example, Mr. Chairman. The way this thing is written right now -- and I think it's why Dean Koh and John Podesta at the Center for American Studies and others have some problem as written -- it talks only about foreign agents, which makes sense currently under FISA.      But, for instance, if one of your staff members contacted today a government official in Canada, that is a foreign agent, and then that person, your staff member, could be wiretapped for 45 days.  I don't think that that's what's intended.  I think there has to be a more direct link to terrorists, and I think that can be done fairly easily.      SPECTER:  Thank you, Professor Gormley.      Senator Leahy will be returning shortly, and in his absence, I'll turn to Senator Biden.      BIDEN:  Thank you very much.      I'd like to ask Messieurs Woolsey and Turner , is FISA constitutional?      WOOLSEY:  I believe insofar as it intrudes on mapping the electronic battlefield in wartime, when the United States is under direct threat of attack, no.  I believe that there are many provisions of FISA that are constitutional with respect to looking into individuals.      And as Judge Posner's proposal, that I have in general endorsed, suggests, traditional cases of FISA -- spies and the like -- where you have the identity of an individual and the question of probable cause of whether or not that individual's an agent of a foreign power or terrorist organization, under those circumstances, I think FISA can operate, and should operate today, and should operate in the future.      But that's not what we have here.  What we have here -- we don't often even know what individual is at issue, and with the electronic surveillance...      BIDEN:  In the interest of my time, you've answered my question.       TURNER :  Sorry.      BIDEN:  Thank you.      Mr. Turner ?       TURNER :  Thank you, Senator Biden.  I was here when FISA was passed, and...      BIDEN:  So was I.       TURNER :  ... spent three years overseeing it as counsel to the Intelligence Oversight Board, and I'm a fan of FISA.      But ultimately, as Griffin Bell noted as attorney general in the Carter administration in '78, and as the FISA Court of review that you established have said, the president has independent power in this area that cannot be taken away from Congress.  So I think ultimately...      BIDEN:  To the extent that FISA attempts to limit the president, it is unconstitutional.       TURNER :  In cases involving foreign intelligence, and certainly during time of war, I would say yes.  This is the -- the administration...      BIDEN:  My time's running now, with all due respect.       TURNER :  I apologize.      BIDEN:  Now, based on the legal -- and I read all your -- one of the advantages of commuting, you get to read all this.  I read all your statements.  And I must say, for the record, I agree most with Mr. Fein, which should worry him.      But the fact is that under the legal reasoning that some of you have put forward, in addition to the legal reasoning put forward by the administration in the memorandum prepared by Mr. Yoo in 2002, on August 1, 2002, I don't see any rational distinction in the argumentation being made by the administration or by you, Mr. Woolsey, or by you, Professor, or by you, Mr. Turner , that would suggest that the president doesn't have authority to exercise the same authority absent any prohibition and including any prohibition on the part of Congress for domestic to domestic wiretapping.      What's the distinction?      (UNKNOWN):  I think the distinction is the Supreme Court's decision in Keith has made it plain that with regard to domestic security, the Fourth Amendment does have an application different than it has with regard to foreign intelligence.      The motivation for FISA was largely to pursue that domestic security side of the question, and I think that is fundamentally different.      BIDEN:  Well, I was here and was a co-sponsor of that, and I disagree with both your characterizations of what we intended to do at the time.  But I don't have time.      Mr. Woolsey?      WOOLSEY:  I'll just quickly say I think internal communications, even between terrorists, are a different and a more troubling case. Mr. Levy says that the battlefield was Afghanistan but not France. You know, I don't think the United States is the only side that gets to decide where the battlefield is.      If you were here on 9/11 and saw that crash into the Pentagon, it's hard to tell the families of the people who died that they weren't on a battlefield.  I think the battlefield is, in part, here, and connections between here and terrorists overseas, whether they're in France or anyplace else...      BIDEN:  But whether or not they're overseas or not...      (CROSSTALK)      BIDEN:  ... I don't get it.         Mr. Fein, what would you say?  My time is running out.      FEIN:  I agree exactly, Senator Biden, and Attorney General Gonzales himself, on February 6, said there isn't any difference, it's just the president, for political purposes, decided that domestic to domestic would subject him to too great recriminations, and therefore this is not because of absence of legal authority.      If I could just mention a couple points that former Director Woolsey made, number one, Mr. Hayden, General Hayden, had said the United States is targeting specific individuals, this is not a dragnet, it's not data mining that we're discussing -- specific individuals precisely of the type that FISA is addressed to.      And secondly, with regard to battlefield intelligence, the Supreme Court has made clear for more than a decade when we're intercepting calls on a battlefield abroad, or even Al Qaida into the United States, where we're intercepting the conversation before it gets into domestic transiting, there isn't any Fourth Amendment protection at all for Al Qaida.        So this is not application of FISA to curtail or handicap in any substantial way the president's ability to gather foreign intelligence.  It's not an effort to micromanage what the president can gather in fighting Al Qaida and otherwise.      And I think there's been gross misrepresentations of suggesting that under FISA, if Al Qaida makes a call into the United States and an American picks up the phone, then the United States has to stop listening.  No.  That's not been the case.  It's never been the case. And it shouldn't be the case.        WOOLSEY:  Mr. Fein has misrepresented what General Hayden said.      BIDEN:  Pardon me?      WOOLSEY:  I think Mr. Fein has misrepresented what General Hayden said.  He's not said that each of these cases is going after an individual, a known individual.  I believe they're going after phone numbers, cell phone numbers, addresses, e-mail addresses and the like.        If they were going after individuals then individual tests of probable cause could be supplied.  It's precisely the problem that in many cases one does not know who has the cell phone or when it's been thrown away and the rest.        I think Mr. Fein fundamentally misstated what the general said.      SPECTER:  Thank you, Senator Biden.      Senator Hatch?      BIDEN:  Could Mr. Fein respond to that?      FEIN:  I would disagree with that characterization of Mr. Woolsey, because...      SPECTER:  Yes, you may respond, Mr. Fein.      FEIN:  ... because when you are targeting a specific location, even if you don't have the name of an individual, it is focused on an ability to establish some probable cause or suspicion that that particular phone or location is being utilized to further terrorism or the Al Qaida war against the United States.      And it's that focus that is addressed by FISA and distinguishes this from simply a data mining gathering of information that's not targeting any particular location.      SPECTER:  Under the early bird rule, Senator Kyl was here early.      KYL:  Thank you, Mr. Chairman.      Let me pursue just a little bit the question that Senator Biden asked, because we pursued this with the attorney general when he was here, too, and no one was suggesting at that time that we should engage in a domestic surveillance program such as is being done with respect to the surveillance where there is an international point of contact.      But I think we were troubled by his answer which was actually that he had not done the analysis.  The attorney general said the analysis on domestic has not been done.  I said well, you ought to at least do it.      And I'm just wondering, apart from your other views with respect to this question of the distinction between international and domestic, I gather some of you think there is a distinction there that would authorize some kind of program like this, and others believe there is not.      If the attorney general said to you I would like to do this analysis and understand whether there is a distinction between domestic and international, what would your advice be?  And if I can just get a quick response from each of you on the panel, because I do have one other question to ask.      Director Woolsey, maybe begin with you?      WOOLSEY:  I think the distinction comes when one zeroes in on an individual, and then you can have a court understandably consider whether there's probable cause that that individual is an agent of a foreign power or a terrorist organization.      When there is not an individual, when a call is from a switch in Yemen to a cell phone in the United States, then I think under those types of circumstances the administration's assertion of its authority is well taken.        It's a tougher case if one has a call from a cell phone in Lackawanna from someone you suspect to be a terrorist to a cell phone in Toledo.  And we have apparently terrorist cells, one in Lackawanna and one potentially in Toledo.  That's a tougher case.        Once individuals get involved, and one knows names and locations, it seems to me the FISA procedures begin to be appropriate.  This is a tough crosswalk between those.      But for what the administration is talking about, calls from that switch in Yemen to a cell phone of unknown possession in the United States, which, in fact, occurred with al-Midhar and Al Hazmi -- and NSA did not follow it up because, as NBC News says, it was worried about being charged with domestic intelligence collection.      I think in cases like that, the administration program ought to be able to go forward.        KYL:  Thank you.        (UNKNOWN):  Mr. Senator, I don't see any distinction in the sense that the critical point is whether the gathering of the information is for foreign intelligence purposes.  That's the touchstone of FISA application.         And if it's for foreign intelligence purposes -- namely, to fight or identify terrorism or help in the conduct of foreign relations -- I don't see why it makes any difference whether you're gathering that information when it happens to transit in the United States as opposed to transiting between the United States and elsewhere.      It's the use that's critical.      KYL:  OK, thank you.      And maybe just quickly get a -- again, because of the time, just a real quick response from the others of you, too.      (UNKNOWN):  I agree that it's about foreign intelligence gathering.  If all the world is a battlefield, the question is whether the FISA is still relevant and still controls the way in which Congress, the president and the courts operate, or whether the president is suddenly entitled to step completely outside that and rely on inherent, unwritten power.      KYL:  Thank you.      (UNKNOWN):  The restrictions in FISA apply to U.S. persons who are in the United States and who are specifically targeted and intentionally targeted.  It does not matter whether the person on the other end of that line is somebody who's in Toledo, Ohio, or somebody who's in Beirut.      The distinction here between domestic and foreign is not a distinction that you can find anywhere in the FISA statute.  Domestic surveillance consists of targeting somebody in the United States who's a U.S. person.      And I see nothing in the NSA program other than the president's assertion that it only applies when one end of the conversation happens to be outside the United States -- nothing conceptually would distinguish those two cases.        KYL:  OK, thank you.      Professor Kmiec?      KMIEC:  Well, I agree with much of the sentiment, and I think they indicate the legality of the president's program, but they also indicate that this distinction between domestic and foreign is not the right distinction.      The right distinction is whether or not there are individuals, whether they are domestic or foreign, who are associated with Al Qaida and are seeking to materially advance Al Qaida's interests.      I think the fundamental difficulty for the president is that the NSA, in their description of the operational details, which we do not have, has indicated that the program, as it operates, inevitably picks up some U.S. persons.        And to the extent that it does, it then starts to rub against the provisions of the FISA statute.  So the president tried to solve that problem by drawing this distinction between domestic and international, but it doesn't solve it because the right distinction, as others on this panel have said, is the connection to Al Qaida and their purpose to harm us.      KYL:  Professor?      GORMLEY:  I think the confrontation is between the president's powers under the executive power clause and commander in chief clause and the Fourth Amendment.  I don't think Congress can narrow the Fourth Amendment.  I don't think Congress can take away the president's independent powers.      I think that the Fourth Amendment does allow at least some domestic surveillance when you're talking about people the president believes are foreign terrorists.  I don't doubt that will mean some injustice or some innocent people will be listened to.      But the president makes all sorts of decisions in terms of targeting decisions that kill innocent people around the world, because that's the nature of war.  It's unfortunate, but I don't think FISA can really play in this game when you're talking about major constitutional powers.      (UNKNOWN):  Senator Kyl, it's a great question, and I think the greatest danger that faces Congress in dealing with this issue is allowing the distinction between domestic and international surveillance to be collapsed into one in the wake of September 11th.      In one case, Congress has more power under the Constitution, and in another, the president.  And the solution, in my view, is include the courts, because the courts can make sure that boundary line is not crossed, even though it's a fuzzy one.      KYL:  Appreciate it.  Thank you very much to all of you.      SPECTER:  Thank you, Senator Kyl.      Senator Feingold?      FEINGOLD:  Thank you, Mr. Chairman.      Senator Leahy has to leave and asked if we could put a few items in the record for him, a February 12th New York Times editorial, February 16th George Will column, and a statement from the Coalition to Defend Checks and Balances.      SPECTER:  Without objection, they will be made a part of the record.      FEINGOLD:  Thank you, Mr. Chairman.  I appreciate this hearing, appreciate all the witnesses and regret that I have to go to the floor shortly on the Patriot Act issue the chairman mentioned.      But I would like to ask one question.  Let me first say I'm just amazed at the constantly shifting justifications for this NSA program.      After going through two Supreme Court nominations and hearing these two now justices talk about how central Youngstown is, the analysis of this sort of thing, to hear the argument now that Youngstown doesn't even apply -- I mean, it literally is a spectacular range of shifting justifications for what is, frankly, in my view, unjustifiable from a legal point of view.      But I'm very concerned that the administration's theory in support of the NSA program has no limits and that it could be used to justify virtually any action and override virtually any statute based just on a tangential relation to combating terrorism.      None of us actually know what else the administration might have already authorized.  As the chairman's indicated, we don't even know for sure what this program is.      But based solely on its legal theory, I don't know what would prevent the administration from authorizing all kinds of activities that would otherwise violate a statutory prohibition.      It seems to me that its legal theory could be used to justify, as we were just discussing, of course, purely domestic communications of Americans but also conducting warrantless searches of people's homes or even assassinating citizens inside the United States.        I'd like each of you to tell me whether you see any limit for the administration's legal theory and, if so, where would you draw the line.  Let me start first with those who generally support the administration's position, and then elicit a response from those who oppose it.      Mr. Woolsey?      WOOLSEY:  Senator Feingold, I think that even at its lowest ebb under the Youngstown language, Justice Jackson said there's still an ocean, and the ocean is the president's Article II authority as commander in chief.      Personally, I see mapping the electronic battlefield in a situation which the United States has been attacked as far more inherently related to the president's commander in chief powers than operating steel mills under one set of labor regulations or another.      So I don't think Youngstown reaches this commander in chief power.      FEINGOLD:  My question is what limits are there under the doctrine.      WOOLSEY:  As one gets further away from what a commander in chief does in wartime, I think congressional counteraction, such as FISA or something else, begins to have more and more effect.        I agree with Justice Jackson's underlying rationale in the concurring opinion in Youngstown.  So if the president, for example, decided he needed to operate computer companies in order to have better compute chips, I think he loses under Youngstown, even if he tries to do it under his inherent commander in chief rationale.      FEINGOLD:  I want to try to get an answer from everybody, so, Professor Kmiec?      KMIEC:  Senator, I think Youngstown has been portrayed aptly as a limitation on presidential power.  It clearly was in that case as applied.  But there was also instruction from Justice Jackson in that case that the real purpose is to see that Congress and the president work together.      So what we're trying to -- because he indicates that he can find apt quotation, as he says, to support the president's power independently and Congress' power independently from materials that he described as enigmatic as the dreams of a pharaoh.      The fact of the matter is that there are limits.  Mr. Woolsey properly described them.  The limits start to apply more soundly and more directly as you move away from military intelligence, battlefield intelligence, and what the attorney general described to you when he was here, and that is reasonable suspicion that this person is connected to Al Qaida or a related organization.  That is...      FEINGOLD:  What about assassinating American citizens?  Is that prohibited?      KMIEC:  I think it clearly is, by existing...      FEINGOLD:  By what?      KMIEC:  ... by existing executive order, as well as...      FEINGOLD:  If that order was rescinded, what would prohibit it under their doctrine?      KMIEC:  Well, I think you're asking what are the tactical judgments of the president in the time of war.        FEINGOLD:  Could the president make the tactical judgment to assassinate American citizens under the power you've described?      KMIEC:  I don't believe he can.      FEINGOLD:  No, I don't think that's the logical connection in your argument.      But, Professor Turner ?       TURNER :  Yes, sir.  The reason the founding fathers largely cut Congress out of the detailed business of war is because they felt it couldn't keep secrets.  I discussed that in my testimony.  D-Day was not pre-briefed to Congress.      That didn't mean that FDR thought he was doing something evil or illegal.  It was because he understood that operational security and the lives of our troops depended upon keeping that operation a secret.      Sure, the president could abuse these powers.  Imagine if we focused instead on his power to order the use of lethal force.  Could the president decide that a senator he didn't like was flying on an airplane out of France, and tell the military, "That's an Al Qaida plane, shoot it down?"  Possibly that could happen.      If it did happen, there are tremendous checks within the executive branch that would undoubtedly bring it to light.  There are over 200 employees...      FEINGOLD:  I have to move to the other people.  Now I am really getting...      (CROSSTALK)       TURNER :  But on the assassination -- oh, sorry.      FEINGOLD:  Dean Koh?      KOH:  Youngstown is critical, Senator, because it states a vision of shared power in national security between Congress, the president and the courts.  The vision that they are painting is one in which the president only has a role, and Congress and the courts can be ousted.      Your example of assassination is apt in the sense that if it would ordinarily be forbidden by a criminal statute, the president could override the criminal statute as he has overridden FISA here.        And the only other limitation that would come in is the Fourth Amendment, which, of course, would limit him to reasonable searches and seizures.      But the battlefield argument being used makes everything, quote, reasonable.  And also, you have the problem that the program perspective on this -- and program pre-authorization means you could sweep up in a dragnet a huge number of unreasonable searches looking for one reasonable search.      So I think the answer to your question is taken to its logical limit, there are no limits posed by the theories presented here.      FEINGOLD:  Thank you, Dean.      Mr. Levy?      LEVY:  If the president's powers -- if his inherent wartime powers, notwithstanding what Congress has done -- if they are limited, there's no way that we can detect such limits.  Surely, they would extend to roving wiretaps, to sneak and peek searches, to library record searches, to national security letters, all of which are now being vigorously debated in terms of re-authorizing the Patriot Act.      What's the purpose of that debate if the president has inherent authorities?  And indeed, we have evidence that the president believes that it extends to such lengths.      The president has used the same justification -- namely, the authorization to use military force and his executive power and commander in chief power -- to authorize military tribunals without congressional authorization, secret CIA prisons, indefinite detention of Hamdi and Padilla, enemy combatant declarations in Guantanamo without the hearings that are required by the Geneva Convention.      FEINGOLD:  Thank you, Mr. Levy, very much.      Mr. Fein?      FEIN:  I think the president's actions are more illegal than in Youngstown, for two reasons.  One, Youngstown related to seizure of private property as opposed to invading the privacy of conversations, which Justice Brandeis characterized as the most cherished right among civilized people.      Secondly, in Youngstown, the claim was that Congress had turned down -- impliedly not authorized the seizure of the business.  In this case, FISA has affirmatively said you cannot surveil outside of FISA, that it's the exclusive means for conducting electronic surveillance.      So it's a much more affirmative assertion of congressional power than was at issue in Youngstown.  In my judgment, therefore, if Youngstown is good law, this case is very easy.      With regard to limits, it's clear that the president, in my judgment, has propounded a theory that would surely justify torture, claiming that we maybe can get better intelligence if we torture individuals irrespective of the federal statute.      The early decisions of the United States Supreme Court -- Chief Justice Marshall, Little against Barreme and U.S. v. Brown -- they concern presidential assertions of power far less weighty than the president's here, and were turned down.      Namely, in U.S. v. Brown, the president asserted a power to confiscate enemy alien property in the United States during the War of 1812, and the Supreme Court said no, Congress is the only authority to condemn that property.      In Little against Barreme, the Congress said that the president could not intercept ships going from France to the United States as opposed to going from the United States to France -- both upheld.      And last, with regard to Mr. Turner 's statement about secrecy, we built the Manhattan Project in secrecy, and Congress was consulted, in World War II.  The Nazis, the Japanese did not get any fair warning.      FEINGOLD:  Thank you.  And finally, Professor...      SPECTER:  Senator Feingold, you're almost five minutes over.      FEINGOLD:  Just one question.      SPECTER:  We're going to have a -- I know, but you keep re-asking it.      (LAUGHTER)        SPECTER:  And it is true that the witnesses have done most of the talking, but you've been very artful.      GORMLEY:  Mr. Chairman, can I invoke the rule that the person from Pennsylvania gets at least 30 seconds?      SPECTER:  You could if there were any such rule.      Go ahead, Senator Feingold, finish up.      FEINGOLD:  I just wanted to...      GORMLEY:  In the present posture, Senator, I don't think that there are any boundaries.  Even Congress can't authorize the president to eviscerate the Fourth Amendment.      And as I said in my testimony, homeland security includes protecting the Bill of Rights, and so unless we're prepared to say a president can unilaterally suspend the Constitution indefinitely, I think the answer has to be that after a period of time you simply would have to amend the Constitution.      FEINGOLD:  Thank you, Mr. Chairman, for all the time.      SPECTER:  Thank you, Senator Feingold.      Senator Hatch?      HATCH:  Well, the Fourth Amendment does talk about reasonable search and seizures, and there is some real question where there is reasonable cause to do this.  And I believe that I would come down on the side of reasonable cause.         Mr. Woolsey, you started this off, and you've been attacked ever since, to a degree.  I'd like to just spend a few minutes with you on this, because I kind of think that the Curtiss-Wright case is a central case as well.  In fact, it may be, in this instance, much more important than the Youngstown Sheet & Tube case.        But I think you didn't have a chance to use some of your remarks, and I'd just like to get your ideas on this.      You say that the captured Al Qaida or Hezbollah computer contains, like Moussaoui's, a substantial number of e-mail addresses and phone numbers, and we have only hours before the capture is known, during which time we must check out those numbers and addresses and others with whom they may have been in contact before the owners throw away their phones and change their e-mail addresses.      How can an attorney general or a FISA Court, even with amended procedures, make these decisions sufficiently quickly?  The FISA Court considered and deliberated about only 1,758 requests for warrants in all of 2004 and asked that 94 be modified before they were granted.      And then you go on to list each of the FISA warrant application approaches in order to get a FISA warrant in individual cases.  Now, with all due respect, other than with the possible exception of Mr. Woolsey, I don't think anybody on this panel -- and I may be wrong on this, but I don't think anybody on this panel has a full understanding of what really is being done here.      But you say here that just to get a warrant for an individual before FISA, you make a warrant request form filled out by the FBI, the target and individuals identified.  Facts are set out establishing there is probable cause to believe that the individual's involved in terror or spying.      Details of the facilities and communications to be monitored are supplied.  Procedures are set forth to minimize the collection of information about people in the U.S., a field office supervisor then verifies and approves the request, and you go further.      I mean, to me -- well, let's just give the last few.  FBI special agents and attorneys at headquarters ensure that the form contains all required information and finish the form.      The director of the agency certifies that the information being sought is necessary to protect the U.S. against actual and potential attacks, spying or international terrorism and cannot be obtained by normal investigative techniques.      At the Justice Department, lawyers at the Office of Intelligence Policy and Review draft a formal application based on the request. The attorney general reviews and approves the application.  Then you've got   to go to the FISA Court and get the warrant in each case, is that right?      WOOLSEY:  The summary is taken from the New York Times summary of the statute, Senator.  I think this is main problem.  And it's not ill will on anyone's part.      The operation of Moore's Law has given us the Internet and throwaway cellular phones and everything else, which terrorists have access to.  That was not remotely envisioned.      HATCH:  And Moussaoui may have had thousands of references.      WOOLSEY:  Again, I don't know how many were on, but apparently...      HATCH:  Well, no, but I'm just saying...      WOOLSEY:  ... there was a large number.      HATCH:  ... any number of these people may have had thousands of e-mail addresses, names and other references.      WOOLSEY:  Exactly.  We captured Khalid Sheikh Mohammed and got his computer.  We've captured other hard disk drives from people.  And when it's known that they're out of communication and they're not going to be back up for a while, people suspect that they may be captured and, I would surmise, do things like throw away their cell phones, and change to different chat rooms and the rest.      This is a fast-operating world, this business of electronic battlefield surveillance.  And it's not the president's fault that we're on the battlefield here.  We didn't want to be on the battlefield.  The battlefield is not, as Mr. Levy seems to suggest, just where we choose, like Afghanistan.        HATCH:  Now, do you believe it's just Afghanistan and Iraq?      WOOLSEY:  Say again?      HATCH:  Is the battlefield just Afghanistan and Iraq?      WOOLSEY:  Of course not.  I mean, this war that we are in -- the administration is starting to call it the long war.  I think it's better than war against terrorism.  The first part of my testimony suggests were really have two totalitarian movements, broadly speaking, fragmented into different parts that have chosen to be at war with us.      And they include elements, I think, within the Iranian government.  They include Hezbollah in some circumstances, include different Sunni Islamist groups, include for some purposes the Wahabbis in Saudi Arabia.  This is a complicated matter.      And we are in the gun sights of more than one international terrorist Islamist organizations that have ties, some of them, to states.  And these are shifting alliances.  This is a hard kind of thing to keep up with.      And trying to do it spy by spy, case by case, pleading by pleading, as one does in the FISA Court, is not only difficult, it's absolutely impossible.  The FISA is court doesn't fit with this need poorly.  It doesn't fit at all, as far as I'm concerned.      HATCH:  So the president has exercised his inherent power to do the best he can to protect the homeland.      WOOLSEY:  I believe in this regard that is correct.  I don't believe the president could order assassinations of Americans.  I'm something of a student of American military history, and I can't think of a single case in all the wars we've been in where the president has ordered the assassination of an American citizen.      But the president has collected a lot of battlefield intelligence in wartime.      HATCH:  My time is up.      WOOLSEY:  Thank you.      SPECTER:  Thank you, Senator Hatch.      Mr. Levy, you testified that the electronic surveillance of citizens other than Al Qaida is beyond the pale, in effect.  Attorney General Gonzales testified that the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization.      We've never had any specification as to how they can make that kind of a determination.  And it's difficult to see how they would do it, and I'd be interested to know how they did it.      And then you have the career professional who makes the reasonable grounds determination, which obviously is not an impartial magistrate, to make the determination.      But if there were a way -- and I use the subjunctive there -- that you knew that at one end of the conversation there was an agent of Al Qaida or an affiliated terrorist organization, would you think that permissible?      LEVY:  It depends on who's the target of the surveillance, Senator.  If the target of the surveillance is the agent, then surely it's permissible.  And in fact, procedures are available under FISA to authorize that.      If the target of the surveillance is a mere contact, somebody who may not even be aware that his conversation has intelligence value, the thought that the U.S. government can put a wiretap or some other form of surveillance on that person's communications, his telephone calls and e-mails, I think is utterly outside the scope of FISA.      SPECTER:  Do you think that necessity could be shown, or a program could be justified, where you have a career professional at NSA making that determination, for whatever that means?      LEVY:  Well, I'd be a little leery of having career professionals make these kinds of determinations.  I mean, the very essence of the constitution's structure is sharing the power between branches.      So if we're going to have a career professional providing input, that's all good and well with me, but I would like to see input provided to someone outside of the executive branch, preferably the FISA Court, and that information then being used and at least being agreed upon by more than one branch of government before this kind of surveillance is authorized.      Again, the key point for me is who the target of the surveillance is.  There's no restriction right now on intercepting communications that go to a U.S. person in the United States, if the U.S. person in the United States has not been made the intentional target of the surveillance.      So the thought that battlefield communications can't be intercepted -- that's nonsense.      SPECTER:  Let me move now to Director Woolsey.      The National Security Act of 1947, under the title of General Congressional Oversight Provisions, specifies that the president shall ensure that the Congressional Intelligence Committee be kept fully and currently informed of the intelligence activities of the United States, and the statute, as you know, refers to the committees repeatedly.      What do you make of this practice to limit it to the so-called gang of eight, in derogation of what the statute requires when it refers to a committee, which has 15 members in the Senate, for example?      WOOLSEY:  It does, Senator, but I think when you add the House committee and the appropriations subcommittees, and the staffs of all four of those, you get up in the ballpark of 200 individuals.      SPECTER:  Well, you don't have the appropriations committees specified in the statute.  You have the intelligence committees, and you could read that to exclude the staff.  It's pretty hard to read it to exclude the senators or the members of the House.        WOOLSEY:  You could try to do that, and...      SPECTER:  What is the justification -- when you were director of CIA under President Clinton's administration, did you limit the information to the so-called gang of eight?      WOOLSEY:  No, but I frequently would go to the chairman and ranking member of each of the two oversight committees and each of the two appropriations committees and leave it to their discretion as to how widely to hold a hearing, for example.      But I never went precisely to the so-called gang of eight because that really is related, as I recall, to a later amendment dealing -- or executive order dealing with certain CIA covert actions.      And we didn't have any that I thought needed to be limited to gang of eight notification, so I always dealt with the chairman and ranking member and left it essentially up to their judgment how widely to disseminate things.      You and I, unfortunately, only overlapped for a very brief period of time.  I wish you had been chairman in '93 and '94 and not just come in in '95, frankly.      SPECTER:  So do I.      Before turning to Senator Schumer, who's just arrived, let me turn to Senator Kyl for a second round.      KYL:  Thank you, Mr. Chairman.  Other than Professor Kmiec, do any of you believe that the FISA Court could judge the constitutionality of the NSA program, as suggested by Senator Specter's proposed legislation, without an actual plaintiff who presents an actual case or controversy?      Do any of you agree with him on that?      (UNKNOWN):  I do, Senator Kyl.  I think the way in which this could be done is if the attorney general approached the FISA Court with an application for warrant and said we are using, as part of this application, information obtained from the NSA's warrantless surveillance program.      And then it would be up to the court to decide whether that program was tainted, and therefore the information could be utilized or not, and...      KYL:  Excuse me, so if the attorney general approached the court with a warrant for an actual...      (UNKNOWN):  Seeking a FISA warrant and saying to the FISA Court in support of this warrant, I am utilizing the following information that we received from the NSA's warrantless surveillance program.      KYL:  Well, let me back up.  There's a big difference between collecting intelligence on the one hand, which is what this program is intending to do, and collecting evidence for prosecution in a case.        And I think we need to keep that distinction in mind here.  It may be that evidence collected under this program could not later be used to make a criminal case.        (UNKNOWN):  I'm not addressing that issue, Mr. Senator.  What I'm addressing is application of a warrant to collect foreign intelligence under FISA, not for a criminal prosecution.  I'm saying you go...      KYL:  Right, and you think that...      (UNKNOWN):  ... in seeking that warrant...      KYL:  All right.  But are you suggesting that it would have to be for a particular situation?      (UNKNOWN):  For a particular search warrant under FISA.      KYL:  OK.  Well, that would presumably, then, offer up an actual case or controversy.      (UNKNOWN):  Yes.      KYL:  All right.  Well, my question was no case or controversy, so -- all right.        It seems to me -- and if you would like to -- if any of you -- well, let me ask this.  Several of you have noted the fact that there is a genuine legal argument to be made for power residing both in Congress and the executive and, perhaps, even a court review of that in a particular situation, and have noted that this is to some extent dependent upon the facts.  Is it domestic?  Is it not domestic?  There were other distinctions made earlier.      It seems to me that this is almost a classic case, like the war powers debate, where it is not arguable that both Congress and the executive have authority.  It is, to some extent, competing, to some extent overlapping.  And it is very difficult to sort out in the abstract.        It is the classic case where the court, on political questions, has avoided sometimes getting involved in the debate.  And where both parties, both the executive and the president, have marched right up to the brink and have backed away and resolved the issue.      I mean, we don't -- the president still says I don't have to follow the War Powers Act.  Congress says yes, you do.  And yet we both go on about our business warily working with each other in a way that doesn't set that conflict up, because we understand there are larger, more important things than necessarily having a fight that's going to try to force a court to resolve an issue where, in fact, the founding fathers and the Constitution does not provide a crystal clear answer for every situation.      And so I guess what I'm arguing for here is a resolution of this that's sort of in the spirit that some of you have suggested.  Let me just pose one hypothetical case, and this may be so hypothetical that it's not helpful or real.        But hypothetically, if the Intelligence Committee or parts of the Intelligence Committee, were regularly briefed, say 45 days, and that that briefing included -- on this program, and that that briefing included a certified I.G. report on whether there were ever any situations of purely domestic surveillance, inadvertent, in the program, which would then enable Congress to suggest that the court ought to have a role in this, is it necessarily the case that the court would have to have a role in it prior to that situation?      (UNKNOWN):  Senator...      (UNKNOWN):  Senator...      KYL:  Well, we're going to get into the admonition of the chairman.  So at least a couple of you.        Professor Kmiec, and then the two of you down on this end that had your hands, too.      KMIEC:  I think both of your questions are is it more appropriate for a court or for an inspector general and executive agent to have this oversight responsibility.      I think the reason Justice Powell suggested the court in the Keith case was because some of this evidence potentially can end in a criminal prosecution.  Not all does.  Much of it is for purposes of prevention.  And that's why there's a constitutional justification for the court, because...      KYL:  If I could just interrupt you, and I'm really sorry to do it, but the chairman will get all over me if I don't here.      I was not talking about the ultimate oversight.  My hypothetical was you've got the existing program.  It's briefed to members of the Intelligence Committee.  And if there is ever a situation where there is an inadvertent surveillance that's purely domestic, that involves no international context, that that would have to be told to the committee.        And my hypothetical really is in that intelligence-gathering context, given the fact that Congress would then have the ability to inject the judiciary, and if it decided to do so, would that be an appropriate way to begin to provide oversight?      KMIEC:  No question about it.  It would be a more deferential form of oversight insofar as it would allow the executive to more fully operate.  And until a problem arose, there would not be a referral to a court or to others for further proceeding.      So it is tweaking the process of oversight, and it is just simply more deferential to the executive side.      KYL:  OK.      Just the first two -- would that be all right, Mr. Chairman, and then...      SPECTER:  (OFF-MIKE)      KYL:  Yes, Mr. Woolsey, and Dean Koh.      WOOLSEY:  Senator Kyl, what you suggest is a rather close cousin to the amended version of Judge Posner's recommended oversight procedure that I include at the end of my testimony.      I would far rather have the Intelligence Committees, or some subset thereof, or perhaps the group of eight -- it would be up to Congress -- be the oversight mechanism here than the FISA Court.  I don't believe courts are, as I said earlier, the right institution to provide oversight over intelligence collection as distinct from these individual cases we talked about.      I think that a mechanism somewhat of that sort would be a compromise somewhat analogous to the compromise or standoff that has developed with respect to war powers, and I think it's a good insight. I agree with it.      KOH:  Senator, I agreed with your main point, which is this is one of those areas in which Congress and the president make a bargain as to how they're going to do things, and then both sides are supposed to agree to stick within the bargain.        If the FISA is not working, as Senator Hatch is suggesting, then it's the job of the president to come to Congress, give those examples, and ask for an amendment to remove the court and insert various bodies of Congress into it.      They've done that in the Patriot Act.  They've come for various kinds of FISA amendments.      KYL:  Excuse me, or we could do it on our own initiative.      KOH:  You could have hearings to do that based on knowing more...      KYL:  We could pass a law to do it.      KOH:  Well, it might help first to know exactly what it is that they're doing and what warrants they can't get.  That's what I don't know.  In what ways has the FISA Act court actually stood in the way of them getting warrants that they need to get?      Now, they're suggesting that there are so many warrants they want to get that the FISA Court, which has given 19,000 warrants and rejected only five, won't give them.  And they've never given us an example of a warrant that they can't get.      So the real question is why is it that the FISA Court is failing them.  And why is it that they need to involve the committees of Congress?  But the point that the chairman made is they have not even involved the Intelligence Committees, only the gang of eight, and on limited briefings.      KYL:  Thanks very much.  And of course, the answer that the administration gives to the question you posed is that that gets into the operational details of the program, which would make it very, very difficult to discuss publicly.      SPECTER:  Thank you, Senator Kyl.      Senator Schumer?      SCHUMER:  Thank you, Mr. Chairman.  And again, I want to thank you for your work in arranging these hearings.  I think you've tried hard to be fair.  This panel shows it.  It probably has one more witness against what the administration wants than for it overall.      So despite your best efforts, which I have no problem with -- you've been fair, as you usually are, or always are -- almost always, I guess -- I'm worried about these hearings.  The structure of the hearings I don't think is going to allow us to get to the heart of the matter.      We had General Gonzales, who was a spokesperson for the administration.  I don't begrudge him that.  That's his job.  Here today we have an extraordinarily distinguished panel of experts and thinkers, all smart on the law, smart on policy but, unfortunately, ignorant of the details of the NSA surveillance program at issue here today.      And while I and others on the committee welcome your expert testimony, what we really must have before this process is over is the frank testimony of former administration officials who are familiar with the NSA program.      What about the people who dissented?  What about people who expressed reservations -- Jim Comey, John Ashcroft, Jack Goldsmith -- hardly flaming liberals, all of whom had real problems with this. Will we ever hear from them?      We have the 42-page white paper that's an after-the-fact defense of the NSA program, but what about the other papers?  What about the contemporaneous legal memos that supposedly justified the NSA program? Will we ever see those?        Now, after Attorney General Gonzales testified, the administration made clear they're going to assert every conceivable privilege, maybe with the exception of priest-penitent, to prevent former officials from shedding light on their view of the legality of the program.        More than three weeks have passed, and we haven't even gotten answers to any of our follow-up questions to the attorney general.      So, Mr. Chairman, I fear that without hearing from the other witnesses, and without receiving other materials, these hearings will be like a baseball game where only one team gets to bat.      You guys are sort of referees and umpires there.  But we haven't heard from the other team.        So let me ask each of you, do you agree that it would be helpful to hear from those who are actually familiar with the NSA program who have concerns within the administration, and do you believe it would be good for the administration to be flexible about the issue of privilege so the American people can get to the bottom of what went on here?      I'll take anybody who wants to respond.      FEIN:  I agree, Mr. Senator, and I think that it is almost irresponsible for the Congress to enact legislation not knowing what the nature of the problem is.  And the reason isn't your fault.      It's that the administration has concealed everything, not just operational details.  They haven't provided a glimpse as to the nature of this surveillance program.      The way in which the Congress was clearly intended by the founding fathers to extract that kind of information is through the power of the purse.  You simply enact a law that says the president has no authority to conduct electronic surveillance outside of FISA unless within 30 days, 60 days he comes forward and explains the program to Congress and the need for any changes.      That's the only way I think your going to get any of this information.  This bargaining is just going to last for years and have no end point.      SCHUMER:  Thanks.      Professor Koh, and then Mr. Levy.      KOH:  I would differ from Mr. Fein in only saying it's not almost irresponsible.  It is irresponsible to pass new legislation without knowing exactly what went on and without getting a commitment from the administration that if you revise FISA they will obey the new FISA when they didn't obey the old FISA.      SCHUMER:  Mr. Levy, and then...      LEVY:  I think one purpose of these hearings was to determine whether or not what the administration has engaged in is legal, and I don't believe this committee needs much more in the way of inputs to make that legal assessment.      I do believe that the remedial question is quite separate.  That is, what should we be doing about that.  And that question, of course, depends heavily on operational details.  It's impossible to craft a remedy -- if the administration believes that the existing procedures are too cumbersome or take too long, it's impossible to craft a remedy unless we know is what the administration doing essential, number one, and, number two, is what the administration doing effective.      We don't know the answer to either of those questions.  We don't even know exactly what it is that they're doing.      SCHUMER:  Right.  Does anyone dissent from the general view here?      KMIEC:  I dissent.      SCHUMER:  Professor Kmiec.      KMIEC:  I think the administration has been very forthcoming.  I think the attorney general has tried his best to outline the legal rationale, which I think is a plausible one.      But I think with all due respect, Senator, for the purpose of this committee, it's not for purpose of recrimination.  It's for the very purpose that Justice Jackson outlined in Youngstown, and that is to have this Congress and the president work together to solve the basic problem.      And the basic problem is we're fighting a novel war, where we have specific needs of surveillance and intelligence, that both require us to preserve the civil liberties of individual citizens in ways that are differently challenged because of the nature of that war.      And so what we need is a programmatic way to have a detached set of eyes check the responsibility of the executive.         SCHUMER:  But don't you think, sir, that having people...      SPECTER:  Senator Schumer, your time has expired.  As I said when we began the hearings at 9:30 and before we started our first round, the Patriot Act is on the floor, and some of us are going to have to be there before noon, and we had targeted the conclusion at about 11:30.      Would you finish your last question?  We're going to have to move on.      SCHUMER:  OK.  I was just saying to Professor Kmiec -- doesn't it make eminent sense to do exactly what you're saying, that it would help to find some people who not only have a great deal of legal knowledge, but who were on the ground at the time and realize the subtleties and difficulties that I'm very well aware of?         I mean, I hardly have an absolutist position on this.  And to not have someone like Jim Comey, the premiere terrorist prosecutor around, who knows both the Constitution and the difficulty in prosecuting people in these difficult times, as you say, deprive us of the kind of key input that we need.      You don't disagree with -- you don't agree with that view?      KMIEC:  Well, I think it will unnecessarily provoke a dispute over executive privilege and deliberative process.  And all of that ends up being kind of a principled dogfight between this body and the executive.      That's not helpful, in my judgment, to actually solving the immediate problem, and that is how to get a proper authorization, a specific authorization, for the authority that the president believes he has as a constitutional matter.      SPECTER:  We're going to have to alternate now to Senator Hatch and then Senator Kennedy.      Senator Hatch?      HATCH:  I just want to say this is a particularly profound panel of experts.  I really have enjoyed every one of you, and I've listened very carefully to every one of your testimonies here today.      I do think, Senator Schumer, you had a little bit of -- I thought Bob Levy's testimony was particularly important, as I did all of them, but I think you'd find a little difficulty not considering New York as a battleground in this war, this unusual war on terror, and that only Afghanistan or Iraq constitute that.      I'm not sure that's what you said, but that's the way I...      SCHUMER:  No, it's not.      HATCH:  No, I didn't think so.  I hope not.  I wanted to make that clear.      So let me just clarify your positions, some of you who care to respond -- position on a few points based on your understanding of the law.  If the government obtains information through the NSA program, do you believe as a matter of law that this information can be used in support of applications for a court order under the FISA statute?      (UNKNOWN):  I would say no.      HATCH:  OK.      (UNKNOWN):  I would agree.      HATCH:  Who was that?  That's...      (UNKNOWN):  To the extent that the NSA program is illegal, as I believe it is, then any information...      HATCH:  Well, do you believe that any fruit of the poisonous tree arguments are valid in this matter?      (UNKNOWN):  I don't think there's an easy answer to that question, Senator.      (CROSSTALK)      (UNKNOWN):  I think there will be -- to the extent that there's derivative information that's used for purposes of bringing criminals charges against individuals, I think the question becomes, what's the nature of those criminal charges?         Are we talking about sabotage?  Are we talking about materially advancing terrorism?  Or are we talking about some independent drug crime or something else?      I think the constitutional question is different in each case, and I think the court would practically examine those issues...      HATCH:  Let me go a little bit further here, Professor Koh.  I didn't mean to cut you...      (CROSSTALK)      KOH:  Senator, the very question you asked shows the way in which the program has cast doubt on the credibility of evidence and the usability of evidence.  That's exactly what FISA was supposed to do, to create a process where evidence obtained through FISA warrants could be used.      And now this extra legal program is not only putting into jeopardy that evidence, but also the warrants that is based on that evidence, and bringing the entire FISA scheme under a cloud.      HATCH:  I don't agree with that.      Let me ask -- did you have a comment, Mr. Woolsey?      WOOLSEY:  Just a quick point, Senator Hatch.  I think the proposal that I'd mentioned by Judge Posner has some real merit here, because one thing it does, by having a statutory declaration of a national emergency and the presidential declaration that this particular type of surveillance is necessary, it narrowly defines the purpose.        It narrowly defines national security.  For example, with respect to terrorism, it does not involve ecoterrorism and the like.  And so one has the surveillance focused on precisely what the administration says it is concerned about, which is violent terrorists abroad communicating with people in the United States.      I think, under those circumstances, one still should not be able to use the fruits of this surveillance in a criminal prosecution.  But there will be less conflict under Judge Posner's approach than under some of the others.      HATCH:  I don't think that -- I don't believe any of you believe that information obtained under the NSA program may be legally used to support or in support of an application for a Title 18 warrant where you believe that one of the parties has been determined to be Al Qaida affiliate, but where it's not been determined to be an Al Qaida affiliate but is just a common criminal, such as a drug dealer.      And let me ask this question:  Can information obtained from the NSA program but found not to be connected to Al Qaida activities or associates be used by agencies like the IRS, or DHS, or non-terrorist proceedings, such as tax evasion proceedings or immigration proceedings?  Just...      (CROSSTALK)      WOOLSEY:  Not under Judge Posner's proposal, and not under mine, Senator Hatch.      HATCH:  I agree.  The administration says, in its 42-page legal opinion, that earlier presidents have used surveillance programs like the NSA program in other wartime situations.  Do any of you believe that the facts support this assertion?  And do you believe that the presence of the current FISA statutes affects this argument?      FEIN:  Well, I think that the earlier claims were without FISA, so you didn't have Congress speaking itself directly to the matter.      The Supreme Court in U.S. against Colandris (ph) said that wiretapping taken in violation of Title III can't be used in grand jury investigations.  I don't see how there would be any deterrent, how there would be any teeth to the Fourth Amendment if you said the electronic surveillance, even if it's illegal, can be utilized and that there's no remedy for the individual whose conversations have been illegally seized.      There must be some remedy or else the right becomes totally hollow.  That's the reason why the Supreme Court decided it would no longer tolerate Wolf against Colorado and provided a remedy in Mapp and Ohio and then the Bivens case.      HATCH:  Senator Leahy's going to allow me to ask one more question, and I'd really appreciate it, because it goes directly to his statute, and that's this.      In preparation for this hearing, Senator Specter asked you all to review his draft bill.  Now, the Specter bill contains a probable cause standard.  Now, Senator DeWine has suggested that a reasonable suspicious standard might be more appropriate for this type of program, because at this stage of an investigation there be relatively little known about the persons involved.      And I'd like to know what you think the appropriate standards should be.  And let me tell you my problem.  My problem is, is that I believe that you must have a probable cause standard to appear before FISA, but this type of surveillance is reasonable, but I don't know that it arises to the dignity of a probable cause standard.      And unlike Dean Koh, I really believe that this is a very, very big problem here, if we're going to really protect the country.  I'd just like to know which standard do you think should be applicable, because I don't think you could do most of this work on a strictly probable cause basis.      And I suggest than an awful lot of reasonable cause problems are never brought to FISA because that's all they can raise, is the reasonable cause.  And in spite of the almost 2,000 FISA requests last year, we're talking about maybe many multiples of that.      So I'd like to just have your view on this.         Yes?      WOOLSEY:  Senator Hatch, I think that's precisely the problem. If you try to fit this electronic battlefield mapping operation into a FISA warrant process, and you lower the warrant requirement to one of only, say, reasonable suspicion or maybe even lower, might yield useful information, then you rapidly approach the point where the warrant process ceases to be a filter and judges have no basis for refusing to grant an application.      Also, much of this is not about individuals who may be agents. Suppose Al Qaida calls someone in the United States, and it's a false flag operation, and they pretend to be Hezbollah to get him to do something.  Are they an agent -- is that probable cause to believe they're an agent of Al Qaida?  I don't think so.  I don't know.  He might even not know who's at the other end on the cell phone.      None of this concern and need really fits into warrants and individual case-by-case determination about single individuals.  I think that's the essence of the problem.      (UNKNOWN):  I also think, in fairness to Senator Specter's draft, his definition of probable cause is different than probable cause of a specific individual, or a particular crime, or a crime that's being committed.      The definition is probable cause to believe that the program will intercept communications of a foreign power or a foreign agent.  And so he is really creating a programmatic form of approval before a neutral magistrate.      Now, the benefit of the program is the neutral magistrate and the demonstration of those facts that lead to that belief.  I think it's important for us not to confuse old FISA with this reform of the FISA program that is being proposed.      KOH:  Senator, I think the question is:  probable cause of what? It's not saying in this bill probable cause that somebody on the conversation is from Al Qaida; it's saying probable cause to believe that the program will accept communications from persons who had communications with agents of foreign powers.      I would say everybody in this room has had communications with a foreign government official when you get a visa.  And if a program will accept the communications of everyone in this room, then it's not a program in which the probable cause standard is limiting the surveillance.      SPECTER:  Let us come back to Senator Hatch's question after Senator Kennedy is given a chance to answer.  Playing referee on time is always hard here.  Senator Feingold was almost five minutes over. Senator Hatch has an important question.      Senator Kennedy is in waiting.  Senator Hatch has been here all morning.  Senator Kennedy...      KENNEDY:  If he wants to -- if Orrin wanted to finish up...      (CROSSTALK)      SPECTER:  You're recognized, Senator Kennedy.      KENNEDY:  Thank you.  Thank you very much, Mr. Chairman.         Thank all of you for being here.        I remember a different time, 1976.  President Ford, Attorney General Levi, understanding in the wake of all the Watergate and all the challenges that we had at that time, we had to do something that was going to be in our national security interests.  That's what we're talking about today:  What is in our national security interest?      And I remember myself and other members of our Judiciary Committee on four different occasions going down to the Justice Department with Attorney General Levi to work out that language, which was the FISA language.  And finally, at the final roll call was called in 1978, there was one vote in the United States Senate against it.         And we took into consideration the dangers, the national security issues of secrecy, at that time, in the language which was included. And the members of this committee understood it; the administration understood it.  And with the intervention of President Ford, this was passed bipartisan in our national security interest.      Now we have a wild-haired scheme which is going to open up, I think, the NSA individuals to suit, open up the telephone companies to suit, and is going to taint evidence, as we're even seeing at the Fourth Circuit at the present time, where evidence has been introduced and there's been a delay, in terms of sentencing and remanding of cases, because whether that evidence is going to be tainted.      And we'll have Al Qaida out there, individuals that ought to be treated harshly, and possibly creating the loopholes where they will escape.      I think what is happening now is not in the national security interest.  What we are looking for here in this committee is something that would be in the national security interest and worked out in a bipartisan way.  And we asked the administration -- we have seen the example that it's been done on previous times.  Why not do that at this particular time?      The administration doesn't care any more about national security than any individual members of this committee or any of the members on this panel on it.  And that, I think, is really the dilemma that we're facing at this time.      I'd ask Professor Koh -- and I've realized we're all short on the time.  And there's an additional question I want to ask about the Fourth Circuit, and if members are familiar with what is happening there, the two cases there.  Maybe there are members of the panel that understand it.      But do your understand the history of the FISA -- other members do, as well -- do you really question that this committee and the administration couldn't get together and try and pass legislation that would be in the national security interest, and meet the particular sort of constitutional issues and challenges, and also, you know, respect the executive for their interests?      KOH:  I agree that this is the moment to have that kind of discussion.  With the factual background of knowing exactly what warrantless surveillance programs have been going on for the last four years, I think the public has a right to know and the committee has a right to know.      I recall this discussion about trained NSA professionals.  You will remember, Senator, that it was because of the work of trained NSA professionals who did all kinds of domestic wiretapping that we had a FISA in the first place.  We weren't going to trust these professionals; we were going to trust an independent FISA court.      KENNEDY:  Professor Fein?      FEIN:  I think that there's a misunderstanding that checks and balances means weak government.  And I want to call the committee's attention to something that Justice Robert Jackson wrote.         He was attorney general under Roosevelt, who was a strong proponent of executive power.  He was also the Nuremberg prosecutor.      And he wrote in West Virginia State Board of Education versus Barnette:  "Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it, makes for its better support.  So that limits on power does not mean anemic government; it means stronger government."      (UNKNOWN):  Senator Kennedy, I do think that it is possible for Congress and the executive branch to get together to do this.  This can't be a partisan issue; it really can't.      And I think Senator Specter's bill is a good step towards that. I think it does have to be worked out.  But you have to include the courts, as I said earlier.  You cannot box them out.  That is not our system of government.      No one is saying that the president can't get the materials, the tools he needs to fight the war on terror.  But certain procedures must be followed consistent with our Constitution.  And I think that's all that everyone is saying.      KENNEDY:  Just finally -- and I'll wind up with this, Mr. Chairman -- on the Fourth Circuit, are you, Professor Koh or Professor Fein, familiar with -- there are two cases there that, at this time, being reviewed, Professor...      FEIN:  I'm familiar with one case relating to sentencing of someone who pled guilty to an offense.  And the court has now issued an order demanding that the administration respond to the demand to disclose whether the NSA surveillance was utilized in the investigation of the individual.  And the administration has not yet responded.      KENNEDY:  Professor Koh, just on that?      KOH:  Yes, and the other is the Padilla case, which was up at the Supreme Court.  It went back down.  But it was before the District of South Carolina and then back up in the Fourth Circuit.      I think the main point that you're making, Senator, which I could not agree with more, is that every defendant, defendant's lawyer for a terrorist defendant, has a new argument until this matter is clarified.  Exactly what evidence was legally obtained and what evidence was illegally obtained?      SPECTER:  Thank you, Senator Kennedy.      KENNEDY:  Thank you.      Thank you.      SPECTER:  Senator Hatch, do you want to complete the round robin on the question you had posed?      HATCH:  I think Senator Leahy (OFF-MIKE)        LEAHY:  If you want to go ahead...      (CROSSTALK)         HATCH:  No, no, that's fine, unless somebody would care to -- yes, I thought you did.      (UNKNOWN):  Yes, Senator Hatch.  I just wanted to say that I do think that this can be done within the court system.  But I do think you must have particularity and you must have some of the procedures that are already set out in FISA and in this draft legislation.      But it is a question, as Dean Koh said, probable cause of what? If you have probable cause that a person on one end of the communication is a terrorist, for instance, I don't think there's anything wrong with allowing what amounts to, based on reasonable suspicion, a stop and frisk of American citizens who may be in communication with them, for a short period of time, to see if you have anything there.      And I think the courts can monitor that.  So I think there is a way to do this, to deal with new technology but still to include the courts.      FEIN:  Mr. Senator, that particular proposal of your was raised by Senator DeWine in 2002.  The Department of Justice testified and said, no, it wasn't needed; the probable cause standard was good enough, and, indeed, lowering it to that level would create constitutional qualms in the Department of Justice.  That's the same department that addressed this committee on February 6th.      SPECTER:  Thank you, Senator Hatch.      Senator Leahy?      LEAHY:  Thank you.      Let me just ask this question.  You can answer it, basically, yes or no, so I'll ask it of everybody.        It's been reported the president's domestic spying program was suspended in March 2004, then reauthorized with somewhat stricter standards after some in the administration raised doubt to its legality.  Attorney General Gonzales would not address that.      So let me ask you this:  Do any of you know what the scope and internal rules of the president's program were between October 2001, when it was first authorized, and March 2004, when it was reportedly suspended and overhauled?      (UNKNOWN):  No.        LEAHY:  So you can't really give an answer as to what the legality of the program was during those two and a half years, not knowing the full details of the program?      (UNKNOWN):  Well, we know that the law in 1978 and now says that the way to do it is exclusively through FISA.  And it wasn't done through FISA.      (UNKNOWN):  Of course, FISA also provides that it can be authorized by other statutes.  And it also had a specific reservation for time of war.      LEAHY:  But if we don't know it was going on, we don't know whether it was authorized by any other statute?      (UNKNOWN):  Without a doubt, the facts are important.      LEAHY:  And, of course, our war on terror, as we can assume, that throughout our lifetime we'll be facing a war on terrorists.  And to what extent do we have extraordinary means throughout our lifetime?      Now, we're not told how many Americans are affected by the program.  In fact, we're not told whether it's produced any useful information at all.  So it's hard to see how it satisfies the Fourth Amendment.      If the program has provided valuable information -- and so far, nobody in the administration says it has -- but if it has, then the analysis may be different.      Mr. Fein, what do you think?      FEIN:  What you've raised is the dilemma that this committee confronts.  Unless you know what is going on, who is being targeted, and what the results are, you can't possibly make a Fourth Amendment evaluation, because the Supreme Court has stated that the effectiveness, certainly, is an element of Fourth Amendment.      Take, for example, 287,000 homes in Vermont (inaudible) if you decided to break and enter every single one of them on the understanding that, as a probability, you'd uncover at least a handful of cases where you discover evidence of crime, then you would destroy the Fourth Amendment, because you have to have something more than just a probable, statistical likelihood of getting evidence to satisfy the Fourth Amendment.  It has to rise above that minimal threshold.        And the whole difficult of addressing, for example, Senator Hatch's idea of reasonable suspicion test is we don't even know what problem we're addressing, because the administration has concealed it from this committee and from the American people.      That is why I continue to suggest that the way to responsibly to go forward is to insist that the administration come forward with the intelligence information that we've just asked about or they will have their program shut down by the power of the purse within 30 days.      The burden of persuasion should be on the president to explain why the Fourth Amendment needs to be compromised, not on this committee.         LEAHY:  You know, it's funny.  We got into it somewhat, in this areas of, where can we go in our laws?  What could be set aside for facing terrorists?      And it worries me, coming from a state, for example, where we strongly respect our privacy.  And I remember my days as a prosecutor when I had to make sure I got warrants.        And I asked Professor Koh, when he came here testifying about Attorney General Gonzales.  And I asked -- and, Dean Koh, you'll probably remember this -- I asked you whether the president could override our laws on torture and immunize those who commit torture under his order.  Your answer was pretty succinct.  You said no.         So let me ask you a similar question.  Can the president override our laws on domestic wiretapping and immunize those who engage in warrantless wiretapping under his order?      KOH:  I believe he cannot.  And in page two of my testimony, I cite U.S. v. Smith, a case decided 200 years ago by Justice Paterson. It says:  The president of the United States cannot control the statute nor dispense with its execution and still less can he authorize a person to do what the law forbids.      LEAHY:  We sometimes get interesting things when this happens. We find that the administration has not complied with the mandatory 45-day review provision of the Exon-Florio law, with guide to the Dubai ports commission, and now we see what happens, that (inaudible) rules.         And I think -- well, it's up to the chairman.  I saw Professor Turner 's hand go up.          TURNER :  Yes, sir, I think...      SPECTER:  You may answer the question, Professor Turner .  Then we're going to have to wrap up.       TURNER :  I think it's very important.  I started off with Marbury v. Madison, the idea that a statute that violates the Constitution is not law and the president has discretion that is not intended to be checked.      We don't have time to draw all those lines, but remember Griffin Bell said that FISA could not take away the president's power.  The appeals court you set up under FISA has said the president has power to do this, you know, independently and FISA could not take that away.      The issue here is a struggle between the Fourth Amendment and the president's constitutional powers, in which FISA is a relatively minor player.  It's very hard in five minutes or 30 seconds to draw the line on those powers, but to me that's the issue you have to look at.      Since the Jay Treaty, when John Marshall was in the Congress and said the president is the final determinator of what documents in his branch he will share with Congress, the Supreme Court in Curtiss- Wright said the same thing.  And we've gotten away from that.      And I think it's very important that we start back -- the Constitution is the supreme law.  And if Congress passes laws that violate that, it's Congress that's the lawbreaker.      SPECTER:  Senator Leahy says Professor Koh wants to make a comment and Mr. Levy.  And that's going to be it.         Will you please be brief, Dean Koh?      KOH:  If the president thinks that a law is unconstitutional, he can veto it and Congress can override, and then they can test it in court, as was done with McCain-Feingold, Gramm-Rudman, and a host of others.      As we've recently seen with the McCain amendment to the authorization act, the president can do a signing statement saying, "I think parts of it have to be administered in a certain way."      The one thing you can't do is pretend like he's complying with it and, for four years, be operating an entirely different system that's not under statutory examination or involving judicial review.      SPECTER:  Mr. Levy, briefly?      LEVY:  Just to be clear about what FISA did, FISA expanded, it amplified the president's authority.  So the holding in the case that was just cited, the sealed case holding, was not that FISA encroached upon his authority but rather that FISA permissibly expanded the president's authority without violating the Fourth Amendment.      The restrictions in FISA that are set out are simply explanatory, with respect to the president's new and expanded authority, as authorized under the FISA statute.      SPECTER:  Thank you.      LEAHY:  Thank you, all.      SPECTER:  Director Woolsey, you have a brief comment?      WOOLSEY:  Mr. Chairman, just one point.  The intelligence provided about terrorists overseas in the course of this could be as important to us as the Enigma code-breaking was in World War II, our breaking of the Japanese codes.  And those were instrumental, with respect to D-Day, Midway and the rest.      And one cannot in public inform, as Mr. Fein says, from the administration who did what, what the method, what was target, or, as Mr. Koh said, what kind of surveillance has been going on for the last four years, the public has the right to know.      One cannot do that without informing Al Qaida.  It is absolutely impossible.  So I have no objection, as my testimony said, to a targeted, specific, in-house congressional examination of how to set up a check and balance here.  But we cannot just sit here and talk about how everything needs to be public.  I'm sorry, but my background rather influences me on this particular matter.      Thank you, Mr. Chairman.      SPECTER:  Well, thank you all very much.  This has been a very lively hearing, especially at the end.      (LAUGHTER)      We, as I said earlier, have floor business, which a number of us have to attend to.  And senators are very busy, and senators come and go.  You witnesses have to -- you don't have to sit still.  You're not under subpoena.  You can leave if you choose.      I think that it's been a very informative hearing.  And we will continue to work on the program and on the issues in the legislation.         It is certainly true that we cannot approve a program that we don't understand and don't know what it's about; there's no doubt about that.  I agree that it would be irresponsible for us to do that, and we're not about to approve a program we don't understand.      But we do have to have respect for the president and for the emergency situation for the war we have.  And when he makes an argument on constitutional grounds, we have to give him some slack, because if he has inherent Article II powers, that will top a statute.      I do not believe we have to get agreement from him, as Dean Koh suggests, that he's going to observe a new statute if he hasn't observed since, as Dean Koh, argues he hasn't observed FISA.         I do not believe that the resolution for the authorization of the use of force changes FISA.  I do not think that is so.  And I think FISA requires a warrant.         But it's a different issue as to constitutional powers, which may trump FISA.  And we will struggle to try to find out what the program is.      When Senator Schumer says he'd like to have the former attorney general, Ashcroft, and former deputy attorney general, Comey, and so would I.  And I have called both of them, and I have talked to them.         And we had an agreement from the attorney general and his testimony on February 6th that, taking one step at a time, that he would not object to Attorney General Ashcroft's testimony and that others (inaudible) in terms of what we had accomplished there.      And I wrote to the attorney general telling him what Mr. Ashcroft and Mr. Comey had said, and asking for administration authorization for them to testify.      When it comes to the issue of legal interpretation, neither Comey nor Ashcroft can tell us a whole lot more than Attorney General Gonzales did, on interpretation of the law.         It's been reported that there was some activity at the hospital; I'd like to know what happened at the hospital with Attorney General Ashcroft and Deputy Attorney General Comey.  But that does intrude on executive privilege and what lawyers are talking about if they had disagreements.      Well, the issue is not closed.  We're going to continue to work on it.         But, meanwhile, the majority leader has called a meeting this afternoon.  It's at 5:30, so I think that we'll be able to make it -- I think this hearing will be over by then -- but where we're going to try to structure though the legislation.      We face very, very important issues.  And I am sympathetic to the difficult of telling Congress very much.  I'm not sympathetic to the administration leaks, and we have a naughty problem here with very serious consequences of protecting America and very serious consequences on protecting civil rights.      And you seven men have added substantially to our progress.  You may not think so, but you have.      LEAHY:  Mr. Chairman, might I just say one word in there?      SPECTER:  One word?  Yes, Patrick, one word.      (LAUGHTER)      LEAHY:  Well, you're absolutely right, regarding the question of executive privilege.  But some assistant in the attorney general's office is not the one who can claim executive privilege; the president's the only one that could.         Mr. Fein raises a few good point, he -- other than the fact that he completely snowed me, I could not name the number of households in Vermont.      SPECTER:  Well, Senator Leahy...      LEAHY:  But, Mr. Chairman, I think you're to be applauded -- and that will be my final word -- you're to be applauded to have these hearings.  But I think we have a long way to go.      SPECTER:  If you're going to say that, you can go on.      (LAUGHTER)      LEAHY:  But we have a way to go.  We have a way to go.  And if they want to claim executive privilege, make them actually do it.      SPECTER:  Well, Senator Leahy and I have disagreed on very little as we have worked through the committee for the better part of 15 months.  And we will continue to work on this issue.  It's a big one, and we're going to devote our full energies to it.      That does conclude the hearing.      END Feb 28, 2006 16:00 ET .EOF