[Senate Hearing 110-882]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-882
 
  FISA AMENDMENTS: HOW TO PROTECT AMERICANS' SECURITY AND PRIVACY AND 
         PRESERVE THE RULE OF LAW AND GOVERNMENT ACCOUNTABILITY

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 31, 2007

                               __________

                          Serial No. J-110-59

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   114
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   126
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Black, Edward, President & CEO, Computer & Communications 
  Industry Association, Washington, D.C..........................    45
Halperin, Morton H., Director of U.S. Advocacy, Open Society 
  Institute, Washington, D.C.....................................    49
Philbin, Patrick F., Partner, Kirkland & Ellis, Washington, D.C..    47
Wainstein, Kenneth L., Assistant Attorney General, National 
  Security Division, U.S. Department of Justice..................     6

                         QUESTIONS AND ANSWERS

Responses of Edward Black to questions submitted by Senator 
  Brownback......................................................    56
Responses of Morton Halperin to questions submitted by Senator 
  Brownback......................................................    59
Responses of Patrick Philbin to questions submitted by Senator 
  Brownback......................................................    65
Responses of Kenneth Wainstein to questions submitted by Senators 
  Leahy, Feingold, Kennedy, and Kyl..............................    69

                       SUBMISSIONS FOR THE RECORD

American Library Association and the Association of Research 
  Libraries, Washington, D.C., letter............................    91
Black, Edward, President & CEO, Computer & Communications 
  Industry Association, Washington, D.C., statement..............    94
Burgess, Ronald L., Jr., Lieutenant General, Office of the 
  Director, National Intelligence, Washington, D.C., letter......   104
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut, statement and letter..............................   108
Department of Justice, John D. Ashcroft, Jack Goldsmith, James B. 
  Comey and Patrick F. Philbin, Washington, D.C., letter.........   112
Halperin, Morton H., Director of U.S. Advocacy, Open Society 
  Institute, Washington, D.C., statement.........................   115
Philbin, Patrick F., Partner, Kirkland & Ellis, Washington, D.C., 
  statement......................................................   128
Sorrell, William H., Vermont Attorney General, G. Steven Rowe, 
  Maine Attorney General, Richard Bluenthal, Connecticut Attorney 
  General, Anne Milgram, New Jersey Attorney General, and Robert 
  M. Clayton, III, Commissioner, Missouri Public Service 
  Commission, letter.............................................   139
Wainstein, Kenneth L., Assistant Attorney General, National 
  Security Division, U.S. Department of Justice, statement.......   143
Wall Street Journal, Benjamin Civiletti, Dick Thornburgh and 
  William Webster, October 31, 2007, article.....................   164


  FISA AMENDMENTS: HOW TO PROTECT AMERICANS' SECURITY AND PRIVACY AND 
         PRESERVE THE RULE OF LAW AND GOVERNMENT ACCOUNTABILITY

                              ----------                              


                      WEDNESDAY, OCTOBER 31, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Feinstein, Feingold, Durbin, Cardin, 
Whitehouse, Specter, Hatch, Kyl, Sessions, Graham, Cornyn, 
Brownback, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. The Foreign Intelligence Surveillance Act, 
or FISA, is intended to protect both our national security, 
but, also, the privacy and civil liberties of Americans.
    Changes to that law have to be considered carefully and 
openly. They can't be eviscerated in secret administration 
interpretations or compromise through either fear or 
intimidation.
    The so-called ``Protect America Act,'' passed just before 
the summer recess, was an example of the worst way possible to 
amend FISA. It was hurriedly passed under intense partisan 
pressure from the administration and provides sweeping new 
powers to the government to engage in surveillance without 
warrants of international calls to and from the United States 
involving Americans.
    It provided no meaningful protection for the privacy and 
civil liberties of the Americans who are on those calls.
    Now, this Act will expire next year. So this is the 
committee's second hearing to inform our consideration of 
possible legislation to take the place of that flawed Act.
    Of course, we have to accommodate legitimate national 
security concerns and the need for flexibility and surveillance 
of overseas targets, but Congress should do that in a way that 
protects the civil liberties of Americans.
    I commend the House committee and I commend the Senate 
Select Committee on Intelligence for seeking to incorporate the 
better ideas from our work this summer into the current 
legislative proposals.
    The House of Representatives is considering the RESTORE 
Act, which appears to take a fair and balanced approach, 
allowing flexibility for the intelligence community, while 
providing oversight and protection for Americans' privacy.
    The Senate Select Committee on Intelligence has also 
reported a bill that makes improvements to the current 
temporary law. Increasing the role of the FISA Court and 
oversight by the Inspector General and the Congress are matters 
we should have incorporated this summer.
    At the outset, I should acknowledge the grave concern I 
have with one aspect of S. 2248. It seems to grant immunity or, 
as Senator Dodd called it, ``amnesty'', for telecommunications 
carriers for warrantless surveillance activities from 2001 
through this summer. Those seem to be, on the face of them, at 
least, contrary to FISA and in violation of the privacy rights 
of Americans.
    Before even considering such a proposal, as we said at the 
Mukasey hearing, a matter that will be before our committee, I 
think, next Tuesday, Senator Specter and I have always been 
clear with the administration that we would need the legal 
justifications, authorizations and other documents to show the 
basis for the action of the government and the carriers.
    And since the existence of the President's secret 
wiretapping program became public in December 2005, this 
committee sought to have relevant information through oral and 
written requests and by conducting oversight hearings.
    After our repeated requests did not yield information the 
committee requested, we authorized and issued subpoenas for 
documents related to the legal justification for the 
President's program.
    Finally, this week, the administration, belatedly, 
responded. Senators on the committee and designated staff have 
begun to receive access to legal opinions and documents 
concerning authorization and reauthorization of the program. 
It's a significant step and it was long overdue.
    I insisted that all members of the committee have access, 
Republicans and Democrats alike, and that was agreed to in a 
meeting yesterday, and I am considering carefully what we're 
learning from these materials. The Congress should be careful 
not to provide an incentive for future unlawful corporate 
activity by giving the impression that corporations violate the 
law and disregard the rights of Americans. They'll be given an 
after-the-fact free pass.
    If Americans' privacy is to mean anything and if the rule 
of law is to be respected, I think that would be a wrong 
result. A retroactive grant of immunity, or amnesty, or 
preemption of State regulators does more than let the carriers 
off the hook.
    Immunity is designed to shield this administration from any 
accountability for conducting surveillance outside the law. It 
would make it impossible for Americans whose privacy has been 
violated illegally to seek meaningful redress.
    Lawsuits would be dismissed as a result of such a grant of 
immunity, and perhaps as the only avenue that exists for an 
outside review of the government's program and honest 
assessment of its legal arguments, especially as the Congress 
has, for years, been stonewalled on this program. That kind of 
assessment is critical if our government is to be held 
accountable.
    One of my chief inquiries before deciding to support any 
legislation on the subject is whether it's going to bring about 
government accountability. Anyone who proposes letting the 
telecommunications carriers off the hook or preempting State 
authorities or giving the type of immunity or amnesty has a 
responsibility to propose a manner to test the legality of the 
government's program and decide whether it did harm to the 
rights of Americans.
    Safeguarding the new powers we are giving to our government 
is far more than just an academic exercise. FISA law itself is 
a testament to the fact that unchecked government power leads 
to abuse.
    The FISA was enacted in the wake of earlier scandals, when 
the rights and privacy of Americans were trampled because 
nobody was watching.
    We in the Senate, and this committee especially, have a 
solemn responsibility to 300 million of our fellow citizens 
because the American people's rights and freedom and privacy 
can be easily lost, but once lost, they're very difficult to 
win back.
    So I look forward to the testimony of our witnesses. I 
appreciate them being here.
    I will yield to Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman. I am glad to see 
that we have come a long way in the last 18 months since 
legislation was introduced in mid-2006 to bring the terrorist 
surveillance program under the FISA court, and we have some 
very important considerations to protect U.S. persons, to have 
the FISA court review the procedures and to handle minimization 
in an appropriate way.
    With respect to the request for retroactive release of 
liability, I have great reluctance. Part of that stems from the 
secrecy that the government has interposed when we were seeking 
subpoenas last year for the telephone companies. We were 
thwarted by action of the Vice President in contacting 
Republican members, without notifying the Chairman, and, as I 
see the situation, I think the telephone companies do have a 
strong, equitable case, but my inclination is that they ought 
to get indemnification, if the court sought not to be closed.
    I doubt very much the cases will be proved, but if 
plaintiffs can prove them I think they ought to have their day 
in court. And it is costly, but that's part of the cost of the 
war on terrorism.
    Finally, yesterday, we had a closed-door briefing on what 
is happening, and I believe we need more briefings. The 
government has been reluctant to follow the statute on 
informing the Intelligence Committee about FISA until they 
needed support for the confirmation of General Hayden as 
Director of the CIA. And the session we had yesterday was an 
important one and I think we need more information from the 
administration.
    The Chairman has referred to the pendency of the nomination 
of Judge Mukasey to be Attorney General and that is a matter 
which covers the issues which are before us now, or a first 
cousin, at a very minimum.
    And it is my hope, Mr. Chairman, that we would be able to 
resolve the issues on Judge Mukasey sooner rather than later, 
and I know that's your inclination, as well. You had wanted to 
bring the matter to a determination by the committee early.
    I think it may be advisable to have a closed-door session, 
where we talk about water-boarding and we talk about torture 
and we talk about those techniques. Earlier this week, in the 
wake of the issue on water-boarding, I had an extensive 
briefing by General Hayden. There are people who overlap on the 
Intelligence Committee with the Judiciary Committee, who know 
about the details, and I believe it is a matter that the full 
committee ought to be informed about.
    I think that the extensive letter which Judge Mukasey has 
submitted goes about as far as he can go. He has repudiated 
water-boarding, he has rejected it, but he has stopped short of 
making a determination of legality. And let's face the facts. 
The facts are that an expression of an opinion by Judge Mukasey 
prior to becoming Attorney General would put a lot of people at 
risk for what has happened.
    Now, they may be at risk regardless of what Judge Mukasey 
says or what the next Attorney General says. And last week, 
former Secretary of Defense Rumsfeld was in France and there 
was an effort made to initiate a prosecution against him, and 
extraterritorial jurisdiction is being asserted by many 
countries under the Doctrine of Crimes Against Humanity.
    Ordinarily, a prosecution can be brought only where the act 
occurred, but what Judge Mukasey would say on that subject has 
repercussions in that direction.
    The standard has been articulated of whether it shocks the 
conscience under the Rochin decision, and that depends upon a 
totality of circumstances. It depends on who is the individual, 
what access the individual has to information, how important 
the threat is, what is the likelihood of getting information 
which would be critical in saving lives.
    We all dodge around the so-called ``ticking bomb'' case. 
Nobody wants to articulate a principle if there are any 
exceptions to torture, and it is probably advisable not to be 
explicit in that situation because you may make exceptions 
which will be broadened; as the expression goes, you can 
``drive a truck through.''
    But we do know that the Department of Justice is in dire 
straits. If there's one thing that this committee, and perhaps 
the entire Senate, is unanimous on, it's that the Department of 
Justice is dysfunctional.
    I think we need extensive assurances. But as I carefully 
read Judge Mukasey's letter, I don't know how much more he 
could say than what he has said, considering the exposure to 
people in collateral circumstances and considering the 
impossibility of predicting what may be faced with respect to a 
future potential danger if the so-called ``ticking bomb'' 
hypothetical were to reach fruition.
    But what I would like to see is us, Mr. Chairman, go into a 
closed session, like we had yesterday. I thought it was very 
fruitful when we were behind closed doors and could talk more 
openly about the subject matter of what the telephone companies 
have been doing and to share information from those who know 
more about the interrogation techniques and the water-boarding 
than many members of this committee know.
    The Intelligence Committee is privy to that, and they 
should be, but so should this committee, when we have to make a 
measurement and make a decision about the adequacy of what 
Judge Mukasey has said on a subject which could defeat his 
confirmation.
    No doubt, the confirmation is at risk at this moment 
because he has not answered the question categorically, and I 
think we need to have a very frank discussion, with more facts 
available, and I believe that can only be done in a closed-door 
session.
    I would hope we might do that early next week. Hopefully, 
we could get Judge Mukasey on the agenda for next week and 
either fish or cut bait on this important matter.
    Chairman Leahy. As I said, Judge Mukasey will be on the 
agenda on Tuesday, but I think there are a whole lot of--and 
the reason I'm doing it Tuesday and not Thursday is because--
and, of course, everybody's rights are protected under that--
there are a whole lot of other issues that he responded to late 
last night involving, among other things, executive authority, 
his views on the ability of the executive to override laws 
passed by Congress, his views on the executive being able to 
preempt congressional actions on contempt citations and things 
like that that others want to consider.
    So it's not just the water-boarding issue. Obviously, many 
of us felt that the United States, which would roundly and 
universally condemn the water-boarding of an American held by 
any other country, many of us had felt that the Attorney 
General nominee should do the same thing.
    It would put us back just to think, without even taking 
current times, to the old Soviet Union days. If the then-Soviet 
Union had picked up an American, water-boarded that American, 
you'd have 535 Members of the Congress, House and Senate, who 
would vote for a resolution condemning that, and whoever was 
present, Democratic or Republican, would have condemned it.
    That is one of the concerns I hear expressed by Americans. 
But let's not go into debate on that. We will have plenty of 
time to debate this issue. That's why I'm setting aside a 
special time just for this matter.
    We have before us Kenneth Wainstein, who served as the 
First Assistant Attorney General for National Security since 
September 2006. I'm sure he thinks that time has gone by so 
rapidly.
    Prior to this appointment, he has held various positions in 
the Justice Department, including as the United States Attorney 
for the District of Columbia, where we first met. When I say 
that, I hasten to add, not because I or any member of this 
committee was before him in that capacity. He also served as 
chief of staff to the Director of the FBI, where we also had 
dealings.
    Mr. Wainstein, would you please stand and raise your right 
hand?
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. Of course, your full statement will be made 
part of the record, but, please, go ahead.

STATEMENT OF KENNETH L. WAINSTEIN, ASSISTANT ATTORNEY GENERAL, 
    NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Wainstein. Thank you, sir. Chairman Leahy, Ranking 
Member Specter, members of the committee, I want to thank you 
all for this opportunity to testify before you on this 
important matter. I'm proud to be here to represent the 
Department of Justice and to discuss our views on this very 
important issue with you.
    I'd like to take a few minutes just to discuss three 
specific points. I'd like to explain, first, why it is I 
believe that Congress should permanently legislate the core 
provisions of the Protect America Act; second, how it is that 
we've gone about implementing the authority in the Protect 
America Act with significant oversight mechanisms and 
congressional reporting; and, third, I'd like to give you our 
preliminary views on the thoughtful bipartisan bill that was 
reported out of the Senate Intelligence Committee 2 weeks ago.
    Before I do that, I'd like to express our appreciation for 
the attention that Congress has given to this important issue. 
Congress has held numerous hearings and briefings on the issue 
over the past year or so and that process has produced the 
Protect America Act, which was a very significant step forward 
for national security, and in the Senate, it culminated in a 
bipartisan bill referred to this committee, S. 2248, which was 
voted out on a strong 13-2 vote.
    We applaud Congress for its initiative on this issue and 
its willingness to consult with us as it moves forward on FISA 
modernization.
    Let me turn to why I believe that the core provisions of 
the Protect America Act need to be made permanent.
    The government's surveillance activities are a critical, if 
not the most critical part, of our investigative effort against 
international terrorists and other national security threats. 
By intercepting these communications, we get an insight into 
their capabilities, their plans, and the extent of their 
networks.
    Before the Protect America Act, however, our surveillance 
capabilities were significantly impaired by the outdated legal 
framework in the FISA statute. FISA established a regime of 
court review for our foreign intelligence surveillance 
activities, but not for all such activities.
    The court review process that Congress designed applied 
primarily to surveillance activities within the United States, 
where privacy interests are the most pronounced, and not to 
overseas surveillance against foreign targets, where cognizable 
privacy interests are minimal or nonexistent.
    While this construct worked pretty well at first, with the 
vast changes in telecommunications in the past 29 years, a good 
number of our surveillances that were originally not intended 
to fall within FISA became subject to FISA, those which are 
targeted outside the U.S., which required us to go to court to 
seek authorization and effectively conferred quasi-
constitutional protections on terrorist suspects and other 
national security threats who are overseas.
    Over that same period, we were facing an increasing threat 
from Al Qaeda and other international terrorists and it was the 
combination of these two factors, the increasing burden of FISA 
and the increasing threat, that brought us to the point where 
we needed to update FISA.
    In April of this year, we submitted to Congress a 
comprehensive proposal to modernize FISA. As the summer 
progressed, Congress recognized the immediate need to address 
the rising threat and passed the Protect America Act, which 
clarified that overseas surveillances are not subject to FISA 
Court review. And within days, we implemented that new 
authority and the DNI has announced that we've filled the 
intelligence gaps that were caused by FISA's outdated 
provisions.
    We've recognized, from the very moment that the Protect 
America Act was passed, that Congress would reauthorize this 
authority only if we could demonstrate to you and to the 
American public that we can, and will, exercise this authority 
responsibly and conscientiously.
    To that end, we imposed oversight procedures upon ourselves 
that are well beyond those required in the statute and we 
committed to congressional reporting that's well beyond that 
required in the statute, and in the process we've established a 
track record of responsible use of the Protect America Act, a 
track record that provides solid grounds for Congress to 
permanently reauthorize it.
    Against that backdrop, the Senate Intelligence Committee 
recently voted out S. 2248. And we're still reviewing the bill, 
but we believe that it's a balanced bill that includes many 
sound provisions. It would allow our intelligence professionals 
to collect foreign intelligence against targets located 
overseas without obtaining prior court approval, and it also 
provides retroactive immunity to electronic communications 
service providers who assisted the government in the aftermath 
of 9/11.
    We believe this immunity provision is necessary, both as a 
matter of fundamental fairness and as a way of ensuring that 
providers will continue to provide cooperation to our 
surveillance efforts.
    That bill also remedies the possible over-breadth concerns 
that some had regarding the Protect America Act, and it 
includes significant oversight and reporting mechanisms.
    We do, however, have concerns about certain provisions in 
the bill; in particular, the sunset provision and the provision 
that would extend the role of the FISA Court, for the first 
time, outside our borders by requiring a court order when we 
surveil a U.S. person who is acting as an agent of a foreign 
power outside the U.S.
    However, we look forward to working with this committee and 
Congress to address those concerns and to seize this historic 
opportunity to achieve lasting modernization of FISA that will 
improve our ability to protect both our country and our civil 
liberties.
    Thank you for the opportunity to testify, and I look 
forward to answering your questions.
    Chairman Leahy. Well, thank you for your statement.
    [The prepared statement of Mr. Wainstein appears as a 
submission for the record.]
    Chairman Leahy. When you deal with something like this, 
it's very difficult to be sure what parts we're dealing with in 
open session, but the Senate Intelligence Committee, in their 
report on their legislation, said that the government provided 
letters to electronic communication providers at regular 
intervals between late 2001 and early 2007 to justify the 
existence in this program of warrantless wiretapping.
    All these letters stated the activity has been authorized 
by the President. All but one stated the activities had been 
deemed lawful by the Attorney General.
    So is it the position now of the government that these 
letters were certifications that made it legal for the 
companies to assist the government?
    Mr. Wainstein. Those letters were the assurances that were 
provided to the companies that this was a program directed or 
authorized by the President and that they were legal, and if 
you look at the criteria in the retroactive immunity provision 
in the Senate Intelligence bill, those criteria are satisfied.
    Chairman Leahy. If they said that this would make it legal, 
why is it necessary to provide immunity? Wouldn't it be just 
better, maintaining faith in government, to let our judicial 
system make that determination?
    I mean, the government has already told the carriers that 
this was legal. Why do we need to do further? Shouldn't the 
courts be allowed now to say whether the government was right 
in saying that?
    Mr. Wainstein. Well, I understand the sentiment that we 
should be allowed to go--people who feel like they are 
aggrieved should be allowed to go into court and, as a standard 
matter, that makes sense.
    The problem here is that, sort of as I alluded to earlier, 
there's a basic fundamental matter of fairness that the 
government, at the highest levels, in the aftermath of the 
worst attack upon the United States, at least since Pearl 
Harbor, went to these providers, who are the only ones who can 
provide the assistance for critical communications intelligence 
work--went to them, said, ``We need this work. It's lawful. 
It's been deemed lawful at the highest levels of the American 
government and we need that assistance.''
    Chairman Leahy. I accept that. But so why shouldn't that be 
enough? Why do you have to pass further legislation?
    If you feel secure in what you did, why ask for further 
legislation? Why not let the courts just deal with the 
certification made by the President that this was legal?
    Mr. Wainstein. Well, we feel that it's unfair to--
    Chairman Leahy. Unless you're not comfortable with having 
made that certification.
    Mr. Wainstein. No. And I don't believe the concern is 
airing out what the government did or didn't do. The concern is 
airing out what the companies did and putting them through the 
cost, litigation, the exposure, the difficulty of litigation, 
when they were really just doing what they did to protect the 
country.
    If there are to be lawsuits, they should be against the 
government. The problem with any lawsuits against the companies 
is that it's unavoidable that very sensitive classified 
information is going to be released, and we've seen this 
already in this litigation.
    Chairman Leahy. If you make a blanket assertion of state 
secrets, then you do have difficulty. But if you're just going 
to use the specific classified information needed, that's done 
by courts all the time. The classified information is looked at 
in camera.
    Why couldn't that be done here?
    Mr. Wainstein. That's right, but in my experience, the 
classified information that's subject--
    Chairman Leahy. You had that as U.S. Attorney.
    Mr. Wainstein. Yes. Yes. And there is a standard--there's 
CIPA, the statute that allows the government to use classified 
information to bring a prosecution that implicates classified 
information and insulate from unwarranted disclosure.
    The problem is that the whole cause of action here, the 
whole sort of mode of conduct being challenged is a highly 
classified program and our adversaries--our adversaries, 
they're not ignorant. They know that this is going on and they 
know to watch what's happening in the news, because they want 
to get tips as to how it is we're trying to surveille them, and 
the adversaries aren't just terrorists in caves. They're also 
potentially foreign services that are pretty sophisticated. So 
every little nugget of information that comes out in the course 
of these litigations helps our enemies.
    In addition, I would say you've got to also keep in mind--
    Chairman Leahy. So should we be prosecuting--if that's the 
case, be prosecuting the New York Times and others for having 
printed all this? I mean, they gave the information.
    Actually, Congress found out about the things that were 
supposed to have been reported to Congress and never was. We 
read it on the front page of the New York Times.
    Mr. Wainstein. No. I'm not advocating prosecutions--
    Chairman Leahy. I didn't think so.
    Mr. Wainstein.--in that realm. What I'm saying, though, is 
that there are serious concerns on the part of--
    Chairman Leahy. In my experience, I've only had one 
government official recommend or say they wanted to investigate 
the New York Times and prosecute them, and that person is no 
longer alive.
    Go ahead.
    Mr. Wainstein. Also, I'd direct your attention to the fact 
that these providers--I can't go into exactly which providers 
they were--but you could imagine that these are companies that 
might well have personnel and facilities around the world and 
they've got a very serious concern that if they get identified, 
intentionally or unintentionally, through litigation, those 
facilities, those personnel might well be subject to risk, 
because they have been identified as assisting us in our 
efforts against terrorists.
    Chairman Leahy. For those who think that there should be 
some accountability on the part of our government, and 
obviously the government did not want to have that 
accountability, they did not go to the people in even the 
Congress, where there may be a check-and-balance, acted totally 
outside of any kind of accountability, until somebody within 
your administration leaked all this to the press.
    Isn't there some way--how do you find a way to assess the 
legality and appropriateness of this warrantless wiretapping 
program?
    If you say we can't have court cases, we've got to have 
immunization, how do you assess this?
    Mr. Wainstein. Well, I think that if there are to be 
lawsuits--I mean, the concern people have here is with the 
legality of the program and that legality determination was 
made by the government.
    So if people have a concern about it, it should be--any 
litigation should be directed at the government.
    Chairman Leahy. Okay. But then you have a catch-22. The 
government says, ``Ah, state secrets.''
    Mr. Wainstein. Right, which we would say in the context of 
litigation against the carriers, as well, which is--
    Chairman Leahy. But you're going to say it against the 
government. So there really is no way to find the government 
accountable.
    If we give blanket amnesty to the companies, then you're 
not going to be able to sue the government. They're going to 
provide their own amnesty by saying ``state secrets''.
    Mr. Wainstein. And we're in that position right now. No 
matter whether the litigation is directed at the companies or 
at the government, state secrets can be interposed.
    Keep in mind, there are numerous--
    Chairman Leahy. Why? Why can't they just go to classified 
information, take it in camera?
    Mr. Wainstein. Well, we have to demonstrate that--I mean, 
we have to go and demonstrate that state secrets are going to 
be implicated here, that the litigation can't go forward 
without divulging state secrets, and we invoke the doctrine.
    But keep in mind, if I may, Mr. Chairman, there are many 
investigations going on right now about the propriety of what 
was done or not done under the terrorist surveillance program.
    So in terms of accountability, if there is wrongdoing, that 
wrongdoing is being ferreted out in ways, very traditional 
ways, other than litigation.
    Chairman Leahy. I'm not sure of that, because it seems that 
you're putting up brick walls everywhere somebody might look at 
it.
    Let me ask you one, and my final, question. The House is 
considering the RESTORE Act. They have a provision calling for 
the Department of Justice Inspector General to audit all 
government surveillance programs that occurred outside of FISA 
in the years following 9/11.
    Now, they weren't audited. Even if we were to grant 
retroactive immunity to the telephone companies, do you object 
to Congress providing for such an audit in the bill that might 
go to the President?
    Mr. Wainstein. As I recall, the RESTORE Act provides or 
directs the Department of Justice Inspector General to do 
oversight--ironically, sort of oversight of intelligence 
community agencies--and we did have some concern about that, 
just because that's a little bit outside the DOJ/IG's lane; 
very strong Inspector General, I grant you, but outside his 
lane. So we had some concerns about that.
    We also thought that injecting the whole terrorist 
surveillance program issue into this was unfortunate, because 
this is an effort, this being this legislation, is an effort to 
get Congress and the executive branch on the same page so that 
the constitutional issue of what can or can't be done under 
executive authority is not there.
    Constitutionally, there's no pressure on that issue. So we 
think it's a better approach to say, okay, let's leave that 
aside in terms of whether the TSP was within the constitutional 
authority of the President or not, legal or not, and just focus 
on how we're going to fix FISA for the American people.
    Chairman Leahy. Maybe the difficulty is it seems so 
unprecedented for the administration to say they actually want 
to be on the same page with Congress--this administration 
anyway.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Wainstein, let's begin by discussing the relative role 
of the courts in protecting civil liberties and what it would 
mean to grant retroactive release of liability.
    In the long history of this country, the courts have done a 
much better job in protecting civil liberties than has the 
Congress, from an overreaching executive branch, and we have 
seen, in this administration, extension of executive authority.
    Now, in many ways it is necessary to protect America, and 
when the administration came to the Congress and asked for a 
Patriot Act, this committee took the lead in providing a 
Patriot Act with expanded executive authority for 
investigations to fight terrorism.
    We, at the same time, imposed some limitations on 
oversight, negotiated with the administration, and then we 
found a signing statement which reserved the President's rights 
under Article 2, Commander in Chief, not to pay attention to 
the negotiated limitations.
    And if we are to close the courthouse door to some 40 
litigants who are now claiming that their privacy has been 
invaded, it seems to me we are undercutting a major avenue of 
redress.
    If, at this late date, the Congress bails out whatever was 
done before and we can't even discuss what has been done, that 
is just an open invitation for this kind of conduct in the 
future.
    Why not provide for indemnification? I believe the 
telephone companies have a very strong equitable case in saying 
that they were good citizens in responding to what the 
government ordered or requested and that the telephone 
companies shouldn't have to weigh the importance to national 
security.
    But isn't the cost of those lawsuits part of our overall 
battle against terrorism, and isn't it infinitesimal cost, and 
isn't it likely that these lawsuits are not going to be 
successful?
    You find the Federal Government interposing the Doctrine of 
State Secrets very broadly, trying to stop reviews under the 
terrorist surveillance program in the San Francisco Federal 
Court, or stopping litigants who have claimed torture on 
rendition can't go to court, can't have a hearing, because of 
the State Secrets Doctrine.
    So it's a two-part question. Number one, why not make it a 
matter of indemnification, and isn't such indemnification 
really likely to cost the government very little, if anything, 
because these suits are destined for failure?
    Mr. Wainstein. I guess I would go back, Senator Specter. 
I'd go back to sort of the foundational issue for me, which is, 
these were companies operating in good faith, on assurances 
from the government. If there is fault here, it's fault in the 
legal analysis and the decisions made by the government.
    Senator Specter. I concede they're operating in good faith, 
and if they're indemnified, they're not going to be harmed. 
They're going to be held harmless.
    So why not do that?
    Mr. Wainstein. True. I think you're right. It may be, as a 
legal matter, in terms of damages, they might be held harmless. 
But indemnification just means that we would pay the bills at 
the end of the process, but they'd have to go through the 
process.
    And keep in mind, there is a lot of damage inflicted on 
these companies from having to go through the litigation, to be 
subject to discovery.
    Senator Specter. What do they have to go through when you 
impose the State Secrets Doctrine? I can't even question you in 
a Judiciary Committee hearing about what has gone on, because 
it's a secret, and every time you impose the--virtually every 
time you impose the State Secrets Doctrine, you win. Those 
witnesses don't even have to appear. They're not going to be 
deposed. There's no discovery. They're cutoff at the pass, 
aren't they, really?
    Mr. Wainstein. Well, there's no assurance that we're going 
to prevail every time we interpose with the State Secrets 
Doctrine and the litigation still has to get to that point.
    And keep in mind that we're also dealing with an industry 
that really has the access to the communications that we 
absolutely need and it's critical that we maintain cooperation 
with these companies.
    If they find that they're constantly being pulled into 
courts for assistance with the government--
    Senator Specter. Have you suggested to them that you would 
grant them indemnification?
    When I've talked to the telephone companies and commented 
about that, they seem to think that that would answer the 
question.
    Have you asked them?
    Mr. Wainstein. I know there have been discussions about 
various options--indemnification, substitution--but anything 
else to keep them out, anything that keeps litigation going 
also compromises secret information about sources and methods 
that we have a very serious concern about.
    If we don't prevail with state secrets, then there's no 
guarantee that information is not going to get out. In fact, 
even just the filing of lawsuits and the allegations made can 
actually end up--allegations made in the initial pleadings can 
end up compromising sensitive sources and methods.
    Senator Specter. Oh, really? Allegations in a lawsuit for 
people who are plaintiffs who don't have any inside 
information?
    Mr. Wainstein. Yes.
    Senator Specter. If they know something, it must be in the 
public domain.
    Let me move to one other line of questions, and that is to 
protect U.S. persons.
    Admiral McConnell testified that there were 46 persons 
abroad, U.S. persons under surveillance abroad.
    Why not require a showing of probable cause? And, also, on 
U.S. persons who are the recipients of calls from overseas? If 
you have a call from overseas to another overseas point going 
through a U.S. terminal, I can readily agree with your point 
that that is not an involvement of a U.S. person.
    But where a U.S. person is targeted abroad or when it is 
determined that a U.S. person is being under surveillance from 
a foreign call, why not require a statement of probable cause 
and approval of a warrant by the Foreign Intelligence 
Surveillance Corps?
    Mr. Wainstein. Yes, sir. Good questions. Two separate 
questions. In terms of the question of whether we should have 
to go to the FISA Court to make a probable cause showing before 
we surveille a U.S. person outside the United States, that 
arose in the context of an amendment that was attached to the 
Senate Intelligence bill that was reported.
    Senator Specter. The Wyden amendment.
    Mr. Wainstein. Right, the Wyden amendment. And that has 
been an area of much debate back and forth. As you know, under 
traditional procedures since 1981, FISA did not require that we 
get a--in the statute itself in 1978, it did not require that 
we get a court order for a U.S. person overseas because of that 
person's U.S. person status.
    Instead, what we had is an executive order that was passed 
in 1981 that required that every time the government wants to 
surveille a U.S. person overseas, the Attorney General, himself 
or herself, personally, has to make a finding of probable cause 
that that U.S. person is an agent of a foreign power.
    That was challenged at least once in court and has been 
upheld as reasonable under the Fourth Amendment. It has worked 
quite well. We have minimization procedures that limit the 
dissemination, use and retention of U.S. person information 
that we get from those surveillances, and our argument is that 
mechanism has protected American civil liberties quite well.
    There are downsides to imposing that, as well, operational 
downsides. For one, you're taking the FISA court and, for the 
very first time, putting the FISA court into surveillances 
targeted outside the United States.
    The statute itself will be saying, for a person who's 
outside the U.S., you still have to go to the FISA court, which 
is a new extension of FISA court jurisdiction.
    Operationally, it would also potentially bring the FISA 
court into the realm of having to deal with foreign laws, for 
instance, laws that might be in effect in the foreign countries 
where we want to do the surveillance.
    So there are some complicated operational matters, some 
which I think are better left to be discussed in a classified 
setting, that I think are implicated by requiring that all 
overseas surveillances against U.S. persons have to go the FISA 
court.
    Senator Specter. Thank you, Mr. Wainstein. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you, Senator Specter.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Mr. Wainstein, welcome.
    Mr. Wainstein. Good morning.
    Senator Feinstein. I think there are two big issues in this 
bill. One is the immunity provision. The other, in my view, is 
the exclusivity provision of the bill.
    Senators Snowe, Hagel, and I filed some additional views, 
which I would like to urge you to read. And what we stated is 
our very strong belief that we believe FISA should be the only 
legal way of acquiring communications of people inside the 
United States and U.S. persons outside of the United States in 
certain circumstances for foreign intelligence purposes, and we 
go ahead and elaborate on it.
    Now, the language in this bill was an Intelligence 
Committee compromise in the sense it was the best, certainly, I 
could do at the time. I am not at all satisfied with it, 
because it is not comprehensive and it does provide some 
loopholes, and I think those loopholes, candidly, are 
unacceptable.
    It is my belief that the administration exceeded its 
authority in moving ahead with the terrorist surveillance 
program, and it is also my belief that we have ample history 
going back that this has happened before in the same way that 
led to the foundation of the bill before us, and, of course, 
that was the Shamrock case in the 1970s.
    Somehow we don't learn from our mistakes. I am very 
concerned about the use of Presidential authority in this area. 
The President has claimed the AUMF. I'm here to say that when 
the AUMF was passed, there was no congressional intent that it 
be used for this purpose. That was not discussed.
    I was present at many of the meetings. There was no 
discussion on allowing the AUMF to be allowed for Presidential 
authority in this area. And I believe the initial part of the 
terrorist surveillance program was, in fact, illegal.
    So I want to strengthen the exclusivity provisions to 
prevent any loopholes and to see that it is clear for the 
future. That's the first point.
    The second point is on the subject of immunity, and this is 
where it becomes extraordinarily difficult for me, with my 
belief that the administration proceeded illegally. 
Nonetheless, I've read the letters sent to the companies.
    I'm aware of the fact that assurances were made to the 
companies by the executive branch of government. Those 
assurances may well have been wrong, but, nonetheless, these 
were the assurances that the companies were given. This 
happened 3 weeks after 9/11. I understand the tenor within the 
country.
    The letter sent to us, dated October 29 and signed by 
Attorney General Ashcroft, James Comey, Jack Goldsmith and 
Patrick Philbin, makes this comment: ``When corporations are 
asked to assist the intelligence community based on a program 
authorized by the President himself and based on assurance that 
the program has been determined to be lawful at the highest 
levels of the executive branch, they should be able to rely on 
those representations and accept the determinations of the 
government as to the legality of their actions.''
    I happen to agree with that. Then it goes on to say, ``The 
common law has long recognized immunity for private citizens 
who respond to a call for assistance from a public officer in 
the course of his duty.''
    But the question arises as to whether the situation can't 
be better handled, because FISA has both a criminal and a civil 
prohibition in it, and, therefore, I wonder how the 
administration would feel about the capping of damages at a low 
level.
    And the problem with indemnification is, we score this bill 
at $20-$30 billion, and that becomes a problem, I think, when 
you say the taxpayers should pick this up. This isn't a mistake 
made by the taxpayers. It's a mistake, I believe, made by the 
administration.
    So the question comes, what sense does it make to proceed 
with an indemnification and a cap at a low level?
    Mr. Wainstein. Thank you, Senator Feinstein. I'll take 
those in reverse order.
    I sort of answered that question, to some extent, to, I 
believe, Senator Specter, in terms of whether indemnification 
addresses all our concerns.
    Obviously, if there is a cap, then it does address the 
concern that the taxpayer might get hit with high damages. But 
all those other concerns would still obtain. We'll still go 
through litigation, to the extent that state secrets doesn't 
short-circuit it. There's still the risk that classified, 
sensitive information will be disclosed.
    The providers themselves will go through potential 
reputational damage. They'll go through the difficulty of 
litigation, depositions, discovery and the like, all for having 
done something which, as you said, was based on the assurances 
from the highest levels of the government of the legality of 
that program and they did so out of the patriotic sense that 
they wanted to help protect the country against a second wave 
of attacks after 9/11.
    So all those other issues, I think, are still there, even 
if you do cap the damages.
    As to your first question about the terrorist surveillance 
program and the--
    Senator Feinstein. Exclusivity.
    Mr. Wainstein [continuing.]--Question of the exclusivity 
clause, I know there is an exclusivity clause that's in the 
Senate Intelligence bill. I think it makes the point quite 
clearly.
    As I said earlier, I believe that the nice thing about that 
legislation and this process is that we seem to be moving 
toward a point where we are all on the same page, that there is 
not going to be any need for the executive branch to go beyond 
what FISA has required.
    Senator Feinstein. That's not what this language does. It's 
specifically crafted in order to get it in that would allow a 
loophole or more than one loophole.
    Mr. Wainstein. Well, it says that it is the exclusive 
means, that the President, if he signs this legislation, is 
agreeing to that.
    We have operated in accordance with that since January of 
this year. As you know, we went to the FISA Court. We took the 
terrorist surveillance program and brought it under FISA court 
orders on January 10 or 17 of this year.
    So the terrorist surveillance program is no more. It is 
under FISA court order, and I think that's an important thing 
for us to have done prior to the time that we came to Congress 
about this legislation because it shows that we are operating 
within FISA, even within the constraints of old FISA.
    And I believe that you will then see that if we have a 
scheme which we can use much more easily to protect the nation, 
there's going to be even less need for this President or future 
Presidents to go outside of FISA.
    And keep in mind, nobody can bind future Presidents as to 
what the constitutional duty is one way or the other.
    Senator Feinstein. My time is up and I want to be 
respectful of the time.
    I disagree with you about the exclusivity. I think this is 
a subject for a classified session and I think that the 
administration should be very candid with us as to what is in 
exclusivity and what is out of exclusivity, and I'll leave it 
at that.
    Mr. Wainstein. If I may, Senator Feinstein. I appreciate 
that and we would be very happy to talk to you in a classified 
setting, because there are some operational concerns that we 
only could air out in a classified setting about certain 
exclusivity clauses that have been proposed.
    Senator Feinstein. All right. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Normally, it would be Senator Hatch, but he's not here.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    I just want to start with--there was a comment made earlier 
about the Department of Justice being dysfunctional, and I 
would dispute that.
    It is true, I think, that it's in desperate need of 
leadership, which of course could be cured if the Attorney 
General nominee were confirmed, but I think there are a lot of 
good men and women at the Department who are doing their job 
under difficult circumstances, and we should recognize that.
    My first question, Mr. Wainstein, concerns the legal 
authority for the foreign surveillance program and it is 
whether you know of any case--the only case of which I am aware 
that has spoken to the issue, and it's dicta, it's not a 
holding, but the case has never been squarely presented as far 
as I know, is a FISA case in 2002 titled ``In Re: Sealed 
Cases.''
    And this is the pronouncement of the court in that 
circumstance: ``The Fourth Circuit, in the Truong case, as did 
all the other courts to have decided the issue, held that the 
President did have inherent authority to conduct warrantless 
searches to obtain foreign intelligence information. We take 
for granted that the President does have that authority and, 
assuming that is so, FISA could not encroach on the President's 
constitutional power.''
    Now, are you aware of that case?
    Mr. Wainstein. Yes, sir.
    Senator Kyl. Did I characterize it accurately, in your 
view?
    Mr. Wainstein. Yes, Senator. That's my understanding of the 
case.
    Senator Kyl. Do you know of any other case in which a court 
has spoken to this question, which goes, of course, to Senator 
Feinstein's point about exclusivity?
    Mr. Wainstein. No. Actually, as you quoted from that case, 
the courts that have addressed this issue have determined that 
the President does have that authority and they've been 
consistent in that.
    Senator Kyl. Furthermore, in your testimony, on page four, 
you talk about the historic surveillance that we have conducted 
and the history of FISA, establishing a judicial review regime, 
but not for all of our foreign surveillance.
    You say only for certain of those that most substantially 
implicated the privacy interests of the people of the United 
States, which I think is accurate, and you point out that it 
was not intended to apply to all overseas surveillance.
    And you went on to note that the House report at the time, 
the House Permanent Select Committee on Intelligence report, 
1978--I would add that that was under Democratic control--
confirmed that this was the case and, quoting that report, 
which explained that ``The committee has explored the 
feasibility of broadening this legislation to apply overseas, 
but has concluded that certain problems and unique 
characteristics involved in overseas surveillance preclude the 
simple extension of this bill to overseas surveillances,'' 
making the point that we have had for decades overseas 
surveillance which has not required going to through any court 
to obtain a warrant.
    Is that correct?
    Mr. Wainstein. Yes, under the wording of the statute--and, 
of course, the problem is that--and what we're trying to remedy 
here is the problem that has taken us away from the original 
design of FISA, which is as you just described it, and, that 
is, as I think we also explain in the statement, a function of 
the evolution of the technology since 1978.
    And the fact is the original FISA was designed--it was 
actually--the terminology of the statute was based on the types 
of technology that were going to be intercepted, wire or radio, 
and that has changed dramatically, bringing in all these 
communications within FISA that weren't intended to be within 
FISA to begin with, primarily the ones outside the United 
States.
    Senator Kyl. Exactly. Now, there's also been some language 
thrown, and I think we should be a little careful of throwing 
around words like ``amnesty.'' Amnesty obviously refers to a 
situation in which a crime was committed and that crime is 
going to be forgiven.
    Is that your understanding of the word ``amnesty? ''
    Mr. Wainstein. More or less.
    Senator Kyl. Do you know any allegation, or at least any 
fair allegation, that any of these telecom companies committed 
a crime for which they might need some kind of amnesty?
    Mr. Wainstein. No, Senator Kyl, quite the opposite. My 
sense is they were operating out of a sense of patriotic duty.
    Senator Kyl. Well, that's my sense, too. And I wanted to 
quote something from Judge Cardozo, because I think it applies 
here, in a case called Babington v. Yellow Taxi Company.
    He said, ``The rule that private citizens, acting in good 
faith to assist law enforcement, are immune from suit ensures 
that,'' and this is the case, the words of Justice Cardozo, 
``the citizenry may be called upon to enforce the justice of 
the state, not faintly and with lagging steps, but honestly and 
bravely and with whatever implements and facilities are 
convenient and at hand.''
    Now, it seems to me that that captures the obligation and 
responsibility that we expect of citizens who are in a unique 
position to assist our government in a situation like this and 
that we should be bending over backward to ensure that they are 
protected in that assistance for the national good.
    The differences between the suggestion of indemnification 
and providing immunity, it seemed to me, are worth exploring, 
and some of my colleagues have raised some of those questions 
with you.
    You have indicated that there are a variety of reasons why 
it would still be difficult, if there is indemnification, to 
protect American secrets and to protect the companies from all 
of the exigencies of litigation that would occur prior to the 
time that the suit were brought to a conclusion.
    If the State Secrets Doctrine were not successful, would 
these suits necessarily be brought to conclusion any time 
before a final judgment for which then the government might be 
responsible?
    Mr. Wainstein. It would go forward after the State Secrets 
Doctrine was--
    Senator Kyl. So if that defense is not successful, they go 
through the case. They have to testify. They have to bear the 
expenses. They may be indemnified, but in addition to the 
possibility that the secrets would be revealed, there would be 
all of the difficulty of going through this litigation, 
notwithstanding the fact that, at the end of the day, they 
would be reimbursed for their trouble.
    Mr. Wainstein. Absolutely. And I think not only is it 
unfair to them and would they suffer reputational damage and 
cost and expense and have to overcome the difficulties of 
litigation, but, also, as I said earlier, we work on a 
cooperative basis with these companies and we can't do it--we 
cannot do communications intelligence without them. Unless we 
nationalize the communications industry, we have to go through 
them and we have to rely on their cooperation.
    And sort of to go back to what you quoted from Justice 
Cardozo, just like the police officer on the street, I was 
trying to think of an analogy. If a cab driver drives by a bank 
and a police officer comes running out, bells are going off, 
alarms going, he says, ``Go after that speeding car,'' and 
jumps in the front seat, we don't want the cab driver to sit 
there and say, ``Well, let's think through all the different 
possibilities. Maybe you're not really a police officer. Maybe 
that's not the bank robber. Maybe you're actually in a fight 
with somebody out of a bar next door to that bank,'' all these 
other things.
    You want a person or a company who perceives apparent 
authority on the part of law enforcement to act. And if these 
companies are subject to liability, they're going to have a 
disincentive to act in the future and they're going to 
challenge any requests that we make to them, litigate to the 
nth degree, because they think that that's the way they're 
protecting the rights of their shareholders.
    We don't want to be in that situation because that will 
really detrimentally impact our operations.
    Senator Kyl. Let me just ask you one final question 
regarding the so-called Wyden amendment.
    It is not limited to citizens, is it? In other words, it 
appears to cover ``U.S. persons,'' which would also include 
U.S. green card holders, which, therefore, could mean any 
number of people who may live abroad, but have a U.S. green 
card. Is that correct?
    Mr. Wainstein. Yes, sir.
    Chairman Leahy. I just want to make sure I fully 
understand, whether we call it amnesty, immunity or 
indemnification.
    Prior to this being made public in the press, apparently 
from somebody within the administration, there was only this 
Presidential directive. After it was made public, the 
administration then went to the FISA court. Is that correct?
    Mr. Wainstein. Mr. Chairman, we went to the FISA court--
well, we obtained FISA court authority for the TSP, the 
surveillances that were done under the TSP in January of this 
year. That was after a long process.
    Chairman Leahy. After it became public. And there's no 
question in your mind, if a telephone company has a court 
order, that clears them. They're totally--there's no liability 
on the part of a telephone company response or anybody 
responds, a bank responds to a court order to give over a bank 
record, a telephone company responds to a court order to give 
telephone records.
    No suits can go against them because they responded to that 
court order. Is that correct?
    Mr. Wainstein. Yes, sir, that's a defense. If I could just 
clarify one thing. I believe we've said publicly that we were 
actually engaged in the process leading to the FISA court 
orders prior to the public disclosure of the program. I believe 
that we've said that.
    I just wanted to clarify that as to when we went to the 
FISA court. I wasn't there at the time.
    Chairman Leahy. I actually have the chronology in mind, but 
I heard that in a classified session so I'm being very careful 
not to go into it.
    Mr. Wainstein. Thank you, sir.
    Chairman Leahy. Senator Feingold was one of our crossover 
members from Judiciary and Intelligence.
    Senator Feingold. Thank you, Mr. Chairman.
    First, Mr. Chairman, the role of this committee, as you 
well know, is so important on this issue and I'm so glad you're 
having this hearing.
    I am a member of the Intelligence Committee, as well as the 
Judiciary Committee. I've been following this issue for almost 
2 years, since the day it was revealed in the New York Times, 
and shortly thereafter I became a member of the Intelligence 
Committee.
    After a bit of a struggle, I had the opportunity to be read 
into the program. My staff has also been read into the program.
    I want this committee to know my view that the product of 
the Intelligence Committee doesn't do the job. There can be as 
much bipartisanship and collegiality as you can possibly have, 
but the bill still is not adequate and the mere fact that it's 
bipartisan, obviously, doesn't make it constitutional.
    This process reminds me what happened with the Patriot Act 
and the subsequent renewal of the Patriot Act. We had the rush 
to judgment in the beginning, that was somewhat understandable 
given the timeframe. But then, in my view, we failed to correct 
the Patriot Act in significant areas, and three Federal courts 
have struck down important provisions of the Patriot Act.
    Mr. Chairman, we're heading in the same direction here if 
this committee does not do its job and fix the errors that were 
made in the Intelligence Committee.
    Having said that, I want to get back into this issue of 
executive power that both Senator Feinstein and Senator Kyl 
have talked about.
    Mr. Wainstein, right now, does the President have the 
authority to authorize surveillance beyond what is permitted by 
FISA, as amended by the Protect America Act?
    Mr. Wainstein. Senator Feingold, that's obviously a 
question with constitutional implications. What is the 
constitutional allocation of authority to the executive branch 
to defend and protect the country against external threats?
    And the argument that I think was laid out in the white 
paper that was issued by the Department of Justice back in the 
aftermath of the disclosure of the TSP, that the President did 
have certain inherent constitutional authority to conduct 
electronic surveillance or communications surveillance to 
protect the nation.
    As I said earlier, though, I think that this legislation 
obviates the need to actually engage in that issue.
    Senator Feingold. I know that's the exchange you had with 
Senator Feinstein. So let me just put it on the record.
    If the bill passed by the Intelligence Committee became 
law, would the President have authority to authorize 
surveillance beyond what would be permitted by that bill?
    Mr. Wainstein. Once again, Senator Feingold, it's not for 
me to say, to either stake a claim to or to give up 
constitutional authority to the President. It's not even this 
President's--
    Senator Feingold. What is your view?
    Mr. Wainstein. I'd have to actually go back and take a good 
hard look at all the constitutional underpinnings of that 
issue. But I've read the positions on both sides. There are 
good arguments both ways.
    But there's clearly authority for the executive branch to 
do warrantless surveillance and, as Senator Kyl has said, the 
courts that have addressed this issue have uniformly found that 
the President has that authority, including the 2002 opinion of 
the FISA Court of Review.
    So I think the law to date is pretty clear on that issue.
    Senator Feingold. I take the opposite view. I think it's 
clear under Justice Jackson's test, with regard to when 
Congress has spoken, that the opposite conclusion is warranted. 
But I think we're going to have to get a new President in order 
to have a different view that is not so expansive and, I think, 
dangerous with regard to executive power.
    In the Intelligence Committee bill, the government is 
required to inform the FISA court about its minimization 
procedures. First, the government's minimization procedures are 
provided to the court for approval after they've gone into 
effect, and, second, the government has to provide the court 
with its own assessment of its compliance with those 
procedures.
    But under the bill, what can the court do, Mr. Wainstein, 
if it believes the government is not complying with its 
minimization procedures, which the administration argues 
provide such great protection for U.S. persons?
    Mr. Wainstein. Well, Senator Feingold, you're focusing on 
the question of what it is we have to do with our minimization 
procedures vis-a-vis the FISA court.
    The FISA court, under this bill, will review the 
minimization procedures, make sure they're reasonable, make 
sure they satisfy the statutory requirement for minimization 
procedures.
    It does not have them conducting ongoing compliance reviews 
of those minimization procedures and I think there are reasons 
for that. In the original FISA context, they do. So we have to 
get individual orders when we get FISAs, under the original 
FISA, for people in the United States and there are 
minimization procedures that apply to that particular 
surveillance, and the FISA Court does review compliance.
    We provided--
    Senator Feingold. This reminds me almost of a right without 
a remedy. The court gets to review it, but has no power to do 
anything about it. Is that what you're saying?
    Mr. Wainstein. Well, the problem here is that, as you know, 
this bill allows for programmatic sort of surveillances by 
category and this would be a much more comprehensive compliance 
review by the FISA court, making them much more operational 
than they ever have been in the past.
    Senator Feingold. Again, this involves a court that would 
have the opportunity to review these minimization procedures, 
and I hope my colleagues are hearing this, with no ability to 
do anything about it, no ability to say to the administration, 
``You screwed up and you've got to change this.''
    This is in this intelligence bill that's being labeled as 
an adequate control over the executive.
    Mr. Wainstein. If I may, Senator Feingold.
    Senator Feingold. Yes.
    Mr. Wainstein. I see your point there and I think it is 
worth mentioning, however, that there are any number of 
oversight mechanisms in this bill and we're not opposing these. 
We're not opposing--we've got a couple operational concerns 
with one or two, just in terms of the feasibility, but by and 
large, we're not.
    And, in fact, if you look, and I mentioned this earlier, if 
you look at the way we've conducted operations under the 
Protect America Act, we have, as I said, imposed a lot of 
oversight on ourselves and tried to be as completely 
transparent as we can with Congress, so that Congress, if it 
sees a flaw, can do something about it.
    And we're continuing that approach here, because we 
understand that that's the only we can retain these--
    Senator Feingold. I appreciate the answer and hope my 
colleagues heard it. They have imposed these rules on 
themselves. We do not have internal rules. We do not have the 
court having the ability to deal with these problems.
    In September, I asked DNI McConnell whether the bulk 
collection of all communications originating overseas, 
including communications with people in the U.S., is authorized 
by the PAA. He responded, ``It would be authorized if it were 
physically possible to do it.''
    Would this same wide-sweeping type of bulk collection of 
all communications originating overseas, including those with 
people in the U.S., be prohibited in any way by the Senate 
Intelligence Committee bill?
    Mr. Wainstein. Well, if you're referring to the idea that 
we would just have a vacuum cleaner and soak up all overseas 
communications, one problem there, of course, is that we can 
only do this if there's a foreign intelligence purpose to it 
and we're getting foreign intelligence information, and, 
presumably, a vacuum cleaner approach like that would not be 
selecting only those communications that have foreign 
intelligence--
    Senator Feingold. Would you have any objection to making it 
clear that this type of extremely broad bulk collection is not 
authorized by the bill? Would you be willing to support 
language to that effect?
    Mr. Wainstein. We'd have to take a look at the language, 
obviously, to make sure it doesn't have unintended 
consequences, limiting us in ways that we don't intend. But 
we'd be happy to take a look at it.
    Senator Feingold. My time is up, but I do hope you'll 
consider that. Thank you.
    Mr. Wainstein. Thank you, sir.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. Mr. Wainstein--and I would just say to 
Senator Feingold, you have been direct and honest about your 
approach to it. The matter was considered in the Intelligence 
Committee, but by a 13-2 vote, they concluded otherwise.
    Congress does have oversight responsibility. It is our 
responsibility to ask about these programs. We have the 
ability, which we have done, to have the top officials that run 
these programs testify before us and explain them in great 
detail, ask questions, and we've had the opportunity to cut off 
funding or prohibit these programs from going forward.
    I would say, when we passed the Protect America Act to 
extend this program, what this Congress did, was it heard the 
complaints, it had an in-depth review of what the 
administration was doing.
    We found the critical need for the program. We studied the 
constitutional objections that had been raised and we concluded 
that it was legitimate, and we affirmed it and we approved it.
    Isn't that fundamentally what's happened, Mr. Wainstein?
    Mr. Wainstein. As far as I can tell you, yes, sir.
    Senator Sessions. All right. So we have approved this 
program, and we approved it because it was the right thing.
    I just had a visit to the National Security Agency last 
week and went into some detail and I came away even more 
convinced than from the previous briefings I had had just how 
critical this program is for our national security.
    Mr. Wainstein, based on your observation and research, do 
you consider this to be a critical program for our national 
security and do you believe that we absolutely, for the 
security of the American people, need to continue it or 
something like it?
    Mr. Wainstein. Absolutely, Senator Sessions. When we talk 
about the program, the interception of signals or 
communications intelligence is absolutely critical, and that is 
how we learn what our adversaries are planning to do. We 
capture their communications. We capture their conversations.
    And while we'd be happy to talk to you in a classified 
setting about actual case studies or case anecdotes to explain 
how we've gotten critical information with the Protect America 
Act, I can't talk about it here publicly, but it is an 
absolutely critical piece of our operations.
    And if you talk to the NSA and you see how quickly we are 
able to implement the Protect America Act authority, they will 
tell you how quickly those gaps that the DNI was talking about 
prior to August 5, how those gaps closed just like that.
    Senator Sessions. In fact, that's exactly what I heard last 
week. And I have to emphasize to my colleagues, if you talk to 
the people at NSA, you know they are very careful about what 
they do. They self-restrict themselves. They know that people 
can complain if they overreach.
    They are not overreaching, I don't believe, and I'm proud 
of what they're doing. It's saving lives, not just in the 
United States, but it is saving lives of those men and women in 
our military service that we have committed to harm's way, who 
are at risk this very moment in places like Iraq and 
Afghanistan and other places, and it's helping preserve their 
safety and their lives, and it's constitutional, and we've 
already said that. So, I think we should continue with this 
program.
    So now we're reduced, I think, to an argument over whether 
we ought to allow people to sue the telephone or the 
communications companies that have cooperated at the request of 
the government to protect this country after 9/11.
    And I don't think it's a right phrase, as I think as our 
Chairman said, to say we are letting them off the hook. They 
shouldn't be on the hook. They did what their country asked 
them to do. They were told in writing that it was legal, were 
they not, what they were doing?
    Mr. Wainstein. Yes, sir. They were given assurances, the 
same assurances that--
    Senator Sessions. And I just don't think they ought to be 
hauled into court, and the people filing this lawsuit using it 
as a vehicle to discover everything they can discover about 
some of the most top secret programs this country has. And that 
does happen in these cases, does it not?
    Mr. Wainstein. Absolutely. This is the most confidential 
and classified sensitive information that we have in our 
national security apparatus, and those are the details that get 
disclosed during that litigation.
    Senator Sessions. And I think one of our colleagues earlier 
said, well, this may be the only way that--the only outside 
review of this program.
    Well, we're the ones that are supposed to review this 
program, are we not, as representatives of the American people? 
Would you agree with that?
    Mr. Wainstein. Yes, sir. And there's quite a bit of 
oversight from Congress. And, as I mentioned earlier, there are 
a number of different investigations being carried on right now 
by inspectors general and offices of professional 
responsibility and the like, looking into the appropriateness 
of the terrorist surveillance program.
    Senator Sessions. And some private lawsuit out here against 
companies for millions of dollars, filed by lawyers who could 
be lawyers associated with groups associated with terrorism, is 
not the way to give oversight to a program like this, I don't 
think.
    Would you agree with that?
    Mr. Wainstein. I go to the fundamental point, Senator, that 
these companies were operating at our request, upon our 
assurance. And so if people have a problem with it, if there's 
fault there, they should direct their concerns to the 
government. The government should be the ones who are called to 
answer and not the companies that were acting out of patriotic 
duty.
    Senator Sessions. Well, I'm also of the belief that--I 
believe someone stated that the telecom companies would believe 
that indemnification is sufficient.
    My impression is they do not, because they're still subject 
to the lawsuits. Do you have any information about that?
    Mr. Wainstein. I don't have any direct information as to 
what their position is, except I know that they much prefer 
immunity, and that's certainly our position.
    I believe, though, that they would see all the same 
problems with indemnification that I have listed for your 
colleagues.
    Senator Sessions. Well, I am certain they would. It only 
makes common sense. And I believe, in fact, they don't think 
that's the best way, that the indemnification approach is best.
    Mr. Chairman, I just offer, for the record, an op-ed in 
today's Wall Street Journal, written by Benjamin Civiletti, a 
former Attorney General under former President Jimmy Carter, 
Dick Thornburgh, a former Attorney General under former 
President Bush, and William Webster, former head of the FBI and 
the CIA, that testify to the importance of this legislation and 
they strongly support the view that these companies that have 
cooperated should be protected from lawsuits.
    They say the companies ``deserve targeted protection from 
these suits'' and point out that dragging phone companies 
through protracted litigation would not only be unfair, but it 
would deter other companies and private citizens from 
responding in terrorist emergencies whenever there may be an 
uncertainty or legal risk.
    I would offer that for the record.
    Chairman Leahy. Thank you. Without objection, it will be 
part of the record.
    [The article appears as a submission for the record.]
    Chairman Leahy. I just want to make sure I fully 
understand, from your testimony, following on a question by 
Senator Sessions.
    Has there been any suggestion by any Member of Congress, of 
either party, that we should not be doing electronic 
surveillance of people who may pose a threat to the United 
States?
    Mr. Wainstein. Not that I have heard, Chairman Leahy. In 
fact, I think what we're seeing now--not in the course of this 
debate. What we're seeing now is, I think, a fairly good 
consensus in the American people and in Congress that we need 
the tools to do it and we should not have to get a court order 
if we're targeting persons outside the United States, with the 
exception of--
    Chairman Leahy. Because I just don't want--and I'm sure the 
Senator from Alabama did not mean to leave the wrong impression 
here, but I certainly don't want any impression being here 
that--I've sat through hundreds of hours of briefings and 
closed sessions and open sessions on this. I have yet to hear 
any Senator or any House member, of either party, say they feel 
that we should not be surveilling people who have positions 
inimical the best interest of the United States.
    Senator Sessions. Mr. Chairman, just to respond to that, I 
would say that this administration has been under severe attack 
for programs, including this program, severe political attack, 
often from outside, sometimes within Congress, and by passing 
the Protect America Act and by the vote of the Intelligence 
Committee, this Congress has said they are doing legitimate 
work and we affirm their work.
    Chairman Leahy. I think this Congress, many people were 
concerned that the White House was not following the law and 
wanted them to follow the law.
    I was concerned when the President of the United States 
said FISA was a law that had been basically unchanged since the 
1970's. Of course, it has been changed 30-some-odd times since 
then.
    And I think that if there had been criticism, it's simply 
been that the United States, which stands for the rule of law, 
ought to follow the law.
    Mr. Wainstein. If I may, Mr. Chairman.
    Senator Sessions. Well, I think we concluded that the 
President is following the law. That's why we've affirmed the 
program as it is presently being executed.
    Chairman Leahy. Mr. Wainstein.
    Mr. Wainstein. I just want to say that my answers related 
to--when we were talking about the program, the idea of doing 
foreign intelligence surveillance against persons overseas 
without going to the FISA court first and that's been the area 
of disagreement, at least that's what has been hashed out in 
debates over the last month or two.
    Chairman Leahy. Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman, and I particularly 
thank you for clarifying the record, because every Member of 
Congress wants to make sure that we gather the information we 
need and we want to make sure it's done in a way that's 
consistent with the civil liberties of the people in this 
country and the constitutional protection.
    Quite frankly, I think that by complying with that, the 
collection of information will be more valuable to our national 
security interests. So it's in our interest to do it for many 
reasons.
    I want to question you on a couple points that you 
mentioned. You first talked about your concern about the sunset 
that's included in the Senate bill and the House bill; the 
Senate bill has a 6-year sunset, the House bill has a 2-year 
sunset.
    And you then talk about your cooperation with Congress, 
making a lot information available to us. I somewhat question 
whether we would have gotten the same level of interest by the 
administration in supplying information to our committees if 
there were no sunset included in the legislation, if we had a 
permanent extension of the law.
    And, secondly, I want you to comment on the fact, 6 years 
from now, can you anticipate what technology is going to be? It 
seems to me it's a good idea for us to be required to review 
this statute, not only because of its sensitivity on the civil 
liberties, but also on the fact that technology changes very 
quickly and we need to make sure that we have this law reviewed 
on a regular basis.
    So why isn't a sunset good?
    Mr. Wainstein. Thank you, Senator. That's a good question. 
I've actually spoken quite a bit about the appropriateness or 
inappropriateness of sunsets.
    I'm not reflexively resistant to sunsets at all. I think 
they actually have a very important place, and I think they had 
an important place with the Protect America Act.
    When Congress is in a position of dealing with an immediate 
need in legislating, without maybe feeling like it has the time 
to go through and check the record and deliberate and debate 
completely and look at all the angles, then it makes sense to 
have a sunset, just as we had in the Patriot Act, which was 
passed, I believe, 6 weeks to the day after 9/11, with a huge, 
large raft of new provisions.
    Sunsets were put in place there to make sure that Congress 
then had the time to go back and reevaluate things and make 
sure they didn't miss anything and see how these tools are 
being implemented.
    Same thing with the Protect America Act. You all responded 
to the need in the summer. You put a sunset in place, and I 
think we're going through a very healthy process right here. I 
think this is great.
    Senator Cardin. Some of us think we need to continue that 
process.
    Mr. Wainstein. And I think that's why we're not resisting 
the oversight--the very ample oversight--and congressional 
reporting requirements in this bill.
    My feeling, however, is that once you've had that debate, 
go ahead and legislate. You don't need to put a sunset. 
Congress can always re-legislate in FISA, and has many times 
over the years.
    Senator Cardin. It's sometimes more difficult than it may 
seem, and when we're required to act, we act.
    Mr. Wainstein. I understand that. But you've got to keep in 
mind there's a downside to that, too, because whenever you 
confer authorities, legal authorities on law enforcement and 
the intelligence community, that starts a process, which is a 
very in-depth process, of agencies drafting policies, putting 
procedures in place, training people, and then when you have to 
shift gears--
    Senator Cardin. I think Congress has the responsibility and 
I think it's helpful to us to have the sunsets in law.
    Let me go to the U.S. Americans who are targeted overseas 
and the amendment that was put on that you have concerns about.
    I, quite frankly, don't understand the concern here. It's 
my understanding there have been published reports of how few 
people actually fall into this category, and it seems to me we 
always want to balance the rights of individuals versus the 
inconvenience or difficulty in complying with the probable 
cause standards.
    It seems to me, here, this is an easy one, that going and 
getting a warrant should be the standard practice.
    Mr. Wainstein. Yes, Senator. And we've heard that view from 
a number of your colleagues.
    I guess, keep in mind, as I explained earlier, there is a 
process in place by which we--the Attorney General personally 
made a probable cause finding for people overseas.
    The FISA court did, on occasion, provide FISA court 
authority for U.S. persons overseas, because of the way the 
technology evolved since 1978.
    Senator Cardin. But I am correct, there's just a few number 
that fall into that category.
    Mr. Wainstein. I can't go into the classified--
    Senator Cardin. I thought there was some information that 
had been released on that.
    Mr. Wainstein. I think there's been some public discussion 
about it, but I'll tell you, as I sit here right now, I'm not 
sure what I'm authorized to say or not say.
    Senator Cardin. The director of National Intelligence 
evidently has said it and, it seems to me, if he's said it--
    Mr. Wainstein. Right. Well, I think he has declassifying 
authority that maybe I don't have.
    Senator Cardin. Okay. Well, his number, I believe, was the 
mid-50's, 55 or 56 people that actually were subject to this, 
which is certainly not a huge burden to get that information. 
And I think that's where you lose some credibility when you 
have an issue that can be easily resolved and, yet, you try to 
get the authority to avoid what seems to be core to American 
values, and that is having cause to get a warrant against an 
American.
    I want to get to the immunity. I have 2 minutes left, and 
this is a difficult subject and this is one that I think many 
of us are wrestling to try to get right.
    You used the Good Samaritan analogy, where someone is on 
the scene of an accident and needs to respond quickly, and I 
can understand that being used on September 11.
    This program has been reauthorized for 5 years or 6 years. 
It seems to me that this is difficult to use that analogy when 
the telephone companies or servicers had plenty of chance to 
review the circumstances and make independent judgment.
    And I guess my point to you is, do you think the service 
providers have any responsibility to the privacy of their 
customers to make an independent judgment as to whether this 
information was properly requested?
    Mr. Wainstein. If I could just very briefly discuss the 
U.S. person overseas issue, just because I don't want to leave 
one thing hanging.
    I understand your concern. There are operational concerns 
that we have, especially about one aspect of that provision, 
that we'll need to discuss in classified session.
    Senator Cardin. You mentioned that earlier.
    Mr. Wainstein. There are also some issues--there's no 
emergency provision there. Also, keep in mind that in terms of 
what is sort of the standard American approach, that 
requirement is not in place on the criminal side, on the 
criminal law enforcement side, either, so there is some 
question there about what is sort of more traditional or not.
    But I would like to followup with that, with you or anybody 
else, in a classified setting.
    Senator Cardin. Certainly.
    Mr. Wainstein. In terms of the obligation of the carriers, 
there are delineated legal obligations that carriers have.
    Senator Cardin. They have pretty big attorney staffs, legal 
staff. These are not unsophisticated companies.
    Mr. Wainstein. Yes. But I don't know if you actually saw 
the documents yesterday.
    Senator Cardin. I have seen them.
    Mr. Wainstein. The letters.
    Senator Cardin. Yes, I have.
    Mr. Wainstein. Some of the letters that were sent to the 
carriers explaining--
    Senator Cardin. And I don't know. If this is an 
inappropriate question, I'm sure you'll mention that. It seems 
to me that if I were the lawyer for the service providers, I 
would have asked for indemnity.
    These are sophisticated companies, so they can make 
independent judgments. I understand the concern on September 
11, but this has been going on for many years. I find it hard 
to believe that large companies with big legal staffs never ask 
for more protection or more information.
    Mr. Wainstein. Well, I can say that as the bill out of the 
Senate Intelligence Committee reflects, there are certain 
common sense criteria you'd look at for them to have a suitable 
reliance on the government in going forward and assisting the 
government.
    If you look at those documents--I can't get into the 
classified nature of them--you'll see that those assurances are 
there. I think they operated on a good faith basis, and I don't 
know that we want the legal staffs of all these communications 
providers putting us through the paces and litigating 
everything.
    As you know, under this legislation, as under the Protect 
America Act, these carriers can challenge every one of the 
directives we give them and really slow down our operations.
    So I don't know that we want to encourage that. In fact, I 
think we want to not encourage it by alleviating any 
possibility of retroactive liability.
    Senator Cardin. Thank you, Madam Chair.
    Senator Feinstein [presiding]. Thank you, Senator.
    Senator Cornyn is next up.
    Senator Cornyn. Thank you, Madam Chairman.
    Mr. Wainstein, the Protect America Act sunsets in February. 
Is that correct?
    Mr. Wainstein. I believe it's February 1st, sir.
    Senator Cornyn. And that's the law that Congress passed 
this Congress that said if it's two terrorists talking to each 
other overseas, that we don't need to get a warrant to 
intercept that information. Correct?
    Mr. Wainstein. If we're targeting our surveillance at a 
person overseas, we don't have to go to the FISA court before 
doing that.
    Senator Cornyn. And you're asking here today for a 
permanent extension of that law which Congress has already 
passed. Correct?
    Mr. Wainstein. Yes, sir. Basically to bring it back in line 
with what was the original intent of FISA back in 1978.
    Senator Cornyn. Let me take this down to a particular 
scenario or set of facts that I think will help us understand 
what a burden the need for a warrant can be when it comes to 
communications between terrorists overseas. On October the 
16th, the New York Post reported a story involving some 
soldiers who were in Iraq and were killed by Al Qaeda 
operatives, four killed and three were then kidnapped, 
including Alex Jiminez from Queens, and later, as a result of 
the search to find the three kidnapped soldiers, one of my 
constituents, Ryan Collins, 20 years old, of Vernon, Texas, 
lost his life.
    But the time line here I think is significant because, at 
10 on May the 15th, after these three soldiers were kidnapped, 
U.S. officials came across leads that show need to access to 
signals communications, and the NSA, at 10:52, 52 minutes 
later, notified the Department of Justice that, under existing 
FISA law, a warrant was needed to eavesdrop because of 
communications passed through United States infrastructure, 
even though it was communications overseas between two foreign 
nationals.
    It then took till 12:53 p.m. for lawyers and intelligence 
officials to begin to work to confirm the probable cause 
necessary to identify the kidnappers as foreign insurgents, and 
therefore a legitimate target of American surveillance. Then 
almost 5 hours later, at 5:15 p.m., the lawyers were able to 
file the paperwork necessary to request the emergency 
surveillance.
    Finally, at 7:18 p.m. that night, almost 10 hours later, 
the Attorney General of the United States approved the 
emergency surveillance based upon the belief that the FISA 
court would grant the warrant retroactively within 1 week.
    So 9 hours and 38 minutes after three American soldiers 
were kidnapped, and after it became apparent that there was 
signals intelligence that might help identify who their 
kidnappers were and where these American soldiers were located, 
it took almost 10 hours to get the necessarily paperwork done 
by the lawyers at the Department of Justice in order to get the 
approval for the kind of surveillance that was required.
    Is that the kind of impediment or barriers to signals 
intelligence surveillance that you are asking that the Congress 
avoid and eliminate so we can hopefully save American lives?
    Mr. Wainstein. Absolutely, Senator Cornyn. That particular 
incident--obviously it's classified. There is only so much I 
can say about it--it was a bit unique in the sense that there 
were some very novel issues of law there. However, even if you 
take it out of that context, so that I don't step in classified 
matters, into any emergency authorization context.
    There is a provision that allows us to have the Attorney 
General, and now delegated to me, authorize surveillance on an 
emergency basis. Within 3 days, however, we have to go to the 
FISA court with a big package of materials and persuade the 
FISA court that there is probable cause that the person we are 
surveilling, who might well be outside the United States, is an 
agent of a foreign power. So we have to have all that probable 
cause before the Attorney General makes his determination.
    It then has to be put into a package and satisfy the FISA 
court, or else there are consequences. That all takes 
resources. It also means that there are people who are 
legitimate targets overseas against whom we just cannot make 
probable cause that they are agents of a particular foreign 
power, and we cannot surveille them at all. So it is not only 
an impediment in terms of, it takes time, it takes resources, 
but it is precluding us--or it did preclude us--from 
surveilling legitimate targets overseas. It's much better now.
    Senator Cornyn. Mr. Wainstein, you of course were talking 
about matters that are both public, and some classified which 
we are not going to talk about. But I just want to stress, the 
time line that I provided to you was in published news reports. 
I'm not asking you to confirm or deny that time line, but the 
report, according to the New York Post, was that it took 10 
hours later.
    And my constituents in Texas, the parents of this young 
corporal that lost his life searching for these three Americans 
soldiers who were kidnapped and whose discovery was delayed by 
10 hours because of the red tape necessitated by the 
interpretation of the FISA law, I believe contributed to this 
young soldier's death.
    Mr. Wainstein. Absolutely. Absolutely, sir.
    Senator Cornyn. And that's just simply unacceptable. I 
think it ought to be unacceptable to every American, when we 
are at war, to handcuff our American military and intelligence 
officials in this unacceptable way. Just, to me, it's a no-
brainer. I just fail to understand why we need a ``Guarantee 
Full Employment Act'' for lawyers in order to fight a war.
    Let me ask you, there's been some question about the 
retroactive immunity for the telecoms who have participated in 
the intelligence surveillance that you described earlier. There 
is some question whether we ought to cap damages, whether we 
ought to grant them some sort of reimbursement for their 
attorneys' fees, and other costs. But there are other tangible 
consequences associated with litigation which could be avoided.
    I suggest to you that, during Judge Mukasey's testimony, we 
talked about the fact that during the 1993 trial involving the 
World Trade Center, where the trial of Omar Abdul Raman, the 
so-called Blind Sheik, who conspired to bomb the World Trade 
Center, that a list of 200 unindicted co-conspirators was 
disclosed to defense attorneys and later found its way into the 
hands of Osama bin Laden in the Sudan. Bin Laden was, of 
course, on the list. Does that highlight one of the other risks 
attendant to litigation of this nature involving classified 
materials, sensitive classified information might find itself 
in the hands of our enemy?
    Mr. Wainstein. Yes. Absolutely. Now, of course that's a 
different context. The criminal context--we have discussed with 
Senator Specter the Classified Information Procedures Act, 
which helps us there. But still, even in that situation, you 
had disclosure of very sensitive information which was very 
detrimental to our effort against our enemies.
    We are concerned that that is going to happen, even 
doubling, in this litigation. My understanding is, there are 
40-some cases right now around the country. With all those 
cases running, we are gravely concerned that sources not be 
disclosed.
    Senator Cornyn. Thank you very much.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you, Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chairman.
    Just so it is clear what we are talking about, because I 
think everybody agrees that we don't want to handcuff our 
military and our security intelligence forces when they're out 
hunting foreign terrorists, the Protect America Act, as it 
passed by this Congress back in August, would allow no 
restriction or would establish no restriction on our 
intelligence agencies once a person was reasonably believed to 
be outside the United States. Correct?
    Mr. Wainstein. Yes, sir. There were various criteria that 
we had to satisfy before the DNI and the Attorney General could 
issue a certification. But the key finding was that the person 
we were targeting with surveillance was outside the United 
States.
    Senator Whitehouse. Was reasonably from outside the United 
States. And that category, ``reasonably believed to be outside 
the United States'', would include a family on vacation in the 
Caribbean, an American family, all citizens on vacation in the 
Caribbean, that category?
    Mr. Wainstein. If there was a foreign intelligence purpose 
to that surveillance, and if we demonstrated that that person 
or that family was an agent of a foreign power, yes.
    Senator Whitehouse. Where, under the Protect America Act, 
do you have to demonstrate that they are an agent of a foreign 
power?
    Mr. Wainstein. That's under the 12333.
    Senator Whitehouse. Exactly. It's not under the Protect 
America Act. There's nothing in the Protect America Act that 
would prevent the intelligence apparatus of the United States 
from surveilling American citizens on vacation in the 
Caribbean. Correct?
    Mr. Wainstein. One of the criteria is that there is a 
foreign intelligence purpose--this is in the statute--to that 
surveillance, and we have to meet that.
    Senator Whitehouse. That's rather broadly defined, isn't 
it?
    Mr. Wainstein. Well, I think--
    Senator Whitehouse. And there's no judicial review of that 
determination, is there?
    Mr. Wainstein. Well, there's a judicial review of the 
procedures by which we--
    Senator Whitehouse. But no judicial review of the 
determination that that family vacationing in the Caribbean is 
being surveilled for an intelligence purpose.
    Mr. Wainstein. Well, obviously the directives can be 
challenged. Congress set up a mechanism by which they can be 
challenged, so there is court review there. But in terms of 
going to the court--
    Senator Whitehouse. You must be reading a different statute 
than I am. I find no place in which a directive is required 
from a court authorizing a family vacationing in the Caribbean, 
or a businessman traveling to Canada, or somebody visiting 
their uncle in Ireland, from being surveilled by the United 
States. The FISA court is stripped of that jurisdiction by that 
statute, is it not?
    Mr. Wainstein. But the FISA court--right. The FISA court 
reviews the procedures by which we determine that those people 
outside the United States--
    Senator Whitehouse. Right. But they don't review the 
determination.
    Mr. Wainstein. They do not give us approval up front. 
That's the difference.
    Senator Whitehouse. Correct. I think that's an important 
point. I think what we're trying to get at here is, what is the 
best way to protect Americans when they happen to be traveling 
abroad? This is a different world now. People travel all the 
time, for all sorts of reasons. I don't think anybody in 
America believes that they give up their constitutional rights 
the instant that they cross the border.
    You indicated that you thought that there was a difference 
between whether you are in the country or outside of the 
country in the criminal law as well. Has the Department of 
Justice, the United States Department of Justice, ever wire 
tapped an American citizen outside of the United States in a 
criminal investigation without a court order?
    Mr. Wainstein. I honestly don't know historically what the 
Department has authorized or not. What I'm talking about 
though, is that as you know--
    Senator Whitehouse. Are there any American citizens 
presently being surveilled by the Department of Justice outside 
of the United States without a court order in a criminal 
investigation?
    Mr. Wainstein. I wouldn't know. I'm going to be careful, 
because I just don't know, Senator. But the point I was--
    Senator Whitehouse. Will you take those two questions for 
the record, please?
    Mr. Wainstein. I would be happy to take them for the record 
and get back to you.
    The point I was making earlier, sir, is that, as you know, 
in a criminal context there is not a warrant mechanism whereby 
a judge would issue a warrant for a search in Bangladesh or 
Buenos Aires, or whatever. My point is, just the fact that 
there isn't one on the national security side is not that 
striking because there's not such a mechanism on the law 
enforcement side either.
    Senator Whitehouse. It strikes me, though, as we're trying 
to resolve these difficult issues where we're balancing the 
interests of an American citizen on vacation in the Caribbean, 
or traveling to visit their uncle overseas in Canada, or 
whatever, against the absolute necessity that we have the tools 
that we need to combat the threat of agencies and organizations 
abroad that wish to do us harm, that we have a reasonably good 
model in the balance that's been struck on the domestic side, 
through both the warrant requirement on the one hand and the 
minimization rules that protect the people who aren't the 
target, but happen to talk to the target on the other hand.
    As a general proposition and allowing for the fact that 
there are going to be matters of fine legislative language and 
unintended consequences and so forth, as a general proposition 
does the Department of Justice agree that that is a useful and 
important benchmark in evaluating whether we have succeeded in 
striking that balance?
    Mr. Wainstein. I guess I'll draw on my personal experience, 
sir. I, like you and a number of members here, was a criminal 
prosecutor for 15 years of my career. I used Title 3. I used 
the regular warrant requirement in domestic law enforcement. It 
is what I was accustomed to. After 9/11, I got into the 
national security game and started seeing what was necessary. 
Frankly, I don't think that that construct would work. It 
simply would not work, given the volume, diversity of 
communications that we need to intercept, the nimbleness with 
which we need to act to protect.
    Senator Whitehouse. Wouldn't work for who? We have the 
Director of National Intelligence who said that Americans 
targeted abroad numbered 56. That is not in the context of our 
enormous defense effort against terrorism, in the context of 
our enormous--I think $40 billion-plus was recently 
declassified by the DNI intelligence effort against terrorism 
to pay for having people put together packages for 56 folks so 
that an American who travels abroad knows that they enjoy the 
warrant requirement, does not seem to be the kind of 
interference that you are suggesting. Why is it that putting 
together a package for 56 people would so offend that balance, 
in your view?
    Mr. Wainstein. No, I'm sorry. I was talking about a 
benchmark for signals intelligence, period, on the national 
security side.
    Senator Whitehouse. I'm talking only about American 
citizens.
    Mr. Wainstein. In terms of Americans--
    Senator Whitehouse. When they travel abroad.
    Mr. Wainstein. I recognize that that's a different kettle 
of fish and there are different rights implicated. My point is 
that--
    Senator Whitehouse. In fact, as far as we know, the U.S. 
Supreme Court might very well say that they have a warrant 
requirement right. It's never been decided otherwise, has it?
    Mr. Wainstein. No, you're right. It hasn't been decided. 
The problem is, there are operational concerns. One of the 
concerns, for instance, is in the amendment that passed there 
is no emergency provision for going up and surveilling a U.S. 
person overseas without going to the FISA court.
    Senator Whitehouse. I'm with you on emergencies. My time 
has run out. I thank the Chair.
    Mr. Wainstein. So I would be happy to brief you on other 
operational concerns we have about certain aspects of the 
amendment.
    Senator Whitehouse. We are in active discussion.
    Mr. Wainstein. Okay. Thank you, sir.
    Senator Whitehouse. Thank you, Madam Chair.
    Senator Feinstein. Thank you, Senator Whitehouse.
    Senator Graham.
    Senator Graham. Thank you.
    Thank you very much for your service to our country in many 
capacities. We have two concepts that have been competing 
against each other since 9/11, and I have somehow been able to 
make everybody on both sides mad at me at one point in time.
    The first concept is that we are at war, which I agree. 
Some people in the administration had the view that when we are 
at war, there is only one branch of government. That is one of 
the reasons we have had this big fight, is because we've been 
fighting against a theory of the executive branch in a time of 
war that said there's no need for FISA or any other check and 
balance.
    Did you ever feel comfortable personally with the idea 
that, when we authorized the use of force, congressional use of 
force regarding Iraq, that Congress intentionally gave you the 
authority to avoid compliance with FISA?
    Mr. Wainstein. I've read the argument that the AUMF, right 
in the aftermath of 9/11--
    Senator Graham. I mean, do you personally feel comfortable 
with that legal reasoning?
    Mr. Wainstein. I'd have to say, and I'm not just trying to 
hedge, I'd really have to go back and dig into it because it's 
a complicated matter. I don't pretend to be a constitutional 
scholar on the separation of powers issues, at least I don't 
have it at my fingertips.
    Senator Graham. I just want you to understand--I think 
you've been a very good witness--that one of the conflicts 
we've had, is that I'm a conservative, want to win the war as 
much as anybody else, but one thing that conservatives and 
liberals have in common is a concept of checks and balances, 
that we can have military--see, I think we're at war and the 
military should try these people that are caught who are 
suspected of war crimes, but there is a process that you go 
through with court review. So that's one concept that I think 
is now behind us, so I want to put on the record that I 
appreciate the administration's willingness to abandon that 
theory, sit down with us, and try to find a way to comply with 
FISA.
    Now we've got another concept that I think is rearing its 
head in this debate, is that you're trying to apply domestic 
criminal law to a war-time environment. I have been arguing 
very ferociously that we are dealing with an act of war after 
9/11, and the Law of Armed Conflict applies, not domestic 
criminal law.
    I am the first one to say, you cannot hold someone 
indefinitely under domestic criminal law without a habeas 
petition or some court date. But we are not dealing with common 
criminals, we are dealing with warriors who can be kept off the 
battlefield, under the Law of Armed Conflict, for an indefinite 
period because it would be silly to release people back to the 
fight who have vowed to kill you.
    Now, looking at FISA from those two concepts, the Protect 
America Act, I think, has found a sweet spot as far as I'm 
concerned. The general idea that you would need a warrant to 
surveille the activity of an enemy combatant justifies all the 
laws of armed conflict. So, as I understand this compromise 
we've reached, if you find, or we find someone we suspect of 
being part of the enemy force, we have the ability to listen in 
to those communications under the theory that we are 
surveilling somebody who is part of the enemy. Is that correct? 
I mean, that's why we're following these people.
    Mr. Wainstein. It's for foreign intelligence purposes. Yes.
    Senator Graham. Yes. We're not following them for crime 
purposes, we're following them because we're at war.
    Mr. Wainstein. It's a matter of national security and 
foreign intelligence.
    Senator Graham. Right.
    Mr. Wainstein. I mean, that person can also be committing a 
crime at the same time. Of course, international terrorists are 
both a national security threat, as well as a criminal threat.
    Senator Graham. Right. Right.
    Now, when an American is involved, here's where I think we 
need a warrant. If someone is calling me from overseas and you 
think the person calling me is a terrorist, I don't mind you 
listening in to what's being said. But if you believe I'm 
helping the enemy--and this gets back to your question--that I 
am somehow part of a fifth column movement, I want you to go 
get a warrant because you'd be wrong.
    We've had examples of people since 9/11, anthrax, suspected 
of doing something. The government followed them around and 
nothing ever happened. I don't think it is a burden for the 
administration, this administration or any other 
administration, at a point in time to go to a court and say 
``we believe Lindsey Graham is involved with a terrorist 
activity''.
    Do you think that's a burden?
    Mr. Wainstein. No. That's a burden, actually, that we will 
shoulder, sir. Because, according to the legislation that came 
out of the Senate Intelligence Committee, if we want a target, 
when we get to a point where we're targeting somebody in the 
United States--
    Senator Graham. Right.
    Mr. Wainstein.--this is actually under the original FISA.
    Senator Graham. Right.
    Mr. Wainstein. But it continues through the Protect America 
Act. We have to go to the FISA court.
    Senator Graham. And that's really not a burden, is it?
    Mr. Wainstein. Well, it's a burden, but it's a burden that 
we assume and that we feel is appropriate, and that we're 
willing to carry on.
    Senator Graham. If you would have said that 3 years ago we 
wouldn't be doing all this.
    Now, to my friends who want to expand it overseas, I think 
you are creating a burden. As much as I like Senator Wyden, we 
are at war. I do believe that his amendment is expanding FISA 
and doing the same type harm as if you never had to go through 
FISA. As much as I appreciate him, like him, and understand 
that he's doing this for all the right reasons, I hope we will 
find a way not to impose that burden upon our Nation at a time 
of war. That's just my comment, not a question.
    Finally, about the retroactive liability of people who have 
helped us. What effect, if any--a chilling effect, if any--
would it have that if a company is held liable or can go to 
court by answering a request from their government with a 
document that says ``this is a legal request'', what type 
effect would it have in the future of the ability of this 
country to go get people to help us?
    Mr. Wainstein. From my personal, sort of parochial 
perspective, that is the big concern because, you know, I am in 
a division of people whose job is to enable the intelligence 
community to do fast, flexible surveillance when it's 
appropriate, and we're concerned that companies are rational 
beings. They say, Okay, we cooperated before, we then got taken 
into court, and all the damage that goes along with that.
    Next time you come to us, it doesn't matter how good the 
form is that you give us, how strong an assurance there is, 
we're going to go ahead and litigate it all the way out to the 
nth degree to make sure that we protect ourselves and don't end 
up in court later on. That then delays our ability to go up and 
get the surveillance we need.
    Senator Graham. To my colleagues on the committee who think 
we're letting someone off the hook. I respectfully disagree. If 
we go down this road of holding people liable for answering a 
request of our government to help in a time of war, we're 
probably hurting ourselves, not letting someone off the hook.
    Thank you.
    Senator Feinstein. Thank you very much, Senator Graham.
    Senator Durbin.
    Senator Durbin. Thank you, Madam Chair.
    Mr. Wainstein, when I use this little piece of technology 
to make a phone call or to send an e-mail message, I think I 
have a reasonable right to expect that that communication and 
my identity are going to be protected, confidential, private, 
except with some notable statutory exceptions. If the company 
that I'm doing business with receives a warrant to search or 
obtain records, that's understandable. At that point, their 
obligation to me as a customer is secondary to this warrant 
that they received.
    Now, in this context of national security, under the 
statutes written, there is a second possibility. That is, in 
addition to a warrant, there could be this so-called 
certification that the government has the right to request this 
information, who I am, what I said, and what I did.
    Now, you stated this in the most general terms in your 
testimony, in terms of the responsibility of the 
telecommunications provider to me, or any other customer. You 
said: ``The committee's considered judgment reflects a 
principle in common law that private citizens who respond in 
good faith to a request for assistance by public officials 
should not be held liable for their actions.''
    So let me ask you this. In the course of our government's 
reaching out to telecommunications providers, asking for 
information about communications for the purpose of national 
security, did any of those telecommunications providers refuse 
to cooperate, refuse to provide the information?
    Mr. Wainstein. Senator, I'm just not going to be at 
liberty--or equipped, for that matter--to answer that question. 
Obviously it's classified. I wasn't even around during most of 
that, at least in main Justice. But I think that's something 
that you--I'm not sure if you went to the briefing yesterday, 
but colleagues of mine were up there yesterday explaining the 
chronology and the history of the whole program, the terrorist 
surveillance program and the interaction with the providers, 
and we'd be happy to come up and answer any more questions.
    Senator Durbin. So in order to protect what was said at 
that hearing, let me continue on in a hypothetical way, noting 
that there has been one telecommunications provider through one 
of its officers who has reported publicly that they refused to 
cooperate. But let me ask you this. If the question is good 
faith on the part of the providers and we come to learn that a 
telecommunications provider refused to cooperate, saying that 
the certification that was provided by the government was not 
adequate under the law, is that something we should take into 
consideration?
    Mr. Wainstein. In deciding what sort of immunity and 
whether to--
    Senator Durbin. In deciding whether or not it's a good 
faith effort by a company to cooperate with government.
    Mr. Wainstein. Well, not knowing the facts and not being 
able to address the facts even if I knew them--I mean, the fact 
that a company refused doesn't necessarily make the rightness 
of their position. What I see, is that there are letters that 
went out to these companies that said very forcefully, this is 
being directed--this was directed by the President and this has 
been deemed lawful at the very highest levels of the 
government. That's a pretty strong assurance.
    So I guess in terms of good faith, that's very strong 
evidence of good faith. The fact that one company refused to 
cooperate, if that is in fact the case, I don't think that 
necessarily undercuts the strength of those assurances.
    Senator Durbin. I disagree. If a telecommunications 
provider looked at the same certification as another 
telecommunications provider and concluded it was not sufficient 
under the statute to waive that company's responsibility to 
protect the privacy and communications of its customers, I 
think that is relevant to the discussion here.
    Assuming for the sake of discussion this company that has 
already publicly disclosed what happened is factual in what 
they said, we at least know that one telecommunications 
provider took a look at what was being sent and said ``that's 
not good enough. I have a responsibility to my customers to 
protect their identity.''
    So that raises a question of fact, doesn't it, as to what 
is good faith and what isn't. Which company operated in good 
faith? Where do we resolve questions of fact in America? 
Questions of fact and law are resolved in a court. What you're 
suggesting from your testimony is, we don't want to resolve 
this. We don't want to have these telecommunications providers 
held accountable to explain their conduct.
    Now, that troubles me. It troubles me because, from my 
point of view, it's going to have a chilling effect on the 
relationship of telecommunications providers, their customers, 
and our government. How much can I trust in the future if I 
know the telecommunications providers can disclose my 
conversations, information about me, with impunity, with 
immunity under the law? What do you think?
    Mr. Wainstein. Senator, thanks for that line of questions. 
Back to the fact that one company might have refused. Keeping 
it in the abstract, because I don't know the facts, it could be 
characterized that they did a good faith job and they 
determined that this wasn't sufficient. It also could be an 
example of the phenomenon I just described to Senator Graham, 
which is a company saying, boy, I'm just not going to do 
anything to assist the government.
    I'm not going to make it easy. I'll go into my shell, and 
not try to help because I'm going to be risk averse. Well, the 
problem is, is that the more these companies are exposed, the 
more you're going to have companies doing exactly that. Now, I 
don't know what the thought process was in this particular 
case, but I'm saying that it could be--
    Senator Durbin. Interesting.
    Mr. Wainstein. It could be looked at that way.
    Senator Durbin. An interesting and relevant question. Isn't 
the law and fact usually resolved in a court, by a judge? And 
the point that was made earlier by Senator Leahy is that at 
some moment in time, after the public disclosure of the so-
called ``secret'' program, our government decision, you know, 
the safest thing to do is to go through the FISA court. If we 
hand them a court order, we don't have to worry about whether 
or not this authorization document is really going to carry the 
day. That, to me, was a conclusion and an admission of the 
obvious.
    That is an admission which I think shows where our 
government should have been from the start. They knew that if 
they went through the FISA court with a court order, the 
telecommunications provider would have no argument. But when 
you get to this so-called authorization, there clearly was an 
argument, at least for one telecommunications provider.
    So, you know, it strikes me as strange, middling strange, 
here, that we're in a position saying that this company that is 
supposed to protect my identity and my communications, if it 
asserts my privacy, my right to privacy over a government 
request, that somehow they're obviously not doing their 
``patriotic duty''. That's how you referred to it, their 
``patriotic duty''.
    It's even been suggested by one of my colleagues here that 
these lawyers bringing this lawsuit, we've got to question 
whether they might be connected with terrorist organizations. 
Remember that? Remember that statement that was made earlier? 
Hasn't this gone pretty far afield from the fundamental 
question, the conflict between privacy and security? Isn't it 
reasonable to say that company has a statutory and personal 
obligation to me to protect my identity, and only to give it up 
for a legitimate, statutorily recognized purpose, a court order 
or a certification that they can stand behind?
    Mr. Wainstein. Just to be clear, I've not heard--and I've 
followed this primarily in the newspapers--of bad faith on the 
part of any companies. We're not trying to suggest--I'm not 
suggesting that at all. I think, actually, companies acted in 
good faith, and I do believe they acted out of patriotic duty, 
or sense of patriotic duty.
    I think, though, the legislation in the Senate Intelligence 
bill is a good middle ground where it gives targeted immunity 
for the events after 9/11 where companies did act on these 
assurances--but then lays out, prescribes a course for those 
kind of defenses in the future. There's a second part which 
does that, which I think is quite sound because it says, look, 
we're going to deal with this one-shot problem post 9/11, 
between 9/11 and when we went to the FISA court or got FISA 
court approval, but then from here on out, this is the 
mechanism that we're going to use, and we'll do that without 
having to resort to the State Secrets Doctrine. I think that's 
a very sound approach.
    Senator Durbin. Thank you very much.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you, Senator. Thank you, Mr. 
Wainstein.
    Senator Hatch has not yet had his first round. But before 
turning to him, I would like to state what the Chair's intent 
is. If anyone disagrees, please let me know. I'd like to go 
until 1:45, and we have a second panel. We'll ask the panelists 
to think about their remarks--we have their written remarks--
summarize them, and then limit the rounds to a strict 5 
minutes, if that's agreeable with everybody.
    [No response].
    Senator Feinstein. Hearing no objection--I meant 12:45. 
Excuse me. Hearing no objection, that's the way we'll proceed.
    Senator Hatch, it is all yours.
    Senator Hatch. Well, thank you, Madam Chairman. I 
appreciate it.
    I am sorry to keep you a little longer. But the current 
bill provides authorization for the Attorney General and the 
Director of National Intelligence to direct in writing an 
electronic communications service provider to provide the 
government with all information, facilities, and assistance 
necessary to accomplish authorized acquisition.
    However, I don't see that the bill language has specific 
non-disclosure language for these likely classified directives. 
Can you research whether this is needed and provide an answer 
to the committee's consideration of the bill?
    Mr. Wainstein. [microphone off].
    Senator Hatch. Okay, if you would.
    Now, there have been some suggestions to have the FISC 
assess compliance with the targeting and minimization 
procedures. There are numerous oversight mechanisms in this 
bill already. Wouldn't this put the FISC in a position where it 
is making foreign intelligence determinations in place of 
analysis?
    Mr. Wainstein. That is the problem, that it would get the 
FISC in a position of being operational to the extent that it 
is not when it assesses compliance for, let's say the 
minimization procedures in the typical, traditional FISA 
context where you're talking about one order, one person. Here, 
some of our orders might well be programmatic, where you are 
talking about whole categories of surveillances. That would be 
a tall order for the FISA court to assess compliance.
    Senator Hatch. That's my understanding. The House bill on 
FISA requires that the FISC approve any foreign targeting 
before it occurs. We need to remember, we're talking about 
foreign targets that are overseas. From the Department of 
Justice's perspective, what are the negative consequences of 
prior approval?
    Mr. Wainstein. It's that, prior approval raises a host of 
issues. One, we might not get the approval and that can slow 
things down. The House bill actually says, if at the end of 45 
days the court hasn't ruled, our surveillance has to go down. 
There is an emergency procedure, but it goes down and we lose 
it. There's not even an mechanism for surveillance remaining up 
as we appeal a declination by the FISA court.
    We have seen over time, as we've discussed earlier, as FISA 
has migrated--the jurisdiction of FISA has migrated to 
surveillances outside the United States with the change in 
technology since 1978, more and more we've had to go to the 
FISA court to get approval at the front end, and that's more 
and more burden on us and more--
    Senator Hatch. And it always takes a considerable amount of 
time to go through the FISA procedure, sometimes less than 
others. But if it's a serious request, it can take a number of 
days, couldn't it?
    Mr. Wainstein. Yes. It can take a long time. It can also 
take a lot of person hours because you have to put together a 
lot of paper.
    Senator Hatch. But we could lose the intelligence that 
really might protect our country.
    Mr. Wainstein. That's the concern. Yes, sir.
    Senator Hatch. That's my concern. Other legislative 
proposals relating to FISA modernization have called for a 
narrow definition of foreign intelligence information applying 
only to international terrorism. Now, please provide an 
explanation of the flaws in this suggestion and how this type 
of unnecessary limitation could facilitate our intelligence 
community missing the next step?
    Mr. Wainstein. That's an interesting question, sir. For 
instance, the bill that the House is considering would take the 
definition of foreign intelligence information that is in FISA 
that talks about all of the sorts of information that you would 
think would relate to the national security, but would carve 
out, leave out of that definition in the House bill 
intelligence relating to the foreign affairs of the country.
    Other bills have said, let's just limit this to 
international terrorism, not all the other types of foreign 
intelligence. The reality is, our foreign intelligence 
collection network and our intelligence community operates in a 
way that it gets the whole range of foreign intelligence--
    Senator Hatch. Sometimes those ranges are interconnected 
that would lead to terrorism to begin with. You might not get 
the terrorists without the other range of information. Is that 
right?
    Mr. Wainstein. Absolutely. And to try to draw lines, to 
have analysts draw lines and say, well, this is more of 
interest to the State Department than the Defense Department, 
therefore it's foreign affairs and we can't do it, it would be 
very problematic operationally.
    Senator Hatch. Yes. We're living in the big-time world here 
where we have a lot of people who'd like to destroy the United 
States and everything we stand for, and our allies as well. We 
have to stand tough on these things. Is that a fair analysis?
    Mr. Wainstein. I agree sir. And you can bet that our 
adversaries, especially those other states who are directing 
intelligence operations against us, they are definitely trying 
to get all foreign affairs information and they're not limiting 
themselves.
    Senator Hatch. They're not limiting themselves just to 
terrorism.
    Mr. Wainstein. Not at all.
    Senator Hatch. Because they don't have a threat from us.
    Mr. Wainstein. Right.
    Senator Hatch. Well, this legislation is crystal clear 
about prohibiting reverse targeting. Testimony in the second 
panel leads me to believe that people still don't understand 
that particular issue. Now, can you describe for us reverse 
targeting and how it is not allowed under current law, as well 
as this legislation?
    Mr. Wainstein. Thank you for that question because it is, 
understandably, a complicated area. What it means when we 
target somebody for surveillance, it means--and this is very 
operational--the intelligence community actually takes its 
gizmos and targets them against the person or the facilities 
that person is using outside the United States, so under this 
legislation we would be able to do that without going to the 
FISA court.
    Senator Hatch. Right.
    Mr. Wainstein. The concern is, what we would do, is we'll 
find Ken Wainstein, who's outside the United States, and we'll 
target him, but we're doing that really because we want to get 
the communications of a person within the United States. So the 
concern is, we're actually using this to circumvent the court 
to actually surveille someone in the United States.
    This legislation from the Senate Intelligence Committee 
makes it clear we cannot do that. Original FISA said we cannot 
do that. Once we target the person in the U.S., we have to go 
to the FISA court. And as a technical matter, targeting the 
person in the United States means a technical shift, so we're 
actually shifting our targeting and our apparatus over to that 
person. It's against the law to do that. We'd have to go to the 
FISA court.
    In fact, it would make no sense, sort of as a matter of 
tradecraft, if we really had an interest in the person in the 
U.S., to just limit our surveillance to the person who's 
outside the U.S. and talking to him, because we'd only get that 
suspect's communications to the person outside the U.S. You 
wouldn't get all that other person's communications. Instead, 
what we would do is go to the court and get a FISA order to get 
all that person's communications. So this legislation makes 
clear we can't do that, FISA made it clear we can't do that, by 
letter from us to this committee a couple of months ago we made 
it clear we're not doing it, we won't do it, and congressional 
oversight will ensure that we won't.
    Senator Hatch. Madam Chairman, could I have just a little 
of additional time to make a comment or two that I'd like to 
make?
    Senator Feinstein. Yes.
    Senator Hatch. I appreciate your testimony and I appreciate 
the difficulties in these areas. I hope that people aren't 
going to try and exploit some of these situations because we 
are talking about protecting people in this country and our 
allies around the world. It takes an awful lot of effort. 
Unfortunately, more has been disclosed about what we have been 
trying to do than I think should have been disclosed.
    Section 703(c) of this bill has received a great deal of 
attention, with good reason. This section would require court 
approval for acquisitions targeting American persons overseas. 
Unlike current provisions of FISA relating to electronic 
surveillance, this section provides no emergency provision for 
an acquisition targeting an American citizen overseas. Now, 
this means that it would be harder to surveille a citizen 
outside of the country than inside the country. Do you agree 
with that?
    Mr. Wainstein. Yes. That's the irony of it.
    Senator Hatch. Given the importance of intelligence 
collection to our safety, why in the world would we handcuff 
ourselves in this way? I mean, even if this section is amended, 
it is a dramatic departure from the 26 years of history under 
Executive Order 12333. I think it's imperative for us to 
emphasize that there are many warrant exceptions to the Fourth 
Amendment.
    The question is whether the search is ``reasonable''. For 
example, the individuals attending today's hearing were forced 
to go through a magnetometer just go get access to this 
building. Now, this was a warrantless search, but I think 
everybody would agree that it's a reasonable search.
    So if the Attorney General of the United States determines 
via probable cause that an American citizen overseas is an 
agent of a foreign power, is a warrantless acquisition of his 
communications reasonable? I think the answer is an emphatic 
``yes''. Do you agree?
    Mr. Wainstein. Yes, sir. And I think that's the basis for 
the 12333 mechanism that has been in place. As you point out, 
there are many scenarios where a search is done: at border 
searches, stop points where they stop cars, whatever the term 
is, here going in and out of public buildings where there are 
searches. They are done without court order, but they're 
considered ``reasonable''. Reasonableness is the touchstone. 
That's the critical element for searches overseas, and that is 
satisfied by this 12333 mechanism. It's been found that way by 
the court.
    Senator Hatch. I'm grateful to the Chairman for giving me a 
little extra time.
    Could I put this in the record?
    Senator Feinstein. You certainly may, Senator.
    Senator Hatch. Madam Chairman, I would like to put in the 
record the October 29, 2007 letter from James B. Comey, former 
Deputy at Justice, John Ashcroft, the former Attorney General, 
Jack Goldsmith, who has been quoted in the media continuously, 
and Patrick F. Philbin.
    [The letter appears as a submission for the record.]
    Senator Hatch. This letter is directed to the Chairman and 
Ranking Member, Chairman Leahy and Ranking Member Specter. It's 
written to support the carrier immunity provision, passed with 
bipartisan support in the FISA reform legislation recently 
reported out of the Senate Select Committee on Intelligence and 
now before your committee for consideration.
    It is a very interesting letter and makes a very good case 
that we're talking about protection of our people in this 
country. If we don't get the tools to protect, and if we don't 
have access to the telecom companies and others, if they are 
going to be sued, there's $40 billion worth of suits because 
they cooperated with our intelligence community, if we don't 
give them immunity there isn't going to be any cooperation in 
the future. How would that affect us?
    Senator Feinstein. Senator, your time--I've been very 
generous.
    Senator Hatch. You have been. I think--
    Senator Feinstein. I'm just--
    Senator Hatch. I think I'll have to quit at that question.
    Senator Feinstein. I think you might be well advised.
    Senator Hatch. Okay. Well, if you answer that, I'll keep my 
mouth shut and I won't even ask for a second round.
    Senator Feinstein. Quickly, Mr. Wainstein.
    Mr. Wainstein. It will detrimentally affect us, Senator 
Hatch. Very much so.
    Senator Feinstein. You've got the answer, Senator. Thank 
you very much.
    Senator Hatch. Thank you.
    Senator Feinstein. Senator Brownback.
    Senator Brownback. Thank you very much, Madam Chairman.
    Mr. Wainstein, thank you for your testimony. I've just got 
a couple of points and they're ones you've covered, but I just 
want to make sure that I'm clear on it and I understand you 
fairly as well.
    One, just really following up with Senator Hatch's 
thoughts, we're going to be in this fight on terrorism, I 
think, at least for a generation. If we don't have private 
companies, private individuals cooperating with us, I think 
we're going to have a longer fight, and we'll have a less 
successful fight.
    And so we've got to give them some liability protection to 
be willing to work with us. That's why I like to see the 
provision in the bill. The FISA Amendment Act goes, I think, a 
long way toward giving the intelligence community, which plays 
this vital role of protecting the lives of Americans and our 
neighborhoods around the world, the tools it needs.
    I am especially pleased that the Act provides liability 
protection for the communications service providers. I just 
think that is incredibly important. A guy yesterday was telling 
me that telecommunication intelligence is the queen on the 
chessboard now for us. With the difficulty of human 
intelligence, this is just key. We've got to be able to get at 
this information and we've got to be able to protect people's 
civil liberties.
    I agree with all of that. I just want to make sure, from 
your perspective, just to be clear, this bill does not grant 
any immunity for criminal acts that might be done by private 
individuals.
    Mr. Wainstein. No, sir, it doesn't.
    Senator Brownback. Okay. And it does not grant immunity for 
any government agencies or officials?
    Mr. Wainstein. No. It's for the providers.
    Senator Brownback. Okay. So even with the carrier immunity, 
there are still avenues for individuals to challenge actions 
that might take place. Is that correct?
    Mr. Wainstein. Absolutely. I think, actually, if people 
have concerns, it's about the legality of the program as 
determined by the government. So if they're going to litigate, 
they should direct their litigation at the government that 
assured the providers that this was legal.
    Senator Brownback. It sure looks like to me, if we don't 
provide this liability immunity to the communications 
companies, they're going to start turning us down for a request 
for information that we should be able to lawfully obtain. Is 
that correct?
    Mr. Wainstein. That's my concern, that they'll turn us down 
or they'll just feel like, to protect themselves against 
potential liability down the road, they've got to litigate 
everything we give them. They've got to challenge every order, 
every directive just to make sure that if someone down the road 
sues them, they've got a record, a record of having pushed 
every button and made sure that they've looked at every angle. 
That is--
    Senator Brownback. That eats up time.
    Mr. Wainstein. It eats up time.
    Senator Brownback. That takes us away from being able to 
get the intelligence information that is probably in a real-
time need, would be my guess.
    Mr. Wainstein. Absolutely. When we hear about a facility we 
want to surveille, we need to go up immediately. That's why we 
use the emergency authority quite often. But just like 
criminals who go through telephones all the time, change their 
phones all the time, terrorists will change their modes of 
communication. So if we can't get up and going on them quickly, 
we often lose the opportunity to get the information we need.
    Senator Brownback. And for us to be able to get the private 
sector cooperation, they need the liability limitations or the 
liability immunity. Is that correct?
    Mr. Wainstein. Yes, sir.
    Senator Brownback. As a lawyer who does not practice this 
type of law, but if I were advising a company without that 
liability limitation or immunity exposure, I would just say 
``don't do it''. The safe answer is ``no''. The safe answer is 
to make them go through the court system. I just don't know why 
anybody would cooperate with us without that.
    There was a great piece in the Wall Street Journal today. 
It was former Attorney General Civiletti and Thornburgh, former 
FBI and CIA Director Webster that wrote this: ``The government 
alone cannot protect us from the threats we face today. We must 
have the help of all our citizens. There will be times when the 
lives of thousands of Americans will depend on whether 
corporations, such as airlines or banks, are willing to lend 
assistance.
    If we do not treat companies fairly when they respond to 
assurances from the highest levels of the government that their 
help is legal and essential for saving lives, then we will be 
radically reducing our society's capacity to defend itself.'' I 
don't know if it could have been put any more clearly or 
succinctly. I presume you would agree with that statement.
    Mr. Wainstein. Absolutely. It's stated much better than 
I've stated it here today. But that is the point, that we run 
the risk of really handicapping ourselves in the war on terror.
    Senator Brownback. Madam Chairman, thank you for this 
chance. Mr. Wainstein, thank you for your work. Godspeed.
    Mr. Wainstein. Thank you very much, Senator Brownback.
    Senator Feinstein. The hour is upon us for you to depart. I 
want to thank you very much. I know the committee appreciates 
your testimony. So, thank you, Mr. Wainstein.
    Mr. Wainstein. Thank you very much, Madam Chairman. Thank 
you for the opportunity.
    Senator Feinstein. Thank you.
    We will move quickly on the next panel. As they come up, I 
will introduce them.
    Ed Black is the president and CEO of the Computer & 
Communications Industry Association, where he previously served 
as vice president and general counsel. Mr. Black also serves on 
the State Department's Advisory Committee on International 
Communications and Information Policy. Mr. Black spent time in 
the State and Commerce Departments during the 1970's, focusing 
on a range of issues, including telecommunications and 
technology policy. He has worked for two Members of Congress.
    The next person is Patrick Philbin, who currently works at 
the law firm of Kirkland & Ellis. From 2001 to 2005, Mr. 
Philbin served in the Department of Justice, where he focused 
on national security, intelligence, and terrorism issues.
    As a Deputy Attorney General in the Office of Legal Counsel 
from 2001 to 2003, a critical time, Mr. Philbin advised the 
Attorney General and counsel to the President on national 
security issues. As an Associate Deputy Attorney General from 
2003 to 2005, he oversaw and managed national security 
functions of the Department, including applications for 
electronic surveillance under the Foreign Intelligence 
Surveillance Act.
    Morton Halperin is the director of the U.S. Advocacy at the 
Open Society Institute, and the executive director of the Open 
Society Policy Center. Dr. Halperin has served in three 
administrations, with positions in the State Department, the 
National Safety Council, and the Defense Department.
    Dr. Halperin has also worked for the American Civil 
Liberties Union, serving as director of the Center for National 
Security Studies from 1975 to 1992. He has taught at several 
universities, including Harvard, Columbia, and MIT. He has 
missed the West Coast in that area.
    But we will now proceed. I will ask the panelists, 
beginning with Mr. Black, to try to confine their remarks to 5 
minutes, and then we will followup in like manner.
    Mr. Black?

   STATEMENT OF EDWARD BLACK, PRESIDENT AND CEO, COMPUTER & 
     COMMUNICATIONS INDUSTRY ASSOCIATION, WASHINGTON, D.C.

    Mr. Black. Thank you, Senator Feinstein. It's a pleasure to 
be here. I am Ed Black, president and CEO of the Computer & 
Communications Industry Association.
    For 35 years, CCIA has consistently promoted innovation and 
competition through open markets, open systems, and open 
networks. We greatly appreciate the opportunity to discuss the 
critical intersection of national security law and privacy 
rights before this committee.
    As we all know, the Internet is an unprecedented and unique 
force for democratic change and socioeconomic progress. 
Increasingly, our Nation's digital economy--indeed, our global 
competitiveness--depends on the dynamism and openness of the 
Internet.
    In the digital economy, all information service companies 
have a custodial role to play regarding two key fundamentals of 
the Internet: free speech, as protected by the First Amendment, 
and privacy and security, protected by the Fourth.
    If the marketplace loses confidence in the security of 
business and personal transactions online, the entire digital 
economy could grind to a halt. We understand our industry's 
technology and the many ways in which it can be used, and ways 
it can be misused. In addition to the most obvious domestic 
benefits, the Internet is a tool for spreading freedom and 
democracy around the world. Indeed, our government must 
continue to lead by example in promoting the freedom of ideas 
and communications that the Internet makes possible.
    We urge you to ensure that this legislation not weaken the 
hand of American companies that must contend with escalating 
demands for censorship and surveillance by foreign secret 
police around the world. CCIA supports current legislative 
efforts to amend FISA to achieve a sound balance between 
effective terrorist surveillance, vital to our national 
security, and the constitutionally protected rights to privacy 
and free speech.
    We want to be good citizens. We do not, however, want to be 
police agents. In order to do that, we need protection not just 
from third party liability for acquiescing to proper demands, 
but protection from improper government pressure or inducements 
as well.
    The Senate Intelligence Committee legislation, S. 2248, 
while providing some important improvements over the hastily 
passed Protect America Act, will allow too much surveillance of 
Americans based on executive certification without a court 
order, and disturbingly, the bill provides retroactive immunity 
from civil liability for those who may have participated in any 
illegal program without a full understanding of what conduct is 
being immunized.
    If we continue to make up the rules as we go along, any 
violation of the Constitution perform to serve a very tempting 
national security or law enforcement purpose and can be 
rationalized and covered up by retroactive immunity. 
Retroactive immunity for participation in the recent secret 
government surveillance program is premature at best.
    If immunity for past activities is granted prior to full 
disclosure and accountability, Congress and the public may 
never understand the real nature of the NSA warrantless wire 
tapping program. We also believe broad retroactive immunity 
would be ill-advised in any event because it would perpetuate 
uncertainty, confusion, and second-guessing in the future. If 
retroactive immunity is granted in this case, future extra-
legal requests will be accompanied by a wink and a promise of 
similar immunity after things settle down.
    Civil litigation should be allowed to proceed. Even if 
major portions of the proceedings need to be held in camera and 
the scope of discovery narrowed, judges--and to the extent 
compatible with serious national security concern, the public--
should, and needs to, learn what really happened in these 
cases.
    In conclusion, millions of workers in our industry believe 
that we are an industry that can be a strong, positive force 
for our society. The underlying desire to facilitate 
communications, the transfer of information and knowledge, and 
the building of bridges across cultural boundaries: these are 
core motivations of people in our industry. These motivations 
are part of why our industry is successful. The economic 
rewards can be great, but they are as much a consequence as 
they are a motive.
    To sustain this positive force, we must work together to 
establish processes and protections for private, personal, and 
business information that is so critical to the open and free 
use of the Internet. Our industry needs clear and 
constitutionally proper ground rules that are only deviated 
from through well-defined, transparent processes. These rules 
must be straightforward enough to be publicized and understood 
by U.S. citizens and business people who may be called upon to 
assist their government in these uncertain times.
    Thank you.
    Senator Feinstein. Thank you, Mr. Black. And thank you for 
coming so close to the time limit. I appreciate it very much. 
Excellent testimony, too.
    [The prepared statement of Mr. Black appears as a 
submission for the record.]
    Senator Feinstein. Mr. Philbin.

  STATEMENT OF PATRICK F. PHILBIN, PARTNER, KIRKLAND & ELLIS, 
                        WASHINGTON, D.C.

    Mr. Philbin. Thank you, Madam Chairman. I will try to keep 
on the time limit as well.
    I gained experience related to FISA and electronic 
surveillance during my service at the Department of Justice and 
learned that electronic surveillance is a vital intelligence 
tool.
    At the same time, it's an intrusive technique that if not 
constrained and controlled properly, can threaten the liberties 
and privacy of American citizens. Ensuring that electronic 
surveillance remains an agile and adaptable tool, while at the 
same time protecting American liberties, is the challenge 
Congress faces in amending FISA.
    In my testimony, I'd like to cover three points related to 
bill 2248. First, I want to express support for the provisions 
in the bill that will allow the executive to target the 
communications of persons reasonably believed to be overseas 
without first going to the FISA court. These provisions are 
consistent with FISA's original purpose and are necessary to 
ensure that FISA does not fall out of step with changing 
technology.
    FISA was not meant to regulate the collection of 
intelligence on the communications of persons overseas. 
Changing technology has led to the fact that some 
communications going through the United States are now under 
the FISA court jurisdiction. In my view, given changes in 
technology, a longer term solution to make the application of 
FISA less dependent on the medium used to carry a 
communication, such as wire versus radio, and more directly 
tied to the location of the target, is definitely warranted.
    This provision is a good start in that direction. It 
appropriately addresses the Nation's intelligence needs, 
especially during the ongoing conflict with Al Qaeda, where 
speed and flexibility in responding to targeting and tracking 
of subjects overseas are vital for intelligence success.
    Second, I want to express my support for the provisions in 
the bill that grant immunity to telecommunications carriers 
against lawsuits based on the carriers' alleged participation 
in intelligence activities involving electronic surveillance 
authorized by the President. I think that that immunity is 
warranted for several reasons. First, protecting the carriers 
who allegedly responded to the government's call for assistance 
in the wake of the devastating attacks of 9/11 is simply the 
right thing to do.
    The allegations here are that, in the wake of 9/11, 
corporations were asked to assist the intelligence community 
based on a program authorized by the President himself and 
based on assurances that the program had been determined to be 
lawful at the highest levels of the executive branch.
    Under those circumstances, corporations should be entitled 
to rely on those representations and accept the determinations 
of the government as to the legality of their actions. It would 
be fundamentally unfair, in my view, to simply leave those who 
relied on representations from the government twisting in the 
wind.
    The fundamental notion of fairness here is also rooted in 
the law. As was mentioned in an earlier session, there is a 
common law immunity for those who assist a public officer who 
calls for assistance in a time of crisis. It is the same 
principle of fairness that applies here.
    Second, immunity is appropriate because allowing the suits 
to proceed would risk leaking sensitive national security 
information. As the suits progress, they will inevitably risk 
disclosure of intelligence sources and methods that will damage 
the national security. The assertion of state secrets privilege 
is not a cure-all here. If it were a cure-all, the litigation 
would not still be proceeding 2 years after it was filed.
    The longer the suits proceed, the more details concerning 
the ways the intelligence community may seek information from 
the Nation's telecommunications infrastructure will leak. Our 
enemies are far from stupid. As such information trickles out, 
they will adapt their communications security to thwart our 
surveillance measures and valuable intelligence will be lost.
    Third, failing to provide immunity to the carriers here 
would discourage both companies in the communications sector 
and other corporations from providing assistance in the context 
of future emergencies. In the continuing conflict with Al 
Qaeda, one of our Nation's greatest strategic assets is our 
private sector and the information it has available to it.
    Intelligence is vital for success in this conflict, and 
particularly communications intelligence. If immunity is not 
provided, however, it is likely that in the future private 
sector corporations will prove much more reluctant to provide 
assistance swiftly and willingly, and critical time in 
obtaining information will be lost.
    I agree fully with the conclusion in the report in the bill 
from the Senate Select Committee on Intelligence that ``the 
possible reduction in intelligence that might result from this 
delay is simply unacceptable for the safety of our Nation.''
    Finally, I disagree with the suggestion made by some that 
carriers should be forced, through the threat of liability, to 
serve a gatekeeper role to second guess and provide, in 
essence, oversight on the intelligence-gathering decisions of 
the executive. Communications companies are simply not well-
positioned to second-guess government decisions regarding the 
propriety or legality of intelligence activities.
    I know from experience that the legal questions involved in 
such matters are highly specialized, extremely difficult, often 
involve constitutional questions of separation of powers that 
have never been squarely addressed by the courts, and are not 
readily susceptible for analysis by lawyers at a company whose 
primary concern is providing communications service to the 
public.
    Conducting the complete legal analysis, moreover, requires 
access to facts and intelligence information that is not, and 
should not be, fully shared outside the government. We should 
not adopt policies that effectively require private 
corporations to demand intelligence information from the 
executive and to conduct their own mini-investigations into the 
propriety of intelligence operations. At the same time, there 
must be some mechanism for addressing concerns raised about the 
intelligence activities at issue.
    As the committee is likely aware, I am intimately familiar 
with the legal analysis conducted within the executive branch, 
and debates about that analysis. I can understand that 
reasonable people want further probing into the legal basis of 
the program, and ensuring that all intelligence activities do 
strictly adhere to the law is an imperative.
    But the question of liability for telecommunications 
carriers is logically and legally distinct from that debate. 
The mechanism for addressing legal concerns about the 
intelligence programs is through rigorous oversight within the 
executive branch and through a joint effort between the 
executive and Congress to ensure appropriate oversight. The 
executive and Congress is charged with that responsibility. 
Private lawsuits are not the best mechanism for providing that 
oversight.
    In conclusion, Madam Chair, I'd just like to note that I 
agree with the comments that were made earlier, that a warrant 
should not be required from the FISA court for conducting 
surveillance of a U.S. citizen overseas. That is an expansion 
of the FISA court's authority that I believe is unwise.
    Thank you.
    Senator Feinstein. Thank you, Mr. Philbin.
    [The prepared statement of Mr. Philbin appears as a 
submision.]
    Senator Feinstein. Dr. Halperin.

  STATEMENT OF MORTON H. HALPERIN, DIRECTOR OF U.S. ADVOCACY, 
            OPEN SOCIETY INSTITUTE, WASHINGTON, D.C.

    Dr. Halperin. Thank you very much. I want to note that 
there are, of course, many other people and many other 
organizations that are expert on this and have deep concerns 
about it. I know it was not possible to have them all as 
witnesses, but I trust the committee will look at those views 
as well.
    I want to focus on the issue of immunity and the question 
of sole means, because I think they're very closely related. 
The discussion we've had this morning is a logical one, but it 
totally ignores the history and the legislation that is before 
us. It ignores the history because we were at exactly the same 
point when FISA was introduced.
    I was very much a part of that debate. The phone companies 
came in in exactly the same way. They were being sued. I had 
sued them for participating in the wire tap of my home phone. 
They said this is unreasonable. We should not be required to 
second guess. When we get a request from the government, we 
should be able to know very clearly what we're supposed to do.
    Congress provided that answer with extraordinary clarity in 
the FISA legislation. It said, if you have a FISA warrant or a 
certification from the government that the specific provisions 
of FISA which permit surveillance without a warrant have been 
met, if you get one of those two things, you must cooperate.
    If you get something else, like a certification that says 
the President has decided this is lawful without citing a 
statutory provision, then they were supposed to say no, and 
they were subject to civil and criminal penalties if they did 
not, both State and Federal civil and criminal penalties.
    I think the law was absolutely clear. So to now cite the 
common-law rule that you need to cooperate, or say it is 
unreasonable to put phone companies in this position, ignores 
the fact that Congress answered that question with great 
precision in FISA. It is also illogical, the argument that's 
being made, because the argument says we want them to cooperate 
in the future, and therefore we have to give them this 
immunity.
    But as the witness from the Justice Department agreed--and 
I thought that was very important--this bill does lay out for 
the future a scheme which does not require the phone companies 
to do any of their own analysis or to make their own judgment 
about what is patriotic.
    Now, paradoxically it's the same scheme that was in the 
original FISA, but a little clearer. I think there are ways in 
which you can go beyond the Senate Intelligence Committee bill 
to make it even clearer that Congress means to say to the phone 
companies, you either have a warrant or you have a 
certification that a specific provision of FISA where you don't 
need a warrant is involved. If you get one of those two you 
must cooperate, and if you do not, you may not cooperate.
    Now, that's a rule going forward which will lead the phone 
companies to cooperate because there's no judgment. So the 
logic that says we need to give them immunity about the past so 
that they'll cooperate in the future makes no sense, because 
we're telling them to cooperate in the future not if they get 
another plea that the common law requires them to cooperate, 
but only if the government meets the standards for the 
certification. So, I would urge you to build on what the Senate 
Intelligence Committee did and add to those provisions.
    Another very important provision, in my view, is the 
question of how you avoid them using this when the real 
interest is a U.S. person. Again, I think we had very important 
testimony from the Justice Department saying that when a U.S. 
person becomes of interest to the intelligence community, we 
need to get a warrant from the FISA court, and we want a 
warrant because we want all of his conversations.
    That is the language that is in the House bill. The House 
bill says that when a person in the United States becomes--a 
significant reason to do the surveillance is because you want 
information about a person in the United States, you need to 
get a warrant from the FISA court. I would urge you to add that 
to the bill. It changes nothing. It's exactly the assurance you 
were given from the Justice Department. But it makes it a 
statutory requirement and puts the FISA court in the process of 
making sure that when the purpose is to learn about an 
American, a person in the United States, then you need a 
warrant.
    Finally, more generally, I think you do need to give the 
FISA court some additional leeway so that it can supervise the 
process. As we heard in one of the exchanges, the way the bill 
is written, even if the FISA judge decides that the 
minimization procedures are being violated, there's nothing he 
can do. Now, I think a judge would say it doesn't matter; if 
this is before me, I'm going to decide it. But I think Congress 
ought to make it absolutely clear that the FISA court has to 
supervise all of the requirements of the statute.
    Thank you.
    [The prepared statement of Dr. Halperin appears as a 
submission for the record.]
    Senator Feinstein. Thank you all very much. Dr. Halperin, 
you speak very quickly, and I think very slowly, so we've got a 
little point here. In looking at your point on the warrant 
accompanying the certification with respect to the existing 
FISA law, and I'm looking at the law, it would seem to me, if 
one just added a few words to say that the warrant essentially 
must accompany--it's Section 2511(2)(a)II: ``Notwithstanding 
any of the providers of wire or electronic communications 
services or officers, agents, landlords, custodians, other 
persons are authorized to provide information, facilities, or 
technical to persons authorized by law to intercept wire, oral, 
or electronic communications, or to conduct electronic 
communications as defined. . .only if such provider, its 
officers. . . have been provided with a court order directing 
such assistance.'' So we would only have to add one word, 
``only''.
    Dr. Halperin. Well, I think ``only'' is important, but you 
certainly could add it. The other change I think you make, and 
need to make, and it's one of the four I lay out in my 
testimony, is indeed which talks about a certification as the 
alternative to the warrant. It says that ``no warrant or court 
order is required by law.'' I think you need to say ``by this 
law'' and that ``all statutory requirements of this statute 
have been met, and that the specific assistance is required'', 
so that you make it clear that a certification has to be based 
on a specific provision.
    For example, you say in an emergency you can go by a 
certification, or for the least--in the original FISA you can 
go by a certification. So I think with those changes in these 
words, you would eliminate some ambiguity, and I suggest 
specific language in my testimony.
    Senator Feinstein. Thank you.
    Mr. Philbin, what do you think of that?
    Mr. Philbin. Madam Chair, I am not sure, responding on the 
fly, that I have a very well thought out response. But it is 
certainly true that the interaction between 18 U.S.C. 2511 and 
FISA is complex and that is the key for determining how 
effective any exclusivity provision is going to be, which I 
understand to be your concern. I think it would be a mistake to 
change the provision in 2511(a)(2) to restrict the way that the 
certification immunity there is provided. I think that that's 
been in the law for a long time. It's been in the law for a 
long time for a reason.
    Senator Feinstein. Except now the terrorist surveillance 
program, all of it, is under FISA, you know. One doesn't know 
what the court would have done way back when, but it certainly 
was worth a try, which didn't happen. It seems to me that what 
Dr. Halperin has suggested, and in a sense Mr. Black suggested 
it as well, is really the way to handle this, that the 
Presidential certification doesn't necessarily provide the 
guarantees to the telecom--it certainly doesn't this time, and 
I've read it--so therefore it seems to me the court does 
provide the guarantee to the telecoms and the court does 
provide the guarantee to the individual citizen. So why not do 
that? Because one of the things we're going to try to do, I 
believe, is put as much of this type of intelligence collection 
under FISA as possible.
    Dr. Halperin. Could I just add one point?
    Senator Feinstein. Sure.
    Dr. Halperin. I think I very much agree with that. That's 
why I urge you to require that the government get a FISA order 
before it begins the surveillance authorized by this program. 
The government has now conceded a major role for the FISA 
court, and provided you have an emergency provision, I see no 
reason why you should not say, go to the court first and get 
this warrant, precisely because it then says to the court--it 
says to the providers, if there's a warrant you do it, if 
there's no warrant you don't do it.
    Senator Feinstein. And the court will give what I call a 
program warrant.
    Dr. Halperin. Right. Exactly.
    Senator Feinstein. So that's what you're looking for. 
You're looking for the court oversight, and then the court can 
set the strictures, say I want you to report to me every 3 
months, every 30 days, whatever it is. But the court then can 
provide oversight protection. I don't think it hobbles the 
executive at all.
    Dr. Halperin. I agree.
    Senator Feinstein. Does anybody differ with that? My time 
has almost run out.
    Mr. Philbin. I think it is certainly an improvement in FISA 
to ensure that the court can provide programmatic approvals. I 
don't think--my personal view is that it is impossible to 
predict now every exigency of the future that may arise. I 
think that the legislative scheme--what you're talking about 
here is limiting the immunity, to cut down on the immunity in 
this 2511 provision going forward so that it specifies only 
certain certification, the specific certification in FISA or 
something to that effect, or a court order.
    I can see that if the objective is to provide the immunity 
only where that kind of piece of paper is given, that it will 
achieve that effect. But I don't think that it is possible to 
predict now every exigency that will arise in the future and 
say that FISA is going to have all of that covered.
    Senator Feinstein. Well, I guess that's where I really 
disagree with you. I mean, I think we've reached a stage, after 
the Shamrock investigation, the FISA bill, the prohibitions in 
FISA, the fact that here it happened, the executive made the 
decision not to go to the court--they didn't go to the court 
for a substantial period of time. They stopped the program, 
obviously feeling that it was legally vulnerable, and then they 
went to the court. I think that's a big lesson for us in 
drafting legislation to prevent this from ever happening again. 
My time is up.
    Senator Specter?
    Senator Specter. Thank you, Madam Chairwoman.
    Mr. Black, I note that you worked with Secretary Kissinger 
during the Nixon administration. I think it may have been about 
the same time that Mr. Halperin was under surveillance.
    Dr. Halperin. I was also working with Mr. Kissinger in the 
Nixon administration.
    Mr. Black. And I should clarify, I only joined when 
President Ford took over.
    Senator Specter. You were working with Mr. Kissinger, too?
    Dr. Halperin. When he was the Director of the National 
Security Council in the first 9 months of the Nixon 
administration.
    Senator Specter. Was Mr. Black under surveillance when you 
worked for Secretary Kissinger?
    Dr. Halperin. I couldn't reveal that.
    Mr. Black. I should clarify, I only joined that 
administration under President Ford.
    Senator Specter. Mr. Black, was Mr. Halperin under 
surveillance when you worked with Secretary Kissinger?
    Mr. Black. I'm glad to say I worked on nuclear 
proliferation and other related issues, so I have no idea. But 
I really only joined the administration following President 
Nixon's resignation.
    Senator Specter. Did you enter a general ``not guilty'' 
plea?
    Mr. Black. Definitely ``not guilty''.
    Senator Specter. Mr. Philbin, why not indemnification? 
First, let me congratulate you for standing up as Mr. Comey 
lauded your performance under difficult circumstances.
    Mr. Philbin. Thank you, sir.
    Senator Specter. That is most commendable and rare. So, 
thank you. But why not? Why not indemnification? Will there be 
realistic losses to the government by these lawsuits which will 
be defended with every procedural device known?
    Mr. Philbin. I don't think that the problem with 
indemnification as a solution is ultimately the payout of 
money. That's not the concern. The problem with indemnification 
is that the lawsuit still has to proceed with the carrier as 
defendant, so the carrier is bearing all the burdens of 
litigation, which are significant.
    Senator Specter. But there is a Motion to Dismiss on 
grounds of state secrecy. The carrier never appears.
    Mr. Philbin. And if state secrets had really been a cure-
all, a silver bullet for these cases, they would be gone by 
now, I think. I mean, they've been pending for 2 years.
    Senator Specter. Well, what's happening with it? Anybody 
collected anything?
    Mr. Philbin. That's part of my point, Senator. It's not the 
money that is really the problem here. It's part of the 
problem, but it's the burden of the litigation itself. The cost 
of going through the litigation itself, reputational and other 
harm to the companies of going through the litigation, and 
damage to the United States in the form of potential leaks of 
national security information during the litigation. And--
    Senator Specter. What information is going to be disclosed? 
We couldn't even get it disclosed to the Chairman of the 
Judiciary Committee.
    Mr. Philbin. That, Senator, though, was based on a decision 
of the executive, that the executive was in control of. This 
will be a decision by an Article 3 judge, and there's one 
Article 3 judge that, in one of the cases, already rejected the 
assertion of the state secrets privilege because a certain 
amount of what has become known as the terrorist surveillance 
program was already publicly described. And--
    Senator Specter. Well, the Article 3 judges aren't always 
right, but I think they've traditionally provided good balance.
    I only have a minute and 40 seconds left, and I want to ask 
Mr. Halperin a question or two. Mr. Halperin, what about 
Article 2 power? The Foreign Intelligence Surveillance Act 
provides the exclusive remedy, but doesn't the President have 
Article 2 power, as Circuit Courts have said, weighing the 
national security interest versus the invasion of privacy that 
supersedes the statute?
    Dr. Halperin. Well, first of all, almost all of the Circuit 
Court decisions are pre-FISA decisions and held that in the 
absence--
    Senator Specter. Almost all, but not all.
    Dr. Halperin. Not all of them. But there are one or two in 
the other direction as well. So I think the Supreme Court has 
never spoken on this, nor come close to speaking on this 
question. But I think--
    Senator Specter. I'm not talking about the Supreme Court 
speaking, I'm asking you to speak. Isn't there Article 2 power?
    Dr. Halperin. I think that there may be some extreme power, 
in some extraordinary situation when the country is directly 
under attack, for the President to act. I don't think you can 
take--as you say, and as the Senate Intelligence Committee 
says, whatever power there is, you can't take away, nor can any 
President promise that future Presidents won't claim it.
    But what I think the Congress clearly has the right to do, 
is to educate the rules for the service providers. I think you 
can lawfully tell a service provider that, you cooperate with a 
warrant or a certification provided by this statute or the 
Federal Government or the State government can put you in 
prison.
    Senator Specter. Mr. Halperin, I have only 13 seconds left.
    Dr. Halperin. I'm sorry.
    Senator Specter. So I'm going to ask a question before my 
red light goes on. You want to limit it to counterterrorism 
only instead of all foreign information gathering. Why 
shouldn't we try to listen to what Iran is doing about a 
nuclear weapon?
    Dr. Halperin. We should try to listen to that, and we've 
listened to that under FISA. We listened during the cold war to 
the Soviet Union and we had successive directors of Central 
Intelligence saying those rules worked. There are different 
problems when you're dealing with terrorists who are trying to 
conduct operations within the United States. I think Congress 
should be open to amendments that respond to the specific 
problem of terrorists in the United States. But the old rules 
were good enough for the Soviet Union. I think they should be 
good enough for information about Iran or other foreign powers.
    Senator Specter. Well, I have many more important questions 
to ask, but I believe in observing the red light.
    Senator Feinstein. Wow.
    Senator Specter. And I will say only one thing in 
conclusion. I regret the ways of the Senate that keep you 
sitting here for several hours, and then only have two of us 
appear to question you. I regret that. But it is a very busy 
Senate and this happens, regrettably, all the time. So although 
you have not been treated as you should be, you have not been 
discriminated against. It happens to everybody on the second 
panel.
    [Laughter.]
    Thank you.
    Senator Feinstein. I'd like to say thank you. I think your 
testimony was very important and gave us some good ideas. So, 
thank you very much.
    The hearing is adjourned.
    [Whereupon, at 12:58 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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