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Holding Sessions Accountable on Civil Liberties

As the nation’s top prosecutor and head of the world’s largest law office, Sessions will carry out a number of responsibilities on which it is critical that the American public hear his views. The Judiciary Committee should ask Sessions about these issues.

On Janu­ary 10 and 11, the Senate Judi­ciary Commit­tee will meet to consider whether Senator Jeff Sessions is fit to be appoin­ted as this coun­try’s next Attor­ney General.

Mr. Sessions will assuredly be asked prob­ing ques­tions about his voting rights record, past alleg­a­tions of racism, whether he intends to step up crim­inal prosec­u­tions of undoc­u­mented immig­rants, and more. As the nation’s top prosec­utor and head of the world’s largest law office, however, Senator Sessions will carry out a number of other respons­ib­il­it­ies on which it is crit­ical that the Amer­ican public hear his views. Accord­ingly, we urge the Judi­ciary Commit­tee to ask Senator Sessions about the follow­ing issues:

1) Muslim-Amer­ican surveil­lance.   

Donald Trump has demon­ized Muslims and falsely painted them as a threat to this coun­try. Along with his surrog­ates, he has floated ideas ranging from construct­ing a data­base of non-citizen Muslim visit­ors, to creat­ing a data­base of all Muslims in the United States, to banning Muslims from the coun­try entirely. In the wake of the elec­tion, hate crimes against Muslim-Amer­ic­ans are on the rise, fuel­ing fears about the climate for Muslims in the United States in the coming years. And Trump has been lobbied to under­take, on a national level, the kind of surveil­lance of Muslims that the New York Police Depart­ment engaged in for years – surveil­lance that outraged and alien­ated the Muslim community, resul­ted in zero leads, and raised grave consti­tu­tional concerns with two federal courts.

A key element of the mission state­ment of the Depart­ment of Justice is to “ensure the fair and impar­tial admin­is­tra­tion of justice for all Amer­ic­ans.” This includes treat­ing all Amer­ic­ans equally and refrain­ing from discrim­in­a­tion on the basis of race, reli­gion, or national origin. Senator Sessions, however, is on record as refer­ring to the NAACP as “Commun­ist-inspired” and “un-Amer­ican”; more recently, he was one of a small number of Senate Judi­ciary Commit­tee members who voted against a non-bind­ing meas­ure affirm­ing that immig­rants should not be discrim­in­ated against on the basis of their reli­gion.

In light of this history and the consti­tu­tional guar­an­tees for free­dom of reli­gion, we recom­mend the Judi­ciary Commit­tee ask Senator Sessions whether he believes Muslim-Amer­ic­ans may lawfully be subject to more surveil­lance or other forms of invest­ig­at­ive scru­tiny than members of other reli­gions in this coun­try. If he says “no” and affirms the basic prin­ciple of non-discrim­in­a­tion, he should be pressed to artic­u­late the steps he will take to ensure that Muslims are not treated differ­ently and are protec­ted from hate crimes.

2) Monit­or­ing of citizens’ commu­nic­a­tions.

Nearly 150 years ago, the Supreme Court ruled that letters sent through the mail are consti­tu­tion­ally protec­ted, and may not be opened without a warrant. Since then, however, commu­nic­a­tion tech­no­lo­gies have far outstripped the laws safe­guard­ing those commu­nic­a­tions: based on long outdated tech­no­lo­gical capab­il­it­ies, for instance, the Elec­tronic Commu­nic­a­tions Privacy Act grants far less legal protec­tion to emails that are over 180 days old. The Depart­ment of Justice has acknow­ledged that there is no prin­cipled distinc­tion between emails that are 179 days old and those that are 181 days old, but this policy stance could easily change with a new admin­is­tra­tion.

The Foreign Intel­li­gence Surveil­lance Act (FISA) offers another avenue to sift through Amer­ic­ans’ emails. To conduct warrant­less surveil­lance inside the United States of commu­nic­a­tions between Amer­ic­ans and foreign­ers, the govern­ment must first certify that its interest lies in the foreigner, and not the Amer­ican. Despite this prom­ise, the FBI routinely searches through the result­ing haul look­ing specific­ally for Amer­ic­ans’ inform­a­tion. This “back­door” search is a bait-and-switch that works a signi­fic­ant end-run around consti­tu­tional protec­tions for Amer­ic­ans.

Accord­ingly, we ask the Judi­ciary Commit­tee to pose the follow­ing ques­tion to Senator Sessions: do you believe the Consti­tu­tion allows the govern­ment to read Amer­ic­ans’ e-mails and listen to their phone conver­sa­tion without a warrant?  

3) Trans­par­ency of legal advice to the exec­ut­ive branch.

The Office of Legal Coun­sel (OLC), an arm of the Depart­ment of Justice, issues legal advice to the pres­id­ent and other exec­ut­ive branch agen­cies. Exec­ut­ive agen­cies have typic­ally treated OLC opin­ions as bind­ing; in other words, OLC’s inter­pret­a­tion of a partic­u­lar law must be followed until and unless a court issues a differ­ent inter­pret­a­tion. And because courts rarely weigh in on the issues presen­ted to the OLC for its consid­er­a­tion, the office’s memos typic­ally stand as the last word. Public access to these memos is there­fore key to under­stand­ing the law that governs Exec­ut­ive Branch actions.

Some OLC memos are avail­able publicly on the DOJ’s website. Others are kept secret, however, leav­ing the public in the dark about the law under which its own govern­ment oper­ates. For example, the legal inter­pret­a­tions used to justify the killing by drone of an Amer­ican citizen abroad, the torture of enemy combatants, and the contro­ver­sial warrant­less wiretap­ping program were kept hidden for years, and some of them remain secret. This kind of “secret law” is deeply undemo­cratic, as it prevents Amer­ic­ans from weigh­ing in through the demo­cratic process on what the law should be. It also threatens the rule of law by making it impossible to hold the govern­ment account­able for viol­a­tions.

In light of this history, we recom­mend that the Judi­ciary Commit­tee ask Senator Sessions whether he believes secret law is permiss­ible in a demo­cracy, and whether he is will­ing to commit to publish­ing OLC opin­ions with only sens­it­ive oper­a­tional details redac­ted.