CNAS Briefing: Key Questions for the Sessions Confirmation Hearing

As Senator Jeff Sessions (R-AL) is set to face a hearing before the Senate Judiciary Committee to be the next Attorney General, experts from the Center for a New American Security (CNAS) have prepared a series of questions they would like the members of the committee to ask during the hearing. The full list of questions is available below:

Fighting ISIS

• Presuming that President Trump will continue the fight against the Islamic State, under which legal authority will those attacks take place? Does the administration need or seek a new authorization for the use of military force against the Islamic State? – CNAS President Richard Fontaine

Interrogation of Suspected Terrorists

• ·Legislation has been enacted that restricts interrogation techniques to those listed in the Army Field Manual. Other statutes prohibit grave breaches of the Geneva Conventions as well as cruel, inhuman, and degrading treatment. In light of these prohibitions, is waterboarding suspected terrorist detainees permissible under current law? – CNAS President Richard Fontaine
• Over the last 15 years since 9/11, the Justice Department has prosecuted, convicted, and incarcerated hundreds of international and domestic terrorists using federal criminal law and federal courts to do so. In many of these cases, the Justice Department has worked effectively with DoD, the intelligence community, and foreign nations to capture, detain, and render suspects back to the United States from foreign locations such as Somalia and Libya. This approach has reportedly yielded both valuable intelligence and cooperation with foreign partners, and has also resulted in the lawful, long- term detention, via federal prison sentences, of these terrorists. Will you continue this successful practice of using the Justice Department and criminal prosecutions as a counterterrorism tool? Or will you adopt or recommend some other strategy for handling terror detainees – and if so, what is that strategy? – CNAS Military, Veterans, and Society Program Director Phillip Carter
• During the campaign, President-elect Donald Trump spoke often of his desire to resume the use enhanced interrogation techniques for questioning of detainees, including but not limited to water boarding. These techniques were used by CIA and DoD personnel in the early years after 9/11 on a number of detainees, including some still held at Guantanamo Bay. Since then, the U.S. Supreme Court has held that U.S. detainees are entitled to the protections of Common Article 3 of the Geneva Conventions, which prohibits the use of these techniques because they have been deemed to be torture. Congress has also barred the use of enhanced interrogation techniques as a matter of federal law. In your role as attorney general, will you follow the law as it exists today in stature, and has been articulated by the Supreme Court, with respect to torture? And will you ensure that your department, including the Office of Legal Counsel, opines on these issues in a manner consistent with existing federal law, and advises all federal agencies (including DoD and the nation’s intelligence agencies) to fully comply with federal law on torture? – CNAS Military, Veterans, and Society Program Director Phillip Carter

Surveillance

• In 2015, the USA Freedom Act barred the government from collecting communications metadata in bulk. Instead, the government can query data held by providers. You opposed that change, arguing that it would impede counterterrorism. Eighteen months later, some argue that querying data held by companies has proved satisfactory. Others take the view that providers should be obligated to retain the data for a fixed period. Do you think the USA Freedom Act should be repealed and the government should resume collecting bulk metadata about domestic communications? Should providers be required to retain metadata for a certain period? Or is the current system adequate for counterterrorism needs? – CNAS Senior Fellow Adam Klein
• The FISA Amendments Act, including Section 702, will sunset in December unless it is reauthorized. Collection under Section 702 targets foreigners overseas, but sometimes pulls in communications to, from, or about Americans. Under what circumstances should the FBI search 702 data for information about Americans? During the upcoming reauthorization debate, will the department provide to the public greater detail about how often the FBI performs such queries and how the Justice Department uses 702 information in criminal investigations and prosecutions? – CNAS Senior Fellow Adam Klein
• The Privacy and Civil Liberties Oversight Board’s reports have provided Americans with greater information about important surveillance programs. The Board’s report on Section 702 provided perhaps the strongest validation of the program’s national security value and robust oversight. And the Board is a key element of the United States’ case internationally that its intelligence community is subject to vigorous, independent oversight – stronger oversight, in fact, than many of the countries that criticize the United States. Unfortunately, the Board now lacks a quorum and a Chairman and may soon be down to only one member. Will you and the new administration prioritize appointments to the Board to ensure that it remains operational? – CNAS Senior Fellow Adam Klein

Authorization for the Use of Military Force

• In 2011, you criticized the Obama administration for failing to seek congressional approval before commencing military operations against Libya. As you noted, the United States had not been attacked by Libya and was not under imminent threat from it. You also contrasted the Libyan situation with the Iraq War, which was preceded by months of debate and a congressional authorization. Will the Trump administration commit to obtaining authorization from Congress before using military force against any sovereign government that has not attacked or is not imminently threatening the United States? – CNAS Senior Fellow Adam Klein
• Federal law empowers the attorney general to provide legal advice to the president upon request. In light of this role, what is your opinion of the current Authorization for the Use of Military Force, and its sufficiency for both the current U.S. campaign against ISIS in Iraq and Syria, as well as the Trump administration's planned campaign against ISIS, and broader counterterrorism strategy? – CNAS Military, Veterans, and Society Program Director Phillip Carter

Klein, Carter and Fontaine are available for interviews on the confirmation hearing. To arrange an interview, please contact Neal Urwitz at [email protected], or call 202-457-9409.