[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)





















                                 
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