Security Takeaways From the Loretta Lynch Hearings

Posted January 29, 2015 at 12:35pm
(Bill Clark/Roll Call)
(Bill Clark/Roll Call)

The transcripts of the Senate Judiciary nomination hearings for Loretta Lynch from Wednesday alone run 63,928 words. Although immigration has been the top issue the attorney general nominee has faced, she also has talked about torture, cybersecurity, surveillance and terrorism suspect detention in military vs. civilian courts.

Here are the highlights, with one of her answers in full:


Interrogation
. To Sen. Patrick J. Leahy, D-Vt. “Waterboarding is torture, senator… and thus illegal.” To Lindsey Graham, R-S.C. “Well, I certainly think the Army Field Manual has proven to be a very effective way of handling high-target detainees.”


Office of Legal Counsel memos.
To Sen. Dianne Feinstein, D-Calif., seeking an OLC memo on intelligence activities under Executive Order 12333: “Senator, I think that with respect to the OLC opinions, you are correct. They do represent a discussion, an analysis of legal issues on a wide variety of subjects when a variety of agencies come to the department for that — that independent advice that we must provide them. Certainly, I’m not aware of the discussions that have been had about this previous opinion in terms of providing it. Certainly, I will commit to you to work with this committee, as well as the Intelligence Committee, to find a way to provide the information that you need, consistent with the department’s own law enforcement and investigative priorities.”


Cybersecurity.
To Graham, on the nature of the cyber threat: “Senator, you’ve outlined perhaps the greatest fear of any prosecutor, is the combination of a cyber attack being carried out on behalf a terrorist entity, is one that we take great pains to prevent, to detect and to disrupt. But it is certainly an emerging threat and calls for resources beyond just mere personnel but in terms of our own technology also.”

And to Graham, on cybersecurity legislation: “Certainly, a comprehensive approach is necessary. In my experience, both in the Eastern District of New York and in talking to my colleagues, all of us are struck by the prevalence of cyber issues in every type of case that we prosecute now, much more so than even five or 10 years ago. And so we must have not only a comprehensive approach but one that allows government to work with private industry as well to come up with ways to best protect us against this threat.”


State Secrets privilege.
To Feinstein, seeking reports on the use of the privilege in national security cases: “Senator, you raised the important issue of the need to work with the oversight committee, be they this committee or Intelligence, in reviewing the actions of the Department of Justice, not just so the committees can carry out their work, but so that the American people can be aware of how the department carries out its work. I’m not familiar with the reports that you refer at this point. I certainly look forward to reviewing this issue, and I certainly commit to you that I will do my best to ensure that the department lives up to its obligations that it has set forth.”


Detention.
To Graham, on whether intelligence collection is the first priority under military law for captured enemy combatants: “That is certainly one of the important objectives under military law. I would add, however, though, that with respect to the Article III prosecutions that I’ve been involved in through my office, a primary goal is also to obtain cooperation and, thereby, valuable intelligence.”

To Graham, who rejected this answer as incorrect: “Senator, with respect to an American citizen, I believe there would be a prohibition against holding them — against us holding them as an enemy combatant.”


Anwar al-Awlaki.
To Graham, after pleading unfamiliarity with the process behind the drone strike killing of the American-born al-Qaida in the Arabian Peninsula figure: “Well Senator, I’m comfortable with the process as you describe it. But what I think it illustrates, however, is the need to, as you put so eloquently at the beginning of our discussion, use all of the tools available to combat this war.”


Surveillance.
Answering, at length, a question from Feinstein on expiring Patriot Act and Foreign Intelligence Surveillance Act provisions:

Thank you, Senator. You certainly raise important issues about the need to have a full panoply of investigative tools and techniques to deal with the ever-evolving threat that terrorism presents against us.

With respect to the provisions that you refer to, I think it’s — I have always found it most interesting that the roving wiretap provision is actually a provision that was incorporated into the FISA statute after being utilized extensively for several years in narcotics prosecutions. It was one with which I was familiar as a young prosecutor as many of my colleagues across the country were as well.

And the ability to describe to a court the nature of the offense, the nature of the activity and the use of attempts to shield one’s self from electronic surveillance, which is part of what must be set forth in the application, have been invaluable tools.

Of particular importance is the fact that all of this must go to a court — obviously in the narcotics area it was an Article 3 court; in the FISA area, it goes to the FISA court — but there is judicial review for this and it has been an important part of the techniques we have used in the war on terror, as have the other two provisions that you mentioned.

I do think, however, that, with respect to FISA, there’s always the ability, there’s always the need to make sure that we are current not just with technology but with the most effective way to protect privacy as we go forward in this important act. I know that’s something that you have spent a great deal of time on as well as many of your colleagues on this committee as well as on the Intelligence Committee. And I look forward to continuing those discussions with you should I be confirmed.

With respect to the lone wolf provision, again, I think we have to obviously examine it carefully. Recent events, however, have underscored the importance of this as an issue in the war on terror. And so I would hope that we could move forward with any proposed changes to FISA with a full and complete understanding of the risks that are — that we are still facing.

And if any changes need to be made, again, after full and fair consideration with this committee, with the Intelligence Committee and the discussions that we need to have, making sure that we can still provide law enforcement with the tools that they need.

Similarly with Section 215, I believe that the court order provision in there is an effective check and certainly a necessary check as we gather data from all types of sources.

As I’ve always said, I’m certainly open to discussions about how they can be best modified if we need to modify them consistent with the goals of protecting the American people.

And I commit to you, Senator, and indeed to all of this committee that I will always listen to all those concerns, be it about the FISA statute or any of the techniques we are using in the war on terror.