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


 
                              FISA HEARING 

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

                                HEARING

                               before the

                            PERMANENT SELECT
                               COMMITTEE
                            ON INTELLIGENCE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

           Hearing held in Washington, DC, September 18, 2007

                     U.S. GOVERNMENT PRINTING OFFICE

38-877 PDF                 WASHINGTON DC:  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001































               PERMANENT SELECT COMMITTEE ON INTELLIGENCE

                    SILVESTRE REYES, Texas, Chairman
ALCEE L. HASTINGS, Florida           PETER HOEKSTRA, Michigan
LEONARD L. BOSWELL, Iowa             TERRY EVERETT, Alabama
ROBERT E. (BUD) CRAMER, Alabama      ELTON GALLEGLY, California
ANNA G. ESHOO, California            HEATHER WILSON, New Mexico
RUSH D. HOLT, New Jersey             MAC THORNBERRY, Texas
C.A. DUTCH RUPPERSBERGER, Maryland   JOHN M. McHUGH, New York
JOHN F. TIERNEY, Massachusetts       TODD TIAHRT, Kansas
MIKE THOMPSON, California            MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois       DARRELL E. ISSA, California
JAMES R. LANGEVIN, Rhode Island
PATRICK J. MURPHY, Pennsylvania
          Nancy Pelosi, California, Speaker, Ex Officio Member
       John A. Boehner, Ohio, Minority Leader, Ex Officio Member
                    Michael Delaney, Staff Director


                              FISA HEARING

                              ----------                              


                      TUESDAY, SEPTEMBER 18, 2007

                          House of Representatives,
                Permanent Select Committee on Intelligence,
                                                    Washington, DC.
    The committee met, pursuant to call, at 10:05 a.m., in room 
2118, Rayburn House Office Building, the Honorable Silvestre 
Reyes (chairman of the committee) presiding.
    Present: Representatives Reyes, Hastings, Boswell, Cramer, 
Eshoo, Holt, Ruppersberger, Tierney, Thompson, Schakowsky, 
Langevin, Murphy, Hoekstra, Wilson, Thornberry, McHugh, Tiahrt, 
and Issa.
    Staff Present: Michael Delaney, Staff Director; Wyndee 
Parker, Deputy Staff Director/General Counsel; Jeremy Bash, 
Chief Counsel; Don Campbell, Professional Staff; Stacey Dixon, 
Professional Staff; Mieke Eoyang, Professional Staff; Eric 
Greenwald, Professional Staff; Robert Minehart, Professional 
Staff; Don Vieira, Professional Staff; Mark Young, Professional 
Staff; Kristin R. Jepson, Security Director; Stephanie Leaman, 
Executive Assistant; Courtney Littig, Chief Clerk; Caryn 
Wagner, Budget Director; Chandler Lockhart, Staff Assistant; 
Josh Resnick, Staff Assistant; Chris Donesa, Deputy Minority 
Staff Director/Chief Counsel; Frank Garcia, Minority 
Professional Staff; John W. Heath, Minority Professional Staff; 
James Lewis, Minority Professional Staff; Jamal Ware, Minority 
Press Secretary.
    The Chairman. The committee will please come to order.
    Today the committee will receive testimony from four 
recognized experts on the Foreign Intelligence Surveillance 
Act, or FISA.
    Following the wire-tapping scandals of the 1970s, Congress 
enacted FISA in 1978 to regulate government surveillance of 
American citizens in national security cases. FISA instituted 
two important checks on the ability of the executive branch to 
conduct surveillance of Americans. First, the government would 
have to obtain an order from a specially designated court 
before tapping the phones of Americans on U.S. soil. Second, 
the government's eavesdropping activities would have to be 
reported to Congress.
    Since 1978, much has changed. First, the threat has 
changed. Our focus is no longer the Soviet Union but rather a 
lose confederation of terrorist cells, WMD proliferators, and 
rogue nations.
    Second, the technology has changed. Today, our calls and e-
mails fly over the Internet through cell phones, BlackBerries, 
blogs, and chat rooms.
    Third, FISA has also changed. The statute has been amended 
or updated by Congress in roughly 50 different ways since 1978.
    And, last, Congress has made significant changes to the 
statute since the attacks of 9/11, including the use of John 
Doe roving wiretap authority, the expansion of the emergency 
period for obtaining court orders and authorization for 
targeting lone wolf suspected terrorists. Those are just a few 
that I wanted to mention this morning.
    One thing, however, has not changed: the Fourth Amendment. 
It is a cornerstone of our Nation and should not be set aside, 
suspended or amended, not under the threat of war, 
insurrection, rebellion or even terrorism. To do so would 
greatly undermine our cherished systems of checks and balances. 
Our Constitution has stood the test of time. It has protected 
the American people for more than 200 years.
    Two years ago, we were stunned to learn that, after 9/11, 
the Bush administration had been ignoring FISA. The NSA program 
involved not only targets overseas but also American citizens 
whose phone calls were listened to and e-mail read without a 
warrant. To this day, the administration refuses to share 
critical information about this program with Congress.
    More than 3 months ago, Ranking Member Pete Hoekstra and I 
sent a letter to the Attorney General and to the DNI requesting 
copies of the President's authorizations and the DOJ legal 
opinions. We have yet to receive this information.
    And so today I would like to say publicly to Bush's nominee 
for Attorney General, Judge Mukasey, one of your first tasks as 
Attorney General will be to repair DOJ's relationship with 
Congress. You can start by turning over the documents that all 
members of this committee have long sought relating to the NSA 
surveillance program.
    In April, the DNI proposed some changes to FISA. The 
committee had planned a thorough review. In late July, in the 
midst of this review, the administration came rushing in with 
an urgent request to craft changes to FISA before the August 
district work period. Despite our misgivings over the rushed 
timing, we agreed to craft short-term legislation to ensure 
that our intelligence professionals had the tools that they 
needed to uncover plots against the U.S.
    The DNI asked for three things: first, no individual 
warrants for foreign targets; second, a mechanism to compel the 
telecommunication companies to cooperate with the government, 
and, third, individual warrants for targets inside the United 
States.
    We agreed to all of these things; and the leadership bill, 
H.R. 3356, addressed all of these issues. Further, we agreed to 
the DNI's request to expand this new authority from terrorism 
to all foreign intelligence and other changes that had been 
requested by the DNI.
    But our administration just couldn't say yes and insisted 
on moving the goalposts even after striking an agreement with 
congressional leaders. The administration demanded its version 
of the legislation, even though our bill gave the Intelligence 
Community 100 percent of what it had asked for. The result was 
that Congress passed what I believe was a very flawed bill, the 
so-called Protect America Act.
    So I want to make clear this morning our concerns are not 
about protecting the rights of foreign individuals overseas. 
The question, I believe, is when communications involve 
Americans, as was the case in the NSA surveillance program, 
what should the rules be?
    I am concerned that, as drafted, the administration's bill 
just went too far. It allows warrantless physical searches of 
Americans' homes, offices and computers. It converts the FISA 
court into a rubber stamp, and it contains insufficient 
protections for Americans who will have their phone calls 
listened to and e-mails read under this broad new authority.
    I take small comfort that the legislation sunsets in 6 
months, but we will not wait. In early October, at the 
Speaker's request, we will mark up FISA legislation to address 
the needs of the Intelligence Community.
    We will legislate based on the full record in this 
committee. We have held four hearings in June and July. 
Committee members and staff have made several trips to NSA to 
review this new authority. We have held a closed hearing on 
September the 6th with the NSA and FBI directors; and, after 
today's hearing, we will hold another open hearing on Thursday 
with DNI McConnell and Assistant Attorney General Kenneth 
Wainstein.
    Our first witness today is James Baker. Mr. Baker is one of 
the Nation's foremost experts on FISA, having run FISA 
operations for the Department of Justice for the past 7 years. 
In 2006, Mr. Baker received the George H.W. Bush award for 
excellence in counterterrorism, the CIA's highest award for 
counterterrorism achievements. He is currently on the faculty 
of Harvard Law School.
    Welcome, Mr. Baker.
    The committee is also pleased to welcome back Mr. Jim 
Dempsey. He is Policy Director of the Center for Democracy and 
Technology. He served for 9 years as counsel to the House 
Judiciary Committee and remains an important adviser to 
Congress.
    I also want to welcome Ms. Lisa Graves, Deputy Director of 
the Center for National Security Studies. Lisa previously 
served as Senior Counsel at the ACLU and as Chief Nomination's 
Counsel on the Judiciary Committee. She also served as Deputy 
Assistant Attorney General in the Department of Justice.
    Welcome, Lisa.
    Finally, I want to welcome David Rivkin, who is a partner 
at the law firm of Baker Hostetler. He has written several 
articles on constitutional issues. He previously served in 
government, at the Department of Energy and as a Special 
Assistant to Vice President Dan Quayle.
    And now I would recognize our ranking member, Mr. Hoekstra, 
for any statement that he may wish to make.
    Mr. Hoekstra. Good morning, Mr. Chairman, and good morning 
to the witnesses.
    I have got a prepared statement which I will submit for the 
record. I just want to address some of the comments that the 
chairman made.
    To characterize the notification of the U.S. Congress by 
the New York Times as being ``stunning'' and perhaps implying 
that that is the first time that Congress heard about a 
terrorist surveillance program is inaccurate.
    Mr. Chairman, I would like to submit--I don't have it with 
me--but to get the document and submit for the record the 
listing of briefings to congressional leadership by the White 
House on the Terrorist Surveillance Program----
    The Chairman. Without objection.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILBLE IN TIFF FORMAT]
    
    Mr. Hoekstra. This would also identify--or when that is put 
into the record will identify that congressional leadership was 
brought in almost immediately after 9/11 to talk about what the 
threat was and how best collectively Congress and the President 
would respond to this threat and keep America safe at a time 
when America was concerned about additional attacks against the 
United States after 9/11 because we didn't fully understand who 
was attacking, their capability, and what kind of sleeper cells 
they had.
    Matter of fact, that document will show that the current 
Speaker of the House was briefed three times and consulted 
three times within the first 11 months as this program started 
to take shape and that the White House consulted with 
congressional leaders about what the program should be, the 
possibility and the necessity whether legislation should be 
done to update FISA at that time or not and how we would 
implement the program.
    Once the program was implemented, Congress was continually 
briefed as to the extent of the surveillance, the types of 
people that were being surveilled, the protections that were 
being put into the process to make sure that American civil 
liberties were protected, the type of information that was 
being collected, the impact that we were having on minimizing 
the threats to the United States.
    Let us be clear about this. This is not the Bush terrorist 
surveillance program. This is the Bush/congressional terrorist 
surveillance program. Because congressional leadership was 
involved in this process from the beginning.
    I know when I became chairman of the committee, within the 
first 30 days I got the call to go over to the White House 
because they wanted to make sure that I was fully briefed into 
the program and understood exactly what the programs were and 
the parameters. And the last question in that meeting, in every 
meeting after that where I was briefed in on the program was 
very consistent: Do you have any concerns? Do you have any 
questions? Is there anything else that we need to do to address 
and make sure that you are comfortable with this program?
    And I have to assume that for the first 3 years while this 
program was under way, that is exactly what happened.
    And until the New York Times, in an irresponsible process 
and method, revealed the existence of this program, 
congressional leadership on the Republican and Democrat side, 
like I said, including the current Speaker of the House, was 
briefed on this program. And the reason that they went along 
with it for 4 years, and the parameters and under the ways that 
they did, was they recognized that American civil liberties 
were protected and they recognized that this program was having 
a significant impact in keeping America safe.
    Republican and Democrat leadership bought into this program 
as being necessary, essential, and appropriate to keep America 
safe.
    With that, I will yield back the balance of my time and 
submit my previous statement or the prepared statement for the 
record.
    Thank you, Mr. Chairman.
    [The statement of Mr. Hoekstra follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Thank you, Mr. Hoekstra; and that is why it 
is imperative that we get the documents from the 
administration, so that we can verify the things that are true 
and the things that aren't true about who said what and who did 
what under that program.
    I do remember that it was a hard issue to get the members 
of this committee fully read into that program. But, be that as 
it may, we will resolve those kinds of issues in due time, and 
now I want to first go down the list of the speaking order.
    We are going to have Mr. Jim Baker, then followed by Mr. 
Jim Dempsey, Ms. Lisa Graves and then Mr. David Rivkin.

 STATEMENTS OF JAMES BAKER, HARVARD LAW SCHOOL; JAMES DEMPSEY, 
  POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY; LISA 
GRAVES, DEPUTY DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES; 
           AND DAVID RIVKIN, PARTNER, BAKER HOSTETLER

    The Chairman. So now I want to recognize Mr. Jim Baker; and 
I want to alert the members that DOJ has not cleared Mr. 
Baker's testimony, unfortunately, but we will, however, now 
have him present his oral remarks to the committee.
    So, with that, Mr. Baker, you are recognized.

                    STATEMENT OF JAMES BAKER

    Mr. Baker. Thank you.
    We have not been able to finish the clearance of the 
written statement, but I am able to give an oral statement 
today.
    Mr. Chairman, members of the committee, thank you for the 
opportunity to come here today to discuss the Foreign 
Intelligence Surveillance Act and the Protect America Act. The 
issues that we will discuss today are complex and important and 
the actions that you take based upon what we talk about today 
will have a significant impact on the safety and the freedom of 
all Americans.
    I would just like to make a brief statement about my 
background to amplify what the chairman said earlier.
    From 1998 until 2007, I was responsible for intelligence 
operations at the Department of Justice. Working with the very 
dedicated men and women at the Office of Intelligence Policy 
and Review, we were responsible for representing the United 
States before the Foreign Intelligence Surveillance Court. In 
my time at OIPR, I reviewed, prepared, supervised the 
preparation of thousands of FISA applications.
    The Department of Justice has specifically approved my 
testifying here today, but I would like to emphasize that I am 
appearing here in my personal capacity and that the views I 
express do not necessarily reflect those of the Department of 
Justice or the administration.
    I would like to focus on three areas in my opening remarks 
here today:
    First, I would like to talk about the productivity of the 
original FISA. FISA was extremely productive over the years. 
FISA permitted robust collection of foreign intelligence 
information, including actionable intelligence, and when I use 
the term ``actionable intelligence'' I mean information that 
the Intelligence Community could use to take action to thwart 
the activities of our adversaries, including terrorist groups. 
We were able to disseminate information gained from FISA widely 
through the Intelligence Community where appropriate and to our 
foreign partners. We were also able to use evidence obtained 
from FISA in criminal prosecutions with the approval of the 
Attorney General.
    Furthermore, everyone in the system had the comfort of 
knowing that their actions were clearly lawful and that they 
would not be subject to lawsuits or criminal prosecution for 
having performed in conformance with an act of Congress and 
Federal court order.
    In many ways, it seems to me there is a paradox in that we 
are talking about amending Congress, and Congress amended FISA 
in the Protect America Act, in my view, as a result of the 
successes of FISA itself.
    Because FISA enabled collection of vital and timely foreign 
intelligence information, including information about the 
activities of overseas terrorists, the Intelligence Community 
came to regard FISA as a critically important collection 
platform and the Intelligence Community increasingly turned to 
FISA to obtain important foreign intelligence information. 
FISA, in my view, expanded the understanding by other elements 
of the Intelligence Community with respect to the value of 
certain types of collection. That then led to a growth in the 
targeting of foreign operatives, which in turn then led to the 
desire to change the law that we were talking about today and 
that you were talking about in the summer.
    What I would suggest is, before you decide whether to renew 
or modify FISA again or the Protect America Act, I would 
recommend asking the Intelligence Community for a thorough 
analysis of their assessment of the productivity of the 
original FISA. I believe that the record will show that FISA 
contributed significantly to our successes against al-Qa'ida 
and other terrorist groups post 9/11 and indeed that FISA 
worked during wartime.
    That is not to say that it was easy. The very dedicated men 
and women of OIPR worked very long hours under sometimes very 
adverse conditions to enforce the laws that Congress had 
enacted at the time. In my view, they exemplify what it means 
to be a dedicated public servant, and I think their actions are 
worthy of the review of historians in the years to come.
    A few comments about the scope of the original FISA.
    To be clear, as Congress said in the legislative history, 
no means of collection are barred by the original statute. In 
other words, all forms of modern communication were and are 
subject to collection under the original FISA.
    In addition, to clarify a point that has been discussed, 
FISA has never applied to foreign-to-foreign wire or radio 
communications. One of the problems we face today, given modern 
technology, is that you can't always tell where the parties are 
at the time of interception.
    A frequent question that is also asked is whether FISA was 
intended to include or exclude foreign communications; and it 
seems to me that the analysis of that question requires a 
thorough understanding of several factors, including the state 
of technology in 1978, what Congress understood about the state 
of technology at that time, the lengthy and complex and 
somewhat contradictory at times legislative history that exists 
with respect to the original FISA and, finally, a careful 
examination of the text of the law that Congress ultimately 
enacted.
    With respect to the historical record, I have been looking 
at some documents lately just in a preliminary manner that 
seemed to indicate that transoceanic communications were made 
in relatively large quantities by both satellites and coaxial 
cables underneath the sea, that both kind of systems were 
expected to continue in service for many years and the use of 
fiber optics was already anticipated for undersea cables. As I 
suggest, the legislative history and the law can be read in a 
variety of ways; and it requires a careful analysis to decide 
what the state of play was in 1978. I suggest that if this is 
an important factor to you, that you task an entity such as the 
Congressional Research Service to do a thorough historical 
analysis.
    Mr. Chairman, at the end of the day, the real questions 
regarding whether or not or how to modernize FISA ultimately 
are not technological in nature. It seems to me that the real 
questions are, number one, who should the decision maker be 
with respect to authorizing collection? That is, who should 
approve the collection before it can begin?
    Second question is, what level of predication do you want 
to be required? That is, how much paperwork explanation is 
necessary to justify the collection and what standard of review 
should the decision maker apply?
    A third question is, how particular should the approvals 
be? In other words, how specific must the authorizations be 
with respect to the persons or the facilities at which the 
collection is directed?
    So, for example, the lower the level of approval and 
factual predication that is necessary and the less specific the 
authorizations need to be, the more quickly and more easily the 
Intelligence Community will be able to start collection and the 
greater the volume of collection they will be able to sustain 
over an extended period of time.
    At the end of the day, that is what I believe folks are 
talking about when they say that we need to make the system 
speedy or have a system that is--provides the Intelligence 
Community with the speed and agility necessary to obtain the 
foreign intelligence they need.
    A related question then is, with respect to the decision 
maker, what role should Federal judges play in this process? 
And as you can tell from the debate, this depends upon whether 
one or both of the targets--or the answer to that question 
depends on whether one or both of the targets is in the United 
States, whether you can actually tell where the parties who 
took the communication are located at the time of interception, 
and to what extent the government will need to review 
communications of the target--let me back up.
    To what extent does the government need to review or find 
the communications of the target in order to determine where 
the parties to the communication are located?
    Working closely with the Foreign Intelligence Surveillance 
Court for 10 years, I would be happy to provide the committee 
with the benefit of my experience in answering that question 
and any other questions that the committee may have today.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Mr. Baker.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Now, Mr. Dempsey, you are recognized for your 
opening statement.

                   STATEMENT OF JAMES DEMPSEY

    Mr. Dempsey. Mr. Chairman, Ranking Member, members of the 
committee, good morning. Thank you for the opportunity to 
testify at this hearing.
    The issue before the committee today has nothing to do with 
terrorism suspects overseas talking to other people overseas. 
For a long time, there has been agreement among Members of 
Congress of both parties and even in the civil liberties 
community that a court order should not be required for 
interception of foreign-to-foreign communications. Instead, the 
debate over the past year has been about the rights of American 
citizens and others inside the United States when they are 
talking to people overseas.
    Of course, the NSA needs speed and agility collecting 
communications of persons overseas; and many of those persons 
overseas will communicate only with other overseas persons, not 
affecting the rights of Americans at all.
    However, it is also certain that some of those persons 
overseas will communicate with people in the United States. 
Some percentage, maybe a growing percentage, of NSA's 
activities directed at persons overseas result in the 
acquisition and dissemination and use of communications to and 
from the U.S.
    Individuals in the U.S. retain their reasonable expectation 
of privacy in their communications even when they are 
communicating with people overseas. When the government listens 
to both ends of the communication, it infringes on the privacy 
rights of Americans.
    The administration would like us to think of this as just 
two issues: targeting people in the U.S., warrant required; 
targeting people overseas, warrant not required.
    I think there is a third category as well, which is when 
the government is targeting no one particular person at all and 
we have the NSA sifting and sorting and collecting 
communications to and from the United States.
    And minimization means not what we think it might mean. 
Minimization allows the government to use, collect, retain, 
share, and rely upon those communications of U.S. citizens.
    Mr. Chairman, I prepared a much longer memo on minimization 
and, with your permission and consent with the committee, I 
would like to enter that into the record.
    The Chairman. Without objection.
    [The information follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Dempsey. Now how do we normally protect and overcome a 
person's privacy interest? Of all of the millions of calls to 
and from the United States, how do we ensure that the 
government's interception activity is not careless or misguided 
or based on unreasonable assumptions?
    The answer under our Constitution, normally, is we require 
a court order for that decision. It is the court order that 
protects and overcomes the privacy interests of persons on both 
ends of the call. When a judge issues a court order, she knows 
she is authorizing the government to infringe on the privacy of 
people on both ends of the communication. The warrant approves 
the interference with the privacy of both the target, so to 
speak, and all other persons on that targeted facility or 
communications channel.
    Even if one party has no fourth amendment rights, the other 
parties to the communication retain theirs; and it is the court 
order that is necessary to protect the interest of those 
persons, in this case the persons in the United States.
    The Protect America Act is completely without standards in 
this regard. It does not require that the person overseas be 
suspected of being an agent of a foreign power. It doesn't 
require that the NSA have probable cause or any reasonable 
suspicion of anything except that the person be outside the 
United States.
    There is no limit on the scope or duration of the 
surveillance. There is no court approval of the minimization 
rules. There is no court supervision of how the calls of 
Americans are being treated, how they are being used.
    We can give the NSA the speed and agility it needs, while 
at the same time protecting rights of Americans. We can do that 
through a two-step process: A blanket order or program order--a 
basket order sometimes it is called--authorizing a program of 
electronic surveillance inside the United States intended to 
intercept the communications of persons overseas, plus a 
process for determining when individualized orders are 
necessary because the surveillance has shifted or the center of 
gravity has begun to interfere significantly with the rights of 
people in the United States.
    The court granting the initial blanket order would not have 
to approve and should not approve the specific targeting 
decisions. But by creating jurisdiction in the court and, by 
the way, giving the companies which we want to compel to 
cooperate the certainty of a court order and then creating the 
jurisdiction in the court to supervise and to review the 
periodic reports back to the court about how the surveillance 
is being carried out, I think we can strike the right balance 
here, provide the intelligence agencies with the speed and 
agility that they need and, at the same time, protect the 
rights of the Americans on the American end of these 
communications.
    Mr. Chairman, I would be happy to answer your questions and 
those of the other members of the committee. There are, 
obviously, a host of issues that we need to go through here. 
One could dig in on the question of exclusivity, the question 
of immunity for service providers, a host of other issues; and 
I look forward to questions on those issues.
    The Chairman. Thank you.
    [The statement of Mr. Dempsey follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Now Ms. Graves, you are recognized.

                    STATEMENT OF LISA GRAVES

    Ms. Graves. On behalf of the Center for National Security 
Studies, I want to thank the chairman and the ranking member 
for having this hearing today, for having the privilege to 
testify on FISA and the PAA. We appreciate very much your 
scheduling this hearing in public so quickly in the aftermath 
of the temporary revisions that were passed in August.
    We believe that the far-reaching changes written into FISA 
are unconstitutional and they are unnecessary because there are 
alternatives that provide additional flexibility to the 
Intelligence Community and increase its effectiveness while 
preserving Americans' constitutional rights and the checks and 
balances. But every reasonable alternative was unreasonably 
rejected and the breadth of the PAA is, in a word, 
breathtaking. We fear that the PAA authorizes too much 
surveillance among Americans and fails to provide the kind of 
independent, individualized checks that are essential to 
protect civil liberties, and the requirements permitted by the 
PAA will undoubtedly sweep in increasing numbers of American 
communications with no independent protection for their rights.
    We need clear rules. There needs to be flexibility. But 
these rules are ambiguous and elastic; and history demonstrates 
that political leaders will, specially in times of fear, 
unilaterally and secretly read even narrow authorizations 
broadly. It is not clear exactly what kind of searches, whether 
electronic or physical, the PAA might allow. The kind of who, 
what, where, when, how often, how long required under FISA are 
missing under the PAA.
    It seems quite clear, however, that the intent was to 
eliminate the search warrant requirement for a substantial 
number of American communications.
    As Jim said, this is not about foreign-to-foreign 
communications, and I think as Mr. Baker said as well. And, in 
fact, the administration has taken this position publicly in 
various settings. But this isn't about the Terrorist 
Surveillance Program. It is not about al-Qa'ida calling the 
U.S. It is not limited to terrorists. It is not limited to 
weapons of mass destruction proliferators. What it is about is 
getting access to the networks and nodes in the United States 
that involve the international calls and e-mails of Americans 
and foreigners.
    And what it changes dramatically is the access to those 
calls from the fiber optic networks here in the United States 
without a warrant, and doing that required a warrant until last 
month and for the last 30 years. The PAA eliminates that 
protection.
    I think it is important to remember the history of FISA in 
this regard, and I understand from Mr. Baker there has been a 
lot of talk back and forth about that history. But let me just 
explore for a moment one key point regarding Operation 
Shamrock.
    As the members of this committee know well, Congress 
intended to prohibit the NSA from restarting Operation 
Shamrock, which was an operation that had been in effect for 
decades in which the NSA obtained the electromagnetic tapes of 
nearly all telegrams going into and out of the United States to 
analyze them for foreign intelligence information, for 
information to protect national security.
    When FISA was passed in 1801(f)(2), Congress barred 
acquisition--not targeting--acquisition of communications off 
the wires of the United States. That protection is eliminated 
plainly by this law.
    Now there are some who will say that the case law before 
FISA was passed was ambiguous or perhaps some courts had not 
ruled that such action was unconstitutional. But let me add a 
note about your power as Congress and your role, in my opinion.
    The courts in this area of national security are 
particularly weak in intervening when the executive branch 
asserts national security interests. Under the political 
question doctrine or other doctrines, they are hesitant to 
intercede; and the administration urges them not to.
    And the executive branch is not the sole organ, is not the 
best protector of individual liberties in this regard. It was 
Congress's role. It was a necessity for Congress to make this 
judgment, and Congress made a judgment that the Constitution 
required there to be a warrant before the Intelligence 
Community has access to the telecommunications cables going 
into and out of the United States for Americans' international 
communications.
    That was a correct judgment then, and it is a correct 
judgment to this day.
    Now the administration claims that there are some times 
when they don't know who is calling into the United States, 
whether it is a foreigner or not. But it seems to us that the 
packet technology, the technology that makes a call actually go 
from point A to point B, that makes it reach its destination, 
includes information that relatively quickly someone can 
ascertain who the originator is and who the target is or who 
the caller is and who the recipient is.
    We think that in a large number of communications you can 
know where those communications are going or we wouldn't 
receive calls or e-mails that we do, which we do most of the 
time.
    They also assert that there are some number of 
communications where they don't know where a call is coming 
from or where an e-mail is going to. But this is not a 
justification to sweep in all communications where they do know 
and can know particularly where American communications are 
involved.
    We think that it is critically important that this 
committee take a very hard look at the effect of the PAA, both 
the intended consequences and the unintended consequences. 
Because we believe this bill allows access to the facilities in 
the United States without any court oversight or meaningful 
oversight by the courts without any individual checks before 
the fact or after the fact, and basically it entrusts the 
Intelligence Community to take what they choose without any 
independent oversight.
    We fully support your efforts to get full disclosure of all 
of the documents you have requested, and we would request that 
significant amounts of those be made public to the extent 
possible. We believe it is essential for this committee to have 
a detailed report of the number of Americans who have been 
subject to surveillance without warrants already in the last 45 
days.
    We believe that individualized court orders are essential 
and also you need mandatory oversight. Apparently, optional 
oversight doesn't work, as you can't get documents you have 
been already seeking for months.
    We think it is critically important that you obtain the 
legal opinions and the court orders. And we believe that there 
has been ambiguity, to say the least, about the description of 
this program, as demonstrated by the statements by Chairman 
Rockefeller and former Ranking Member Harman of this committee.
    And let me just conclude on two points: First, there has 
been a tremendous globalization of American communications over 
the last 30 years. Forty million Americans travel abroad every 
year. A half a million Americans work abroad or serve in the 
military abroad. A couple of million Americans live overseas. A 
quarter of a million students study abroad a year. And all of 
these Americans, and Americans here, are in closer contact than 
ever with friends, family and business associates abroad.
    We need adequate and perhaps increased protections for 
Americans in these circumstances.
    The networks that will be accessed through the blanket 
orders that are presumed under this Act are networks that 
contain all American communications and some foreign 
communications, all American communications.
    Second, Americans' rights should not be reduced to the same 
as those people without constitutional rights. It shouldn't go 
to the lowest common denominator of the foreigner on the call. 
The Americans still retain those rights. And, as we have said 
before, we believe that minimization is inadequate and 
constitutionally problematic as a policy matter to protect the 
privacy of Americans.
    In conclusion, the Center for National Security Studies 
believes that 30 years ago Congress made the right judgment 
with more information before it than any court has ever had 
before it about what happens when there isn't a judicial check, 
and we would ask you to restore these protections and 
appropriate flexibility for the protection of our national 
security and for the protection of our constitutional rights.
    Thank you.
    The Chairman. Thank you, Ms. Graves.
    [The statement of Ms. Graves follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Now, Mr. Rivkin, you are recognized for your 
opening statement.

                   STATEMENT OF DAVID RIVKIN

    Mr. Rivkin. I want to thank the Chairman and the Ranking 
Member and committee members who invited me to testify at what 
indeed is a very important hearing dealing with the legislation 
that is going to have some consequential and important impact.
    A little bit about the past, since we can't understand 
where we are now unless we talk about the past.
    Before the August recess, Congress passed a 6-month fix to 
FISA. I happen to believe, at least based upon everything I 
have read in the media--we know that the New York Times and 
other newspapers do have a pretty good access to what is going 
on in the government--that the fix was urgently needed because 
you indeed had a serious truncation of a collection stream 
largely as a result of the fact that FISA, which was heretofore 
a warrantless surveillance program that we talked about a 
little bit earlier, was put under the FISA jurisdiction in 
January of this year and within a few months there were some 
orders by the FISA court that impaired important intelligence 
collection efforts.
    In response to these developments, Congress amended FISA 
specifically to permit surveillance of international 
communications of overseas targets without a court order, even 
if that interception occurs within the United States.
    Now we heard a number of my colleagues who are concerned 
about privacy--so am I, for that matter--who fear that this 
approach may entail the interception of communications by 
American citizens; and indeed that has emerged as the pivotal 
question in the FISA--long-term FISA operation.
    Again, a little bit about the past. I happen to think, in 
all candor, that today's fears stem from a certain ignorance 
about the past. I happen to believe, with all due respect to 
Mr. Baker, having looked carefully at FISA history that the 
notion--and let us leave little things like the Shamrock 
program aside--but the notion that I think a lot of privacy 
advocates would have you believe, that Congress enacted FISA to 
provide a comprehensive regulation of all or nearly all 
surveillance activities, is just plain false.
    If you look at the statute itself, it outlines four fairly 
narrow scenarios.
    The Congress in 1978 chose to deal with a discrete portion, 
in my opinion--and the facts do show that--of government's 
intelligence gathering. It really was focused on surveillance 
inside the United States. And, by the way, there is nothing 
particularly sacred about the distinctions made between wire 
and radio/satellite. Both distinctions were meant as a proxy to 
basically effectuate congressional desire to deal with 
surveillance inside the United States conducted in large part 
to get at Americans. And, let us be honest, there were some 
abuses in this area and not just by the Nixon administration 
but some of his predecessors, and that is what Congress 
primarily wanted to get at.
    So FISA generally required the executive branch to obtain 
judicial orders where the actual surveillance target was 
physically present in the United States. For targets located 
overseas, court orders were not required before a President 
could authorize an overseas wiretap with regard to radio 
communications, were not required whether or not the intercept 
was here or in the United States.
    Now Congress knew that NSA was vacuum cleaning and indeed, 
not in any pejorative sense, as large of a data stream of 
foreign communications using its satellites and listening posts 
overseas. Did not bother anybody.
    Incidentally, apropos of all the points about American-
generated data, voice information, whatnot, getting commingled 
in that stream, I wouldn't deny it. But it has always been the 
case. I would kind of ask my colleagues rhetorically, what do 
you think happened in 1980 if we were targeting using the 
satellites, communications of somebody within Russia or China 
and that person called the United States 20 times? The 
communications, the American portion of the communication was 
not listened to? Did it require a warrant? No, it did not. Not 
at all.
    We all heard about the revolution of communications and the 
fiber optic systems today. It is indeed true that more of the 
truly global traffic foreign-to-foreign flows from American 
fiber optic networks. So we do have circumstances today with an 
individual in Pakistan calling someone in Afghanistan has that 
communication routed from American fiber optic systems.
    Incidentally, the parties to that call do not know how 
their call will be routed and are not in the best position, as 
I understand it--I am not an engineer--but not in the best 
position to determine what the path would be. Unlike my 
colleagues here, instead of being horrified by that, I think it 
is great. It gives NSA wonderful opportunities to tap into the 
global communications traffic that ought to be exploited.
    Now let me quickly get to the heart of this matter.
    What is the privacy concern about Americans? The concern is 
what I would call an innocent bystander scenario. We have a bad 
guy overseas calling somebody in the United States. This person 
is not an agent of al-Qa'ida, not a sympathizer. He is just an 
innocent bystander. I would stipulate that it happens. What 
puzzles me is that nobody seems to acknowledge that that 
scenario is not an unacceptable consequence of any particular 
FISA regime but it is endemic to all surveillance.
    Warrants result from a process--and my colleagues love 
warrants--but warrants result from a process that considers the 
rights of a particular target or targets, not those who come 
into contact with them.
    Let me tell you something. Under a Title 3 situation, which 
is the basic wiretap statute, when you get a warrant against a 
given criminal, be it a member of a Colombian mafia or an 
Italian mafia or just a downright criminal, that person comes 
into contact daily with dozens of innocent people. Could be his 
son's teacher, could be his grocer, his tailor. All of those 
people get caught in a wireless surveillance net, and nobody 
seems to mind that.
    But the fact that the original decision to target that 
person is driven by a Title 3 warrant does absolutely nothing 
to protect the privacy of those other innocent Americans who, 
in a lexicon of my colleagues, are being spied at. I would 
rather be spied at in that way in the context of a FISA-driven 
program because of the minimization requirement. To the best of 
my knowledge, there are no minimization procedures in the 
criminal justice system.
    So this situation is not new. It is not novel. It was the 
case before, and it is the case today every day. Nobody has 
invented a way of discerning that a target of surveillance 
culls an innocent person and turning off the tap. That does not 
exist.
    We heard a lot about law. We heard about the fourth 
amendment. If one reads the fourth amendment, the very language 
of the fourth amendment suggests that there can be 
``surveillance or searchings''--is the language they use--to 
provide warrants. Otherwise, it makes no sense. Because, in the 
front part, they talk about unreasonable searches being banned; 
and, in the second part, it talks about what is the basic 
process, what are the predicates of a basic warrant. So the 
fourth amendment only prohibits only unreasonable searches and 
seizures.
    A lot of people claim that warrantless searches are 
inherently unreasonable, but that ain't so. That is not what 
the Constitution says. That is not what the case law says. And 
the Supreme Court over years has approved numerous warrantless 
searches. There is a whole line of cases called the ``special 
need'' cases. When you get stopped driving on Christmas in a 
sobriety checkpoint, there is no warrant, there is no 
particular suspicion. In fact, apropos of the business about 
targeting, the cop who stops you doesn't know who you are, does 
not know if you are a woman or man or Member of Congress. Has 
no idea.
    When people search lockers in--students' lockers in high 
schools, they don't have any particularized suspicion that 
there is some contraband in there. And Customs agents searched 
you long before September 11th when you crossed the broader 
thinking that maybe you didn't declare everything that you 
bought in Paris. There are no warrants.
    Believe me, all of those cases, all of those procedures 
have been challenged; and all have been upheld. And, as a 
matter of fact, unlike the kind of surveillance we are talking 
about, the fruits of those searches actually get used in 
criminal prosecutions.
    I would challenge anybody who is stopped at a warrantless 
sobriety check and found to be legally drunk, I would challenge 
this person to successfully suppress this information in any 
prosecution for DWI. It is not going to work.
    I am tired of hearing this notion that the Constitution 
requires a warrant in all circumstances.
    Now the Constitution also requires reasonable expectation 
that privacy be protected, not all expectation of privacy. 
Again, there are lots of cases dealing with instances where 
somebody is growing a marijuana plant in fairly plain sight on 
a windowsill behind a picket fence and a police officer walking 
by, sees it. Well, gee, there is no warrant. No, if you are 
doing something in plain sight, if you are not acting in a way 
that gives rise to a reasonable expectation of privacy, it 
doesn't work.
    I certainly don't understand why any intelligent reader of 
newspapers--you heard about things like Echelon, which I am 
sure you know what it is, but for those who don't it is a 
cooperative intelligence program that involves half a dozen of 
our allies that engage in mobile surveillance. And there are 
dozens and dozens of intelligence services in charming places 
like Pakistan and Saudi Arabia. So if somebody calls Peshawar 
and that person does not understand that half a dozen of 
intelligence services on that side of the ocean are going to 
listen to him or her, that person does not have reasonable 
expectation for privacy; And the law and the Constitution does 
not require us to humor unreasonable expectations of privacy.
    And as to foreigners, again, forgive me, the notion that if 
the bad guys knew there were two compartments, two regimes, if 
you did purely foreign-to-foreign communication, if you called 
somebody from Pakistan to Afghanistan, you were enrolled in the 
warrantless surveillance, but if you called enough times the 
United States, you had, you know, whatever is the balancing 
test here. If you brought enough Americans into your circle, 
you would graduate into a warrant-driven program. Any bad guy, 
unless he is an idiot, would call. Every spymaster in the 
world, every terrorist would call the United States enough 
times to order pizza or something from Borders.
    So everybody would be in a warrant-driven surveillance 
program in a situation where none of those people have any 
reasonable expectation of privacy
    Now, look, I think we should be honest. Extending the 
warrant's requirement--against whom are we going to get 
warrants here? We are not going to get warrants against 
innocent American bystanders. You couldn't. There would be no 
predicate for getting warrants. Just because you get a call 
from a bad guy does not make you subject to a warrant. We are 
talking about getting warrants against foreigners.
    I happen to think the FISA court is not a rubber stamp. Nor 
should it be a rubber stamp. Because what would be the value of 
getting it?
    So we are going to get warrants against--we are going to 
have NSA get warrants against foreigners after they--whatever 
is the threshold--called the United States enough. We 
frequently don't know who they are. We don't know their age. We 
don't know their real name. We may have a secondary or tertiary 
idea that the individual involved may be a cousin of somebody 
who knows an al-Qa'ida person. You are not going to get a 
warrant against such a person. I would be ashamed to ask a FISA 
court for a warrant against that person because there would be 
no basis for it.
    So, basically, what we are going to see is a serious 
truncation, a serious decrease in the number of foreign targets 
that could be serviced.
    Let us be honest. What would that do? It would not be great 
for our national security. Let us be honest. It would 
definitely diminish the number of innocent Americans whose 
conversations would be heard. That is actually the trade-off 
that some of my privacy focused colleagues are suggesting.
    The best way of making sure that fewer Americans get their 
communications, minimization and everything incidentally 
intercepted, is there are pure foreigners whom we are going to 
service as targets. Because that is really the reason. If the 
number of foreigners in that warrantless program is a million 
and the number of foreigners in a warrant-driven program is a 
million, you still are going to have exactly the same number of 
Americans whom they are going to contact and the same quantity 
of American information.
    In order to protect a very incidental impact, in my 
opinion, and privacy--and again I don't have time--but, to me, 
my privacy is violated when something bad happens to me, when I 
am confronted with something. Just because somebody heard my 
conversation or may have heard my conversation doesn't bother 
me particularly, and I suspect that is true of most Americans.
    At the end of the day, privacy has to be balanced against 
other societal goals and expectations, and the very least I 
would urge you to do is to look at how Americans balance 
privacy in other spheres. Credit card companies know more about 
us than the NSA does.
    Every time we have an episode like the Virginia Tech 
shooting that are regrettable, there are proposals being 
floated for dissemination of truly private medical information 
without judicial involvement where you share this with school 
administrators and whatnot. And not to minimize what happened 
at Virginia Tech, but I would submit to you that the threat we 
face from al-Qa'ida is somewhat higher in terms of its 
consequences of this country than the threat of a deranged 
gunman.
    So we, as a society, can balance liberty/privacy and public 
safety. But let us be consistent. Let us not adopt the position 
that we should balance it one way in the context of external 
threats involving al-Qa'ida, where we push the pendulum towards 
the privacy side way beyond what it was in 1978. But then it 
comes to other issues like Virginia Tech or drunk driving or 
something like that, you know, we will do it differently 
because that is a fundamental sign of dysfunction and 
rationality.
    I look forward to the questions.
    Thank you.
    The Chairman. Thank you, Mr. Rivkin, for your testimony.
    [The statement of Mr. Rivkin follows:]
   
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. In consultation with the ranking member and 
pursuant to Rule 11-2(j) of the House rules and Rule (d) of the 
Intelligence Committee's Rules of Procedure, there will be 30 
minutes divided equally between the majority and minority staff 
of questioning of the witness. Following staff questioning, the 
committee will proceed with witness questioning by members 
under the 5-minute rule, exclusive of the ranking member and 
the chairman.
    So I now yield 15 minutes under this section to Jeremy 
Bash, Chief Counsel of the committee.
    Mr. Bash, you are recognized.
    Mr. Bash. Mr. Baker, you started at the FISA office in 
1996, and you were the seventh attorney supporting intelligence 
operations there, is that right?
    Mr. Baker. That is correct.
    Mr. Bash. And you ran the FISA office as counsel for 
intelligence policy for nearly 7 years during the Bush 
administration.
    Mr. Baker. Clinton and Bush administrations, that is 
correct.
    Mr. Bash. Did FISA provide the government with timely, 
actionable intelligence on terrorist targets after 9/11 during 
wartime?
    Mr. Baker. Yes. As I suggested in my oral statement today, 
we obtained quite a bit of actionable foreign intelligence, 
which to me means timely, pursuant to the FISA process.
    Mr. Bash. The FISA office is sometimes characterized or 
caricatured as creaky, outdated, not keeping pace with 
technology. What is your response to that?
    Mr. Baker. We have also been called a rusty gate, other 
things like that, too.
    I don't think that was accurate, those types of 
characterizations. As I said in my oral remarks, we were able 
to construct a process that I think at the end of the day 
provided the Intelligence Community with a lot of actionable 
intelligence.
    At the same time, you can always do more if you have more 
resources. And so I think if you go back and look at the 
history of OIPR, we have grown over time, especially since 1996 
until I got there, certainly until today; and the more folks 
you have, the more you can do.
    Mr. Bash. Some have suggested that the FISA operation is 
very slow to approve surveillance in ``no kidding'' 
emergencies. Under FISA, the Attorney General can authorize 
emergency approvals. Can you walk us through how fast that can 
happen?
    Mr. Baker. Well, I think I have testified in this committee 
in closed session before about the process. We try to make it 
as quick as we possibly can. There are a number of different 
things going on. But let me back up.
    So the Attorney General can authorize--and Attorney General 
here means the Attorney General, the Acting Attorney General, 
the Deputy Attorney General or the Assistant Attorney General 
for national security. So any one of those folks can authorize 
an emergency FISA.
    The way it works is--I am sorry--and it goes for 72 hours, 
and if you want to use that material or continue the 
surveillance or the search, you have to go to the FISA court 
within that--or by that time.
    So we work with the Intelligence Community to understand 
their needs and prioritize their requests. So often what will 
happen is we will work on dual tracks. So the Intelligence 
Community will notify us, hey, there is an emergency that we 
are working--we can see already that we want to do an emergency 
surveillance, let us say. We are working, in particular, let us 
say, the FBI. We, the FBI, are working to put our ducks in a 
row from a technical basis to implement the surveillance 
because it takes a little time. And while they are working on 
technical stuff, we are working on the legal stuff. The idea is 
that the trains cross the finish line at the same time, and 
when they are ready to go, we are ready to go, and we call the 
Attorney General, and that is it.
    Mr. Bash. How fast can it happen in an emergency?
    Mr. Baker. It can happen extremely quickly. We have done it 
in a very short time, minutes sometimes. That is when you have 
everything ready, everybody has been working together, and they 
are not ready to go with the collection until they tell us. It 
is done in hours. It is done in the same day. It is done as 
fast as they tell us they need it.
    Mr. Bash. Directing your attention to the administration's 
bill, which has been called the PAA, is there anything in the 
PAA that streamlines the FISA process or the traditional FISA 
process, anything that would accelerate the approval of FISAs 
in emergencies?
    Mr. Baker. I don't think that it--well, in terms of a 
traditional FISA emergency--I mean, there are emergency 
provisions built within the PAA for the PAA type of collection. 
For traditional emergencies, I don't see anything in there to 
do that, no.
    Mr. Bash. In a letter to the chairman last week, September 
14th, Assistant Attorney General Ken Wainstein, wrote that the 
language of the PAA does not authorize physical searches of the 
homes or effects of Americans without a court order. Do you 
agree with that reading of the statute?
    Mr. Baker. Physical searches of the homes or effects of?
    Mr. Bash. Americans without a warrant.
    Mr. Baker. Well, under the PAA, it is a somewhat 
complicated analysis to get to that question.
    Let me say first that--and I am aware that there has been a 
letter. I haven't had time to study it, quite frankly. What I 
would say is a letter from the Assistant Attorney General for 
national security for the Department, while not an opinion from 
OLC or an opinion from the Attorney General himself, it is 
obviously within the executive branch, going to carry a lot of 
weight. So it would seem to me that it would be--were the 
administration to change its view on that, it would have to 
explain that, I guess, to the FISA court or----
    Mr. Bash. In your reading of the statute, do you believe 
the statute, the plain meaning of the statute, could be read to 
authorize physical searches inside the United States without a 
warrant?
    Mr. Baker. It is a complicated analysis; and if you want me 
to walk through it, I can.
    I think the short answer is that if you take an aggressive 
reading of the statute and you presume that you are going to be 
directing your surveillance at persons overseas and yet somehow 
looking for their communications in the United States on 
communication equipment or related equipment and you can 
somehow work your way through the statute to obtain the 
assistance of a communication service provider or other person 
but you have got to go through all of these different steps, 
you can construct an argument that the statute allows something 
like that.
    But again, as I understand it, Mr. Wainstein has said that 
the executive branch is not going to interpret it that way, and 
that I think is binding on the executive branch right now.
    Mr. Bash. Have you been in a situation or a crisis where 
there is a strong push in the executive branch to push the law 
to its logical limits?
    Mr. Baker. Over the years, I have been in situations--many 
years--where aggressive and well-meaning attorneys throughout 
the government push aggressive interpretations of the law.
    Mr. Bash. And have you argued matters in the FISA court?
    Mr. Baker. Many times.
    Mr. Bash. In interpreting FISA, would they look first at 
the plain meaning of the statute or would it first look at a 
letter from Ken Wainstein for guidance on what the statute 
means?
    Mr. Baker. Well, I guess if Mr. Wainstein is on record 
already, it is going to look at that in terms of his 
interpretation.
    Mr. Bash. Does his letter have the force of law in the eyes 
of the court?
    Mr. Baker. In the eyes of the court, no. It is not an act 
of Congress. It is not a judicial decision. As I say, it has a 
binding effect on the law as it is implemented or enforced by 
the executive branch.
    Mr. Bash. You were counsel for intelligence policy on 9/11?
    Mr. Baker. That is correct. I was acting counsel.
    Mr. Bash. And when the White House decided to establish a 
surveillance program outside of FISA, you were not consulted; 
is that right?
    Mr. Baker. We are talking about the terrorist surveillance 
program? Well, the terrorist surveillance program was already--
it was already in existence when I was informed of it.
    Mr. Bash. So you were informed of it after it was already 
in existence.
    Mr. Baker. That is correct.
    Mr. Bash. So when it started, you were not briefed into it?
    Mr. Baker. Well, it was our--I guess the only thing I can 
say in a hearing today, I was not aware of it. It was already 
in existence when I became aware of it.
    Mr. Bash. Do you think that those who established the NSA's 
surveillance program on the grounds that FISA may not have been 
agile or fast enough might have benefited from the perspective 
of the person who had been running FISA operations within the 
government?
    Mr. Baker. Well, I obviously had a lot of experience with 
FISA and knew what we were capable of at the time, I guess is 
the only way I can answer that question.
    Mr. Bash. Your former colleague, Jack Goldsmith, head of 
the Office of Counsel Legal, writes in a forthcoming book that 
Vice President Cheney's Chief of Staff said, quote, we are one 
bomb away from getting rid of that obnoxious FISA court. Is 
that quote accurate?
    Mr. Baker. I don't believe that today I can--that I am in a 
position to confirm or deny exact quotes about what people 
said.
    Mr. Bash. Do you have knowledge of the accuracy of that 
quote, but you cannot confirm or deny? Do you have knowledge of 
the accuracy of that quote?
    Mr. Baker. I have knowledge of the accuracy of that quote, 
I guess.
    Mr. Bash. Goldsmith also says that the people in the 
administration treated the FISA the same way they handled the 
other laws: Quote, ``They blew through them in secret based on 
flimsy legal opinions that they guarded closely so that no one 
would question the legal basis for the questions.''
    Were you one of those questions whom they guarded those 
flimsy legal opinions from at the outset of the program?
    Mr. Baker. Well, as I said, the program was already in 
existence when I found out about it. Over time, over time I had 
access to legal opinions with respect to the program.
    Mr. Bash. Those would be the Office of Legal Counsel 
opinions?
    Mr. Baker. Well, I think I would like to say I had access 
to legal opinions with respect to the program.
    Mr. Bash. If committee members wanted to understand the 
administration's rationale for the program, would it be 
beneficial for the committee members to review those legal 
opinions?
    Mr. Baker. Well, I mean, I am obviously in a difficult 
position here. I think the answer is that in order to 
understand what happened, it is helpful to understand the legal 
thinking behind it.
    Mr. Bash. Do you know if they had been provided to the 
Congress?
    Mr. Baker. My understanding is from the Chairman's remarks 
earlier that they had not been provided.
    Mr. Bash. Mr. Dempsey, in an interview in the El Paso 
Times, August 22, 2007, the DNI explained the three provisions 
that he sought in the legislation. He said, ``I was after three 
points: first point, no warrant for foreign or overseas.'' Let 
me stop there.
    Do both the Democratic leadership bill, H.R. 3356, and the 
administration bill eliminate the requirement for individual 
court orders for foreign targets overseas?
    Mr. Dempsey. Yes, they both did that.
    Mr. Bash. Second, the DNI says ``liability protection for 
the private sector,'' and by that I think he clearly meant 
lawful compulsion of the private sector. Do both the Democratic 
leadership bill, H.R. 3356, and the administration bill provide 
for lawful compulsion?
    Mr. Dempsey. The PAA doesn't address the issue at all. The 
administration has pushed the bill that would provide both 
prospective immunity, which is in 3356, and the administration 
bill would also retroactively forgive the companies, give them 
immunity for their violation of FISA.
    Mr. Bash. But the PAA and the Democratic leadership both 
address the issue of compulsion?
    Mr. Dempsey. They both address--well, PAA does it through 
an Attorney General order. The H.R. 3356 does it through a 
court order.
    Mr. Bash. In your view, is a court order a better mechanism 
for compulsion?
    Mr. Dempsey. I think it gives the companies greater 
certainty. One of the purposes of the exercise here is to 
provide clarity and certainty.
    Mr. Bash. Further, the DNI says there must be a requirement 
to have a warrant for surveillance against the U.S. person. Do 
both the Democratic leadership bill and the administration 
bill, provide for obtaining the warrant requirement for 
surveillance against U.S. persons?
    Mr. Dempsey. Well, the whole question turns on what you 
mean by ``against a U.S. person.'' The administration bill, the 
PAA, has a very narrow definition of what is surveillance 
against an American person. The 3356 bill has, I believe, a 
more balanced and appropriate view of when an individualized 
warrant should be required, and it has a mechanism for ensuring 
that those orders are sought appropriately.
    Mr. Bash. On balance, given those three criteria that the 
DNI laid out, which bill, the PAA or the Democratic leadership 
bill, did a better job at accomplishing those three objectives?
    Mr. Dempsey. I think by far the more balanced bill is what 
you referred to as the Democratic bill, H.R. 3356.
    Mr. Bash. Ms. Graves, let me just close with you. Under the 
PAA, can the executive branch monitor, without a warrant, 
telephone calls between an American citizen in, say, Florida, 
talking to his sister in Spain?
    Ms. Graves. Definitely.
    Mr. Bash. Can the executive branch read, without a warrant, 
the e-mails of a doctor in Chicago with his colleague in 
Toronto?
    Ms. Graves. Yes.
    Mr. Bash. Let me push the hypothetical a bit. Would the PAA 
authorize the government to monitor, without a warrant, all the 
communications between a city, say, in New York and another 
country, say, England without a warrant?
    Ms. Graves. All the communications between the U.S. and any 
other country.
    Mr. Bash. Could the PAA authorize physical searches of 
Americans' homes?
    Ms. Graves. It certainly is ambiguous with respect to the 
term ``acquisition,'' and we do not believe that ambiguity 
should be allowed to stand.
    Mr. Bash. What about with respect to offices and computer 
hard drives?
    Ms. Graves. It certainly seems to reach that.
    Mr. Bash. Medical records, library records or financial 
records, would the PAA authorize warrantless collection of 
those?
    Ms. Graves. Without limitation, they are not specified or 
carved out.
    Mr. Bash. In all those hypotheticals, who would make the 
determination as to who would be appropriate targets for 
surveillance?
    Ms. Graves. Solely the executive branch, the Attorney 
General and the Director of National Intelligence.
    Mr. Bash. Would that determination be reviewed by a court?
    Ms. Graves. No.
    Mr. Bash. Would that determination be reviewed by Congress?
    Ms. Graves. No.
    Mr. Bash. The final question is, would that surveillance 
ever be reported to Congress?
    Ms. Graves. No, certainly not, if past history is any 
indication of the level of cooperation or information.
    The Chairman. Thank you, Mr. Bash.
    For the members, we have three votes that have been called. 
There is about 7 minutes left. The Journal is the first vote; 
the previous question on the FHA bill is the second vote. That 
is a 5-minute vote. And then the rule on H.R. 1852, the 
Expanding American Homeownership Act. That is also a 5-minute 
vote.
    I am going to recess the hearing for members to go vote, 
then welcome back and recognize Mr. Donesa. When we come back, 
we will recognize the minority side for their 15 minutes. With 
that, we recess the hearing for about 20 minutes.
    [Recess.]
    The Chairman. The committee will please come to order. The 
Ranking Member has requested that he be allowed to control the 
15 minutes of minority staff time.
    With that, I now yield 15 minutes to the Ranking Member, 
Mr. Hoekstra.
    Mr. Hoekstra. Thank you, Mr. Chairman.
    I just returned from a trip to Iraq and Afghanistan and 
talking to our intel folks and our military folks. It became 
clear--and this hearing bears it out--if this was a war that 
was going to be fought by the lawyers, we would have won a long 
time ago. We are fighting a war, and we are lawyering up the 
process.
    But just a few questions, Mr. Baker. On October 25 of 2001, 
were you briefed in on this program?
    Mr. Baker. October 25, 2001, I don't remember. I was 
briefed in the latter part of 2001. I don't remember----
    Mr. Hoekstra. I am just wondering--October 25, 2001 is when 
Porter Goss, Nancy Pelosi, Graham and Shelby were first briefed 
in and asked to participate and provide their feedback on the 
program.
    So the second time that they were briefed, November 14, 
2001, Porter Goss, Nancy Pelosi, Graham and Shelby, would you 
have been read into the program at that point in time?
    Mr. Baker. I believe it was in that time frame that I was 
read in, somewhere in that time frame, October, November.
    Mr. Hoekstra. These folks--I will correct the record--
Speaker Pelosi was briefed at least four times within the first 
year of the program as this program was being designed.
    In your experience, is it unusual for--maybe you can't 
answer it, but would it be unusual for the Chair and the 
Ranking Members of the House Intelligence Committees to be 
briefed on and to consult with the executive branch on national 
security issues that might not be extensively throughout either 
the Congress or throughout the executive branch?
    Mr. Baker. My understanding is there are regular briefings 
for the Chair and Ranking, and sometimes staff directors on 
both sides, and that takes place on a fairly regular basis. I 
have attended some of those.
    Mr. Hoekstra. Was that limited exposure in executive branch 
and in Congress?
    Mr. Baker. There are very few people that attend those.
    Mr. Hoekstra. Thank you. You indicated that the Weinstein 
letter had a lot of merit and would have a lot of impact; is 
that correct?
    Mr. Baker. Certainly within the Department of Justice, the 
executive branch, I think it would carry a lot of weight. As I 
said, it is not an Attorney General opinion or Pelosi opinion.
    Mr. Hoekstra. It wasn't----
    Mr. Baker. It is not an act of Congress or a ruling.
    Mr. Hoekstra. Right. But the interpretation is there.
    Mr. Baker. It is binding, certainly, on the Department of 
Justice and on the executive branch.
    Mr. Hoekstra. I think I would also like to submit for the 
record the letter that we just got on September 17 from the 
Office of Director of National Intelligence that responds to a 
letter, I think, or a request that we put in to him from Mr. 
Joel that talks about a number of issues, and he references the 
Weinstein letter a number of times.
    The Chairman. Without objection.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Hoekstra. Thank you, Mr. Chairman.
    In the Weinstein letter, we ought to just be clear in the 
extent--you said you have not had an opportunity to study it or 
read it, correct?
    Mr. Baker. Correct.
    Mr. Hoekstra. Here are parts of what that letter says.
    In his interpretation, the Protect America Act leaves in 
place FISA's requirement for court orders to conduct electronic 
surveillance directed at persons in the United States.
    So it does leave in the FISA restrictions. The Protect 
America Act does not authorize so-called domestic wire-tapping 
without a court order. He asked, in the letter it says, again 
quoting, ``Does the act authorize physical searches of domestic 
mail, without court order, of the homes or businesses of 
foreign intelligence targets located in the United States, of 
the personal computers or hard drives of individuals in the 
United States? The answer to each of these questions is, no, 
the statute does not authorize these activities.''
    It goes on to say, ``It is therefore clear that the act 
does not authorize physical searches of the homes, mail, 
computers and personal effects of individuals in the United 
States, and the executive branch will not use it for such 
purposes.''
    I don't think it came up in the testimony of any of the 
witnesses, but, you know, one of the discussions that has been 
taking place over the last 6 weeks, again, with what I think, 
people just saying, I think it was Mr. Baker, you said people 
could construct an argument, you know, that would lead people 
to a different conclusion than what Mr. Weinstein says, but I 
think others have described it to us as being a very tortured 
argument to get there. Obviously Weinstein is not making that. 
But in terms of reverse targeting, here is the position of the 
Department of Justice: ``It would remain a violation of FISA. 
The government cannot and will not use this authority to engage 
in reverse targeting.''
    I think your point is right on, because if you take a look 
at the letter from the DNI's office, is, they reference the 
judgments by the Department of Justice that they are putting in 
place the proper procedures and the rules to make sure that, 
you know, nobody in the Intelligence Community violates the 
interpretation.
    Now, for the letter to come out from Justice, does 
Weinstein just kind of look at it and write it out? How 
extensively does this get vetted before it comes back to go to 
Congress?
    Mr. Baker. I would certainly hope, and it usually was the 
case in the past, that these kinds of letters are vetted very 
carefully within a variety of different offices inside the 
Department.
    Mr. Hoekstra. Yes, it gets extensively reviewed. I think 
that is one of the frustrations sometimes we have with the 
executive branch, that to get anything out of the executive 
branch, just about anybody who tangentially touches it has a 
say in it before it is completed.
    Mr. Baker. I would also expect, I am sorry, that it would 
have been vetted through the Intelligence Community as well.
    Mr. Hoekstra. Would career staffers have reviewed this 
document as well, typically?
    Mr. Baker. I don't want to overstate what I know about the 
provenance of this document. I just don't know. Normally, at 
least when I was there, I was called upon to read a variety of 
different letters and statements over time; statements, people 
coming up to Congress and so on. I have been gone for the past 
9 months, though, so I don't want to overstate what I know 
personally.
    Mr. Hoekstra. You also testified that FISA provided timely 
and actual intelligence when requested. You also used some 
words that, you know, ``it takes a little time,'' I wrote down. 
I don't know what exactly your words were, but I think it was 
something like it goes really fast when everything is ready.
    What does that mean, ``everything ready''?
    Mr. Baker. Well, I have been thinking about that during the 
break, Mr. Hoekstra. As I testified, when you were Chairman, I 
testified about this process at length, and I think it took us 
a while, I think, actually to get through and for me to give a 
full and complete--what I believe at the time was a full and 
complete explanation of how the emergency process works.
    The emergency process, there are complications to it. I 
don't mean to sit here today that you push a button, or it is 
not like click ``buy now'' on the Internet. It does take time.
    So the Intelligence Community has to do their 
investigation, make a judgment about what targets they want to 
pursue. When they have done that, and when they have reached a 
point where they realize that they need to do collection 
immediately, they start talking to us.
    Then we work through the legal facts, the legal issues, the 
factual issues, at the same time that they are dealing with the 
technical stuff that they need to do. Then when all that is 
ready and they tell us we are ready to go, and they say, ``Yes, 
we resolved all legal issues, we have no problem, call the 
Attorney General,'' calling the Attorney General and getting an 
answer back, that is not like super time-intensive, unless it 
is a complicated case.
    Oftentimes we will go down and prebrief the Attorney 
General what the case is all about, what the request will be, 
so that when the call comes it can happen quickly.
    Mr. Hoekstra. I think that is the reason I came back to 
this is, I don't specifically remember your testimony, but I 
agree, the Justice Department can put in approval processes 
that are very quick, because you have got a number of people 
that can approve these emergencies. It is a phone call, you can 
do the prebriefing, and so when you finally get the 1- or 2-
inch packet of information that the Justice Department 
attorneys have worked on with the Intelligence Community, it is 
kind of like, yes, it is done, you know it is coming and those 
types of things, but there may be extensive work required to 
get to that point.
    Mr. Baker. That is what I tried to suggest in my opening 
remarks, because none of this is easy, none of this is cost-
free. There are lots of people working all the time, and have 
been for lots of years, on this stuff. We have done everything 
we can to expedite it. These things are posted on a secure Web 
site. We look at them.
    There is lots of things posted and back and forth on the 
Intelligence Community, so everybody on both sides, DOJ and the 
Community, worked really, really hard to cut out unnecessary 
steps and unnecessary delays.
    Mr. Hoekstra. When you go through that process, the first 
part takes some time. I think that is probably why the current 
Speaker and others in the congressional community, along with 
the folks in the executive branch, decided that with the threat 
that they faced in 2001, the threat that we continually face, 
speed is an option. And it is not always getting all of that 
information done--is not necessarily the most effective way in 
dealing with the issue.
    I think we have had someone who comes in with the FISA 
applications, who said that, you know, quite often, in the 
Intel Community, taking 2 weeks to prepare and get the package 
ready is not unheard of. It is probably more of what the time 
typically takes.
    Mr. Baker. My answer to that is we are constantly 
prioritizing our work based on what the Intelligence Community 
needs. So the things that they need first and they tell us they 
need first we do those first. Or they did when I was there.
    Second, as I suggested, it is not unlimited resources, and 
what jumps in front of the line is going to push other things 
back. So sometimes the folks working on those other cases don't 
understand exactly that other things have jumped ahead. They 
can get frustrated--we know that--and they can try to deal with 
it.
    Mr. Hoekstra. It can be difficult, because I am assuming 
you believe that the threat is not just Afghanistan-based, it 
is not just Pakistan-based, it is not just Iraq. There are 
other places out there. We just had the takedown of a threat in 
Germany; Denmark, a year ago. We had the threat out of the U.K. 
For a lot of these streams or threat streams, you don't 
necessarily know which one is the priority, and there is a lot 
of uncertainty associated with each of these.
    You also testified, and I think you have helped clarify 
that, exactly how the FISA process worked, because obviously 
not everybody necessarily agreed that it was--I think you have 
just said the same thing--it is not necessarily fast and agile.
    Are you aware of any comments of General Hayden, who was at 
that time the head of NSA, any comments that he might have made 
about the FISA process and the statements that he would have 
made publicly?
    Mr. Baker. I can't remember specifically. I know General 
Hayden has spoken about these issues. I can't remember a 
specific statement about that. It wouldn't surprise me that he 
commented on that though.
    Mr. Hoekstra. There are others within the Intelligence 
Community, when they looked at the threat, when they looked at 
the kinds of folks we are facing in these types of things, 
that, you know, they reached the conclusion that the FISA 
process wasn't working.
    I think that is the case that, you know, General Hayden 
made to the political leaders in the executive branch. But that 
is also the argument that he made to the congressional 
leadership back in 2001, saying that, you know, with the kind 
of threat that we have out there, it just doesn't work. I think 
that is why for 4 years, until The New York Times reported the 
existence of the program, the congressional leadership 
supported this.
    Mr. Rivkin, during your experience in the executive branch, 
what was your experience with FISA?
    Mr. Rivkin. Well, Congressman, I was like Peter, I have not 
been involved in individual applications, but I have been 
involved in the White House Counsel's Office, my days at 
Justice, the general intelligence policy issues. My view, 
frankly, is the whole debate about how rapidly the system can 
move is not the biggest problem, because you can give more 
resources, you are going to have 20 emergency applications 
going forward.
    The problem is, in my opinion, quite different. The problem 
is, if you are going to go for warrants, you limit dramatically 
the range of circumstances where you wouldn't even bother 
getting an application going. Because, look, I actually believe 
that war means something real; it is not just it is a good idea 
to go.
    There is a whole range of scenarios where you cannot get a 
warrant, because the individual involved is not guilty of 
anything. Not only the person, not a member of al-Qa'ida, or an 
al-Qa'ida sympathizer, he may just be an independent bystander 
who happens to have information about a person who is a 
relative of a member of al-Qa'ida that you might want to get.
    Remember, in all those emergency situations, you basically 
have to convince the Attorney General that he can attest that 
warrant--or, excuse me, warrant would be attainable. There are 
many circumstances where you just cannot do it. You are 
missing, you are really focusing, you are drilling down on a 
portion of the spectrum of warrants that can be issued, and you 
are overlooking the ones that cannot.
    Mr. Hoekstra. It is very similar to when I first joined the 
Intelligence Committee and started talking with the folks out 
in the field about the chilling effect of the Deutsche 
doctrine. I don't know if you are familiar with the Deutsche 
doctrine, back in 1996, where then-President Clinton said we 
really don't want to recruit people with criminal or human 
rights violations, and the end result is that it had a chilling 
effect on all types of collections.
    Mr. Rivkin. That is a perfect analogy. You are arbitrarily, 
in a wholesale fashion, dismissing the whole range of 
collection, a portion of collection that could have been 
useful.
    Mr. Hoekstra. Thank you.
    The Chairman. Thank you, Mr. Hoekstra.
    I wanted to make a couple of points.
    Mr. Baker, the letter that Mr. Hoekstra was referring to, 
that with the new Attorney General coming in, could he have 
that letter pulled and substitute something else for you?
    Mr. Baker. Since it is an interpretation of the Department, 
somebody at Mr. Weinstein's level or higher is going to have to 
reverse it. It could be the next Attorney General, it could be 
anybody, but they are going to have to do it. They are going to 
have to then, it seems to me, explain--the new folks would have 
to explain why it is that they are not going along with the 
interpretation set forth in the letter that we are talking 
about.
    The Chairman. So it could be pulled?
    Mr. Baker. I guess, Mr. Chairman, the way I read it is it 
is binding on the executive branch today. It is not binding for 
all time.
    The Chairman. The other issue that I want to mention 
briefly, and then I want to ask a few questions as it relates 
to the Ranking Member's comments, is that I just wanted the 
record to reflect that the case that was just made in Germany 
and Denmark was made under the old FISA law, in fact. So if 
anybody says that FISA doesn't work, I would refer them to the 
latest case that was done by FISA.
    Thank you, Mr. Baker.
    Mr. Dempsey and Ms. Graves, what do you believe are the 
biggest flaws in the administration's bill or the PAA?
    Mr. Dempsey. I think the biggest flaw is the lack of any 
reasonable checks and balances. We are trying to develop here a 
balanced system that provides the speed and agility that the 
intelligence agencies need, but at the same time provide some 
form of oversight.
    Under the Protect America Act, there really is no role for 
the judicial branch of government.
    There is a court order approving the procedures. It comes 
after the fact. It has no compulsory power, it is only on a 
clearly erroneous standard.
    There is no after-the-fact review even of how the order is 
then implemented, about how the program is implemented.
    I think that we can do a lot better to preserve the speed 
and agility to get the intelligence in a timely fashion, but 
also to make sure that the program is being properly 
implemented and the judicial branch under our system has a 
critical role in that, and that is lacking from the Protect 
America Act.
    Ms. Graves. I would add that it is very clear to us that it 
allows warrantless secret searches of American communications 
without any after-the-fact or meaningful review. It eliminates 
prior judicial authorization and subsequent judicial 
authorization. It requires no individualized determination of 
probable cause for the Americans involved.
    It requires no specification of the individuals or the 
phone lines that are to be surveilled. It also may have an 
impact on the use of this material in subsequent criminal 
prosecutions. It allows access, notwithstanding the statements 
of Mr. Weinstein, to stored communications records, which are 
the content of your e-mails and phone calls, that are stored by 
Internet search providers and telephone companies, with no 
court orders or judicial oversight.
    The pen register rules are affected as well, and in that 
regard it allows the government to secretly retain the call 
record information and other revealing data on thousands or 
millions of American communications, with no judicial oversight 
to conduct traffic analysis and create maps of the associations 
and contacts of untold numbers of Americans.
    It utterly lacks meaningful, independent oversight either 
for the courts or this body.
    The Chairman. If we revise the new act, what are the most 
important provisions for us to modify, Mr. Dempsey and Ms. 
Graves?
    Mr. Dempsey. I think that at the initial stage, the court 
review should be more probing than the review provided in the 
Protect America Act. That is not specific targeting. We are not 
talking here about giving the court, in the first instance, 
prior control or prior approval over specific selection of 
targets overseas, but, instead, a review of the mechanism by 
which the government picks and chooses among which 
communications with Americans will be intercepted. And, then, 
secondly, a process of reporting back to the court, sort of 
like a traditional return on service or, like currently occurs 
under FISA, a report back to the court periodically about how 
the program is being implemented so that the court and the 
administration can determine when a particularized order is 
necessary, if it becomes clear that a particular American or an 
American is being affected.
    So it is both somewhat more stringent prior review and then 
ongoing monitoring by the court of the implementation of the 
program. Both of those are lacking from the PAA.
    Ms. Graves. I would suggest that the starting point would 
be H.R. 3356 with additional critical protection for Americans' 
communications, including individualized court orders before 
the fact or after the fact, and additional mandatory oversight 
by Congress, not optional, of significant things, including the 
number of Americans affected.
    In addition, I would say that I think it is virtually 
impossible to fix the PAA, because it has utterly supplanted 
the structure of FISA and the definitions of electronic 
surveillance which are the key in FISA to when the warrant 
requirement kicks in.
    We believe that surveillance must be carried out within the 
FISA structure. There should not be any change to the 
definition of electronic surveillance. We believe that the 
carriers must have responsibility for sorting the 
communications and ensuring that the NSA is given access to 
what they are entitled to. Not everything. Initial 
individualized court authorization is essential to any access 
to U.S. switches.
    We believe that when the government intentionally acquires 
the communications of persons in the U.S., not targeting, 
intentionally acquiring communications of persons in the U.S., 
that they need to have court oversight; and that we believe 
that there must be limited exceptions, but more flexibility for 
true emergencies and additional resources that are utterly 
lacking in the PAA that are represented in previous versions 
that have been proposed by Democratic members of this 
committee.
    We also think that it is essential that there be 
meaningful, mandatory and frequent reports to Congress, and the 
courts with an IG audit required on a regular basis; in 
particular, with a focus on the number of Americans whose 
communications are being swept in, even under a revised regime.
    The Chairman. Also, Mr. Dempsey and Ms. Graves, do you 
believe that Congress should pass permanent changes to FISA 
before this current act sunsets next year?
    Mr. Dempsey. Mr. Chairman, I really think you are going to 
have to take your time on this. I am not saying that the PAA 
should expire. I think that the Speaker has put you on a very 
tight time frame.
    I think there are a lot of unanswered questions here. I 
don't think that the PAA, the Protect America Act, is a good 
starting point. I think there are some fundamental flaws in the 
way the statute works, and you have to have a five-page letter 
from Mr. Wainstein saying what it does and doesn't mean: use of 
terms like ``directed at'' that aren't defined, and 
``concerning;'' the whole notion of trying to do this by 
carving something out of the definition of ``electronic 
surveillance'' and then creating a procedure for things that 
are not electronic surveillance.
    It is a very, very confusing statute, I think, to get this 
right, to respond to the technological changes that have 
occurred, to truly meet those core criteria of the DNI, also 
addressing the security problem. Now is this really a huge 
question: how is this being implemented in the 
telecommunications networks, and are we creating a certain risk 
of vulnerability by changes that might be made in the 
communications networks to cooperate with this?
    So there are a lot of issues that the committee is going to 
have to go through here. I am not sure that it is going to be 
possible to put a few little things on the PAA.
    I think that H.R. 3356 is a starting point for a proceeding 
here.
    At the end of the day, though, it may be that the issues 
can not be fully resolved in this Congress. Honestly, there may 
have to be an extension of the Protect America Act and not a 
permanent authorization of it to give it more time.
    We still don't have those court orders, so we are still not 
really sure what is the problem that we are trying to fix.
    The Chairman. Ms. Graves.
    Ms. Graves. I would say that it definitely should not be 
made permanent. The PAA should not be made permanent. We 
believe that the Congress should start by obtaining the 
information of past surveillance activities that many Members 
of this Congress believe are in violation of the law; obtaining 
legal opinions, not just the letters, of current assistant 
attorney generals. And as a former deputy attorney general, I 
can certainly tell you that my AAG's opinions didn't stand in 
the next administration, and wouldn't have stood, necessarily, 
for the next AAG.
    But I would say that it is critically important that not 
only Congress have key information that you are entitled to. If 
the Department of Justice can do a white paper on its legal 
views, it can certainly share it OLC opinions, thousands of 
which have been shared with Congress in history, including many 
legal opinions during the Reagan administration, I would point 
out.
    But beyond that, I would say that it is critically 
important that you and the American people have a certain 
amount of information about what happened and about the effect 
on Americans, because we don't they think that it is possible 
to have this debate, and permanently change the structure of 
FISA, revisit or revise the fundamental determination of 
Congress about the constitutionality of requiring warrants in 
this area without that information.
    The Chairman. Thank you. Finally, what do you two think are 
the essential protections that we should have in any FISA 
legislation?
    Mr. Dempsey. I think the key standard has to be that of 
checks and balances and creating the system of flexibility, 
speed and agility, but at the same time having all three 
branches of government involved in the oversight of this. 
Minimization is part of the answer, but only part of the 
answer.
    Minimization overseen by a court is far better than 
minimization in the sole discretion of the executive branch. 
The Protect America Act leaves the definition or the drafting 
of minimization rules and their implementation solely to the 
executive branch.
    I think the key guiding concept here is a workable system 
of checks and balances, starting with some kind of court 
approval for a program, and then followed by court supervision 
of that program.
    You clearly have to address the immunity issue. I think 
companies should have immunity for cooperating with lawful 
surveillance, but I think the statute is meaningless if it can 
be ignored and if people can expect retroactive immunity for 
activity outside of the structure of the legislation.
    Otherwise, what are we doing here? We are passing a law 
that can be ignored. Even if the Protect America Act were 
completely renewed in its splendor, if we then give the 
companies retroactive immunity, a future Attorney General can 
go outside even of the PAA, and the companies might expect that 
they would be granted retroactive immunity for that as well.
    I don't think it should be ruinous liability. I think that 
needs to be addressed. We need to find some way to make sure 
there is a consequence, but clearly no one wants to put phone 
companies out of business.
    Ms. Graves. I would say that in addition to the points I 
mentioned about the structure of FISA and preserving individual 
warrants, that clarity is absolutely essential. We have great 
respect for the NSA linguists, analysts and technicians who are 
doing their job every day to keep the country safe.
    But their job is to collect against requirements. When 
those requirements are ambiguous and overly broad and increase 
the effect on American communications, we need tighter rules, 
better rules, with flexibility but not limitless elasticity, 
which is what the PAA involves.
    We think that the mandatory oversight by the courts, before 
the fact or after the fact, and mandatory reporting to every 
member of this committee--not selectively, not when the 
administration wants something and they need to give you 
something before they are going to testify, but mandatory and 
regular reporting of this committee--is essential.
    The Chairman. Very good, thank you. Mr. Hoekstra.
    Mr. Hoekstra. Thank you, Mr. Chairman.
    Mr. Rivkin, are you familiar with the case of the Supreme 
Court, the United States v. Verdugo?
    Mr. Rivkin. Yes.
    Mr. Hoekstra. I find it interesting, I just want to pursue 
this a little closer. What I find here is that we have got 
people who are at least alluding to the fact that we ought to 
be extending fourth amendment protections to foreign 
individuals, non-U.S. citizens outside of the United States. 
What Verdugo says is we think that the text of the fourth 
amendment, its history and our cases, discussing the 
application of the Constitution to aliens and 
extraterritorials, requires rejection of the respondent's 
claim. At the time of the search he was a citizen and resident 
of Mexico, with no voluntarily attachment to the United States, 
and the place searched was located in Mexico. Under these 
circumstances, the fourth amendment has no application.
    It also goes on: Application of the fourth amendment to 
those circumstances could significantly disrupt the ability of 
the political branches to respond to foreign situations 
involving our national interest. I think the Supreme Court has 
pretty clearly identified that.
    If we take a look at where some want to go in applying the 
protections of the fourth amendment to foreign individuals, I 
think you alluded to this a little bit on targeting. In a 
criminal case, if I have been targeted in the United States, 
and there is a warrant against me, or a warrant enabling me to 
be surveilled, if my child's teacher calls me today, is that 
going to be listened to?
    Mr. Rivkin. Of course. And any number of individuals who 
call you, whom you contact.
    Mr. Hoekstra. Earlier today someone said, well, you know, 
we know who is calling, we ought to know. We have the 
opportunity to go through that.
    That is not true. You call a number, and it may be 
located--you are calling from Afghanistan, and you may be 
calling from what you think is a cell phone that at that point 
in time may be located in Germany, but you don't know who is 
going to answer it. You don't know who is going to be on the 
other end of the line, and you are not really sure, and you are 
not going to be positive as to where it is going to be located; 
so it is the same kind of thing. Isn't that correct?
    Mr. Rivkin. That is absolutely correct. I know a number of 
people, I have a good friend who used to be a foreign 
Ambassador. He got a mobile phone with area code 202 because 
enough people remember it. A person has been gone for 8 years 
and still uses the same area code.
    When I get a call from him, and it registers on my mobile 
phone, it says 202, I don't know if he is calling from Germany 
or if he is in New York. All the notions about you know how to 
reach the phone number, I mean, unless we are in science 
fiction mode, you do know which phone number you are calling. 
But you have no idea, just by looking at that number, where 
that person is. You think frequently you have to look at the 
conversation's content to realize that person is near Lake 
Cuomo and not Lake Wobegon.
    Mr. Hoekstra. So it is very difficult, it is impossible to 
design a fail-safe system. I am assuming that, you know, they 
say--for those that would argue and say, you know, get a FISA, 
under a FISA, there would be other Americans that would be 
listened to; is that correct?
    Mr. Rivkin. That is absolutely correct. Quite frankly, 
again, it is difficult. We need to have somewhat more 
transparency, no pun intended, in this discussion. I suspect, I 
could be wrong, that the reason people are talking about 
putting most of the surveillance of overseas targets under 
warrant is because they know it would shrink the intelligence 
stream.
    As I said in my prepared remarks, let's assume there is a 
relationship in the number of foreigners you surveil and number 
of Americans; what is the ratio. If you surveil 1 million 
foreigners, you are going to capture a big chunk of American 
communications. If you surveil one-tenth of that, you would 
only capture one-tenth of a chunk.
    So I think when people who want to protect the privacy of 
innocent Americans, quote, unquote, are really talking about 
reducing the number of foreign targets, which is a stunning 
situation, the first time in the history of this type of a 
statute we are talking about deliberately limiting the quantity 
and quality of our collection. That is absolutely stunning.
    We have to be--because, look, if we do not diminish the 
number of foreigners we listen to, the fact that they are being 
listened to under warrant does precious little to protect the 
privacy of Americans who get caught by virtue of being 
communicated by that person.
    The privacy of persons is being affected by minimization, 
by oversight. What difference does it makes to you, 
Congressman, if you get a call from somebody who is being 
surveilled under warrant versus somebody who is not being 
surveilled under warrant, as long as their conversation is 
being listened to by virtue of the targeting being done by that 
person? Makes no difference. Wouldn't make any difference to 
me.
    Mr. Hoekstra. The incidental collection of U.S. citizens, 
did this start under the terrorist surveillance program?
    Mr. Rivkin. Of course not.
    Mr. Hoekstra. Did it start, you know, under FISA in 1978, 
1978, 1979 when that originally passed?
    Mr. Rivkin. No, I don't think--and as I mentioned in my 
prepared remarks, Congressman, incidental collection is an 
inevitable attribute of any kind of collection of information 
of guilty parties. Let's face it, guilty parties don't only 
call other guilty parties. Even gangsters don't call only other 
gangsters.
    If you are going to surveil anybody or listen to anybody, 
using whatever technical means, you are going to capture a lot 
of innocent people. That goes--in my opinion, dates back to the 
dawn of times when you started surveilling people.
    Mr. Hoekstra. The terrorist surveillance program as it is 
developed, is this legislation that we passed a couple of 
months ago. When Speaker Pelosi is reviewing this process and 
deciding in 2001 and in 2002 that this is something that we 
ought to be going ahead with, she is consulting with the 
administration they would have had in 2001. At least under 
FISA, they would have had 23 years of experience in review of 
the Intelligence Community as to how the Intelligence Community 
dealt with incidental collection of U.S. citizens; isn't that 
correct?
    Mr. Rivkin. That is absolutely correct. Not being involved 
in oversight from, certainly, a legislative perspective, it is 
difficult for me to be definitive as to what should be 
augmented. Let me put it generally, because this is an 
excellent question. We should have a serious debate about how 
to control the consequences of collection. There may be more 
that needs to be done to minimization. There may be need for 
more oversight. Again, if it were up to me, maybe you need to 
broaden it beyond the gang of eight.
    What is untenable in my opinion is deliberately limiting 
the collection because you worry about the consequence of 
collecting something. It is like the collective closing of your 
eyes and then plugging your ears. That is an absolutely--in the 
world, when the 9/11 Commission talks about connecting the dots 
and removing the impediments, that is such a stunning reversal 
of policy that makes sense.
    Mr. Dempsey. Congressman, could I contribute to this?
    Mr. Hoekstra. You have had plenty of time, all right. I 
appreciate your input, but I would like to get the other side 
of the story on the record as we go through it as well today.
    I don't believe that in the roughly 30 minutes of 
questioning by the other side of the aisle that Mr. Rivkin was 
ever allowed the opportunity to answer or provide any feedback 
or any response to that. At least I have had the opportunity to 
question both Mr. Baker and Mr. Rivkin on the issues that have 
been in front of us.
    I am going to go back to Mr. Baker.
    There were discussions earlier debating the legality of the 
terrorist surveillance program, citing a book by Mr. Goldsmith. 
The Attorney General has publicly stated that the activities 
previously conducted under the terrorist surveillance program 
have been moved under orders of the FISA court.
    In doing so, would Federal judges have found that the 
activities they authorize were lawful?
    Mr. Baker. I am sorry, Congressman, can you repeat?
    Mr. Hoekstra. The Attorney General has publicly stated that 
the activities previously conducted under the terrorist 
surveillance program have been moved under orders of the FISA 
court.
    And doing so, Federal judges found the activities they 
authorized were lawful.
    Mr. Baker. I don't believe I can comment on the substance 
of the orders from January. I guess that is maybe all I can say 
right now. I mean, those haven't been disclosed, so I don't 
believe I can comment on what the court was doing in January.
    Mr. Hoekstra. Mr. Chairman, with that, I will yield back my 
time.
    Thank you.
    The Chairman. Thank you, Mr. Hoekstra.
    I don't believe I heard anybody say that we wanted to 
extend Fourth Amendment rights to foreigners. I know I didn't 
hear any of the panelists, but I wanted to now start the 
Members' questions.
    We will have a second round, so I would ask all Members to 
please respect the 5-minute rule, and with that, we will start 
with Ms. Eshoo.
    Ms. Eshoo. Thank you, Mr. Chairman, for having this 
important hearing and to all of the witnesses. I think that 
this has really been enlightening and a very good forum.
    Having said that, Mr. Rivkin, I am not so sure I understand 
your point. What I am taking away from what you said is that 
privacy rights are really not all they are cracked up to be or 
that some should have them or when we say ``all'' we really 
don't mean ``all.'' I don't know what your succinct point is 
about the legislation that was passed on a hurried basis and 
that many of us have deep concerns about and so do the American 
people.
    So I will get back to you so maybe you want to think about 
a couple of sentences that might just kind of knock your 
position, the ball out of the park. I am saying it 
respectfully. I didn't get what your point was.
    Now I think that this is on the one hand, a somewhat 
complicated issue, FISA; it is complicated even more because 
there is secrecy involved. So when the American people hear any 
of us trying to explain not only what the law covers but how it 
functions or did function, they don't really feel like they are 
getting all of it. But when it comes to our rights, to our 
liberties and our national security, they really insist on both 
and both they should.
    There isn't any small reason why both of those are covered 
in the oath that every single one of us takes when we are sworn 
into the Congress, that we swear to uphold the Constitution of 
the United States and to protect our Nation against all 
enemies, foreign and domestic.
    And in my view, this is not a multiple choice test. We are 
obligated, the duties that we have and the oath that we take, 
to accomplish both. And I think that FISA is a very good 
example of this.
    Now what are we struggling over? We seem to be struggling 
over a legal framework, a framework that actually is workable 
so that the Intelligence Community can do what it needs to do, 
that it has the tools that it needs but that we have a legal 
framework and that we have checks and balances.
    In a secret undertaking, it is even that much more 
important to have checks and balances. And I think taking Harry 
Truman's statements, I think when it comes to that, the buck 
stops with us.
    Is it any coincidence that the administration has refused 
to even hand over what the ranking member and the chairman of 
the committee have requested almost ad nauseam and they don't 
give it to us?
    So how are the American people going to be protected and 
guaranteed not only of their liberties but also the absolute 
best on our part to secure our Nation?
    So it is in that context that I want to ask the following 
question: Oversight is a word that I think is batted around but 
not fully appreciated. It really represents a lot.
    So, to Mr. Dempsey and Ms. Graves, and if there is anybody 
else that wants to chime in, all four of you, what information 
do you think the administration should provide to Congress to 
ensure effective oversight?
    And relative to these new authorities, they are essentially 
saying, ``trust us''. And you know what? I am not going to 
trust anybody with that. I want the information and be able to 
verify, and then I will trust. I am not going to throw trust 
away and just assume that it is going to be regarded.
    Do you think that there should be an audit which includes a 
review of all of the directives that are issued pursuant to the 
new authority?
    We don't have that now, and I would also like to hear, if 
we have time, about the information that you think that the 
administration is providing to Congress. Do you think it is 
effective enough today to allow us to do the oversight that I 
spoke of and not this, just this little word that seems to be 
cast about just because we are sitting here? You can't do 
oversight unless you get effective information in my view.
    So we want to start with Mr. Dempsey.
    The Chairman. Okay. Her time is up. So I will allow one of 
you to answer each one of the questions. I want to tell the 
Members, I have just been informed that we are going to have to 
give up the room at 1:25. So this will probably give us enough 
time for everybody that is here. But if you will quickly, each 
one of you, answer the questions.
    Mr. Dempsey. I think that Congress does need to have access 
to the legal interpretations of the administration, not just to 
be orally briefed on things but to actually see the details 
about how these interpretations are being spelled out.
    On the other hand, though, I don't think Congress should be 
in a position of receiving information about targeting, and I 
am not sure that Congress should be in the position of 
receiving a lot of information about how the program is being 
implemented in terms of we are intercepting this person or that 
person. That is why I think that the court has to be a part of 
this. I think that the court is a smaller entity. It has, I 
think, somewhat tighter processes, even than Congress has.
    So you need both branches of government: Congress on the 
law; the court on some of these details.
    Ms. Grace. I would say that you definitely need the legal 
opinions of the Office of Legal Counsel for the entirety of 
this program in its various iterations from the beginning, 
whether that is the Comey pieces, before or after all those 
pieces you are entitled to them.
    With respect to actual orders of the court, I think you are 
entitled to see some of those orders. And with regard to orders 
of the magnitude, what we believe was authorized earlier this 
year, you should see the applications because it is possible 
that the orders themselves may be very short and not allow you 
sufficient information to understand the arguments that were 
made, whether those arguments include the suggestion that FISA 
is not the exclusive means or that the President has the 
inherent ability to bypass FISA. You should know that before 
passing any permanent changes to FISA.
    Mr. Rivkin. My view is almost exactly the reverse.
    The Chairman. If you can do it quickly.
    Mr. Rivkin. I happen to think you have to take the courts 
as you find it. The judiciary role is very narrow. They can 
deal with warrants. They are certainly not Article III courts. 
You, on the other hand, have enormous opportunity and an 
obligation to participate in the most intrusive oversight.
    If it were to up to me to restore the sort of political 
sustainability of the program, I would be prepared to bring 
everybody in and have you do nothing but review applications on 
a daily basis as long as it is clear that you are doing it in 
your oversight capacity.
    And if you feel as a Member that something fundamentally 
flawed is being done, if somebody is being surveilled and you 
happen to believe that this is a witch hunt, you know, you have 
reason to weigh cause and come to a legal position where you 
can disclose a summation of law and survive criminal 
prosecution. It is a responsible way of doing things. Trying to 
throw it to the court does not work.
    Briefly on the legal opinions, there is a variety of 
reasons why you do not have any reason to see legal opinions. 
So long as you understand what was done on a practical level, 
getting legal opinions impinges in a fundamental way on the 
President's ability to receive confidential legal advice, 
particularly in the current atmosphere would do nothing more 
than chill a future President's ability to get legal advice. 
And it is absolutely not essential to your ability to create 
new regulatory structure.
    Look at the actual behavior, not the legal opinions.
    The Chairman. Mr. McHugh.
    Ms. Eshoo. Mr. Baker had his hand up. He wanted to respond.
    Mr. McHugh. Thank you, Mr. Chairman.
    I will go to Mr. Baker.
    Mr. Baker, we have had in other sessions Assistant General 
Comey, former Attorney General Ashcroft, Gonzalez and others 
have spoken to this, so I want to make sure that I understand 
your testimony.
    When we are dealing with an emergency FISA application, is 
there a different standard that is employed as to the approval 
of that emergency application, one that is different from 
probable cause? Because that has not been my understanding. It 
is still the same standard, correct?
    Mr. Baker. The same standard applies.
    Mr. McHugh. So if you were, whoever was in that acting 
role, you have to see an application that embodies in the basic 
tenants, all of the evidence, all of the record, all of the 
background that a FISA court would expect to see to create or 
to equal probable cause; is that true?
    Mr. Baker. I wouldn't agree with that.
    I mean, there is no application at that point in time 
because the emergencies come in and we can make these things--
it can be done entirely orally. It is not usually done entirely 
orally. But it can be. You could get a phone call from an 
intelligence agency that makes its way through the process to 
you. You can explain what is going on and you call the attorney 
general. But there usually is paperwork in there somewhere, but 
it is not usually a full-blown FISA application. That is what 
we work on.
    Mr. McHugh. I didn't use the words ``full-blown FISA 
application.'' What I said was it would have to embody much of 
the background, et cetera. That is what we have been told. Do 
you disagree with that?
    Mr. Baker. It has to have probable cause.
    Mr. McHugh. Thank you. That is really the crux of the 
question.
    Mr. Rivkin, you made the comment to the ranking member that 
if he were a target under a surveillance order here in the 
United States and his child's teacher called him, that that 
conversation would be subject to surveillance.
    Would you agree with that, Mr. Baker?
    Mr. Baker. I thought you were asking Mr. Rivkin something.
    Could you repeat the question?
    Mr. McHugh. Yes. The question that the chairman posed or 
the former chairman posed to Mr. Rivkin said that if he, Mr. 
Hoekstra, were the target of a surveillance order here as a 
United States citizen and his child's teacher called him, that 
conversation from that teacher would be subject to 
surveillance.
    Mr. Baker. It would be intercepted, yes.
    Mr. McHugh. Mr. Rivkin, Ms. Graves said in her comments 
that we perhaps should not lend too much deference to the 
judicial record that has traditionally found that the executive 
has pretty broad latitude in issues of foreign intelligence 
because, as she put it, the courts are weak.
    Would you argue the courts are weak or that the court cases 
have been pretty clear and consistent?
    Mr. Rivkin. I would say two things, Congressman. I think 
that the courts have acted to appropriate constitutional 
humility in this area because the executive has a greet deal of 
powers relative to national security, and the courts' powers 
are fairly narrow. But to the extent the courts have reached 
the merits of those issues--and probably the best summation of 
that case law is in the court of FISA, court of the review--
they were very emphatic that the President, of course, has the 
power to gather intelligence in this field.
    I would say more so in the time of war. It is really a 
species of battlefield intelligence not just foreign 
intelligence.
    Mr. McHugh. Ms. Graves, one of the key issues here is a 
matter of what we are able to identify as a domestic call and 
what we are not. And you spoke to that in your testimony.
    The phrasing you used was that, quote, it seems to me, end 
quote, I take it meaning your organization, that you ought to 
be able to identify that.
    Testimony has been received previously that while in some 
cases it can be, in any number of cases it can't be, I am just 
curious, do you have a technical, professional opinion that 
shows we can't identify it in all cases because if we can, 
obviously that takes away a big part of the debate.
    Ms. Graves. I tried to be very careful about the fact that 
we believed that in most and many instances that information 
can be ascertained, particularly with regard to phone calls.
    But we do believe that it is important for this committee 
to hear from people with technology expertise beyond the 
government which has a particular perspective, and we also 
think that, to the extent that there are some calls where you 
don't know, the assumption shouldn't be, therefore, you get 
everything. There should be a way to categorize this that deals 
with the calls you do know and those that you don't having 
different presumptions and different rules with court 
involvement. We think that is important.
    Mr. McHugh. But minimization procedure that deals directly 
with identifiable calls.
    Ms. Graves. I am not sure I agree----
    Mr. McHugh. The minute I said that, I thought, she probably 
doesn't like that phrase.
    Some process by which we accommodate more definitively 
those calls you can't identify.
    Ms. Graves. I would say it is important to have more court 
oversight, especially because more American communications are 
in this communications stream.
    The Chairman. Thank you.
    Mr. Tierney.
    Mr. Tierney. Mr. Dempsey, the Ranking Member seems to be 
laboring over some misconception that somebody is promoting the 
concept of getting a warrant for foreign-to-foreign 
conversations.
    Have you heard any of the witnesses today mention that that 
is something they put forward?
    Mr. Dempsey. No. There has long been agreement that 
foreign-to-foreign should be exempted. I haven't heard anybody 
say that foreigners should be entitled to Fourth Amendment 
rights either. I am not saying that.
    I think we are talking here about a situation. We used the 
hypothetical that the ranking member raised or Mr. Rivkin was 
discussing which was, if you have a target to--if you are 
targeting a person, you are targeting the school teacher and 
the school teacher calls you, should you care if your 
communications are intercepted? Well, if your communications 
are intercepted without a warrant, even if you are not the 
target, you still have a Fourth Amendment right and you have 
the right to object to that surveillance if the evidence is 
going to be used against you.
    There was an interesting Supreme Court case where the 
Government was targeting a suspected drug dealer. They searched 
his mother's home. They weren't trying to investigate or 
prosecute the mother.
    Well, it was held that even though the drug dealer was the 
target, his Fourth Amendment rights were not intruded upon. The 
Fourth Amendment rights that were at stake were the rights of 
the person who was being searched.
    And in this case here, where you have two people being 
searched, people on both ends of the communication, it makes a 
world of difference whether there is a court order or not. The 
fact that you are not the target, if you are being intercepted 
without a court order, the fact that you are not the target 
makes no difference to the Fourth Amendment analysis. Your 
rights are being violated, and you have a right to object.
    Mr. Tierney. Do you see a scenario where having the 
provision for a warrant somehow limits the amount of collection 
that could be done? I mean, can't we both have a process that 
allows for a warrant when it is appropriate and allows for us 
to get the information when and if we need--when and as we need 
it?
    Mr. Dempsey. The government cannot listen to everything. It 
is selecting. It is collecting less than everything.
    The question here is, what are the standards by which they 
pick and choose? And when the rights of Americans are at stake, 
there should be some judicial oversight of that choice.
    At the end of the day, they will end up collecting however 
much they can process.
    The question is, how is that focused, and how are those 
decisions made?
    Mr. Tierney. Both of the statutes were really looking at 
the issue, not that you need a particularized warrant for a 
particular person or a particular place on that. They both sort 
of said in some instances maybe what you have to have is a 
process.
    And the question really is whether in choosing--when the 
government is out there choosing--for all of the foreigners 
from whom we are going to collect information here, do we have 
a process that is reasonably designed to identify and collect 
the communications of those whose communications may have 
foreign intelligence content. So that is what they are looking 
at. I think you said something similar to that in your written 
report.
    So who should decide the reasonableness of that process? 
Shouldn't it be the courts? If it is not the courts, if we 
leave that to the Director of National Intelligence and to the 
attorney general, don't we have the fox watching the hen house?
    And isn't it less likely that any executives--forget which 
party is in office now--are always going to be very lenient to 
themselves and see things as a rational way of what they are 
doing. Isn't that why we have judicial prior review of the 
process and of this situation?
    Mr. Dempsey. I think that is right. And I think good people 
under pressure cut corners. Good people working under pressure 
make mistakes. And what we try to do in our democratic system 
is to create a set of checks and balances so that you don't 
have to ascribe any bad will or any negative motive to the DNI 
and to the Attorney General and to the members of the 
Intelligence Community, but we certainly have seen plenty of 
evidence of cutting corners in the past 6 years.
    I think that we want to create that set of checks and 
balances and particularly this decision that we are talking 
about here of all of the communications that you collect and 
process, of all of the people that you are going to draw into 
the net, that process needs to be in some structure that has 
all three branches involved.
    The Chairman. Thank you.
    Mr. Tiahrt.
    Mr. Tiahrt. Michael Brohm wrote an article that was 
published yesterday across the Nation in several papers. He was 
referring in his article--his article was titled, ``Lawyering 
the War to Death.'' He references Jack Goldsmith, the Harvard 
law professor who wrote a book called, ``The Terror 
Presidency.'' And in that, he said, never in the history of the 
United States had lawyers had such extraordinary influence over 
war policy than they did after September 11, 2001.
    Mr. Goldsmith does not compliment the administration. In 
fact, he criticizes them in a couple of areas. He called a 
couple of interrogation techniques deeply flawed. But he does 
support the detention of unlawful combatants. He supports their 
confinement in Guantanamo. He supports trial by military 
commissions. He supports the Terrorist Surveillance Program. 
And he rejects the charge that the administration has 
disregarded the rule of law. He says, and I quote, the opposite 
is true. The administration has been strangled by the law. And 
since September 11th, this war has been lawyered to death.
    He cites 1942 when FDR ordered the military commissions to 
try eight Nazi saboteurs who landed on our shores and were 
apprehended; and within 6 weeks, six of them were executed. He 
says FDR acted in a permissive legal culture that is barely 
recognizable to us today.
    He says the criminalization of warfare is greatly 
concerned. And according to Michael Brohm, its ban on political 
assassinations deterred the Clinton administration from gunning 
down Osama bin Laden.
    Now, this origination of lawyering of the war, he cites it 
back to the 1970s when FISA was written.
    And he cites that, since then, even the CIA is weary of 
possible criminal charges, and it urges its agents to buy 
insurance against possible prosecution.
    As we approach revising FISA, how do we avoid over 
lawyering the war against terrorism? How do we prevent 
ourselves from being bound up in legal morass and paperwork 
when the real job is to protect the country and keep it safe?
    Now I have heard talk, and Mr. Dempsey referred to the 
legal structure shouldn't be centered on the protection of the 
targets of surveillance but more broadly to any person who 
might conceivably communicate with the target of surveillance.
    How is it that you proposed, Mr. Dempsey, that when a FISA 
order is issued and surveillance is conducted and someone picks 
up the phone call, how do you avoid not being part of that 
conversation or monitoring that conversation?
    Mr. Dempsey. I don't think what you said there was a quote 
from anything that I wrote. I think that the thing you were 
talking about ``conceivably''--I don't think I said that.
    Mr. Tiahrt. I believe it was in your testimony today.
    Mr. Dempsey. Anyhow, what I am talking about here is a 
process that would, in fact, allow those communications to be 
kept and recorded.
    Under the kind of blanket order or programatic order that I 
proposed and that appears in 3356 as well, the court would 
authorize a program of surveillance under procedures reasonably 
designed to focus on individuals overseas where there might be 
a foreign intelligence value in their communications.
    Under that order, it is lawful and appropriate and legal to 
collect communications to and from the United States and to 
keep those communications, to use those communications in 
defense of the Nation.
    At a certain point, though, some of those selection 
techniques and some of those filtering techniques may end up 
collecting a significant number of communications of Americans. 
And at that point there, the sort of center of gravity of the 
surveillance activity has now shifted so that it implicates 
significantly two people: the person overseas who has no 
rights, and the person in the United States who retains their 
rights. And then the question is, what do you do going forward 
from that point?
    I think a process could be designed in which you are not 
discarding information. People talk about minimization as if it 
means you throw things away. I don't think the NSA ever throws 
much away, and I don't think they should, under my proposal, 
ignore valid intelligence, but at a certain point, you have to 
say, this is getting pretty close to home here. This is pretty 
much affecting an individual American, and now we need to go 
back and see if there is really a good reason for----
    Mr. Tiahrt. What makes you think it is not done that way 
today?
    Mr. Dempsey. Under the PAA, there is no process for that. 
There is no court order, and the standard under the PAA----
    Mr. Tiahrt. You are speculating that it is not being done 
that way today; that when an American citizen ends up being 
part of an investigation, that there isn't some additional 
activity.
    Mr. Dempsey. Under the PAA and under the law as it now 
stands, the administration would be required to obtain a court 
order only if they are intentionally targeting a known 
particular person, a U.S. person in the United States.
    Mr. Tiahrt. But it is happening today.
    Mr. Dempsey. That is all, but I think the question of 
intentionally targeting the person, who you are intentionally 
targeting----
    Mr. Tiahrt. I guess my time is up.
    Mr. Dempsey. I am happy to stay around----
    Mr. Tiahrt. I believe that is already happening today. And 
I see no concern that you have raised in your study about 
additional--because when somebody is a citizen, he goes a 
completely different channel. There are procedures in place to 
go completely different channels.
    Mr. Dempsey. I think we need to talk about this some more, 
and I am happy to do it with you afterwards; but as I 
understand it, under the PAA, not unless the government is 
intentionally targeting a particular----
    Mr. Tiahrt. You are advocating if it is an--inadvertently 
picked up a conversation of a citizen in the United States in a 
surveillance, that there has to be some additional action even 
though they do not pursue it further.
    Mr. Dempsey. Under the minimization rules, as I read them, 
the NSA is allowed to retain, analyze and disseminate the 
communication of that American and to use it for any number of 
intelligence purposes, to feed it into the criminal justice 
system, but also to use it in the intelligence system and so 
that information about the U.S. person--and in some cases, we 
want it to be used. It is not like we want to erect a new wall 
here.
    As the President says, if al-Qa'ida is talking to somebody 
in the United States, we want to know about it. Absolutely.
    The Chairman. Ms. Schakowsky.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    I wanted to talk about some of the specific language--I 
know it has been touched on, the word ``concerning'' and the 
word ``acquisition.''
    In the letter from Mr. Wainstein, he dismisses the concerns 
about these, and we also heard Mr. Baker testify that there are 
times when the limits are pushed as far as they can go.
    They are dismissed in his letter by saying, first, most of 
the hypotheticals we have heard are inconsistent with the plain 
language of the Protect America Act and the rest of the FISA 
statute.
    So I wanted to know, one, if the language, and I am asking 
Mr. Dempsey and Ms. Graves, if the language is as clear as he 
says, and second, we commit that we will not use the statute to 
undertake intelligence activities that extend beyond the clear 
purpose of the statute.
    Again, I hear what you are saying--you said, Mr. Baker, 
about the promise, but it also--and its impact, but it also 
seems like a new letter could change that.
    And third, we will apply the statute in full view of 
congressional oversight as we intend to provide Congress with 
the consistent and comprehensive insight into our 
implementation and use this authority and what your felling is 
about that since we have not been able to get even the basic 
information about the formulation of this law.
    So how much confidence should we have in these assurances?
    Mr. Dempsey. One interesting thing to ask the 
administration, and to really put to the test what the PAA is 
all about, is to ask the administration, would it meet their 
needs if 105B card a program to authorize the acquisition of 
foreign intelligence by intentionally targeting the 
communications of a person reasonably believed to be 
``overseas''? That is what they talk about, but that is not 
what it says.
    What is the gap between ``a program of surveillance 
reasonably designed to collect the communications of persons 
believed to be overseas'' versus ``intelligence information 
concerning''?
    Ms. Schakowsky. So you would suggest that language being 
preferable to--the one that it contains ``concerning''--that it 
would be clearer.
    Mr. Dempsey. Yes, I am not saying that that would be 
enough, but I think that certainly helps put to the test what 
we are talking about here. Are we targeting persons reasonably 
believed to be----
    Ms. Schakowsky. So you are saying that it is not--the plain 
language isn't clear enough.
    Mr. Dempsey. Absolutely not. We have all kinds of words 
here that appear nowhere else in the statute, and they are 
undefined.
    Ms. Graves. I think I can answer your questions very 
quickly.
    First of all, the language isn't clear, and I think you can 
see that if you compare what was announced as the Rockefeller-
Reyes proposal that subsequently became the proposal of the 
chairman and Mr. Conyers, they refused to confine their power 
to electronic surveillance. They insisted upon having 
acquisition, not electronic surveillance, even as in 3356. They 
insisted on instituting ``notwithstanding any other law,'' 
meaning it blows all of the other laws basically off the books, 
whether it is a pen register rule, whether it is ECPA on stored 
communication records. They insisted on it not being targeted 
or requiring that the orders that are involved be directed at a 
particular person or particular facility.
    I think the language is exceedingly broad and is 
unacceptable. I think that the commitment not to interpret it 
the way the law would permit, the plain language, while nice, 
is not sufficient, especially in the aftermath of Mr. Yoo's 
memos, reinterpreting previous laws over a period at the 
Justice Department and certainly not in the aftermath--
certainly not in the aftermath of assertions that you will have 
full view through congressional oversight when in fact you 
haven't even received the documents that you have requested.
    And so I would say, notwithstanding the assertions in a 
letter by an assistant attorney general, the law is what 
matters, and the law is what will stand in the coming years and 
tailoring that law to the particular problem is the 
responsibility of Congress.
    Ms. Schakowsky. Do you think that this collection of 
business records of individuals could be authorized by this 
law?
    Ms. Graves. I think that it is very clear the way they 
described ``stored records'' whether records are--whether 
records as they are transmitted or stored, whether they are 
electronic in form, which includes a range of records, business 
records, phone records.
    I think it is very clear, the language is very clear on 
that point, that they intend to have access to them through 
orders issued unilaterally by the Government.
    Ms. Schakowsky. Do you feel comforted by the comment in the 
line in Mr. Wainstein's letter that says we wish to make very 
clear that we will not use this provision to do so?
    Ms. Graves. I believe the paragraph before that talks about 
not using it for library records or financial records. It is 
not actually a global disavowal of that power. In fact, the 
language itself, the Stored Records Communications Act, people 
who have litigated and worked on it know that it reaches very 
broadly, and I think that his declaiming library records in the 
aftermath of the library controversy with the PATRIOT Act is 
insufficient. And regardless of its assertions, it is the law 
that matters, not his interpretation of it.
    Mr. Dempsey. I would be interested in his answer to the 
question, how did the Government under FISA deal with access to 
stored e-mail?
    Ms. Schakowsky. I will ask that.
    Mr. Baker. How did we collect it?
    Ms. Schakowsky. Did you have access to stored records under 
FISA? Was it interpreted in that way? Stored e-mail.
    Mr. Baker. You made a reference to the business records. 
There is a business records provision that allows you to obtain 
a variety of materials, any tangible thing, and then there is 
also FISA. We can conduct electronic surveillance and physical 
search of electronic mail. So we would do it depending upon the 
circumstances. You do one or the other. So you could conduct a 
search for certain types of stored e-mail, and you might do 
something that might be construed as electronic surveillance in 
other contexts.
    As I said in my testimony, there are no forms of modern 
communications that we couldn't get to under the regular FISA.
    Mr. Dempsey. I think that what that means then is that 
access to stored e-mail through a physical search is not 
electronic surveillance. Therefore, it falls under 105B. And so 
in addition to the physical search authority, which requires a 
court order, 105B authorizes acquisition to stored e-mail 
without a court order. That is a major change.
    Mr. Rivkin. I was just going to say that leaving aside the 
question of whether certain stored records can be accessed, to 
me, if you look at the language in its totality, particularly 
in subsection 3, that, and I quote, in laws obtaining the 
foreign intelligence information from--with the assistance of a 
communications service provider, custodian or other person who 
has access to communications, the notion that this would allow 
you to go search somebody's apartment and pretend that the 
super in that building is a custodian is silly.
    I am very aggressive when it comes to construing statutes 
both in my private sector days and my government days. But it 
just doesn't get there.
    We are talking here--if you look at the language in 
subsection 2, the acquisition does not actually constitute 
electronic surveillance; we are talking about electronic 
surveillance being accomplished by or with the assistance of 
the very same phone companies. Not bursting into somebody's 
place of business. Not going and, you know, physically 
downloading data from somebody's hard computer drive. That is 
not how it is written. I don't see how it can be construed any 
other way.
    Ms. Graves. I think it is important to read the rest of 
that sentence, which is, ``access to communications either as 
they are transmitted or while they are stored or equipment that 
is being stored or maybe used to transmit or store such 
communications.'' ``Such communications'' are your e-mails, 
your phone calls, whether they are about business matters, 
health matters, intimate conversations with your loved ones. 
Those communications, that is an enormous universe of private 
communications of Americans.
    And I don't think that saying that you are not directly 
going to go after a library's records is sufficient.
    And also, in the aftermath of this ``notwithstanding any 
other law'' language, it is not clear how this affects the 
National Security Letter authorities that have been not 
adequately supervised. It is not clear how it affects other 
laws. They have carved out another opportunity to interpret it 
in a number of ways, and ``communications'' alone encompasses 
almost all of the things we do as we communicate to each other 
every day on laws or other matters.
    The Chairman. Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman.
    Let me first ask consent to have put in the record a letter 
to me from Debra Jacobs, executive director of the New Jersey 
Civil Liberties Union, dated August 22nd.
    Let me begin with two rhetorical questions that I am not 
going to ask you to take time to answer.
    Would you say that a characteristic of regimes that we 
detest and condemn around the world is that they spy on their 
own people? And would you say these regimes often say they are 
doing so to preserve the safety and security of their people?
    I will let those stand as rhetorical questions.
    And rather than trying to pull at pieces of what I think is 
a seriously flawed piece of legislation, let me go back to the 
beginning.
    Mr. Dempsey, you say that the Director of National 
Intelligence laid out three basic requirements for FISA 
legislation or reformed FISA legislation. No particularized 
orders for surveillance designed to intercept the 
communications of foreigners overseas, a court order for 
surveillance of Americans and immunity for service providers.
    Do you believe that FISA as it existed before reformed a 
month or so ago provided that there were no particularized 
orders required for interception of foreigners' communications?
    Mr. Dempsey. There was no requirement for foreign-to-
foreign. On foreign-to-domestic, the law had two different----
    Mr. Holt. So for foreign-to-foreign, you think it really 
required no change or even clarification; is that correct?
    Mr. Dempsey. A clarification may have been helpful. There 
seemed to be some concern and confusion and a lot of debate 
about it. I always thought that a clarification was desirable.
    Mr. Holt. Would you say that it required reform or 
clarification for foreign-to-foreign communication, Mr. Baker?
    Mr. Baker. The difficulty it seemed to me was not saying 
whether--let me back up.
    One of the toughest problems to deal with, I think, that 
you have to confront is the situations we have talked about a 
little bit today where you cannot tell where the communication 
is to or from or both. That is the hard question here.
    So foreign-to-foreign----
    Mr. Holt. So that was unclear you are saying?
    Mr. Baker. No. I am saying it is clear. I thought it was 
clear with respect to foreign-to-foreign wire or radio 
communications. I think it is more difficult if you move 
outside those definitions.
    Mr. Holt. And what kind of language, Mr. Dempsey, what kind 
of language change would you suggest or would you have 
suggested last July to incorporate foreign-to-foreign 
communications that might pass through the U.S.?
    Mr. Dempsey. Well, I think there is language in 3356 that 
is quite clear: A court order is not required for the 
acquisition of contents of any communications of persons 
located outside of the United States even if they pass through 
the U.S.
    Mr. Holt. The DNI also says there should be court orders 
for surveillance of Americans. Do you think FISA, as it existed 
before, provided that?
    Mr. Dempsey. Yes, clearly.
    Mr. Holt. And as for immunity for service providers that 
cooperate with the Government, let me ask, first of all, 
service providers have an obligation or a responsibility to 
comply with illegal surveillance requests?
    Mr. Dempsey. Yes, I think to be fair----
    Mr. Holt. I said with illegal service requests.
    Mr. Dempsey. That they wanted to have the ability to compel 
them to cooperate and to have immunity for a lawful 
cooperation, for cooperation for lawfully authorized orders.
    Ms. Graves. I think I heard your question correctly, and I 
think it is very clear under FISA. FISA was intended to prevent 
that scenario, prevent compliance and punish compliance with 
unauthorized orders for surveillance that did not involve 
either a court or an emergency permitted under the statute.
    Mr. Holt. What I hear you saying, and I am sorry we don't 
have more time to explore in depth all of these, is that the 
changes necessary in the FISA that we knew and some people 
loved and some people hated for years with all of its various 
revisions, needed rather minor modification to provide what the 
Director of National Intelligence said was needed.
    Now, let me explore a couple of other points.
    Do you think, Mr. Dempsey, that it is important that any 
such legislation be identified as the exclusive means?
    Mr. Dempsey. I think it is critical. It is a critical 
element.
    Ms. Graves. If I could interject.
    I think that making the PAA exclusive would be really not 
useful because it creates such enormous exceptions. Reinforcing 
the exclusivity of FISA I am ambivalent about because I think 
it is extremely clear that it is the ``exclusive means'', and 
it should have been clear for any lawyer at the Justice 
Department that it was the exclusive means.
    Mr. Holt. So many questions so little time.
    Let me ask, of course, what really concerns me is that, 
administratively, it is so easy to fall into the pursuit of 
enemies list or chasing hobgoblins with the best of intentions 
and with the most patriotic intentions even and without 
judicial review of determination of probable cause. I am really 
concerned about that. Who determines who is the bad guy?
    But my question is, does after-the-fact minimization take 
the place of judicial review? And let me ask Ms. Graves and Mr. 
Dempsey that.
    Ms. Graves. I would say that I don't think it is adequate, 
and I think, as Mr. Dempsey wrote in his testimony, the courts, 
while there has been some discussion of what the courts did 
hold, one of the things they did hold was that minimization 
itself was not sufficient; and they also held, with respect to 
Americans, you needed to have some individualized determination 
even if there was some leeway before Congress passed FISA to do 
so without a warrant.
    And I would say that the minimization procedures are 
certainly not adequate. If we are talking about expanding the 
reach of the NSA into the global communication network in the 
United States, it is utterly inadequate to attach minimization 
to the PAA.
    Mr. Dempsey. I will stand on what the Supreme Court said in 
Katz in 1967. There the police did everything right. They fully 
minimized, they had probable cause, and the court still said 
that was an unconstitutional search because these decisions are 
not to be made solely by the executive branch.
    Mr. Holt. And that decision has not been nibbled away at 
over the course of years.
    Mr. Dempsey. Not that one.
    The Chairman. Ms. Wilson.
    Mrs. Wilson. Mr. Baker, I had a couple of questions for 
clarification, if you would.
    When did you leave the Justice Department? In which year?
    Mr. Baker. I am currently on leave from the Department. I 
have been on leave from the Department since January of this 
year. I am on leave without pay. I am sitting here 
uncompensated.
    Mrs. Wilson. So you have not been involved in the year 2006 
in matters relating to the FISA court?
    Mr. Dempsey. 2006 I was.
    Mrs. Wilson. January 2007.
    So you were not aware of the problems that have occurred in 
2007 with respect to timeliness of warrants?
    Mr. Baker. I am aware of the issues that have arisen in 
2007 because I have regular contact with folks at the 
Department.
    Mrs. Wilson. Would you characterize those in unclassified 
session?
    Mr. Baker. I don't believe I can.
    Mrs. Wilson. But you are aware that problems exist this 
year that did not exist before?
    Mr. Baker. I am aware of what happened in January, and I am 
aware of what happened subsequently, the event that lead up to 
the Protect America Act. I am not there every day, obviously, 
but I have had discussion with folks there.
    Mrs. Wilson. In some of your answers to previous questions, 
you talked about the timeliness in terms of emergency warrants 
and the reputation of your office as being the rusty gate and 
so forth.
    You responded that you do those as quick as you possibly 
can. And it can happen extremely quickly to get an emergency 
warrant.
    Have you ever been involved in an emergency warrant or an 
emergency application for a warrant that has taken more than an 
hour?
    Mr. Baker. Yes.
    Mrs. Wilson. More than 6 hours?
    Mr. Baker. I guess the question is, what do you mean it has 
taken more than 6 hours? From the time--what I assess that 
means is from the time that the intelligence agency----
    Mrs. Wilson. From the time that the intelligence agency 
says, we have got a number, we need to get up on it, to the 
time they can turn on the switch, has it taken more than an 
hour?
    Mr. Baker. I can't answer that because all I can control is 
the time----
    Mrs. Wilson. From the time you were first informed that one 
would be required to when it was--to when they were able to 
turn on the switch, were there any that took longer than 6 
hours?
    Mr. Baker. I am not trying to be cagey. We did lots of 
these things. We did them all the time. We tried not to over-
lawyer the situation so we delegated authorities to folks 
within our organization to take prompt action on these things.
    Did some take more than 6 hours? Certainly possible. I 
don't know. We didn't keep track. We didn't keep statistics on 
that.
    But what I am reporting to you, I believe, is that, 
overall, my assessment is that the system was successful. Could 
the system have done more with more resources? Of course. Could 
the system have done more if you didn't involve all of these 
lawyers in it? Yes. I mean----
    Mrs. Wilson. I am actually asking a more specific question 
which I think is a legitimate one.
    In your experience, your direct personal experience, did 
you ever have a case where it was more than 6 hours between the 
time you first became aware a warrant, an emergency warrant 
would be needed to when it was signed off on?
    Mr. Baker. Yes, in that particular question.
    Mrs. Wilson. How about 12 hours?
    Mr. Baker. I don't remember.
    Mrs. Wilson. My point here is that time matters. If it was 
in a domestic circumstance--for example, we have Amber Alerts 
all the time in my community. If it was your kid whose life was 
at stake, is 6 hours fast enough?
    Mr. Baker. That is--6 hours is obviously not fast enough in 
that situation. But the question is----
    Mrs. Wilson. Imagine a circumstance where it is a FISA 
warrant that is needed where 6 hours isn't fast enough.
    Mr. Baker. You are making the judgements about how you want 
the law constructed. I am trying to give you the benefit of my 
experience so that you can make an informed judgment. It is up 
to you to decide what the law is going to be. Having said that, 
we worked long and hard to make sure we gave the Intelligence 
Community what it needed when it needed it.
    Mrs. Wilson. Do you understand why there might be 
frustration?
    Mr. Baker. I understand completely. I have heard it--you 
know, when you have lawyers involved in between the 
intelligence operatives and the thing that they want, there is 
going to be tension; there are going to be difficulties.
    My job was to enforce the law that this Congress--not this 
Congress but that Congress had enacted, and that is what I did 
in my level best to achieve.
    Mrs. Wilson. Let me ask you, Mr. Dempsey, about a Supreme 
Court decision in 1990, United States v. Verdugo. In that case, 
Justice Rehnquist said that, ``At the time of the search, this 
particular individual was a citizen and resident of Mexico with 
no voluntary attachment to the United States, and the place 
searched was located in Mexico. Under these circumstances, the 
Fourth Amendment has no application.
    He further said that, ``The result of accepting this 
Mexican individual's claim would have significant and 
deleterious consequences for the United States in conducting 
activities beyond its borders. The rule would apply not only to 
law enforcement operations abroad but also to other foreign 
policy operations which might result in searches or seizures. 
Application of the Fourth Amendment to those circumstances 
could significantly disrupt the ability of the political 
branches to respond to foreign situations involving our 
national interests.''
    And in that case, they determined that the Fourth 
Amendment, that this gentleman had no Fourth Amendment 
protections.
    Are you familiar with that case?
    Mr. Dempsey. Yes, I am. There was no American involved in 
that case.
    Mrs. Wilson. Do you believe that warrants should be 
required for foreigners in foreign countries when we are 
targeting that person?
    Mr. Dempsey. No. Absolutely not.
    Mrs. Wilson. If that Mexican were talking to an American, 
would a warrant have been required?
    Mr. Dempsey. Then you have got two people on the 
conversation and you have got rights on the American side.
    Mrs. Wilson. Would a warrant have been required?
    Mr. Dempsey. I think if that is an ongoing surveillance 
that is collecting information about the American, yes.
    Mrs. Wilson. They were targeting a Mexican in Mexico.
    Would a warrant have been required?
    Mr. Dempsey. As I said, I don't think that the targeting 
question is the relevant question here.
    Two people's interests are at stake. In the Verdugo case, 
only one person's interest were at stake: a Mexican national in 
Mexico. He had no rights under the Constitution. When you 
switch to foreign-to-domestic, and you are talking about two 
parties, we have to look at both sides of the equation.
    Mrs. Wilson. If a Mafia Don is under electronic 
surveillance in this country and he talks to his son's teacher, 
is a warrant required for his son's teacher?
    Mr. Dempsey. A warrant is required to intercept those 
communications. Not on the teacher.
    Mrs. Wilson. Does the son's teacher have any rights----
    Mr. Dempsey. Absolutely.
    Mrs. Wilson. That their rights under the constitution have 
been violated?
    Mr. Dempsey. Well, her rights haven't been violated because 
there is a court order. On the other hand, if there was no 
court order and the teacher's conversations were intercepted, 
that teacher has a constitutional violation, and the Government 
could not use that information against the teacher.
    When the judge issues the order against the Mafia Don, the 
judge is saying there is probable cause to believe that the 
Mafia Don is a criminal and there is probable cause to believe 
that the communications facilities that are going to be the 
target of the surveillance are being used.
    The Chairman. Can you wrap it up because we have to leave.
    Mrs. Wilson. If we are lawfully listening to someone 
overseas for a foreign intelligence purpose, how can you tell 
who they are going to call before they call?
    Mr. Dempsey. You can't in advance----
    Mrs. Wilson. Which means we need a warrant for every 
conversation.
    Mr. Dempsey. No, Congresswoman. Nobody has argued that. 
Nobody has said that the Government needs to know in advance 
what the person overseas is doing. The whole purpose of the 
program warrant is to allow the Government to be begin 
monitoring, not knowing who the target overseas----
    Mr. Rivkin. What Mr. Dempsey, with all due respect, is 
suggesting, if an individual overseas is communicating enough 
with the United States, in order to continue monitoring that 
individual's communication, you need to get a warrant against 
him because you surely cannot get a warrant against an innocent 
American he is communicating with.
    Ms. Graves. I would disagree. That interpretation is not an 
accurate characterization of what we have suggested, and, in 
fact, if you look back at the original Rockefeller-Reyes 
proposal, there was a very sensible approach to the 
circumstance in which an American--you learn subsequently that 
an American's communications are involved or there are 
significant communications or significant number of 
communications with an American. Our understanding is that the 
administration tried to deflect that approach by suggesting 
that if foreigners call the American Airlines, we will have to 
get a warrant for American Airlines. That, I think, is an 
absurd interpretation of that language, and we think that it is 
important to protect the interest of Americans, and we think 
the Americans in your district and other districts do require 
that protection.
    Mrs. Wilson. I would agree that we need to protect the 
civil rights and liberties of Americans. We also need to be 
able to protect this country from terrorists communicating 
overseas. And I hope that in future public discussions and 
public testimony, we will have panels who are much more 
familiar with how these operations take place.
    Thank you, Mr. Chairman.
    The Chairman. And with that, let me finish up because we 
have to relinquish the room. I want to thank all of the 
panelists for their expertise and testimony here. As you can 
see, there are issues that we have to work out, but we must 
work them out because it is in our best interest to protect our 
national security.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 1:25 p.m., the committee was adjourned.]

                                    
