[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 20, 2007.




                  Printed for the use of the Committee

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               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

                              ----------                              


                      THURSDAY, SEPTEMBER 20, 2007

                          House of Representatives,
                Permanent Select Committee on Intelligence,
                                                    Washington, DC.
    The committee met, pursuant to call, at 9:15 a.m., in room 
1300, Longworth House Office Building, the Honorable Silvestre 
Reyes (chairman of the committee) presiding.
    Present: Representatives Reyes, Cramer, Eshoo, Holt, 
Ruppersberger, Tierney, Thompson, Schakowsky, Langevin, Murphy, 
Hoekstra, Gallegly, Wilson, Thornberry, Tiahrt, and Issa.
    Staff Present: Michael Delaney, Staff Director; Wyndee 
Parker, Deputy Staff Director/General Counsel; Jeremy Bash, 
Chief Counsel; Mieke Eoyang, Professional Staff; Eric 
Greenwald, 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; 
Brandon Smith, Systems Administrator; Chris Donesa, Deputy 
Minority Staff Director/Chief Counsel; John W. Heath, Minority 
Professional Staff; James Lewis, Minority Professional Staff; 
and Jamal Ware, Minority Press Secretary.
    The Chairman. The committee will please come to order.
    Today, the Committee will receive testimony from the 
Director of National Intelligence, Admiral Michael McConnell, 
and the Assistant Attorney General for National Security, Mr. 
Kenneth Wainstein, who will join us shortly, concerning the 
Foreign Intelligence Surveillance Act and the recently enacted 
legislation that expanded the administration's surveillance 
powers, the Protect America Act, or, as commonly referred to, 
the PAA.
    We are here today to discuss this legislation and deal with 
what I think is one of the most critical issues of our time: 
the need to balance measures intended to protect the homeland 
with preserving civil liberties.
    So, in that respect, I want to welcome our witness, Admiral 
McConnell and when Mr. Wainstein gets here as well to our 
hearing here.
    I believe that getting this right is fundamental to the 
proper functioning of this great democracy, and I believe that 
Congress must do everything that it can to give the 
Intelligence Community what it needs to protect America, at the 
same time ensuring that we do not abandon the fundamental 
principles of liberty that underpinned our Constitution.
    For more than 200 years, we have managed to have both 
liberty and security, and I intend to do my part to ensure that 
we continue to maintain this careful balance in the years to 
come.
    This brings me to the recent modifications to FISA that 
Congress passed on the eve of our August recess, legislation 
that I believe alters that precious balance between liberty and 
security in an unnecessary and perhaps even dangerous way.
    I want to begin by setting the record straight about the 
concerns that have been raised over the expansive scope of the 
new law.
    There has been a lot of rhetoric from the administration 
and some in Congress suggesting that critics of the new Act are 
placing the rights of foreigners and terrorists before the need 
to protect America. Our position shouldn't be characterized as 
seeking to protect the rights of foreigners, plain and simple. 
Our concerns are about protecting the rights of Americans, not 
foreigners abroad. Thus, we are concerned for the privacy of 
Americans who may happen to be communicating with someone 
abroad.
    To be clear, when a doctor living in Los Angeles calls a 
relative living abroad, I am concerned about her rights. When a 
soldier serving in Iraq or Afghanistan emails home to let his 
family know that he made it back from his latest mission, I am 
concerned about his rights and the rights of his family.
    But, under the new law, we have allowed the government to 
intercept these calls and these emails without a warrant and 
without any real supervision from the judicial branch. In doing 
so, we have unnecessarily put liberty in jeopardy by handing 
unchecked power to the executive branch. I say unnecessarily 
because there was no need to do this in this particular way. 
There was an alternative, but the administration chose to 
torpedo it.
    With that, let me explain. In late July, the Director of 
National Intelligence came to us and identified a specific gap 
which he described publicly as a backlog with respect to the 
FISA process that he claimed had placed our country in a 
heightened state of danger.
    At first, he said that he needed two things: number one, a 
way to conduct surveillance of foreign targets in a block 
without individual determinations of probable cause; and, two, 
a way to compel communications carriers to cooperate. We gave 
him both of those powers.
    After we shared our draft legislation with him, he came 
back to Congress and said that he wanted three more things. We 
again agreed and tailored our bill to provide each of these 
three things. That bill, H.R. 3356, was a result of substantial 
and I believe at the time good-faith negotiations with Admiral 
McConnell.
    We gave Director McConnell everything he said that he 
needed to protect America. But it also did something else. It 
also protected our Constitution.
    Yet, at the final hour and without explanation, after 
having repeatedly assured us that the negotiations had been in 
good faith, the administration rejected that proposal. Director 
McConnell not only rejected it, he issued a statement urging 
Congress to vote it down, claiming it would not allow him to 
carry out his responsibility to protect our Nation.
    Director McConnell, today, in your testimony, I would like 
to hear your side of this story.
    I want to hear why it is that even though we tailored 
legislation to meet your requirements you still rejected it.
    I want to hear why you believe that H.R. 3356 would not 
have allowed you to do your job and why you issued a statement 
to that effect on the eve of the House vote.
    I want to know what specifically you believe was lacking in 
H.R. 3356.
    And, most importantly, Admiral McConnell, I want to know 
what it is about the inclusion of proper checks and balances 
and oversight in our bill that you found so unacceptable.
    These are important questions, because Congress intends to 
enact new legislation as soon as possible as a replacement to 
the administration's bill. In early October, at the Speaker's 
request, this committee will mark up FISA legislation to 
address the needs of our Intelligence Community.
    The new legislation will deal with the deep flaws in the 
administration's bill: the vague and confusing language that 
allows for warrantless physical searches of America's homes, 
offices, and computers; the conversion of the FISA Court into 
what we believe is a rubber stamp; and the insufficient 
protections for Americans who are having their phone calls 
listened to and emails read under this new authority as we 
speak here today.
    Before closing, I want to take this opportunity to 
reiterate a critically important request for documentation 
regarding the NSA surveillance program that still remains 
outstanding.
    As I have said before, to date, the administration refuses 
to share critical information about this program with Congress. 
More than 3 months ago, Ranking Member Hoekstra and I sent a 
letter to the Attorney General and the DNI requesting copies of 
the President's authorizations and the DOJ legal opinions. We 
have yet to receive this information.
    Congress cannot and should not be expected to legislate on 
such important matters in the dark. I would hope that, Admiral 
McConnell, you and Mr. Wainstein, when he gets here, will help 
us in getting this material so that we can have a clear 
understanding of the issues that we are dealing with as a 
committee.
    So I look forward to this hearing, and I want to now 
recognize the ranking member for any statement that he may wish 
to make.
    Mr. Hoekstra. Thank you, Mr. Chairman. Good morning.
    Good morning, Director McConnell, and we appreciate you 
being here. We also appreciate all of the work that you did 
back in July to make sure that we got a bill through the House 
and through the Senate to the President's desk that enabled us 
to provide the NSA, the Intelligence Community, with the 
flexibility, the agility and the tools that it needed to keep 
us safe.
    You know, Republicans weren't invited to be a part of the 
negotiations as the Democratic bill was developed; and, you 
know, that was a disappointing effort. You know, most of the 
time, things in the Intelligence Committee, we have tried to do 
these things in bipartisan ways. But since we weren't part of 
the process, the only thing we could do was take a look at the 
end results. And there is no doubt that the bill that passed 
the House in a bipartisan basis, the bill that passed the 
Senate in a bipartisan basis did exactly what you had 
identified needed to happen: one, a bill in a piece of 
legislation that could become law that would give the 
Intelligence Community the tools that it needed to be 
successful to keep America safe and provided very appropriately 
the kind of balance that we need to protect American civil 
liberties.
    Today's hearing highlights the critical need for speed and 
agility. In intelligence collection, one of the things that we 
have learned is that an Intelligence Community that for so many 
years was designed to be one step faster than the former Soviet 
Union in the threat that came from the former Soviet Union was 
not going to be good enough to face the threat that we face 
from radical jihadists today. So the changes that we need and 
the changes that were made were designed to keep and to put the 
Intelligence Community in step with where technology was today 
and where the threat level was.
    Since the President signed the bill, the Intelligence 
Community has succeeded in closing that intelligence gap that 
you identified in July. There should be no significant 
disagreement that the Protect America Act has improved our 
intelligence capabilities, made our country safer; and, 
regardless of the specific authorities used, the recent 
terrorism-related arrests in Germany and Denmark demonstrated 
why timely intelligence collection is so critical and why we 
must ensure that the professionals at our intelligence agencies 
continue to have the streamlined and effective tools at their 
disposal.
    Not only did the Intelligence Community effectively take 
and participate in taking down these threats, we also know that 
these threats continue. There have been a couple of bin Laden 
tapes. There is a Zawahiri tape that may be out there today. We 
will have to wait for the Intelligence Community to validate 
its authenticity. There are rumors of another bin Laden tape.
    But some of us were in the war zone over the weekend. We 
were in Afghanistan, we were in Pakistan, we were in Iraq, and 
we talked to the intelligence folks and our folks on the 
ground, and we asked them about the threat and said, hey, is 
there any way that we possibly miscalculated this threat, that 
it is overblown? And consistently the people have come back and 
said now this threat is real.
    And one of the comments that came out that kind of sticks 
with me is one of our folks said, you know, we see threats all 
the time, we are working on threats all the time, and these are 
the kinds of things that I wouldn't want my parents to know 
about, the kinds of things that these people would like to do 
against the homeland.
    And that is why it is important that America cannot afford 
to go dark and reopen the intelligence gaps under FISA.
    You know, earlier this week, the committee received 
testimony information from the administration, other outside 
groups, that I hope have put to rest that the myth that the 
Protect America Act somehow reduces civil liberties protections 
for Americans. As Director McConnell and Mr. Wainstein will 
again, I think, will reaffirm today, the law does not permit 
reverse targeting of Americans or the searches of the homes and 
businesses of ordinary citizens that some have breathlessly 
contained in the bill.
    The Department of Justice has made it clear that it 
believes it must seek a court order to target the 
communications of Americans, and the committee will continue to 
carefully ensure that it does so.
    We also learned that some of the activists, special 
interest groups that testified seek not to preserve the 
structure of FISA as we have known it but instead want to 
impose substantial and crippling new restrictions on our 
intelligence agency. If you go back and you read some of the 
testimony, it is clear. They do want to provide the civil 
liberties protections that we give to American citizens and 
people residing within our borders. They want to extend those 
rights to foreign individuals, including foreign terrorists, 
and that is the sum and total of what they intend to do.
    With that, Mr. Chairman, I will submit my entire statement 
for the record and yield back the balance of my time.
    The Chairman. Without objection.
    [The statement of Mr. Hoekstra follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. We have been joined by Mr. Wainstein.
    Mr. Wainstein, welcome to the hearing. We appreciate your 
participating here this morning.
    Mr. Wainstein. Thank you, Mr. Chairman.
    The Chairman. With that----
    Mr. Issa. If I could make a brief opening statement. One 
minute.
    The Chairman. Okay. Mr. Issa is recognized for one minute.
    Mr. Issa. I do think that something needs to be cleared up 
in real time.
    During your opening statements, Mr. Chairman, I think 
unintentionally you talked about soldiers phoning or emailing 
home; and I think it is important to have in the record that, 
in fact, in World War II, in fact, in Korea and, in fact, in 
Vietnam, no soldier had an expectation that his phone calls or 
his emails, which didn't exist then, but his regular mails were 
not going to be potentially censored. In fact, someone only has 
to watch an old version of MASH to see what things looked like 
after they went through scrutiny on mail to find out whether or 
not it might divulge information from the battlefield.
    So I would hope that when we go through this dialogue we 
not use our soldiers risking their lives and limbs as somehow a 
group that expects not to have communication heard. Just the 
opposite. I would say that our men and women in uniform are the 
first to say I am not worried about what you listen to or email 
coming from the battlefield. Just the opposite. I need to be 
kept safe by making sure that in fact we do secure that kind of 
information coming from Afghanistan and Iraq.
    So I know the chairman is a soldier himself and didn't 
intend to misstate that, but I thought it had to be put into 
the record, and I yield back.
    The Chairman. Well, I want to thank my colleague from 
California for clarifying the fact that we may be spying on our 
own soldiers.
    The Chairman. With that, Director McConnell, you are 
recognized for your opening statement.

     STATEMENT OF MICHAEL McCONNELL, DIRECTOR OF NATIONAL 
                          INTELLIGENCE

    Director McConnell. Thank you, Chairman Reyes, Ranking 
Member Hoekstra, members of the committee. It is a pleasure to 
appear before you today. I appreciate the opportunity to 
discuss the Protect America Act, as we refer to it as PAA, and 
the need for lasting modernization of the Foreign Intelligence 
Surveillance Act, which we refer to as FISA. I am pleased to be 
joined today by Assistant Attorney General Ken Wainstein of the 
Department of Justice, National Security Division.
    It is my belief that the first responsibility of 
intelligence is to achieve understanding and to provide 
warning. As the head of the Nation's Intelligence Community, it 
is not only my desire but in fact my duty to encourage changes 
to policy and procedures and, where needed, legislation to 
improve our ability to provide warning of terrorist or other 
attacks of the country.
    On taking up this post, it became clear to me that our 
foreign intelligence capabilities were being degraded. I 
learned that collection using authorities provided by FISA 
continued to be instrumental in protecting the Nation, but, due 
to changes in technology, the law was actually preventing us 
from collecting foreign intelligence.
    I learned that Members of Congress in both Chambers and on 
both sides of the aisle had, in fact, proposed legislation to 
modernize FISA; and this was accomplished in 2006. In fact, a 
bill was passed in the House in 2006. And so the dialogue on 
FISA has been on going for some time. This has been a 
constructive dialogue, and I hope it continues in the 
furtherance of serving the Nation to protect our citizens.
    None of us want a repeat of the 9/11 attacks, although al-
Qa'ida has stated their intention to conduct another such 
attack.
    As is well known to this committee, FISA is the Nation's 
statute for conducting electronic surveillance, a very 
important term, electronic surveillance. That is some of our 
disagreement on interpretation, and we will have more to say 
about that later.
    The other part of the Act is for physical search for 
foreign intelligence purposes.
    When passed in 1978, FISA was carefully crafted to balance 
the Nation's need for collection of foreign intelligence 
information with the need to provide protection for civil 
liberties and privacy rights of our citizens. There were abuses 
of civil liberties from the 1940s to the 1970s that were 
galvanized by the abuses of Watergate that led to this action 
we call FISA.
    The 1978 law created a special court, a Foreign 
Intelligence Surveillance Court, to provide judicial review of 
the process. The Court's members devote a considerable amount 
of their time and efforts while at the same time fulfilling 
their district court responsibilities. We are indeed grateful 
for their service.
    FISA is very complex, therein the problem. It is extremely 
complex. And in our dialogue today what we will examine is if 
you insert a word or a phrase, it has potentially unintended 
consequences, and that is the sum of our disagreement over not 
being able to examine the unintended consequences due to the 
press of time.
    It has a number of substantial requirements, detailed 
applications, constant, extensive, factual information that 
require approval by several high-ranking officials in the 
executive branch before it even goes to the Court. The 
applications are carefully prepared, and they are subject to 
multiple levels of review for legal and factual sufficiency.
    It is my steadfast belief that the balance struck by the 
Congress in 1978 was not only elegant, it was the right balance 
to allow my Community to conduct foreign intelligence while 
protecting Americans.
    Why did we need the changes that the Congress passed in 
August? FISA's definition--and I mentioned this earlier--
electronic surveillance simply did not keep pace with 
technology. Let me explain what I mean by this: FISA was 
enacted before cell phones, before email, and before the 
Internet was a tool used by hundreds of millions of people, to 
include terrorists.
    When the law was passed in 1978, almost all local calls in 
the United States were on a wire, and almost all international 
calls were in the air known as wireless. Therefore, FISA was 
written in 1978 to distinguish between collection on wire and 
collection out of the air.
    Today, the situation is completely reversed. Most 
international communications are on a wire fiber optic cable, 
and local calls are in the air.
    FISA was originally--FISA also originally placed a premium 
on the location of the collection. There was the cause of our 
problem. On a wire in the United States equaled a warrant 
requirement, even if it was against a foreign person located 
overseas.
    Because of these changes in technology, communications 
intended to be excluded from FISA in 1978 were, in fact, 
frequently included in 2007. This had real consequences. It 
meant the community in a significant number of cases was 
required to demonstrate probable cause to a court to collect 
communications of a foreign intelligence target located 
overseas.
    That is very important, and I would emphasize it: probable 
cause level of justification to collect against a foreign 
target located overseas.
    Because of this, the old FISA's requirements prevented the 
Intelligence Community from collecting important intelligence 
information on current threats.
    In a debate over the summer and since, I have heard 
individuals both inside the government and outside assert that 
the threats to our Nation do not justify this authority. 
Indeed, I have been accused of exaggerating the threat that the 
Nation faces. Allow me to attempt to dispel that notion.
    The threats that we face are real, and they are serious. In 
July of this year, we released a National Intelligence 
Estimate, referred to as the NIE, on the terrorist threat to 
the homeland. The NIE is the Community's most authoritative 
written judgment on a particular subject. It is coordinated 
among all 16 agencies of the Community. The key judgements from 
this NIE are posted on our Web site, and I would encourage all 
to review the full details.
    In short, the NIE's assessments stated the following: The 
U.S. homeland will face a persistent and evolving terrorist 
threat over the 3 years that is the period of the estimate. The 
main threats come from Islamic terrorist groups and cells and, 
most especially, al-Qa'ida. Al-Qa'ida continues to coordinate 
with regional groups such as al-Qa'ida in Iraq, across northern 
Africa and in other regions. Al-Qa'ida is likely to continue to 
focus on prominent political, economic, and infrastructure 
targets with the goal of producing mass casualties. I repeat 
for effect: with the goal of producing mass casualties.
    Also, the goal is visually dramatic destruction, 
significant economic aftershock and fear in the U.S. 
population.
    These terrorists are weapons proficient, they are 
innovative, and they are persistent. Al-Qa'ida will continue to 
try to acquire chemical, biological, radiological and nuclear 
material for attacks; and, if achieved, they will use them, 
given the opportunity to do so.
    Global trends and technology will continue to enable even 
small numbers of alienated people to find and connect with one 
another, justify their anger, even intensify their anger and 
mobilize resources to attack, all without requiring a 
centralized terrorist organization, training camp or leader. 
This is the threat we face today and one that our Community is 
challenged to counter.
    Moreover, these threats we face are not limited to 
terrorism. Countering the proliferation of weapons of mass 
destruction is also an urgent priority, and FISA is most 
frequently the source of information in that area.
    The Protect America Act updating FISA passed by Congress 
and signed into law by the President on the 5th of August has 
already made the Nation safer. After the law was passed, we 
took immediate action to close critical gaps related to 
terrorist threats. The Act enabled us to do this because it 
contained the five following pillars:
    It clarified the definition of electronic surveillance 
under FISA in that it should not be construed to encompass 
surveillance directed at a person reasonably believed to be 
located outside the United States.
    Second, under the Act, we are now required to submit to the 
FISA Court for approval the procedures we use to determine that 
a target of the acquisition is a person outside of the United 
States. This portion is new and was added to give the Congress 
and the public more confidence in the process.
    In addition to oversight by the Congress, the new FISA 
procedures involving foreign threats are now overseen by the 
courts.
    The Act allows the Attorney General and the DNI to direct 
communication providers to cooperate with us to acquire foreign 
intelligence information.
    The Act also provides liability protection proscriptively 
for private parties who assist us when we are directing with a 
lawful directive to collect foreign intelligence information.
    And, most importantly, most importantly to this committee 
and certainly to me, FISA, as amended by the Protect America 
Act, continues to require that we obtain a court order to 
conduct electronic surveillance or physical search against all 
persons located inside the United States.
    I ask your partnership in working for a meaningful update 
to this important law that assists us in protecting the Nation 
while protecting our values.
    There are three key areas that continue to need attention:
    The reasons that I have outlined today is critical that 
FISA's definition of electronic surveillance be amended 
permanently so that it does not cover foreign intelligence 
targets reasonably believed to be located outside the United 
States.
    Second, I call on Congress to act swiftly to provide 
retroactive liability protection to the private sector. It is 
important to keep in mind that the Intelligence Community often 
needs the assistance of the private sector to protect the 
Nation. We simply cannot go alone. We must provide protection 
to the private sector so that they can assist the Community in 
protecting the Nation, while adhering to their own corporate 
fiduciary duties.
    Thirdly, in April of 2007, in a bill that we submitted to 
Congress, we asked for a number of streamlining provisions that 
would make processing FISA applications more effective and 
efficient. These changes would substantially improve the FISA 
process without affecting the important substantive 
requirements of the law.
    Finally, we understand and fully support the requirement 
for the Community to obtain a court order or a warrant any time 
we target a target for foreign surveillance that is located 
inside the United States. That was true in 1978 when the law 
was originally passed. It is true today with the update that 
became law last month.
    Mr. Chairman, that completes my remarks. I would be happy 
to answer your questions.
    The Chairman. Thank you, Admiral.
    [The statement of Director McConnell follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
        
    The Chairman. With that, we recognize Mr. Wainstein for his 
opening statement.

STATEMENT OF KENNETH WAINSTEIN, ASSISTANT ATTORNEY GENERAL FOR 
                       NATIONAL SECURITY

    Mr. Wainstein. Chairman Reyes, Ranking Member Hoekstra and 
members of the committee, good morning and thank you very much 
for this opportunity to testify before you again concerning 
FISA modernization. I am proud to be here to represent the 
Department of Justice, and I am happy to discuss this important 
issue with you.
    The Protect America Act is an important law that has 
allowed the Intelligence Community to close intelligence gaps 
caused by FISA's outdated provisions, and it has already made a 
difference. It has already made the Nation safer.
    In my statement, I will briefly explain why I think 
Congress should make the Protect America Act permanent and also 
enact other important reforms to the FISA statute.
    Before I do that, I would like to thank this committee for 
having me in closed session last week; and in particular I 
would like to thank you, Chairman Reyes, for proposing that we 
send you a letter laying out our position on some of the 
concerns that you and other members of the committee had with 
certain parts of the Protect America Act, concerns that certain 
language might permit the government to conduct intelligence 
activities well beyond those Congress contemplated before they 
passed the statute.
    As the committee is aware, we sent that letter to you last 
Friday and we laid out why it is we don't think those concerns 
were going to become a reality in practice. I appreciated the 
opportunity to engage in that dialogue with you and your 
colleagues, and I look forward to continuing it here today.
    I believe that this process will help to reassure Congress 
and the American people that the Act you passed in August is a 
measured and sound approach to a critically important issue 
facing our Nation.
    Let me turn briefly now to why I believe that Act should be 
made permanent.
    As I explained in my prior testimony, in 1978, Congress 
designed a judicial review process that applied primarily to 
surveillance activities within the United States, where privacy 
to interests are the most pronounced, and not overseas 
surveillance against foreign targets, where privacy to 
interests are minimal or nonexistent. They did this very much 
intentionally as they were working against a constitutional 
background articulated in case law and legislation that did not 
extend fourth amendment protections to foreigners overseas and 
that left the conduct of foreign intelligence surveillance 
against foreigners overseas within the ambit and authority of 
the executive branch.
    With this historical background in mind, Congress created a 
dichotomy in the statute, a dichotomy between domestic 
surveillance that is governed by FISA and that is therefore 
subject to FISA Court review and approval and overseas 
surveillance against foreign targets that is not.
    Congress established this dichotomy by distinguishing 
between wire communications, which included most of the local 
and domestic traffic in 1978 and which were largely brought 
within the scope of the statute and radio communications which 
included most of the transoceanic traffic at the time and were 
largely left outside the scope of the statute.
    As a result of the revolution in telecommunications 
technology over the last 29 years, much of the international 
communications traffic is now conducted over fiber optic cables 
which qualify as wire communications under the statute. As a 
result, many of the surveillances directed at persons overseas 
which were not intended to fall within FISA became subject to 
FISA, requiring us to seek court authorization before 
initiating surveillance and effectively conferring quasi-
constitutional protections on terrorist suspects overseas. This 
process impaired our surveillance efforts and diverted 
resources that were better spent protecting the privacy 
interests of Americans here in America.
    As the committee is aware, the administration submitted to 
Congress a comprehensive proposal in April that would remedy 
this problem and provide a number of other changes to the FISA 
statute. While Congress has yet to act on that complete 
package, your passage of the Protect America Act was a very 
important step in the right direction. It amended FISA to 
exclude from its scope those surveillances directed at persons 
outside the U.S., and this has allowed the Intelligence 
Community to close critical intelligence gaps that were caused 
by the outdated provisions of FISA, and it has already made our 
Nation safer.
    But the legislation is expected to expire in just a little 
over 4 months, and we urge Congress to make the Act permanent 
and to enact the other important reforms contained in our 
comprehensive proposal. It is especially imperative that 
Congress provide liability protection to companies that 
allegedly assisted the Nation with surveillance activities in 
the wake of the September 11th attacks.
    I also wanted to assure the committee that we recognize 
that we must use the authority provided by Congress not only 
effectively but also responsibly, and I think our actions since 
Congress passed the Protect America Act demonstrate our full 
commitment to doing just that.
    As we explained in the letter we sent to the committee on 
September 5th, we have already established a strong regime of 
oversight for this authority, which includes regular internal 
agency audits as well as on-site reviews by a team of folks 
from the ODNI as well as the Department of Justice. This team 
has already completed its first two compliance reviews, and it 
will complete further audits at least once every 30 days during 
the renewal period of the statute to ensure complete and full 
compliance with the implementation procedures.
    In that same letter we sent to you, we also committed to 
providing Congress with comprehensive reports about our 
implementation of this authority, reporting that goes well 
beyond that that is required in the statute. We have offered to 
brief you and your staffs fully on the results of our 
compliance reviews. We will provide you copies of the written 
reports of those reviews, and we will give you updated 
briefings every month on compliance matters and on 
implementation of this statute in general.
    We are confident that this regime of oversight and 
congressional reporting will establish a solid track record for 
our use of this authority, and it will demonstrate to you that 
you made absolutely the right decision when you passed the 
Protect America Act last month.
    The committee is wise to hold this hearing and to explore 
the various legislative options and their implications for 
American security and civil liberties. I am confident that when 
those options and implications are subject to objective 
scrutiny and honest debate, Congress and the American people 
will see both the wisdom and critical importance of modernizing 
the FISA statute on a permanent basis.
    Thank you again for allowing me to appear before you today, 
and I look forward to answering your questions.
    The Chairman. Thank you for your testimony, Mr. Wainstein.
    [The statement of Mr. Wainstein follows:]

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    The Chairman. Mr. Wainstein, I understand you had a hard 
time getting in the building, so we apologize for that.
    But the only thing that you missed, which is the most 
germane, is that we seek yours and the DNI's help in getting us 
the documents that the ranking member and I have requested for 
a number of months and are critical for our committee to 
understand the thinking and the process that has gone into the 
surveillance program, terrorist surveillance program. So if you 
could help, we appreciate that very much.
    I don't think anyone disputes that the threats are real. I 
think everybody knows and understands the threats to our 
country are real. The issue is whether we carefully balance our 
ability to remain safe as a Nation while at the same time 
protecting our individual rights as citizens under the 
Constitution.
    And the first question I have for you, Director McConnell, 
is you have told us the things that you need to improve your 
capabilities under FISA. Initially--and we are going back to 
the three things you identified previously--no individual 
warrants for targets abroad, a way to compel telecommunications 
companies to cooperate, and individual court orders from 
targeting an American.
    I believe that H.R. 3356 gave you all of those elements. 
When we discussed these issues with you last month, you told us 
then that the bill was acceptable and then only to find out 
later that it was rejected.
    So the first question I have is, do you still think that 
H.R. 3356 doesn't offer you the things that you need by way of 
these three requirements? And if it doesn't, which ones does it 
not offer or which ones do we fall short on?
    Director McConnell. Thank you, Mr. Chairman. I appreciate 
the question and an opportunity to explain in context, if I 
could.
    In the course of this dialogue, which intensified pretty 
briskly toward the end of July, we exchanged between us seven 
different drafts. While I am, one, not a lawyer, two, imposed 
on the lawyer team that I had--I had more than 20--that we 
wanted and needed these three main points that we are trying to 
achieve: no warrant for overseas, as you mentioned, getting 
help from the private sector, and requiring--and this is one of 
my major points, is I thought the 1978 law was right requiring 
us to get a warrant if it involved U.S. persons. That was sort 
of my philosophical underpinning.
    What happened is the law is very, very long and extremely 
complex, so if someone has an issue with a part of it and they 
want to change a phrase or attack a part of it in the language 
as entered, we don't know the impact of that until we can sit 
down, examine it and so on. I have a team of 20 lawyers that 
are experts in every aspect of that.
    Let me give you a couple of examples: There are claims and 
worries about reverse targeting. What does that mean? The 
assertion is the government wants to know about a U.S. person 
in the country. Therefore, we would target someone overseas 
that might contact that person because we wouldn't have to have 
a warrant to target the person overseas. So language was 
included to address reverse targeting.
    Now what that does is introduce ambiguity and uncertainty. 
You don't know, we don't know how the Court would interpret 
such language once it gets there. You build a level of 
uncertainty.
    Also, reverse targeting is unlawful. So, my view, it 
wouldn't be required to be inserted in the law, and I was very 
worried about the uncertainty. So it was just not required.
    That is one example, and there are a number of examples.
    Let me move to minimization, words in the draft to address 
minimization, and what do I mean by ``minimization?'' When we 
are conducting surveillance against a foreign target and a 
foreign target called into the United States, we have to make 
some decision with regard to that transaction. It has been true 
for 30 years. It is true on the criminal side. It is an 
artifact of doing this business.
    Minimization has been examined by the Court. It has been 
found to be reasonable by the Court. So in the case that a 
foreign terrorist was calling in the United States, if it were 
incidental and innocent, it would be purged from our database. 
If it were real, that might be the most important call that we 
intercepted. And so one would ask, well, what would you do with 
that? In that case, once the sleeper or someone in the country 
became a target of interest for probable cause, we would get a 
warrant.
    So, in my view, minimization for 30 years or almost 30 
years has worked well; and if you attempt to adjust it, you 
don't fully understand or appreciate the outcome.
    And there were a few other things. I will just give you 
some, not to take too much time.
    There was information about the definition of electronic 
surveillance. There are four different definitions, and what we 
had proposed is changing the definition so it excluded a 
foreigner in a foreign country. The draft you had still 
included definitions of electronic surveillance to include 
foreign persons. So you are back in a situation of not knowing 
how the Court would interpret it.
    So my problem was, one, limited time to review, get the 
draft, short turnaround, sit down with the lawyers; and we are 
coordinating between all of the experts and would say, look, we 
don't know what this means. So I was put in a position where I 
could do nothing but say can't support it because we haven't 
had a chance to examine it.
    That is the sum and substance of what happened.
    The Chairman. Thank you, Director McConnell.
    I am a bit perplexed, because you are talking about a lot 
of things that were not included in 3356. The negotiations that 
we had with you covered those three points that you said you 
needed.
    Director McConnell. Yes, sir. They did.
    The Chairman. And they expanded the legislation on the 
second go-round to include all foreign intelligence. If you 
remember that issue, which you made a case for making sure 
that, all foreign intelligence should be part of that process.
    But getting back to my original question, did 3356 give you 
the three things that you said you needed that we were 
negotiating?
    Director McConnell. No, sir. The thing that I was worried 
about most was no warrant against a foreign target, foreign 
country. Because the wording in 3356, the definition left it 
uncertain. So you still would have the Court involved, and so 
our problem was how would the Court interpret it. So it would 
put us back in the untenable situation.
    Let me go back to the end of July, first couple of days of 
August.
    The Chairman. But, Director McConnell, then why would you 
tell us at the time that we were having this discussion that it 
did everything that you wanted?
    Director McConnell. I said if it addressed the three 
fundamental--remember, I am not the lawyer. I am the operator 
saying you have got to have these three things.
    When you examine the words, I wasn't assured that I had the 
three things.
    And the reason I want to go back to the end of July and the 
first part of August, the Congress had a timetable that was 
driving the schedule. We exchanged seven drafts. Each turn--
and, remember, I am doing this on the Senate side, also. Each 
turn we were given very limited time to actually examine the 
draft. And when I say 20 lawyers, I don't just imagine 20 
lawyers sitting around a table. These are experts in aspects of 
this because it is so complex.
    So we would have to have time to say, if you changed a 
phrase, just the modification to electronic surveillance, what 
does that mean in the ultimate interpretation? And that was the 
problem that we faced. I could not, with certainty, believe 
that the very first thing I asked for, the fundamental premise 
going in, which was the reason FISA was created, no fourth 
amendment protection for foreigners that are suspected of 
activity that is inimicable to the interests of the United 
States. There is no intent to do that. But 3356 could still get 
you there.
    Now it is an interpretation, but because we didn't have 
time to sit down and have dialogue on a give and take, that is 
why we were--I said I can't support it. I just--I don't have 
confidence it would come out the way you intended it.
    The Chairman. I will leave that for a couple of other 
members to pursue further.
    I want to move on--in the interest of time--and ask you to 
switch topics and ask you, in your testimony before the House 
Judiciary Committee on Tuesday, you made the statement that no 
American had been targeted with electronic surveillance without 
a warrant. But if you recall in your interview in the El Paso 
Times last month, you said the number of Americans was a 
hundred or fewer. I believe that there has been a lot of 
confusion on this one issue. So I would like to try to clarify 
that discrepancy.
    Can you tell us, Mr. Director, since September the 11th, 
2001, how many Americans have been targeted with electronic 
surveillance without a warrant?
    Director McConnell. I can't tell you the answer to that 
because I don't know. I was asked the question earlier in the 
week in the committee, and then I clarified my answer when I 
thought maybe I left a misimpression. I can only talk about the 
period of time since I have served. The other part is hearsay, 
and I could probably go find it out, but I don't know.
    What I was attempting to do and what I have learned by this 
process is that no good deed goes unpunished. What I was 
attempting to do at a summary level was to provide some factual 
information that people could deal with understanding the 
magnitude of this issue.
    There were many, many claims about the Intelligence 
Community conducting massive surveillance against the American 
public, a drift net over the entire country looking at every 
issue and transaction and doing data mining.
    What I was attempting to give perspective to is there are 
thousands of foreign intelligence targets and in the course of 
these thousands of operations we are conducting against foreign 
intelligence targets on occasion a foreign terrorist called in 
the United States. Now, when a foreign terrorist called in the 
United States and now there is reason to believe that there is 
something to do with terrorism, then we would be required to 
get a warrant.
    So in this specific instance starting in the January-
February time frame, given the numbers we were dealing with 
where it would result in some surveillance of a U.S. person for 
which we got a warrant, that number was about a hundred or 
less. That was the point of what I was attempting to do at a 
summary level, provide the Congress, because you were being 
discussed in the press and a lot of criticism about what we did 
pass or what you all passed and the President signed, so all my 
intent was to do was to provide some context so people had a 
better way to understand this and appreciate it.
    So don't know about 2001, wasn't here. I could go try to 
find out. But, on my watch, none without a warrant and about a 
hundred where we got a warrant and we had reason to believe 
where we needed one.
    The Chairman. I think that is part of what led to the 
confusion on this issue, because you said zero to the Judiciary 
Committee.
    Director McConnell. The question was without a warrant, 
zero without a warrant. So once--remember, a terrorist calls 
in, now we have reason, we get the warrant, so zero without a 
warrant, a hundred with a warrant. That was what I was trying 
to explain.
    The Chairman. Is there anybody accompanying you today that 
you can consult with so you can give us an idea of the number 
of Americans since September the 11th that have been targeted 
with electronic surveillance?
    Director McConnell. Let me ask and find out.
    I can't give you a number, sir. I can possibly provide you 
with one at a classified level.
    I used to serve as Director of NSA years ago. When you are 
collecting information, the task for in the collection process 
is processing out information. You could have data in a 
database that--you don't know what is in the database. It 
hasn't been examined. Remember, we are talking billions of 
things going on.
    So the way the process is designed is, at a point in time, 
the database, it just shorts ground, goes off, you don't hold 
it anymore.
    The situation would be, given now that you have had data 
and you have some reason to examine the data, if there was 
incidental collection against a U.S. person in the data, has 
nothing to do with any foreign intelligence reason, now you 
know it you have to destroy it. Get it out of your database. If 
it had foreign intelligence value, terrorism, whatever, now you 
must report it.
    Now, let us say it was a U.S. person inside the United 
States. Now that would stimulate the system to get a warrant. 
And that is how the process would work.
    Now, if you have foreign intelligence data, you publish it. 
Because it has foreign intelligence value and somebody wants 
the identity. There is a very structured process that you would 
have to go through to get approval to be aware of what that 
person's identity might be.
    So it is something that is the workforce of thousands of 
people are trained in. It is something they review on a yearly 
basis. It is something that is very structured to prevent any 
potential abuse or any claims of spying on Americans.
    The Chairman. But is it your position that you can go back 
and give us the information, again, since 9/11?
    Director McConnell. What I am highlighting for you is it 
will be probably a range. One I am pretty sure----
    The Chairman. The best that you can do under those 
circumstances.
    Director McConnell. It would probably be a classified 
answer.
    The Chairman. We appreciate that.
    The last thing, and I will turn it over to the ranking 
member for his questions, is when will you furnish us the 
documents that we have requested?
    Director McConnell. Sir, my understanding is there is a 
negotiation going on between the Judiciary Committees and the 
White House with regard to that documentation. I am generally 
aware, I have made my recommendations known, and so that is a 
process that is ongoing now. I don't know specifically where it 
is in the decision cycle. Maybe Mr. Wainstein, he might have 
some additional insight.
    Mr. Wainstein. No, sir. I am afraid I actually don't have 
any sort of updating information as to where those negotiations 
are. I know they are ongoing between various parts of the 
administration and various committees up on the Hill. But I 
really couldn't tell you what the status is at this point.
    The Chairman. Any assistance both of you gentlemen can give 
us we would appreciate it.
    With that, I will recognize the ranking member for his 
questions.
    Mr. Hoekstra. Thank you, Mr. Chairman.
    Admiral McConnell, can you explain how the FISA structure 
has accounted for the possibility that the communications of 
Americans may be intercepted when targeting foreign persons? I 
mean, the law has been around since 1978. This is not a new 
problem, correct?
    Director McConnell. That is correct.
    Mr. Hoekstra. So how have the folks at NSA dealt with this 
since 1978? How would this have been managed under the period 
of time that--in the Clinton administration when you were 
running NSA? What are the processes and the procedures that go 
through this talk about collection of Americans?
    Director McConnell. First of all, it is unlawful to collect 
against U.S. persons without a warrant. So that is where you 
start.
    Second----
    Mr. Hoekstra. Since 1978, if you are targeting and 
collecting against an American, the people at NSA have gone 
through the rigorous training; and that has always been subject 
to congressional oversight, that you have got to get a warrant?
    Director McConnell. That is correct. And, sir, I would even 
submit that I think we could have been better in the 9/11 
situation had we perhaps thought about it differently. We put 
so much emphasis, the Community was trained and drilled and 
rehearsed and had such a cultural affinity with what we just 
described that any time it had anything to do with United 
States, it was--we just didn't do it.
    So if Osama bin Laden himself was being tracked in Pakistan 
or Turkey or Europe or wherever, the minute he comes into the 
United States, he is now a U.S. person, and it is a different 
situation.
    So the process--and when you are--first of all, the 
Community is tasked and responsible for only doing one thing, 
collecting foreign intelligence information. So when you are 
doing your foreign intelligence collection mission, there are 
circumstances whereby a foreigner could call into the United 
States. And we refer to that as incidental. When an incidental 
situation like that develops, the rules are it must be 
minimized. Once recognized and minimized, it is incidental. It 
must be purged from the database. That is what we have done for 
almost 30 years.
    If it turns out that it has intelligence value for whatever 
purpose--terrorism, crime, whatever--you are required to report 
it. Even in the report you are required to protect the identity 
of the U.S. person.
    So that is the way the processes work. It is called 
minimization. It is something that has been examined by the 
Court, endorsed by the Court, and it actually originated on the 
criminal side where criminal investigators would have a warrant 
to, for example, conduct surveillance against a specific person 
in the Mafia. That person may have incidental phone calls and 
nothing to do with the crime or breaking the law. That was 
called a minimization process. That is where it came from. That 
is how it has been used in the community.
    Mr. Hoekstra. Those protections are still in place?
    Director McConnell. Yes, sir they are.
    Mr. Hoekstra. You stated in the Judiciary Committee that 
you were required earlier this year to--or that you were 
required to get a FISA order to conduct surveillance on Iraqi 
insurgents who had captured Americans. Can you discuss that 
case any further?
    Director McConnell. I have to be a little careful because 
of sources and methods issues.
    But the situation was, as you know, because global 
communications move on wire, you can have a situation where 
information would pass on a wire through this country. And so 
for us to specifically target individuals that were involved in 
that kidnap, we had to go through a court order process.
    Now when we talked about this before, people frequently 
say, well, wait a minute. Why don't you just do emergency FISA? 
Well, that is the point. We are extending fourth amendment 
rights to a terrorist foreigner, in a foreign country who has 
captured U.S. soldiers, and we are now going through a process 
to produce probable cause that we would have authority to go 
after these terrorists.
    So then people will say, why don't you just--you have got 
emergency authorization. Well, emergency authorization doesn't 
mean you don't go through the process, which is probable cause. 
So some analyst has just got to do it, and some official has 
got to sign it out, and it has got to come to either me or some 
other officials, and it goes to the Attorney General and then 
to the FISA Court.
    So even though you could go faster, some would assert or 
just automate the process and you go the speed of light. The 
human brain still has to engage, and you still have to certify 
the accuracy.
    So the reason I raise the case is it is my fundamental 
belief that that foreigner in a foreign country, known 
terrorist, has no right to protection of the Fourth Amendment. 
And the process slowed us down. That was what I was complaining 
about.
    Mr. Hoekstra. And the situation was one where we ought to 
be clear about, these were Americans that were captured?
    Director McConnell. Yes, sir.
    Mr. Hoekstra. And the way that the process required you, 
required you to go through a court process to get a FISA order 
to be able to listen.
    Director McConnell. And the reason, sir, is two things: the 
mode of communications that was used and where it was 
intercepted. That was the only issue.
    Now let us go back to the terrorists in Baghdad. If they 
had had a push-to-talk phone or if they had a cell phone 
talking to a tower or if they used signal flags or if they had 
talked to a cell phone to a satellite, any of that, there is no 
warrant because it is in the air and it is in a foreign 
country.
    But because they used a mode of communication that involved 
wire and the wire passed the United States, that was where the 
technology did not keep pace--where the law did not keep pace 
with technology. It was because of how and where that put us in 
that situation. They were using a device or devices that caused 
us to stop and get a warrant, so it slowed us down.
    Mr. Hoekstra. Thank you.
    With that, Mr. Chairman, I will yield back the balance of 
my time.
    The Chairman. I thank the ranking member.
    Just to be clear on this particular case that you 
mentioned, the emergency provisions--and we have had testimony 
to this effect--kick in so you can start monitoring immediately 
and then you evaluate whether or not within those 72 hours you 
are going to need to take it to the FISA Court?
    Director McConnell. I didn't make myself clear. I am sorry. 
I am failing here.
    Here is my point: Emergency provisions still have to meet a 
probable cause standard. So I can have emergency provisions. I 
still have to go through the process of probable cause, get 
people to certify and take it to a court. My argument is that a 
foreigner in a foreign country shouldn't be worried about 
emergency process or probable cause. If it is a foreigner in a 
foreign country, that is our mission. We should be doing that 
without involving a court. That is the point I am trying to 
make.
    The Chairman. I just wanted to make sure that we were clear 
so that the American people don't misunderstand that everything 
wasn't done as quickly as possible.
    Director McConnell. Could we have gone faster? No question. 
I am sure we could have gone faster on the edges. I want to 
make sure the American people clearly understand this. Going 
fast does not take away the fact it still has to meet a court 
standard.
    So the issue is we are meeting a probable cause standard 
that still has to be reviewed by a court, and my argument is 
that is the wrong way to do this, but we shouldn't even be 
going down that path.
    Mr. Wainstein. May I piggyback on that for a quick second?
    I think that is a very important point. Because people hear 
that we have this emergency authority and assume that, okay, we 
can sort of go up on it without any process at all.
    Keep in mind that under FISA, under the emergency 
provisions of FISA, the Attorney General of the United States, 
and now with recent amendments to the statute delegated down to 
me, we have to find that there is probable cause that the 
person we want to surveil overseas is an agent of a foreign 
power. And if we don't find that, we are not allowed under the 
statute to go ahead and authorize emergency authority and 
within 72 hours we have to make that showing to the 
satisfaction of the FISA Court.
    So it is a very important responsibility. It is nothing we 
take lightly.
    As a result, analysts, whoever else is involved in the 
process, they have to pull together the information to 
establish that, to make that showing, and that is not--that can 
take some time in order to get that evidence together.
    And keep in mind that, were it not for that, if these 
surveillances overseas did not fall within FISA, we would not 
have to make a showing that the person that we want to surveil 
is connected to any particular foreign power which is--you 
know, that is our foreign intelligence. I mean, our foreign 
signal intelligence surveillances don't require that, and they 
shouldn't for surveillances outside the United States, they 
shouldn't fall within FISA.
    It is very important that people should understand the fact 
that we have emergency authority doesn't mean we can 
automatically snap our fingers.
    Director McConnell. That is why my number one point from 
the day I came back into active duty and looked at it as my 
number one point was, since I was on active duty before, I 
never had to have a warrant for a foreign target in a foreign 
country and now all of a sudden I had to. That was the main 
thing I was trying to get people to recognize and deal with.
    The Chairman. Ms. Eshoo.
    Ms. Eshoo. Thank you for holding this public hearing, Mr. 
Chairman. I think it is so important, because the American 
people are really worried about this. All one has to do is look 
at the editorials that were carried in newspapers in different 
parts of the country and the stated concerns about the bill 
that was passed.
    Mr. Director, I want to ask you about a specific interview 
that was carried--the chairman mentioned it--in the El Paso 
Times that ran on August 27th. You revealed a great deal of 
information that had previously been considered classified.
    I remember the discussion and the number being given to 
committee members and I don't know whether the word ``warning'' 
was there, but it was certainly reinforced that this was a 
highly classified number.
    So, for example, you discussed the mechanics of the FISA 
applications and court review, including the recent changes in 
FISA case law that necessitated warrants for wire 
communications traversing our country. You also confirmed that 
private sector companies assisted in conducting the President's 
warrantless surveillance program.
    Now my question on this is, did you discuss with the White 
House your intent to declassify these facts in advance of the 
interview?
    Director McConnell. No, I did not.
    Ms. Eshoo. If not, why not?
    Director McConnell. The control of classified information 
is subject to Presidential authority, and the President 
delegates that authority to me, and it becomes a judgment call.
    Ms. Eshoo. So simply by stating in that interview with the 
El Paso Times the information just automatically became 
declassified because you stated it publicly?
    Director McConnell. It becomes a judgment call. I will 
repeat some of the remarks I made earlier with regard to why I 
chose to do that. There were many claims and counterclaims.
    You opened your comments, saying, ``Americans are 
worried.'' Some were asserting in those same editorials that my 
community was conducting a drift net of surveillance.
    Ms. Eshoo. I don't want to go back to what you have said 
before. I appreciate your wanting to say more that was stated 
earlier today, but I only have a limited amount of time.
    I was really stunned when I read that, I have to tell you. 
I think others were as well.
    Does the same thing occur if we as members of the committee 
state a classified number and we decide it should just be 
declassified?
    Director McConnell. You would have to request authority to 
do that. I have that authority, and I made a judgment. It was 
in my judgment call.
    Ms. Eshoo. Were you aware, by reviewing the involvment of 
private sector companies, that it undermined the Justice 
Department's case, their defense against the lawsuit about the 
President's program?
    Director McConnell. I am sorry. Repeat the question.
    Ms. Eshoo. I mean, there was a lot of speculation. You 
confirmed that private sector telecommunications companies were 
assisting in the President's program. I am just asking you if 
you were aware if that undermined the Justice Department's 
defense against the lawsuit.
    Director McConnell. The words I chose were private sector. 
If you go back and closely examine all the articles that 
covered my interview, they would quote me up to a point, and 
then it would stop the quotes and go on to name specific 
companies or telecommunications or whatever.
    Ms. Eshoo. I think we may view it differently, which is 
legitimate.
    Director McConnell. I can refer you back to the article, 
which was printed verbatim.
    Ms. Eshoo. After the Act passed, you claimed that because 
of the congressional and public debate over changes in FISA, 
``Some Americans are going to die.''
    Director McConnell. Yes, ma'am.
    Ms. Eshoo. Do you really believe that because we have a 
public debate in the Congress of the United States about 
surveillance, about the Foreign Intelligence Surveillance Act, 
that Americans are going to die?
    Director McConnell. Yes, ma'am.
    Ms. Eshoo. That is a heavy statement.
    Director McConnell. Intelligence business is conducted in 
secret for a reason.
    Ms. Eshoo. Did you ever advise the Congress not to debate 
this in public and that you believed Americans were going to 
die?
    Director McConnell. I have been very clear about this all 
along. This is very important for us to get this right so we 
can do our mission to prevent Americans from dying.
    Ms. Eshoo. That is not what you said.
    Director McConnell. If you would allow me to finish, I will 
tell you what I intended to say, what I did say.
    If you compromise sources and methods; and what this 
dialogue and debate has allowed those who wish us harm to do is 
to understand significantly more about how we were targeting 
their communication.
    Ms. Eshoo. Mr. Director, with all due respect, I think that 
you put out classified information; and simply by stating 
because you are director and say that you have the ability to 
do that and that it just became declassified, I think that that 
was very important information that shouldn't have gone out. 
That is only my judgment.
    Now, you are standing by your previous quote that when we 
debate these that some Americans are going to die. I think that 
is a stretch. I think because of these things it has done 
damage to what you bring forward. It puts a dent in the 
credibility.
    And I think that there are some Members of Congress that 
are being affected by this. That is why I raise it.
    Chairman Reyes. Thank you, Ms. Eshoo.
    Ms. Wilson.
    Mrs. Wilson. Thank you, Mr. Chairman.
    Mr. Wainstein, would the Protect America Act affect the e-
mail of a soldier communicating with his family back home?
    Mr. Wainstein. Under certain circumstances, it would, yes. 
The Protect America Act allows us to target surveillance on 
persons overseas.
    Keep in mind that one of the things that we have to do is, 
we have to satisfy the various elements, and one of them is, it 
has to have a significance for intelligence purposes. We can't 
target anybody for kicks. The DNI and AG have to certify that 
there is a foreign intelligence purpose for that surveillance.
    Keep in mind also, if this is an American soldier that is a 
United States person, there is what is called the 2.5 process 
in place, 2.5 under Executive Order 12333, which says that 
before we can target an American overseas for surveillance, the 
Attorney General has to find probable cause.
    Mrs. Wilson. The Attorney General would have to certify 
that there is probable cause to believe that that soldier 
overseas is an agent of a foreign power. Is that correct?
    Mr. Wainstein. The Attorney General would have to find 
that, yes.
    Mrs. Wilson. Thank you.
    With respect to reverse targeting, Mr. Wainstein, would the 
Protect America Act allow a circumstance where you really want 
to listen to a doctor in America, so you wiretap his relatives 
overseas? Would that be against the law?
    Mr. Wainstein. It would be.
    Mrs. Wilson. Admiral, you testified before the Judiciary 
Committee, and it has already been discussed a little bit here. 
You said, ``And let me give you an example: An American soldier 
is captured in Iraq by insurgents and we found ourselves in a 
position where we had to get a warrant to target the 
communications of the insurgents.''
    In that circumstance, did you try to get an emergency FISA?
    Director McConnell. Yes, ma'am.
    Mrs. Wilson. How long did it take from the time the United 
States knew it had a target until you were able to get the 
Attorney General to sign off?
    Director McConnell. Ma'am, I will have to get you an exact 
answer. If my memory serves, somewhere in the area of 12 hours 
or so.
    Mrs. Wilson. So it took a minimum of about 12 hours to get 
the probable cause, get it all the way through to get the 
signal to turn on the wiretap?
    Director McConnell. Yes, ma'am.
    The point I was trying to highlight is the fact of probable 
cause, and the standard has to be a probable cause standard 
that a court would approve.
    Mrs. Wilson. If that terrorist in Baghdad was using a push-
to-talk phone, you could have gone up immediately?
    Director McConnell. That is correct. The reason was the 
mode of communication; that is what drove us to a warrant 
requirement.
    Mrs. Wilson. So we had U.S. soldiers who were captured in 
Iraq by insurgents, and for 12 hours immediately following 
their attack, you weren't able to listen to their 
communications; is that correct?
    Director McConnell. That is correct.
    Mrs. Wilson. If it was your kid, is that good enough?
    Director McConnell. The reason I try to be as 
straightforward and open on this subject as I have, is because 
it is so important that we get this right. You may even accuse 
me of declassifying information, a warmonger, a fearmonger or 
whatever, but we have got to get this right because sometimes 
those timelines are so tight, it could cost us American lives.
    We have to not extend fourth amendment protections to a 
foreign terrorist, particularly in something like this where 
they are holding a U.S. hostage.
    Mrs. Wilson. Mr. Wainstein, you are a Justice guy; you are 
familiar with things like the Amber Alerts and the importance 
of those first hours and gathering information to protect 
American lives, often children.
    Mr. Wainstein. The point is, we need to be agile, we need 
to be able to jump and respond to circumstances immediately.
    This is a dangerous game. It is in this situation and some 
of the situations that happen every day, anything that slows 
down that process makes it more cumbersome, makes it more 
likely terrorists will win.
    Mrs. Wilson. Thank you.
    The threat persists, and you both have testified to that 
fact and that our laws did not, before the Protect America Act, 
work fast enough to protect this country against people who 
were trying to create mass casualties against Americans.
    I thank both for your work.
    I yield back.
    Chairman Reyes. Thank you, Ms. Wilson.
    I think that is an abhorrent failure of leadership on our 
part, and we shouldn't be worried about whether or not we are 
legally compliant when American lives are at stake, especially 
in the combat situation.
    Mrs. Wilson. Mr. Chairman, may I ask a question?
    Chairman Reyes. You may.
    Mrs. Wilson. If they had not followed the law in that 
circumstance, if they had said, forget the FISA, don't worry 
about the Attorney General, just go up on that number and we 
will worry about explaining later, would that maybe break the 
law?
    Chairman Reyes. The testimony that we had in committee by 
Mr. Jim Baker the other day is that all it takes is a phone 
call explaining that American lives are at stake in a combat 
zone.
    I think it gets back to the bureaucracy and a failure, 
again, to recognize that American lives are at stake. I think 
it is a common-sense thing to work with.
    Director McConnell. Sir, the point--maybe not being 
captured--here is, even in an emergency you still have to get 
approval. Someone has to say ``yes.'' It's according to the 
law.
    In this case, it is the Attorney General, so the process to 
get the data and put it in a format and move it through the 
system and get it approved.
    Chairman Reyes. There were a number of other circumstances 
in this particular case, but again I think it is imperative 
that we understand that there is that capability of making that 
phone call. I would be surprised if they wouldn't say, let's go 
up on it, let's make sure we are building a case, because all 
the elements were there, that American soldiers' lives were in 
danger.
    With that, Mr. Holt, you are recognized for 5 minutes.
    Mr. Thompson. Mr. Chairman, before you go to Mr. Holt, 
would you yield for a question to the Chair on the issue that 
we are discussing regarding these soldiers that were captured? 
Could we get some clarification on why it took 12 hours? Was it 
a bureaucratic holdup, was it a legal holdup, or was it a 
technology holdup?
    Given the testimony we heard from Mr. Baker yesterday, it 
seems ridiculous that it would take 12 hours, if we have 
identified a target, to be able to ascertain the information we 
need to protect the lives or to find the soldiers that had been 
captured. I think there is a lot that is not being explained 
here.
    Chairman Reyes. We do have, and the committee does have, 
the information, including the timeline and other circumstances 
that were involved, including that the Attorney General was out 
of town and issues like that.
    Again, it is available for any member of the committee. We 
do have it.
    Mr. Wainstein. I don't want the impression to be left that 
the Attorney General has the only determination when we get 
emergency authority. I am not talking about this particular 
case we discussed in closed session. But it must be understood 
that where we had emergency authority, the law requires that 
probable cause be shown, probable cause that the person we want 
to target is an agent of a foreign power.
    You don't have to go any further than the discussion of the 
9/11 Commission recommendations about the difficulties in 
showing that. It took us so long to get the authority to get 
the search warrant, to get authorization to search the laptop. 
It is not an easy showing, and we have to make that showing.
    I can tell you once we make it, it is almost instantaneous; 
it doesn't matter where the Attorney General is, the call is 
made and he is responsive. If we don't follow that procedure, 
we are violating the law, and there are felony penalties.
    Chairman Reyes. In this particular case, people were 
kidnapped in Iraq, people were communicating about that case. 
Would that be foreign and--from a common-sense perspective--
would be reasonable for a person to assume that probable cause 
was there?
    Mr. Wainstein. Well, I would have to divorce it from the 
facts here, because it gets into a very sensitive area we can't 
discuss.
    Chairman Reyes. I don't want to leave the misperception 
that people were standing around because of FISA, unable to 
make a determination. There is a common-sense aspect to every 
issue that we deal with, including FISA.
    Mr. Hoekstra. The common-sense approach to that is saying 
that in FISA probable cause does not extend to an agent of a 
foreign power in a foreign country.
    Chairman Reyes. That is exactly right.
    Mr. Hoekstra. But in this case, the way the communications 
were reported, they got fourth amendment protections.
    Chairman Reyes. That is where I disagree with you because, 
again, American troops were kidnapped in Iraq, communication 
was taking place in Iraq. The last time I checked, Iraq is 
foreign. You could assume that it is foreign-to-foreign in that 
case. I would find it astonishing if any judge said it wasn't 
ripe for emergency authorization.
    Director McConnell. The FISA court said we would not be in 
compliance. That was the issue. I briefed 260 Members of 
Congress, and I just failed to make the point.
    The point is, someone in Iraq communicating because it 
passed on a wire through this Nation, this country physically, 
the law said we had to have a warrant. That is the point.
    So what we are arguing is, we shouldn't have a warrant for 
a foreign-to-foreign country, regardless of where we intercept 
it.
    Chairman Reyes. I don't think we have a disagreement on 
that.
    Director McConnell. We can't violate the law. We have to 
abide by the law. That was the whole point of the reason I 
brought it up.
    We are doing a consideration of probable cause for somebody 
in a foreign country because of where we intercepted.
    Chairman Reyes. Which was written into 3356, at your 
request, and which I will tell you we definitely need to make 
that----
    Director McConnell. Everybody I have talked to is in 
agreement with the first principle I keep putting on the table. 
The issue we discussed is when you add the other things. In 
some cases, it puts us back in the same situation. That was the 
problem. We didn't have a chance to sit down across the table 
and say, what is your intent here and what is the probable 
outcome and how do we pick a better word or different word. We 
got caught in a time crunch.
    Chairman Reyes. We are not in a time crunch now. We are 
going to be able to work with you and hope we cooperate for the 
good of our national security.
    Mr. Holt, you are recognized for 5 minutes.
    Mr. Holt. Thank you, Mr. Chairman. Thank you for holding 
these public hearings.
    Thank you both, gentlemen, for coming today.
    I understand, Mr. Director, that you believe strongly that 
the legislation needed to be changed so that there would be no 
individualized judicial warrants required for overseas targets. 
Let me go through a few other things, though.
    Did you need and do you need the ability to conduct 
warrantless searches of Americans inside the United States?
    Director McConnell. No.
    Mr. Holt. Do you need or did you need the ability to 
conduct warrantless searches of domestic mail?
    Director McConnell. No.
    Mr. Holt. Do you need to be able to conduct searches 
without judicial warrants of U.S. persons about foreign 
intelligence?
    Director McConnell. Ask the question again.
    Mr. Holt. Do you need to be able to conduct searches 
without judicial warrants on persons whose communications might 
be about foreign intelligence?
    Director McConnell. Depends on where and who the person is. 
If it's a U.S. person.
    Mr. Holt. A U.S. person.
    Director McConnell. In this country, it requires a warrant.
    Mr. Holt. And not in this country?
    Director McConnell. The U.S. person is protected under U.S. 
laws.
    There is a situation which is covered under Executive Order 
12333. You have to have an authorization, but in the current 
interpretation, that is not a warrant.
    Mr. Holt. Do you need to be able to conduct warrantless 
searches of library records, medical records, business records, 
under FISA?
    Director McConnell. Not to my knowledge.
    Mr. Holt. Do you need to be able to conduct bulk collection 
of all communications originating overseas?
    Director McConnell. Bulk collection of all communications 
originating overseas. That would certainly be desirable if it 
was physically possible to do, since I am in the foreign 
intelligence business.
    Mr. Holt. Do you need to be able to collect--or conduct 
bulk communications of someone overseas to an American?
    Director McConnell. No.
    Mr. Holt. Do you need to be able to conduct bulk collection 
of call detail records, metadata for domestic-to-domestic phone 
calls by Americans?
    Director McConnell. Metadata, we think of it as not content 
but a process for how you would find something you might be 
looking for. Think of it as a roadmap.
    Mr. Holt. With the exception of that one matter.
    Director McConnell. Let me answer your question.
    Should I do that without a court order? No. If I do it, I 
should have a court order.
    Mr. Holt. So would you object to statute language that 
explicitly prohibits the government from engaging in these 
things?
    Director McConnell. The way we have discussed it in every 
case you have described, we are prohibited without a court 
order.
    Mr. Holt. So you would not object, with a clarification of 
that in the statute?
    Director McConnell. Let me go back to my dialogue with the 
chairman.
    As long as we examine the language with a team of experts 
to understand the consequences and the unintended consequences, 
I wouldn't object. But what I couldn't do is agree to it 
without being allowed to read the text or have an expert team 
examine it, which is the situation.
    Mr. Holt. Now, before the recess and during negotiation 
over FISA modifications, you issued a statement saying that you 
strongly opposed the bill that was before Congress, and 
insinuated it would limit your ability to warn Americans of 
impending attacks. But later you said you hadn't read it.
    Last week, before the Senate Homeland Security and 
Government Affairs Committee, you said that under the new law 
you would lose, ``50 percent'' without the new law, you would 
lose 50 percent of our ability to track and understand and know 
about these terrorists.
    This week, before the House Judiciary Committee, you said, 
If we let the new law expire, we would, ``lose about two-thirds 
of our capability, and we would be losing steadily over time.''
    A week or so ago you said that the new FISA law facilitated 
the recent disruption of the German terrorist plot, despite the 
fact this began many months before. You did--after the chairman 
and I and others made public statements, you issued a public 
statement.
    Let me ask if you understand why some people have raised 
questions about the credibility of your arguments. Do you 
understand that there are some doubts about your ability to act 
as an unbiased source of information concerning this proposal?
    Director McConnell. Many of the quotes you have taken have 
context to them. There were answers to questions that were 
specifically framed.
    The question I received in the Senate hearing that you make 
reference to, the question that I understood was, Would the 
FISA process make any difference; and my answer was, Yes, it 
did.
    That was a key source of information. Once it became 
politically surfaced, as well as the new law and the old law, 
the best thing for me to do was just to say, I retract the 
statement, I will clarify it in another hearing or in closed 
session.
    Did FISA make a difference and save American lives in 
Germany? Yes. It saved American lives.
    Did it matter if it was passed on the 5th of August or 
earlier? That wasn't my point. It was the FISA process.
    My point is, it is more than 50 percent of what we know 
about terrorists that are plotting to kill people in this 
country. And the way you frame your question was out of context 
for what I was trying to respond to in the hearing; and I was 
trying to be honest and straightforward about it.
    Mr. Holt. Later I will read the full transcript to you, but 
my time has expired.
    Chairman Reyes. Thank you, Mr. Holt.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman. I have an article here. 
I took the liberty of taking a quick glance it. I will ask that 
it be included in the record at this point.
    Chairman Reyes. Without objection.
    [Article not found]
    Mr. Issa. Thank you, Mr. Chairman.
    It is straightforward. It says you can do this. 
Unfortunately, as I read it--and I would like your read on it, 
and obviously the Attorney General's office too--what we did 
when we structured this legislation is, we made it simple, said 
you could do it; but in the same 105 what we went on to do was 
endlessly tell you what you had to do after that, within that 
72 hours.
    If I understand correctly, notwithstanding the chairman's 
statement that you wouldn't wait 12 hours, you wouldn't take 12 
hours if it was your child--and you probably wouldn't; you 
would be willing to go to jail, you would be willing to violate 
the law, you would be willing to ignore that to save your own 
child's life.
    That is not the standard we hold people to in law 
enforcement. We hold them to the standard that they are not--we 
take them off the cases if it is their child.
    As I read the statute, it is pretty clear that you have to 
have ready a good-faith belief that you are going to be able, 
after 72 hours, to present to the judge this another 2\1/2\ 
pages of ``what ifs'' and ``notwithstanding'' and so on.
    Is that correct, Admiral?
    Director McConnell. Yes, sir. That is correct. That is the 
point.
    Mr. Issa. So, in a nutshell, we have talked past each other 
for the last 45 minutes.
    It's pretty clear that if Congress wanted you to have what 
General Petraeus has--which is, they take our troops, he sends 
a gunship out, he kills the bad guys, and gets our people 
back--if they wanted you to have that, they would give you 72 
hours to take gunships out, so to speak, without saying, And, 
oh, by the way, here is what has to be in your after-action for 
this to have been lawful.
    Is that right?
    Director McConnell. Yes, sir.
    Mr. Issa. I remember this. And I think General Petraeus has 
been very good. Everybody who has been over there--as the 
ranking member has, I have, the chairman--General Petraeus 
explains that to us; that he can shoot somebody while they are 
calling the United States, he just can't listen to them while 
they're calling the United States.
    I only put this into record, the Marine online statement, 
because I think it is important. Notwithstanding the chairman's 
``We are not going to spy on our troops,'' I checked and 
confirmed, and you have in front of you--which I also ask be 
put in the record anecdotally--that every U.S. Department of 
Defense site both here and in theater has a warning that says 
you may be monitored. As a matter of fact, it specifically 
makes it clear that you will be potentially monitored.
    For Mr. Wainstein, I guess my question is, your 
understanding of how the Uniform Code of Military Justice works 
when somebody is given a warning like this. When somebody is in 
theater, is it fair to say their fourth amendment is not, in 
fact--that, in fact, if they do something inappropriate, 
including going to a porno site, that that evidence can be 
used, and they have no expectation of privacy. Is that right?
    Mr. Wainstein. Sir, I don't actually have the sheet you 
passed to the Admiral.
    Fourth amendment protections do follow Americans when they 
go overseas, but obviously if you consent to--you see a banner 
that says, ``By using this, you consent to us looking at it and 
possibly using it against you if you do anything wrong,'' if 
that is what the banner says, then, yes, they have waived that.
    Mr. Issa. I only say that because we are not spying on our 
troops, our troops are in fact consenting, that for their 
safety that that happen.
    Mr. Wainstein. If we do surveil a soldier overseas who is 
an American, we have to establish to the Attorney General that 
that person is an agent of a foreign power.
    Mr. Issa. Of course, if they become a target.
    I might, for the record, remind us all that it was 
insiders--not U.S. troops, but insiders who blew up our mess 
hall in Iraq; and in fact, they had access or at least the 
presence of computers and so on.
    I think today what we are hearing is, we are hearing the 
majority say on a bill that they wrote, we didn't cosponsor--
they voted for and they sent to the President and the President 
signed--they are saying, Please don't let us hurt ourselves 
again, and the American people.
    I would hope they don't really mean it.
    My understanding of the Rocket Docket in Virginia, it is 
about 18 months. I just want to have that in the record because 
I think 12 hours, when you know you are going to a court, the 
question of speed is highly questionable.
    Director, I do have one question for you that is pertinent 
for both sides of the aisle up here, and that is, all of us who 
not only receive classified briefings, as we do, but who 
constantly look to the unclassified Internet information 
related to areas of study, could not miss that the New York 
Times and everybody else on and off the Internet has been 
reporting--with some inconsistency, but reporting--Israel's 
attack on Syrian sites, and yet members of this committee, 
having inquired, have essentially been told we won't be 
briefed.
    As much as I want to support you, and I have supported your 
need to get what you need, I would hope today in an open 
hearing that you would realize that many of us are frustrated 
that we do get selective information, and that when you 
declassified something in El Paso, I respect the fact you did 
so for what you thought were the right reasons.
    But I would hope that we could change the policy, starting 
today, about selectively handing us little bits of information 
to tie us up while, in fact, critical information that is 
already leaking around in an inconsistent way can be brought to 
the committee that has to make decisions on whether or not our 
plans and preparations and our eyes on the ground are 
appropriate.
    So if you can comment on that specifically, maintaining an 
unclassified posture--and I am not talking about the specific 
incident, but I am talking about the question of how you select 
answering our questions, including the chairman and ranking 
member's requests, that seem to be forever waiting to find out 
and neglected as to whether or not this committee receives it.
    Director McConnell. First of all, a very important 
question. Let me just give you my personal view of the 
oversight process. Sunshine is a good thing, not a bad thing. 
So oversight and sharing of information is appropriate and 
healthy. That is my personal belief in how to engage.
    In this specific instance you are making reference to, I 
would be happy to talk to you about that. There is information 
at a classified level that wouldn't be appropriate for me to 
discuss now. There are varying levels of what you can do and 
not do by agreement between the executive branch and the 
Congress, so I have to be respectful of that process.
    But given the opportunity to engage in dialogue and share 
information, I am going to default to the sunshine position of 
making it available.
    Mr. Issa. Okay.
    Mr. Chairman, I appreciate your indulgence on the time.
    Chairman Reyes. Mr. Tierney, I think we have enough time to 
have you go.
    Mr. Tierney. Mr. Director, I don't think there has been any 
disagreement from the beginning as to whether or not a warrant 
is needed for foreign communications between a person in a 
foreign country and another person in a foreign country not a 
U.S. citizen. There is no warrant required.
    Many of us have argued consistently that FISA never 
required a warrant in those situations.
    I know there has been some disagreement on that in the 
interpretation.
    I am just going to read the section of the bill that had 
been filed by the Democrats last session that deals with your 
issue of whether or not it will clarify that matter. I don't 
want you to respond now, but I would like for you to submit to 
us after the hearing your complete reason why you thought the 
following language wasn't fair enough to satisfy your needs to 
make it certain that no foreign-to-foreign communications 
required a warrant.
    Section 105(a) reads: ``Notwithstanding any other 
provisions of this act, a court order is not required for the 
acquisition of the contents of any communication between 
persons that are not located within the United States for the 
purpose of collecting foreign intelligence information, without 
respect to whether the communication passes through the United 
States or the surveillance device is located within the United 
States.''
    So if you would be kind enough to submit to us why you 
think that is not clear with respect to that issue, I would 
appreciate it.
    Secondly, I think, Mr. Director, you would agree with me--
and I think you stated very clearly--Americans and others 
inside the United States do enjoy constitutional protection or 
a right against unreasonable search and seizure or interception 
of their conversations; is that right?
    Director McConnell. Right.
    Mr. Tierney. And it would be unlawful to intercept that 
communication without a warrant; is that correct?
    Then I assume you agree with me that the original program 
that the President was operating was, in fact, unlawful.
    Director McConnell. That is a debate between the 
interpretation of Article II and Article I. Some would argue it 
is lawful, some would say ``no.'' I can't resolve a 
constitutional debate. I am talking about the framework of 
FISA.
    Mr. Tierney. Moving forward, we agree, if the government 
targets an overseas person, a certain percentage of foreign 
intelligence targets overseas will communicate only with other 
foreigners overseas.
    Director McConnell. I think that is fair to say.
    Mr. Tierney. Some of them are going to communicate with 
individuals in the United States, and some of those 
communications are going to pass through the United States; and 
it may not, at first, be easy to determine if they are being 
routed to U.S. persons or to foreigners overseas.
    I think that is the crux of the government's dilemma here; 
is that right?
    Director McConnell. That is part of it.
    Mr. Tierney. Now, the government's been arguing for the 
agility and speed and says it should not need to prepare 
applications with particularized orders, meaning specific 
persons or the specific thing being accepted, for foreign 
targets overseas. That is the issue that I think these laws 
have been trying to deal with.
    Still, you will agree with me, I think, that when the 
government listens to both ends of the communication, one in 
the United States, as it admits it has done, and probably will 
do, even if inadvertent, in the future, it does infringe on the 
privacy rights of American citizens.
    The question is whether or not that infringement is 
reasonable.
    Director McConnell. Sir, the issue for us is, you can only 
target one end of that conversation. You can't control who that 
person might talk to.
    Mr. Tierney. Exactly. So, for this purpose, the government 
has put in some selection and filtering methods.
    Director McConnell. The issue is who you target.
    Mr. Tierney. Well, the issue is not who you target; you are 
going to target foreigners overseas, but sometimes they are 
going to have communications that go through the United States. 
So the issue is, what are you intercepting.
    Director McConnell. That is correct. The old law was, if it 
touched wire here, we had to have a warrant against the foreign 
target. That was the issue.
    Mr. Tierney. Mr. Baker, who, I think you will agree with 
me, is an expert on the legislation and implementation of 
FISA--at least your general counsel, Ben Powell, said he was an 
expert in front of the Judiciary Committee----
    Director McConnell. He is an expert.
    Mr. Tierney [continuing]. He indicates to us in his 
testimony that it wasn't a situation of technology that really 
is the issue here. He says that, contrary to the history 
earlier, Congress anticipated fiberoptics and cable usage in 
overseas conversation when it did FISA back in 1978; but the 
real issue is, who is the decision-maker for authorizing what 
it should be, what level of justification should be required, 
and what standard of review should the decision-maker apply, 
how individualized authorizations to conduct surveillance 
should be, and what role judges should play in this process.
    He testified that in many situations over the years 
aggressive and well-meaning attorneys throughout the government 
pushed aggressive interpretations of the law to make sure we 
balance its reasonableness.
    The government has these selection and filtering methods. 
The question is whether the government's criteria for 
determining selectors and filters result in methods that are 
likely to assure that communications being intercepted are to 
and from non-U.S. persons overseas and whether those 
communications contain foreign intelligence.
    Now, even that is backing off of the requirement that it--
if you are a foreign agent or an agent of a foreign power, it 
broadens it out. But assuming we are going that far on that, it 
is probably more important that we have adequate protection.
    Is there any reason why that determination of 
reasonableness, whether or not those filtering methods are 
reasonable, shouldn't be left to a court as opposed to you, 
sir, as the DNI, and the Attorney General?
    Director McConnell. They are under the law as signed in 
August; they are subjected accordingly.
    Mr. Tierney. After the fact, significantly after the fact. 
And then the standard is ``clearly erroneous.'' It means you 
have to give incredible deference to the administration, not 
just the usual deference.
    Is there any reason in your mind why that could not be 
subjected to judicial review at a reasonable standard?
    Director McConnell. The issue I would object to is 
submitting it to the court before we can engage in conducting 
our mission.
    Mr. Tierney. You are already engaging in your mission right 
now. So if we were going to have a law at a future date, is 
there any reason under that system the judge could not first 
determine whether or not those selection and filtering 
processes were reasonable?
    Director McConnell. I would object to having courts be 
between us, conducting the mission and giving us permission in 
the way you describe it, foreign person, foreign country.
    Where it is now, the court will review it, as you 
mentioned, after the fact of procedures, to make sure we are 
doing it right.
    Mr. Tierney. Let's have the procedures approved before they 
go into effect.
    Director McConnell. Then you get us in a situation where we 
were discussing earlier, with getting the emergency procedure.
    Mr. Tierney. But you already have a law in effect right 
now.
    Director McConnell. We have the law in effect, which 
changed the hypothetical you are setting up.
    Mr. Tierney. I am talking about going forward. You have a 
law in effect and you are collecting now.
    Director McConnell. That is right.
    Mr. Tierney. So going forward, is there any reason why a 
court couldn't review for future use whether or not your 
methods are in fact reasonable?
    Director McConnell. What we are targeting changes all the 
time. So if you put the court between us and the foreign 
targets, then that----
    Mr. Tierney. We are putting the court in a determination of 
whether or not your selection and filtering methods are 
reasonable.
    Director McConnell. Which is in the law now.
    Mr. Tierney. Whether or not your determination was clearly 
erroneous, which is an entirely new standard from matters of 
fourth amendments rights.
    Mr. Wainstein. Sir, may I make a quick point on that?
    Mr. Tierney. Only if I could get the Director's answer on 
that first.
    Director McConnell. Sir, what we tried to accomplish was 
having the court look at the procedures in a reasonable way.
    Mr. Tierney. Why did you accomplish not allowing the court 
to make a determination as to the reasonableness of those 
selections and filters?
    Director McConnell. I am not objecting to that so long as 
it's not in advance. Our world is very dynamic.
    Mr. Tierney. You have no objection to the court making the 
review as to whether or not your selection and filtering 
methods are reasonable.
    Director McConnell. Reasonable.
    Mr. Wainstein. If I could, just very briefly, the law that 
you passed requires that; but the standard, as you pointed out, 
is clearly erroneous, and you said that is a new standard. That 
standard is actually in FISA, the original FISA.
    Mr. Tierney. But not in this application, not with respect 
to whether or not you are looking at the selection and 
filtering methods. It is a significant departure downward from 
a fourth amendment requirement that warrants it be based on 
reasonableness.
    Mr. Wainstein. Sure. It is a different animal.
    Mr. Tierney. Not that much of a different animal. We are 
talking about interception of communications of people in this 
country, of U.S. citizens. So the reasonable standard there is 
no reason--as I understand the Director now saying, he has no 
objection either--that the court look at that for the purposes 
of reasonableness.
    Mr. Director, do you have any objection to the court 
actually looking afterwards at the reasonableness of the 
mitigation aspects that are put in play?
    Director McConnell. A review after the fact, no.
    Mr. Tierney. Do you have any objection to the inspector 
general auditing the performance of the government under this 
law, or whatever law might come along, so it can report to 
Congress on what has transpired under the act?
    Director McConnell. I would have to understand exactly what 
that means. There are about four levels of review now.
    Chairman Reyes. If I could interrupt, we have got three 
votes. We are going to have to recess. You are certainly 
welcome to come back.
    Mr. Tierney. One question and I will be done.
    Do you have any objection to the inspector general's office 
doing a review or reporting to Congress on the implementation 
of this law?
    Director McConnell. If it was something requested by the 
Congress as part of the Congress' duties, that is something you 
could request. I think the standard we have now established is 
sufficient because there are four levels of review.
    Mr. Tierney. The standard right now is that the executive 
will watch over the executive and report about what the 
executive is doing.
    Director McConnell. No, sir. It involves the court and it 
involves the Congress.
    Mr. Tierney. We can have a discussion, if the chairman 
wants to leave; but I can tell you, it has not in any semblance 
of satisfactory manner, in my view.
    Chairman Reyes. We have three votes. We are going to 
recess. We should be back in about 20, 25 minutes.
    The committee stands in recess.
    [Recess.]
    The Chairman. The committee will please come to order.
    And the next speaker will be Mr. Ruppersberger, who will be 
recognized for 5 minutes.
    Mr. Ruppersberger. Mr. Director, first I think that this is 
an issue that we should come together, Republicans, Democrats, 
as a country, and that is why we are having these hearings. We 
know we are rushed through, but we do need to resolve some of 
these issues.
    There is no question that everyone here is going to get the 
tools pursuant to our Constitution to be able to fight 
terrorism. But, you know, I think the big issue, the big 
dispute is the issue of oversight.
    Our forefathers created a great system of government with 
checks and balances. And we need to continue those checks and 
balances as it relates to Americans.
    That is what our men and women in the military fight for, 
for our freedom and liberty and also our Constitution.
    Now Director McConnell, I would like to ask you three 
issues: You said that you needed three components to deal with 
what we have. Number one, no individual warrant for foreign 
targets; would you agree?
    Director McConnell. Yes.
    Mr. Ruppersberger. A way to compel the private sector to 
assist surveillance.
    Director McConnell. With liability protection.
    Mr. Ruppersberger. And three, a requirement for individual 
warrants when targeting Americans.
    Director McConnell. A U.S. person, yes, sir.
    Mr. Ruppersberger. Yes. Not foreign.
    I think it is very clear in the old law and what we are 
talking about now that we don't need a warrant as it relates to 
foreigners.
    Director McConnell. A U.S. person can be a foreigner if he 
is in this country. A U.S. person and foreigner, even a 
terrorist suspect, would get that protection if he is in the 
United States.
    Mr. Ruppersberger. That is up to interpretation. We need to 
clarify these laws, and that is why we are here to write the 
laws. And right now, I think just the President's statement 
yesterday, there is no clarity.
    I happen to represent the district where NSA is located, 
and I am the chairman of the committee that oversees the NSA. 
So a lot of the people that work at NSA are my constituents. 
They need clarity. They need to go to work and know what is 
right and wrong and know what these issues are----
    Director McConnell. I fully agree.
    Mr. Ruppersberger. Now with these three components, it is 
my belief that the negotiations that we had in the Democratic 
bill, H.R. 3356, addressed all of these issues. Do you feel 
they did or did not?
    Director McConnell. No, sir, not when you extend some of 
the language to the impact, and that was our issue.
    Mr. Ruppersberger. I believe from what I have heard today 
that we are very close to resolving the issues.
    The one point is the oversight. And I can say this: This 
issue that has been used about Iraq and Americans kidnapped, 
that is a leadership, that is a command issue. We--this law 
will allow us to react at any time. And all we are doing, and I 
think people misunderstand the fact that there is so much 
volume that has to be done in these very rare circumstances, 
and the testimony that we have clearly has persuaded me that we 
in no way need to have even probable cause if there is an 
emergency situation that exists and you can act upon that and 
you need--you can act upon that.
    However, you have the 72 hours to develop, so the court 
oversees it. But the court is only overseeing process, not each 
individual case. Would you agree with that?
    Director McConnell. In the old law, we had to have probable 
cause that would stand up. In the new law, which was signed in 
August, we would not have to have now a warrant for a foreign 
person, foreign country. So that situation wouldn't arise again 
under the current law.
    Mr. Ruppersberger. And yet we have no judicial oversight. 
That is the issue. That is not the system our forefathers 
created.
    You have said that you agreed that the courts should be 
involved in reviewing procedures for surveillance that may 
involve Americans after the surveillance begins, correct?
    Director McConnell. I am sorry. I couldn't quite hear you.
    Mr. Ruppersberger. You have said that the court should be 
involved in reviewing procedures for surveillance that may 
involve Americans after the surveillance has begun.
    Director McConnell. No, sir. Not exactly. The law says, 
currently, if it involves U.S. persons, we get a warrant. So 
that is a decision up front that now--I think what you are 
describing, the law now subjects to the court review of our 
process and procedures to make sure it is consistent with the 
law. I agree with that.
    Mr. Ruppersberger. You agree with that.
    Let me get to one other thing. Wire taps.
    I used to do wire taps as an investigative prosecutor, 
always with the courts, dealt with the telecom companies.
    You can't have wire taps if you don't have their support 
and they need to work with you. And I agree that there should 
be some type of immunity as it relates to the telecom companies 
because they are really acting on behalf of the Nation as 
really an agent of the United States.
    But here is a problem that we have. To just say you want 
immunity is not enough. We want to know what we are giving 
immunity for. And unless we get the documents that we have 
asked for, I can't understand why there is a resistance to give 
us the information that we want to see from the administration, 
and if we get that, I believe that we might be able to come 
together and to put together a bill very quickly on behalf of 
our country and give our--the resources that we need to deal 
with the issue of terrorism.
    Now please address the issue of why we have not been able 
to receive this information. We cannot give blanket immunity 
until we find out what we are giving immunity for. Could you 
please answer that?
    Director McConnell. Sir, all I can say is it is not 
something I am responsible for. I made my recommendation. It is 
a subject under current dialogue between the various 
committees.
    Mr. Ruppersberger. Would you make recommendations to the 
administration to give us information so that we can make a 
decision on the immunity?
    Director McConnell. My recommendation is to give the 
Congress access to what they need for the oversight purposes.
    Mr. Ruppersberger. Would you be continue to be very strong 
in your recommendation to the President?
    Director McConnell. I am strong in that because I believe 
it.
    Mr. Ruppersberger. If we can see that, then we might be 
able to resolve this entire issue without the anxiety and the 
President going to NSA and talking about lives at risk. We all 
care about American lives, and we will do what we have to do to 
protect them.
    Thank you.
    The Chairman. Thank you.
    Ms. Schakowsky.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    Director McConnell, I am wondering, first, if you would 
provide to the committee in classified form specific instances 
of how NSA or the Intelligence Community was prevented 
altogether from collecting foreign intelligence prior to the 
passage of the PAA?
    You say those words, prevented altogether, on page 6. Mr. 
Wainstein says prevented altogether on page 5 of his testimony.
    So I would like to know how the law prevented altogether in 
which instances you were prevented from the ability to collect 
foreign intelligence.
    And I would also like to know when you present that to the 
committee in classified form, how H.R. 3356 did or did not 
correct that problem.
    So that is a request. Would you comply with that request?
    Director McConnell. Yes, ma'am.
    Mr. Wainstein. I could answer that right now if you would 
like.
    Would you like an answer to that?
    Ms. Schakowsky. I would imagine that there are specific 
instances that you would want in classified session, but if you 
want to briefly answer that.
    Mr. Wainstein. I think it is important to note that one of 
the things that is required when we have to go through the FISA 
court is we have to show probable cause that the person we want 
to target is an agent of the foreign power, and the rest of our 
signals intelligence collection, we don't have to do that. That 
is a big burden.
    Ms. Schakowsky. But I would like to know, and that is why I 
would prefer to have it in the classified form because I want 
to know the times that you were prevented from doing that.
    Mr. Wainstein. I understand. But just in the abstract, 
there are a number of instances where we cannot make that 
showing and we could not therefore do that surveillance, and 
that is one of the issues that we had with the bill.
    Ms. Schakowsky. I want to assure myself by seeing those 
instances.
    Director McConnell, we have been repeatedly told that the 
rights of U.S. persons would be protected under the new 
authorities because the NSA would minimize--you talked about 
minimization--U.S. person information.
    So will you commit that you will be able to tell us how 
frequently U.S. person information gets collected under the new 
act?
    Director McConnell. We will look at the information and see 
what can be made available. As I tried to explain in a similar 
question earlier, we may not be able to even answer the 
question, but what we can find we will provide to the 
committee.
    Ms. Schakowsky. Okay, then, and will you be able to--will 
you commit to that? You will be able to tell us how many times 
U.S. person information gets disseminated under the new act?
    Director McConnell. Yes, ma'am. That is an easier thing to 
do.
    Ms. Schakowsky. Will you be able to commit that you will be 
able to tell us how many times information gathered under the 
new act gets used to seek FISA warrants under U.S. persons?
    Director McConnell. That would be a relatively 
straightforward thing, yes.
    Ms. Schakowsky. So you may not be able to tell us how much 
U.S. person information gets collected under the new act.
    If you are unable to answer that basic question, how is 
this committee going to be able to do proper oversight to 
exercise our constitutional mandate to do that kind of 
oversight to protect the rights of Americans?
    Director McConnell. Ma'am, as I tried to explain earlier, 
it may be incidental collection. You don't--there is no human 
that is aware of it. So you wouldn't know that until you went 
into the database. That is why I was saying to answer your 
question specifically, it may not be an answer we can get. Now 
once there is some reason to look at data, then we can--we keep 
track of that--we would certainly be happy to provide it to 
you.
    Ms. Schakowsky. Okay. So there may be information about 
Americans in that database.
    I am looking at your testimony before the Judiciary 
Committee on Monday, ``I am not even sure we keep information 
in that form. It will probably take us some time to get the 
answer.''
    And then later you say, ``it might create a situation where 
it creates significantly extra effort on our part.''
    I think the protection of the privacy rights of U.S. 
persons is worth effort. I mean, if names are in a database and 
they are sitting in a database of innocent Americans, it would 
seem to me that that would be something this committee, that 
this Congress should be able to have oversight on.
    Director McConnell. Ma'am, let me try to put it in a 
context, maybe use an example, make it a little easier to 
understand. There are literally billions of transactions.
    Ms. Schakowsky. But how do you know it is incidental if you 
don't have the statistics?
    Director McConnell. In the context of foreign intelligence, 
we can't control what foreigners might say about Americans. 
Frequently, there is a reference to political figures in the 
United States or something. We may not know that is in the 
database until we have some reason to go query that portion of 
the database for foreign intelligence purpose. So it could be 
there and us not be aware of it. That is the point I am trying 
to highlight.
    Where it has been used or specifically excluded from the 
database, we probably can provide those numbers. I just don't 
know the extent of it, but I will be happy to look at it and 
see what we can provide to you.
    Ms. Schakowsky. You know, Mr. Chairman, let me just say 
that on a number of occasions, we have found that databases 
have collected private information about American citizens, and 
later on, then, well, we made a mistake; it shouldn't be there; 
we should get it out of the database.
    I would prefer to see that at the beginning of the process 
that we make sure that we protect people's rights and that that 
become a priority regardless of the effort that it may take.
    Thank you, Mr. Chairman.
    The Chairman. I thank the gentlelady. We will pursue that 
from a committee standpoint.
    Mr. Langevin.
    Mr. Langevin. Thank you, Mr. Chairman, and gentlemen, thank 
you for your testimony here today.
    I appreciate the difficult job that you have on your hands 
and all that you are trying to do to protect the American 
people.
    We are in this together, and we want to make sure, of 
course, that you have the tools that you need in order to 
protect the country. It is equally important we want to make 
sure that we are protecting the rights, the civil liberties of 
the American people. And that is what the struggle really is 
all about. What is the right balance. And I think we are all on 
the same page; we are very close on most of these issues. We 
clearly--there is a unanimous agreement here that we don't need 
a warrant for foreign-to-foreign communications, and I want to 
make that clear for those that are watching.
    I did want to get into some of the questions with respect 
to surveillance of insurgents and the example in Iraq that had 
been given.
    Correct me if I am wrong, but ``insurgent,'' by its very 
definition is to qualify as an agent of a foreign power. So 
when you are talking about, you know, justification for 
probable cause, that is your probable cause, right?
    Director McConnell. Yes, sir. It is the process of going 
through that and submitting it to the court is the issue.
    Mr. Langevin. So it is not a heavy lift to prove that that 
is a----
    Director McConnell. My point is it took time and then it 
had to satisfy a court for probable cause standard. That is 
what I was trying to highlight.
    Mr. Langevin. I want to get into the process part of this. 
One thing where we haven't drilled down into is the fact that 
the process really there is really two parts of it. There is 
the legal or management or judicial part of the process, and 
there is the technical part of the process. And clearly, either 
before the Protect America Act was passed or after, although it 
clarifies and as did the House bill that we passed, that there 
was pretty much we believe that that satisfied all of the three 
requirements that you said that you needed; and we bent over 
backwards to try to make sure that we gave you what you needed 
in terms of being able to conduct proper surveillance and at 
the same time protecting civil liberties. That House passed 
bill solved the management and the judicial part of it, but the 
reality is even the Protect America Act did nothing to change 
the technical aspects or the steps that need to happen 
physically in order to do surveillance.
    Director McConnell. It took away the requirements for 
probable cause.
    Mr. Langevin. That is a management change. That is the 
judicial change. But we talk about the delay that, even in 
surveillance, it is--there are still technical things that 
happen that take time.
    Director McConnell. No question. It is automatic.
    Mr. Langevin. So I wanted to--the Protect America Act, even 
that went only so far. I mean, there are still----
    Director McConnell. Still going to take some time, no 
question.
    Mr. Langevin. I wanted to clarify that for the American 
people for those who are watching.
    While I still have my time, Director McConnell, on 
September 17th, this committee had received a letter from--
actually, let me go into another area because I was going to--I 
don't have that much time left.
    You had made various statements, sometimes, that seem to be 
inconsistent in the whole process when we were deciding between 
the administration bill and comparing that with the--with 3356, 
the Reyes-Conyers bill.
    For example, on August 3rd, 2007, the eve of the House vote 
on H.R. 3356, you issued a statement claiming that the House 
proposal was unacceptable and that the bill would not allow you 
to carry out your responsibilities to provide wanting to 
protect the Nation.
    Yet during a recent interview with the El Paso Times, you 
noted that you never had a chance to read the bill because 
again it was so complex.
    Can you clarify which of those statements are accurate? I 
am looking at your--the statement that you had on the Web site, 
and I can read it, if you need me to.
    But can you clarify it for----
    Director McConnell. Sure. I would be happy to.
    In the final flurry, there were seven bills exchanged I 
think: four from the administration and three from the 
Congress. So what I might have been referring to was the 
situation in the Senate when what we were facing in the last 
few moments was very senior people calling me saying, do you 
agree to these points.
    What I was trying to go back to are the three philosophical 
points or fundamental issues you had highlighted earlier which 
is my point of view. I had a team of 20 or so lawyers that are 
technical experts in aspects of it. So once we had examined the 
House bill, there were portions of it that inserted ambiguity 
and you--you slipped into it a moment ago. You said foreign-to-
foreign. Many would like to say it is okay if it is foreign-to-
foreign. What I keep trying to highlight for the committee is 
you--is you can only target one thing. You have no control over 
who the person at the other end of the phone is going to call 
or who is going to call that person.
    So the language that was in 3356 inserted ambiguity and 
uncertainty. We weren't sure it would come out the way we 
needed it to come out to do what we thought to protect the 
nation.
    Mr. Langevin. Did you in fact read the House passed bill?
    Director McConnell. I personally skimmed it over. Did not 
read it in intimate detail. I said I had a team of 20 lawyers 
that know every piece of it, were examining the intended and 
unintended consequences.
    So any statement that I issued would have been a result of 
that process.
    Mr. Langevin. I just want to point out that both the House 
passed bill and the administration bill were each six pages 
long, so it is not a heavy lift to read through it thoroughly.
    Director McConnell. I understand that, sir, but let me 
highlight the definition of electronic surveillance. What we 
were attempting to do is to get foreign--``target foreign 
country'' excluded from that definition. If you don't exclude 
it, then it has consequences throughout.
    Mr. Langevin. My time has expired, but I wanted to clarify 
that clearly my opinion both then and now, that is exactly what 
the House bill did, gave you the things that you needed to do 
to exclude foreign-to-foreign, and it was not an issue.
    Director McConnell. I will be happy to go sit down and go 
through it and let you see our point of view and your point of 
view and see if we can agree on some language.
    Mr. Langevin. I hope we can do that.
    I yield back.
    The Chairman. Ms. Wilson.
    Mrs. Wilson. There has been some discussion here about 
using common sense and that, particularly in cases of 
emergency, people should use common sense and that we should 
listen to people overseas particularly in a case where someone 
has kidnapped our soldiers.
    Mr. Wainstein, is there a common sense exception to the 
requirements under FISA?
    Mr. Wainstein. No, ma'am. The requirements are pretty stark 
and clear, and there are criminal penalties if you violate 
them.
    Mrs. Wilson. So if someone said, look, this is a--this is 
an emergency with all reasonable people here, we know we have 
got to find these guys, let us go up on the number and we will 
take care of the paperwork later. Would that be a felony?
    Mr. Wainstein. It would be.
    Mrs. Wilson. Are you willing to commit a felony?
    Mr. Wainstein. No. As a public servant, I cannot violate 
the law. Though I understand the thought that it would be nice 
under those circumstances to do whatever is necessary to save 
American lives, the reality is that we can't do that.
    Mrs. Wilson. In the case where you have got an analyst 
forward who perhaps is located in Baghdad who had--thinks that 
he had something. Thinks that he had something that might be 
able to help in an emergency situation, knows it is an 
emergency situation, can he pick up the phone and call you and 
say, hey, I have got something here, it is really important, 
this is why I think that?
    Can you sign off on it if that in reality happened?
    Mr. Wainstein. It does happen. These calls go straight into 
the folks who work directly with me. They get right to me and 
get right to the Attorney General. That actually happens in a 
very short time. What happens is they have to have the 
information necessary to satisfy the probable cause standard.
    Mrs. Wilson. So they have to be able to show you that they 
have probable cause to believe that this guy in a foreign 
country is affiliated with a foreign power and so on and so 
forth, all of the requirements that are set out in the statute?
    Mr. Wainstein. Exactly. And if I played this out, if we go 
ahead and authorize emergency--grant emergency authorization to 
go ahead and go up on surveillance, and within 72 hours we are 
not able to satisfy the probable cause standard to the FISA 
court, that surveillance goes down. We lose that surveillance.
    There also are penalties in that statute to say that--there 
is a presumption that we have to notify the target that we have 
been surveilling him.
    Mrs. Wilson. Let me make sure I understand this.
    So if we move too fast, we didn't meet the probable cause 
standard for a foreign person in a foreign country, it was 
probably an insurgent, and the FISA court here in Washington 
says, ``No, you didn't meet that probable cause standard,'' we 
would actually have to go out and find the insurgent and tell 
them that we were trying to listen to them?
    Mr. Wainstein. In theory, we would. There is a presumption 
that we actually notify the target of the fact of the 
surveillance which, if you can imagine, would really compromise 
our intelligence operation.
    So it is because of that and just because we have to adhere 
to the law, we take that responsibility very seriously to make 
sure we have the sufficient evidence, no more than bare 
sufficiency, but we have sufficient evidence to satisfy 
probable cause.
    Mrs. Wilson. And the Protect America Act fixes these 
problems?
    Mr. Wainstein. Yes, for targeting people overseas it does,
    Mrs. Wilson. When was this committee first briefed on the 
particular case that we have been talking about? Do either of 
you remember?
    Director McConnell. I can get back to you. I just don't 
remember. It was actually briefed back to you by another group 
in our community, and I don't remember the exact date.
    Mrs. Wilson. Do you remember about when?
    Director McConnell. I would say probably--our people back 
here think it was May, but I will get you the specific date.
    Mrs. Wilson. I believe you are correct.
    I want to thank both of you gentlemen for your work on 
behalf of the country.
    I would ask one final question. The Attorney General is 
required to report on all electronic surveillance in the United 
States conducted under the Foreign Surveillance Intelligence 
Act as amended every 6 months to this committee.
    Will you provide that information and will you continue to 
provide that information to the committee as required by law, 
Mr. Wainstein?
    Mr. Wainstein. Yes. Absolutely. And we will also do the 
additional reporting that we have agreed to do in regard to the 
Protect America Act.
    Mrs. Wilson. Could I continue to go out to the National 
Security Agency, as I have before, and be given open access to 
all of their cases with respect to satisfying for myself that 
you are following the law?
    Mr. Wainstein. Absolutely.
    Director McConnell. Yes, ma'am.
    Mr. Wainstein. If I may, Mr. Chairman, briefly correct one 
thing.
    When I told you about the provision that says we have to 
notify the target if we go up on emergency authorization and 
don't end up getting court authorization, that request is 
limited to U.S. persons.
    So let us say we have a U.S. person who is an agent of a 
foreign power and we go up on that person overseas, we would 
have to notify him. I think because the hypothetical you 
posited was an insurgent, in the case it is not a U.S. person 
insurgent, we wouldn't have to.
    Mrs. Wilson. But if it was a U.S. person overseas that we 
were tracking and we went up too quickly.
    Mr. Wainstein. Yes. We would have to, and not only does 
that have practical consequences but it reflects the 
seriousness with which Congress and the court takes our 
assessment of the evidence of the front end to make sure there 
is probable cause.
    Mrs. Wilson. Thank you very much, Mr. Chairman.
    The Chairman. Thank you for clarifying that up because I 
was going to ask you that very same question.
    Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman.
    Mr. Director, you said that emergency provisions under FISA 
still have to meet a probable cause standard.
    Director McConnell. Earlier but not now.
    Mr. Holt. So what standard do they have to meet? Is it the 
hunch of a political appointee? Is it the firm belief of a 
dedicated professional in the middle of the administrative 
change? I mean, who has the responsibility?
    Director McConnell. For determining----
    Mr. Holt. If it is not a probable cause standard, what 
standard is it, and who applies that standard?
    Director McConnell. For a foreign target in a foreign 
country, is that the question?
    Mr. Holt. The standard that justifies intercepting and 
storing and maybe in the future analyzing a communication.
    Director McConnell. For a foreign target in a foreign 
country----
    Mr. Holt. For any of that who is determining whether it is 
a foreign target to determining whether there is someone whose 
conversation should be intercepted.
    Director McConnell. Since our mission is foreign 
intelligence, the standard would be enforced by the analyst 
working the problem against a foreign target in a foreign 
country.
    Mr. Holt. And if this person who is responsible for it 
knows that there is no judicial oversight, not in 72 hours, not 
ever, do you think this person will make the decision 
differently under this law than the person would have made it 
under, say, FISA?
    Director McConnell. No. I don't think so.
    Mr. Holt. So the FISA law would have been just fine because 
operationally the person wouldn't make the decision any 
differently under this law. I believe that is what I just heard 
you say.
    Director McConnell. That is not correct, sir. I would like 
to respond to that.
    The issue we are discussing is, do you have to have 
probable cause submitted for an approval process for a court on 
a foreign person in a foreign country. That is what we are 
trying to highlight here. It is not the way you framed it.
    Mr. Holt. What I was asking was, who makes the decision and 
who overseas that decision? Who provides protection against the 
kind of thing that we see in oppressive governments around the 
world, a knock on the door in the middle of the night, somebody 
barges in and searching the place? Now we are talking about 
figuratively, an electronic search, maybe not a physical 
search, although maybe we are talking about that in this 
legislation.
    The question is, who provides the kind of check and balance 
that Americans expect that will protect them against having 
their lives ruined by an overzealous government who is trying 
to protect the safety and security of the people?
    Director McConnell. Three levels of protection----
    Mr. Holt. Or would protect them from a government who would 
have an enemies list which you might say that it never happens 
here, but it has.
    So the question is, who provides what standard, and you 
just said, I thought, that operationally the person would make 
the--the person who does make the decision that it is okay to 
tap this phone or to intercept that communication would not 
make a decision any differently if the court were not looking 
over his shoulder if they were not required to have a warrant 
either now or maybe 72 hours later.
    Director McConnell. Three levels of protection. First of 
all, the initial judgment would be made the same way it has 
been made for almost 30 years. That is--that is the 
professional that is doing the mission. It would be then 
reviewed internal to that organization. It would be reviewed by 
the Department of Justice, and as passed in the law last month, 
the procedures for doing that would be reviewed by the court.
    The last level of oversight is this body, this committee. 
You can walk at any time out to NSA, look at anything you want 
to----
    Mr. Holt. But you just said you can't give us that 
information. You said to Ms. Schakowsky, you said you don't 
even really know whether--who we have intercepted.
    Director McConnell. I said it might not be knowable. We can 
look at it and see if it is a knowable answer.
    Mr. Holt. So that is not much reassurance to us so we have 
to exert that oversight that no one else along the way is 
exerting except a well-meaning political appointee, or maybe 
not so well-meaning political appointee, or well-meaning but 
perhaps mistaken bureaucrat. These people are trying to do 
their jobs. They are trying to protect us. But we have to give 
them the guidance.
    Now one of the things that concerns us is that, you know, 
the Intelligence Community, you are particularly, more than 
anyone else in the United States, supposed to speak truth to 
power. And that means you have to keep a certain distance from 
that power to whom you have to speak the truth. And that is why 
it concerns me that when you talked about the lawyers who were 
working to prepare this legislation back in August, when you 
made the--some of the statements that you made, they clearly 
seem to be influenced by lawyers in power in the White House, 
in the Vice President's Office. And that is troubling, 
actually.
    You, of course, are a Presidential appointee, but it is 
critically important that you keep a professional distance. 
That is why I asked these questions earlier today that I am 
afraid you might have thought were insulting. But your 
credibility as an independent person is so important to our 
safety and security, so important to our rights as humans.
    So, I mean, can you say that during those hours when this 
legislation was not--was being written that your team of 
lawyers was not consulting with, say, Mr. Addington and his 
team of lawyers?
    Director McConnell. I would say it was not influenced by a 
political process. I spoke truth to power. There is a team of 
lawyers that worked this starting last year and a team worked 
it throughout the past year and up to including the period of 
time that we had the bill passed in August.
    Mr. Holt. How much consultation was there between your 
lawyers and the Vice President's lawyers?
    Director McConnell. With the Vice President's lawyers, 
there was extensive consultation with the lawyers working the 
problem. I don't know who was working the problem in the Vice 
President's Office.
    Mr. Holt. Forgive me if this seems insulting, but you have 
to take a step back about what it means to be able to speak 
truth to power and to have an independence in what we say that 
is permissible to do with Americans' lives.
    Director McConnell. I did.
    The Chairman. Thank you, Mr. Holt.
    Mr. Tiahrt. First round.
    Mr. Tiahrt. Thank you, Mr. Chairman.
    This year, in a bipartisan fashion, we passed the Protect 
America Act. It passed the House. It passed the Senate, signed 
into law by the President.
    Would you--what would the impact on the intelligence 
collection be if the Protect America Act were not renewed?
    Director McConnell. We had lost half to two-thirds of our 
capabilities, specifically targeting terrorist groups because 
of the, not the court, but the language of the law that the 
court had to interpret, and within a few days after passing the 
act, we were brought back up in full coverage.
    Mr. Tiahrt. So the Protect America Act has helped enhance 
the speed and agility of the Intelligence Community?
    Director McConnell. Significantly, yes, sir.
    Mr. Tiahrt. Okay. That is good news.
    Now we heard privacy advocates outside and inside the 
committee that have argued that the minimization processes are 
inadequate to protect Americans' privacy interests. They take 
issue with the fact that the government may still capture and 
screen incidental communications as we just heard and even if 
no use is ultimately made of the contents of those 
communications.
    Do you feel that the procedures adequately limit the 
government's intrusion into the protected communications of 
America?
    Director McConnell. Sir, I do, because intrusion would be a 
violation of law. So the minimization procedures have been in 
effect for almost 30 years. They work and work well. I had the 
pleasure and the privilege of serving as the director of NSA, 
so there is a whole training, oversight recertification program 
about how you would do that. And so it has worked well. It has 
been subject to the court and reviewed by the court and 
endorsed by the court. So it has worked for almost 30 years.
    Mr. Tiahrt. Is there a practical alternative to what you 
are doing now?
    Director McConnell. No, sir. There isn't. That is one of 
the reasons that we failed to communicate on one of these 
issues. Often someone would say, well, it is okay to do 
foreign-to-foreign, and what I keep attempting to highlight you 
can only target one end of the conversation. You can't control 
who that person at the other end might call. An overwhelming 
majority, I don't know the number, but it is almost always--it 
would be a foreign-to-foreign communication but can't guarantee 
it is.
    So if you make it a condition in the law that you have to 
guarantee it ahead of time, it effectively shuts down your 
operation. So in the condition that a foreigner called in and 
there is incidental collection, then it would be minimized. If 
it is nothing of harm to the Nation, it would be minimized. If 
it was potential harm to the Nation, that might be our most 
important call, then we would take appropriate action.
    Mr. Tiahrt. If a terrorist is being monitored 
internationally outside of the United States and somebody from 
the United States calls into that terrorist's phone number and 
there is, in the mind of the agent, a probable cause to 
investigate that contact, what is the--for that citizen inside 
America that has made the phone call, is that handled by your 
agency, or do you turn that over to the FBI to develop probable 
cause and complete the investigation?
    Director McConnell. On the way you have described it, the 
target for my community would be the foreign person, foreign 
country.
    Once that call is made, as it was in the 9/11 situation, it 
would--subsequently reported on 9/11 and joint commission of 
Congress--that call was made, then Intelligence Community would 
realize U.S. person calling a terrorist, depends on the 
contents of the conversation.
    If it turns out it is a terrorist operation planning 
whatever, refer to the FBI. The FBI would get a warrant against 
the U.S. person, the person located in the United States and 
then do their normal surveillance mission.
    Mr. Tiahrt. So they would carry out the requirements of the 
Fourth Amendment of the Constitution as far as probable cause?
    Director McConnell. Yes, sir. Under a warrant subjected to 
court review.
    Mr. Tiahrt. The committee received testimony earlier this 
week that the FISA court should have to make probable cause 
findings to protect every person who might potentially 
communicate with the target and not just the target itself.
    In other words, an incidental contact, that probable cause 
would have to be achieved. What is your reaction to that 
proposal?
    Director McConnell. Effectively, sir, it shuts down our 
operation because it creates a condition we couldn't satisfy in 
the eyes of the law. So that is why we are arguing for 
exclusion of where is the target and the target overseas, and 
as I mentioned earlier, what we were--what we were caught in, 
in the old wording and the old law, is because of where you 
intercepted it in this country, this is what caused the 
problem. If it had been intercepted in the foreign country in a 
different mode, wireless, it wouldn't be a question.
    Mr. Tiahrt. So a majority of the contacts of communications 
of the target--let me put it this way. Does foreign target 
communications mainly deal with foreigners and their contacts?
    Director McConnell. Almost always.
    Mr. Tiahrt. Almost seldom that it isn't?
    Director McConnell. It is a very tiny fraction of the 
percent.
    Mr. Tiahrt. And when it does occur and there is probable 
cause, it is turned over to the FBI.
    Director McConnell. And if it were incidental, meaning they 
call a pizza shop, that is of no intelligence value, you take 
it out of the database.
    Mr. Wainstein. If I could add to that very briefly.
    In the argument that you have heard occasionally, when 
somebody we are surveilling appropriate under this statute 
called somebody in the United States, that should then trigger 
a requirement for the government to get some kind of court 
process against someone in the United States.
    While that sort of has some gut level appeal when you first 
look at it, you have got to recognize that that is not the 
requirement in any of the regimes.
    For instance, on the criminal side, title three warrants. 
You get a title three warrant against one person, that has 
the--that gives you court authority to surveil that person. 
That person talks to somebody else, another American, we don't 
have to go back to court to get approval to listen to that 
person's communications. So that is the way it is on the 
criminal side and on the foreign intelligence side. And as the 
director said, that is the only workable way to deal with it. 
We just deal with it with minimization instead.
    Director McConnell. If you make that other person your 
target now, you are going to listen to him intentionally, that 
becomes subject to a warrant.
    Mr. Tiahrt. For the record, I would like to say that I 
think it is important that your lawyers communicate with those 
in the--other parts of the administration, and we should not 
limit free speech when we are developing policy or looking at 
how we apply current law. So to limit context in free speech in 
order to make us move forward in this process, I would be 
opposed to that limits on free speech. I think you should be in 
contact with other areas of the government and we shouldn't 
restrict it.
    Thank you for your testimony.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Mr. Tiahrt.
    Mr. Tierney.
    Mr. Tierney. I am glad you made that last caveat. Because 
if we have significant interception on a U.S. citizen or person 
in the United States, then, of course, you would need a 
warrant. And I think we should all understand that.
    Director McConnell. If they are the target.
    Mr. Tierney. It is determining when that cross-over point 
is.
    You also at one point in earlier testimony said that there 
were perhaps billions of data or records, transactions, being 
done. So when you talk about a small percentage, it is a small 
percentage of those billions that might sort of scoop in----
    Director McConnell. When I was talking about billions of 
transactions, we would have some subset of that; and when you 
work it down, it turns out to be a pretty small number.
    Mr. Tierney. So a small percentage of the billions in the 
subset, it still could be a substantial number. That is the 
problem.
    Earlier this week, we got a letter from Mr. Alex Joel. I 
understand he is your civil liberties protection officer in 
your office; is that correct?
    Director McConnell. That is correct, and I think he is with 
us.
    Mr. Tierney. It lays out the civil liberty and privacy 
protections that he believes his office is charged with 
overseeing in the implementation of the new Act.
    I indicated earlier that one of my problems is I don't 
think it ought to be the DNI's office overseeing the DNI. But 
set that aside for a second. Mr. Joel's letter states, among 
other things, that although he doesn't read the PAA to require 
it, the NSA is still using the minimization procedures that 
were previously reviewed and approved by the FISA Court. Does 
that strike you as accurate?
    Director McConnell. Let us ask Mr. Joel.
    Mr. Tierney. He works for you, so I am asking you. Or you 
didn't know this.
    Director McConnell. Restate the question.
    Mr. Tierney. He says the NSA is using minimization 
procedures previously reviewed and approved by the FISA Court. 
Even though he doesn't read the PAA as requiring it, that is 
what is being done.
    Director McConnell. That is my understanding of what is 
being done.
    The reason for that, sir, is the Court set the standard, 
and it has been tested in Court. It is a reasonable standard, 
and it is good for us to follow it.
    Mr. Tierney. Did that in any way impede the process of 
implementing any of the new authorities into the PAA?
    Director McConnell. Not to my knowledge.
    Mr. Tierney. Do you have an objection to requiring the FISA 
Court to review minimization procedures in any future FISA 
legislation?
    Director McConnell. Sir, I would be happy to take any 
recommendations, suggestions you have got. Remember, I tried to 
highlight several times, it is very complex. You want to keep 
asking me hypotheticals. Let us write it down----
    Mr. Tierney. That is my point. My point is that----
    Director McConnell. I would be happy to look at anything 
you suggest, sir.
    Mr. Tierney. This is something that your office is 
suggesting because they are the ones that are doing it. Mr. 
Joel has made the suggestion that he is carrying out the fact 
that he is following those previous FISA procedures and you 
said that didn't in any way impede the operation under the new 
PAA. So I assume that you have no objection to that being 
written into the law. That that is what----
    Director McConnell. I have no objection to any 
recommendation that you want to make. I would be happy to 
examine it.
    Mr. Tierney. Are you opposed then to the FISA Court having 
authority written into the law to do exactly what Mr. Joel is 
now doing on his own?
    Director McConnell. I would be happy to take the language 
and examine it, sir.
    The point I keep trying to highlight----
    Mr. Tierney. Do you have objection to what Mr. Joel is 
doing, to what he is doing now?
    Director McConnell. I have no objection to what he is doing 
now.
    What I am trying to make sure everybody understands is we 
can't get ourselves in the situation where we were before where 
we are forced under a time constraint. You had a time 
constraint. I did not and----
    Mr. Tierney. We have disagreement on how that time 
constraint came to be, and I----
    Director McConnell. It was your schedule, not mine.
    Mr. Tierney. It wasn't anybody's schedule. It was a 
political schedule. It is a very strong point of view, and I 
think everybody realizes it now.
    The fact of the matter is we are trying to find a way to 
get to a law----
    Director McConnell. We would be happy to look at----
    Mr. Tierney. And apparently you now have no objection to 
the Court looking at those procedures for minimization and 
approving them.
    The letter also notes that the NSA Inspector General is 
conducting an audit of the implementation of the new Act and 
that the Inspector General regularly conducts audits, 
inspections and reviews of compliance of minimization 
procedures. Why was that decision made that the NSA IG would 
conduct an audit in the implementation of the new Act? Do you 
know?
    Director McConnell. It has been part of the process since 
the beginning, to my knowledge.
    Mr. Tierney. So I can assume you would not object to a 
requiring in the statute that the Inspector General makes those 
reviews and makes those audits in the future with respect to 
any civil liberties inspections. Just put into law what you are 
already doing.
    Director McConnell. Sir, I have no objection to anything 
you want to recommend.
    Mr. Tierney. I am not trying to recommend. I am talking 
about do you have an objection to writing into law----
    Director McConnell. I would be happy to consider it.
    Mr. Tierney. The function that Mr. Joel says is now 
happening, the Inspector General doing audits?
    Director McConnell. I would say again, let us write it down 
and let us examine.
    Mr. Tierney. Do you have an objection to the Inspector 
General conducting audits?
    Director McConnell. I do not have an objection to the 
Inspector General conducting audits at the NSA. They have when 
I was there, and they are still there. I have no objection to 
that.
    Mr. Tierney. Fine. That was very easy to get to. We didn't 
have to write it down.
    Now, earlier, you talked about there being a large data 
base and so making it improbable or difficult, sometimes almost 
impossible, to determine the number of times that United States 
persons' communications were inadvertently intercepted when you 
were going after a target in a foreign country.
    Director McConnell. That is not exactly what I said.
    I said we have no control over what foreign targets would 
talk about. Remember it is to, from, or about. So if a 
foreigner is talking about you and it is in the database, I may 
not know that. I may--could find it if I had a reason to go 
search for it. The database would age off in a period of time. 
No harm, no foul.
    Mr. Tierney. But when somebody asks you for the number of 
times when a U.S. person or a person in the United States was 
involved in that situation, I think you said that there was 
some degree of difficulty in getting that done.
    Director McConnell. I don't know how difficult, but we will 
look at it and see if we can answer your questions.
    Mr. Tierney. Would it be reasonable to have a sampling 
done?
    Director McConnell. If we can give you the total, complete 
answer, we will. I don't know that we can. But we will take the 
question and see what is doable.
    Mr. Tierney. Thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Ruppersberger.
    Mr. Ruppersberger. We have had two hearings with you. I 
would like to review where I think we are.
    To begin with, I think it is clear that we all agree that 
wiretapping foreigners to obtain critical information to 
protect our country is allowed under the Constitution. I think 
we all agree to that. Do we agree to that?
    Director McConnell. Foreign--say it again, sir.
    Mr. Ruppersberger. Wiretapping foreigners to obtain 
critical information----
    Director McConnell. What we can't allow, though, is when 
the wording in the bill would cause that to be in question or 
could be interpreted different ways.
    Mr. Ruppersberger. That is what we are looking for, is 
clarity.
    And the one area I would get into, though, is I have heard 
this, and I want to clarify this, too. Why are you opposed to 
having court review procedures--this is procedures, not the 
individual cases--after surveillance has begun. That is a 
concern of mine. Not when there is an emergency situation.
    Director McConnell. That is what we agreed to. That is in 
the law.
    Mr. Ruppersberger. I think we are getting very close here. 
You know, these hearings, sometimes you wonder what you have 
accomplished. I think after these hearings we should be able to 
come together and resolve this issue.
    I think the biggest area that we have is that we must have 
judicial oversight. Our country is a system of--we have a 
system of laws; and when in fact the checks and balances go the 
other way, we have problems, no matter who is present. And I 
think that what we object to is that there is not the 
independent judicial review, but we also understand that war 
against terror is a different war than we had years ago, and 
that is why we are attempting to resolve this.
    I think we have agreed on most of the issues, other than 
the judicial oversight.
    Now let me ask you this also, this question. The 
minimization issue. When in fact you have an American, where do 
you think the problem is that you see between certain members' 
point of view here and your point of view on minimization?
    Mr. Wainstein.
    Mr. Wainstein. I am not sure exactly which members you are 
referring to, but I think some of us have voiced some concern 
that minimization isn't sufficient, that we need to get some 
kind of court approval before we listen in on communications 
appropriately intercepted against the person overseas but that 
are sent in to somebody in the United States.
    Mr. Ruppersberger. What I understand from what I am hearing 
and what my concern would be on the issue of minimization is 
that when a court--what a court does, as far as the oversight, 
that minimization takes the place of that. I think that is 
something that we can work out.
    Director McConnell. Frequently, what people slip into is 
everybody is in agreement a foreign-to-foreign communication 
shouldn't be an issue. But if you make that a pre-condition, 
what we keep attempting to highlight is you can't determine 
that ahead of time. So if you make a pre-condition in the law, 
you have effectively shut us down.
    Mr. Ruppersberger. From what I understand and what we are 
talking about today and you said that what would happen if a 
FISA bill didn't go forward, and I think we need to clarify 
that, too. We are not talking about not having a bill. We are 
so close on what we have negotiated, and you know that, and I 
know that.
    Director McConnell. All I am looking for is keeping the 
minimization process intact.
    Mr. Ruppersberger. If we didn't have a FISA bill, that we 
would be put at risk, we are not talking about that. Neither 
side is. What we are talking about in the one issue is that we 
need to have a judicial review. But we understand there are 
emergency situations when America is at risk when somebody is 
contacted; and that has to do, I think, more with operations 
and giving people the resources. If we need to hire more judges 
and hire more people in CIA, NSA to do this, we will do what we 
have to do.
    Director McConnell. And we now have judicial review. That 
process that Mr. Holt was making reference to about our 
dialogue and who we talk to, that is how the judicial review 
was proposed, agreed to and put in the bill.
    Mr. Ruppersberger. What the law basically says today, the 
law that was passed that we have to look at, is that, 
basically, under the circumstances, I don't think that you want 
this or we want this, is that our government has a right to 
basically have the search and seizure of an American without a 
court order and without the Constitution being involved. We 
fight for liberties and freedom, and part of that----
    Director McConnell. I agree with that a hundred percent.
    Mr. Ruppersberger. So, bottom line, if you agree with that, 
then I am not sure where our arguments are, but we are only 
asking for the court to come in and review the process.
    Director McConnell. And that is where we are----
    Mr. Ruppersberger. Not even individual--that is not what it 
says in this law. This says that our government can have a 
search and seizure of American citizens.
    Director McConnell. No, sir. It doesn't say that at all.
    Mr. Ruppersberger. I disagree with that interpretation. 
But, if it does, then we don't have clarity, and we have to fix 
it, and that is our job as Members of Congress.
    Mr. Wainstein. If I may briefly respond to that. Just keep 
in mind, as the Director said, when we target surveillance on a 
person, a person overseas, we target against that person. If 
that person calls in the United States, we subject any of the 
information we get of the U.S. person to minimization. That is 
actually the only practical option.
    And, in fact, that is what we do in the criminal side, too. 
As a prosecutor, I get a court authorization to do a title 
three wiretap against defendant A, he might talk to a thousand 
people. We don't go get court process for every one of those 
thousand people.
    So as long as we have it against the target, we are allowed 
to collect and minimize that person's communications with 
everybody else. That is the only way this works, because 
otherwise----
    Mr. Ruppersberger. It is not that it works. We are talking 
about what the law says and what you can do, and it is not 
about who you are, you are, we are gone, somebody else comes 
in. We need to clarify it.
    When the President comes to the district I represent and 
says that we need to go further than we are now, when we know--
when I feel that we will be able to give you what you need to 
protect our country, that is where we are.
    But our Constitution is what we fight for in Iraq and in 
World War II and the Korean war, the Vietnam war, and we have 
to keep focused on that. Those is our jobs.
    Thank you.
    The Chairman. Thank you.
    The Director and Mr. Wainstein, I am told, have another 
hearing on the Senate side.
    So Mr. Tiahrt will be the last person to have an 
opportunity to ask questions for 5 minutes.
    Mr. Tiahrt.
    Mr. Tiahrt. Thank you, and God forbid we should hold up the 
Senate.
    Director McConnell. Go ahead, sir. It is going to be an 
interesting hearing over there, too.
    Mr. Tiahrt. I read the law before we voted on it, and I 
failed to see anywhere where we allowed the search and seizure 
of American information or any of their communications without 
having some kind of a--without having the methods that you use 
currently. And the Protect America Act provided for the update 
from the 1970s law, FISA, to allow us to move into the 
electronic age, basically.
    Director McConnell. That is correct.
    Mr. Tiahrt. And so now I think we are taking--it sounds to 
me from what we have had in our discussions this morning that 
we are taking scenarios that may or may not exist and hoping to 
write some laws to involve more lawyers and judges in the 
process. And, so far, I haven't found any evidence or heard of 
any incidents where you have violated the constitutional rights 
of American citizens. So I guess maybe we are extending beyond 
that and that we are looking at foreign citizens having the 
same constitutional rights that Americans have.
    And I think most Americans would say that those who intend 
to destroy this country should not have the same rights that we 
have fought for and paid for in blood, and it is embodied in 
our Constitution.
    If you follow your procedures and we are satisfied with 
your procedures, would you see a need for Congress to write a 
law for every procedure that you have that you are currently 
following? Is there a need for that that you see?
    Director McConnell. No, sir. And in my opinion, no, and my 
worry is what might be captured to have unintended 
consequences. Right now, the negotiation we had in July and 
early August, the Court does now review all of those 
procedures.
    So I am satisfied that, based on our lessons learned from 
1978 to the current time frame, tried and tested, our 
minimization process and so on, I am satisfied that it works to 
protect American civil liberties, and it allows us to do our 
mission of overseas intelligence against foreigners.
    And the reason I hesitate to agree to any specific point is 
it could cause us to not be flexible and capable in our 
overseas mission if we don't say it just right. And what is in 
the law today works well, and I am very hesitant to agree to 
any changes to that.
    Mr. Tiahrt. We are abiding by the Constitution with our 
Protect America Act, and we have judicial overview of 
minimization and of contacts with Americans, if they are 
contacted in the process of accumulating data.
    Director McConnell. And we have reports to this body every 
6 months and, as you need to, you are welcome to look at any 
aspect or any part of it.
    Mr. Tiahrt. Is it fair to say that today's proceedings are 
congressional oversight, or do you think we are avoiding our 
responsibility of congressional oversight?
    Director McConnell. No, sir. I don't think you are avoiding 
your responsibility. I would just like to get more of the 
Members to sit down and look at the data and have a feel for 
it, have an opportunity to meet the people that actually do 
this and their professionalism or commitment to also protecting 
civil liberties. They are very, very serious about it, so it 
gives you an opportunity to get some confidence in the process.
    Mr. Tiahrt. I would like you to pass along to all of those 
you are responsible for working here in the government for, 
thank you for the last 6 years of safety. No attack on our 
homeland. And I know there has been many, many attempts. And I 
am glad that we were able to update the law to move ourselves 
as a country into the electronic age instead of trying to 
proceed into the old law that was written; and I, too, am very 
hesitant to inject more lawyers and judicial process into the 
system which appears to only slow things down and makes us, in 
essence, less safe.
    I mean, because of leaks, we have not been able to collect 
phone data as we have in the past before the Protect America 
Act. Now I think we have improved that significantly. We 
haven't been able to contact and follow emails as we did 
because of leaks in the past. We haven't been able to follow 
financial transactions because our allies do not cooperate back 
to leaks that occurred here in this country. All of those leaks 
I believe were intended to embarrass this Presidency, and all 
of them have made it more difficult for you to do your job to 
keep this country safe.
    So, in spite of all of that difficulty in overcoming all of 
those obstacles, I want to thank you and the people that work 
for you for keeping this country safe for the last 6 months.
    I yield back.
    The Chairman. Thank you, Mr. Tiahrt.
    And let me add my thanks for the work that you, Director 
McConnell and Mr. Wainstein, do for our great country. As 
evidenced today in our hearing, there are a variety of 
opinions, different concerns.
    One thing that we want to do is work together to give the 
tools necessary to those that are in charge of keeping us safe.
    So, gentlemen, thank you for being here. We appreciate your 
service to our Nation.
    [The information follows:]
    The Chairman. The hearing is adjourned.
    [Whereupon, at 12:30 p.m., the committee was adjourned.]

                                  
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