Holding Sessions Accountable on Civil Liberties

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.