Yesterday, the Senate Judiciary Committee began the first of two day-long hearings on the nomination of Loretta Lynch to be the next Attorney General of the United States. (Transcript-enhanced video can be seen via CSPAN here and here.) While much of the exchanges between the Senators and the nominee focused on things like the constitutionality of President Obama’s executive actions on immigration, or the Fast and Furious scandal, there were some noteworthy discussions of national security issues.
Lynch, the current United States Attorney for the Eastern District of New York---whose office has handled more terrorism cases in the post 9/11 period than any other---emphasized the paramount importance of counter-terrorism and cybersecurity issues for the modern Justice Department in her opening statement, calling “protecting the American people from terrorism” the “primary mission” of the Department.
In addition to the high-profile prosecutions that her office has brought in response to terrorist plots to bomb JFK Airport and the New York subway system, among others, Lynch also emphasized her office’s efforts in prosecuting complex international cybercrime. In response to a question from Senator Lindsey Graham about evolving cyber threats, Lynch identified “increased activity in terms of cyber crime” that has “not only increased numerically, qualitatively in the type of threat that we face.” Addressing another question, Lynch similarly called the cyber-terrorism nexus “perhaps the greatest fear of any prosecutor.” She suggested that a more robust response to the growing threat of cyberterrorism required not only additional personnel, but an investment of resources that would improve the Department of Justice’s own technological prowess to deal with these threats.
Lynch mostly dodged questions from Senator Dianne Feinstein, the Senate Intelligence Committee’s Ranking Member, about whether provisions of the Foreign Intelligence Surveillance Act (FISA) should be able to sunset in June; Lynch stressed the importance of surveillance tools but also emphasized the need to balance these investigative techniques against privacy concerns. Still, in response to a related query from Senator Graham, Lynch called the NSA surveillance activities “constitutional and effective.” Feinstein also asked Lynch whether she would make certain Office of Legal Counsel (OLC) memos regarding surveillance available to Congress---particularly an OLC opinion related to certain activities conducted pursuant to Executive Order 12333---and Lynch responded that she would “find a way to provide the information that you need, consistent with the department's own law enforcement and investigative priorities.”
Senator David Perdue, citing the recent decision by the Department of Justice to prosecute two Yemeni nationals with providing material support to Al Qaeda and for conspiring to murder US citizens---a case that is being prosecuted by Lynch’s office in the Eastern District of New York---asked the nominee about her views on the relationship between Military Commissions and Article III courts in prosecuting terrorism cases. Lynch responded that she appreciated the role of the military commissions, and that she “look[s] forward to working with the military and the other executive branch divisions in government to make the best determination about where each case should be brought.” Interestingly, she also touted her personal relationship with General Mark Martins, the chief prosecutor at the military commissions: “I've been honored to have hosted General Martins on more than one occasion in my office, and have a positive relationship with him. And should I be confirmed as attorney general, look forward to continuing that relationship with him and all of our partners in the war on terror.”
The only real fireworks on the national security front, in what was otherwise a relatively collegial day of hearings, came in the afternoon session---thanks to questions from Senators Lindsey Graham and Ted Cruz. Graham stressed his view that individuals detained as part of the broader conflict against Al Qaeda and its affiliates should not be read their Miranda rights or be given swift access to counsel. “Anybody in the military would reject out of hand that it's a good way to gather intelligence by providing the enemy combatant a lawyer,” the Senator said, before asking Lynch for her opinion on noncriminal detention and American citizens. While acknowledging the important role of military courts, Lynch suggested that an American citizen could not be held as an enemy combatant, a statement that set Graham off:
GRAHAM: Ma'am, that is not true. We have held several American citizens for a multiple period of years as enemy combatants … Before I vote on your nomination, I want you to read Hamdi v. Rumsfeld, and Ex Parte Quirin, where American citizens collaborating with the Nazis landed at Long Island to try to attack the country. They were tried by a military commission….Military commission trials are not available to American citizens, they have to go under Article III, but we have under our law in Hamdi v. Rumsfeld the idea there is no bar to this nation holding one of its own citizens as an enemy combatant.
Graham also said that he wanted to make sure that Lynch agreed that the government could “use lethal force against an American citizen who our government has determined to be part of the enemy force,” citing the Anwar Al-Aulaki example in Yemen. While Lynch did not specifically endorse the practice as such, and said that she was not personally familiar with the internal legal review process which led to the authorization to target Aulaki, she said that she believed in using “all of the tools available to combat this war.”
Not to be outdone, Senator Cruz also focused on the use of drones against American citizens, asking Lynch if she believed that it is “constitutional for the federal government to utilize a drone strike against an American citizen on U.S. soil if that individual does not pose an imminent threat.” Lynch responded that she was “not aware of legal authority that would authorize that,” nor was she “aware of a policy seeking authorization to do that.” She further analogized the potential use of lethal force via drone strikes on American soil to general principles governing the use of force by law enforcement on the streets, suggesting that “the use of lethal force is generally regulated by either police guidance or by the nature of the interaction. Based on what you were describing to me, I don't see interaction between the American citizen that you are referring to and anyone to generate the type of lethal force that you are referring to.”
Cruz criticized her response: “I'm disappointed that like Attorney General Holder, you are declining to give a simple, straightforward answer, an in fact what I think is the obvious answer of no, the federal government cannot use lethal force from a drone to kill an American citizen on American soil if that individual doesn't pose an imminent threat.”