[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FISA HEARING
=======================================================================
HEARING
before the
PERMANENT SELECT
COMMITTEE
ON INTELLIGENCE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Hearing held in Washington, DC, September 18, 2007
U.S. GOVERNMENT PRINTING OFFICE
38-877 PDF WASHINGTON DC: 2007
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SILVESTRE REYES, Texas, Chairman
ALCEE L. HASTINGS, Florida PETER HOEKSTRA, Michigan
LEONARD L. BOSWELL, Iowa TERRY EVERETT, Alabama
ROBERT E. (BUD) CRAMER, Alabama ELTON GALLEGLY, California
ANNA G. ESHOO, California HEATHER WILSON, New Mexico
RUSH D. HOLT, New Jersey MAC THORNBERRY, Texas
C.A. DUTCH RUPPERSBERGER, Maryland JOHN M. McHUGH, New York
JOHN F. TIERNEY, Massachusetts TODD TIAHRT, Kansas
MIKE THOMPSON, California MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois DARRELL E. ISSA, California
JAMES R. LANGEVIN, Rhode Island
PATRICK J. MURPHY, Pennsylvania
Nancy Pelosi, California, Speaker, Ex Officio Member
John A. Boehner, Ohio, Minority Leader, Ex Officio Member
Michael Delaney, Staff Director
FISA HEARING
----------
TUESDAY, SEPTEMBER 18, 2007
House of Representatives,
Permanent Select Committee on Intelligence,
Washington, DC.
The committee met, pursuant to call, at 10:05 a.m., in room
2118, Rayburn House Office Building, the Honorable Silvestre
Reyes (chairman of the committee) presiding.
Present: Representatives Reyes, Hastings, Boswell, Cramer,
Eshoo, Holt, Ruppersberger, Tierney, Thompson, Schakowsky,
Langevin, Murphy, Hoekstra, Wilson, Thornberry, McHugh, Tiahrt,
and Issa.
Staff Present: Michael Delaney, Staff Director; Wyndee
Parker, Deputy Staff Director/General Counsel; Jeremy Bash,
Chief Counsel; Don Campbell, Professional Staff; Stacey Dixon,
Professional Staff; Mieke Eoyang, Professional Staff; Eric
Greenwald, Professional Staff; Robert Minehart, Professional
Staff; Don Vieira, Professional Staff; Mark Young, Professional
Staff; Kristin R. Jepson, Security Director; Stephanie Leaman,
Executive Assistant; Courtney Littig, Chief Clerk; Caryn
Wagner, Budget Director; Chandler Lockhart, Staff Assistant;
Josh Resnick, Staff Assistant; Chris Donesa, Deputy Minority
Staff Director/Chief Counsel; Frank Garcia, Minority
Professional Staff; John W. Heath, Minority Professional Staff;
James Lewis, Minority Professional Staff; Jamal Ware, Minority
Press Secretary.
The Chairman. The committee will please come to order.
Today the committee will receive testimony from four
recognized experts on the Foreign Intelligence Surveillance
Act, or FISA.
Following the wire-tapping scandals of the 1970s, Congress
enacted FISA in 1978 to regulate government surveillance of
American citizens in national security cases. FISA instituted
two important checks on the ability of the executive branch to
conduct surveillance of Americans. First, the government would
have to obtain an order from a specially designated court
before tapping the phones of Americans on U.S. soil. Second,
the government's eavesdropping activities would have to be
reported to Congress.
Since 1978, much has changed. First, the threat has
changed. Our focus is no longer the Soviet Union but rather a
lose confederation of terrorist cells, WMD proliferators, and
rogue nations.
Second, the technology has changed. Today, our calls and e-
mails fly over the Internet through cell phones, BlackBerries,
blogs, and chat rooms.
Third, FISA has also changed. The statute has been amended
or updated by Congress in roughly 50 different ways since 1978.
And, last, Congress has made significant changes to the
statute since the attacks of 9/11, including the use of John
Doe roving wiretap authority, the expansion of the emergency
period for obtaining court orders and authorization for
targeting lone wolf suspected terrorists. Those are just a few
that I wanted to mention this morning.
One thing, however, has not changed: the Fourth Amendment.
It is a cornerstone of our Nation and should not be set aside,
suspended or amended, not under the threat of war,
insurrection, rebellion or even terrorism. To do so would
greatly undermine our cherished systems of checks and balances.
Our Constitution has stood the test of time. It has protected
the American people for more than 200 years.
Two years ago, we were stunned to learn that, after 9/11,
the Bush administration had been ignoring FISA. The NSA program
involved not only targets overseas but also American citizens
whose phone calls were listened to and e-mail read without a
warrant. To this day, the administration refuses to share
critical information about this program with Congress.
More than 3 months ago, Ranking Member Pete Hoekstra and I
sent a letter to the Attorney General and to the DNI requesting
copies of the President's authorizations and the DOJ legal
opinions. We have yet to receive this information.
And so today I would like to say publicly to Bush's nominee
for Attorney General, Judge Mukasey, one of your first tasks as
Attorney General will be to repair DOJ's relationship with
Congress. You can start by turning over the documents that all
members of this committee have long sought relating to the NSA
surveillance program.
In April, the DNI proposed some changes to FISA. The
committee had planned a thorough review. In late July, in the
midst of this review, the administration came rushing in with
an urgent request to craft changes to FISA before the August
district work period. Despite our misgivings over the rushed
timing, we agreed to craft short-term legislation to ensure
that our intelligence professionals had the tools that they
needed to uncover plots against the U.S.
The DNI asked for three things: first, no individual
warrants for foreign targets; second, a mechanism to compel the
telecommunication companies to cooperate with the government,
and, third, individual warrants for targets inside the United
States.
We agreed to all of these things; and the leadership bill,
H.R. 3356, addressed all of these issues. Further, we agreed to
the DNI's request to expand this new authority from terrorism
to all foreign intelligence and other changes that had been
requested by the DNI.
But our administration just couldn't say yes and insisted
on moving the goalposts even after striking an agreement with
congressional leaders. The administration demanded its version
of the legislation, even though our bill gave the Intelligence
Community 100 percent of what it had asked for. The result was
that Congress passed what I believe was a very flawed bill, the
so-called Protect America Act.
So I want to make clear this morning our concerns are not
about protecting the rights of foreign individuals overseas.
The question, I believe, is when communications involve
Americans, as was the case in the NSA surveillance program,
what should the rules be?
I am concerned that, as drafted, the administration's bill
just went too far. It allows warrantless physical searches of
Americans' homes, offices and computers. It converts the FISA
court into a rubber stamp, and it contains insufficient
protections for Americans who will have their phone calls
listened to and e-mails read under this broad new authority.
I take small comfort that the legislation sunsets in 6
months, but we will not wait. In early October, at the
Speaker's request, we will mark up FISA legislation to address
the needs of the Intelligence Community.
We will legislate based on the full record in this
committee. We have held four hearings in June and July.
Committee members and staff have made several trips to NSA to
review this new authority. We have held a closed hearing on
September the 6th with the NSA and FBI directors; and, after
today's hearing, we will hold another open hearing on Thursday
with DNI McConnell and Assistant Attorney General Kenneth
Wainstein.
Our first witness today is James Baker. Mr. Baker is one of
the Nation's foremost experts on FISA, having run FISA
operations for the Department of Justice for the past 7 years.
In 2006, Mr. Baker received the George H.W. Bush award for
excellence in counterterrorism, the CIA's highest award for
counterterrorism achievements. He is currently on the faculty
of Harvard Law School.
Welcome, Mr. Baker.
The committee is also pleased to welcome back Mr. Jim
Dempsey. He is Policy Director of the Center for Democracy and
Technology. He served for 9 years as counsel to the House
Judiciary Committee and remains an important adviser to
Congress.
I also want to welcome Ms. Lisa Graves, Deputy Director of
the Center for National Security Studies. Lisa previously
served as Senior Counsel at the ACLU and as Chief Nomination's
Counsel on the Judiciary Committee. She also served as Deputy
Assistant Attorney General in the Department of Justice.
Welcome, Lisa.
Finally, I want to welcome David Rivkin, who is a partner
at the law firm of Baker Hostetler. He has written several
articles on constitutional issues. He previously served in
government, at the Department of Energy and as a Special
Assistant to Vice President Dan Quayle.
And now I would recognize our ranking member, Mr. Hoekstra,
for any statement that he may wish to make.
Mr. Hoekstra. Good morning, Mr. Chairman, and good morning
to the witnesses.
I have got a prepared statement which I will submit for the
record. I just want to address some of the comments that the
chairman made.
To characterize the notification of the U.S. Congress by
the New York Times as being ``stunning'' and perhaps implying
that that is the first time that Congress heard about a
terrorist surveillance program is inaccurate.
Mr. Chairman, I would like to submit--I don't have it with
me--but to get the document and submit for the record the
listing of briefings to congressional leadership by the White
House on the Terrorist Surveillance Program----
The Chairman. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILBLE IN TIFF FORMAT]
Mr. Hoekstra. This would also identify--or when that is put
into the record will identify that congressional leadership was
brought in almost immediately after 9/11 to talk about what the
threat was and how best collectively Congress and the President
would respond to this threat and keep America safe at a time
when America was concerned about additional attacks against the
United States after 9/11 because we didn't fully understand who
was attacking, their capability, and what kind of sleeper cells
they had.
Matter of fact, that document will show that the current
Speaker of the House was briefed three times and consulted
three times within the first 11 months as this program started
to take shape and that the White House consulted with
congressional leaders about what the program should be, the
possibility and the necessity whether legislation should be
done to update FISA at that time or not and how we would
implement the program.
Once the program was implemented, Congress was continually
briefed as to the extent of the surveillance, the types of
people that were being surveilled, the protections that were
being put into the process to make sure that American civil
liberties were protected, the type of information that was
being collected, the impact that we were having on minimizing
the threats to the United States.
Let us be clear about this. This is not the Bush terrorist
surveillance program. This is the Bush/congressional terrorist
surveillance program. Because congressional leadership was
involved in this process from the beginning.
I know when I became chairman of the committee, within the
first 30 days I got the call to go over to the White House
because they wanted to make sure that I was fully briefed into
the program and understood exactly what the programs were and
the parameters. And the last question in that meeting, in every
meeting after that where I was briefed in on the program was
very consistent: Do you have any concerns? Do you have any
questions? Is there anything else that we need to do to address
and make sure that you are comfortable with this program?
And I have to assume that for the first 3 years while this
program was under way, that is exactly what happened.
And until the New York Times, in an irresponsible process
and method, revealed the existence of this program,
congressional leadership on the Republican and Democrat side,
like I said, including the current Speaker of the House, was
briefed on this program. And the reason that they went along
with it for 4 years, and the parameters and under the ways that
they did, was they recognized that American civil liberties
were protected and they recognized that this program was having
a significant impact in keeping America safe.
Republican and Democrat leadership bought into this program
as being necessary, essential, and appropriate to keep America
safe.
With that, I will yield back the balance of my time and
submit my previous statement or the prepared statement for the
record.
Thank you, Mr. Chairman.
[The statement of Mr. Hoekstra follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Hoekstra; and that is why it
is imperative that we get the documents from the
administration, so that we can verify the things that are true
and the things that aren't true about who said what and who did
what under that program.
I do remember that it was a hard issue to get the members
of this committee fully read into that program. But, be that as
it may, we will resolve those kinds of issues in due time, and
now I want to first go down the list of the speaking order.
We are going to have Mr. Jim Baker, then followed by Mr.
Jim Dempsey, Ms. Lisa Graves and then Mr. David Rivkin.
STATEMENTS OF JAMES BAKER, HARVARD LAW SCHOOL; JAMES DEMPSEY,
POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY; LISA
GRAVES, DEPUTY DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES;
AND DAVID RIVKIN, PARTNER, BAKER HOSTETLER
The Chairman. So now I want to recognize Mr. Jim Baker; and
I want to alert the members that DOJ has not cleared Mr.
Baker's testimony, unfortunately, but we will, however, now
have him present his oral remarks to the committee.
So, with that, Mr. Baker, you are recognized.
STATEMENT OF JAMES BAKER
Mr. Baker. Thank you.
We have not been able to finish the clearance of the
written statement, but I am able to give an oral statement
today.
Mr. Chairman, members of the committee, thank you for the
opportunity to come here today to discuss the Foreign
Intelligence Surveillance Act and the Protect America Act. The
issues that we will discuss today are complex and important and
the actions that you take based upon what we talk about today
will have a significant impact on the safety and the freedom of
all Americans.
I would just like to make a brief statement about my
background to amplify what the chairman said earlier.
From 1998 until 2007, I was responsible for intelligence
operations at the Department of Justice. Working with the very
dedicated men and women at the Office of Intelligence Policy
and Review, we were responsible for representing the United
States before the Foreign Intelligence Surveillance Court. In
my time at OIPR, I reviewed, prepared, supervised the
preparation of thousands of FISA applications.
The Department of Justice has specifically approved my
testifying here today, but I would like to emphasize that I am
appearing here in my personal capacity and that the views I
express do not necessarily reflect those of the Department of
Justice or the administration.
I would like to focus on three areas in my opening remarks
here today:
First, I would like to talk about the productivity of the
original FISA. FISA was extremely productive over the years.
FISA permitted robust collection of foreign intelligence
information, including actionable intelligence, and when I use
the term ``actionable intelligence'' I mean information that
the Intelligence Community could use to take action to thwart
the activities of our adversaries, including terrorist groups.
We were able to disseminate information gained from FISA widely
through the Intelligence Community where appropriate and to our
foreign partners. We were also able to use evidence obtained
from FISA in criminal prosecutions with the approval of the
Attorney General.
Furthermore, everyone in the system had the comfort of
knowing that their actions were clearly lawful and that they
would not be subject to lawsuits or criminal prosecution for
having performed in conformance with an act of Congress and
Federal court order.
In many ways, it seems to me there is a paradox in that we
are talking about amending Congress, and Congress amended FISA
in the Protect America Act, in my view, as a result of the
successes of FISA itself.
Because FISA enabled collection of vital and timely foreign
intelligence information, including information about the
activities of overseas terrorists, the Intelligence Community
came to regard FISA as a critically important collection
platform and the Intelligence Community increasingly turned to
FISA to obtain important foreign intelligence information.
FISA, in my view, expanded the understanding by other elements
of the Intelligence Community with respect to the value of
certain types of collection. That then led to a growth in the
targeting of foreign operatives, which in turn then led to the
desire to change the law that we were talking about today and
that you were talking about in the summer.
What I would suggest is, before you decide whether to renew
or modify FISA again or the Protect America Act, I would
recommend asking the Intelligence Community for a thorough
analysis of their assessment of the productivity of the
original FISA. I believe that the record will show that FISA
contributed significantly to our successes against al-Qa'ida
and other terrorist groups post 9/11 and indeed that FISA
worked during wartime.
That is not to say that it was easy. The very dedicated men
and women of OIPR worked very long hours under sometimes very
adverse conditions to enforce the laws that Congress had
enacted at the time. In my view, they exemplify what it means
to be a dedicated public servant, and I think their actions are
worthy of the review of historians in the years to come.
A few comments about the scope of the original FISA.
To be clear, as Congress said in the legislative history,
no means of collection are barred by the original statute. In
other words, all forms of modern communication were and are
subject to collection under the original FISA.
In addition, to clarify a point that has been discussed,
FISA has never applied to foreign-to-foreign wire or radio
communications. One of the problems we face today, given modern
technology, is that you can't always tell where the parties are
at the time of interception.
A frequent question that is also asked is whether FISA was
intended to include or exclude foreign communications; and it
seems to me that the analysis of that question requires a
thorough understanding of several factors, including the state
of technology in 1978, what Congress understood about the state
of technology at that time, the lengthy and complex and
somewhat contradictory at times legislative history that exists
with respect to the original FISA and, finally, a careful
examination of the text of the law that Congress ultimately
enacted.
With respect to the historical record, I have been looking
at some documents lately just in a preliminary manner that
seemed to indicate that transoceanic communications were made
in relatively large quantities by both satellites and coaxial
cables underneath the sea, that both kind of systems were
expected to continue in service for many years and the use of
fiber optics was already anticipated for undersea cables. As I
suggest, the legislative history and the law can be read in a
variety of ways; and it requires a careful analysis to decide
what the state of play was in 1978. I suggest that if this is
an important factor to you, that you task an entity such as the
Congressional Research Service to do a thorough historical
analysis.
Mr. Chairman, at the end of the day, the real questions
regarding whether or not or how to modernize FISA ultimately
are not technological in nature. It seems to me that the real
questions are, number one, who should the decision maker be
with respect to authorizing collection? That is, who should
approve the collection before it can begin?
Second question is, what level of predication do you want
to be required? That is, how much paperwork explanation is
necessary to justify the collection and what standard of review
should the decision maker apply?
A third question is, how particular should the approvals
be? In other words, how specific must the authorizations be
with respect to the persons or the facilities at which the
collection is directed?
So, for example, the lower the level of approval and
factual predication that is necessary and the less specific the
authorizations need to be, the more quickly and more easily the
Intelligence Community will be able to start collection and the
greater the volume of collection they will be able to sustain
over an extended period of time.
At the end of the day, that is what I believe folks are
talking about when they say that we need to make the system
speedy or have a system that is--provides the Intelligence
Community with the speed and agility necessary to obtain the
foreign intelligence they need.
A related question then is, with respect to the decision
maker, what role should Federal judges play in this process?
And as you can tell from the debate, this depends upon whether
one or both of the targets--or the answer to that question
depends on whether one or both of the targets is in the United
States, whether you can actually tell where the parties who
took the communication are located at the time of interception,
and to what extent the government will need to review
communications of the target--let me back up.
To what extent does the government need to review or find
the communications of the target in order to determine where
the parties to the communication are located?
Working closely with the Foreign Intelligence Surveillance
Court for 10 years, I would be happy to provide the committee
with the benefit of my experience in answering that question
and any other questions that the committee may have today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Mr. Baker.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Now, Mr. Dempsey, you are recognized for your
opening statement.
STATEMENT OF JAMES DEMPSEY
Mr. Dempsey. Mr. Chairman, Ranking Member, members of the
committee, good morning. Thank you for the opportunity to
testify at this hearing.
The issue before the committee today has nothing to do with
terrorism suspects overseas talking to other people overseas.
For a long time, there has been agreement among Members of
Congress of both parties and even in the civil liberties
community that a court order should not be required for
interception of foreign-to-foreign communications. Instead, the
debate over the past year has been about the rights of American
citizens and others inside the United States when they are
talking to people overseas.
Of course, the NSA needs speed and agility collecting
communications of persons overseas; and many of those persons
overseas will communicate only with other overseas persons, not
affecting the rights of Americans at all.
However, it is also certain that some of those persons
overseas will communicate with people in the United States.
Some percentage, maybe a growing percentage, of NSA's
activities directed at persons overseas result in the
acquisition and dissemination and use of communications to and
from the U.S.
Individuals in the U.S. retain their reasonable expectation
of privacy in their communications even when they are
communicating with people overseas. When the government listens
to both ends of the communication, it infringes on the privacy
rights of Americans.
The administration would like us to think of this as just
two issues: targeting people in the U.S., warrant required;
targeting people overseas, warrant not required.
I think there is a third category as well, which is when
the government is targeting no one particular person at all and
we have the NSA sifting and sorting and collecting
communications to and from the United States.
And minimization means not what we think it might mean.
Minimization allows the government to use, collect, retain,
share, and rely upon those communications of U.S. citizens.
Mr. Chairman, I prepared a much longer memo on minimization
and, with your permission and consent with the committee, I
would like to enter that into the record.
The Chairman. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Dempsey. Now how do we normally protect and overcome a
person's privacy interest? Of all of the millions of calls to
and from the United States, how do we ensure that the
government's interception activity is not careless or misguided
or based on unreasonable assumptions?
The answer under our Constitution, normally, is we require
a court order for that decision. It is the court order that
protects and overcomes the privacy interests of persons on both
ends of the call. When a judge issues a court order, she knows
she is authorizing the government to infringe on the privacy of
people on both ends of the communication. The warrant approves
the interference with the privacy of both the target, so to
speak, and all other persons on that targeted facility or
communications channel.
Even if one party has no fourth amendment rights, the other
parties to the communication retain theirs; and it is the court
order that is necessary to protect the interest of those
persons, in this case the persons in the United States.
The Protect America Act is completely without standards in
this regard. It does not require that the person overseas be
suspected of being an agent of a foreign power. It doesn't
require that the NSA have probable cause or any reasonable
suspicion of anything except that the person be outside the
United States.
There is no limit on the scope or duration of the
surveillance. There is no court approval of the minimization
rules. There is no court supervision of how the calls of
Americans are being treated, how they are being used.
We can give the NSA the speed and agility it needs, while
at the same time protecting rights of Americans. We can do that
through a two-step process: A blanket order or program order--a
basket order sometimes it is called--authorizing a program of
electronic surveillance inside the United States intended to
intercept the communications of persons overseas, plus a
process for determining when individualized orders are
necessary because the surveillance has shifted or the center of
gravity has begun to interfere significantly with the rights of
people in the United States.
The court granting the initial blanket order would not have
to approve and should not approve the specific targeting
decisions. But by creating jurisdiction in the court and, by
the way, giving the companies which we want to compel to
cooperate the certainty of a court order and then creating the
jurisdiction in the court to supervise and to review the
periodic reports back to the court about how the surveillance
is being carried out, I think we can strike the right balance
here, provide the intelligence agencies with the speed and
agility that they need and, at the same time, protect the
rights of the Americans on the American end of these
communications.
Mr. Chairman, I would be happy to answer your questions and
those of the other members of the committee. There are,
obviously, a host of issues that we need to go through here.
One could dig in on the question of exclusivity, the question
of immunity for service providers, a host of other issues; and
I look forward to questions on those issues.
The Chairman. Thank you.
[The statement of Mr. Dempsey follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Now Ms. Graves, you are recognized.
STATEMENT OF LISA GRAVES
Ms. Graves. On behalf of the Center for National Security
Studies, I want to thank the chairman and the ranking member
for having this hearing today, for having the privilege to
testify on FISA and the PAA. We appreciate very much your
scheduling this hearing in public so quickly in the aftermath
of the temporary revisions that were passed in August.
We believe that the far-reaching changes written into FISA
are unconstitutional and they are unnecessary because there are
alternatives that provide additional flexibility to the
Intelligence Community and increase its effectiveness while
preserving Americans' constitutional rights and the checks and
balances. But every reasonable alternative was unreasonably
rejected and the breadth of the PAA is, in a word,
breathtaking. We fear that the PAA authorizes too much
surveillance among Americans and fails to provide the kind of
independent, individualized checks that are essential to
protect civil liberties, and the requirements permitted by the
PAA will undoubtedly sweep in increasing numbers of American
communications with no independent protection for their rights.
We need clear rules. There needs to be flexibility. But
these rules are ambiguous and elastic; and history demonstrates
that political leaders will, specially in times of fear,
unilaterally and secretly read even narrow authorizations
broadly. It is not clear exactly what kind of searches, whether
electronic or physical, the PAA might allow. The kind of who,
what, where, when, how often, how long required under FISA are
missing under the PAA.
It seems quite clear, however, that the intent was to
eliminate the search warrant requirement for a substantial
number of American communications.
As Jim said, this is not about foreign-to-foreign
communications, and I think as Mr. Baker said as well. And, in
fact, the administration has taken this position publicly in
various settings. But this isn't about the Terrorist
Surveillance Program. It is not about al-Qa'ida calling the
U.S. It is not limited to terrorists. It is not limited to
weapons of mass destruction proliferators. What it is about is
getting access to the networks and nodes in the United States
that involve the international calls and e-mails of Americans
and foreigners.
And what it changes dramatically is the access to those
calls from the fiber optic networks here in the United States
without a warrant, and doing that required a warrant until last
month and for the last 30 years. The PAA eliminates that
protection.
I think it is important to remember the history of FISA in
this regard, and I understand from Mr. Baker there has been a
lot of talk back and forth about that history. But let me just
explore for a moment one key point regarding Operation
Shamrock.
As the members of this committee know well, Congress
intended to prohibit the NSA from restarting Operation
Shamrock, which was an operation that had been in effect for
decades in which the NSA obtained the electromagnetic tapes of
nearly all telegrams going into and out of the United States to
analyze them for foreign intelligence information, for
information to protect national security.
When FISA was passed in 1801(f)(2), Congress barred
acquisition--not targeting--acquisition of communications off
the wires of the United States. That protection is eliminated
plainly by this law.
Now there are some who will say that the case law before
FISA was passed was ambiguous or perhaps some courts had not
ruled that such action was unconstitutional. But let me add a
note about your power as Congress and your role, in my opinion.
The courts in this area of national security are
particularly weak in intervening when the executive branch
asserts national security interests. Under the political
question doctrine or other doctrines, they are hesitant to
intercede; and the administration urges them not to.
And the executive branch is not the sole organ, is not the
best protector of individual liberties in this regard. It was
Congress's role. It was a necessity for Congress to make this
judgment, and Congress made a judgment that the Constitution
required there to be a warrant before the Intelligence
Community has access to the telecommunications cables going
into and out of the United States for Americans' international
communications.
That was a correct judgment then, and it is a correct
judgment to this day.
Now the administration claims that there are some times
when they don't know who is calling into the United States,
whether it is a foreigner or not. But it seems to us that the
packet technology, the technology that makes a call actually go
from point A to point B, that makes it reach its destination,
includes information that relatively quickly someone can
ascertain who the originator is and who the target is or who
the caller is and who the recipient is.
We think that in a large number of communications you can
know where those communications are going or we wouldn't
receive calls or e-mails that we do, which we do most of the
time.
They also assert that there are some number of
communications where they don't know where a call is coming
from or where an e-mail is going to. But this is not a
justification to sweep in all communications where they do know
and can know particularly where American communications are
involved.
We think that it is critically important that this
committee take a very hard look at the effect of the PAA, both
the intended consequences and the unintended consequences.
Because we believe this bill allows access to the facilities in
the United States without any court oversight or meaningful
oversight by the courts without any individual checks before
the fact or after the fact, and basically it entrusts the
Intelligence Community to take what they choose without any
independent oversight.
We fully support your efforts to get full disclosure of all
of the documents you have requested, and we would request that
significant amounts of those be made public to the extent
possible. We believe it is essential for this committee to have
a detailed report of the number of Americans who have been
subject to surveillance without warrants already in the last 45
days.
We believe that individualized court orders are essential
and also you need mandatory oversight. Apparently, optional
oversight doesn't work, as you can't get documents you have
been already seeking for months.
We think it is critically important that you obtain the
legal opinions and the court orders. And we believe that there
has been ambiguity, to say the least, about the description of
this program, as demonstrated by the statements by Chairman
Rockefeller and former Ranking Member Harman of this committee.
And let me just conclude on two points: First, there has
been a tremendous globalization of American communications over
the last 30 years. Forty million Americans travel abroad every
year. A half a million Americans work abroad or serve in the
military abroad. A couple of million Americans live overseas. A
quarter of a million students study abroad a year. And all of
these Americans, and Americans here, are in closer contact than
ever with friends, family and business associates abroad.
We need adequate and perhaps increased protections for
Americans in these circumstances.
The networks that will be accessed through the blanket
orders that are presumed under this Act are networks that
contain all American communications and some foreign
communications, all American communications.
Second, Americans' rights should not be reduced to the same
as those people without constitutional rights. It shouldn't go
to the lowest common denominator of the foreigner on the call.
The Americans still retain those rights. And, as we have said
before, we believe that minimization is inadequate and
constitutionally problematic as a policy matter to protect the
privacy of Americans.
In conclusion, the Center for National Security Studies
believes that 30 years ago Congress made the right judgment
with more information before it than any court has ever had
before it about what happens when there isn't a judicial check,
and we would ask you to restore these protections and
appropriate flexibility for the protection of our national
security and for the protection of our constitutional rights.
Thank you.
The Chairman. Thank you, Ms. Graves.
[The statement of Ms. Graves follows:]
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The Chairman. Now, Mr. Rivkin, you are recognized for your
opening statement.
STATEMENT OF DAVID RIVKIN
Mr. Rivkin. I want to thank the Chairman and the Ranking
Member and committee members who invited me to testify at what
indeed is a very important hearing dealing with the legislation
that is going to have some consequential and important impact.
A little bit about the past, since we can't understand
where we are now unless we talk about the past.
Before the August recess, Congress passed a 6-month fix to
FISA. I happen to believe, at least based upon everything I
have read in the media--we know that the New York Times and
other newspapers do have a pretty good access to what is going
on in the government--that the fix was urgently needed because
you indeed had a serious truncation of a collection stream
largely as a result of the fact that FISA, which was heretofore
a warrantless surveillance program that we talked about a
little bit earlier, was put under the FISA jurisdiction in
January of this year and within a few months there were some
orders by the FISA court that impaired important intelligence
collection efforts.
In response to these developments, Congress amended FISA
specifically to permit surveillance of international
communications of overseas targets without a court order, even
if that interception occurs within the United States.
Now we heard a number of my colleagues who are concerned
about privacy--so am I, for that matter--who fear that this
approach may entail the interception of communications by
American citizens; and indeed that has emerged as the pivotal
question in the FISA--long-term FISA operation.
Again, a little bit about the past. I happen to think, in
all candor, that today's fears stem from a certain ignorance
about the past. I happen to believe, with all due respect to
Mr. Baker, having looked carefully at FISA history that the
notion--and let us leave little things like the Shamrock
program aside--but the notion that I think a lot of privacy
advocates would have you believe, that Congress enacted FISA to
provide a comprehensive regulation of all or nearly all
surveillance activities, is just plain false.
If you look at the statute itself, it outlines four fairly
narrow scenarios.
The Congress in 1978 chose to deal with a discrete portion,
in my opinion--and the facts do show that--of government's
intelligence gathering. It really was focused on surveillance
inside the United States. And, by the way, there is nothing
particularly sacred about the distinctions made between wire
and radio/satellite. Both distinctions were meant as a proxy to
basically effectuate congressional desire to deal with
surveillance inside the United States conducted in large part
to get at Americans. And, let us be honest, there were some
abuses in this area and not just by the Nixon administration
but some of his predecessors, and that is what Congress
primarily wanted to get at.
So FISA generally required the executive branch to obtain
judicial orders where the actual surveillance target was
physically present in the United States. For targets located
overseas, court orders were not required before a President
could authorize an overseas wiretap with regard to radio
communications, were not required whether or not the intercept
was here or in the United States.
Now Congress knew that NSA was vacuum cleaning and indeed,
not in any pejorative sense, as large of a data stream of
foreign communications using its satellites and listening posts
overseas. Did not bother anybody.
Incidentally, apropos of all the points about American-
generated data, voice information, whatnot, getting commingled
in that stream, I wouldn't deny it. But it has always been the
case. I would kind of ask my colleagues rhetorically, what do
you think happened in 1980 if we were targeting using the
satellites, communications of somebody within Russia or China
and that person called the United States 20 times? The
communications, the American portion of the communication was
not listened to? Did it require a warrant? No, it did not. Not
at all.
We all heard about the revolution of communications and the
fiber optic systems today. It is indeed true that more of the
truly global traffic foreign-to-foreign flows from American
fiber optic networks. So we do have circumstances today with an
individual in Pakistan calling someone in Afghanistan has that
communication routed from American fiber optic systems.
Incidentally, the parties to that call do not know how
their call will be routed and are not in the best position, as
I understand it--I am not an engineer--but not in the best
position to determine what the path would be. Unlike my
colleagues here, instead of being horrified by that, I think it
is great. It gives NSA wonderful opportunities to tap into the
global communications traffic that ought to be exploited.
Now let me quickly get to the heart of this matter.
What is the privacy concern about Americans? The concern is
what I would call an innocent bystander scenario. We have a bad
guy overseas calling somebody in the United States. This person
is not an agent of al-Qa'ida, not a sympathizer. He is just an
innocent bystander. I would stipulate that it happens. What
puzzles me is that nobody seems to acknowledge that that
scenario is not an unacceptable consequence of any particular
FISA regime but it is endemic to all surveillance.
Warrants result from a process--and my colleagues love
warrants--but warrants result from a process that considers the
rights of a particular target or targets, not those who come
into contact with them.
Let me tell you something. Under a Title 3 situation, which
is the basic wiretap statute, when you get a warrant against a
given criminal, be it a member of a Colombian mafia or an
Italian mafia or just a downright criminal, that person comes
into contact daily with dozens of innocent people. Could be his
son's teacher, could be his grocer, his tailor. All of those
people get caught in a wireless surveillance net, and nobody
seems to mind that.
But the fact that the original decision to target that
person is driven by a Title 3 warrant does absolutely nothing
to protect the privacy of those other innocent Americans who,
in a lexicon of my colleagues, are being spied at. I would
rather be spied at in that way in the context of a FISA-driven
program because of the minimization requirement. To the best of
my knowledge, there are no minimization procedures in the
criminal justice system.
So this situation is not new. It is not novel. It was the
case before, and it is the case today every day. Nobody has
invented a way of discerning that a target of surveillance
culls an innocent person and turning off the tap. That does not
exist.
We heard a lot about law. We heard about the fourth
amendment. If one reads the fourth amendment, the very language
of the fourth amendment suggests that there can be
``surveillance or searchings''--is the language they use--to
provide warrants. Otherwise, it makes no sense. Because, in the
front part, they talk about unreasonable searches being banned;
and, in the second part, it talks about what is the basic
process, what are the predicates of a basic warrant. So the
fourth amendment only prohibits only unreasonable searches and
seizures.
A lot of people claim that warrantless searches are
inherently unreasonable, but that ain't so. That is not what
the Constitution says. That is not what the case law says. And
the Supreme Court over years has approved numerous warrantless
searches. There is a whole line of cases called the ``special
need'' cases. When you get stopped driving on Christmas in a
sobriety checkpoint, there is no warrant, there is no
particular suspicion. In fact, apropos of the business about
targeting, the cop who stops you doesn't know who you are, does
not know if you are a woman or man or Member of Congress. Has
no idea.
When people search lockers in--students' lockers in high
schools, they don't have any particularized suspicion that
there is some contraband in there. And Customs agents searched
you long before September 11th when you crossed the broader
thinking that maybe you didn't declare everything that you
bought in Paris. There are no warrants.
Believe me, all of those cases, all of those procedures
have been challenged; and all have been upheld. And, as a
matter of fact, unlike the kind of surveillance we are talking
about, the fruits of those searches actually get used in
criminal prosecutions.
I would challenge anybody who is stopped at a warrantless
sobriety check and found to be legally drunk, I would challenge
this person to successfully suppress this information in any
prosecution for DWI. It is not going to work.
I am tired of hearing this notion that the Constitution
requires a warrant in all circumstances.
Now the Constitution also requires reasonable expectation
that privacy be protected, not all expectation of privacy.
Again, there are lots of cases dealing with instances where
somebody is growing a marijuana plant in fairly plain sight on
a windowsill behind a picket fence and a police officer walking
by, sees it. Well, gee, there is no warrant. No, if you are
doing something in plain sight, if you are not acting in a way
that gives rise to a reasonable expectation of privacy, it
doesn't work.
I certainly don't understand why any intelligent reader of
newspapers--you heard about things like Echelon, which I am
sure you know what it is, but for those who don't it is a
cooperative intelligence program that involves half a dozen of
our allies that engage in mobile surveillance. And there are
dozens and dozens of intelligence services in charming places
like Pakistan and Saudi Arabia. So if somebody calls Peshawar
and that person does not understand that half a dozen of
intelligence services on that side of the ocean are going to
listen to him or her, that person does not have reasonable
expectation for privacy; And the law and the Constitution does
not require us to humor unreasonable expectations of privacy.
And as to foreigners, again, forgive me, the notion that if
the bad guys knew there were two compartments, two regimes, if
you did purely foreign-to-foreign communication, if you called
somebody from Pakistan to Afghanistan, you were enrolled in the
warrantless surveillance, but if you called enough times the
United States, you had, you know, whatever is the balancing
test here. If you brought enough Americans into your circle,
you would graduate into a warrant-driven program. Any bad guy,
unless he is an idiot, would call. Every spymaster in the
world, every terrorist would call the United States enough
times to order pizza or something from Borders.
So everybody would be in a warrant-driven surveillance
program in a situation where none of those people have any
reasonable expectation of privacy
Now, look, I think we should be honest. Extending the
warrant's requirement--against whom are we going to get
warrants here? We are not going to get warrants against
innocent American bystanders. You couldn't. There would be no
predicate for getting warrants. Just because you get a call
from a bad guy does not make you subject to a warrant. We are
talking about getting warrants against foreigners.
I happen to think the FISA court is not a rubber stamp. Nor
should it be a rubber stamp. Because what would be the value of
getting it?
So we are going to get warrants against--we are going to
have NSA get warrants against foreigners after they--whatever
is the threshold--called the United States enough. We
frequently don't know who they are. We don't know their age. We
don't know their real name. We may have a secondary or tertiary
idea that the individual involved may be a cousin of somebody
who knows an al-Qa'ida person. You are not going to get a
warrant against such a person. I would be ashamed to ask a FISA
court for a warrant against that person because there would be
no basis for it.
So, basically, what we are going to see is a serious
truncation, a serious decrease in the number of foreign targets
that could be serviced.
Let us be honest. What would that do? It would not be great
for our national security. Let us be honest. It would
definitely diminish the number of innocent Americans whose
conversations would be heard. That is actually the trade-off
that some of my privacy focused colleagues are suggesting.
The best way of making sure that fewer Americans get their
communications, minimization and everything incidentally
intercepted, is there are pure foreigners whom we are going to
service as targets. Because that is really the reason. If the
number of foreigners in that warrantless program is a million
and the number of foreigners in a warrant-driven program is a
million, you still are going to have exactly the same number of
Americans whom they are going to contact and the same quantity
of American information.
In order to protect a very incidental impact, in my
opinion, and privacy--and again I don't have time--but, to me,
my privacy is violated when something bad happens to me, when I
am confronted with something. Just because somebody heard my
conversation or may have heard my conversation doesn't bother
me particularly, and I suspect that is true of most Americans.
At the end of the day, privacy has to be balanced against
other societal goals and expectations, and the very least I
would urge you to do is to look at how Americans balance
privacy in other spheres. Credit card companies know more about
us than the NSA does.
Every time we have an episode like the Virginia Tech
shooting that are regrettable, there are proposals being
floated for dissemination of truly private medical information
without judicial involvement where you share this with school
administrators and whatnot. And not to minimize what happened
at Virginia Tech, but I would submit to you that the threat we
face from al-Qa'ida is somewhat higher in terms of its
consequences of this country than the threat of a deranged
gunman.
So we, as a society, can balance liberty/privacy and public
safety. But let us be consistent. Let us not adopt the position
that we should balance it one way in the context of external
threats involving al-Qa'ida, where we push the pendulum towards
the privacy side way beyond what it was in 1978. But then it
comes to other issues like Virginia Tech or drunk driving or
something like that, you know, we will do it differently
because that is a fundamental sign of dysfunction and
rationality.
I look forward to the questions.
Thank you.
The Chairman. Thank you, Mr. Rivkin, for your testimony.
[The statement of Mr. Rivkin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. In consultation with the ranking member and
pursuant to Rule 11-2(j) of the House rules and Rule (d) of the
Intelligence Committee's Rules of Procedure, there will be 30
minutes divided equally between the majority and minority staff
of questioning of the witness. Following staff questioning, the
committee will proceed with witness questioning by members
under the 5-minute rule, exclusive of the ranking member and
the chairman.
So I now yield 15 minutes under this section to Jeremy
Bash, Chief Counsel of the committee.
Mr. Bash, you are recognized.
Mr. Bash. Mr. Baker, you started at the FISA office in
1996, and you were the seventh attorney supporting intelligence
operations there, is that right?
Mr. Baker. That is correct.
Mr. Bash. And you ran the FISA office as counsel for
intelligence policy for nearly 7 years during the Bush
administration.
Mr. Baker. Clinton and Bush administrations, that is
correct.
Mr. Bash. Did FISA provide the government with timely,
actionable intelligence on terrorist targets after 9/11 during
wartime?
Mr. Baker. Yes. As I suggested in my oral statement today,
we obtained quite a bit of actionable foreign intelligence,
which to me means timely, pursuant to the FISA process.
Mr. Bash. The FISA office is sometimes characterized or
caricatured as creaky, outdated, not keeping pace with
technology. What is your response to that?
Mr. Baker. We have also been called a rusty gate, other
things like that, too.
I don't think that was accurate, those types of
characterizations. As I said in my oral remarks, we were able
to construct a process that I think at the end of the day
provided the Intelligence Community with a lot of actionable
intelligence.
At the same time, you can always do more if you have more
resources. And so I think if you go back and look at the
history of OIPR, we have grown over time, especially since 1996
until I got there, certainly until today; and the more folks
you have, the more you can do.
Mr. Bash. Some have suggested that the FISA operation is
very slow to approve surveillance in ``no kidding''
emergencies. Under FISA, the Attorney General can authorize
emergency approvals. Can you walk us through how fast that can
happen?
Mr. Baker. Well, I think I have testified in this committee
in closed session before about the process. We try to make it
as quick as we possibly can. There are a number of different
things going on. But let me back up.
So the Attorney General can authorize--and Attorney General
here means the Attorney General, the Acting Attorney General,
the Deputy Attorney General or the Assistant Attorney General
for national security. So any one of those folks can authorize
an emergency FISA.
The way it works is--I am sorry--and it goes for 72 hours,
and if you want to use that material or continue the
surveillance or the search, you have to go to the FISA court
within that--or by that time.
So we work with the Intelligence Community to understand
their needs and prioritize their requests. So often what will
happen is we will work on dual tracks. So the Intelligence
Community will notify us, hey, there is an emergency that we
are working--we can see already that we want to do an emergency
surveillance, let us say. We are working, in particular, let us
say, the FBI. We, the FBI, are working to put our ducks in a
row from a technical basis to implement the surveillance
because it takes a little time. And while they are working on
technical stuff, we are working on the legal stuff. The idea is
that the trains cross the finish line at the same time, and
when they are ready to go, we are ready to go, and we call the
Attorney General, and that is it.
Mr. Bash. How fast can it happen in an emergency?
Mr. Baker. It can happen extremely quickly. We have done it
in a very short time, minutes sometimes. That is when you have
everything ready, everybody has been working together, and they
are not ready to go with the collection until they tell us. It
is done in hours. It is done in the same day. It is done as
fast as they tell us they need it.
Mr. Bash. Directing your attention to the administration's
bill, which has been called the PAA, is there anything in the
PAA that streamlines the FISA process or the traditional FISA
process, anything that would accelerate the approval of FISAs
in emergencies?
Mr. Baker. I don't think that it--well, in terms of a
traditional FISA emergency--I mean, there are emergency
provisions built within the PAA for the PAA type of collection.
For traditional emergencies, I don't see anything in there to
do that, no.
Mr. Bash. In a letter to the chairman last week, September
14th, Assistant Attorney General Ken Wainstein, wrote that the
language of the PAA does not authorize physical searches of the
homes or effects of Americans without a court order. Do you
agree with that reading of the statute?
Mr. Baker. Physical searches of the homes or effects of?
Mr. Bash. Americans without a warrant.
Mr. Baker. Well, under the PAA, it is a somewhat
complicated analysis to get to that question.
Let me say first that--and I am aware that there has been a
letter. I haven't had time to study it, quite frankly. What I
would say is a letter from the Assistant Attorney General for
national security for the Department, while not an opinion from
OLC or an opinion from the Attorney General himself, it is
obviously within the executive branch, going to carry a lot of
weight. So it would seem to me that it would be--were the
administration to change its view on that, it would have to
explain that, I guess, to the FISA court or----
Mr. Bash. In your reading of the statute, do you believe
the statute, the plain meaning of the statute, could be read to
authorize physical searches inside the United States without a
warrant?
Mr. Baker. It is a complicated analysis; and if you want me
to walk through it, I can.
I think the short answer is that if you take an aggressive
reading of the statute and you presume that you are going to be
directing your surveillance at persons overseas and yet somehow
looking for their communications in the United States on
communication equipment or related equipment and you can
somehow work your way through the statute to obtain the
assistance of a communication service provider or other person
but you have got to go through all of these different steps,
you can construct an argument that the statute allows something
like that.
But again, as I understand it, Mr. Wainstein has said that
the executive branch is not going to interpret it that way, and
that I think is binding on the executive branch right now.
Mr. Bash. Have you been in a situation or a crisis where
there is a strong push in the executive branch to push the law
to its logical limits?
Mr. Baker. Over the years, I have been in situations--many
years--where aggressive and well-meaning attorneys throughout
the government push aggressive interpretations of the law.
Mr. Bash. And have you argued matters in the FISA court?
Mr. Baker. Many times.
Mr. Bash. In interpreting FISA, would they look first at
the plain meaning of the statute or would it first look at a
letter from Ken Wainstein for guidance on what the statute
means?
Mr. Baker. Well, I guess if Mr. Wainstein is on record
already, it is going to look at that in terms of his
interpretation.
Mr. Bash. Does his letter have the force of law in the eyes
of the court?
Mr. Baker. In the eyes of the court, no. It is not an act
of Congress. It is not a judicial decision. As I say, it has a
binding effect on the law as it is implemented or enforced by
the executive branch.
Mr. Bash. You were counsel for intelligence policy on 9/11?
Mr. Baker. That is correct. I was acting counsel.
Mr. Bash. And when the White House decided to establish a
surveillance program outside of FISA, you were not consulted;
is that right?
Mr. Baker. We are talking about the terrorist surveillance
program? Well, the terrorist surveillance program was already--
it was already in existence when I was informed of it.
Mr. Bash. So you were informed of it after it was already
in existence.
Mr. Baker. That is correct.
Mr. Bash. So when it started, you were not briefed into it?
Mr. Baker. Well, it was our--I guess the only thing I can
say in a hearing today, I was not aware of it. It was already
in existence when I became aware of it.
Mr. Bash. Do you think that those who established the NSA's
surveillance program on the grounds that FISA may not have been
agile or fast enough might have benefited from the perspective
of the person who had been running FISA operations within the
government?
Mr. Baker. Well, I obviously had a lot of experience with
FISA and knew what we were capable of at the time, I guess is
the only way I can answer that question.
Mr. Bash. Your former colleague, Jack Goldsmith, head of
the Office of Counsel Legal, writes in a forthcoming book that
Vice President Cheney's Chief of Staff said, quote, we are one
bomb away from getting rid of that obnoxious FISA court. Is
that quote accurate?
Mr. Baker. I don't believe that today I can--that I am in a
position to confirm or deny exact quotes about what people
said.
Mr. Bash. Do you have knowledge of the accuracy of that
quote, but you cannot confirm or deny? Do you have knowledge of
the accuracy of that quote?
Mr. Baker. I have knowledge of the accuracy of that quote,
I guess.
Mr. Bash. Goldsmith also says that the people in the
administration treated the FISA the same way they handled the
other laws: Quote, ``They blew through them in secret based on
flimsy legal opinions that they guarded closely so that no one
would question the legal basis for the questions.''
Were you one of those questions whom they guarded those
flimsy legal opinions from at the outset of the program?
Mr. Baker. Well, as I said, the program was already in
existence when I found out about it. Over time, over time I had
access to legal opinions with respect to the program.
Mr. Bash. Those would be the Office of Legal Counsel
opinions?
Mr. Baker. Well, I think I would like to say I had access
to legal opinions with respect to the program.
Mr. Bash. If committee members wanted to understand the
administration's rationale for the program, would it be
beneficial for the committee members to review those legal
opinions?
Mr. Baker. Well, I mean, I am obviously in a difficult
position here. I think the answer is that in order to
understand what happened, it is helpful to understand the legal
thinking behind it.
Mr. Bash. Do you know if they had been provided to the
Congress?
Mr. Baker. My understanding is from the Chairman's remarks
earlier that they had not been provided.
Mr. Bash. Mr. Dempsey, in an interview in the El Paso
Times, August 22, 2007, the DNI explained the three provisions
that he sought in the legislation. He said, ``I was after three
points: first point, no warrant for foreign or overseas.'' Let
me stop there.
Do both the Democratic leadership bill, H.R. 3356, and the
administration bill eliminate the requirement for individual
court orders for foreign targets overseas?
Mr. Dempsey. Yes, they both did that.
Mr. Bash. Second, the DNI says ``liability protection for
the private sector,'' and by that I think he clearly meant
lawful compulsion of the private sector. Do both the Democratic
leadership bill, H.R. 3356, and the administration bill provide
for lawful compulsion?
Mr. Dempsey. The PAA doesn't address the issue at all. The
administration has pushed the bill that would provide both
prospective immunity, which is in 3356, and the administration
bill would also retroactively forgive the companies, give them
immunity for their violation of FISA.
Mr. Bash. But the PAA and the Democratic leadership both
address the issue of compulsion?
Mr. Dempsey. They both address--well, PAA does it through
an Attorney General order. The H.R. 3356 does it through a
court order.
Mr. Bash. In your view, is a court order a better mechanism
for compulsion?
Mr. Dempsey. I think it gives the companies greater
certainty. One of the purposes of the exercise here is to
provide clarity and certainty.
Mr. Bash. Further, the DNI says there must be a requirement
to have a warrant for surveillance against the U.S. person. Do
both the Democratic leadership bill and the administration
bill, provide for obtaining the warrant requirement for
surveillance against U.S. persons?
Mr. Dempsey. Well, the whole question turns on what you
mean by ``against a U.S. person.'' The administration bill, the
PAA, has a very narrow definition of what is surveillance
against an American person. The 3356 bill has, I believe, a
more balanced and appropriate view of when an individualized
warrant should be required, and it has a mechanism for ensuring
that those orders are sought appropriately.
Mr. Bash. On balance, given those three criteria that the
DNI laid out, which bill, the PAA or the Democratic leadership
bill, did a better job at accomplishing those three objectives?
Mr. Dempsey. I think by far the more balanced bill is what
you referred to as the Democratic bill, H.R. 3356.
Mr. Bash. Ms. Graves, let me just close with you. Under the
PAA, can the executive branch monitor, without a warrant,
telephone calls between an American citizen in, say, Florida,
talking to his sister in Spain?
Ms. Graves. Definitely.
Mr. Bash. Can the executive branch read, without a warrant,
the e-mails of a doctor in Chicago with his colleague in
Toronto?
Ms. Graves. Yes.
Mr. Bash. Let me push the hypothetical a bit. Would the PAA
authorize the government to monitor, without a warrant, all the
communications between a city, say, in New York and another
country, say, England without a warrant?
Ms. Graves. All the communications between the U.S. and any
other country.
Mr. Bash. Could the PAA authorize physical searches of
Americans' homes?
Ms. Graves. It certainly is ambiguous with respect to the
term ``acquisition,'' and we do not believe that ambiguity
should be allowed to stand.
Mr. Bash. What about with respect to offices and computer
hard drives?
Ms. Graves. It certainly seems to reach that.
Mr. Bash. Medical records, library records or financial
records, would the PAA authorize warrantless collection of
those?
Ms. Graves. Without limitation, they are not specified or
carved out.
Mr. Bash. In all those hypotheticals, who would make the
determination as to who would be appropriate targets for
surveillance?
Ms. Graves. Solely the executive branch, the Attorney
General and the Director of National Intelligence.
Mr. Bash. Would that determination be reviewed by a court?
Ms. Graves. No.
Mr. Bash. Would that determination be reviewed by Congress?
Ms. Graves. No.
Mr. Bash. The final question is, would that surveillance
ever be reported to Congress?
Ms. Graves. No, certainly not, if past history is any
indication of the level of cooperation or information.
The Chairman. Thank you, Mr. Bash.
For the members, we have three votes that have been called.
There is about 7 minutes left. The Journal is the first vote;
the previous question on the FHA bill is the second vote. That
is a 5-minute vote. And then the rule on H.R. 1852, the
Expanding American Homeownership Act. That is also a 5-minute
vote.
I am going to recess the hearing for members to go vote,
then welcome back and recognize Mr. Donesa. When we come back,
we will recognize the minority side for their 15 minutes. With
that, we recess the hearing for about 20 minutes.
[Recess.]
The Chairman. The committee will please come to order. The
Ranking Member has requested that he be allowed to control the
15 minutes of minority staff time.
With that, I now yield 15 minutes to the Ranking Member,
Mr. Hoekstra.
Mr. Hoekstra. Thank you, Mr. Chairman.
I just returned from a trip to Iraq and Afghanistan and
talking to our intel folks and our military folks. It became
clear--and this hearing bears it out--if this was a war that
was going to be fought by the lawyers, we would have won a long
time ago. We are fighting a war, and we are lawyering up the
process.
But just a few questions, Mr. Baker. On October 25 of 2001,
were you briefed in on this program?
Mr. Baker. October 25, 2001, I don't remember. I was
briefed in the latter part of 2001. I don't remember----
Mr. Hoekstra. I am just wondering--October 25, 2001 is when
Porter Goss, Nancy Pelosi, Graham and Shelby were first briefed
in and asked to participate and provide their feedback on the
program.
So the second time that they were briefed, November 14,
2001, Porter Goss, Nancy Pelosi, Graham and Shelby, would you
have been read into the program at that point in time?
Mr. Baker. I believe it was in that time frame that I was
read in, somewhere in that time frame, October, November.
Mr. Hoekstra. These folks--I will correct the record--
Speaker Pelosi was briefed at least four times within the first
year of the program as this program was being designed.
In your experience, is it unusual for--maybe you can't
answer it, but would it be unusual for the Chair and the
Ranking Members of the House Intelligence Committees to be
briefed on and to consult with the executive branch on national
security issues that might not be extensively throughout either
the Congress or throughout the executive branch?
Mr. Baker. My understanding is there are regular briefings
for the Chair and Ranking, and sometimes staff directors on
both sides, and that takes place on a fairly regular basis. I
have attended some of those.
Mr. Hoekstra. Was that limited exposure in executive branch
and in Congress?
Mr. Baker. There are very few people that attend those.
Mr. Hoekstra. Thank you. You indicated that the Weinstein
letter had a lot of merit and would have a lot of impact; is
that correct?
Mr. Baker. Certainly within the Department of Justice, the
executive branch, I think it would carry a lot of weight. As I
said, it is not an Attorney General opinion or Pelosi opinion.
Mr. Hoekstra. It wasn't----
Mr. Baker. It is not an act of Congress or a ruling.
Mr. Hoekstra. Right. But the interpretation is there.
Mr. Baker. It is binding, certainly, on the Department of
Justice and on the executive branch.
Mr. Hoekstra. I think I would also like to submit for the
record the letter that we just got on September 17 from the
Office of Director of National Intelligence that responds to a
letter, I think, or a request that we put in to him from Mr.
Joel that talks about a number of issues, and he references the
Weinstein letter a number of times.
The Chairman. Without objection.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Hoekstra. Thank you, Mr. Chairman.
In the Weinstein letter, we ought to just be clear in the
extent--you said you have not had an opportunity to study it or
read it, correct?
Mr. Baker. Correct.
Mr. Hoekstra. Here are parts of what that letter says.
In his interpretation, the Protect America Act leaves in
place FISA's requirement for court orders to conduct electronic
surveillance directed at persons in the United States.
So it does leave in the FISA restrictions. The Protect
America Act does not authorize so-called domestic wire-tapping
without a court order. He asked, in the letter it says, again
quoting, ``Does the act authorize physical searches of domestic
mail, without court order, of the homes or businesses of
foreign intelligence targets located in the United States, of
the personal computers or hard drives of individuals in the
United States? The answer to each of these questions is, no,
the statute does not authorize these activities.''
It goes on to say, ``It is therefore clear that the act
does not authorize physical searches of the homes, mail,
computers and personal effects of individuals in the United
States, and the executive branch will not use it for such
purposes.''
I don't think it came up in the testimony of any of the
witnesses, but, you know, one of the discussions that has been
taking place over the last 6 weeks, again, with what I think,
people just saying, I think it was Mr. Baker, you said people
could construct an argument, you know, that would lead people
to a different conclusion than what Mr. Weinstein says, but I
think others have described it to us as being a very tortured
argument to get there. Obviously Weinstein is not making that.
But in terms of reverse targeting, here is the position of the
Department of Justice: ``It would remain a violation of FISA.
The government cannot and will not use this authority to engage
in reverse targeting.''
I think your point is right on, because if you take a look
at the letter from the DNI's office, is, they reference the
judgments by the Department of Justice that they are putting in
place the proper procedures and the rules to make sure that,
you know, nobody in the Intelligence Community violates the
interpretation.
Now, for the letter to come out from Justice, does
Weinstein just kind of look at it and write it out? How
extensively does this get vetted before it comes back to go to
Congress?
Mr. Baker. I would certainly hope, and it usually was the
case in the past, that these kinds of letters are vetted very
carefully within a variety of different offices inside the
Department.
Mr. Hoekstra. Yes, it gets extensively reviewed. I think
that is one of the frustrations sometimes we have with the
executive branch, that to get anything out of the executive
branch, just about anybody who tangentially touches it has a
say in it before it is completed.
Mr. Baker. I would also expect, I am sorry, that it would
have been vetted through the Intelligence Community as well.
Mr. Hoekstra. Would career staffers have reviewed this
document as well, typically?
Mr. Baker. I don't want to overstate what I know about the
provenance of this document. I just don't know. Normally, at
least when I was there, I was called upon to read a variety of
different letters and statements over time; statements, people
coming up to Congress and so on. I have been gone for the past
9 months, though, so I don't want to overstate what I know
personally.
Mr. Hoekstra. You also testified that FISA provided timely
and actual intelligence when requested. You also used some
words that, you know, ``it takes a little time,'' I wrote down.
I don't know what exactly your words were, but I think it was
something like it goes really fast when everything is ready.
What does that mean, ``everything ready''?
Mr. Baker. Well, I have been thinking about that during the
break, Mr. Hoekstra. As I testified, when you were Chairman, I
testified about this process at length, and I think it took us
a while, I think, actually to get through and for me to give a
full and complete--what I believe at the time was a full and
complete explanation of how the emergency process works.
The emergency process, there are complications to it. I
don't mean to sit here today that you push a button, or it is
not like click ``buy now'' on the Internet. It does take time.
So the Intelligence Community has to do their
investigation, make a judgment about what targets they want to
pursue. When they have done that, and when they have reached a
point where they realize that they need to do collection
immediately, they start talking to us.
Then we work through the legal facts, the legal issues, the
factual issues, at the same time that they are dealing with the
technical stuff that they need to do. Then when all that is
ready and they tell us we are ready to go, and they say, ``Yes,
we resolved all legal issues, we have no problem, call the
Attorney General,'' calling the Attorney General and getting an
answer back, that is not like super time-intensive, unless it
is a complicated case.
Oftentimes we will go down and prebrief the Attorney
General what the case is all about, what the request will be,
so that when the call comes it can happen quickly.
Mr. Hoekstra. I think that is the reason I came back to
this is, I don't specifically remember your testimony, but I
agree, the Justice Department can put in approval processes
that are very quick, because you have got a number of people
that can approve these emergencies. It is a phone call, you can
do the prebriefing, and so when you finally get the 1- or 2-
inch packet of information that the Justice Department
attorneys have worked on with the Intelligence Community, it is
kind of like, yes, it is done, you know it is coming and those
types of things, but there may be extensive work required to
get to that point.
Mr. Baker. That is what I tried to suggest in my opening
remarks, because none of this is easy, none of this is cost-
free. There are lots of people working all the time, and have
been for lots of years, on this stuff. We have done everything
we can to expedite it. These things are posted on a secure Web
site. We look at them.
There is lots of things posted and back and forth on the
Intelligence Community, so everybody on both sides, DOJ and the
Community, worked really, really hard to cut out unnecessary
steps and unnecessary delays.
Mr. Hoekstra. When you go through that process, the first
part takes some time. I think that is probably why the current
Speaker and others in the congressional community, along with
the folks in the executive branch, decided that with the threat
that they faced in 2001, the threat that we continually face,
speed is an option. And it is not always getting all of that
information done--is not necessarily the most effective way in
dealing with the issue.
I think we have had someone who comes in with the FISA
applications, who said that, you know, quite often, in the
Intel Community, taking 2 weeks to prepare and get the package
ready is not unheard of. It is probably more of what the time
typically takes.
Mr. Baker. My answer to that is we are constantly
prioritizing our work based on what the Intelligence Community
needs. So the things that they need first and they tell us they
need first we do those first. Or they did when I was there.
Second, as I suggested, it is not unlimited resources, and
what jumps in front of the line is going to push other things
back. So sometimes the folks working on those other cases don't
understand exactly that other things have jumped ahead. They
can get frustrated--we know that--and they can try to deal with
it.
Mr. Hoekstra. It can be difficult, because I am assuming
you believe that the threat is not just Afghanistan-based, it
is not just Pakistan-based, it is not just Iraq. There are
other places out there. We just had the takedown of a threat in
Germany; Denmark, a year ago. We had the threat out of the U.K.
For a lot of these streams or threat streams, you don't
necessarily know which one is the priority, and there is a lot
of uncertainty associated with each of these.
You also testified, and I think you have helped clarify
that, exactly how the FISA process worked, because obviously
not everybody necessarily agreed that it was--I think you have
just said the same thing--it is not necessarily fast and agile.
Are you aware of any comments of General Hayden, who was at
that time the head of NSA, any comments that he might have made
about the FISA process and the statements that he would have
made publicly?
Mr. Baker. I can't remember specifically. I know General
Hayden has spoken about these issues. I can't remember a
specific statement about that. It wouldn't surprise me that he
commented on that though.
Mr. Hoekstra. There are others within the Intelligence
Community, when they looked at the threat, when they looked at
the kinds of folks we are facing in these types of things,
that, you know, they reached the conclusion that the FISA
process wasn't working.
I think that is the case that, you know, General Hayden
made to the political leaders in the executive branch. But that
is also the argument that he made to the congressional
leadership back in 2001, saying that, you know, with the kind
of threat that we have out there, it just doesn't work. I think
that is why for 4 years, until The New York Times reported the
existence of the program, the congressional leadership
supported this.
Mr. Rivkin, during your experience in the executive branch,
what was your experience with FISA?
Mr. Rivkin. Well, Congressman, I was like Peter, I have not
been involved in individual applications, but I have been
involved in the White House Counsel's Office, my days at
Justice, the general intelligence policy issues. My view,
frankly, is the whole debate about how rapidly the system can
move is not the biggest problem, because you can give more
resources, you are going to have 20 emergency applications
going forward.
The problem is, in my opinion, quite different. The problem
is, if you are going to go for warrants, you limit dramatically
the range of circumstances where you wouldn't even bother
getting an application going. Because, look, I actually believe
that war means something real; it is not just it is a good idea
to go.
There is a whole range of scenarios where you cannot get a
warrant, because the individual involved is not guilty of
anything. Not only the person, not a member of al-Qa'ida, or an
al-Qa'ida sympathizer, he may just be an independent bystander
who happens to have information about a person who is a
relative of a member of al-Qa'ida that you might want to get.
Remember, in all those emergency situations, you basically
have to convince the Attorney General that he can attest that
warrant--or, excuse me, warrant would be attainable. There are
many circumstances where you just cannot do it. You are
missing, you are really focusing, you are drilling down on a
portion of the spectrum of warrants that can be issued, and you
are overlooking the ones that cannot.
Mr. Hoekstra. It is very similar to when I first joined the
Intelligence Committee and started talking with the folks out
in the field about the chilling effect of the Deutsche
doctrine. I don't know if you are familiar with the Deutsche
doctrine, back in 1996, where then-President Clinton said we
really don't want to recruit people with criminal or human
rights violations, and the end result is that it had a chilling
effect on all types of collections.
Mr. Rivkin. That is a perfect analogy. You are arbitrarily,
in a wholesale fashion, dismissing the whole range of
collection, a portion of collection that could have been
useful.
Mr. Hoekstra. Thank you.
The Chairman. Thank you, Mr. Hoekstra.
I wanted to make a couple of points.
Mr. Baker, the letter that Mr. Hoekstra was referring to,
that with the new Attorney General coming in, could he have
that letter pulled and substitute something else for you?
Mr. Baker. Since it is an interpretation of the Department,
somebody at Mr. Weinstein's level or higher is going to have to
reverse it. It could be the next Attorney General, it could be
anybody, but they are going to have to do it. They are going to
have to then, it seems to me, explain--the new folks would have
to explain why it is that they are not going along with the
interpretation set forth in the letter that we are talking
about.
The Chairman. So it could be pulled?
Mr. Baker. I guess, Mr. Chairman, the way I read it is it
is binding on the executive branch today. It is not binding for
all time.
The Chairman. The other issue that I want to mention
briefly, and then I want to ask a few questions as it relates
to the Ranking Member's comments, is that I just wanted the
record to reflect that the case that was just made in Germany
and Denmark was made under the old FISA law, in fact. So if
anybody says that FISA doesn't work, I would refer them to the
latest case that was done by FISA.
Thank you, Mr. Baker.
Mr. Dempsey and Ms. Graves, what do you believe are the
biggest flaws in the administration's bill or the PAA?
Mr. Dempsey. I think the biggest flaw is the lack of any
reasonable checks and balances. We are trying to develop here a
balanced system that provides the speed and agility that the
intelligence agencies need, but at the same time provide some
form of oversight.
Under the Protect America Act, there really is no role for
the judicial branch of government.
There is a court order approving the procedures. It comes
after the fact. It has no compulsory power, it is only on a
clearly erroneous standard.
There is no after-the-fact review even of how the order is
then implemented, about how the program is implemented.
I think that we can do a lot better to preserve the speed
and agility to get the intelligence in a timely fashion, but
also to make sure that the program is being properly
implemented and the judicial branch under our system has a
critical role in that, and that is lacking from the Protect
America Act.
Ms. Graves. I would add that it is very clear to us that it
allows warrantless secret searches of American communications
without any after-the-fact or meaningful review. It eliminates
prior judicial authorization and subsequent judicial
authorization. It requires no individualized determination of
probable cause for the Americans involved.
It requires no specification of the individuals or the
phone lines that are to be surveilled. It also may have an
impact on the use of this material in subsequent criminal
prosecutions. It allows access, notwithstanding the statements
of Mr. Weinstein, to stored communications records, which are
the content of your e-mails and phone calls, that are stored by
Internet search providers and telephone companies, with no
court orders or judicial oversight.
The pen register rules are affected as well, and in that
regard it allows the government to secretly retain the call
record information and other revealing data on thousands or
millions of American communications, with no judicial oversight
to conduct traffic analysis and create maps of the associations
and contacts of untold numbers of Americans.
It utterly lacks meaningful, independent oversight either
for the courts or this body.
The Chairman. If we revise the new act, what are the most
important provisions for us to modify, Mr. Dempsey and Ms.
Graves?
Mr. Dempsey. I think that at the initial stage, the court
review should be more probing than the review provided in the
Protect America Act. That is not specific targeting. We are not
talking here about giving the court, in the first instance,
prior control or prior approval over specific selection of
targets overseas, but, instead, a review of the mechanism by
which the government picks and chooses among which
communications with Americans will be intercepted. And, then,
secondly, a process of reporting back to the court, sort of
like a traditional return on service or, like currently occurs
under FISA, a report back to the court periodically about how
the program is being implemented so that the court and the
administration can determine when a particularized order is
necessary, if it becomes clear that a particular American or an
American is being affected.
So it is both somewhat more stringent prior review and then
ongoing monitoring by the court of the implementation of the
program. Both of those are lacking from the PAA.
Ms. Graves. I would suggest that the starting point would
be H.R. 3356 with additional critical protection for Americans'
communications, including individualized court orders before
the fact or after the fact, and additional mandatory oversight
by Congress, not optional, of significant things, including the
number of Americans affected.
In addition, I would say that I think it is virtually
impossible to fix the PAA, because it has utterly supplanted
the structure of FISA and the definitions of electronic
surveillance which are the key in FISA to when the warrant
requirement kicks in.
We believe that surveillance must be carried out within the
FISA structure. There should not be any change to the
definition of electronic surveillance. We believe that the
carriers must have responsibility for sorting the
communications and ensuring that the NSA is given access to
what they are entitled to. Not everything. Initial
individualized court authorization is essential to any access
to U.S. switches.
We believe that when the government intentionally acquires
the communications of persons in the U.S., not targeting,
intentionally acquiring communications of persons in the U.S.,
that they need to have court oversight; and that we believe
that there must be limited exceptions, but more flexibility for
true emergencies and additional resources that are utterly
lacking in the PAA that are represented in previous versions
that have been proposed by Democratic members of this
committee.
We also think that it is essential that there be
meaningful, mandatory and frequent reports to Congress, and the
courts with an IG audit required on a regular basis; in
particular, with a focus on the number of Americans whose
communications are being swept in, even under a revised regime.
The Chairman. Also, Mr. Dempsey and Ms. Graves, do you
believe that Congress should pass permanent changes to FISA
before this current act sunsets next year?
Mr. Dempsey. Mr. Chairman, I really think you are going to
have to take your time on this. I am not saying that the PAA
should expire. I think that the Speaker has put you on a very
tight time frame.
I think there are a lot of unanswered questions here. I
don't think that the PAA, the Protect America Act, is a good
starting point. I think there are some fundamental flaws in the
way the statute works, and you have to have a five-page letter
from Mr. Wainstein saying what it does and doesn't mean: use of
terms like ``directed at'' that aren't defined, and
``concerning;'' the whole notion of trying to do this by
carving something out of the definition of ``electronic
surveillance'' and then creating a procedure for things that
are not electronic surveillance.
It is a very, very confusing statute, I think, to get this
right, to respond to the technological changes that have
occurred, to truly meet those core criteria of the DNI, also
addressing the security problem. Now is this really a huge
question: how is this being implemented in the
telecommunications networks, and are we creating a certain risk
of vulnerability by changes that might be made in the
communications networks to cooperate with this?
So there are a lot of issues that the committee is going to
have to go through here. I am not sure that it is going to be
possible to put a few little things on the PAA.
I think that H.R. 3356 is a starting point for a proceeding
here.
At the end of the day, though, it may be that the issues
can not be fully resolved in this Congress. Honestly, there may
have to be an extension of the Protect America Act and not a
permanent authorization of it to give it more time.
We still don't have those court orders, so we are still not
really sure what is the problem that we are trying to fix.
The Chairman. Ms. Graves.
Ms. Graves. I would say that it definitely should not be
made permanent. The PAA should not be made permanent. We
believe that the Congress should start by obtaining the
information of past surveillance activities that many Members
of this Congress believe are in violation of the law; obtaining
legal opinions, not just the letters, of current assistant
attorney generals. And as a former deputy attorney general, I
can certainly tell you that my AAG's opinions didn't stand in
the next administration, and wouldn't have stood, necessarily,
for the next AAG.
But I would say that it is critically important that not
only Congress have key information that you are entitled to. If
the Department of Justice can do a white paper on its legal
views, it can certainly share it OLC opinions, thousands of
which have been shared with Congress in history, including many
legal opinions during the Reagan administration, I would point
out.
But beyond that, I would say that it is critically
important that you and the American people have a certain
amount of information about what happened and about the effect
on Americans, because we don't they think that it is possible
to have this debate, and permanently change the structure of
FISA, revisit or revise the fundamental determination of
Congress about the constitutionality of requiring warrants in
this area without that information.
The Chairman. Thank you. Finally, what do you two think are
the essential protections that we should have in any FISA
legislation?
Mr. Dempsey. I think the key standard has to be that of
checks and balances and creating the system of flexibility,
speed and agility, but at the same time having all three
branches of government involved in the oversight of this.
Minimization is part of the answer, but only part of the
answer.
Minimization overseen by a court is far better than
minimization in the sole discretion of the executive branch.
The Protect America Act leaves the definition or the drafting
of minimization rules and their implementation solely to the
executive branch.
I think the key guiding concept here is a workable system
of checks and balances, starting with some kind of court
approval for a program, and then followed by court supervision
of that program.
You clearly have to address the immunity issue. I think
companies should have immunity for cooperating with lawful
surveillance, but I think the statute is meaningless if it can
be ignored and if people can expect retroactive immunity for
activity outside of the structure of the legislation.
Otherwise, what are we doing here? We are passing a law
that can be ignored. Even if the Protect America Act were
completely renewed in its splendor, if we then give the
companies retroactive immunity, a future Attorney General can
go outside even of the PAA, and the companies might expect that
they would be granted retroactive immunity for that as well.
I don't think it should be ruinous liability. I think that
needs to be addressed. We need to find some way to make sure
there is a consequence, but clearly no one wants to put phone
companies out of business.
Ms. Graves. I would say that in addition to the points I
mentioned about the structure of FISA and preserving individual
warrants, that clarity is absolutely essential. We have great
respect for the NSA linguists, analysts and technicians who are
doing their job every day to keep the country safe.
But their job is to collect against requirements. When
those requirements are ambiguous and overly broad and increase
the effect on American communications, we need tighter rules,
better rules, with flexibility but not limitless elasticity,
which is what the PAA involves.
We think that the mandatory oversight by the courts, before
the fact or after the fact, and mandatory reporting to every
member of this committee--not selectively, not when the
administration wants something and they need to give you
something before they are going to testify, but mandatory and
regular reporting of this committee--is essential.
The Chairman. Very good, thank you. Mr. Hoekstra.
Mr. Hoekstra. Thank you, Mr. Chairman.
Mr. Rivkin, are you familiar with the case of the Supreme
Court, the United States v. Verdugo?
Mr. Rivkin. Yes.
Mr. Hoekstra. I find it interesting, I just want to pursue
this a little closer. What I find here is that we have got
people who are at least alluding to the fact that we ought to
be extending fourth amendment protections to foreign
individuals, non-U.S. citizens outside of the United States.
What Verdugo says is we think that the text of the fourth
amendment, its history and our cases, discussing the
application of the Constitution to aliens and
extraterritorials, requires rejection of the respondent's
claim. At the time of the search he was a citizen and resident
of Mexico, with no voluntarily attachment to the United States,
and the place searched was located in Mexico. Under these
circumstances, the fourth amendment has no application.
It also goes on: Application of the fourth amendment to
those circumstances could significantly disrupt the ability of
the political branches to respond to foreign situations
involving our national interest. I think the Supreme Court has
pretty clearly identified that.
If we take a look at where some want to go in applying the
protections of the fourth amendment to foreign individuals, I
think you alluded to this a little bit on targeting. In a
criminal case, if I have been targeted in the United States,
and there is a warrant against me, or a warrant enabling me to
be surveilled, if my child's teacher calls me today, is that
going to be listened to?
Mr. Rivkin. Of course. And any number of individuals who
call you, whom you contact.
Mr. Hoekstra. Earlier today someone said, well, you know,
we know who is calling, we ought to know. We have the
opportunity to go through that.
That is not true. You call a number, and it may be
located--you are calling from Afghanistan, and you may be
calling from what you think is a cell phone that at that point
in time may be located in Germany, but you don't know who is
going to answer it. You don't know who is going to be on the
other end of the line, and you are not really sure, and you are
not going to be positive as to where it is going to be located;
so it is the same kind of thing. Isn't that correct?
Mr. Rivkin. That is absolutely correct. I know a number of
people, I have a good friend who used to be a foreign
Ambassador. He got a mobile phone with area code 202 because
enough people remember it. A person has been gone for 8 years
and still uses the same area code.
When I get a call from him, and it registers on my mobile
phone, it says 202, I don't know if he is calling from Germany
or if he is in New York. All the notions about you know how to
reach the phone number, I mean, unless we are in science
fiction mode, you do know which phone number you are calling.
But you have no idea, just by looking at that number, where
that person is. You think frequently you have to look at the
conversation's content to realize that person is near Lake
Cuomo and not Lake Wobegon.
Mr. Hoekstra. So it is very difficult, it is impossible to
design a fail-safe system. I am assuming that, you know, they
say--for those that would argue and say, you know, get a FISA,
under a FISA, there would be other Americans that would be
listened to; is that correct?
Mr. Rivkin. That is absolutely correct. Quite frankly,
again, it is difficult. We need to have somewhat more
transparency, no pun intended, in this discussion. I suspect, I
could be wrong, that the reason people are talking about
putting most of the surveillance of overseas targets under
warrant is because they know it would shrink the intelligence
stream.
As I said in my prepared remarks, let's assume there is a
relationship in the number of foreigners you surveil and number
of Americans; what is the ratio. If you surveil 1 million
foreigners, you are going to capture a big chunk of American
communications. If you surveil one-tenth of that, you would
only capture one-tenth of a chunk.
So I think when people who want to protect the privacy of
innocent Americans, quote, unquote, are really talking about
reducing the number of foreign targets, which is a stunning
situation, the first time in the history of this type of a
statute we are talking about deliberately limiting the quantity
and quality of our collection. That is absolutely stunning.
We have to be--because, look, if we do not diminish the
number of foreigners we listen to, the fact that they are being
listened to under warrant does precious little to protect the
privacy of Americans who get caught by virtue of being
communicated by that person.
The privacy of persons is being affected by minimization,
by oversight. What difference does it makes to you,
Congressman, if you get a call from somebody who is being
surveilled under warrant versus somebody who is not being
surveilled under warrant, as long as their conversation is
being listened to by virtue of the targeting being done by that
person? Makes no difference. Wouldn't make any difference to
me.
Mr. Hoekstra. The incidental collection of U.S. citizens,
did this start under the terrorist surveillance program?
Mr. Rivkin. Of course not.
Mr. Hoekstra. Did it start, you know, under FISA in 1978,
1978, 1979 when that originally passed?
Mr. Rivkin. No, I don't think--and as I mentioned in my
prepared remarks, Congressman, incidental collection is an
inevitable attribute of any kind of collection of information
of guilty parties. Let's face it, guilty parties don't only
call other guilty parties. Even gangsters don't call only other
gangsters.
If you are going to surveil anybody or listen to anybody,
using whatever technical means, you are going to capture a lot
of innocent people. That goes--in my opinion, dates back to the
dawn of times when you started surveilling people.
Mr. Hoekstra. The terrorist surveillance program as it is
developed, is this legislation that we passed a couple of
months ago. When Speaker Pelosi is reviewing this process and
deciding in 2001 and in 2002 that this is something that we
ought to be going ahead with, she is consulting with the
administration they would have had in 2001. At least under
FISA, they would have had 23 years of experience in review of
the Intelligence Community as to how the Intelligence Community
dealt with incidental collection of U.S. citizens; isn't that
correct?
Mr. Rivkin. That is absolutely correct. Not being involved
in oversight from, certainly, a legislative perspective, it is
difficult for me to be definitive as to what should be
augmented. Let me put it generally, because this is an
excellent question. We should have a serious debate about how
to control the consequences of collection. There may be more
that needs to be done to minimization. There may be need for
more oversight. Again, if it were up to me, maybe you need to
broaden it beyond the gang of eight.
What is untenable in my opinion is deliberately limiting
the collection because you worry about the consequence of
collecting something. It is like the collective closing of your
eyes and then plugging your ears. That is an absolutely--in the
world, when the 9/11 Commission talks about connecting the dots
and removing the impediments, that is such a stunning reversal
of policy that makes sense.
Mr. Dempsey. Congressman, could I contribute to this?
Mr. Hoekstra. You have had plenty of time, all right. I
appreciate your input, but I would like to get the other side
of the story on the record as we go through it as well today.
I don't believe that in the roughly 30 minutes of
questioning by the other side of the aisle that Mr. Rivkin was
ever allowed the opportunity to answer or provide any feedback
or any response to that. At least I have had the opportunity to
question both Mr. Baker and Mr. Rivkin on the issues that have
been in front of us.
I am going to go back to Mr. Baker.
There were discussions earlier debating the legality of the
terrorist surveillance program, citing a book by Mr. Goldsmith.
The Attorney General has publicly stated that the activities
previously conducted under the terrorist surveillance program
have been moved under orders of the FISA court.
In doing so, would Federal judges have found that the
activities they authorize were lawful?
Mr. Baker. I am sorry, Congressman, can you repeat?
Mr. Hoekstra. The Attorney General has publicly stated that
the activities previously conducted under the terrorist
surveillance program have been moved under orders of the FISA
court.
And doing so, Federal judges found the activities they
authorized were lawful.
Mr. Baker. I don't believe I can comment on the substance
of the orders from January. I guess that is maybe all I can say
right now. I mean, those haven't been disclosed, so I don't
believe I can comment on what the court was doing in January.
Mr. Hoekstra. Mr. Chairman, with that, I will yield back my
time.
Thank you.
The Chairman. Thank you, Mr. Hoekstra.
I don't believe I heard anybody say that we wanted to
extend Fourth Amendment rights to foreigners. I know I didn't
hear any of the panelists, but I wanted to now start the
Members' questions.
We will have a second round, so I would ask all Members to
please respect the 5-minute rule, and with that, we will start
with Ms. Eshoo.
Ms. Eshoo. Thank you, Mr. Chairman, for having this
important hearing and to all of the witnesses. I think that
this has really been enlightening and a very good forum.
Having said that, Mr. Rivkin, I am not so sure I understand
your point. What I am taking away from what you said is that
privacy rights are really not all they are cracked up to be or
that some should have them or when we say ``all'' we really
don't mean ``all.'' I don't know what your succinct point is
about the legislation that was passed on a hurried basis and
that many of us have deep concerns about and so do the American
people.
So I will get back to you so maybe you want to think about
a couple of sentences that might just kind of knock your
position, the ball out of the park. I am saying it
respectfully. I didn't get what your point was.
Now I think that this is on the one hand, a somewhat
complicated issue, FISA; it is complicated even more because
there is secrecy involved. So when the American people hear any
of us trying to explain not only what the law covers but how it
functions or did function, they don't really feel like they are
getting all of it. But when it comes to our rights, to our
liberties and our national security, they really insist on both
and both they should.
There isn't any small reason why both of those are covered
in the oath that every single one of us takes when we are sworn
into the Congress, that we swear to uphold the Constitution of
the United States and to protect our Nation against all
enemies, foreign and domestic.
And in my view, this is not a multiple choice test. We are
obligated, the duties that we have and the oath that we take,
to accomplish both. And I think that FISA is a very good
example of this.
Now what are we struggling over? We seem to be struggling
over a legal framework, a framework that actually is workable
so that the Intelligence Community can do what it needs to do,
that it has the tools that it needs but that we have a legal
framework and that we have checks and balances.
In a secret undertaking, it is even that much more
important to have checks and balances. And I think taking Harry
Truman's statements, I think when it comes to that, the buck
stops with us.
Is it any coincidence that the administration has refused
to even hand over what the ranking member and the chairman of
the committee have requested almost ad nauseam and they don't
give it to us?
So how are the American people going to be protected and
guaranteed not only of their liberties but also the absolute
best on our part to secure our Nation?
So it is in that context that I want to ask the following
question: Oversight is a word that I think is batted around but
not fully appreciated. It really represents a lot.
So, to Mr. Dempsey and Ms. Graves, and if there is anybody
else that wants to chime in, all four of you, what information
do you think the administration should provide to Congress to
ensure effective oversight?
And relative to these new authorities, they are essentially
saying, ``trust us''. And you know what? I am not going to
trust anybody with that. I want the information and be able to
verify, and then I will trust. I am not going to throw trust
away and just assume that it is going to be regarded.
Do you think that there should be an audit which includes a
review of all of the directives that are issued pursuant to the
new authority?
We don't have that now, and I would also like to hear, if
we have time, about the information that you think that the
administration is providing to Congress. Do you think it is
effective enough today to allow us to do the oversight that I
spoke of and not this, just this little word that seems to be
cast about just because we are sitting here? You can't do
oversight unless you get effective information in my view.
So we want to start with Mr. Dempsey.
The Chairman. Okay. Her time is up. So I will allow one of
you to answer each one of the questions. I want to tell the
Members, I have just been informed that we are going to have to
give up the room at 1:25. So this will probably give us enough
time for everybody that is here. But if you will quickly, each
one of you, answer the questions.
Mr. Dempsey. I think that Congress does need to have access
to the legal interpretations of the administration, not just to
be orally briefed on things but to actually see the details
about how these interpretations are being spelled out.
On the other hand, though, I don't think Congress should be
in a position of receiving information about targeting, and I
am not sure that Congress should be in the position of
receiving a lot of information about how the program is being
implemented in terms of we are intercepting this person or that
person. That is why I think that the court has to be a part of
this. I think that the court is a smaller entity. It has, I
think, somewhat tighter processes, even than Congress has.
So you need both branches of government: Congress on the
law; the court on some of these details.
Ms. Grace. I would say that you definitely need the legal
opinions of the Office of Legal Counsel for the entirety of
this program in its various iterations from the beginning,
whether that is the Comey pieces, before or after all those
pieces you are entitled to them.
With respect to actual orders of the court, I think you are
entitled to see some of those orders. And with regard to orders
of the magnitude, what we believe was authorized earlier this
year, you should see the applications because it is possible
that the orders themselves may be very short and not allow you
sufficient information to understand the arguments that were
made, whether those arguments include the suggestion that FISA
is not the exclusive means or that the President has the
inherent ability to bypass FISA. You should know that before
passing any permanent changes to FISA.
Mr. Rivkin. My view is almost exactly the reverse.
The Chairman. If you can do it quickly.
Mr. Rivkin. I happen to think you have to take the courts
as you find it. The judiciary role is very narrow. They can
deal with warrants. They are certainly not Article III courts.
You, on the other hand, have enormous opportunity and an
obligation to participate in the most intrusive oversight.
If it were to up to me to restore the sort of political
sustainability of the program, I would be prepared to bring
everybody in and have you do nothing but review applications on
a daily basis as long as it is clear that you are doing it in
your oversight capacity.
And if you feel as a Member that something fundamentally
flawed is being done, if somebody is being surveilled and you
happen to believe that this is a witch hunt, you know, you have
reason to weigh cause and come to a legal position where you
can disclose a summation of law and survive criminal
prosecution. It is a responsible way of doing things. Trying to
throw it to the court does not work.
Briefly on the legal opinions, there is a variety of
reasons why you do not have any reason to see legal opinions.
So long as you understand what was done on a practical level,
getting legal opinions impinges in a fundamental way on the
President's ability to receive confidential legal advice,
particularly in the current atmosphere would do nothing more
than chill a future President's ability to get legal advice.
And it is absolutely not essential to your ability to create
new regulatory structure.
Look at the actual behavior, not the legal opinions.
The Chairman. Mr. McHugh.
Ms. Eshoo. Mr. Baker had his hand up. He wanted to respond.
Mr. McHugh. Thank you, Mr. Chairman.
I will go to Mr. Baker.
Mr. Baker, we have had in other sessions Assistant General
Comey, former Attorney General Ashcroft, Gonzalez and others
have spoken to this, so I want to make sure that I understand
your testimony.
When we are dealing with an emergency FISA application, is
there a different standard that is employed as to the approval
of that emergency application, one that is different from
probable cause? Because that has not been my understanding. It
is still the same standard, correct?
Mr. Baker. The same standard applies.
Mr. McHugh. So if you were, whoever was in that acting
role, you have to see an application that embodies in the basic
tenants, all of the evidence, all of the record, all of the
background that a FISA court would expect to see to create or
to equal probable cause; is that true?
Mr. Baker. I wouldn't agree with that.
I mean, there is no application at that point in time
because the emergencies come in and we can make these things--
it can be done entirely orally. It is not usually done entirely
orally. But it can be. You could get a phone call from an
intelligence agency that makes its way through the process to
you. You can explain what is going on and you call the attorney
general. But there usually is paperwork in there somewhere, but
it is not usually a full-blown FISA application. That is what
we work on.
Mr. McHugh. I didn't use the words ``full-blown FISA
application.'' What I said was it would have to embody much of
the background, et cetera. That is what we have been told. Do
you disagree with that?
Mr. Baker. It has to have probable cause.
Mr. McHugh. Thank you. That is really the crux of the
question.
Mr. Rivkin, you made the comment to the ranking member that
if he were a target under a surveillance order here in the
United States and his child's teacher called him, that that
conversation would be subject to surveillance.
Would you agree with that, Mr. Baker?
Mr. Baker. I thought you were asking Mr. Rivkin something.
Could you repeat the question?
Mr. McHugh. Yes. The question that the chairman posed or
the former chairman posed to Mr. Rivkin said that if he, Mr.
Hoekstra, were the target of a surveillance order here as a
United States citizen and his child's teacher called him, that
conversation from that teacher would be subject to
surveillance.
Mr. Baker. It would be intercepted, yes.
Mr. McHugh. Mr. Rivkin, Ms. Graves said in her comments
that we perhaps should not lend too much deference to the
judicial record that has traditionally found that the executive
has pretty broad latitude in issues of foreign intelligence
because, as she put it, the courts are weak.
Would you argue the courts are weak or that the court cases
have been pretty clear and consistent?
Mr. Rivkin. I would say two things, Congressman. I think
that the courts have acted to appropriate constitutional
humility in this area because the executive has a greet deal of
powers relative to national security, and the courts' powers
are fairly narrow. But to the extent the courts have reached
the merits of those issues--and probably the best summation of
that case law is in the court of FISA, court of the review--
they were very emphatic that the President, of course, has the
power to gather intelligence in this field.
I would say more so in the time of war. It is really a
species of battlefield intelligence not just foreign
intelligence.
Mr. McHugh. Ms. Graves, one of the key issues here is a
matter of what we are able to identify as a domestic call and
what we are not. And you spoke to that in your testimony.
The phrasing you used was that, quote, it seems to me, end
quote, I take it meaning your organization, that you ought to
be able to identify that.
Testimony has been received previously that while in some
cases it can be, in any number of cases it can't be, I am just
curious, do you have a technical, professional opinion that
shows we can't identify it in all cases because if we can,
obviously that takes away a big part of the debate.
Ms. Graves. I tried to be very careful about the fact that
we believed that in most and many instances that information
can be ascertained, particularly with regard to phone calls.
But we do believe that it is important for this committee
to hear from people with technology expertise beyond the
government which has a particular perspective, and we also
think that, to the extent that there are some calls where you
don't know, the assumption shouldn't be, therefore, you get
everything. There should be a way to categorize this that deals
with the calls you do know and those that you don't having
different presumptions and different rules with court
involvement. We think that is important.
Mr. McHugh. But minimization procedure that deals directly
with identifiable calls.
Ms. Graves. I am not sure I agree----
Mr. McHugh. The minute I said that, I thought, she probably
doesn't like that phrase.
Some process by which we accommodate more definitively
those calls you can't identify.
Ms. Graves. I would say it is important to have more court
oversight, especially because more American communications are
in this communications stream.
The Chairman. Thank you.
Mr. Tierney.
Mr. Tierney. Mr. Dempsey, the Ranking Member seems to be
laboring over some misconception that somebody is promoting the
concept of getting a warrant for foreign-to-foreign
conversations.
Have you heard any of the witnesses today mention that that
is something they put forward?
Mr. Dempsey. No. There has long been agreement that
foreign-to-foreign should be exempted. I haven't heard anybody
say that foreigners should be entitled to Fourth Amendment
rights either. I am not saying that.
I think we are talking here about a situation. We used the
hypothetical that the ranking member raised or Mr. Rivkin was
discussing which was, if you have a target to--if you are
targeting a person, you are targeting the school teacher and
the school teacher calls you, should you care if your
communications are intercepted? Well, if your communications
are intercepted without a warrant, even if you are not the
target, you still have a Fourth Amendment right and you have
the right to object to that surveillance if the evidence is
going to be used against you.
There was an interesting Supreme Court case where the
Government was targeting a suspected drug dealer. They searched
his mother's home. They weren't trying to investigate or
prosecute the mother.
Well, it was held that even though the drug dealer was the
target, his Fourth Amendment rights were not intruded upon. The
Fourth Amendment rights that were at stake were the rights of
the person who was being searched.
And in this case here, where you have two people being
searched, people on both ends of the communication, it makes a
world of difference whether there is a court order or not. The
fact that you are not the target, if you are being intercepted
without a court order, the fact that you are not the target
makes no difference to the Fourth Amendment analysis. Your
rights are being violated, and you have a right to object.
Mr. Tierney. Do you see a scenario where having the
provision for a warrant somehow limits the amount of collection
that could be done? I mean, can't we both have a process that
allows for a warrant when it is appropriate and allows for us
to get the information when and if we need--when and as we need
it?
Mr. Dempsey. The government cannot listen to everything. It
is selecting. It is collecting less than everything.
The question here is, what are the standards by which they
pick and choose? And when the rights of Americans are at stake,
there should be some judicial oversight of that choice.
At the end of the day, they will end up collecting however
much they can process.
The question is, how is that focused, and how are those
decisions made?
Mr. Tierney. Both of the statutes were really looking at
the issue, not that you need a particularized warrant for a
particular person or a particular place on that. They both sort
of said in some instances maybe what you have to have is a
process.
And the question really is whether in choosing--when the
government is out there choosing--for all of the foreigners
from whom we are going to collect information here, do we have
a process that is reasonably designed to identify and collect
the communications of those whose communications may have
foreign intelligence content. So that is what they are looking
at. I think you said something similar to that in your written
report.
So who should decide the reasonableness of that process?
Shouldn't it be the courts? If it is not the courts, if we
leave that to the Director of National Intelligence and to the
attorney general, don't we have the fox watching the hen house?
And isn't it less likely that any executives--forget which
party is in office now--are always going to be very lenient to
themselves and see things as a rational way of what they are
doing. Isn't that why we have judicial prior review of the
process and of this situation?
Mr. Dempsey. I think that is right. And I think good people
under pressure cut corners. Good people working under pressure
make mistakes. And what we try to do in our democratic system
is to create a set of checks and balances so that you don't
have to ascribe any bad will or any negative motive to the DNI
and to the Attorney General and to the members of the
Intelligence Community, but we certainly have seen plenty of
evidence of cutting corners in the past 6 years.
I think that we want to create that set of checks and
balances and particularly this decision that we are talking
about here of all of the communications that you collect and
process, of all of the people that you are going to draw into
the net, that process needs to be in some structure that has
all three branches involved.
The Chairman. Thank you.
Mr. Tiahrt.
Mr. Tiahrt. Michael Brohm wrote an article that was
published yesterday across the Nation in several papers. He was
referring in his article--his article was titled, ``Lawyering
the War to Death.'' He references Jack Goldsmith, the Harvard
law professor who wrote a book called, ``The Terror
Presidency.'' And in that, he said, never in the history of the
United States had lawyers had such extraordinary influence over
war policy than they did after September 11, 2001.
Mr. Goldsmith does not compliment the administration. In
fact, he criticizes them in a couple of areas. He called a
couple of interrogation techniques deeply flawed. But he does
support the detention of unlawful combatants. He supports their
confinement in Guantanamo. He supports trial by military
commissions. He supports the Terrorist Surveillance Program.
And he rejects the charge that the administration has
disregarded the rule of law. He says, and I quote, the opposite
is true. The administration has been strangled by the law. And
since September 11th, this war has been lawyered to death.
He cites 1942 when FDR ordered the military commissions to
try eight Nazi saboteurs who landed on our shores and were
apprehended; and within 6 weeks, six of them were executed. He
says FDR acted in a permissive legal culture that is barely
recognizable to us today.
He says the criminalization of warfare is greatly
concerned. And according to Michael Brohm, its ban on political
assassinations deterred the Clinton administration from gunning
down Osama bin Laden.
Now, this origination of lawyering of the war, he cites it
back to the 1970s when FISA was written.
And he cites that, since then, even the CIA is weary of
possible criminal charges, and it urges its agents to buy
insurance against possible prosecution.
As we approach revising FISA, how do we avoid over
lawyering the war against terrorism? How do we prevent
ourselves from being bound up in legal morass and paperwork
when the real job is to protect the country and keep it safe?
Now I have heard talk, and Mr. Dempsey referred to the
legal structure shouldn't be centered on the protection of the
targets of surveillance but more broadly to any person who
might conceivably communicate with the target of surveillance.
How is it that you proposed, Mr. Dempsey, that when a FISA
order is issued and surveillance is conducted and someone picks
up the phone call, how do you avoid not being part of that
conversation or monitoring that conversation?
Mr. Dempsey. I don't think what you said there was a quote
from anything that I wrote. I think that the thing you were
talking about ``conceivably''--I don't think I said that.
Mr. Tiahrt. I believe it was in your testimony today.
Mr. Dempsey. Anyhow, what I am talking about here is a
process that would, in fact, allow those communications to be
kept and recorded.
Under the kind of blanket order or programatic order that I
proposed and that appears in 3356 as well, the court would
authorize a program of surveillance under procedures reasonably
designed to focus on individuals overseas where there might be
a foreign intelligence value in their communications.
Under that order, it is lawful and appropriate and legal to
collect communications to and from the United States and to
keep those communications, to use those communications in
defense of the Nation.
At a certain point, though, some of those selection
techniques and some of those filtering techniques may end up
collecting a significant number of communications of Americans.
And at that point there, the sort of center of gravity of the
surveillance activity has now shifted so that it implicates
significantly two people: the person overseas who has no
rights, and the person in the United States who retains their
rights. And then the question is, what do you do going forward
from that point?
I think a process could be designed in which you are not
discarding information. People talk about minimization as if it
means you throw things away. I don't think the NSA ever throws
much away, and I don't think they should, under my proposal,
ignore valid intelligence, but at a certain point, you have to
say, this is getting pretty close to home here. This is pretty
much affecting an individual American, and now we need to go
back and see if there is really a good reason for----
Mr. Tiahrt. What makes you think it is not done that way
today?
Mr. Dempsey. Under the PAA, there is no process for that.
There is no court order, and the standard under the PAA----
Mr. Tiahrt. You are speculating that it is not being done
that way today; that when an American citizen ends up being
part of an investigation, that there isn't some additional
activity.
Mr. Dempsey. Under the PAA and under the law as it now
stands, the administration would be required to obtain a court
order only if they are intentionally targeting a known
particular person, a U.S. person in the United States.
Mr. Tiahrt. But it is happening today.
Mr. Dempsey. That is all, but I think the question of
intentionally targeting the person, who you are intentionally
targeting----
Mr. Tiahrt. I guess my time is up.
Mr. Dempsey. I am happy to stay around----
Mr. Tiahrt. I believe that is already happening today. And
I see no concern that you have raised in your study about
additional--because when somebody is a citizen, he goes a
completely different channel. There are procedures in place to
go completely different channels.
Mr. Dempsey. I think we need to talk about this some more,
and I am happy to do it with you afterwards; but as I
understand it, under the PAA, not unless the government is
intentionally targeting a particular----
Mr. Tiahrt. You are advocating if it is an--inadvertently
picked up a conversation of a citizen in the United States in a
surveillance, that there has to be some additional action even
though they do not pursue it further.
Mr. Dempsey. Under the minimization rules, as I read them,
the NSA is allowed to retain, analyze and disseminate the
communication of that American and to use it for any number of
intelligence purposes, to feed it into the criminal justice
system, but also to use it in the intelligence system and so
that information about the U.S. person--and in some cases, we
want it to be used. It is not like we want to erect a new wall
here.
As the President says, if al-Qa'ida is talking to somebody
in the United States, we want to know about it. Absolutely.
The Chairman. Ms. Schakowsky.
Ms. Schakowsky. Thank you, Mr. Chairman.
I wanted to talk about some of the specific language--I
know it has been touched on, the word ``concerning'' and the
word ``acquisition.''
In the letter from Mr. Wainstein, he dismisses the concerns
about these, and we also heard Mr. Baker testify that there are
times when the limits are pushed as far as they can go.
They are dismissed in his letter by saying, first, most of
the hypotheticals we have heard are inconsistent with the plain
language of the Protect America Act and the rest of the FISA
statute.
So I wanted to know, one, if the language, and I am asking
Mr. Dempsey and Ms. Graves, if the language is as clear as he
says, and second, we commit that we will not use the statute to
undertake intelligence activities that extend beyond the clear
purpose of the statute.
Again, I hear what you are saying--you said, Mr. Baker,
about the promise, but it also--and its impact, but it also
seems like a new letter could change that.
And third, we will apply the statute in full view of
congressional oversight as we intend to provide Congress with
the consistent and comprehensive insight into our
implementation and use this authority and what your felling is
about that since we have not been able to get even the basic
information about the formulation of this law.
So how much confidence should we have in these assurances?
Mr. Dempsey. One interesting thing to ask the
administration, and to really put to the test what the PAA is
all about, is to ask the administration, would it meet their
needs if 105B card a program to authorize the acquisition of
foreign intelligence by intentionally targeting the
communications of a person reasonably believed to be
``overseas''? That is what they talk about, but that is not
what it says.
What is the gap between ``a program of surveillance
reasonably designed to collect the communications of persons
believed to be overseas'' versus ``intelligence information
concerning''?
Ms. Schakowsky. So you would suggest that language being
preferable to--the one that it contains ``concerning''--that it
would be clearer.
Mr. Dempsey. Yes, I am not saying that that would be
enough, but I think that certainly helps put to the test what
we are talking about here. Are we targeting persons reasonably
believed to be----
Ms. Schakowsky. So you are saying that it is not--the plain
language isn't clear enough.
Mr. Dempsey. Absolutely not. We have all kinds of words
here that appear nowhere else in the statute, and they are
undefined.
Ms. Graves. I think I can answer your questions very
quickly.
First of all, the language isn't clear, and I think you can
see that if you compare what was announced as the Rockefeller-
Reyes proposal that subsequently became the proposal of the
chairman and Mr. Conyers, they refused to confine their power
to electronic surveillance. They insisted upon having
acquisition, not electronic surveillance, even as in 3356. They
insisted on instituting ``notwithstanding any other law,''
meaning it blows all of the other laws basically off the books,
whether it is a pen register rule, whether it is ECPA on stored
communication records. They insisted on it not being targeted
or requiring that the orders that are involved be directed at a
particular person or particular facility.
I think the language is exceedingly broad and is
unacceptable. I think that the commitment not to interpret it
the way the law would permit, the plain language, while nice,
is not sufficient, especially in the aftermath of Mr. Yoo's
memos, reinterpreting previous laws over a period at the
Justice Department and certainly not in the aftermath--
certainly not in the aftermath of assertions that you will have
full view through congressional oversight when in fact you
haven't even received the documents that you have requested.
And so I would say, notwithstanding the assertions in a
letter by an assistant attorney general, the law is what
matters, and the law is what will stand in the coming years and
tailoring that law to the particular problem is the
responsibility of Congress.
Ms. Schakowsky. Do you think that this collection of
business records of individuals could be authorized by this
law?
Ms. Graves. I think that it is very clear the way they
described ``stored records'' whether records are--whether
records as they are transmitted or stored, whether they are
electronic in form, which includes a range of records, business
records, phone records.
I think it is very clear, the language is very clear on
that point, that they intend to have access to them through
orders issued unilaterally by the Government.
Ms. Schakowsky. Do you feel comforted by the comment in the
line in Mr. Wainstein's letter that says we wish to make very
clear that we will not use this provision to do so?
Ms. Graves. I believe the paragraph before that talks about
not using it for library records or financial records. It is
not actually a global disavowal of that power. In fact, the
language itself, the Stored Records Communications Act, people
who have litigated and worked on it know that it reaches very
broadly, and I think that his declaiming library records in the
aftermath of the library controversy with the PATRIOT Act is
insufficient. And regardless of its assertions, it is the law
that matters, not his interpretation of it.
Mr. Dempsey. I would be interested in his answer to the
question, how did the Government under FISA deal with access to
stored e-mail?
Ms. Schakowsky. I will ask that.
Mr. Baker. How did we collect it?
Ms. Schakowsky. Did you have access to stored records under
FISA? Was it interpreted in that way? Stored e-mail.
Mr. Baker. You made a reference to the business records.
There is a business records provision that allows you to obtain
a variety of materials, any tangible thing, and then there is
also FISA. We can conduct electronic surveillance and physical
search of electronic mail. So we would do it depending upon the
circumstances. You do one or the other. So you could conduct a
search for certain types of stored e-mail, and you might do
something that might be construed as electronic surveillance in
other contexts.
As I said in my testimony, there are no forms of modern
communications that we couldn't get to under the regular FISA.
Mr. Dempsey. I think that what that means then is that
access to stored e-mail through a physical search is not
electronic surveillance. Therefore, it falls under 105B. And so
in addition to the physical search authority, which requires a
court order, 105B authorizes acquisition to stored e-mail
without a court order. That is a major change.
Mr. Rivkin. I was just going to say that leaving aside the
question of whether certain stored records can be accessed, to
me, if you look at the language in its totality, particularly
in subsection 3, that, and I quote, in laws obtaining the
foreign intelligence information from--with the assistance of a
communications service provider, custodian or other person who
has access to communications, the notion that this would allow
you to go search somebody's apartment and pretend that the
super in that building is a custodian is silly.
I am very aggressive when it comes to construing statutes
both in my private sector days and my government days. But it
just doesn't get there.
We are talking here--if you look at the language in
subsection 2, the acquisition does not actually constitute
electronic surveillance; we are talking about electronic
surveillance being accomplished by or with the assistance of
the very same phone companies. Not bursting into somebody's
place of business. Not going and, you know, physically
downloading data from somebody's hard computer drive. That is
not how it is written. I don't see how it can be construed any
other way.
Ms. Graves. I think it is important to read the rest of
that sentence, which is, ``access to communications either as
they are transmitted or while they are stored or equipment that
is being stored or maybe used to transmit or store such
communications.'' ``Such communications'' are your e-mails,
your phone calls, whether they are about business matters,
health matters, intimate conversations with your loved ones.
Those communications, that is an enormous universe of private
communications of Americans.
And I don't think that saying that you are not directly
going to go after a library's records is sufficient.
And also, in the aftermath of this ``notwithstanding any
other law'' language, it is not clear how this affects the
National Security Letter authorities that have been not
adequately supervised. It is not clear how it affects other
laws. They have carved out another opportunity to interpret it
in a number of ways, and ``communications'' alone encompasses
almost all of the things we do as we communicate to each other
every day on laws or other matters.
The Chairman. Mr. Holt.
Mr. Holt. Thank you, Mr. Chairman.
Let me first ask consent to have put in the record a letter
to me from Debra Jacobs, executive director of the New Jersey
Civil Liberties Union, dated August 22nd.
Let me begin with two rhetorical questions that I am not
going to ask you to take time to answer.
Would you say that a characteristic of regimes that we
detest and condemn around the world is that they spy on their
own people? And would you say these regimes often say they are
doing so to preserve the safety and security of their people?
I will let those stand as rhetorical questions.
And rather than trying to pull at pieces of what I think is
a seriously flawed piece of legislation, let me go back to the
beginning.
Mr. Dempsey, you say that the Director of National
Intelligence laid out three basic requirements for FISA
legislation or reformed FISA legislation. No particularized
orders for surveillance designed to intercept the
communications of foreigners overseas, a court order for
surveillance of Americans and immunity for service providers.
Do you believe that FISA as it existed before reformed a
month or so ago provided that there were no particularized
orders required for interception of foreigners' communications?
Mr. Dempsey. There was no requirement for foreign-to-
foreign. On foreign-to-domestic, the law had two different----
Mr. Holt. So for foreign-to-foreign, you think it really
required no change or even clarification; is that correct?
Mr. Dempsey. A clarification may have been helpful. There
seemed to be some concern and confusion and a lot of debate
about it. I always thought that a clarification was desirable.
Mr. Holt. Would you say that it required reform or
clarification for foreign-to-foreign communication, Mr. Baker?
Mr. Baker. The difficulty it seemed to me was not saying
whether--let me back up.
One of the toughest problems to deal with, I think, that
you have to confront is the situations we have talked about a
little bit today where you cannot tell where the communication
is to or from or both. That is the hard question here.
So foreign-to-foreign----
Mr. Holt. So that was unclear you are saying?
Mr. Baker. No. I am saying it is clear. I thought it was
clear with respect to foreign-to-foreign wire or radio
communications. I think it is more difficult if you move
outside those definitions.
Mr. Holt. And what kind of language, Mr. Dempsey, what kind
of language change would you suggest or would you have
suggested last July to incorporate foreign-to-foreign
communications that might pass through the U.S.?
Mr. Dempsey. Well, I think there is language in 3356 that
is quite clear: A court order is not required for the
acquisition of contents of any communications of persons
located outside of the United States even if they pass through
the U.S.
Mr. Holt. The DNI also says there should be court orders
for surveillance of Americans. Do you think FISA, as it existed
before, provided that?
Mr. Dempsey. Yes, clearly.
Mr. Holt. And as for immunity for service providers that
cooperate with the Government, let me ask, first of all,
service providers have an obligation or a responsibility to
comply with illegal surveillance requests?
Mr. Dempsey. Yes, I think to be fair----
Mr. Holt. I said with illegal service requests.
Mr. Dempsey. That they wanted to have the ability to compel
them to cooperate and to have immunity for a lawful
cooperation, for cooperation for lawfully authorized orders.
Ms. Graves. I think I heard your question correctly, and I
think it is very clear under FISA. FISA was intended to prevent
that scenario, prevent compliance and punish compliance with
unauthorized orders for surveillance that did not involve
either a court or an emergency permitted under the statute.
Mr. Holt. What I hear you saying, and I am sorry we don't
have more time to explore in depth all of these, is that the
changes necessary in the FISA that we knew and some people
loved and some people hated for years with all of its various
revisions, needed rather minor modification to provide what the
Director of National Intelligence said was needed.
Now, let me explore a couple of other points.
Do you think, Mr. Dempsey, that it is important that any
such legislation be identified as the exclusive means?
Mr. Dempsey. I think it is critical. It is a critical
element.
Ms. Graves. If I could interject.
I think that making the PAA exclusive would be really not
useful because it creates such enormous exceptions. Reinforcing
the exclusivity of FISA I am ambivalent about because I think
it is extremely clear that it is the ``exclusive means'', and
it should have been clear for any lawyer at the Justice
Department that it was the exclusive means.
Mr. Holt. So many questions so little time.
Let me ask, of course, what really concerns me is that,
administratively, it is so easy to fall into the pursuit of
enemies list or chasing hobgoblins with the best of intentions
and with the most patriotic intentions even and without
judicial review of determination of probable cause. I am really
concerned about that. Who determines who is the bad guy?
But my question is, does after-the-fact minimization take
the place of judicial review? And let me ask Ms. Graves and Mr.
Dempsey that.
Ms. Graves. I would say that I don't think it is adequate,
and I think, as Mr. Dempsey wrote in his testimony, the courts,
while there has been some discussion of what the courts did
hold, one of the things they did hold was that minimization
itself was not sufficient; and they also held, with respect to
Americans, you needed to have some individualized determination
even if there was some leeway before Congress passed FISA to do
so without a warrant.
And I would say that the minimization procedures are
certainly not adequate. If we are talking about expanding the
reach of the NSA into the global communication network in the
United States, it is utterly inadequate to attach minimization
to the PAA.
Mr. Dempsey. I will stand on what the Supreme Court said in
Katz in 1967. There the police did everything right. They fully
minimized, they had probable cause, and the court still said
that was an unconstitutional search because these decisions are
not to be made solely by the executive branch.
Mr. Holt. And that decision has not been nibbled away at
over the course of years.
Mr. Dempsey. Not that one.
The Chairman. Ms. Wilson.
Mrs. Wilson. Mr. Baker, I had a couple of questions for
clarification, if you would.
When did you leave the Justice Department? In which year?
Mr. Baker. I am currently on leave from the Department. I
have been on leave from the Department since January of this
year. I am on leave without pay. I am sitting here
uncompensated.
Mrs. Wilson. So you have not been involved in the year 2006
in matters relating to the FISA court?
Mr. Dempsey. 2006 I was.
Mrs. Wilson. January 2007.
So you were not aware of the problems that have occurred in
2007 with respect to timeliness of warrants?
Mr. Baker. I am aware of the issues that have arisen in
2007 because I have regular contact with folks at the
Department.
Mrs. Wilson. Would you characterize those in unclassified
session?
Mr. Baker. I don't believe I can.
Mrs. Wilson. But you are aware that problems exist this
year that did not exist before?
Mr. Baker. I am aware of what happened in January, and I am
aware of what happened subsequently, the event that lead up to
the Protect America Act. I am not there every day, obviously,
but I have had discussion with folks there.
Mrs. Wilson. In some of your answers to previous questions,
you talked about the timeliness in terms of emergency warrants
and the reputation of your office as being the rusty gate and
so forth.
You responded that you do those as quick as you possibly
can. And it can happen extremely quickly to get an emergency
warrant.
Have you ever been involved in an emergency warrant or an
emergency application for a warrant that has taken more than an
hour?
Mr. Baker. Yes.
Mrs. Wilson. More than 6 hours?
Mr. Baker. I guess the question is, what do you mean it has
taken more than 6 hours? From the time--what I assess that
means is from the time that the intelligence agency----
Mrs. Wilson. From the time that the intelligence agency
says, we have got a number, we need to get up on it, to the
time they can turn on the switch, has it taken more than an
hour?
Mr. Baker. I can't answer that because all I can control is
the time----
Mrs. Wilson. From the time you were first informed that one
would be required to when it was--to when they were able to
turn on the switch, were there any that took longer than 6
hours?
Mr. Baker. I am not trying to be cagey. We did lots of
these things. We did them all the time. We tried not to over-
lawyer the situation so we delegated authorities to folks
within our organization to take prompt action on these things.
Did some take more than 6 hours? Certainly possible. I
don't know. We didn't keep track. We didn't keep statistics on
that.
But what I am reporting to you, I believe, is that,
overall, my assessment is that the system was successful. Could
the system have done more with more resources? Of course. Could
the system have done more if you didn't involve all of these
lawyers in it? Yes. I mean----
Mrs. Wilson. I am actually asking a more specific question
which I think is a legitimate one.
In your experience, your direct personal experience, did
you ever have a case where it was more than 6 hours between the
time you first became aware a warrant, an emergency warrant
would be needed to when it was signed off on?
Mr. Baker. Yes, in that particular question.
Mrs. Wilson. How about 12 hours?
Mr. Baker. I don't remember.
Mrs. Wilson. My point here is that time matters. If it was
in a domestic circumstance--for example, we have Amber Alerts
all the time in my community. If it was your kid whose life was
at stake, is 6 hours fast enough?
Mr. Baker. That is--6 hours is obviously not fast enough in
that situation. But the question is----
Mrs. Wilson. Imagine a circumstance where it is a FISA
warrant that is needed where 6 hours isn't fast enough.
Mr. Baker. You are making the judgements about how you want
the law constructed. I am trying to give you the benefit of my
experience so that you can make an informed judgment. It is up
to you to decide what the law is going to be. Having said that,
we worked long and hard to make sure we gave the Intelligence
Community what it needed when it needed it.
Mrs. Wilson. Do you understand why there might be
frustration?
Mr. Baker. I understand completely. I have heard it--you
know, when you have lawyers involved in between the
intelligence operatives and the thing that they want, there is
going to be tension; there are going to be difficulties.
My job was to enforce the law that this Congress--not this
Congress but that Congress had enacted, and that is what I did
in my level best to achieve.
Mrs. Wilson. Let me ask you, Mr. Dempsey, about a Supreme
Court decision in 1990, United States v. Verdugo. In that case,
Justice Rehnquist said that, ``At the time of the search, this
particular individual was a citizen and resident of Mexico with
no voluntary attachment to the United States, and the place
searched was located in Mexico. Under these circumstances, the
Fourth Amendment has no application.
He further said that, ``The result of accepting this
Mexican individual's claim would have significant and
deleterious consequences for the United States in conducting
activities beyond its borders. The rule would apply not only to
law enforcement operations abroad but also to other foreign
policy operations which might result in searches or seizures.
Application of the Fourth Amendment to those circumstances
could significantly disrupt the ability of the political
branches to respond to foreign situations involving our
national interests.''
And in that case, they determined that the Fourth
Amendment, that this gentleman had no Fourth Amendment
protections.
Are you familiar with that case?
Mr. Dempsey. Yes, I am. There was no American involved in
that case.
Mrs. Wilson. Do you believe that warrants should be
required for foreigners in foreign countries when we are
targeting that person?
Mr. Dempsey. No. Absolutely not.
Mrs. Wilson. If that Mexican were talking to an American,
would a warrant have been required?
Mr. Dempsey. Then you have got two people on the
conversation and you have got rights on the American side.
Mrs. Wilson. Would a warrant have been required?
Mr. Dempsey. I think if that is an ongoing surveillance
that is collecting information about the American, yes.
Mrs. Wilson. They were targeting a Mexican in Mexico.
Would a warrant have been required?
Mr. Dempsey. As I said, I don't think that the targeting
question is the relevant question here.
Two people's interests are at stake. In the Verdugo case,
only one person's interest were at stake: a Mexican national in
Mexico. He had no rights under the Constitution. When you
switch to foreign-to-domestic, and you are talking about two
parties, we have to look at both sides of the equation.
Mrs. Wilson. If a Mafia Don is under electronic
surveillance in this country and he talks to his son's teacher,
is a warrant required for his son's teacher?
Mr. Dempsey. A warrant is required to intercept those
communications. Not on the teacher.
Mrs. Wilson. Does the son's teacher have any rights----
Mr. Dempsey. Absolutely.
Mrs. Wilson. That their rights under the constitution have
been violated?
Mr. Dempsey. Well, her rights haven't been violated because
there is a court order. On the other hand, if there was no
court order and the teacher's conversations were intercepted,
that teacher has a constitutional violation, and the Government
could not use that information against the teacher.
When the judge issues the order against the Mafia Don, the
judge is saying there is probable cause to believe that the
Mafia Don is a criminal and there is probable cause to believe
that the communications facilities that are going to be the
target of the surveillance are being used.
The Chairman. Can you wrap it up because we have to leave.
Mrs. Wilson. If we are lawfully listening to someone
overseas for a foreign intelligence purpose, how can you tell
who they are going to call before they call?
Mr. Dempsey. You can't in advance----
Mrs. Wilson. Which means we need a warrant for every
conversation.
Mr. Dempsey. No, Congresswoman. Nobody has argued that.
Nobody has said that the Government needs to know in advance
what the person overseas is doing. The whole purpose of the
program warrant is to allow the Government to be begin
monitoring, not knowing who the target overseas----
Mr. Rivkin. What Mr. Dempsey, with all due respect, is
suggesting, if an individual overseas is communicating enough
with the United States, in order to continue monitoring that
individual's communication, you need to get a warrant against
him because you surely cannot get a warrant against an innocent
American he is communicating with.
Ms. Graves. I would disagree. That interpretation is not an
accurate characterization of what we have suggested, and, in
fact, if you look back at the original Rockefeller-Reyes
proposal, there was a very sensible approach to the
circumstance in which an American--you learn subsequently that
an American's communications are involved or there are
significant communications or significant number of
communications with an American. Our understanding is that the
administration tried to deflect that approach by suggesting
that if foreigners call the American Airlines, we will have to
get a warrant for American Airlines. That, I think, is an
absurd interpretation of that language, and we think that it is
important to protect the interest of Americans, and we think
the Americans in your district and other districts do require
that protection.
Mrs. Wilson. I would agree that we need to protect the
civil rights and liberties of Americans. We also need to be
able to protect this country from terrorists communicating
overseas. And I hope that in future public discussions and
public testimony, we will have panels who are much more
familiar with how these operations take place.
Thank you, Mr. Chairman.
The Chairman. And with that, let me finish up because we
have to relinquish the room. I want to thank all of the
panelists for their expertise and testimony here. As you can
see, there are issues that we have to work out, but we must
work them out because it is in our best interest to protect our
national security.
Thank you very much. The hearing is adjourned.
[Whereupon, at 1:25 p.m., the committee was adjourned.]