During a Senate Judiciary Committee Hearing to Consider the Nominees For Assistant Attorney General, Sen. Mike Lee (R-UT) displayed his distain for warrantless backdoor searches on U.S. Citizens and legal residents and asked Assistant AG Nominee John Eisenberg whether he voiced similar concerns.
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NewsTranscript
00:00The three of you for being here today and for your willingness to serve. Mr. Eisenberg, I'd like to start with you, if I could.
00:08During her confirmation hearing, Attorney General Bondi and I had a conversation about FISA Section 702,
00:16and about the use of what I sometimes refer to, for lack of a better word, as de facto warrantless backdoor searches,
00:24meaning searches of U.S. persons through a U.S. person identifier known to be a U.S. person identifier,
00:33to search the databases containing incidentally collected content communications involving U.S. persons,
00:43U.S. citizens, and others here in the United States, lawful permanent residents, and so forth.
00:49And I asked Attorney General Bondi specifically whether she would agree with me that these de facto warrantless backdoor searches are concerning in that context.
01:03She responded in the affirmative with the word yes.
01:07That leads me to my question.
01:09Would you agree that these backdoor searches of incidentally collected communications involving American citizens are concerning?
01:23Thanks for the question, Senator Lee.
01:25I certainly agree that it does raise issues if you search a database, a substantially large database.
01:36I don't at this point, however, know what protections are in place since I'm not currently in NSD.
01:42So if I were confirmed, I would talk to the experts in the NSD about exactly what they do,
01:49and I would then talk to the Attorney General and help come up with perhaps different procedures if those are warranted.
01:56I appreciate that, and I would add here that for the entirety of the 14 years that I've been a United States Senator,
02:03the whole time I've served on this committee, I and others, including people on both sides of the aisle, including Senator Durbin over the years,
02:15we've raised concerns with this.
02:18On each occasion, we've had officials from the FBI tell us, don't worry, we've got procedures in place.
02:26You don't need to worry about additional legislation.
02:28We've got it covered.
02:30And in each instance, when they come back, they usually tell us, OK, yeah, we discovered there have been some abuses,
02:37but now we've really got it covered.
02:39The bottom line is I do believe Congress needs to act here.
02:43I think we need additional protections because those internal protections haven't worked.
02:49Because we're trying to ram a giant square peg into a round hole.
02:53It doesn't work.
02:54In my view, it is not compatible with the letter or the spirit of the Fourth Amendment to allow those sorts of things.
02:59Now, Mr. Eisenberg, you've spent much of your career in national security law.
03:05With that, you've got vast experience with the FISA court and the FISA Court of Review.
03:11What reforms, if any, do you think perhaps ought to be made to the FISA court or the FISA process?
03:18Thanks for the question, Senator.
03:21I think this is something that I need to study as soon as I get into NSD if, in fact, I'm confirmed.
03:29In my view, it has to be possible to do better in order to at least assure the American people that the sorts of privacy protections that are in place are actually working.
03:40But as to the actual details, I think I need to get in there first if I'm confirmed.
03:44Mr. Shumate, let's turn to you.
03:47For a long time, I've been troubled with Congress's chronic delegation of the lawmaking power.
03:52As you know, Article 1, Section 1, makes Congress the sole sovereign lawmaking authority within the federal government.
03:58Article 1, Section 7 makes that doubly clear by saying you cannot make a federal law without both houses of Congress passing the same legislation,
04:07a bicameral passage followed by presentment to the president for signature, veto, or acquiescence.
04:14Congress has deviated from that, and the courts have been unwilling to enforce that part of Article 1, Section 7 for reasons that escape me.
04:22While acknowledging that the non-delegation principle exists, they just refuse to enforce it.
04:27Now, in your Senate Judiciary questionnaire, you listed a case that you worked on called Allstate Refractory Contractors v. Sue.
04:35In that case, you challenged the constitutionality of the OSHA statute.
04:41What can you tell us about your involvement in that case and what your involvement in that case sort of taught you or what you gleaned from that as far as Congress's ability to delegate its lawmaking power?
04:55Thank you for the question, Senator.
04:57Yes, so that case reinforced for me the importance of Article 1, the vesting of legislative power in the Congress.
05:04In that case, we were representing a client, Allstate, which is a general contractor in Toledo, Ohio, that was challenging OSHA's statute,
05:12which under the non-delegation doctrine, which is a longstanding doctrine in Supreme Court precedent that says that Congress can't delegate its legislative power to the executive branch.
05:22Under the OSHA statute, Congress has allowed OSHA to promulgate numerous safety regulations that impacted my client.
05:31So in that case, we were challenging the statute on its face as a violation of the non-delegation doctrine.
05:38We thought we had pretty good arguments.
05:39We went out to the Sixth Circuit.
05:41The Sixth Circuit upheld the statute in a 2-1 decision, and the Supreme Court denied cert in that case.
05:47So reinforced for me, Senator, the importance of the structural separation of powers and that each branch stay within their proper role.
05:55Indeed.
05:57I'll note as you say that this is not merely a hypothetical problem.
06:01100,000 pages of new regulatory text issued last year.
06:04By some estimates, those 100,000 pages of new regulatory text put in place entirely by unelected, unaccountable bureaucrats cost the American economy $1.5 trillion annually.
06:15Think about that.
06:16That's a problem.
06:17Thank you, Mr. Chairman.
06:18Senator Ronald.
06:19Thank you, Mr. Chairman.