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"Constitution in Crisis" Hearing on Domestic Surveillance

June 7, 2007

The Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties is currently holding an oversight hearing on the Constitutional limitations on domestic surveillance. The hearing is the first in a series entitled “The Constitution in Crisis: The State of Civil Liberties in America.”

Watch the hearing live >>

Louis Fisher from the American Law Division of the Library of Congress testifies:

Louis Fisher:
“Up until now we've said that law is made by parliamentary deliberations and that the President is under the law, not above the law. If we have a different system, I think that one deserves very close scrutiny by Congress.”

Full remarks as prepared.

Subcommittee Chairman Jerrold Nadler questions Steven G. Bradbury, Principal Deputy Assistant Attorney General Office of Legal Counsel U. S. Department of Justice, on the legal underpinnings and evaluations of the program:

Chairman Nadler:
“The Congress has repeatedly asked for copies of the OSC opinions, will you furnish copies of those opinions to the Committee?”
Bradbury:
“No, Mr. Chairman.”
Chairman Nadler:
“Why not?”
Bradbury:
“Because those reflect the internal, confidential legal advice of the Executive Branch…”
Chairman Nadler:
“What privilege are you asserting?”
Bradbury:
“I’m not asserting a privilege…”
Chairman Nadler:
“The how can you not give it to the Committee upon request? Either you assert a privilege or you give it to us, one or the other.”

Full Committee Chairman John Conyers questions witnesses on the obligations of the Executive Branch to disclose information on the program to Congress:

Louis Fisher:
“Mr. Bradbury is correct that there is much going on inside the Executive Branch that is part of the deliberative process, but you’re not asking about the deliberative process, you’re asking for the final legal judgment to justify a program. As we all know OLC regularly publishes its opinions. When there’s a question after the New York Times story about the legality of it in January, 2006 OLC quickly got out its 42-page white paper. So I don’t understand any reason why a legal analysis, final legal analysis, not the interim one, final one shouldn’t be made available to Congress — and the public.”