[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
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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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
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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\
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\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\
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\1\ At the time of publication, responses to questions submitted
for the record to Mr. Wainstein had not been received by the Committee.