    [Senate Hearing 109-1055]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 109-1055

                           FISA FOR THE 21ST CENTURY

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 26, 2006

                                   __________

                              Serial No. J-109-101

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                     ARLEN SPECTER, Pennsylvania, Chairman
    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
    TOM COBURN, Oklahoma
               Michael O'Neill, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts, prepared statement..............................   293
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
        prepared statement...........................................   296
    Specter, Hon. Arlen, a U.S. Senator from the State of
      Pennsylvania...................................................     1

                                   WITNESSES

    Alexander, Lt. General Keith B., Director, National Security
      Agency, Chief of the Central Security Service, Washington, D.C.    11
    Bradbury, Steven G., Acting Assistant Attorney General, Office of
      Legal Counsel, U.S. Department of Justice, Washington, D.C.....    12
    Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver,
      Colorado.......................................................    38
    Dempsey, James X. Policy Director, Center for Democracy and
      Technology, Washington, D.C....................................    40
    DeRosa, Mary B., Senior Fellow, Center for Strategic and
      International Studies, Technology and Public Policy Program,
      Washington, D.C................................................    44
    Hayden, General Michael V., Director, Central Intelligence
      Agency, Office of the Director of National Intelligence,
      Langley, Virginia..............................................     6
    Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago,
      Illinois.......................................................    41

                             QUESTIONS AND ANSWERS

    Responses of Lt. General Keith B. Alexander to questions
      submitted by Senators Specter, Schumer, Feinstein, Kennedy,
      Durbin and Feingold............................................    50
    Responses of Steven G. Bradbury to questions submitted by
      Senators Specter, Leahy, Kennedy, Feinstein, Feingold, Schumer
      and Durbin.....................................................    84
    Questions submitted by Senator Specter to Bryan Cunningham were
      not received by the time of print..............................   146
    Responses of James X. Dempsey to questions submitted by Senators
      Specter, Feinstein and Kennedy.................................   147
    Questions submitted by Senator Specter, Senator Feinstein and
      Senator Kennedy to Mary B. DeRosa were not received by the time
      of print.......................................................   156
    Responses of Michael V. Hayden to questions submitted by Senator
      Specter, Schumer, Feinstein, Leahy, Kennedy and Durbin.........   162
    Responses of John Schmidt to questions submitted by Senators
      Specter and Kennedy............................................   182

                           SUBMISSIONS FOR THE RECORD

    Alexander, Lt. General Keith B., Director, National Security
      Agency, Chief of the Central Security Service, Washington,
      D.C., statement................................................   188
    American Civil Liberties Union, Caroline Fredrickson, Director,
      Washington Legislative Office, and Lisa Graves, Senior Counsel
      for Legislative Strategy, Washington, D.C., letter.............   194
    Bradbury, Steven G., Acting Assistant Attorney General, Office of
      Legal Counsel, U.S. Department of Justice, Washington, D.C.,
      statement......................................................   201
    Constitutional Law Scholars and former Government Officials,
      letter.........................................................   208
    Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver,
      Colorado, statement and attachment.............................   218
    Dempsey, James X. Policy Director, Center for Democracy and
      Technology, Washington, D.C., statement........................   265
    DeRosa, Mary B., Senior Fellow, Center for Strategic and
      International Studies, Technology and Public Policy Program,
      Washington, D.C., statement....................................   278
    Hayden, General Michael V., Director, Central Intelligence
      Agency, Office of the Director of National Intelligence,
      Langley, Virginia, statement...................................   287
    Los Angeles Times, July 16, 2006, article........................   299
    New York Times:
        June 15, 2006, article.......................................   301
        July 16, 2006, article.......................................   303
    Patriots to Restore Checks and Balances, Washington, D.C., letter   306
    Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago,
      Illinois, statement............................................   308
    Washingtonpost.com:
        July 15, 2006, article.......................................   314
        July 26, 2006, article.......................................   316
    Washington Post, July 16, 2006, article..........................   317

                           FISA FOR THE 21ST CENTURY

                                  ----------

                            WEDNESDAY, JULY 26, 2006

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:05 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Arlen
    Specter, Chairman of the Committee, presiding.
        Present: Senators Specter, DeWine, Cornyn, Leahy, Kennedy,
    Feinstein, Feingold, and Durbin.

     OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
                       THE STATE OF PENNSYLVANIA

        Chairman Specter. Good morning, ladies and gentlemen. The
    Judiciary Committee will now proceed with our hearing on the
    proposed legislation which would submit the surveillance
    program for constitutional review to the Foreign Intelligence
    Surveillance Court.
        Wiretapping has been going on in the United States
    involving U.S. citizens some 4\1/2\ years without having the
    traditional judicial approval. Since it was publicly disclosed
    in mid-December, the Judiciary Committee has held five hearings
    and has considered a variety of proposed bills leading to the
    legislation which we have before us today, which has been
    meticulously negotiated and has the agreement of the President
    to refer the surveillance program to the FISA Court if the
    legislation is approved. There may be modifications, subject to
    the agreement of the President. The Foreign Intelligence
    Surveillance Court is well suited to handle this review because
    of its expertise in the field and because of its secrecy, the
    White House insists that there not be public disclosures.
        Moving to the substance of the bill, I first want to take
    up two items where critics do not face reality on these two
    major points:
        First, there is a contention that the bill is defective
    because it does not retain the Foreign Intelligence
    Surveillance Court as the exclusive place to determine
    wiretapping. The reality is that since the President has put
    his program into effect, the Foreign Intelligence Surveillance
    Act, administered by the Foreign Intelligence Surveillance
    Court, is, in fact, not the exclusive remedy. The President
    claims that he has inherent Article II power to conduct the
    wiretapping aside from the Court. Three appellate courts appear
    to agree with that, but it depends upon what the program is.
    The constitutional requirements are that there has to be a
    balancing of the value to security contrasted with the
    intrusion into privacy, and that can only be determined by
    judicial review. And in a context where the President is
    demonstrably unwilling to have the program subjected to public
    view, it would have to be determined by the FISA Court if it is
    to be ruled on constitutionally at all.
        The second point where the critics are objecting which I
    submit does not face the reality is the contention that the
    proposed legislation expands the Article II power of the
    President of the United States. A statute cannot do that. The
    Constitution is supreme. If the President has the
    constitutional authority under Article II, that supercedes the
    statute, and a new statute may not add to nor diminish the
    President's constitutional power.
        The legislation has received a considerable amount of
    commentary, a considerable amount of critical commentary. And,
    candidly, I welcome the dialog because I am personally
    convinced that when the legislation is fully understood and
    faced with the reality of this surveillance going on, unchecked
    constitutionally in the absence of any better way to do it,
    when this legislation is fully understood with those factors,
    there will be acceptance.
        The commentary today in one of the major papers says that
    the legislation adds a provision: ``Nothing in this Act shall
    be construed to limit the constitutional authority of the
    President to collect intelligence with respect to foreign
    powers and agents of foreign powers.'' Well, this bill does not
    add that. That provision is in the current Foreign Intelligence
    Surveillance Act, and it is there because it deals with
    embassies, foreign embassies, foreign residences of people in
    the United States representing foreign governments. And there
    has never been a requirement that there would have to be court
    approval to have wiretapping in that situation.
        The commentary today says that the bill explicitly
    acknowledges an alternative source of power. Well, the bill
    does not. Article II power is what it is.
        Now, I would have preferred to have had some other
    provisions, candidly. I would like to have had the program
    mandatory so that the President would have to submit it to the
    FISA Court. But I could understand the President's refusal to
    do that in light of his being unwilling to bind future
    Presidents and make an institutional change in the powers the
    President has. But my goal is to solve the current problem. The
    President has made a firm commitment to me, later confirmed by
    his White House personnel publicly, a firm commitment--may the
    record show that Mr. Steven Bradbury, who negotiated for the
    President, is nodding in the affirmative--made a firm
    commitment to submit the program to the FISA Court.
        Now, I would like to have a mandate, but this President is
    not going to give a mandate and yield to that kind of
    legislative authority. And even the statute did provide a
    mandate, if a future President challenged it under Article II
    powers, Article II powers are what they are, and the statute
    could not bind a future President.
        It really seems to boil down, to me, in many quarters that
    if the President agrees with it, there must be something wrong
    with it. There is a widespread sense that there is something
    amiss with Presidential agreement. Well, this legislation was
    negotiated in a way that I characterize as ``fierce.'' When we
    come to Mr. Steven Bradbury, the Acting Assistant Attorney
    General for the Office of Legal Counsel, we will get into some
    of the details on that.
        In light of the President's commitment, I think it is fair
    to say that this legislation is a breakthrough. Today's
    commentary refers to other bills which are pending, some by
    members of the Intelligence Committee who know the details of
    the program. Well, none of the bills does what this bill does.
    None of the bills reaches judicial review of the program.
        We have had two recent decisions by United States district
    courts. Last week, the chief judge of the district court in San
    Francisco, Judge Walker, made a determination that a suit,
    Hepting v. AT&T, would go forward. But a close reading of that
    72-page opinion shows it goes forward under very limited ways.
    And Judge Walker has put so many hurdles on state secrets that
    it is highly doubtful that that case will last much longer.
    Yesterday, a Federal judge in Chicago hearing Terkel v. AT&T,
    dismissed the case on grounds of state secrets. And when you
    read those cases, the obstacles are enormous.
        If there is a sense to modify the provision in the
    legislation which gives exclusive jurisdiction to the FISA
    Court, that can be done. We would not have the President's
    commitment, but the President talked about making modifications
    subject to his approval.
        There are a number of changes which modernize the FISA
    Court which we will get into. I have talked longer than I
    customarily do, but I have done so because of the complexity of
    this issue and what at least I think is the lack of
    understanding of the legislation and its applicability.
        We started a little early today because the Prime Minister
    of Iraq is scheduled to address a joint session at 11, and we
    may lose members by that time, and we also have a vote
    scheduled at 10.
        I am pleased now to yield to the distinguished Ranking
    Member, Senator Leahy.

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Senator Leahy. Thank you, Mr. Chairman, and thank you for
    convening this hearing. I am especially delighted to welcome
    General Hayden to his first appearance before this Committee
    since he assumed his new duties. I spoke with the General
    yesterday and told him how pleased I was to see the level of
    professionalism that he has brought to the agency and the
    appointments he has made. ``Independence'' and ``competence''
    were the two watchwords that led me to believe that he would
    serve well as the Director of the CIA, and I said so at the
    time I voted for his confirmation. Again, we need some straight
    talk today in navigating this very difficult issue.
        There are two sets of issues relating to the Foreign
    Intelligence Surveillance Act that are now before this
    Committee. First, what is the extent of the administration's
    warrantless wiretapping in violation of FISA, and how should we
    in Congress react? After 7 months and four hearings, we remain
    largely in the dark about what the administration is doing and
    continues to do because the administration has stonewalled this
    Committee's bipartisan efforts at oversight. But the answer is
    clear: We must demand and we must ensure that this
    administration, and the next administration which will follow
    in 2\1/2\ years, actually follows the law.
        Second, does the FISA law itself need to be revised? It has
    been amended six times at this administration's request in the
    5 years since 9/11. But even though we have done that six times
    at the administration's request, they now say it needs
    ``modernization.'' That modernization is the focus of today's
    hearing. The Democratic members of this Committee asked for
    such a hearing, and I compliment the Chairman on having it.
        But the issues of compliance and modernization are
    completely separate issues. Whether or not FISA is in need of
    fine-tuning is a legitimate consideration, but FISA's possible
    imperfections provide no excuse for the administration's
    flouting of existing law. By the same token, the Bush-Cheney
    administration's outrageous disregard for existing law does not
    mean that we in Congress should shirk our responsibility to
    improve the law if there is a need to.
        So I am ready to consider Section 9 on its merits. But I
    have serious grounds for skepticism.
        If Section 9's provisions are, as claimed, needed to bring
    FISA up-to-date with the 21st century, why haven't we heard
    about them before now? As I said, we have amended it six times
    at the administration's request. In July 2002, former Attorney
    General Ashcroft testified that the 2001 PATRIOT Act had
    ``modernized our surveillance tools to keep pace with
    technological changes.'' In March of this year, in the
    reauthorization of the PATRIOT Act, we made all the amendments
    of FISA that the administration requested. In fact, the
    President then took credit for updating the law.
        So if FISA as amended is too ``quaint'' to meet the
    challenges of the 21st century, the Bush-Cheney administration
    owes the Congress and the American people an explanation for
    why they did not speak up before now.
        Now, to the extent I have been able to figure out the
    highly complex language of Section 9, it seems to me to permit
    vast new amounts of warrantless surveillance of telephone calls
    involving American citizens. It would appear to authorize
    unrestricted, unregulated Government surveillance of American
    citizens talking to relatives, colleagues, and trading partners
    overseas, without any showing that that is necessary to protect
    our National security. But to the extent that the
    administration's witnesses can explain to us today, in
    practical and concrete terms, why these make sense, I will
    listen.
        But let me turn to the rest of the bill. It has been called
    a compromise. But this Vermonter does not believe that we
    should ever compromise on requiring the Executive to submit to
    the rule of law, no matter who is President. And I am sad to
    say that I see the bill less as a compromise and more as a
    concession. It would abandon our oversight role and confine
    oversight to a single judge on a secret court, whose decision
    on the one program the Bush-Cheney administration has agreed to
    submit for review is appealable only by the Bush-Cheney
    administration. And even that oversight would not be required
    by the bill itself.
        Now, I know the Chairman got the best deal he could. The
    President, the Vice President, and their legions can be
    hardheaded rather than flexible bargainers. I make these
    observations respectfully, but also to express my reluctance to
    compromise FISA and the minimal protections--the minimal
    protections--it provides for Americans.
        Section 8 would repeal FISA's exclusivity provision and
    affirmatively embrace the President's claim of sweeping
    inherent authority. The result is to make FISA optional. The
    President can use it or not use it, at his option.
        It is astounding that we are considering this proposal.
    FISA was never intended to give Presidents choices. It was
    enacted to prevent abuses of Executive power and protect
    Americans' liberties by prohibiting the Government from spying
    on its citizens without court approval. The Bush-Cheney
    administration has chosen to simply ignore it. I am wondering
    now are we going to reward its flouting of the law by saying,
    in effect, ``Oh, please excuse us for passing that law. We
    didn't mean to. We didn't expect you to follow it. We will
    never do that again.'' That is like arresting a burglar with
    three bags of cash and saying, ``Leave one bag here, and we
    will all be OK with that.''
        Defenders of the bill have argued that Section 8 is
    ``meaningless'' because the President has whatever
    constitutional authority the Constitution says, and Congress
    cannot limit that authority through legislation. If the best we
    can say on behalf of proposed legislation is that it is a waste
    of ink, but then we should not be enacting it. But I do not
    believe that, when it goes to the secret FISA Court, the
    administration will adhere to the position that Section 8 is
    meaningless. The administration is insisting on that for a
    reason.
        As the Supreme Court recently explained in its Hamdan
    decision, the constitutional scope of Presidential power
    depends on the legislation that Congress has enacted, even in
    times of war. The Constitution grants Congress the express
    power to set rules for the military and the express power ``To
    make all laws which shall be necessary and proper for carrying
    into execution'' all the powers vested by the Constitution in
    the Federal Government, including those of the President.
        In the absence of Congressional action, the President may
    well have some measure of unilateral authority. That is what
    the precedents the administration always cites suggest. But
    once Congress acts, as it did in FISA, the President is no
    longer free to do whatever he wants to do. As the Court said in
    Hamdan, ``Whether or not the President has independent power,
    absent Congressional authorization,'' Congress, of course, may
    place limitations on those powers.
        That was the whole point of FISA: to limit the President's
    power to spy on ordinary Americans by making FISA the sole
    means by which foreign intelligence wiretaps may be conducted
    in the United States. Waiving FISA's exclusivity provision
    would not be meaningless. It would completely gut FISA. It
    would give the President a blank check to carry out warrantless
    wiretapping whenever he chooses or whenever the next President
    chooses. I could not in good conscience acquiesce in such a
    sweeping signing away of Americans' liberties in any
    circumstances. I am certainly not going to do it at the behest
    of an administration that has continuously broken the law.
        Thank you, Mr. Chairman. I will put my full statement in
    the record.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Chairman Specter. Thank you, Senator Leahy.
        Would any other members like to make an opening statement?
        [No response.]
        Chairman Specter. Well, then, we will turn to our first
    witness, the distinguished Director of the Central Intelligence
    Agency, General Michael Hayden.
        General Hayden comes to this position with a very
    distinguished record. He received his bachelor's degree from
    Duquesne University in 1967; master's, also from Duquesne, in
    Modern American History. We have not only an intelligence
    officer but a Renaissance man with us here today. Extensive
    course work in the Armed Forces Staff College, the Air War
    College, Defense Intelligence School. He has had ranking
    positions which we will include in the record. He has had many
    awards, honors, which we will include in the record. And one we
    will know specifically is that he is a Pennsylvanian, from
    Pittsburgh. That is too important just to be included in the
    record.
        General Hayden. Thank you, Senator.
        Chairman Specter. We are honored, General Hayden, that you
    would testify before this Committee on your first occasion
    since becoming Director of the Central Intelligence Agency, and
    we look forward to your testimony.

       STATEMENT OF GENERAL MICHAEL V. HAYDEN, DIRECTOR, CENTRAL
        INTELLIGENCE AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL
                    INTELLIGENCE, LANGLEY, VIRGINIA

        General Hayden. Thank you, Mr. Chairman, Senator Leahy.
    Thanks for the opportunity to speak before your Committee
    today. The work that you and we have before us is truly
    important: How do we best balance our security and our liberty
    and continue the pursuit of valuable foreign intelligence? Let
    me congratulate the Committee for taking on the task of
    examining and, where appropriate, amending the Foreign
    Intelligence Surveillance Act.
        This task of balancing security and liberty is one that
    those of us in the intelligence community take very seriously
    and, frankly, it is one to which we turn our attention every
    day.
        If I can be permitted one anecdote, within days of the 9/11
    attacks, I actually addressed the NSA work force. At the time I
    was the Director of that Agency. It was a short video. I was
    talking to an empty room, but the video was beamed to our work
    force throughout Fort Meade and globally. And most of what I
    said was what you would normally expect at a moment like that.
    I tried to inspire. It was important. The Nation was relying on
    us. I tried to comfort. Look on the bright side: a quarter
    billion Americans wished they had your job today. And I ended
    the talk by trying to give some perspective. I said all free
    peoples have had to balance the demands of liberty with the
    demands of security. And, historically, we Americans had
    planted our flag well down that spectrum toward liberty. And so
    I ended my talk by simply saying here was our challenge: ``We
    at NSA were going to keep America free,'' I said, ``by making
    Americans feel safe again.''
        Now, that was not an easy challenge. The Joint Inquiry
    Commission, which I think most of you know was comprised of the
    House and Senate Intelligence Committees, would later summarize
    our shortcomings in the months and years leading up to the
    September 11th attacks. The Commission, sometimes harshly,
    criticized our ability to link things happening in the United
    States with things that were happening elsewhere.
        Let me just quote from some of the JIC's, the Joint Inquiry
    Commission's Systemic Findings, and here I am quoting.
        ``. . . NSA's cautious approach to any collection of
    intelligence relating to activities in the United States.''
        Again quoting, ``There were also gaps in NSA's coverage of
    foreign communications, and the FBI's coverage of domestic
    communications.''
        And, again, ``. . . NSA did not want to be perceived as
    targeting individuals in the United States.''
        And, finally--and here the Commission was talking about one
    end U.S. conversations. By that I mean conversations in which
    one of the communicants was in the United States of America.
    The Commission said, ``. . . there was insufficient focus on
    what many would have thought was among the most critically
    important kinds of terrorist related communications, at least
    in terms of protecting the homeland.''
        Now, for NSA the challenge was very acute. NSA intercepts
    communications, and it does so for only one purpose: to protect
    America, to protect the lives, the liberties, and the well-
    being of the citizens of the United States from those who would
    do us harm. By the late 1990s, that had become increasingly
    difficult. The explosion of modern communications in terms of
    volume, variety, and velocity threatened to overwhelm us as an
    agency.
        The September 11th attacks exposed an even more critical
    and fundamental fault line. The laws of the United States do,
    and should, distinguish between the information space that is
    America and the rest of the planet.
        The laws of the United States do, and should, distinguish
    between the information space that is America and the rest of
    the planet.
        But modern telecommunications do not so cleanly respect
    that geographic distinction. All of us exist on a unitary,
    integrated, global telecommunications grid in which geography
    is an increasingly irrelevant factor. What does ``place'' mean
    when one is traversing the Internet? There are no area codes on
    the World Wide Web.
        And if modern telecommunications muted the distinctions of
    geography, our enemy seemed to want to end the distinction
    altogether. After all, he killed 3,000 of our countrymen from
    within the homeland.
        In terms of both technology and the character of our enemy,
    ``in'' America and ``of'' America were no longer synonymous.
        I testified about this challenge in open session to the
    House Intel Committee in April of 2000. At the time I used a
    metaphor, an example, and I created some looks of disbelief
    when I said that if Osama bin Laden crossed the bridge from
    Niagara Falls, Ontario, to Niagara Falls, New York, there were
    provisions of U.S. law that would kick in and offer him some
    protections and would actually affect how NSA could now cover
    him. Now, at the time that was just a stark hypothetical.
    Seventeen months later, after the attacks, that was the reality
    we were facing.
        The legal regime under which NSA is operating, the Foreign
    Intelligence Surveillance Act, had been crafted to protect
    American liberty and American security.
        But the revolution in telecommunications technology has
    extended the actual impact of the FISA regime far beyond what
    Congress could ever have anticipated in 1978. And, frankly, I
    do not think anyone could make the claim that the FISA statute
    was designed to deal with a 9/11 or to deal with a legal enemy
    who likely already had armed combatants inside the United
    States.
        Because of the wording of the statute, the Government looks
    to four factors in assessing whether or not a court order is
    required before NSA can lawfully intercept a communication--
    and, again, you will not find these articulated as such in the
    statute. But the impact of the statute is that we look to four
    things so that we can decide whether or not a court order is
    needed before NSA does what it does routinely, and those
    factors are: who is the target, where is the target, how do we
    intercept the communication, and where do we intercept the
    communication. And, frankly, Mr. Chairman, the bill before the
    Committee today effectively re-examines the relevance of each
    of those factors and examines the criteria we now want to use
    going forward to use each of them. Let me just talk about each
    of them for a moment.
        Who is the target?
        The FISA regime from 1978 onward focused on specific court
    orders, against individual targets, individually justified and
    individually documented. That was well suited to a stable,
    foreign entity on which we wanted to focus for extended periods
    of time for foreign intelligence purposes. It is not as well
    suited to provide the agility to detect and prevent attacks
    against the homeland.
        Looked at another way, FISA's careful, individualized
    processes exact little cost when our goal is long-term
    surveillance and exhausting intelligence coverage against a
    known and recognizable agent of a foreign power. The costs are
    different when our objective is to detect and prevent attacks.
    The costs are different when we are in hot pursuit of
    communications entering or leaving the United States involving
    someone we believe to be associated with al Qaeda.
        Now, in this regard, extending the period for emergency
    FISAs to 7 days and allowing the Attorney General to delegate
    his authority to grant emergency orders is very welcome and I
    believe very appropriate.
        So, first of all, who is the target?
        Second, where is the target?
        As I said earlier, geography is becoming less relevant. In
    the age of the Internet and a global communications grid that
    routes communications by the cheapest available bandwidth
    available each nanosecond, should our statutes presume that all
    communications that touch America be equally protected?
        As the Chairman noted earlier this week, we do not limit
    our liberties by exempting from FISA's jurisdiction
    communications between two persons overseas that happen to get
    routed through U.S. facilities.
        Frankly, I think our limited resources should focus on
    protecting U.S. persons, not those entities who might get
    covered as a result of technological changes that have extended
    the impact and then the protection of FISA far beyond what its
    drafters could ever have intended.
        I know that Senator DeWine among others has been concerned
    about the allocations of these resources and FISA backlogs.
    And, frankly, now as Director of CIA, who must provide the
    predicate for FISA orders, I share his concerns in allocating
    resources and hope the legislation will help us properly focus
    resources on protecting the legitimate privacy rights of U.S.
    persons.
        Now, beyond who and where is the target, there is the
    question of how do we intercept the communication.
        For reasons that seemed sound at the time of enactment, the
    current statute under which we operate makes a distinction
    between collection ``on a wire'' and collections out of the
    air. Now, when the law was passed, almost all local calls were
    on a wire and almost all long-haul communications were in the
    air. Now, in an age of cell phones and fiber-optic cables, that
    is totally reversed--with powerful and unintended consequences
    for how NSA can lawfully acquire a signal. Legislators in 1978
    should not have been expected to predict the future of global
    telecommunications, and neither should you. My view is that the
    statute we develop should be technology neutral.
        And then, finally, beyond how do we intercept the
    communication, there is a question of where. Where do we
    intercept it?
        A single communication can transit the world even if the
    communicants are only a few miles apart. That happens
    routinely. And in that transit, NSA may have multiple
    opportunities to intercept it as it moves and as it changes
    medium. As long as a communication is otherwise lawfully
    targeted, I believe we should be indifferent to where the
    intercept is achieved. Signals intelligence is a difficult art
    and science, particularly in today's telecommunications
    universe. Intercept of a particular communication--one that
    would help protect the homeland, for example--is always
    probabilistic. It is never deterministic. No coverage is
    guaranteed. We simply need to be able to use all the technology
    tools we have.
        In that light, as I said earlier, there are no
    communications more important to the safety of the homeland
    than those affiliated with al Qaeda with one end of the
    communication in the United States. And so why should our laws
    make it more difficult to target the al Qaeda communications
    that are most important to us--those entering or leaving this
    country.
        Because of the nature of global telecommunications, we are
    playing with a tremendous home field advantage, and we need to
    exploit that edge. We also need to protect that edge, and we
    need to protect those who provide it to us. The proposed
    legislative language that requires compulsory compliance from
    carriers is a very important step in this regard.
        After 9/11, patriotic Americans from all walks of life
    assisted us, the intelligence community, in ensuring that we
    would not have another attack on our soil. Even prior to 9/11,
    we received critical assistance across the intelligence
    community from private entities. As Director of NSA, as Deputy
    DNI, now as Director of CIA, I understand that Government
    cannot do everything. At times, we need assistance from outside
    Government.
        Whatever legal differences and debates may occur about
    separation of powers, Article II, and other critical and very
    important issues, those people who help to protect America
    should not suffer as a part of this debate. I would urge the
    Committee to recognize the importance of those efforts of these
    Americans and provide appropriate protections.
        One final and very important point. Many of the steps
    contained in the proposed legislation will address the issue
    raised by the Congressional Joint Inquiry Commission: back
    again, one end U.S. conversations, communications that that
    Commission characterized as, again quoting, ``among the most
    critically important kinds of terrorist related communications
    . . . .''
        That means my friend here, General Alexander, and his
    agency, NSA, will bump up against information to, from, or
    about U.S. persons. Let me stress that NSA already routinely
    deals with this challenge and knows how to handle it while
    protecting U.S. privacy. I was very happy to note that the
    draft bill contains quite a bit of language about minimization
    and minimization procedures. Minimization is the process that
    NSA uses to protect U.S. privacy, to protect U.S. identities.
    The same rules of minimization that NSA now uses globally,
    rules that are approved by the Attorney General and thoroughly
    briefed to Congress, will be used under any activities that are
    authorized by the pending legislation.
        Let me close by saying that we have a great opportunity
    here. We can meet the original intent of the FISA Act to
    protect our liberty and our security by making the legislation
    relevant to both the technologies and the enemies we face.
        Thank you very much, and I know my colleagues have opening
    statements, but after them, I would be very happy to take
    questions.
        [The prepared statement of General Hayden appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, General Hayden.
        We now turn to Lt. General Alexander, who is now the
    Director of the National Security Agency. His bachelor's degree
    is from West Point; master of science in business
    administration from Boston University; master's degree in
    physics from the Naval Postgraduate School; another master's
    degree in national security strategy; has had a distinguished
    array of assignments and awards, and they will all be made a
    part of the record.
        We appreciate your service, General Alexander. We
    appreciate your coming in today, and the floor is yours.

    STATEMENT OF LT. GENERAL KEITH B. ALEXANDER, DIRECTOR, NATIONAL
        SECURITY AGENCY, CHIEF OF THE CENTRAL SECURITY SERVICE,
                            WASHINGTON, D.C.

        General Alexander. Thank you, Mr. Chairman. Good morning,
    Mr. Chairman, Senator Leahy, and members of the Committee. Sir,
    I have submitted a formal statement for the record. I will
    provide a brief summary of that statement at this time.
        Chairman Specter. Your full statement will be made a part
    of the record.
        General Alexander. Thank you, sir.
        I am pleased to be here today to provide testimony in
    support of the National Security Surveillance Act of 2006,
    which would amend the Foreign Intelligence Surveillance Act of
    1978. The changes proposed in the bill are, I believe, intended
    to recapture the original Congressional intent of the statute--
    ensuring the rights of the American people, our original
    Congressional intent, in providing for our Nation's security.
        As General Hayden indicated in his remarks, this is an
    important conversation not only for the intelligence community
    that will be called on to abide by the statute, but for all the
    American people. Advances in technology have had some
    unanticipated consequences in how the National Security Agency
    carries out its duties.
        While some of the specifics that support my testimony and
    support passage of this bill cannot be discussed in open
    session, and while I would be happy to elaborate at any time,
    sir, the content of that, let me succinctly say that
    communications technology has evolved in the 28 years since the
    bill was established in 1978 and today in ways, as General
    Hayden says, that were unforeseen by the folks who built that
    bill. The stunning technological changes in the communications
    environment that we have witnessed since the enactment of FISA
    have brought within the scope of the statute communications
    that we believe the 1978 Congress did not intend to be covered.
        A tremendous communications infrastructure has emerged in
    the United States, and both our own citizens and foreign
    persons outside the country use its awesome capabilities. The
    drafters of the FISA did not and could not have expected to
    anticipate this. The result, though, as General Hayden's
    testimony suggested, is that the U.S. Government is often
    required by the terms of the statute to obtain a court order to
    conduct surveillance of a target, of a foreign individual
    operating overseas but using that infrastructure. We believe
    the United States should be able to acquire communications of
    foreign intelligence targets overseas without a court order and
    that it ought not to matter whether we do so from the United
    States or elsewhere or how a particular communication makes its
    way from Point A to Point B.
        But because of the way the statute defines ``electronic
    surveillance,'' we frequently fail to make the most of one of
    the greatest advantages we have over our foreign adversaries:
    ready access to their communications present on a vast
    communications infrastructure located in our own Nation.
        We believe that the FISA of the future must contain a few
    critical provisions if the Government is to be successful in
    gathering intelligence about its adversaries.
        First, the statute needs to be technology neutral.
    Determinations about whether a court order is required should
    be based on considerations about the target of the surveillance
    rather than the particular means of communication or the
    location from which the surveillance is being conducted.
        Second, we must retain a means to compel communications
    companies to provide properly authorized assistance to the
    Government, and we must insulate those companies from liability
    when they do so.
        Third, the statute's definition of ``agent of a foreign
    power'' should be sufficiently broad to include visitors to the
    United States who may possess foreign intelligence information,
    even though they are not working on behalf of any foreign
    government.
        The Senate bill that we are looking at would effect the
    required changes.
        In closing, let me again express my thanks to the entire
    Committee for taking up this difficult but crucial issue--
    balancing the security of this country and the civil liberties
    of our people. And thank you for allowing those of us who will
    implement that balance the opportunity to participate in this
    hearing.
        [The prepared statement of General Alexander appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, General Alexander.
        We now turn to Steven Bradbury, Acting Assistant Attorney
    General, Office of Legal Counsel. He had been the Principal
    Deputy Assistant Attorney General in the same Department.
    Bachelor's degree from Stanford; a law degree from Michigan
    magna cum laude; has had a distinguished career in private
    practice and was a law clerk to Judge Buckley of the D.C. Court
    of Appeals.
        At the outset, Mr. Bradbury, I want to publicly acknowledge
    your legal abilities and your courtesies in working through the
    drafting of the legislation which we are considering today,
    jointly with Michael O'Neill, the Chief Counsel and Staff
    Director of the Judiciary Committee.
        We are pleased to have you here today, and we look forward
    to your testimony.

      STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
     GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
                            WASHINGTON, D.C.

        Mr. Bradbury. Thank you, Mr. Chairman. It has been a
    pleasure to work with you and Mr. O'Neill, and it is a pleasure
    to be back before the Committee today.
        Mr. Chairman, Senator Leahy, Senator Kennedy, members of
    the Committee, foreign intelligence surveillance is a critical
    tool in our common effort to prevent another catastrophic
    attack on the United States. The enemies we face operate in
    obscurity through secret cells that communicate globally while
    plotting to carry out surprise attacks from within our
    communities. We all recognize the fundamental challenge the war
    on terror presents to a free society: to detect and prevent the
    next 9/11, while steadfastly safeguarding the liberties we
    cherish. Maintaining the constitutional balance between
    security and liberty must be the polestar in any legislative
    effort to reframe the FISA statute.
        The past 28 years since the enactment of FISA have seen
    perhaps the greatest transformation in modes of communications
    in the history of the world.
        Innovations in communications technology have fundamentally
    transformed how our enemies communicate and, therefore, how
    they plot and plan their next attacks. It is more than a little
    ironic that al Qaeda is so expert in exploiting the
    communications tools of the Internet age to advance extremist
    goals of intolerance and tyranny that are more suited to the
    12th century than the 21st. Meanwhile, the United States
    confronts the threat of al Qaeda with a legal regime geared
    more toward traditional case-by-case investigations.
        The limitations of the traditional FISA process and the
    acute need to establish an early warning system to detect and
    prevent further al Qaeda attacks in the wake of 9/11 led the
    President to authorize the Terrorist Surveillance Program. As
    he has described, that program, which has been the subject of
    prior hearings before this Committee, involves the NSA's
    monitoring of international communications into and out of the
    United States where there are reasonable grounds to believe
    that at least one party to the communication is a member or
    agent of al Qaeda or an affiliated terrorist organization.
        This Committee is currently considering several pieces of
    legislation addressing FISA and the Terrorist Surveillance
    Program. I want to thank the Chairman again for his leadership
    on these issues and for his hard work in crafting a
    comprehensive approach that will help us fight terrorists more
    effectively and gather critical foreign intelligence more
    efficiently. I also wish to thank Senator DeWine, who has also
    introduced a bill, cosponsored by Senator Graham, which
    represents a very positive approach to the issues presented by
    the Terrorist Surveillance Program. The administration urges
    the Committee to approve both of these bills promptly, and we
    look forward to working with the Congress as a whole as this
    legislation moves ahead and with the Intel Committees, in
    particular, where technical changes can be appropriately
    discussed to ensure that FISA as amended will provide the
    Nation with the tools it needs to confront our adversaries.
        Fundamentally, Chairman Specter's legislation recognizes
    that in times of national emergency and armed conflict
    involving an exigent terrorist threat, the President may need
    to act with agility and dispatch to protect the country by
    putting in place a program of surveillance targeted at the
    terrorists and designed to detect and prevent the next attack.
        At the same time, however, Chairman Specter's legislation
    will provide an important new role for the judicial branch in
    the review of such Presidential programs, in addition to
    oversight by the Intelligence Committees of the Congress. His
    bill would add a new title to FISA under which the FISA Court,
    subject to certain requirements, would have jurisdiction to
    issue an order approving a program of terrorist surveillance
    authorized by the President. This legislation would create for
    the first time an innovative procedure whereby the Attorney
    General will be able to bring such a surveillance program
    promptly to the FISA Court for a judicial determination that it
    is constitutional and reasonable, in compliance with the
    requirements of the Fourth Amendment. The FISA Court would also
    be authorized to review the particulars of the program and the
    minimization procedures in place, to help ensure that the
    surveillance is focused on the terrorist threat and that
    information collected about U.S. persons is properly minimized.
    The availability of these procedures and the ability of the
    FISA Court to issue an order approving a program of electronic
    surveillance will strongly encourage Presidents in the future
    to bring such programs under judicial supervision.
        As Chairman Specter has announced, in response to this
    proposal and the other positive innovations contained in the
    Chairman's bill, the President has pledged to the Chairman that
    he will submit his Terrorist Surveillance Program to the FISA
    Court for approval, if the chairman's legislation were enacted
    in its current form, or with further amendments sought by the
    administration.
        Chairman Specter's legislation would also protect sensitive
    national security programs from the risk of disclosure and
    uneven treatment in the various district courts where
    litigation may be brought. Under his bill, the United States,
    acting through the Attorney General, could require that
    litigation matters putting in issue the legality of alleged
    communications intelligence activities of the United States be
    transferred to the FISA Court of Review, subject to the
    preservation of all litigation privileges. The Court of Review
    would have jurisdiction to make authoritative rulings as to
    standing and legality under procedures that would ensure
    protection of sensitive national security information and
    promote uniformity in the law.
        In addition to the innovations I have described, Chairman
    Specter's legislation includes several important reforms to
    update FISA for the 21st century. These changes are designed to
    account for the fundamental changes in technology that have
    occurred since FISA's enactment in 1978, and to make FISA more
    effective and more useful in addressing the foreign
    intelligence needs of the United States in protecting the
    Nation from the unique threats of international terrorism.
        Mr. Chairman, thank you for the opportunity to appear today
    to discuss this important issue. We look forward to working
    with Congress on this critical matter, and today we urge the
    Committee to give speedy approval to the bills introduced by
    Chairman Specter and Senator DeWine.
        Thank you.
        [The prepared statement of Mr. Bradbury appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Mr. Bradbury.
        After consultation with Senator Leahy, we are going to set
    the rounds at 7 minutes for members, and we will proceed to
    that now.
        General Alexander, there would be much more comfort by
    everyone, including myself, if we could have individualized
    warrants so that the FISA Court would function as it does now.
    An application is made. There is a showing of what the
    Government contends is probable cause, and there is an
    individualized determination on granting the warrant. Now, it
    has been reported that the program in operation is so massive
    that that cannot be accommodated.
        If any of this requires going into closed session,
    gentlemen, we are prepared to do that. But to the extent you
    can comment publicly, I think there is great merit in it so
    that there is an understanding of the program to the maximum
    extent consistent with national security.
        So my question to you, General Alexander: would it be
    possible with additional resources to structure a program, to
    get what information you are getting here on an individualized
    basis?
        General Alexander. Sir, let me answer that this way--and I
    would ask Steve to make sure I say it exactly correct. But as
    General Hayden, Steve, and I have laid out for you, if you take
    away the foreign portion of that, where the true bill asks us
    to get a warrant on a U.S. person in the United States, if you
    take out foreign, overseas, other targets that we are talking
    about, which your bill does do, you are now back to a
    manageable level. And getting a court order for everyone in the
    United States is doable and one that we think should be done in
    that regard, and it is in the statute.
        So the real issue is intermixed into the domestic is the
    foreign. Your bill separates that and makes it manageable.
        Chairman Specter. Well, let me focus the question more
    pointedly in light of what you just said. Is it possible to
    have individualized warrants where your focus is on a foreign
    speaker, but your invasion necessarily involves a citizen in
    the United States? Would it be practical to have individualized
    warrants and still carry out the program which you have now?
        General Alexander. Well, there is the technology part of
    the thing that we each discussed briefly which would--
        Senator Feinstein. Could you speak up, please?
        General Alexander. Yes, ma'am. This is the part that we
    each discussed briefly in that if overseas we are collecting a
    foreign--going after a foreign target, no matter who that
    person is talking to, we are authorized under Executive order
    to collect that communications. That is the where. If we
    collect it here and it happens to go to a U.S. person, we have
    to stop and get a court order.
        So the predominant number of our targets are foreign
    targets, and the question is: If we make every foreign
    application, because we are using the infrastructure in the
    United States, an application that we have to do here in the
    United States, you have cut out the most important advantage
    that we have--our communications infrastructure.
        Chairman Specter. General Hayden, let me move to another
    question with you. You said that there has been some help,
    assistance, in not having another attack on our soil. One of
    the key factors is evaluating the intrusion on privacy. How
    valuable is the information which is obtained? Can you amplify
    in open session whether information obtained has prevented
    another attack? Or to what extent has that information been of
    significant value for national security in weighing the
    balancing act of invasion of privacy?
        General Hayden. Yes, sir, Senator. In open session I will
    have to speak in generalities, but I can say with great
    confidence in all three positions--CIA, DNI, and particularly
    NSA--in broad terms, the support we get from the broader
    community of America in all of its shapes and forms has been
    absolutely invaluable in helping in this case NSA do its
    mission.
        Chairman Specter. Can you say whether it has ever prevented
    another attack?
        General Hayden. I can say that the program that we are
    talking about here, the Terrorist Surveillance Program, has
    been used to disrupt and degrade enemy activity, to break up
    cells. Can I claim that, you know, there was a sniper on the
    roof with a round in the chamber and we intercepted it at that
    point? No. But we have gotten information we would not
    otherwise have had, and it has enabled us to disrupt clear al
    Qaeda attempts to do harm inside the United States.
        Chairman Specter. General Hayden, moving to another issue,
    when you have the information going to the FISA Court with its
    secrecy provisions, contrast that with going, say, to a
    district court, say in San Francisco, with respect to the
    complexity of the issues, as to the explanation of the nature
    of the program--and I am open to having other courts besides
    the FISA Court consider the program. I am not concrete on that.
    In order to get the President's signature to a modified bill,
    we have to have his agreement. But when we had the
    negotiations, we talked about changes to the bill. The
    President wants some improvements in the bill. They would have
    to be negotiated to his satisfaction. And in wrestling with
    this issue of consolidation in the FISA Court, we have done so
    because we know that the FISA Court has a background in the
    program, has an understanding of the national security risks,
    knows the details of the program. And we are considering
    whether it ought to be another court, so that is an advantage
    in having other judges and not necessarily having in a secret
    court. And we have to work through the question as to a public
    disclosure. When we had an opinion of the FISA appellate court,
    it was made public, and I think the decision of the FISA Court
    would reach the public one way or another.
        But contrast, if you will--and my red light is not quite on
    yet. Contrast, if you will, taking the cases to district court,
    like San Francisco, contrasted with the FISA Court.
        General Hayden. Mr. Chairman, I am personally delighted
    that these issues would be placed in front of a court that, No.
    1, is most knowledgeable about this whole universe of activity
    and understands in actually, I think, very clear terms what NSA
    does as a matter of routine and understands the care with which
    the agency guards privacy and can make an accurate assessment
    of the issue that is placed in front of the Court. And I would
    then add that having it in front of a single court I think
    actually helps the cause of justice so that there is a unitary
    national view as to what constitutes the correct balance, the
    correct line, as Steve has mentioned earlier, between security
    and liberty.
        Chairman Specter. Senator Leahy.
        Senator Leahy. Thank you, Mr. Chairman.
        General Alexander, in my opening statement I mentioned that
    FISA has been amended six times in the last 5 years. Now, to my
    knowledge, the administration never in that time asked for any
    of the changes that are contained in Section 9 of the
    Chairman's bill. To the contrary, the administration has
    repeatedly said that the 2001 PATRIOT Act updated and
    modernized FISA. And so if Section 9s provisions were so
    essential, why didn't we hear about them before now? Why this
    sudden demand for an overhaul of FISA?
        General Alexander. Sir, I don't know the exact answer for
    why it was never brought forward, but I can tell you there was
    great concern about revealing to an adversary an advantage that
    we had by making public some of the things that we could do.
    That has happened in the press--
        Senator Leahy. Well, let me follow that a little bit. I am
    told that this request originated at the NSA. Is that correct?
        General Hayden. Yes, sir.
        Senator Leahy. So I would ask this of you, General
    Alexander, and then General Hayden. Earlier this year the
    administration said it did not ask Congress to authorize the
    so-called Terrorist Surveillance Program, according to what you
    started to say, because talking about it may tip off our enemy.
    Do you think our discussion today about possible amendments to
    FISA is doing that?
        General Alexander. I do not believe the amendments that
    have gone in the past have gone to the extent that we are
    talking about in this change of this bill here. Specifically,
    we have never brought forward the specifics on the advantage
    that we have in our home communications, our U.S.--
        Senator Leahy. Do you believe this discussion is tipping
    off our enemies in any way?
        General Alexander. We have to be concerned, sir. Clearly,
    we do not want to give any advantage to our adversaries, and so
    the hesitancy is not just my own ignorance on this, but making
    sure that I do not say something that would--
        Senator Leahy. General Hayden.
        General Hayden. Yes, sir. When the program began the
    Terrorist Surveillance Program, we at NSA felt we had two
    lawful approaches in which to conduct our operations against al
    Qaeda--one is outlined in the traditional FISA Act, one under
    the President's authorization. We were quite happy to use both
    authorities, and we did. And in discussions as to whether or
    not we should move what had been authorized by the President
    under both his constitutional authorities and the
    administration's reading of the AUMF, in the discussions of
    whether or not we should move that under the FISA Act, it
    really was a compelling concern as to how much of this could be
    discussed in open session.
        What has happened in the last 7 months is much of this
    program has already been put out into the public domain. That
    inoculates some of the discussion we are having today against
    some of the down sides. But, Senator, there will be questions,
    I am sure, you will ask any of the three of us that we will not
    be able to answer in open session.
        Senator Leahy. Let me ask Mr. Bradbury, when Attorney
    General Gonzales testified last week, he agreed with Senator
    Specter that the language in his bill that repeals FISA's
    exclusivity provision and recognizes the President's inherent
    authority to collect foreign intelligence is essentially
    meaningless. To quote the Attorney General, ``It does not
    change the status quo.''
        If that is the case, can I assume you would have no
    objection to striking this language in the bill if all it does
    is state the status quo? Yes or no.
        Mr. Bradbury. I am not able to answer that yes or no,
    Senator. I will say this: In our approach to these issues--and
    I think it is reflected in the legal analysis presented in our
    paper back in January on this program--it has always been our
    approach to endeavor to avoid a constitutional clash between
    the branches. And we think that is the way a court would
    address these issues.
        Senator Leahy. But the Attorney General said--do you agree
    with the Attorney General when he says all this does is state
    the status quo?
        Mr. Bradbury. Well, the status quo certainly is the case,
    Senator, that the President has authority under Article II--
        Senator Leahy. Do you agree with the Attorney General?
        Mr. Bradbury.--and the status quo is as the Court of
    Review--
        Senator Leahy. But my question--
        Chairman Specter. Let him finish his answer.
        Senator Leahy. But he is not answering my question.
        Chairman Specter. Well, let him answer.
        Senator Leahy. Do you agree with the Attorney General?
        Mr. Bradbury. I agree that as the Court of Review, the FISA
    Court of Review has stated that the FISA statute cannot take
    away the President's constitutional authority.
        Senator Leahy. OK. So I do not know whether you agree with
    the Attorney General or not. I will let you discuss it with him
    whether you agree with him or not.
        Suppose the Government wants to monitor a telephone
    conversation or e-mails coming into the United States from
    American soldiers who are serving in Iraq. Now, let's stipulate
    it does not apply--it is not being done--this is for you, Mr.
    Bradbury. It is not being done for law enforcement purposes, so
    Title III does not apply. Now, under current law, if the
    Government acquires these communications off wires in the
    United States, it would need a warrant. What about under the
    new definition of ``electronic surveillance'' in the Chairman's
    bill? Would the Government still need a warrant to intercept
    communications from our men and women in Iraq to their family
    members back at home?
        Mr. Bradbury. If you are talking about a communication
    which is international and if you are not targeting a person in
    the United States to try to collect information about that
    person in the United States, it would not fall within the
    amended definition of ``electronic surveillance.''
        Senator Leahy. So you would not need a warrant to collect
    it. They are e-mailing to their parents, spouses, and what-not
    back home. You would not need a--
        Mr. Bradbury. If you are attempting to collect information
    about persons in the United States, which you--
        Senator Leahy. No, no.
        Mr. Bradbury. It depends--
        Senator Leahy. No, no. I left out--I said there is no law
    enforcement. It simply--
        Mr. Bradbury. Well, it does not have to--Senator, it does
    not have to be law enforcement. Any effort to collect
    information about persons in the United States would fall
    within the definition of ``electronic surveillance'' if you are
    targeting those persons. So you really need to look at--and
    that is, I think, the fundamental point that the Generals have
    made, is what we believe the statute ought to focus on is who
    is it you are trying to collect information about and--
        Senator Leahy. I made it very clear. I said that you have a
    soldier in Iraq--let's make it even clearer. A soldier in Iraq
    is sending an e-mail to his wife. He is not of any interest to
    law enforcement. He is not suspected of doing any crime or
    anything else. Would you need a warrant to collect that e-mail
    or could you just pick it up and put it into your Government
    banks?
        Mr. Bradbury. Well, I will say, Senator, that today under
    existing law, if you are collecting that internationally
    flowing communication anywhere else in the world, you can do
    that without any court approval. That is done today pursuant to
    Executive Order when it is done for national security purposes.
        Now, these agencies operate for national security purposes
    and not simply to eavesdrop on people's private conversations
    when there is not any national security interest or foreign
    intelligence--
        Senator Leahy. Would your message be, then, that somebody
    sending an e-mail to their spouse back here from Iraq, they
    probably better be pretty careful what they say, that it is
    going to be in a Government data base somewhere?
        Mr. Bradbury. No, I would not because, as I have tried to
    just indicate, all of the authorities of these agencies, when
    they are operating today, Senator, under Executive Order--it is
    called Executive Order 12333, which we have existed under since
    the 1970s. The only collection that these agencies can do under
    that Executive Order is for foreign intelligence purposes. That
    is quite apart from any statutory requirements under FISA. So
    there is no listening in except for foreign intelligence
    purposes. And that is the fundamental point. It does not matter
    whose communication you are listening in to or where it is
    collected. It has to be for foreign intelligence purposes.
        Senator Leahy. That does not answer the question, but I
    will go into it on my next round.
        Chairman Specter. The vote is under way. We are going to
    adjourn very briefly. Senator Cornyn and I are going to be very
    swift in moving over and back, and when we come back, we will
    pick up with Senator Cornyn.
        We stand in recess for just a few minutes.
        [Recess 10:10 a.m. to 10:27 a.m.]
        Chairman Specter. The Committee will resume.
        Senator Cornyn.
        Senator Cornyn. Well, thank you, Mr. Chairman, and I want
    to express my gratitude to the witnesses for being here today
    to talk about this important subject. I would hope that we
    could all start from a basic premise, and that is that we
    should use all legal means available to us to collect
    information from our enemies that would help us fight and win
    the global war on terror. I think that we would all agree with
    that. I am confident you would. Sometimes I wonder when I hear
    some of the public debate.
        But I want to maybe start with you, Mr. Bradbury. Early on,
    when the New York Times broke the story about the Terrorist
    Surveillance Program, there were allegations that there had
    been a violation of the law, that this was unlawful. But as the
    Chairman pointed out, my recollection is there have been at
    least three courts that have expressly acknowledged the
    President's inherent power under the Constitution to collect
    foreign intelligence during a time of war. Is my recollection
    correct?
        Mr. Bradbury. That is correct, Senator. The Fourth Circuit,
    the Second Circuit, other circuits--in fact, more than three,
    and then, of course, the FISA Court of Review acknowledged
    that.
        Senator Cornyn. Well, that was going to be my next point.
    The very court that Congress created to oversee the decisions
    of the Foreign Intelligence Surveillance Court and the FISA
    Court of Review has acknowledged in a written opinion the
    President's inherent authority under Article II to conduct, in
    essence, this battlefield intelligence gathering. Isn't that
    right?
        Mr. Bradbury. That is correct, Senator.
        Senator Cornyn. Are you aware of any court that has held
    the Terrorist Surveillance Program to be unlawful?
        Mr. Bradbury. No, Senator. No court has reached that issue.
        Senator Cornyn. So the only courts that have spoken to it
    have held that this is a lawful exercise of the President's
    authority under the Constitution.
        Mr. Bradbury. The only decisions from courts are that the
    President generally has authority under Article II to protect
    the country through foreign intelligence surveillance.
        Senator Cornyn. Well, I would hope that--because I think I
    agree with your assessment. That is certainly my understanding.
    And I would hope that those who would try to scare people or
    make allegations of rampant sort of unlawful or rogue conduct
    would bring their rhetoric down a little bit because, in fact,
    the only decisions we do have from courts indicate that the
    President does have that authority under appropriate
    circumstances.
        I want to also ask General Hayden and General Alexander,
    there was some statement made earlier on in the hearing today
    that the capability that the NSA has been using, that the U.S.
    Government has been using, to intercept international
    communications between al Qaeda operatives and folks here in
    the United States who may be their allies, that this is somehow
    unchecked authority. But I just want to ask a little bit about
    that.
        It is my recollection that this program is reviewed every
    45 days internally within the NSA and the administration. It is
    my recollection that it has been briefed to the FISA Court
    judges, if not all of them, at least the chief judge, and maybe
    some others, and if you can help me there.
        It has also been briefed since the inception to leaders on
    a bicameral and a bipartisan basis, the leaders of the House
    and the Senate, as well as the Chairmen and Ranking Members of
    both the House and Senate Intelligence Committees. Did I
    summarize that correctly?
        General Hayden. Yes, sir. That is correct, Senator.
        Senator Cornyn. Well, to me that seems like it comes in
    some conflict with the idea that this authority is unchecked,
    and that is my conclusion. You do not have to agree or
    disagree.
        One reason I support Senator Specter's bill is because it
    does acknowledge this authority, but it creates a way to try to
    accommodate the legitimate concerns that Members of Congress
    have and to make sure that Congress is a full partner in the
    process of striking the balance, General Hayden, that you
    talked about between privacy concerns and our ability to
    collect intelligence by all lawful means.
        Mr. Bradbury, I wonder, though, if you could tell me, do
    you view this bill to be a substantial change from the status
    quo? There was some question about that. Or is it a
    ratification, more or less, by Congress that the President has
    that authority and then create other procedures that are
    essentially consistent with what is already happening now?
        Mr. Bradbury. Well, of course, Senator, as the Chairman
    made clear in his opening remarks, the status quo today is that
    the President has exercised his authority, both under the
    Constitution and his view of the Authorization for the Use of
    Military Force and has established a Terrorist Surveillance
    Program independent of FISA in an effort to try to detect
    communications that may be leading to another attack on the
    country. And so this legislation would recognize that existing
    fact, but it would make a very substantial change in FISA today
    by adding a new title that would give the Court jurisdiction to
    review such a program on a program-wide basis, and that is an
    important new tool that any President would have going forward.
    And it is because of that innovative new tool that would really
    allow for efficient judicial review of such a program in
    wartime, that the President would take the program then to the
    Court for its review.
        So I applaud, again, the Chairman for the legislation and
    for that effort, because I do think that is a very important--
    would be a very important change in the current statutes.
        Senator Cornyn. Well, thank you very much for that
    clarification, and I think you are certainly correct.
        I know, General Alexander, there was some question about
    whether the NSA was intercepting Internet communications
    between a soldier in Iraq and their family members at home. You
    are a soldier, are you not, sir?
        General Alexander. Yes, sir.
        Senator Cornyn. And you certainly, I know, have an interest
    in not undermining the privacy rights of an American citizen
    serving his country and defending freedom in Iraq. Are you
    spending your time targeting American citizen soldiers in Iraq
    in your spare time?
        General Alexander. No, sir, we are not, nor would we. If we
    do, we have procedures through the Attorney General overseas,
    if it is against a U.S. person, or a court order here in the
    United States. And both of those would be followed.
        I would tell you, I would be more concerned about other
    nations looking at our soldiers, which they do, and terrorists.
    And so the fact that we can do it, others can do it, too. And
    so the greatest concern is the Operation Security that goes
    along with the soldier communications, which they in Iraq know
    very well. And as you know, sir, from the soldiers there, they
    treat OPSEC as very important to their own survival.
        General Hayden. Senator, could I just emphasize a point
    that General Alexander brought up? The procedures in place
    today, which will not be affected by the act before the
    Committee, is that in order to target a protected person, a
    U.S. person--and that definition goes beyond just citizens of
    the United States. In order to target a protected person
    overseas, it now requires, well, now General Alexander to make
    a case to the Attorney General that this is for foreign
    intelligence purposes and that the target of the activity is
    the agent of a foreign power. And that would not be changed by
    the legislation.
        Mr. Bradbury. I am sorry. Just to emphasize that triply,
    what I mentioned before in response to the question from
    Senator Leahy is that there are authorities today under
    Executive Order to do foreign intelligence surveillance. But
    those authorities, if you are talking about targeting the
    communications of a U.S. person, like a U.S. soldier in Iraq,
    require both that it be for a foreign intelligence purpose and
    that the Attorney General expressly approve it. And that is
    under existing Executive Order. That would remain unchanged by
    this legislation.
        Senator Cornyn. Thank you.
        Chairman Specter. Thank you, Senator Cornyn.
        Senator Kennedy.
        Senator Kennedy. Thank you very much, and I want to thank
    the panel, thank them for their service to the country,
    impressive backgrounds, experience and commitment.
        I was here when we did the FISA legislation. At that time,
    in 1976, President Ford and Attorney General Levi, worked very
    closely with the Judiciary Committee, the President and the
    Attorney General, and we worked out the FISA. It was enormously
    complex and complicated at that time, and the range of
    intelligence challenges are like an echo that I hear this
    morning. Everyone understood that there was cutting-edge, there
    was new information, dangerous times. And, we were able to work
    out legislation that only had one vote in opposition to it in
    the U.S. Senate, and it has worked.
        Obviously, there are suggestions and recommendations that
    could be made, but it worked and it had the confidence of the
    American people and the confidence of Congress about the
    protections of rights and liberties and also in getting
    information. All of us are in the same boat in terms of al
    Qaeda and the dangers that threaten this country. But as you
    have all eloquently stated, there is the balance between
    security and also the liberties with which we have to deal. And
    that is what many of us had hoped, that we would be able to
    work within this balance and the administration would work with
    us. We can handle sensitive and secret information and
    establish a process that I think would have given the American
    people the confidence that all of us were working together,
    Republican and Democrat, the President and the Congress, in a
    bipartisan way to really get at the core dangers that we were
    facing in protecting liberties. And that is what I think
    continues as the challenge, and the fact that we are still
    working on this is just enormously important.
        But that is the departure point, and there still continues
    to be frustration that we are unable to get to that point and
    do not have all of the information that we should have in order
    to legislate. The American Bar Association emphasizes the
    challenges that we are continuing to face under the
    circumstances.
        I am interested, in the time that I have, if you can just
    tell us--and we are very conscious of the facts that there is
    sensitive information on this. But can you tell us now the
    extent to which this is actually affecting Americans, Americans
    here at home? What we are talking about is to what extent are
    they included in this program?
        General Hayden. Senator, I will start since I was there
    when the program began.
        Senator Kennedy. Okay.
        General Hayden. And I mean this very sincerely. Nothing
    more important to the people conducting this program than the
    privacy of Americans.
        Senator Kennedy. Good.
        General Hayden. We understand--
        Senator Feinstein. Could you speak up, please?
        General Hayden. Yes, ma'am. Nothing more important in the
    conduct of this program than the privacy of Americans. After
    the story broke in the New York Times, I went out to talk to
    the NSA workforce that is involved in this, and it struck me
    that on the walls of the office in which this activity is
    conducted, there was a large poster that said, ``What
    constitutes a U.S. person? '' And the four different approaches
    by which one could gain the protection of a U.S. person were
    spelled out there, even in the bowels of the office that is
    responsible for this program. It is done very carefully. It is
    very targeted. There is a probable cause standard, before any
    communication is intercepted, that one or both communicants is,
    again, to a probable cause standard, associated with al Qaeda.
        So I know the sensitivities, Senator, and NSA is a powerful
    and a secretive organization. Those are the two things our
    political culture distrusts the most. But this is done with
    great care.
        Senator Kennedy. Well, I understand that, and the standard
    then is a probable cause standard. Is that correct?
        General Hayden. That is correct.
        Senator Kennedy. All right. But the question was: To the
    extent that Americans are included in this, can you tell us, or
    is that--what is the extent, what is the range?
        General Hayden. We have briefed the precise numbers to all
    members and some members of staff of both Intelligence
    Committees, Senator.
        Senator Kennedy. But even in the range--if you can't, you
    can't. But, I mean, are we talking about 20,000? Are we talking
    2 million? You can't do--
        General Hayden. I am not able to.
        Senator Kennedy. Can you tell us whether any of these are
    under continuing surveillance, that is, they go on for not only
    just a conversation but whether they are continuing, whether
    there are Americans that are subject to a continuing--this was
    an issue when we passed the FISA. Attorney General Levi spoke
    about this issue and question in terms of the legality of it,
    and this is an area that obviously is of concern. Can you tell
    us?
        General Alexander. Sir, if I can give you two things here
    in open session. The overwhelming focus in our collection is
    against the foreign entities by a tremendous margin, and
    everyone who has read into that is amazed when they see that.
    First and foremost, predominantly foreign. There are U.S. parts
    to that, and I cannot go into the details of the lengths of
    that. But it is all focused on the al Qaeda, and it is
    predominantly foreign.
        Go ahead, sir.
        General Hayden. I would just offer a point to make it very
    clear. The President has said a communication we believe to be
    affiliated with al Qaeda, associated with al Qaeda, one end of
    which is in the United States, and we believe at least one end
    we have a probable cause standard is al Qaeda. As General
    Alexander points out, overwhelmingly the end we believe to be
    affiliated with al Qaeda is a foreign end.
        Senator Kennedy. All right. And so just about the question
    of continuing and ongoing versus a single conversation, the
    extent of that, General Alexander?
        General Alexander. Sir, I am not sure I understand.
        Senator Kennedy. One thing is where you are listening to a
    conversation. The other is where you have the wiretap
    continuing for 24 hours a day.
        General Alexander. Right. Sir, we go through a very
    deliberate process to listen in on any conversation, just
    because of the sheer resources, whether it is in this program
    or any other program. And so as we started out, we know it is
    one end foreign. You cannot physically listen to millions of
    phone calls, nor would we. We are going to focus it down onto
    the most important ones, and we have ways and methods to do
    that that we should not discuss here.
        Senator Kennedy. All right. I am going to run out of time
    here, but let me ask you: Has any of the information that has
    been gathered to date in any of this been used in any legal
    proceedings here in a court or any trials to date?
        General Hayden. Senator, the process used is the process by
    which we use any foreign intelligence, and it moves outside of
    the intelligence community with all the appropriate caveats on
    it in terms of how it can be used in judicial procedures.
        Senator Kennedy. But can you tell us whether it has or has
    not been used?
        General Hayden. I don't know, Senator, again, because we
    put the caveats on it--
        General Alexander. Lead and investigative--
        General Hayden. Lead and investigative purposes is what it
    says.
        Senator Kennedy. My time is up, Mr. Chairman. Thank you.
        Chairman Specter. Thank you, Senator Kennedy.
        Senator Feinstein.
        Senator Feinstein. Thank you very much, Mr. Chairman, and
    thank you for the hearing. I would like to just say one thing,
    and that is, as a member of the Intelligence Committee, I have
    been briefed on the program. And I am strongly opposed to
    giving this President or any President the right to collect
    content--to collect content on United States persons without a
    warrant. And today for the first time we heard General
    Alexander state that if the foreign-to-foreign switching is
    taken care of, the program is easily accommodatable to an
    individual warrant for U.S. persons in content collection. Is
    that not correct, General?
        General Alexander. Not quite, ma'am, if I might just state
    it in my words: that if the foreign selectors that we are going
    after, which some of those--it depends on where the target is,
    and this goes back to the definition of ``electronic
    surveillance.'' And so it is not necessary--if we are going
    after a terrorist in country A and he is talking to somebody in
    country B, we are authorized to go after that. If that same
    terrorist we are targeting happens to go into the United
    States, we are authorized to collect that overseas also and
    minimize the U.S. person's data.
        The issue that I was describing is now, under the current
    FISA, if I collect that in the United States, I have to get a
    warrant for it. So what you would have us do is overseas I
    could do it and minimize it. Today I lost the advantage of
    being able to do that in the United States. If that portion of
    the targeting in the definition of this ``electronic
    surveillance'' we believe that is adjusted in this proposal
    that meets both of those and that that would then allow us to--
        Senator Feinstein. And both ends are foreign to foreign?
        General Alexander. Not necessarily. The target of the
    selector is foreign, and the question is where are they
    calling.
        Senator Feinstein. Well, I know those numbers, too.
        General Alexander. Right.
        Senator Feinstein. And I do not think that those numbers
    are necessarily prohibitive from a FISA warrant, nor do I
    believe that it would take that much time for a FISA warrant.
        General Alexander. But it would require us, ma'am, if I
    might, it would require us to get a FISA on every foreign one
    in advance because we do not know who they are calling until it
    has happened.
        Senator Feinstein. Oh.
        Mr. Bradbury. Senator, may I also just add a point, if I
    might?
        Senator Feinstein. Certainly.
        Mr. Bradbury. In the Chairman's legislation, there would
    also be a number of other reforms to FISA which would greatly
    assist in the general ability to get FISAs even for domestic
    targets. For example, the FISA application process would be
    streamlined. The amount of information required for an
    application would be reduced.
        Senator Feinstein. That was in my bill, too.
        Mr. Bradbury. Yes, it was.
        Senator Feinstein. I believe Senator Specter took it from
    my bill.
        Mr. Bradbury. Absolutely. It is a good idea, and good ideas
    should be liberally--
        Senator Feinstein. I just wanted to make that clear.
        Chairman Specter. I had thought that was our bill, the
        Feinstein-Specter bill.
        [Laughter.]
        Senator Feinstein. I am delighted. Yes, it is our bill.
        Mr. Bradbury. In addition--and this may also be in your
    legislation, Madam Senator--the emergency authorization period
    would be extended from 3 days to 7 days. The ability to
    authorize it would be liberalized. And then perhaps most
    importantly, if the reforms are made to the definition of what
    is covered, to take out the international communications that
    are not really historically the primary focus of FISA, that, of
    course, by itself would free up a lot of resources in terms of
    the Office of Intelligence Policy and Review that makes the
    applications to FISA.
        So all of those combined would necessarily make it much
    easier to get quick approvals for those domestic targets of
    necessary intelligence surveillance.
        General Hayden. That is why I tried to craft my opening
    comments about those four criteria, and very frequently NSA is
    required to get FISAs not because of who is targeted, but
    because of one of those other three criteria. And what this
    legislation does is move the legal focus back to who are you
    targeting rather than these techniques or accidents of how you
    actually carry it out.
        Senator Feinstein. Well, let me raise one other point.
    Senator Specter's new FISA bill also eliminates the 15-day
    window on surveillance following a declaration of war. And this
    could be interpreted to mean that after a declaration of war,
    the President has unlimited wiretap authority until the end of
    the war. How long under this new Specter version would a
    President's authority last? Could it last for decades?
        Mr. Bradbury. Well, Madam Senator, the President's
    authority to protect the country comes in large measure from
    his authority under Article II. Of course, with the Terrorist
    Surveillance Program, that has been in place now since shortly
    after 9/11.
        It is our view, as we tried to explain in--
        Senator Feinstein. If you do not mind, let me just
    interrupt you.
        Mr. Bradbury. Absolutely.
        Senator Feinstein. Because it seems to me you are buying
    into--the administration is buying into a concept, and that is
    Senator Specter's bill. Therefore, you are tacitly confining
    your Article II authority within the confines of the Specter
    bill, as I understand it. So I am asking you the question. One
    of the amendments made is to delete this 15-day period, which,
    therefore, once deleted, also has an interpretation that it is
    without end.
        Mr. Bradbury. Well, there would be no express provision
    that says in time of war that the limitations of FISA do not
    apply. The current provision says if there were a declaration
    of war, none of the requirements or limitations in FISA would
    apply at all for 15 days. Now, there have only been five
    declarations of war in the history of the country, and we have
    not even come close to one since FISA was enacted in 1978.
        It is our view of that provision today in the legislation
    that, in effect, it is a determination by Congress back in
    1978, which was not a time of war, that in the event of armed
    conflict or declaration of war, the branches would come
    together and that there would be some accommodation made going
    forward during that wartime.
        It is not our view that it was a declaration by Congress
    that only 15 days of warrantless surveillance in wartime is all
    you need. I don't think that is what it was intended to mean.
    It was intended to give some leeway, all the rules are off, and
    then during that period there would be some special
    accommodation made. It was really, in effect, a decision by
    Congress in the 1970s to punt the question of what would happen
    during an actual armed conflict.
        Senator Feinstein. Mr. Chairman, would you allow me one
    other question?
        Chairman Specter. Yes. Proceed, Senator Feinstein.
        Senator Feinstein. Perhaps, Mr. Bradbury, you are the one
    to ask this question of. Is it your contention that the FISA
    Court is an Article III court?
        Mr. Bradbury. The judges are Article III judges, and, yes,
    they are serving in a special capacity for purposes of
    approving these orders. But, yes, they are Article III.
        Senator Feinstein. And to what do you attribute that? Where
    is the justification for finding it an Article III court?
        Mr. Bradbury. They are appointed for life with their
    compensation fixed, it cannot be reduced. They are Article III
    judges, and Congress by statute has given them a special
    assignment at the appointment of the Chief Justice. But that
    does not mean that they are not Article III judges. They act in
    their capacities as Article III judges, as does a court that
    approves, for example, a Title III warrant.
        Senator Feinstein. Isn't there a magistrate serving as a
    FISA Court judge?
        Mr. Bradbury. I am not aware of that. There are 11 FISA
    Court judges. I believe--don't hold me to this--that they are
    all district judges appointed by the Chief Justice.
        Senator Feinstein. Well, I am a little puzzled, Mr.
    Chairman, on this one point, because there is nothing in the
    FISA law that gives this court the ability to make programmatic
    approvals as opposed to grant warrants, individual warrants.
    And how when a court gives an advisory approval to a program
    and the constitutionality of such I think is questionable.
        Mr. Bradbury. Well, may I respond to that?
        Senator Feinstein. Yes, please.
        Mr. Bradbury. Interestingly enough, the FISA Court of
    Review in the In Re Sealed Case decision addressed the question
    of whether a FISA order under the current statute is a warrant
    or not. And the Court actually concluded that while it has a
    lot of characteristics of a warrant, the Court did not need to
    conclude or decide that it was a warrant, because foreign
    intelligence surveillance could be conducted before and after
    FISA as long as it is reasonable under the Fourth Amendment,
    and that the FISA procedures would ensure that any court order
    approving surveillance would ensure that that surveillance was
    reasonable under the Fourth Amendment.
        So it is not necessarily the case that a FISA order, even
    an individualized one, is a warrant for Fourth Amendment
    purposes. And the Fourth Amendment does not require a warrant
    in all circumstances. In special cases, there can be
    surveillance done, searches conducted without warrants, as long
    as they are reasonable, for example, in the area of foreign
    intelligence investigations and surveillance.
        Senator Feinstein. Are you making the argument that a FISA
    Court order for content collection is not a warrant?
        Mr. Bradbury. Well, the FISA Court of Review concluded that
    it did not need to decide that it was a warrant for it to be
    constitutional. So it does not have to be viewed as a warrant,
    and I would say that you are right that today FISA does not
    contain any procedure that would allow the FISA Court to give a
    program-wide order of approval to surveillance. The new title
    that would be created by the Chairman's bill would enable the
    Court to do that and would give the Court jurisdiction.
        But in terms of Article III and whether there is a case or
    controversy, I do not see a difference between the program-wide
    order and the individualized order. There would still be a case
    or controversy. It would be constitutional. The Attorney
    General as a result of that order could get an order from the
    Court that would compel cooperation to do what needs to be done
    to undertake the surveillance. And just as with a Title III
    warrant today, where the Government goes in ex parte to a
    district judge and gets approval for a Title III warrant, this
    is a similar construct. And it is similar to the FISA process
    today for FISA orders.
        There is the hypothetical person on the other side of the
    case--not hypothetical. But the people on the other side of the
    case are those people who would be under surveillance. That is
    the same in a Title III context or under FISA today. I really
    think it would function like FISA today. It would just be a
    program-wide order.
        Senator Feinstein. Well, you have been more than generous
    with your largesse, Mr. Chairman.
        Chairman Specter. How much more time would you like,
    Senator Feinstein?
        Senator Feinstein. Well, you see, I think this is kind of
    the crux of the matter, and--
        Chairman Specter. Senator Feinstein, proceed.
        Senator Feinstein. If you would just allow me for a minute,
    essentially there are no holds in your bill on a President's
    authority. Once there is this programmatic approval by the FISA
    Court, then individuals in this country can be wiretapped for
    content. And that wiretapping could go on forever. There is no
    duration.
        I would assume that others could be slipped into that
    program warrant, perhaps even without review. And what worries
    me is that once for content--meta data is something else, but
    for content, once you go to a programmatic approval, it opens
    the Pandora's box of all kinds of games that can be played with
    that because there is no timely periodic review of everybody
    whose content is being collected under that programmatic
    review, no decisions made as to how long that data can be
    maintained, when a decision can be made that the content
    collection should be cut off.
        Mr. Bradbury. Senator, that is not the case. Under the
    Chairman's bill, all of those things would be addressed by the
    Court in its review. So, for example, strict requirements would
    have to be met before the Court would be able to entertain such
    an application, it would have to be directed at foreign
    terrorist threats. There would have to be a showing that you
    could not use traditional FISA process. There would have to be
    a showing that there is special need for agility and
    flexibility and that you cannot identify all of the targets in
    advance. Then there would have to be special minimization
    procedures proposed and in place to protect any information
    about U.S. persons that might be caught up in the program.
        Then the Court would review it for reasonableness under the
    Fourth Amendment. The Fourth Amendment is not an open-ended
    blank check. The Fourth Amendment would not allow things to go
    on permanently, would not allow things to be general and not
    focused on the threat. All of those things would be taken into
    account and reviewed carefully by the Court. It could only be
    approved for 90 days, and then the Court would review it. You
    would have to come back in, and in reviewing it and
    reauthorizing it, the Court is charged under the legislation to
    look at, well, what has the actual collection been? Has it been
    focused, as the Attorney General said it would be? Have the
    minimization procedures been followed? All of those things
    would be subject to careful judicial review by the FISA Court.
        Senator Feinstein. All right. Knowing the numbers, foreign
    to foreign--
        Chairman Specter. Senator Feinstein, you are up to 8
    minutes over, which is another round.
        Senator Feinstein. I appreciate that.
        Chairman Specter. Why don't you ask your last question?
        Senator Feinstein. The last one. Knowing the numbers of the
    foreign to foreign, you are saying every one of them would be
    reviewed every 90 days?
        Mr. Bradbury. Well, in the Terrorist Surveillance Program
    of the President, we are talking about international
    communications in and out of the United States. And under the
    Chairman's proposal for this new program-wide order, it would
    be focused on surveillance where you are talking about
    communications to or from persons in the United States. So the
    foreign to foreign would not be the subject of such a program-
    wide order, but communication surveillance where there is a
    U.S.--or somebody in the United States is involved could be and
    would be the subject of such a program, and the Court would be
    free to ask, as the legislation makes clear, for any additional
    information the Court desires to review that program and to
    take a look at it very carefully and closely. So it would be up
    to the Court in making a judgment as to the reasonableness of
    the program, the targeted nature of it, et cetera.
        Senator Feinstein. Thank you. I appreciate it very much.
        Thank you, Mr. Chairman.
        Mr. Bradbury. Thank you, Senator.
        Chairman Specter. Thank you, Senator Feinstein.
        General Alexander, coming back to the question which I
    asked initially and you have expanded upon, would it be
    impractical or even impossible to have individualized warrants
    under the current surveillance program? You had responded in
    part that it would limit you when you were going after a
    foreign member, a foreign caller, someone who initiated the
    call abroad, not knowing whether it was going to be to a
    domestic location or not. Would you expand upon that?
        General Alexander. Yes, sir, and I will take from the
    testimony that we started out with in that who and where are
    the key parts of this. Who is the target that we are going
    after? Is it a foreign terrorist in a country outside the
    United States? If the target is outside the country making a
    call, then we should use every means possible--and I think
    everybody generally agrees with that--to go after that
    communication. The issue is if we conduct that in the United
    States and it happens to stop in the United States, in the
    United States we would need a warrant; outside the United
    States we could do it under Executive Order. So we have a
    problem.
        The issue then becomes do I get a court order for every
    foreign target that I have under the possibility that I could
    have collected it in the United States. That is what it does to
    us today. That is impractical. It would cause a tremendous
    burden on--
        Chairman Specter. Now, specifically, what is impractical?
    When you--
        General Alexander. The volume--
        Chairman Specter. Wait a minute.
        General Alexander. The volume of--
        Chairman Specter. Wait a minute. Let me ask the question so
    we have the framework. It is impossible or impractical to get
    an individualized warrant when the caller is outside the United
    States, not knowing whether the recipient will be inside the
    United States?
        General Alexander. Yes, sir. It would be impractical. I am
    not saying it would be impossible, but it would be impractical
    because we don't know what the foreign to U.S. number could
    possibly be. Would the requirement be, hypothetically, if that
    foreign number called all foreign numbers, you would say good
    to go. But if they called U.S. number 1, FISA. If he calls U.S.
    number 2, I have to get a new FISA. U.S. number 3, a new FISA.
    U.S. number 4, a new FISA. And what I am ending up doing is
    submitting for calls that have been happening, and what we
    would do is saturate--
        Chairman Specter. That is what you would have to do absent
    the surveillance program?
        General Alexander. That is correct.
        Chairman Specter. But with the surveillance program, you do
    not have to do that.
        Now, you say impractical, but not impossible?
        General Alexander. Well, you would not be effective.
        In my opinion, sir, from an operational--
        Chairman Specter. Why not effective?
        General Alexander. Because you would be so far behind the
    target, if you were in hot pursuit, with the numbers of
    applications that you would have to make and the times to make
    those, you could never catch up to the--
        Chairman Specter. So your conclusion is that to have
    individual warrants, it would not be practical or effective in
    what you are seeking to accomplish?
        General Alexander. That is correct.
        Chairman Specter. General Alexander, General Hayden, I
    think it would be useful if you supplemented your oral
    testimony in writing amplifying so you have an opportunity to
    present a fuller picture. We have had a pretty good dialog
    here.
        Senator Feinstein. If I might say particularly on--
        Chairman Specter. Are you on your time, Senator Feinstein?
    Let me proceed, Senator Feinstein, and we will come back to you
    after Senator Leahy, if the next vote does not come sooner.
        Mr. Bradbury, Senator Feinstein said that there are no
    holds and no limitations on what the President can do under my
    bill. But isn't it a fact that what the President can do under
    my bill is what the President is doing now and that it is
    measured by whatever his Article II powers are?
        Mr. Bradbury. Well, that is certainly correct.
        Chairman Specter. And isn't the determination as to whether
    he has Article II powers to do what he is doing now a balancing
    test so that on this state of the record, this Committee, not
    knowing the details of the program, is not in the position to
    say that it is an exercise within Article II or is it beyond
    Article II? Is that true?
        Mr. Bradbury. That is true, and I would add that the
    limitation and the real balancing test comes in through the
    Fourth Amendment, because whatever the President does is
    subject to the Fourth Amendment and--
        Chairman Specter. But we cannot determine that unless we
    know where the program is on the balancing test.
    Reasonableness, as you said earlier, depends on the threat and
    depends upon the invasion of privacy.
        Mr. Bradbury. That is correct.
        Chairman Specter. And that requires a judicial
    determination.
        Mr. Bradbury. Well, that is one very effective way to do
    it, and that is what your legislation would do. It would bring
    the Court in to make that determination.
        Chairman Specter. Is there any other way to obtain a
    judicial determination other than the FISA Court maintaining
    the secrecy that the President insists upon?
        Mr. Bradbury. Well, I think that is a very good mechanism
    for doing that. Obviously, there are 30 or so pieces of
    litigation around the country that have challenged various
    versions of what has been alleged in the media. We do not think
    those disparate matters in litigation in various district
    courts around the country is an effective or appropriate way
    for any of these determinations to be made.
        Chairman Specter. Let me move to a series of questions with
    the minute I have left. Isn't it true as a practical matter de
    facto that the Foreign Intelligence Surveillance Act is not now
    the sole means of wiretapping in the United States where you
    have one party in the United States and one party out of the
    United States?
        Mr. Bradbury. That is correct. The President's program is
    outside of FISA.
        Chairman Specter. So FISA is not the exclusive way. And
    isn't it also true that no statute, including the one I have
    proposed, can expand or contract the President's Article II
    powers?
        Mr. Bradbury. Well, I would say that statutes can
    reasonably regulate exercises of the President's constitutional
    authority. But where we see a real issue--and it is a very
    significant constitutional issue, and that is what the FISA
    Court of Review is talking about--is an effort to try to
    eliminate it or snuff it out. And that is where you get a real
    direct clash between the branches, and that is what we have
    always endeavored to avoid throughout this discussion. And I
    think your legislation recognizes that we all want to avoid
    that situation.
        Chairman Specter. With Senator Leahy's acquiescence, I am
    going to pursue this just a bit further. When you talk about
    reasonably regulate, you come to Justice Jackson's famous
    concurrence in the steel seizure case. He said that when the
    President exercises his constitutional power, plus a grant of
    authority from the Congress under Article I, then his power is
    at a maximum because he has two powers, Article II and Article
    I.
        Mr. Bradbury. That is correct.
        Chairman Specter. When he exercises Article II power alone,
    it is at the medium point, where he faces a situation where
    Congress has denied him certain authority, as where FISA is in
    existence, then he relies solely on his Article II power. But
    isn't that Article II power, whatever it is, as determined by
    the balancing test on the invasion of privacy versus the
    national security interest involved?
        Mr. Bradbury. That is right.
        Chairman Specter. A final question. This provision in the
    bill has been cited repeatedly as a negative comment: ``Nothing
    in this Act shall be construed to limit the constitutional
    authority of the President to collect intelligence with respect
    to foreign powers and agents of foreign powers.''
        Now, the best illustration of that is a wiretap of a
    foreign embassy. Isn't it true that that line was in the FISA
    Act of 1978?
        Mr. Bradbury. It was. I believe, Mr. Chairman, it was
    amended to take it out at a later point, and this legislation
    would reinstate it in the bill. But I think the important point
    is that the FISA Court of Review in its decision says
    essentially just exactly that. And this is simply a recognition
    or affirmation of what the FISA Court of Review has said.
        In pointing to the embassy provision, you are exactly right
    that that is an example where FISA today recognizes and allows
    for the Executive Branch to take action without a court order
    to undertake foreign intelligence surveillance. And that is an
    authority that exists today and that is recognized in the FISA
    statute.
        Chairman Specter. So, in totality, Article II power is what
    it is and it cannot be added to or subtracted by legislation
    since the Constitution supersedes legislation.
        Mr. Bradbury. The legislation does not change Article II
    authority. It can add Congress' authority, as Justice Jackson
    indicated in his concurrence, or it can attempt to leave the
    Article II authority as it is, or it can attempt to take away
    from it whatever authority Congress would otherwise provide,
    and--
        Chairman Specter. But Congress does not have any authority
    by statute to change the Constitution.
        Mr. Bradbury. That is correct.
        Chairman Specter. Including Article II.
        Mr. Bradbury. That is correct.
        Chairman Specter. Senator Leahy, you have at least 10
    minutes, or longer.
        Senator Leahy. Thank you. Of course, we do not amend the
    statute by--we do not amend the Constitution by statute, but as
    Youngstown pointed out, there are many areas where the
    President's Article II powers are circumscribed by statute. Is
    that not correct?
        Mr. Bradbury. Yes. In the exercise of those authorities,
    but not where those authorities--
        Senator Leahy. Thank you. I was glad to get a simple
    declaratory judgment--simple declaratory answer from someone
    from the Justice Department. It has been years. I compliment
    you, Mr. Bradbury. I compliment you. You will probably get
    fired for doing that, but I compliment you for doing it.
        But the language that Senator Specter quoted was actually
    never enacted as part of FISA. It was struck from the
    conference in 1978, as I recall. But there are areas where we
    can--the Congress under Article I can determine the actions of
    the President under Article II, and then the President, of
    course, has--in his oath of office, he says that he will
    faithfully execute the laws of the United States. Now, of
    course, if he does not like the laws, he can always veto them.
        General Alexander, let's go back to the Terrorist
    Surveillance Program because we may have been discussing two
    things in your answers to the earlier questions. Let's say that
    under this program you establish probable cause that a
    particular individual you are monitoring is a terrorist and
    that individual is within the boundaries of the United States.
    At that point do you go to FISA for a warrant?
        General Alexander. Not necessarily, sir. It may be. It may
    be. It would definitely go to one or the other intel agencies
    as soon as that is. Our objective would be NSA would not
    proceed at that point. We would pass it to either the FBI--
        Senator Leahy. If you are going to continue--you have got
    somebody in the United States. You have established probable
    cause, and this is putting aside for the moment whether the
    original program is actually authorized in the law or not. But
    let us assume you have got probable cause that somebody in
    Middlesex, Vermont, is a terrorist. I know all the people in
    Middlesex, Vermont. I do not think there are any.
        General Alexander. It would not happen, sir.
        Senator Leahy. But let's say you do. At that point do you
    have to go to the FISA Court for a warrant if you are going to
    continue monitoring that person, that individual?
        General Alexander. Actually, the procedure--
        Senator Leahy. Does somebody have to go to the FISA Court?
        General Alexander. Somebody, potentially, but not
    necessarily. And the question really gets to where are we in
    the process of knowing that that is a terrorist. If we know for
    sure that is a terrorist, it has gone to the FBI, the FBI would
    take that probably to a FISA and start their own procedures
    with the lead and investigative information that we gave them.
        Generally, you do not have a clear-cut case like that, sir.
        Senator Leahy. I understand. I was trying to make it, for
    an easier answer, to make it clear-cut.
        Let's go to Section 9(k) of the Chairman's bill. This would
    exempt from criminal liability any FBI agent or intelligence
    officer who executes a physical search for foreign intelligence
    information if the search is authorized ``under the
    Constitution.'' Apparently, that is a reference to the
    President's claimed inherent authority as Commander-in-Chief.
    Does this immunize anyone who conducts warrantless searches of
    American homes and offices without court orders under the say-
    so of the President?
        General Alexander. Steve, do you want to answer that one?
        Mr. Bradbury. Well, I think, Senator, it simply conforms
    the law to what FISA is trying--
        Senator Leahy. No, no. Now, let's go back. You were so good
    before answering the question that I began with. Does this
    immunize somebody who conducted a warrantless search of an
    American home or office under the say-so of the President? I
    mean, that should be simple.
        Mr. Bradbury. Well, if intelligence officers have executed
    surveillance programs that have been duly authorized by the
    President, this would recognize that those intelligence
    officers who exercise those authorities should not be subject
    to a criminal process.
        Senator Leahy. So it immunizes--
        Mr. Bradbury. I would say, Senator, that that is the
    approach that FISA takes today. The officers and agents of the
    U.S.--
        Senator Leahy. This is different. This is in Section 9(k),
    saying if they are authorized by the President--the President.
    Not FISA but the President. Does that immunize them?
        Mr. Bradbury. Well, the legislation would recognize that
    there may be instances where there are programs authorized by
    the President. That is recognized in the legislation, and then
    there are procedures in place for judicial review. There are
    also procedures for the Attorney General in temporary
    circumstances to authorize surveillance without a court order.
    And so--
        Senator Leahy. Well, has the President authorized
    warrantless physical searches outside of FISA?
        Mr. Bradbury. I think that the only thing the President has
    talked about is the Terrorist Surveillance Program. That is the
    program that is done today without a FISA order. And that has
    been the subject of the hearings before this Committee, and I
    think it is an appropriate subject for the legislation that is
    being proposed.
        Senator Leahy. Can you answer the question whether he has
    authorized such warrantless searches?
        Mr. Bradbury. I am not going to say he has.
        Senator Leahy. I wanted to make sure you had a chance to
    respond on that specifically.
        You know, I worry that what we are doing is trying to
    immunize a lot of activity. We had this great battle here
    conducted in the pages of the press and all on the question of
    torture. And then after wonderful signing ceremonies at the
    White House and everything else, the President said, However,
    there will be areas where we do not have to apply that law, and
    thus attempted to immunize people.
        I worry when we start going into this question of
    immunization. I am not talking about the President's pardon
    ability, and we have seen that in Watergate and others where
    the President has pardoned people afterward, and Iran-contra
    and so on. I am talking about blanket immunization.
        Let me ask both General Alexander and General Hayden this.
    As I understand FISA, it has always allowed the NSA to use a
    kind of vacuum cleaner approach to radio communications in the
    United States, sometimes referred to as the ``NSA exemption.''
    So in the Chairman's bill, if you repeal Section 101(f)(2) of
    FISA, would that extend the NSA exemption to all electronic
    communications, both wire and radio?
        General Hayden. Yes, I think the straightforward answer,
    Senator, is yes. And just one additional sentence of
    explanation is that it would allow NSA to target foreign
    entities--and we in our discussions, I think, have crossed some
    concepts here. In terms of targeting a foreigner for a foreign
    intelligence purpose, the Chairman's bill would allow NSA to
    use all the tools that it has. It would not make a distinction
    between grabbing a signal out of the air or grabbing a signal
    some other way.
        Senator Leahy. I understand. So, for example, if you had--
    this would allow you to seize and record all the calls between
    the United States and India, just blanket.
        General Hayden. No, it would not.
        Senator Leahy. I am talking about under the--if you repeal
    Section 101(f)(2).
        General Hayden. No, no, not at all.
        Senator Leahy. OK.
        General Hayden. It would allow you to target a phone number
    in Central Asia, and it would give you the same ability to
    cover that target that you now have pulling that signal out of
    the air or collecting that signal overseas, it would allow you
    to use all the tools that we have at our disposal in order to
    get what we have already agreed is coverage of a legitimate
    foreign intelligence target.
        Senator Leahy. Do we do this kind of vacuum cleaner
    surveillance of Americans now?
        General Hayden. You are talking about intercepting the
    content? Senator, everything that is done is targeted and for a
    foreign intelligence purpose. No.
        Senator Leahy. On these calls--and I understand, without
    going into the specifics of the program, you are taking a huge
    number of calls and e-mails, not specifically on a person. Are
    those then stored for retrieval and analysis by the NSA?
        General Hayden. Senator, your premise is incorrect.
        Senator Leahy. OK.
        General Hayden. Under the President's program, when NSA
    collects the content of a communication, it has already
    established a probable cause predicate that one or both
    communicants is associated with al Qaeda. So we do not vacuum
    up the contents of communications under the President's program
    and then use some sort of magic after the intercept to
    determine which of those we want to listen to, deal with, or
    report on.
        Senator Leahy. What if something is picked up by mistake?
    What happens to it?
        General Hayden. There is a technical term called
    ``inadvertent collection.'' If NSA collects something
    inadvertently, standard procedures for the President's program
    or the standard procedures we have for all inadvertent
    collection, it is destroyed.
        Senator Leahy. So it is not available to others throughout
    the Government.
        General Hayden. Only with one exception. If the inadvertent
    collection contains evidence of a crime, policy and statute
    require us to report that. Otherwise, it is destroyed.
        Senator Leahy. Now, in addition to narrowing the definition
    of ``electronic surveillance,'' as I read Section 9, it would
    expand the so-called embassy exception in Section 102 of FISA.
    Am I correct on that, Mr. Bradbury?
        Mr. Bradbury. Yes, Senator. I believe under this new
    provision, that provision would allow the Attorney General to
    approve for a period targeted foreign intelligence surveillance
    that is directed solely at the communications of foreign
    government operations or non-U.S. persons who are agents of a
    foreign government. Solely those communications.
        Senator Leahy. If this was passed, for example, if you had
    a Congressional staffer call the German Embassy to plan a
    Congressional trip to Berlin, that could be picked up.
        General Hayden. Senator, across the board, when NSA
    conducts surveillance against a legitimate foreign intelligence
    target and that target is in communication with an American--
    the American is not the target; the foreign entity is the
    target--we have well-established procedures to protect the
    privacy of the U.S. communicant.
        Senator Leahy. Well, Section 9 of the Chairman's bill
    expands the definition of ``agent of a foreign power.'' We
    expanded that definition a few years ago, the so-called lone-
    wolf amendment. It also changes the definition of ``Attorney
    General'' from being restricted to the Attorney General or
    Deputy Attorney General to any person or persons designated by
    the Attorney General. Would that permit the Attorney General to
    delegate to every FBI agent and intelligence officer in the
    country the authority to authorize emergency wiretaps of phone
    calls?
        Mr. Bradbury. No, Senator, that is not the way the Attorney
    General delegates his authority. So, for example--
        Senator Leahy. But under this change of definition to now
    include any person or persons designated by the Attorney
    General--I am not saying whether he would do it, but would he
    have that power?
        Mr. Bradbury. He would never do that. He would--
        Senator Leahy. Would he have the power?
        Mr. Bradbury. Not under his current--
        Senator Leahy. You buy a car that can go 125 miles an hour.
    You are going to say, ``But, of course, I would never drive
    over the speed limit.'' But you could go 125 miles an hour. If
    this says he can delegate it to anybody, does he have the power
    to delegate it to anyone?
        Mr. Bradbury. He would delegate pursuant to his existing
    regulations on delegations, which are limited. And so in this
    case, for example, you would be talking about the Assistant
    Attorney General for the National Security Division, in all
    likelihood.
        Senator Leahy. But we have in the law now it is restricted
    to the Attorney General or the Deputy Attorney General, as we
    note a reference to that in Ruth Marcus's column this morning
    in the paper. But this would permit him to go way beyond that,
    does it not? I mean, just on the face of it. Aside from what he
    might or might not do, on the face of it does it allow him to
    go way beyond that?
        Mr. Bradbury. Well, Senator, let me say this: All
    authorities of the Attorney General today under statute, unless
    they are expressly limited against delegation, are subject to
    delegation by the Attorney General pursuant to his existing
    regulations in the Department of Justice, and this would simply
    allow for that. But under those regulations, authorities of the
    Attorney General are not widely delegated to all individual FBI
    agents, for example. That is simply not done and it would not
    be done.
        Senator Leahy. I had such hopes for you earlier when you
    actually answered a question yes or no. But I will submit the
    rest of my questions, Mr. Chairman. This is highly technical.
    Between the House and Senate, I remember we had more than a
    dozen hearings when we considered reauthorization of the
    PATRIOT Act. And this bill goes way beyond the PATRIOT Act. So
    we will require more answers, and I appreciate the extra time.
        Chairman Specter. Well, Senator Leahy, we are available for
    more hearings. We have only had five. We will have as many as
    we need.
        General Hayden, thank you for your testimony and thank you
    for your service.
        General Hayden. Thank you.
        Chairman Specter. General Alexander, thank you for your
    testimony and for your service.
        General Alexander. Thank you.
        Chairman Specter. Mr. Bradbury, thank you for your
    testimony and your service. It is good to have real
    professionals come before this Committee and answer the
    questions.
        Mr. Bradbury. Thank you, Mr. Chairman, and thank you,
    Senator Leahy.
        Chairman Specter. We turn now to Panel 2: Mr. Cunningham,
    Mr. Dempsey, Mr. Schmidt, and Ms. DeRosa.
        Our first witness is Mr. Bryan Cunningham, principal in the
    firm of Morgan & Cunningham; bachelor's degree with distinction
    from the University of Iowa; law degree from the University of
    Virginia Law School; worked for the CIA for some 6 years, first
    as an intelligence analyst and later as executive assistant to
    the CIA Director; Special Assistant U.S. Attorney in the
    Department of Justice. His full resume will be made a part of
    the record.
        We appreciate your coming in, Mr. Cunningham, and we are
    going to go back to 5-minute rounds now.
        Senator Leahy. Mr. Chairman, just before you start, I have
    just been advised by Ms. Katzman I forgot to put into the
    record--I had a number of things in my last question, if I
    might have permission to put that in the record.
        Chairman Specter. Sure. Without objection, you may put them
    at your leisure.
        [The full resume of Bryan Cunningham appears as a
    submission for the record.]
        Chairman Specter. Mr. Cunningham, we are going back to 5-
    minute rounds and 5-minute openings, and the floor is yours.

         STATEMENT OF H. BRYAN CUNNINGHAM, PRINCIPAL, MORGAN &
                    CUNNINGHAM LLC, DENVER, COLORADO

        Mr. Cunningham. Thank you, Mr. Chairman, Ranking Member
    Leahy, and other members of the Committee, for having me here
    today. It is a great honor and privilege to testify before you
    on something that I think is of absolutely vital importance to
    our Nation today, and that is, how to balance the need of this
    President and, perhaps more importantly, future Presidents to
    prevent catastrophic attack against our country with the
    cherished civil liberties and separation of powers that are the
    bedrock of our American democracy. As a national security and
    information security and privacy lawyer for most of my career,
    serving actually more time under Democratic Presidents than
    Republican, and participating in the Markle Task Force on
    National Security, a bipartisan group, I am confident that we
    can balance these two interests; that we must balance them
    correctly, or risk far more damage to our civil liberties in
    the event of a catastrophic attack than we have imagined to
    date; but only if, in my judgment, the Foreign Intelligence
    Surveillance Act is reformed and is amended along the lines,
    Mr. Chairman, of your bill, S. 2453.
        In addition to responding to your questions, my testimony
    today, my statement, which I would ask to be put in the record,
    addresses essentially three--
        Chairman Specter. Your full statement will be made a part
    of the record.
        Mr. Cunningham. Thank you, Mr. Chairman. Essentially three
    issues.
        First, it discusses what I believe to be the proper and
    appropriate way to analyze the constitutional question here. I
    understand why both the administration and many Members of
    Congress and commentators on all sides have addressed this
    principally as a question of the President's Commander-in-Chief
    authority under Article II of the Constitution. I believe based
    on much precedent cited in my testimony and also in a brief
    that I co-authored with the Washington Legal Foundation in the
    New York case, which I would also ask be put in the record
    today, that the best way to look at this issue is under the
    President's foreign affairs and foreign intelligence authority.
    And I would submit that that is the way that most courts
    historically have looked at it and balanced those interests, as
    you correctly suggested earlier, Mr. Chairman, against the
    interests of Congress.
        I will not go into any detail about those arguments in my
    opening statement for purposes of time, but I would be happy to
    take any questions on that.
        At the outset, I wanted to say just a brief word about
    bipartisanship. I am honored to be on this panel with a former
    Associate Attorney General for the Clinton administration. As I
    said, I have served in both administrations, and I would also
    commend to the Committee the work of David Kris, who I know has
    testified before this Committee, who was a senior FISA expert
    in the Clinton and the Bush administrations.
        Now to the specific provisions, Mr. Chairman, of your
    legislation. I support the programmatic approval that is called
    for in that bill, along with a Democratic counterpart
    recommended in an op-ed back in February exactly such a program
    of programmatic approval. I think it is really the only way
    that we can create a situation where FISA keeps pace with the
    technological changes since 1978 and the changes in the
    behavior of our enemies.
        I strongly support also the concept of electronic tracking
    as outlined in the legislation. I think that the ability for
    the United States to use what I call ``machine triage''--that
    is, sifting of large amounts of content by computers prior to
    human beings actually looking at the data--is important both
    for our national security and our civil liberties. And I am
    happy to see that concept included in your bill.
        I would just say a couple of brief words about Section 801.
    There was a lot of discussion, appropriately, in the first
    panel about that. The language that would make it clear that
    the President retains his Article II--in my view, foreign
    affairs primarily, but Article II constitutional authority to
    conduct electronic surveillance for foreign intelligence
    purposes when at least one party is outside the United States
    or in other circumstances. There has been some discussion about
    why that is important, and I watched with interest your
    discussion with the Attorney General the other day, Mr.
    Chairman, about this issue. I think this is absolutely
    essential that this language be included in any FISA reform
    legislation, and I think it is essential for four reasons.
        First, I think it is important that the public have a clear
    understanding and statement of what the law and the
    Constitution is. I know some of my colleagues on the Markle
    Task Force, whom I am proud to have served with and proud to be
    here with today, would agree with the notion that this,
    whatever our law is, should be made clear to the public. And I
    think 801 does that. I think it is a statement of the current
    law.
        Second, I think it is important, I think it is necessary to
    get any President, whether this President or a future
    President, to agree to reform legislation like this.
        And, third, I think it is important because it will help
    our officers avoid the risk aversion that General Hayden
    discussed earlier in the context of being criticized for
    following the law, to have it be clear that the Congress and
    the administration and the judiciary all agree on this state of
    the law.
        And, finally, I think no President of either party should
    ever have to be forced in the future into the Hobson's choice
    of deciding whether to fail to collect information that could
    protect us against attack or be accused of violating the law.
        I look forward to answering your questions. Thank you.
        [The prepared statement of Mr. Cunningham appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Mr. Cunningham.
        Our next witness is Mr. Jim Dempsey, Policy Director for
    the Center for Democracy and Technology; bachelor's degree from
    Yale; law degree from Harvard; clerked for Massachusetts
    Supreme Court Justice Robert Braucher; served as assistant
    counsel to the House Judiciary Committee; has a distinguished
    record in the practice of law, which will be made a part of the
    record.
        Thank you for coming in, Mr. Dempsey, and the floor is
    yours.

      STATEMENT OF JAMES X. DEMPSEY, POLICY DIRECTOR, CENTER FOR
               DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.

        Mr. Dempsey. Mr. Chairman, thank you for the opportunity to
    testify at this hearing today.
        Mr. Chairman, we commend you for your tireless leadership
    in seeking to ensure judicial review of the President's
    warrantless surveillance program. From the outset, you have
    been forthright in your criticism of the administration and
    their disregard of the express requirements of the FISA
    statute. And now, through intense negotiation, you have secured
    the promise of the President to submit his current surveillance
    program to court review.
        With profound respect, Mr. Chairman, we must conclude that
    the price you paid for that simple concession is far too high.
    It pains me to say this, Mr. Chairman, but your bill as it
    stands today is not a 21st century bill. To the contrary, it
    would turn the clock back to an era of unchecked Presidential
    power, warrantless domestic surveillance, and constitutional
    uncertainty.
        Your bill as it now stands, Mr. Chairman, has been so far
    altered from its origins and has become so dangerous to
    fundamental constitutional precepts that, as one civil
    libertarian to another, Mr. Chairman, let me say that we would
    rather see the President's unlawful program continue unchecked
    than to see your bill enacted into law.
        You said the President will not yield to Congressional
    mandate. True. This President has a radical view of
    Presidential power. The next President may not have that view.
    But your bill would endorse the radical concept of the imperial
    presidency. And once Congress gives up on the concept of checks
    and balances and gives the President the blank check, it may be
    decades before the pendulum can swing back to the center.
        Let me just focus on two ways in which your legislation
    would turn back the clock to an era of warrantless
    surveillance.
        Sections 5 and 6 of the Chairman's bill would authorize a
    program of domestic surveillance far broader than President
    Bush's program. The Attorney General has said, and General
    Hayden confirmed today, that the President's program targets
    only communications with particular suspected members or
    affiliates of al Qaeda, only on the basis of probable cause,
    only for short term, and only if one leg of a call is overseas.
        Your bill, Mr. Chairman, would authorize seizing the
    contents of purely domestic calls of American citizens without
    probable cause, without specific suspicion, where the call has
    nothing to do with al Qaeda or even with terrorism, and would
    allow that surveillance to go on long term.
        Section 9 of your bill, by redefining ``electronic
    surveillance,'' would vastly expand the scope of warrantless
    surveillance, and the changes that you make to Section 102 of
    FISA would authorize warrantless surveillance of purely
    domestic calls.
        General Hayden offered excellent testimony this morning,
    Mr. Chairman, and it provides a road map for how to address
    some of the problems facing the intelligence agencies today.
    But that road map does not lead to your bill.
        On the question of who is the target, General Hayden
    emphasized the importance of the emergency procedures of FISA
    and about allowing the Attorney General to delegate his
    authority to grant emergency orders. I agree with that.
        As to where is the target, General Hayden said how
    important it was--and you noted in your op-ed--when a foreign
    person is calling a foreign person, that a FISA order should
    not be required even if the vagaries of technology, the
    advances in technology put that call into the United States and
    at the disposal of the intelligence agencies. I don't think
    that foreign to foreign, accessible in the United States, is
    currently covered by FISA, and it shouldn't be.
        In terms of technology neutrality, again, yes, the statute
    should be technology neutral. But in which direction? Your bill
    takes technology neutrality and uses it to expand the scope of
    warrantless surveillance. I think it is worth looking at using
    technology neutrality to expand the warrant requirement.
        A lot of this boils down to one question: foreign to
    domestic calls. And one key word lacking from your bill, which
    we heard time and again from General Hayden and General
    Alexander, is the word ``targeting.'' When the Government is
    targeting a known or suspected terrorist reasonably believed to
    be overseas, whether that call is intercepted in the United
    States or overseas, a warrant should not be required. And I
    think it is worth thinking about not turning off the tap when
    that target happens to call a number in the United States. If
    it turns out that he repeatedly calls the United States, then
    maybe you do have to go to a warrant, regardless of geography.
    But that is a much narrower solution to the problem of foreign
    to domestic than exists in your bill, and I think we can have a
    lot more in-depth discussion about how to respond to the global
    changes in technology without having a one-way downward ratchet
    so that just because technology is changed, privacy principles
    have to be abandoned.
        Thank you, Mr. Chairman. I look forward to your questions
    and those of Senator Leahy.
        [The prepared statement of Mr. Dempsey appears as a
    submission for the record.]
        Chairman Specter. Thank you, Mr. Dempsey.
        Our next witness is Mr. John Schmidt, partner of the firm
    Mayer, Brown, Rowe & Maw; cum laude graduate from Harvard
    College--magna cum laude from Harvard College, cum laude from
    the law school, and an editor on the Harvard Law Review; was
    Ambassador and Chief U.S. Negotiator on the Uruguay Round under
    the General Agreement on Tariffs and Trade; Associate Attorney
    General from 1994 to 1997; a visiting scholar at the
    Northwestern University School of Law.
        We appreciate your coming in today, Mr. Schmidt, to
    testify, and we look forward to your testimony.

     STATEMENT OF JOHN SCHMIDT, PARTNER, MAYER, BROWN, ROWE & MAW
                         LLP, CHICAGO, ILLINOIS

        Mr. Schmidt. Thank you, Mr. Chairman and Senator Leahy. I
    am happy to be here and give you my thoughts on what Congress
    should now be doing to improve the Foreign Intelligence
    Surveillance Act. I have submitted a full statement, and I will
    summarize it as briefly as I can.
        Chairman Specter. Your full statement will be made a part
    of the record.
        Mr. Schmidt. I think it is important to get away from any
    talk or even thinking about whether the President or Congress
    is winning or losing or whether somebody is capitulating or
    compromising. None of that matters. What matters is whether we
    end up with an institutional structure that will both protect
    constitutional rights and achieve effective surveillance of al
    Qaeda and other terrorist groups.
        It seems to me that the bill that you have introduced and
    that I understand the administration is now supporting would,
    in fact, be a constructive step to achieve both of those
    objectives. It would, as has already been discussed, allow the
    President to submit to the Foreign Intelligence Surveillance
    Court for a decision on its constitutionality a program of
    surveillance that does not involve the Court in the
    individualized approval of warrants specifying individual
    targets of surveillance.
        The NSA program that we know something about is a program
    of that nature. The President cannot do that under current law.
    The FISA Court has made very clear it is a court of limited
    statutory jurisdiction. In fact, there was an effort some years
    ago to submit a physical search to the FISA Court before the
    statute allowed that, and the FISA Court said, ``We don't do
    physical searches. We only approve electronic surveillance.''
    The statute was later amended. But it is absolutely clear that
    the Court would not, could not do that now.
        It seems to me that letting that Court determine the
    constitutionality of the NSA program or other programs that
    come along in future circumstances is really in everybody's
    interest. It is in the interest of the President to find out
    if, in fact, the Court agrees that that program is
    constitutional. He can make changes if he needs to. It is in
    the interest of Congress to get off of Congress the burden
    which some people want to put on you to make constitutional
    judgments of that nature. It is not that you cannot do it as
    individuals, but institutionally Congress is not in that
    business, Congress is not capable of making individualized
    judgments about a particular program's constitutionality.
    Oversight should continue. But oversight is not a substitute
    for a constitutional judgment by a court.
        I think it is in the interest of the security professionals
    at the NSA and elsewhere to allow a court decision. That is
    something that we really have not talked much about, but, you
    know, there is no reason to think the current program is the
    last word on what we should be doing to use the electronic
    surveillance capacities we have against al Qaeda. If you are at
    the NSA today and you are thinking working on possible change
    in that program, if you come up with a new idea to change it, a
    new program, it has to be chilling, inhibiting to know that
    those efforts are likely to be the result in hearings of this
    nature, being able to get a court decision in advance on
    whether a program is constitutional gives those NSA
    professionals confidence that what they are doing is not going
    to be subject to that kind of controversy. And, most of all, it
    gives the American people the confidence of knowing that there
    has been a court decision on the constitutionality of a
    program. I think courts are the way we make constitutional
    decisions in this country. It is the process that people have
    confidence in.
        The part of the bill that seems to be the most
    controversial is the provision that says it recognizes that the
    President retains Article II surveillance authority outside the
    provisions of the statute. As has been noted, that is
    consistent with the judicial authority today, court of appeals
    decisions that recognize the President's authority and the 2002
    Court of Review decision that says flatly Congress cannot
    encroach upon that authority. So it is not as though Congress
    is giving up anything which any court has ever said that it
    has.
        But, you know, even if Congress could limit the President
    to a statutory surveillance process, I don't think Congress
    should want to do that. The strongest statements on this issue
    were made by Edward Levi, who was referred to earlier by
    Senator Kennedy, who played an active role in the development
    of the FISA statute, worked to pass it. Ed Levi always said
    that statute cannot be exclusive. He was insistent that there
    be an acknowledgment in the statute of the President's retained
    Article II authority. He was asked the question that Senator
    Leahy was pressing Mr. Bradbury on: What difference does it
    make if the President has the authority anyway? And Levi's
    response was it would create a dangerous confusion for Congress
    to pass a statute which did not acknowledge that the President
    retained his own constitutional Article II surveillance
    authority outside the terms of that statute. And if there was
    ever any doubt about whether Levi was right, it seems to me
    that the events of 9/11 prove that.
        If it were true that the President was, in fact, limited to
    a statutory surveillance process, it would mean that if on the
    morning of 9/11 General Hayden had called President Bush and
    said, ``We want to go forward immediately with the interception
    of calls at airports around this country where we think al
    Qaeda has people on the ground prepared to carry out further
    attacks,'' the President's only lawful response to that would
    be to say, ``Well, we need to get the Attorney General, we need
    to begin examining whether each of those intercepts complies
    with the FISA statute, and maybe we will be able to get you
    authority by this afternoon or tomorrow morning.''
        That is not the way any American President would construe
    his constitutional authority when faced with an attack on this
    country. I do not think it is the way any Member of Congress
    wants him to construe it. And I can see no negative and it
    seems to me there is a positive in having the statute
    acknowledge that there are circumstances--which the statute
    does not try to define, but that the President retains Article
    II authority even in the face of any statute that Congress
    passes.
        So I think it would be a good step. I think it would be an
    effort to rise above the current confrontation and create a
    mechanism that can avoid controversies like this in the future.
        [The prepared statement of Mr. Schmidt appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Mr. Schmidt.
        Our final witness on the panel is Ms. Mary DeRosa, Senior
    Fellow at Johns Hopkins Center for Strategic and International
    Studies; bachelor's degree from the University of Virginia; law
    degree from George Washington University Law School; clerked
    for Second Circuit Judge Cardamone; had been special counsel to
    the Department of Defense; Special Assistant to the President
    for the National Security Council.
        We thank you for joining us today Ms. DeRosa, and the floor
    is yours.

        STATEMENT OF MARY B. DEROSA, SENIOR FELLOW, CENTER FOR
      STRATEGIC AND INTERNATIONAL STUDIES, TECHNOLOGY AND PUBLIC
                    POLICY PROGRAM, WASHINGTON, D.C.

        Ms. DeRosa. Thank you, Mr. Chairman, Senator Leahy. Thank
    you for inviting me to testify today. I did want to just
    correct my institution. It is not the Johns Hopkins Center for
    Strategic and International Studies.
        As you mentioned, I was a legal adviser at the National
    Security Council and a lawyer at the Department of Defense, and
    from that experience, both of those experiences, I developed an
    understanding of the need to act quickly and flexibly in the
    national security area and a strong appreciation for Executive
    authority. I actually thought at one point that I was sort of
    extreme on the subject of Executive authority, but I now
    realize that that is not the case.
        I come to a discussion of FISA with a respect for the need
    in the Executive Branch to act nimbly, to adapt to changes in
    technology and threats, and I believe the law must permit this
    flexibility. But saying that national security operators need
    flexibility is not the same as saying that they must be able to
    take the easiest route in all cases.
        Sometimes other priorities will require some different
    routes, some extra steps, and will make the job perhaps a
    little bit more difficult. That is not the inquiry, the correct
    inquiry. The correct inquiry is: Do these extra steps make it
    so that the operators cannot get what they need to get done
    done?
        When we are talking about something as sensitive and
    intrusive as interception of private communications of people
    in the United States, court oversight of Executive Branch
    action, although it might not be the easiest way to go, is
    absolutely essential.
        Experts in the late 1970s who crafted FISA concluded that
    the critical mechanism for ensuring public acceptance of
    national security wiretaps was a process that ensured careful
    court oversight of surveillance and making that process
    exclusive for approving surveillance decisions. And I would
    like to comment on some of the exchange with the last panel
    about whether the President's Article II powers can be limited
    in any way.
        It is true absolutely that the President has Article II
    powers and authority to conduct electronic surveillance in the
    national security area, but that is the beginning of the
    inquiry. That is not the end of the inquiry. Congress
    absolutely may regulate and limit the exercise of those
    authorities. I am sort of uncomfortable as a former White House
    lawyer saying it, but I believe that that argument sells
    Congress' own authorities short.
        In the Youngstown analysis that has been discussed,
    Category 3, where there is a conflict between the Congress'
    exercise and the President's exercise, Justice Jackson said at
    that point the President's powers--the ability to exercise his
    powers is at its lowest ebb. It is not unaffected--the Article
    II powers are not unaffected. That is Category 2. In Category
    3, the President's ability to exercise his authority is at its
    lowest ebb. So Congress can affect and in the case of FISA did
    intend to affect the exercise of those powers.
        Now, does that mean necessarily that those powers are
    extinguished. In my view, no. There might be something left. It
    depends on the extent of the Congress' powers. But it is
    unquestionably something less, something limited. I think in
    the circumstances of the Hobson's choice that Mr. Cunningham
    mentioned and the 9/11 circumstance that Mr. Schmidt mentioned,
    perhaps there would be some authority under those very, very
    limited, exigent circumstances, limited period of time to do
    something within the President's power. But it is not an
    unlimited entire exercise of the Article II authorities.
        The drafters of FISA made concessions to the need for
    flexibility along the way, and the FISA Court is not a regular
    Federal court. It operates in secret and ex parte. And the
    requirement for obtaining a warrant is not like a criminal
    probable cause requirement. It is a much less rigorous
    standard, the probable cause that the target is an agent of a
    foreign power. But it is a disciplined process, and it is
    transparent in that the public understands what is happening
    and understands the rules.
        I see that my time is just about out, and I welcome your
    questions.
        [The prepared statement of Ms. DeRosa appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Ms. DeRosa.
        Mr. Dempsey, you testified and you have in your written
    statement this sentence: ``With profound respect, we must
    conclude that the price the Chairman paid for that simple
    concession is far too high.'' That follows the sentence there
    was the ``promise of the President to submit his current
    program to court review.'' And you characterize it as a
    ``simple concession.''
        Have you ever gotten a concession from a President?
        Mr. Dempsey. It is not hard, Mr. Chairman, and--I mean, it
    is not easy, excuse me.
        [Laughter.]
        Chairman Specter. Well, wait a minute. Is it hard under the
    Freudian slip or is it easy? Have you followed what President
    Bush has done by way of signing statements?
        Mr. Dempsey. Mr. Chairman, this is a President who has an
    extreme view of--
        Chairman Specter. Have you followed--
        Mr. Dempsey. Yes, I have.
        Chairman Specter.--what the President has done on signing
    statements?
        Mr. Dempsey. Yes, Mr. Chairman.
        Chairman Specter. Have you followed what he did on refusing
    to give clearance to the Office of Professional Responsibility
    to check on the surveillance program?
        Mr. Dempsey. Yes.
        Chairman Specter. Have you followed the activities
    generally of the President's view of Executive authority?
        Mr. Dempsey. Yes.
        Chairman Specter. Well, I will not ask you how you can say
    it is a simple concession, but let me tell you that to get the
    President's--well, let me rephrase it. Have you ever seen in
    the past a President agree to legislation that he was generally
    opposed to through negotiations in advance of the introduction
    of a bill? Do you know of any precedent for that?
        Mr. Dempsey. I am sorry, Mr. Chairman. I did not understand
    that question.
        Chairman Specter. Well, have you ever seen the President
    negotiate an agreement to sign a bill that was not originated
    by the administration?
        Mr. Dempsey. I cannot cite one, but I don't know that it
    has not happened.
        Chairman Specter. Well, I would just suggest to you that
    given the President's attitude on the surveillance program and
    his attitude on Executive power generally, it was not a simple
    concession but really was quite a breakthrough. But I respect
    your difference of opinion.
        Mr. Dempsey. May I respond, Mr. Chairman? May I respond?
        Chairman Specter. Sure.
        Mr. Dempsey. Call it, then, a major concession. The price
    is still too high because for this one promise to submit this
    one program to the FISA Court, your bill would excuse this
    President from submitting any future program and any future
    President from submitting any other program to the Court.
        Chairman Specter. Would excuse him from submitting any
    program? You say ``excuse'' ?
        Mr. Dempsey. Yes. It would give him--
        Chairman Specter. Well, the President has no obligation to
    submit this program or any program to the Court, as President
    Bush interprets his Article II power.
        Mr. Dempsey. And this is where I think that we have a
    monumental clash, and you have put yourself into the middle of
    that clash, Mr. Chairman, and you are to be complimented to the
    highest degree. But there is--
        Chairman Specter. Well, I did not put myself there. The
    Senate did by making me Chairman of the Judiciary Committee.
    But let me move on--
        Mr. Dempsey. And you accepted, Mr. Chairman, if I--
        Chairman Specter. Just a minute, Mr. Dempsey. I have heard
    you on that. I want to ask Ms. DeRosa a question based on your
    testimony. Ms. DeRosa, do you agree with what Mr. Dempsey has
    had to say, that he would prefer to see the President's
    unlawful conduct continue rather than have a structured review
    by the FISA Court?
        Ms. DeRosa. Well, I am not sure that I would characterize
    it exactly the way you have, but I do--
        Chairman Specter. No, I did not characterize it that way.
    Mr. Dempsey said that he would prefer to see the President's
    unlawful conduct continue.
        Ms. DeRosa. I think given the legislation as written, I
    would prefer no legislation to the legislation that is
    introduced because I believe that it--although I think judicial
    review of this program is a high priority, it is not as high as
    exclusivity and some of the other issues that are raised by--
        Chairman Specter. Is there exclusivity for FISA today?
        Ms. DeRosa. Well, I believe that there is. I believe that
    it is clear from the language of the statute that that is what
    was intended. And as a practical matter, is the President
    complying with the language of the statute? No. But that is
    what the statute clearly states and would for the future as
    well.
        Chairman Specter. My red light went on in the middle of
    your answer, so I will yield to Senator Leahy.
        Senator Leahy. Thank you.
        Mr. Schmidt, good to see you here. I listened to your
    hypothetical about what the President might do if he was asked
    to track some of these people on September 10th or 11th. Let's
    go from the hypothetical to the reality. The reality is that
    the Bush administration had all the information necessary to
    stop the attack on September 11th and failed to act upon it. In
    fact, if you want to go to what happened on September 10th,
    they were proposing to cut very substantially the
    counterterrorism funds for investigations in this country. The
    thing is we can change the laws all the way we want. Sometimes
    it requires a little competence in using what they have.
        Now, Mr. Dempsey, having watched the President's
    unwillingness to obey the law and follow the law, you are not
    suggesting that Congress then should simply give up and ignore
    our own Article I powers that could require the President to
    follow the law?
        Mr. Dempsey. No, Senator, and I think there is a bill
    before the Committee, the Specter-Feinstein bill, that would
    insist upon Congress' powers under the Constitution and would
    require the President or be more likely to require the
    President--he still may disregard it. I think that this is an
    absolutely momentous debate that we are in, and it may take
    years for this conflict between the President's vision of
    Executive power and what I believe to be the constitutionally
    correct vision of Presidential power, endorsed most recently by
    the Supreme Court in the Hamdan case.
        Senator Leahy. I am going to be getting to that. The
    Chairman asked Ms. DeRosa whether there is exclusivity today.
    Of course, the answer is yes. And you and I agree on one thing.
    The President's program is unlawful.
        Now, if we repeal the exclusivity provision, what effect
    would that have?
        Mr. Dempsey. Then that would make FISA optional and would
    cast doubt, constitutional doubt, on surveillance activities.
    Here we are in the middle of a war against terrorism. We have a
    FISA statute that has been approved by every court that has
    reviewed it. Evidence from FISA surveillances has been
    introduced in hundreds of criminal cases and never been
    rejected. And here we are proposing to cast that aside and
    allow the President to carry out wiretaps outside of that. What
    if they find a real terrorist? What if the evidence is rejected
    in court?
        It is a very risky approach to cast aside what in my view
    the Supreme Court has held is appropriate, that is, Congress
    has war powers, the President has war powers. Congress, in its
    exercise of its war powers under the necessary and proper
    clause, under its authority to regulate the armed forces, can
    adopt legislation that limits the President's inherent power.
        Senator Leahy. In fact, many of the arguments made by the
    administration about what the powers are showing here is what
    happened in World War II and on and on, all of that was before
    FISA was enacted. Then came Justice Jackson's decision in
    Youngstown Steel. That would certainly circumscribe what the
    President could do.
        Do you agree with Attorney General Gonzales that Section 8
    of the bill is meaningless and does not change the status quo?
        Mr. Dempsey. Well, if it is meaningless, then let's not
    pass it.
        Senator Leahy. OK.
        Mr. Dempsey. Other than the fact that the Chairman feels
    that that is what it will take to get the President, that was
    the quid pro quo for the President submitting this one
    program--
        Senator Leahy. Of course, I have stated before, you know--
    and I was not in the negotiations, but basically I worry the
    President said here, ``I will stop breaking the law if you will
    pass a law saying that I am pardoned from breaking the law and
    I do not have to follow the law anymore.''
        The Justice Department White Paper on the so-called--that
    is sort of ``Alice in Wonderland.'' The Justice Department
    White People on the so-called Terrorist Surveillance Program
    assumes that the NSA's activities constitute electronic
    surveillance as defined by FISA. A reasonable assumption given
    the current definition of ``electronic surveillance,'' which
    covers any wire communication to or from a person in the U.S.
    if the acquisition occurs in the U.S.
        The Chairman's bill narrows the definition, in particular,
    repeals the language I just referred to. As you read the new
    definition, would the NSA's activities, or at least the
    activities the President has acknowledged so far, still
    constitute electronic surveillance? Or would FISA no longer
    require the Government to get a warrant for those activities?
        Mr. Dempsey. Well, actually, the President's program,
    because it is foreign to foreign and they are targeting
    somebody overseas, I guess it would not require a warrant for
    the President's program.
        Senator Leahy. OK. And you will have a chance--
        Mr. Dempsey. Although let me say that General Hayden
    testified that they have probable cause and specificity for
    every single one of the surveillances under the President's
    program, which would fit the FISA definition currently. Also,
    as I said, General Alexander and Senator Feinstein had sort of
    an ``aha'' moment there when General Alexander was explaining
    that the NSA, our Government, has benefited from a windfall as
    a result of the changes in technology, such that a large
    percentage of foreign-to-foreign communications now pass
    through the United States. So what the NSA used to have to try
    to acquire overseas, where FISA does not apply, is now
    available to them in the United States. And everybody agrees,
    including from the civil liberties perspective, that foreign to
    foreign should be exempt from FISA regardless of geography,
    regardless of where the interception occurs, and regardless of
    the technology.
        General Alexander said, But then once we start in the
    United States targeting an individual overseas, most of whose
    conversations are foreign to foreign and, therefore, exempt,
    and we find a foreign-to-domestic conversation, under current
    law, if they are in the United States, they have to suspend,
    and they believe they have to go get a warrant.
        Now, that is a problem worth thinking about; that is, where
    you are targeting an individual overseas, most of his
    conversations are foreign to foreign. You can get him in the
    United States even though he is overseas. His communications
    get routed through this country, an accident of the evolution
    of technology that was not apparent in 1978.
        Now, I think it is worth thinking about, if we are talking
    about that problem, a much more narrow definition. The
    Chairman's bill would say that anything that is foreign to
    foreign, including when you are not targeting a foreigner, or
    anything that is foreign to domestic, including when you are
    not targeting a foreigner, would be exempt from the warrant
    requirements--which, by the way, also makes it exempt from the
    statutory minimization requirements and casts you only back
    upon whatever the President decides to adopt on his own.
        So I think that there is something there worth thinking
    about, but it is far narrower, Mr. Chairman, than what is in
    your bill.
        Senator Leahy. I will submit my other questions for the
    record.
        Chairman Specter. Thank you very much, Senator Leahy.
        Thank you, Mr. Cunningham, Mr. Dempsey, Mr. Schmidt, and
    Ms. DeRosa. We very much appreciate your testimony.
        [Whereupon, at 12:08 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follows.]

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