Republican Senator from Kentucky, Rand Paul, questioned Department of Homeland Security (DHS) nominee, Jeh Johnson, on the constitutionality of policies and practices exercised by the agency this week. In a pointed line of questioning the Senator brought up three leading constitutional concerns that confront the DHS: mass surveillance of Americans, due process in the FISA court, and targeted killing of non-combatant U.S. citizens abroad.
Although outright confrontation at the hearing was minimal, Senator Paul called into question the department's practice of data mining information on American citizens en masse. He listed concerns for the Fourth Amendment after asking, "Do you think a single warrant can apply to millions of records and millions of individuals?"
Johnson answered, "I understand that may be an issue with regard to certain surveillance programs. I dont have a legal opinion for you on that."
The next question from Paul challenged the constitutionality of the Foreign Intelligence Surveillance Court's (FISA) structure. "Do you think it is due process to have a court trial where only one side is represented?" This question stems from the fact that the FISA court decides whether or not to authorize surveillance without an adversarial constitutional advocate present. Johnson answered, "In the context of a litigation or a courtroom proceeding, no."
Sen. Paul followed up, "Do you think that a bunch of lawyers in a room, from one administration, from one political party can decide the guilt or innocent of American citizens? These are ones often if not always or mostly, not engaged in combat."
Johnson replied, "As you pose it I think my answer would be no."
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