DPC | November 19, 2007

Senate Oversight Highlights Week of October 29, 2007

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents…” — Woodrow Wilson

Congress has the Constitutional responsibility to perform oversight of the Executive Branch and matters of public interest. This report summarizes highlights from each week’s Senate oversight hearings.

 Tuesday, October 30, 2007: Senate Committee on Homeland Security and Government Affairs

“The Role of Local Law Enforcement in Countering Violent Islamist Extremism”

·Local law enforcement witnesses explained the complexity of countering violent Islamist extremism as terrorists use the Internet as a recruitment tool and disguise themselves behind legitimate Islamic organizations. 

·Witnesses testified that local law enforcement is best equipped to gather information and prevent domestic terrorism. 

·Witnesses described local law enforcement’s success in preventing domestic terrorism. 

Wednesday, October 31, 2007: Ad Hoc Subcommittee on Disaster Recovery of the Senate Committee on Homeland Security and Governmental Affairs

“Post Catastrophe Crisis: Addressing the Dramatic Need and Scant Availability of Mental Health Care in the Gulf Coast”

·Witnesses discussed how more than two years after Hurricane Katrina, residents of the Gulf Coast continue to suffer from high levels of stress and mental health challenges. 

·Witnesses stated that in many communities the mental health crisis is actually growing, not receding, due to slow recovery and other factors. 

·Witnesses discussed the gaps that remain in the mental health care delivery system in areas affected by Hurricane Katrina and called for improvements in this system. 

Wednesday, October 31, 2007: Senate Judiciary Committee

“Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?”

·As the Senate considers legislation to make permanent changes to surveillance law, Democratic Senators remain concerned about the Protect America Act’s ability to protect the nation from terrorism and safeguard civil liberties. 

·Senators expressed concern that the Protect America Actcontains language that could be used by the Bush Administration to conduct surveillance activities not intentionally authorized by Congress. 

• Democratic Senators expressed grave concerns about the Administration’s proposal to grant retroactive legislative immunity to telecommunication companies that cooperated with the President’s warrantless wiretapping program. 

Wednesday, October 31, 2007: Senate Banking, Housing, and Urban Affairs

“Climate Disclosure: Measuring Financial Risks and Opportunities”

·Senator Reed testified that there is a connection between climate change and the health of financial markets. 

·Witnesses testified on the need to adapt to a Carbon-Scarce Future and how those companies that do will be in a better position to compete economically. 

·Financial experts testified that climate change is becoming an important factor for investors, companies, and the world economy. 

Wednesday, October 31, 2007: Senate Veterans’ Affairs Committee

“Examining the Uniformed Services Employment and Reemployment Rights Act”

·Senator Akaka stated that service members should not have to fight to regain jobs and benefits upon returning home from the battlefield. 

·Witnesses testified that the incidence of employment discrimination is anticipated to grow significantly in the coming years as service members return from Iraq and Afghanistan. 

·Witnesses testified that the current Uniformed Services Employment and Reemployment Rights Act system fails to adequately protect our service members. 

Local law enforcement witnesses explained the complexity of countering violent Islamist extremism as terrorists use the Internet as a recruitment tool and disguise themselves behind legitimate Islamic organizations.

THOMAS DAILEY, MAJOR, HOMELAND SECURITY DIVISION, KANSAS CITY, MISSOURI POLICE DEPARTMENT: Centered in the middle of the nation in a metropolitan area of 1.7 million people, the Kansas Missouri Police Department is faced with unique challenges in its counterterrorism efforts. In Kansas City we face a silent, careful enemy. Disguised as legitimate Islamic organizations and charities we find the threads leading to violent Islamist extremism. Hidden within these groups are facilitators, communications, pathways for radicalization and funding sources for terrorism. There is high geographic concentration of refugees from east African countries who are predominantly Muslim. Within this group, individuals have stolen the identity of refugees to gain entry into the country. The possibility now exists that members of terrorist organizations and those posing as family members now reside in our community. 

In Kansas City, Missouri, known criminals whose parole stipulations prohibit them from associating with each other, are using “freedom of religion” to gather and may use this opportunity to further criminal endeavors and may offer a route to the radicalization process. While the internet is the new “recruitment and training camp,” it furthers the ease with which radicalization can access our vulnerable Muslim populations. Conversely, the internet is a tool used to gather information and monitor activities of groups and emerging threats.

MITCHELL D. SILBER, SENIOR INTELLIGENCE ANALYSTS, NYPD INTELLIGENCE DIVISION: While the threat from overseas remains, many of the terrorist attacks or thwarted plots against cities in Europe, Canada, Australia and the United States have been conceptualized and planned by local residents/citizens who sought to attack their country of residence. The majority of these individuals began as “unremarkable” - they had “unremarkable” jobs, had lived “unremarkable”lives and had little, if any criminal history. The recently thwarted plot by homegrown jihadists, in May 2007, against Fort Dix in New Jersey, only underscores the seriousness of this emerging threat.

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The Internet is a driver and enabler for the process of radicalization.

In the Self-Identification phase, the Internet provides the wandering mind of the conflicted young Muslim or potential convert with direct access to unfiltered radical and extremist ideology.

It also serves as an anonymous virtual meeting place a place where virtual groups of like-minded and conflicted individuals can meet, form virtual relationships and discuss and share the jihadi-Salafi message they have encountered. 

Witnesses testified that local law enforcement is best equipped to gather information and prevent domestic terrorism.

MJR. DAILEY: The Kansas City Missouri Police Department has worked hard to develop counterterrorism strategies to combat the spread of Violent Islamist Extremism. The Kansas City Missouri Police department has also worked to build bridges and enhance partnerships with the legitimate Muslim-American community.

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An understanding of how terrorists operate through pre-incident indicators and characteristics are key to preventing terrorism. Presenting specific case studies during training are a means to understanding both how terrorism has occurred and could have been prevented. The analysis of domestic terrorisms’ underlying motivations, causes, tactics and past attacks are important tools in recognizing potential threats. A study of the recruiting methods within the U.S. for both international and domestic terrorism, furthers the understanding of indicators of the presence of terrorist organizations. These efforts promoted deterrence activities and improved intelligence gathering capabilities at the patrol level and from the community through increased awareness and vigilance. The Counter Terrorism Patrol Strategy Project establishes a clear structure for reporting collected information. This helps to ensure the information reaches the appropriate personnel for analysis and dissemination

MICHAEL P. DOWNING, COMMANDING OFFICER, COUNTER-TERRORISM/CRIMINAL INTELLIGENCE BUREAU, LOS ANGELES POLICE DEPARTMENT: No agency knows their landscape better than local law enforcement; we were designed and built to be the eyes and ears of communities- the First Preventers of terrorism. What is important to law enforcement is that we carefully and accurately define those who we suspect will commit a criminal-terrorist act within our communities. That job needs to be done with the kind of balance and precision that inspires the support and trust of the American people in order to aid us in the pursuit of our lawful mission.

MICHAEL R. RONCZKOWSKI, MAJOR, HOMELAND SECURITY BUREAU, MIAMI-DADE POLICE DEPARTMENT: Counter-terrorism is a term that denotes a responsive posture. The Miami-Dade Police Department prefers to utilize the term anti-terrorism which is a more proactive posture. Regardless of the term used, both are a part of the core mission of nearly all state/local law enforcement throughout the country. Actually you might include Community Oriented Policing, where each of the 750,000 officers/deputies/troopers (fire fighters, public health nurses, code enforcement inspectors) become part of the process of identifying extremist behaviors. In essence, this is the Terrorism Liaison Officer program or a Regional Domestic Security Task Force as is the case in south Florida.

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When it comes down to it, local law enforcement is far more likely to encounter an Islamic extremist during the performance of their daily duties than a federal investigator. 

Witnesses described local law enforcement’s success in preventing domestic terrorism. 

MR. DOWNING: We have been involved in outreach and grassroots dialogue with Muslim communities, bringing the entire command staff to observe, learn, engage and, most importantly, listen. This has helped to build more robust trust networks at the divisional level of police service. One of our goals is to be viewed as trusted friends by Muslim communities in our city.

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In preserving good will and by in by Muslim communities, law enforcement is, in fact, advancing its intelligence agenda by fostering an environment that maximizes tips and leads surfacing from those same communities. The long- term solution to this radicalization problem will come from Muslim communities themselves.

MJR. RONCZKOWSKI: Traffic stops, traffic crashes, and citations, parking and moving, are all opportunities to observe behaviors and actions that may be patterns of extremist actions. Over the past 20 years in the United States many local and state officers have encountered extremists who were determined to inflict harm upon the citizens of this country. Some of the more notable traffic stops are:

In 2007, Ahmed Abda Sherf Mohamed and Youssef Samir Hegahed students from the University of South Florida were stopped for speeding by a Sheriff’s Deputy in South Carolina and in possession of a destructive device.

In 2001 Mohammed Atta, an al-Qaeda 9/11 skyjacker, was ticketed for an invalid drivers’ license.

In 2001 Zaid Jarah, al-Qaeda 9/11 skyjacker, was stopped for speeding on September 9, 2001 and his car was later found at the airport.

In 2001 Hani Hanjour, al-Qaeda 9/11 skyjacker, was stopped for speeding in a vehicle with a New Jersey tag and in possession of a Florida license.

In 1994 Timothy McVeigh was stopped, with no license plates, a copy of The Turner Diaries, carrying a weapon, and wearing a shirt that read “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

Witnesses discussed how more than two years after Hurricane Katrina, residents of the Gulf Coast continue to suffer from high levels of stress and mental health challenges. 

ANTHONY H. SPEIER, DIRECTOR, DISASTER MENTAL HEALTH OPERATIONS, OFFICE OF MENTAL HEALTH, LOUISIANA: Based on national prevalence data from the Substance Abuse and Mental Health Services Administration (SAMHSA), it is estimated that one in five individuals in Louisiana experience a diagnosable mental disorder in any given year, which equals 650,000 adults and 245,000 children. While not as visible as many physical limitations, mental health disorders manifest themselves differently amongst different population groups. Examples include teen suicide, youth arrests, higher need for foster care, incarceration, hospitalization, and higher disability rolls.

JAN M. KASOFSKY, EXECUTIVE DIRECTOR, CAPITOL AREA HUMAN SERVICES DISTRICT: By six months post-disaster, our adult mental health clinics saw a 70 percent increase in new admissions. Today we have a 65 percent increase compared to pre-Katrina. Currently, comparing pre- and post-Katrina statistics, our mental health clinics, excluding our mobile treatment teams’ volumes, we have an increase in unduplicated clients annually of 1,277 (27 percent) and an increase in new admissions annually of 707 (64.5 percent). The clinic closest to the transitional housing sites (Renaissance Village and the Airport FEMA sites, as well as the commercial sites) had been our second busiest clinic but now has caseloads equivalent to our largest clinic, with an annual increase in admissions of 326 (124.4 percent). Patients in the trailers were identified by our mobile and ACT teams, and ongoing transportation to our clinic is provided by this agency. During FY’07, there was an annual increase of 47 Physician Emergency Certificates (PEC) (121 percent) within our own clinics. All of these patients require hospitalization. The level of acuity in our clinics continues to increase and our latest statistics show the increase in PECs is now approaching 30 per month. Numbers in all local community hospital emergency departments total over 700 per month inclusive of all types of legal holds. 

Witnesses stated that in many communities the mental health crisis is actually growing, not receding, due to slow recovery and other factors.

RONALD C. KESSLER, PROFESSOR OF HEALTHCARE POLICY, HARVARD MEDICAL SCHOOL: As noted above, we would normally expect to find lower proportions of the population to have mental illness and suicidality this long after a disaster. That we not only failed to find decreases of this sort, and actually found a number of increases, is an indication of the more severe adverse emotional effects of Hurricane Katrina than more typical disasters. Socio-demographic variables were generally not significant predictors of trends in anxiety-mood disorders or suicidality in the two surveys, indicating that these adverse effects were widespread in the population.

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These results lead to four conclusions. First, continuing hurricane-related stress (such as in finances, employment, and housing) clearly is playing a critical role in the high prevalence of hurricane-related anxiety-mood disorders in this population. 

Second, the fact that the associations between these stresses and the mental health outcomes considered here were stronger among affected people from areas other than the New Orleans Metro Area suggests that undetermined stress and-or vulnerability factors are present among people from other areas New Orleans Metro that should lead policy makers to focus attention on the needs of these people and not to concentrate only on New Orleans. 

Third, the observation that these adverse effects are only weakly related to socio-demographic variables means that efforts to address the needs for mental health treatment in this population need to deal with all segments of the population rather than target only specific high-risk population segments. 

Fourth, the fact that hurricane-related stressors were still quite common in the population at the time of our follow-up assessment, which occurred nearly two years after the hurricane, and that high proportions of the outcomes at follow-up were attributable to these continuing stresses, suggests that efforts to address the problem of increased mental illness and suicidal ideation-plans among people affected by Hurricane Katrina need to address continuing needs for practical and logistical assistance to deal with the high remaining levels of stress. This may be particularly challenging when it comes to helping pre-hurricane residents of the affected areas who are now living elsewhere in the country, but it is especially important to reach these geographically displaced people because of their comparatively high risk of SMI [serious mental illness]. 

Witnesses discussed the critical gaps that remain in the mental health care delivery system in areas affected by Hurricane Katrina and called for improvements in this system to ensure that New Orleans and other Gulf Coast areas are able to adequately address the current mental health crisis. 

KEVIN U. STEPHENS, SR., DIRECTOR, NEW ORLEANS HEALTH DEPARTMENT: Currently, less than half the number of public and private mental health beds available in New Orleans before Katrina are open. This is a particularly acute problem regarding public hospital beds available to the uninsured. Of the original two Medical Center of Louisiana campuses - University and Charity - only University Hospital has reopened. 

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The City of New Orleans has three immediate mental health needs: a centrally located Crisis Intervention Unit (CIU) in downtown New Orleans with a 40-person capacity; further assistance in retaining and recruiting health care professionals; and a Criminal Justice Diversion Program for citizens with psychiatric and substance abuse issues.

The lack of a CIU in the area is causing a crisis in the first responder and hospital systems. The 10-bed MHERE [mental health emergency room extension] at University does not accept referrals from other hospitals; it does not serve as a single point of entry for mental health patients in the region; and does not provide law enforcement with expedited crisis system access. Ambulances now sometimes travel long distances to follow the regional hospital Emergency Department (ED) rotation set up after the disaster and frequently are backed up for hundreds of hours per month waiting to offload patients. That wait is often exacerbated because ED beds are filled with uninsured mental health patients who cannot get triaged into appropriate mental health care units. The City of New Orleans EMS director estimates this back up has cost the city one million dollars in personnel costs and unbilled revenue over the last six months…. 

Since no hospital is equipped with a CIU for appropriate stabilization, observation, and diagnosis of psychiatric emergencies, nor with adequate in-patient beds, there is a revolving door for those who cannot afford private care. Though some patients are held in EDs for long periods of time waiting for available psychiatric beds in the region or elsewhere in the state, others, some unstable and potentially violent, are examined for urgent “medical needs” and then released…. 

A centrally located CIU in downtown New Orleans with a 40-person capacity will ensure that patients receive more appropriate care for their mental illnesses; it will relieve the back-up at area hospital EDs, and cut travel and wait time for NOPD [New Orleans Police Department] and EMS [emergency medical services] staff. 

Additional support to recruit and retain mental health professionals is a second critical need. We are grateful for the financial resources which have been made available to our state and region for this purpose, but there is still an ongoing crisis. For example, the Executive Director of the Metropolitan Human Service District, which provides publicly-funded community programs and services related to out-patient mental health, developmental disabilities and addictive disorders, has said that agency has a shortage of mental health professionals that is hampering their ability to bring funded out-patient mental health programs on line. We thank the Acting Surgeon General who is currently working with us to send temporary mental health professional assistance while we work on long term human resource infrastructure needs. 

Lastly, we must create a system that does not criminalize mentally ill citizens who go in and out of a revolving jail door due to lack of services. A Criminal Justice Diversion Program for citizens with psychiatric and substance abuse issues will provide a wrap-around network of forensic psychiatric, social service and housing assistance to the mentally ill. These services will reduce crime and recidivism among citizens with mental illness and substance abuse. Components of this program include: a Forensic Assertive Community Treatment (FACT) Team to stabilize and assist released prisoners with follow up services and monitoring; a forensic supervised housing program; and expanded treatment resources at both Orleans Parish Prison and Mental Health/Drug Court. Together these proven program elements will provide appropriate care for mentally ill citizens, save police time spent on minor offenses, reduce the overcrowding in EDs, and improve the quality of life for all citizens of New Orleans. 

MS. KASOFSKY: In Louisiana, prior to Katrina, the reliance on facilities for acute care beds, the use of emergency rooms as the main point of entry to access care, the lack of electronic information technology, and the low level of integrated care across disciplines and between community-based clinics and acute units, led to a system equipped to serve those with only the most severe mental illness, and ensured a high level of recidivism among the mentally ill. In reality, the most devastating blow dealt by Katrina against the mental health system was the decimation of the facilities in the greater New Orleans area and the diaspora it created for the mental health practitioners. This occurred due to the fact that geographically, New Orleans served vast numbers of patients from across the state. With the demise of the facilities and the evacuation of physicians, many of whom have now left the state, the loss of this centralized system of care in New Orleans continues to greatly impact the Baton Rouge area’s ability to meet local demands. 

SEN. LEAHY: The Rockefeller-Levin legislative proposal that many of us voted for would have eliminated the need to get individual probable cause determinations for surveillances of overseas targets. That bill addressed a concern that had been raised by an opinion of the FISA [Foreign Intelligence Surveillance Act ] Court and it satisfied what the Administration said was needed in that time of heightened concern. Yet Director McConnell and the Administration rejected that legislation, and we need to find out why… [The Administration-backed version of,] [t]heProtect America Act, provides sweeping new powers of the government to engage in surveillance, without a warrant, of international calls to and from the United States and potentially much more. It does this, in the view of many, without providing any meaningful check or protection for the privacy and civil liberties of the Americans who are on these calls. We’re asked to trust that the government will not misuse its authority. When the issue is giving significant new powers to government, "Just trust us," is not quite enough. Fortunately, those temporary provisions contain a sunset… 

The FISA Court has played an important role ever since the Foreign Intelligence Surveillance Act was passed. [It p]rovides a meaningful check on the actions of our government as it’s engaged in surveillance on Americans. Unfortunately, the FISA Court was cut out of any meaningful role in overseeing surveillance of Americans in the Protect America Act.

The Rockefeller-Levin measure … would have allowed the basket surveillance orders that the administration says are needed and Director McConnell says are needed with no individual probable cause determinations, but [it] at least had the FISA Court issuing those orders to communications carriers after reviewing the Administration's procedures. The Protect America Act -- the one that was passed [--] requires U.S. telecommunications carriers to assist with surveillance just on the say-so of the attorney general and the direct of national intelligence. That's a mistake; it's an invitation to abuse… 

The problem facing our intelligence agencies is targeting communications overseas. We want them to be able to intercept calls between people overseas with a minimum of difficulty. What changes the equation, raises the stakes, is that these people may be innocent Americans or they may be talking to innocent people here in the United States. International communications include those of business people or tourists. They even include the families of our troops that are overseas. Now, we can give the government flexibility it needs to conduct surveillance of foreign targets, but we can do it with a better job of protecting the privacy of individual Americans. 

Senators expressed concern that the Protect America Act contains language that could be used by the Bush Administration to conduct surveillance activities not intentionally authorized by Congress. 

SEN LEAHY: In addition, the Protect America Actcontains language that appears to go far beyond what the Administration said it needed. It redefined electronic surveillance in a way that has expansive implications, but was not necessary to accomplish the Administration's stated objectives. It has language in many places, at the very least, that is inscrutable, can be read to allow much broader surveillance than the Administration has acknowledge -- or for that matter, I hope, intends. And if this was unintentional, well, then we can fix it. That is one of the things the sunset requires us to do is look at. If it was not, then we need to evaluate what was really intended and why.

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SEN. FEINGOLD: You and Mr. Wainstein have stated several times in hearings of the last couple of weeks, and I think you said it again here today, that you would be willing to look at language proposed by members of Congress for changes to the Protect America Act, but that you, of course, want to be careful to ensure that there aren't unintended consequences...

DIRECTOR OF NATIONAL INTELLIGENCE [D.N.I.] MIKE MCCONNELL: That's correct. Yes, sir.

SEN. FEINGOLD: ... do not result from what may seem like small changes in the language. I take your point, but … I think that obligation goes both ways. Congress has to be careful, also, not to unintentionally authorize activities that we don't want conducted. 

…You are very familiar with the controversy surrounding the language in the PAA [Protect America Act], authorizing acquisition of information, quote, "concerning," unquote, persons outside the United States. Why was this word "concerning" used? And why should Congress even consider reauthorizing such broad and ambiguous language?

D.N.I. MCCONNELL: Sir, I talked to the keeper of the pen when that was drafted. And, quote frankly, we weren't sure why the word "concerning" was used -- different language. At one point, it was "directed at." Another it was "concerning."

So the message I would deliver today is, let's get the language that we can agree to, examine it from the responsibilities of the Congress and responsibilities that I have to do this mission, and play it out to see what does it mean and how might it be interpreted, so we can get to the right language. So, if "concerning" is the wrong word, let's agree to a better word.

SEN. FEINGOLD: See, the funny thing about this is we're not talking about a proposal. This is the law of the land. And this points up the problem with this rush to judgment that we had, in the last-minute push to get this bill passed, when you weren't even comfortable with this language. 

And I have to say that, you know, we have to be a little worried about this sort of thing because this is the same Administration that claimed, in one of the most absurd legal arguments I've ever heard, that the authorization Congress passed, to use military force in Afghanistan after 9/11, somehow allowed it to wiretap Americans in the United States without a warrant. And they did so, for years, in secret. 

Democratic Senators expressed grave concerns about the Administration’s proposal to grant retroactive legislative immunity to telecommunication companies that cooperated with the President’s warrantless wiretapping program.

SEN. LEAHY: When you talk about the question of immunity, you've got a warrant on actions that are going on; that pretty well immunizes anybody. I mean, if in a previous incarnation, Senator Specter and I got a search warrant to search a --somebody's safe deposit box and the bank opens up for us, the bank's immunized because they had the warrant.

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SEN. KENNEDY: Could I go ask you a question about the Attorney General certification for immunity from liability in the -- for carriers? Isn't it true that the carriers who act pursuant to a warrant or the attorney general's certification already have immunity from liability? … 

D.N.I. MCCONNELL: Under the new law, that's correct, yes, sir.

SEN. KENNEDY: Was that true under the old law, too?

D.N.I. MCCONNELL: I don't know about the old law. (CROSSTALK)

SEN. KENNEDY: So, if the warrantless surveillance program was legal, as you have claimed, what do carriers need immunity from?

D.N.I. MCCONNELL: I’m not sure I understand your question, sir.

SEN. KENNEDY: … [I]f they had been abiding by the law, they shouldn't need immunity. They've been abiding by the attorney general's getting a certification, they shouldn't need immunity. So, why does the administration ask us to grant immunity for past activities[,] which we have no idea what they were?...

D.N.I. MCCONNELL: Well, going forward, there is proscriptive liability for anyone that would assist us in this mission. In a retroactive sense, those who are alleged to have cooperated with us in the past are being sued. And so, it's to seek liability protection from those suits…

SEN. KENNEDY: …It's a bad precedent, I think, that we finally -- have a law and then the carriers are able to violate the law and think that some time in the future they can get immunity by talking about bankruptcy. 

[If the concern is that law suits may bankrupt some companies,] [t]here are different alternative ways of [addressing this]: There are damages, there's a limit to damages.

… 

SEN. LEAHY: [Further, t]his retroactive immunity, basically, takes away rights of plaintiffs who've spent money on suits and so forth. They may not be successful if they went through the courts, but let's -- it's taken them way out of their rights. And I've heard so many speeches from my good friends on the other side of the aisle against everything from environmental laws on as being illegal takings. So is this a taking? 

D.N.I. MCCONNELL: Sir, I don’t know what you mean by “taking.” 

SEN. LEAHY: Well, if we take away somebody's rights to have a suit, we do it retroactively. We do it without any compensation -- I'll just throw it out to your lawyers, if they want -- don't you try to answer. But it's interesting if we're talking about environmental law, it's terrible that we would consider this because of the taking, but if we want to move somebody's rights to a suit, it's not. 

SEN. FEINGOLD: Thank you for that answer. Ms. Spaulding, what message would it send if Congress were to grant retroactive immunity to private entities that allegedly were involved in the president's warrantless wiretapping program?

SUZANNE SPAULDING, PRINCIPAL, BINGHAM CONSULTING GROUP: Senator, I think it would send a terrible message, both to the American public and to private companies that might be asked in the future to help their government.

I think it would send a loud and clear message that we're not serious about respect for the rule of law… In this area, particularly, where there is not the kind of transparency even that you have in the criminal context, where the collection of information will ultimately be challenged, if it is to be introduced into court, for example. In this area where secrecy is so imperative, it's equally imperative that we have these safeguards in place. [In this case,] the telecommunication providers become our last line of defense against abuse by the government. Granting retroactive immunity, I think, would send the wrong signal about how corporations should react when they're asked to do something. It's not burdensome for them to ask the government to assure them that what they're being asked to do is lawful. And that's all the law requires.

Witnessed noted that the ultimate requirement where surveillance is concerned is Fourth Amendment standards. 

JAMES A. BAKER, FORMER COUNSEL, OFFICE OF INTELLIGENCE POLICY AND REVIEW, DEPARTMENT OF JUSTICE: … At the end of the day … the real questions, it seems to me, are not -- regarding whether or how to modernize FISA -- are not technological in nature. The real questions at the end of the day -- the real question at the end of the day is whether the government's collection activities comport with the Fourth Amendment. The answer to that question will depend on many factors, including but not limited to the following: 

First of all, what is the identity and the location of the person or persons whose communications are collected and reviewed? For example, where is the target, U.S. or abroad? Who is the target, a U.S. person, non-U.S. person? Whose communications are intercepted in addition?... And what is the identity of these people whose communications are being collected?

And the next thing is, what degree of confidence -- with what degree of confidence can you answer the questions that I've just posed? Do you really know where these people are? Do you really know who they are? 

In addition to those questions, there's another set that have to do, it seems to me, with the collection procedures that are in place. So, for example, who is the decision-maker? That is, who is making the decision about foreign intelligence collection before it begins, someone from the executive branch, a federal judge, for example? What level of predication is required? That is, how much paperwork and explanation is necessary to justify collection? And what standard of review should apply? Should it be probable cause? Something lower? No standard at all? What should it be? 

Further, what are the -- how particular should the approvals be? Should they be specific with respect to a particular phone number? Can they be more programmatic? How exactly should it work? In addition, what are the standards for acquiring, retaining and disseminating foreign intelligence information -- these are the minimization procedures that you've just discussed at length. 

And further, how long can a collection run without being reviewed? 

There are Fourth Amendment interests at issue; the Fourth Amendment is implicated during the following situations -- when the government targets U.S. persons or people in the United States; when it acquires and listens to or stores and later examines a communication to which a United States person is a party; or when it intercepts and scans the content of such a communication in order to determine who it is to, from or about… When I say the Fourth Amendment is implicated, I do not necessarily mean that a warrant is required in all those situations, but that collection has to be reasonable when you're collecting information about people who are protected by the Constitution.

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JAMES DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY: There’s no doubt that an American in the United States talking to somebody overseas has Fourth Amendment rights. You have a reasonable expectation of privacy in your phone calls. And that’s regardless of whether it's a domestic-to-domestic phone call or a domestic-to-foreign call. And what I think the issue here is, how can we protect that Fourth Amendment right of the American, that privacy interest of the American, without going the whole route of a particularized, individualized, probable cause-based order, when we are targeting -- when the intelligence agencies are targeting -- a non-U.S. person overseas. 

SEN. REED: There is a growing awareness among analysts, investors, businesses, government officials and other stakeholders that climate change can create new opportunities and risks in the financial sector. Major environmental risks and liabilities can significantly impact companies’ future earnings and, if undisclosed, could impair investors’ ability to make sound investment decisions. At the same time, a corporation or investor can profit from environmental innovations such as the development of new energy efficient or renewable energy technology. 

The costs associated with more extreme-weather events, regulations to curb greenhouse gas emissions at the global, regional, state, and local level, growing global demand for low-carbon technologies, and the increasing geographic spread of infectious diseases are just a few ways that climate change is likely to ripple through the U.S. and global economy. With these risks, however, comes opportunity. Companies in many sectors can increase their profitability by implementing energy efficiency strategies and developing emission-reducing technologies and products whose value is enhanced by global efforts to reduce greenhouse gas emissions. 

Witnesses testified on the need to adapt to a Carbon-Scarce future and how those companies that do will be in a better position to compete economically.

RUSSELL READ, CHEIF INVESTMENT OFFICER, CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM:Increasing evidence indicates that climate change presents material risks to numerous sectors of the economy and to the financial market place. These risks may include operational, market, liabilities, policy, regulatory, and reputation risk. Accordingly, CalPERS [California Public Employees’ Retirement System] has advocated for the right of shareowners to obtain information on environmental risks and opportunities to make informed investment decisions. 

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We want portfolio companies that are well positioned to avoid the financial risks associated with climate change and that can capitalize on new opportunities emerging from the regulation of greenhouse gases, including alternative energy technologies. 

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Given the significance of climate risks for many corporations’ financial position and competitive prospects in a new, carbon-constrained environment, reporting on climate issues is no longer a mere virtue, but a legal obligation and a necessity for investors. 

Financial experts testified that climate change is becoming an important factor for investors, companies, and the world economy. 

JEFF SMITH, PARTNERP, CRAVATH, SWAINE & MOORE, LLP AND CHAIRMAN OF THE COMMITTEE ON ENVIRONMENTAL DISCLOSURE OF THE AMERICAN BAR ASSOCIATION’S SECTION ON ENVIRONMENT, ENERGY, AND RESOURCES:The potential environmental, social and political impacts of global climate changeare, in many respects, unprecedented. It is already clear that adaptation to climate change will have major implications for the world-wide economy. 

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To date, there has been no formal, specific clarification from the SEC [Securities and Exchange Commission] as to how traditional disclosure standards should be applied to climate change.

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Silence on climate change by any publicly-traded company for which stringent regulation or unfavorable economic trade-offs could translate into material economic or strategic consequences. 

GARY W. YOHE, WOODHOUSE/SYSCO PROFESSOR OF ECONOMICS AT WESLEYAN UNIVERSITY:American companies have the potential to lead what the Europeans call the next industrial revolution. Be assured that providing incentives for American business to prepare for a carbon scarce future will put them in a good position when it comes time to compete in world markets, especially if their competitors in China and India do not follow suit...... There is money to be made, but only if uncertainty about climate policy is reduced. 

Senator Akaka stated that service members should not have to fight to regain jobs and benefits upon returning home from the battlefield. 

SEN. AKAKA: As our troops are returning home from battle, many of them seek to return to the jobs that they held prior to their military service, particularly those serving in Guard and Reserve units. USERRA [Uniformed Services Employment and Reemployment Rights Act], which is set forth in chapter 43 of Title 38, United States Code, provides these service members with certain protections. USERRA also sets out certain responsibilities for employers, including to reemploy returning veterans in their previous jobs. This applies to virtually all jobs - including those in the federal sector. I must admit to being particularly upset at the volume of USERRA claims related to federal service. It is simply wrong that individuals who were sent to war by their government should, upon their return, be put in the position of having to do battle with that same government in order to regain their jobs and benefits. 

Witnesses testified that the incidence of employment discrimination is anticipated to grow significantly in the coming years as service members return from Iraq and Afghanistan.

HONORABLE JIM BYRNE, DEPUTY SPECIAL COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL: Today, America is in the middle of the largest sustained military deployment in thirty years. That deployment is not limited to the approximately 200,000 service members in Iraq and Afghanistan at this moment. In recent years, the number of members of the National Guard and Reserve mobilized at one time peaked at more than 212,000. Last week, the Department of Defense reported that 92,971 members of the National Guard and Reserve had been mobilized and were on active duty. It is when these service members end their active duty that they may find they are no longer welcome to return to their civilian jobs and are eligible to file a claim under USERRA.

Right now, with returning war vets a comparative trickle, USERRA claims are in the hundreds. What will happen if and when that trickle turns into a flood? Will we see a “spike” in the number of claims filed by returning service members who have been turned away from their employers? Will the government demonstrate its support for our troops by being fully ready to provide prompt and effective action on these claims?

We don’t know when they will start returning home in greater numbers, boosting demand for USERRA enforcement. We believe that adequate information has been developed to support a decision by Congress to assign the task of investigating and enforcing USERRA claims by federal employees to OSC [Office of Special Counsel]. We are poised to assume this responsibility and to do our part in making their transition back to civilian life as smooth as possible.

Witnesses testified that the current Uniformed Services Employment and Reemployment Rights Act system fails to adequately protect our service members. 

MATHEW TULLY, FOUNDING PARTNER, TULLY, RINCKEY & ASSOCIATES, PLLC: As currently drafted, the Uniformed Services Employment and Reemployment Rights Act of 1994 fails to adequately support military personnel upon their return to civilian employment. The Honorable Representative Artur Davis recently sponsored new legislation, H.R. 3393, to address some of the law’s deficiencies. I urge you to demonstrate your strong commitment to the brave men and women who serve in the armed forces by supporting these amendments and by incorporating the additional proposals contained within this correspondence into a new more comprehensive updating of USERRA. Please fight to get this updated USERRA bill passed as quickly as possible.

Our national defense and homeland security depend on the men and women in our National Guard and Reserves, and while they are protecting us we should be protecting their civilian jobs. We never want to be in the situation where members of the reserves need to pick between helping our national defense and their civilian careers, as that will undermine our security.

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Over the past two years, the Government Accountability Office has conducted multiple investigations into the efficiency of USSERA enforcement. The reports unanimously conclude that the Department of Labor and the Department of Justice are failing our service men and women in their administration of USERRA. The GAO [Government Accountability Office] found deficiencies in the manner in which both departments advised claimants, processed claims, and enforced claimants’ rights.

The current enforcement scheme fails to provide adequately for victims of USERRA violations. Such a systematic failure to properly administer the provisions and protections of the Act cannot be justified. Under the circumstances, the only efficient and effective method of redress for victims of USERRA violations is representation by private counsel who will effectively pursue their claim. Given this fact, a mandatory award of attorney fees is imperative in the interest of justice; no victim of a USERRA violation should have to endure two harms as a result of an unlawful employment practice, namely, the denial of a benefit of employment and the financial burden of enforcing his or her rights in the face of such a violation.

DPC