HONOLULU — State Attorney General Mark Bennett yesterday affirmed his unwillingness to press the federal government or Hawaiian telecommunications companies for phone records to determine whether or not illegal wiretapping has occurred. Bennett reiterated his stance at a joint House
HONOLULU — State Attorney General Mark Bennett yesterday affirmed his unwillingness to press the federal government or Hawaiian telecommunications companies for phone records to determine whether or not illegal wiretapping has occurred.
Bennett reiterated his stance at a joint House committee hearing between the Judiciary and Consumer Protection and Commerce committees.
“The A.G. is taking the position that there’s nothing the state can do,” state Rep. Brian Schatz, an O‘ahu Democrat and CPC vice chair, said after the hearing.
“We disagree strongly,” he said of fellow Democrats in the Legislature.
“I don’t think (Bennett’s) being aggressive enough,” said CPC chair Robert Herkes, D-Puna-Ka‘u-South Kona-North Kona.
Special assistant to the attorney general Dana Viola said yesterday afternoon Bennett had no additional comment beyond what he said at the hearing and in a June 14 letter to Reps. Luke and Herkes.
“The precise nature of what the National Security Agency is actually doing … has not yet been determined,” Bennett said in the letter. “The state’s authority to investigate the federal government is very limited.”
Bennett’s first assertion seems to be the only thing everyone agrees on.
“The problem is that people don’t know,” said state Rep. Sylvia Luke, another O‘ahu Democrat and chair of the Judiciary Committee. “The non-response (from the federal government) makes it even more suspect.”
Luke said she would be happy with “some kind of response from federal agencies, either that no command was made to local telecom companies, or that they were only looking at certain overseas communications.”
While critics have been quick to assign blame to the NSA and the federal government, Herkes shed light on a different possibility.
“If the federal government is asking the telephone companies for (phone records) rather than requiring it, and they’re complying, they’re in violation of state law.”
Herkes, Luke and Schatz all said the next step would likely be to form an independent committee to investigate the issue and possibly subpoena phone company records, a virtually unprecedented act that would not require the support of the entire Legislature.
“The authority is vested in the speaker’s office,” Schatz said. “We’ll discuss the matter with the legislative leadership and determine whether or not this calls for an extraordinary use of legislative power.”
House speaker Calvin Say, D-St. Louis Heights-Palolo Valley-Maunalani Heights-Wilhelmina Rise-Kaimuki, was not available for comment yesterday, but his director of communications said the speaker would like to speak with the two committee chairs before making a comment of decision.
While Schatz said he hopes to have a decision in the next few weeks, others said nothing is likely to happen until the next regular session of the Legislature in January.
“An investigative committee should be authorized by the Legislature,” Herkes said.
Quick to point out how the coming elections could affect, for better or worse, efforts at full disclosure, Herkes said if Say is still speaker of the house in January, he anticipates full support.
Luke said the whole thing may be resolved before that, depending on what happens between now and then with a class action law suit Hawai‘i citizens filed against Hawaiian Telcom on June 26.
While New Jersey is the only state whose attorney general has subpoenaed phone company records since the concern over illegal wiretapping arose, some are not surprised at Hawai‘i’s lethargic approach.
“The governor is a Republican and the president is a Republican. I don’t think it gets much more complicated than that,” said Jon Van Dyke, a University of Hawai‘i constitutional law professor. “It’s unlikely that a Republican state administration is going to challenge a Republican federal administration.”
Van Dyke, who addressed the joint hearing at the invitation of the committees, said the government’s actions represented “a serious challenge to the separation of powers in our constitutional system” and compared domestic eavesdropping to Watergate.
“Nixon took the same position, that we were in a war and anything the president did was legal,” he said. “President Bush has taken a comparable position.”
Van Dyke is encouraged, however, by the U.S. Supreme Court’s recent decision in Hamdan v. Rumsfeld, in which the Court ruled that Bush violated the Geneva Conventions in ordering some Guantanamo Bay detainees to stand trial for war crimes.
“The Supreme Court rejected the administration’s approach and said the president does not have the authority to ignore Congress,” Van Dyke said.
Whether or not that precedent will take hold in Hawai‘i — or if there was ever a violation in the first place — remains to be determined.
Schatz said he has no idea whether or not the NSA has been accessing phone records, “which is why we have to use all the authority we have to figure out whether Hawai‘i citizens are being spied upon.
“The challenge is going to be to make sure we protect our state and our constitution at the same time,” he said.
