WASHINGTON, DC - House Majority Leader Steny H. Hoyer (MD) will address Georgetown Law School this evening to discuss balancing national security and civil liberties. Below is the text of his speech as prepared for delivery:
"I am honored to be here with you tonight. This law school provokes many wonderful memories for me. And, I have to admit: If I had needed the academic credentials in 1963 that so many of you demonstrated to get into Georgetown University Law Center, I wonder whether I would have ever gained admission.
"That’s a tribute to you and all of your hard work, as well as the reputation of this great school.
"Before I begin my remarks, I do want to note that our discussion tonight – on protecting our national security interests and civil liberties – is a fitting tribute to a man who taught at this law school, who served for 10 years in the House of Representatives, and who was a champion for social justice, civil liberties and human rights.
"I, of course, am referring to Father Robert Drinan, who passed away earlier this year and who left the Congress, at the direction of Pope John Paul II, only six months before I was elected to serve in it. Father Drinan leaves an enduring legacy that I hope all of you learn about and strive to emulate.
"I also want to extend my condolences to the family and many friends of a beloved figure at this law school, Professor Robert Oakley, who passed away in September. Bob Oakley ran Georgetown’s law library – the fourth largest law library in the country – and was acutely attuned to the privacy concerns that we will discuss tonight.
Protecting National Security and Civil Liberties
"Every person in this room remembers the horrific attacks of September 11th. And, I feel confident in saying that none of us will forget where we were on that day, which will be seared into our national consciousness for years to come – much like the attacks on Pearl Harbor and the assassination of President Kennedy were for earlier generations.
"For Members of Congress – who were in the midst of debating important issues such as federal funding for stem cell research and appropriations bills – the attacks on September 11 were a stark reminder that our highest duty is to protect the American people.
"There is not a Member of Congress who believes otherwise. Every Member believes that our nation must take decisive action to detect, disrupt, and, yes, eliminate terrorists who have no compunction about planning and participating in the mass killings of innocent men, women and children in an effort to advance their twisted political aims.
"We also swear an oath to defend the Constitution of the United States, and to honor the values and principles that are contained therein – for example, the Fourth Amendment right that Americans be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and the Fifth Amendment right to due process of law.
"Our basic duties as Members of Congress – protecting the American people, while protecting the values that define us as Americans – are not mutually exclusive. Indeed, they can be – and must be – mutually reinforcing.
"Honoring the system of checks and balances carefully established by the Framers of our Constitution will make us more, not less, safe. This was the conclusion of those men in 1789 who had just fought a war, and who faced a very uncertain and dangerous future.
"They knew that we would be strongest when our actions reflect our values, and have the solid and sustained support of the American people. That’s what the system of checks and balances ensures – and that is why it makes us stronger, not weaker.
"Yet, it is only now becoming clear to great numbers of Americans that, in the aftermath of September 11, our government – specifically an overreaching Executive Branch, aided by a far-too-compliant, complicit Congress – has continually compromised our democratic system and our values by invoking national security and stoking the worst fears of the American people.
"Let me be clear: There is not a person here who fails to recognize that our worst fear – the threat of a nuclear, chemical, or biological attack on the American homeland – would warrant extraordinary action on the part of our government to detect and disrupt it.
"However, this Administration has shown, time and again, little hesitation in willfully dispensing with procedural protections for our civil liberties and acceptable norms of behavior that the United States has long demanded that other nations abide by.
"The Administration’s tactics in a wide array of areas not only do violence to the rule of law, but leave this nation wide open to legitimate criticisms about employing double-standards and behaving hypocritically. And, they have not made us safer.
The Dangerous Erosion of Executive Trust
"We have seen the mass violation of Americans’ privacy rights through National Security Letters, the Administration’s data-mining program and the terrorist surveillance program – about which we still know little.
"In March, the Inspector General of the Department of Justice, Glenn Fine, reported many instances when National Security Letters – which allow the FBI to obtain records from telephone companies, internet service providers, banks, credit card companies, and other businesses, without a judge’s approval – were improperly and sometimes illegally used.
"In testimony before the Senate Judiciary Committee, Inspector General Fine called the FBI’s conduct 'the product of mistakes, carelessness, sloppiness, lack of training, lack of adequate guidance, and lack of adequate oversight.'
"But even the apparent lack of malicious intent does not undo the seriousness of these privacy breaches. This data has gone into massive government databases, including one that reportedly contains more than 560 million separate records, and another with more than 30,000 authorized users.
"Barely two weeks ago, Verizon – one of our nation’s largest telecommunications companies – admitted to the House Energy and Commerce Committee that from January 2005 to September 2007 the company provided data to federal authorities on an emergency basis – without a subpoena or court order – 720 times.
"In addition, we have seen the line blurred – possibly deliberately – between legitimate, sanctioned interrogation tactics and torture. The excesses at Abu Ghraib and Guantanamo are well known, as are the Administration’s belief that the Geneva Convention Against Torture is 'quaint' and the Vice President’s persistent effort to undermine the ban on torture championed by Senator McCain.
"Just this month, in fact, we learned of a secret Department of Justice memo in 2005 that, for the first time, provided explicit authorization to the CIA to barrage terror suspects with a combination of painful physical and psychological tactics, such as head-slapping, simulated drowning, and frigid temperatures.
"We cannot be proud of the practices that the Department of Justice seeks to countenance.
"Nor do we have reason to be proud of the so-called 'extraordinary rendition' of Maher Arar, a Canadian engineer. Arar was seized by U.S. officials at JFK Airport in New York in 2002, on faulty Canadian intelligence.
"According to his own recounting, he was detained by U.S. officials and interrogated about alleged links to al-Qaeda for 12 days, before being chained, shackled and flown to Syria. There, he was held in a tiny 'grave-like' cell for 10 months and 10 days, before moving to a better cell in a different prison.
"He recounts that while imprisoned in Syria, he was beaten and tortured, and in some respects, most offensively, forced to make a false confession. He was returned to Canada in October 2003, and some three years later, a Canadian-government commission of inquiry cleared him of all terrorism allegations, stating, 'There is no evidence to indicate that Mr. Arar has committed any offense.'
"Ironically, the same Administration that criticized the Speaker of the House for leading a bipartisan delegation to Syria believed it was acceptable to send the citizen of another country there – where he was tortured.
"With cases like this, it’s no wonder that former Secretary of State Colin Powell has stated: 'The world is beginning to doubt the moral basis of our fight against terrorism.'
"Nor have we helped our cause by dispensing with centuries-old legal concepts – such as habeas corpus. And, the Administration’s penchant for presidential signing statements that assert a right of the President to effectively ignore all or part of the laws he signs must give all of us pause.
"It is long past time for effective Congressional oversight and Judicial review of this Administration’s actions.
"As our fourth President James Madison, wrote in Federalist Paper Number 47 more than 200 years ago: 'The accumulation of all powers – legislative, executive, and judiciary – in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.'
"The Administration’s unchecked violation of Americans’ civil liberties and accepted international norms of behavior do not serve our nation well. Indeed, they not only do violence to our values and constitutional principles, but also sully our reputation throughout the world and threaten to undermine the rule of law.
"All of this makes us less – not more – safe; these tactics are inspiring more hatred toward the United States; these tactics endanger Americans who fall into enemy hands; and these tactics divert precious resources to innocents rather than those who do seek to harm us.
"The result, unfortunately, is deeply disturbing and demands serious soul-searching and evaluation not only in Congress but among the American people.
Two Areas in Which Congress Must Take a Stand – FISA and Habeas Corpus
"Today, in Congress, Democrats in both the House and Senate are committed to revisiting the Foreign Intelligence Surveillance Act, which was amended by the Protect America Act in August.
"The Protect America Act provides sweeping new powers to the government to engage in warrantless surveillance of international calls to and from the United States – and potentially much more.
"Indeed, some FISA experts testified in Congress in September that the PAA authorizes searches of Americans’ homes, offices, and computer usage, as long as the government is collecting foreign intelligence about communications that 'concern' persons abroad.
"The PAA also effectively cuts the FISA Court out of any meaningful role in overseeing surveillance of Americans.
"In contrast, the RESTORE Act -- introduced by Judiciary Committee Chairman John Conyers and Intelligence Committee Chairman Silvestre Reyes – is a carefully crafted measure that gives our intelligence community the tools it needs to listen in on those who seek to harm us, while addressing concerns that the bill passed in August could authorize warrantless surveillance of Americans.
"This legislation addresses the intelligence gap asserted by the Director of National Intelligence, and restores a checks-and-balances role for the FISA Court.
"It does not require a warrant for listening in on suspected and known terrorists. In fact, it clarifies that no court order is required for surveillance of conversations where both parties are foreign citizens.
"It does not extend constitutional rights to suspected or known terrorists. Nor does it delay the collection of intelligence information. It grants the Attorney General and DNI authority to apply to the FISA Court for a block order to conduct surveillance on large groups of foreign targets for up to one year.
"Finally, this legislation is silent on the issue of retroactive immunity for telecommunications companies that possibly violated privacy laws in turning over consumer information – because Congress does not have full access to information about what the companies did.
"Simply stated, it would be grossly irresponsible for Congress to grant blanket immunity for companies without even knowing whether their conduct was legal or not. And, importantly, this view is shared by the Chairman and Ranking Republican on the Senate Judiciary Committee.
"Until we understand what legal authorities were used to justify the terrorist surveillance program, there does not appear to be any practicable way to include retroactive immunity in this bill.
"I am proud of the RESTORE Act. The bill provides the tools to protect Americans and reflects an understanding of the most basic concepts in our constitutional form of government: the proposition that we, indeed, are a nation of laws, and that our Founders deliberately designed our three branches to serve as a check and balance on each other.
The Fundamental Right of Habeas Corpus
"Let me add that I also believe we made a tremendous mistake in eliminating the right of habeas corpus. Congress must revisit this issue.
"The writ of habeas corpus has a hallowed history. Initially mentioned in the Magna Charta of 1215, it is enshrined in our Constitution and is not dependent on any act of Congress.
"Nonetheless, the Congress eliminated habeas corpus in the Military Commissions Act in 2005, against the objections of civil libertarians and conservatives alike.
"For example, constitutional scholar Bruce Fein, who served as Deputy Attorney General in the Reagan Administration has stated: 'Not a crumb of evidence has been adduced suggesting that the writ would risk freeing terrorists to return to fight against the United States.'
"Clearly, the Combatant Status Review Tribunals established by the Military Commissions Act were set up for a different purpose – to classify detainees as 'enemy combatants' or not. But such CSRTs are a fundamentally flawed process.
"They have come under increasing criticism with all but 38 of 558 detainees being classified as enemy combatants in 2004 and 2005, meaning that those deemed enemy combatants could be held indefinitely without many of the rights afforded conventional prisoners of war.
"And recently, Lt. Col. Stephen Abraham, an Army reservist who was a liaison between Guantanamo tribunals and intelligence agencies, and others have told Congress and the Supreme Court that tribunal members felt pressured to find against detainees.
"'They were specifically designed,' said Lt. Col. Abraham, 'to reach a result and, in the few instances where a contrary result was reached, pressure was exerted to change the decision, a new tribunal was selected' or the decision was disregarded.
"Let me conclude by stressing that there is no doubt that our eyes were opened by the horrific attacks on September 11, 2001.
"We will – and we must – prevail in the war on terror.
"However, in the pursuit of those who seek to harm us, we must not sacrifice the very ideals that distinguish us from those who preach death and destruction – and the very ideals that will allow us to ultimately prevail over violent jihadism.
"This does not mean that we will coddle those who are accused of participating in or planning terrorist acts.
"When Saddam Hussein was taken out of a hole and captured, we afforded him his legal right to hear the evidence against him, to contest that evidence, and to be represented by counsel.
"When Slobodan Milosevic was brought to justice after murdering tens of thousands and sanctioning the ethnic cleansing of more than two million people, he was afforded his legal rights.
"And even the butchers of Berlin – who committed genocide, murdering millions of innocents – were afforded their legal rights at Nuremburg.
"To the law students who are here: I commend you for choosing to pursue a career in this honorable profession – indeed, a profession upon which the functioning of our democracy depends.
"Do not let the legal overreaching that we see today in this nation discourage you. Let it inspire you to redouble your efforts to fight for the rule of law and the values and legal principles that make this nation the greatest nation on the face of the earth.
"And, let us never forget the admonition of Justice Felix Frankfurter, some 64 years ago in McNabb v. United States: 'The history of liberty,' he said, 'has largely been the history of the observance of procedural safeguards.'
"We must not let our guard down – either against those who seek to harm us or those who would dishonor our values and the rule of law in the name of national security.
"The civil liberties we enjoy today are the direct result of the sacrifice and persistence of our forebears. I know you agree: Your generation and the ones that follow deserve no less.