Transcript: Hearing Q&A with Rep. Jan Schakowsky on possible reforms to the NSA surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Jan Schakowsky’s (D-Illinois) Q&A with Stephen I. Vladeck, Professor at American University Washington College of Law, Steven G. Bradbury, Partner at Dechert LLP, and Stewart A. Baker, Partner at Steptoe & Johnson LLP, on possible reforms to the NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Jan Schakowsky (D-Illinois):
I just wanted to clarify something. You were suggesting that 215 and 702 as written already have a process for some sort of adversarial procedure and I wanted you to explain that.

Stephen I. Vladeck, Professor at American University Washington College of Law:
Sure…When Congress wrote Section 215 in 2001 and when it wrote 702 in 2008 and indeed when it wrote the Protect America Act, Congress created a process where under 215 the recipient of production order – so, Verizon, for example – under 702 the recipient of a directive – so, Google, for example – could challenge that order in the FISA court with private counsel, presumably who would have security clearances, and those private counsels would be entitled to presumably some modicum of discovery, they’d be entitled to full litigation, they’d be entitled to appeal an adverse decision by the FISA court to the Court of Review, and then perhaps if they lost in the Court of Review, to petition for certiorari from the U.S. Supreme Court.

Now, as we learned from the letter Judge Walton sent to Chairman Leahy over the summer, no recipient of a 215 or 702 order has ever availed themselves of that possibility. But I think those who would sort of criticize the entire premise of the adversarial process before the FISA court, we already have some, and the fact that it’s not utilized to me is just a suggestion that perhaps these aren’t the best people to be raising these claims, not that the adversarial process itself presents problems.

Rep. Jan Schakowsky (D-Illinois):
From a constitutional perspective, could we legislate that all FISA orders on significant interpretations must be de-classified perhaps with certain qualifications in terms of national security? Mr. Bradbury, you’re shaking your head.

Steven G. Bradbury, Partner at Dechert LLP:
Congresswoman, the last qualification that was added there in the statement was a very important one that might make it consistent with the Constitution but I think under our constitutional structure, it is the President under the President’s authority with respect to foreign affairs and national security matters that determines what’s national security information and it’s a privilege – it’s an element of executive privilege if you will and that’s been recognized since President Washington. And so if Congress were to legislate to mandate the disclosure of national security secrets in a category, for example, I do think that would raise serious constitutional issues, particularly in the application. Now, if there’s a qualification to it that gives the President room to maneuver and protect national security secrets as the executive branch deems necessary to protect national security, then that may make it consistent with the Constitution, but that may undercut the purpose that the proposal made…

Stephen I. Vladeck, Professor at American University Washington College of Law:
Although if I may, the FISA court’s rules as they currently exist, Congresswoman, provide in Rule 62 that publication is up to the discretion of the individual judge. It seems to me that Congress could easily reverse that premise, could create a rebuttable presumption of publication subject to classification review by the government.

But also – I mean I think Mr. Bradbury and I might disagree a bit at the margin about Congress’s power to actually articulate classification criteria, there is precedent. In the Atomic Energy Act of 1954, Congress actually had set out a body of classification rules. You know, I wouldn’t concede quite as quickly that this is an area where the President’s inherent and indefeasible power is settled to the extent there would necessarily be a constitutional problem with more publication.

But I think Mr. Bradbury’s right. I think if you would avoid most of those constitutional problems to the extent that there was room for classification review and for the government to object to publication of specific opinions at least without redactions.

Stewart A. Baker, Partner at Steptoe & Johnson LLP:
It seems conceivable to me that the Congress is going to order the disclosure of national security information would be damaging to national security in the abstract. I actually think this is not argument between anybody on this panel. Congress could say, “We expect these decisions to be published with appropriate redaction to protect national security, and we will ask the administration – the executive – lean towards providing as much information as possible if they chose to do that.”

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