    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

    WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT:
    THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
                                    (PART I)
    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 5, 2007

                                   __________

                               Serial No. 110-78

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, Florida               RIC KELLER, Florida
    LINDA T. SANCHEZ, California         DARRELL ISSA, California
    STEVE COHEN, Tennessee               MIKE PENCE, Indiana
    HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
    BETTY SUTTON, Ohio                   STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                               SEPTEMBER 5, 2007

                                                                       Page

                               OPENING STATEMENTS

    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Chairman, Committee on the
      Judiciary......................................................     1
    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Ranking Member, Committee on the Judiciary.     2
    The Honorable Jerrold Nadler, a Representative in Congress from
      the State of New York, and Member, Committee on the Judiciary..     3
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Member, Committee on the Judiciary.......     5
    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Member, Committee on
      the Judiciary..................................................     6

                                   WITNESSES

    The Honorable Bob Barr, former Member of Congress
      Oral Testimony.................................................     7
      Prepared Statement.............................................    10
    Ms. Suzanne Spaulding, Principal, Bingham Consulting Group
      Oral Testimony.................................................    16
      Prepared Statement.............................................    18
    Professor Robert F. Turner, University of Virginia School of Law
      Oral Testimony.................................................    23
      Prepared Statement.............................................    26
    Mr. Morton H. Halperin, Director of U.S. Advocacy, Open Society
      Institute
      Oral Testimony.................................................    66
      Prepared Statement.............................................    68

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Sheila Jackson Lee, a
      Representative in Congress from the State of Texas, and Member,
      Committee on the Judiciary.....................................   119
    Prepared Statement of the Honorable Steve Cohen, a Representative
      in Congress from the State of Tennessee, and Member, Committee
      on the Judiciary...............................................   127
    Senate bill S. 1927, the ``Protect America Act of 2007''.........   128
    CRS Report for Congress entitled ``P.L. 110-55, the Protect
      American Act of 2007: Modifications to the Foreign Intelligence
      Surveillance Act,'' August 23, 2007............................   142
    Letter from Denise A. Cardman, Acting Director, American Bar
      Association (ABA), dated September 14, 2007, to Chairman John
      Conyers, Jr., and Ranking Member Lamar S. Smith................   165
    Report of the Task Force on Domestic Surveillance in the Fight
      Against Terrorism, the American Bar Association (ABA), February
      13, 2006.......................................................   167
    Letter from John W. Whitehead, Founder and President, The
      Rutherford Institute, dated September 7, 2007, to Chairman John
      Conyers, Jr....................................................   192
    Prepared Statement of Caroline Frederickson, Director, Washington
      Legislative Office, American Civil Liberties Union (ACLU)......   198

    WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT:
    THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
                                    (PART I)

                                  ----------

                          WEDNESDAY, SEPTEMBER 5, 2007

                              House of Representatives,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:23 a.m., in
    Room 2141, Rayburn House Office Building, the Honorable John
    Conyers, Jr. (Chairman of the Committee) presiding.
        Present: Representatives Conyers, Berman, Nadler, Scott,
    Watt, Lofgren, Jackson Lee, Waters, Delahunt, Cohen, Johnson,
    Sutton, Baldwin, Schiff, Davis, Wasserman Schultz, Ellison,
    Smith, Coble, Goodlatte, Chabot, Lungren, Keller, Issa, Pence,
    King, Feeney, Franks, Gohmert, and Jordan.
        Staff present: Ted Kalo, General Counsel/Deputy Staff
    Director; Sean McLaughlin, Deputy Chief Minority Counsel/Staff
    Director; George Slover, Legislative Counsel/Parliamentarian;
    and Anita L. Johnson, Professional Staff Member.
        Mr. Conyers. The Committee will reconvene and come to
    order.
        We now turn to our consideration of Warrantless
    Surveillance and the Foreign Intelligence Surveillance Act: The
    Role of Checks and Balances in Protecting Americans' Privacy
    Rights.
        A month ago, the Congress passed an emergency wiretap law,
    at the President's urging, that granted the Attorney General
    largely unfettered authority to conduct surveillance of those
    who are engaged in communications abroad.
        The law was controversial. I strongly opposed it.
    Fortunately, the law sunsets early next year. It had 6 months'
    duration.
        Today, we begin the process of reviewing the law and
    considering modifications to it. In my judgment, there are
    three tests that ought be met as we consider additional
    legislation.
        The first is we must be able to conduct real and meaningful
    oversight on the surveillance program. The second is that we
    must provide the courts with a meaningful role in reviewing
    surveillance that applies to American citizens.
        And finally, we need to consider the role of
    telecommunications carriers. That, to me, summarizes what I
    think our present responsibilities are.
        There is not a Member on this Committee or in this room--
    and I have invited the Chairman of Intelligence in the House to
    join us this morning if his time permits--who would deny any
    Administration the legitimate tools and resources it needs to
    protect our citizens against terrorism.
        But granting these tools cannot and should not involve
    abdicating our responsibility as a co-equal branch of
    Government to protect our precious rights and liberties. Both
    of them are important, and we can do these two things at once.
        We urge my colleagues to remember what truly makes this
    country different from those of our enemies is that we can
    begin by reading the Constitution and the Bill of Rights, as
    well as our history books.
        And I am happy today that we have such a distinguished
    group of witnesses to start off our consideration of this very
    important subject.
        Our first witness is Bob Barr. Suzanne Spaulding is next.
    Dr. Robert F. Turner and Mort Halperin. I will introduce them
    in more detail later, but I want to welcome them right from the
    outset.
        Good to have you all here and start us off.
        And I now turn to the distinguished Ranking Member from
    Texas for his opening remarks, Lamar Smith.
        Mr. Smith. Thank you, Mr. Chairman.
        Mr. Chairman, I hope that this hearing will lead to
    increased bipartisan support for measures needed to protect our
    country from terrorists.
        We are a Nation at war with foreign terrorists who are
    continuing to plot deadly attacks. It is essential that our
    intelligence agencies have the necessary tools to detect and
    disrupt such attacks.
        In the 30 years since Congress enacted the Foreign
    Intelligence Surveillance Act, telecommunications technology
    has dramatically changed.
        As a result, the intelligence community has been hampered
    in gathering essential information about terrorists needed to
    prevent attacks against Americans.
        Before we left for the August recess, Congress passed
    important legislation to fill a gap in FISA.
        That bill clarified well-established law that neither the
    Constitution nor Federal law requires a court order to gather
    foreign communications from foreign terrorists, adopted
    flexible procedures to collect foreign intelligence from
    foreign terrorists overseas, and provided for court review of
    collection procedures under this new authority.
        The director of national intelligence made it clear that
    these reforms were essential for the intelligence community to
    protect America from terrorist attacks.
        Last April, the director submitted to Congress a
    comprehensive proposal to modernize FISA. The director's
    submission was ignored until the President made it clear in
    July that Congress had to act to ensure that our intelligence
    community obtains much-needed information about foreign
    terrorists.
        During the recess, some Members of Congress made public
    statements promising to rewrite the bill we just passed. It
    would be a deadly mistake to weaken such legislation.
        Nearly 60 percent of Americans polled on the subject of
    FISA reform supported the legislation Congress passed before
    the August recess. The simple fact is that Americans support
    surveillance of foreign terrorists when they contact persons in
    the United States.
        Unfortunately, 90 percent of House Democrats voted to deny
    the director of national intelligence what he said he needed to
    prevent future terrorist attacks.
        If the majority decides to reverse this law, they will
    hamper the ability of the intelligence community to prevent
    terrorist attacks. Innocent lives will be lost unnecessarily.
        We all cherish our individual liberties, but our liberties
    cannot flourish without security. The pursuit of life, liberty
    and happiness can occur only in a safe and secure country.
        I look forward to today's hearing with the hope that the
    debate on FISA reform will lead to enactment of all the
    director's proposals that he submitted in April.
        These proposals would ensure assistance from private
    entities in conducting authorized surveillance activities, make
    certain that private entities are protected from liability for
    assisting the Government, and streamline the FISA process so
    that the intelligence community can direct resources to
    essential operation.
        These reforms are long overdue. They should be debated
    without exaggerated claims of abuse or misleading claims of
    threats to civil liberty. Such a debate should also address the
    importance of all Americans living in a safe and secure
    country.
        President George Washington once said there is nothing so
    likely to produce peace as to be well prepared to meet the
    enemy. We should maintain our commitment to winning the war
    against terrorism.
        I thank you, Mr. Chairman, and I will yield back the
    balance of my time.
        Mr. Conyers. And I thank you, sir.
        We have agreed to allow Congressman Bobby Scott to make a
    brief statement, Trent Franks to be recognized.
        And I begin with Jerry Nadler, who is the Chairman of the
    Constitution Subcommittee, and I recognize the gentleman for
    2.5 minutes.
        Mr. Nadler. Thank you.
        I would like to thank Chairman Conyers for his leadership
    in holding this hearing today.
        This hearing is an important first step in examining the
    serious concerns regarding the recently enacted White House
    proposal to drastically alter the Foreign Intelligence
    Surveillance Act.
        That law, rushed through Congress just before the August
    recess, gives unnecessary license for the Administration to
    wiretap Americans without court supervision.
        Today's hearing specifically looks at one of the
    foundations of our fundamental liberties, the constitutional
    and statutory restrictions on the Government's ability to spy
    on people.
        Both the fourth amendment and FISA were responsive to
    abuses by Government that thought they were above the law. The
    right of the people to be secure in their persons, houses,
    papers and effects against unreasonable searches and seizures
    is a core limitation on the Government that protects each of
    us.
        The framers of the Constitution understood this and,
    despite periodic lapses, so have most of our Nation's leaders.
        Congress enacted FISA following the Church Committee report
    on surveillance abuses. It reflects Congress' understanding
    that the conduct of foreign intelligence activities is
    fundamentally different from domestic surveillance.
        It nonetheless also reflects one of our Nation's founding
    principles that power, especially the power to invade people's
    privacy, cannot be exercised unchecked.
        We rejected monarchy in this country more than 200 years
    ago. That means that no President, even this one, may become a
    law unto him or herself. As with every part of Government,
    there must always be checks and balances.
        This President appears to have forgotten that fact. Not
    only has he asserted the right to go around the FISA court and
    the wiretap act, but he has actually done so.
        Even more disturbing, he does not believe that he is
    accountable to the Congress, the courts or anyone else.
        This Committee created the FISA statute and the FISA court,
    yet the President believes we are not entitled to know what he
    or the court are doing.
        The President also believes that we are not entitled to
    know what he is doing, or has been doing, outside the confines
    of the FISA statute.
        Now we have passed a flawed bill that, in the guise of
    updating the FISA law, actually gives the President almost
    unfettered power to spy without court supervision, not just on
    foreigners, but on Americans.
        In the rush of the final hours before the August recess, we
    were stampeded by Administration fear-mongering and deception
    into signing away our rights. Thank God there is a 6-month
    sunset on the bill.
        The legislation allows the NSA warrantless access to
    virtually all international communications of Americans with
    anyone outside the U.S. so long as the Government maintains
    that the surveillance is directed at people, including both
    citizens and foreigners, who are ``reasonably believed to be
    located outside the U.S.''
        The Administration rejected all sensible efforts to focus
    such surveillance on terrorist activity or to provide
    meaningful court review of the rights of Americans who will be
    spied on in our country.
        Make no mistake about it. We are speaking about domestic
    spying on American citizens.
        We must act now to restore much-needed checks and balances
    into this damaged law. I look forward to----
        Mr. Conyers. The gentleman's time----
        Mr. Nadler [continuing]. Standing with Chairmen Conyers and
    Reyes----
        Mr. Conyers [continuing]. Is nearly expired.
        Mr. Nadler [continuing]. As we work with leadership to
    restore our freedoms that define America.
        I thank you.
        Mr. Conyers. I thank you, sir.
        Because the gentleman from Arizona, the Subcommittee
    Ranking Member, Trent Franks, is the only Republican that has
    agreed to speak, we will give him 5 minutes. And we recognize
    Trent Franks of Arizona at this point.
        Mr. Franks. Well, thank you very much, Mr. Chairman.
        And, Mr. Chairman, I am hopeful that this meeting will
    lead, indeed, to a bipartisan effort to provide tools necessary
    and needed by our intelligence community to protect this
    Nation.
        The arrest of eight suspected al-Qaida members in Denmark
    yesterday should serve as a reminder to us all that terrorists
    every day are plotting overseas to carry out deadly attacks.
        Unfortunately, I am afraid the majority has failed to see
    the importance of monitoring terrorists overseas when they
    communicate with other terrorists outside this country or
    communicate with other terrorists inside the United States.
        The director of national intelligence has made it clear the
    Foreign Intelligence Surveillance Act of 1978 needs to be
    updated.
        It is imperative that the intelligence community have the
    flexibility to monitor foreign terrorists so that our Nation
    remains safe.
        While opponents of FISA reforms continue to create, in my
    judgment, mountains out of molehills, it is important to
    remember that the Protect America Act restored FISA to its
    original focus by allowing the intelligence community to
    conduct surveillance of terrorists overseas without prior court
    approval.
        The Protect America Act also allows for substantial
    oversight, including a submission of important implementation
    procedures for review by the FISA court.
        The director of national intelligence has explained to
    Congress for more than a year that the Government devotes
    substantial resources to obtaining court approvals based on a
    showing of probable cause to conduct surveillance against
    terrorists, again, located overseas.
        The Government does not know in advance who these
    terrorists will talk to and needs to have the flexibility to
    monitor calls that may occur between a foreign terrorist and a
    terrorist inside the United States.
        Such monitoring of these communications can be conducted
    with well-established minimization rules that have been applied
    to restrict any unwarranted intrusion on the civil liberties of
    any United States citizen.
        Requiring specific applications and authority for
    surveillance of such communications would impose burdens and
    delays with possible catastrophic consequences.
        Mr. Chairman, so-called civil liberties groups and liberal
    newspaper editors have spent the last month spreading false
    allegations and misconceptions about foreign intelligence in
    order to gin up opposition to the Protect America Act.
        Such claims and efforts are irresponsible. We are a Nation
    at war with foreign terrorists who continue to plan deadly
    attacks against America. The safety of Americans depends on
    action by Congress.
        al-Qaida released a video recently promising a ``big
    surprise.'' This threat, along with other activity, has
    heightened concern among our intelligence agencies.
        Mr. Chairman, I have said many times in this Committee that
    we are at war with an ideology that is dedicated to the
    destruction of the western world. And what we do will be
    considered carefully by future generations.
        We have, in this Congress, given the President the
    authority to hunt down, ferret out and kill terrorists. The
    Constitution of the United States, as it empowers him to be the
    commander in chief, gives him the power to hunt down, ferret
    out and kill terrorists.
        Surely he has the right and even the responsibility to
    listen to them on the phone before he proceeds. And I am
    hopeful that the Protect America Act will be made permanent and
    that other responsible FISA reforms will be crafted by this
    Committee and passed by the House.
        And, Mr. Chairman, I yield back my time. Thank you.
        Mr. Conyers. Thank you, Trent.
        I am now pleased to recognize Bobby Scott of Virginia, who
    is the Subcommittee Chairman of the Crime Subcommittee, and we
    recognize the gentleman at this time for 2.5 minutes.
        Mr. Scott. Thank you, Mr. Chairman, and I appreciate you
    holding this hearing on warrantless surveillance under the
    Foreign Intelligence Surveillance Act, or FISA.
        Because of the Department of Justice's refusal to respond
    to requests for information, we have been stymied in conducting
    meaningful oversight with respect to the Administration's
    warrantless surveillance and have been prevented from serving
    as an independent check on abuses by the President and the
    National Security Agency.
        And so there is a sense, now, there are virtually no checks
    and balances on the Administration's discretion on who or what
    is the subject of warrantless surveillance.
        Now, there has never been any controversy over overseas
    surveillance. You don't need any oversight for that. They can
    do what they want.
        But now, based on the Administration's own certification,
    the Administration is now free to intercept communications
    believed to be from outside the United States into the United
    States and possibly even, because of ambiguities in the law,
    domestic calls that involve any vague notion of foreign
    intelligence.
        Now, that is not terrorism. Foreign intelligence includes
    information regarding trade deals, or international politics or
    any kind of diplomacy.
        And the standard the Government has to meet to engage in
    such data mining is that the acquisition of information has to
    be a significant justification for the invasive surveillance
    techniques, not the traditional primary justification.
        Now, the Department of Justice has not credibly refuted the
    allegations that United States attorneys were fired because
    they failed to use the criminal justice process to pursue
    partisan political agendas.
        So now, if the Department of Justice wiretaps when foreign
    intelligence is just a significant purpose and not the primary
    purpose, you wonder what the primary purpose may be.
        Now, let's be clear. This is not a question of balancing
    rights and liberties versus security. The requirement that the
    Department of Justice has to essentially notify the FISA court
    of its surveillance activities in no way restricts what it can
    do.
        There is even an emergency exception. If they are in a
    hurry, they can get the warrant after the fact. But meaningful
    FISA oversight will give the public confidence that the
    Department of Justice is complying with the law.
        Thank you, Mr. Chairman, and I appreciate the fact that you
    are holding this hearing.
        Mr. Conyers. Thank you, Bobby Scott.
        What a distinguished group of witnesses we have today. Our
    first witness is a former colleague and a Member of the
    Judiciary Committee who served with great distinction over the
    years that he was in the Congress.
        Bob Barr is also a founding member of the Liberty and
    Security Initiative of the Constitution Project and just from
    what I have been observing, he has been almost as active out of
    the Congress as he has been in the Congress.
        And we are delighted that he has once again accepted an
    invitation to come before the Judiciary Committee on this very
    important subject.
        And without objection, his and all other Members'
    statements will be included in their entirety in the record.
        Welcome, Congressman Barr.

                 TESTIMONY OF THE HONORABLE BOB BARR,
                       FORMER MEMBER OF CONGRESS3

        Mr. Barr. Thank you, Mr. Chairman. It is both a pleasure
    and an honor to be back among so many former colleagues and
    continuing friends on both sides of the aisle, and particularly
    on such an important topic as the Chairman and the Committee is
    set to consider today.
        It is a pleasure also being with my good friend and
    colleague from my home state of Georgia, Congressman Johnson.
        Hank, it is great to be with you and, as the Chairman has
    indicated, an extremely distinguished panel.
        Mr. Chairman, I read with some interest a recent interview
    with National Intelligence Director Mike McConnell which
    appeared in the El Paso Times.
        And I can't help but note that the dire warnings by the
    Administration similar to those which were employed to secure
    very rapid passage of the FISA amendments exactly 1 month ago,
    or 1 month ago and then signed exactly 1 month ago by the
    President, continue unabated.
        And they ill serve any Administration, Republican or
    Democrat. And I refer particularly to the words of Mr.
    McConnell that indicate that simply debating this topic as this
    Committee is doing today will ``cost American lives.''
        I think this is a completely unacceptable approach to the
    democratic representative process that we have in this country
    whereby the Congress and the Administration are both deemed not
    just--it is deemed not just appropriate, but absolutely
    essential, to debate important policy issues, particularly
    those, as today, which are very well-founded, inextricably
    founded, in constitutional principles. Noted among them is the
    fourth amendment.
        And to try and squelch even the debate of these topics by
    raising the false specter that debating the constitutionality
    of FISA or amendments to FISA will some how cost American
    lives, and therefore we ought not to even debate these issues,
    ought not to be something that the American people accept.
        And I am certainly glad that this Committee and the current
    leadership--yourself, certainly, Mr. Chairman--are not falling
    prey to that. These matters are, indeed, very worthy of debate.
        If these matters are not worthy of debate--that is, the
    extent to which our own Government can spy on our own citizens
    in this, our own land, are not worthy of debate--then it is
    hard to imagine any issue that would be worthy of debate.
        So I think it is extremely important that this topic is
    coming before the Committee.
        The very title of this hearing places the subject away or
    removes the topic away from simply a dry technical discussion
    to a discussion not only of the technology but, more
    importantly, of the fundamental constitutional principles and
    rights underlying intelligence surveillance or any kind of
    electronic surveillance by this Government, which, indeed,
    immediately and necessarily involves the privacy rights of our
    citizens as embodied not only but particularly in the fourth
    amendment.
        The manner in which this Administration argued in support
    of what it termed a technical amendment to FISA in order to
    accommodate the problem at hand as it identified it--that is,
    two individuals, both outside the United States, engaging in
    electronic communication, but because of the technology that
    communication is routed through the United States--is one
    issue, and it is a legitimate issue.
        Unfortunately, as the Chairman and some of the other
    Members on the Chairman's side have indicated, the supposed fix
    by the Administration as embodied in the legislation, P.L. 110-
    55, that the President signed on August 5, go far, far beyond
    any reasonable effort to address that particular problem.
        And now virtually any electronic communication--that is, a
    telephone call or an e-mail--by any person in this country,
    U.S. citizen or otherwise, that simply has as one of its
    parties somebody reasonably believed to be overseas, is now
    subject to surveillance by the Government without ever even
    contemplating, much less going before, the Foreign Intelligence
    Surveillance Court or any court.
        And this notion that we address a very specific technical
    problem by a massive rewrite, in essence, of the entire FISA
    mechanism is one that I believe is entirely unacceptable.
        And hopefully now, beginning with the process here today,
    the Congress will rectify and restore constitutional balance to
    the FISA process.
        This will not weaken the legislation. I fail to see that
    ever when legislation is crafted to bring it in accord with the
    Constitution, that weakens it. This would not weaken it.
        It would, indeed, greatly strengthen not only the
    legislation but also the constitutional underpinnings of the
    right to privacy for all Americans.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Barr follows:]
                  Prepared Statement of the Honorable Bob Barr

        Mr. Conyers. I thank you very much.
        Congressman Hank Johnson was desperately trying to get my
    attention before we started. I yield him a very small amount of
    time.
        Mr. Johnson. I thank you, Mr. Chairman.
        Mr. Chairman, the purpose of my request is to simply
    acknowledge the presence of my Georgia colleague in the bar of
    Georgia, Mr. Bob Barr, a man who we have not agreed on all of
    our political issues.
        But I certainly deeply respect the patriotism that he has
    displayed throughout his career, both as a U.S. attorney where
    he prosecuted public corruption cases in a bipartisan way, as
    well as was tough on other crime, and also as a congressman,
    and then his post-congressional career where he has been an
    eloquent spokesperson for our adherence to constitutional
    principles, as we proceed in a more dangerous existence on this
    planet.
        So I just wanted to acknowledge your great work and say
    that I appreciate the fact that you are a lawyer from Georgia,
    and you continue to do great work. So thank you very much.
        Mr. Barr. Appreciate very much the very kind and
    unwarranted words of my friend from Georgia. Thank you.
        Mr. Conyers. Our next witness is attorney Suzanne
    Spaulding, who was Assistant General Counsel at the CIA,
    previously a minority staff director on the House Permanent
    Select Committee of Intelligence, Executive Director of the
    National Commission on Terrorism, and currently Managing
    Director of the Harbour Group, specializing in national
    security and terrorism issues.
        We are delighted and pleased that you could join us this
    morning.

              TESTIMONY OF SUZANNE SPAULDING, PRINCIPAL,
                        BINGHAM CONSULTING GROUP

        Ms. Spaulding. Chairman Conyers, Ranking Member Smith,
    Members of the Committee, thank you for this opportunity to
    testify on changes to the Foreign Intelligence Surveillance
    Act.
        I would like to begin by emphasizing that in the over 20
    years that I have spent working on efforts to combat terrorism,
    I developed a strong sense of the seriousness of the national
    security challenges that we face and a deep respect for the men
    and women in our national security agencies who work so hard to
    keep us safe.
        We all agree that we owe it to those professionals to
    ensure that they have the tools they need to do their jobs,
    tools that reflect the ways in which advances of technology
    have changed both the nature of the threat and our capacity to
    meet it.
        They also deserve to have clear guidance on just what it is
    that we want them to do on our behalf and how we want them to
    do it.
        Unfortunately, the newly enacted changes to FISA do not
    provide clear guidance and instead appear to provide
    potentially very broad authority and inadequate safeguards.
        I will touch on just a few points today with additional
    comments in my written testimony.
        First, avoid changing definitions. The terms in FISA not
    only appear throughout this complex statute, they are also
    referenced in and inform other laws, executive orders,
    directives and policies.
        The risk of unintended consequences is significant,
    particularly when changing the definition of a term as
    fundamental as electronic surveillance.
        Second, the words ``notwithstanding any other law,'' which
    is how the new section 105(b) begins, should always raise a red
    flag. These words mean that all other laws that regulate the
    collection of intelligence inside the United States no longer
    apply to activities undertaken under section 105(b).
        And those activities are potentially extremely far-
    reaching. Section 105(b) appears to provide statutory
    authorization for the Government to gather information on any
    kind of communication and to gather it inside the United States
    from U.S. citizens, so long as it is about someone who happens
    to be outside the United States at that time.
        Thus, it would appear, for example, to authorize
    intercepting U.S. mail between two people inside the United
    States, as long as the Government reasonably believes that the
    letter discusses someone outside the United States.
        The careful statutory regime governing mail intercepts is
    overruled by the ``notwithstanding any other law'' language in
    section 105(b).
        Similarly, it would appear that the Attorney General could
    authorize the physical search of a person's office for stored
    e-mails or letters concerning their colleagues overseas. The
    FISA provisions that regulate physical searches become
    irrelevant if section 105(b) applies.
        This language also overrules privacy protections in the
    Electronic Communications Privacy Act and other privacy laws.
    And none of this domestic intelligence collection has to be
    related in any way to terrorism.
        It applies to any foreign intelligence, a term which has
    been amended over the years to include a very broad range of
    information.
        The Protect Act requires that information be minimized but
    it appears to apply the relatively relaxed, permissive
    procedures that currently apply when a FISA judge has reviewed
    a full FISA application and found probable cause.
        Instead, what should be required are the far more stringent
    procedures that currently apply when the Attorney General has
    unilaterally approved surveillance under his current authority
    under 102(a) of FISA.
        Changes to FISA should be the narrowest possible to remove
    whatever impediment has arisen to using FISA. There ought to be
    a way for the Government to know, even if it is after the fact,
    where the parties to these communications are located.
        My phone company seems to be able to determine whether I am
    using my cell phone at home or overseas. They charge me a lot
    more when I use it overseas.
        This technology can begin to provide the basis for a legal
    regime that is much more narrowly focused with precise
    procedures and safeguards to govern surveillance that involves
    people inside the United States.
        Finally, Congress should seek a stronger commitment from
    the Administration that it will actually abide by the law.
        Until Congress gets some assurance from the executive
    branch about where they draw the line on presidential authority
    in this area, it is hard to see why Members should continue to
    work so hard to craft careful laws.
        In conclusion, Mr. Chairman, I believe that ultimately
    effective oversight and thoughtful legislation will require
    reshaping the discussion about how to best address the long-
    term threat of terrorism.
        We need a broader discussion about the ways in which
    policies that mock the rule of law or undermine our carefully
    constructed system of checks and balances make it more likely,
    not less likely, that we will be attacked again.
        The long-term challenge of international terrorism is a
    struggle for hearts and minds, a competition of narratives.
        The best way to be strong on terrorism is not to defer to
    the avaricious accumulation of power by the executive branch
    but to better understand the true nature of the long-term
    struggle against violent extremism.
        We can only defeat this threat by building upon the
    strengths of our system, including its checks and balances.
    That city on a hill can outshine the twisted but compelling
    lure of violent jihad. That is how we will ultimately prevail.
        Thank you, Mr. Chairman.
        [The prepared statement of Ms. Spaulding follows:]
                   Prepared Statement of Suzanne E. Spaulding
        Mr. Chairman, Ranking Member, Members of the Committee, thank you
    for this opportunity to testify on changes to the Foreign Intelligence
    Surveillance Act (FISA). I'd like to begin by emphasizing that I have
    spent over twenty years working on efforts to combat terrorism. Over
    those two decades, in my work at the Central Intelligence Agency, at
    both the House and Senate intelligence oversight committees, and as
    Executive Director of two different commissions, on terrorism and
    weapons of mass destruction, I developed a strong sense of the
    seriousness of the national security challenges that we face and deep
    respect for the men and women in our national security agencies who
    work so hard to keep our nation safe.
        We owe it to those professionals to ensure that they have the tools
    they need to do their job; tools that reflect the ways in which
    advances in technology have changed both the nature of the threat and
    our capacity to meet it. Equally important, they deserve to have clear
    guidance on just what it is that we want them to do on our behalf--and
    how we want them to do it. Clear rules and careful oversight provide
    essential protections for those on the front lines of our national
    security efforts. Unfortunately, the newly enacted changes to the
    Foreign Intelligence Surveillance Act (FISA) provide neither clear
    guidance nor the mechanisms to ensure careful oversight.
                 problems with the protect america act of 2007
        I understand that the committee plans to hold further hearings to
    examine in greater detail the specifics of the Protect Act and assess
    whether to make changes or replace it. Thus, I will limit my testimony
    today to a few key points.
        Avoid trying to accomplish your objective by changing definitions.
    The terms in FISA not only appear throughout this complex statute; they
    are also referenced in or inform other laws, Executive Orders,
    directives, policies, etc. The risk of unintended consequences is
    significant, particularly when changing the definition of something a
    fundamental as electronic surveillance. The report recently prepared by
    the Congressional Research Service points out several ways in which
    defining a range of activity out of electronic surveillance, while
    still setting up a scheme to govern those activities within this
    statute designed to regulate electronic surveillance, creates
    confusion. This does not even address the consequences for internal NSA
    directives and other legal and policy documents that reference
    electronic surveillance.
        A better approach would be one similar to that found in the bill
    introduced by Representative Reyes, Chair of the House Permanent Select
    Committee on Intelligence, that explicitly authorizes the surveillance
    when the target is reasonably believed outside US, with strong
    safeguards to protect against ``reverse targeting'' or unnecessary
    intrusions on the privacy of the US--end of a communication.
        As a general rule, never use the words ``notwithstanding any other
    law.'' This is how the new section 105B begins and that should always
    raise a red flag. In this case, it raises serious questions about the
    continuing applicability of other laws that regulate the collection of
    intelligence inside the United States, including restrictions within
    FISA with regard to physical searches.
        Section 105B provides authority for the AG and DNI to collect
    intelligence information inside the United States so long as (1) the
    information is about a person who happens to be outside the US at the
    time--including, of course, a US citizen, (2) the collection of that
    information does not involve electronic surveillance, and (3) the
    government requires the assistance of someone with access to a
    communication or communication equipment. It appears to be about
    electronic surveillance targeting someone outside the US (which is now
    no long considered ``electronic surveillance''), but it in fact
    provides authorization for the government to gather any kind of
    communication and to gather it inside the United States. Thus, it would
    appear to authorize intercepting US mail between two people inside the
    United States, so long as the government reasonably believes the letter
    discusses, at least in part, someone outside the US. The careful legal
    regime governing mail intercepts is overruled by the ``notwithstanding
    any other law'' language'' in section 105B.
        Moreover, it would appear that the AG could authorize the physical
    search of your home to find a letter from your son overseas or the
    family computer on which you've stored his emails, although this would
    raise significant 4th Amendment issues. The FISA provisions that
    regulate physical searches become irrelevant because section 105B
    applies ``notwithstanding any other law.''
        Similarly, the protections that Congress worked so hard to enact
    last year for section 215, the so-called business records provision,
    would also appear to be overruled when Section 105B applies. Thus, any
    individual who can help the government obtain access to communications
    that involve someone outside the United States can now be compelled to
    provide that assistance under section 105B, with fewer safeguards.
        And it is not just other sections of FISA that are effectively
    repealed by this language. It overrules any laws that might otherwise
    affect the gathering of information about communications that concern
    people outside the US. Thus, whatever privacy protections Congress may
    have enacted in other laws, including the Electronic Communications
    Privacy Act, the Communications Privacy Act, even HIPPA and the Privacy
    Act, would no longer have any impact on this activity.
        If there are particular provisions of law that Congress wishes to
    ensure do not hamper the collection of this intelligence inside the US,
    they should specify those provisions and be clear about how they will
    and will not apply.
        And none of this domestic intelligence collection has to be related
    in any way to terrorism. It applies to any ``foreign intelligence,'' a
    term which has been amended over the years to include a very broad
    range of information.
        It is true that information gathered under 105B must be subjected
    to minimization procedures, but it appears that the statutory
    requirements that apply are the less rigorous procedures that apply
    when a FISA judge has reviewed a full FISA application and found
    probable cause to believe that the target of the surveillance was a
    foreign power or agent of a foreign power. The Protect Act simply
    refers to ``the minimization procedures in section 101(h).'' There are
    two sets of minimization procedures proscribed in that section. The
    first set applies when a FISA judge has approved an application. The
    second set is much more stringent and applies when the Attorney General
    has approved surveillance without going to a FISA judge. These more
    rigorous procedures are statutorily limited to situations in which the
    AG is acting pursuant to the authority granted him in section 102(a).
    Thus, they would not apply to the unilateral authority granted to the
    AG and DNI in the Protect Act.
        The general minimization procedures in 101(h)(1)-(3) reflect a
    recognition that, even after all the application requirements had been
    met and approved by a FISA judge, there remains some risk that
    information about U.S. persons (USPs) might be collected. These
    procedures require steps be taken to minimize the acquisition and
    retention, and prohibit the dissemination, of such information. The
    procedures are to be ``reasonably designed in light of the purpose and
    technique'' of the surveillance and ``consistent with the need of the
    United States to obtain, produce, and disseminate foreign intelligence
    information.'' This is a very broad and flexible standard, particularly
    given the current scope of ``foreign intelligence.''
        Under section 101(h)(4), if surveillance is conducted pursuant to
    AG authorization rather than a warrant from a FISA judge, no contents
    of any communication to which a USP is a party can be disclosed,
    disseminated, or used for any purpose or retained for more than 72
    hours without getting a court order, unless the AG determines that the
    information indicates a threat of death or serious bodily harm. Concern
    about ensuring that electronic surveillance authorized unilaterally by
    the AG could not be used to gather information about USPs was so strong
    when FISA was enacted that even the mere existence of such a
    communication was included in this restriction. At a minimum, this
    stricter procedure should apply to information collected under section
    105B.
        In addition, the Protect Act requires that the AG and DNI develop
    procedures to reasonably ensure that the target is outside the US (or
    the information concerns someone outside the US and is not ``electronic
    surveillance'') but the Act does not provide any other requirements for
    those procedures.
        The government should have a proactive obligation to take whatever
    steps are feasible, on an ongoing basis rather than just at the outset
    of surveillance or other intelligence collection, to determine whether
    the target is in fact overseas and whether the other party to a
    communication is inside the United States. The phone company always
    seems to be able to determine whether I am using my cell phone at home
    or overseas--I know this because they charge me a lot more when I use
    it overseas! There ought to be a way for the government to know, even
    if it is after the fact, where the parties to many of these
    communications are located. This begins to provide the basis for a
    legal regime that is much more narrowly focused, with precise
    procedures and safeguards to govern surveillance that involves persons
    inside the United States.
        Finally, rigorous oversight of the use of this authority will be
    essential. Given the reported failure of the AG to properly report to
    Congress regarding problems with the use of national security letters,
    I would urge Congress to direct the Justice Department and DNI
    Inspectors General to report jointly on implementation within 90 days
    of enactment and every 90 days thereafter.
                            context for fisa changes
        The Administration has indicated that it plans to seek broader
    changes to FISA. As the committee and the Congress consider how to move
    forward on this issue, I would offer some overarching thoughts on the
    challenge presented by the national security imperative to monitor
    communications of those who wish to do us harm.
        First, any expansion of authority should be limited to terrorism
    targets. This is how the authority is sold to the American public by
    the Administration. To then broaden the authority to include any and
    all foreign intelligence on anything is a kind of ``bait and switch.''
        Second, craft the narrowest changes possible to remove whatever
    impediment has arisen to using FISA. Technology experts and FISA
    judges, current and former, can provide essential insights into what
    the government and the communications providers can and cannot do, as
    well as what safeguards are most important to prevent abuse.
        Third, be extremely cautious about limiting the role of the FISA
    judges. As Supreme Court Justice Powell wrote for the majority in the
    Keith case, ``The Fourth Amendment does not contemplate the executive
    officers of Government as neutral and disinterested magistrates. Their
    duty and responsibility are to enforce the laws, to investigate, and to
    prosecute. . . . But those charged with this investigative and
    prosecutorial duty should not be the sole judges of when to utilize
    constitutionally sensitive means in pursuing their tasks. The
    historical judgment, which the Fourth Amendment accepts, is that
    unreviewed executive discretion may yield too readily to pressures to
    obtain incriminating evidence and overlook potential invasions of
    privacy and protected speech.''
        Finally, Congress should seek a stronger commitment from the
    Administration that it will actually abide by the law. This new
    procedures under section 105B are optional; the AG and DNI ``may''
    choose to use them; they are not required to follow this process. But
    the rest of FISA is not optional. Until Congress gets some assurance
    from the Executive Branch about where they draw the line on
    Presidential authority in this area, it is hard to see why Members
    should continue to work so hard to craft careful laws.
        On a related point, the Administration has indicated that it will
    be back in front of Congress seeking immunity for carriers and others
    who cooperated in the Terrorist Surveillance Program and, perhaps,
    other intelligence activities. It is hard to imagine a more powerful
    way to undermine respect for the rule of law and the critical role that
    communication providers play as the last line of defense against
    government abuse. Moreover, it's not clear why this is needed. Under
    current law, communication providers already can avoid liability if
    they simply have a letter from the AG saying the government's request
    is legal. If they did not even get that, what message do we send by
    giving them immunity for totally disregarding the law? Why wouldn't the
    next telecommunications CEO also decide to go ahead and violate the
    law, figuring the government would bail the company out if it ever
    became public?
        In an area such as this, where the normal safeguards of
    transparency are lacking, requiring communication providers to at least
    get a certification that the request to hand over customer information
    or allow communication intercepts is legal serves as an important
    potential deterrent to abusive behavior by the government. At a
    minimum, Congress needs to fully understand what past activities would
    be immunized before adopting such a wide-ranging provision.
         undertake a broader review of domestic intelligence collection
        FISA is the primary statute governing domestic intelligence
    collection. Rather than attempt to guess at what might really be needed
    to meet today's challenges and how these and other changes will affect
    our ability to meet those challenges and protect Americans' privacy,
    Congress should take the time to ensure they understand the full
    context in which these changes are being sought. This includes the
    problems that have prompted them, particularly as these relate to
    current and past intelligence activities and the changing nature of the
    threat, as well as how these new authorities, definitions, and
    procedures would relate to all of the other national security and law
    enforcement tools available to the government.
        I urge Congress not to consider any ``overhaul'' of FISA without
    first undertaking a comprehensive review of domestic intelligence
    collection. The attacks of 9/11 revealed a vulnerability at home that
    led to a dramatic increase in domestic intelligence activity. The
    Federal Bureau of Investigation's priorities turned 180 degrees, as it
    was pressed to place domestic intelligence collection at the forefront
    rather than criminal law enforcement. But the FBI is not the only
    entity engaged in domestic intelligence. The Central Intelligence
    Agency, National Security Agency, Department of Defense, Department of
    Homeland Security, and state and local law enforcement are among the
    many entities gathering intelligence inside the US. The threat to the
    homeland presents unique challenges, both to effective intelligence and
    to appropriate protections against unwarranted government intrusion.
        Unfortunately, the legal framework governing this intelligence
    activity has come to resemble a Rube Goldberg contraption rather than
    the coherent foundation we expect and need from our laws. The rules
    that govern domestic intelligence collection are scattered throughout
    the US Code and a multitude of internal agency policies, guidelines,
    and directives, developed piecemeal over time, often adopted quickly in
    response to scandal or crisis and sometimes in secret.
        Rather than continuing this pattern, the House of Representatives
    should consider establishing a Joint Inquiry or Task Force with
    representation from the most relevant committees (Intelligence,
    Judiciary, Armed Services, Foreign Affairs, and Homeland Security), to
    carefully examine the nature of the threat inside the US and the most
    effective strategies for countering it. Then this task force, the
    entire Congress, and the American public, can consider whether we have
    the appropriate institutional and legal framework for ensuring that we
    have the intelligence necessary to implement those strategies, with
    adequate safeguards and oversight.
        The various authorities for gathering information inside the United
    States, including the authorities in FISA, need to be considered and
    understood in relation to each other, not in isolation. For example, as
    discussed earlier, Congress needs to understand how broader FISA
    authority relates to the various current authorities for obtaining or
    reviewing records, such as national security letters, section 215 of
    FISA, and the physical search pen register/trap and trace authorities
    in FISA, and the counterparts to these in the criminal context, as well
    as other law enforcement tools such as grand juries and material
    witness statutes.
        Executive Order 12333, echoed in FISA, calls for using the ``least
    intrusive collection techniques feasible.'' The appropriateness of
    using electronic surveillance or other intrusive techniques to gather
    the communications of Americans should be considered in light of other,
    less intrusive techniques that might be available to establish, for
    example, whether a phone number belongs to a suspected terrorist or the
    pizza delivery shop. It's not the ``all or nothing'' proposition often
    portrayed in some of the debates.
        Congress should undertake this comprehensive consideration of
    domestic intelligence with an eye toward the future but informed by the
    past and present. Until Congress fully understands precisely what has
    and is being done in terms of the collection and exploitation of
    intelligence related to activities inside the US, by all national
    security agencies, it cannot wisely anticipate the needs and potential
    problems going forward.
        This applies particularly to changes to FISA. Congress must be
    certain that it has been fully informed about the details of the
    Terrorist Surveillance Program and any other surveillance programs or
    activities initiated after 9/11, not just in their current form but in
    the very earliest stages, including the legal justifications offered at
    the time the activities were initiated. Understanding how the law
    operates in times of crisis and stress is key to understanding how it
    might need to be strengthened or adjusted to meet national security
    imperatives in ways that will protect against future abuse.
        Conducting this kind of careful and thorough oversight is
    particularly challenging in today's environment, as we saw with the
    rush to enact the Protect Act just before the August recess. Congress'
    ability to insist that the expansion of authority be appropriately
    limited and safeguarded was significantly hampered by concerns that the
    American public would view Members as ``soft'' on national security.
       reshape discussions about how best to address the terrorist threat
        Effective oversight and thoughtful legislation will require
    reshaping the discussion about how to best address the long term threat
    of terrorism. We need a broader discussion about the ways in which
    policies that mock the rule of law and undermine our carefully
    constructed system of checks and balances make it more likely, rather
    than less likely, that we will be attacked again.
        Military and civilian experts agree that the long-term threat from
    international terrorism is not going to be defeated militarily. In
    addition to eliminating the terrorists' leadership, it is at least
    equally essential to reduce their ability to recruit new young people
    to join their ``cause'' and to generate and maintain support within
    communities around the world. This is a struggle for hearts and minds;
    a competition of narratives. The ``jihadist'' narrative is undeniably
    compelling to many young Muslim men--and we unfortunately strengthen
    this narrative when we speak in terms of a Global War on Terrorism. The
    narrative of democracy, individual freedoms, and the rule of law can be
    equally compelling but its credibility is dramatically undermined if
    the greatest democracy is not clearly committed to live that narrative
    rather than simply mouthing the words.
        We have to demonstrate that we still believe what our founders
    understood; that this system of checks and balances and respect for
    civil liberties is not a luxury of peace and tranquility but was
    created in a time of great peril as the best hope for keeping this
    nation strong and resilient. It was a system developed not by fuzzy-
    headed idealists but by individuals who had just fought a war and who
    knew that they faced an uncertain and dangerous time. They saw first-
    hand the how the whims of a single, unchecked ruler could lead a
    country astray. They knew that in times of fear and crisis, the
    instinct is to reach for power--and they determined that balancing
    power between all three branches would protect against that frailty of
    human nature and ultimately make for wiser, better decisions and a more
    unified and strong nation.
        Our greatest weapon against global terrorism is a committed and
    determined American public. Public support is strengthened by
    developing consensus through public discussion and debate--not by
    developing policies in secret or by stifling dissent by labeling those
    who disagree as ``unpatriotic'' or insufficiently aware of the post 9/
    11 threat. Statements claiming that Congressional debate over proposed
    FISA changes costs American lives are not only suspect in terms of
    credibility, they also reflect a fundamental failure to appreciate the
    strength of our democracy.
        The wisdom of this system and the importance of remaining true to
    it even in times of peril can perhaps best be understood with regard to
    fears of home-grown terrorism. The best hope for detecting and
    preventing this threat lies not in intrusive intelligence methods,
    which are better suited to monitoring a known target than in finding
    out who might be a target. Instead, our best hope lies in working
    closely with communities, particularly Muslim American communities.
    Yet, many of our policies and practices since 9/11 that unnecessarily
    compromise civil liberties or seem to reflect a lack of respect for the
    rule of law risk alienating those very communities. In this regard,
    they make us less secure.
        It is also clear that the failure of the Administration to follow
    the law or take advantage of our system of checks and balances in its
    implementation of the Terrorist Surveillance Program, and other related
    intelligence activities, had significant negative consequences for our
    national security. The Administration tells us that these surveillance
    activities were, and are, vital to our security. Yet here are some of
    the consequences of the failure to build a firm legal foundation for
    these programs:

              The program was shut down for weeks: The shaky legal
            ground for surveillance activities apparently caused sufficient
            concern by the Acting Attorney General and the FBI Director
            that the program was reportedly shut down for weeks until more
            safeguards were added. That means for weeks we were not
            listening to what we are told are conversations between
            terrorists and people inside the US. A firmer legal footing,
            based on a stronger consensus, would have avoided this
            potentially dangerous gap in coverage.

              The program was leaked to the press, something the
            Administration claims has hurt our national security. Why was
            it leaked? Because the professionals at NSA were so troubled by
            what they believed was an illegal program. Had the program been
            placed on a more solid legal footing, these dedicated
            professionals would not have felt compelled to seek outside
            oversight.

              Prosecutions may be jeopardized. Prosecutions that
            were based in any way on information obtained by this program
            may now be jeopardized if a court finds that the information
            was collected or used improperly. A more solid legal basis
            could have avoided this risk.

              Damaging impact on intelligence professionals. The
            legal uncertainty of this program (1) puts the men and women
            who were conducting this surveillance program, and those who
            were using the information, in jeopardy of potential criminal
            liability, (2) hurts agency morale, and (3) may well undermine
            officials' confidence that they can and should carry out future
            presidential directions without facing potential liability.
            (The same is true for the torture debate--where intelligence
            officials operated pursuant to a DOJ memo that was later
            repudiated for political reasons. How are the folks on the
            front line of intelligence supposed to react to all of this?)

              Diverted vital investigative resources. There are
            indications that this program produced too many false leads and
            may have led to an unproductive diversion of important FBI
            resources that could have been better used conducting more
            fruitful investigations of suspected terrorist activity inside
            the US. For example, press reports indicate that only about 10
            intercepts each year--out of the thousands of communications
            intercepted through this program--proved suspicious enough to
            justify intercepting all the domestic communications of the
            US--end of the original communication. Presumably, the rest of
            the intercepted communications with Americans ultimately proved
            to be unrelated to terrorism and involved innocent Americans or
            others inside the US.

              Complicates future efforts to gain the support of
            Congress. The expansive reading of the AUMF may make it harder
            to get such authorizations in the future, potentially weakening
            public support for future conflicts. Indeed, the mistrust
            created on both sides of the aisle in Congress may impact
            executive branch efforts in a number of ways beyond just
            authorizations for the use of force.

        Ensuring appropriate safeguards in FISA is essential to avoiding
    similar national security problems in the future and, ultimately, to
    defeating the terrorists. The bottom line is that the best way to be
    strong on terrorism is not to defer to the avaricious accumulation of
    power by the President but to better understand the true nature of the
    long term struggle against violent extremists. We can only defeat this
    threat by building upon the strengths of our system. That city on the
    hill can outshine the twisted but compelling draw of violent jihad.
    That is how we will ultimately prevail.

        Mr. Conyers. Thank you, Attorney Spaulding.
        We next turn to Dr. Robert Turner, who has served in both
    the Department of Defense and the Department of State. He is a
    professor at the University of Virginia School of Law, and
    serves as the Associate Director of an organization he helped
    create there, the Center for National Security Law. And we
    welcome him at this time.
        Welcome to the Committee, sir.

               TESTIMONY OF PROFESSOR ROBERT F. TURNER,
                  UNIVERSITY OF VIRGINIA SCHOOL OF LAW

        Mr. Turner. Thank you, Mr. Chairman. It is a pleasure to be
    here.
        Mr. Smith and Members of the Committee.
        I have prepared a rather lengthy statement I would submit
    for the record at this time.
        I worked in the Senate when FISA was enacted, and I later
    oversaw the compliance with FISA when I served as counsel to
    the President's Intelligence Oversight Board in White House in
    the early 1980's.
        But the central focus of my testimony and my expertise in
    this area is on the separation of national security
    constitutional powers. I have sent more than 30 years working
    in this area, and I have given you a fairly long statement
    focusing on that.
        Speaking personally, and certainly not on behalf of the
    organization, I am a strong supporter both of the legislation
    you just passed, the Protect America Act, and also of the
    revisions submitted by the Administration, but I don't pretend
    to be an expert on all the details of those.
        When FISA was first enacted, I believed it was
    unconstitutional. I continue to feel that way.
        In my testimony, I have given you quotations from people
    like James Madison, Thomas Jefferson, George Washington,
    Alexander Hamilton, John Jay, John Marshall--some of the most
    important people who set up this country--all of them arguing
    that when the Constitution gave the President ``the executive
    power'' in article II, section 1, that carried with it the
    general control of foreign affairs, save for the specific
    exceptions mentioned in the Constitution which were to be
    construed narrowly.
        In the area of foreign intelligence, it is absolutely clear
    that this is presidential business. It has always been viewed
    as presidential business. It was not even questioned until well
    into my adult lifetime in the 1970's.
        John Jay, in Federalist Number 64, specifically talked
    about this. And he explained that foreign sources of
    intelligence would not trust, would not cooperate, if they knew
    the information would be shared with Congress. And therefore
    the Constitution had left the President ``able to manage the
    business of intelligence as prudence might suggest.''
        Every President going back to George Washington has
    conducted intelligence without sharing it with Congress,
    without seeking permission from Congress. Every President from
    FDR to Jimmy Carter engaged in warrantless wiretapping and said
    that was legal.
        The Carter Justice Department said there was a national
    security, a foreign intelligence national security, exception
    to the warrant requirement of the fourth amendment.
        And when Griffin Bell testified on FISA he said, obviously
    FISA cannot take away the President's independent powers. But
    he went on to say however, President Carter is willing to agree
    to comply with FISA so there is no problem. That, obviously,
    did not bind any future Presidents and could not take away
    their constitutional power.
        When Congress in 1790 first appropriated funds for foreign
    intelligence, it was extremely deferential. It said the
    President should account specifically for those sums which, in
    his judgment, could be made public and for the amount of other
    expenditures so Congress could replenish the kitty.
        In 1818, there was a debate in this chamber in which Henry
    Clay and other Members said, of course it would be improper for
    us to inquire into how money is spent for foreign intelligence
    purposes.
        And when Congress in 1968 passed title III, the first
    wiretap statute, it said specifically that nothing in this
    title shall limit the constitutional power of the President to
    obtain foreign intelligence information. Thus, Congress, by
    statute, recognized this independent power.
        When the Supreme Court in 1967, for the first time,
    declared that wiretaps were, in fact, a seizure under the
    fourth amendment, it included a footnote that exempted national
    security wiretaps.
        In the Keith case in 1972, when the Supreme Court held
    warrants would be required for domestic wiretaps, twice Justice
    Powell, speaking for the unanimous court, said this does not
    affect foreign powers, or wiretaps of foreign powers or their
    agents, in this country.
        This was, in fact, consistent with a blue ribbon panel of
    the American Bar Association in 1971 which concluded there
    should be a distinction. There should not be a requirement for
    warrants for foreign intelligence wiretaps, but when the target
    is purely a domestic subversive group or something like that,
    you must have a warrant.
        Since Keith, every single Federal court of appeals to
    decide the issue agreed the President has independent
    constitutional power to decide this.
        FISA set up a special court of review consistent of Federal
    court of appeals judges. In 2002, they unanimously noted that
    every Federal court to decide the issue had said the President
    has this power, many of them saying specifically there is a
    foreign intelligence national security exception to the fourth
    amendment.
        And the court of review went on to say, ``FISA could not
    encroach on the President's constitutional power.''
        Now, a second point. FISA contributed to the success of 9/
    11. You all have heard about Colleen Rowley, the Time Magazine
    person of the year, in 2002 who complained the FBI lawyers
    would not even submit her FISA warrant so she could look at
    Moussaoui's laptop.
        The reason was that FISA forgot to include lone wolf
    terrorists. I discuss this in my testimony. Congress finally
    corrected this a few years ago. But it was FISA that kept the
    FBI from perhaps discovering that plot.
        In addition, General Michael Hayden, who was the director
    of NSA for many years, including through 2001, has testified it
    is his professional view that had the terrorist surveillance
    program that was blocked by FISA been in effect in 2001, NSA
    would have identified at least some of the al-Qaida terrorists
    as such prior to the attacks.
        My fundamental conclusion, Mr. Chairman, is a simple one.
    When a mere statute like FISA does battle with our majestic
    Constitution, the Constitution always wins, and properly wins.
        As John Marshall told us in Marbury v. Madison, an act of
    the legislature repugnant to the Constitution is void.
        My bottom line conclusion is it is not the President who,
    in trying to protect the country, has been gathering foreign
    intelligence who has been the lawbreaker. Rather, it is
    Congress.
        Thank you, Mr. Chairman. That concludes my remarks.
        [The statement of Mr. Turner follows:]
                     Prepared Statement of Robert F. Turner

        Mr. Conyers. Thank you, Dr. Turner.
        We turn now to Morton Halperin, attorney, who served in
    Departments of Defense, State and the National Security Council
    during President Clinton, President Nixon and President
    Johnson, and was instrumental in the formulation of FISA in
    1978.
        He is currently Director of U.S. Advocacy for The Open
    Society Institute and a fellow at the Center for American
    Progress.
        Welcome again to the Committee.

             TESTIMONY OF MORTON H. HALPERIN, DIRECTOR OF
                 U.S. ADVOCACY, OPEN SOCIETY INSTITUTE

        Mr. Halperin. Thank you, Mr. Chairman. It is a great
    pleasure to be back.
        I need to report that I have not acquired a law degree,
    although I still hope that is some time in my future.
        It is a pleasure to be back here again before this
    Committee. I last testified on this subject before the
    Committee in a hearing in 1978 in which we debated exactly the
    same issues.
        And I think I want to touch on this question of whether
    FISA is constitutional or not and whether it is appropriate or
    not.
        The fact is every court that has considered FISA has held
    it to be constitutional. It continues to be the case that no
    court has found a warrantless tap for national security
    purposes to be unconstitutional because that question became
    moot with the enactment of FISA.
        I think the real issue for me is to look at the
    Constitution and to note that it is based on a notion of
    separation of power. The Congress has a role. The President has
    a role. And the court has a role.
        And the genius of FISA when it was enacted and reported out
    by this and other Committees with very broad, bipartisan
    support is that it took account of the obligations and
    responsibilities of the three branches and of the need both to
    protect the rights of American citizens and deal with the
    requirements of national security.
        At the end of the day, the intelligence community leaders
    and many leaders of the civil liberties community said this
    bill has our support. It is an appropriate balance.
        And that support from all those elements was, in my view,
    critical to the extraordinary success of FISA, which has been
    testified to by a succession of CIA directors, NSA directors,
    directors of national intelligence and other senior officials
    from every Administration since FISA was enacted.
        FISA has permitted the intelligence community to do what it
    needed to do, but to do it in a way that had the support of the
    American people, that had the support of the courts. And the
    FISA court fulfilled its role by not always approving warrants,
    but by providing the support that was needed to enable this
    program to go forward.
        We need to get back to that bipartisan support. We need to
    get back to a situation where most Americans support the
    Foreign Intelligence Surveillance Act because they understand
    what it does and they recognize that there is a court and a
    Congress monitoring the actions of the executive branch.
        Where the system has fallen down now, in my view, Mr.
    Chairman, is in precisely ignoring all of these lessons which
    came out of the enactment of FISA.
        The Administration has come forward and said, as we heard
    again this morning, we need to modernize FISA because FISA used
    to permit the acquisition of the overseas calls of foreign
    terrorists and now it requires a warrant because we want to
    intercept them within the United States.
        I know no one who believes that the intelligence community
    should not be able to intercept these calls. All of us believe
    that the calls of a foreign terrorist can be intercepted,
    should be intercepted, and that the Government has the right to
    do so.
        If FISA needs to be amended to make that clear, that
    amendment would have overwhelming support within the Congress.
    Indeed, a number of proposals were made by senior Members of
    the Intelligence Committees and the Judiciary Committees of
    both houses which would have granted to the intelligence
    community the authority to conduct surveillance for that
    purpose.
        Those amendments were rejected. And in its place, we got
    the language which Congress, under substantial duress, enacted
    into law.
        The fact is there is no public explanation, and I do not
    believe there is any private explanation, from the
    Administration about what the difference is between the
    language that people were prepared to enact and the language
    that the Administration, in the end, insisted on.
        And I think that is where this process needs to begin. We
    need to know as much as we can publicly, and certainly the
    Congress privately, what the difference is between the language
    proposed by many others, which appeared to give the Government
    the authority it said it needed, and the language in the
    statute.
        Is the difference simply that one doesn't want to bother
    going to a court because it is a burden? Or is the difference
    one that actually affects what you can intercept and what you
    can do with that interception?
        If it is the latter, we need to understand what the
    difference is and why that difference is important. And I
    believe that everyone will then want to work to make sure that
    the intelligence community has the authority under FISA to do
    the surveillance that it needs to do.
        But it needs to be done based on the principles which this
    Committee and others insisted upon when it enacted FISA and
    which gave us the support that the intelligence community needs
    to get the cooperation that it needs from the private community
    going forward.
        And that means it must require that it be the sole means
    for conducting the surveillance. Whatever one believes about
    the inherent constitutional power, the President and the
    Congress can agree that this is the sole means. And I think
    that is essential for gaining public support and private
    support.
        We also need to assure that the FISA court at the
    initiation of any surveillance authorizes the surveillance and
    finds that it is consistent with the statutory requirements.
        We need to have appropriate procedures for the phone
    companies and the Internet service providers to be notified
    that they must cooperate.
        FISA was based on a simple and important rule. If the
    surveillance fit within FISA--you either had a warrant or a
    very specific certification from the Attorney General--then the
    law was you had to cooperate, whether you were a landlord,
    whether you were a phone company.
        You had an obligation to cooperate and you were fully
    protected from criminal or civil liability if you failed to
    cooperate.
        On the other hand, if you cooperated without the warrant or
    the certification required by the statute, then you were
    subject to civil and criminal penalties from the State as well
    as from the Federal Government.
        That is the way that the Congress can enforce exclusive
    means. And that must be restored in this bill. By making it
    clear to the telephone companies again that they only can
    cooperate when they have either a warrant or a certificate
    relating to very narrow circumstances where a warrant is not
    required.
        The problem with this bill is it gives a totally open-ended
    authority to the Attorney General to tell the telephone
    companies to cooperate. Nobody in the world can understand
    under what circumstances the Attorney General is permitted to
    make that certification.
        And certainly, the phone companies will have no basis for
    knowing whether they are supposed to cooperate or not, whether
    he has met those standards. That provision, in my view, needs
    to be rectified, along with other changes in the statute.
        Mr. Chairman, in short, we have reached, in my view, a
    situation that is very dangerous for our national security as
    well as for our civil liberties.
        We have a bill elected into law without the support of the
    senior leadership of one of our two political parties, with
    vigorous opposition from the entire civil liberties community,
    and with nobody in the American public able to understand what
    it is that Congress authorized and what it is that the
    executive branch needed to do.
        That is a recipe for suspicion, for opposition, for the
    intelligence community and the private industry not being sure
    what they are supposed to do and what the rules of the game
    are.
        And that is a recipe, as we discovered before FISA was
    enacted, for people to hold back because they fear they will be
    subject to civil and criminal penalties and for citizens to be
    fearful that their phones are being tapped and their e-mails
    are being read.
        We need clear and simple rules that everybody understands
    and that everybody is committed to obey. Thank you.
        [The statement of Mr. Halperin follows:]
                    Prepared Statement of Morton H. Halperin
        Mr. Chairman,
        It is a great pleasure for me to appear again before this committee
    with regard to the Foreign Intelligence Surveillance Act.
        I need to be frank, however, in saying that I am deeply troubled by
    the amendments to FISA passed by the Congress before the August recess.
    I am troubled because Congress granted to the Executive branch broad
    authority, in violation of the Fourth Amendment, to intercept the phone
    calls and emails of persons in the United States. Moreover, any person
    who is committed to the constitutional principle of checks and balances
    should be seriously concerned because:

            Congress enacted this legislation without any opportunity for
            hearings and debate and without the input of civil libertarians
            who are as dedicated to our security as they are to the
            protection of civil liberties and constitutional rights.

            Congress enacted legislation the meaning of which is simply not
            deducible from the words in the text. Clearly, the
            Administration insisted on this language and rejected a text
            offered by the congressional leadership because it wants to
            conduct interceptions not permitted under the alternative
            language. However, it has not explained why that surveillance
            is necessary nor what interceptions are permitted under the
            language as enacted but not under the alternative language.

            The legislation enacted by the Congress at the insistence of
            the President excludes the FISA court from any meaningful role
            in permitting the surveillance to go forward. Whether the
            Constitution always requires a warrant for intelligence
            surveillance remains an open question, but there is no question
            that the role of the FISA court has been critical in providing
            assurance to the intelligence community that it would get the
            cooperation it needs and to the public that the Constitution
            was being protected. Despite strong criticism from both the
            left and the right, the FISA court in my view has played the
            role that Congress intended it to play by forcing the
            administration to think carefully and by reviewing its actions.

            The telephone companies and ISPs are being sent a dangerous
            message that they should and must cooperate with a request to
            facilitate interception of messages simply on the say-so of the
            Attorney General.

            The legislation does not reaffirm that FISA is the sole means
            for intercepting conversations and emails in the United States
            for intelligence purposes.

        Not included on this list of chief concerns is the accusation that
    the passage of the legislation will lead to the interception of phone
    calls and emails that the intelligence community should not be reading.
    I have no idea if that is the case or not but neither does anyone else
    in the public and most of the Congress. That very uncertainty is simply
    unacceptable and a threat to both our liberty and our security.
        The bipartisan and strong public support of the FISA was ruptured
    by the Administration's tactics. This broad support was essential in
    creating a system which endured from one administration to another and
    which enjoyed strong congressional and public support.
        Congress, working with leaders of the intelligence community and
    the public needs to restore the bipartisan support for an effective
    FISA and it needs to do so quickly.
        The enactment of the initial FISA bill following the Watergate and
    intelligence scandals provides some important lessons which should
    guide the Congress in that process. Since I was deeply and continuously
    involved in those careful negotiations, I thought I could be most
    useful to the committee in describing some of that history.
        The enactment of FISA was triggered in large part, as I believe
    these recent amendments were, by concerns expressed by the telephone
    company. In those long gone days, there was just one telephone company
    (and no internet). AT&T and the FBI had a simple arrangement. An
    official at the Bureau would simply call the AT&T security officer and
    give him a phone number. Nothing more was needed and the calls were
    flowing into the local FBI field office.
        As the scandals broke, the FBI learned that some of these numbers
    were not the Soviet Ambassador, but White House and NSC officials and
    journalists as well as business leaders and civic leaders, including
    Martin Luther King, Jr. Some of those who learned that they were
    overhead (including me and my family) sued the phone company along with
    government officials. AT&T had had enough and warned the Justice
    Department that the days of blind cooperation were over.
        Attorney General Levi on behalf of the Ford Administration came to
    the Congress and asked for legislation. Congress agreed to authorize
    interceptions for intelligence purposes under a different standard than
    for criminal wiretaps but only after insisting on four essential
    principles:

              surveillance could occur only after the FISA court
            issued an order or the situation fit into a few tightly drawn
            and fully specified exceptions to the warrant requirement.

              the phone company would be required to cooperate if
            given a court order or a certification by the Attorney General
            that the situation met one of the limited specified exceptions
            and that the requirements spelled out in FISA for such an
            exception had been fully satisfied.

              No U.S. person or any person in the United States
            would be the target of surveillance except if the FISA court
            found individualized probable cause about that person.

              The draft legislation needed to be subject to full
            public hearings as well as classified hearings at which the
            meaning of each phase in the legislation was fully explained
            and civil liberties groups were given an opportunity to
            testify.

        We must go back to these core principles. The Congress must insist
    that senior officials of the intelligence community testify in public
    and in private before the Judiciary as well as the Intelligence
    Committees and explain in detail what meaning they attach to each of
    the new and arcane phrases in the bill. These officials should also
    explain why they seek this language to accomplish the objectives that
    they assert are what motivates the request for legislation.
    Administration officials must also explain in detail why the earlier
    bills drafted by the Congress in response to the described need did not
    accomplish these objectives.
        Then there must be an opportunity for private citizens and groups
    to testify as to their understanding of the draft bill and the
    requirements of the Constitution. Then there should be private and
    public conversations to seek to arrive at a consensus that would
    restore the bipartisan and broad public support for FISA. Then the
    committees should conduct open mark ups and the bills should be debated
    on the floor of both houses and if necessary in a conference committee.
        The final legislation should make clear that it is the sole means
    by which the executive branch can intercept communications in the
    United States or from Americans anywhere for intelligence purposes. It
    should enforce that assertion by directing the phone companies and ISPs
    to cooperate when they receive a court order or a certification that
    the surveillance is within the narrow exceptions to the warrant
    requirement specified in the statute. All private persons should be on
    clear notice that if they cooperate with surveillance in any other
    circumstances that they will be subject to state as well as federal
    civil and criminal penalties.
        I have said almost nothing about the substance of what changes need
    to be made in FISA. I have not done so in part because I expect other
    witnesses will discuss these issues. More important I think it is
    premature. There is enough information in the public domain to know
    that Congress has given the Administration far more unchecked power
    than the Constitution permits or our security requires. At the same
    time, there is far from enough public information to know how to
    restore the balance that FISA had until last month and from which we
    all benefit.
        Mr. Chairman, I once again want to express my appreciation to you
    and to the committee for inviting me to participate in this hearing and
    I would be pleased to respond to your questions.

        Mr. Conyers. Thank you very much.
        Congressman Barr, Attorney Spaulding, Dr. Turner and Mort
    Halperin, I am very grateful to you for beginning our
    examination of FISA in this setting.
        Mort Halperin, I not only want you to get your law degree,
    but I know a number of schools that would welcome you to teach
    law at these schools, and we thank you for your long
    experience.
        We now begin the inquiry of the witnesses. And in my 5
    minutes, I just want to ask this one question. Isn't it
    important that we reestablish that the sole means of
    intercepting any kinds of communications, conversations, or e-
    mail from United States citizens for intelligence purposes go
    through the FISA court or be specifically accepted from them
    under very clear terms by the FISA court?
        And let's start with you, Dr. Turner. What do you feel
    about that?
        Mr. Turner. Well, I don't think it is possible for anyone,
    including the Congress and the President together, to prevent
    constitutional national security law searches.
        The question is, do you always have to have a warrant in
    order to listen to a communication with an American? And the
    answer to that is clear.
        Every court to consider it has basically said there is a
    foreign intelligence exception to the fourth amendment just as
    there are exceptions in so many other areas.
        I came into this building today. They went through my bag.
    They made me go through a machine. Airports--these are searches
    under the Fourth amendment, but the way it is decided--the
    Supreme Court says you balance the infringement on privacy with
    the Government interest, and the court in Haig v. Agee said no
    governmental interest is more important than the national
    security.
        Mr. Conyers. Okay. Wait a minute.
        Mr. Turner. Sorry. Yes, sir.
        Mr. Conyers. Congressman Barr, what is your reaction to the
    question?
        Mr. Barr. My reaction to the question, Mr. Chairman, is it
    is a very appropriate one that both this and prior Congresses
    have considered. The Chairman correctly identifies the gravamen
    of what we are talking about here, and that is the private
    communications of American persons in this country.
        Under FISA, the Chairman's question was answered
    resoundingly with a yes. And courts have recognized that. It
    provides both an institutional and a constitutional framework
    that respects the privacy rights of our citizenry yet also
    affords very clear and robust mechanisms for the Government to
    acquire the foreign intelligence that it claims it needs.
        That is the point where we were before this law was signed
    a month ago, and that is where we ought to return.
        Mr. Conyers. Thank you.
        Attorney Spaulding?
        Ms. Spaulding. Mr. Chairman, as I said in my opening
    statement and my written testimony, I think it is vitally
    important that Congress get some affirmation, confirmation,
    from the executive branch that the President will, indeed,
    abide by the law.
        I think this issue of Article II authority and the
    President's authority to ignore laws, or not abide by laws that
    the President determines unilaterally are unconstitutional, is
    one that really needs to be more fully discussed and debated
    and wrestled to the ground, frankly.
        Mr. Conyers. Mr. Halperin?
        Mr. Halperin. There is no case holding that Congress cannot
    limit the President's power to conduct electronic surveillance
    for foreign purposes.
        All of the cases that Mr. Turner refers to are cases
    dealing with the question of whether in the absence of
    congressional legislation either prohibiting or authorizing
    such surveillance the President has the authority to conduct
    that surveillance on his own initiative.
        That remains an open question. But there is no authority at
    all propositioned that Congress cannot limit the President's
    power.
        There are, indeed, cases in the court now which the
    Government is desperately trying to have dismissed because I
    think it fears they will lead to an opinion that says that if
    the Congress proposes a means to do this, the President must
    follow those means.
        But at best, it is an open question and, in my view, almost
    an irrelevant question, because if the President agrees that he
    will follow these rules because that is the way to get the
    support of the American people and of the phone companies,
    surely the President has the authority under the Constitution
    to decide that he will follow these procedures.
        And that is the----
        Mr. Conyers. Well, we don't have any objection, do we,
    witnesses, that Americans, particularly on American soil,
    cannot be surveilled unless they go through the requirements of
    FISA law?
        And there are existing exemptions that would allow them to
    be surveilled, but in the overwhelming majority of cases, they
    can't be surveilled. Does anybody want to refine their response
    to that question which I suggest is ``yes''?
        Mr. Turner. Mr. Chairman, there are two sides to this. If
    we are targeting a foreign intelligence source--say, you know,
    bin Laden in Pakistan--and he is communicating with Joe Six
    Pack in Peoria, clearly the President has constitutional power
    to intercept that conversation.
        As far as targeting an American citizen, I think it is
    unsettled, because if there is, in fact, as several courts have
    said, a national security or foreign intelligence exception to
    the fourth amendment, then if that American citizen were
    involved with foreign powers, you might well be allowed to have
    a warrantless wiretap.
        The courts have not said that, but I think it certainly
    follows from some of the decisions we have.
        Mr. Conyers. I just want everyone to know that I have been
    in discussions with the Ranking Member, that there may be
    hearings that will be classified because of the nature of the
    discussions that will be happening. And that we are also
    considering inviting some of our colleagues who have opinions
    and advice to give us in the formulation of this law, maybe
    even to the extent of having a hearing solely of our other
    colleagues who are not Members of the Committee.
        And with that, I recognize Lamar Smith.
        Mr. Smith. Thank you, Mr. Chairman.
        Professor Turner, I have several questions, and I will try
    to keep them brief--if you can give me short answers as well.
        I want to touch upon a subject that just has come up, and
    that is you clearly feel that the fourth amendment's protection
    of privacy is not implicated by a phone call from a foreign
    terrorist to someone who lives in the United States.
        Do you want to, because of national security reasons,
    elaborate on your answer in any way?
        Mr. Turner. Well, just briefly, the general principle of
    wiretaps is if you have a legal wiretap for, say, somebody
    selling illegal guns, and I call him up, even though the
    Government has never heard of me, they can record every word I
    say and use it against----
        Mr. Smith. Right.
        Mr. Turner [continuing]. Me in court. In the same way, it
    is absolutely clear the President, certainly in time of war,
    when you have to engage in intelligence to find out even what
    to target, has independent and exclusive power to listen to al-
    Qaida in this case, and it is reinforced by the authorization
    for the use of military force.
        Mr. Smith. Right. Okay. Thank you.
        Professor Turner, also, what kinds of information has the
    intelligence community not been able to gather over the last 20
    years or 30 years because of changes in technology?
        Mr. Turner. Well, I have been out of this business for more
    than 25 years, or almost 25 years, but from the testimony of
    the DNI, we are told roughly 25 percent of the intelligence we
    used to get we are not getting now, and a lot of this is
    foreign known or suspect terrorists calling other terrorists
    outside this country.
        Because those communications happen to transit a switch in
    northern Virginia or Silicon Valley, FISA is stopping us from
    listening to those, and people may die because of that.
        Mr. Smith. Okay. What additional changes do you feel should
    be made to FISA? And if so, why do you think those changes
    should be made?
        Mr. Turner. Well, FISA is only going to work if you have
    the agreement of the President. Griffin Bell himself said that
    is how this will work, because you can't take away the
    President's power.
        Mort said there is no court case saying Congress can't do
    this. That is silly. The appeals court you set up under FISA,
    in the 2002 case, In re Sealed Case, said ``FISA could not
    encroach on the President's constitutional power.''
        What authority do you want? That is a U.S. Court of Appeals
    that you set up to judge FISA. It is unanimous when you say you
    can't do this. So the way FISA is going to work--it is in the
    executive's interest to have FISA. Why? If they get a warrant,
    they can be sure they can get that evidence in court if they
    try to convict someone.
        If they are doing it for foreign intelligence purposes,
    that is not a problem. Getting it into court--and they have got
    reasonableness tests and so forth.
        They want to work with you. They have given you a bill that
    draws the distinction not where you intercept it, but is this a
    foreign power or are you targeting a U.S. citizen. That is an
    awfully good deal. I would take it.
        Mr. Smith. Okay. Professor Turner, also, why is the FISA
    process so burdensome?
        Mr. Turner. Well, they tried to streamline it, but the way
    it works--first of all, you have got, say, an NSA analyst. He
    says, ``Hey, we need a warrant for this. We need a warrant.''
        They put together a package. They run it through the
    lawyers at NSA. They have got a lot of lawyers out there. They
    send it over to the Office of Intelligence Policy and Review,
    in what is now the national security division. They look at it.
        And if they like it, then they run it by the Attorney
    General, who may be in Peoria today giving a speech. But when
    he gets back, he has to come up to the Hill and testify, but
    then he gets back on, say, Friday.
        He signs it, and it goes over to the White House and gets
    signed by the national security advisor. Then it gets in line
    to be considered by the court.
        These judges are wonderful. They are working all day long
    and on weekends. But there still is a several-day delay, and
    one of the most important principles in war is speed and
    dispatch.
        If it takes you 4, 5, 10 days, 2 weeks to get a decision,
    the bomb may have already blown.
        Mr. Smith. Thank you, Professor Turner.
        Let me go to former colleague Bob Barr and make a comment.
    And, Bob, you are welcome to respond if you want to. Thank you
    for your very articulate testimony--no surprise there.
        At the outset of your testimony, though, you made the
    statement that Director McConnell had said that the mere debate
    of FISA was going to cost American lives. I think you came to
    that conclusion, which I think is a mischaracterization,
    because of the media.
        And I notice in the A.P. report of his comments that was
    something that they concluded. And I will say that was an
    editorial comment on the part of the A.P. that I think was not
    appropriate.
        But let me read you Director McConnell's exact words, and I
    think we will all agree that it wasn't the mere debate on FISA
    that was going to cost lives, it was the release of classified
    information that was going to cost lives.
        ``Part of this is a classified world. The fact that we are
    doing it this way means that some Americans are going to die.''
    He was referring to the classified information, not the debate
    itself.
        And it is understandable you said what you did, because
    that was the way the A.P. characterized it, but I don't think
    that that would be an accurate characterization. Just a
    comment.
        Thank you, Mr. Chairman. And my time has expired.
        Mr. Conyers. Chairman Jerry Nadler?
        Mr. Nadler. Thank you, Mr. Chairman.
        Congressman Barr, I would like to ask a couple of questions
    about Ms. Spaulding's testimony. She writes that section 105(b)
    provides authority to the A.G. and DNI to collect intelligence
    information inside the U.S. so long as the information is about
    a person who happens to be outside the U.S. at the time,
    including a U.S. citizen.
        It would appear, therefore, to authorize intercepting U.S.
    mail between two people inside the U.S. so long as the
    Government--without a warrant--so long as the Government
    reasonably believes the letter discussed, at least in part,
    someone outside the U.S.
        Do you agree with that?
        Mr. Barr. I think that is an accurate reading of the
    section 105(b).
        Mr. Nadler. Thank you. She also says it would appear the
    A.G. could authorize the physical search of your home to find a
    letter from your son overseas or the family computer on which
    you stored his e-mails.
        Do you think that that is a reasonable reading of this
    statute?
        Mr. Barr. I do.
        Mr. Nadler. Okay. Thank you. Thank you very much.
        Ms. Spaulding, you talk about the provisions immunizing the
    telecommunications companies from liability.
        We are being asked very insistently by the Administration
    to enact legislation now to immunize the telecommunications
    companies retroactively from any liability for the last 5 years
    since the President started ignoring the FISA act in 2001.
        Why should we or shouldn't we do that, in your opinion?
        Ms. Spaulding. I think it would be a huge mistake,
    Congressman. As Mort Halperin has already testified, the
    current law already protects telecommunications carriers and
    others who provide assistance to the Government.
        In this case, all they needed was a letter from the
    Attorney General certifying that this request for assistance
    was legal.
        If they are now seeking immunity from liability, I can only
    assume they didn't even get that letter. And I think for
    Congress to say that is okay sends a very strong signal
    undermining our respect for the rule of law.
        Mr. Nadler. Well, let me ask you this. The President's and
    the Attorney General's tapping people's phones without a
    warrant from the FISA court would appear to be a prima facie
    violation of the FISA act, which is a criminal statute.
        If we are not prosecuting them, why should we let the
    telecom companies get off scot-free?
        Ms. Spaulding. Well, I think that is certainly a fair
    point. But I think the Attorney General, given the legal
    arguments from the Department of Justice, asserting that this
    warrantless surveillance in violation of FISA was nonetheless
    legal, certainly could have provided this letter to the
    telecommunications carriers.
        And why, given that, if that is all they needed, they need
    immunity at this point is beyond me.
        And I also think that they are an important, given the lack
    of transparency in this area, they are an important safeguard
    against Government abuse.
        Mr. Nadler. Well, I must say that since the Government is
    interposing a state secrets defense on any lawsuit against the
    Government for illegal wiretapping, suing the
    telecommunications companies might be the only way of getting
    into court.
        And I certainly agree with you. I don't like the abuse of
    the state secrets doctrine, but this may be somewhat of a way
    around that.
        And absent that, if we were to give them that protection
    retroactively, there might be no way for anybody to get into
    court, and the executive would be completely scot free to
    ignore the law without any judicial accountability.
        Mr. Halperin?
        Mr. Halperin. Yes, the problem is the Government is
    asserting the state secrets privilege even when the telephone
    companies are sued. So I think that we need to find a way
    around that.
        And I think Congress could do that by simply asserting that
    the justifications provided by the Government to the phone
    companies need to be made public. Those are documents that, I
    gather, Committees have sued for.
        I think we are all entitled to see those. And I think one
    way to deal with the problem is to give the phone companies
    limited immunity based on a demonstration that they acted on a
    communication from the Attorney General that they reasonably
    relied on to believe that the surveillance was lawful.
        We don't have any idea what the Government told the
    telephone companies. And to give them immunity without first
    finding out----
        Mr. Nadler. I agree with you. Thank you.
        Mr. Turner--or Professor Turner, I should say--you have
    written as to the President's expansive foreign relations
    powers, inherent powers.
        I would like to ask you some questions with regard to the
    scope of those powers. If President Bush believed an American
    citizen in the United States were a spy for al-Qaida, could he
    authorize the burglary of that citizen's house to plant an
    eavesdropping bug without a wire?
        Mr. Turner. That is an interesting question. If the courts
    that have decided that there is a foreign intelligence
    exception to the fourth amendment, as there is in so many other
    areas--I don't know the answer to that, you know, but it at
    least would be arguable.
        Mr. Nadler. And my last question. Could he be permitted in
    that circumstance to authorize the breaking into that
    individual's psychiatrist's office without a warrant to find
    evidence against him?
        Mr. Turner. I think it is a moot point. As I understand the
    Administration, they are saying they will get warrants for----
        Mr. Nadler. No, no, but could they, under your
    interpretation of the law?
        Mr. Turner. It is an interesting question. I would really
    want to think about it. If you want an answer for the record, I
    will try to think about it. But that is an area of the law I
    don't teach in the general----
        Mr. Nadler. Okay. Thank you.
        Mr. Conyers. The gentleman's time has expired.
        Howard Coble, the gentleman from North Carolina and Ranking
    Member on the Subcommittee of Courts?
        Mr. Coble. Thank you, Mr. Chairman.
        Good to have you all with us.
        Professor Turner, we are working you overtime today. Let me
    put a two-part question to you.
        What implication does the growth of mobile telephones have
    on FISA surveillance? And does this not require some flexible
    standard when our Government reasonably believes that the
    person is located outside the United States?
        Mr. Turner. It is a very good question. I may not be the
    right person to answer it, but my--again, when I last worked in
    this area, it was the early 1980's when nobody I knew could
    afford a portable telephone.
        When FISA was written, telephones were carried by lines.
    Today most phone conversations, land line or mobile, I am told,
    are actually sent through other means.
        So there are a lot of sort of technical amendments here.
    But one of the problems we have run into--the Patriot Act, for
    example, included a provision--the old way, you go to a judge.
        You would say, ``I have got a suspected--here is the
    probable cause. Here is his phone number.'' You would get a
    warrant to monitor that phone number.
        Well, we have got drug dealers, terrorists and others who
    will buy a dozen cheap cell phones, use them for an hour, throw
    one away. Then the surveillance guy has to run back to the
    judge, ``Hey, here is a new number.''
        When he gets back, he is three phones later. It doesn't
    work. The modern communications, from e-mail, cell phones and
    so forth, make the job of terrorists much easier. We have to
    adapt the law to make it possible for the people trying to stop
    them to keep up with them.
        And again, the technology I can't tell you much about,
    especially the classified side, because I don't know about it,
    but my understanding is we are missing a lot of stuff.
        Again, the DNI has said 25 percent we were getting a year
    ago because FISA and other laws have not kept up with the 21st
    century.
        Mr. Coble. Thank you, Professor.
        Ms. Spaulding, what do you say about that, about flexible
    standard?
        Ms. Spaulding. Chairman Coble, I think there is certainly
    room for looking again at FISA to see whether it, in fact,
    ought to be modernized given changes in technology. And in
    fact, it has been a number of times, as you know, over the
    years.
        And the example that Professor Turner gave of, you know,
    changing the cell phones, in fact, has been addressed through
    provisions that address roving wiretaps.
        I think it is important to make sure, as I said at the
    outset, that these intelligence professionals have the tools
    that they need. I think it is equally important to ensure we
    have appropriate safeguards as we do that.
        Mr. Coble. Ms. Spaulding, thank you for elevating me to
    chairmanship. I am not aware of that, but thank you
    nonetheless.
        Mr. Turner, let me come back to you. What do you believe
    was the Congress' intent with respect to FISA coverage of
    domestic communication involving foreign intelligence, domestic
    caller to domestic caller, versus international communications
    involving foreign intelligence, foreign caller to foreign
    caller?
        Mr. Turner. FISA clearly wanted to protect any U.S. person
    any, you know, domestic calls, basically, and it intentionally
    excluded--indeed, in the HPSCI report, they said, ``We
    considered trying to cover foreign calls, and we decided it is
    just too complex, and it can't be done in this bill.''
        So it is very clear that FISA was not intended to place any
    limits on intercepting, you know, the calls of foreigners
    outside of this country or calls even of Americans outside this
    country.
        Mr. Coble. Let me talk to the Georgian for a minute and
    welcome him back to the Hill.
        Mr. Barr, how burdensome, in your opinion, is the FISA
    process? And what modifications, if any, can be made to the
    process to expedite the process of applications?
        Mr. Barr. In my experience, and I note in the same
    interview that the Ranking Member and I have a little bit of a
    disagreement about involving Director McConnell, he talks about
    the article here, that it takes 200 hours to assemble a FISA
    warrant on a single telephone number.
        That certainly ought to be something that this Congress
    looks into to determine whether or not that figure is an
    accurate figure. If, in fact, it is an accurate figure and that
    much time is consumed with virtually every FISA application,
    then it might be a question of resources that the Congress has
    to look into.
        But the mechanism itself, I don't believe, is particularly
    burdensome. And with the growth of technology, it becomes
    actually much easier now than previously, in previous years and
    decades, to determine where a call is being made.
        If you have two people using cell phones overseas, the
    Government, through the technology available even to private
    industry, knows exactly where those two people are calling.
        So if you have two people using cell phones overseas, you
    don't need this massive rewrite of FISA that basically subjects
    every call that somebody in this country makes to somebody,
    anybody, whoever, overseas potentially subject to Government
    surveillance.
        Mr. Coble. Thank you, sir.
        Mr. Turner?
        Mr. Turner. Just one quick point. In addition to the 200
    hours--I don't know if that figure--I assume that figure is
    true. But also, a lot of those hours are spent by linguists who
    have the special ability--they are one of the most valuable
    commodities we have and one of our greatest weaknesses.
        And taking people who understand the culture and the
    language of our enemy and making them review FISA requests, so
    they cannot be reviewing intercepts that might be talking about
    tomorrow's attack, is a very expensive price.
        Mr. Coble. My red light illuminates, and I yield back, Mr.
    Chairman.
        Mr. Conyers. Chairman Bobby Scott?
        Mr. Scott. Thank you. Thank you, Mr. Chairman.
        I thank all of our witnesses for their testimony.
        Ms. Spaulding, you mentioned the new act had the word
    ``concerning'' in 105(b)--105(a) says encompass surveillance
    directed at a person reasonably believed to be located outside
    the United States.
        But section (b) says acquisition of foreign intelligence
    information concerning persons reasonably believed to be
    outside the United States.
        Could you restate what you think that difference in wording
    might mean?
        Ms. Spaulding. Well, it seems to me that section 105(a), in
    redefining electronic surveillance, when it uses the words
    ``directed at'' it means targeting. It means that that is the
    focus of your surveillance.
        That is where you are directing your interest, as opposed
    to at the other parties with whom that target may be
    communicating.
        Concerning persons--if they had meant the exact same thing,
    if they had meant targeting persons, I think they would have
    used the words ``directed at.'' Concerning persons means
    something different, then.
        And I think it could mean the communication merely mentions
    or is about, even just in part, someone who happens to be
    outside the United States, and that is a far different matter.
        Mr. Scott. So if the communication is concerning someone
    outside, could that include communications domestic to
    domestic?
        Ms. Spaulding. Absolutely.
        Mr. Scott. And do you think that--because we don't hear
    that mentioned very often, and these two words, as I have
    noticed, as you have, are different words and must mean
    different things.
        Ms. Spaulding. I would note that when we talk about
    communications between two individuals inside the United
    States, potentially coming within the scope of 105(b), there is
    the requirement that it not be electronic surveillance, which
    is why in my testimony I refer to letters or potentially stored
    e-mails, things that do not fall within the existing definition
    of electronic surveillance.
        Mr. Scott. And you also mentioned that foreign
    intelligence--we keep hearing an al-Qaida member calling
    inside, but foreign intelligence includes more than terrorism,
    does it not?
        Ms. Spaulding. Absolutely. It is a very broad definition,
    one that has been broadened over the years.
        Mr. Scott. And what kinds of things might be foreign
    intelligence?
        Ms. Spaulding. Really almost anything of interest to the
    foreign affairs and national defense of the United States.
        In fact, most recently, it was broadened to include
    information that is at all relevant to potential sabotage or
    attack in the United States. So that might mean, for example,
    if you----
        Mr. Scott. Well, that is terrorism. What about a trade
    deal?
        Ms. Spaulding. Well, it obviously includes trade deals. It
    includes all of the things that you think about the
    intelligence community monitoring and being interested in, and
    now they have added to their agenda global climate change.
        They have long been interested in trade issues. There is a
    wide range of information that----
        Mr. Scott. So if you are negotiating a global warming
    agreement with another country, that would constitute foreign
    intelligence.
        Ms. Spaulding. It might constitute foreign intelligence.
        Mr. Scott. There is another little change here where it
    says significant purpose. That is not the primary purpose. If
    the primary purpose is not even foreign intelligence, what
    could the primary purpose be?
        Ms. Spaulding. The primary purpose could be anything that
    is presumably constitutional. You know, I think it would be
    limited, clearly, by the constitutional framework, but it
    could----
        Mr. Scott. Partisan politics?
        Ms. Spaulding. It could be, because certainly, we know that
    it could be criminal prosecution.
        Mr. Scott. Without probable cause of a crime.
        Ms. Spaulding. And it could be suspicion of, you know,
    subversion, which we know has been interpreted in ways that
    have proven very harmful in the past.
        Mr. Scott. Now, Mr. Barr, is there anything under FISA that
    you can't do that you could do if you didn't have to worry
    about FISA? Or does FISA just require you to let the court know
    what you are doing?
        Mr. Barr. No, FISA, under the very words of the statute and
    the way it has been interpreted over the years, is intended to
    and encompasses electronic surveillance for foreign
    intelligence purposes.
        So if, in fact, that is, you know, the universe of
    information or persons involved in that that you are trying to
    gather evidence or information from, on or about, then FISA
    covers that.
        Now, does that mean there----
        Mr. Scott. But let me just----
        Mr. Barr [continuing]. Isn't overlap with other areas?
        Mr. Scott. We keep talking about balancing security and
    liberties. In fact, there is no balance at all because you can
    do any kind of wiretap you want under FISA. You just have to
    notify the court. Or without FISA, you just go ahead and do it.
        But if it is legal, you can go ahead. There is no
    restriction on security created by requiring you to go to the
    FISA court, is there?
        Mr. Barr. And that is correct, and that problem is made
    manifestly worse by the law that was signed 1 month ago.
        Mr. Scott. And that is just on the--essentially the
    Attorney General and the director of intelligence can just
    authorize it.
        Mr. Barr. Without any review by the courts at all.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Conyers. Thank you.
        The gentleman from Virginia, Bob Goodlatte?
        Mr. Goodlatte. Mr. Chairman, thank you very much, and thank
    you for holding this hearing on this ongoing discussion.
        The response by some to the Government's concerns has
    typically been we will give them more resources. That seems to
    me to miss a couple of basic points.
        One, even if the department, the intelligence community,
    the FISA court had additional resources, would it make sense to
    expend them on taking surveillance of foreign terrorists
    operating overseas to the FISA court?
        And second, at some point there is what I call a pyramid
    problem. Assuming that we could find more linguists to
    translate, more agents, more lawyers, all applications still
    have to go to the top of the department and would have to be
    certified by a Senate-confirmed official in the intelligence
    community, which is a good thing. There should be very high-
    level accountability for the decision.
        If this high-level sign-off based upon an individualized
    showing of probable cause is needed, how will more resources
    provide the intelligence community with the speed and agility
    that is needed?
        Mr. Turner, do you have any thoughts on that?
        Mr. Turner. Amen. I think you said it very well. I agree
    completely.
        Mr. Goodlatte. Mr. Halperin, do you have a----
        Mr. Halperin. Yes, I do have some views on that. First of
    all, in terms of speed and agility, the solution in FISA is to
    permit emergency surveillances and still you get a warrant.
        And I think the Administration has made a case that those
    emergency procedures are not flexible enough. And I think
    Congress ought to be willing to consider precise proposals to
    extend the emergency procedures.
        For example, they could allow an NSA agency official to
    begin a surveillance based on guidelines established by the
    Attorney General and give him several days before he has to
    take it to the Justice Department.
        In turn, the Justice Department could have several days
    before it had to take the matter to court if it determined that
    a court order was needed. So the----
        Mr. Goodlatte. But aren't we talking about enormous volumes
    of material that need to be worked through?
        Mr. Halperin. Well, we don't have any idea, because we
    haven't been told what it is they want to hear.
        If it is a question simply of saying, ``We want to be able
    to conduct surveillance of phone conversations between two
    people overseas, but we want to intercept them in the United
    States,'' then I think everybody would support an amendment
    that said you do not need a court order to conduct a
    surveillance of two people outside the United States.
        Mr. Goodlatte. That leads to my next question, so I will go
    right to that.
        Some have suggested this so-called foreign-to-foreign
    carve-out, but I wonder how workable that really is. After all,
    how is the Government going to know in advance who an overseas
    target is going to contact when they make----
        Mr. Halperin. But that, of course, proves our point, not
    yours, which is to say the Government can't know that it is
    only intercepting the conversations of two people overseas. It
    may well be intercepting the conversations of many Americans.
        And that is precisely why it should require a warrant,
    because it can't be sure of what it will encounter.
        Mr. Goodlatte. We are talking about thousands of these
    every single day. How can you have that problem that we just
    described to you work to adequately understand the intelligence
    information that is being gathered on a regular basis?
        Now, as soon as it is determined that there is a U.S.
    citizen involved in the conversation, I absolutely agree with
    you.
        Mr. Halperin. But that is what Congress--that was a
    provision in the alternative bill that the Administration
    insisted be taken out.
        Exactly what needs to be added to the bill is language
    which says when you discover that this channel that you are
    listening to, which you thought was foreign to foreign, in fact
    picked up a significant number of conversations of U.S.
    citizens, then you have got to go back to the FISA court and
    get an appropriate warrant with appropriate minimization
    procedures.
        That is exactly what this whole fight is about. If the
    Administration conceded that, we could get an agreement. It is
    resisting exactly that.
        Mr. Goodlatte. Well, let me ask Mr. Turner to respond to
    your comment.
        Mr. Turner. I don't know the modern technology, but my
    guess is it is going to be difficult to capture bin Laden's
    conversations with his top aides from Pakistan to Saudi Arabia,
    wherever, without occasionally intercepting some U.S. person
    communications.
        I think the focus needs to be on minimization. That is to
    say, let them get what they need to stop the next 9/11, but
    have very firm processes so as soon as they determine that any
    U.S. person in the communication is not, in fact, working with
    the terrorists and talking about, ``Yes, where do I go to pick
    up the explosive to knock off the capital?''
        Then you do what they have always done, which is first to
    isolate the material so nobody can have it, make a record of
    it, and destroy it to protect the rights of Americans.
        The idea that the risk they are going to pick up one of my
    e-mails or one of my phone calls means we should stop listening
    to bin Laden and let him kill anybody he wants to me is a very
    bad balance of those very important interests.
        Mr. Goodlatte. Thank you.
        Let me ask Mr. Barr or Ms. Spaulding, anybody, with the
    advent of large fiber optic cables and other new technologies,
    should FISA cover situations where a call is routed to a United
    States facility, but involves two persons located outside the
    United States? Why or why not?
        Mr. Barr. No, they should be exempt. And here again, if
    that is, in fact, the problem, as I believe it is, as
    articulated by the Administration, I believe there are
    certainly much more simple and focused ways to address that
    than the legislation that was signed a month ago.
        Mr. Goodlatte. Ms. Spaulding?
        Ms. Spaulding. Well, I think we are all in agreement on
    that point. You know, Professor Turner and you were discussing
    a much more challenging point, which is when you reasonably
    believe that you have got foreign to foreign, and your target
    is a foreign target, but you inadvertently pick up U.S. person
    communication.
        I think where you don't know for sure what the other end of
    the call is, there ought to be an affirmative obligation, not
    just if you happen to discover, but affirmative obligation on
    the Government to have procedures in place to determine, even
    if after the fact, whether, in fact, a significant number of
    those communications are going into the United States and
    involve U.S. persons or people inside the United States.
        And at that point, I think there does need to be some more
    rigorous process.
        I agree with Professor Turner that I think a big part of
    the solution here lies in very strict, stringent minimization
    procedures of the kind that the executive branch now uses when
    the Attorney General unilaterally approves of a wiretap.
        Mr. Goodlatte. Thank you.
        Thank you, Mr. Chairman.
        Mr. Conyers. Thank you.
        Chairwoman Zoe Lofgren?
        Ms. Lofgren. Thank you, Mr. Chairman.
        Before I ask my questions, I would like to yield--he said 5
    seconds, but we won't be strict on that--to Mr. Scott for a
    point he wanted to make.
        Mr. Scott. Thank you. Thank you.
        And I appreciate you for yielding, because some people try
    to suggest that the requirement to get a FISA warrant means you
    can't listen to the conversation. You can listen to the
    conversation. You just have to get a FISA warrant.
        So when you say these--listening to al-Qaida, if you have
    got a FISA warrant, you can't listen--of course you can listen.
    Thank you.
        Ms. Lofgren. Reclaiming my time, I would just like to ask
    Mr. Barr--and it is good to have you back in this Committee
    room. I read through your testimony, and I see this quite
    similarly to the way you do.
        And I remember the years we served here on the Committee,
    we didn't always see every issue the same way, but often on
    constitutional issues we did. And I find that that is once
    again the case.
        You mentioned that the--and I agree with you; I think we
    made this point quite clearly--that changes that would allow
    for the capture of communications from someone in a foreign
    country to someone in another foreign country that was routed
    technologically through the U.S.--there is no problem with it.
        I think there is like almost unanimous agreement that that
    should not be precluded, and that you wouldn't need a FISA
    warrant. You shouldn't need a FISA warrant because the people
    that you are tapping are abroad.
        However, supposedly there was a court decision that
    required a change in the law. It is a mysterious court
    decision. How much do we know--do you know what is in that
    court decision? I haven't seen the decision, as we have not
    been permitted to see it.
        Mr. Barr. It is very interesting, because in the very
    interview that the Ranking Member and I were discussing with
    DNI Director Mike McConnell, he apparently knows, as he should,
    a great deal about it and actually discussed it, even though it
    is my understanding that the order or the opinion remains
    classified.
        So it raises in my mind an interesting question about
    discussing classified information. But no, none of us do. I
    certainly haven't seen it. And I am not absolutely certain,
    therefore, and I don't think we ought to presume, that it is
    necessarily a good decision.
        I would want to see it. I would think the Committee would
    want to see it.
        Ms. Lofgren. Well, you suggest that we should have more
    vigorous oversight in this activity, and I very much agree. And
    one of the things that I think has been a tremendous
    improvement in the 110th Congress is that the Judiciary
    Committee is now involved in this. It is not just the
    Intelligence Committee.
        And we have our own backgrounds and set of skills to bring
    to this debate to enhance what the Intelligence Committee is
    doing.
        And I am pleased, Mr. Chairman, that we are going to have
    some classified hearings, and I am hopeful that one element of
    that might be a review of the actual decision that supposedly
    set this whole circumstances on its merry way.
        And if the DNI could talk about it on T.V., I would assume
    that Members of Congress who have signed an oath never to
    reveal classified information would be able to review it in a
    classified setting.
        Now, for Ms. Spaulding, you know, one of the things you
    mention in your testimony has to do with the technology, and it
    was a point that I made on the floor with my colleagues, that
    for telecommunications, you know where calls are being
    initiated. At least you know enough to get the bill for them.
        And so presumably, you wouldn't have the kind of rampant
    inadvertence that is referred to in terms of how would you ever
    know if a call was being initiated here or there.
        You know, one of the concerns that I had is that we didn't
    have any technology experts with us to inform us. We had a lot
    of constitutional lawyers in the Congress, not that many
    technological wiz people.
        Do you know whether any technology experts have really
    reviewed the statute? I have been reaching out to some in
    Silicon Valley. Have you been able to discover expertise that
    we could tap into on that aspect of this?
        Ms. Spaulding. First, I want to applaud you for reaching
    out to the technology experts outside the Government. As I said
    in my testimony, I think that is vitally important.
        And I do think that technology allows us to narrow
    significantly that group of communications for which we don't
    know.
        I think one of the greatest challenges, I would say, in
    that regard, is less phone calls than it is potentially either
    e-mail or--often times, what terrorists will do is draft an e-
    mail but not send it, and save it as a draft.
        And then the intended recipient simply logs on as that user
    and goes to the saved draft file, for example. And you can't
    know the nationality, potentially, of the person who--so I
    think there are examples where it is extremely difficult, if
    not impossible, to know where the recipient of a communication
    resides.
        But I think it is a very narrow band of communications, and
    technology experts can help us.
        Kim Taipale is somebody--I am not sure I am pronouncing his
    last name correctly--is someone who has looked very carefully
    at both the technology and the law, and I would certainly
    recommend that you talk with him.
        Ms. Lofgren. Thank you, Mr. Chairman. My time has expired.
        Mr. Conyers. Our only California attorney general, Dan
    Lungren?
        Mr. Lungren. Thank you very much, Mr. Chairman, our only
    Chairman of the Judiciary Committee at the present time. And I
    will treat you kindly, too, when you are the Chairman Emeritus.
        First of all, I just find it passing strange that we would
    have someone on the majority side suggest that this bill is
    somehow a covert operation for us to gain information on global
    warming.
        The only reason global warming is within the ambit of the
    intelligence community is that the majority party decided, in
    the reauthorization of the intelligence act, to put global
    warming within the ambit of the Intelligence Committee,
    requiring them to do not only short-term, but long-term 50-year
    studies on global warming, which I thought was nonsense. It
    ought not to be part of the Intelligence Committee.
        But to use that now as a criticism of this bill is
    extraordinarily inventive.
        Let's just, please, go back and understand why we are where
    we are. The DNI, Admiral McConnell, who was the NSA director
    under Bill Clinton, someone who I am unaware has any public
    political motivation, came to us and said two things.
        One, he said we had increasing chatter from targets of our
    terrorism intelligence overseas similar to that increased
    chatter we had just before 9/11. He did not say that we were
    going to have a 9/11, but he said it would be irresponsible for
    us not to pay attention.
        He said, secondly, because of a decision of the FISA court
    by a single FISA court judge, we had been blinded.
        And I thought it was a classified piece of information as
    to how much we have been blinded, but you have suggested,
    Professor, that he has stated publicly on the record how much
    of our targets we used to get we can no longer get.
        The judge said go to Congress to have it changed. He had to
    rule that way because the change in technology--the law had not
    come up to it. So that is where we are.
        Why did we include it for all foreign intelligence? For the
    very reason articulated by Admiral McConnell. What is the worst
    scenario we could possibly have? It is al-Qaida or another
    transnational terrorist organization making common cause with a
    rogue state that has a nuclear weapon.
        And he suggested perhaps the best way for us to find out
    about that is to target the other country rather than al-Qaida.
    That is why he expanded it, not so he could go into global
    warming information.
        The other thing he told us was that if you merely defined
    it, as the Democratic bill did, the Democratic majority bill as
    presented to us, to say, ``Look, as long as it is foreign to
    foreign, that takes care of it,'' he told us practically
    speaking that does not take care of the problem, because you
    don't know ahead of time whether there is going to be an
    inadvertent conversation into the United States because you are
    targeting a source outside the United States.
        So balancing those things, how do you respond? The bill
    that we passed responds in this way.
        It says because we have heard from Admiral McConnell that
    practically speaking it makes it impossible for us to respond
    to the law in the way articulated under the Democratic
    provision, because practically speaking it takes too much
    manpower, too much time, to go for an application in each
    instance--and he talked about how the fact we have to take
    analysts offline, linguists offline, to do that so they can't
    do the other, and the time requirements, as you suggested,
    Professor--he suggested the way to do it is the way we do in
    the criminal justice system.
        When you wiretap a mafioso member, you don't know who he is
    going to call. As I said before, he could be calling his
    sainted mother, or his brother the priest or the pizza delivery
    guy. We bring in minimization.
        And that is why I think, Professor, you are absolutely
    right. Where we ought to be concentrating our attention is the
    quality of the minimization as already articulated in the FISA
    statute. That didn't change with what we just put out.
        The other thing is Admiral McConnell said as NSA director
    he took the minimization requirement so seriously because he
    said there was potential criminal liability for him. And he
    suggested that is the way you do it.
        So, Professor, I would ask you this. What is essentially
    different between the minimization process that we have in
    place now where we inadvertently find an American in the United
    States, he is on one end of the conversation, and the
    minimization process we have used in the criminal justice
    system for years and years and years?
        Mr. Turner. The answer is I don't know enough about either
    one of those now. I know what it was 20 years, 25 years ago.
    But I think you are exactly right. I think that has to be the
    focus.
        If I could pick up on one other issue here, and that is are
    we doing harm by holding hearings. Top sources of intelligence
    for our enemies, or the Soviets, used to be Aviation Week,
    which leaked things left and right, and the Congressional
    Record.
        When you hold a hearing, you tell our enemies how our
    system works. The more you tell them, the more they can find--
    oh, they are not allowed to do this, let's direct our
    communications system through that, you know, free area they
    have given us.
        And we are involved in a war against people that want to
    use WMD against us. I don't know if they are going to get
    nukes. I don't know if they are going to get some--you know, we
    know the Soviets were playing with a smallpox that was immune
    from known treatments.
        If we don't take this seriously, if we don't allow our
    President to fight this war and protect our people, and if
    there is a bad consequence, people are going to want to know
    why they couldn't do that.
        And my hope is the people in the intelligence community and
    elsewhere are going to say, ``Well, Congress tied our hands.
    They were afraid we would inadvertently pick up communication
    with an American.''
        The answer: Let them get the communications. Let them
    extract the foreign intelligence from it. They don't want to
    listen to grandma talking to grandson.
        When they find that conversation, they will isolate it, and
    they will destroy it. They will erase the recordings and so
    forth.
        And if you tell Americans, you know, rather than
    overhearing grandma talking to grandson, we are going to stop
    listening to the enemies and stop finding out where they are
    planning to kill grandson, most Americans aren't going to
    understand that, and they shouldn't understand that.
        Mr. Lungren. And as I understand it, even with the change
    we made in FISA, if, in fact, that person on the U.S. side does
    have information of a terrorist nature, we are going to follow
    it. At that point in time, we have to go in and get a FISA
    warrant to continue to follow that person.
        Mr. Turner. If the President accepts that. I think there is
    a strong case the President can act outside of FISA on that. It
    is in the President's interest to work with FISA.
        Every Administration likes FISA because it then lets them
    prosecute these people. Work with them, but you have to be
    reasonable about it.
        And if you tie their hands when it comes to getting
    intelligence on our enemies, and there are consequences,
    understand your constituents are going to ask about it.
        Mr. Conyers. The gentleman's time has expired.
        The former prosecutor from the state of Massachusetts, Bill
    Delahunt?
        Mr. Delahunt. Yes, thank you, Mr. Chairman.
        And let me extend a welcome home to Congressman Barr. And
    it has been an excellent panel.
        You know, I keep hearing about the delay and the cost and
    the burden, and that really seems to be the gravamen of many
    who debate this issue.
        And let me just posit that no matter how much it costs, it
    is a cost that is well worth to protect our constitutional
    system and the relationship between the branches and individual
    liberties.
        You know, there has been report after report emanating from
    a variety of agencies about wasteful spending. We still haven't
    accounted for $9 billion that was unaccounted for in Iraq
    during the first several months.
        I dare say to protect the Constitution and what we are
    concerned about in terms of our own values, no price is too
    high, if that is really what it is about.
        Because what I am hearing is well, we have to go here, we
    have to go there, and then we are talking about, you know, 3
    days, we can make it 5 days, we can make it 7 days. We can work
    this out.
        There is agreement that I am hearing today about foreign to
    foreign, and let's--I will use the term ``modernize FISA'' to
    deal with whatever has to be done to account for the newer
    technologies that exist.
        And another issue that I would like to at least raise--
    because I have done a search and I can't find a single incident
    of information disseminating from a FISA court hearing that
    jeopardized the national security of the United States.
        And I would just pose that to the panel. Has there been one
    single incident that has been reported that you are aware of
    that involved a leak--let me use that colloquial term--a leak
    from the FISA court that would jeopardize American national
    security?
        Mr. Barr. Well, if I might respond to the gentleman from
    Massachusetts, I am not aware of any in the 30 years that the
    Foreign Intelligence Surveillance Court has been in existence.
        The information, as I understand it, that has been
    discussed publicly regarding this particular case--which, by
    the way, the Government apparently was not sufficiently
    concerned about to seek an emergency review, which raises the
    question did they just want to use this as an excuse.
        But the information that has been out there regarding this
    has been discussed by the director of national intelligence and
    at least one Member of this body, which raises interesting
    questions about leaks.
        But no, I am not aware of any cases, orders, or opinions or
    deliberations that have been problematic in that regard.
        Mr. Delahunt. Thank you.
        Mr. Halperin?
        Mr. Halperin. Yes. There have not been any such leaks. I
    also want to make----
        Mr. Delahunt. Why can't we trust the judiciary?
        Mr. Halperin. Well, we can, and I--if you look back at the
    hearing this Committee held in 1978 on this exact issue, you
    had all of the same arguments made--we can't go to court, it
    will be too cumbersome, the information will leak, we have to
    move more quickly, it will take resources away.
        And the fact was that Administration officials in every
    Administration since FISA is enacted have testified that they
    did far more surveillance after the enactment of FISA than they
    were able to do before the enactment of FISA.
        And the reason was that officials in the Justice Department
    and the intelligence agencies were willing to do it because
    they knew that it was legal, because Congress had enacted it.
    The telephone company was willing to cooperate because they had
    a legal order from the Attorney General or from the court.
        And so the number of interceptions went up enormously after
    FISA was enacted because it was done under a legal system. So
    the answer to the burden is that it has this payoff which the
    intelligence community is continuing to testify to.
        What we need to do is to fix the rules so that we deal with
    this problem but without throwing away, as the bill that was
    enacted does, all the positive benefits of having a system that
    is broadly supported and broadly understood and that it has
    clear rules in it.
        Mr. Delahunt. I think that in his testimony Congressman
    Barr references a quote from Judge Royce Lamberth, and I think
    it is particularly salient here today.
        We have to understand that you can fight the war on
    terrorism and lose everything if you have no civil liberties
    left when you get through fighting the war.
        What we have found in the history of our country is that
    you can't trust the executive. We still have to preserve our
    civil liberties.
        With that, I yield back.
        Mr. Conyers. Thank you.
        The gentleman from Indiana, Mike Pence?
        Mr. Pence. Thank you, Mr. Chairman.
        And I want to thank these witnesses.
        I want to welcome back, while in some disagreement on this
    issue, my esteemed colleague and friend, Congressman Barr. I
    appreciate the thoughtfulness of your presentation today.
        And I really want to, in my time allotted, I want to see if
    we can reflect on first principles. I think Mr. Lungren did a
    very nice job of identifying kind of why we are here.
        And the 6-month extension and the issues we are facing were
    not invented by the Congress.
        The director of national intelligence came to the Congress
    and said there has been a court decision that is tying our
    hands, and it is affecting our ability to engage in the
    gathering of foreign intelligence necessary to protect the
    country.
        And Congress was able to compromise on that this summer,
    and we are now back in an important debate.
        I take a second chair to no one in my commitment to the
    constitutional liberties enshrined in the Bill of Rights, and I
    question the sincerity of no Member of this Committee or any
    Member of this body who raises issues in this debate.
        But that being said, I would like to get Professor Turner
    to some first principles, and maybe invite a little discussion.
        I am very provoked by your written testimony on the larger
    question here of where does the authority derive for the
    executive branch, and specifically the President of the United
    States, to engage in the gathering of foreign intelligence.
        It seems to me--and I want to agree very strongly with your
    written testimony--that the Bush administration has done, in
    your words, an atrocious job of explaining their constitutional
    position in this matter. That, in fact, if I understand your
    testimony correctly, which I would encourage any American to
    look at in the record--is that, in fact, you know, Congress may
    no more usurp the constitutional powers of the President by
    statute than it can usurp the rights guaranteed to the people
    by enacting legislation contrary to the first amendment.
        I think that was your thought, that the President's
    authority to gather foreign intelligence here is inherent in
    the powers of the executive. And this, as you forcefully
    articulate, was reflected by the likes of Thomas Jefferson and
    George Washington and other framers of the Constitution.
        I was especially moved by the quote from Senator Fulbright,
    the late Senator Fulbright, who was a leading critic of the
    Vietnam War, who made a comment in which he explained ``the
    preeminent responsibility of the President for the formulation
    of the conduct of American foreign policy is clear and
    unalterable,'' adding later that this also included the Central
    Intelligence Agency and all of the vast executive apparatus.
        I believe, Professor Turner, you point out and emphasize
    the word ``formulation'' here. Then, in fact, Senator Fulbright
    himself said the President's authority was not merely to carry
    out policies established by Congress, as is the case of
    domestic policy, but it is the case to make policy in the
    gathering of foreign intelligence and protecting the Nation.
        I also would point out that you quote favorably President
    Carter's Attorney General, Griffin Bell, who said that in the
    testimony involving the creation of the FISA court, he said the
    current bill recognizes no inherent power of the President to
    conduct electronic surveillance.
        And I want to interpolate here that this does not take away
    the power of the President under the Constitution. He went on
    to say it is not necessary to state that power. There is no
    reason to reiterate it or to iterate it, as the case may be. It
    is in the Constitution, whatever it is. The President, by
    offering this legislation, is agreeing to follow statutory
    procedures.
        I would like to raise that issue with you, Professor
    Turner, and then to anyone else on the panel, of where does
    this authority derive from. Can you expand on that further?
        Because I think it is a backdrop of this debate that is
    largely lost, as millions of Americans, I think, believe the
    President's ability to engage in surveillance derives from the
    FISA act itself.
        Mr. Turner. Thank you. That is a very good question. It is
    almost as if during Vietnam we had a hard drive crash, and
    everybody forgot about the meaning of the executive power
    clause.
        The term ``executive power'' was understood by the founding
    fathers, because they had read John Locke's Second Treatise on
    Civil Government. They had read Montesquieu's Spirit of the
    Laws. They had read Blackstone's Commentaries on the Laws of
    England.
        All of those, and many others, understood by its nature
    external business, foreign affairs, the conduct of war cannot
    be managed by large deliberative assemblies.
        You have got to act with speed and dispatch. You have got
    to act with secrecy. Legislating bodies can't keep secrets.
    Thus, this is presidential business. This was part of the
    executive power.
        In my testimony, I quote James Madison, Thomas Jefferson
    saying that--he quotes article II, section 1, the executive
    powers given to the President.
        And then he said the transaction of business with foreign
    nations is executive altogether, and thus it belongs to the
    head of that department, except for those exceptions expressly
    vested in the Senate, which were to be construed narrowly.
        Jefferson's chief rival in Washington's cabinet, Alexander
    Hamilton, made exactly the same point 3 years later as
    Pacificus. John Marshall, as a Member of the House of
    Representatives, said the President is the sole organ of the
    Nation in foreign affairs. He possesses the executive power.
        I did a 1,700-page doctoral dissertation on separation of
    foreign affairs powers. I went through year by year and looked
    at congressional debates, looked at court opinions and so
    forth.
        There was almost unanimity that certainly intelligence,
    certainly the conduct of diplomacy--in Curtiss-Wright in 1936,
    the Supreme Court said into the field of negotiations the
    Senate cannot intrude. Congress itself is powerless to invade
    it.
        The same reason you don't get involved with negotiations is
    why you don't get involved in intelligence.
        Now, the distinction is external and internal. John
    Marshall in Marbury--a great line. He talks about the President
    having certain powers under the Constitution that are confided
    to his discretion.
        ``Whatever opinion may be entertained on the manner in
    which executive discretion may be used, still there exists and
    can exist no power to control that discretion. Being entrusted
    to the executive, the decision of the executive is
    conclusive.''
        And to illustrate this, he mentioned in the next sentence
    the creation of the Department of Foreign Affairs, the
    presidential department, and he said courts cannot inquire into
    the official acts of the Secretary of State. This is a well-
    established principle that we lost about the time of the
    Vietnam debates.
        And neither side mentioned this, but throughout our history
    it was understood the reason the President managed foreign
    affairs was because of the executive power grant.
        And on intelligence, it was expressly discussed in the
    Federalist Papers. Congress can't keep secrets. Therefore, the
    Constitution has given the President power ``to manage the
    business of intelligence as prudence might suggest.''
        And the gentleman from Massachusetts, who has left us, made
    the point of the importance of protecting the Constitution. I
    could not agree more. But what is being missed is Congress is
    usurping presidential powers.
        Now, there is a gentleman's agreement here that I think
    works. If Congress can come up with a FISA that allows us to
    have an extra check when they are talking about looking at
    American communications, I think that is wonderful.
        But that will not be founded upon Congress directing the
    President to do something in the foreign intelligence area.
        It will be founded upon the mutual interest of everyone
    wanting to protect the rights of individuals from unnecessary
    and unreasonable searches and Congress giving the President the
    flexibility he can do the job of protecting the country.
        This is why I think it is so important that you work with
    the President, you are not dictating to him, because in reality
    you are trying to restrict his powers under the Constitution.
        Mr. Pence. I thank you.
        I think my time has expired, unless there is other
    commentary on that, Mr. Chairman.
        Ms. Spaulding. Congressman, I would like to emphasize that
    the crux of the debate here, and certainly the crux of the FISA
    legislation, is not with respect to purely foreign affairs but,
    in fact, where it touches upon individual liberties of
    Americans inside the United States. That is the challenge with
    which we are wrestling.
        And I would offer a more recent quote than those that
    Professor Turner was offering--Justice O'Connor in the Hamdan
    decision, who said that regardless of what authorities the
    President may have with respect to foreign affairs, surely when
    it comes to individual liberties--when individual liberties are
    at stake, it is clear that the Constitution envisioned a role
    for all three branches of Government.
        Mr. Barr. If I might, at the gentleman's invitation, with
    the concurrence of the Chair, also respond briefly to that,
    with all due respect, the discourse between the gentleman from
    Indiana and the law professor is very interesting, but it is
    totally irrelevant to the gentleman from Indiana's question.
        If he is inquiring about first principles, the first
    principles are that a United States citizen in this country is
    clothed with a sphere and aura of privacy that the Federal
    Government cannot invade, absent a good and sufficient reason,
    which there will be from time to time.
        But that ought to be the focus of the debate here. We are
    not talking, I don't think, any of us here, about infringing
    the power of the President as the chief executive to gather
    foreign intelligence overseas or, under certain circumstances,
    in this country.
        What we are talking about here, and the real problem with
    P.L. 110-55, is the fact that as Ms. Spaulding indicated, it
    implicates fundamental first principle constitutional liberties
    for citizens in this country who now, thanks to that law as
    signed by the President and passed with too much haste by this
    Congress--any call or e-mail--that is, any electronic
    communication--that a U.S. person has with anybody overseas,
    without any necessary hint of any association with a terrorist,
    is now subject to surveillance by the Government without any
    court supervision.
        That is a violation of about as first principle as one can
    get. And I really think that that is where the debate ought to
    be, not on the intricacies of how far Article II might extend
    in foreign affairs.
        Mr. Pence. I appreciate that.
        Just to conclude, Mr. Chairman, I appreciate the rebuttal
    remarks, but it is just imperative to me that as we reflect on
    the privacy rights of Americans, we also reflect on those long-
    term principles of separation of powers in Government that have
    served to protect the people of this country effectively over
    hundreds of years.
        And with that, I yield back, grateful for the additional
    time.
        Mr. Conyers. Thank you.
        The Chair observes that there were no hearings in the
    Judiciary on the amendments just recently passed that have a 6-
    month period before they expire, which now require us to begin
    to hold these hearings, which there was no opportunity to do in
    our haste before the recess.
        The Chair is pleased to recognize the distinguished lady
    from Houston, Texas, Sheila Jackson Lee.
        Ms. Jackson Lee. Mr. Chairman, I want to take my first
    moment to thank you for your leadership and your complete
    commitment to the preservation of the Constitution.
        I think that one of the things that we learned after 9/11--
    Mr. Chairman, you remember we went quickly to the steps of the
    United States Congress, purposely to show the American people
    that we would not be undermined and denied our liberty because
    of the horrific terrorist act of 9/11.
        I remember singing ``God Bless America,'' and it was really
    to show to the American people--Congressman Barr, you probably
    remember that we were not to be daunted in this enormous
    tragedy, in the face of this enormous tragedy.
        And so, as I listened to the discourse between my good
    friend from Indiana and the distinguished professor from my
    alma mater, the University of Virginia School of Law--the
    Jeffersonian mission that that school has--I saw more than a
    reflection of this present underlying bill.
        My recollection of Thomas Jefferson's original premise in
    the founding of this Nation was a healthy skepticism of
    authority does not mean that we don't have to have the laws
    necessary to protect America.
        I have just left--and I apologize to the witnesses--the
    Homeland Security Committee which I am on and Secretary
    Chertoff discussing closing gaps on security in America.
        And so we are not unmindful of that. But as I listen,
    Professor Turner--and I really just need a yes or no answer,
    because I hear an expanded view of the executive power.
        So let me just read off to you the Bill of Rights, and I
    would like Professor Barr and the distinguished panelist to his
    right, Ms. Spaulding--I am sorry, I am being blocked out of
    your view--to also answer this in the context of this question.
        And that is that the bill that was passed was under the
    premise of protecting America, and its premise was to surveil
    people overseas.
        But frankly, what is happening, and I imagine has been
    discussed, is that it will weave its way into the bedroom,
    kitchen and other places of refuge for Americans.
        This is, I think, the narrow focus of what we are trying to
    protect, and that is the basic underpinnings of civil
    liberties, while at the same time we promote the sharing of
    intelligence.
        For those of us who are here, we remember the key
    underlying cause of 9/11--individuals in our intelligence
    community not talking to each other, not necessarily not having
    the right intelligence, but not talking to each other, with
    clear evidence of what might have been happening.
        And so we were very cautious not to then take the terrorist
    act and terrorize Americans.
        Professor, are you suggesting that executive powers during
    this very difficult time would then have the right to eliminate
    the freedom of press, the freedom of speech, to eliminate
    Americans' right to carry arms, of which--I happen to be
    someone who defines the second amendment differently, but
    America's right to carry arms, America's right to the
    protection against unreasonable search and seizure, America's
    right to due process, Americans' rights to a trial by jury?
        Is that the expansive executive power that you are now
    promoting, that in times like these we, then, yield to the
    auspicious and, I might say, oppressive power of the executive
    and allow them to eliminate all these rights?
        Is that your position today?
        Mr. Turner. I am always wary of yes or no questions. I
    stopped----
        Ms. Jackson Lee. But I asked for----
        Mr. Turner [continuing]. Years ago.
        Ms. Jackson Lee [continuing]. Is that your position today?
        Mr. Turner. Not at all. If you will read my testimony, the
    distinction is the President's, in many respects, exclusive
    power dealing with the external world, versus what you are
    talking about, internal.
        The fourth amendment----
        Ms. Jackson Lee. And may I just----
        Mr. Turner [continuing]. Is just as enforced today as it is
    in peace time, but what is an unreasonable search may change
    when you are trying to stop a terrorist attack.
        But certainly, I don't suggest at all that the President
    can suspend the Constitution or something like that. Quite the
    contrary.
        Ms. Jackson Lee. Thank you, Professor.
        Congressman Barr, is it not possible to take the argument
    and the premise that the professor has made in his previous
    comments, including his testimony, even though he has now
    suggested the distinction of war time versus peace time. But if
    we don't look to provide some parameters for this warrantless
    wiretapping structure that does not invade improperly the civil
    liberties of Americans, is that not the possibility of the
    expansion of executive powers?
        Mr. Barr. Well, it certainly is a possibility, and as a
    matter of fact a number of advocates for the Administration's
    policies regarding enemy combatants, regarding military
    tribunals, regarding foreign intelligence surveillance--all
    these areas and more--argue that the President has, in fact, in
    their view plenary authority under article II, sections 1 and
    2, as commander in chief to do all of those things that you
    have enumerated.
        Ms. Jackson Lee. Ms. Spaulding?
        Ms. Spaulding. I think we have to be wary of expansion of
    executive authority and the skewing of our system of checks and
    balances, not just because we believe strongly in civil
    liberties, but there are also national security costs to that
    kind of avaricious accumulation of power and ignoring our
    system of checks and balances.
        And I think it can be seen most clearly in the lessons we
    have learned from community policing. We are concerned about
    homegrown terrorism.
        We are not likely to detect some young man sitting in his
    basement contemplating a terrorist attack through these
    expansive FISA powers, even as amended.
        We are most likely to be able to successfully address
    homegrown terrorism by developing a close relationship with our
    communities, and particularly our Muslim-American communities.
        They are deeply suspicious when the Government starts
    asserting this kind of broad power that infringes upon
    Americans' rights. And they know they are particularly
    vulnerable population, particularly in this context with this
    threat.
        And I think it begins to drive a dangerous wedge and makes
    us less secure, not more secure.
        Ms. Jackson Lee. Mr. Halperin, would you comment?
        Mr. Halperin. Yes. I think that we give up our liberty and
    do not gain our security. My basic point about FISA is that it
    has worked. The number of----
        Ms. Jackson Lee. That it is--I didn't hear you.
        Mr. Halperin. Has worked. After it was enacted, the number
    of surveillances went up. Every director of central
    intelligence since has testified that they were able to conduct
    more surveillances and gain more information, because
    Government officials, officials of the phone company, landlords
    of people whose houses you needed to get into, all knew that
    they were doing something that was lawful, that Congress had
    authorized, that the courts had sanctioned, and that therefore
    they had an obligation to cooperate.
        Before FISA, you had a situation in which you didn't have
    anywhere near as much cooperation and therefore much less
    surveillance.
        The first leak that occurred of the foreign intelligence
    surveillance since the enactment of FISA was the leak of the
    President's program going beyond FISA and conducting
    surveillances outside of FISA.
        And that leaked because some of the people involved did not
    believe it was lawful. We know one of the telephone companies
    refused to cooperate because their lawyers, I think properly,
    told them it was unlawful.
        We now have the Government coming into the Congress
    desperately seeking new legislation because a court has said
    you violated FISA.
        We protect our security, as we protect our civil liberties,
    by doing what this Congress did in 1978, which is enacting
    clear laws with clear obligations for everybody, with a clear
    role for the Congress and for the FISA court.
        And when we break that rule, as we did in this legislation,
    we jeopardize our security as much as we jeopardize our civil
    liberties.
        Ms. Jackson Lee. I thank the Chairman.
        Mr. Conyers. I thank the gentlelady from Texas.
        The Chair is pleased to recognize the Ranking Member of the
    Immigration Committee, the gentleman from Iowa, Steve King.
        Mr. King. Thank you, Mr. Chairman. I appreciate you holding
    this hearing here today and appreciate the testimony of the
    witnesses and I will say the expert perspective that is brought
    by each of you.
        And I just have a few curiosities left. My colleagues have
    done a very good job, I think, of combing out a lot of the
    wrinkles that we have had here in this Committee.
        And at first, I direct to Professor Turner. We passed the
    Protect America Act and completed into law August 5, and you
    understand the background for that. Would we have been better
    off not to have addressed this issue, in your opinion?
        Did we take a step that was an improvement in the right
    direction? Should we back up a little bit? How would you
    summarize your recommendation, if there should be any changes
    made?
        Mr. Turner. Well, I think there is a consensus here that we
    are in a situation, as the Administration has explained--the
    DNI has explained--that new technology has made it--turned FISA
    on its head.
        Things that used to be legal under FISA now can't be done
    because of the way the technology works. We need to have a
    technology-neutral FISA. And to me, the focus of FISA should be
    on protecting the rights of U.S. persons in this country.
        The situation we were in before you acted--we were actually
    being told we could not listen if bin Laden called his number
    two across town in Pakistan somewhere because of Congress and
    the way you wrote this law. Which, again, proves the wisdom of
    Locke when he said you cannot manage these problems by
    antecedent, standing, positive laws because you cannot
    anticipate all the changes.
        You know, the loss of a battle, the resignation of a
    minister might change a bad situation to a good one, and so
    Locke said those who preside must be left in position to act
    for the common good. This is a wonderful example when Congress
    gets into this area.
        Now, I want to make it very clear, I have not suggested the
    President has any power to suspend the first amendment, or the
    fifth amendment or the second amendment. The distinction here
    is foreign-domestic.
        There was a 1971 Committee of experts of the American Bar
    Association that said the President ought to be able to wiretap
    people in this country for foreign intelligence persons, but
    when the target is a domestic threat--in that case, it was a
    White Panther who worked for the Black Panthers, who had blown
    up the CIA building and was found with many pounds of dynamite
    and maps to American military bases.
        The Supreme Court in the Keith case said you have to have a
    warrant. If it is an American threat, fourth amendment--you
    know, of course, fourth amendment applies all the time, but the
    Supreme Court has carved out a number of safety-related
    exceptions to the fourth amendment, including the----
        Mr. King. I agree, Mr. Turner.
        Mr. Turner. And this is one of them.
        Mr. King. But you set up a question here, now, and that is
    these decisions that were made by the several judges that
    brought us into this situation--do you believe, then, that the
    executive powers of the United States should have been
    suspended with regard to intelligence gathering until Congress
    acted?
        Mr. Turner. No. I think Griffin Bell got it right. I think
    the President has the power to do this that is a higher power
    than your power to limit----
        Mr. King. Okay. Let me take you, then, if I might----
        Mr. Turner. Had you not passed this, I would have
    recommended the President just ignore FISA and continue
    listening to bin Laden. But I would rather see him work--I like
    FISA.
        But FISA ought to be understood as an agreement, not as
    controlling the President, because in the end, he wins, because
    his constitutional power prevails in this act.
        Mr. King. Okay. And I appreciate your constitutional
    perspective, so I would ask this following question, and that
    is when there is a court decision that the executive believes
    runs contrary to the constitutional authority of the executive
    branch, then what is the duty--or the Congress, for that
    matter.
        If we believe that there is a decision made by the court
    that is inconsistent with the Constitution, do we honor that
    decision and comply--and conform the law to match that decision
    of the judge? Or do we ignore that?
        What is your recommendation on how Congress should act or
    the executive branch should act when we find ourselves in
    disagreement with the constitutional interpretation of a judge?
        Mr. Turner. This is an easy one. The Constitution is
    supreme. The courts have the supreme authority to interpret the
    Constitution. If a court says this is unconstitutional, you
    stop doing it, and if you disagree, you immediately appeal.
        When the Supreme Court rules, that is final, except you can
    then try to amend the Constitution. Ultimately, the American
    people are the boss, but until they change the Constitution, it
    binds all the branches.
        Mr. King. Okay. But Ms. Spaulding quoted from the Hamdan
    case, a case where we clearly used article III, section 2
    stripping language, and the Supreme Court was denied
    jurisdiction in that case. They heard it anyway.
        And so are you suggesting, then, that for the Congress or
    the executive branch to maintain their authority in this
    balance of powers we would have to go to a constitutional
    amendment to remind the Supreme Court what the Constitution
    says in article III, section 2?
        Mr. Turner. That is an interesting question, and it is
    really a political question. But the basic point is ultimately
    the courts prevail on interpreting the Constitution. If you
    believe the courts violated the law, I am not sure what the
    answer to it is.
        But if they--obviously, if it is an interpretation of the
    law--in fact, any time they say it has to do with the law, you
    just change the law. If it deals with the Constitution, you
    accept it or you amend the Constitution.
        Mr. King. If I might, then, just very quickly conclude, and
    that is that each branch of Government--if we do not jealously
    protect the power and authority granted to us in the
    Constitution, we will lose it to another branch of Government.
        I thank you very much for your testimony.
        And I yield back.
        Mr. Conyers. The Chair is pleased to recognize the
    distinguished gentlelady from California, Maxine Waters.
        Ms. Waters. Thank you very much, Mr. Chairman. This has
    been an interesting and fascinating discussion. Sorry that I
    was not able to be here for all of it. We are looking at home
    foreclosures over in the Financial Services Committee.
        But I was anxious to get back here, because I think that
    this is an issue that must be dealt with by the Congress of the
    United States.
        As a matter of fact, I was disheartened with the passage of
    the Protect America Act when we left here on August 5, 2007.
    And I know that Congress is a very complicated place, and that
    often times actions are taken, decisions are made, based on the
    complication of the makeup of this body.
        But I was not a very happy camper because that act was
    passed, even though it is temporary.
        And I am so glad, Mr. Chairman, that you are revisiting
    this as quickly as could possibly be done and having us here
    today, because I know that there is going to be a coming
    together of both sides of the aisle eventually to deal with
    this, as demonstrated by my former colleague, Mr. Bob Barr, who
    is here today.
        As Mr. Barr knows and many of you know, I disagree with him
    on a lot of things. But he has been absolutely spectacular on
    this issue.
        And he and the ACLU literally have formed a partnership on
    the protection of civil liberties, and I have a real
    appreciation for that.
        I am also pleased to hear the professor here today, because
    I know now why I am so frightened about the President of the
    United States and his ability to ignore the Constitution of the
    United States and to place American citizens under
    surveillance.
        And I need to hear people like the professor explain why
    they think the way that they do, so it could help to keep me
    focused on why I must fight very, very hard to ensure that the
    President does not use the power of the presidency to spy on
    American citizens, or to ignore FISA, or simply to violate the
    Constitution, in my estimation.
        Now, having said all of that--and I think this issue has
    been framed very well here today, and we probably all know
    where we stand on it. And we can wax eloquently about what the
    Constitution meant, and some can, I guess, emerge as strict
    constructionists, others more liberal.
        But I want to get to what it really means for an American
    citizen to be spied on by their Government. And we have someone
    here today who is presenting as a witness, Mr. Mort Halperin,
    who was targeted as an enemy by the Nixon administration.
        And I would like to hear from Mr. Halperin what you learned
    about surveillance of your family. I want to know why did the
    Government target you. What did you do about it? And help us
    put a face on this here in this Committee today.
        Mr. Halperin. Well, thank you. I discovered that there was
    a warrantless electronic surveillance on my home phone. I sued
    the Government. The case went on for many, many, many years.
        We took the depositions of vast numbers of people. All of
    them modestly assured us that they had nothing to do with the
    decision to put the tap on my home phone. Mr. Nixon, Mr.
    Kissinger, Mr. Haldeman, the deputy director of the FBI all
    insisted that somebody else had made the decision.
        But the fact was that the FBI listened to my home phone
    conversations and those of my family for 21 months, learned at
    the end that according to General Haig, nothing suggested that
    I was a leaker of information.
        They learned about the Muskie Presidential Campaign. They
    learned about Common Cause's campaign against the Vietnam War.
    They learned about my shopping habits, particularly what
    groceries I tended to buy, and other information relating to
    political activity that they had no business acquiring.
        We sued, among other people, the telephone company. And I
    think that actually played an important role in getting us to
    FISA, because the phone company was starting to get sued by a
    number of people.
        They had acted on the assumption that the Government always
    behaved in good faith. This tap was put on the way they all
    were put on. There was a phone call from an assistant director
    of the FBI to the security officer in the telephone company.
        Now, of course, in those days, there was only a telephone
    company. It was very simple. And then they would provide all
    the phone calls to the FBI field office--in this case, the old
    post office building down on Pennsylvania Avenue--where they
    listened to the calls.
        But I think the lesson there was that you can't trust the
    Government, that if the President has the power to pick up the
    phone and call the FBI and get a wiretap, he will do it on
    Martin Luther King, Jr. He will do it on steel company
    executives. He will do it on Government officials.
        He will do it on newspaper men, as well as on the
    girlfriend of the Russian ambassador, and that therefore we
    needed rules. We needed clear rules for the phone company and
    for Government officials about when this was appropriate and
    when this was not appropriate.
        And I think out of that came FISA, which I strongly
    supported, believed it was the right thing to do, and now
    strongly support amendments to make sure that we can listen to
    phone calls between two terrorists overseas but not do it in a
    way that allows the Government to acquire vast numbers of
    conversations of Americans.
        Ms. Waters. Can you regain the trust of your Government
    once you have been violated in the way that you have described,
    or are you forever looking over your shoulder, you are a little
    bit nervous about being spied on?
        What does this do to an American citizen to find that their
    President has violated the law and the Constitution and spied
    on you?
        Mr. Halperin. Well, I think, obviously, different people
    react different ways. My reaction was to say we have to fix the
    problem. We have to fix the problem by Congress enacting clear
    and firm rules.
        We should not be in a position where an FBI official, or an
    NSA official, or CIA official, or the President or the Attorney
    General is not clear what the law permits him to do.
        And that is why I thought that FISA was so important. I
    devoted much of my time for 3 or 4 years to the debate about
    FISA, because my view was there were some conversations that
    the Government had to be able to listen to.
        At the same time, the American people needed to be assured
    that they would not be surveilled without a warrant.
        And after 9/11, when people said to me, ``I will bet they
    are listening in again to our conversations without a
    warrant,'' I said what the President said, ``They can't do
    that. A court order and a warrant is required.''
        And then we found out the President was lying to us, that
    he was listening without a warrant to those conversations. And
    he destroyed the whole system of trust that had been built up
    in the enactment of FISA.
        And then the Administration destroyed it again by demanding
    a bill without explaining what it meant or what it did in a way
    that people could understand.
        And as I have said several times, my view is that threatens
    our security as much as it threatens our civil liberties. And
    it breaks the bond of trust that FISA created between our
    citizens and the Government, and we all know we what the rule
    were and we all knew that the rules would be enforced.
        And I think Congress has to reestablish that system of
    trust, and it can do so in any way that gives the director of
    national intelligence access to the phone calls that he should
    be able to listen to.
        Ms. Waters. Thank you very much, Mr. Chairman.
        Mr. Conyers. Thank you so much.
        The Ranking Member of the Constitution Subcommittee, the
    gentleman from Arizona, Mr. Trent Franks?
        Mr. Franks. Well, thank you, Mr. Chairman.
        And thank all of you at the panel here. You know, sometimes
    it is important just to kind of come back to earth a little
    bit.
        And I am reminded that when 9/11 came upon America, there
    were over 2,500 Americans that were almost instantaneously
    stripped of their right to live, of their right to be free, and
    their right to pursue their dreams.
        Almost everything that any of us hold dear was taken from
    them in an almost blinding instant.
        And it reminded our Government that they have a profound
    responsibility to protect the citizens of the United States.
        It also reminded them that they face a different kind of
    enemy than we have ever faced, an ideological one that lurks
    behind the shadows and is an asymmetric threat that is
    difficult to define and to ascertain where and what they are
    trying to do.
        With that in mind, even intelligence becomes a critical and
    overriding issue. If we knew where every terrorist was in the
    world today and what they were planning, the war on terror
    would be over in 60 days. Our greatest challenge is
    intelligence.
        So in the effort for all of us to protect the civil
    liberties of the United States and the people in it, we have to
    consider the importance also of foreign intelligence.
        With that in mind, as I understand, Mr. Turner, let me just
    try to, if I can, walk through this a little bit, and you are
    welcome to say to the whole world where I am right and wrong.
        But as I understand it, the Protect America Act essentially
    says that--like it was originally envisioned, that the foreign
    intelligence surveillance having to do with people not on this
    Nation's territory, could be done by the President largely
    without any kind of warrant, that he could listen to Terrorist
    A in Morocco and Terrorist B in Abu Dhabi and could make his
    own conclusions there as to whether or not they represented a
    threat to the United States, but that if someone in the United
    States was targeted, that there had to be a warrant.
        And I understand that the rub comes when someone calls--a
    terrorist, perhaps, calls into the United States to someone
    that is not a targeted person under any warrant. And there are
    those of the majority that suggest that that is
    unconstitutional.
        Is it not true, however, that if a terrorist calls someone
    in the United States, that of all considerations, of all calls
    that should be considered carefully, that that would be among
    the most important ones to consider?
        And I understand that if there is some criminal discussion
    on the part of the person that is being listened to here in the
    United States as a result of listening to a terrorist phone
    from outside the United States that before that person can be
    targeted for any type of criminal investigation that they have
    to get a warrant to do that.
        Is that correct, Mr. Turner?
        Mr. Turner. That is a good question, and I am not certain.
    It seems to me there are two regimes here. Going back to the
    ABA report in 1971, their argument was the President could do
    foreign intelligence wiretaps without a warrant.
        That would include a foreign agent, a foreign government
    official, a terrorist--what have you--calling in.
        They listen. If the American is not saying, ``Hey, where do
    I get the explosive,'' but rather is trying to say, ``Where do
    I send the lamp you bought on eBay,'' then the minimization
    procedures come in and they erase, you know, the tape and
    everything else.
        The other issue is the FISA regime. I am not certain
    whether--I think FISA, if you are targeting the foreigner
    outside the country, where you have got every right--certainly,
    everybody agrees it is legal--the President has a duty to try
    to find them and target them or find out what they are doing.
        I don't think you need a FISA warrant for the individual in
    this country. Certainly, you shouldn't. Certainly, the
    President should have a right to intercept that.
        Mr. Franks. Well, that is as I understand----
        Mr. Turner. Yes.
        Mr. Franks [continuing]. The situation, and I wanted to try
    to make that----
        Mr. Turner. That was before the latest interpretation over
    the technology that if it goes--now, anything that goes through
    a switch in this country----
        Mr. Franks. Right. I think the technology, Mr. Chairman, is
    what made a lot of the challenge here--is that sometimes now
    those come through the United States, and that is what has
    caused the new discussion here.
        And I will just close here, because I am about out of time.
    But the director of national intelligence has said that prior
    to the passage of the Protect America Act of 2007 that the
    intelligence community was ``actually missing a significant
    portion of what we should be getting with respect to terrorist
    communication.''
        And, Mr. Chairman, I just am convinced that the Protect
    America Act does everything it possibly can--and I am open to
    making it better--to protect the civil liberties of those
    residing in the United States and still helps protect the
    country from those who are malevolent outside the United
    States.
        And, Mr. Turner, if you would like to respond to that----
        Mr. Turner. Just one quick comment related to the Mort
    Halperin situation. I think everybody agrees that bug should
    not have taken place.
        It is very clear under the Keith case in 1972 the Supreme
    Court has said you need a warrant to bug a person in this
    country, unless you have got reason to believe that person is
    tied to a foreign power, a foreign terrorist group or something
    like that.
        So what happened there has already been taken care of by a
    Supreme Court ruling, quite properly.
        Mr. Franks. And just for the record, Mr. Chairman, that is
    the case under the Protect America Act. Thank you.
        Mr. Conyers. The gentlelady from New York, Sue Sutton.
        Oh, excuse me, the gentleman from Tennessee, Steve Cohen.
        Mr. Cohen. Thank you, Mr. Chairman. I appreciate it.
        Most of the questions, I guess, have been asked, but I do
    have a few thoughts and questions.
        Congressman Barr, you were here--most of the discussion has
    been about foreign terrorists, and certainly that is our
    primary concern.
        But before 9/11, our primary terrorist attack was some
    yahoos out in the Big 12 conference, Oklahoma, Colorado,
    Nebraska, wherever they were, and Oklahoma City.
        After that attack in Oklahoma City, was there any
    discussion of changing the constitutional history of this
    country to have surveillance on domestic terrorists to protect
    us from that threat?
        Mr. Barr. There were some discussions, for example, as the
    gentleman from Tennessee may recall--even though he wasn't in
    the Congress, I know he followed these issues.
        There was some discussion in the initial antiterrorism
    legislation that was crafted in the wake of the Oklahoma City
    bombing that did--a number of us across the political spectrum
    believed did improperly infringe constitutional rights of our
    citizens, and at that time we defeated those. Those did not
    pass as part of that legislation.
        Mr. Cohen. Did anything pass to give additional authority
    to the Government to intercept any conversations or documents
    of any sort?
        Mr. Barr. No.
        Mr. Cohen. Were the proposals ones that were tailored
    strictly to terrorist activity?
        Mr. Barr. Some of the proposals went apparently far afield
    of the specific focus that a number of us believed should have
    been the focus of legislation to address the particular problem
    that manifested itself in Oklahoma City.
        And here again, we were able to curtail those.
        Mr. Cohen. And either you or Ms. Spaulding--this
    legislation that we passed was not strictly limited to
    terrorists, is that correct?
        Mr. Barr. As the Chair, I think, is--or as the gentleman
    from Tennessee is implying here, the scope of P.L. 110-55,
    which is the Protect America Act, goes far beyond targeting
    terrorists.
        Virtually any phone call or e-mail, any electronic
    transmission, communication, that a U.S. citizen in this
    country makes to anybody overseas, regardless of any connection
    whatsoever or even a mere suspicion that they are a terrorist
    or connected with a terrorist, is now subject to surveillance
    without court order, supervision or effective oversight by the
    Congress simply because that U.S. person is communicating with
    somebody overseas.
        That goes far, far beyond anything reasonably necessary to
    address the problem of terrorism.
        Mr. Cohen. And so, Ms. Spaulding, would you like to
    respond?
        Ms. Spaulding. Well, I was just going to respond to the
    argument that was made for why this bill was not limited to
    issues related to international terrorism.
        And the example that was given, that suppose a terrorist
    group is talking with a foreign government about trying to
    purchase nuclear weapons or obtain other kinds of weapons of
    mass destruction--that still is related to international
    terrorism.
        And an appropriately focused legislation that restricts
    itself to the threat posed by international terrorism could,
    indeed, encompass those kinds of threats.
        Mr. Cohen. Do you have words of art that you could offer to
    the Committee?
        Ms. Spaulding. Congressman, I would be more than happy to
    work with the Committee to try to find the appropriate way to
    address all of these challenges.
        Mr. Cohen. Thank you.
        Do any of you know of any situations where the fact that
    some request for some surveillance went to the FISA court and
    had that time limit affected the security of this country?
        Mr. Turner. Mr. Chairman, I--or sorry.
        Mr. Cohen. That is all right.
        Mr. Turner. Maybe later. Right. I don't know of any, but
    there is no reason I would, since all of that is classified.
        Mr. Halperin. The Attorney General, I thought, in his
    testimony did lay out the situation which supposedly justified
    the terrorist surveillance program because there was not time
    to go to court.
        I thought they did make out a case for why the emergency
    procedures needed to be lengthened in time in order to be able
    to deal with those particular surveillances.
        The Administration seems to have lost interest in that
    amendment. It is not in their package anymore. I don't know how
    the problem went away, but I think it does need to be fixed.
        Mr. Cohen. Thank you.
        When this bill came up for vote, I voted no, as did most of
    my Democratic colleagues. There were lots of reasons to vote
    no, most of which are the subject matter and the concern of the
    fourth amendment, the courts, the tradition of American
    jurisprudence.
        But one of the other reasons is because this bill gave a
    great deal of authority to the Attorney General of the United
    States.
        This Committee, under our Chairman, had hearings which I
    think exposed certain problems in the Department of Justice and
    with our current Attorney General.
        Because of the oversight of this Committee, as well as the
    oversight of the Senate, I believe issues were raised,
    responses were not given, that led to the resignation of our
    Attorney General, which will give this Congress and this
    congressman possibly more confidence in giving the Attorney
    General authority which he didn't have.
        On that night when I voted no, I said that one of the
    reasons I voted no is because the American people did not trust
    this Attorney General with additional authorities, having seen
    what he had done with former Attorney General Ashcroft on his
    sick bed.
        And I called on his resignation that night. I am pleased
    that he has announced his resignation. And I think this
    Committee, because of the hearings the Chairman has had--we
    have seen a hero emerge, and that was Mr. Comey. James Comey is
    an American hero.
        And, Mr. Chairman, I have called in Memphis, Tennessee--and
    some of you may know it, but I believe if the President would
    appoint James Comey--or nominate him as Attorney General, we
    would feel a lot more comfortable with this law and the laws of
    this entire country.
        And he would show that he was putting the country first,
    because he is a hero who will do what is right under the
    Constitution and the laws of the United States and not act as a
    political tool of any individual. And I would encourage the
    President to do so.
        Thank you, Mr. Chairman.
        Mr. Conyers. Well, there are others on the Committee that
    share your view, Mr. Cohen.
        I am pleased now to recognize Judge Louie Gohmert of Texas.
        Mr. Gohmert. Thank you, Mr. Chairman. I do appreciate this
    hearing.
        And I do appreciate when we have a panel whose I.Q.s
    collectively enhance the I.Q. of the room itself, so we
    appreciate you all being here.
        I would like to just ask some very basic questions so I
    know where everybody is. That helps me judge, you know, the
    credibility, weight, that kind of thing, for the testimony.
        But first of all, I would like to ask a simple question to
    each.
        Mr. Barr, you are looking at me sternly there--simple
    questions--but just to get an answer--and it should be yes or
    no. I am not trying to trick anybody, but just to find out
    where you stand.
        First question: Are U.S. citizens located in foreign
    countries entitled to the rights in that country that are
    afforded under the United States Constitution?
        Mr. Barr, if we could just go down the row?
        Mr. Barr. In the context of the discussion regarding FISA,
    no.
        Ms. Spaulding. Most constitutional rights travel with
    Americans when they travel overseas vis-a-vis their
    relationship with the United States Government.
        Mr. Gohmert. So would that be----
        Ms. Spaulding. Yes.
        Mr. Gohmert [continuing]. A yes? Okay. Thank you.
        Mr. Turner. I think it is more complex than that, but I
    think most constitutional rights, you know, would carry over
    with respect to the U.S. Government, but I also agree with Mr.
    Barr with regard to some of the surveillance issues.
        The question is whether they have a reasonable expectation
    of privacy, and I think one of the things you have to ask--the
    only country in the world that has a fourth amendment is the
    United States.
        You go to France today, if you are a businessman--you had
    better be sure your briefcase is going to rifled while you are
    at lunch by the French intelligence.
        And so, you know, the test in the fourth amendment--one, is
    there a reasonable expectation of privacy? If there is, is the
    search unreasonable?
        Mr. Gohmert. But going back to the question, you are saying
    there is no expectation of privacy by an American citizen in
    France, but nonetheless their constitutional rights have to be
    observed?
        Mr. Turner. Well, the answer there is the fourth amendment
    may not apply by virtue of the fact that they have to have an
    expectation of privacy for it to apply.
        But most of the provisions certainly do apply to Americans
    overseas with respect to their relation to----
        Mr. Gohmert. Well, Professor, you have been so clear-spoken
    throughout your testimony. I think this is the most befuddling
    your answers have been so far in this hearing.
        And I am still not clear where you stand on that question.
        Mr. Turner. Most constitutional rights do carry with them
    with respect to our Government with respect to----
        Mr. Gohmert. Even when there is no expectation of privacy.
        Mr. Turner. No. That is the key. The fourth amendment may
    apply, but if it does apply, they are probably excluded from
    its protections----
        Mr. Gohmert. But you just gave an example, France. You got
    no expectation----
        Mr. Turner. Yes, they don't have----
        Mr. Gohmert [continuing]. Of privacy.
        Mr. Turner [continuing]. An expectation of privacy. You
    know, that is the trigger for----
        Mr. Gohmert. So if you are a moron and you go into a
    country thinking you are going to have an expectation of
    privacy, even though you clearly don't, then the fourth
    amendment follows you, is that----
        Mr. Turner. You know, I would have to research that one. I
    have never researched it, and the reason I am befuddled is
    because I am trying to think it through, and I don't----
        Mr. Gohmert. Okay.
        Mr. Turner [continuing]. Even know if there is any case
    law----
        Mr. Gohmert. Well, I really wasn't trying to be tricky
    here.
        Mr. Turner. Yes.
        Mr. Gohmert. Like I say, you have been pretty clear-
    spoken----
        Mr. Turner. I think I agree with Mort.
        Mr. Halperin. Yes, he is going to agree with me.
        Mr. Gohmert. All right. Your answer?
        Mr. Halperin. The Constitutional fully protects Americans
    against their own Government's actions whether they are at home
    or abroad.
        The fourth amendment is situational both at home and
    abroad. For example, you are not protected against Government
    seizures of your conversations if you sit in your house and
    talk loudly enough for someone else to hear outside, because
    the court has said----
        Mr. Gohmert. Are we talking about in a foreign country?
    Because that was my question.
        Mr. Halperin. No, but what I am saying is the fourth
    amendment applies equally in a foreign country as it does in
    the United States. Most----
        Mr. Gohmert. So expectation of privacy means nothing.
        Mr. Halperin. No. It means something both in the United
    States and----
        Mr. Gohmert. But I am asking about a foreign country.
        Mr. Halperin. Yes.
        Mr. Gohmert. And that is rather a subjective standard that
    you----
        Mr. Halperin. But that is the one----
        Mr. Gohmert [continuing]. Have mentioned.
        Mr. Halperin. It is the one the court has----
        Mr. Gohmert. And apparently it is a moronic offense if you
    are a moron and think you have got an----
        Mr. Halperin. No, no.
        Mr. Gohmert [continuing]. Expectation of privacy.
        Mr. Halperin. It is a reasonable person.
        Mr. Turner. That is the key.
        Mr. Halperin. It is a reasonable person.
        Mr. Turner. It is a reasonable expectation.
        Mr. Gohmert. All right. All right. But this question is
    not--I didn't say constitutional rights with respect to
    intrusion by the United States Government.
        Do they have a right to expect protections under the U.S.
    Constitution when they are in a foreign country?
        Mr. Halperin. Against a foreign government?
        Mr. Turner. No.
        Mr. Gohmert. Right.
        Mr. Halperin. Not at all.
        Mr. Turner. We all agree on that, I am sure.
        Mr. Gohmert. And is that your belief? As regards a foreign
    government, a U.S. citizen abroad has no expectation of the
    observation of U.S. constitutional rights? Is that fair?
        Mr. Turner. It is still more complex than that. For
    example, if a foreign government were to threaten the life of
    an American citizen abroad, that person would have an
    expectation that our Government would use its--you know, would
    make an effort to protect their, you know, safety and so forth.
        Mr. Gohmert. Okay. But then that raises other issues, and
    that would be unless it is an unborn child, and then you would
    have no expectation the U.S. Government would protect that
    life. But that is another issue.
        Well, let me go to another question. Do you believe
    terrorists located in a foreign country who is of foreign
    citizenship is entitled to protections and rights afforded
    under the U.S. Constitution to U.S. citizens?
        Mr. Barr? Foreign terrorists in a foreign country.
        Mr. Barr. No connection with the U.S.
        Mr. Gohmert. No connection with the U.S.
        Mr. Barr. No.
        Ms. Spaulding. No, that terrorist does not enjoy any
    constitutional rights.
        Mr. Turner. I am sure we all agree on that.
        Mr. Gohmert. Well, I just wanted to make sure, because I
    wasn't.
        Mr. Halperin. Yes, we agree on that.
        Mr. Gohmert. Okay. And we got into--answer this question
    with regard to my first question--but are foreign intelligence
    agents in foreign countries trying to surveil foreign
    terrorists required to provide them with constitutional rights
    under the U.S. Constitution?
        The answer apparently, from your last question, would be
    no, correct?
        Mr. Halperin. Right.
        Mr. Gohmert. I appreciated my friend from California, Mr.
    Lungren, getting into the minimization issue. I have had some
    concerns that perhaps we have not had adequate--well, let me
    just mention this as a final comment. I see my time has
    expired.
        I am very concerned that as we continue to have a lack of
    border security that in order to provide protections people
    want there is more and more usurpation of civil rights, and I
    would hope that we would have more border security to protect
    us there than have to keep encroaching, as apparently we have
    been going on some of the rights or perceived rights.
        And I yield back. Thank you, Mr. Chairman.
        Mr. Conyers. You are welcome, Judge.
        Several Members have allowed Debbie Wasserman Schultz of
    Florida to precede them, and we thank them for their courtesy.
        The gentlelady is recognized.
        Ms. Wasserman Schultz. Oh, thank you so much, Mr. Chairman.
        And to my colleagues, I appreciate the courtesy.
        At the risk of dumbing down the very important and eloquent
    debate that has gone on and discussion that has gone on here
    today--I am not an attorney, and that is not an apology. It is
    just a fact.
        And so because we have spent a lot of time speaking at a
    very high level, in very constitutional terms, in very legal
    terms, I want to ask my questions through the prism of someone
    who looks at an example like the following.
        In my view, the FISA law that we just adopted, which I
    voted against--and Congressman Barr, I have to tell you that it
    is a privilege to be in the same room with you and not be
    yelling at you from my couch, which I did for many a year.
        Mr. Barr. It is a privilege I share with you. I enjoy it.
        Ms. Wasserman Schultz. So I appreciate the opportunity to
    both agree with you, for once, and be in the same room.
        But the question that I have for you--I would like you to
    comment on this, if you will, and Ms. Spaulding as well, and
    Professor Turner, if the time allows.
        I look at this from this standpoint. The FISA law that we
    just passed would, in my estimation, allow the surveillance of
    an e-mail between my child and an Iraqi child communicating
    perhaps innocently, most likely innocently, about their views
    on the war, from an American child's perspective and an Iraqi
    child's perspective.
        The Iraqi child would, you know, be someone in another
    country, would be--the discussion would possibly be related to
    foreigners or foreign affairs of the United States.
        It seems to fit into the category of being eligible for
    surveillance and also, by almost every American you would ask,
    be an unreasonable communication to surveil.
        Yet we would have no way of knowing whether the
    surveillance of that communication was reasonable, because
    there is no court review under this new version of the law, and
    there is no judge that is going to apply a reasonable standard
    or a constitutional standard to that surveillance.
        Is that an accurate depiction or concern?
        Mr. Barr. It is both an accurate depiction and ought to be
    a very major concern for certainly all of us.
        Not only is the scenario that the gentlelady from Florida
    laid out a very accurate one, the fact of the matter is that
    the minimization procedures that are incorporated now in the
    FISA law as a result of P.L. 110-55 are dramatically different
    from earlier and other minimization procedures.
        They are essentially just a sham. There is virtually no way
    that a court, even with the limits of review that it now has in
    this category of communication, could do anything more than
    simply pass judgment on whether the Government has made a
    clearly erroneous decision that somebody--that one of the
    parties is located overseas.
        Ms. Wasserman Schultz. I mean, and for those that would
    think that my question is an over simplification or is not
    reasonable to suspect that the Government might surveil that
    kind of communication, we do have Iraqi children blowing
    themselves up.
        So I mean, there is a use of children in an entirely
    inappropriate and unacceptable way in that country and in other
    countries.
        So it is not unreasonable to suspect or worry that innocent
    communications could be surveilled because of the difference in
    values or--well, values would be the best way to describe it,
    with how children are treated in other countries--some other
    countries versus ours.
        And thank you for your comment.
        And, Ms. Spaulding?
        Ms. Spaulding. I think the example you gave is appropriate,
    and I would point out that by the example you gave, if the
    Government is targeting that Iraqi child and not your child,
    that they don't even have to be discussing foreign
    intelligence----
        Ms. Wasserman Schultz. Right.
        Ms. Spaulding [continuing]. That, in fact, it is simply
    taken entirely out of the definition of electronic
    surveillance. The only requirement is that the target be
    overseas.
        Ms. Wasserman Schultz. And the reason that I brought up
    this example is because it really--this is an insidious law,
    and it would be really--I have just been sitting here over the
    3 hours thinking it would be really hard for most of our
    constituents, as individual Members of Congress, listening to
    this hearing, to grasp a lot of what we are talking about.
        And not that we don't have smart constituents, we do, but
    you know, if you don't have a law degree, it is hard to follow
    what we are saying and apply it to your everyday situation and
    wonder and worry how the law that we changed in July would
    potentially impact you.
        So I asked that question because I wanted to use an example
    of how an average, everyday person, not even an adult, but a
    kid could be impacted by this insidious law.
        And, Professor Turner, I assume you will not agree with my
    characterization, so I would love to hear your opinion.
        Mr. Turner. I think it is a good question. I think the
    Supreme Court has told us in these kinds of cases your daughter
    has fourth amendment rights.
        And in assessing the degree to which the Government can
    search--you know, can intrude upon your privacy, if you will,
    we balance the two interests. The strongest governmental
    interest of all is national security, protecting--preventing
    the next 9/11.
        Now obviously, NSA doesn't have enough people to sit there
    and read the billions of e-mails that flow back and forth.
    Presumably--and I have been out of the business 23 years, so I
    don't know anything classified anymore.
        But presumably, they have computer programs that scan e-
    mails and say who is talking to bin Laden, who is talking to
    here, who is using the words ``blow up America'' or whatever,
    and then maybe somebody looks at that, and so it is possible--
    --
        Ms. Wasserman Schultz. But, Professor----
        Mr. Turner [continuing]. That somebody would spend 10
    seconds scanning at your daughter's e-mail and trying to find
    the one that--the odds are good that would go through with no
    trouble at all.
        Ms. Wasserman Schultz. But my time has expired, but----
        Mr. Turner. Go ahead.
        Ms. Wasserman Schultz [continuing]. But kids use terms like
    that. Kids don't----
        Mr. Turner. I know.
        Ms. Wasserman Schultz [continuing]. I mean, kids talk about
    blow up and use----
        Mr. Turner. I know that, and----
        Ms. Wasserman Schultz. They use extreme words.
        Mr. Turner [continuing]. It is possible they might see
    that, and it would take them 2 or 3 seconds to say kids,
    ignore, and then minimization procedures would say protect her
    name, nothing goes to anybody on this, and the record gets
    destroyed.
        And the question is is it so important when we are trying
    to find terrorists--you know, is this so offensive to her that
    somebody might look at this--I mean, every time we do a
    fingerprint search, Government computers search my fingerprint
    records.
        They have got at least 10 copies. I was an Eagle Scout, and
    I sent them myself back in the 1950's, and then every security
    clearance they get a new set. You know, that is not, in my
    view, a violation of my privacy, the fact they have a computer
    scan through that.
        The fact that NSA scans telephone records to find out what
    members are talking to terrorists--they probably scan my
    number. That is such a minor violation of any right I may have.
    It doesn't bother me in the least.
        Ms. Wasserman Schultz. But you are using words like
    ``hopefully'' and ``probably.'' And the point is that without--
    --
        Mr. Turner. Well, here is the key.
        Ms. Wasserman Schultz [continuing]. A court review, we
    really don't know.
        Mr. Turner. The alternative is if we say we don't want our
    Government seeing any e-mails that have U.S. persons on them
    without a warrant, what that means is bin Laden, every e-mail
    he sends he is going to copy some American person.
        Maybe the way he will do it, the subject line will be
    ``cheap Mexico Viagra,'' two pages of gibberish, and then pick
    up the explosives here and take them to the Capitol building.
        Mr. Barr. With all due respect----
        Mr. Turner. If we say we have to have a warrant, we can't
    read that.
        Mr. Barr [continuing]. That is a red herring. We are not
    talking about Osama bin Laden here.
        Ms. Wasserman Schultz. Right.
        Mr. Barr. If the Government knows where Osama bin Laden is
    if he is talking on the phone, one would hope they would do
    something about it rather than listen in.
        Mr. Turner. But if we say they can't look at anything that
    has got U.S. person without a warrant, we are going to give him
    the easiest way to immunize his whole communication system.
        Ms. Wasserman Schultz. And a court review would resolve
    that. That is my point.
        Mr. Turner. In each case, you mean. Are we going to have
    the people--you know, what if----
        Ms. Wasserman Schultz. As the Chairman said, Professor
    Turner, a court review has never and would never stop the
    actual surveillance from occurring.
        Mr. Turner. Well, the old rule is if it is legal to
    intercept, say, a drug dealer, you know, who we have gotten a
    warrant for, we can listen to people who talk to him.
        As soon as we find out they are unrelated to a drug deal,
    we erase it, but we can listen to it. And if they say, ``I am
    calling to buy drugs,'' we can use it to prosecute them.
        In the same way, it is perfectly legitimate to target bin
    Laden and probably to target just about any other foreign
    national we feel the need to do, and that means there is
    probably no reasonable expectation of privacy when you
    communicate.
        But the reality is we don't have the time or the interest,
    you know, to read communications between little girls. That is
    to say--remember, NSA is overseen by 100 people in their office
    of inspector general.
        Ms. Wasserman Schultz. Professor Turner, I want to be
    respectful of my colleagues.
        Mr. Barr. Is the professor saying----
        Mr. Turner [continuing]. There are protections.
        Mr. Barr. If I might, is the professor suggesting that
    there is no reasonable expectation of privacy in any
    communication with a foreign person or somebody outside the
    country?
        Mr. Turner. The way we test that is to balance interests
    and ask whether society is willing to recognize an expectation
    of privacy----
        Mr. Barr. No, that is not the test.
        Mr. Turner [continuing]. In each case.
        Mr. Barr. Is that what you are saying, that you have no
    reasonable expectation of privacy if you simply call somebody
    or e-mail somebody overseas?
        Mr. Turner. If you are commissioning with someone who the
    Government has reason to believe is a foreign terrorist----
        Mr. Barr. No, that isn't what I said.
        Mr. Turner [continuing]. I don't think anyone should have
    an expectation----
        Mr. Davis. Mr. Chairman, could I ask the witnesses to yield
    to the Members?
        Mr. Turner. Sorry.
        Ms. Wasserman Schultz. I was enjoying it, Mr. Chairman, so
    it is perfectly okay with me.
        Mr. Turner. Former Member.
        Mr. Conyers. I am not sure if we can accommodate the
    gentlemen.
        Ms. Wasserman Schultz. I really appreciate my colleagues'
    indulgence.
        And, Professor, my point is that this very discussion that
    we have been having for the last few minutes literally points
    out that the changes we made cry out for reform and that we
    cannot cast aside people's constitutional rights.
        Mr. Turner. But if there is no way to distinguish----
        Ms. Wasserman Schultz. I think my time has expired.
        Mr. Turner. If there is no way to distinguish, you are
    saying we shouldn't listen to the terrorists because we might
    pick up a communication involving a young American school girl.
    That is the issue.
        Ms. Wasserman Schultz. No. The issue is that we have a lot
    of innocent communication that we are capturing unreasonably
    and unconstitutionally and that the law should be reformed so
    that we don't do that, and people don't have to sit and wonder
    whether the Government is listening to them for no good reason.
        And I appreciate it, and my time has expired.
        Mr. Conyers. Hank Johnson, Georgia?
        Mr. Johnson. Thank you, Mr. Chairman.
        And I would note for the record that my kids would, from
    time to time, place in an e-mail the fact that new Jay-Z is
    ``blowing up,'' and so I guess that they would trigger a review
    of their e-mails.
        But I am concerned about the interview that Director of
    National Intelligence Mike McConnell gave to the El Paso times,
    and you alluded to that interview, Congressman Barr, and you
    mentioned that Mr. McConnell stated that if we continue to
    debate this issue in Congress, then Americans are going to die.
        And you were attacked in this hearing for alluding to that
    statement. And I have a copy of the transcript of the interview
    with Mr. McConnell, and I will just read that part for the
    record.
        The question says, ``So you are saying that the reporting
    and the debate in Congress means that some Americans are going
    to die?'' The answer, ``That is what I mean, because we have
    made it so public. We used to do these things very differently,
    but for whatever reason, you know, it is the democratic
    process, and sunshine is a good thing.''
        And so he definitely said that if Congress continues to
    discuss this then Americans are going to die.
        And, Ms. Spaulding, I want to ask you, as a former CIA
    official and former executive director of the National
    Commission on Terrorism, can you tell us what your concerns
    would be about that statement that Mr. McConnell made in the
    context of the passage of this law that we are talking about
    today, the amendment to FISA?
        Ms. Spaulding. I think it is a most unfortunate comment on
    the part of Director McConnell. And we have discussed
    previously today the importance, not just to our civil
    liberties, but to our national security of having an open and
    robust and informed public discussion and debate.
        The thing that I think is so tragic about comments like
    that of Director McConnell is that it does seem to reflect a
    fundamental lack of faith in the strength of our democratic
    system.
        And I think it is important to remember, to always keep in
    mind, that this system of checks and balances was not created
    by a bunch of fuzzy-headed liberals.
        This was a system that was created by hard-nosed
    pragmatists who had just fought a war and faced a time of great
    peril.
        Mr. Johnson. These are the same----
        Ms. Spaulding. This was the way to keep the country strong.
        Mr. Johnson [continuing]. Same founding fathers that have
    been cited repeatedly by Professor Turner.
        And, Professor Turner, you would agree that our
    Constitutional sets up a separation of powers between the three
    branches of Government--presidential, legislative and
    judicial--correct? You would agree?
        Mr. Turner. I would agree, but some of those powers are not
    checked.
        Mr. Johnson. Well, no, no, you would agree----
        Mr. Turner. That is to say, pardon power, for example, is
    unchecked.
        Mr. Johnson. Well, listen to my question, now. And you
    answered--you agreed that we set up a separation of powers.
        Mr. Turner. With some checks.
        Mr. Johnson. And then one of the things that makes that
    separation so important is because the three branches are co-
    equal, are they not?
        Mr. Turner. Well, they are co-equal, but they also----
        Mr. Johnson. Thank you.
        Mr. Turner [continuing]. Have their own powers that are
    independent of the others.
        Mr. Johnson. That is true. They are separate--separation of
    powers--co-equal. And the thing that gives substance to this
    co-equality is the concept of checks and balances.
        Would you agree to that, Congressman Barr?
        Mr. Barr. I would certainly agree with that.
        Mr. Johnson. And, Congressman Barr, how can there be a
    check and balance on the executive branch if there is no
    judicial oversight or legislative input into an executive
    function?
        Mr. Barr. It creates a nullity. There is none.
        Mr. Johnson. What is your response to that, Professor
    Turner?
        Mr. Turner. It is fairly easy. And I document it briefly in
    my testimony. In the area of foreign affairs, the founding
    fathers, the people you are talking about----
        Mr. Johnson. So you are saying that there is no check and
    balance----
        Mr. Turner. Well, to give you one example----
        Mr. Johnson [continuing]. In foreign affairs?
        Mr. Turner [continuing]. Three days after Jefferson wrote
    his memo----
        Mr. Johnson. Is that true or is that false? No check and
    balance----
        Mr. Turner. There are some checks.
        Mr. Johnson [continuing]. In the President's conduct of
    foreign affairs?
        Mr. Turner. In Jefferson's memo, he said subject to the
    negatives given to the Senate. For example, the Senate can
    block an ambassadorial nominee. The Senate can block a treaty.
    The House, for example, in the----
        Mr. Johnson. Well, we understand that, but we----
        Mr. Turner [continuing]. The House clearly can control
    that.
        Mr. Johnson. I understand. And you have kind of graced us
    with a historical perspective as we have gone through this
    hearing, and I appreciate that. But my time is----
        Mr. Turner. Okay.
        Mr. Johnson [continuing]. Running.
        I did want to ask Mr. Barr, Congressman, if two Americans
    in the United States each sent--well, let me ask this question.
        If there was an American soldier in Iraq that sent an e-
    mail to his girlfriend here in the United States, then under
    this new FISA act that communication can be monitored because
    it concerns a person who is outside of the United States. Is
    that correct?
        Mr. Barr. That is correct.
        Mr. Johnson. And there is no need for a warrant?
        Mr. Barr. That is correct, too.
        Mr. Johnson. No judicial oversight is called for?
        Mr. Barr. Correct.
        Mr. Johnson. And that can be for a student who may be over
    in England somewhere and communicate back with a phone call to
    their parents. That phone call can be monitored.
        Mr. Barr. That is correct.
        Mr. Johnson. A doctor who is traveling overseas may call a
    patient here in the U.S., and that phone call can be monitored.
        Mr. Barr. That is correct.
        Mr. Johnson. That e-mail correspondence can be monitored.
        Mr. Barr. Correct.
        Mr. Johnson. And, Ms. Spaulding and Mr. Halperin, isn't it
    a fact that this new act would allow for the physical search of
    premises inside of the United States if it concerns a person
    located outside the United States?
        Ms. Spaulding. There are several criteria. For this, it
    would be under 105(b). And it has to concern a person outside
    the United States.
        As I read it, it has to require the assistance of someone
    to gain access to a communication, which I can only assume the
    Government meant and was focused on electronic surveillance,
    but the language is unfortunate because it, as I have pointed
    out----
        Mr. Johnson. Overly broad.
        Ms. Spaulding [continuing]. In my testimony, is much, much
    broader.
        Mr. Johnson. Yes.
        Ms. Spaulding. But yes, assuming that it fit that fact
    pattern, the Government would be able to, because of the
    ``notwithstanding any other law,'' use this authority to
    conduct a physical search.
        Mr. Johnson. Thank you. I would----
        Mr. Halperin. Can I just--Mr. Johnson, I don't think that
    that is correct, because the provision also says that it cannot
    be electronic surveillance. And I think the interception of the
    e-mail would be electronic surveillance.
        But I think the important point is that this statute uses a
    whole set of new words. The ``notwithstanding'' language
    doesn't appear anyplace else. The ``directed at'' rather than
    ``targeted at'' doesn't appear anyplace else.
        The ``concerning a person overseas'' doesn't appear
    anywhere else in the statute. And nobody has any idea what
    those words were intended to mean or what a court will
    interpret them to mean or what the Attorney General now thinks
    they mean.
        And that is not a way to legislate when it involves the
    constitutional rights of Americans.
        Mr. Johnson. Well, I agree, and I have confidence that
    under the oversight of this Chairman of this Committee we will
    consider legislation to amend this act and to correct these
    deficiencies.
        And I want to applaud the Chairman for holding this hearing
    today. Thank you.
        Mr. Conyers. Thank you, Judge Johnson.
        I am pleased now to recognize Betty Sutton of New York.
        Ms. Sutton. Ohio.
        Mr. Conyers. Ohio, I am sorry.
        Ms. Sutton. Love New York, but love my constituents in
    Ohio.
        Mr. Conyers. Excuse me.
        Ms. Sutton. That is okay. Mr. Chairman, thank you very,
    very much.
        And thank you to the panelists for your testimony. It has
    been quite incredible to sit here and listen and take it all
    in.
        I am taken by the testimony referencing the importance of
    the changes--words matter--words matter--the changes in the
    terms and the language that we find in this new act.
        And I think that it is only heightened--the importance of
    those changes is heightened when we see some of the other
    things that we have heard discussed today here about the
    interview that Mr. McConnell has given.
        And certainly, to characterize, I guess, carefully,
    suggestions that to have a discussion about this is in and of
    itself threatening to our security--I find that to be a very
    dangerous place for us in this country to be.
        I would like to just begin--Mr. Turner, if you could just
    answer a question for me so that I understand where you are
    coming from.
        Do you think that a warrantless interception of domestic-
    to-domestic mail by our Government on a belief that it concerns
    foreign intelligence does not violate the fourth amendment?
        Mr. Turner. The Supreme Court has left that open. The
    courts that have considered it--if the purpose is foreign
    intelligence--you know, the distinction the courts have drawn--
    the Supreme Court has said if it is a terrorist issue and the
    threat is not tied to a foreign power, it is--you know, it
    absolutely requires a warrant in every situation.
        If it involves a foreign power, the Supreme Court punted.
    As I discussed--I actually discuss that case--we know how the
    judges favor, because one of the clerks has written about it,
    and it is fairly clear to me that had the Keith case been a
    foreign power case they would have gone the other way on it.
        We know that Lewis Powell, who had been president of the
    American Bar Association, had set up and sat on this Committee
    that looked at this--had said that foreign intelligence
    wiretaps are part of an exception to the fourth amendment. You
    know, you can do it.
        Now, the key to this is, again, if you wind up picking up--
    and it doesn't involve a terrorist threat or foreign
    intelligence, you need procedures to make sure that the privacy
    rights are protected. You know, we have been doing this for 30
    years.
        You need to make sure that any names of Americans and so
    forth are deleted, any communications about it--even if it has
    foreign intelligence value, you normally take the names of
    Americans out, unless they are terrorists or something like
    that.
        But I think this is an issue--every court to decide it has
    said yes, the President has independent constitutional
    authority to engage in foreign intelligence wiretaps.
        You know, again, we have got all sorts of supervision
    within the system for abuse. If the President were to say,
    ``NSA, give me every conversation you can get from Ted Kennedy
    because he traveled to England and there is some foreign
    terrorists there,'' this would be in the Washington Post within
    an hour, probably, because there are 100 overseers just in the
    I.G. shop.
        There are many people. And the people in the community
    don't want to violate the law. So this is not like it was in
    the 1960's. We have all kinds of internal checks.
        Anybody in the intelligence community who believes
    something improper or illegal is being done can go directly to
    my old job. My job was to sit in the White House and try to
    make sure that all of the laws, including FISA, were being
    obeyed.
        And although I thought it was unconstitutional, I said we
    are--you know, this is the law. We can challenge it but it will
    be obeyed. And we did obey it.
        Go ahead, sorry.
        Ms. Sutton. Mr. Turner, I just--my question was, I think,
    much, much narrower than your response, and I am not really
    sure--maybe you were answering it, and I just didn't catch it.
    Okay. So your answer is you don't know. It may be that----
        Mr. Turner. Yes.
        Ms. Sutton [continuing]. A warrantless interception of
    domestic-to-domestic communication like that on the--because a
    belief that it concerns foreign intelligence may violate the
    fourth amendment, so something that provided for that may
    violate the fourth amendment.
        Mr. Turner. The only exception would involve foreign
    intelligence, and there we don't know. The Supreme Court has
    not ruled it. But if it did not involve foreign intelligence,
    it would require a warrant.
        Ms. Sutton. Okay. Thank you. Thank you, Mr. Turner.
        I also just want to go back real quickly to Mr. McConnell's
    claim and some of the statements that he has made,
    specifically, the claim that 100 or less Americans have been
    targeted for surveillance.
        First, at the same time that the Administration refuses to
    provide information on surveillance programs to Congress
    because it is classified, they seem to be selectively releasing
    classified information when they think it will help their
    position.
        And that is a great concern to me. And for all the reasons
    that you all have articulated here today, I think it is
    concerning for the public and the trust of the public.
        Second, that 100 or less number tells us absolutely nothing
    about the bigger and more disturbing question of how many
    Americans have had their phone calls listened to whether they
    were targeted or not.
        Mr. Halperin, could you just tell me what you think about,
    you know, those concerns?
        Mr. Halperin. Well, I think they are real, but I think they
    are very hard questions. And I think the only way to resolve
    what to do here is through serious good faith negotiations
    between the Committees of jurisdiction and the executive
    branch. And that is not what happened here.
        I think on the one hand it is very easy. If it is a
    conversation between two Americans, you need a warrant based on
    probable cause.
        If it is two foreigners talking to each other, you don't
    need a warrant, and even though the conversation runs through
    the United States, I think Congress should and would give the
    authority to do it.
        The hard question, as you say, is you are targeting
    somebody abroad who you reasonably believe is not only abroad
    but is a terrorist--you are trying to collect terrorist
    information--and then they have conversations with Americans.
        And the question is--and you have allowed the surveillance
    to go on without an individual warrant. Because if you get an
    individual warrant on bin Laden, for example, then it doesn't
    matter how many Americans he talks to.
        You can listen to all of those conversations. You have to
    minimize the distribution of information about the Americans,
    unless it is necessary to understand the conversation. But that
    is all well understood.
        The problem comes because the executive branch wants the
    authority to listen to these calls without a warrant or with a
    generalized warrant that says you can listen to all the calls,
    and then what happens if there are a lot of Americans?
        And that is why I thought the direction that the Democrats
    were going in, and others in the Congress, which was to say the
    court has to be notified, the Congress has to be notified, of
    how many calls of Americans you are picking up on this
    particular surveillance--and at some point, if it is a
    significant number, then you have got to go back to the court
    and get a different kind of warrant.
        That seems to me a reasonable balance that doesn't
    interfere with anything that the director said he needed to be
    able to do. And I think what we never got, as far as I can
    tell, was an explanation from the director as to why that was
    not okay.
        What we got was it is not okay, and if you don't pass this,
    you are going to be responsible for the next terrorist attack.
        What I think was the responsible answer was let me explain
    to you why that is too tightly written, or needs some more
    flexibility, or some greater time limits on it. But that has to
    be the way you solve the problem.
        And the Administration, I think, has to be forced to
    engage, even if you say we are not extending this unless it
    does, to answering that question in a precise and serious way.
        Ms. Sutton. Thank you very much, Mr. Halperin.
        Mr. Conyers. Thank you very much.
        The Chair recognizes the former assistant U.S. attorney
    from Alabama, Artur Davis.
        Mr. Davis. Thank you, Mr. Chairman.
        Mr. Turner, Professor Turner, let me begin with you in the
    limited time that I have today. One of the reasons why I think
    you have run into so much skepticism from this side of the
    aisle is there is an inherent contradiction that I want to
    point out to you.
        On one hand, you, I think pretty accurately, describe the
    Administration's position on its authority. You describe an
    executive who essentially has untrammeled authority with
    respect to national security, and national security is
    essentially whatever the President decides it is.
        You have said that several times. I think that it is a
    reasonably good summary of what the Administration has said in
    its pleadings.
        So on the one hand, you have a very expansive view, and
    then when you talk about how this statute is going to be
    administered, all of a sudden you suggest that this
    Administration, which has such an expansive view of its power,
    is going to all of a sudden become very restrained.
        You suggest, for example, that an Administration, this
    Administration, as it carries out this statute will take
    special care to make sure that it doesn't cross particular
    lines.
        You suggest that the Administration will take special care
    to make sure that there is the strongest minimization process
    that we can contemplate. Those two don't work together.
        And I say that, and my perspective is a little bit unique,
    Professor Turner, because I am the only person on this side of
    the aisle who is here today who actually voted for the bill
    that passed the House.
        So as someone who agrees with more of what Dan Lungren said
    substantively than not, I am still troubled by a lot of what I
    have heard today. I am troubled by this expansive portrait of
    an executive and this theory that somehow that same executive
    will turn around and be restrained.
        What I worried most about when I cast this vote was the
    following, that the Bush administration has no history
    whatsoever of executive restraint.
        I cast the vote I did for one simple reason. After January
    20th, 2009 there will be a different person in the White House.
    And I trust that the next person, frankly, will be much wiser
    in the use of those powers.
        The next observation that I want to make is this one.
    Several times today you made the correct point that our country
    is facing an extreme threat. Several times today you made the
    correct point that these are unusual circumstances and they
    demand unusual measures.
        But I want you to be cognizant of something else. What has
    made it near impossible to assemble bipartisan consensus around
    these issues is the following.
        For the last 6 years, a lot of people on your side of these
    issues, frankly, on the President's side of these issues, have
    taken the position that if you don't agree that somehow you are
    not sufficiently zealous in your concern for American security.
        On numerous occasions, the Administration has taken the
    position that, as the President famously said in 2004, you are
    either for us or you are for the terrorists.
        The consequence of that kind of rhetoric is what you have
    now, a sharp partisan divide that very few of us cross, over
    issues that 6 years ago commanded a broad consensus.
        The Patriot Act passed this House with an overwhelming
    vote. The reason every single subsequent vote on the boundaries
    of the fourth amendment--the reason they have all lost their
    bipartisan character is largely because of the rhetoric of the
    Administration, and this rhetoric that suggests you have got to
    pick or choose, and if you don't follow this particular line
    you are not zealous enough about national security.
        I don't buy that. As someone who voted with the
    Administration on this issue, I don't buy that. And it leads to
    my last observation.
        If the Administration abuses this power, if the
    Administration takes this latest grant of authority and they
    treat it as cavalierly as they have treated the Patriot Act, or
    as cavalierly as they treated the authorization to go into
    Iraq, or as cavalierly as they have interpreted the
    authorization for force in Afghanistan, then I think I can
    safely represent to this entire panel and to the
    Administration, if it is listening to this, that it will be
    literally impossible to construct a bipartisan consensus around
    these issues.
        We are down to 41 Democrats who crossed party lines in this
    last vote. If this authority is pushed in the way this
    Administration is eminently capable of pushing it, that number
    will shrink to nothing.
        And that will be a cost not just on this particular term
    and this particular space in the political universe, but it
    will have a long-term cost on the relationship between the
    executive and the legislative.
        And I will yield back, Mr. Chairman.
        Mr. Conyers. Thank you so much.
        Mr. Barr, Attorney Spaulding, Dr. Turner, Mr. Halperin,
    your contribution really can't be appreciated sufficiently with
    words. And your endurance should also be taken note of as we
    conclude this hearing.
        It has been an important way to begin the reexamination of
    FISA, and you have made the Committee and the Congress very
    proud of how we have put together our first record.
        We thank you again and, of course, all the Members for
    their contributions.
        The Committee stands adjourned.
        [Whereupon, at 1:38 p.m., the Committee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

           Prepared Statement of the Honorable Sheila Jackson Lee, a
        Representative in Congress from the State of Texas, and Member,
                           Committee on the Judiciary

     Prepared Statement of the Honorable Steve Cohen, a Representative in
      Congress from the State of Tennessee, and Member, Committee on the
                                   Judiciary

            Senate bill S. 1927, the ``Protect America Act of 2007''

     CRS Report for Congress entitled ``P.O. 110-55, the Protect American
      Act of 2007: Modifications to the Foreign Intelligence Surveillance
                             Act,'' August 23, 2007

         Letter from Denise A. Cardman, Acting Director, American Bar
    Association (ABA), dated September 14, 2007, to Chairman John Conyers,
                     Jr., and Ranking Member Lamar S. Smith

    Report of the Task Force on Domestic Surveillance in the Fight Against
        Terrorism, the American Bar Association (ABA), February 13, 2006

     Letter from John W. Whitehead, Founder and President, The Rutherford
       Institute, dated September 7, 2007, to Chairman John Conyers, Jr.

       Prepared Statement of Caroline Frederickson, Director, Washington
           Legislative Office, American Civil Liberties Union (ACLU)