[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 II)

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 18, 2007

                               __________

                           Serial No. 110-79

                               __________

         Printed for the use of the Committee on the Judiciary


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


















                     U.S. GOVERNMENT PRINTING OFFICE

37-844 PDF                 WASHINGTON DC:  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001










                       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 18, 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..     4
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
The Honorable J. Randy Forbes, a Representative in Congress from 
  the State of Virginia, and Member, Committee on the Judiciary..     7

                               WITNESSES

The Honorable J. Mike McConnell, Director of National 
  Intelligence
  Oral Testimony.................................................     9
  Prepared Statement.............................................    13
The Honorable Kenneth L. Wainstein, Assistant Attorney General 
  for National Security, United States Department of Justice
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Article from The Wall Street Journal,, dated September 18, 2007, 
  submitted by the Honorable Lamar Smith.........................   101
Article from Newsweek magazine, dated May 22, 2006, submitted by 
  the Honorable Steve Cohen......................................   111

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Ranking Member, 
  Committee on the Judiciary.....................................   123
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................   125
Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, Committee 
  on the Judiciary...............................................   133
Questions submitted for the Record to the Honorable J. Mike 
  McConnell, Director of National Intelligence...................   134
Questions submitted for the Record to the Honorable Kenneth 
  Wainstein, Assistant Attorney General for National Security, 
  United States Department of Justice............................   155

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

                              ----------                              


                      TUESDAY, SEPTEMBER 18, 2007

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:53 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, Sanchez, Cohen, 
Johnson, Sutton, Baldwin, Schiff, Wasserman Schultz, Ellison, 
Smith, Coble, Lungren, Issa, Pence, Forbes, King, Feeney, 
Franks, Gohmert, and Jordan.
    Staff present: Lou Debaca, Majority Counsel; Perry 
Apelbaum, Majority Staff Director and Chief Counsel; Michael 
Volkov, Minority Counsel; and Joseph Gibson, Minority Chief 
Counsel.
    Mr. Conyers. The Committee will come to order.
    Welcome, everyone. Without objection, the Chair is 
authorized to declare a recess of the Committee, if necessary.
    We are here today for the hearing on Warrantless 
Surveillance and the Foreign Intelligence Surveillance Act: The 
Role of Checks and Balances in Protecting Americans' Privacy 
Rights.
    There are few rights that are more fundamental to our 
democracy than the right to privacy. And there are few powers 
that are more intrusive or more dangerous than the Government's 
ability to conduct surveillance on its citizens.
    The conflict between this right and these powers go to the 
very core of who we are as a Nation. For more than 30 years, we 
have relied on the Foreign Intelligence Surveillance Act to 
strike the appropriate balance between the Government's need to 
protect our citizens from foreign attack and our citizens' 
right to be free from unreasonable searches and seizures.
    The heart of that bargain was that Government could indeed 
use its awesome power to conduct surveillance, but subject to 
independent court review, although a somewhat cursory and 
secret court review.
    Six years ago, the Administration unilaterally chose to 
engage in warrantless surveillance of American citizens without 
court review.
    And 6 weeks ago, when the scheme appeared to be breaking 
down, the Administration insisted that we immediately pass a 
law they had drafted for us that essentially transferred the 
power of independent review from the courts to the attorney 
general. And that was done without hearings.
    We are here today to consider whether that was the 
appropriate course of action and what this Congress can do to 
restore the proper balance. What we have learned over the last 
6 weeks does not give this Chairman much cause for comfort.
    First, we have learned that the Administration wrote their 
bill so broadly and loosely that it permits the Government to 
intercept any and all electronic communications from United 
States citizens to anyone even thought to be abroad at the 
time.
    This would include reporters, elected officials and 
political enemies of the Administration, for example.
    Second, we have learned that, also because of the broad 
manner in which the Administration drafted its bill, the new 
Government power is not even limited to electronic 
surveillance.
    It could apply to business records, library files, personal 
mail and even domestic searches of our homes, as long as the 
foreign person was somehow implicated.
    Third, we have learned that even after weeks of 
negotiations and months of promises, we still have no 
meaningful oversight either of the old warrantless surveillance 
program or the new legislation signed in August.
    The Senate's subpoenas continue to be ignored, and the 
House may be on a similar collision course.
    The right to privacy is too important to be sacrificed in a 
last-minute rush before a congressional recess, which is what 
happened.
    The need for national consensus in our efforts to track 
down terrorists and foil their plots is too important to ignore 
the constructive concerns of the Congress and the courts.
    We on this Committee are ready and willing to work with the 
Administration, but they need to show us that they are ready to 
fix this broken law and ready to truly join forces in common 
cause against terror.
    Our system of democracy demands no less, and I am confident 
that the Committee on the Judiciary in the House of 
Representatives can accomplish these complex aims.
    And I am pleased now to recognize the distinguished Ranking 
Member of the Judiciary Committee, Lamar Smith, of Texas.
    Mr. Smith. Thank you, Mr. Chairman.
    The modernization of the Foreign Intelligence Surveillance 
Act is one of the most critical issues facing the House 
Judiciary Committee.
    I am encouraged that we have the Director of National 
Intelligence, Michael McConnell, and the Assistant Attorney 
General for the National Security Division, Ken Wainstein, here 
today to provide the Committee with important information on 
the real-world implications of FISA reform.
    This is the first appearance of the Director of National 
Intelligence before the Judiciary Committee. Director 
McConnell's intelligence and national security career spans 
over 30 years. He has served under both Democratic and 
Republican Presidents, including as the director of the 
National Security Agency in the Clinton administration.
    Despite his impressive nonpartisan service in the 
intelligence community, his motives have been impugned simply 
because he supports a policy he believes in. Such partisan 
criticism distracts us from what should be a nonpartisan issue, 
protecting our country from terrorist attacks.
    Foreign terrorists are committed to the destruction of our 
country. We are at war with sophisticated foreign terrorists 
who are continuing to plot deadly attacks. It is essential that 
our intelligence community has the necessary tools to detect 
and disrupt such attacks.
    Foreign terrorists have adapted to our efforts to dismantle 
their operations. As their terrorist operations evolve, we need 
to acquire new tools and strategies to respond to their 
threats.
    We have a duty to ensure that the intelligence community 
can gather all the information they need to protect our 
country.
    In the 30 years since Congress enacted the Foreign 
Intelligence Surveillance Act, telecommunications technology 
has dramatically changed and terrorists have employed new 
techniques to manage and expand their terrorist networks.
    Before we left for the August recess, Congress passed 
important legislation to fill a gap in FISA. We need to make 
that fix permanent and pass other measures needed to prevent 
another terrorist attack against our Nation.
    FISA does not require a court order to gather foreign 
communications between foreign terrorists outside the United 
States. The real issue is this. Should FISA require a court 
order when a known foreign terrorist communicates with a person 
inside the United States?
    The intelligence community and 30 years of experience under 
FISA say no. For the last 30 years, FISA never required such an 
order. Requiring a court order for every phone call from a 
foreign target to a person inside the U.S. is contrary to FISA 
and common sense.
    How can the intelligence community anticipate a 
communication from a foreign terrorist to a terrorist inside 
our country?
    In much the same way as a criminal wiretap, FISA provides 
and has provided for 30 years specific minimization procedures 
to protect the privacy of persons inside the United States with 
whom a foreign target may communicate.
    It is unclear why now, after all this time, some seek to 
dismantle rather than modernize FISA. Requiring separate FISA 
authority for these calls could be a deadly mistake.
    Calls between a foreign terrorist and a person located 
inside the United States should be minimized in accordance with 
well-established procedures. To do otherwise is to jeopardize 
the safety of our Nation.
    The Director of National Intelligence made it clear that 
FISA modernization is essential to the intelligence community 
to protect America from terrorist attacks.
    The American people understand what is at stake. Almost 60 
percent of Americans polled on the subject of FISA reform 
supported the Protect America Act. Less than 26 percent opposed 
it.
    The simple fact is that Americans support surveillance of 
foreign terrorists when they contact persons in the United 
States.
    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 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 operations.
    These reforms are long overdue. They should be debated 
without exaggerated claims of abuse or unfounded horror stories 
of threats to civil liberties.
    We should maintain our commitment to winning the war 
against terrorism. We must do all that we can to ensure that 
the words ``never again'' do, in fact, ring true across our 
country.
    Mr. Chairman, thank you for yielding the time, and I will 
yield back.
    Mr. Conyers. Thank you, Mr. Smith.
    The Chair will now recognize the following Subcommittee 
Chairmen and Ranking Members for 2.5 minutes each. I will 
recognize the Ranking Member of the Crime Subcommittee, Randy 
Forbes; the Chairman of the Subcommittee on Crime, Bobby Scott; 
the Ranking minority Member on the Constitution Subcommittee, 
Trent Franks, of Arizona, and we will begin with the Chairman 
of the Constitution Subcommittee, Jerry Nadler, of New York.
    Mr. Nadler. Thank you.
    I would like to begin by thanking Chairman Conyers for 
holding this hearing today.
    It is vitally important that we continue to examine the 
recently enacted White House bill that drastically alters the 
Foreign Intelligence Surveillance act.
    The so-called Protect America Act was rushed through 
Congress just before the August recess and gives unnecessary 
license for the Administration to wiretap Americans without 
court supervision and, in my opinion, to trash the fourth 
amendment.
    I am particularly troubled by the Administration's ongoing 
charm offensive. We have seen similar campaigns waged around 
other controversial and over broad programs--the PATRIOT Act, 
the national security letter authority, the Military 
Commissions Act and others.
    Just last week, the Director of National Intelligence, 
Michael McConnell, had to retract earlier statements that the 
act helped German authorities thwart a suspected terrorist plot 
earlier this month.
    Also, Assistant Attorney General Kenneth Wainstein wrote 
lawmakers to say the act does not authorize physical searches 
of homes, domestic mail or people's personal effects and 
computers.
    Let's have some truth in advertising. The act gives the 
President almost unfettered power to spy without traditional 
approval, not only on foreigners, but on Americans.
    The National Security Agency is now permitted without a 
warrant to access 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 citizens, who are reasonably believed to be 
located outside the United States, not reasonably believed to 
be terrorists or in communication with any foreign power, but 
simply to be outside the United States.
    I, for one, have little confidence in what this 
Administration may consider reasonable in any event. We must 
not forget the lessons of history. Both the fourth amendment 
and the Foreign Intelligence Surveillance Act were responses to 
abuses by Government officials who thought they were above the 
law.
    We all agree that we want to protect our national security 
and that foreign intelligence gathering is fundamentally 
different from domestic surveillance. We should, however, also 
agree that the power to invade people's privacy must not be 
exercised unchecked.
    As we consider how to fix the Protect America Act, we must 
restore the fundamental freedoms that have been lost because of 
our recklessness. We must focus surveillance on terrorist 
activity and provide meaningful court review to protect the 
rights of Americans who will be spied on in our country.
    We must not trust this or any other Administration to 
police itself. We must act now to restore much-needed checks 
and balances into this damaged law. We must restore respect for 
our Constitution that this Administration obviously does not 
care about.
    Thank you. I yield back the balance of my time.
    [Applause.]
    Mr. Conyers. Now, everybody in this hearing room knows the 
rules, so I don't intend to repeat them over and over again.
    The Chair now recognizes the gentleman from Arizona, 
Ranking minority Member of the Constitution Subcommittee, Mr. 
Trent Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, I first want to welcome the Director of 
National Intelligence, Michael McConnell, and the Assistant 
Attorney General for the National Security Division, Ken 
Wainstein, to today's hearing.
    I look forward to your efforts and hearing about them, 
gentlemen, on keeping our country safe and to prevent another 
terrorist attack on America.
    I am hopeful that this hearing will lead to a real-world 
discussion of the tools needed to protect our country from 
further attacks.
    It has just been over 6 years now since the tragic 
September 11 attacks against our Nation. And just weeks ago, 
terrorist plots were disrupted in Germany and Denmark. We are 
fighting this war on a global front, and American interests are 
threatened everywhere.
    We need to make sure that our intelligence community and 
law enforcement agencies have all of the tools needed to 
prevent another attack on our Nation.
    The majority has ignored the need for modernizing the 
Foreign Intelligence Surveillance Act and has adopted rhetoric 
that boils down to political cover at the expense of national 
security.
    The majority pays homage to the so-called civil liberties 
groups by ignoring 30 years of practical experience under FISA. 
They conjure up hypothetical scenarios that are irrelevant or 
just plain ridiculous to support their claims.
    We need to focus this hearing on two primary issues. First, 
FISA does not apply to foreign communications outside the 
United States. And second, FISA does not require a court order 
for calls from a foreign terrorist to a person inside the 
United States.
    The majority agrees with the first point, but simply 
ignores the second one. My question to the majority is simply 
this: Please explain how, in practical terms, the intelligence 
community should monitor foreign terrorists overseas when you 
argue that calls to the United States require a court order.
    Second, what impact will this have on the ability of 
intelligence communities in our Nation to support and protect 
our country?
    Mr. Chairman, if terrorists are talking outside this 
country or if terrorists are calling into this country, we 
better know what they are saying, because their capability to 
hurt this country will only grow as time passes.
    We have a responsibility in Congress to prevent attacks 
against our country and to protect our communities and our 
families. Civil liberties are the foundation of our freedom, 
but such freedom will never exist if we ignore our security.
    I am confident that our witnesses will put to rest the 
inaccuracies and confusions that have surrounded this important 
issue.
    And I yield back. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you.
    I thank the gentleman from Arizona.
    The Chair recognizes the Chair of the Crime Subcommittee, 
Mr. Bobby Scott, of Virginia.
    Mr. Scott. Thank you, Mr. Chairman, and I appreciate your 
holding these hearings on warrantless surveillance under the 
Foreign Intelligence Surveillance Act.
    Because of the department's refusal to respond to questions 
for information, we have been stymied in conducting meaningful 
oversight in this area. At the same time, we find out crucial 
details about the program through media reports.
    So there is a sense that there is now no transparency and 
virtually no checks and balances on the Administration's 
discretion on who or what is the subject of warrantless 
surveillance.
    There has never been any controversy over overseas 
surveillance. You do not need any oversight for that, no 
warrant, and if technical amendments are needed to clarify 
that, then those amendments would not be controversial.
    But now based on the Administration's own certification, it 
is free to intercept communications believed to be from outside 
of the United States into the United States and possibly, even 
because of, ambiguities in the law, even domestic calls if they 
concern someone outside of the United States and they involve 
any vague notion of foreign intelligence.
    At a hearing earlier this month we discovered the expansive 
nature of the bill. Any communications that are concerning the 
foreign target could be fair game.
    And the term ``foreign intelligence'' does not mean 
terrorism. It could mean almost anything of interest to foreign 
affairs, including trade deals, for example.
    Finally, the standard the Government has to meet to engage 
in such data mining is the acquisition of information has to be 
a significant justification for the invasive surveillance 
techniques, not the traditional primary justification.
    So if the Department of Justice wiretaps on foreign 
intelligence is just a significant purpose and not the primary 
purpose, you have to wonder what the primary purpose could be, 
particularly in light of the fact that the Administration has 
not credibly responded to allegations of partisan politics 
involved in criminal prosecutions.
    I want to emphasize that this is not a question of 
balancing rights and liberties versus security. The Department 
of Justice has wide latitude to conduct surveillance under FISA 
before this statute was amended by the Protect America Act. 
Virtually all of the department's FISA applications have been 
approved.
    There is even an emergency exception to provide for 
warrants after the fact. Requirement of a FISA warrant does not 
prevent a wiretap.
    There is nothing you can do under the new protect act that 
you couldn't already do. You just needed a FISA oversight 
beforehand. And if you are in a hurry, you can get it after the 
fact.
    Now, without adequate court review, the Department of 
Justice no longer has to explain or justify how it treats some 
calls or e-mails of a person in the U.S. when they are 
intercepted.
    This debate is more about complying with the law than it is 
about maintaining security. Restoring meaningful court 
oversight will give the public confidence that the Department 
of Justice is complying with the law.
    Thank you, Mr. Chairman.
    Mr. Conyers. Thank you, sir.
    The Chair recognizes the Ranking Member of the Crime 
Subcommittee, the distinguished gentleman from Virginia, Randy 
Forbes.
    Mr. Forbes. Thank you, Mr. Chairman.
    I believe this is an important hearing for our witnesses to 
inform us about gathering foreign intelligence through domestic 
surveillance as well as the law Congress recently enacted to 
fix the Foreign Intelligence Surveillance Act.
    I wanted to welcome our witnesses and thank them for being 
here today to answer our questions.
    I am sorry for the environment in which you must do that. 
You deserve better. This Committee deserves better. Our country 
deserves better.
    But I want to thank you for the dedication you have shown 
to keep us safe despite the personal attacks you must often 
endure.
    Director McConnell has made it clear the Foreign 
Intelligence Surveillance Act of 1978 needs to be updated. It 
is imperative that the intelligence community have the ability 
to effectively monitor foreign terrorists to prevent any future 
attacks on our country.
    Director McConnell has explained to Congress for more than 
a year that the Government devotes substantial resources to 
obtaining court approvals to conduct surveillance against 
terrorists located overseas, a requirement not envisioned by 
Congress when it enacted FISA.
    Foreign intelligence gathering does not occur in a vacuum, 
and foreign terrorists do not limit their communications to 
only other terrorists overseas.
    Therefore, from its inception, FISA has addressed those 
instances in which a foreign target communicates with an 
individual inside the United States.
    This law was enacted by a Democratic controlled Congress 
under a Democratic President but for some reason the majority 
suddenly has a problem with this provision of FISA.
    There is no more simple way to state it: To require a court 
order for every instance in which a foreign target communicates 
with someone inside the United States is to require a court 
order for every foreign target, and requiring this would 
reverse 30 years of established intelligence gathering and 
would give the terrorists the upper hand in planning their next 
attack on America.
    The intelligence community cannot possibly know ahead of 
time who these terrorists will talk to. It needs to have the 
flexibility to monitor calls that may occur between a foreign 
terrorist and a person inside the United States.
    Such monitoring of these communications can be conducted 
with well-established minimization rules that have been applied 
to protect the privacy and civil liberties of U.S. persons.
    The Protect America Act and other changes to FISA proposed 
by Director McConnell are intended to bring foreign 
intelligence surveillance into the 21st century.
    I fear that my colleagues on the other side, if they 
continue to inflame the debate with unrealistic hypotheticals 
and partisan posturing, will stymie our Nation's ability to 
protect itself.
    I look forward to hearing from our witnesses, and I yield 
back the balance of my time.
    Mr. Conyers. Thank you.
    Other Members' statements will be included in the record at 
this point, without objection.
    We welcome the two distinguished witnesses here today.
    Director of National Intelligence Mike McConnell. Director 
McConnell has served 29 years in the United States Navy as an 
intelligence officer, as director of National Security Agency 
and, after retiring from the Navy at the rank of vice admiral, 
was senior vice president in the consulting firm of Booz Allen 
Hamilton, focusing on intelligence and national security 
concerns, before returning to public service in his current 
position.
    Our second witness of the day is Kenneth Wainstein, 
Assistant Attorney General for National Security. Mr. 
Wainstein's service at the department includes service as a 
career prosecutor in two United States attorneys' offices and 
as general counsel to the Federal Bureau of Investigation and 
chief of staff to FBI Director Mueller.
    Immediately prior to his current post, Mr. Wainstein was 
U.S. attorney for the District of Columbia.
    Your written statements will be made part of the record in 
their entirety. You know the rules of engagement here. And 
given the gravity of the issues under discussion and the key 
roles you play, we would appreciate it if you would take an 
oath before you begin your testimony.
    Please stand and raise your right hand. Do you solemnly 
swear or affirm under penalty of perjury that the testimony you 
are about to provide the Committee will be the truth, the whole 
truth and nothing but the truth, so help you God?
    All the witnesses indicated in the affirmative.
    Please be seated.
    Greetings, Admiral McConnell. You may begin the hearing 
with your statement.

                TESTIMONY OF J. MIKE McCONNELL, 
               DIRECTOR OF NATIONAL INTELLIGENCE

    Mr. McConnell. Good afternoon, Mr. Chairman, Members of the 
Committee. Thank you for inviting me to appear today in my 
capacity as the head of the United States intelligence 
community.
    I appreciate this opportunity to discuss the act in 
question, the Protect America Act, and the need for lasting 
modernization of the Foreign Intelligence Surveillance Act, as 
we will refer to in the hearing as FISA.
    I am pleased to be joined today by my General Counsel, Ben 
Powell, sitting to my right, and Assistant Attorney General, as 
has been noted, Ken Wainstein, of the Department of Justice 
National Security Division.
    Before I begin, I need to note that some of the specifics 
that support my testimony cannot be discussed in open session.
    I understand and am sensitive to the fact that FISA and the 
Protect America Act and the types of activities that these laws 
govern are of significant interest to the Congress and to the 
public.
    And for that reason, I will be as open as I can, but such 
discussions do come with a degree of risk. This is because open 
discussion of specific foreign intelligence collection 
capabilities could cause us to lose those very same 
capabilities.
    Therefore, on certain specific issues, I will be happy to 
discuss further with Members in a classified setting, which I 
understand we might have later today.
    When I was preparing for my confirmation hearing, as you 
can imagine, I did lots of reading. I went back to read the 9/
11 Commission. I read the WMD Commission. And I read the joint 
congressional inquiry into 9/11.
    And I want to quote from the joint congressional inquiry. 
``The joint inquiry has learned that many of the future 
hijackers communicated with a known terrorist facility in the 
Middle East while he was living in the United States.
    ``The intelligence community did not identify the domestic 
origin of those communications prior to September 11 so that 
additional FBI investigative efforts could be coordinated.''
    Despite this country's substantial advantages, there was 
insufficient focus on what many would have thought was among 
the most critically important kinds of terrorist-related 
communications, at least in terms of protecting the homeland.
    It is my belief that the first responsibility of the 
intelligence community is to achieve understanding and secondly 
to provide warning from that understanding.
    As the head of the Nation's intelligence community, it is 
not only my desire but my duty to encourage changes in policies 
and procedures and, where needed, legislation to improve our 
ability to provide warning of terrorist or other threats to our 
country.
    On taking this post, it became clear to me that our 
intelligence capability was being degraded. I learned that 
collection using authorities provided by FISA continued to be 
instrumental in protecting the Nation, but due to changes in 
technology the law was actually preventing us from collecting 
needed intelligence.
    I asked what we could do to correct the problem. I learned 
that the Congress and a number of intelligence professionals 
had been working on this issue already.
    In fact, in July 2006, over a year ago, the Director of 
NSA, General Keith Alexander, and the Director of CIA, General 
Mike Hayden, testified before the Senate Judiciary Committee 
regarding proposals to update FISA.
    I also learned that Members of Congress on both sides of 
the aisle had proposed legislation to modernize FISA. A bill 
passed this body, the House, last year. A similar bill did not 
pass--although introduced, did not pass on the Senate side.
    And so dialogue on FISA has been ongoing for some time. 
This has been constructive dialogue, and I hope it continues in 
furtherance of serving the Nation's interest to protect our 
citizens.
    None of us want a repeat of the 9/11 attacks, although al-
Qaida has stated their intention to conduct another such 
attack.
    FISA is the Nation's statute for conducting electronic 
surveillance and physical search for foreign intelligence 
purposes. I emphasize foreign intelligence purposes.
    When passed in 1978, FISA was carefully crafted to balance 
the Nation's need to collect foreign intelligence information 
with a need for protection of civil liberties and privacy 
rights of our citizens.
    The 1978 law created a special court, the Foreign 
Intelligence Surveillance Court. The court's members devote a 
considerable amount of their time and effort, while at the same 
time fulfilling their district court responsibilities. We are 
indeed grateful for their service.
    FISA is a very, very complex statute. It has a number of 
substantial requirements. Detailed applications contain 
extensive factual information and require approval by several 
high-ranking members of the executive branch before they can 
even go to the court.
    The applications are carefully prepared, subject to 
multiple layers of review for legal as well as factual 
sufficiency. It is my steadfast belief that the balance that 
the Congress struck in 1978 was not only elegant, it was the 
right balance.
    Why do we need the changes that the Congress passed just 
last August? FISA's definition of electronic surveillance 
simply did not keep pace with technology. Let me explain what I 
mean by that.
    FISA was enacted before cell phones, before e-mail and 
before the Internet was a tool used by hundreds of millions of 
people around the world every day, to include terrorists.
    When the law was passed in 1978, almost all local calls 
were on a wire and almost all international communications were 
in the air, or how we would refer to it as wireless 
communications.
    Therefore, FISA was written in 1978 to distinguish between 
collection on a wire and collection out of the air. Today, the 
situation from 1978 is completely reversed. Most international 
communications are on a wire, fiber optic cable, and local 
calls most often are in the air.
    FISA also originally placed a premium on the location of 
the collection. Because of these changes in technology, 
communications intended to be excluded from FISA in 1978 were 
frequently included in the current interpretation. This had 
real consequences.
    It meant that the intelligence community in a significant 
number of cases was required to demonstrate probable cause to a 
court in order to target for surveillance a communication of a 
foreign person located overseas.
    Because of this, the old FISA requirements prevented the 
intelligence community from collecting important foreign 
intelligence information on current terrorist threats.
    In the debate over the summer and since, I have heard 
individuals from both inside and outside the Government assert 
that threats to our Nation do not justify this authority. 
Indeed, I have been accused of exaggerating the threats that 
face our Nation.
    Allow me to attempt to dispel this notion. The threats that 
we face are real and they are, indeed, serious. In July of this 
year, we released a National Intelligence Estimate, commonly 
referred to as an NIE, on the terrorist threat to the homeland.
    An NIE is coordinated among all 16 agencies of the 
community, and it is the intelligence community's most 
authoritative written judgment on a particular subject.
    The key judgments from this NIE are posted on our Web site, 
DNI.gov. I would encourage Members and our citizens to read the 
posted NIE judgments.
    In short, these assessments conclude the following. The 
United States will face a persistent and evolving terrorist 
threat over the next 3 years. That is the period of the NIE.
    The main threat comes from Islamic terrorist groups and 
cells and especially al-Qaida. Al-Qaida continues to coordinate 
with regional terrorist groups such as al-Qaida in Iraq, across 
North Africa and in other regions.
    Al-Qaida is likely to continue to focus on prominent 
political, economic and infrastructure targets, with a goal of 
producing mass casualties--with a goal of producing mass 
casualties--visually dramatic destruction, significant economic 
aftershock and fear among the United States population.
    These terrorists are weapons proficient, they are 
innovative and they are persistent. Al-Qaida will continue to 
acquire chemical, biological, radiological and nuclear material 
for attack, and they will use them given the opportunity.
    Globalization trends and technology continue to enable even 
small groups of alienated people to find and connect with one 
another, justify and intensify their anger, and mobilize 
resources for attack, all without requiring a centralized 
terrorist organization, training camp or a leader.
    This is the threat we face today, and one that our 
intelligence community is challenged to counter. Moreover----
    Mr. Conyers. The gentleman's time is nearly up.
    Mr. McConnell. Moreover, the threats we face as a Nation 
are not limited to terrorism. It also includes weapons of mass 
destruction.
    The Protect America Act updated FISA and passed by the 
Congress, signed by the President on the 5th of August, has 
already made the Nation safer.
    After the law was enacted, we took immediate action to 
close critical foreign intelligence gaps related to terrorist 
threats.
    I want to close with noting five pillars in the law that 
enabled us to do our mission.
    It clarified that the definition of electronic surveillance 
under FISA should not be construed to encompass surveillance 
directed at a person reasonably believed to be located outside 
the United States. That is a very, very important feature.
    Under the act, we are now required to submit to the FISA 
court for approval the procedures that we used to determine 
that the target of acquisition is located outside the United 
States. This portion is new and was added to give the Congress 
and the public more confidence in the process.
    In addition to oversight by the Congress, the new FISA 
process allows review of the procedures by the FISA court.
    A third thing was the act allows the attorney general and 
the DNI to direct third parties to cooperate with us to acquire 
foreign intelligence information.
    Fourth, the act provides limited liability protection for 
private parties who assist us when complying with lawful 
directives issued under the FISA Act.
    And most importantly, the one which I personally identify, 
FISA as amended continues to require that we obtain a court 
order to conduct electronic surveillance or physical search 
against all persons located inside the United States.
    I want to assure the Congress that we will cooperate in 
executing this law, subject to the appropriate oversight not 
only by the Congress but by the court.
    Sir, that concludes my opening statement.
    [The prepared statement of Mr. McConnell follows:]
         Prepared Statement of the Honorable J. Mike McConnell




    Mr. Conyers. I thank you very much.
    And we now turn to the Assistant Attorney General for 
National Security, Mr. Kenneth Wainstein.
    Welcome.

 TESTIMONY OF KENNETH L. WAINSTEIN, ASSISTANT ATTORNEY GENERAL 
   FOR NATIONAL SECURITY, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. Wainstein. Thank you, Chairman Conyers, Members of the 
Committee. Thank you very much for this opportunity to testify 
concerning FISA modernization.
    I am proud to be here to represent the Department of 
Justice and to have the opportunity to discuss this very 
important issue with you.
    I would like to just take a few moments here to explain why 
it is I think that we need to make the protect act permanent. 
And to do that, I would like to go through my understanding of 
the history and the evolution of the FISA statute.
    In enacting FISA, the Congress of 1978 was reacting to the 
abuses that had been disclosed in the Church and Pike hearings 
that involved surveillance against Americans within America.
    And they reacted by establishing a regime of judicial 
review for foreign intelligence surveillance activities, but 
not for all such activities, only for those that most 
substantially implicated the privacy interests of people in the 
United States.
    Congress designed a judicial review process that would 
apply primarily to surveillance activities within the United 
States where privacy interests are most pronounced and not to 
overseas surveillance against foreign targets, where cognizable 
privacy interests are minimal or nonexistent.
    Congress gave effect to this careful balancing through its 
definition of the statutory term ``electronic surveillance,'' 
which is sort of the gatekeeper term in the statute that 
identifies those Government activities that fall within the 
scope of the statute and, by implication, those that fall 
outside the scope of the statute.
    And Congress established this dichotomy by defining 
electronic surveillance by reference to the manner of 
communication under surveillance.
    As the director said, by distinguishing between wire 
communications, which at that time included most of the local 
and domestic traffic, and were largely brought within the scope 
of the statute--distinguishing between them and radio 
communications, which included most of the transoceanic traffic 
of the time, and were largely left outside the scope of the 
statute.
    And based on the communications reality of that era, that 
dichotomy more or less accomplished what it was that Congress 
intended to do, which was to distinguish between domestic 
communications that generally fell within FISA and foreign 
international communications that generally did not.
    As the director said, however, the revolution in 
communications technology since that time radically altered 
that realty and upset the careful balance that was crafted in 
the statute.
    And as a result, certain surveillance activities directed 
at persons overseas that were not intended to be within FISA 
became subject to FISA, requiring us to go to get court 
authorizations before initiating surveillance and effectively 
conferring quasi-Constitutional protections on terrorist 
suspects and other national security targets overseas.
    In April of this year, the Administration submitted to 
Congress a comprehensive proposal that would remedy this 
problem and provide a number of important refinements to the 
FISA statute.
    While Congress has yet to act on the complete package we 
submitted, your passage of the temporary legislation in August 
was a significant step in the right direction.
    That legislation updated the definition of electronic 
surveillance to exclude surveillance directed at persons 
reasonably believed to be outside the U.S., thereby restoring 
FISA to its original focus on domestic surveillance.
    By making this change, Congress enabled the intelligence 
community to close critical intelligence gaps, and the Nation 
is already safer for it.
    But the legislation only lasts for 6 months, and the new 
authority is scheduled to expire on February 5, absent 
reauthorization.
    We urge Congress to make the Protect America Act permanent 
and to enact the other important FISA reforms contained in the 
package we submitted in April.
    It is particularly imperative that Congress provide 
liability protection to companies that are alleged to have 
assisted the Nation in the conduct of intelligence activities 
in the wake of the September 11 attacks.
    I see this renewal period from now until February as an 
opportunity to do two things. First and foremost, it gives us, 
the United States government, the opportunity to demonstrate 
that we can use this authority both effectively and 
responsibly. And this is an opportunity that we have already 
started to seize.
    As we explained in a letter we sent this Committee back on 
September 5, we have already established a strong regime of 
oversight for this authority, which includes regular internal 
agency audits as well as on-site compliance reviews by a team 
from the Office of the Director of National Intelligence and 
the National Security Division in the Department of Justice.
    In that same letter, we also committed to providing 
Congress with comprehensive reports about how we are 
implementing this authority. We will make ourselves available 
to brief you and your staffs regularly on our compliance 
reviews and what we find.
    We will provide you copies of the written reports of those 
reviews, and we will give you update briefings every month on 
compliance matters and the implementation of this authority in 
general.
    And we are confident that this regime of oversight and 
congressional reporting will establish a solid track record for 
our use of this authority.
    This interim period also gives us one other opportunity, 
and that is the opportunity to engage in a serious debate and 
dialogue on this important issue.
    I feel strongly that American liberty and security were 
advanced by this act and that they will be further advanced by 
adoption of our comprehensive FISA modernization proposal.
    However, I recognize that this is a matter of significant 
and legitimate concern to many throughout the country.
    On Friday we sent the Committee a letter that addressed 
some of the common concerns about the act, and we hope that 
that letter provides further assurances to Congress and the 
American people that the act is a measured and sound approach 
to an important intelligence challenge.
    This Committee is very wise to be holding this hearing 
today and to explore the various legislative options and their 
implications for national security and civil liberties.
    I am confident that when those options and implications are 
subject to objective scrutiny and honest debate, Congress and 
the American people will see both the wisdom and the critical 
importance of modernizing the FISA statute on a permanent 
basis.
    Thank you again, Mr. Chairman, for allowing me to appear 
before you, and I look forward to answering your questions.
    [The prepared statement of Mr. Wainstein follows:]
        Prepared Statement of the Honorable Kenneth L. Wainstein



    Mr. Conyers. Thank you, Mr. Wainstein.
    Director McConnell, you have stated publicly that only 100 
or less Americans have been targeted for foreign intelligence 
surveillance.
    But that doesn't tell us how many have been, have had their 
phone calls overheard as a result of spying, whether they were 
targeted or not. Can you clear up that distinction for me?
    And secondly, there is a provision here, well, the 
Department of Justice has taken the position that a person 
reasonably likely to be abroad means the target of a 
surveillance. Well, that is far from obvious in the language, 
and we want to codify this into a much more clear definition.
    And finally, how can we proceed in this very important 
responsibility with which we are charged if we don't have the 
information and access to it about the Administration's 
surveillance programs both past and present?
    We have been waiting a long time for that information, and 
it seems to me that it is a prerequisite to anything we are 
supposed to accomplish here. And I would like to get some 
public assurances over and above the private assurances you 
have given me about that subject.
    And so if you can respond to those three observations, I 
will consider my time well spent.
    Mr. McConnell. Thank you for your question, Mr. Chairman. 
It gives me, actually, a chance to clarify my intent when I had 
an interview down in Texas, sitting beside the Chairman of my 
oversight committee, Congressman Reyes.
    What I was attempting to do was respond to so much of the 
inaccuracy and claims and counterclaims that had been in the 
press, specifically, that we are spying on Americans, we have a 
broad drift net, and that sort of thing.
    So I carefully considered making the comments at a summary 
level to provide some context and perspective of what this is 
really all about. And so what I chose to do was to provide some 
level of indication in terms of numbers about how this works.
    I recall that before this was limited only to al-Qaida and 
related, and so the claim being that we are spying, you know, 
widely on all Americans--what I wanted to highlight was the 
targets are foreign, and when targets that are foreign----
    Mr. Conyers. Excuse the interruption.
    Mr. McConnell. Sir, no problem. When the targets are 
foreign, and we are targeting active terrorists that have an 
intent to carry out attacks in this country, the vast majority 
of that is foreign to foreign. On some occasion there would be 
a call into the United States.
    Now, the law says--it did before and it still says--that if 
someone in the United States is the subject of surveillance, we 
must have a court order.
    So what I tried to provide in those numbers is out of the 
thousands of things that we do in an overseas foreign context, 
what had resulted in a court order where we actually conducted 
some surveillance against a U.S. person--and that doesn't 
necessarily mean a U.S. citizen, but a U.S. person--in the 
United States numbered in the range of 100. That was what I was 
attempting to clarify.
    Mr. Conyers. Yes, but there are thousands that--I don't 
know how many else have been--that weren't targeted that have 
been tapped. That is what I am trying to get to. What is the 
answer?
    Mr. McConnell. Sir, there is confusion over what means--the 
word ``tapped'' means. When you target someone in the business 
that we are in, you can only target one end of a conversation. 
So in the context of doing our business, the target is foreign. 
The objective is foreign. The purpose is foreign intelligence.
    So----
    [Audience outburst.]
    Mr. Lungren. Mr. Chairman, can we have regular order? There 
are people in the audience who are waiting to put their signs 
up. They do one after the other.
    And I would ask that we have regular order--that anybody 
who puts a sign up be removed immediately and those who have 
signs sitting in their laps either be removed or have their 
signs removed.
    There are a whole group of them in the second row from the 
back on the left side as I look at it. And this is unfair and 
is not the kind of hearing I know you wish to conduct when we 
are trying in this Committee to consider very serious matters.
    Mr. Conyers. And in addition, it is counterproductive.
    Would the young lady that just put the sign up please 
excuse herself?
    Now, if we have to clear the room--I mean, I am not going 
to tolerate--we are working under a very serious time 
restraint. There are going to be votes coming up. I have got 30 
Members that want questions answered.
    And I am not in a mood to tolerate the seriatim 
interruptions that are going on. And I hope that we can work 
cooperatively.
    We want everybody interested in hearing the testimony and 
the Members' questions to join us in this room. But this is not 
a place for demonstrations, rallies or protests.
    Excuse me.
    Mr. McConnell. Sir, what I was attempting to explain is 
when you are conducting surveillance in the context of 
electronic surveillance, you can only target one end of a 
conversation.
    So you have no control over who that number might call or 
who they might receive a call from.
    The reference I made to the joint commission earlier was 
someone in the United States, a target, a terrorist, calling 
out to a terrorist. We should have gotten that intercept, and 
hopefully, if we had, it would have perhaps helped us prevent 
9/11.
    Mr. Conyers. Well, the question, though, still remains: How 
many Americans have been wiretapped without a court order?
    Mr. McConnell. None.
    Mr. Conyers. Thank you.
    Mr. McConnell. There are no wiretaps against Americans 
without a court order. None. What we are doing is we target a 
foreign person in a foreign country.
    If that foreign person calls into the United States, we 
have to do something with that call. The process is called 
minimization. It was in the law in 1978. It has been reviewed 
by the court. It is a part of the law. It is the way it is 
handled.
    Mr. Conyers. Mr. Chairman, let me put it like this. How 
many have been overheard? I mean, you have got minimization 
techniques. You wouldn't have it if somebody wasn't being 
overheard.
    Mr. McConnell. Sir, I don't have the exact number. I will 
be happy to try to get the number and provide it to you. I just 
don't know.
    Mr. Conyers. Well, that is very, very critical, Mr. 
Director.
    Mr. McConnell. It is a very small number considering that 
there are billions of transactions every day. So we look at it 
in the----
    Mr. Conyers. Well, would it be asking too much for this 
Committee, all cleared for top secret, to be given a briefing 
on it?
    Mr. McConnell. Sure, I would be happy to do that.
    Mr. Conyers. We have got to know.
    Mr. McConnell. I would be happy to do that. But, sir, I 
need to answer your question one more time. How many Americans' 
phones have been tapped without a court order, and it is none.
    Mr. Conyers. I trust you.
    Mr. McConnell. The law requires us to get a court order, 
and----
    Mr. Conyers. I trust you.
    Mr. McConnell [continuing]. What I am trying to----
    Mr. Conyers. But I have got to find this out. I mean, 
blowing these kind of answers back at me when this is a thing 
that is on the minds of most Americans in this country is not 
adequate.
    Mr. McConnell. Mr. Chairman, when I was being confirmed, 
when I went through on the Senate side, a number of the Members 
asked me, ``You are former military. Do you have the gumption 
to speak truth to power?'' And I sure hope I do.
    And I have spoken truth to power in the executive branch, 
and I intend to speak truth to power in the legislative branch. 
You asked me the question, and I gave you the answer.
    The law requires us to have a warrant if we target anybody 
in this country. It is as simple as that.
    Mr. Conyers. Well, just my last comment--well, then why did 
you agree with us and then go to the--when you got the White 
House call, your attitude changed 180 degrees? You think I 
can't notice that?
    Mr. McConnell. Sir, that was characterized in the press 
inappropriately.
    Mr. Conyers. Well, I wasn't using the press to characterize 
it. I was using what you told me and what happened after that 
communication.
    Mr. McConnell. Sir, my position on this did not change at 
all from when I came back in and I started to understand the 
issue last April until this moment.
    When I talked with various Members of the Committee--now, 
here is the issue, and it is important for you to capture 
this--I had very simple criteria. There were three.
    The criteria was do not require us to have a warrant for a 
foreign target in a foreign country. Allow us to have liability 
protection for the carriers. And I was asking you should 
require us to have a warrant if we do surveillance in this 
country.
    And that was the philosophical underpinning of my argument. 
When we engaged in dialogue, the issue was there were drafts in 
the Administration. There were drafts on the Hill.
    If you change a word or a phrase, because this bill is so 
complex, it can have unintended consequences later on in the 
bill in terms of shutting you down or so on.
    So when I was asked to agree to something, I said 
philosophically I can agree, but let me see the words. And when 
we had a chance to actually review the words, we had to say we 
can't accept this and here is the reason.
    So I was not directed by the White House to change my 
position. I did not change my position. And I would be happy to 
work with any of the wording in the current bill in a way where 
we both can see what it means and understand its full 
implications, and if there is a better way to phrase it, we are 
happy to engage and consider that.
    Mr. Conyers. Thank you.
    The Chair recognizes the longest-serving Ranking Member on 
the Judiciary Committee, Dan Lungren.
    Mr. Lungren. With an interruption of 16 years. Thank you 
very much, Mr. Chairman. I appreciate that.
    Admiral McConnell, thank you very much for your service. I 
find you to be an honorable man who has served this country 
under both Democratic and Republican regimes and have no reason 
to question your dedication to service or your veracity.
    Let me ask you this. There seems to be some confusion that 
I hope we can clear up.
    It is my understanding that when you took over, you 
realized that a FISA court judge had made a decision that based 
on the then-current language of the law, which came in in 1978, 
that it now required you to go for warrants in circumstances 
where you hadn't gone for warrants when the law was first 
established. Is that true?
    Mr. McConnell. Yes, sir, that is true.
    Mr. Lungren. And is it true that you attempted to work 
under the law as interpreted by the court and found that as a 
result of working under those restrictions you were, that is, 
your agency was prohibited from successfully targeting foreign 
conversations that otherwise you would have for looking into 
possible terrorist activity?
    Mr. McConnell. Yes, sir, that is true.
    Mr. Lungren. And is it also true, Admiral, that merely 
saying that foreign-to-foreign communications would no longer 
require warrants did not get to the nut of the problem?
    Mr. McConnell. That is correct, sir.
    Mr. Lungren. And is it also true that because of 
technology, the way it works, without going into anything that 
is classified, you specifically target an individual you 
reasonably believe to be a foreign target outside the United 
States?
    Mr. McConnell. Yes, sir.
    Mr. Lungren. And do that without a warrant?
    Mr. McConnell. That is correct.
    Mr. Lungren. And you cannot beforehand know with any degree 
of certainty whether that person is going to have some 
conversations into the United States.
    Mr. McConnell. That is correct.
    Mr. Lungren. And if you were required--because of that 
possibility that there may be a conversation into the United 
States, a communication into the United States, you had to get 
a warrant in each and every case, it would be impossible for 
you to do the job you have been asked to do.
    Mr. McConnell. That is correct.
    Mr. Lungren. And you say that because, in fact, it proved 
impossible to do the job you were supposed to do.
    Mr. McConnell. Yes, sir.
    Mr. Lungren. And we were excluded from obtaining crucial 
terrorist-related information from targets overseas that under 
the reading of the 1978 law, under the technology that existed 
at that time, we would have been able to reach without a 
warrant.
    Mr. McConnell. That is correct.
    Mr. Lungren. So that what you have attempted to do, and 
what we did in this law, was to use the same legal construct, 
which was to take outside of the requirement for warrants those 
kinds of communications that weren't anticipated to be 
protected by the fourth amendment, because they were directed 
at individuals who were foreign in foreign countries.
    Mr. McConnell. That is correct.
    Mr. Lungren. And that because on occasion--and we are 
saying occasionally because compared to the number of 
communications we are talking about, these are occasional 
communications into the United States at the other end. You 
have devised a system of minimization which is basically the 
same minimization we use in criminal cases.
    Mr. McConnell. Yes, sir.
    Mr. Lungren. And in criminal cases when we get a wiretap on 
a suspected mafia member, we target the mafia member, we target 
the particular means of communication he uses, not knowing 
ahead of time who he is going to communicate with in the 
future.
    Mr. McConnell. That is correct.
    Mr. Lungren. And that on those occasions when he does 
communicate with someone that has nothing to do with his mafia 
connection, we minimize.
    Mr. McConnell. Minimize.
    Mr. Lungren. And you are doing the same thing now.
    Mr. McConnell. Yes, sir.
    Mr. Lungren. And you had experience minimizing when you 
were head of the NSA.
    Mr. McConnell. I did.
    Mr. Lungren. And you feel an obligation both legally, 
morally and ethically to follow the strictures of the law 
there.
    Mr. McConnell. Yes, sir, I do.
    Mr. Lungren. And so when you tell us that you haven't 
wiretapped any individual in the United States without a 
warrant, you were saying you haven't targeted them as the 
individual from which you are seeking information.
    You are not saying that you didn't pick up inadvertently 
conversations that came into the United States, correct?
    Mr. McConnell. That is correct.
    Mr. Lungren. And when you did, you applied minimization, as 
we do on the criminal side, as we have been doing for 30 years 
or 50 years.
    Mr. McConnell. And if they were a target of interest, then 
that would mean we would have to now get a warrant if it was 
someone in the United States.
    Mr. Lungren. And that is still the case.
    Mr. McConnell. That is still the case.
    Mr. Lungren. And as I understand it, there is some concern 
that the new language could reach domestic-to-domestic 
communications or target a person inside the U.S. for 
surveillance--at least, this is what some of the critics have 
said--because that information is being sought ``concerning 
persons outside the U.S.''
    If that criticism were true, it would have to mean that we 
are not looking at the preexisting language of FISA defining 
electronic surveillance, correct?
    Mr. McConnell. That is correct, sir.
    Mr. Lungren. So that we have to take the entire law into 
effect with the amendments we have placed here, and you still 
have that category of electronic surveillance for which you do 
have to get a warrant, correct?
    Mr. McConnell. That is correct. Yes, sir.
    Mr. Lungren. And nothing in this act changes that, as far 
as you are concerned, in the operation of the law.
    Mr. McConnell. That is correct. Yes, sir.
    Mr. Lungren. Thank you very much.
    Mr. Conyers. Thank you.
    The Chairman of the Constitution Committee, Jerry Nadler.
    Mr. Nadler. Thank you.
    Director McConnell, in a number of interviews that you have 
given as well as in speaking to us, you have said that it takes 
about 200 hours, that the objection to getting a FISA warrant 
is that it takes about 200 hours, to do each FISA court 
application for each phone number, is that correct?
    Mr. McConnell. Yes, sir. At a summary level, that is 
correct.
    Mr. Nadler. Thank you. In the letter that Chairman Conyers, 
Mr. Scott and I sent you on September 11, we pointed out that 
if this is true, this would mean that more than 436,000 hours 
were spent on FISA applications in 2006, and you were asked 
specifically whether you still stand by that 200 hours 
assertion.
    Your response, which we received this morning, frankly 
evaded that question and simply asserted that your point was 
that significant resources shouldn't be devoted to FISA 
applications.
    So I ask you now, do you stand by the claim that it takes 
200 hours to do each----
    Mr. McConnell. I do, and it is because of the complex 
nature of the process. First an analyst has to----
    Mr. Nadler. All right. So you stand by that.
    Mr. McConnell [continuing]. To write it, and then so on.
    Mr. Nadler. Now, and this morning in the Intelligence 
Committee, about 2 hours ago, the former or current director of 
the FISA program, a Mr. Baker, testified that there is a--that 
basically his--that potentially contradicted that.
    Essentially, what he said--and I am getting this secondhand 
from a Member of the Committee. Essentially, what he said--the 
record will show exactly what he said, obviously.
    But essentially, what he said was that the legal 
preparation of the warrants is ready and waiting by the time 
the information that has to be gathered to figure out. That, in 
effect, within the executive branch the process is followed to 
put together much of the same information given to the FISA 
court in order to determine to begin surveillance, even where 
no warrant is sought. And that the work to get the warrant is 
not much extra work, and that they are usually ready at the 
same time.
    Mr. McConnell. On occasion, that is true, but sometimes it 
is not, often times it is not true, particularly if it is new--
--
    Mr. Nadler. He said it was normally true. He said it was 
almost, in fact, usually true.
    So if that is usually true, then how could it require the 
200 hours? Because what he was saying is that most of the work 
that has to be done has to be done whether you need a warrant 
or not, just to identify it.
    Mr. McConnell. And, I am sorry, what is the question, sir?
    Mr. Nadler. The question is if it is the case, as he 
apparently testified this morning, that most of the work that 
you say goes into this 200 hours for the warrant has to be done 
whether you need a warrant or not just to identify what you 
want to wiretap, to identify the target, and that the work 
required for the warrant is simply a little extra, then how can 
it be--then it is clearly not--I mean, what he said, 
essentially, was it is much extra work than what has to be done 
in any event.
    Mr. McConnell. Well, I just disagree with him. Having done 
it, having been the director of NSA and worked the problem, 
some of what he said is true, but when I say 200 man hours, I 
am talking about the entire process.
    Mr. Nadler. But the entire process has to be done with or 
without the warrant requirement.
    Mr. McConnell. No, no. No.
    Mr. Nadler. Or, excuse me, most of that has to be done with 
or without----
    Mr. McConnell. No, not at all.
    Mr. Nadler. Well, that was his testimony this morning, and 
he headed the program.
    Mr. McConnell. I was the director of NSA, not him, so I 
could tell you that from the standpoint of conducting the 
operation, when you are doing foreign surveillance--remember, 
in the foreign context, and you have new information to process 
or to chase or target, it is just a matter of doing it in 
that--when it is in a foreign context.
    So now if you have to stop and consider a warrant and so 
on, it presents you with a pretty formidable process to work 
through.
    Now, Ben Powell, who is sitting to my right, just recently 
looked at this. Let me ask him to comment on his most recent 
review.
    Mr. Powell. I would disagree that there is any comparison 
to what we go through to target foreign intelligence targets 
and what we go through to put information together for the FISA 
court.
    When we are targeting foreign intelligence targets, the 
analysts have to determine that there is a valid foreign 
intelligence target and a requirement is out there for putting 
that person on coverage.
    To go through the FISA process is frequently a very long-
term process that requires putting together packages that 
frequently resemble finished intelligence product, describing 
who the person is, what their organization is----
    Mr. Nadler. So the essence of your testimony is contrary to 
what we heard in--and I wasn't there--what was heard this 
morning in the Intel Committee, that there is substantial extra 
work beyond what would be done if you don't need a warrant.
    Mr. Powell. If that is the correct testimony. I will say 
that Mr. Baker is very knowledgeable in this area, so I feel 
like we are missing something extra he must have said, because 
he is certainly very knowledgeable in this area.
    Mr. Nadler. As I said, I got this from a Member of the 
Committee. I wasn't there. I presume that that was correct.
    Let me ask you this. You said basically that the danger 
that we are talking about in targeting foreign people--now, 
again, everybody agrees that foreign to foreign should not be 
covered, rather, by FISA.
    Everybody agrees to that. I don't want to talk about that. 
The question I want to ask----
    Mr. McConnell. No, but the term foreign to foreign is--that 
is what confuses----
    Mr. Nadler. I understand. Foreign to foreign, whether the 
electrons come through the United States or not.
    Mr. McConnell. No, no, that is not the point. The point is 
if you have to predetermine it is foreign to foreign before you 
do it, it is impossible. That is the point. You can only target 
one.
    Mr. Nadler. All right. I hear that.
    Mr. McConnell. The issue is who is the target and where are 
they.
    Mr. Nadler. I hear that. The question I am trying to ask, 
though, is under FISA, under the FISA as it existed 3 months 
ago, my understanding is if you determined that somebody 
abroad--did you need a warrant to determine if someone abroad 
was, in fact, an agent of a foreign power, or could you make 
that determination for yourself, if he was communicating into 
the United States?
    Mr. McConnell. You could make the determination, but let me 
just make it very specific. If Osama bin Laden in Pakistan 
calls somebody in Singapore, and it passed through the United 
States, I had to have a warrant.
    Mr. Nadler. Yes, but no one objects to changing that. My 
question was if someone in Pakistan calls someone in the United 
States, you want a warrant to target the guy in Pakistan. Did 
you need----
    Mr. McConnell. No, I don't want a warrant to target the guy 
in Pakistan.
    Mr. Nadler. No, no, did you need a warrant under 
traditional FISA?
    Mr. McConnell. Under traditional FISA, if--no, I did not.
    Mr. Nadler. You did not.
    I see my time has expired. Thank you.
    Mr. Conyers. Thank you.
    The Chair recognizes Howard Coble, the distinguished 
gentleman from North Carolina, Ranking Member of the Court 
Committee.
    Mr. Coble. Thank you, Mr. Chairman.
    Good to have you gentleman with us today.
    Admiral, as we all know, FISA was enacted in 1978. From 
that date of enactment, did FISA allow the intelligence 
community to intercept a phone call from a foreign target to a 
person inside the United States without a court order?
    Mr. McConnell. Sir, that is one of those questions. It 
depends. There are some conditions. Who is the target? Where is 
the target? And here was the key: Where is it intercepted?
    And what we found ourselves in with old FISA is the issue 
was where it was intercepted. If it was here on a wire, then 
that is what put us in a condition where we had to get a 
warrant, where we did not back in 1978.
    Mr. Coble. Okay. Thank you, sir.
    Now, Mr. Lungren may have touched on this, but for my 
information, distinguish, Admiral, between targeting an 
individual for surveillance and intercepting a phone call to or 
from an individual.
    Mr. McConnell. If you are going to target, you have to 
program some equipment to say I am going to look at number 1-2-
3. So targeting in this sense is you are targeting a phone 
number that is foreign.
    So that is the target. The point is you have no control 
over who that target might call or who might call that target.
    Mr. Coble. Mr. Wainstein, as the Admiral pointed out, this 
is a complex matter we are dealing with today. There seems to 
be a great deal of confusion about the application of FISA to 
domestic surveillance of United States persons.
    Provide us with a simplified explanation, if you will, of 
when a FISA court order is required for United States persons.
    Mr. Wainstein. Congressman, I think as one of your 
colleagues said earlier, if we direct surveillance, we target 
somebody inside the United States, we have to get a court order 
from the FISA court.
    If we surveille communications where both ends of the 
communication are within the United States, we have to get a 
FISA court order.
    So that has not changed. Those aspects of the definition of 
electronic surveillance, or those requirements of the original 
FISA, are still in place, even with the Protect America Act. 
That hasn't changed that at all.
    Mr. Coble. I thank you, sir.
    Mr. Chairman, I yield the balance of my time to the 
gentleman from California, Mr. Lungren.
    Mr. Lungren. I thank the gentleman for yielding.
    There has been some question about whether or not--and 
following up a little bit on what the gentleman just said, that 
somehow this is going to allow warrantless--can we interrupt?
    [Audience outburst.]
    Mr. Conyers. You were saying, Congressman Lungren?
    Mr. Lungren. I was saying I guess I don't have to go to 
Disneyland this year.
    There has been some suggestion that under the terms--Mr. 
Wainstein, there have been some suggestion that under the terms 
of the Protect America Act this would allow unwarranted 
physical searches of homes or effects of Americans without a 
court order.
    Can you respond to that particularly, please?
    Mr. Wainstein. Yes, sir. Thank you for the question. The 
question has been raised whether the statute as it is phrased, 
the Protect America Act, would allow us to take this authority 
that was clearly directed at our ability to get the assistance 
of communication providers, or telecommunications, and actually 
get assistance from a mailman to give us--you know, allow us to 
search mail, or somebody--a landlord to allow us to search a 
tenant's effects.
    That is not the case, and I could go through--sort of parse 
through the statute, but the bottom line is there are various 
requirements that this--the Director of National Intelligence 
and the A.G. have to certify to that are satisfied here.
    One of them is that we get the support, the assistance, of 
a communications provider. A communications provider is not 
going to be the one who is going to let us into a basement, not 
going to be the one who is going to let us see someone's mail.
    So when you actually tease it out in the statute, these 
concerns, these sort of hypothetical scenarios, really don't 
play out.
    In fact, this is something that we detailed in the letter 
that I sent to this Committee, I think, just earlier----
    Mr. Lungren. Well, isn't it true that section 105(b) still 
specifically is a mechanism for the Government to obtain third-
party assistance in the acquisition of communications of 
persons located outside the United States? Is that still a 
predicate?
    Mr. Wainstein. Absolutely. And it has to concern persons 
outside of the United States. And it also has to require that 
we get the assistance of a communications provider.
    And also, I would like to make another point. Some people 
are concerned that we would nonetheless use it this way. Keep 
in mind that we are--as I said in my earlier statement, we are 
providing tremendous access to Congress to oversee this 
program, so you will see what it is we are doing.
    The FISA court is receiving the procedures by which we 
conduct this surveillance. If the procedures allow that, they 
will see that that doesn't fit with the law.
    And in fact, a person who receives a directive which is 
inappropriate can challenge it under this law, can go to the 
FISA court and challenge the appropriateness of that directive.
    So there are a number of ways which would prevent us, even 
if we had a mind to do so, from using this authority in an 
unintended way.
    Mr. Lungren. Thank you very much.
    And I thank the gentleman for yielding.
    Mr. Coble. I will reclaim and yield back, Mr. Chairman.
    Mr. Conyers. Thank you.
    Crime Subcommittee Chairman, Bobby Scott, of Virginia?
    Mr. Scott. Thank you.
    Admiral, we have had some confusion on when something is 
classified and when it is not. Is there some process that 
delineates when something is classified and when it is not 
classified?
    We have had testimony here of things that were classified, 
and then you would read it in the paper. Does it become 
declassified just because you said it, or is there some process 
to declassify?
    Mr. McConnell. No, there is a process, but it is ultimately 
a judgment call.
    Mr. Scott. Well, if it is a judgment call--but I mean, do 
we know, when does it become declassified? Is that when you 
just decide on the spot to blurt it out to a reporter?
    Mr. McConnell. No, not at all.
    Mr. Scott. Is there some process?
    Mr. McConnell. There is a process but, as I say, it is 
ultimately the responsibility of the President to decide----
    Mr. Scott. But there is a process. Do we know when 
something was declassified, the moment of time it was 
declassified, and is there some record of that?
    Mr. McConnell. Not specifically that I am aware of. I am 
sure it can be recovered in some way if there is a specific 
concern or question.
    Mr. Scott. You said that the old law prevented you from 
getting intelligence and mentioned specifically conversations 
between al-Qaida from overseas talking to people within the 
United States, and now it is legal to intercept those 
communications.
    If it is legal now, why couldn't you have intercepted those 
conversations with a FISA warrant, a FISA warrant obtained 
before, or after the fact if you are in a hurry?
    Mr. McConnell. The issue becomes volume and ability to keep 
pace. We could have targeted communications of al-Qaida, except 
when it touches a wire in the United States. That was the 
technical issue----
    Mr. Scott. Wait, wait. You could get a warrant to get that. 
You just couldn't do it without a warrant.
    Mr. McConnell. Yes, sir. But what you have just now said is 
now you are requiring us to have a warrant for a foreign target 
in a foreign country. So the issue is there are lots of 
targets, and so we couldn't keep up.
    Mr. Scott. But you are not--so you would just say it is a 
paperwork problem, it is not a prohibition in the law.
    Mr. McConnell. No, it is a practical problem.
    Mr. Scott. But you can get that information, you could get 
that information----
    Mr. McConnell. No, sir. I cannot. Think about foreign 
intelligence. I mean, there are thousands, potentially 
millions, of potential targets of interest, so the process just 
couldn't turn fast enough, if we were required to get a warrant 
for every one of those.
    Mr. Scott. And if you felt you needed some information, 
even the after-the-fact warrant would not solve that problem?
    Mr. McConnell. Would not, no, sir.
    Mr. Wainstein. And if I could add, you would also, in that 
sense, be required--you would not just make the showing that it 
is a valid foreign intelligence target that we do in our 
foreign intelligence collection. Under FISA, you would have to 
be making a probable cause showing concerning that foreign 
person overseas.
    So it is not the case that in every situation where we had 
a valid foreign intelligence target we would make a probable 
cause showing to the FISA court. It is not the case that, in 
any sense, we could do that for every valid foreign 
intelligence target----
    Mr. Scott. So anybody overseas, you don't have to make any 
ascertainment about who they are, any call into the United 
States you can listen to.
    Mr. McConnell. Foreign, yes, sir, if it is a legitimate 
foreign intelligence target. I mean, there are practical 
limitations.
    Mr. Scott. Well, wait a minute. Wait a minute. You just 
said you didn't, it is not a target. It is just somebody.
    Mr. McConnell. Well, let's insert some practicality here.
    Mr. Scott. If you practically target somebody as a 
terrorist overseas, there is no problem, there is no legal 
impediment to you getting a warrant to who they are calling.
    Mr. McConnell. Now, under the new act, that is correct. 
Under the old act it was.
    Mr. Scott. No, under the old act you could get a warrant.
    Mr. McConnell. I could get a warrant, that is correct.
    Mr. Scott. Okay.
    Mr. McConnell. The issue was I was required to get a 
warrant.
    Mr. Scott. Okay. You would just save a little more 
paperwork. Okay.
    Mr. McConnell. Well, I wouldn't characterize it as a little 
more paperwork.
    Mr. Scott. The section 105(b) authorizes you to get foreign 
intelligence information ``concerning''--now, the word in the 
section 105(a) is ``directed at a person.'' In 105(b) it is 
``concerning persons believed to be outside the United 
States.''
    That is a different word, and why wouldn't we conclude that 
you are supposed to have a different meaning, that the subject 
matter of the conversation is concerning a person to be outside 
of the United States?
    Mr. McConnell. Sir, that is complex. I want to ask counsel 
to respond. There are reasons for the choice of words. From my 
perspective, we want to be effective, so if there is a better 
word, I would be happy to consider it.
    But let me ask counsel to respond to your specific 
question.
    Mr. Powell. In terms of the actual drafting, sort of whose 
idea it was, and actually what rationale there was for putting 
that in there--I can't speak to that myself, but I think that 
when you look at it, you realize that given the circumstances 
under which this was actually drafted, it was intended to allow 
us to fill an intelligence gap.
    Mr. Scott. Well, let me just--I am running out of time. 
Acquisition of foreign intelligence information concerning 
persons reasonably believed to be outside of the United 
States--now, the gentleman from California went to great 
lengths to say you have to have it in context with all these 
other laws.
    Unfortunately, section 105(b) starts out with the phrase 
``notwithstanding any other law.'' Now you say you are 
authorized in the acquisition of foreign intelligence 
information concerning persons reasonably believed to be 
outside the United States.
    Now, why couldn't we conclude somebody calling--two people 
in the United States talking to each other about Tony Blair--
concerning a person--he is believed to be outside the United 
States. Why shouldn't we conclude that you are trying to get 
into that conversation without a warrant?
    Mr. Wainstein. Well, that is the point that Congressman 
Lungren made, which is that the rest of FISA, the rest of the 
definition of FISA----
    Mr. Scott. Well, no. ``Notwithstanding any other law'' 
starts off that section, which cancels out all that.
    Mr. Lungren. Will the gentleman yield on that point? Will 
the gentleman yield on that point?
    Mr. Scott. I will yield.
    Mr. Lungren. If it said ``notwithstanding any other section 
of this law'' I think your point would be valid. It says 
``notwithstanding any other law,'' provision of law. It still 
is within the context of FISA.
    Mr. Scott. Well, notwithstanding any other law--authorize 
acquisition of foreign intelligence information concerning--
now, these words mean something, and you pointed out that there 
are--you intentionally chose different words not directed at a 
person reasonably believed to be located outside the United 
States.
    It is concerning persons reasonably believed to be outside 
the United States. Now, would that include, say, a 
conversation? Suppose you have a war protester in Iraq calling 
a war protester in the United States. That is foreign 
intelligence, isn't it? Is that foreign intelligence?
    Mr. Powell. We are prohibited from doing anything solely on 
the basis of activities prohibited by the first amendment. That 
is a bedrock principle of the intelligence community 
operations. A war protester----
    Mr. Scott. Where is that in here? Where is that in here?
    Mr. Powell. That has been a bedrock principle of the 
intelligence community. That is in Executive Order 12333. That 
is in the National Security Act. That is a bedrock principle 
that is part of every person's training in the intelligence 
community.
    A war protester exercising their first amendment rights is 
not a valid foreign intelligence target.
    And if I may answer the other hypothetical involving the 
notwithstanding any other law, if you read the conditions under 
which certifications may be made within that section, we have 
to certify that the acquisition does not constitute electronic 
surveillance.
    Electronic surveillance, as defined in the act, remains the 
same. If the sender and intended recipient are both within the 
United States, we are required to get a court order. That would 
remain electronic surveillance.
    That is the specific reason why, in this provision, it says 
that they can only certify it when it says the acquisition does 
not constitute electronic surveillance.
    Mr. Scott. Does that include e-mails? Does that include e-
mails?
    Mr. Powell. The acquisition does not--I don't think that--
it is communications, foreign intelligence information. It 
cannot constitute electronic surveillance. So if it is a 
domestic communication captured, it would be included.
    Mr. Scott. Is an e-mail included in the exclusion? Can you 
get an e-mail, domestic to domestic, talking about someone 
outside of the United States?
    Mr. Powell. I believe that would constitute electronic 
surveillance----
    Mr. Wainstein. It would require a warrant.
    Mr. Powell [continuing]. And require a court order.
    Mr. Conyers. The gentleman's time has expired.
    Mr. Wainstein. May I just add one thing, Mr. Chairman, just 
to follow on to your question about the exercise of first 
amendment rights?
    In FISA, actually, section 1805, it says the targeted 
electronic surveillance--we have to show the targeted 
electronic surveillance the foreign power--provided that no 
U.S. person may be considered a foreign power or an agent of a 
foreign power solely upon the basis of activities protected by 
the first amendment of the Constitution of the United States.
    Mr. Scott. Wait a minute. You don't have to be a foreign 
power, because you just have to be outside of the United 
States.
    Mr. Wainstein. Yes. You were asking about where that 
provision is. That is actually in the original FISA when it 
talks about our showing of somebody being a foreign power----
    Mr. Scott. Well, you are not getting a warrant under FISA. 
You are just designating somebody out of the country calling 
in. And the question is whether you can pick up some foreign 
intelligence.
    Mr. Wainstein. Yes. Well, and that goes to what Mr. Powell 
said about the guidance and the various policies of the 
intelligence community. I was saying that that has actually 
been codified in FISA as well, and I think it is something that 
permeates all our activities.
    Mr. Conyers. In other words, it could be clearer.
    The Chair recognizes Steve King, Ranking Member of 
Immigration, from Iowa.
    Mr. King. Thank you, Mr. Chairman.
    And I thank the witnesses.
    I have to back up a little bit, and I would like to----
    [Audience outburst.]
    Mr. Chairman, I would ask if you might just simply reset my 
clock. I don't know if it actually got set and seems to be 
blank up there.
    But I would ask Director McConnell if you could take us 
back to this decision by the FISA court that it required a 
warrant, foreign to foreign, if the conduit happened to be 
within the United States.
    And as I read through some of the documents on that, I 
didn't recognize the name of a judge or the names of a panel of 
judges that had made that decision. Have we identified the 
brain or the brain trust that came to such a conclusion? And is 
that something that is unclassified?
    Mr. McConnell. Sir, it wasn't a judge. It was an 
interpretation of the statute. And there are 11 judges on the 
court, and as you know, judges are independent and they 
exercise their own reading of the law, their interpretation of 
the law.
    So in the case of the FISA review, we have to get an update 
every 90 days. So when we subjected the request to the FISA 
court, the first review kept us where we needed to be with 
regard to the targets we need to collect and so on.
    As the subsequent review continued after the 90-day renewal 
period, subsequent judges started to define it a little more 
narrowly.
    So what we found is we were actually going backwards in our 
ability to conduct our surveillance, which was requiring a 
warrant for a foreign target in a foreign country. And the 
issue was the wording of the law from 1978. If it touched a 
wire in the United States, we had to have a warrant. That was 
the basic issue.
    Mr. King. Well, and I thank you for that clarification, but 
it was incremental changing, apparently, of a realization or an 
analysis that took place, as you saw that 90-day report come 
out.
    And I wanted to also ask you, was our national security put 
at risk because of that decision?
    Mr. McConnell. Oh, yes, sir. Definitely. We were in a 
situation where we couldn't do our basic function of provide 
warning or alert to stop an attack.
    Mr. King. And for how long, Director?
    Mr. McConnell. We had a stay until the end of May, and we 
weren't able to go back up on full coverage until the new law 
was passed on the 5th of August.
    Mr. King. Okay. So we had June, July, about 8 weeks to 9 
weeks there all together, that the national security of the 
United States was jeopardized because of what--and I am not 
taking issue with the analysis of the language that was there, 
because I recognize that it was written in 1978, and we had 
this transition that took place.
    But I wanted to ask you about your understanding of your 
oath to the Constitution----
    Mr. McConnell. Yes, sir.
    Mr. King [continuing]. And to the rule of law, and some of 
these come down to some very difficult questions. I know 
internally I have been conflicted a number of times myself.
    But if it meant saving the lives of Americans and 
recognizing a judicial opinion that has been kind of a moving 
opinion, really when it came down to that real decision, if it 
came down to black and white, and not having alternatives--and 
we had a 9-week window here--where does your priority fall on 
your oath and your understanding of that oath compared to our 
national security?
    Mr. McConnell. Well, my first responsibility is defend the 
Constitution and protect the country, so that would be a very, 
very hard choice.
    My preference, and the reason I have gone further than any 
other senior official in this community to talk openly about 
it, is to get us in the right place with the right kind of 
debate in the Congress and understanding by the public.
    So that is a very difficult question. In the final 
analysis, I would protect the country.
    Mr. King. And yet we had about a 9-week window there when 
we weren't--I mean, if we suspended surveillance under those 
conditions during that period of time----
    Mr. McConnell. Yes, sir.
    Mr. King [continuing]. If you weren't doing anything then, 
that would be the only scenario by which the United States 
didn't become more vulnerable during that period of time.
    Mr. McConnell. Right. What we did do was, as the numbers 
got smaller, we prioritized in a way that we kept the most 
important, the most threatening, on coverage.
    And we worked very quickly to try to catch up, and what we 
found is the--there is so much volume that we were falling 
further and further behind. That is why we made it such a 
critical issue to try to get the attention and focus on it in 
July.
    Mr. King. And yet when we did finally pass the update law 
on August 5--and it was signed into law same day, I think, as 
final passage, if I recall correctly--the President understood 
the urgency.
    Mr. McConnell. Yes, sir. The 4th it was passed. It was 
signed the next morning on Sunday, the 5th.
    Mr. King. Okay. And then did it take some time to get 
ramped back up again, to get back up to speed?
    Mr. McConnell. It actually took us about 5 days to get it 
all done, because there were new procedures, and we had to be 
very careful, so we had the highest priority on coverage, and 
then it took us about 5 days or so get back to where we were in 
January of this year.
    Mr. King. So what happens to national security if some of 
the amendments to this law that have been discussed here today 
are applied?
    I mean, you have testified to that a number of times, but 
200 hours per warrant--what percentage of your effectiveness 
might be diminished if this law is amended in the fashion that 
is advocated?
    Mr. McConnell. If we go back to the original interpretation 
and the way it was being interpreted by the FISA court, we 
would lose about two-thirds of our capability and we would be 
losing steadily over time.
    Mr. King. Thank you, Director. I appreciate your service to 
America and your testimony today.
    And yours as well, Deputy.
    And I would yield back the balance of my time.
    Mr. Conyers. Thank you.
    Chairman Howard Berman, Courts Subcommittee, California?
    Mr. Berman. Thank you, Mr. Chairman.
    I just might say parenthetically that I am unaware of 
anyone who is suggesting we just go back. There are 
differences, but I think that is a straw man, that 
hypothetical.
    I have a few questions, but first I would like to yield a 
minute to my colleague from California to follow up on some 
earlier comments made in the Chairman's questioning.
    Mr. Schiff. I thank the gentleman for yielding, and I will 
be very quick.
    Mr. Director, I just want to follow up on the Chairman's 
questions at the outset.
    I don't think the Chairman was asking how often you have 
attempted to get a warrant on an American, which I think you 
have stated that you have done about 100 times, but rather 
where you have gone up on a foreign target but have had the 
effect of overhearing the conversation of an American. How 
often has that happened?
    And I think you said you would get the number back to us, 
but I wonder if you can tell us today, are we talking about 
hundreds of conversations, thousands of conversations, or tens 
of thousands of conversations?
    Mr. McConnell. Sir, I simply don't know. I mean, I just 
don't know. We will get the number and provide it.
    Mr. Schiff. I would think as the Director you ought to know 
what ball park we are talking about even if you don't know the 
specific number.
    Do you have any objection to----
    Mr. McConnell. I am not even sure we keep information in 
that form. It would probably take us some time to get the 
answer. The reason is you are collecting information. It is in 
a file. It will roll off in a period of time.
    You may not even know it is in the database. That is one of 
the reasons we are so careful about who has access to that 
database.
    Mr. Schiff. If I could just--because I don't want to take 
up too much of Mr. Berman's time.
    Do you have any objection, Mr. Director, to an amendment to 
the Protect America Act that would provide that when you do 
overhear the conversation of an American, even though you are 
targeting a foreigner, that you will report those conversations 
to the FISA court, that the FISA court would have a supervisory 
role as well as the Congress?
    Since that would be done on the back end, it wouldn't 
provide any time obstacle or anything to the surveillance on 
the front end. Would you have any objection to that kind of an 
amendment?
    Mr. McConnell. Sir, all I would say is when you--what I was 
trying to get out earlier--when you are collecting information, 
think of it as a broad area targeting foreign communications.
    More often than not, you don't even know that communication 
is in the database, so it might--and I don't know; I would be 
happy to take a look at it. It might create a situation where 
it creates significantly extra effort on our part--don't know, 
but happy to take a look at it.
    Mr. Berman. Just reclaiming my time, how do you know, if 
you are minimizing those conversations, how come you wouldn't 
know? How do you minimize without knowing?
    Mr. McConnell. If you look at it, then you know.
    Mr. Berman. So all you do is minimize the ones you happen 
to look at.
    Mr. McConnell. Right. If there is something in there that--
it doesn't come up for some reason, you just wouldn't know. 
That is what I was trying to make the Committee sensitive to.
    Mr. Berman. Mr. Wainstein, it seems to me there is a 
fruitful area, based on your letter, to proceed in. I want to 
make sure I understand.
    You state that the bill we passed does not give you the 
authority for physical searches of homes, mail, computers or 
personal effects of individuals in the U.S., and you won't use 
it for such purposes.
    There are people who are concerned about that. As part of 
being able to do what you need to do, would you have any 
objection to--as part of a permanent or subsequent 
authorization, prohibiting--making clear that that is not 
authorized?
    Is there any problem with that, that which you have 
asserted without qualification is not allowed?
    Mr. Wainstein. Right. I have been asked that question a 
number of times--well, that is not a problem. If you don't read 
the statute to allow that, then why not go ahead and put some 
sort of proviso in the statute that says that it is not 
allowed, and that is--as I said, we are perfectly happy to see 
any proposed language you might have.
    You have got to keep in mind, though----
    Mr. Berman. Maybe we will just take it from your letter.
    Mr. Wainstein. Keep in mind, however, sir, that, you know, 
every time you put language in--see, here you are talking about 
authorizing language that some people think might has 
unintended consequences.
    If you put limiting language in, you have got to make sure 
that that doesn't have unintended limiting consequences. So it 
has to be looked at very carefully. But I would be happy to 
look at it.
    Mr. Berman. But you are open to that avenue of pursuit.
    You state collection of business records of individuals in 
the United States because they concern persons out of the 
United States. We want to make clear we will not use this 
provision to do so.
    I guess I have the same question. You don't think this 
provision authorizes collection of medical or library records 
for foreign intelligence purposes.
    Mr. Wainstein. Well, there is no hesitation there. You 
know, my reading of the statute is it does not permit that.
    Mr. Berman. And then I have same question regarding a bill 
that would make people feel more comfortable about this and at 
the same time not alter what you think the bill that passed in 
August does.
    Mr. Wainstein. We would be happy to take a look at the 
language, sir, yes.
    Mr. Berman. And third, the issue of reverse targeting. I 
notice here you say the Government cannot, in other places you 
say the Government will not, do it.
    Here you say the Government cannot and will not use this 
authority to engage in reverse targeting, the targeting of a 
U.S. person by the--your interest is in the U.S. person but you 
talk to the foreign person, because the U.S. person you think 
will be communicating with him.
    Is there some subtle reason, or did you just decide to use 
a new formula when you added ``cannot'' to ``will not'' use 
that----
    Mr. Wainstein. That might have just been a little 
rhetorical flourish. I am not sure. Maybe I just wrote that 
late at night.
    But I think the point was very clear. We cannot under the 
statute. That is not allowed. When we direct surveillance at 
somebody in the United States under FISA, under the preexisting 
definitions of FISA, we cannot do that without a court order, 
and we will not do it.
    Mr. Berman. So it would just seem to me, as part of giving 
you the ability to do what you need to do, and having the 
American public or that part of the American public and the 
Members of Congress that are concerned about other authorities, 
a fruitful avenue to pursue jointly would be to clear the 
underbrush out.
    Those things that you don't think you are authorized to do 
and aren't seeking authorization to do, we specifically and 
affirmatively indicate clearly you can't do.
    Mr. Wainstein. Perfectly happy to engage with you on that 
process, and I guess I would just say----
    Mr. Berman. A healing process.
    Mr. Wainstein [continuing]. In the context, though, of the 
recognition that there is ample congressional oversight, there 
is FISA court oversight, and you have got a commitment that we 
are not going to do anything, and that it would be against the 
law to do the reverse targeting as you just described, so----
    Mr. Berman. I don't feel overwhelmed with the ampleness of 
the congressional oversight at this particular moment, but----
    Mr. Lungren. You are part of it.
    Mr. Wainstein. We will be briefing you at any time you ask.
    Mr. Berman. I reassert my position.
    [Laughter.]
    Mr. McConnell. Sir, we feel overwhelmed right now with the 
number of visits we have had since the 5th of August. But could 
I just comment, if I would, where we got tension in the system 
last time is people were adding words and we didn't have a 
chance to examine them, so this unintended consequence thing is 
very important. As sort of the----
    Mr. Berman. I appreciate that, and that is an argument for 
what I am suggesting as well----
    Mr. McConnell. Right.
    Mr. Berman [continuing]. Because there are other people who 
fear consequences.
    Mr. McConnell. The other way.
    Mr. Berman. They won't even assume that they were 
unintended. They think they may have been intended 
consequences, but you are up here telling us in writing and in 
person they were never intended, and we want to dispel that 
concern on that side.
    Mr. McConnell. And my point is if we can sit down and walk 
it all the way through, examine each word and understand it and 
accept it, then that is perfectly acceptable to the 
Administration.
    Mr. Berman. Very good.
    Thank you, Mr. Chairman.
    Mr. Conyers. That is a fine idea. That is what we ought to 
have been doing all the time.
    The Chair recognizes the distinguished gentleman from 
Florida, Mr. Feeney.
    Mr. Feeney. Thank you, Mr. Chairman.
    Admiral McConnell, thank you for coming today. The purpose 
of the hearing, as I understand it, is to review the recent 
changes enacted by Congress over the summer and the proposal to 
extend those.
    I want to make sure I have this in context, because those 
changes were very limited, as I understand them. And so from a 
historical perspective--and you are very familiar with this 
from your time at the NSA.
    In 1978, in the aftermath of concerns about some domestic 
surveillance activities and presidential powers, Congress, led 
by a Democratic majority, enacted FISA. Is that right?
    Mr. McConnell. Yes, sir.
    Mr. Feeney. And nothing in FISA precluded any surveillance 
activity between a foreign target and another foreign target.
    Mr. McConnell. That is correct.
    Mr. Feeney. And all of this was before 9/11, before we had 
been attacked on our soil actually with any serious success 
since the War of 1812; at least the continental U.S., putting 
aside Pearl Harbor.
    And so presumably the intelligence community would have at 
least as much interest in foreign surveillance after the 9/11 
attacks as it had before the 9/11 attacks.
    Mr. McConnell. Yes, sir.
    Mr. Feeney. And in the meantime, after the enactment of 
FISA, we have had this complete reversal in terms of the way 
the majority of communications take place.
    It used to be that with respect to international 
communications, most of them were done in a wireless----
    Mr. McConnell. That is correct.
    Mr. Feeney [continuing]. Method, while domestic 
conversations typically took place over the wires.
    Mr. McConnell. Yes, sir.
    Mr. Feeney. And now we have had a reversal, where most 
domestic conversations take place wirelessly, but the majority 
or the preponderance of the international conversations 
actually take place on hard line.
    Mr. McConnell. Yes, sir.
    Mr. Feeney. And many of those hard lines, if not a 
majority, go through the United States at some point.
    Mr. McConnell. That is correct.
    Mr. Feeney. And so that under FISA, in order to give its 
original intent meaning, under now obsolete technology, all we 
really did was to modernize the ability of our intelligence 
people to look at a foreign target communicating with somebody 
else.
    Mr. McConnell. Yes, sir. That is correct.
    Mr. Feeney. And there is concern about whether or not the 
people that receive the communication from the foreign target 
that may be located in the United States, whether there are 
tens of them or hundreds or thousands--and you don't even know 
whether you keep records according to those lines.
    But before the changes took place this summer, if a foreign 
target had used the old international technology to correspond 
with somebody in the United States, was there any specific 
protections for the individual American that received 
correspondence from a----
    Mr. McConnell. No, sir, it would not require a warrant, and 
then if it did involve an American, we would go through a 
minimization procedure.
    Mr. Feeney. In order to go forward, which you are still 
doing today.
    Mr. McConnell. Yes, sir.
    Mr. Feeney. And in fact, now you are required, which you 
were not required before these acts--if an American has 
received a communication from a foreign target, you are now 
required to minimize, which was not true before these new 
enactments.
    Mr. McConnell. Actually, it was true even in the old days.
    Mr. Feeney. It was true in the old days.
    Mr. McConnell. Yes, sir. Minimization has been consistent 
since 1978.
    Mr. Feeney. But the point is that American citizens have 
not lost--other than the fact that the technology has changed 
and we are after the same substance of communications, American 
citizens haven't lost any substantive or procedural due process 
rights or rights under the bill of rights.
    Mr. McConnell. That is correct.
    Mr. Feeney. Okay. I wanted to make that clear, because the 
whole purpose of these hearings seems to be the notion that we 
have empowered under the guise of foreign intelligence all 
sorts of snooping on Americans, and that is just not my 
understanding from the facts.
    It seems to be totally disassociated with reality. And I 
think a lot of us are concerned with civil liberties. But we 
ought to get our facts straight before we go through that.
    The other major change that the President is asking for, 
Mr. Wainstein, is with respect to immunizing communications 
companies and others that cooperate. Why is that important?
    We have just established that citizens haven't lost any 
rights, despite the hullabaloo. Now why is it important to make 
this additional change?
    Mr. Wainstein. Well, I think it is a--I mean, a couple 
points. One, I think it is sort of fundamentally unfair and 
just not right to--if a company allegedly assisted the 
Government in its national security efforts, in an effort to 
defend the country at a time of peril--that they then get 
turned around and face tremendously costly litigation and maybe 
even crushing liability for having helped the United States 
government at a time of need.
    So I think it is sort of just a general fairness matter. It 
is just not right.
    Secondly, keep in mind that every time we have one of these 
lawsuits, very sensitive information gets discussed and gets 
leaked out or, you know, disseminated out in the public, and 
our adversaries are smart.
    Both the terrorists who might be over in, you know, some 
place in the Middle East are smart, and then the governments 
that might be our adversaries are tremendously sophisticated, 
and they are gleaning all this information that gets out, and 
that is a tremendously, you know, concerning thing.
    Also, just in terms of the disclosure of information about 
the fact that a company might have cooperated with us in 
national security efforts might well put that company's asset 
that happened to be overseas in some jeopardy. That is a very 
real concern for these companies.
    So I guess those are three of the reasons why I think that 
is a very important part of the bill that the DNI submitted 
back in April of this year.
    Mr. Feeney. I yield back, Mr. Chairman.
    Mr. Conyers. Thank you, sir.
    The Chair recognizes the very patient Chair of Immigration, 
Zoe Lofgren, of California.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Mr. Conyers. Excuse me.
    Ms. Lofgren. I thought Mr. Watt was going to go before----
    Mr. Conyers. He wasn't here the last time I looked, but I 
will withdraw that invitation and recognize the distinguished 
gentleman from North Carolina, Mel Watt.
    Mr. Watt. Thank you, Mr. Chair. I thought I had been here 
pretty much the whole time.
    But let me direct this question to all three of you so as 
not to have to individualize it.
    Mr. King in his questions referred to, and in the answers, 
you referred to a 9-week window when there were questions about 
the legality of some aspects of what had been done.
    Are any of the three of you aware of which 
telecommunications companies continued to allow surveillance 
during that time period?
    Mr. Powell. There was nobody who was--we were operating, 
and we have since January, under----
    Mr. Watt. My question is are you aware of any companies 
that continued to allow surveillance. I am not trying to cut 
you off, but if the answer is no, then I think that would be 
the answer. If the answer is yes, then I would be happy to 
listen to your explanation.
    Mr. Powell. Anyone who was providing us assistance was 
doing so under FISA court orders. I am not aware of anyone 
providing assistance outside of valid FISA court orders during 
that window. We simply had a gap.
    Mr. Watt. Any of you aware of any Administration officials 
who made promises to seek retroactive immunity as part of the 
FISA revisions to any telecommunications companies to get them 
to cooperate with the terrorist surveillance program or any 
other surveillance programs?
    Mr. McConnell. No promises, but that was included in the 
bill that we submitted back in April. That was a part of the--
--
    Mr. Watt. I understand it was in the bill.
    Mr. McConnell. No promises.
    Mr. Watt. I am asking you whether anybody in the 
Administration, to your knowledge----
    Mr. McConnell. To my knowledge, no.
    Mr. Watt [continuing]. Made any promises that that would be 
part of what was being sought to gain their cooperation.
    Mr. Powell. There was no need to in the sense that we have 
always seen that as a very high priority to get that. It was 
always a high priority. It was in our bill, and it was 
something that the DNI has always emphasized in his statement, 
so I don't know----
    Mr. Watt. Are any of the three of you aware of any 
assurances that any member of the Administration gave to any 
telecommunications companies that the Administration would seek 
to dismiss on national security grounds any lawsuits 
challenging the telecommunications companies' cooperation with 
any of the surveillance programs?
    Mr. McConnell. I am not aware of any promises like that.
    Mr. Powell. No, sir.
    Mr. Watt. My question was addressed to all three of you.
    Mr. Powell. I don't know of any assurances. It certainly is 
the case that when intelligence activities are disclosed in an 
unauthorized manner--this was the case that we were going to 
seek to dismiss, to protect sources and methods.
    So it is not a question of assurances or promises. I think 
everyone knew that was the course that this would be launched 
on.
    Mr. Wainstein. Yes, I think that has been quite clear from 
the initial disclosure of the----
    Mr. Watt. And what specifically can you identify that the 
telecommunications companies did that is not already covered by 
the immunities under the FISA program?
    What is it that we are putting this provision in the law to 
protect against, other than the generalized concern that Mr. 
Wainstein referred to?
    Mr. Wainstein. Well, FISA has its own immunity provision. 
The Protect America Act has an immunity provision.
    Mr. Watt. That is the point I am making. What is it that we 
are seeking to hold them harmless against, other than what FISA 
already holds them harmless against?
    Mr. Wainstein. Well, as you know, a number of 
telecommunications companies have been sued around the country 
for a variety of different alleged types of assistance that 
they allegedly provided to the Government after 9/11 in the 
Government's surveillance efforts.
    And so it would be that range of activities, and a number 
of them cite the program which has been described as the 
terrorist surveillance program.
    Mr. Watt. And you are proposing that we write some language 
that would absolutely cut off the right to sue, or, is there 
some language that we are just going to retroactively immunize 
whatever actions were taken under the provision that you 
propose?
    Mr. Wainstein. Well, the Director of National Intelligence 
proposed--one of the provisions submitted in the FISA 
modernization proposal in April--one of them is retroactive 
immunity back to 9/11.
    Mr. Watt. Let me ask the question again. What is it that we 
are immunizing them from, that you are seeking to immunize them 
from?
    Mr. McConnell. Alleged cooperation with the community to 
conduct foreign surveillance. Alleged cooperation with the 
intelligence community to conduct foreign intelligence.
    Mr. Watt. How many lawsuits are already out there?
    Mr. McConnell. Sir, I don't know. I don't know.
    Mr. Watt. And you don't think that is a relevant 
consideration?
    Mr. McConnell. The number?
    Mr. Watt. Yes.
    Mr. McConnell. I am sure it is relevant. I just don't 
personally know. I haven't tracked it in that level of detail.
    Mr. Wainstein. Sir, I don't have the exact number, but I 
think it is somewhere in the range of 40 or 50 or so different 
lawsuits.
    Mr. Watt. And have you all done an analysis of these 
lawsuits to determine whether any of them have any 
justification? That is what you are seeking to have us immunize 
the Government from, right?
    Mr. Wainstein. Yes.
    Mr. Watt. Or immunize the telecommunications companies 
from. Has anybody evaluated them individually to determine 
whether any of them have merit?
    Mr. Wainstein. I have not personally, but we have a civil 
division in the Department of Justice that has been working on 
these cases and they have gone through the merits of these 
cases. And they would have done that.
    Mr. Watt. I yield back, Mr. Chairman. I appreciate it.
    Mr. Conyers. Thank you.
    The Chair recognizes the Ranking Member of Constitution 
Subcommittee, Trent Franks, of Arizona.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank you, gentlemen, for being here.
    Admiral McConnell, I have heard you both in classified 
setting and in open setting, and I will just say to you that I 
am grateful that a man of your commitment to freedom, to the 
Constitution and clarity of mind is watching over my family. 
Very grateful to you, sir.
    With that, there have been a lot of hypotheticals here, so 
tongue in cheek, what if we lived in a world where there were 
no hypotheticals, hypothetically speaking?
    And the reason that I bring that up is because there is so 
many hypotheticals here that have been put forth that have so 
little to do with the real issues here, and I have been very 
impressed with your ability just to clarify things in ways that 
everyone can understand.
    But let me just, if I could, even though it is redundant, 
is it not true that, say, in Florida that if Osama bin Laden 
was in a hotel and was making a call to someone outside the 
country that you could not tap his phone or surveille his phone 
without a FISA warrant? Is that not true?
    Mr. McConnell. Yes, sir, that is correct.
    Mr. Franks. Even if you reasonably believed it was Osama 
bin Laden himself?
    Mr. McConnell. Yes, sir. It would require a court order.
    Mr. Franks. So the bottom line is, to make it very clear, 
no one living inside the United States is being surveilled 
without a warrant.
    Mr. McConnell. That is correct, if they are the target of 
the surveillance.
    Mr. Franks. If they are the target of the surveillance, 
yes, sir. No one is being targeted for surveillance in the 
United States without a warrant.
    Isn't it also true that you have some familiarity with the 
Constitution itself and the fourth amendment?
    Mr. McConnell. Yes, sir.
    Mr. Franks. And that you are committed under your own oath 
to uphold and defend that constitutional----
    Mr. McConnell. I am.
    Mr. Franks [continuing]. Part of the Constitution? So if 
indeed there was some statute out there that we didn't quite 
write right, hypothetically speaking, you would be bound both 
morally in your own mind and by the Constitution of the United 
States that that fourth amendment would transcend any failed 
statute.
    Mr. McConnell. Yes, sir.
    Mr. Franks. Yes. You know, given the nature of the 
executive orders and the non-statutory guides that were kind of 
discerning parameters of intelligence-gathering activity, let 
me put it this way.
    Sometimes the intelligence-gathering parameters are 
dictated in some detail by executive order as opposed to 
statute. Now, there are some here that believe that we need to 
have a statute for every one of those things.
    But analyzing that from a separation of powers point of 
view, and from a practical standpoint, if the Congress put 
forth every detail in every situation as to what parameters you 
could use for foreign intelligence that would transcend any of 
the executive orders, what would be the implications of that?
    Mr. McConnell. Sir, it wouldn't be, we couldn't be, 
flexible enough to be responsive to an evolving situation, so 
currently the laws are broad, broader. And then Executive Order 
12333 is actually how we execute the law and conduct our 
business, so it allows you more flexibility.
    Mr. Franks. And the practical challenge of getting a FISA 
court order for every foreign surveillance target is 
overwhelming, is it not?
    Mr. McConnell. Yes, sir. In this case we are discussing, we 
were limited strictly to just al-Qaida, just al-Qaida, and we 
couldn't keep up. So if it is foreign intelligence broadly 
speaking, weapons of mass destruction, that sort of thing, it 
would be impossible, physically impossible.
    Mr. Franks. Mr. Chairman, I have one last premise and then 
a question for the entire panel.
    Given the kinds of enemy that we face in today's world, 
intelligence and knowing what they are going to do, given the 
fact that there is very little way to deter their intent, we 
have to ascertain their plan and capacity.
    Given the nature of the enemy that we face today, it should 
stand obvious to all of us that intelligence is by far the most 
important aspect of this battle. If we knew where every 
terrorist was today and what their plans were, we could end 
terrorism within 60 days.
    So with that in mind, do you think that some of the bills 
that are being postulated here that would potentially preclude 
you from being able to surveille foreign intelligence targets, 
how serious a threat do you think that is to our national 
security?
    Mr. McConnell. Sir, the majority of what we know about 
these terrorists comes from this process, so my greatest 
concern is that in passing a bill where you don't fully 
understand all the unintended consequences, it could literally 
shut us down, as it did when the technology changed from 1978 
to currently. The interpretation of the law literally shut us 
down.
    Mr. Franks. Yes.
    Well, thank you all very much.
    And thank you, Mr. Chairman.
    Mr. Conyers. The very patient Chair of Immigration, Zoe 
Lofgren, California?
    Ms. Lofgren. Thank you, Mr. Chairman.
    In a recent article in the Washington Post, a scientist at 
Sun Microsystems, Susan Landau, expressed concern that the new 
technologies that are being used in the broadening 
intelligence-gathering efforts themselves create a national 
security vulnerability and, to oversimplify her thesis, would 
actually provide a portal into the telecommunications stream 
that could be exploited by our enemies.
    The systems being used domestically I assume are likely to 
be the ones fielded abroad, but they will be U.S.-based. So 
here is my question.
    Regarding NSA surveillance systems abroad, has anyone other 
than the United States government ever been able to use those 
systems to their advantage?
    Mr. McConnell. You mean the tools and techniques we would 
use abroad? Is that the question?
    Ms. Lofgren. The systems that we have deployed abroad to 
accomplish this surveillance--have those systems ever been used 
by others to their advantage?
    Mr. McConnell. Well, we have allies with which we share a 
lot of our collective effort.
    Ms. Lofgren. Well, the question is not with our permission, 
but adversely.
    Mr. McConnell. Others, other countries using similar 
techniques?
    Ms. Lofgren. Or an enemy of ours. Has anyone been able to 
use those?
    Mr. McConnell. Yes. Yes, there is evidence of other 
countries attempting to use similar collection techniques.
    Ms. Lofgren. Has there been successful use by others of 
those systems to their advantage?
    Mr. McConnell. Let me answer it to not say successful use 
of those systems, because I am not sure what you are referring 
to, but are others using electronic surveillance against the 
United States and its allies--the answer is yes.
    Ms. Lofgren. Perhaps we can explore this further. I know we 
are going to have a closed session, and perhaps we can explore 
this issue further in that venue.
    Mr. McConnell. Be happy to, ma'am.
    Ms. Lofgren. I want to get back to the immunity issue. If 
no one has done anything illegal, it is not clear to me why we 
need to immunize past behavior.
    And it seems to me that at a minimum, if we are going to do 
that, we ought to know specifically what the behavior is that 
we are immunizing.
    Are you prepared to let us know about that behavior either 
here or in a another setting?
    For example, we understand that there was a period in March 
of 2004 where the Administration proceeded in wiretapping 
without even an attorney general's authorization because both 
the attorney general and then acting attorney general, Jim 
Comey, refused to certify the program.
    Are there other periods that we are going to be immunizing 
and other programs that we are going to be immunizing?
    Mr. McConnell. To answer your first question, would we be 
willing to share what we are discussing, yes, we would, in 
closed session.
    With regard to your question about 2004, I personally can't 
answer it because I wasn't in the Government, or I don't have 
any personal awareness, but maybe my colleagues know.
    Ms. Lofgren. If you are suggesting that this would be 
better reported to us in closed session, that is an acceptable 
answer to me.
    Mr. McConnell. Yes.
    Ms. Lofgren. I don't want to do anything that would 
jeopardize our Nation's security.
    I have a question, really, about what started this issue, 
and it is something that troubles me a great deal.
    It has been referenced publicly that there was a decision 
by the FISA court that reached the conclusion that you could 
not obtain information that was from a foreign source, from a 
person abroad to a person abroad, that was merely routed 
through the United States.
    And I think there is 100 percent agreement in the Congress 
that that is something that we would want to remedy. I don't 
think there is a fight about that.
    But we have never seen the decision. And I think we should 
see the decision. And I wonder whether the decision was 
appealed. And you know, if it needs to be done in a 
confidential setting, I think that is fine.
    But to some extent, we are being asked to buy a pig in a 
poke here, and I don't really think that is the role of the 
United States Congress.
    Mr. Wainstein. No, thanks for the question, Congresswoman. 
I think we have got to be careful about sort of putting too 
much of this on any particular FISA court decision.
    The problem, as has been identified by a number of Members 
here, is with the original statute, and then with the evolution 
of technology since the original statute was drafted.
    And somebody has articulated it quite well earlier. You 
know, the problem is that you often--while you know where 
communications come from----
    Ms. Lofgren. So the information we got earlier about this 
decision was not correct?
    Mr. Wainstein. I am not exactly sure what information you 
got, and I am always reluctant to talk about what did or didn't 
happen in the FISA court because, you know, much of that is 
very sensitive.
    But I guess if I may, for purposes of this debate, it is 
the statute itself that is the issue, and that is the problem, 
so----
    Ms. Lofgren. Well, let me get back to the statute. And I 
really think that if it is in a closed session or not, we ought 
to at least see the decision that has been discussed.
    Mr. Wainstein. And I will tell you that we have discussed 
with a number of Members in closed sessions various----
    Ms. Lofgren. Not me, and I have been to all the closed 
sessions I was invited to, so--I would just like to focus in on 
105(b), where--and it has been talked about earlier, about 
surveillance ``concerning'' versus ``directed at,'' and what is 
meant to be covered by the use of the word ``concerning'' as 
compared to ``directed at?''
    It is a much broader description. Was it inadvertent or was 
it intended? And if intended, what was it--what is intended?
    Mr. Wainstein. Well, I will say I am not sure exactly, you 
know, because this was put together with the input of very many 
people, so I can't sort of ascertain exactly what every sort of 
intent or rationale was underlying the selection of that word.
    I will say, though, that I am not sure that actually it is 
that much broader than ``directed at,'' if broader at all.
    Ms. Lofgren. So then you wouldn't mind going back to the 
more traditional ``directed at.''
    Mr. Wainstein. Yes, I don't--``concerning,'' by the way, 
was in our bill that we proposed back in April, so this wasn't 
something new that just got sort of sprung in the PAA.
    I would be perfectly happy to take a look at that. I think 
that as I said, I think, earlier, I wouldn't be surprised if 
some of the dynamics here were that we needed to fill this 
intelligence gap, we wanted to use a term which we knew would 
allow the intelligence community to fill that gap, and was 
concerned that any sort of perceived narrower terms might not 
allow us to do that.
    Ms. Lofgren. Well, my time has expired. I will just say 
that I think the--as you know, I am sure, I did not vote for 
this act, because it is either poorly drafted or it is 
intentionally drafted to be over broad.
    And I look forward to working with you because, as I say, 
there is unanimous agreement on solving the problem that you 
state, not unanimous agreement on an expansion.
    And I yield back to the Chairman and thank him for his 
indulgence while my light is on.
    Mr. Wainstein. Mr. Chairman, may I just follow up for a 
quick second? I think that raises an interesting issue, and we 
heard something from one of your colleagues about 
hypotheticals.
    And the question is this, the reasonable reading of the 
statute--you know, those of us who went to law school--many of 
us heard, you know, the old lesson about, what if there is a 
law that says you can't have cars in a park.
    But then someone has a heart attack in the park, and then 
the ambulance comes onto the park to get the person who has a 
heart attack. Does the ambulance driver get prosecuted for 
violating that law?
    Well, obviously, that is not a reasonable reading of that 
statute. But that statute might not actually have a carve-out 
for ambulances, at least not explicitly.
    So I think any statute you look at, like we are here--while 
I think this is a healthy process, any statute you look at, you 
can look at the margins and see whether, you know, potential 
scenarios could actually become a reality.
    And the question is whether they are reasonable or not. And 
so while I agree that this is an important process to go 
through, that was the purpose of our letter to you of last 
week, is to tell you what we think is the reasonable reading of 
the statute.
    Mr. Conyers. Thank you.
    Mr. Wainstein. Thank you, sir.
    Mr. Conyers. I thank the gentlelady.
    The Chair recognizes the distinguished gentleman from 
Indiana, Mike Pence.
    Mr. Pence. Thank you, Mr. Chairman.
    And may I also add my words of appreciation to you for your 
strong and even-handed application of the rules of decorum in 
the hearing today?
    And I appreciate this panel of witnesses and regret the 
circumstances under which you came before the Congress today.
    And I particularly want to commend our second Director of 
National Intelligence, Director McConnell.
    Your service in this role since February and your previous 
service in uniform, as well as the director of the National 
Security Agency under President Clinton is a record of service 
that speaks for itself, and I am grateful for your expertise in 
these areas.
    As we say in Indiana, you have forgotten more about this 
area than I will have time to learn. But I am trying.
    And, Mr. Wainstein, thank you for your testimony as well, 
and the balance of our panel.
    If I could focus two quick questions, and I will ask them 
in succession, and then the witnesses can address them.
    To Director McConnell, specifically, at a hearing 2 weeks 
ago on this subject, one witness, if you will recall, suggested 
that it was easy to tell when a foreign terrorist enters the 
United States, that you could simply look at billing records, 
see how much they are charged for phone calls. Surely it can't 
be that simple.
    My question to you is can foreign targets move locations 
with little detection? Why is it difficult to pinpoint their 
location?
    And could you respond to that in connection with the 
provision in the Protect America Act where we have broadened to 
include people reasonably believed to be outside the United 
States? How easy is it to know where someone is?
    And let me leave that hanging and let you think about that, 
Mr. Director, if I can.
    Secondly, very direct question, Mr. Wainstein. Can you 
clarify something for me? I have been in and out of the hearing 
today--other obligations. But I believe this came up earlier.
    Particularly in light of some of the theatrics that went on 
today, it might even be more relevant to clarify. Does FISA 
either in its current form or in its preexisting form allow the 
Government to target the U.S. person for surveillance based 
upon antiwar statements?
    In other words, can a U.S. person be designated an ``agent 
of a foreign power'' based on their antiwar statement? I have 
some recollection that there are specific provisions of the law 
to the contrary, and it seems like earlier in the hearing you 
were attempting to clarify that aspect of the law, and I think 
it would be a very, very important statement to make.
    Mr. Wainstein, you might answer that directly, and then if 
the director can bat cleanup, that would be great.
    Mr. Wainstein. Thank you, sir. Yes, what I cited is a 
provision in FISA that in order to procure a FISA order the 
showing by which we establish that a person is an agent of a 
foreign power or a foreign power--it can't be based solely on 
that person's exercise of his first amendment activities.
    Mr. Pence. Cannot be based.
    Mr. Wainstein. Cannot be. And then in the Protect America 
Act, under 105(b), as I said, there are five requirements that 
the Director of National Intelligence and the attorney general 
have to find before authorizing a surveillance, and one of them 
is that a significant purpose of the acquisition is to obtain 
foreign intelligence information.
    So in other words, you have got to have legitimate foreign 
intelligence purpose. You can't just have political purpose in 
order to do it. Plus, it has to concern persons outside the 
United States.
    Mr. Pence. So specifically the law says that an individual 
may not be designated an agent of a foreign power for the 
purposes of surveillance simply based on the exercise of their 
first amendment rights, antiwar statements or otherwise.
    Mr. Wainstein. FISA does that, yes, sir.
    Mr. Pence. Okay. I may disagree with what people say. I 
will fight to the death for their right to say it. And I was 
under the impression that this act, as amended, was very clear 
on this point.
    Director McConnell, on my first question about location and 
how easy it is to track where people are relative to 
surveillance?
    Mr. McConnell. Sir, in the old days, Cold War days, 
location was much, much easier. Today, with mobile 
communications, it is more difficult. So a target can move 
around.
    There are some keys that can assist, but we can't know for 
certainty. One of the questions you asked was about billing 
records. If you had access to them, that may give you a clue.
    But we probably wouldn't have access to the billing 
records, and if we had to have absolute certainty, it would put 
us in a situation where we couldn't keep up because the issue 
of having now to obtain a warrant.
    So the evolution of communications over time has made it 
much more difficult. So what we were attempting to do is get us 
back to 1978 so we could do our business and legitimately 
target foreign targets, and keep track of threats and respect 
the privacy rights of Americans.
    If there was some need for foreign intelligence with regard 
to a U.S. person, you have a warrant.
    Mr. Pence. And the standard of a person reasonably believed 
to be outside the United States was an effort to recognize----
    Mr. McConnell. Yes, sir.
    Mr. Pence [continuing]. The ambiguity of current 
technology.
    Mr. McConnell. Because a cell phone, for example, with a 
foreign number, GSM system, theoretically could come into the 
United States and you wouldn't appreciate that it had changed.
    So you would have to now work that problem, and if you did 
then determine that it is in the United States and you had a 
legitimate foreign intelligence interest, at that point you 
have to get a warrant.
    Mr. Pence. Thank you, Chairman. I look forward to the 
closed session.
    I thank the witnesses for their responses.
    Mr. Conyers. Thank you, Mr. Pence.
    The Chair recognizes the gentleman from Massachusetts, Mr. 
Delahunt, Member of this Committee as well as the Foreign 
Affairs Committee.
    Mr. Delahunt. Thank you, Mr. Chairman.
    And I want to be very clear, because there has been some 
statements which would suggest that there are some that don't 
hold you, Mr. McConnell, and you, Mr. Wainstein, in the highest 
regard.
    I think the concerns that you hear expressed are not ad 
hominem to you. They are not personal. They are institutional. 
They are what makes democracy function.
    Should we trust Government? Well, the FISA Act came about 
because of abuses. All through our history there have been 
abuses. America was founded on a theory that executive power 
ought to be restrained and checked and balanced.
    And that is what we are about here today. This isn't about 
working on the margins. This is something very fundamental to 
American democracy, from my perspective, and I think that is 
shared by everybody on the panel. That is why this is a serious 
hearing.
    And let me respectfully take issue with you, Mr. Wainstein, 
when you describe ample oversight. Ample oversight has not been 
practiced until recently in this Congress. It just has been 
nonexistent.
    We have reasons to be concerned when disclosures were made 
in the New York Times about the TSP and no member of this 
panel, despite having questions posed, was informed, Republican 
or Democrat.
    So when we talk about oversight, it has been lacking. This 
is not the kind of protection, particularly when you have a 
single party in control of both branches of Government.
    You know, divided Government probably is, in a democracy, 
necessary to protect our values and our institutions. But it 
hasn't existed.
    The FBI Director appeared before this Committee for the 
first time--for the first time--since he was sworn in, I think, 
about 2 months or 3 months ago. That is not adequate oversight.
    Do not rely on congressional oversight to serve as a filter 
for the actions of the executive branch. I am sure we all would 
trust you as individuals, but that is not what this is about.
    You know, we read the newspapers. We understand the Deputy 
Attorney General went to the hospital to see a bed stricken 
Attorney General to debate a significant concern that he had 
about the functioning of the Department of Justice. So this is 
not working on the margin, with all due respect.
    And, Director McConnell, you know, I hear you, and you talk 
about 200 hours and the work and the time that is invested in 
the preparation of an application for a FISA warrant.
    Well, is it fair to say that just simply the work that 
would be done to secure your approval and that of the Attorney 
General would be significant and substantial as well?
    Mr. McConnell. Sir, the point I was trying to highlight is 
the fact that the interpretation of the old law was requiring 
us to get warrants for foreigners located in a foreign 
country----
    Mr. Delahunt. Right.
    Mr. McConnell [continuing]. Introduced a series of actions 
that we just couldn't keep up. So by changing the law, which 
was done in August, we wouldn't have to go through that process 
for a foreigner in a foreign country.
    We can keep up with anything that is done within the 
confines of the United States where it is foreign surveillance, 
and we have to have a warrant, so that is----
    Mr. Delahunt. Okay.
    Mr. McConnell [continuing]. A manageable problem.
    Mr. Delahunt. But let me ask you this. I mean, what I am 
hearing is it is an issue of resources. You know, I would 
suggest to you there is a willingness on the part of Congress, 
I believe, to give you whatever resources are necessary so that 
you can adequately respond.
    There is not a single Member on this panel that does not 
want to give you what you need. And at the same time, we want 
to continue to ensure that fundamental freedoms, as we know 
them in a historical context, are being protected.
    Mr. McConnell. Sir, I am also as concerned as anyone about 
the fundamental freedoms and protection. And it wasn't a matter 
of resources. It was just the process to try to do our 
business.
    And meantime, what I was trying to highlight in my 
comments, to provide context, was being required to have a 
warrant for a foreign target in a foreign country, by dint of 
the fact technology changed. That was the issue.
    Mr. Delahunt. Right. My point is there is no disagreement 
as to dealing with the issue of the technology.
    Mr. McConnell. All the rest of----
    Mr. Delahunt. It is unanimous.
    Mr. McConnell. All the rest of that was just explanation so 
you could understand----
    Mr. Delahunt. Okay. Well, like I said, everybody is on 
board in addressing the technological issues here.
    But there have been reports in the newspaper about the 
number of applications to the FISA court numbering in the tens 
of thousands. An almost negligible number--I remember when we 
were debating these and similar issues maybe a year or two ago. 
I think there were 15 or 17 that were denied by a FISA court 
judge.
    Again, maybe it is that I am not on the inside 
understanding completely the process that you talk about and 
the work that is necessary. But I dare say that securing a FISA 
warrant, with all due respect to the FISA court, is much more 
perfunctory than I think the impression that you are leaving.
    Mr. McConnell. Sir, the conditions of the court--and 
remember, this is foreign intelligence----
    Mr. Delahunt. Right.
    Mr. McConnell [continuing]. Is to demonstrate it is a 
foreign power or an agent of a foreign power.
    Mr. Delahunt. Right.
    Mr. McConnell. And so the conditions are external, no 
warrant, external to the United States; internal, requires a 
warrant. So you wouldn't expect there would be very many turn 
downs. The process ensures it is legitimate, it is consistent 
with the law and so on.
    But you are only proving one of two things, foreign power--
--
    Mr. Delahunt. I understand that, but I guess what I am 
saying to you is, that is done in the normal course of the work 
of the intelligence community.
    Mr. McConnell. Yes, sir, it is.
    Mr. Delahunt. This is not an additional burden.
    Mr. McConnell. True, it is not.
    Mr. Delahunt. Therefore, it is an issue of resources.
    Mr. McConnell. Sir, the intent of the act in 1978 was to 
allow us to do foreign intelligence--remember 1978, Cold War, 
Russians, Chinese, North Koreans. It was to do that mission 
unencumbered by any process.
    And so all we were attempting to do is get back to doing a 
foreign intelligence mission, so we are not spending time and 
energy and resources in the FISA court.
    So all that I was giving with regard to the hours and so on 
is illustrative of what we were running into. The fundamental 
point is we shouldn't be required to have a warrant for a 
foreign target in a foreign country.
    Mr. Powell. And there is a very important substantive 
difference. Under FISA, we are required to make a probable 
cause showing that the person is a foreign power or an agent of 
a foreign power and reasonably going to use the facility that 
is targeted.
    We do not do that for our overseas collection. We do not 
make probable cause showings for the thousands upon thousands 
of foreign intelligence targets.
    The problem we had is, in fact, we were at a place where we 
were, in fact, in a large number of the workload given to the 
FISA court, making probable cause showings that people located 
overseas were agents of foreign power.
    So it is not just a question of resources. It is a question 
of whether that is the appropriate substantive standard, which 
was not in anyone's contemplation according to the 1978 act, 
whether we want to be in a place where we are giving probable 
cause protection, something derived from the fourth amendment, 
to people located overseas.
    And it was a large percentage of the FISA court workload 
that we were making these probable cause showings. And let me 
be very clear. It is not what our intelligence professionals do 
when they are doing overseas collection.
    They do not make probable cause showings. They make a 
determination that it is a valid foreign intelligence target 
and it meets one of the requirements that is laid out.
    So when intelligence agencies have limited resources, they 
know what the targets that they need to collect against are. 
And if it is a valid foreign intelligence target, they have a 
process for doing that.
    There is no comparison between that process and the 
probable cause showing and the court process that we go through 
with FISA.
    However, we were in a place where, in fact, we were doing 
that for foreign intelligence targets located overseas in a 
significant number of cases.
    Mr. McConnell. It is always useful to put some meaning on 
that kind of dialogue. Let me give you an example: American 
soldiers captured in Iraq by insurgents.
    And we found ourselves in a position where we had to get a 
warrant to target the communications of the insurgents. That is 
how the process had evolved to put us in an untenable position.
    Mr. Wainstein. And if I could just add a little more 
context, it is not necessarily always an easy thing to 
establish probable cause of a connection between a person and a 
foreign power.
    And you can go back and look at the 9/11 Commission where 
it details the difficulties they had in making that showing 
regarding Moussaoui and how that slowed up the ability to do a 
search with him.
    So that is not always an easy thing to do.
    Mr. Conyers. The gentleman's time has expired.
    Before we recess for votes and the very diligent witnesses 
have a break and hopefully a luncheon, I will recognize Judge 
Louie Gohmert from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman. I didn't know if the 
Ranking Member had a question he needed to ask.
    Mr. Smith. The gentleman from Texas has been very patient. 
I wanted him to ask questions first, and I will come back and 
ask my questions after the break.
    Thank you, though, for considering that.
    Mr. Gohmert. All right. Thank you.
    There are a number of things that have triggered questions. 
First of all, I am sure you are aware of the problems, the 
abuses, that were outlined by the inspector general about 
national security letters.
    And I am curious. Before the FBI uses national security 
letters, is there any process where they work with you or other 
Federal agencies to determine who is a foreign terrorist or 
foreign operative? I am curious.
    I am just wondering what kind of interplay we have here 
among the agencies.
    Mr. Wainstein. Right. I don't know that there would be any 
interplay necessarily on that particular issue. In order to 
issue a national security letter, they have to show that it is 
relevant to an international terrorism investigation, let's 
say.
    I can tell you that there is a good bit more scrutiny on 
that process within the bureau. They set up a compliance 
program, a compliance office, that is one of the main topics 
they are looking at.
    Our division, the National Security Division, has set up an 
oversight unit, and we are going out and doing reviews of all 
the----
    Mr. Gohmert. And is that entirely an NSA unit? Because that 
flips over to my next question. Does the NSA vet or talk with 
the FBI or other Federal agencies about whom you believe may be 
a foreign terrorist?
    Mr. Wainstein. Just to clarify, and I will turn it over to 
Director McConnell, I head up what is called the National 
Security Division within the Department of Justice. So we work 
closely with the FBI on oversight matters.
    In terms of the NSA----
    Mr. McConnell. Sir, there is very close coordination 
between the FBI and NSA on what is a terrorist and who they are 
and so on, so that goes on all the time.
    Also, I would mention that the FBI now has a role under the 
DNI, because additional intelligence responsibilities under the 
act, Intelligence Reform Act of 2004, have been added to the 
FBI. So it was reasonably robust earlier. It is even more 
robust now.
    With regard to national security letters, is a little 
different context. FBI has access to the information, but I 
don't know if there is any dialogue between NSA and FBI about 
using a national security letter.
    Mr. Gohmert. Because in a discussion like we are having, 
when you say, ``Well, foreign agent, foreign soil, okay,'' then 
the question of who is a foreign agent, who works for a foreign 
terrorist operation becomes critical.
    And you say you work together all the time, but does that 
mean it is required before a designation is placed on someone?
    Mr. McConnell. Yes. If you were going to get a warrant for 
surveillance, electronic surveillance, physical search, 
anything of that nature, there would be very close 
coordination.
    National security letter is in a little different context.
    Mr. Gohmert. Well, but I am not talking about NSLs at this 
point. We have been talking about wiretapping.
    Mr. McConnell. Right.
    Mr. Gohmert. And before you put a wiretap on some foreign 
terrorist----
    Mr. McConnell. Close coordination.
    Mr. Gohmert. Close coordination. In every case.
    Mr. McConnell. Yes, sir.
    Mr. Gohmert. So that there is not information the FBI has 
about some foreign terrorist or the CIA has that the NSA has 
not accessed and reviewed in making the determination to 
wiretap a foreign terrorist without a warrant.
    Mr. McConnell. It may be theoretically possible, but the 
Intelligence Reform Act--the intent of that was to make that 
unlikely.
    Mr. Gohmert. Oh, I know that was the intent, and that was 
placed on there before I went. I am still concerned that we 
added a level of bureaucracy and didn't really fix anything. 
But that is a whole other discussion.
    As I understood you--and again, Admiral, I appreciate your 
service. I appreciate all your services, even the naive 
comments from Mr. Wainstein about what is reasonableness in law 
school, because as I understand it, we don't let ambulances go 
into some wilderness areas even if it saves a life, you know, 
so what is reasonable in law school isn't really reasonable in 
the Federal Government.
    But with regard to your testimony, I understood you to say 
no American has been wiretapped under the FISA program, is that 
correct?
    Mr. McConnell. Sir, my period of time starts in my 
confirmation in February, so I have been paying very close 
attention to that.
    Mr. Gohmert. All right, and that was--I was trying to get a 
time frame. Since February that is the base----
    Mr. McConnell. That is when my knowledge base starts.
    Mr. Gohmert. Okay, and that includes not merely NSA but CIA 
and FBI. Is that your understanding?
    Mr. McConnell. That is correct. Right. The issue we faced 
was because we were being required to get warrants, and it 
takes time----
    Mr. Gohmert. Sure.
    Mr. McConnell [continuing]. We actually took things off 
coverage. So the answer that I gave was correct.
    Mr. Gohmert. And because of concerns about the Federal 
Government, sometimes we notice it is not perfect, but are you 
aware of any wiretap under FISA ever being placed on the wrong 
number so it was tapping an American?
    Mr. McConnell. Occasionally there are mistakes, and then 
the process and the review you----
    Mr. Gohmert. Well, that is what I wanted to be sure, 
because I didn't hear any exceptions, and----
    Mr. McConnell. There have been some, yes, sir, and then 
you----
    Mr. Gohmert. Okay.
    Mr. McConnell [continuing]. Went and reported it and 
analyzed the case and that sort of thing.
    Mr. Gohmert. All right.
    And I see my time has expired, and I would like to thank 
the Chairman. And by the way, when you were talking earlier 
about, Mr. Chairman, your concern for Americans who wanted to 
be abroad, I was concerned you were using slang to take us back 
to a discussion about the hate crimes bill.
    I am glad to know that wasn't the case. But thank you for 
your time.
    Mr. Conyers. Thank you so much.
    And I thank the witnesses for their endurance, and we will 
return after the votes. The Committee stands in recess.
    [Recess.]
    Mr. Conyers. The Committee will come to order. We thank you 
for your patience.
    The Chair recognizes the gentlelady from Wisconsin, Tammy 
Baldwin.
    Ms. Baldwin. Well, thank you, Mr. Chairman.
    Thank you to our patient witnesses.
    Rule 10 of the Rules of the House of Representatives sets 
forth the jurisdiction of the various standing Committees, and 
also sets forth their general oversight responsibilities.
    And the Judiciary Committee has within its jurisdiction 
many elements, including the judiciary and judicial 
proceedings, civil liberties and Federal courts.
    But I have to tell you, and I am sure it won't come as any 
surprise, that it is very challenging and often frustrating to 
thoroughly oversee a program many details of which are 
classified, and must be. I certainly understand that.
    And it is even more challenging, in fact, sometimes 
impossible, to oversee secret programs, the existence of which 
Congress doesn't even know about.
    So I just wanted to ask a few, I hope, general questions to 
help me satisfy myself that the scope of our current FISA 
oversight is adequate.
    Now, we know today that in the weeks following the 
September 11 attacks in 2001, the President signed an Executive 
order setting up a secret surveillance program known as TSP, or 
the terrorist surveillance program.
    And this, of course, has come to light in a very public way 
over the last couple of years. And I wonder if you are familiar 
with the Executive order in its entirety that set up that 
program.
    Admiral, yes?
    Mr. McConnell. I am not. When I agreed to the nomination 
and was being considered, it was in the first week in January, 
and as I was going through the process, a decision was made to 
take the entire program and submit it to the FISA court.
    So I have heard stories and I am generally aware, but I 
focused all my time on the period with the FISA court. And my 
focus has been getting us to a point where we were doing 
foreign surveillance but we had the right kind of process for 
warrants and that sort of thing.
    Ms. Baldwin. Okay.
    Mr. McConnell. So I don't know as much about the past.
    Ms. Baldwin. Okay. Well, so this is exactly, I think, a 
point that I want to make sure that I understand. You came in 
January 2007. At that point in time, there had been agreement 
that they were to take TSP and it would comply fully with FISA.
    Are you aware that there were any other parts of that 
original Executive order setting up this TSP, the terrorist 
surveillance program, that were still going to be operating 
independently of FISA?
    Or is the TSP the sum total of that original Executive 
order as you know any details about it?
    Mr. McConnell. No, ma'am. Everything that has to do with 
us, this community, conducting surveillance, foreign 
surveillance, for the purposes we have been discussing has been 
subjected to the FISA court and is being operated under the 
authority of the FISA court.
    Ms. Baldwin. And just for additional clarity, I know that 
several months ago--I think it was perhaps Attorney General 
Gonzales' last appearance before the Senate Judiciary 
Committee, as they were discussing the content of discussions 
with then-Attorney General Ashcroft in the hospital, he seemed 
to say in his testimony that the discussion in that hospital 
room was not about TSP but some other aspect of that original 
Executive order.
    And maybe there is a way I should rephrase it. Does that 
Executive order have a date or a number that we can make sure 
we are talking about the same thing?
    But in any event, he seemed to imply that there were other 
components that he was trying to seek authorization for. And I 
see Mr. Powell nodding his head. Maybe he has some information 
that can help clear this up.
    Mr. Powell. Yes. It was my understanding it was not an 
Executive order. It was what we call a presidential 
authorization. There was no secret Executive order that was 
signed.
    The DNI sent a letter to Senator Specter and Senator Leahy 
on July 31st of 2007--I believe that was also publicly 
released--where he talked about, shortly after 9/11, the 
President authorized the NSA to undertake various intelligence 
activities.
    A number of those activities were authorized in one order, 
which was reauthorized by the President approximately every 45 
days. So there were a number of those orders with certain 
modifications.
    One particular aspect of those activities was what the 
President expressed in December 2005. So there is a letter out 
there, that was just cleared by the community, discussing both 
those presidential orders and those activities and the 
reference to TSP, trying to bring some clarity to that. It is a 
confusing thing when we talk about these classified matters in 
open hearings.
    Ms. Baldwin. Right. And we are, shortly, I think, going to 
go into a classified hearing, and perhaps if there is anything 
you don't wish to share now and you can share it later, please 
just let me know, and I will go on a different course.
    But I am familiar with that letter from the DNI. I have not 
seen it, and I don't have a copy, and I would love it for you 
to share it with me at some later point.
    But, okay, they are saying in that that the TSP is one 
element of this presidential authorization now, not an 
Executive order.
    Were there other elements that relate in any way to FISA or 
surveillance or warrantless surveillance that we should know 
about it in terms of fulfilling our oversight role with regard 
to FISA?
    Mr. McConnell. All of it is subjected to the FISA court and 
approved by the court, and we could take you into sort of the 
classified elements of it in a closed session.
    Ms. Baldwin. Okay. Is there a name for that presidential 
authorization that we are referring to, so that we won't get it 
confused with others? Is there a number or a name or a date 
that I should refer back to?
    Mr. Powell. We have just referred to it as a presidential 
authorization in my experience----
    Ms. Baldwin. Okay.
    Mr. Powell [continuing]. Just presidential authorizations.
    Ms. Baldwin. Okay. Are there other Executive orders or 
presidential authorizations aside from the one that we have 
just been discussing that in any way would bypass FISA for 
surveillance that we need? In terms of doing our oversight that 
we ought to know about?
    Mr. Powell. None that I am aware of. No.
    Mr. Conyers. The gentlelady's time has expired.
    Ms. Baldwin. And I would simply ask Mr. Wainstein if he has 
any further insight into this.
    Mr. Wainstein. Not that I can think of right now. No, not 
that I am aware of, I don't think.
    Mr. Conyers. The Chair now recognizes the Ranking Member of 
the Judiciary Committee, Lamar Smith.
    Mr. Smith. Thank you, Mr. Chairman. Mr. Chairman, first of 
all, I would like to ask unanimous consent that an editorial in 
today's Wall Street Journal on the subject at hand be included 
in the record.
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    
    Mr. Smith. Thank you again, Mr. Chairman.
    Director McConnell, I really just had one question for you, 
largely because I understand all the other questions I had 
prepared have already been asked in my absence while I was gone 
for an hour.
    My one question is this. What oversight procedures have 
been implemented by you or the intelligence community to 
protect the civil rights, civil liberties, of the American 
people?
    I know you covered this to some extent in your prepared 
testimony, but I think it would be worthwhile for us to get 
your response in a little bit more detail, and also for Members 
to hear the extensive oversight that you all have implemented 
to protect those liberties.
    Mr. McConnell. Yes, sir. I would be happy to go through 
that. There are actually four tiers of oversight. Let me just 
cover them quickly.
    First is within the agency conducting the program, and that 
involves internal regulations, training, supervisory review, 
audits. Internal agency reviews is how we would describe it.
    That is both internal, supervisory, general counsel 
separately, and then the inspector general of the agency. So 
that is first tier, within the agency.
    Second tier is by outside agencies. That includes my 
office, includes my general counsel, Ben Powell.
    It also includes our civil liberties protection officer, 
who is here with us today. That is his job, is to make sure 
there is no violation of civil liberties, so he watches it from 
that standpoint.
    And we work with the Department of Justice, the National 
Security Division that Mr. Wainstein heads up, in a similar 
oversight process.
    The third tier is the FISA court, because either we are 
subjecting a request for a warrant and getting approval if it 
involves a U.S. person, or even in a foreign context we subject 
the procedures of FISA court review.
    And they will determine that we, in fact, can have 
reasonableness in our process for determining a person is 
overseas, and if they objected for some reason we would have to 
comply with their objection or address their objection.
    And the fourth tier is the Congress. Of course, we have got 
two oversight Committees on the House and the Senate side that 
are classified level, and they can review all these details, 
and then also a level of oversight from this Committee, given, 
you know, interest in following up.
    Now, that is sort of the tiered level--probably can put a 
little more meat on the bones by just describing what has 
happened since the 5th of August. The bill is passed by the 
Congress on the 4th of August. The President signed it on 
Sunday morning, the 5th.
    Since that time until today, we have had nine very detailed 
reviews. Let me just quickly capture some of those for you. 
Within 72 hours of it being passed, Members of the House 
Oversight Committee staff came out to the agency.
    There were eight analysts, oversight personnel and the 
attorneys, and they went through very detailed review.
    On the 14th of August, FBI General Counsel briefed the 
House Intelligence Committee and also included a 
representative--DOJ's oversight Committee and my office to go 
through the details.
    Twenty-third of August, implementation team comprised of 13 
analysts and attorneys updated for House Oversight Committee 
staff members.
    And then I could go through infinite detail, but at each 
iteration, it is the procedure. It is the process. It is the 
certification. And of course, all of that has been submitted to 
the FISA court, and the FISA court is now going through a 
similar effort.
    So nine different times with Members of the Hill, either 
Members or staff, we have gone through detail. And our pledge 
is that we will make it open and we will answer questions and 
subject it to oversight in a most vigorous way.
    Mr. Smith. Thank you, Director McConnell, and thanks for 
your excellent testimony today as well.
    Mr. McConnell. Thank you, sir.
    Mr. Smith. I yield back, Mr. Chairman.
    Mr. Conyers. Thank you.
    The gentlelady from Texas, Sheila Jackson Lee, who serves 
as the Subcommittee Chair on Committee on Homeland Security as 
well as an active Member of Judiciary.
    Ms. Jackson Lee. Mr. Chairman, thank you very much.
    And I do thank the witnesses. It has been a long day, and 
let me express my appreciation for your time here.
    Director McConnell, the leadership that you have to give 
and have given is much appreciated by this Committee and also 
the American people.
    As the Chairman indicated, I am also a Member of the 
Homeland Security Committee. We thank the representatives from 
the NSA and the Department of Justice as well for your service 
to this Nation.
    But I have to make it very clear, or I have to at least 
raise this concern, and I would like you to address it as you 
probably have done on a number of occasions, that one of the 
striking elements of 9/11, the horrific tragedy, loss of life 
and the awakening of America, was not the absence of 
intelligence but the lack of sharing the intelligence.
    So that was a crucial element of our faulting, if you will, 
and the final response of the 9/11 Commission and subsequent 
work after that.
    Our Committee, the Homeland Security Committee, and this 
Judiciary Committee, have taken the initiative to try and fix 
many of those ills, and I am very pleased to have the honor of 
serving with Chairman Conyers and his Ranking Member, who have 
looked at civil liberties, for example, and many times through 
the same pair of glasses.
    But now we come to seemingly a parting of the waters, and 
let me lay a framework of my concern. We have a National 
Security Act of 1947 that has suggested that the Administration 
must keep our Intelligence Committees fully and currently 
informed.
    Congress, I think, has had a difficult time being able to 
rely on information. To a certain extent, it has been 
incomplete information from this Administration.
    And so you might understand the skepticism of this Congress 
representing the American people to now yield very important 
civil liberties under the auspices or pretenses of needing them 
for national security.
    It is my understanding that the solving of the German 
bombing that occurred, the bombing at the airport, the London 
bombing at the airport just recently by physicians, did not 
have a non-FISA process. It was a process that had overlapping 
restrictions, and we secured that information.
    So I would like you to address these questions as relates 
to the Protect America Act and in the backdrop of knowing that 
I will have great difficulty in passing any legislation that 
does not have the oversight of a FISA court concept.
    But why should we allow the existing bill, for those of us 
who did not vote for it but its existence is now the law, when 
you have indicated that it is about collecting foreign 
communications, but in this bill you allow the collection of 
U.S. communications?
    And I would ask the simple question, since this is 
something that relates to the average American--the bus driver, 
teacher, the volunteer hospital worker--is whether or not you 
think the Protect America Act allows you to direct someone with 
access to electronic communications to open up any facilities 
necessary.
    And could they use the PAA to direct a landlord to let you 
into someone's apartment so that you could access his or her 
computer?
    My concern is the stark and, I would say, obvious intrusion 
on the American public, innocent individuals who have no intent 
on doing us harm, and why a FISA process would not be the 
appropriate intervening process that would protect civil 
liberties but ensure the safety and security of America.
    Director McConnell?
    Mr. McConnell. Thank you for your questions--excellent 
opportunity to respond and put some context around at least my 
understanding of where we are.
    First of all, let me agree with you that 9/11 should have 
and could have been prevented. It was an issue of connecting 
information that was available.
    I am not sure you were in the room at the time, but I 
quoted from the joint inquiry of Congress that looked back on 
this, and I want to highlight one thing. There was a terrorist. 
It was a foreigner. He was in the United States. He was 
planning to carry out the 9/11 attacks.
    And what the 9/11 Commission and the joint inquiry found is 
that person communicated back to al-Qaida overseas, and we 
failed to detect it. So the way you framed your question is why 
should----
    Ms. Jackson Lee. But we had them under surveillance. If we 
had pursued----
    Mr. McConnell. No, we didn't. That is the point.
    Ms. Jackson Lee. We had some of them under--we had some 
knowledge of these activities. We had knowledge of the 
individuals who were training to take off in terms of flight 
training and were not getting any training to land. We did not 
connect the dots.
    And if we connected the dots----
    Mr. McConnell. We did not connect the dots.
    Ms. Jackson Lee [continuing]. We might have gotten that 
individual.
    Mr. McConnell. I am agreeing with you. We did not connect 
the dots.
    Ms. Jackson Lee. All right.
    Mr. McConnell. So what we were attempting to do in this 
update to the legislation is put us back where we were in 1978.
    The way you framed your question--we have authority now to 
conduct surveillance against a foreign target in a foreign 
country. The way you also framed your question is we could 
conduct surveillance of a U.S. person.
    And I want to correct that impression. We cannot conduct 
surveillance of a U.S. person--that is not only a U.S. citizen 
but that is a foreigner who is in this country--unless we have 
a warrant to do so.
    Now, what we will quickly get into in a dialogue, those 
that have studied it and closely follow this. Well, what about 
when a foreign terrorist, known terrorist, calls into the 
United States? That existed in the 1978 time frame. It exists 
today.
    We have a procedure to deal with that. We would minimize it 
if a foreign terrorist calls in and there is no intelligence 
value. But what I would highlight is that might be, as it was 
in 9/11, that might be the single most important call we would 
get. It might be to a sleeper cell. It might be activating 
something.
    So the way the law was constructed--illegal to conduct 
surveillance, or electronic observation, or physical search or 
anything that--any of the things you went through without a 
warrant if the target is in this country.
    But what it does allow us to do is to conduct foreign 
surveillance, and how it might connect to a sleeper cell or 
something of that----
    Ms. Jackson Lee. You are talking about the previous law or 
the PAA?
    Mr. McConnell. Today I am describing the Protect America 
Act, PAA.
    Mr. Conyers. Would the gentlelady yield?
    Ms. Jackson Lee. I would be happy to yield to the 
gentleman.
    Mr. Conyers. I want to commend the Director for conceding 
that 9/11 could have been avoided. But our staff studies show 
that the reason it wasn't has nothing to do with the FISA 
court. There were miscues all along the line in several 
respects.
    And I thank the gentlelady for yielding.
    Ms. Jackson Lee. I thank the gentleman for acknowledging an 
important statement. We appreciate Director McConnell's 
straightforwardness that the dots were not connected.
    Mr. McConnell. Can I offer an explanation?
    Ms. Jackson Lee. Pardon me?
    Mr. McConnell. Can I offer an explanation to follow up on 
the Chairman's comment?
    Ms. Jackson Lee. I would yield to the director.
    Mr. McConnell. Thank you, ma'am. I am not used to that.
    This community was so focused, so focused on foreign, that 
we allowed ourselves to be separated from anything that was 
potentially domestic.
    The training process, the regulations, the oversight was if 
it is foreign, it is okay. If it has anything to do with 
domestic, it is not something we are supposed to be concerned 
with.
    So it wasn't prohibited in the law, but it was in the 
cultural growth of the community since 1978, and that is what 
we suffered from when we----
    Mr. Conyers. Yes, that translates to negligence.
    Mr. McConnell. Or interpretation of the law, or how the 
culture had evolved.
    Ms. Jackson Lee. May I just make a final point? I have a 
whole series of questions, but let me just make this--we are 
now contending with spy satellites, and I would think that the 
basic civil liberties community, due process community, rightly 
so, has to be up in arms.
    And therefore, Director, you can understand the sensitivity 
to what you have said. I believe that you are absolutely right, 
that what we needed to do, and we suffered a tragedy because of 
it, is to strongly change the culture.
    But the culture was not the culture of America. It was the 
culture of the intelligence community. We should not be 
faulted, meaning American citizens, because the intelligence 
community themselves seemingly prohibit themselves from 
engaging in surveillance and using the tools that we had for 
them to be able to use domestically.
    My concern is whenever you take the bar away that gives 
protection to American citizens on their civil liberties and 
due process and take away the FISA court that has worked--that 
can work with updating the technology and updating, then, 
again, I think that we miscue and we open ourselves to another 
kind of culture, and that is a spiraling down of protecting 
civil liberties and civil rights.
    We can do both, which is national security and, as well, 
protecting those civil rights and civil liberties.
    Mr. Conyers. I thank the gentlelady.
    The Chair recognizes Betty Sutton, Ohio.
    Ms. Sutton. Thank you, Mr. Chairman.
    And I thank you gentlemen for your testimony.
    As I begin, I would just like to--you know, last week or a 
week or so ago we had a hearing on this subject, and it was 
restated over and over again the importance of trust in 
carrying out the difficult work that you all are charged with.
    And to that end, I just want to clarify some of the things 
that I have heard here today and make sure that I am 
understanding them correctly.
    There was a line of inquiry from the Chairman about when 
this bill was put through the process in August, and 
discussions went on, as they often do, I am sure, between 
legislators and Director McConnell as they tried to put 
together something that would accomplish our goals without 
sacrificing fundamental freedom.
    And if I understood you correctly, were you saying that 
through the course of that discussion that you never 
substantively changed your position from the beginning sort of 
to the end?
    Mr. McConnell. I did not substantively change my position, 
no, ma'am.
    Ms. Sutton. Okay. I just wanted to make sure that I was 
understanding you correctly.
    Mr. Powell. I would just remind--we did change our position 
in the sense that our original proposal of April did not have 
any FISA court involvement for people reasonably believed, or 
foreign intelligence targets believed, to be outside the United 
States.
    And in fact, in the course of those discussions, the 
position was changed such that we agreed to put our procedures 
for determining the foreign targets--that, in fact, they were 
foreign. We agreed to put them into FISA court review.
    That was not part of our April bill, and that was something 
the director agreed to, I believe, on August 1st or 2nd, and 
put out a statement saying although he would prefer not to do 
it, to accommodate the interest of the Congress and the 
American people, to assure them, we agreed to go to the FISA 
court.
    So that was a substantive change of position where we 
agreed to put those procedures to the FISA court, which is not 
something that was part of the 1978 act.
    Ms. Sutton. But in those final weeks and those final days 
as this was being perfected, if I understand you correctly, 
Director, there were only, from your end, revisions made that 
were technical and not really substantive in nature, is that 
correct?
    Mr. McConnell. That is true. When it became apparent that 
we were going to shift the process into a compressed time, and 
we had the increasing information with regard to the threat, 
what I did was to try to boil it down to three main points, 
which I have said before.
    I would repeat them if they are useful to you--but was to 
say no warrant for a foreign target in a foreign country, a way 
to compel the private sector to assist us, because we would 
need their help, and to require us to have a warrant for 
anything involving surveillance against a U.S. person.
    So that was the philosophical approach. A word or two or a 
technical change--the reason that I was accused of changing my 
position is I agreed philosophically to the points and was 
asked to agree to a draft that I hadn't read, and I said I 
can't do that until I read it, because as I mentioned earlier, 
if you change a word or a phrase, it can have unintended 
consequences.
    So that is why we got into the last-minute flail.
    Ms. Sutton. Well, it appears that there were some 
distinctions between what you were thinking philosophically 
then--and others. But let me continue with another question.
    We have heard a lot about--and I have seen, of course, the 
interview in the El Paso Times, and one of the things that has 
been raised here today is this idea that you disclosed that 100 
or less U.S. persons were being surveilled under the FISA 
orders.
    Was that information ever classified?
    Mr. McConnell. Probably at one level and detail it was 
classified. What I chose to do, because of the importance of 
this debate--it was my authority to do it--wasn't directed to 
do it; I just thought about it--was to try to put some context 
at a summary level in the discussion so that there was a point 
of reference, some context for the dialogue.
    So what I said was thousands in terms of foreign 
surveillance, but when a foreigner had called someone--there is 
suspicion of a sleeper cell or whatever--and then we got a 
warrant as a result of that--that was the number I used, 100 or 
less, just to provide context.
    Ms. Sutton. Okay. Okay. And, Director, then am I correct in 
understanding that you actually declassified it in the course 
of that interview? Is that the process that took place?
    What was the date and process that you used to declassify 
it? I mean, when did it happen?
    Mr. McConnell. It was when I did the interview. It was a 
judgment call on my part.
    Ms. Sutton. Okay, so information can be just--I just want 
to understand the process, because I don't know--can be 
declassified by you in the course of an interview as you see it 
selectively appropriate to do so.
    Mr. McConnell. The power is vested in the President. The 
President has delegated that authority to me. So I can make 
that judgment when I see it is appropriate.
    Ms. Sutton. Okay. Okay. We have heard a lot of discussion 
also today about minimization. I know I am running out of time, 
but if I could just ask you a quick question on that point.
    The minimization--it occurred prior to the Protect America 
Act. It was an additional safeguard that existed in the law, is 
that correct?
    Mr. McConnell. It has been in the law for a long time, 
1978, and it goes back even further than that on the criminal 
side.
    Ms. Sutton. Okay. But I hear you talking about it today as 
if it is a substitute for going through the FISA court to get a 
warrant, and I guess my question, then, goes back to the whole 
point of why did we ever require a warrant in the first place, 
because we have always had minimization.
    Mr. McConnell. Well, the issue is the target. If the target 
is U.S. person, you have to have a warrant. If the target is 
foreign, and it somehow--although more often than not, it has 
not, but it somehow involves a U.S. person, that is where 
minimization would be used.
    It was put into the process in 1978. It worked well. And it 
is still in effect, been reviewed by the court and approved, so 
it is something we have always used.
    Ms. Sutton. Thank you.
    Mr. Conyers. I thank the gentlelady from Ohio.
    Steve Cohen, Tennessee?
    Mr. Cohen. Thank you, Mr. Chairman. And I am going to take 
up a little bit where Ms. Sutton left off.
    Mr. Wainstein, you have testified that one reason we 
shouldn't worry about Americans being spied on as a result of 
surveillance without a warrant that is directed at persons 
overseas under the PAA is minimization procedures to handle the 
acquisition, dissemination and retention of incidentally 
collected U.S. person information. Is that true?
    Mr. Wainstein. Yes, I think that is a very important part 
of the protections, both under the PAA and under other 
collections as well.
    Mr. Cohen. So people shouldn't have to worry if they are 
spied on incidentally because you will minimize what is done 
with the information, is that right?
    Mr. Wainstein. Well, I guess the way I would frame it is 
that minimization procedures were adopted--you know, they go 
back before 1978, but in the context of general signal 
intelligence overseas they were adopted.
    They are applied rigorously. They are trained on in the 
intelligence community so that if you are legitimately 
targeting somebody overseas, that person calls somebody in the 
United States, that U.S. person information gleaned from that--
that that U.S. person information is handled carefully so that, 
you know, the U.S. person's name and identifying information is 
stripped out unless that information is necessary to understand 
the foreign intelligence value of that information.
    So it protects U.S. person information from being sort of 
disseminated and used in an inappropriate way. So I think it is 
a very important protection. And it is one that has existed for 
a long time, and the PAA does not change it.
    Mr. Cohen. And you can assure us that these names, if they 
are picked up, aren't ever released in any way.
    Mr. Wainstein. Well, I think the minimization procedures--
some are classified, some are not classified. But essentially, 
what they do is--and this is laid out, you know, in classified 
form, and we can provide copes to you of the ones that aren't 
classified.
    But it says if you get this information, that it has to be 
retained in a certain way, it can only be disseminated under 
certain conditions, you can only disseminate the U.S. person 
identifying information if there is--if you need that 
information for the consumer of the intelligence to understand 
the foreign intelligence value of that information.
    So it is a very sort of careful, sort of sequenced handling 
of that information, so that, yes, there are situations where 
the name Ken Wainstein might come up in a surveillance, and 
that name will end up in a report, intelligence report, because 
it is important that Ken Wainstein's name be included in that 
report to make sense of it.
    Mr. Cohen. Mr. Wainstein, let me ask you this. Newsweek--
and you are probably familiar with this--in 2006, reported that 
in a 2-year period the NSA supplied the names of some 10,000 
American citizens to interested officials and other agencies 
that the NSA had obtained minimized information.
    They kept it in their files. Are you familiar with that?
    Mr. Wainstein. I am not familiar with that specific report, 
I am sorry, sir.
    Mr. Cohen. Do we have a copy? Can we put a copy of that 
Newsweek report in the record, Mr. Chairman?
    Mr. Conyers. Without objection, so ordered.
    [The information referred to follows:]
    
    
    
    Mr. Cohen. Thank you.
    The issue is that if you get the information, we have got 
to rely--there is no warrant involved here, right?
    Mr. Wainstein. Well, there are minimization procedures that 
do apply to FISA orders, yes, so----
    Mr. Cohen. But there is no warrant if your target is 
foreign.
    Mr. Wainstein. Right.
    Mr. Cohen. There is no warrant in that context, not now.
    Mr. McConnell, let me ask you this. The police, as you well 
know--are you an attorney?
    Mr. McConnell. I am not, no.
    Mr. Cohen. You don't need to be an attorney to know this. 
Yesterday was Constitution Day, and we all need to remember the 
Constitution, the fourth amendment and all those things.
    The police can't come into your house without a warrant, 
look around, copy files, take things, whatever, and claim there 
was no violation of your rights just because they threw 
everything away or they restricted its use on their own 
initiative after they looked in your home and, without a 
warrant, violated the Constitution and went back to the 
station.
    Wouldn't you agree that minimization can't cure the damage 
done to privacy when the communications are intercepted in the 
first place?
    Mr. McConnell. Could I just refer back to the--how I opened 
up my statement at the beginning? The fault of 9/11 is we had 
someone in this country calling a terrorist that we didn't 
collect the information on--terrorist overseas.
    So the issue is protecting the country, and when we--our 
target is foreign, and it is incidental coverage, you have to 
think about who is the target and where is the target.
    Mr. Cohen. You say that was, in your original testimony, 
that was somebody in Florida, right?
    Mr. McConnell. San Diego, I believe it was.
    Mr. Cohen. And who did they call? You say a terrorist. Do 
we know that person was a terrorist at the time?
    Mr. McConnell. Overseas, yes, sir.
    Mr. Cohen. We knew it. And we didn't do anything at all?
    Mr. McConnell. For whatever reason, we didn't connect the 
dots for that. Now, let me set up the situation, how it might 
happen today. Sleeper in this country we don't know about, some 
sleeper that has been here for years, and al-Qaida, some member 
that we know about, calls in.
    The reason for the way it is set up is if they activate 
that sleeper we would have some way of knowing. We might 
prevent a 9/11, or a sarin gas attack in a subway or whatever 
it might be.
    In the course of international communications, first of 
all, we would only be conducting surveillance if it has a 
foreign intelligence target interest. We just don't 
indiscriminately look at the world.
    So we would have some reason to look at it, so if it is 
incidental, has nothing to do with intelligence, that is what 
minimization is. You just take it out of the database.
    Mr. Cohen. Well, I want to thank you for your service to 
the country and particularly I believe you served when 
President Clinton was President, is that correct?
    Mr. McConnell. I did, yes, sir.
    Mr. Cohen. Appreciate your service, sir.
    Mr. Wainstein. Mr. Chairman, may I just respond a little 
bit to that last question?
    Very briefly, the question is one that has been posed 
before, and I believe Congressman Lungren addressed this 
earlier, which is, is minimization sufficient. Or should we 
have to go get a court order when we have a valid surveillance 
against one target, and that person talks to another person, a 
person in the United States. Should we have some sort of court 
order to allow us to get that communication.
    And you analogized the criminal context just now. And 
actually, the same situation applies in the criminal context 
when we are getting wiretaps under title III for law 
enforcement cases.
    If you get a wiretap authority against me, you go to a 
court, get an order to intercept me, I have a phone call with 
Ben Powell--law enforcement is allowed to collect that 
surveillance, collect that communication, without going to the 
court to get a separate order to authorize listening in on the 
communication with Ben Powell.
    Rather, that communication is just minimized because he is 
a United States person. He might well be innocent. So the same 
thing--different minimization procedures, but minimization is 
used on the criminal side as well as on the foreign 
intelligence side.
    Mr. Cohen. Thank you for your comment. And you weren't 
around during President Clinton's time?
    Mr. Wainstein. Yes, I was.
    Mr. Cohen. You were? Well, I was going to thank you in 
spite of the fact that you maybe weren't, but I still thank you 
for your service, too. I don't want to discriminate.
    Mr. Wainstein. No, I was a prosecutor using title III.
    Mr. Conyers. Thank you.
    Hopefully inquirer is the gentleman from Alabama, Mr. Artur 
Davis.
    Mr. Davis. Thank you, Mr. Chairman.
    Gentlemen, thank you for your patience. I think we have had 
the NBA rule on 5 minutes today--a little bit on the generous 
side, but I will try to stay in the 5 minutes. Let me try to 
hit three separate areas fairly quickly.
    Admiral McConnell, you mentioned--you just reiterated, but 
you mentioned in your opening testimony that one critical event 
with respect to September 11 was the unintercepted phone call 
that you just described, and I certainly wouldn't dispute that 
in any way.
    But isn't it also the case that in the mid 1990's or 
perhaps the late 1990's that the U.S. had picked up intel that 
al-Qaida had developed a fixation with airplanes and was 
interested in hijacking? Have I got that right?
    Mr. McConnell. I know generally about that.
    Mr. Davis. All right.
    Mr. McConnell. I haven't gone back to study it.
    Mr. Davis. Now, wasn't there also some intelligence in 2001 
that Middle Eastern individuals had gone to flight schools, had 
paid cash, had left the flight schools under mysterious 
circumstances? Wasn't that information or something like it 
also known?
    Mr. McConnell. That is my understanding.
    Mr. Davis. Well, and I make that point simply because I 
know--or I assume you don't mean to just pull out the phone 
call in isolation as the critical missed event.
    There were a number of critical missed events as I recall 
from the chronology around this episode.
    Mr. Powell, you are nodding. I assume you would agree with 
that.
    Mr. Powell. I would agree that there were a number of parts 
in the chronology beyond, that involve a whole host of things.
    Mr. Davis. So just in fairness, I know a few of my 
colleagues on the other side of the aisle at some point have 
made the point today, or they have kind of implied, that but 
for this particular unintercepted phone call that there could 
have been some prevention of 9/11.
    And certainly, none of the three of you mean to hang your 
hat in isolation on that as being the critical event, do you?
    Mr. McConnell. No, not at all.
    Mr. Davis. Okay. Thank you.
    Mr. McConnell. We could have done better as a community.
    Mr. Davis. Okay. Let me turn from that, and I appreciate 
that candid admission on your part. Let me turn to section 
105(a). And the Chairman raised this question earlier, and I am 
not sure I heard the answer, so I want to try it again.
    The section 105(a) provision--nothing in the definition of 
surveillance shall be construed to encompass surveillance 
directed at a person reasonably believed to be located outside 
of the United States--obviously, a critical provision.
    This is directed at any of the three of you. Do you 
understand the term ``person'' to refer only to targets of 
surveillance?
    Mr. McConnell. Sir, let me tell you the way I understand 
it, and then we will let the two folks that wrote the bill say 
what their real intent was.
    It goes back to the--you have to read the law in context, 
and it is how you define electronic surveillance. So what that 
is attempting to do is to take the fact that someone is 
foreign, foreign country, and remove it from the definition of 
electronic surveillance, so it allows us to conduct the 
surveillance regardless of where we do the intercept.
    What we had gotten trapped into with the old language was 
the fact we were doing it in the United States caused us to go 
through this FISA procedure when it wasn't the intent of the 
original law.
    Mr. Davis. Well, I certainly understand that is a matter of 
interpretation, but let me just ask you, Admiral McConnell, do 
you agree that the term ``person'' refers to targets of 
surveillance as opposed to individuals about whom there may be 
no intel whatsoever, who may not be legitimately classified as 
targets?
    Mr. McConnell. I am not sure I understood your question. If 
there is a nexus here, it is for the conduct of foreign 
intelligence.
    Now, I would go back to what is in the front part of the 
law with regard to protecting U.S. citizens and the U.S. 
citizen is not going to give away his fourth amendment rights.
    Mr. Davis. Well, let me perhaps come at that a different 
way and perhaps get the lawyers to weigh in.
    Do either of you accept that there is any constitutional 
limitation on the United States' ability to conduct 
surveillance abroad? Is there any constitutional limitation 
whatsoever?
    Mr. Wainstein. Well, certainly, if U.S. persons are 
involved----
    Mr. Davis. No, no, I am talking about someone who is not a 
U.S. person, surveillance of someone abroad. Is there any 
limitation whatsoever on the Government's ability to conduct 
surveillance of someone outside of the United States?
    Mr. McConnell. If it is a foreign person outside the United 
States, there would not be a limitation.
    Mr. Davis. All right, so you would----
    Mr. McConnell. Other than something we may have agreed to 
in a treaty or something like that.
    Mr. Davis. All right. But you would concede a limitation on 
an American citizen who was abroad, is that correct, a 
limitation with respect to the Government's surveillance 
authority?
    Mr. Wainstein?
    Mr. Wainstein. Well, it is a constitutional matter. Any 
search involving a U.S. person----
    Mr. Davis. Okay.
    Mr. Wainstein [continuing]. Overseas has to be reasonable.
    Mr. Davis. All right. What about someone who is a non-
American, someone who is a not a citizen? Is there any 
constitutional limitation on the Government's ability to 
conduct surveillance against that person outside the United 
States?
    Mr. McConnell. Outside the United States.
    Mr. Davis. Yes.
    Mr. McConnell. No.
    Mr. Davis. And do the two lawyers agree with that?
    Mr. Wainstein. Yes, not under the fourth amendment.
    Mr. Powell. I don't know of one under the fourth amendment. 
There may be things by treaty or international obligations----
    Mr. Davis. Okay. Well, not counting treaty or some specific 
statutory arrangement we may enter, is it the position of the 
executive branch that the United States government faces no 
constitutional limits on its ability to conduct electronic 
surveillance against a non-American who is outside the United 
States? Is that your position?
    Mr. Powell. There is some Supreme Court case law talking 
about if somebody has a substantial connection to the United 
States, so there are----
    Mr. Davis. Okay.
    Mr. Powell [continuing]. Cases out there that may come into 
play. I am just trying to think through in my mind. There is a 
substantial connection----
    Mr. Davis. Well, if I can stop you for 1 second, there is 
Supreme Court case law around this, and frankly, the Supreme 
Court case law is not exactly crystal clear. You just 
articulated one exception or one potential exception that 
exists.
    The problem is the statute is very specific. The statute 
says a person reasonably believed to be located outside the 
United States. There is no caveat or no provision in the law 
that Congress just passed--which, by the way, I voted for.
    As I understand it, there is no provision in here which 
contains the U.S. Supreme Court exception you just described, 
am I right?
    Mr. Powell. Well, if it is constitutionally based, it would 
not need to be in the statute. I mean, we are still going to 
have--if there is a constitutionally based restriction, we 
would not----
    Mr. Davis. Are you sure of that, Mr. Powell, because--and I 
don't want to prolong this, but it is a very important issue, I 
think.
    The Administration's position was that the force 
authorization after 9/11 had implications for the Geneva 
Convention, that the force authorization after 9/11 had 
implications for FISA.
    The Administration's position was that the authorization 
for the force authorization after 9/11 had implications for 
habeas corpus. None of those things are contained in the force 
authorization.
    So I am a little bit concerned when I hear the executive 
branch saying well, you know, we say person, but we don't 
really understand it that way, because the Administration has 
had a very, very expansive tendency when it comes to 
interpretation of statutes passed by the Congress. I think you 
would all agree with that.
    And again, while I have an enormous amount of respect for 
the service you are all making for your country, the lawyers 
for your Administration went before the Supreme Court and said 
that the 9/11 authorization allows the President to make habeas 
corpus suspensions in some instances.
    That is nowhere in the legislative history and certainly 
nowhere in the language. So again--and understand, I say this 
as one who voted for the bill but wants to see it fixed in a 
few months--the term ``person'' is a very literal term.
    In my mind, it seems to encompass any live human being. The 
Supreme Court has not interpreted the Government's powers so 
broadly.
    And, Mr. Powell, if I heard you correctly earlier, several 
times today you have used the term ``target,'' and with respect 
to section 105(a), you have said target. That word is not 
there. ``Person'' is there.
    Do you understand ``person'' and ``target'' to be 
synonymous?
    Mr. Powell. When I use the term ``target,'' I am talking 
about a specific selection that we have made----
    Mr. Davis. Yes.
    Mr. Powell [continuing]. To surveille.
    Mr. Davis. Right.
    Mr. Powell. And that is connected with a person in many 
cases.
    Mr. Davis. But you are talking about not a random human 
being but someone who has been selected as part of the 
intelligence-gathering process.
    Mr. Powell. Correct. I am talking about somebody----
    Mr. Davis. All right.
    Mr. Powell [continuing]. Who has been determined to be a--
--
    Mr. Davis. Does this say that?
    Mr. Powell [continuing]. Valid foreign intelligence 
requirement--to meet a valid----
    Mr. Davis. All right.
    Mr. Powell [continuing]. Foreign intelligence requirement. 
That is what we do.
    Mr. Davis. Yes.
    Mr. Powell. That is what we spend money to do.
    Mr. Davis. You are 100 percent correct. Does the bill say 
what you just said?
    Mr. Powell. Well, the bill says that we have to have a 
foreign intelligence purpose to be doing this, or we cannot do 
it, so the foreign intelligence limitation is there in the 
certification signed out by the DNI and the Attorney General.
    Yes, that is in the bill that we have to have a foreign 
intelligence purpose to do it. We cannot do it because we have 
a----
    Mr. Davis. Mr. Chairman, if I can just wrap up with this 
point.
    I think what you have said, Mr. Powell, is the better, the 
more good faith, reading of the law. But I would submit to you 
it is not the literal reading of the law.
    We have a U.S. Supreme Court that has at least five 
justices who profess to care very much about the literal 
statute. So let me ask you this way--and, Admiral, I would be 
happy to pose this question to you, perhaps to Mr. Wainstein, 
if Mr. Powell, you know, is unable to answer it.
    Any problem with amending this statute when we come back in 
the next 5 months and being more specific about what ``person'' 
means?
    Mr. McConnell. Sir, I have no problem looking at any 
language, just, as I said to the Chairman earlier----
    Mr. Davis. Right.
    Mr. McConnell [continuing]. As long as we can look at it in 
context, understand what is intended and what that unintended 
consequences might be, so we can do our job.
    But where we were last time, it was last-minute changes----
    Mr. Davis. Sure.
    Mr. McConnell [continuing]. And, you know, that is where we 
got into a bind. So as long as we do it open and look at it and 
understand it and I can agree to it, then I would be happy to 
do that.
    Mr. Davis. Mr. Wainstein, any objection from the Department 
of Justice to being much more specific about what ``person'' 
means?
    Mr. Wainstein. We would have no objection to looking at 
what you would propose or what anybody would propose.
    Mr. Davis. What is wrong with saying target?
    Mr. Wainstein. Well, I am not sure that there is anything 
wrong, frankly. I would have to take a look at it. ``Person'' 
is defined in FISA. It is one of the statutorily defined terms.
    So I would have to sort of go look at the interplay of that 
and changing to the term ``target.'' But no, as we have 
responded to a number of the questions today about certain 
terms in the statute, we are happy to take a look at them.
    Mr. Davis. Well, let me just end on this point. Again, this 
may have sounded like a contentious argument, but I will tell 
you why it is not. What this Congress has been grappling with 
for, frankly, the last 7 months--the last several didn't care 
to grapple with it.
    But what this Congress has been grappling with for the last 
7 months is a pattern of taking statutes, or taking plenary 
presidential powers, and giving them enormous latitude and, 
frankly, in some instances, doing it without any statutory 
predicate.
    So you may understand why there is some resistance on this 
side of the aisle to you saying, ``Well, everyone who 
understands the statute would reasonably interpret it this 
way.'' Some people would have thought that everyone who 
understood habeas corpus would reasonably interpret it a 
certain way.
    And I think that is the trust point that Ms. Sutton was 
making earlier. We have extraordinary trust for you gentlemen 
as individuals.
    Unfortunately, your Administration's constant tendency to 
push the edge of its powers leads us to wonder if this bill, 
which passed overwhelmingly in the Senate and got 41 of my 
Democratic colleagues in the House--I understand why some of my 
colleagues wonder if this bill will be interpreted in the way 
that it is meant to be interpreted. Your Administration's 
history leads us to wonder about that.
    And I will yield back, Mr. Chairman.
    Mr. Conyers. I thank the gentleman for his important 
contribution.
    I thank the witnesses for their tenacity and staying power 
and candor here today.
    And I turn to the gentleman from California, Mr. Lungren, 
for the final comment.
    Mr. Lungren. Oh. Well, thank you very much, Mr. Chairman. I 
appreciate that.
    One thing I would say is that one of the guides about how 
the Administration may act is how it is acting. And as I can 
take it, you are enforcing this law right now, and we have this 
period of time to see how you do it.
    But having said that, I would hope that we might take to 
heart some of the comments and questions of Mr. Berman from 
California in those areas where in the letter that we received 
from you, Mr. Wainstein, you indicated that that is not the 
intention of the Administration, that is not the way you 
interpret it.
    And maybe we can sit down and get some language which 
specifies that it will not be used in those ways, which is the 
easiest thing for me to look at as not changing the essentials 
of what the admiral came to us with and why he indicated that 
the fix that was offered as an alternative he did not believe 
met the need.
    Perhaps we can meet somewhere in the middle with respect to 
these kinds of clarifications without changing the essential 
bill that we passed into law just, what, one and a half months 
ago.
    Mr. Conyers. I thank the gentleman for his contribution.
    We realize that this has been a very important hearing. We 
are going to review the record carefully. It seems that the 
bottom line is that there are a number of things that could be 
clarified to everybody's benefit.
    And so we will, without objection, give all Members 5 
legislative days for additional questions, and the record will 
remain open for those same 5 legislative days.
    And with that, this hearing is adjourned.
    [Whereupon, at 4:26 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 Lamar Smith, a Representative in 
Congress from the State of Texas, and Ranking Member, Committee on the 
                               Judiciary
    Thank you, Mr. Chairman.
    The modernization of the Foreign Intelligence Surveillance Act is 
one of the most critical issues facing the House Judiciary Committee.
    I am encouraged that we have the Director of National Intelligence, 
Michael McConnell, and the Assistant Attorney General for the National 
Security Division, Ken Wainstein, here today to provide the Committee 
with important information on the real world implications of FISA 
reform.
    This is the first appearance of the Director of National 
Intelligence before the Judiciary Committee.
    Director McConnell's intelligence and national security career 
spans over 30 years. He has served under both Democratic and Republican 
Presidents, including as the Director of the National Security Agency 
in the Clinton Administration.
    Despite his impressive, non-partisan service in the Intelligence 
Community, his motives have been impugned simply because he supports a 
policy he believes in. Such partisan criticisms distract us from what 
should be a non-partisan issue--protecting our country from terrorist 
attacks.
    Foreign terrorists are committed to the destruction of our country. 
We are at war with sophisticated foreign terrorists, who are continuing 
to plot deadly attacks. It is essential that our Intelligence Community 
has the necessary tools to detect and disrupt such attacks.
    Foreign terrorists have adapted to our efforts to dismantle their 
operations. As their terrorist operations evolve, we need to acquire 
new tools and strategies to respond to their threats.
    We have a duty to ensure that the Intelligence Community can gather 
all the information they need to protect our country.
    In the 30 years since Congress enacted the Foreign Intelligence 
Surveillance Act (FISA), telecommunications technology has dramatically 
changed, and terrorists have employed new techniques to manage and 
expand their terrorist networks.
    Before we left for the August recess, Congress passed important 
legislation to fill a gap in FISA.
    We need to make that fix permanent and pass other measures needed 
to prevent another terrorist attack against our Nation.
    FISA does not require a court order to gather foreign 
communications between foreign terrorists outside the United States.
    The real issue is this: Should FISA require a court order when a 
known foreign terrorist communicates with a person inside the United 
States? The Intelligence Community and 30 years of experience under 
FISA say no. For the last 30 years FISA never required such an order.
    Requiring a court order for every phone call from a foreign target 
to a person inside the U.S. is contrary to FISA and common sense--how 
can the Intelligence Community anticipate a communication from a 
foreign terrorist to a terrorist inside our country?
    In much the same way as a criminal wiretap, FISA provides--and has 
provided for 30 years--specific minimization procedures to protect the 
privacy of persons inside the United States with whom a foreign target 
may communicate.
    It is unclear why now, after all this time, some seek to dismantle 
rather than modernize FISA.
    Requiring separate FISA authority for these calls could be a deadly 
mistake.
    Calls between a foreign terrorist and a person located inside the 
United States should be minimized in accordance with well established 
procedures. To do otherwise is to jeopardize the safety of our Nation.
    The Director of National Intelligence made it clear that FISA 
modernization is essential to the Intelligence Community to protect 
America from terrorist attacks.
    The American people understand what is at stake--almost 60 percent 
of Americans polled on the subject of FISA reform supported the Protect 
America Act. Less than 26 percent opposed it. The simple fact is that 
Americans support surveillance of foreign terrorists when they contact 
persons in the United States.
    I look forward to today's hearing with the hope that the debate on 
FISA reform will lead to enactment of all of the Director's proposals 
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 operations.
    These reforms are long overdue. They should be debated without 
exaggerated claims of abuse or unfounded horror stories of threats to 
civil liberties.
    We should maintain our commitment to winning the war against 
terrorism.
    We must do all that we can to ensure that the words ``Never again'' 
do in fact ring true across our country.
    I yield back the balance of my time.

                                

       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
    I thank the Chairman for holding this additional hearing on the 
important issue of the harmful changes to the Foreign Intelligence 
Surveillance Act (FISA) wrought by the misnamed Protect America Act 
(PAA). These changes undermine FISA's core by removing from its 
protection a broad category of electronic communications, subjecting 
such communications to government surveillance without court 
authorization or oversight.
    In addition to the substantive problems with the PAA, I am wary of 
the manner in which it was passed. Just prior to Congress's August 
recess, DNI Michael McConnell originally agreed that a less onerous 
version of the bill would be acceptable to him. At the eleventh hour, 
and at the White House's direction, he came back to Congress demanding 
the more extreme changes to FISA contained in the PAA without benefit 
of a hearing or any meaningful debate. Given the important privacy and 
civil liberties concerns at stake, these changes should have been 
better vetted prior to enactment. I welcome Director McConnell's 
testimony today so that we do not repeat the process by which the PAA 
was passed.

                                

Questions submitted for the Record to the Honorable J. Mike McConnell, 
                 Director of National Intelligence \1\
---------------------------------------------------------------------------
    \1\ At the time of publication, responses to questions submitted 
for the record to Mr. McConnell had not been received by the Committee.



                                

Questions submitted for the Record to the Honorable Kenneth Wainstein, 
    Assistant Attorney General for National Security, United States 
                       Department of Justice \1\
---------------------------------------------------------------------------
    \1\ At the time of publication, responses to questions submitted 
for the record to Mr. Wainstein had not been received by the Committee.




                                 
